New demands for federally collected child welfare data, many required by legislation, have been piling up for decades. This includes information about cases involving the Indian Child Welfare Act, broken adoptions, academic performance and the sexual identity of youth in foster care.
But the process for adding new elements to what’s known as the Adoption and Foster Care Analysis and Reporting System, or AFCARS, is now in litigation that started under the Trump administration and continues under President Joe Biden.
Parties to the lawsuit, which was filed in August 2020 by Lambda Legal, the Yurok Tribe and several other groups, moved last week for summary judgment in the case, which attorneys in the case described as the natural next step in the case’s progression. The suit alleges that the Trump administration unlawfully removed hundreds of data requirements planned by his predecessor, Barack Obama.
The Trump actions on data collection make it “harder for tribes to vindicate their and their children’s rights and to protect their children’s well-being,” according to the motion, which was filed in the U.S. District Court for the Northern District of California. “Likewise, the rule makes it more difficult for groups serving youth in care, including LGBTQ+ youth, to address the overrepresentation of those youth in the foster care population and to prevent their disproportionately negative experiences.”
Following is a basic explainer of how we got here, and what might come next.
In 2016, in the waning days of the Obama administration, the Department of Health and Human Services (HHS) finalized a rule that instructed states to collect nearly 300 new unique data points within AFCARS, which provides an annual view of youth who enter, live in and exit foster care.
That sounds like a lot of new information, and it is. But the collection process had not been updated since AFCARS was first established in 1993. The Bush administration was going to do it in 2008, but then the Fostering Connections to Success and Increasing Adoptions Act passed. That bill effected enough changes in federal policy that a decision was made to delay an update so the new rules could incorporate the law.
The Obama rules included the first-ever information about children for whom the Indian Child Welfare Act applies (click here for The Imprint’s recent story about the impact this law can have in child welfare courts every day). The new data was crucial, the Obama administration said, because even though ICWA had been around since the late 1970s, it wasn’t clear how well states were implementing it.
The rule also includes a requirement to track children who enter foster care after having been part of a finalized adoption. As Youth Services Insider has written in the past, this is one of the biggest blind spots in all of child welfare data. The few studies that exist suggest the number of adoptions that are disrupted is between 10% and 25%, with higher rates associated with older youth. The proposed AFCARS data would have provided a meaningful, though somewhat limited, capture of the national picture on this.
Equally absent from child welfare data is consistent, nationwide demographic information on sexual orientation. Regional surveys and studies indicate that there are a disproportionately high number of youth in foster care who identify as LGBTQ. The Obama rule would instruct states to collect information on the orientation of youth in foster care, and of foster or adoptive parents and guardians.
Among the other key data planned under the Obama rule: health diagnoses of youth in foster care, educational attainment and how many siblings are kept together in the system.
Trump quickly froze much of the newly finalized rulemaking that the Obama administration had done on its way out, and this included the AFCARS collection rule. In March of 2018, Trump’s HHS said it would delay the onset of the rule until 2021 and conduct another round of public commentary to help it determine changes to the rule.
That move drew the ire of Sen. Ron Wyden (D-Ore.), who said he would not support the nomination of one of Trump’s top child welfare officials until there was a better guarantee of action. It worked: the administration guaranteed a proposed new rule by May of 2019, and finalization by 2020.
The administration delivered on its promise and produced a new proposal for AFCARS just before May of 2019. The plan chopped Obama’s 272 new data elements down to 183, with HHS saying the root cause of most changes was the cost burden for states.
“States estimated that total costs to comply with the 2016 final rule ranged from $1 million for one year to $45 million over multiple years,” said the announcement, which was published in the Federal Register. “They provided ranges for specific costs, such as $41 million to hire and train new staff for administrative support, $600,000 to $1 million for total initial costs, and $741,000 to $11 million for ongoing costs.”
The Trump plan cut back significantly on ICWA data. And it removed all of the sexual orientation elements except one: states would only have to document the number of times a foster care removal was prompted by a family dispute related to a child’s preferences or identity. On the removal of orientation data, the administration made clear this was not a fiscal judgment.
“It is clear that AFCARS is not the appropriate vehicle to collect this information,” it noted in the Federal Register. “It is not feasible for us to test the validity or accuracy of adding questions related to sexual orientation across all [child welfare] agencies. Additionally, it is impossible to ensure that a child’s response to a question on sexual orientation would be kept private, anonymous, or confidential considering a caseworker would be gathering this information to enter into a child’s case electronic record.”
The rule was finalized in May of 2020. Three months later, the lawsuit was filed against the Trump Department of Health and Human Services. Last week’s action, a motion for summary judgment, asks for the court to set aside the Trump collection plan.
That brings us to the present. So what does the future hold?
Youth Services Insider asked the Biden administration in late April, before this most recent motion, where things stood with new AFCARS data collection. Had it halted Trump's rule? Was it going to write its own new one?
The response from the communications office at the Administration for Children and Families: “Due to pending litigation associated with the 2020 AFCARS rule, we are not able to comment at this time.”
This is interesting in that the administration absolutely has the power to repeal the Trump team’s rule, and then craft a new one in its place, or essentially just reissue the broader Obama package from 2016. But both the repeal and the new rulemaking would require a notice and public comment period and then the clock would start all over again on giving states a one- or two-year preparation window for adding the new elements. At that rate, we might not see any new data in AFCARS until 2025.
That Biden has not moved in that direction, making the lawsuit moot, does not suggest it agrees with the changes made by Trump.
We asked Currey Cook, the director of foster care issues for Lambda Legal and a lead attorney in the lawsuit, whether he and other plaintiffs might take a settlement where the Trump rule remained, but Biden promised to issue another rule that added the eliminated data back in. This would permit the already finalized elements to be implemented soon, and eventually make the Obama plan whole again.
Cook suggested that there is a more direct relief that he believes the court could provide a better solution: reinstating the Obama rule.
“I think that could be a possibility if the judge says [the Trump rule] was unlawful,” said Cook, in an interview with Youth Services Insider. The Obama administration “put a lot of thought and consideration” into the 2016 rule, “and the reason Obama had considered adding those was because they and our plaintiffs think that info is critical to learning about vulnerable populations.”
It seems to be up to how the court views the 2016 rule, which was finalized but was never implemented, because Trump quickly froze it and made changes. If the Trump rule gets chucked, does that mean the 2016 rule takes effect? This is what plaintiffs are hoping, as opposed to a reset to the original AFCARS collection that was decades overdue for an update.
Cook would not comment on discussions his side has had with the Biden administration about this. It will be interesting to see, if the court does not grant a motion for summary judgment, if HHS will continue to defend against the lawsuit. In February, the administration stopped fighting a court delay in another Trump child welfare regulation situation that would have enabled greater ability for faith-based providers to be discriminatory in who they serviced.