HHS Announces Proposed Rule Requiring States to Collect Additional Information on American Indian/Alaska Native Youth Entering the Foster Care System or Adoption Process

Today, the U.S. Department of Health and Human Services (HHS), through the Administration for Children and Families (ACF), proposed a rule to increase data collection on American Indian/Alaska Native children's status and experiences. This proposed rule aims to augment information submitted by states to ACF’s Children’s Bureau for inclusion in the Adoption and Foster Care Analysis Reporting System (AFCARS) report.

ACF uses the AFCARS data submitted by states and tribal title IV-E agencies to provide national statistics on the child welfare population, budgeting, providing reports to Congress and monitoring compliance with the title IV-B and IV-E requirements. Currently, ACF’s Children’s Bureau receives a limited amount of information through AFCARS for determining what children should be afforded the protections of the Indian Child Welfare Act of 1978 (ICWA) — which was established to promote the stability and security of Indian tribes and families through the placement of their children in foster or adoptive homes which will reflect the unique values of Indian culture.  

"Every child deserves to feel safe, heard, and connected to their roots. That's why we're taking this step to ensure data on American Indian/Alaska Native children and families are collected by our child welfare systems,” said HHS Secretary Xavier Becerra. “This proposed change goes beyond just collecting data. It will also move us a step closer to valuing the experiences of Native families and furthering our goals of keeping children in their homes and communities.” 

For American Indian/Alaska Native (AI/AN) children, who are subject to both Title IV-E of the Social Security Act and ICWA, it is impossible to fully understand their experiences in foster care without understanding the extent to which they receive the procedural protections of ICWA. AI/AN children continue to be over-represented in the child welfare system and recent data has shown that AI/AN children are at greater risk than other children of being confirmed for maltreatment and placed in out-of-home care.

“Over the years, tribal leaders have consistently advocated for ICWA-related data to be included in AFCARS and this rule is a reflection of that advocacy,” said Acting ACF Assistant Secretary, Jeff Hild. “Gathering this data would help us better understand the experiences of Native children and families with state child welfare systems. Developing impactful policies that support family preservation and the inclusion of cultural identity for American Indian/Alaska Native children is a top priority for this Administration.”

The Notice of Proposed Rulemaking (NPRM) would require that state child welfare agencies collect and report data elements on: (1) whether the state inquired with named entities as to whether the child is an Indian child as defined in ICWA and when the agency first discovered information indicating that the child is or may be an Indian child as defined in ICWA; (2) information on court determinations that ICWA applies for the child, and whether the testimony of one or more qualified expert witnesses was included for voluntary and involuntary terminations of parental rights, and removals; (3) whether the child’s parent or Indian custodian was sent notice in accordance with ICWA; (4) information on requests to transfer cases to tribal court; (5) information on meeting the placement preferences under ICWA; and (6) whether the court determined there was active efforts.

“The information that the Children’s Bureau currently collects from states is a good start but does not provide sufficient information about Native children to meaningfully inform policy-making,” said Administration on Children, Youth, and Families Commissioner, Rebecca Jones Gaston. 

More complete data collection related to ICWA’s procedural protections would enable HHS, other federal agencies and states to target policy development, training and technical assistance to specific areas of need. The data collection would allow the federal government to address the disproportionate number of AI/AN children and families and help maintain the integrity of tribal communities.

“This proposed rule would ensure the inclusion of Native children and families in accurate data collection as an essential element to informing and improving programs and services, because Native kids count,” said Patrice Kunesh, Commissioner, Administration for Native Americans. 

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