The U.S. Department of Health and Human Services (HHS) said this week that it wants to abandon the collection of foster care and adoption data that would have helped to more effectively serve LGBTQ youth.
A 2016 HHS rule required that HHS collect data related to the sexual orientation of youth in care and of foster and adoptive parents and guardians. In March 2018, the HHS under President Trump tried to delay implementing the collection of this data as part of its Adoption and Foster Care Analysis and Reporting System (AFCARS). HHS this week said it wants to amend the rule and not collect this data at all, although it would note if a child’s sexual orientation, gender identity, or gender expression were related to the reason a child was removed from a home. It has just posted a Notice of Proposed Rulemaking for a new rule that would override the earlier one.
Why? HHS says that one third of the states that submitted comments on the proposed rule “said that asking for sexual orientation may be perceived as intrusive and worrisome to those who have experienced trauma and discrimination as a result of gender identity or sexual orientation. This would be a mandatory conversation a worker must have in order to complete the data elements. Mandating such a conversation may be contraindicated based on a child’s history of abuse or neglect.”
I don’t want to say that can never be the case—but when one looks at the number of child welfare organizations who have signed on to support the collection of this data, including the Child Welfare League of America, the Children’s Defense Fund, the National Association of Social Workers, the North American Council on Adoptable Children, the National Center on Adoption and Permanency, and many more—I have to trust their experts and think the greater harm is in not asking these questions.
HHS also says, “Adolescents may use different terms to describe their sexual orientation than terms used by adults. Bullying related to one’s sexual orientation may cause some adolescents to be reluctant to identify themselves with terms that must be regulated in AFCARS. This emphasizes the importance that respondents are confident that their responses are private, anonymous, and confidential.” All true—but is that a reason not to capture at least the responses we can? And shouldn’t confidentiality be part of this system to begin with?
HHS continues, “Other factors that are relevant to asking questions related to sexual orientation are cultural or racial/ethnic considerations and geography. For example, there may also be regional differences in interviewers’ and respondents’ comfort with questions about their sexual orientation.” Yes—but just because some people might not be comfortable with these questions is not a reason to avoid them. Some people may refuse to answer, and that’s fine.
Family Equality Council and the Every Child Deserves a Family Campaign remind us why it is important to track foster youth who identify as LGBTQ:
HHS-funded research shows that early 1 in 5 foster youth are LGBTQ and report twice the rate of poor treatment in foster care as non-LGBTQ youth. LGBTQ foster youth also suffer worse outcomes in foster care than their non-LGBTQ counterparts including multiple placements, longer stays in residential care, and greater rates of greater rates of hospitalization for emotional reasons, homelessness, and criminal justice involvement.
HHS will, however, allow AFCARS to note when a child’s sexual orientation, gender identity, or gender expression is related to the reason they were removed from their home—but the way that the HHS rule phrases this is, I believe, very telling. They emphasize only the circumstances when sexual orientation, gender identity, and gender expression do not apply:
The data element Child and family circumstances at removal, has many circumstances to which the agency will report whether each “applies” or “does not apply.” If family conflict related to the child’s sexual orientation, gender identity, or gender expression was not known as a circumstance surrounding the child at removal, or was not documented in the electronic case record, the information will be reported to AFCARS as “does not apply.” This does not require the worker to have a conversation in instances where it is not appropriate or not applicable to the child’s wellbeing.
Another telling part is HHS’ excuse for not collecting the sexual orientation of foster and adoptive parents and guardians. They say these can be obtained in other ways:
Additionally, there will be an opportunity for analysis via a combination of information gleaned from other data elements, for example, the sex and marital status of foster parents, adoptive parents, and legal guardians. The information from these data elements will provide an overview of the number of foster, adoptive, and legal guardian couples who identify as non-heterosexual.
Looking only at sex and marital status rather than asking clearly about sexual orientation means ignoring the many bisexual parents who may not be in same-sex relationships. (According to one expert’s calculation, there are approximately 2.25 million bisexual parents, and just over half were married with a different-sex spouse.) Single and unmarried, partnered parents would also be overlooked. This implies HHS isn’t really concerned with gathering information about LGBTQ parents (and that they don’t have anyone with the expertise to understand our whole community).
Not that all LGBTQ foster youth need LGBTQ foster or adoptive parents—but they should be in the mix. As Denise Brogan-Kator, Family Equality Council’s chief policy officer, stated, “We need diverse parents for these diverse foster youth. By eliminating data collection on LGBTQ foster and adoptive parents and those who apply to be parents, HHS is limiting agencies’ ability to recruit more and diverse families, and to identify affirming families for LGBTQ foster youth, many of whom have already been rejected by their families of origin.”
There are more than 440,000 foster youth in the U.S., 123,000 of whom are waiting to be adopted. An estimated two million same-sex couples are interested in adopting, according to a 2007 study from UCLA’s Williams Institute (and I can’t imagine the number has dropped since then, given the growing visibility and acceptance of same-sex parents, the Trump administration notwithstanding).
HHS’ proposed rule also reduces the amount of data collection related to the Indian Child Welfare Act (ICWA). ICWA was designed to prevent the removal of Native American children from their tribes, but data to ensure this was never part of AFCARS. It was proposed in the 2016 rule, but this latest HHS move scales it back. I am in no way an expert in this area, so I leave it to others to comment on the specific impact of this, but I echo Brogan-Kator’s comment of being “very concerned” here as well.
Here’s the bottom line: “By deciding not to collect data on LGBTQ youth, HHS is abdicating its statutory responsibilities to promote the safety, well-being, and permanency of LGBTQ foster youth,” said Julie Kruse, director of federal policy at Family Equality Council. “States, tribes and agencies cannot improve care and outcomes for youth if they do not have data to measure their efforts.”
What to do? The public now has 60 days to comment on the Notice of Proposed Rulemaking that would limit data collection and override the 2016 rule. The final day to do so is June 18, 2019. You may view the rule and comment here (note the blue “Comment Now” button) or e-mail your comments to CBComments@acf.hhs.gov. Include the Regulatory Information Number, 0970-AC72, in the subject line of your message. Not sure what to write? I refer you to this guest post from the Every Child Deserves a Family Campaign last year, when HHS first hinted at eliminating data collection related to LGBTQ youth. It offers some suggested points to make.