In the fall of 2023, the Biden administration released planned rulemaking around two issues in child welfare: legal representation for children and parents, and ensuring that LGBTQ+ youth in foster care have safe and supportive places to live.
The legal representation rule is still pending, but the final iteration of the other proposal has been published and…it’s a little complicated, and creates yet another new term in the child welfare lexicon: “Designated Placements.” Youth Services Insider will attempt to break it down in layman’s terms.
As mentioned, last fall the Biden team proposed to require that state child welfare agencies “implement specific processes and requirements” to ensure that youth who identify as “LGBTQI+” — those with a different sexual orientation, gender identity or gender expression — are in “safe and appropriate” foster homes or other placements.
They received an eye-popping 13,768 public comments on the proposal (in fairness, most of them were form letters either expressing support or opposition) along with input from several members of Congress, state and local child welfare agencies, and myriad advocacy groups.
One line of critique, even from those supportive of the ultimate goal: Shouldn’t all foster care settings be safe and appropriate for any youth? Are we okay with other youth in foster care not having that guarantee?
Obviously, that was not the intention in the proposed rule, so the final product makes clear that yes, “safe and appropriate” is the expectation for all foster care settings. And, moving forward, states will also have to ensure that there are “designated placements” within their foster care capacity for LGBTQ+ youth. And a new child welfare term was born!
So what is a designated placement? Per the final rule, it is a foster home (kin or otherwise) or a residential program or group home that commits to three basic things:
- Establishing an environment that supports a child’s status or identity. There is no amplification of what that means, but safe to say there can be no pushing back or criticizing youth for their orientation or identity.
- Has been trained or has a regular training for staff on providing for the specific needs of LGBTQ+ youth. The training must “reflect evidence, studies, and research about the impacts of rejection, discrimination, and stigma.”
- Facilitate a youth’s access to resources, services and activities that support their health and well-being. This too is not presented with a lot of specifics, though it is made clear that medical care is a separate issue.
“This includes clinically appropriate mental and behavioral health care supportive of their sexual orientation and gender identity and expression, as needed,” the final rule states.
How Many?
This is where it gets murky fast. The rule requires that state child welfare agencies ensure that there is a designated placement available for any LGBTQ+ foster youth who requests one, “or who would benefit from such a placement.” It also demands that all youth 14 or older are made aware of designated placements, and that any children younger than that who is known to be LGBTQ is also advised of their presence.
The rule stops short of actually specifying any calculation, or absolute number or percentage, that corresponds to the idea of ensuring designated placements for all of these youth.
But in the Federal Register, the Children’s Bureau included an estimate that to ensure these placements are available for everyone who needs them, 15% of foster care placements will have to be designated placements. That is a lot.
“This estimate is purposefully high to account for some children under age 14 who may also need such designated placements,” the rule states.
Compliance
How will we know if states are meeting the expectations promulgated in this rule? The plan is to amend the Child and Family Services Review (CFSR) process to include the provision of designated placements as a new metric. The fourth round of this review process is underway right now and is expected to run through October 2026.
Youth Services Insider assumes that this will be part of round five, so for many states, we are talking about close to 2030 before a finding of substantial compliance will be made in the CFSR. Also important context: Thus far, no state has ever “passed” the CFSR in aggregate and states routinely fail portions of the review. It does feel like simply being a monitored requirement of the process would be a valuable piece in a lawsuit were someone to specifically take on a state or county for failing to provide safe places for LGBTQ youth, though.
Conversion Therapy
Much of the rule is focused on what must be provided for LGBTQ+ youth, but it also makes a clear statement of something that must not be provided. A section addressing retaliation against youth who identify as such includes perhaps the most specific protection in the entire rule: a prohibition on conversion therapy, a widely discredited and rejected protocol for changing or suppressing the sexual orientation or identity of a person:
“The final rule states that attempts to undermine, suppress, change, or stigmatize a child’s sexual orientation or gender identity or expression through so-called ‘conversion therapy’ is a form of prohibited retaliation against any child known or perceived to have an LGBTQ+ status and/or identity.”
Youth Services Insider recalls discussing a desire to wall off child welfare-involved children from conversion therapy back in the Obama administration.
“We need to be clear that the evidence is compelling and it doesn’t work,” Rafael López, Obama’s commissioner of the Administration on Children, Youth and Families, told The Imprint in 2016 (he now leads Maryland’s Department of Human Services). “We want to make sure we are using the best science and data we have about how children should live with families.”There was some thought, as cases mounted around the country, that the U.S. Supreme Court may take on the issue of conversion therapy and attempts to ban or prohibit its practice. But late last year, the high court elected to pass on a case generated by Washington state’s ban on conversion therapy.