Approximately 30% of young people in the foster system, ages 12-21, identify as LGBTQI+. Due to systemic inequities, stigma, and discrimination, this population is disproportionately impacted by mental health issues and negative outcomes such as incarceration and homelessness.  There have been widespread reports from young people about foster system placements where they were not affirmed, experienced harassment and degrading treatment, and lived in overly restrictive placements due to a lack of appropriate placements. Affirming placements can significantly reduce or even eliminate these risks by promoting a sense of belonging and self-worth, encouraging healthy development, and protecting LGBTQI+ youth from bullying or abuse by peers or adults. By cultivating an environment of acceptance and understanding, affirming placements can keep young people safe and help LGBTQI+ youth thrive and reach their full potential.

The rule applies to all state and tribal agencies that receive federal funding under titles IV-E and IV-B of the Social Security Act. The rule does not require individual foster care providers, or entities which have contracted with title IV-E/IV-B agencies to become Designated Placements. However, individual providers are bound by certain elements of the rule, including prohibitions against retaliation, as explained below. Placement providers are foster families, childcare institutions, and other facilities that are contracted to provide foster care to children. Moreover, the agency will need to identify the number of providers available to ensure affirming placements so that it can comply with the new rule.

Agencies must implement a process to enable youth to request a Designated Placement that prioritizes the needs and concerns of the child and safeguards privacy and confidentiality, or request that their current placement be offered training and services to become a Designated Placement.^[1]

^[1] 45 CFR § 1355.22 (b)(2)

No. The rule does not require a specific number of Designated Placements, but agencies are obligated to meet the need for Designated Placements of the children and youth receiving services from the title IV-E and IV-B agency. Agencies still must continue to meet pre-existing federal law requirements related to providing the least restrictive and most family-like placement, located as near as possible to the child’s family and community.^[1]

^[1] 45 CFR § 1355.22 (b)(1)

Agencies must notify the following children about their rights regarding Designated Placements:

• All children age 14 and over;
• Children under age 14 who were removed from their home due (in whole or part), to family conflict related to the child’s sexual orientation, gender identity, gender expression, or sex characteristics;
• Any child who has disclosed their LGBTQI+ status or identity; and
• Any child whose LGBTQI+ status or identity is known to the agency^[1]

Notification must be provided in an age- and developmentally-appropriate manner, both verbally and in writing. At a minimum, the notice must explain:

• The child’s right to request a Designated Placement;
• How they may request a Designated Placement or services for their current placement;
• The process the title IV-E/IV-B agency will use to respond to their request;
• That they are protected from retaliation; and
• The process by which a child may report a concern about retaliation.

Further, the process must ensure the privacy and confidentiality of any information shared by a child seeking a designated placement. This includes maintaining confidentiality of the child’s LGBTQI+ identity and related details.^[2]

^[1] 45 CFR § 1355.22 (b)(2)(i)

^[2] 45 CFR § 1355.22 (b)(2)

The rule is clear that, absent a safety concern or specific request from the child, placement change should not be considered the first course of action. Once a youth requests a Designated Placement, the agency must first consider whether the current provider would be willing and able to become a Designated Placement if given additional services and training. Youth can also request that services be offered to their current placement to stabilize the placement or make it more supportive. Agencies must aim to promote placement stability for the youth and shall give substantial weight to the child’s request and best interests.^[1]

In addition to maintaining placement stability, agencies should give extra weight to the child’s ability to maintain connections to their family, culture, and community. Accordingly, if a child is placed in the home of a kin caregiver or in a placement with their siblings, additional efforts, including training, coaching, and provision of information, should be made to support an affirming home for the child.

^[1] 45 CFR § 1355.22 (b)(3)

After a request for a Designated Placement or a report of retaliation is made, the agency must respond promptly (in alignment with the existing timeframes for investigating child abuse and neglect reports).

The agency must:

• Train those who have responsibility for placing children in foster care, making placement decisions, or providing services on the procedural requirements of the rule and prepare them with the appropriate knowledge and skills to serve an LGBTQI+ child related to their LGBTQI+ status and/or identity.
• Ensure that all its contractors, sub-recipients, and providers who have responsibility for placing children in foster care, making placement decisions, or providing services are informed of the rule’s requirements, including the non-retaliation provisions.^[1]

This provision of the rule does not apply to the extent that it violates an individual’s federal protections regarding religious freedom, conscience, and free speech. However, existing requirements related to the provision of safe and appropriate placements that are free from harassment and abuse remain. All individuals and entities must abide by the non-retaliation provision of the rule.^[2]

^[1] 45 CFR § 1355.22 (h)

^[2] 45 CFR § 1355.22 (i)

States will be monitored through the child & family services reviews (CFSRs) conducted by the Children’s Bureau and all requirements of the rule are subject to the partial review process.

When considering placing a child, agencies must offer the child a placement consistent with their gender identity. In doing so, the agency must consult with the child to provide an opportunity for the child to voice any concerns related to the proposed placement. When a child’s gender identity does not conform to the sex-segregation options in a placement setting, the agency must consult with the child to determine a proposed placement that is safe and in the child’s best interest.^[1]

^[1] 45 CFR § 1355.22 (f)

Yes. Nothing in the rule limits any state, tribe, or local government from imposing or enforcing, as a matter of law or policy, requirements that provide greater protection to LGBTQI+ children than this rule provides.

Current federal law, which requires that children and youth in the foster system are placed in the least restrictive, most family-like placement consistent with their best interests and special needs, applies to all youth, including LGBTQI+ youth. The rule does not eliminate or alter this obligation. Designated Placements should operate in line with the legal priority to place young people in the most family-like setting possible. A child’s right to a Designated Placement must be enforced alongside the statutory requirement that the child be placed in the least-restrictive setting or other statutory requirements concerning proximity to the child’s parents, the child’s educational stability, or the preference for joint sibling placement.