Biden admin looks to expand data collection on Indian Child Welfare Act cases

In an effort to better understand how Native American children are faring in foster care, the Biden administration’s health department is proposing a rule that would require state child welfare systems to gather more data about child removal cases that are subject to the Indian Child Welfare Act.

The proposed rule change, announced by the U.S. Department of Health and Human Services’ Administration for Children and Families on Thursday, would require states and tribal agencies that administer certain federal funds to submit more specific information about ICWA cases to the Adoption and Foster Care Analysis Reporting System, or AFCARS. That reporting is the primary way federal agencies and child welfare researchers track state-level trends in out-of-home placements related to child abuse and neglect.

That national system has historically struggled to record how American Indian and Alaska Native children are faring in foster care when the federal Indian Child Welfare Act applies to their case. 

Without additional information, the Biden administration said Thursday, it remains difficult to analyze why Native children are disproportionality represented in foster care and often face disparate outcomes within those systems. The proposal noted that Native children tend to have long stays in foster care and are less commonly reunited with their families.

“More complete data collection would provide a foundation for improved policy development, targeted technical assistance, and focused resources,” the health department said in its rule proposal. “This could assist in efforts to mitigate disproportionality for [American Indian and Alaska Native] children and families, support pathways to timely permanency for these children, and help maintain the integrity of tribal communities.”

If adopted, the new rule would ask state agencies to provide case-by-case documentation about whether a child was determined to be eligible for special protections under the 1978 Indian Child Welfare Act, how the child’s parents or caretakers were notified of the removal, and whether the child’s placement in foster care complies with the law’s preferred placements, such as with other family members or tribal members. 

The announcement of the proposed rule requires a period of public comment that lasts for 60 days after the rule is officially posted on Feb. 23, 2024. The rule can be read and responses can be submitted through the dedicated page on the Federal Register.

Montana is one state where Native American children are disproportionately involved in foster care, at about five times the rate of white children over the most recent decade of AFCARS data, as Montana Free Press detailed this month. While many child welfare experts across the state and nationwide agree that the overrepresentation is a problem, gaps in data collection are rampant and often hinder the ability for the state, tribes, federal partners and local court jurisdictions to understand the nuances of the problem and come up with solutions. 

In an email Thursday, the Montana Department of Public Health and Human Services declined to comment to Montana Free Press about the proposed rule. The department did not respond to an additional question before publication about whether it intends to submit a public comment to the federal agency. 

Currently, the state health department does not track information about ICWA cases or their outcomes but has said it would like to upgrade its case management system to be able to record that information. Comprehensive data collection is made more difficult by communication with relevant tribal governments and state district courts, which have their own ways of recording information about ICWA proceedings over the course of months and years. 

Bill Snell Jr., the director of the Rocky Mountain Tribal Leaders Council and an enrolled member of the Crow Nation, said the proposed rule could help raise the bar for data collection across state and tribal governments and provide more insight into what Native children are experiencing in foster care.

“That data needs to be really coordinated and their staff needs to be trained on what kind of data to collect,” Snell said in a Thursday phone call. “Because it’s really important for us to understand why children are taken out of their home.”

Yolana Page, an attorney for the Confederated Salish & Kootenai Tribes who primarily works on ICWA cases, said state workers, courts and tribal representatives are often working closely together to make sure that the federal law is followed and enforced. But being able to review annual data would help everyone understand where practices could be improved. 

“Any information, hard information we can see, the better. And I think it would help us as a tribe show that this is the whole point of what ICWA is,” Page said.

Collecting information about ICWA cases through the federal foster care monitoring reports has been a hot-button issue that has faired differently under recent presidential administrations. 

In 2016, the Obama administration proposed expanding data collection requirements for states through a similar rule change, an effort that the National Indian Child Welfare Association called “the result of 24 years of advocacy” over “years of concern related to inadequate and unreliable data.” That rule was delayed and then dramatically scaled back under the Trump administration, with the final product in 2020 consisting of a much more limited change to how states report actions and outcomes in ICWA cases. 

With only one round of data collection completed and released since that rule went into effect, state implementation of the 2020 rule has so far been mixed. The newly proposed Biden administration rule would add additional categories of reporting required for each case, including:

• Whether the state inquired whether the child is an Indian child as defined in ICWA 
• Whether a court determined that ICWA applies for the child, and whether the court decision included the testimony of one or more qualified expert witnesses 
• Whether the child’s parent or Indian custodian was sent notice in accordance with ICWA
• Information on requests to transfer cases to tribal court 
• Information on meeting the placement preferences under ICWA, and whether the court determined that the acting agency made active efforts to prevent the breakup of the Indian family

If the newly proposed rule is adopted, the Biden administration said it would provide states and tribes with technical assistance and guidance on implementing the changes. The Thursday announcement also pledged to pick up 50% of the total compliance cost for states, to the tune of an estimated $2.2 million, but did not provide a state-by-state breakdown of anticipated financial impact.