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Federal Register / Vol. 86, No. 7 / Tuesday, January 12, 2021 / Rules and Regulations
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actions under its authorities 29 and to provide the public guidance 30 to protect the rights of persons with HIV or AIDS.
HHS remains committed to ensuring that those living with HIV or AIDS
receive full protection under the law, in accordance with full implementation of the Presidents National HIV/AIDS
Strategy.31
Comments: Some commenters opposed the proposed rule, contending that it would license discrimination by allowing child welfare agencies to reject prospective foster and adoptive families on the basis of sexual orientation, gender identity or expression, religion, and other factors; several suggested that such interests would be prioritized above the best interests of the child.
Others were concerned that it would permit discrimination against children in foster care who are LGBTQ and are entitled to loving support and the chance of a family. One state noted that its experience was that placement rates and time in care do not change significantly when discriminatory providers leave the field. A number of commenters thought that the proposed rule would have a negative impact on the availability of foster care/adoption placements; a few claimed that it would limit the number of loving parents that children can be placed with based on sexual preference, which does not serve anyone, with one commenter asserting that it will increase the number of children in foster care permanently. One commenter suggested that the substantive due process rights of children in state-regulated foster care will be impaired by the proposed rule and that placing the providers of foster care and adoption services in a position to serve their religious objectives over the best interest of the children in their care violates federal statute which gives 29 See, e.g., HHS Office for Civil Rights Secures Corrective Action and Ensures Florida Orthopedic Practice Protects Patients with HIV from Discrimination Oct. 30, 2019, https
www.hhs.gov/about/news/2019/10/30/hhs-ocrsecures-corrective-action-and-ensures-fl-orthopedicpractice-protects-patients-with-hiv-fromdiscrimination.html; HHS Office for Civil Rights Enters Into Agreement with Oklahoma Nursing Home to Protect Patients with HIV/AIDS from Discrimination Sept. 8, 2017, https
www.hhs.gov/about/news/2017/09/08/hhs-officefor-civil-rights-enters-into-agreement-withoklahoma-nursing-home.html.
30 See OCR, Know the Rights That Protect Individuals with HIV and AIDS, https
www.hhs.gov/sites/default/files/ocr/civilrights/
resources/factsheets/hivaids.pdf; OCR, Protecting the Civil Rights and Health Information Privacy Rights of People Living with HIV/AIDS, https
www.hhs.gov/civil-rights/for-individuals/specialtopics/hiv/index.html.
31 See Ending the HIV Epidemic: A Plan for America, https www.hiv.gov/Federal-response/
ending-the-hiv-epidemic/overview.

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the children and youth higher priority.
Several commenters disagreed that the current rule reduces the effectiveness of HHS-funded programs, contending that there is no evidence validating the statement. One commenter faulted HHS
for not providing empirical data to support the contention that the nondiscrimination rule is materially affecting efforts to find qualified providers; another complained that HHS
did not present evidence that a significant number of grantees have been unduly burdened under the current rule.
On the other hand, some commenters believed that, with the proposed changes, more children in the foster care system will be able to receive help as there will be more organizations available to provide services. Other commenters supported the proposed rule, believing that it keeps faith-based adoption agencies viable. Several Senators who submitted comments argued that the proposed rule would encourage a wider array of foster service providers. Other commenters noted that faith-based organizations have a good track record of helping vulnerable children through foster care and adoption, and providing material support and services, and believe the proposed rule will have a positive impact on the availability of foster care and adoption services. Some noted that the proposed rule protects the beneficiaries of HHS programs by ensuring that faith-based organizations do not cease to provide services, including foster care; several commenters noted that the current rule jeopardized foster care for thousands of children nationwide.
Response: The Department and its Administration for Children and Families ACF supports the prompt placement of children in loving homes according to the best interest of the children involved. The Department recognizes that many states may need more foster and adoptive families and greater foster care capacity. The Department values the work of faithbased organizations in service to persons in need and in the protection of children. It believes that when both faith-based and secular entities participate in the foster care and adoption placement processes, children, families, and providers benefit from more, not fewer, placement options.32
32 While one state indicated that its placement rates and time in care did not change significantly when discriminatory providers leave the field, other states provided the Department with different perspectives on the issue, given the unique dynamics and experiences of their state foster care and adoption systems. As noted above, based on its
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All children and youth should be treated fairly and with compassion and respect for their human dignity. Those in foster care need the support of a loving family to help them negotiate adolescence and grow into healthy adults, including those that face special or unique challenges. Faith-based child placement agencies are critical providers and partners in caring for vulnerable children and youth. These agencies have a long and successful history of placing foster children with loving families, either in temporary foster care or in forever homes through adoption. Their participation in these programs does not prevent qualified individuals, with whom some faithbased agencies cannot work, from becoming foster or adoptive parents because there are other agencies that would welcome their participation.
Failure to address the objections to the nonstatutory nondiscrimination requirements could destabilize this diverse system of foster care providers.
Some faith-based subrecipients, including some that provide critically important child welfare services to states and local jurisdictions across the child welfare continuum, may not be able to provide needed servicesand indeed, might be compelled to withdraw from the provision of child welfare servicesif they are forced to comply with the current nonstatutory nondiscrimination requirements. Foster care service providers in Michigan, South Carolina, and Texas have made such claims, supported by the state in the case of the providers in South Carolina and Texas. Such a result would likely reduce the effectiveness of the foster care/adoption programs because, in many states, it would decrease the number of entities available to provide foster care/adoption related services.
The Department further notes that a number of states have laws requiring the placement of children, when possible, with families of the same faith tradition as the child, in order to promote and protect the childs free exercise rights.
Eliminating the ability of faith-based providers to participate in Departmentfunded foster care and adoption programsbecause of their sincerely held religious beliefscould thus make it more difficult for children to receive services from child placement agencies that share their faith traditions and are more likely to place such children with foster or adoptive parents and families experience, the Department believes that when faith-based organizations are permitted to participate consistent with their religious beliefs, there is greater availability of foster care and adoption services and placements.

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