STATE OF ALABAMA

OFFICE OF THE ATTORNEY GENERAL

STEVE MARSHALL 501 WASHINGTON AVENUE
ATTORNEY GENERAL MONTGOMERY, AL 36130
(334) 242-7300
WWW.AGO.ALABAMA.GOV

November 27, 2023

Aysha E. Schomburg
Associate Commissioner, Children’s Bureau
Administration on Children, Youth and Families
Administration for Children and Families
U.S. Department of Health and Human Services
330 C Street, S.W.
Washington, D.C. 20201

Submitted via https://www.regulations.gov

Re: RIN 0970-AD03, Notice of Proposed Rulemaking, Safe and Appropriate

Foster Care Placement Requirements for Titles IV-E and IV-B, 88 Fed. Reg.
66752 (Sept. 28, 2023).

Dear Ms. Schomburg:

The Attorneys General of Alabama, Alaska, Arkansas, Georgia, Idaho, In-

diana, Iowa, Kentucky, Louisiana, Mississippi, Missouri, Montana, Nebraska,
Ohio, South Carolina, Tennessee, Texas, Virginia, and West Virginia submit these
comments in opposition to the Department of Health and Human Services (HHS)
Administration for Children and Families’ (ACF) proposed rule, Safe and Appro-
priate Foster Care Placement Requirements for Titles IV-E and IV-B, 88 Fed. Reg.
66752 (Sept. 28, 2023).

This proposed rule seeks to accomplish indirectly what the Supreme Court
found unconstitutional just two years ago: remove faith-based providers from the
foster care system if they will not conform their religious beliefs on sexual ori-
entation and gender identity. See Fulton v. City of Philadelphia, 141 S. Ct. 1868,
1882 (2021) (“The refusal of Philadelphia to contract with [Catholic Social Ser-
vices] for the provision of foster care services unless it agrees to certify same-
sex couples as foster parents cannot survive strict scrutiny, and violates the First
Amendment.”). In addition to discriminating against religion, the proposed rule
will harm children by limiting the number of available foster homes, harm fami-
lies by risking kinship placements, and harm states by increasing costs and de-
creasing care options. These injuries will be suffered while HHS fails to solve a
problem that the proposed rule does not even prove exists in foster care.

For these reasons, HHS should reject the proposed rule.

I. Individuals and organizations of faith are a critical part of the foster care system.

The proposed rule reports that 391,000 children were in foster care in 2022.
88 Fed. Reg. at 66767. The number of children in foster care grew steadily from
392,000 on September 30, 2012 to 437,000 on September 30, 2017, before starting
its decline to today’s level. Trends in Foster Care and Adoption: FY 2012 – 2021,
U.S. Department of Health and Human Services, Administration for Children and
Families, 1 (June 28, 2022), available at https://perma.cc/V7Y3-VBTM. How-
ever, the proposed rule anticipates that the number of children in foster care will
begin increasing again, with an estimated 416,500 in foster care by 2027. 88 Fed.
Reg. at 66767.

Caring for children in need is a duty of the Christian faith. See, e.g., Mark
9:37; James 1:27. Since America’s early days, people and organizations of faith
have cared for orphans and children in foster care. See, e.g., Fulton, 141 S. Ct. at
1874; see also Mary Viatora Schuller, A History of Catholic Orphan Homes in the
United States, 1727 to 1884 (June 1954) (unpublished Ph.D. dissertation, Loyola
University), available at https://ecommons.luc.edu/cgi/viewcontent.cgi?arti-
cle=1466&context=luc_diss. Individuals and organizations continue that faith-
based service today.

The foster care system depends on individuals and organizations of faith.

See Fulton, 141 S. Ct. at 1875 (“The Philadelphia foster care system depends on
cooperation between the City and private foster agencies like [Catholic Social
Services].”). An LGBT research organization reported that 40% of government-
contracted child placement agencies are religiously affiliated. What’s at stake in
Fulton: kids in the foster care system, M O V E M EN T A D V AN C E M E N T P R O J EC T (2020),
1, available at https://perma.cc/BDH5-C5V2. In New Mexico, every private
placement agency is Christian. Id. In Arkansas, one faith-based group was cred-
ited with recruiting almost half of the foster homes in the state. Benjamin Hardy,
One faith-based group recruits almost half of foster homes in Arkansas, A R K A N -
S A S T I ME S (Dec. 1, 2017), available at https://perma.cc/43A4-TR8R. Foster par-
ents who are recruited through a church or other religious organization foster
children for 2.6 years longer than the average foster parent. Mary Ellen Cox et
al., Recruitment and Foster Family Service, J. O F S O C IO L O G Y & S OC IA L W EL F AR E
(Sept. 2002), 168 Table 6, available at https://scholarworks.wmich.edu/cgi/view-
content.cgi?article=2832&context=jssw. And practicing Christians are three
times more likely to seriously consider fostering than the general population. 5
Things You Need to Know About Adoption, B A R N A (Nov. 4, 2013), available at
https://perma.cc/53ZP-WQDV.

Without faith-based organizations and foster homes, the foster care system
would face a critical lack of placement options. In March 2018, Philadelphia made
an urgent request for 300 new foster care homes. Mark C. Psoras, Philly puts out
‘urgent’ call – 300 families needed for fostering, T H E P H IL AD EL P H IA I N Q U IR ER
(Mar. 8, 2018), available at https://perma.cc/D9K5-5S7Q. One week later, in the
decision that reached the Supreme Court, the city strained the system further when
it stopped placing children in foster care through two Christian agencies, which

2
had placed 233 children with families. Julia Terruso, City halts foster care intakes
at two agencies that discriminate against LGBTQ people, T HE P H I LA DE LP H IA I N -
Q U IR ER (Mar. 15, 2018), available at https://perma.cc/X9D6-Y8YC.

The same trend occurred on a state level. In 2011, Illinois ended its foster
care placement contracts with faith-based organizations because of their religious
beliefs. Manya Brachear, State severs foster care ties with Catholic Charities,
C H IC A G O T R IB U N E (July 11, 2011), available at https://perma.cc/2RCJ-JAC7.
Over the next five years, Illinois lost 1,567 foster homes, a greater decrease than
any other state. The Foster Care Housing Crisis, T H E C H R O N IC LE O F S OC IA L
C H A N G E (Oct. 31, 2017), 8, 14, available at https://perma.cc/5YUD-B843. It is
little wonder, then, that 41% of foster children in Illinois have moved at least four
times while in foster care. Dave Savini et al., Illinois foster children are being
moved repeatedly from one place to another, and traumatized, CBS C H IC A GO
(Mar. 10, 2023), available at https://perma.cc/X34S-8H2E. Incredibly, 320 Illi-
nois foster children have moved at least 67 times. Id.

States need faith-based organizations in their foster care system. The pro-
posed rule will drive individuals and organizations of faith away, which will in-
crease the strain on the system by reducing the number of available foster homes.
The federal government should be searching for ways to increase the number of
foster homes, not decrease them.

II. The proposed rule discriminates against individuals and organizations of faith.

The proposed rule is unconstitutional because it discriminates against indi-

viduals and organizations of faith who want to serve children in the foster care
system. The proposed rule also unconstitutionally forces speech on foster provid-
ers. HHS should reject the proposed rule.

The proposed rule requires “safe and appropriate placement” for LGBTQI+
foster children. To be considered a “safe and appropriate placement,” the provider
“will establish an environment free of hostility, mistreatment, or abuse based on
the child’s LGBTQI+ status,” be “trained to be prepared with the appropriate
knowledge and skills to provide for the needs of the child related to the child’s
self-identified sexual orientation, gender identity, and gender expression,” and be
willing to “facilitate the child’s access to age-appropriate resources, services, and
activities that support their health and well-being … if the child wishes to access
those resources, services, and activities.” 88 Fed. Reg. at 66756. And the “pro-
vider is expected to utilize the child’s identified pronouns, chosen name, and al-
low the child to dress in an age-appropriate manner that the child believes reflects
their self-identified gender identity and expression.” Id. at 66757.

A. The proposed rule violates the freedom of religion.

HHS recognizes the religious liberty issues posed by the proposed rule: “As
the Supreme Court has recently made clear, the First Amendment protects faith-
based entities that provide foster care services.” 88 Fed. Reg. at 66761 (citing
Fulton, 141 S. Ct. 1868). And ACF purportedly “was cognizant” “[w]hen drafting

3
the proposed text” “that a foster care requirement that precludes a child welfare
provider from participating in the program while adhering to its religious beliefs
might substantially burden religious exercise.” Id.

Yet the proposed rule still substantially burdens religious exercise. In a

failed attempt to avoid the clear holding of Fulton, the proposed rule would apply
most of its requirements on States instead of on individual providers. Id. The
proposed rule claims that individual religious providers could decline to seek
designation as a “safe and appropriate placement for LGBTQI+ children” and thus
not receive any such placements. Id. at 66761-62, 66756 n.40, 66757 n.44. But
this approach continues to unconstitutionally discriminate against religion in mul-
tiple ways.

Forcing individuals and organizations of faith to limit their work in the

foster care system to follow their beliefs is unconstitutional. As the Supreme
Court explained, Philadelphia unlawfully burdened the religious exercise of Cath-
olic Social Services by putting the organization “to the choice of curtailing its
mission or approving relationships inconsistent with its beliefs.” Fulton, 141 S.
Ct. at 1876. Like the policy in Fulton, the proposed rule is neither neutral nor
generally applicable. See id. at 1876-79.

The proposed rule will indirectly accomplish what Fulton prohibited the
City of Philadelphia from accomplishing directly. Under the proposed rule, each
State must “ensure that the totality of their child welfare system includes suffi-
cient placements for LGBTQI+ children that meet” the proposed standards. 88
Fed. Reg. at 66756. If the proposed rule’s statistics are accurate (which they likely
are not, see Section VI below), individuals and organizations of faith would be
excluded from providing care to as many as one-third of foster children ages 12-
21. Id. at 66753. States would be forced to recruit non-religious providers to meet
these needs. And individuals and organizations of faith will be discouraged from
beginning or continuing to provide foster care services because they will be pe-
nalized for their beliefs and excluded from helping large numbers of foster chil-
dren. Excluding individuals and organizations of faith from providing care for
potentially one-third of older foster children unconstitutionally burdens individ-
uals and organizations of faith.

The proposed rule also materially and directly impacts providers: “The only
requirement that would be imposed on private providers by the proposed rule is
the requirement to be informed of the procedural requirements to comply with the
proposed rule (including the required non-retaliation provisions outlined in para-
graph (a)(4)).” 88 Fed. Reg. at 66761. “Retaliation” is defined as “imposing neg-
ative consequences on the child because of the child’s disclosure of their
LGBTQI+ identity, perceived LGBTQI+ identity, request, or report.” Id. at 66759.
Examples of “retaliation” include “unwarranted placement changes (including un-
warranted placement in congregate care rather than in family-like settings), re-
striction of access to LGBTQI+ peers or age appropriate materials, required par-
ticipation in efforts to degrade, disparage or change the child’s sexual orientation
or gender identity, disclosing the child’s LGBTQI+ identity in ways that cause

4
harm or risk the privacy of the child, or other activities that stigmatize a child’s
LGBTQI+ identity.” Id. As written, these “retaliation” provisions are applicable
to individuals or organizations of faith who have a foster child in their care who
later discloses, or is perceived to have, a LGBTQI+ identity.

Through this “retaliation” provision, the proposed rule directly endangers

the religious freedom of individuals and organizations of faith. The “Free Exer-
cise Clause provides an absolute right to hold religious beliefs.” Lasche v. New
Jersey, No. 20-2325, 2022 WL 604025, at *4 (3d Cir. Mar. 1, 2022). In Lasche,
the Third Circuit held that foster parents stated First Amendment retaliation and
§ 1985 claims when a foster child was removed from their care in retaliation for
“sharing their views on same-sex marriage” with the foster child. Id. at *5. For
decades, the Supreme Court has “made clear that the government, if it is to respect
the Constitution’s guarantee of free exercise, cannot impose regulations that are
hostile to the religious beliefs of affected citizens and cannot act in a manner that
passes judgment upon or presupposes the illegitimacy of religious beliefs and
practices.” Masterpiece Cakeshop, Ltd. v. Colo. C.R. Comm’n, 138 S. Ct. 1719,
1731 (2018) (citing Church of Lukumi Babalu Aye, Inc. v. City of Hialeah, 508
U.S. 520, 534 (1993)). Under standards like “perceived identity” and “degrade,”
“disparage,” or “stigmatize” a child’s identity, the proposed rule places individ-
uals and organizations of faith at risk of being accused of “retaliation” when they
have done no more than live and profess their beliefs. This unconstitutionally
infringes on their First Amendment rights. See also Comment Letter of Tennessee
et al. on Placement Rule 5-6 (Nov. 27, 2023).

For similar reasons, the proposed rule would also violate the requirements
of the Religious Freedom Restoration Act (RFRA), 42. U.S.C. § 2000bb et seq.
Here again, the proposed rule acknowledges RFRA’s requirements and promises
that “ACF will continue to operate the title IV-E and IV-B programs in compliance
with” RFRA. 88 Fed. Reg. at 66761. And here again, the promise is empty. Despite
assuring that “ACF has taken the[] RFRA principles into account,” id., the pro-
posed rule does not explain how the “RFRA principles” have been accounted for.
Naked assurance is not reasoned rulemaking. And the one time the proposed rule
does purport to show its work, it comes up short: the “[m]ost important[]” way
ACF has purported to comply with RFRA, the proposed rule states, is by “im-
pos[ing]” the new requirements “directly on state and tribal IV-E/IV-B agencies,
as opposed to on any private foster care agency, foster parent, kinship caregiver
or other provider.” Id. But RFRA cannot be so easily circumvented merely by
making States do the agency’s dirty work—to say nothing of state-level RFRA
laws that States must also comply with. As explained throughout this letter, foster
families of faith—individuals, not just States—will be negatively affected by the
proposed rule. The rule does not comply with RFRA by hiding who is politically
responsible for those effects.

5
 B. The proposed rule violates the freedom of speech.

Nor can the government force speech on foster parents. See 303 Creative
LLC v. Elenis, 600 U.S. 570, 586 (2023); Meriwether v. Hartop, 992 F.3d 492,
503 (6th Cir. 2021). As the Supreme Court recently explained:

the First Amendment protects an individual’s right to

speak his mind regardless of whether the government
considers his speech sensible and well intentioned or
deeply “misguided,” and likely to cause “anguish” or
“incalculable grief.” . . . Generally, too, the government
may not compel a person to speak its own preferred mes-
sages.

303 Creative LLC, 600 U.S. at 586. As the Court recognized—and “has long
held”—“the opportunity to think for ourselves and to express those thoughts
freely is among our most cherished liberties and part of what keeps our Republic
strong.” Id. at 603.

So it is that “[g]overnment officials violate the First Amendment whenever

they try to ‘prescribe what shall be orthodox in politics, nationalism, religion, or
other matters of opinion,’ and when they ‘force citizens to confess by word or act
their faith therein.’” Meriwether, 992 F.3d at 503 (quoting W. Va. State Bd. of
Educ. v. Barnette, 319 U.S. 624, 642 (1943)). That includes, as it did in Meri-
whether, forcing an individual to use another’s preferred pronouns by government
fiat. See id. at 518; see also see also Green v. Miss United States of Am., LLC, 52
F.4th 773, 802-03 (9th Cir. 2022) (rejecting bid “to use the power of the state to
force Miss United States of America to express a message contrary to what it
desires to express”).

HHS’s attempt to force speech on individuals and organizations of faith

thus violates the First Amendment’s protection of foster parents’ freedom of
speech. See, e.g., 303 Creative LLC, 600 U.S. at 603 (“The First Amendment en-
visions the United States as a rich and complex place where all persons are free
to think and speak as they wish, not as the government demands.”). Accordingly,
HHS should reject the proposed rule.

III. The proposed rule threatens discrimination against family members.

There is another constitutional infirmity lurking in the proposed rule: it

threatens discrimination against family members of children in the foster care
system.

Relatives have long been given preference when determining a foster

child’s placement. According to the governing statute, a State is required to “con-
sider giving preference to an adult relative over a non-related caregiver when
determining a placement for a child, provided that the relative caregiver meets all
relevant State child protection standards.” 42 U.S.C. § 671(a)(19). ACF itself has
underscored the importance of kinship placement: “When children cannot remain

6
safely with their parents, placement with kin is preferred over placement in foster
care with nonrelatives. Placement with kin—or kinship care—may provide per-
manency for children and helps them maintain family connections.” Children’s
Bureau, Kinship Care and the Child Welfare System, Administration for Children
and Families (May 2022), available at https://www.childwelfare.gov/pub-
pdfs/f_kinshi.pdf. As HHS reports, “A significant body of evidence demonstrates
that when children in the foster care system are placed with kinship caregivers
that they have better outcomes.” 88 Fed. Reg. at 66762.

HHS suggests this important preference may be undermined by the proposed

rule. In the proposed rule, “HHS invites public comment on how agencies can best
comply with the requirements of this proposed rule and prioritize placements with
kinship caregivers. In particular, HHS invites public comment on what resources
agencies may need from HHS to support kinship caregivers in caring for an
LGBTQI+ child.” Id. at 66762-63. In other words, HHS appears to be contemplat-
ing how individuals of faith who are relatives of LGBTQI+ children in foster care
can be trained or managed to “best comply with the requirements of this proposed
rule”—which would include the requirements regarding pronouns, views on sex-
ual orientation and gender identity, and training. For the reasons previously ex-
plained, any attempt to violate the religious beliefs of kinship caregivers would
be unconstitutional.

The proposed rule thus risks infringing on the First Amendment rights of
kinship caregivers who hold religious beliefs. HHS should reject the proposed
rule.

IV. The proposed rule will endanger and harm foster children.

The proposed rule is arbitrary and capricious because of its impact on foster
children. An agency rule is arbitrary and capricious if “the agency has relied on
factors which Congress has not intended it to consider, entirely failed to consider
an important aspect of the problem, offered an explanation for its decision that
runs counter to the evidence before the agency, or is so implausible that it could
not be ascribed to a difference in view or the product of agency expertise.” Motor
Vehicle Mfrs. Ass’n of U.S., Inc. v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29,
43 (1983).

Family homes are the best option for foster children in care. ACF itself
recognizes that “there is consensus across multiple stakeholders that most chil-
dren and youth, but especially young children, are best served in a family setting.”
A National Look at the Use of Congregate Care in Child Welfare, ACF Children’s
Bureau (July 13, 2015), I, available at https://perma.cc/LRP4-JZRX. Congregate
care, ACF cautions, “should be used only for as long as is needed to stabilize the
child or youth so they can return to a family-like setting.” Id.

The proposed rule will harm LGBTQI+ foster children by limiting their
family setting options. According to the proposed rule’s estimates, as many as
one-third of children may not be placed with individuals or organizations of faith.

7
This increases the likelihood that these children will be placed in congregate set-
tings that will not support them as much as a family setting provided by a family
of faith.

The proposed rule will harm all foster children by reducing their family
setting options. As already mentioned, 40% of government-contracted child place-
ment agencies are religiously affiliated. What’s at stake in Fulton, supra, at 1. In
New Mexico, every private placement agency is Christian. Id. Many foster homes
are recruited by these organizations of faith. Almost half of foster homes in Ar-
kansas were recruited by a single faith-based group. Hardy, One faith-based group
recruits almost half of foster homes in Arkansas, supra.

By discouraging individuals and organizations of faith from joining or con-

tinuing in foster care, the proposed rule will reduce family setting options. Again,
Illinois lost more foster homes than any state in the country over a five-year pe-
riod after it ended its foster care placement contracts with faith-based organiza-
tions. The Foster Care Housing Crisis, supra, at 8, 14. The proposed rule in-
creases the likelihood that foster children, regardless of sexual orientation or gen-
der identity, will be placed in congregate settings that will not support them as
much as a family setting provided by a family of faith.

The proposed rule also will harm children by increasing the likelihood that
they must make multiple moves during their time in foster care, which can in-
crease trauma already suffered by foster care children. See, e.g., Savini et al.,
Illinois foster children are being moved repeatedly from one place to another,
and traumatized, supra. Foster parents recruited through churches or religious
organizations foster children for an average of 2.6 years longer than the average
foster parent, thus reducing the number of times a foster child must move. Cox,
Recruitment and Foster Family Service, supra, at 168 Table 6. Yet by limiting
placement options for LGBTQI+ children and forcing religious organizations and
families from the foster care system, the proposed rule will not only harm the
very children the rule is purportedly designed to protect, but other children as
well.

Finally, the proposed rule will endanger children through its provisions re-
lating to transgender foster children. According to the proposed rule, “[w]hen
considering placing a transgender, gender non-conforming or intersex child in sex
segregated child-care institutions, the title IV-E/IV-B agency must place the child
consistent with their gender identity.” 88 Fed. Reg. at 66768. This requirement
would mean that a biologically male foster child could be placed in a child-care
facility exclusively for girls and that a biologically female foster child could be
placed in a child-care facility exclusively for boys. Either scenario would need-
lessly create potentially dangerous situations for children.

The proposed rule is arbitrary and capricious because of its impact on foster
children. HHS should reject the proposed rule.

8
V. The proposed rule will harm States.

The proposed rule is also arbitrary and capricious because of its impact on
States.

State foster care systems already are stretched to capacity. In North Caro-
lina, foster children are sleeping in jails, social services offices, and emergency
rooms because there are not enough foster homes to accommodate them. Daniel
Pierce, Foster children sleeping in jails, emergency rooms, and DSS offices amid
a foster family shortage, Q U E EN C I TY N EW S (Mar. 1, 2023), available at
https://perma.cc/XA8R-JCS4. In Missouri, 52 children were housed in medical
facilities and 258 were housed in mental health facilities. Rudi Keller, ‘Truly a
crisis’: Missouri hospitals house children in foster care with no place to go, M IS -
SOURI I N D EP EN DE N T (June 20, 2023), available at
https://www.qcnews.com/news/u-s/north-carolina/foster-children-sleeping-in-
jails-emergency-rooms-and-dss-offices-amid-a-foster-family-shortage/. Five
healthy foster children lived in a Missouri hospital for an average of 56 days. Id.

Reducing the number of individuals and organizations of faith in the foster

care system will only exacerbate these problems. As Illinois learned, cutting ties
with faith-based organizations led to the largest drop in the country in foster
homes. See The Foster Care Housing Crisis, supra, at 8, 14. The proposed rule
will harm state foster care systems by reducing foster care providers and thus
harm those children who end up living out of jails and hospitals.

Despite the already existing shortage of foster care providers, the proposed
rule recognizes that States will need to recruit new, non-religious providers just
to comply with the rule: “In order to comply with the requirements in this pro-
posed rule, we anticipate that a majority of states would need to expand their
efforts to recruit and identify providers and foster families that the state or tribe
could designate as safe and appropriate placements for a LGBTQI+ child to ensure
that the totality of their child welfare system includes enough safe and appropriate
placements to meet the needs of LGBTQI+ children in care.” 88 Fed. Reg. at
66763.

The proposed rule underestimates the recruitment costs to States at $13.2

million. Id. at 66766. HHS apparently believes that recruitment dollars will be
just as effective recruiting non-religious foster care providers as they have been
recruiting current providers, which include many religious providers. But given
the significant number of individuals and organizations of faith currently support-
ing the foster care system, and the proactive work that organizations of faith do
in independently recruiting foster homes, HHS’s estimate is unrealistic. The cost
will almost certainly be much higher to recruit non-religious foster care providers.

HHS’s recruitment cost estimate is also an underestimate because it does

not include the costs to replace the individuals and organizations of faith that will
leave the foster care system as a result of the proposed rule. Again, Illinois lost
more than 1,500 foster homes after the State cut ties with religious organizations.
The Foster Care Housing Crisis, supra, at 8, 14. Replacing foster homes will be

9
costly to States, and with a smaller, less receptive pool of prospective foster
homes to draw from, it will cost more to recruit after the proposed rule than it
does now. Regardless of any costs that the federal government ultimately shares,
88 Fed. Reg. at 66763, recruitment costs will impose burdens on States.

HHS could have known about these serious concerns before it proposed the
rule had it consulted with the States in advance. Executive Order 13132, signed
by President Clinton, “requires Federal agencies to consult with state and local
government officials if they develop regulatory policies with federalism implica-
tions.” Id. at 66764. In fact, Executive Order 13132 provides that “[t]o the extent
practicable and permitted by law, no agency shall promulgate any regulation that
has federalism implications and that preempts State law, unless the agency, prio r
to the formal promulgation of the regulation (1) consulted with State and local
officials early in the process of developing the proposal regulation.” E.O. 13132
§ 6(c). HHS admitted that the proposed rule “may have federalism implications
due to the substantial direct financial impact on state or local governments.” 88
Fed. Reg. at 66764. Despite this, “ACF has not consulted directly with state or
local governments prior to issuing this NPRM.” Id. Thus, HHS has admitted to
not following Executive Order 13132.

The proposed rule is arbitrary and capricious because of its impact on States
and HHS’s failure to follow Executive Order 13132. HHS should reject the pro-
posed rule.

VI. The proposed rule fails to solve a problem that it does not prove exists in foster care.

Last, the proposed rule is arbitrary and capricious because it does not solve
a problem that it does not demonstrate exists in foster care.

The proposed rule claims that LGBTQI+ children are overrepresented in

foster care. 88 Fed. Reg. at 66753. To make this claim, HHS relies on a single
study of a single county in Maryland. Id. at 66753 n.1. This study surveyed just
251 children—less than 30% of the foster children in the county—to reach its
conclusions, which HHS now extrapolates to every county in the United States.
The Cuyahoga Youth Count: A Report on LGBTQ+ Youth Experience in Foster
Care, University of Maryland School of Social Work (2021), 5, available at
https://perma.cc/CES7-LQ8W. The only other study cited by HHS, from Los An-
geles County, put the LGBTQI+ rate at 19%, yet HHS still estimated the percent-
age at 30%. 88 Fed. Reg. at 66766. Thus, HHS has used the responses of 81 chil-
dren in one Maryland county to make judgments about the 391,000 children in
foster care. This is arbitrary and capricious.

The proposed rule also presents no evidence of mistreatment or harm to

LGBTQI+ children in foster care. For example, the proposed rule states, “A 2020
survey found that LGBTQI+ youth in foster care were 2.6 times more likely to
report a past year suicide attempt than LGBTQI+ youth who were not in foster
care, with 35 percent of LGBTQI+ foster youth reporting such an attempt.” Id. at
66754. But the cited survey by an advocacy organization asked if LGBTQI+ youth
had “ever been in foster care (even if only for a short period of time),” which

10
means that the survey’s positive results would include a 17-year-old who was in
foster care for a month as a newborn and had a suicide attempt at age 16. See The
Trevor Project Research Brief: LGBTQ Youth with a History of Foster Care, T H E
T R E VO R P R O J EC T (May 2021), 3 (emphasis added), available at
https://perma.cc/P3L2-2X9T. In addition, all children in foster care have an in-
creased risk of suicidality because of the often traumatic reasons that they have
been taken into care. See Groups with Increased Risk, Y OU TH .G O V , at
https://youth.gov/youth-topics/youth-suicide-prevention/increased-risk-groups
(“children in foster care were almost four times more likely to have considered
suicide and almost four times more likely to have attempted suicide than those
who had never been in foster care”). If HHS’s primary concern is reducing the
risk of suicide, further efforts could be made to educate foster parents about how
to deal with suicidality rather than mandate sexual orientation and gender identity
speech and training that will drive away providers of faith. This is arbitrary and
capricious.

Nor is there any evidence of mistreatment since ACF issued guidance in

March 2022. According to the proposed rule, “ACF has already provided extensive
resources and sub-regulatory guidance to agencies about improving the health and
wellbeing of LGBTQI+ children in foster care, but those resources alone have not
been sufficient to ensure that LGBTQI+ youth are protected from mistreatment in
foster care.” 88 Fed. Reg. at 66763. The proposed rule provides no evidence that
its guidance has not been followed or has failed to be effective. In fact, the pro-
posed rule does not cite a single study, journal article, or news article post-dating
its March 2022 guidance. This is arbitrary and capricious.

* * *

The proposed rule infringes on the freedom of religion and the freedom of
speech, fundamental rights preserved by the First Amendment. The Supreme Court
has repeatedly rejected attempts by the government to exclude foster care provid-
ers based on religious beliefs or to mandate speech on private actors. The pro-
posed rule also will harm children, harm families, and harm States, all to advance
an ideology. HHS should reject the proposed rule.

Respectfully submitted,

Steve Marshall Treg Taylor

Attorney General of Alabama Attorney General of Alaska

Tim Griffin Chris Carr

Attorney General of Arkansas Attorney General of Georgia

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Raúl R. Labrador Todd Rokita
Attorney General of Idaho Attorney General of Indiana

Brenna Bird
Attorney General of Iowa Daniel Cameron
Attorney General of Kentucky

Jeff Landry Lynn Fitch

Attorney General of Louisiana Attorney General of Mississippi

Andrew Bailey Austin Knudsen

Attorney General of Missouri Attorney General of Montana

Mike Hilgers
Dave Yost
Attorney General of Nebraska
Attorney General of Ohio

Alan Wilson Jonathan Skrmetti

Attorney General of South Attorney General and Reporter of
Carolina Tennessee

Ken Paxton Jason Miyares

Attorney General of Texas Attorney General of Virginia

Patrick Morrisey
Attorney General of West Virginia

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