HHS Final AFCARS Rule Impacts Data Collection for American Indian and Alaska Native Children

The Adoption and Foster Care Analysis and Reporting System (AFCARS) Final Rule from the Department of Health and Human Services (HHS) Children and Families Administration abandons data collection vital to effectively address the needs of American Indian and Alaska Native (AI/AN) children and families. AFCARS is the federal government’s largest source of data on children who are in out of home placement.

The data in AFCARS is critical for advocates, policymakers, and child welfare administrators to eliminate foster care disproportionality and service disparities impacting Native children. In 2016, an AFCARS Final Rule was published under the Obama Administration with over 60 new data elements for AI/AN children, families, and their caregivers responding to years of concern related to inadequate and unreliable data. The 2016 AFCARS Final Rule was the result of 24 years of advocacy. The 2016 data addressed Indian Child Welfare Act requirements for states with Native children in their care and other unique data elements specific to Native children and families. In 2017, the Trump Administration delayed implementation of the 2016 Final Rule and later proposed eliminating 85% of the AI/AN data elements in the 2016 Final Rule. In the recently published 2020 Final Rule, the current administration only kept ten out of over 60 data elements in the 2016 Final Rule. This new Final Rule will improve some aspects of data collection for Native children but falls woefully short of what is needed to adequately address disproportionality and service disparities.

Each of the data points are tied to existing federal law and regulation and are critical to monitor and support title IV-B and IV-E programs. The Final Rule is effective on July 13, 2020. The remaining AFCARS data elements specific to AI/AN children in state care are as follows:

• Inquiries made whether the child is an Indian child under ICWA,
• Whether ICWA applies for the child and the date that the state title IV-E agency was notified by the Indian tribe or state or tribal court that ICWA applies,
• Notification to the Indian tribe, and tribal membership of child, mother, father, foster parents, adoptive parents, and legal guardian

“The AFCARS data elements have the potential to change the nature of the way we collect data and utilize data to improve outcomes for Native children,” said NICWA Director of Government Affairs and Advocacy David Simmons. “Native children are overrepresented in state child welfare foster care systems, sometimes at rates as high as 12 times their population. Most of the proposed AFCARS data elements regarding Native children and families have been drastically reduced. The remaining will be helpful but will not begin to address the systemic problems that contribute to the racial disparities in foster care, especially during the current public health crisis.”

Research shows that when a judge is presented with two families—one Native, one non-Native—with the same set of circumstances, the Native children are three times more likely than other children (and four times more likely than white children) to be removed at the first encounter.

Tribal child and family advocates should become familiar with the new data elements and begin discussions with their state child welfare agency partners to plan for implementation of the new data elements. Some states have gone further and are implementing the full set of data elements in the 2016 Final Rule. We encourage advocates to work with their state to promote collection of the full set data elements from Native children and families that was contained in the 2016 Final Rule.

Read the AFCARS Final Rule on the Federal Register.