HHS Finalizes Rulemaking Targeting Vulnerable LGBTQ populations during COVID-19 Pandemic

WASHINGTON, D.C. —  Today the Department of Health and Human Services (HHS) issued a final rule removing data elements on the sexual orientation of foster youth and foster and adoptive parents and guardians in its Adoption and Foster Care Analysis and Reporting System (AFCARS) as required by a 2016 rule.

HHS finalized this discriminatory rule at a time when the COVID-19 pandemic is placing great stress on an already overburdened child welfare system, when new studies show that LGBTQ people’s economic well-being is disproportionately impacted by the current pandemic and that underlying health conditions make LGBTQ people more vulnerable to the COVID-19 virus.

The rule was also issued in the same week that HHS announced final rulemaking on Section 1557 of the Affordable Care Act, gravely undermining health care anti-discrimination protections for LGBTQ patients, women, patients with limited English proficiency, patients with disabilities, and others.

“It is outrageous that during National Foster Care Month, HHS is abdicating its statutory responsibilities to promote the safety and well-being of LGBTQ foster youth,” said Julie Kruse, director of federal policy at Family Equality. “States, tribes, and agencies cannot improve care and outcomes for these youth if they do not have data to measure their efforts. This is especially painful at a time when many young people who aged out of foster care without a family, including many LGBTQ youth, are losing student housing and employment due to the COVID-19 crisis.”

“The rule announced by HHS today is an unnecessary step backwards that will harm vulnerable children. How can we make the right decisions about youth in foster care and those waiting to be adopted if we don’t have a robust and complete AFCARS data system?” asked Schylar Baber, foster alumni and Executive Director of Voice for Adoption. “Our foster care system is in crisis mode. We’ve waited 25 years for the AFCARS system to be upgraded. I am not sure we have much more time to wait, because our children are paying the price.”

“Every child deserves a safe and loving home, but unfortunately LGBTQ children and parents face significant discrimination in the foster care and adoption system,” said LGBT Equality Caucus Co-Chair Rep. Angie Craig (MN-02) who has four sons with her wife Cheryl. “As a mother, and as someone who faced adoption discrimination for being a part of the LGBTQ community two decades ago, I strongly denounce Secretary Azar’s rule change, and ask him to stand with children across the country who are seeking safe, supportive homes free from discrimination.”

“Our goal should always be to find loving and supportive homes for kids in need,” said Rep. Sean Patrick Maloney, the first and only out Member of Congress from New York and a father of three. “This rule change is completely unacceptable. It will harm the safety and wellbeing of innocent children who are in our foster care system, and open the door to discrimination against parents who are ready, willing and able to provide a supportive home.”

“Unfortunately due to the current administration, any attempts at nationwide data collection related to sexual orientation,  gender identity and expression and how that relates to safety, stability, well-being and permanency needs for youth in child welfare has come to a standstill.”  said Dr. Micki Washburn, assistant professor at the University of Texas at Arlington School of Social Work.  “That is why it is imperative that we collect this data through AFCARS, as otherwise we will not be able to get a clear picture of the needs and outcomes of these vulnerable youth.”   

Denise Brogan-Kator, Family Equality’s chief policy officer, stated:  “It is absolutely unconscionable that HHS is issuing rules assaulting some of the most vulnerable members of the LGBTQ community during a national pandemic, including foster youth and families and transgender people seeking health care.  The announced finalization of the rule removing health care nondiscrimination protections for LGBTQ people from the Affordable Care Act implementing regulations sends a dangerous and false message to health care providers that they can turn away LGBTQ patients. Nearly 30% of transgender adults report that they have been refused service by a health care provider due to their actual or perceived gender identity, and more than one in four transgender people have postponed medical care due to discrimination and disrespect. This rule could worsen these abysmal health care statistics, at a time when delaying or not seeking care can be a matter of life or death for those with severe cases of COVID-19.”

Research shows that nearly 30% of youth living in foster care are LGBTQ and report twice the rate of poor treatment in foster care as non-LGBTQ youth.  LGBTQ youth in foster care also suffer worse outcomes than their non-LGBTQ peers including multiple placements, longer stays in residential care, and greater rates of hospitalization for emotional reasons, homelessness, and criminal justice involvement.Earlier this week, Family Equality met with HHS and Office of Management and Budget staff urging them not to finalize the AFCARS rule in light of the COVID-19 pandemic and research and surveys indicating that LGBTQ children are significantly more likely to be physically abused by their parents, that family rejection is a major cause for their entry into the foster care system, and that child abuse is increasing during current school closures and stay at home orders. Family Equality also stressed that collecting data on LGBTQ parents, who are seven times more likely to foster and adopt than their non-LGBTQ counterparts, will help agencies with recruitment of more foster parents as the need surges, and provide a pool of affirming parents for LGBTQ children awaiting placements.

About Family Equality

Family Equality advances legal and lived equality for LGBTQ+ families, and for those who wish to form them, through building community, changing hearts and minds, and driving policy change. Family Equality believes every LGBTQ+ person should have the right and opportunity to form and sustain a loving family, regardless of who they are or where they live. Learn more at familyequality.org.

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Media Contact

Ed Harris / Chief Communications Officer
646.880.3005 x117

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