CHARLESTON — The West Virginia Department of Health and Human Resources is attempting to prevent state lawmakers from allowing discrimination against LGBTQ foster children by child placement agencies.
In a statement, Allison Adler, spokeswoman for the state Department of Health and Human Resources, said that DHHR has a “commitment to protecting our LGBTQ foster children.”
During a meeting of the West Virginia Legislature’s rule-making review committee meeting last month, lawmakers were discussing an area of state law that lists requirements for agencies that place foster children.
While the Legislature passes laws, state agencies, such as DHHR, propose rules on how to implement or interpret those laws, which then must be approved by the Legislature.
DHHR had written an updated rule for child placement agency licensure, bringing it into compliance with a federal law, the Family First Prevention Services Act, and bringing it into compliance with a foster care law the Legislature passed last legislative session.
Currently, the rule states that child placement agencies must provide foster children and their biological families equal access to services, regardless of race, religion, ethnicity, gender, disability or sexual orientation.
One agency, the Family Focused Treatment Association, had submitted a public comment, suggesting that DHHR also add to the rule that agencies could not deny or delay a child’s placement with a foster family based on the child’s sexual orientation, and that adults couldn’t be denied the chance to become foster parents based on sexual orientation.
Lawmakers not only denied that request, but also removed existing protections for LGBTQ foster children.
Del. Geoff Foster, R-Putnam, chairman of the committee, proposed changing the rule to say that foster children and parents shall have equal access to services if they fall into classes already protected by state and federal law.
There are no protections for LGBTQ foster children or parents under state law. And in November, the Trump administration also proposed reversing an Obama-era rule protecting LGBTQ people from discrimination in programs funded by the federal Department of Health and Human Services, which would include foster care agencies.
The rule was then sent to the rest of the Legislature for final approval.
In an email, Allison Adler, spokeswoman for DHHR, said, “After discussing the proposed changes by the Legislative Rule-Making Committee internally and with representatives of our stakeholders, DHHR withdrew Rule 78-2 from the rule-making process.”
“We appreciate the concept of a general reference to anti-discriminatory language, as proposed by a majority of the committee,” she wrote. “We believe that DHHR’s commitment to protecting our LGBTQ foster children should be explicitly stated in the rule regulating child placing agencies.”
At the state Capitol Monday, DHHR Deputy Secretary Jeremiah Samples clarified further that the existing rule, which states that child placement agencies must provide foster children and their biological families equal access to services, regardless of race, religion, ethnicity, gender, disability or sexual orientation, will now stand.
He said that other parts of the child placement agency licensure rule that DHHR had attempted to update, which brought state law into compliance with a federal law, the Family First Prevention Services Act, and a foster care law the Legislature passed last legislative session, were integrated into other rules making their way through the Legislature.
Samples also clarified that there are still no provisions in policy protecting LGBTQ prospective foster parents from discrimination, but he said that in practice, child placement agencies in the state do not discriminate against those foster parents.
DHHR officials have said that West Virginia has the highest per capita rate of children in state custody in the country. They’ve said that West Virginia has about 7,000 kids in state custody, and that the number has increased by 67 percent since 2013. During that time, the number increased nationally by 11 percent, according to DHHR.
Two advocacy groups filed a lawsuit against the state in October, alleging that West Virginia doesn’t have adequate foster families and adoptive homes in which to place foster children.
The West Virginia Child Care Association, which includes child placement agencies, had come out against the rule change following the December vote.
“The suggested addition of ‘gender or sexual orientation’ to the rule was intended to ensure equal protections are occurring for all populations served within West Virginia’s child welfare system,” said Katrina Harmon, executive director of the association.
“While I am unaware of any instances of discrimination or denial of services currently by any licensed West Virginia provider, the change the committee made is concerning in that it could allow agencies to modify their internal policies and be more discretionary with the populations they serve. With record numbers of children in our child welfare system, this is disheartening.”
The organization, citing the LGBTQ rights group the Human Rights Campaign, had stated children who are LGBTQ are “much more likely to commit suicide and have increased chances of other health and mental health challenges such as lower self-esteem, substance abuse disorders, and are at a higher risk of human trafficking.
“Studies show many LGBTQ youth face abuse and neglect due to their family’s lack of acceptance, with more than 30 percent reporting physical violence at the hands of a family member after coming out. Those LGBTQ youth that have entered into out-of-home placements are more likely to have multiple placements and are less likely to achieve permanency.”
West Virginia lawmakers could still attempt to allow child placement agencies to discriminate in other ways, perhaps by attempting to pass a law instead of using the rule-making process. Tennessee’s Gov. Bill Lee signed a law Friday to let religious adoption agencies deny services to same-sex couples, according to the Tennessean.
“States are provided with federal funding to fulfill child welfare’s mandate to protect children and help them grow up in safe, nurturing environments. WV has an obligation to ensure tax dollars are only going to those agencies who are fulfilling that mandate,” Harmon said.
“Ultimately, the Child Placing Rule is designed to ensure providers are meeting those standards and prevent youth from experiencing further trauma, harassment, and abuse in a system that is meant to protect them. Our member agencies oppose the committee’s rule change to weaken anti-discrimination protections.”
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