Amendments to part B of title IV of the Social Security Act

(a) Stephanie Tubbs Jones Child Welfare Services Program State plan requirements Section 422(b) of the Social Security Act (42 U.S.C. 622(b)) is amended— (1) in paragraph (15)(A)— (A) in clause (vii), by striking and after the semicolon; and (B) by inserting after clause (viii) the following new clause: (ix) the procedures and protocols the State has established to ensure that sex-rejecting interventions are not initiated or continued when a child is removed from the custody, care, or control of the parent or placed in foster care; and; (2) in paragraph (18), by striking and after the semicolon; (3) in paragraph (19)(B), by striking the period at the end and inserting a semicolon; and (4) by inserting after paragraph (19)(B) the following new paragraphs: (20) provide that no placement of a child for adoption or into foster care is prevented, denied, or delayed because the foster parent, prospective foster parent, or prospective adoptive parent may affirm a child’s sex; (21) provide that children who are 4 years of age or older in foster care placement are housed in accordance with their sex, including— (A) requirements that a foster family home provide either single occupancy or sex-separated multi-occupancy sleeping quarters (other than sleeping quarters shared only with a sibling), bathrooms, showers, locker rooms, changing rooms, or any other areas in which a child would be in a state of undress when in use by the child; (B) requirements that a child-care institution (including any group home, residential treatment center, shelter, qualified residential treatment program, settings for pregnant or parenting foster youth described in section 472(k)(2)(B), setting for sex trafficking victims described in section 472(k)(2)(D) or other congregate care setting) assign a child to and provide either single occupancy or sex-separated multi-occupancy sleeping quarters (other than sleeping quarters shared only with a sibling), bathrooms, showers, locker rooms, changing rooms, or any other areas in which a child would be in a state of undress, when in use by the child; and (C) requirements that licensing standards for foster family homes, child-care institutions, or other placement settings, include compliance with this paragraph as a condition of licensure for any foster family home, child-care institution, or other placement setting receiving funds under this part or part E; (22) provide and have in effect policies and procedures, and require any covered entity to have in effect policies and procedures that— (A) protect and promote a child's right to be free from sex-rejecting interventions; and (B) protect, without express parental consent, a child from the use of pronouns or titles that do not correspond to the child’s sex; (23) provide for training for child protective services workers, caseworkers, guardians ad litem, minor’s counsel, court appointed special advocates, judges, other individuals providing services to children and families, foster parents, prospective foster parents, prospective adoptive parents, and parents that includes— (A) the medical, psychological, and developmental harms of sex-rejecting interventions and the harms of using pronouns or titles that do not correspond to the child’s sex; (B) the right of a parent or legal guardian to affirm a child's sex and of a parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent to be free from discrimination or adverse State action for affirming or intending to affirm a child's sex; (C) the principle that affirmation of a child's sex by a parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent is not child abuse, emotional abuse, neglect, maltreatment, abandonment, contrary to the child’s best interests, contrary to a child’s health, safety, or welfare, or indication of parental unfitness or incapacity; (D) the principle that affirmation of a child’s sex is consistent with the child’s best interests, health, safety, and welfare; (E) the prohibition under this part and part E on— (i) providing, initiating, or continuing sex-rejecting interventions to children in foster care placements; and (ii) without parental consent, the use of pronouns or titles that do not correspond to the child’s sex; and (F) the prohibition under this part and part E on denying and delaying the placement of a child in a foster or adoptive home placement because a foster parent, prospective foster parent or prospective adoptive parent may affirm the child's sex; (24) provide that the State shall have in effect policies and procedures, and require any covered entity to have in effect policies and procedures that protect and promote the right of a parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent to be free from discrimination for affirming or intending to affirm a child’s sex and from any adverse State action; (25) provide that the State shall have in effect policies and procedures, and shall require any covered entity to have in effect policies and procedures, that no child, foster parent, prospective foster parent, or prospective adoptive parent may be denied a foster care or adoptive placement because the foster parent, prospective foster parent, or prospective adoptive parent may affirm a child’s sex; and (26) provide that the State shall have in effect policies and procedures that protect and promote the right of children in foster care placements to be free from sex-rejecting interventions and require any covered entity to have in effect policies and procedures that include— (A) requirements ensuring that no child in foster care under the supervision of the State is subjected to sex-rejecting interventions; (B) requirements that no funds under this part or part E shall be used to provide, facilitate, refer, or permit sex-rejecting interventions for any child placed in the covered entity's care; (C) requirements that no foster family home, child-care institution, or other placement setting receiving funds under this part or part E shall provide, facilitate, fund, permit, aid or refer for sex-rejecting interventions for any child placed in the foster family home, child-care institution, or other placement setting; (D) training for child protective service workers, foster care caseworkers, supervisors, foster parents, guardians ad litem, court-appointed special advocates, minor's counsel, judges, and other individuals providing services to children and families, prospective foster parents, prospective adoptive parents, and parents on— (i) the medical, psychological, and developmental harms of sex-rejecting interventions and the harms of using pronouns or titles that do not correspond to the child’s sex; (ii) the right of a parent or legal guardian to affirm a child's sex and of a parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent to be free from discrimination or adverse State action for affirming or intending to affirm a child's sex; (iii) the principle that affirmation of a child's sex by a parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent is not child abuse, emotional abuse, neglect, maltreatment, abandonment, contrary to the child's best interests, contrary to the child's health, safety, or welfare, or indication of parental unfitness or incapacity; (iv) the principle that affirmation of a child’s sex is consistent with the child’s best interests, and the child's health, safety, and welfare; (v) the prohibition on providing sex-rejecting interventions to children in foster care placements; (vi) the prohibition on the use of pronouns or titles that do not correspond to the child’s sex without the parent’s express consent; and (vii) the prohibition on denying, delaying or conditioning the placement of a child in a foster or adoptive home placement because a foster parent, prospective foster parent, or prospective adoptive parent may affirm the child's sex; and (E) procedures to prevent sex marker changes (meaning the designation of the child’s sex on any official record, including records maintained under this part or part E) to the child’s records that differ from the child’s sex while the child is in foster care.. (b) Marylee Allen Promoting Safe and Stable Families Program State plan requirements Section 432(a) of the Social Security Act (42 U.S.C. 629b(a)) is amended— (1) in paragraph (10), by striking and after the semicolon; (2) in paragraph (11), by striking the period at the end and inserting; and; and (3) by inserting after paragraph (11), the following new paragraph: (12) complies with the requirements of paragraphs (20) through (26) of section 422(b), as applicable to the services funded under this subpart.. (c) Common provisions Subpart 3 of part B of title IV of the Social Security Act (42 U.S.C. 629k et seq.) is amended by adding at the end the following new sections: 444. Limitations on the Secretary; obligations on recipients and subrecipients; noncompliance (a) Limitations on the Secretary The Secretary shall ensure that no funds provided under this part, including any grants, subgrants and other allocations of funding made pursuant to this part to States, Indian tribes, or tribal organizations, and public and private agencies and organizations, including subrecipients, are used to fund any of the following: (1) Conducting, supporting, or promoting any program, project, curriculum, guidance, protocol or training that— (A) sex-rejecting interventions are in the best interests of the child or consistent with the health, safety, and welfare of the child; (B) affirmation of a child’s sex by a parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent is child abuse, emotional abuse, neglect, maltreatment, abandonment, contrary to the child’s best interests, contrary to the child’s health, safety or welfare, or indication of parental unfitness or incapacity; or (C) a child’s expression of psychological distress, including a statement or report of suicidal ideation, related to the affirmation of a child’s sex is grounds for removal of the child from the home, intervention by a welfare agency, or any other adverse State action. (2) Discriminating against, or taking an adverse State action against, a parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent because such individual affirms, has affirmed, or intends to affirm a child's sex. (3) Conducting, supporting, or promoting any adverse State action. (4) Providing, facilitating, funding, authorizing, permitting for a child, or referring a child for any sex-rejecting intervention. (5) Removing a child from a parent, legal guardian, or caregiver and placing the child in a foster family home, child-care institution, or other placement setting that— (A) provides, permits, or encourages the child to undergo any sex-rejecting intervention; or (B) without parental consent, uses pronouns or titles that do not correspond to the child’s sex. (6) Placing a child in a foster care placement that fails to provide either single occupancy or sex-separated multi-occupancy spaces in compliance with section 422(b)(21). (b) Obligations on recipients and subrecipients Any State, Indian tribe or tribal organization, or public and private agency or organization, including any subrecipient that receives funds under this part, shall not use such funds for any program, training, or other activity that violates any of the limitations set forth in subsection (a). (c) Withholding and recoupment for noncompliance (1) In general If the Secretary determines that any State, Indian tribe, tribal organization, or public or private agency or organization, including any subrecipient, has used funds in violation of the limitations or obligations set forth in subsection (a) or (b), paragraphs (20) through (26) of section 422(b), or section 432(a)(12), or in violation of any right, restriction, limitation, obligation, or condition established under section 479C as applicable to this part or part E, the Secretary shall disallow the costs associated with such violation and shall impose the applicable penalty amount determined under paragraph (2). Such withholding shall apply to any future payments or funding tranches not yet disbursed and shall remain in effect until the Secretary certifies that the violation has been remediated and that the direct recipient has adopted policies and procedures sufficient to prevent recurrence. Recovery shall apply to funds already disbursed, which shall constitute a debt to the Federal Government as of the date of the Secretary’s written determination of noncompliance, collectible in accordance with parts 200 and 300 of title 2, Code of Federal Regulations (or any successor regulation), including through administrative offset against any other Federal payments owed to the entity under this or any other Federal program administered by the Department of Health and Human Services. (2) Direct recipients (A) In general The direct recipient of funds provided under this part shall be strictly responsible for ensuring compliance with this part by all subrecipients to which it passes such funds, and any violation by a subrecipient shall be attributed to the direct recipient. The penalty amount subject to disallowance, withholding, and recovery under paragraph (1) shall be— (i) for the first finding of violation by the direct recipient within a grant period, 5 percent of the total funds provided to the direct recipient for that grant period; (ii) for the second finding of violation by the direct recipient within a grant period, 10 percent of the total funds provided to the direct recipient for that grant period; and (iii) for the third or any subsequent finding of violation by the direct recipient within a grant period, 15 percent of the total funds provided to the direct recipient under this part for that grant period. (B) Maximum penalty In no case shall the total penalty imposed against a single direct recipient for all findings within a single grant period exceed 15 percent of the total funds provided to that direct recipient for that grant period. (C) No waiver A penalty required by this subsection is mandatory and the Secretary shall not have any discretion to waive or reduce the penalty applicable except through the appeals process provided in paragraph (3). (3) Appeals Appeals from any determination of noncompliance or penalty amount under this subsection shall be governed by part 16 of title 45, Code of Federal Regulations (or any successor regulation). The filing of an appeal shall not stay the withholding of future payments or funding tranches pending resolution of the appeal, but any amounts recovered by the Secretary from already-disbursed funds shall not be collected pending final resolution of the appeal. (4) Regulations The Secretary shall issue such regulations as are necessary and appropriate to carry out this subsection, including regulations establishing procedures for written notice of noncompliance, opportunity to respond, and administrative review prior to any final determination under paragraph (1). (5) Other remedies Nothing in this subsection shall be construed to limit the authority of the Secretary to pursue any other remedy available under parts 200 and 300 of title 2, Code of Federal Regulations (or any successor regulation), or any other applicable Federal law with respect to violations of any other provision of this part, or to limit the Secretary’s authority to impose remedies in addition to the penalties prescribed in paragraph (2) for violations described in paragraph (1) where the Secretary determines that additional remedies are necessary to protect Federal funds. 445. Private right of action (a) Causes of action (1) In general Any parent, legal guardian, caregiver, foster parent, prospective foster parent, prospective adoptive parent, or child who is aggrieved by an adverse State action or, in the case of a parent, legal guardian, caregiver, foster parent, prospective foster parent, or prospective adoptive parent, a violation of a right protected under section 479C(b), that is alleged to have been taken by a covered entity may bring an action seeking relief from a covered entity in any United States district court regardless of whether the specific operation, division, facility, or program of the covered entity that engaged in such adverse State action was itself funded, in whole or in part, by an award or payment made under this part or part E. (2) Liability of a covered entity for conduct of others For purposes of paragraph (1), a covered entity described in subparagraph (A), (B), or (C) of section 475(19) waives any defense based on the absence of respondeat superior liability, and shall be vicariously liable under this section for any adverse State action or any violation of the right protected under section 479C(b) that is committed by any employee, contractor, or agent of such covered entity, without regard to whether such adverse State action or violation— (A) resulted from an official policy or custom of the covered entity; (B) was known to any supervisory official of the covered entity; or (C) was within the scope of such covered entity’s employment, contract, or agency. (3) Rebuttable presumption For purposes of any action brought under this section, there is a rebuttable presumption that an adverse State action or a violation of the right protected under section 479C(b) was because of the affirmation of a child’s sex if— (A) a case record, report, petition, recommendation, or other agency or court document includes the affirmation of the child’s sex as a basis for, contributing factor in, or concern related to the adverse State action; or (B) a recommendation, order, or agreement has been made that a child be removed from a parent, legal guardian, or caregiver and be placed in a foster family home, child-care institution, or other placement setting that— (i) provides, permits, or encourages the child to undergo any sex-rejecting intervention; or (ii) without parental consent, uses pronouns or titles that do not correspond to the child’s sex. (4) Rebuttal A covered entity bears the burden of rebutting the presumption described in paragraph (3) by clear and convincing evidence that the affirmation of the child’s sex was not a factor in the adverse State action or violation of the rights protected under section 479C(b). (b) Nonapplication of exhaustion of remedies Exhaustion of any State or administrative remedies shall not be required as a condition of bringing an action described in subsection (a). (c) Relief (1) In general As a condition of accepting funds under this part, each of the remedies described in paragraph (2) is available to a prevailing parent, legal guardian, caregiver, foster parent, prospective foster parent, prospective adoptive parent, or child in an action brought under this section. (2) Remedies The remedies described in this paragraph are— (A) declaratory relief; (B) preliminary and permanent injunctive relief, including an order enjoining, vacating, or prohibiting the enforcement of any adverse State action or any violation of the right protected under section 479C(b), notwithstanding section 2283 of title 28, United States Code, except where the covered entity demonstrates by clear and convincing evidence that such relief would create an imminent risk of serious physical harm to the child based on conduct independent of the adverse State action or violation; (C) compensatory damages; and (D) damages for emotional distress suffered by a parent, legal guardian, caregiver, foster parent, prospective foster parent, prospective adoptive parent, or child. (d) Costs and attorney’s fees In any action brought under this section, the court shall award the prevailing parent, legal guardian, caregiver, foster parent, prospective foster parent, prospective adoptive parent, or child, costs of litigation and attorney’s fees. (e) Abrogation of qualified immunity In any action brought under this section against an employee, contractor, or agent of a covered entity described in subparagraph (D) of section 475(19), qualified immunity shall not be available as a defense. To satisfy the requirement that the law be clearly established at the time of the violation, it is sufficient that the conduct constituted an adverse State action or violated the right protected under section 479C(b). The absence of an express policy, procedure, or protocol by a covered entity described in subparagraph (A), (B), or (C) of section 475(19) shall not preclude a finding that the law was clearly established or that the employee, contractor, or agent of a covered entity described in subparagraph (D) of section 475(19) knew or should have known that the conduct was unlawful. (f) Waiver of sovereign immunity (1) In general (A) State immunity A covered entity described in subparagraph (A) of section 475(19), as a condition of accepting funds under this part, shall waive immunity under the Eleventh Amendment to the Constitution of the United States from suit in Federal court for any adverse State action or any violation of the right protected under section 479C(b). (B) Tribal immunity A covered entity described in subparagraph (B) of section 475(19), as a condition of accepting funds under this part, shall waive immunity from suit in Federal court for any adverse State action or any violation of the right protected under section 479C(b). (2) Remedies available In any action against a State or Indian tribe or tribal organization for any adverse State action or any violation of the right protected under section 479C(b), remedies (including remedies both at law and in equity) are available in a suit against any public or private entity other than a State or Indian tribe, or tribal organization. (g) Statute of limitations (1) In general Except as provided in paragraph (3), an action under this section may not be commenced later than 4 years after the date on which the cause of action accrues. (2) Accrual For purposes of paragraph (1), a cause of action accrues on the date a parent, legal guardian, caregiver, foster parent, prospective foster parent, prospective adoptive parent, or child knew or reasonably should have known of the violation giving rise to the claim, or, in the case of an ongoing violation, on the date the violation ceases. (3) Tolling The limitations period under paragraph (1) shall be tolled— (A) with respect to a claim brought on behalf of a minor child, until the later of— (i) the date the child attains the age of 18; or (ii) the date that is 4 years after the date the violation occurred; and (B) during the pendency of any State or Indian child welfare proceeding arising from the same facts as the Federal claim, and for the 2-year period following the final resolution of such proceeding. (h) Relationship to other laws (1) Non-preemption Nothing in this section shall be construed to preempt any State law that provides greater protection than the rights established under this section. (2) Other applicable laws The rights established under this section are in addition to, and not in lieu of, any rights available under the Constitution of the United States, section 1979 of the Revised Statues (commonly referred to as section 1983) (42 U.S.C. 1983), the Yaeli Martinez Child Protection Act, or any other Federal or State law. (3) Jurisdiction Federal courts shall have original jurisdiction over any civil action brought under this section. No action shall be dismissed, stayed or otherwise abated on the basis of— (A) the pendency of a State court proceeding; (B) any State court judgment or order; (C) any doctrine of equitable restraint, abstention, or comity, including any doctrine under which a court declines to exercise jurisdiction because of the pendency or potential pendency of a State judicial or administrative proceeding; or (D) the domestic relations exception in Federal jurisdiction, if the action seeks enforcement of a right established under this section, and does not seek the issuance of an original divorce, alimony, or child custody decree in a domestic-relations proceeding between private parties..