Faith-Based Foster Care Programs Granted Exception to Religious Nondiscrimination Regulation

The Office of Civil Rights (“OCR”) in the U.S. Department of Health and Human
Services (“HHS”) has concluded that faith-based foster care programs in South Carolina are
entitled under the federal Religious Freedom Restoration Act (“RFRA”) to an exception from the
religious nondiscrimination requirements of an HHS regulation.

The issue arose when South Carolina’s governor, Henry McMaster, asked the HHS’s
acting assistant secretary for children and families, “on behalf of South Carolina and faith-based
organizations” operating under South Carolina’s Title IV-E Foster Care Program, for an
exception from the HHS regulation at 45 CFR § 75.300(c) that prohibits subgrantees from
selecting among prospective foster parents on the basis of religion. Governor McMaster sought
the exception for foster care programs to the extent that the prohibition in the regulation
conflicted with their religious exercise.

One such faith-based organization, Miracle Hill Ministries, exclusively recruits foster
parents of a particular religion and accounts for up to 15 percent of South Carolina’s total foster
care placements.

The governor indicated to the HHS’s acting assistant secretary that he believed that other
participating faith-based organizations had similar religious exercise concerns.
According to the governor’s request, South Carolina has more than 4,000 children in
foster care, South Carolina needs more child placing agencies, and faith-based organizations “are
essential” to recruiting more families for child placement.

The governor asserted that without the participation of faith-based foster care
organizations, South Carolina would have difficulty continuing to place all children in need of
foster care. Moreover, the governor contended, if South Carolina’s foster care program was not
provided an exception from the regulation, certain faith-based organizations operating under
South Carolina grants would have to abandon their religious beliefs or forego licensure and
funding. The governor said that this would cause hardship to faith-based organizations and to the
state’s foster care program.

Governor McMaster asserted that certain requirements in 45 CFR § 75.300(c) exceeded
any nondiscrimination requirements or authority imposed by federal law, and that these
requirements limited the free exercise of religion of faith-based organizations in violation of

The Regulation
The federal regulation at 45 CFR § 75.300(c) provides:

(c) It is a public policy requirement of HHS that noperson otherwise eligible will be excluded from
participation in, denied the benefits of, or subjected to discrimination in the administration of HHS programs and services based on non-merit factors such as age, disability, sex, race, color, national origin, religion, gender identity, or sexual orientation. Recipients must comply with this public policy requirement in the administration of programs supported by HHS awards.

The OCR’s Decision
The OCR concluded that requirements in 45 CFR § 75.300(c) were “broader than the
nondiscrimination requirements” specified in the federal Foster Care Program law, which applies
to federal grants to states, including South Carolina, which states then distribute to subgrantees
such as Miracle Hill Ministries.

In particular, the OCR determined that subjecting Miracle Hill to the religious
nondiscrimination requirement in 45 CFR § 75.300(c) (by requiring South Carolina to require
Miracle Hill to comply with 45 CFR § 75.300(c) as a condition of receiving funding) were
“inconsistent with RFRA.”

The OCR found that Miracle Hill’s sincere religious exercise “would be substantially
burdened” by application of the religious nondiscrimination requirement of 45 CFR §
75.300(c) and that subjecting Miracle Hill to that requirement, by denying South Carolina’s
exception request, was not the least restrictive means of advancing a compelling government
interest on the part of HHS.

The OCR reasoned that the interest of allowing potential foster parents into South
Carolina’s foster care program “appear[ed] capable of being served by other providers in the
program” if Miracle Hill were unable to partner with certain potential foster parents because
of Miracle Hill’s religious beliefs.

Accordingly, the OCR concluded that Miracle Hill (and any other similarly situated
religious organization in South Carolina’s foster care program) was entitled under RFRA to
an exception from the religious nondiscrimination requirements of 45 CFR § 75.300.
The HHS’s assistant secretary for children and families, therefore, conditionally granted
the requested exception from the religious non-discrimination requirement of 45 CFR §
75.300(c) with respect to Miracle Hill and any other subgrantee in South Carolina’s foster care
program using similar religious criteria in selecting among prospective foster care parents.

The HHS said that the exception applied on the condition that Miracle Hill, or any other
subgrantee making use of the exception, would be required to refer potential foster parents that
do not adhere to its religious beliefs to other subgrantees in South Carolina’s foster care program,
or to refer them to program staff if program staff were equipped to refer those persons to other
willing subgrantees. The HHS concluded that this condition was added on the understanding that
Miracle Hill, and any other subgrantee making use of this exception, does not object on religious
grounds to making such referrals.

* * *

Faith-based foster care programs in other states that find the HHS’s response to Governor
McMaster of interest should contact counsel to discuss whether, and how, it might apply to them.

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