Dec. 16 Federal Update: Join Our Grassroots Advocacy Network

Social Current’s grassroots advocacy network offers an opportunity to work collaboratively with other human service organizations to create positive social change. The grassroots advocacy network is a rapid response team that will take collective action to drive timely, impactful solutions. Participants will receive opportunities to grow your advocacy skills, connect with like-minded advocates, and amplify their organizations’ work. 

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• Receive action alerts to engage in legislative advocacy 
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Congressional Budget Office Discusses Extending Premium Tax Credits for Individuals Without Insurance

The Congressional Budget Office recently wrote a letter to Congress about the effects of extending the expanded premium tax credit structure provided in the American Rescue Plan Act of 2021 (ARPA). 

The expanded credits lowered the amount individuals needed to pay for insurance, including for those with incomes above 400% of the federal poverty level. They significantly increased access to health care; however, the provisions will expire at the end of the 2025 calendar year. 

Congressional Budget Office (CBO) Director Phillip Swagel warned of the significant harm associated with failing to extend the credits. CBO estimates that it would leave a staggering number of individuals unable to afford insurance: 

• 2.2 million individuals in 2026 
• 3.7 million individuals in 2027 
• 3.8 million each year from 2026 to 2034 

The CBO also predicts that ending the credits could lead to healthier individuals, without the incentive, to leave the marketplaces. This would lead to higher premiums for the remaining enrollees. Premiums could rise by 4.3% in 2026, by 7.7% in 2027, and by about 7.9% annually through 2034. 

New Rule Requires State Title IV-E Agencies to Collect and Report ICWA Data

The Administration for Children and Families (ACF) has released a final rule amending the AFCARS regulations, mandating that state Title IV-E agencies collect and report key data elements related to the procedural requirements of the Indian Child Welfare Act (ICWA) of 1978. This rule aims to enhance transparency and accountability in child welfare practices affecting Native American children and families.

State Title IV-E agencies will now be required to gather and report the following information:

• Inquiry into ICWA Status: Whether the state asked certain individuals if the child qualifies as an Indian child under ICWA and when the agency first identified the child as potentially meeting this definition.
• ICWA Notice: Whether the child’s parent or Indian custodian was notified as required under ICWA.
• Court Determination of ICWA Applicability: Whether and when a court ruled that ICWA applies to the child’s case.
• Tribal Court Transfer Requests: Information on requests to transfer cases to Tribal court, including whether such requests were denied and the reasons for denial.
• Parental Rights Termination and Child Removals: Data on voluntary and involuntary terminations of parental rights and removals under ICWA.
• ICWA Placement Preferences: Information on whether the agency met the placement preferences specified by ICWA.
• Efforts to Prevent Family Separation: Whether the state Title IV-E agency made active efforts to prevent the separation of the Indian family.

State Title IV-E agencies will have three federal fiscal years to comply with the new requirements while continuing to report data already mandated by current regulations.

This updated rule highlights the importance of ICWA in protecting the welfare and cultural heritage of Native American children and families, ensuring that child welfare practices align with federal requirements.

Updates from the Judiciary

Supreme Court Considers Constitutionality of Ban on Gender-affirming Medical Treatments for Transgender Adolescents
The U.S. Supreme Court heard oral arguments in early December to determine the constitutionality of a Tennessee law banning puberty blockers, hormone therapy, and surgery for those under the age of 18. The law also criminalizes doctors and providers who seek to support transgender youth seeking gender-affirming affirming care. This ruling is expected to significantly shape transgender youth’s access to gender-affirming care, as 26 states have enacted similar laws or policies.

The Biden administration and three transgender youths and their families challenged the Tennessee law, contending it violates the Constitution’s equal protection clause. They highlighted the discrepancy in prohibiting the use of treatments for gender dysphoria, while retaining their legal use for other purposes, including congenital disorders or physical injuries.
However, Tennessee Solicitor General J. Matthew Rice argued that certain gender-affirming treatments may pose health risks and that gender exploration is sometimes temporary.

Conservative justices appeared to favor Tennessee’s position, with Chief Justice John Roberts asserting that the medical decisions should be determined by the people’s elected representatives, such as state legislatures rather than the judiciary. In contrast, liberal justices expressed concern over granting state legislatures significant authority to regulate medical decisions.

The Supreme Court is not expected to release its decision for several months, although its verdict will likely have significant implications for gender-affirming care for minors, as nearly 40% of transgender youth ages 13 to 17 currently live in states with restrictions.

Idaho Law Restricting Minors’ Ability to Access Out-of-State Abortions Partially Upheld
A federal appeals court will allow an Idaho law that will impose criminal penalties on those who help a minor obtain an out-of-state abortion without parental consent. Often referred to as an abortion trafficking ban, the first-of-its-kind law is intended to prevent minors from seeking abortions in neighboring states where the procedure is legal.
Idaho only allows abortions in medical emergencies and cases of rape or incest that are reported to police. While this is one of the strictest abortion bans in the country, neighboring states, Oregon, Washington, and Montana, have significantly fewer restrictions.

Adults who help a minor access a medical or surgical abortion by “recruiting, harboring, or transporting” them without parent or guardian’s permission are subject to a felony charge, punishable by two to five years in prison. The appellate panel permitted Idaho to enforce the law’s criminalization of “harboring or transporting” a minor, but the court maintained the state cannot prosecute individuals who simply provide information about where to obtain an abortion, or who provide other types of financial or logistical assistance to receive an abortion in a state that has legalized abortions.

The federal appeals court determined encouragement, counseling, and emotional support; education about available medical services and reproductive health care; and public advocacy promoting abortion care and abortion access were protected speech. Advocates agree and maintain it is a critical protection to ensure minors receive accurate information in Idaho, a state with severely restricted access to abortions.

Court Decision Raises the Bar for 501(c)(4) Nonprofits but Advocacy Remains Strong
A recent Fifth Circuit Court of Appeals ruling has introduced stricter standards for 501(c)(4) organizations seeking tax-exempt status. In the case, Memorial Hermann Accountable Care Organization v. Commissioner, the court applied a “substantial nonexempt purpose test,” which disqualifies organizations if any significant nonexempt activities exist. This replaces the more lenient “primary purpose test” previously used by the IRS.

This decision, which was influenced by the Supreme Court’s Loper Bright Enterprises v. Raimondo ruling, underscores the increasing need for nonprofits to demonstrate that their activities benefit the public good. However, this does not signal a need for organizations to scale back lobbying or advocacy efforts. Under the Internal Revenue Code, 501(c)(4) organizations can engage in unlimited lobbying and advocacy if political campaign activity remains a secondary purpose, far below 50% of total spending.

While the ruling directly impacts 501(c)(4) nonprofits, it has broader implications for 501(c)(3) organizations. Increased scrutiny of tax-exempt organizations may lead to more rigorous oversight of 501(c)(3) activities, especially those related to related to advocacy and lobbying. Although 501(c)(3) organizations face stricter lobbying limits than 501(c)(4)s, they must carefully document their compliance with IRS regulations to ensure their advocacy activities are within permissible bounds. This includes tracking expenditures and maintaining clear distinctions between advocacy and political campaign activities.

Although the ruling raises concerns about compliance, it’s important to avoid undue fear. Advocacy and lobbying remain essential for 501(c)(4) organizations to influence policy and serve their missions. To mitigate risks, organizations can take proactive steps, such as ensuring diverse funding sources, including outside representation on governing boards, and thoroughly vetting activities to emphasize their social welfare impact. By focusing on transparency and aligning programs with their public mission, nonprofits can confidently continue their vital work while adhering to evolving regulatory standards.

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