# Tribal Child Welfare

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URL: https://www.frixlaw.com/law-library/documents/fr%3A2011-32911

## Record

- **Collection:** Federal Register
- **Document type:** Rule
- **Published:** January 6, 2012
- **Citation:** 77 FR 896

## Text

DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Parts 1355 and 1356
RIN 0970-AC41
Tribal Child Welfare

AGENCY:

Administration on Children, Youth and Families (ACYF), Administration for Children and Families (ACF), Department of Health and Human Services (HHS).

ACTION:

Interim final rule.

SUMMARY:

The Administration for Children and Families (ACF) is issuing this interim final rule to implement statutory provisions related to the Tribal title IV-E program. Effective October 1, 2009, section 479B(b) of the Social Security Act (the Act) authorizes direct Federal funding of Indian Tribes, Tribal organizations, and Tribal consortia that choose to operate a foster care, adoption assistance and, at Tribal option, a kinship guardianship assistance program under title IV-E of the Act. The Fostering Connections to Success and Increasing Adoptions Act of 2008 requires that ACF issue interim final regulations which address procedures to ensure that a transfer of responsibility for the placement and care of a child under a State title IV-E plan to a Tribal title IV-E plan occurs in a manner that does not affect the child's eligibility for title IV-E benefits or medical assistance under title XIX of the Act (Medicaid) and such services or payments; in-kind expenditures from third-party sources for the Tribal share of administration and training expenditures under title IV-E; and other provisions to carry out the Tribal-related amendments to title IV-E. This interim final rule includes these provisions and technical amendments necessary to implement a Tribal title IV-E program.

DATES:

This rule is effective February 6, 2012. Consideration will be given to all comments received by March 6, 2012.

ADDRESSES:

Interested persons may submit written comments to the Federal eRulemaking Portal:
http://www.regulations.gov.
Written comments also may be submitted via email to
CBComments@acf.hhs.gov.
Please include “Tribal Child Welfare” in the subject line of the message. Written comments also may be submitted via mail or courier delivery: Elizabeth Sharp, Division of Policy, Children's Bureau, Administration on Children, Youth and Families, Administration for Children and Families, 1250 Maryland Avenue SW., 8th Floor, Washington, DC 20024.

FOR FURTHER INFORMATION CONTACT:

Elizabeth Sharp, Children's Bureau, Administration on Children, Youth and Families, (202) 205-7265 or by email at
elizabeth.sharp@acf.hhs.gov.
Do not email comments to this address.

SUPPLEMENTARY INFORMATION:

I. Submitting Comments

II. Background

III. Justification for Interim Final Rule

IV. Tribal and Stakeholder Consultation

V. Section by Section Discussion of the Interim Final Rule

VI. Impact Analysis

I. Submitting Comments

Although this interim final rule is effective without further regulatory action as indicated in the `dates' section, we are soliciting comments from interested parties that we can use to determine the need for any further rulemaking. Comments should be specific, address issues raised by the rule, propose alternatives where appropriate, and explain reasons for any objections or recommended changes. You should reference the specific section of the interim final rule that is being addressed in the comment. We urge you to submit comments electronically to ensure we receive them in a timely manner.

II. Background

The Fostering Connections to Success and Increasing Adoptions Act of 2008, Public Law (Pub. L.) 110-351 (hereafter “Fostering Connections”) was enacted on October 7, 2008. Prior to the law's enactment, the title IV-E program provided States and territories (hereafter, “States”) with Federal funds to support eligible children in foster care, eligible children with special needs in adoptions, and the administrative expenses of States to operate the title IV-E program. As amended, the law permits Federally-recognized Indian Tribes, Tribal organizations or consortia (hereafter, “Indian Tribes”) to apply to the Secretary of HHS to operate a title IV-E program beginning October 1, 2009.

By law, the requirements of title IV-E apply to a Tribal agency “in the same manner as this part [IV-E] applies to a State” (section 479B(b) of the Act), with limited exceptions specified in the law. This means that an Indian Tribe wishing to operate a title IV-E plan must adhere to most existing statutory and regulatory title IV-E requirements in place for a State title IV-E agency, with some exceptions provided in law. Those exceptions include: the ability for Indian Tribes to define their own service areas and Tribal licensing standards; flexibility to use nunc pro tunc orders and affidavits to meet judicial determination requirements in the first 12 months of operation of the Tribal title IV-E plan; and, the ability to use in-kind third-party funding sources for sharing in the costs of the title IV-E program. As reflected throughout this rule, we determined that there are a very limited number of other variances necessary.

Public Law 110-351 also provides limited grants, beginning in Federal fiscal year (FY) 2009, to assist Indian Tribes that intend to implement a title IV-E program to develop a title IV-E plan. Eleven Indian Tribes have received a title IV-E development grant, and ACF expects to award grants to five more Indian Tribes in FY2011. Finally, the law permits a title IV-E agency to enter into a contract or cooperative agreement with an Indian Tribe to share in the administration of the title IV-E programs on behalf of Indian children.

In addition to creating these provisions unique to Indian Tribes, Fostering Connections contains new requirements and options for States and Indian Tribes with title IV-E plans. Public Law 110-351 permits a title IV-E agency the option to administer a new kinship guardianship assistance program under title IV-E, revises the eligibility criteria for the title IV-E adoption assistance program, allows a title IV-E agency the option to extend title IV-E foster care, adoption assistance, and kinship guardianship assistance payments to youth who meet certain conditions up to age 21, among other changes to the title IV-B and IV-E requirements. The entire text of Fostering Connections and issuances related to the new provisions can be found on the Children's Bureau's Web site at
www.acf.hhs.gov/programs/cb
and
www.acf.hhs.gov/programs/cb/laws_policies/implementation_foster.htm.

III. Justification for Interim Final Rule

Section 301(e) of Public Law 110-351 requires that we publish interim final rules generally to carry out the amendments made to title IV-E of the Act to authorize Indian Tribes to directly-operate title IV-E programs. Many of these amendments are present throughout this rule in the form of minor language changes to existing regulatory provisions to be inclusive of a Tribal title IV-E agency because the law mandates that we apply title IV-E requirements equally to States and Indian Tribes. Also, the law specifically requires that we develop and codify

procedures in an interim final rule to ensure that a transfer of responsibility for the placement and care of a child under a State title IV-E plan to a Tribal title IV-E plan or to an Indian Tribe with an agreement or contract under title IV-E does not affect the child's eligibility for title IV-E or Medicaid. Further, the law requires that we address in interim final rules the types and amounts of in-kind expenditures that Indian Tribes may claim under a title IV-E plan. These specific requirements can be found in new sections of the regulation, 45 CFR 1356.67 and 1356.68.

We also are including several technical and conforming amendments to existing regulatory requirements that, although not directly related to the amendments of Public Law 110-351, clarify implementation of the title IV-E programs. These conforming amendments are to update statutory citations, remove obsolete references and make technical corrections. The Administrative Procedure Act provides an exception to the standard rulemaking process to propose rules and solicit comments prior to adopting a final rule where an agency finds good cause to adopt a rule without prior public participation (5 U.S.C. 553(b)(3)(B)). The good cause requirement is satisfied when prior public participation is impracticable, unnecessary, or contrary to the public interest. We find proposing rulemaking for these technical and conforming amendments impracticable and unnecessary since they are not substantive and only align the regulations with current law or practice. Moreover, we believe that delaying rulemaking on these technical amendments would be contrary to the public interest since doing so would cause significant confusion about the statutory and regulatory provisions to which Indian Tribes must adhere in implementing the title IV-E program for the first time. Therefore we find good cause to include these technical amendments in this interim final rule. More specific rationale for each amendment can be found in the section by section discussion.

IV. Tribal and Stakeholder Consultation

Section 301(e) of Public Law 110-351 requires us to consult with Indian Tribes and affected States prior to issuing interim final rules. Consistent with this requirement and the Department's commitment to consult with Indian Tribes on a government-to-government basis, we conducted a series of consultation sessions with Indian Tribes and other Tribal stakeholders prior to issuing these rules. On March 13, 2009, we published a
Federal Register
notice, 74 FR 10920 (hereafter, “FR notice”) inviting Tribal leaders and/or their representatives to attend one of seven in-person meetings held in Bloomington, Minnesota; Kansas City, Missouri; Seattle, Washington; Denver, Colorado; San Francisco, California; Dallas, Texas; and, Marksville, Louisiana. The FR notice also invited written comments from Tribal leaders or any other interested party.

Indian Tribes and other stakeholders were invited to provide input on the following questions:

• Considering that the Secretary is to apply title IV-E of the Act to Indian Tribes in the same manner as to States except where directed by law, what, if any, provisions and clarifications related to the title IV-E program for directly-funded Indian Tribes should be in regulations?

• Are guidelines above and beyond those provided pursuant to the Indian Child Welfare Act (ICWA) of 1974 needed to execute the transfer of placement and care responsibility of a title IV-E Indian child to an Indian Tribe operating a title IV-E plan? If so, please provide suggestions.

• What specific information pertaining to title IV-E and Medicaid should a State make available to an Indian Tribe that seeks to gain placement and care responsibility over an Indian child?

• Should the third-party sources and in-kind limits on Tribal administrative and training costs remain consistent with section 479B(c)(1)(D) of the Act? Please provide a rationale for this response.

• Any other comments regarding the development of an interim final rule per section 301(e) of Public Law 110-351.

The consultation was limited in scope and not intended to solicit comments on the remaining provisions of Public Law 110-351 or the title IV-E program in general. However, the consultations elicited a wide range of questions, issues and suggestions regarding implementation and operation of a title IV-E program. Further, we continue to listen to Tribal partners in ongoing consultations and less formal opportunities for discussion such as grantee meetings. Highlights of the comments that we received and how they are addressed in this regulation follow.

Commenters felt strongly that the requirement in Public Law 110-351 that title IV-E requirements apply to Indian Tribes in the same way as they apply to States, does not consider Indian Tribes' sovereignty, cultural standards, lack of historical funding under title IV-E and current economic circumstances. In particular, commenters requested: (1) Relief from the application of State-specific 1996 Aid to Families with Dependent Children (AFDC) requirements; (2) use of
nunc pro tunc
orders to ensure title IV-E eligibility for all Indian children who did not have the requisite court orders beyond the first twelve months of the approved Tribal title IV-E plan; and, 3) direct funding of selected components of the title IV-E plan of the Indian Tribe's choosing. Although we respect Tribal sovereignty and standards and understand the unique situation of Indian Tribes in operating a long-standing Federal program for the first time, the existing statutory requirements of title IV-E of the Social Security Act do not allow us to meet these particular requests. Rather we have indicated in this interim final regulation the areas in which the law must be applied equally to Indian Tribes and States, where the law crafted unique requirements specific to Indian Tribes with title IV-E plans, and where there is discretion for the Indian Tribe to develop its own practices and approaches. We encourage Indian Tribes to seek technical assistance from the Children's Bureau (CB) Regional Office staff in dealing with these issues.

Commenters sought more clarity about the relationships between States and Indian Tribes, and how those relationships may impact various parts of the title IV-E program and/or transfers of placement and care responsibility of a child from one jurisdiction to another. Commenters asked us to specify: (1) Which entities are responsible for funding Indian children in Tribal title IV-E programs; (2) the extent to which States may influence the direction of Tribal title IV-E plans/programs; and, (3) the extent of Tribal access to State-owned resources, such as funding, information systems, data and Medicaid program benefits. In general, we do not believe it necessary nor do we have the authority to prescribe the relationships between Indian Tribes and States. Rather, in this interim final regulation we have specified the minimum information States must provide to Indian Tribes with either a title IV-E plan or agreement when a child is transferred from the responsibility of the State to the Indian Tribe and we have explained that the law permits States and Indian Tribes to enter into various arrangements in support of Tribal title IV-E programs. A State that has a title IV-E plan under existing law may craft the relationships and partnerships it

desires with other public agencies, private child placing agencies and other contractors within broad Federal parameters. Indian Tribes with a title IV-E plan have this same discretion to enter into relationships and partnerships it finds beneficial in supporting the title IV-E plan. Through consultation, coordinated efforts and good faith negotiation of title IV-E agreements, States and Indian Tribes can determine for themselves issues of funding, responsibility, shared resources and services.

An overarching concern of most Tribal commenters was funding, and as such Indian Tribes requested: (1) More funding to operate the title IV-E program; (2) relief from provisions that limit in-kind contributions, require matching funds and/or allocation of costs; and (3) numerous clarifications about how title IV-E funding operates and interacts with other funding streams. We have clarified throughout this regulation how Indian Tribes may draw down title IV-E funding and will continue to make this a priority in further technical assistance activities. However, the title IV-E program's basic funding structure as a reimbursement program of a portion of an agency's expenses on behalf of eligible children, is not one that we can alter in the absence of statutory changes.

Finally, we received a number of specific questions about items that are not germane to this regulation. For example, we received questions about the Family Connection grants authorized by Public Law 110-351 (section 427 of the Act); availability of American Recovery and Reinvestment Act of 2009 (“stimulus”) funding; and provisions for a kinship guardianship assistance program or an extension of title IV-E assistance to 18 to 21 year olds which are not specific to Indian Tribes. We will use the questions and comments we received in consultation that are outside this regulation to formulate other technical assistance efforts, policy proposals, and further consultation as appropriate.

V. Section by Section Discussion of the Interim Final Rule

Section 1355.20—Definitions

Section 1355.20 contains definitions pertaining to terms used in 45 CFR parts 1355, 1356 and 1357 of this title. We amended several definitions by removing references to “State” or “States” and replacing such references with the broader terms of “title IV-E agency” or “title IV-E agencies” or, by adding references to “Indian Tribe” or “Tribal” as descriptive terms. These changes apply the terms defined in the regulation equally to States and Indian Tribes with an approved title IV-E plan pursuant to Public Law 110-351. These changes are made to the following definitions: “date a child is considered to have entered foster care”, “entity”, “foster care”, “foster family home”, “full review” and “permanency hearing.” In some definitions we made additional conforming changes which are described below.

Adoption

We amended the definition of the term “adoption” to include adoptions under Tribal law for Tribal title IV-E purposes. We understand that Indian Tribes finalize legal adoptions through court processes and/or through traditional or ceremonial processes, and therefore this change ensures that the term “adoption” is inclusive of adoptions finalized through these processes for Tribal title IV-E agencies.

Child Care Institution

We amended the definition of a “child care institution” to account for the ability of an Indian Tribe that has an approved title IV-E plan pursuant to section 479B of the Act to license child care institutions in its service area. The revised definition provides three types of licensing authorities: A State licensing authority in the State in which the child care institution is located, a Tribal licensing authority with respect to a child care institution on or near an Indian Reservation, or the Tribal licensing authority of an Indian Tribe that operates a title IV-E plan pursuant to section 479B of the Act with respect to a child care institution in the Indian Tribe's service area.

A commenter requested that Indian Tribes be permitted flexibility with regard to the definition of “on or near an Indian Reservation.” This language comes from section 1931 of the Indian Child Welfare Act of 1978 (ICWA) (Pub. L. 95-608) and applies to both child care institutions and foster family homes. The ICWA requirement states that for purposes of qualifying for funds under a Federally assisted program, e.g., titles IV-E and IV-B, licensing or approval of foster or adoptive homes or institutions on or near an Indian Reservation by an Indian Tribe is equivalent to licensing or approval by a State. There is no statutory or regulatory definition of this term. As such, if an Indian Tribe has a reservation, it has the discretion to make a reasonable determination of what it considers on or near the reservation. Another commenter requested clarification that the existing Tribal licensing authorities may serve in the licensing role for title IV-E purposes. We confirm that the Indian Tribe has the discretion to use existing licensing authorities or create new authorities to license foster family homes or child care institutions on or near reservations and/or within a Tribal agency's service area.

Foster Family Home

We amended the definition of “foster family home” to add a sentence that clarifies that the authority that licenses a foster family home must be a State licensing authority in the State in which the foster family home is located pursuant to section 471(a)(10) of the Act, a Tribal authority with respect to a foster family home on or near an Indian Reservation pursuant to section 1931 of ICWA, or the Tribal authority of an Indian Tribe that operates a title IV-E plan pursuant to section 479B(c)(2) of the Act with respect to a foster family home in the Tribal agency's service area. These changes are similar to the ones made to the definition of a child care institution.

During consultation, some commenters sought clarification of whether an Indian Tribe has to abide by Federal or State foster family home licensing/approval standards and exceptions to such standards such as, State rules that may limit the number of children in the home, Indian Health Service safety requirements, or requirements on driving. Another commenter sought flexibility in Federal Tribal licensing standards because of the limited nature of housing in Indian country and the unique cultural issues in Indian Tribes. In response, we would like to explain the foster family home licensing/approval requirements in title IV-E. Section 471(a)(10) of the Act requires the State or Tribal agency to establish or designate an authority for establishing and maintaining standards for foster family homes and child care institutions. An Indian Tribe that has a title IV-E plan will be responsible for establishing such an authority and applying the standards developed to the foster family homes or child care institutions in its service area and/or on or near its reservation. At a minimum, the licensing standards must cover admission policies, safety, sanitation, and protection of civil rights (see sections 471(a)(10) and 479B(c)(2) of the Act). Therefore, Indian Tribes may take into consideration the unique features of the housing, landscape and cultural norms in developing licensing or approval standards for foster family homes. In addition, standards must be applied equally to any licensed or approved foster family home receiving

title IV-B and IV-E funds, with one exception in section 471(a)(10) of the Act. The exception permits a title IV-E agency to waive the application of a standard unrelated to safety for relative foster family homes on a case-by-case basis. The title IV-E agency may not exclude relative homes, or any other group from the licensing requirement (see section 471(a)(10) of the Act and the definition of “foster family home” in 45 CFR 1355.20). There are no ACF prescribed standards for licensing or approving homes, although section 471(a)(10) of the Act requires standards to accord with recommended standards of national organizations. An Indian Tribe or a State may have to follow other Federal standards for licensure to the extent that the foster family homes are governed by other Federal laws and/or funding restrictions. Please note that for title IV-E funding purposes, criminal record and child abuse and neglect registry checks are a related but separate issue from licensure. Requirements related to the criminal record check provisions are in section 471(a)(20) of the Act and discussed in relation to section 1356.30 later in the preamble.

Some commenters sought clarification on whether Indian Tribes can use title IV-E to pay for children placed with prospective foster parents in the process of being licensed or approved as a foster family home. In certain circumstances, a title IV-E agency, including an Indian Tribe, may seek administrative cost reimbursement for eligible children placed with such prospective foster parents. Consistent with section 472(i)(1)(A) of the Act and policy at Child Welfare Policy Manual (CWPM) 8.1B Q/A #11, the title IV-E agency may claim administrative costs on behalf of an otherwise eligible child placed in an unlicensed or unapproved relative home for 12 months or the average length of time it takes the agency to license or approve a foster family home, whichever is less. During this time, an application for licensure or approval of the relative home as a foster family home must be pending. The title IV-E agency may only claim administrative costs in this situation for a child placed in an unlicensed or unapproved relative foster family home. For the purposes of this provision, a relative is defined by section 406(a) of the Act as in effect on July 16, 1996, and implemented in 45 CFR 233.90(c)(1)(v). In general, a title IV-E agency may not claim the cost of a title IV-E foster care maintenance payment on behalf of an otherwise eligible child until the first day of the first month in which the foster family home meets all licensure or approval requirements. See CWPM 8.3A.8c Q/A #16.

Full Review

We amended the definition of “full review” to apply the definition equally to States and Indian Tribes by removing language that described the Child and Family Services Review (CFSR) as focused on child and family service programs “in the States” relative to “State” plans for title IV-B and IV-E. By removing this language, we make clear that the full reviews can occur in States or Indian Tribes with approved plans for both titles IV-E and IV-B. Further, we added parenthetical language to the definition of a full review to clarify that the statewide assessment, which is a component of the CFSR, may be an assessment of the Tribal service area in the case of a Tribal agency. For the purposes of title IV-E, a service area is defined by the Indian Tribe pursuant to section 479B(c)(1)(B) of the Act and for the purposes of title IV-B, it is the area covered by the Indian Tribe's Child and Family Services Plan (CFSP). See sections 1355.31 through 1355.37 for a more complete discussion of the CFSRs as they apply to Indian Tribes with title IV-E plans.

Partial Review

We amended the definition of “partial review” to apply the process for reviewing title IV-E compliance to Indian Tribes with an approved title IV-E plan, consistent with section 479B(b) of the Act. As we did in the “full review” definition, we removed language that references States in paragraph (1) of the definition. This means that an Indian Tribe with an approved title IV-E plan will be subject to a partial review, if necessary, if there is a compliance issue that falls within the scope of the CFSR. Also, we added a new paragraph (3) to the definition to specify that partial reviews encompass Tribal title IV-E plan compliance issues that fall outside of the CFSR. This requirement is similar to the existing requirement for States in paragraph (2). Partial reviews do not pertain to Indian Tribes with only a title IV-B plan. Such compliance issues are regulated by the process described in sections 1355.30(n) and (p) instead.

Statewide Assessment (or Tribal Assessment)

We amended the definition of “statewide assessment” to apply the initial phase of a full review to Tribal title IV-E agencies by inserting the term “Tribal assessment.” This means that a Tribal assessment for a Tribal title IV-E agency is a review of all Federally-assisted child and family services programs in the Tribal service area (as opposed to a review of all Federally-assisted child and family services programs in the State for a Statewide assessment). We also made an amendment to apply the assessment to the entire Tribal service area by inserting the phrase “(or for a Tribal title IV-E agency, in the service area).”

Title IV-E Agency

We added a new definition of a “title IV-E agency.” This definition is inclusive of a State or Tribal agency that administers or supervises the administration of both the title IV-B (subparts 1 and 2) plan and IV-E plan and a Tribal agency that administers or supervises the administration of both the title IV-B, subpart 1 and title IV-E plan. We added this definition pursuant to Public Law 110-351 which authorizes Indian Tribes to operate a title IV-E plan and requires ACF to apply the title IV-E program equally to States and Indian Tribes. This term is used throughout the interim final rule when we refer to common requirements for a State or Tribal title IV-E agency; we use the terms State agency (defined in this section of the regulation) or Tribal agency as described below, when we are referring to requirements unique to those entities.

Tribal Agency

We added a new definition of “Tribal agency.” Tribal agency means, for the purpose of title IV-E, the agency of the Indian Tribe, Indian Tribal organization or consortium of Indian Tribes that is designated to administer or supervise the administration of the title IV-E and title IV-B, subpart 1 plan. Section 479B(a) of the Act incorporates the definition of Indian Tribe in 25 U.S.C. 450b which is any Indian Tribe, band, nation, or other organized group or community that is recognized as eligible for special programs and services provided by the United States to Indians because of their status as Indians. Such Tribes are commonly referred to as Federally-recognized Indian Tribes. Section 479B(a) of the Act also incorporates the definition of Indian Tribal organization in 25 U.S.C. 450b which is a recognized body of an Indian Tribe. In this context, a consortium of Indian Tribes is two or more Federally-recognized Indian Tribes that agree to join for the purpose of operating the title IV-E plan.

Section 1355.21—Plan Requirements for Titles IV-E and IV-B

Section 1355.21 specifies the requirements for title IV-B and IV-E plans.

We changed the title of this section by removing the term “State” so that the section refers more generally to the plan requirements for titles IV-E and IV-B rather than “State plan” requirements. Similarly, we amended section 1355.21 in paragraphs (a), (b) and (c) to make conforming changes by removing the term “State” before “plan” and in paragraph (c) to replace the term “State agency” with the more general “title IV-E agency” to clarify that Indian Tribes with title IV-E plans must follow the same rules consistent with Public Law 110-351. These conforming changes apply the title IV-E and title IV-B plan requirements in section 1355.21 equally to States and Indian Tribes.

In addition, we amended paragraph (b) to add clarifying language that a title IV-E agency must comply with the applicable Departmental regulations described in section 1355.30. Section 1355.30 specifies which Departmental regulations apply to a title IV-E agency generally, or those that are specific to either a Tribal or State title IV-E agency.

In paragraph (c) as indicated above, we replaced the term “State agency” with “title IV-E agency” to make a conforming change. Through this conforming change, we apply the existing requirement that a title IV-E agency must make the title IV-E plan available for public review and inspection equally to all title IV-E agencies. Therefore, in addition to making the Child and Family Services Plans and the Annual Progress and Services Reports available for public review and inspection, an Indian Tribe with an approved title IV-E plan must make the title IV-E plan available for public review and inspection.

Section 1355.30—Other Applicable Regulations

Section 1355.30 identifies other Departmental regulations that are applicable to title IV-B and IV-E programs.

We amended the introductory paragraph to section 1355.30 to apply the regulations cited in this section to both State and Tribal title IV-B and title IV-E programs, as appropriate. The cited regulations are for: Departmental Appeals Board procedures (45 CFR 1355.30(a)), collecting claims (45 CFR 1355.30(b)), nonprocurement debarment and suspension (45 CFR 1355.30(c)), drug-free workplaces (45 CFR 1355.30(d)), nondiscrimination under title VI of the Civil Rights Act and associated hearing procedures (45 CFR 1355.30(e)-(f)), nondiscrimination on the basis of handicap (45 CFR 1355.30(g)), nondiscrimination on the basis of age (45 CFR 1355.30(h)), lobbying restrictions (45 CFR 1355.30(j)), and grants and administration of public assistance programs (45 CFR 1355.30(k), (m) and (n)). The regulations in the above mentioned sections previously applied to State and Tribal title IV-B programs and State title IV-E programs. These amendments apply the regulatory requirements equally to Indian Tribes with a title IV-E plan consistent with Public Law 110-351. In addition, we made conforming amendments in the paragraphs described below that align these regulations with other regulatory and statutory changes implemented between November 2003 and January 2010.

We amended paragraph (c) to delete the Administration of Grants rules previously located in 45 CFR part 74 from the list of applicable requirements as 45 CFR part 74 is now obsolete. HHS moved a number of programs, including titles IV-B and IV-E, into the scope of 45 CFR part 92, and removed such programs from the scope of Part 74 (68 FR 52843-44, September 8, 2003). Therefore, an agency operating titles IV-B and IV-E programs is subject to the administrative rules published in 45 CFR part 92 as cited by amended section 1355.30(i) (see discussion below). We amended paragraph (c) further to add “2 CFR Part 376—Nonprocurement Debarment and Suspension” as an applicable regulation. This amendment reflects regulatory changes to the governmentwide Debarment and Suspension (nonprocurement) regulations at 45 CFR Part 76, which were previously cross-referenced in section 1355.30(d). HHS issued an interim final rule on March 1, 2007 which removed the full text of the Department's debarment and suspension rules from 45 CFR part 76 and issued a new 2 CFR part 376 on nonprocurement debarment and suspension (72 FR 9233-9235). We believe that because this change is technical in nature there is no need to go through the notice and comment process to update the regulation.

We made a technical amendment to paragraph (d) to reflect changes in regulatory citations by deleting the current citation and replacing it with “2 CFR Part 382—Requirements for Drug-Free Workplace (Financial Assistance).” On November 26, 2003, HHS issued a final rule that implemented changes to the governmentwide nonprocurement debarment and suspension common rule and the associated rule on drug-free workplace requirements (68 FR 66557). The rule on debarment and suspension was removed from Part 76 and codified at 2 CFR part 376 (see discussion in previous paragraph). The rule on drug-free workplace requirements was initially revised and codified in 45 CFR part 82, but effective January 11, 2010 these requirements were further simplified and relocated to 2 CFR 382 (74 FR 58189).

Paragraph (i) describes the Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments in 45 CFR part 92 that are applicable to the title IV-B and IV-E programs. We made a technical amendment to paragraph (i) by replacing the reference to the “Independent Living Program” with “the John H. Chafee Foster Care Independence Program” to reflect the name change and broader program purposes established in the Foster Care Independence Act of 1999. We also amended paragraph (i) to apply 45 CFR part 92 to Indian Tribes which operate Chafee Foster Care Independence Programs (CFCIP) in accordance with Section 477(j) of the Act.

We also amended paragraph (i) to maintain and clarify the current rule that Part 92 applies to State-operated title IV-E foster care and adoption assistance programs. The regulations cross-referenced in 45 CFR part 74 have moved to 45 CFR part 92, so we cite the relocated sections that do not apply to State title IV-E programs (matching or cost sharing requirements found at 45 CFR 92.24 which was formerly 45 CFR 74.23 and financial reporting requirements found at 45 CFR 92.41 which was formerly 45 CFR 74.52). Therefore, title IV-E policy and regulations continue to preclude States from using third-party in-kind contributions and places certain conditions on the use of donated funds as a source of non-Federal funds for the title IV-E foster care and adoption assistance programs.

Finally, we added language in paragraph (i) to apply 45 CFR part 92 to Tribal title IV-E plans for foster care and adoption assistance except that section 92.41 and the sections specified in section 1356.68 do not apply to a Tribal title IV-E agency.

Unlike States, title IV-E specifically allows Indian Tribes with an approved title IV-E plan to use in-kind contributions from third-party sources up to a specified percentage of the Indian Tribe's cost sharing requirements for title IV-E administrative and training costs for certain fiscal years in

accordance with section 479B(c)(1)(D) of the Act. Regulations at 2 CFR part 225 Appendix B, Office of Management and Budget (OMB) Circular A-87, which set out cost principles for States, localities and Tribal Governments, apply to Indian Tribes and item 12b within that Circular requires that Indian Tribes that use third-party contributions follow 45 CFR part 92. Because an Indian Tribe may claim in-kind administrative and training contributions of its share of the title IV-E program from third-party sources, section 92.24 (formerly section 74.23) applies cost-sharing principals and section 92.41 (formerly section 74.52) applies financial reporting to an Indian Tribe's use of in-kind contributions from third-party sources.

We amended paragraph (k) to apply most of 45 CFR part 95 to both States and Indian Tribes with approved title IV-B and IV-E plans. The exceptions are specified in the subparagraphs detailed below. This is a conforming change consistent with section 479B(b) of the Act for an Indian Tribe with a title IV-E plan; it does not amend existing rules applicable to States or Indian Tribes with title IV-B plans or States with title IV-E plans.

We added a new subparagraph (k)(1), to maintain the exception to the applicability of 45 CFR 95.1(a), subpart A, to the State title IV-B program and the CFCIP for States, and to apply the exception to Indian Tribes operating title IV-B programs and CFCIP as well. The regulation at 45 CFR 95.1(a) specifies time limits for submitting financial claims which do not apply to the CFCIP or title IV-B programs; statutory provisions establish the claim submission timeframe.

We created a new subparagraph (k)(2) to explain that unlike States, 45 CFR part 95 subpart E, Cost Allocation Plans, is not applicable to Indian Tribes with an approved title IV-E plan pursuant to section 479B of the Act. This is because the Department of Interior (Interior) is the cognizant agency for cost allocation and Interior has provided for the use of indirect cost rates for Indian Tribes in accordance with that authority. However, ACF still retains authority for guiding the allocation and documentation of title IV-E costs pursuant to section 1356.60 and 2 CFR 225. As such, we issued guidance, ACYF-CB-PI-10-13, on how Indian Tribes can develop appropriate cost methodologies November 23, 2010.

We amended paragraph (m) to clarify that the regulations in 45 CFR 100.12 related to simplifying, consolidating or substituting federally required plans apply to States only. The regulatory provision relates to a process for operationalizing intergovernmental partnership and Federalism principles for States. Although this particular provision applies only to States, other guidance reflects our commitment to working with Indian Tribes on a government-to-government basis. In particular, Executive Order 13175 (65 FR 6724, November 9, 2000) requires HHS to develop an accountable process to ensure “meaningful and timely input by Tribal officials in the development of regulatory policies that have Tribal implications.”

In paragraph (n), which applies certain regulations related to grants for public assistance programs in 45 CFR part 201 to programs funded under titles IV-B and IV-E, we made minor amendments to remove references to “State” and replace them with more general references to apply the rules equally to Indian Tribes in subparagraph (n)(2). In addition we removed parenthetical marks but not the provisions within them, from paragraphs (n)(1) through (n)(4).

We amended paragraph (o) to clarify that the provision cross-referenced at 45 CFR 204.1 which requires that title IV-E plans be submitted for a Governor's review is applicable only to States. Indian Tribe's must submit their title IV-E plan to their designated Tribal leadership for review prior to submitting it to HHS. More instructions for doing so are included in the title IV-E plan preprint (most recently, in ACYF-CB-PI-09-08 issued October 14, 2009) which is applicable to States and Indian Tribes and is available on the CB Web site at
www.acf.hhs.gov/programs/cb.

Section 1355.31—Elements of the Child and Family Services Review System

This section specifies the scope of the CFSRs.

The CFSRs were established through regulations issued on January 25, 2000 (65 FR 4020) to monitor the performance of State child welfare programs consistent with section 1123A of the Act. The review assesses a title IV-E agency's substantial conformity with certain Federal requirements regarding child protection, foster care, adoption, family preservation and family support, and independent living services. The reviews are based on plan requirements in titles IV-B, subpart 1 and 2 of the Act and the title IV-E foster care and adoption programs. The reviews enable CB to: (1) Ensure conformity with Federal child welfare requirements; (2) determine what is actually happening to children and families as they are engaged in child welfare services; and, (3) assist agencies to enhance their capacity to help children and families achieve positive outcomes.

We removed language in this section that limited the scope of the reviews to child and family services programs “administered by States,” so that the CFSRs apply to such programs administered by a Tribal agency consistent with the requirement in Public Law 110-351 to apply the provisions of the title IV-E program equally to State and Tribal title IV-E agencies. The amendments in this section and throughout the CFSR related regulatory sections do not affect how we conduct CFSRs in States or our existing guidance to States engaged in the CFSR process. The application of the CFSRs to a Tribal title IV-E agency has been modified somewhat to take into consideration that such agencies are entering into a preexisting monitoring process. We encourage Indian Tribes to review the most recent CFSR procedures manual on CB's Web site, which explains the CFSR process in more detail (
http://www.acf.hhs.gov/programs/cb/cwmonitoring/tools_guide/proce_manual.htm
).

Section 1355.32—Timetable for the Reviews

This section specifies the review timetable for the initial and subsequent CFSRs.

Section 1355.32(a)—Initial Reviews

In paragraph (a), we provide the timetable for the initial CFSR for a State or Tribal agency. The initial reviews for States were completed between FY's 2001 and 2004.

We amended paragraph (a) to specify a schedule of initial reviews for a Tribal title IV-E agency and replaced the reference to “Administration for Children and Families” with the acronym “ACF.” The added provision establishes that each Tribal title IV-E agency must complete an initial full CFSR during the four-year period after we determine that the Indian Tribe has plans approved for each of the title IV-B subpart 1, title IV-B subpart 2 and title IV-E programs and has a sufficient number of cases to apply the procedures in section 1355.33(c). This new provision provides for reviews on an initial schedule for a Tribal agency similar to that for a State consistent with the statutory requirement to apply the title IV-E program rules equally to Indian Tribes with approved plans. However, we adjusted the timeframe to accommodate the unique position of Indian Tribes with approved title IV-E plans. When the initial reviews were scheduled for States, all States were

operating programs under both subparts of title IV-B and IV-E, and had been doing so for several years. This allowed us to set a fixed timeframe by which all States had to have an initial review. Since the title IV-E option is available to Indian Tribes on a continuous basis, we allow the timeframe for the initial review to vary depending on when an Indian Tribe's title IV-E plan is approved and other factors discussed below.

A title IV-E agency must have a sufficient number of children in foster care and children receiving in-home services during the period under review (i.e., those that have a case open for in-home services with the child welfare agency for a period of at least 60 days) from which we can select a sample of at least 30-50 cases for an on-site review as required by existing regulations. This sample is taken from a larger oversample of 150 foster care and 150 in-home services cases. At the time of promulgation of the CFSR process we were confident that States typically had at least this many child welfare cases open during our period under review. However, we understand that Indian Tribes operating title IV-E plans may not serve as many children at the initiation of their programs or for some years to follow. Therefore, to maintain fidelity with the existing CFSR process and apply the procedures equally to a Tribal title IV-E agency, we will not initiate a CFSR for such an Indian Tribe until we can select a sample that meets this threshold number of cases.

Finally, certain CFSR criteria are premised on the agency having in place a continuum of child welfare services as supported by the Federal requirements and provisions of title IV-B, subparts 1 and 2 (see 63 FR 50067), in addition to those of title IV-E. Indian Tribes which can be approved to operate a title IV-E program also must have a title IV-B, subpart 1 program for child welfare services (see CWPM Section 9.1 Q/A #4). However, there is nothing in Federal law that compels a Tribal title IV-E agency to operate the Promoting Safe and Stable Families Program under title IV-B, subpart 2. In fact, the existing provisions of title IV-B, subpart 2 limit the availability of grants under the program to those Indian Tribes who would qualify through the formula for a grant of at least $10,000 (section 432(b)(2)(B) of the Act). We will conduct a full CFSR only if a Tribal title IV-E agency is operating both a title IV-B subpart 1 and 2 program.

Due to the many factors that must be met for ACF to conduct a CFSR of a Tribal agency, we will utilize all other existing monitoring protocols at our disposal to ensure that such agencies are in compliance with Federal requirements and are achieving positive outcomes for children and families. Such protocols include reviewing and approving title IV-B plans and title IV-E plans, reviewing actual and estimated claims submitted on the CB-496 financial reporting forms each quarter and performance reported by Tribes in their title IV-B annual progress and service reviews, conducting partial reviews of requirements outside the scope of a CFSR of Federal requirements that we have reason to believe are out of conformity, and, as necessary, requiring Tribal title IV-E agencies to develop a program improvement plan to respond to areas we determine are out of substantial conformity. Consistent with section 1123A, the necessary elements of a program improvement plan and, if necessary, the amount of the withholding of Federal funds, will be commensurate with the extent of a Tribal title IV-E agency's non-conformity. See sections 1355.21, 1355.32(d), 1356.20 and 1357.15 for more information on ACF's oversight tools. In addition, ACF Regional Offices will continue to offer ongoing technical assistance to Indian Tribes as issues related to title IV-B and IV-E plans arise.

Section 1355.32(b)—Reviews Following the Initial Review

Paragraph (b) establishes the timetable for CFSRs after the initial review. We conduct a full review every five years following a review in which we determine the title IV-E agency to be operating in substantial conformity or two years after the approval of the Program Improvement Plan (PIP) if we determine that the title IV-E agency is not operating in substantial conformity.

We made a number of conforming amendments to paragraph (b) to apply the regulatory provisions for review timing following the initial review to a Tribal title IV-E agency in the same way as they are applied to a State title IV-E agency. Specifically, we amended paragraph (b)(1) to replace the reference to “State” with “title IV-E agency.” In paragraph (b)(1)(ii) we added reference to an assessment of the Tribal service area to parallel the reference to a statewide assessment, we removed “statewide” from the second and third sentences, we replaced the first reference to “State” with “title IV-E agency”, we replaced the reference to “Administration for Children and Families” with the acronym “ACF”, we added the phrase “or Indian Tribe's” to follow “the State's”, and we removed the word “State” from the phrase “State plan requirements subject to review.” In paragraph (b)(2) we removed the word “State” in the phrase “a State program.” In sum, these changes mean that once a Tribal title IV-E agency has had an initial CFSR review, a subsequent review will occur five years later if the agency is found in substantial compliance or two years following an approved PIP for an agency that is not in substantial conformity.

Section 1355.32(c)—Reinstatement of Reviews Based on Information That a Title IV-E Agency Is Not in Substantial Conformity

Paragraph (c) describes the requirements for reinstatement of a full or partial review and describes the types of information that may require a review.

In paragraph (c) we made a number of conforming amendments to apply the requirements for reinstatement of a full or partial review to a Tribal title IV-E agency in the same way as the requirements are applied to a State title IV-E agency. Specifically, we amended paragraphs (c) and (c)(1) through (4) to replace all references to “State” with “title IV-E agency.”

Section 1355.32(d)—Partial Reviews Based on Noncompliance With Plan Requirements That Are Outside the Scope of a Child and Family Services Review

This section sets the parameters for addressing noncompliance with title IV-B and IV-E plan requirements that are outside of the scope of a child and family services review in the form of a partial review. In paragraph (d), we made conforming amendments to apply the partial review process to a Tribal title IV-E agency in the same way it is applied to a State title IV-E agency. Specifically, we amended the title to remove the term “State” that preceded “plan” and we replaced all references to “State” with “title IV-E agency” in paragraphs (d)(1) through (d)(4).

Section 1355.33—Procedures for the Review

This section sets forth the CFSR process and outlines general procedures for both the CFSR assessment and the on-site review portions of the review.

Section 1355.33(a)

Paragraph (a) describes the two phases of the review process and the review team membership. We made a number of conforming amendments to this paragraph to apply the two-part review process and review team membership to a Tribal title IV-E agency in the same way they are applied

to a State title IV-E agency. Specifically, we amended paragraph (a)(2) to change “State” to “title IV-E agency” to indicate that when there is a CFSR of a Tribal title IV-E agency, the review team will consist of representatives from ACF and the Tribal title IV-E agency. This parallels the review team composition for CFSRs conducted in States. We amended paragraphs (a)(2)(i), (a)(2)(ii) and (a)(2)(iv) to replace all references to “State” with “title IV-E agency.” In addition, we amended paragraph (a)(2)(i) to remove the word “State” from the phrase “State child and family services agency” and the phrase “State and local” from the phrase “State and local offices.” These changes apply the two steps of the review process equally to States and Indian Tribes as required by Public Law 110-351.

Section 1355.33(b)—Statewide or Tribal Assessment

In this paragraph, we describe the assessment process in more detail. The assessment involves representatives from the title IV-E agency and external stakeholders, reviewing and analyzing data to evaluate the strengths and needs of the child and family services system.

We made a number of conforming amendments in paragraph (b) to apply the requirements of the assessment process to a Tribal title IV-E agency in the same way they are applied to a State title IV-E agency, as required by Public Law 110-351. We amended the title to include “or Tribal” to precede “assessment” so it is clear that there is either a State or Tribal assessment, depending on which is the title IV-E agency subject to the CFSR. We indicated that in the case of the Tribal title IV-E agency, the assessment covers the scope of the Indian Tribe's service area, including both the Indian Tribe's title IV-E service area (as defined by the Indian Tribe in the title IV-E plan) and the title IV-B service area (that is, the area covered by the Indian Tribe's CFSP). In paragraph (b)(1) we replaced references to “statewide” with “statewide/Tribal” and in paragraph (b)(2) we replaced references to “statewide” with “statewide/Tribal service area” to precede “data indicators.” This is a technical change to apply the data indicators equally to both State and Tribal IV-E agencies, as there is a single set of data indicators for Tribes and States. We also made changes throughout paragraphs (b) and (b)(2) through (b)(6), to replace all references to “State” and “State agency” with “title IV-E agency” and remove “statewide” where it prefaced “assessment.” These changes ensure that the assessment provisions are parallel for States and Indian Tribes.

Section 1355.33(c)—On-Site Review

Paragraph (c) describes requirements for the on-site review process, including information on the scope of the review, the review sites, sources of information used in the review, and case sampling.

In paragraph (c) we made a number of conforming amendments to apply the regulatory requirements of the on-site review process to a Tribal title IV-E agency in the same way they are applied to a State title IV-E agency, with the exception of one requirement in paragraph (c)(2) discussed below. Specifically, we made conforming amendments to paragraphs (c)(1) through (c)(3) by replacing most references to “State” with “title IV-E agency.” We also amended paragraph (c)(4)(iv) to include reference to an Indian Tribe's CFSP in the same way that we reference a State's CFSP and replaced the reference to the “statewide” assessment to the “statewide/Tribal” assessment in paragraph (c)(6). In paragraph (c)(2), we maintain the reference to the State's largest metropolitan area as a mandatory location for the on-site portion of the CFSR and did not include a mandate for a similar location for a Tribal CFSR. We kept this provision as is because we recognize that the Tribal title IV-E agency's service area in most cases will not include a metropolitan area at all, or if there is a metropolitan area, it may not represent a subdivision in which a large number of child welfare services cases can be found as was the intention with the original requirement.

Taking the paragraph as amended as a whole, for Indian Tribes the onsite review will consist of a review of a title IV-E agency's title IV-B and IV-E programs in operation in the title IV-E agency's service area. The review will be planned jointly between ACF and the Tribal title IV-E agency, may focus on several political subdivisions in the Tribal service area (e.g., different Tribal organizations included in a Tribal consortium) as guided by information in the assessment, and will involve the gathering of information during the on-site portion of the review from Tribal agency staff, families who are served by the agency and stakeholders internal and external to the agency, including those who participated in the development of the Indian Tribe's CFSP. The review will focus on at least 30 cases of foster care and in-home services cases, taken from a larger oversample of cases for each, which may be used to resolve discrepancies between the assessment and the on-site review.

Section 1355.33(d)—Resolution of Discrepancies Between the Assessment and the Findings of the On-Site Portion of the Review

In paragraph (d), we describe the process for resolving discrepancies between the assessment and the on-site portion of the review through either, at the title IV-E agency's option, the submission of additional information or the review of additional cases.

In paragraphs (d), (d)(1) and (d)(2), we made conforming amendments to apply the regulatory requirements for resolution of such discrepancies to a Tribal title IV-E agency in the same way they are applied to a State title IV-E agency by removing the reference to “State” and replacing it with “title IV-E agency.” The paragraph now requires that discrepancies between the assessment and the findings of the on-site portion of the review be resolved by either information submitted by the title IV-E agency or the review of additional cases, as opted by the title IV-E agency.

Section 1355.33(e)—Partial Review

In paragraph (e) we outline when a targeted partial child and family services review will be conducted. We made a conforming amendment in this paragraph to apply the regulatory requirements of the partial review process to a Tribal title IV-E agency in the same way they are applied to a State title IV-E agency by removing the reference to “State” and replacing it with “title IV-E agency.” In the case of a Tribal title IV-E agency, partial CFSRs will be planned and conducted jointly by ACF and the Tribal title IV-E agency based on the nature of the concern.

Section 1355.33(f)—Notification

Paragraph (f) provides for ACF to notify the title IV-E agency as to whether it is, or is not, operating in substantial conformity within 30 days following a full review, partial review or resolution of a discrepancy between the findings of the on-site review and the statewide/Tribal assessments. In this paragraph we made conforming amendments to apply the regulatory requirements of the notification process to a Tribal title IV-E agency in the same way they are applied to a State title IV-E agency by removing the references to “State agency” and “State” and replacing them with “title IV-E agency.” We also removed references to “statewide” where it preceded “assessment” so that it is inclusive of either State or Tribal assessments. ACF will therefore notify the title IV-E agency, whether State or Tribal, of its

conformity status within 30 days of the events mentioned above.

Section 1355.34—Criteria for Determining Substantial Conformity

This section describes the criteria that will be used to determine a title IV-E agency's degree of conformity with specified title IV-B and IV-E plan requirements for each outcome and systemic factor of the title IV-E agency's service delivery system that undergoes review.

Section 1355.34(a)—Criteria To Be Satisfied

Paragraph (a) describes the basic criteria used to determine the title IV-E agency's substantial conformity with applicable CFSP requirements based on: (1) The achievement of the seven outcomes specified in paragraph (b); and (2) the functioning of seven core systemic factors directly related to the title IV-E agency's capacity to deliver services leading to improved outcomes. In paragraph (a) we made conforming amendments to apply these basic criteria to a Tribal title IV-E agency in the same way they are applied to a State title IV-E agency by removing the word “State” from the phrase “title IV-B and IV-E State plan requirements” and removing the references to “State” in paragraphs (a) and (a)(3) and replacing them with “title IV-E agency.” In paragraph (a)(1) we replaced the phrase “statewide” with “statewide/Tribal service area” to preface data indicators. This is a technical change to apply the data indicators equally to both States and Tribes, as there are not separate data indicators for each.

Section 1355.34(b)—Criteria Related to Outcomes

Paragraph (b) describes the seven outcomes in the areas of child safety, permanency for children and child and family well-being used for the purposes of the review. The title IV-E agency's substantial conformity will be determined based on its ability to substantially achieve these outcomes. We made several conforming amendments in paragraph (b) to apply the regulatory requirements to a Tribal title IV-E agency in the same way they are applied to a State title IV-E agency and to update obsolete citations. Specifically, we made conforming amendments to remove the references to “State” in paragraphs (b)(1) through (b)(3) and in most cases replacing them with “title IV-E agency.” We also removed the reference to the title IV-B assurances being made “by the State” so that more general language remains to allow for the review of these assurances when made by the Indian Tribe.

To remove and replace out-of-date statutory references with current citations, we amended: Paragraph (b)(2)(ii)(C) by removing reference to section “422(b)(9)” and replacing it with “422(b)(7)”; paragraph (b)(2)(ii)(D) by removing the reference to section “422(b)(10)(C)(i) and (ii)” and replacing it with “422(b)(8)(B)”; paragraph (b)(2)(ii)(E) by removing the reference to section “422(b)(11)” and replacing it with “422(b)(9)” and paragraph (b)(2)(ii)(F) by removing the reference to section “422(b)(12)” and replacing it with “422(b)(10).” We believe that because these changes are technical in nature there is no need to go through the notice and comment process to update the regulation.

We did not change the reference to the State's compliance with ICWA in paragraph (b)(2)(ii)(E) as one of the CFSP assurances subject to review to make it also applicable to a Tribal title IV-E agency. This is because the ICWA provisions cited in section 422 of the Act and referenced here are those provisions which apply to State court proceedings and handling of custodial issues with regard to Indian children. Such provisions are not applicable to Indian Tribes and therefore cannot be a part of a review of Tribal title IV-E agency compliance with title IV-B and IV-E provisions.

We amended paragraphs (b)(2)(i), (b)(3)(i) and (b)(4) by replacing the term “statewide” with “statewide/Tribal service area” prior to “data indicator.” This allows ACF to develop data indicators based on title IV-E agencies' Adoption and Foster Care Analysis and Reporting System (AFCARS) and National Child Abuse and Neglect Data System (NCANDS) data and make such indicators a factor in substantial conformity for both State and Tribal IV-E agencies. However, we did not alter the references to “statewide” indicators in paragraph (b)(5) as they refer to the data standards that were set initially in 2000 and not to those that may be established in the future. Any changes to the actual indicators that are applicable to the CFSR will be announced by ACF, as applicable, through other means, such as a
Federal Register
notice or other formal issuance.

Section 1355.34(c)—Criteria Related to Title IV-E Agency Capacity To Deliver Services Leading to Improved Outcome for Children and Families

In paragraph (c) we describe criteria for the seven core systemic factors that we evaluate to determine the agency's capacity to deliver services that improve outcomes for children and families.

We made several conforming amendments in paragraph (c) to apply the regulatory requirements to a Tribal title IV-E agency in the same way they are applied to a State title IV-E agency and to update outdated citations. The substance of the systemic factors remains the same with these conforming changes.

To apply the regulatory requirements to a Tribal title IV-E agency in the same way they are applied to a State title IV-E agency we removed references to “State” or “State's” in paragraphs (c), (c)(2), (c)(3), (c)(4)(iv), (c)(5)(v) and (c)(6)(iv). We also removed and replaced references to “State agency” with “title IV-E agency” in the title, paragraphs (c), (c)(2) and (c)(2)(iii), (c)(3), (c)(4) and (c)(4)(i), (c)(5), (c)(6)(i), and (c)(7)(iii) through (c)(7)(v). We amended the title of paragraph (c)(1), paragraph (c)(4)(v) and (c)(6)(i) by replacing the terms “Statewide” with “Statewide/Tribal”, “State-licensed” with “State/Tribal-licensed”, “State-approved” with “State/Tribal-approved”, “county” with “county/local” and “State” with “State/Tribal” respectively. We amended paragraphs (c)(2)(i) and (c)(3)(i) by adding the phrase “Tribal service area” to follow “State.” We amended paragraphs (c)(7)(i) and (ii) by adding the phrase “or Tribe” to follow the word “State.”

To conform the regulation to current law as amended in this section, we updated several statutory references. In particular we amended: Paragraph (c)(1) by replacing the citation to section “422(b)(10)(B)(i)” with “422(b)(8)(A)(i)”; paragraphs (c)(2)(i) through (v) by replacing the citation to section “422(b)(10)(B)(ii)” with “422(b)(8)(A)(ii)”; paragraph (c)(5) by removing the citation to section “422(b)(10)(B)(iii)” and replacing it with “422(b)(8)(A)(iii)”; paragraph (c)(7)(iv) by removing the citation to section “422(b)(9)” and replacing it with “422(b)(7)”; and, paragraph (c)(7)(v) by removing the citation to section “422(b)(12)” and replacing it with “422(b)(10).” Further, we are amending one regulatory reference that we have discovered is incorrect. In paragraph (c)(6)(i) we are replacing the reference to 45 CFR 1357.15(l)(4) to the correct reference to the title IV-B consultation requirements in 45 CFR 1357.15(l)(3).

Section 1355.34(d)—Availability of Review Instruments

This paragraph describes the availability of review instruments to those subject to CFSRs. We made a conforming amendment in paragraph (d)

to apply the section to a Tribal title IV-E agency in the same way it is applied to a State title IV-E agency by removing the word “States” from the phrase “make available to States” and replacing it with the term “title IV-E agencies.” Therefore, review instruments will be made available to both States and Indian Tribes that are subject to the CFSR.

Section 1355.35—Program Improvement Plans

This section describes the requirements for developing, implementing and reviewing program improvement plans and for providing technical assistance to a title IV-E agency in implementing the program improvement plans. It implements the requirement in section 1123A(b)(4) of the Act that a title IV-E agency found not to be in substantial conformity be afforded the opportunity to develop and implement a corrective action plan. These plans are termed PIPs and are developed through a partnership between the title IV-E agency and ACF. In addition to the changes described below, we added a statement after paragraph (f) indicating that the information collection requirements in this section have been approved by OMB and providing the applicable OMB Control Number.

Section 1355.35(a)—Mandatory Program Improvement Plan

This paragraph describes the requirement that a PIP must be developed jointly by the title IV-E agency and Federal staff when the title IV-E agency is not in substantial conformity, and describes the content requirements for the PIPs. In paragraph (a) we made several conforming amendments to apply the regulatory requirements of the mandatory PIPs to a Tribal title IV-E agency in the same way they are applied to a State title IV-E agency. Specifically, we removed the references to “State”, “States” and “State's” and replaced them with “title IV-E agency,” “title IV-E agencies” and “title IV-E agency's” in paragraphs (a)(1), (a)(1)(i), (a)(1)(ii), (a)(1)(v) and (a)(2). We also amended paragraph (a)(1)(iv) by replacing the term “statewide” with “statewide/Tribal.”

Section 1355.35(b)—Voluntary Program Improvement Plan

This paragraph explains the requirements for a voluntary PIP, developed jointly by the title IV-E agency and an ACF Regional Office when the title IV-E agency is in substantial conformity but elects to develop a plan to target areas in need of improvement. In paragraph (b) we made several conforming amendments to apply the regulatory provisions for voluntary PIPs to a Tribal title IV-E agency in the same way they are applied to a State title IV-E agency by removing the references to “States” “State” and “State's” and replacing them with “title IV-E agencies,” “title IV-E agency” and “title IV-E agency's” in paragraphs (b), (b)(1) and (b)(3), respectively.

Section 1355.35(c)—Approval of Program Improvement Plans

This paragraph outlines the requirements for the approval of a mandatory PIP by ACF, and sets a 90-day timeline for the initial submission of the PIP with a 30-day timeline for the resubmission of a plan in need of revision to meet the approval requirements, as well as when ACF will begin to withhold funds. In paragraph (c) we made several conforming amendments to apply the regulatory requirements which govern PIPs to a Tribal title IV-E agency in the same way they are applied to a State title IV-E agency by removing the references to “State” and replacing them with “title IV-E agency” in paragraphs (c)(1), (c)(3) and (c)(4).

Section 1355.35(d)—Duration of Program Improvement Plans

This paragraph describes ACF's authority for establishing time frames, not to exceed two years, for the completion of PIPs, extensions of deadlines, the required title IV-E agency quarterly status reports to ACF. In paragraph (d) we made several conforming amendments to apply these regulatory requirements to a Tribal title IV-E agency in the same way they are applied to a State title IV-E agency by removing the references to “State” and replacing them with “title IV-E agency” in paragraphs (d)(3) and (d)(4).

Section 1355.35(e)—Evaluating Program Improvement Plans

This paragraph outlines the requirements for the joint evaluation of a PIP by the title IV-E agency and ACF and the ability to jointly renegotiate a PIP, as applicable. We made several conforming amendments to apply these regulatory requirements to a Tribal title IV-E agency in the same way they are applied to a State title IV-E agency by removing the references to “State” and “State's” and replacing them with “title IV-E agency” and “title IV-E agency's” respectively in paragraphs (e), (e)(1) through (e)(4) and (e)(4)(i). We also amended paragraph (e)(1) and (e)(4)(i) by replacing the term “statewide” with “statewide/Tribal service area” to precede “data indicators” as they are applied equally to State and Tribal title IV-E agencies.

Section 1355.35(f)—Integration of Program Improvement Plans With CFSP Planning

This paragraph describes the requirement that the elements of the PIP be incorporated into the goals and objectives of the CFSP and the annual reviews and progress reports related to the CFSP. In paragraph (f) we made a conforming amendment to apply the regulatory requirements for integrating PIPs into CFSPs to a Tribal title IV-E agency in the same way they are applied to a State title IV-E agency by removing the reference to “State's” and replacing it with “title IV-E agency's.”

Section 1355.36—Withholding Federal Funds Due to Failure To Achieve Substantial Conformity or Failure To Successfully Complete a Program Improvement Plan

This section describes the pool of funds that are subject to withholding and the process for withholding Federal funds due to the failure of the title IV-E agency to meet the CFSR criteria for substantial conformity. The provisions address the method we use to determine the amount of funds to be withheld and the conditions under which such withholding may be applied, or if applicable, suspended or terminated.

We made several conforming amendments to apply the regulatory requirements for withholding funds to a Tribal title IV-E agency in the same way they are applied to a State title IV-E agency by removing all references to “State”, “States” and “State's” and replacing them with “title IV-E agency”, “title IV-E agencies”, and “title IV-E agency's” respectively in paragraphs (a)(1) and (2), (b), (b)(1) through (4), (b)(4)(i) and (ii), (b)(6), (b)(7), (b)(7)(iii), (b)(8), (b)(8)(iii), (c)(1), (c)(1)(ii), (d), (e)(1), (e)(2)(i), (e)(2)(iii), and (e)(3) through (5).

We made a technical amendment to paragraph (e)(5) to reflect changes in regulatory citations by deleting the current citation and replacing it with “45 CFR 30.18.” On March 8, 2007 HHS issued a final rule that implemented the provisions of the Debt Collection Improvement Act of 1996 (72 FR 10404). The rule on interest, penalties and administrative costs was removed from 45 CFR 30.13 and codified at 45 CFR 30.18.

Section 1355.37—Opportunity for Public Inspection of Review Reports and Materials

This section requires the title IV-E agency to make all statewide or Tribal

assessments, reports of findings, and PIPs available for public review. In this paragraph we made a conforming amendment to apply the regulatory requirements related to making these documents available to the public to a Tribal title IV-E agency in the same way they are applied to a State title IV-E agency by removing the reference to “State” and replacing it with “title IV-E,” and by adding the phrase “or Tribal” before “assessment.”

Section 1355.38—Enforcement of Section 471(a)(18) of Act Regarding the Removal of Barriers to Interethnic Adoption

This section implements the provisions of sections 474(d)(1) and (2) of the Act, which contain enforcement provisions regarding the requirements in section 471(a)(18) of the Act. Section 471(a)(18) of the Act prohibits a title IV-E agency, or any other entity in the State/Tribe that receives Federal funds and is involved in adoption or foster care placements, from denying an individual the opportunity to foster or adopt on the basis of the child's or the prospective parent's race, color or national origin, or delay or deny a child's placement in foster care or adoption on that basis. Section 1355.38 describes the existing process for addressing an identified violation of section 471(a)(18) of the Act by a title IV-E agency, including corrective action plans and withholding. This process includes collaboration with the Department's Office for Civil Rights (OCR) due to its significant expertise in investigating alleged civil rights violations including involvement in the development and implementation of corrective action plans. We want to note that section 471(a)(18) of the Act does not affect how ICWA applies.

With the exception of paragraph (d), where no changes were necessary, we made amendments to apply the regulatory requirements related to violations of section 471(a)(18) of the Act to a Tribal title IV-E agency in the same way they are applied to a State title IV-E agency in each paragraph. We accomplished this by removing the references to “State”, “States” and State's” in each place those terms appeared and replacing them with “title IV-E”, “title IV-E agencies” and “title IV-E agency's” respectively. We also added the word “Tribe” to the phrase “an entity in the State” in paragraph (a)(2).

We made a technical amendment to paragraph (h)(4) to reflect changes in regulatory citations by deleting the current citation and replacing it with “45 CFR 30.18.” On March 8, 2007 HHS issued a final rule that implemented the provisions of the Debt Collection Improvement Act of 1996 (72 FR 10404). The rule on interest, penalties and administrative costs was removed from 45 CFR 30.13 and codified at 45 CFR 30.18.

In addition to the change described above, we added a statement following the end of paragraph (h) providing that the information collection requirements in this section have been approved by the Office of Management and Budget (OMB) and provide the applicable OMB Control Number.

Section 1355.39—Administrative and Judicial Review

Section 1355.39 describes the administrative and judicial review requirements applicable to a title IV-E agency if the agency appeals a finding of non-conformity with title IV-E or IV-B plan requirements.

We amended section 1355.39 in the opening paragraph of the section and paragraphs (b) and (c) to replace the term “State” with “title IV-E agency” pursuant to Public Law 110-351. In doing so, we apply the appeal procedures for title IV-E agencies in 45 CFR Part 16 equally to State and Tribal title IV-E agencies. The term “title IV-E agency” is inclusive of both State and Tribal programs with a plan approved pursuant to section 471(a) of the Act.

Part 16 allows a title IV-E agency to file an appeal related to the operation of the title IV-B and IV-E programs to the HHS Departmental Appeals Board (DAB). The DAB is authorized to review disputes in HHS programs (45 CFR Part 16 Appendix A). The DAB specifically has jurisdiction over disputes arising from title IV-E disallowances, and title IV-B and IV-E withholding determinations. In accordance with section 1123A(c)(3) of the Act, we provide a title IV-E agency with the opportunity to appeal DAB decisions in the district court for the judicial district in which the principal or headquarters office of the agency responsible for administering the program is located.

Section 1355.40—Foster Care and Adoption Data Collection

Section 1355.40(a)—Scope of the Data Collection System

Paragraph 1355.40(a) describes the scope of the data collection system and the reporting populations that each title IV-E agency is to include in submissions to ACF. The system is called AFCARS.

We made several conforming amendments to apply the regulatory requirements for data collection and reporting to a Tribal title IV-E agency in the same way they are applied to a State title IV-E agency either by removing references to “State”, “States” and “State's” and replacing them with “title IV-E agency”, “title IV-E agencies”, and “title IV-E agency's” respectively, or by adding a similar provision for a Tribal title IV-E agency.

In paragraph (a)(1) we removed specific dates when States were to begin collecting and transmitting data after the original AFCARS final rule (58 FR 67912) was issued in 1993 because they are obsolete. We believe that because these changes are technical in nature there is no need to go through the notice and comment process to update the regulation. An Indian Tribe will begin collecting and transmitting AFCARS data after we approve the Indian Tribe's title IV-E plan, so the specific date will vary among Tribal title IV-E agencies.

In paragraphs (a)(2) and (a)(3) we added a requirement for children in an Indian Tribe's placement and care responsibility and children placed for adoption that is similar to the State requirement in paragraphs (a)(2) and (a)(3). For children in the Tribal title IV-E agency's placement and care responsibility or who are placed in foster care or for adoption and who are placed outside of the Tribal service area, the Indian Tribe placing the child and making foster care payments or adoption assistance payments must submit and continually update the data for each such child.

Section 1355.40(b)—Foster Care and Adoption Reporting Requirements

Paragraph (b) describes the requirements for transmitting foster care and adoption data, including timelines for submission, child-specific data requirements, summary file requirements and internal data consistency checks. We made several conforming amendments to apply the regulatory requirements for foster care and adoption reporting requirements to a Tribal title IV-E agency in the same way they are applied to a State title IV-E agency either by removing references to “State”, “States” and “State's” and replacing them with “title IV-E agency”, “title IV-E agencies”, and “title IV-E agency's” respectively, or by adding a similar provision for a Tribal title IV-E agency.

Section 1355.40(c)—Missing Data Standards

Paragraph (c) describes what we consider to be missing data, which is a factor in determining compliance with the AFCARS requirements. We are amending paragraph (c)(2) and

removing (c)(3) to remove obsolete references to a financial penalty as a consequence of an agency exceeding the threshold for missing data. In the case of paragraph (c)(2) we removed the reference to an obsolete penalty in paragraph (c)(3) and modified the language to accurately state that exceeding the missing data threshold is considered substantial noncompliance. We also completely removed paragraph (c)(3) and its references to penalties as these provisions are obsolete. Enactment of the Adoption Promotion Act of 2003 (Pub. L. 108-145), which added section 474(f) to the Act superseded these penalties in regulation, rendering them obsolete. We indicated in ACYF-CB-IM-04-04 that no penalties would be assessed until we issue revised final AFCARS regulations, yet to be published. In the interim, a title IV-E agency that exceeds the missing data threshold or any other AFCARS standard has an opportunity to correct its data, and failing that receives a notice that it is not in compliance. We believe that because these changes are technical in nature there is no need to go through the notice and comment process to update the regulation.

We find proposed rulemaking for these technical amendments to bring the regulation in line with existing practice impracticable and unnecessary since they are not substantive. States have not been subject to penalties for some time and Tribal title IV-E agencies will not be subject to these penalties until new regulations state otherwise. Moreover, we believe that delaying rulemaking on these technical amendments would be contrary to the public interest since doing so would cause significant confusion about the statutory and regulatory provisions which Indian Tribes must abide by in implementing the title IV-E program for the first time. Rather, it is prudent to change the regulation now to conform to existing practice so that States and Indian Tribes have an equal understanding that there is not an existing financial penalty being implemented due to noncompliance with AFCARS requirements. Therefore, we find good cause to include these technical amendments, and similar ones described below, in this interim final rule.

Section 1355.40(d)—Timeliness of Foster Care Data Reports

In paragraph (d) we renumbered paragraph (d)(1) as (d) and amended it to indicate that, in accordance with current policy, a title IV-E agency that does not meet the threshold for timely transaction date entries will be found in substantial noncompliance. We removed paragraph (d)(2), in its entirety because it references paragraph (e) regarding penalties for missing data, which is obsolete. We believe that because this change is technical in nature there is no need to go through the notice and comment process to update the regulation.

Section 1355.40(e)—Substantial Noncompliance

In paragraph (e) we describe what constitutes substantial noncompliance with the AFCARS requirements. We renamed the title “Substantial Noncompliance” as opposed to “Penalties” and removed the second sentence of paragraph (e)(1) that discussed penalties. We deleted paragraphs (e)(2), (3), (4), and (5) and renumbered paragraph (e) accordingly. All of the changes to this paragraph were to bring the regulation in line with the current practice which does not penalize a title IV-E agency for noncompliance with the AFCARS standards, as discussed previously.

In addition to the changes described above, we added a statement after the end of paragraph (e) providing that the information collection requirements in this section have been approved by the OMB and providing the applicable OMB Control Number.

Section 1355.50—Purpose of This Part

Section 1355.50 describes the procedures and requirements a title IV-E agency must meet to receive Federal financial participation for the automated child welfare information system.

We amended section 1355.50 to make a conforming change by replacing the term “States” with “title IV-E agencies” to comply with Public Law 110-351 which permits Indian Tribes pursuant to an approved plan under title IV-E to operate a title IV-E program directly. We added “or Tribal” to follow reference to the “statewide” system to be inclusive of Tribal systems. Consequently, this conforming amendment applies the regulatory requirements to receive Federal financial participation for the planning, design, development, installation and operation of automated child welfare information systems equally to States and Indian Tribes operating title IV-E programs.

Section 1355.52—Funding Authority for Statewide or Tribal Automated Child Welfare Information Systems (SACWIS/TACWIS)

Section 1355.52 describes the requirements a title IV-E agency must follow to claim Federal reimbursement for automated child welfare information system expenditures at the 50 percent match rate.

We amended the title to section 1355.52 to include a reference to “Tribal” automated child welfare systems and the accompanying acronym “TACWIS” within the parenthesis. We also amended paragraphs (a), (a)(1) and (b) to make conforming changes by replacing the term “States” or “State” with “title IV-E agencies” and “title IV-E agency” respectively. We similarly added reference to a “Tribal” automated information system to accompany references to a “State” or “statewide” automated system in paragraphs (a) and (a)(3) and removed the word “State” that preceded “plan” in paragraph (a)(4). These conforming changes apply the regulatory provisions for a title IV-E agency to claim Federal Financial Participation (FFP) for expenditures related to planning, designing, developing, and installing a child welfare information system at the 50 percent rate equally to States and Indian Tribes, as required by Public Law 110-351.

In response to the FR notice that solicited comments, we received questions regarding funding for the initial development of an automated child welfare information system. Previously, States were eligible to receive 75% Federal match for the initial development costs of a SACWIS as was reflected in the provision in paragraph (a). However, the statutory authority for that higher level of match expired several years ago and there is no other statutory authority for an enhanced match for automated systems development costs for any title IV-E agency, State or Tribal. To avoid confusion and accurately reflect existing law, we are making a technical change to remove the obsolete reference to a 75% rate for development of a SACWIS. We believe that because this change is technical in nature there is no need to go through the notice and comment process to update the regulation.

Section 1355.53—Conditions for Approval of Funding

Section 1355.53 describes the requirements a title IV-E agency must follow in designing, developing, and operating an automated child welfare system to receive funding for the system.

We amended paragraphs (b)(2), (b)(3), (e), and (f) to make conforming changes by replacing the term “State”, “States”, “State agency” and “State agencies” with “title IV-E agency” or “title IV-E agencies” to apply the SACWIS conditions for funding to a Tribal title IV-E agency in the same way they are

applied to a State title IV-E agency, as required by Public Law 110-351. In addition, we made additional conforming amendments to this section for the same reasons. Specifically, we amended paragraph (a) to make a conforming change to add the acronym “TACWIS” to follow “SACWIS” and to remove the term “State” before “plan.” These conforming changes apply the advance planning document (APD) requirements a title IV-E agency must follow to receive funding for its automated child welfare system equally to States and Indian Tribes. Similarly, in paragraph (b)(2) we added “or Tribe” to follow the reference to a “State” so that it is clear that Tribal automated systems should have electronic exchanges and referrals with other Tribal systems such as TANF and child support, as appropriate. In paragraph (b)(3), we added a parenthetical provision that indicates that for Indian Tribes, the automated system is to support the collection of data across the Tribal service area on children in foster care, which parallels the provision that States have statewide data that supports the same. In paragraph (g) we inserted the term “and where applicable, Tribal standards” after “State standards” to apply the existing requirement that the automated system must perform Quality Assurance functions related to compliance with State and Federal standards equally to Tribal standards where applicable.

Section 1355.54—Submittal of Advance Planning Documents

Section 1355.54 requires that the APD be signed by the appropriate official, in accordance with procedures specified in 45 CFR part 95, subpart F.

We amended section 1355.54 to make conforming changes by removing the two references to “State” to apply equally the requirement that the title IV-E agency submit an APD for an automated system signed by the appropriate official to Tribal and State title IV-E agencies, as required by Public Law 110-351.

Section 1355.55—Review and Assessment of the System Developed With Enhanced Funds

Section 1355.55 explains the process for the review and assessment of the automated child welfare information system. Such a review is conducted to determine the extent to which the system meets the functionality requirements, the approved APD and the requirements of 45 CFR part 95, subpart F. More details on the assessment are available in a review guide accessible at
http://www.acf.hhs.gov/programs/cb/systems/sacwis/sacwisreviewguide/sacwisreviewguide_08.pdf
.

We amended section 1355.55 to make a conforming change by adding the acronym “TACWIS” to follow “SACWIS” to apply the same ACF review and assessment process to both Tribal and State title IV-E systems.

In addition to the change described above, we added a statement after the end of paragraph (b) providing that the information collection requirements in this section have been approved by the OMB and providing the applicable OMB Control Number.

Section 1355.56—Failure To Meet the Conditions of the Approved APD

Section 1355.56 discusses the conditions in which an APD can be suspended and describes the suspension process.

We amended section 1355.56 in paragraphs (a), (b)(1), (b)(1)(iv), (b)(2) and (b)(4) to make conforming changes by replacing the term “State agency” with “title IV-E agency” to comply with Public Law 110-351. These conforming changes in section in 1355.56 apply the conditions in which an APD can be suspended and the suspension process equally to States and Tribal IV-E agencies.

Section 1355.57—Cost Allocation

Section 1355.57 discusses the cost allocation requirements for SACWIS/TACWIS administrative costs claimed under title IV-E.

We amended section 1355.57 in paragraphs (a) and (b) by replacing a reference to “State” with “title IV-E agency,” by replacing references to “State plan” with “title IV-E plan,” and by adding the acronym “TACWIS” after “SACWIS” to comply with Public Law 110-351. We also updated the citation for section 474(e) to section 474(c) of the Act. These conforming changes in section 1355.57 apply the cost allocation conditions for SACWIS/TACWIS administrative costs equally to States and Tribal title IV-E agencies.

We want to note that the Department of the Interior, not HHS, is the cognizant agency for cost allocation for Indian Tribes. However, ACF still retains authority for guiding the allocation and documentation of title IV-E costs pursuant to section 1356.60 and 2 CFR 225. As such, we issued guidance including ACYF-CB-PI-10-13 (issued on November 23, 2010) on how Indian Tribes can develop appropriate cost methodologies, including the allocation for TACWIS administrative costs and ACYF-CB-PI-09-11 (issued on September 17, 2009) which discusses conditions for obtaining Federal financial participation (FFP) by Indian Tribes for automated information technology projects including a TACWIS.

Appendices to Part 1355

Section 1355.40 includes references to appendices that identify the data elements, definitions, format standards and error standards for AFCARS.

We amended Appendices A through E to replace many of the references to “State”, “State agency” or “title IV-B/IV-E State agency” with “title IV-E agency” so that the related AFCARS provisions are applied equally to States and Indian Tribes operating title IV-E programs, pursuant to Public Law 110-351. We further amended the appendices as discussed in more detail below.

Appendix A to Part 1355—Foster Care Data Elements

Appendix A outlines the definitions and instructions for the foster care data elements a title IV-E agency is required to collect.

We added the variant “/Tribal service area” to the description of the data element “Is Current Placement Out-of-State?” and its response options in section I, V.B so that where applicable, Indian Tribes can report to AFCARS whether a child is placed inside or outside of the Tribal service area as defined under sections 471(a)(3) and 479B(c)(1)(B) of the Act. This is a parallel option to that for a State which must indicate whether a child's current placement is intra- or interstate. Here we slightly modified this data element because a Tribal title IV-E agency must operate the title IV-E program in a Tribal service area. Therefore, a Tribal title IV-E agency reporting whether a child in its placement and care responsibility was placed in- or out-of-State would not provide us with meaningful information in this context. The service area of an Indian Tribe may be incongruent with a State's geographical lines. Therefore, we developed a similar concept that is specific to a Tribal title IV-E agency to meet the law's mandate that title IV-E requirements apply equally to Indian Tribes pursuant to Public Law 110-351. We also amended Section II, Reporting population, to replace the obsolete citation to section “422(b)(10)” with section “422(b)(8)” to reflect the existing statutory child protections. We believe that because this change is technical in nature there is no need to go through the notice and comment process to update the regulation.

In section II, I.A. we amended the instruction by renaming it Title IV-E agency and clarifying that an Indian Tribe submitting the report will use an abbreviation provided by ACF rather than a U.S. Postal Service abbreviation. We had to modify this requirement to address a Tribal title IV-E agency because the Tribal service areas do not correspond to State geographical areas. Further, we need a separate naming convention so that we can distinguish between AFCARS reports that come in from States and Indian Tribes. ACF will provide each Tribal title IV-E agency with an appropriate abbreviation or code to report in this data element outside of the regulatory process. Similarly, in section II, I.C. we amend the instruction for the data element “local agency” to permit a Tribal title IV-E agency to use an ACF-provided code other than a Federal Information Processing Standard (FIPS) as a representation of the local agency which has responsibility for the child's foster care case. The FIPS five digit codes that States use for AFCARS standards were originally designed by the National Institute of Standards and Technology to correspond to county jurisdictional lines, which would not accurately reflect Tribal service areas. Again, ACF will provide the Tribal title IV-E agency with an appropriate code that represents the local agency with responsibility for the child's case.

In section II, V.A., we amended the description related to the data element “Identify the type of setting in which the child currently lives.” We amended the definitions of “Foster Family Home (Relative)” and “Foster Family Home (Non-Relative)” to remove the phrase “State” and replace it with “title IV-E agency” to indicate that a foster family home is one regarded by either a State or Tribal title IV-E agency as a foster care living arrangement. We also amended the definition of “Trial Home Visit” to remove the phrase “State agency supervision” and replace it with “title IV-E agency supervision” to indicate that a child that has been in a foster care placement under State or Tribal title IV-E agency supervision, but has been returned to the principal caretaker for a limited and specified period of time, is in a trial home visit placement.

In section II, V.B., we amended the description related to the data element “Is current placement setting outside of the State?” We added the phrase “or Tribal service area” to the element names and its response options so that where applicable, Indian Tribes can report to AFCARS whether a child is placed inside or outside of the Tribal service area as defined under the section 471(a)(3) of the Act. This is the same change as the one made earlier in section I, V.B. We made a similar change in section II, X.B. related to the “transfer to another agency” response option for the element “Reason for discharge.” In that provision we added language to clarify that the title IV-E agency is to indicate that the reason for discharge is transfer to another agency when the responsibility for the care of the child was awarded to another agency in or outside of the State “or Tribal service area.”

In section II, XI. we amended the description related to the data element “Source(s) of Federal Support/Assistance for Child.” We amended the definition of “None of the Above” to remove the phrase “State” and replace it with “title IV-E agency” so that Tribal title IV-E agencies can report if a child is receiving support only from the Tribal title IV-E agency.

We consider all of these as conforming changes that apply AFCARS requirements to a Tribal title IV-E agency in the same manner as they are applied to States.

Appendix B to Part 1355—Adoption Data Elements

In Appendix B we provide definitions and instructions for the title IV-E agency reporting of adoption data elements.

We amended section I to add the variant “/Tribal service area” to the description of the responses to the “Child was placed from” data element described in section I, VII.A so that where applicable, Indian Tribes can report to AFCARS whether a child is placed for adoption inside or outside of the Tribal service area as defined under the section 471(a)(3) of the Act. This is the same change made for the same reasons as the one described earlier for the foster care data element related to child placement. We amended the question portion of section I, III.A to remove the phrase “State child welfare agency” and replace it with “title IV-E agency” to indicate that both State and Tribal title IV-E agencies are to report to AFCARS whether the agency determined if the child has special needs. We also amended the title of section I, VIII by removing the reference to “Federal/State” from “Financial Adoption Support.” This change will require both State and Tribal title IV-E agencies to report on monthly financial adoption subsidies being paid on behalf of a child.

We also amended section II, to add language to the Reporting Population section and in the following paragraph (b), to include children in a Tribal title IV-E agency's service area who are adopted and whom the agency has had some involvement in the adoption as within the scope of the reporting population. This added language parallels the scope of the adoption reporting population for a State title IV-E agency and therefore implements the requirement that the same title IV-E requirements apply to Indian Tribes and States per Public Law 110-351. We further made a technical change to the reporting population section to remove a sentence that instructed States to report all adoptions which occurred on or after October 1, 1994. We removed this instruction because it imposed a requirement related to the initial implementation of AFCARS in 1993; now obsolete. We believe that because this change is technical in nature there is no need to go through the notice and comment process to update the regulation.

The title IV-E agency must include in the AFCARS adoption file all children adopted with the involvement of the title IV-E agency, at the time of their adoption, as indicated in the remaining provisions of the reporting population section. Finally, in the same paragraph we revise language that suggested that financial penalties were a consequence of failure to report information on adoptions. As explained elsewhere, there are no financial penalties in effect at this time. Therefore, we have replaced the language with a provision that explains that a finding of noncompliance is the consequence for a title IV-E agency not reporting to AFCARS information on all adoptions in the reporting population.

We amended section II, I.A. to provide for a Tribal title IV-E agency to submit a two-digit abbreviation provided by ACF as opposed to the Postal Service abbreviation used by States. This is the same amendment made to the similar element found in the foster care file addressed previously. We also amended section II, I.D. related to the question “Did the title IV-E agency have any involvement in this adoption?” The element requires the title IV-E agency to indicate how it was involved in the child's adoption for children in the reporting population. We amended the question by changing “State” to “title IV-E” and the instruction to include children who are in the placement and care responsibility of the title IV-E agency who are adopted “in the service area” of the Indian Tribe. This parallels State reporting of children within their placement and care responsibility who are adopted in the State. This is a conforming change that

applies the AFCARS requirements to Indian Tribes in the same manner as they are applied to States, as required by Public Law 110-351.

Section II, IV.B describes the adoption data element “Was the mother married at the time of the child's birth?” We amended this description to define marriage for the purposes of this data element to include situations of common law marriage if it is legal in the Indian Tribe, in addition to those situations in which it is legal in the State. This is a technical change that allows Indian Tribes to report common law marriage as with States.

Section II, VII.A and B describe two data elements related to from where a child was placed for adoption and who the child was placed by for adoption. In the first element, we amended the response options so that references to adoptions that occur “within State” and “another State” include the alternatives “within Tribal service area” and “another Tribal service area.” These response options are to be used by the Tribal title IV-E agency as appropriate to indicate when children are placed for adoption with a family that is considered either within the service area or outside of the service area as defined in section 471(a)(3) of the Act. As with other conforming changes, this allows Indian Tribes to report AFCARS data in a similar manner to States. The second element describes a Tribal agency as a unit within one of the federally-recognized Indian Tribes or Indian Tribal organizations. We amended this response option to be inclusive of Tribal consortia to conform to Public Law 110-351 which permits Tribal consortia to operate a title IV-E plan.

In section II, VIII.A we amended the title of the section and the data element instruction regarding whether a child is receiving a monthly subsidy. We removed reference in the title to “State/Federal” adoption support and left it broad so it can be inclusive of Tribal adoption support. Similarly, we amended the instruction for the response option so that Indian Tribes can report whether the child was adopted with an adoption assistance agreement under which regular “Tribal” subsidies are paid in addition to Federal or State subsidies. This change is conforming in nature as it allows a Tribal title IV-E agency to report the same type of information as a State as required by Public Law 110-351; whether the Indian Tribe is providing adoption subsidies that are supported with their own funds, or with Federal funds.

Appendix C to Part 1355—Electronic Data Transmission Format

In Appendix C, we describe the transmission criteria that must be met by each title IV-E agency. We amended Appendix C to replace “State agency” and “States” with “title IV-E agency” and “title IV-E agencies.”

In order to meet the transmission criteria, the regulation offers as much flexibility as possible to negotiate a method of transmission best suited to the title IV-E agency's environment. This language allows ACF and Tribal title IV-E agencies greater flexibility regarding electronic data exchange and secure transmission protocols and standards for the transmission of AFCARS data files through AFCARS Technical Bulletins, rather than regulation. States transmit the AFCARS data using a secure data transfer connection between the State's information system and the Federal system. While an Indian Tribe may be able to submit data electronically using a similar software program, we also learned through discussions and consultations with Indian Tribes in the Spring 2009 that some Indian Tribes have limited technical resources with which to develop or upgrade a data reporting system and face technological barriers to submitting data through an electronic data exchange, including limited access to software and systems that will transmit data. We believe that the inability to transmit data via data transfer software should not be a barrier to Tribal operation of a title IV-E program, and that this section allow us flexibility regarding electronic data exchange. We will work with Tribes and prescribe alternative secure transmission protocols and standards for the transmission of AFCARS data files through AFCARS Technical Bulletins. We also will provide technical assistance to Indian Tribes in order to assist in building the capacity of Indian Tribes to submit AFCARS data files via a direct file transfer in accordance with Appendix C and 1355.40(b).

We removed the description of four methods for electronic data exchange that were in operation at HHS at the time the Appendix was issued in 1993 because the methods are now obsolete. We believe that because this change is technical in nature there is no need to go through the notice and comment process to update the regulation.

Further, we amended Appendix C to clarify that the four criteria for data submissions apply to a Tribal title IV-E agency in the same manner they apply to a State title IV-E agency consistent with Public Law 110-351, regardless of whether a Tribal title IV-E agency transmits data in an electronic or non-electronic file in accordance with 1355.40(b). The four criteria which remain in the regulation are: (1) Records must be written using ASCII standard character format; (2) all elements must be comprised of integer (numeric) value(s); (3) all records must be a fixed length; and, (4) all State and Tribal title IV-E agencies must inform the Department, in writing, of the method of transfer they intend to use.

Appendix D to Part 1355—Foster Care and Adoption Record Layouts

Appendix D outlines the detailed record layouts for the AFCARS files.

We amended Appendix D to incorporate the changes previously discussed in Appendices A through C that affect the record layout. These changes include replacing references to “State” with “Title IV-E agency,” adding language that indicates whether a placement for adoption or foster care is in or out of the “Tribal service area,” and adding language that allows a Tribal title IV-E agency to submit a two-digit abbreviation provided by ACF as opposed to the Postal Service abbreviation used by States.

Appendix E to Part 1355—Data Standards

Appendix E outlines the four types of assessments which are conducted on the foster care and adoption data submissions to determine the completeness and internal consistency of the data.

We amended Appendix E throughout to replace references to “State” with “Title IV-E agency” and added language that indicates whether a placement for adoption or foster care is in or out of the “Tribal service area.”

In section A.2.a.(1) we amend the instruction for the data element “Local Agency” and the summary file to permit a Tribal title IV-E agency to use an ACF-provided code other than a FIPS as a representation of the local agency which has responsibility for the child's foster care case.

We also amended Appendix E to remove references to the penalty provisions in section 1355.40(e) because they are obsolete as discussed previously, and replaced such provisions with language that indicates that the results of the assessments determine whether a title IV-E agency is in substantial compliance with the AFCARS requirements. We believe that because these changes are technical in nature that there is no need to go through the notice and comment

process to update the regulation accordingly.

Appendix F to Part 1355

Appendix F contained a chart that indicated the State allotments of incentive funds in 1993. These allotments were the basis for fiscal penalties for substantial noncompliance with AFCARS requirements. We have deleted Appendix F in its entirety because as explained previously the penalty structure in the regulations is no longer in use.

Part 1356—Requirements Applicable to Title IV-E

Section 1356.10—Scope

This section indicates the scope of the part 1356 rules as applicable to the title IV-E programs for foster care, adoption assistance and independent living.

We amended this section to replace “State” with “title IV-E agency” pursuant to Public Law 110-351 to apply the title IV-E program equally to States and Indian Tribes directly operating a title IV-E program.

Section 1356.20—Title IV-E Plan Document and Submission Requirements

This section outlines the process for submission and approval of title IV-E plans under section 471 of the Act.

We amended section 1356.20 in paragraphs (a), (b), (c) and (d) (as renumbered) by deleting all references to “State” and “State plan” and replacing them with “title IV-E agency” and “title IV-E plan” respectively, to apply the title IV-E program equally to States and Indian Tribes directly operating a title IV-E program pursuant to Public Law 110-351. We made additional changes to these paragraphs to remove obsolete references, conform to Public Law 110-351 or make technical corrections as follows. We believe that because these changes are technical in nature there is no need to go through the notice and comment process to update the regulation accordingly.

We amended paragraph (a) to specify that Indian Tribes directly operating a title IV-E program must have a plan approved by the Secretary that meets the requirements of section 479B(c) of the Act, in addition to the requirements of 45 CFR part 1355 and section 471(a) of the Act. This additional citation to section 479B(c) of the Act is necessary since Public Law 110-351 specifies some unique criteria for Tribal title IV-E programs only.

We removed an obsolete reference in paragraph (b) to penalties described in 45 CFR 1355.40(e) for AFCARS (see more discussion related to this provision in the section by section description of 45 CFR 1355.40(e)). We believe that because this change is technical in nature there is no need to go through the notice and comment process to update the regulation.

We deleted paragraph (c) because it contained references to outdated statutory provisions regarding voluntary foster care placements. Although these citations have been removed, both State and Tribal title IV-E agencies still have the option to provide title IV-E for eligible children voluntarily placed into foster care pursuant to section 472(a)(2)(A)(i) of the Act. Therefore, this is a technical change only. We renumbered paragraphs (d) and (e) as (c) and (d) accordingly.

We made various technical changes to renumbered paragraph (c) to clarify the Tribal official who has the authority to sign the title IV-E plan. States must have the governor or his or her designee review and submit the title IV-E plan. We added a parallel provision for Indian Tribes to authorize the Tribal leader or his or her designee to review and submit the plan in paragraph (c)(2). This is consistent with the law's requirement to apply title IV-E requirements equally to States and Indian Tribes. We also amended paragraph (c)(4) because it is obsolete. ACYF is authorized to approve title IV-E plans consistent with our most recent functional statement of organization rather than the ACF Regional Administrator (see 71 FR 59117-59123, 10/06/06). We believe that because this change is technical in nature there is no need to go through the notice and comment process to update the regulation. Further, we amended paragraph (c)(8) to apply the requirements for effective dates of a new title IV-E plan equally to States and Indian Tribes. As such, in the case of an Indian Tribe that directly operates a title IV-E program, the effective date for expenditures made may not be earlier than the first day on which the plan is in operation in the Indian Tribe's entire service area. This is a comparable requirement to the one in existence for States: Expenditures cannot be made earlier than the first day the plan is in operation on a statewide basis.

One commenter requested that an Indian Tribe that directly operates a title IV-E program be able to start a title IV-E program in any quarter of a fiscal year. This is allowable if the Indian Tribe submits an approvable title IV-E plan to ACF by the end of the calendar quarter. Another commenter requested that Indian Tribes be permitted to operate the foster care maintenance payments program but not the adoption assistance program. The statute at section 471(a)(1) of the Act requires the operation of both the foster care and adoption programs under title IV-E as mandatory features of the program.

Section 1356.21—Foster Care Maintenance Payments Program Implementation Requirements

This section describes many of the requirements of the foster care maintenance payments program which relate to child eligibility.

We amended section 1356.21 throughout by deleting numerous references to “State agency,” “State plan” and “State” replacing them with “title IV-E agency” or “title IV-E plan” respectively pursuant to Public Law 110-351 to apply the title IV-E program equally to States and Indian Tribes directly operating a title IV-E program. The additional changes we made throughout this section are discussed below.

Section 1356.21(a)—Statutory and Regulatory Requirements of the Federal Foster Care Program

This paragraph states the requirements that apply in general to the title IV-E foster care maintenance payments program. In paragraph (a), for a Tribal title IV-E agency, we added a cross reference to section 479B(c)(1)(C)(ii)(II) of the Act. This statutory provision requires a Tribal title IV-E agency to use the 1996 AFDC eligibility standards in effect in the State of the child's removal for the purposes of title IV-E foster care eligibility. We received comments during consultation that requested some form of relief from this requirement, as many noted that it would be burdensome to an Indian Tribe to become familiar with and apply AFDC eligibility standards from a number of different States. Suggestions included that we establish a national AFDC standard, streamline the AFDC eligibility determination process, and allow a Tribal title IV-E agency to disregard the AFDC income/resource standards or specifically exempt Tribal per capita payments from State AFDC standards. We are unable to deviate from the explicit statutory requirement regarding the process for determining eligibility for AFDC (section 479B(c)(1)(C)(ii)(II) of the Act). The Tribal title IV-E agency must use the 1996 title IV-A plan standards of the State in which the child was residing at the time of removal including those related to income and resources, with only those exceptions provided in law for deviating from those 1996 standards. Specifically, a title IV-E agency must use: The

Federal $10,000 child resources limitation as provided for in section 472(a)(3)(B) of the Act; the State definition of unemployed parent subject to the requirements of 45 CFR 233.101(a)(1) as amended after 1996; and, the Federal restrictions on benefits to certain types of immigrants as provided for in section 401(a) of the Personal Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. 104-193).

Section 1356.21(b)—Reasonable Efforts

This paragraph outlines the statutory requirement at section 471(a)(15) of the Act. We made a technical change to this paragraph to replace the reference to section 472(a)(1) of the Act with the correct citation to section 472(a)(2). At the time that the regulations were originally published, the eligibility requirement for a judicial determination regarding reasonable efforts was located in section 472(a)(1) of the Act. The Deficit Reduction Act of 2005 (Pub. L. 109-171) amended the law and repositioned the reasonable efforts requirement at section 472(a)(2) of the Act. This is a conforming change only to update the statutory reference. We further amended this paragraph to remove the reference to “State” in the statement that a child's health and safety must be the paramount concern in making reasonable efforts. This change applies the requirement equally to States and Indian Tribes pursuant to Public Law 110-351.

A commenter sought clarification on the title IV-E requirements related to reasonable efforts versus the ICWA provisions for active efforts and requested that we explain who is responsible for determining whether the reasonable and active efforts standards are met. The title IV-E foster care eligibility requirement in paragraph (b)(1) mandates that the title IV-E agency obtain a judicial determination to the effect that reasonable efforts were made to prevent a child's removal from the home within 60 days of the child's removal, or a judicial determination that efforts are not required (i.e., making no efforts was reasonable) because one of the conditions in section 471(a)(15)(D) of the Act have been met. Additionally, per paragraph (b)(2) the title IV-E agency must obtain a judicial determination that it has made reasonable efforts to finalize the permanency plan in effect within 12 months of the child's entry into foster care. Whether the State or Tribal title IV-E agency obtains this judicial determination depends on which party has placement and care responsibility for the child at the time it is due. ICWA at 25 U.S.C. 1912(d) requires that any party seeking to effect a foster care placement of, or termination of parental rights to, an
Indian child under State law
(emphasis added) shall satisfy the court that active efforts have been made to provide remedial services and rehabilitative programs designed to prevent the breakup of the Indian family and that these efforts have proved unsuccessful. Here the party responsible for obtaining an active efforts determination is the one making the petition for foster care or other custodial proceedings in a State court. The requirements for reasonable efforts and active efforts are under separate Federal authorities and are not altered or superseded by one another. However, as ICWA is outside ACF's purview, we do not have authority to instruct States and Tribes on how to meet its requirements.

There is no particular language required to satisfy the title IV-E reasonab

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Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/fr%3A2011-32911. Public record. Not legal advice.