Child Welfare Services Program

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Part 1357

RIN AB44

Child Welfare Services Program

AGENCY: Administration on Children, Youth and Families, Administration

for Children and Families, HHS.

ACTION: Notice of proposed rulemaking.

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SUMMARY: We are proposing to amend the regulations governing direct

payments to Indian Tribal Organizations (ITOs) for child welfare

services, by eliminating the requirement that to be eligible ITOs must

provide services under contract (or grant) with the Secretary of the

Interior under section 102 of the Indian Self-Determination Act, and by

adding a description of the formula used to calculate the amount of

Federal funds available to eligible ITOs under title IV-B, Subpart 1 of

the Social Security Act. We believe that complex and limiting

eligibility requirements and low grant amounts have resulted in low ITO

participation rates. The amendment will improve the quality of Indian

child welfare services nationally by broadening eligibility and by

allowing for an increase in grant amounts.

DATES: Comments must be submitted on or before December 19, 1994.

ADDRESSES: Please address comments to Associate Commissioner,

Children's Bureau, Administration on Children, Youth and Families, P.O.

Box 1182, Washington, DC 20013; Attention: Michael Ambrose

Beginning 14 days after the close of the comment period, comments

will be available for public inspection in room 2219, 330 C Street,

SW., Washington, DC 20201, Monday through Friday between the hours of

9:00 a.m. and 4:00 p.m.

FOR FURTHER INFORMATION CONTACT:

Paul Blatt (202) 205-8324.

SUPPLEMENTARY INFORMATION:

I. Program Description and Background

Title IV-B, Subpart 1, of the Social Security Act (the Act), the

Child Welfare Services program, is a formula grant program. Each State

receives a basic grant representing its share of $141 million and is

eligible for a share of incentive funds beyond the basic grant if it

provides certain protections, as required by section 427 of the Act,

for children in foster care. The basic grant and the incentive funds

provide States with Federal support for a wide variety of State child

welfare services including preplacement preventive services to

strengthen families and avoid placement of children, services to

prevent abuse and neglect and services for the provision of foster care

and adoption. The basic grant and incentive funds can be used to

provide services regardless of the income of the families and children

who are in need of such services.

The Child Welfare Services program has been a part of the Social

Security Act (the Act) since the Act's inception in 1935. In 1968,

Congress transferred this program to title IV, part B of the Act

(sections 420-425 of the Act). Historically, title IV-B has provided

Federal grants to States to establish, extend and strengthen child

welfare services. Under this program, services are available to all

children, including the homeless, neglected, dependent and those with

disabilities.

The Adoption Assistance and Child Welfare Act of 1980 (Pub. L. 96-

272) was enacted on June 17, 1980. In addition to amending title IV-B,

Pub. L. 96-272 established a new program, the title IV-E program, which

replaced on October 1, 1982, the title IV-A foster care program in the

States. The law created links between the two programs with numerous

program and fiscal incentives. The impetus behind the passage of Pub.

L. 96-272 was the belief of Congress and most State child welfare

administrators, supported by extensive research, that the public child

welfare system responsible for serving dependent and neglected

children, youth and families had become a receiving or holding system

for children living away from their parents. Congress envisioned in the

new legislation a system that would help families remain together by

assisting parents in carrying out their rules and responsibilities and

providing alternative permanent placement for those children who cannot

return to their own homes.

II. Discussion of 45 CFR 1357.40

Pub. L. 96-272 created section 428 of the Act which provides for

direct payments to certain Indian Tribal Organizations, of funds

authorized under title IV-B for child welfare services to certain ITOs.

Effective June 22, 1983, regulations published at 45 CFR 1357.40

implemented section 428 of the Act, and specified which ITOs are

eligible to receive funds directly and under what circumstances direct

payments should be made available. In determining which ITOs would be

eligible for direct funding, the Department decided to make the option

of applying for direct funding available to those ITOs which had

contracted with, or received a grant from, the Bureau of Indian Affairs

under Pub. L. 93-638 (Indian Self-Determination Act) for child welfare

services. This requirement was intended to limit direct funding to ITOs

that had established the need for child welfare services and had taken

advantage of the opportunity for direct management and operation of a

tribal child welfare services program. Under this approach, direct

grants would be added to existing ongoing Indian child welfare programs

operated by the tribal organizations. The title IV-B funds were

intended to be linked to the other major Federal Indian social services

program to support Indian self-determination, and complement the

provisions of the Indian Child Welfare Act of 1978 (Pub. L. 95-608).

This was considered important by the Department because title IV-B

funds alone are insufficient for an ITO to establish and operate a

basic child welfare services program.

We believe that the requirement that ITOs must contract, or receive

a grant, for child welfare services under Pub. L. 93-638 in order to be

eligible for direct funding under title IV-B is no longer necessary. In

recent years, Federal social service funding under the Indian Child

Welfare Act (ICWA) has increased significantly. In fiscal year 1994,

530 tribes are expected to receive $22,905,000 under ICWA. We are aware

that there are ITOs which do not receive Indian Self-Determination Act

funding although they are operating child welfare services programs

utilizing ICWA funding, and others which could choose to begin to

provide child welfare services.

III. Discussion of Proposed Amendment to 45 CFR 1357.40

The Department is proposing to revise paragraph (a) to eliminate

the Indian Self-Determination Act eligibility requirement. Paragraph

(a), as revised, states that ``any ITO that meets the definitions in

section 428(c) of the Act, or any consortium or other group of eligible

tribal organizations authorized by the membership of the tribes to act

for them is eligible to apply for direct funding if the Indian tribe,

consortium or group has a plan for child welfare services provided by

the ITO that is jointly developed by the ITO and the Department''.

In determining the amount of direct funding available to an ITO

eligible under the existing regulation, the Secretary currently applies

a formula similar to the one used to calculate the title IV-B

allotments of the territories. This formula takes into consideration

the Indian tribe's resident population under 21 and its per capita

income.

The current formula for calculating an ITO's allotment results in

an amount which bears the same ratio to the total State's title IV-B

allotment as the product of 1.4 times the proportion of the Indian

tribe's resident population under age 21 to the State's total

population under age 21. The 1.4 multiplication factor has not resulted

in grant amounts large enough to make it worthwhile for many tribes to

apply for title IV-B. By June 1993, only 24 tribes were receiving

direct title IV-B grants totaling $549,340. The average grant available

to specified ITOs was $22,889, and grants ranged from a high of

$166,468 to a low of $648.

The Department plans to change the multiplication factor to 3.0 for

fiscal year 1995 in order to improve the quality of Indian child

welfare nationally. For comparison purposes, using the fiscal year 1993

figures given above, this would have raised the average amount

available to the specified ITO's to $45,778, and grants would have

ranged from a high of $332,936 to a low of $1,296.

Paragraph (g)(6) contains the Department's formula for the

calculation of ITO allotments. The multiplication factor will be

adjusted in future years based on the Department's experience, if

necessary, in order to achieve the purposes of the Act. Any decision to

change the multiplication factor will be promulgated through the

issuance of an Information Memorandum under the ACYF policy issuance

system.

IV. Impact Analysis

Executive Order 12866

Executive Order 12866 requires that regulations be reviewed to

ensure that they are consistent with the priorities and principles set

forth in the Executive Order. The Department has determined that the

regulations are consistent with these priorities and principles. This

NPRM will not result in more costs because the increased funding to

Indian tribes and ITOs will come from the change in the allotment

formula.

Regulatory Flexibility Act of 1980

Consistent with the Regulatory Flexibility Act of 1980 (5 U.S.C.

Ch. 5), the Department tries to anticipate and reduce the impact of

rules and paperwork requirements on small businesses. For each rule

with a ``significant economic impact on a substantial number of small

entities'' an analysis is prepared describing the rule's impact on

small entities. Small entities are defined in the Act to include small

businesses and small non-profit organizations. This regulation would

affect States and Indian tribes, which are not ``small entities''

within the meaning of the Act. For these reasons, the Secretary

certifies that this rule will not have a significant impact on a

substantial number of small entities.

Paperwork Reduction Act

Under the Paperwork Reduction Act of 1980, Pub. L. 96-511, all

Departments are required to submit to the Office of Management and

Budget (OMB) for review and approval any reporting or recordkeeping

requirements in a proposed or final rule. This NPRM contains no

reporting or recordkeeping requirements. Therefore no submission to OMB

is required.

List of Subjects in 45 CFR Part 1357

Adoption and foster care, Child welfare, Child welfare services,

State plan, Indians, Reporting and recordkeeping requirements.

(Catalog of Federal Domestic Assistance Program Number 93.645, Child

Welfare Services--State Grants)

Dated: September 2, 1994.

Mary Jo Bane,

Assistant Secretary for Children and Families.

Approved: October 7, 1994.

Donna E. Shalala,

Secretary.

For the reasons set forth in the preamble, 45 CFR 1357.40 is

proposed to be amended as follows:

PART 1357--REQUIREMENTS APPLICABLE TO TITLE IV-B

1. The authority statement for Part 1357 continues to read as

follows:

Authority: 42 U.S.C. 620; 42 U.S.C. 670 et seq.; 42 U.S.C. 1302.

2. Section 1357.40 is amended by revising paragraph (a) and by

adding paragraph (g)(6) to read as follows:

Sec. 1357.40 Direct payments to Indian Tribal Organizations (title IV-

B, subpart 1, child welfare services).

(a) Who may apply for direct funding? Any Indian Tribal

Organization (ITO) that meets the definitions in section 428(c) of the

Act, or any consortium or other group of eligible tribal organizations

authorized by the membership of the tribes to act for them, is eligible

to apply for direct funding if the ITO, consortium or group has a plan

for child welfare services that is jointly developed by the ITO and the

Department.

* * * * *

(g) Grants: General.

* * * * *

(6) In order to determine the amount of Federal funds available for

a direct grant to an eligible ITO, the Department shall first divide

the State's title IV-B allotment by the number of children in the

State, then multiply the resulting amount by a multiplication factor

determined by the Secretary, and then multiply that amount by the

number of Indian children in the ITO population. The multiplication

factor will be set at a level designed to achieve the purposes of the

Act and revised as appropriate.

[FR Doc. 94-25941 Filed 10-19-94; 8:45 am]

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