Foster Care Maintenance Payments, Adoption Assistance, Child and Family Services

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Parts 1355, 1356, and 1357

RIN 0970-AB34

Foster Care Maintenance Payments, Adoption Assistance, Child and

Family Services

AGENCY: Administration on Children, Youth and Families (ACYF),

Administration for Children and Families (ACF), HHS.

ACTION: Final rule.

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SUMMARY: This final rule amends existing regulations concerning

comprehensive child and family services under titles IV-B (Child

Welfare Services) and IV-E (Federal Payments for Foster Care and

Adoption Assistance) of the Social Security Act. The rule, prepared in

response to the enactment of the Family Preservation and Support

Services Act in 1993, provides direction to the States and eligible

Indian Tribes in accomplishing two goals: establishing comprehensive

community-based family support programs and short-term crisis-

intervention family preservation programs, and working across the child

and family services system to design a continuum of services responsive

to the diverse needs of families and children.

EFFECTIVE DATE: December 18, 1996. This rule contains information

collection requirements in Sections 1357.15 and 1357.16 which are

subject to review and approval by OMB. The information collection

requirements in these sections will not become effective until they are

approved by OMB and assigned a valid OMB control number. A document

will be published in the Federal Register which contains the valid OMB

control number for these requirements.

FOR FURTHER INFORMATION CONTACT:

(1) Carol W. Williams, Associate Commissioner, Children's Bureau,

Administration on Children, Youth and Families

Or

(2) Daniel H. Lewis, Deputy Associate Commissioner, Children's Bureau,

Administration on Children, Youth and Families, Telephone (202) 205-

8622 or (202) 205-8618

SUPPLEMENTARY INFORMATION:

Table of Contents

Preamble

I. Background

II. Summary of Major Changes in the Final Rule and Discussion of

Major Issues

III. Section by Section Discussion of Comments

IV. Impact Analysis

Final Rule

I. Background

Title IV-B was added to the Social Security Act in 1935 to provide

Federal formula grants to States to establish, extend and strengthen

child welfare services. Major changes to the authorizing legislation

were later made under the Adoption Assistance and Child Welfare Act of

1980 (Pub. L. 96-272), to prevent the unnecessary separation of

children from their families; improve the quality of care and services

to children and their families; and, ensure permanency for children

through reunification with parents, through adoption, or through

another permanent living arrangement.

Over the last 15 years, however, social, cultural, and economic

changes have frustrated efforts to meet these goals. Increased numbers

of families coming to the attention of child welfare agencies with

problems of ever-increasing severity coupled with rising rates of child

abuse and neglect reports, have resulted in an overwhelmed child

welfare system. Unable to keep up with these increased demands,

constrained by resource limitations and overburdened workers, service

planning has largely been limited to activities that focus on crisis

intervention and not prevention and treatment.

Acknowledging that the system was not working for some of our most

vulnerable children and their families, Congress amended title IV-B in

August, 1993, under the Omnibus Budget Reconciliation Act of 1993,

Public Law 103-66. A new program, entitled family preservation and

family support services, added as title IV-B, subpart 2, provides

States and eligible Indian Tribes with new Federal funding for

preventive services (family support services) and services to families

at risk or in crisis (family preservation services).

This legislation set aside funds for planning in fiscal year 1994

as the basis for the development of a five-year comprehensive services

plan. This planning effort also provided States and local communities

and eligible Indian Tribes the opportunity to review their current

strategies for meeting the service needs of children and their

families, identify service gaps and barriers to coordination of

services, and develop a plan for providing a continuum of services to

families and their children.

The FY 1994 appropriation for this new program (subpart 2) was $60

million. Of this amount, $2 million was reserved for Federal

evaluation, research, and training and technical assistance; $600,000

was reserved for grants to Indian Tribes. The balance was available for

grants to States to fund planning and services for family support and

family preservation.

For FY 1995, the authorization increased to $150 million. Of this

amount, $6 million was reserved for Federal evaluation, research, and

training and technical assistance and $1.5 million for grants to Indian

Tribes. A new program of grants to State courts was initiated at a

funding level of $35 million for FYs 1995-1998. The balance is

available for grants to States for family preservation and family

support services.

Shortly after the legislation was enacted, ACF convened a series of

focus groups to learn about family preservation and family support

services. Using information obtained from these discussions and

building on existing literature, four goals for family support and

family preservation services were identified:

The safety of all family members must be assured.

These programs should serve to enhance parents' ability to

create safe, stable, and nurturing home environments that promote

healthy child development.

To assist children and families to resolve crises, connect

with necessary and appropriate services, and remain safely together in

their homes whenever possible.

To avoid the unnecessary out-of-home placements of

children, and help children already in out-of-home care to be returned

to, and be maintained with, their families or in another planned,

permanent family.

Based on these goals and other lessons learned through the focus

groups, we issued a notice of proposed rulemaking on October 4, 1994

(59 FR 50646) to implement the new family preservation and family

support provisions of the statute and integrate this new focus into a

comprehensive continuum of child and family services.

The statute specified that five-year plans were due June 30, 1995

from all States and eligible Indian Tribes in order to receive Federal

funding. Over the past two years, ACF has committed substantial

resources to the provision of technical assistance to States and Tribes

to assist in the development of these plans and the implementation of

these provisions. Regional and national conferences, State and

locality-specific interventions, our Regional Offices and Resource

Centers all have assisted States and Indian Tribes during this period.

[[Page 58633]]

II. Summary of Major Changes in the Final Rule and Discussion of Major

Issues

We received 80 letters of public comment regarding the Notice of

Proposed Rulemaking (NPRM) from Federal, State and local agencies and

governments; national, State, and local child and family service and

advocacy organizations; and other interested parties. Over 150 of the

specific comments within these letters were in total support of

portions of, or the entirety of, the proposed rule.

The vast majority of commenters were extremely supportive of the

NPRM and the focus group process employed in its development. The input

from families, practitioners, researchers, and advocates is reflected

in this rule and affirms the importance of collaboration and

cooperation. The Administration for Children and Families is committed

to using this inclusive process as a model approach in implementing

future statutory changes of this nature.

Commenters noted that the tone of the NPRM captured the intent and

spirit of the legislation. In particular, they cited support for the

joint planning and consultation process and the importance of the

flexibility provided which allowed States and Indian Tribes to prepare

their plans to meet the needs of local communities. Strong support was

voiced for the vision to achieve improved outcomes for children and

families by helping States, Indian Tribes, and communities apply the

principles of family support and family preservation across all child

and family service programs.

Many commenters voiced support for the NPRM's emphasis on positive,

supportive, and cooperative relationships between at-risk families and

service providers and building on family strengths. They spoke to the

importance of this rule in helping States expand the frontiers of child

abuse treatment and prevention and strengthen the goals of family

preservation and family support.

This final rule reflects the Department's honoring State and Tribal

discretion in many areas of program administration. Through our

experience in administering title IV-B and through our consultation

with experts in the field, we have learned that flexibility in

approach, along with strong outcome standards, is key to designing

successful programs at the State and Tribal levels.

With this rule, we lay a framework by setting certain basic

principles, standards, and processes while at the same time allowing

for State and Tribal flexibility in accomplishing these goals.

Many commenters requested model Child and Family Services Plans

(CFSPs), model goals and objectives, or a more extensive list of

required stakeholders to the process. Despite these request for greater

specificity and detail in various provisions of the rule, we remain

committed to offering States and Tribes maximum flexibility in

designing the content of their Child and Family Services Plans.

We have relaxed requirements where we have been too prescriptive.

For example, we have relaxed the requirements of

Sec. 1357.15(1)(3)(viii) Consultation to allow for States and Tribes to

determine the best set of specific stakeholders to participate in the

design of their Child and Family Services Plans, offering an extensive

suggested list. This section as a whole still requires a critical list

of essential consultation partners to the decision-making process.

Technical revisions were made throughout the rule to: (1) Change

the reference of section 427 to 422(b)(9) in accordance with Pub. L.

103-432; (2) reflect changes made in the Child Abuse Prevention and

Treatment Act (CAPTA) as amended by the Child Abuse Prevention and

Treatment Act Amendments of 1996, Pub. L. 104-235, which was signed

into law on October 3, 1996: The CAPTA changes reflect that there is

only one program, the Child Abuse and Neglect State Grant program,

instead of two programs, and citations to specific sections have been

corrected; and (3) change the title IV-A and IV-F references in the

rule to reflect the passage of the Personal Responsibility and Work

Opportunity Reconciliation Act of 1996 (Pub.L. 104-193).

We have maximized flexibility in the fiscal area to facilitate the

provision of family support services by encouraging the involvement of

community-based organizations. The matching requirements for title IV-B

programs have now been revised to allow States and Indian Tribes to

meet the non-Federal program cost matching requirements using cash or

in-kind contributions, including those that are donated. We made this

change (consistent with existing regulations governing grants at 45 CFR

92.24) in response to compelling arguments in favor of this policy put

forth by nearly 30 commenters. We feel strongly, and commenters agree,

that this change was imperative to supporting broader opportunities for

partnership with community-based organizations and critical to full

implementation of the goals of family preservation and family support

programs.

The prohibition of all in-kind contributions was perceived as a

real barrier to the active involvement of communities. Non-Federal

share may now include real estate and real property, volunteer time (at

standard rates), and limited professional time for service delivery (at

standard rates).

There was, however, dissent from this overall support of in-kind

matching. There was concern that, from a budget and internal control

perspective, the use of an in-kind match may lead to disallowances

resulting from mismanagement. The administrative oversight, monitoring,

and validation of documentation is resource intensive. Some commenters

suggested that a determination on the allowability of in-kind

contributions should be made on an individual State/Tribe basis to

allow in-kind contributions only where funds are not otherwise

available. It was argued that this safeguard would ensure that in-kind

contributions are not used to shift resources away from children's

services (in cases where financial revenues available to meet the

matching requirements are not a problem). As a result of this concern,

one that we share, we have added a component to the Joint Planning

definition (Sec. 1357.10 (c)) to provide for Federal/State or Federal/

Tribal consultation around fiscal issues such as matching.

A. Consolidation

With this rule, we require consolidating the planning and reporting

requirements for title IV-B programs with information included from the

Independent Living Program (ILP) and the Child Abuse Prevention and

Treatment Act (CAPTA) program. Consolidation of plan requirements is

imperative to the development over time of a comprehensive child and

family service system which is accessible, coordinated, flexible, built

on and linked to community services and supports, and able to serve

children and their families in a more effective and responsive way.

The two title IV-B programs are being consolidated for several

reasons: Child welfare services and family preservation and family

support services are both a part of the child and family services

continuum; both services are administered by the same agency and

address common problems of the same population of children and

families; input from the field, supported by commenters on the proposed

rule, urged us to consolidate the plans, application requirements, and

program reporting, where possible, and to reduce duplicative

administrative burdens on States and Tribes.

[[Page 58634]]

Consolidation of the plan does not affect title IV-B, subpart 1 or

ILP funding. In fact the practical consequence of submitting one plan

is that in addition to paperwork reduction, the plan will be submitted

three months prior to the start of the next fiscal year meaning that

title IV-B, subpart 1 and ILP funds would be received earlier.

Information included from the ILP and the CAPTA program will

facilitate ongoing coordination, consultation, and joint planning

efforts among these programs and assist States to move toward a more

comprehensive service delivery system. States and Indian Tribes are

encouraged to include additional child and family services programs in

the CFSP, at their option, to increase program integration.

We believe that comprehensive child and family services cannot be

developed without considering information on services under CAPTA and

the ILP. States still have the option of submitting the application for

ILP with the CFSP or separately. If the State elects to submit the ILP

application separately, information about the ILP must be contained in

the CFSP.

Major changes have been made to CAPTA since the NPRM was published.

There is now a requirement for a 5 year CAPTA State Plan to be

coordinated, to the extent practicable, with the CFSP. Currently, we

are reviewing the new requirements for CAPTA in an effort to

consolidate these State Plans. The CFSP must contain information on the

CAPTA program, however, we will work to ensure that there are not

duplicate information requirements for these two Plans.

Opinions regarding consolidation were decidedly mixed. There was a

significant positive reaction to consolidation and calls for an even

more inclusive plan incorporating all services (health, mental health,

education, etc.) under the jurisdiction of Federal and State agencies.

Whereas we heard strong support for consolidating the title IV-B,

subparts 1 and 2 plans, suggestions were advanced that the process for

inclusion of subpart 1 not be total consolidation, but independent

development and inclusion of information. Difficulties were identified

in producing an expanded plan with funds for only one portion of that

plan. The fear was that this expansion would undermine quality in the

planning process and service system development.

Alternative proposals involved suggestions under which the family

preservation and family support services five-year plan and the subpart

1 plan can be considered as separate elements of the overall CFSP and

separately approvable on their own merits. However, a vast majority of

commenters supported consolidation and we have decided to retain the

consolidated plan requirement and suggest that our phase-in option

(described below) and joint planning with the ACF Regional Offices

should allow for any approval concerns a State or Indian Tribe may have

to be resolved.

Some felt our position on consolidation was expansive and went

beyond the statute by including CAPTA information. Some commenters did

not believe information on ILP and CAPTA programs should be included in

the CFSP since separate plans or applications will continue to be

necessary.

Other commenters stated that while it seems useful to include

information from the various programs in the plan it is not clear what

future directions this would take since the populations served may be

different. The commenters suggested that the final rule encourage

maximum integration and coordination when those efforts enhance

achievement of program goals.

Additionally, it is our view that the populations served by CAPTA

and title IV-B and IV-E are indeed the same. While CAPTA provides

preventive and protective services to children at risk of abuse or

neglect, it is child welfare services which are provided for the care

of children abused or neglected.

States will face challenges in implementing the new vision. The

availability of technical assistance and the maintenance of flexibility

will be vital to successful implementation. We believe that the rule is

in keeping with statutory intent and will provide States and Indian

Tribes with an effective strategy for providing a continuum of services

to children and their families.

B. Phase-In

Closely related to the process and degree of consolidation is the

issue of the timeframe within which a comprehensive plan must be

developed. We have relaxed the requirements for plan consolidation to

allow for a phase-in approach to the requirement. States and Indian

Tribes will now have an extra two years (until June 30, 1997) to

complete the consolidated planning requirements. Consolidation is

complex and time-consuming. We want to support State and Tribal

implementation to ensure that it is done thoughtfully and gradually,

allowing time to work through the complications that are sure to arise

and produce a quality working process.

We believe this strategy does not compromise either the intent or

the spirit of the statute and the NPRM since it has always been our

position that the process of planning, coordination, consultation, and

goals and objectives setting is an on-going process which reaches

beyond initial development of the plan. This added flexibility, coupled

with the technical assistance which has been made available since

issuance of the proposed rule, should eliminate any roadblock to full

and successful implementation.

A number of factors were considered that led to this decision to

phase in consolidation. There was a great deal of concern expressed by

commenters about the expansive nature of the Child and Family Services

Plan and State and Indian Tribe capacity to meet all the requirements

by the June 30, 1995 submission date. Concerns centered around the

timeframe for implementation as unrealistically ambitious. These

commenters recommended that additional time be provided, especially to

incorporate components of the child welfare service system into an

integrated planning process. However, we want to clarify that a

consolidated CFSP does not necessarily allow for pooled funding among

the programs mentioned, inasmuch as separate funding streams and

accountability are still required by statute.

With respect to any State or eligible Indian Tribe that elects the

phase-in option, the plan submitted in June 1995 should have included

information describing how the State or Indian Tribe is engaged in and

will continue to be engaged in comprehensive planning and development

of the consolidated plan encompassing the continuum of child and family

services.

States and Indian Tribes choosing this option will be required to

submit a consolidated plan with the submission of their second annual

progress and services report on June 30, 1997. States and Indian Tribes

have already made significant strides toward meeting these

requirements.

C. Continuum/Linkages

The most effective means of serving children and families is to

have a delivery continuum which directly provides and links with a wide

variety of supports and services.

Throughout the rule we make references to this continuum and other

related service systems. Respondents to the proposed rule expressed

confusion about this terminology. We would like to clarify that, as

used in this rule, the child and family services continuum

[[Page 58635]]

refers to the publicly-funded State child and family services

continuum; including family support and family preservation services;

child welfare services, including child abuse and neglect prevention,

intervention, and treatment services; and services to support

reunification, adoption, kinship care, foster care, independent living,

or other permanent living arrangements.

This continuum is inclusive of all services provided under titles

IV-B, IV-E, and CAPTA and is linked to other service support systems

(e.g. health, mental health, education, etc.) to allow children and

families to access services they need when they need them and as their

needs change. Our primary focus in this rule is to support and build

the capacity of the child and family services continuum. We do

encourage, however, strong linkage with other systems that affect and

serve the same population.

There was some preference for the use of the term ``system of

care'' instead of ``continuum'' in the definition of Child and Family

Service Plan (CFSP). These commenters also called for a definition of

child and family services continuum, or the child and family services

system of care, which incorporates the principles in Sec. 1355.25. They

asked that the definition make clear that the term does not refer to a

prescribed sequence of services but rather an array of services or a

system of care that ensures that families and children will have access

to services and support as their needs change.

``Continuum'' is not used in the sequential sense or to imply that

children and families must otherwise progress from one step to the

next. Families may enter and exit at any point in the continuum. We

have not added a separate definition of the continuum in the regulatory

language because we believe that the parenthetical list included within

the definition of the Child and Family Services Plan sufficiently

defines the range of services included.

Some commenters expressed confusion by stating that the rules were

weakened by expecting the State child welfare agency to be responsible

for other sectors and federally supported State agencies, questioning

what the linkages to other agencies should entail. One commenter was

concerned that the description of the service continuum leaves out

critical health, economic and educational services.

The requirement for coordination of the provision of services with

other Federal and federally assisted programs serving children and

families is derived from statute. This rule does not add any new

responsibility for these other programs to the child welfare agency but

rather, in an effort to improve the well-being of children, youth and

families, we encourage program coordination among related programs to

provide a holistic approach to services.

However, we recognize that the issue of coordination among various

programs points to the need for similar regulations and policies in

other Federal programs and agencies and we have been working to develop

relationships across programs for effective service linkages.

More specificity was requested with regard to how States and Tribes

are expected to nurture linkages. The term ``linkages'' as used

throughout the rule means some method of joining or coordinating two

otherwise separate entities or sets of services. We have not provided

specific linkage criteria in order to allow States and Tribes maximum

flexibility to meet their unique needs for planning and designing

services.

D. Safety

Family preservation services were viewed by some as potentially

jeopardizing the safety of children and it was suggested that the

preamble statements, ``If a child cannot be protected from harm without

placement, family preservation services are not appropriate'' and

``Family preservation does not mean that the family must stay together

or be preserved under all circumstances'' be included in the regulatory

language itself. This recommendation was seen as helping to put to rest

the often-raised ``child protection versus family preservation''

argument and dispelling the myth that this new funding availability is

a powerful financial incentive for child welfare workers and agencies

to preserve the family unit at the expense of child safety.

We maintain that family preservation services are only appropriate

in certain circumstances. It is true that some of the children who come

into State care cannot be left safely in their homes. Whether in the

child's home or in substitute care, a child's safety should never be

compromised. A family preservation program is only one of a number of

strategies to address the issue of safety for children.

An underlying tenet of child and family services is the protection

and security of children as expressed in the principles under 45 CFR

1355.25(a). Because a number of comments addressed this issue, we

revised the definition of family preservation at Sec. 1357.10(c) to

provide that family preservation services are also designed ``to

protect children from harm * * *'' and to state unequivocally that

safety is paramount in the principles at Sec. 1355.25(a).

We would argue that this new legislation and funding is not an

incentive for child welfare workers and agencies to preserve families

at the expense of child safety but rather creates the exact opposite

result. By providing new funds with an emphasis on prevention and

treatment, there is a greater likelihood that children will be better

protected and have more service options available for protection than

presently exist in most States and Tribes.

E. Indian Tribes

In FYs 1994 and 1995 41 Indian Tribes were eligible for direct

funding under title IV-B, subpart 2. In FY 1996, more Indian Tribes

were eligible for direct funding and were notified of their eligibility

and of the application process. New Tribes which become eligible for

this funding beginning with FY 1997 may submit either an application

for planning funds or submit a five year plan. If a Tribe elects to

submit an application for planning funds, those funds will be awarded

with no match requirement in the first year of funding. We are

committed to providing full support for planning consistent with the

process used in the first year of funding for the originally funded

States and Indian Tribes.

If a Tribe chooses to forego the planning process, it may submit a

five year plan immediately on June 30 of the year in which the Indian

Tribe expects to be funded. In this case, the Tribe would be subject to

the match requirement for services funding.

We have accepted recommendations from Indian Tribes and other

Indian advocacy groups to exempt the Tribes from certain statutory

requirements. This exemption authority is based on the Secretary's

discretion in section 432(b) of the Act to exempt any provision in

section 432 that is determined to be inappropriate to Indian Tribes,

taking into account the resources, needs, and other circumstances of

the Indian Tribe. In paragraph (f), the Indian Tribes are exempted from

three statutory requirements: the ten percent limit on administrative

costs, the non-supplantation provision, and the requirement that a

significant portion of funds must be used for both family preservation

and family support services.

We received many comments regarding the Indian Child Welfare Act of

1978 (ICWA). It is our responsibility

[[Page 58636]]

to ensure that all State plans comply fully with the statutory mandates

of ICWA, particularly the requirements for Tribal notification and the

order of preferences for out-of-home placements involving ICWA eligible

children and permanency planning. We issued a Program Instruction

(ACYF-PI-CB-95-12 released August 11, 1995) that specifies reporting

requirements and procedures related to the statutory requirement that

States report on measures they have taken to comply with the Indian

Child Welfare Act. Additionally we plan to address compliance issues,

including ICWA, in a separate rule on the subject of child and family

services monitoring.

We received requests for funding for Tribal consortia serving two

or more Tribes and requests that the term ``federally recognized

Tribes'' rather than ``Indian Tribal Organizations'' be used. We are

bound by statute and have no authority to fund consortia under subpart

2. The language ``Indian Tribal Organization'' is also taken directly

from the statute.

F. Disabilities

We received many comments expressing concern that the proposed rule

did not speak expressly to the needs of parents and children with

developmental disabilities and that the final rule include, throughout,

specific mention of programs, services and support for preservation of

families affected by disabilities. Related to this, another commenter

questioned how the rule treats the provision of mental health services

and services to children with developmental disabilities and the role

of child welfare agencies in this regard.

We are aware of the special needs of families in which a child or

other family member has a disability or has other special needs such as

for mental health services. We believe that services should be designed

and made available to all families, including families with

disabilities, but we did not specifically identify any populations in

order to avoid excluding any particular groups or individuals. We

deliberately sought to provide enough flexibility for States and

eligible Indian Tribes to design programs that would be responsive to

the unique needs of the children and families in a particular State. We

would underline the fact that the Americans with Disabilities Act

requires accessibility to services by the disabled; this accessibility

should accommodate both physical and emotional needs of the disabled.

III. Section-by-Section Discussion of Comments

The Department would like to express its gratitude to the many

concerned individuals and organizations which took the time to prepare

thoughtful and invaluable comments to our NPRM. The comments were very

substantive and meaningful and we considered them seriously in

preparing this final rule.

1. Part 1355--General

Section 1355.10 Scope

This section contains general requirements applicable to both title

IV-B and title IV-E of the Social Security Act and is applicable to

Indian Tribes, as well as States, unless otherwise specified.

Comment: Several commenters requested that the scope of the rules

be revised to include a funding set-aside for Alaskan Native

Organizations and Native Hawaiian Organizations.

Response: The statute defines the eligible grantees individually

under titles IV-B and IV-E. While we are sympathetic to the concerns

expressed, we have no statutory authority to require such a set-aside.

Section 1355.20 Definitions

This section provides general definitions taken from statute of the

Federal entities responsible for administration of child welfare

programs, and of eligible grantees.

Comment: Some commenters were concerned that the definition of

``State agency'' required that the titles IV-B and XX agency be the

same.

Response: The definition of State agency derives from statute and

we have no authority to change or waive this definition in this final

rule. However, as indicated in the definition, there is some

flexibility provided based on a State's pre-December 1, 1974

organizational structure. From a programmatic standpoint, we also note

that in many States, title XX funds are used in support of child and

family services.

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

This section is written to conform to the new requirements and

clarify that the five-year CFSP and the Annual Progress and Services

Reports, along with the title IV-E State Plan, must be made available

for public review and inspection.

No comments were received on this section and therefore no changes

are being made to the language proposed in the NPRM.

Section 1355.25 Principles of Child and Family Services

These principles, most often identified by practitioners and others

as helping to ensure effective services, emphasize the paramount

importance of the safety of all members of the family, including

victims of child abuse and neglect and victims of domestic violence and

their dependents. The service principles address the need for

permanency for all children; the importance of accessibility,

flexibility, and coordination; and cultural competence.

In addition, the principles provide guidance in bringing about

changes in State, local, and Indian Tribal child and family service

delivery. In response to comments on the proposed rule, accountability

to clients and the community has been added.

As stated in the proposed rule, we reiterate that ``family

preservation'' does NOT mean that the family must stay together or ``be

preserved'' under all circumstances, or at the expense of the safety

and well-being of the child.

Comment: One commenter asked that we continue to distinguish

between the principles of child and family services as guidelines and

the required CFSP vision, goals and objectives. The commenter believed

that States should view these principles as an important communication

tool to educate the public about the child and family services plan

vision, goals and objectives and suggested that this be encouraged in

the rule.

Several commenters suggested that the principles be cross-

referenced throughout the rule and that States be required to

articulate in their vision statement, the relationship between the

principles and the goals and objectives and each year to specify in

their annual progress and services reports the gains being made to

bring the system into accord with the principles.

Response: We have retained the principles as guidelines (not

requirements) but have revised Sec. 1357.15(g), to provide that the

vision statement should reflect the child and family service

principles.

Comment: Some commenters recommended that the introductory

paragraph to this section state explicitly that the principles apply

not just to family support and family preservation but to the entire

range of child and family services, including reunification, adoption,

and kinship care.

Response: We believe that both the title of this section and the

introductory paragraph clarify that the principles apply to all child

and family services. In

[[Page 58637]]

response to these comments, we have made a technical revision to the

introductory language in Sec. 1355.25 to provide that the principles

provide guidance allowing for improvements in the continuum of

services.

Comment: One commenter thought the principles should note that the

active involvement of different minorities and linguistically diverse

groups in the planning and ongoing operation of services is an integral

part of a community-based service system. This commenter suggested that

States be required to specify how the principle of cultural and

linguistic competence will be reflected in the vision and goals as well

as in other areas. This commenter recommended that annual reports

should specify the progress made in bringing the system more into

accord with the cultural competence principle.

Response: We agree with the importance of actively involving

minorities and linguistically diverse groups. We have adjusted the

language at Sec. 1357.15(l) Consultation, paragraph (3)(iv) to reflect

that importance because it is in this section that the States and

Tribes must commit to the inclusion of a broad range of stakeholders in

their decision-making processes. States and Tribes may review annually

their plan's consistency with the cultural competence principle as this

would be an appropriate check for active involvement. However, this

level of detail would not be necessary for reporting to ACF.

Comment: Two commenters asked that the NPRM be revised to make

clear that domestic violence prevention is integral to a system of care

for children and families. Alternatively, another commenter suggested

that Sec. 1355.25(a) be revised to recognize that some risk-taking with

children and families is necessary by providing ``* * * when safety can

reasonably be assured and risk of harm minimized.''

Response: We believe the rule is clear that domestic violence

prevention, identification, and intervention is of prime importance to

child and family safety. The importance of these issues is indicated by

their inclusion in the very first principle of assuring the safety and

well-being of children and all family members. In fact, we have

strengthened this principle to emphasize that one important way to keep

children safe is to stop violence in the family including violence

against their mothers. With respect to the second comment, while risk

assessment is critical, we believe that a discussion of risk-taking

would undermine our emphasis on working with the strengths of a family.

Comment: Some commenters were concerned that the language in

paragraph (d) relevant to service focus is overly inclusive and

confusing. They did not believe that family preservation and family

support funds should be spent on services that are otherwise available.

Another commenter suggested that this section might better state that

services may be crisis-oriented, short-term interventions, or longer

term services necessary to meet the needs of the family and the

individual who may be placed in out-of-home care. Other commenters

suggested that it would be more appropriate if the language spoke to

the needs of the child and family, rather than the needs of the family

and best interests of the child.

Response: We agree, in part, and have revised the language of

paragraph (d) to provide that services may focus on prevention,

protection or other short or long term interventions to meet the needs

of the family and the best interests and needs of the individual(s) who

may be placed in out-of-home care. We believe that the principle stated

in paragraph (d) is intended as a statement of holistic services to

children and families, whatever their needs may be.

Comment: A number of commenters suggested that the language in

paragraph (e), related to accessibility, should be strengthened to say

services are ``principally delivered in the home or community.''

Another commenter suggested that language be included to recognize the

importance of timely services.

Response: We support the alternative language offered and have

revised the language in paragraph (e) to provide that services are

timely as well as flexible, coordinated, accessible and principally

delivered in the home or community.

Comment: Many commenters felt that the language in paragraph (f)

was subject to serious misinterpretation and should be revised. These

commenters were concerned that the services listed parenthetically

(e.g., housing, substance abuse treatment, mental health, etc.) were

inaccurately portrayed as outside the continuum of child and family

services.

Response: We agree that the services and supports listed

parenthetically are part of the service systems to which the child and

family service continuum must be linked since they are all necessary

for families to be able to support and nurture their children, and we

have revised this paragraph to remove the parenthesis as well as the

reference to ``outside the system.''

Comment: A number of commenters suggested that the language in

paragraph (g) be strengthened to provide that services are accountable

to the community and to clients in meeting needs and demonstrating

successful outcomes. Several commenters also asked that we revise the

language of this paragraph to provide that ``most'' services are

community-based rather than ``many.''

Another commenter suggested that the reference to community-based

services in paragraph (g) be cross-referenced to the definition of

community-based services in Sec. 1357.10(c) to clarify that community-

based means that the services are accessible and responsive to the

needs of the community and the individuals and families residing

therein.

Response: We agree that accountability is of paramount importance

to ensuring successful services. We have revised the language by adding

at the end, ``are accountable to the community and the client's

needs.'' We revised the language to affirm that most child and family

services are community-based. However, we did not make any changes in

response to the last comment because we believe the guiding principles

should stand alone and be regarded as introductory and applicable to

the rule as a whole.

Section 1355.30 Other Applicable Regulations

This section provides an updated and corrected list of other

regulations applicable to titles IV-B and IV-E.

In the NPRM, we limited the Sec. 205.10 fair hearing provisions to

title IV-E foster care and adoption assistance, excluding title IV-B.

This limitation was an error, noted by several commenters, and

Sec. 205.10 now applies to all programs under title IV-B and IV-E of

the Act. The language of paragraph (c) has been changed to conform to

the provisions of the most recent amendments to 45 CFR Part 74.

Comment: One commenter asked that we add to the list, Part 35,

Nondiscrimination on the Basis of Disability.

Response: The applicable regulation for all Departmental programs

is 45 CFR part 84--Nondiscrimination on the Basis of Handicap in

Programs and Activities Receiving Federal Financial Assistance and is

listed at paragraph (g).

Comment: One commenter was concerned that in paragraph (k),

exclusion of ILP from Sec. 95.1, would be detrimental to the State's

program. According to the commenter, if the State were forced to submit

a final report within the 90 day timeframe, the State would have to

shorten its ILP program by 3 months.

[[Page 58638]]

Another commenter stated that currently ILP and title IV-B funding

is subject to the two-year claiming limitation and restricting this to

a maximum of one year following the year in which the funds were

awarded would present a significant problem in how claims can be

processed and would not allow for full use of the funds.

Response: This policy does not represent a change. The statute is

explicit in section 477(f)(3) of the Act that ILP funds must be

expended by September 30 of the fiscal year following the fiscal year

they were awarded.

2. Part 1356--Requirements Applicable to Title IV-E

Section 1356.10 Scope

This section introduces the requirements applicable to the

Independent Living Program.

No comments were received on this section and therefore no changes

are being made to the language proposed in the NPRM.

Section 1356.80 Independent Living Program

This section summarizes the statutory provisions applicable to this

program.

No comments were received on this section and therefore no changes

are being made to the language proposed in the NPRM.

3. Part 1357--Requirements Applicable to Title IV-B

Section 1357.10 Scope and Definitions

This section sets out key definitions of the major programmatic

areas under title IV-B. For example, the definition of ``Child Welfare

Services Plan (CWSP)'' now reflects the broader, more comprehensive

scope and content of the ``Child and Family Services Plan (CFSP).''

Within this definition, we include a definition of the child and family

services continuum. We have added the term ``permanency'' to the

definition of the Child and Family Services Plan in the final rule

because it had been inadvertently omitted in the NPRM.

In response to comments, we changed the definitions of ``child

welfare services'' and ``family preservation services'' to provide

greater emphasis on the importance of child and family safety. The

definition of ``family preservation services'' also was expanded from

the statutory definition to reflect the provision of concrete services

which can be a key part of the family preservation services package. We

revised the definition of ``family support services'' to include

transportation services which provide access to key services.

Additionally, we felt it necessary to clarify the definition of

``Joint planning'' to emphasize an ongoing partnership process between

ACF and an Indian Tribe or State for the review and analysis of child

and family services, including analysis of the service needs of

children, youth, and families; selection of unmet service needs that

will be addressed; and development of goals and objectives that will

result in improved outcomes for children and families and the

development of a more comprehensive, coordinated and effective child

and family services delivery system.

Comment: Several commenters asked that Sec. 1357.10(b),

Eligibility, be revised to specify that States may charge fees (on a

sliding scale basis) for services to families in higher income

categories to promote broader and more equitable distribution of

services. Alternatively, another commenter stated the belief that

charging for services would be contrary to statute. This commenter

urged, however, that if an income-based standard is adopted, care be

taken to look beyond the face of the family assets since families may

possess financial resources to which children at risk and battered

women may not have access.

Response: We have chosen to leave this issue to State discretion.

We would, however, urge any State which chose to charge fees to be

especially cognizant of the point made by the commenter opposed to such

fees.

Comment: Several changes were recommended in the definition of

child welfare services, for example, the word ``handicapped'' be

replaced with ``individual with disabilities;'' the word ``and'' be

added after the phrase ``identifying family problems'' in clause (3);

and substituting the phrase, ``in cases where the child cannot be

returned home'' for the phrase ``in cases where restoration to the

biological family is not possible or appropriate'' in clause (5).

Other commenters suggested that the definition of child welfare

services recognize family violence. Another commenter asked that the

definition of child welfare services be revised to read ``Reuniting

with their families, children who have been removed and may be safely

returned by the provision of services to the child and the family.''

Response: The NPRM used the definition of child welfare services

taken from section 425 of the Social Security Act which includes

language as originally enacted in 1935. We have revised the definition

of child welfare services in Sec. 1357.10(c) in three ways: To replace

the reference to ``handicapped'' with ``individuals with disabilities''

in clause (1); to place greater emphasis on child and family safety in

clauses (1) and (4); and to reflect the natural progression of services

by reversing the order of clauses (5) and (6). We believe the rule

taken as a whole emphasizes child and family safety and recognizes

family violence, specifically in Sec. 1355.25.

Comment: One commenter suggested that the definition of

``Children'' in paragraph (c) is not consistent with current Federal

and State statutory definitions of a dependent child and was concerned

that the proposed definition could be interpreted to require that all

title IV-B services must be available to persons between the ages of 18

and 21.

Response: We agree and have revised the definition to recognize

that State law on age of majority or State policy will dictate whether

services will be provided to those between the ages of 18 and 21 years

for title IV-B services.

Comment: One commenter thought that the definition of ``Family''

should include actual primary caretakers for children, recognizing the

variety of family structures, whether or not they are biological

relatives.

Response: We believe that the definition provided in the proposed

rule is sufficiently broad to cover all possible family arrangements

and have not changed this definition.

Comment: Several commenters asked that we revise the definition of

``Family preservation services'' to place more emphasis on family case

planning. Other commenters suggested that the definition of family

preservation was too vague, failing to emphasize concrete services;

that dollars for respite care be fairly allocated between the parents

and the foster family; and that the reference to improving parenting

skills is too limiting, since this is the only definition concerned

with parents' needs, the focus should be on enhancing parental

caretaking capacity.

Response: This definition is based in statute. We have made only

one substantive revision to this definition and added a new paragraph

(6) to recognize that family preservation services include ``case

management services designed to stabilize families in crisis such as

transportation, assistance with housing and utility payments, and

access to adequate health care.'' This provision is incorporated in

several of the CFSPs submitted in June, 1995 and is considered to be an

important means of assisting families in crisis. The joint planning

process is expected to forestall improper use of program funds.

[[Page 58639]]

We have not made any changes with respect to respite care because

we believe that the allocation of dollars should be a State

determination.

Comment: Also with respect to the definition of ``family

preservation services,'' commenters suggested that in the interest of

clarity, the order of pre-placement preventive services and

reunification/adoption/independent living services be reversed.

Response: In response to these comments, we have reversed the order

of paragraphs (1) and (2).

Comment: One commenter asked that the definition of ``family

support services'' be revised to provide ``coping with limited

resources'' rather than ``family budgeting.''

Response: The family support services definition is based in

statute. We believe the existing language more appropriately emphasizes

long term success with the language ``family budgeting.''

Comment: One commenter asked that the definition of ``Joint

planning'' be revised to state, ``Joint planning is a process of

discussion, consultation, and negotiation between the parties, and

Federal technical assistance that must occur for the Child and Family

Services Plan to be approved and for the development and approval of

the Annual Progress and Service Reports.''

Another commenter expressed agreement that Regional office staff

should be involved, but was concerned that it would be inappropriate

for regional staff to usurp the State's decision-making authority

regarding development of the plan.

Response: In response to these comments, we have expanded the

definition of joint planning to clarify the partnership and positive

aspects of working together. There is no question that the State

maintains final decision-making authority regarding the development of

the plan.

Section 1357.15 Comprehensive Child and Family Services Plan

Requirements

Paragraphs (a) through (v) of Sec. 1357.15 contain the requirements

for the development of the comprehensive five-year Child and Family

Services Plan (CFSP). The paragraphs cover discrete topics such as

general provisions related to scope, eligibility for funds, and

required assurances; specific content of the CFSP, including a vision

statement, goals, and objectives; requirements for the description of

services to be provided, the populations to be served, and the

geographic areas to be targeted; specific proposals for the planning

process leading to the development of the CFSP; and other provisions

focused on the continuum of services, permanency planning efforts, and

other statutory requirements.

We received both general and specific comments on the CFSP

requirements. General comments on the requirements were addressed under

section II of the preamble. The more specific comments are addressed in

the following paragraphs.

Comment: We received comment requesting the guidance provided in

the preamble of the NPRM under this section be incorporated into the

rule. The commenter pointed out that the State planning groups would

benefit from further clarity on key components of the Child and Family

Services Plan.

Response: The preamble language is designed to provide further

clarity to the rule. A rule is intended to make clear the requirements

for implementing a program. We would recommend that planning groups

utilize the preamble language when they develop their CFSP and the

Annual Progress and Services Report.

Section 1357.15(a) Scope

In response to comments, we made two revisions to this section. One

revision adds a new paragraph (a)(4) to allow a phase-in approach for

consolidation of the plans for IV-B, subparts 1 and 2, including the

information on CAPTA and the ILP. This approach will allow States and

Indian Tribes sufficient time to complete the planning and

consolidation process.

The first sentence of this paragraph has also been revised to

acknowledge the benefits of consolidation by adding that the State's

CFSP is an opportunity to establish a system of coordinated,

integrated, culturally relevant, family focused services.

Comment: One commenter asked that we play a larger role in

analyzing and disseminating the CFSP. The commenter felt that States

would probably be interested in knowing how the process was working

elsewhere and recommended that we consider developing a mechanism for

sharing information with the States to facilitate a process whereby

they serve as expert resources to one another.

Response: We are very sensitive to States' desire for nationwide

information sharing and, toward this end, have concentrated on

establishing an information clearinghouse, exploring additional

training and technical assistance strategies as well as sharing State

experiences at various national conferences and from national

evaluations.

Section 1357.15(b) Eligibility for Funds

This section specifies the eligibility requirements for receipt of

funds under title IV-B, subparts 1 and 2. Several changes were made to

this section. Three new paragraphs have been added, and language was

added to paragraph (b)(1), specifying the time frame for a phased-in

approach of the CFSP, as discussed in section II of this preamble.

In addition, in order to provide additional clarification on what

must be submitted, the new language incorporates the CFS-101 forms.

Also, several improvements have been made in the Annual Summary of

Child and Family Services (CFS-101, Part II) form published in the NPRM

based on several comments. The CFS-101 will be distributed annually

with guidance on submission and the States' allotment for title IV-B

funds.

In response to comments we have made revisions to the CFS-101,

including consolidating the budget request for subparts 1 and 2 onto

one page. The information collected on the CFS-101, Part II includes

information that was previously collected on the CWS-101 and the new

requirements for the collection of family preservation and support

services information as required by statute and 45 CFR 1357.15(n)(3).

Comment: One commenter recommended that the final rule be revised

to require States and Indian Tribes to earmark funds for grantees

currently operating a successful Family Support Community Development

Program to continue receiving funds beyond the two-year grant period

ending September 29, 1995. The reason for this continuation is the

extension of funding would allow grantees to focus on developing a 1-5

year self-sufficiency program for targeted AFDC clients to transition

off welfare and become self-sufficient.

Response: Based on our commitment to State flexibility, there is

nothing to prohibit States from taking this action.

Section 1357.15(c) Assurances

Under Sec. 1357.15(c), the CFSP must contain the assurances

applicable to both title IV-B programs, now listed here. Once signed by

the appropriate official, the assurances will remain in effect on an

ongoing basis (not just during the period of the five-year plan) and

will need to be resubmitted only if significant changes in the State's

or the Indian Tribe's program affect an assurance. This section has

been expanded to be responsive to commenters and include all assurances

relating to programs covered under the CFSP.

[[Page 58640]]

Comment: The sole respondent asked that the rule specify the list

of assurances applicable to title IV-B, subpart 1 and 2.

Response: The comprehensive list has been incorporated here and

into the CFSP requirements. As the NPRM stated, we provided States and

Indian Tribes with a comprehensive listing of assurances in a Program

Instruction issued June 8, 1995 (ACYF-PI-CB-95-17) to facilitate the

submission of the five year plans in the absence of a final rule. At

this time, the assurances have all been incorporated into this final

rule.

Section 1357.15(d) The Child and Family Services Plan: General

Section 1357.15(d) provides that the CFSP must be developed based

on three important planning activities: Broad involvement and

consultation; coordination of the provision of services under the plan

with other Federal and federally assisted programs serving children and

families; and collection of existing or available information to

develop opportunities for bringing about more effective and accessible

services for children and families.

Comment: A number of commenters were concerned with the relative

vagueness of the coordination requirement and wanted a more precise

list detailing the Federal programs that should be coordinated. Several

respondents suggested a cross-reference to the listing of programs at

Sec. 1357.15(l)(3)(viii).

Response: The regulatory language is not being changed because this

section is intended to generally encourage coordination across Federal

programs. In Sec. 1357.15(l) virtually all of the programs mentioned by

the respondents are identified.

Comment: Four commenters wanted parental involvement clarified to

include parents of children who have been directly involved with the

child welfare system.

Response: Language has been revised in Sec. 1357.15(d)(1) to

clarify that the requirement for consultation with parents should

involve those who have direct experience with the child welfare agency.

Section 1357.15(e) State Agency Administering the Programs

This section outlines which State agency is to be responsible for

title IV-B administration.

Comment: One commenter asked that we specify that the organization

chart include the name of the State agency's designated coordinators

for Section 504 of the Rehabilitation Act and the Americans with

Disabilities Act.

Response: We are committed to providing maximum flexibility in this

rule and have not requested this level of specificity in any

submission.

Section 1357.15(f) Indian Tribal Organization Administering the

Program(s)

This section outlines the requirement for submission of the name

and description of the organization responsible for administering the

title IV-B programs.

No comments were received on this section and therefore no changes

are being made to the language proposed in the NPRM.

Section 1357.15(g) Vision Statement

The new focus on family-based services and community linkages

requires changes in vision, philosophy, and in the design and delivery

of child and family services. In order for States and Indian Tribes to

develop a realistic yet forward looking CFSP, we believe that they must

first set forth their vision in providing services to children and

their families.

Comment: Many commenters wanted stronger connections made between

the Vision Statement and other elements of the CFSP.

Eight commenters requested a stronger linkage between the vision

and related goals and objectives and the principles set forth in

Sec. 1355.25. Several of the eight respondents suggested cross-

referencing the sections. One commenter asked that demonstration grants

be awarded to States to make the link.

One commenter wanted to have the CFSP vision and related goals and

objectives specify how the principle of cultural and linguistic

competence will be accomplished. In a similar vein another respondent

wanted the vision to incorporate diverse populations.

One respondent wanted to see baseline data tied more closely to the

development of the vision, goals and objectives in the CFSP. At the

same time, the commenter wanted the final rule to acknowledge both the

expectations and the real limits of the planning process resulting in

the development of the CFSP.

Response: The request for greater linkage of the Vision Statement

with other sections of the CFSP is valuable. We encourage all States

and Indian Tribes to make thematic and content connections. The

comments have resulted in the adding of a requirement that the vision

must reflect the child and family service principles described at

Sec. 1355.25. No other regulatory changes to this section are being

made.

Comment: Two respondents raised issues about how to apply the

Vision Statement.

One respondent questioned whether the Vision Statement will be more

than an affirmation of ideals and become a basis for measuring success

as well as a basis for holding legislators and administrators

accountable.

Another commenter proposed that each service provider under the

plan accept the vision statement.

Response: The Vision Statement is one critical aspect of the CFSP

that provides States and Indian Tribes with the opportunity to create a

positive and futuristic general image of how they will organize their

child and family service system, who it should serve, what services are

needed, and how those services will be delivered. The baseline data,

goals, and objectives, that flow from the Vision Statement, and are a

part of the CFSP, will establish the basis for measuring success and

accountability. All States and Indian Tribes are encouraged to work

toward reaching consensus with their particular set of service

providers regarding the vision statement, since that will significantly

contribute to the successful implementation of the CFSP.

Comment: Two commenters spoke to the importance of cultural issues

in relation to the Vision Statement.

One commenter wanted to make sure the vision specified how

principles of cultural and linguistic competence would be achieved.

The second respondent emphasized how important it was for diverse

populations to be involved in the development of the vision.

Response: In Sec. 1355.25(e) the importance of cultural factors in

the design and delivery of child and family services is recognized. As

noted above, a requirement that the vision must reflect the service

principles at Sec. 1355.25 has been added. It is our expectation that

States and Indian Tribes will forge visions which lead to the creation

and management of culturally sensitive and culturally competent

programs and practices.

Section 1357.15(h) Goals

In order to translate a vision into service delivery systems,

States and Indian Tribes must build on their vision statement and

philosophy and develop goals for the next five years. Goals must be

stated in terms of improved outcomes for the safety, permanency and

well-being of children and families and in terms of the development of

a more comprehensive, coordinated, and effective child and family

service delivery system. We have added the

[[Page 58641]]

term ``permanency'' to the goals language in the final rule because it

had been inadvertently omitted in the NPRM.

Comment: Four commenters supported the goal setting activity and

pointed out how important it was for goals to be established in order

to improve outcomes, reform service delivery, evaluate performance, and

determine effectiveness.

Response: The value of quality goal setting within the context of

the CFSP cannot be underestimated. It represents a commitment by the

State or Indian Tribe to accomplish certain efforts during the CFSP

five-year timeframe and is a statutory requirement. In order to

reinforce this time orientation, the phrase ``and by the end of'' is

being added to Sec. 1357.15(h).

Comment: Four commenters identified the challenges and complexities

inherent in the goal setting task.

One noted that indicators of child and family well-being don't

change that rapidly and are affected by external factors beyond

existing policies and programs.

Another cautioned that accurate information was not abundant and

this could make the creation of ``real'' goals difficult.

One respondent pointed out that this is a new activity for States,

and there will be a reluctance to a push for quick goal setting.

Finally, one commenter acknowledged the challenges around setting

goals and asked for additional regulations to help guide the process.

Response: Establishing goals is a demanding and essential activity

and remains crucial to States and Indian Tribes keeping track of their

progress and accomplishments. Feedback from focus groups ACF conducted

and comments received in response to this section of the NPRM affirmed

the salience of goal setting. The NPRM was sensitive to the fact that

States and Indian Tribes possess varying degrees of proficiency

regarding goal setting, and an emphasis on making use of reliable and

valid baseline data should contribute to the development of ``real''

goals. Moreover, States and Indian Tribes will have the opportunity to

make revisions to their goals on a yearly basis. In order to allow

States and Indian Tribes substantial discretion in developing goals

consistent with their vision and philosophy, it would not be

appropriate to generate additional regulations in this area.

Although we are not providing additional regulations in this area,

we thought the following example of a permanency goal, objectives, and

indicators would be helpful:

Permanency Goal: Ensure permanency for children in foster care

through timely placements in permanent homes.

Objectives: To increase by [x] percent the proportion of children

who exit the foster care system through reunification, guardianship, or

adoption within two years of placement.

To increase by [x] percent the proportion of children with special

needs who are adopted annually.

Measures/Indicators

The number of children who exit foster care through

reunification, guardianship, or adoption provided through AFCARS data.

The number of children with special needs who are adopted

annually provided by AFCARS.

Comment: Several commenters addressed issues related to the breadth

and emphasis of the goals themselves.

A respondent asked that the goals be expressed in terms of outcomes

and the same respondent along with another commenter asked that the

goals encompass matters of economic stability and independence.

A commenter argued that where applicable the goals should be

specified for any targeted groups.

A commenter listed a set of issues such as substance exposed

newborns, teen pregnancy rates, infant mortality, immunization rate,

etc., which should be incorporated into the goals.

Response: ACF agrees that goals should be expressed in terms of

outcomes. While outcomes addressing issues such as economic stability

and independence, infant mortality, and teen pregnancy rates are

important, ACF is currently emphasizing the outcome areas of safety,

permanency, and well-being of children and families to measure child

and family services. Specific outcomes will be discussed in greater

detail in future regulations addressing the child and family services

review process. State and Tribal discretion in developing specific

goals based on philosophy, vision statement, and unique factors or

circumstances must be preserved. Within this flexible framework States

and Indian Tribes have the freedom to establish goals targeted to

particular groups.

Comment: Three commenters either made requests for modifying the

content in this section or questioned whether any modification was

possible.

One commenter requested that Sec. 1357.15 (h)-(k) be merged into

one section in order to strengthen integration among goals, objectives,

and indicators of progress.

One respondent encouraged the inclusion of content from a

particular document, developed by a non-governmental organization with

expertise in family preservation and family support, on the topic of

planning for family preservation and support service programs.

One commenter wanted to know if the goals specified in the preamble

to the NPRM were the official set of goals and whether goals other than

those listed were acceptable.

Response: There are a number of valuable documents that have been

published by various organizations which States and Indian Tribes may

find useful as they plan, revise and implement their five-year plans.

States and Indian Tribes are encouraged to make use of all materials

which they find suitable. Goals, objectives, measures of progress and

baseline information have been treated in separate sections to ease

understanding and emphasize the importance of each element in the CFSP.

However, as explained later, the language in Sec. 1357.15(j), Measures

of Progress, has been revised to better link the measurement criteria

to the accomplishment of goals and objectives. The goals set forth in

the preamble to the NPRM are for illustrative purposes only. State and

Indian Tribes have the latitude to develop goals germane to their

situation.

Section 1357.15(i) Objectives

With a focus on outcomes for children, youth, and/or families or on

elements of service delivery in the CFSP, objectives should include

interim programmatic benchmarks, dates of accomplishment and a long-

term timetable, as appropriate.

We recommend that family preservation and family support services

be targeted on populations and in geographic areas of greatest need.

Targeting may include a range of vulnerable populations (children,

youth and/or families) in specific geographic regions, counties,

cities, communities, census tracts, or neighborhoods. States should

also consider targeting services to support community-based strategies

which draw on multiple funding streams and which bring a critical mass

of resources to bear in high-need communities.

Comment: Several commenters addressed the geographic scope of

implementation of family preservation and family support services as

spelled out in the Objectives section and reflected in the delivery of

services. One

[[Page 58642]]

respondent called for making the requirements Statewide. Another

commenter emphasized focusing on geographic areas and populations with

the greatest need.

Response: There will be no change in regulatory language. There is

no requirement that services be Statewide, although States are

encouraged to move in that direction. States and Indian Tribes will

retain authority to target in a manner they deem most appropriate.

Comment: We received four comments to our request on the

advisability of developing model plan guidelines. Two commenters asked

that we not issue model guidelines. Instead, they suggested ACF further

support planning efforts by developing ways to encourage the State

planning process to meet child and family service plan objectives and

goals. Alternatively, two commenters indicated that model guidelines

would be of great assistance.

Response: In light of the few comments received and our desire to

provide maximum flexibility, we have decided not to pursue the

development of model plan guidelines. However, we will continue to work

in a collaborative partnership with States and Indian Tribes. A

comprehensive technical assistance contract was awarded in 1995 to

assist States and Indian Tribes in the development and implementation

of the CFSP. In addition, we will continue to provide in-house

technical assistance as part of the joint planning provisions to assist

States and Tribes in developing and implementing the CFSP. While we

will not publish model plan guidelines, we will disseminate exemplary

State and Indian tribal plans that can be used as models.

Comment: One commenter asked that objectives be required to

determine progress, as well as promote monitoring and ongoing

assessment.

Response: We feel the existing regulatory language on objectives,

when combined with the annual progress reports, will accomplish this.

Comment: Several commenters were concerned by various elements of

the examples provided in the preamble to the proposed rule. One

commenter recommended that we state instead, ``reduce the number of

children removed from poverty and/or substance abusing families through

the use of family support type services.''

Another commenter suggested that example 3, which speaks to

reducing the number of reports of child abuse and neglect cases

involving serious injury be revised to insert the word

``substantiated'' before ``report,'' citing the concern that the number

of reports should not be used as a negative benchmark.

Still another commenter criticized the example objectives as very

traditional and narrow that might encourage people to think in black

and white and lead to bad practices. This commenter recommended we

provide instead examples that are more ``non-traditional'' and that

focus on elements of service delivery that are linked to outcomes in

important ways. Finally, one commenter noted that the examples provided

were all related to children and families and questioned whether

objectives related to system changes would be acceptable as well.

Response: The respondents' comments are well taken and may be of

assistance to other States in pursuing their objectives. However, since

they speak only to the examples of objectives provided in the preamble

of the proposed rule for illustrative purposes only, we are not making

any changes to the rule at paragraph (i) of Sec. 1357.15. States and

Indian Tribes should establish objectives which reflect their own

priorities, funding decisions and strategies for providing child and

family services. However, we would like to highlight the importance of

establishing objectives which focus on outcomes for children, youth and

families or on elements of service delivery and system change that are

linked to outcomes. We strongly believe that outcome based goals and

objectives allow the State an opportunity to obtain better information

about the safety, permanency and well-being of children and families.

Comment: Two commenters suggested technical changes to the language

provided at paragraphs (i) (1) and (2) of Sec. 1357.15. The first asked

that we revise the language in (1) to add that the objectives focus on

elements of service delivery including staff competencies and staff

workloads and in paragraph (2) to add reference to improving the

quality of existing services. The other commenter suggested in

paragraph (1) that we should change the wording from ``each objective

should focus on outcomes'' to ``must focus on outcomes,'' since should

fails to convey the necessary imperative.

Response: While we have no problem with the technical language

raised by the commenters in the first two instances, we are not adding

this language to the rule. We believe the rule is sufficiently broad to

support these examples and should remain broad enough to allow States

and Indian Tribes flexibility to set their own objectives. The rule

will remain unchanged with regard to the focus on outcomes in

developing objectives. A focus on outcomes is not required, but

certainly encouraged.

Section 1357.15(j) Measures of Progress

In response to comments we received, we have added a statement that

the State, in its CFSP must assure that the data and information to

measure progress will be collected, organized and analyzed in a quality

manner, and that the data and information will ensure States' and

Indian Tribes' ability to gauge progress towards achieving their goals

and objectives.

Depending on the goals, objectives, and outcomes selected,

measuring progress may be based, in part, on quantifiable indicator

data (e.g., numbers of substantiated child abuse and neglect reports)

or on the results of activities such as monitoring mechanisms, quality

assurance efforts, other information collection activities, other

planning processes, and internal evaluations.

Comment: Several respondents dealt with the relationship between

information systems and measuring progress.

One commenter suggested that the initial outcome measures be the

establishment of systems (SACWIS/AFCARS/NCANDS) and description of

processes.

Another commenter noted that SACWIS will not be fully operational

in time to gather baseline and program data. The same commenter noted

that outcome evaluation/quality assurance determinations will be

derived from SACWIS when it is operational and States will need

increased flexibility on the part of the Department when demanding

additional data.

Response: With respect to the first comment, unless the design and

implementation of automated information systems is a specific plan

goal, it cannot be viewed as appropriate indicators of progress toward

meeting goals, objectives and outcomes of the CFSP, but rather as

eventually a source for obtaining data and information to determine

progress.

This rule has been written to provide States and Indian Tribes with

the necessary flexibility to determine how they will measure progress

and collect quantifiable data. While States are making enormous strides

in developing and implementing automated information systems and there

is a need to support and encourage these actions, we agree that these

systems will not be operational in time to collect and report baseline

data, and it will take a while before they are capable of ascertaining

progress.

[[Page 58643]]

Comment: Two respondents considered factors related to the quality

of the measures of progress.

One commenter recommended that the requirements of this section

should go further and require the grantee to demonstrate the validity

of the measure of progress it has chosen suggesting that we add: ``The

CFSP should describe how the measurement criterion selected to assess

each goal and objective can be expected to gauge accurately the

progress toward achieving that goal or objective.''

Another commenter expressed concern that measures must be realistic

and attainable.

Response: We agree and the regulatory language has been revised at

Sec. 1357.15(j) by adding a second sentence to incorporate their

suggestions.

Section 1357.15(k) Baseline Information

In order to properly measure, monitor, and adjust activities,

States and Indian Tribes must assemble baseline data, drawing first on

what is existing and available. The specific collection of service data

is important, and central to the CFSP development and implementation

process.

The following suggestions of possible indicators of child and

family well-being and service delivery status will be useful for

setting goals and objectives, for targeting services geographically and

to priority populations, for detailed service planning, and for

assessing progress. Although these examples were included in the

proposed rule, due to substantial interest in them from the public, we

are repeating them here.

(1) Examples of indicators on child and family well-being: Number

of substantiated reports of child abuse and neglect, percent of

children born addicted or drug exposed, reducing child fatalities,

incidence of domestic violence, number of children in out-of-home care,

number of children in psychiatric placements, number of children

awaiting adoption, and youth in stable living situations after exiting

foster care.

(2) Examples of indicators related to other services systems:

Percent of low birth-weight babies, percent of births that are to

single teens, teen pregnancy rate, immunization rate, percent of

children in poverty, percent of children in single-parent families,

percent of families receiving title IV-A, runaway and homeless youth

rate, child/youth suicide rates, juvenile violent crime arrest rate,

teen violent death rate, percent of teens not in school and not in

labor force, percent of teens graduating from high school on time, high

school dropout rate, and percent of eligible children in Head Start.

(3) Examples of indicators on the State's (or the Indian Tribe's,

as appropriate) service delivery capacity: The extent to which child

welfare, family preservation, and family support services are available

and being provided (e.g., number and percentage of families served,

waiting lists, etc.); the availability of out-of-home care and

placement (including adoption) resources; the availability of

prevention and intervention services; the availability of critically

needed services such as housing and substance abuse treatment; the

extent to which existing services are coordinated with the provision of

other child and family services, particularly child protective services

and independent living services (e.g., indicators of successful

referrals); and the funding resources and expenditures, geographic

availability, numbers of persons served, and insufficient service

capacity (unmet needs) related to these services.

(4) Examples of indicators States or Indian Tribes, as appropriate,

might use or seek to develop relating to strengthening the delivery of

services and accomplishing goals and objectives: The extent to which

resources are available for training, technical assistance, and

consultation, including leadership development, staff development, and

interdisciplinary training; the existence and utilization of quality

assurance measures, program development and management and data

analysis; and the implementation, expansion, and utilization of

management information systems.

Comment: Several commenters responded to the value and importance

of baseline information and what constitutes sufficient information and

on the range of services needed by families being served by family

preservation and support services including social, health,

educational, and economic services. One respondent called for the

gathering of information on all programs intended to meet the needs of

families. One commenter argued that the identified needs should reflect

``real'' family concerns. In contrast, another commenter suggested that

consideration be given to eliminating the baseline information

collection requirement. Several commenters wanted clarification as to

how much information is adequate and how the State and Indian Tribe

and/or ACF will determine how much is enough.

Response: There is a statutory requirement for States and eligible

Indian Tribes to develop a five-year plan with goals and objectives and

to review progress towards meeting those goals and objectives on a

yearly basis. Information obtained from focus groups and respondents'

comments have emphasized the importance of baseline data to developing

responsive goals and objectives. In keeping with the approach of

flexibility, we are not setting requirements regarding specific

baseline information to be collected, except for our condition in

Sec. 1357.15(k)(3) that information about existing family preservation

and family support services must be included. The determination of what

constitutes adequate baseline information and specific family

preservation and family support information for a particular CFSP will

be made in the context of the joint planning process.

Clarification on what is acceptable documentation for submission by

Indian Tribes is being provided by adding the following sentence to

Sec. 1357.15(k)(2): ``An Indian Tribe may submit documentation prepared

to satisfy the requirements of other Federal child welfare grants, or

contracts (such as the section 638 reporting form), along with a

descriptive addendum addressing specifically the family preservation

and family support services available.

Comment: We received several responses to the request in the NPRM

for public comment on the proposed indicators and the usefulness of

defining indicators more concisely so that uniform definitions can be

developed.

One commenter felt the suggested indicators were comprehensive,

covered the priority areas, and that more concise definitions were not

needed.

One commenter noted that specific guidelines would be preferable at

some point in the future when all involved parties have more knowledge.

Another commenter recommended that a few indicators be selected and

required across states, with other information remaining optional.

An additional respondent asked for flexibility, especially at the

outset of the process.

Response: The comments we received have convinced us to maintain

flexibility in this aspect of the proposed rule. No specific baseline

indicators will be mandated and there will be no attempt to establish

uniform definitions. The AFCARS and SACWIS should capture necessary

national data and it serves no useful purpose to duplicate those

requirements in this rule. States and eligible Indian Tribes will have

full discretion in identifying, operationalizing and employing

[[Page 58644]]

baseline data elements responsive to their CFSP.

Comment: Several commenters were concerned that the breadth of

information and unreasonable amounts of detail required for the five-

year plan is burdensome.

One respondent pointed out that the prolific information being

requested will be disorganized and the accuracy of the information

dependent upon the sources of the information.

Among the commenters who raised the burden issue, one suggested a

less detailed summary be used as an alternative for Federal purposes

such as the review by regional offices during ongoing joint planning

meetings between ACF and States and Tribes.

Another respondent argued for narrowing the focus of data

collection on unmet needs, while a third called for selecting some

representative services that are statewide, but keeping the data at the

State level for review and not passing it on to the Federal government.

One respondent noted that data collection poses a particular burden

for all Tribes, especially small ones, considering the modest amount of

funds available to them under title IV-B, subpart 2. The respondent

proposed that Tribes be allowed to submit data they collect for their

Indian Child Welfare Act 638 reports with a description of additional

services that will or have been provided or personnel employed through

the use of additional title IV-B funding.

Response: We do not wish to place a burden on States or Indian

Tribes to expend excessive energy and resources on preparing and

presenting copious amounts of data. Nor do we wish to over-burden the

joint planning process with an exhaustive review and analysis of data.

Therefore, we have clarified paragraph (k)(3) to specify that a summary

of the information used in developing the plan must be included. We

expect States and Indian Tribes to conduct appropriate data collection

activities to thoroughly and accurately inform their planning efforts.

We agree with the recommendation to reduce the reporting burden on

Tribes and have amended paragraph (k)(2) to provide that Indian Tribes

may submit other documentation, such as the 638 reporting form, with a

descriptive addendum addressing specifically the family preservation

and family support services available, as described above.

Comment: A number of commenters raised cost issues in relation to

baseline data.

One commenter expressed concern that the costs associated with

collecting baseline data would be counted as an administrative cost and

subject to the 10 percent cap.

Another commenter wanted to know if there would be additional

funding to cover research or administrative costs associated with

hiring professionals to identify and collect baseline data.

One respondent wanted flexibility regarding data collection in

order to reduce costs.

One commenter argued that States may well confront tough decisions

when trying to decide how to pay for the costs of data collection and

this could lead to a number of complications.

Response: Given the fact that the baseline information process is

integral to the development of the CFSP, we have modified

Sec. 1357.32(h)(3) to confirm that data collection is viewed as a

program cost as it is a part of the preparation of the CFSP and is not

subject to the 10 percent administrative cap limitation.

In light of our decision to allow a data collection process

responsive to the unique needs of each jurisdiction and a summary

submission of data in the CFSP, both of which are based on existing and

available data, we believe any and all costs associated with baseline

information will not place an undue financial burden on any State or

eligible Indian Tribe.

Comment: A number of comments addressed the role of automated

information systems in relation to baseline information. Several

respondents saw the merits and urged continuation of the emphasis on

requiring States to develop and use automated information systems to

ensure availability of baseline data. Several commenters noted that the

preamble speaks to systems being designed (SACWIS) that may serve as a

source of valuable information, but were concerned that States may not

have their systems operating in time to be a source of baseline data

for the development of the CFSP. One of the commenters urged ACF to

give the States flexibility when additional data is required.

Response: We fully recognize the value and importance of automated

information systems to improve programs and practices and feel we have

instituted flexible policies and regulations designed to increase their

usage and improve their operation throughout the child and family

service system. We recognize that a State's SACWIS may not be

operational in time to provide baseline data for the first five-year

plan. In fact, not all States plan to develop a SACWIS. However, AFCARS

should eventually be available to provide additional and updated data

necessary to measure progress during the five-year period in accordance

with Sec. 1357.15(k)(1).

Comment: Several commenters dealt with the relationship between

targeting and baseline data.

One commenter noted that the preamble speaks to targeting services

to certain populations and/or geographic areas and asked, if services

are targeted, whether targeted data collection would be allowed.

Another commentator suggested that language be included to allow

States or Indian Tribes which may concentrate resources in a few

targeted communities to use community-level rather than state-level

data to track the process.

Several respondents suggested that the requirement that states

gather and update statewide information on child and family well-being

and on availability of services be clarified to explain that baseline

data should help guide initial decisions about targeting and serve as

the basis for tracking progress over time.

Response: A statewide or Tribal collection and analysis of data is

necessary in order to conduct the strategic planning process and

develop goals and objectives as spelled out in Sec. 1357.15 (a) and (b)

and to target service decisions. In paragraph (k)(2) of Sec. 1357.15,

we have required the State or Tribe to collect and analyze data on a

Statewide or Tribal-wide basis only for Family Preservation and Family

Support Services. However, if services are targeted, the focus of on-

going data collection and analysis likely will be in those targeted

areas in order to ascertain progress in accomplishing plan goals and

objectives. Targeted data collection is acceptable and appropriate in

these instances, provided that this data is collected with overall

statewide information.

States and Indian Tribes also have an ongoing responsibility to

keep a current statewide or Tribal-wide baseline data base in order to

keep apprised of emerging problems, new populations experiencing new

challenges, groups currently being served who are experiencing new

challenges, and to track trends over time. These inevitable changes

will likely result in modifications to the CFSP over its five-year life

span.

Comment: Several commenters asked that we delete what was perceived

as a vague statement in this section, ``other services which impact on

the ability to preserve and support families may be included in the

assessment'', and instead require baseline data on the full range of

services needed by at-risk

[[Page 58645]]

children and families; specifically including mental health services,

substance abuse services, etc.

Response: No changes are being made. The statement interpreted by

commenters as being vague was intended as an acknowledgement of the

enormous variety of programs and services in different State and Indian

Tribes and a means of providing both groups with sufficient discretion

to determine appropriate data sources. The request to require baseline

data on the full range of services needed by at-risk children and

families would be overly prescriptive. States and Indian Tribes are

encouraged to include the collection of data from service systems other

than the child and family service continuum, but it is not being

required.

Comment: Several commenters addressed different facets of

categorizing the baseline information.

One commenter suggested that States be required to gather baseline

data on child and family well-being and service delivery capacity that

is grouped by indicator specific to minority groups as well as

information on the appropriateness of training, technical assistance,

consultation and quality assurance of service delivery capacity for

specific targeted groups.

Another commenter wanted to make sure that the categories of

baseline information used in developing the plan be cited.

A respondent asked that the rule explicitly state certain

categories of baseline information that must be included.

Response: The suggestions made by the respondents are reasonable

and appropriate. Nevertheless, given the enormous diversity among

States and Indian Tribes in terms of the needs of their various child

and family populations, the services they are providing, as well as how

they are organized to deliver the services to those in need, we are

resistant to specifying categories of information or precise indicators

that must be included. The categories of indicators cited in the

preamble of the proposed rule and reiterated here are only meant to be

illustrative. Each State and Indian Tribe with the ACF Regional Office

will determine the appropriate schema for categorizing its baseline

information.

Comment: One commenter indicated more technical assistance will be

needed in this area since activity is likely to become fragmented.

Response: ACYF implemented a significant five-year technical

assistance initiative in fiscal year 1995 which involved funding a set

of national resource centers and a technical assistance coordination

contractor. States and Indian Tribes seeking assistance will be able to

receive it by working with ACF and resource center staff.

Comment: A commenter recommended using positive language for our

examples of indicators such as using ``reducing child fatalities'' as

opposed to ``child death rate''.

Response: This is an excellent suggestion and we encourage all

States and Indian Tribes to consider the commenter's recommendation

about adopting a more positive orientation as they develop labels for

their indicators.

Section 1357.15(l) Consultation

We received 22 comments to this section. Overall, the remarks were

positive, expressing endorsement for the use of broad-based

consultation with the public and private sectors.

As a condition of CFSP approval, Section 432 requires that the plan

be developed by the State and the Indian Tribe after consultation with

a wide range of appropriate public and nonprofit private agencies and

community-based organizations with experience in administering services

for children and families (including family preservation and family

support services). In this section we are requiring States and Indian

Tribes to describe their consultation process and we have included

suggested lists of groups that may be involved in the process.

The Department believes that States and Indian Tribes will benefit

from a broad, active consultation process in strengthening the planning

and implementation of the CFSP. In keeping with State flexibility we

have not mandated either a particular consultation process or a

specific list of entities with which States and Indian Tribes would be

required to consult.

We believe the suggested categories of participants in the

consultation process provided in paragraph (l)(3) represent a minimal

level, mandated by section 432(b) of the statute, of programmatic,

political/administrative, and experiential involvement in this process.

We continue to encourage States and Indian Tribes to go beyond the

suggested list and include other categories of organizations and

individuals based on State and local circumstances.

Comment: Three commenters raised concerns regarding the list of

suggested agencies to be involved in the consultative process. The

concerns focused on what happens if a State fails to consult with each

of the groups listed and that the list of actors was overly

prescriptive and unnecessarily creates monitoring and compliance

issues. It was felt that recommendations would be helpful but a defined

list will not assure meaningful involvement.

A related comment suggested that in order to ensure that the range

of consultative groups are seriously and consistently consulted, States

should be held accountable for how and to what extent they included

each category in the planning process. It was also suggested that we

could clarify the different forms that consultation can take and that

ACF include a requirement for a clearly defined beginning, middle and

end to the consultation process.

Response: While the consultation process and a wide range of

appropriate public and nonprofit private agencies and community-based

organizations with experience in administering services for children

and families are required by statute, we believe States and Indian

Tribes should retain flexibility to determine both the form and the

intensity of consultation and participation by various groups. Also, as

stated above, the list is a suggested list and, while we feel all

groups should be involved, we are not mandating that each one must be

consulted. We would hope that over time each group will be brought into

the process.

With respect to mandating a specific process for consultation with

distinct closure, we have intentionally left this open to provide

flexibility for such processes to be ongoing and to be developed at the

State/Tribal level.

Comment: Several commenters asked that we amend paragraph

(l)(3)(vii) to strongly emphasize the vital role that courts and legal

advocates play in service planning. Specifically, they suggested that

we replace ``the courts'' with ``Representatives of the court systems

(including, in States receiving grants under section 13712 of Pub. L.

103-66, a designee of the highest State court), attorneys representing

parents, children and the State agency in dependency cases; and any

guardian ad litem or court-appointed special advocate (CASA) programs

operating in the State.''

Response: We believe the existing references provided to courts,

individual practitioners working with children, and law enforcement

support our recognition of the important role of the judiciary and

legal systems. We agree with the commenter and we encourage the states

to consider seriously the merits of the involvement of the legal realm.

Comment: Many comments suggested additional specific categories of

[[Page 58646]]

required consultation, i.e., protection and advocacy organizations,

professional organizations, Children's Trust Funds, mental health and

developmental disabilities agencies, youth agencies which have not

traditionally provided child welfare services, replace the general

reference to ``housing program'' with reference to specific, ``State

agencies with regulatory authority over federally funded local housing

agencies, State agencies administering section 8 housing programs,

State housing financing agencies and State fair housing agencies,'' the

local chapter of the American Academy of Pediatrics, and pediatricians

among major actors listed to encourage States to include a family

support and prevention focus in the planning process. One commenter

argued that collaboration was the mainstay of this rule and they were

perplexed at the lack of mention of the Community-Based Family Resource

Program. This commenter believes it is critical that the Federal

government seek to unify these potentially polarizing initiatives and

provide guidance to the States through example.

Response: These are excellent suggestions, and we urge states and

Tribes to consider them in the on-going consultation process. However,

we have made three changes based on these comments. First, we have

revised paragraph (l)(3)(viii) to include, as suggested by the

commenters, the Children's Trust Funds and the Community-Based Family

Resource Program in the list. The Community-Based Family Resource

Program and the Family Preservation and Family Support programs are

linked by common purpose and approach to serving children and families.

Both programs are administered by ACYF with maximum coordination at the

Federal level. The Community-Based Family Resource Program was not

specifically mentioned in the NPRM as it had just been enacted. The

program was reauthorized under Pub. L. 104-235, the Child Abuse

Prevention and Treatment Act Amendments of 1996 which was signed into

law on October 3, 1996. FY 1995 was the first year grants were made to

States for this program. The other changes are technical corrections.

One is to provide for ``IV-F'' employment and training. The other

change removes redundant language in the introductory sentence,

changing ``including, but not limited to,'' to ``which may include:''.

Comment: Three commenters suggested that the CFSP be required to

address measures to prevent planning groups and committees from being

dominated by agency officials and private service providers such as by

limiting public and private agency personnel to no more than 50

percent. Another commenter suggested that the final rule be clear about

the level of involvement appropriate for each of the actors.

Response: We believe that to limit the number of consultation

partners in the final rule would represent a significant departure from

our commitment to provide flexibility. However, we would note that the

rule does provide States wishing to do so with sufficient flexibility

to determine the intensity of participation.

Comment: One commenter asked that in paragraph (l)(1) we add that

information be included that facilitates the active, informed

involvement of parents and children previously impacted by the social

service delivery system within the State.

Response: Parental involvement is addressed in paragraph

(l)(3)(iv), thus additional language is not necessary here. However, in

response to this comment, we have amended the language to include

children involved with, and children not involved with, the child

welfare system.

Section 1357.15(m) Services Coordination

Service coordination is critical to the improvement of access and

appropriate delivery of a range of services to children and their

families.

Examples of services and programs are:

Within the State agency: Existing family support and

family preservation; child abuse and neglect prevention, intervention,

and treatment; foster care, reunification, adoption, and independent

living services, and

Other public and nonprofit private agencies, including

community-based organizations, which provide Federal or federally

assisted services or benefits.

Examples of major programs are: The social services block grant;

title IV-A; child support; maternal and child health; title XIX

(Medicaid, Early Periodic Screening, Diagnosis, and Treatment (EPSDT));

mental health and substance abuse services; Community-Based Family

Resource programs and child abuse prevention (Children's Trust Funds);

transitional living; runaway youth and youth gang prevention;

education; developmental disabilities; juvenile justice; early

childhood education and child development programs (Head Start);

domestic violence; housing; nutrition (Food Stamps, Special

Supplemental Food Program for Women, Infants and Children (WIC)); child

care and development block grant and other child care programs; the

community services block grant; Empowerment Zones and Enterprise

Communities program (EZ/EC); education (school-based services); and

justice programs.

Comment: We received several comments to expand the list of service

delivery providers here to include advocacy services, the mental health

and developmental disabilities services system and the State agencies

with regulatory authority over housing.

Response: In paragraph (m)(1) we have clarified those organizations

which may be involved in the planning process by adding additional

examples in parentheses.

Comment: Several commenters thought that more guidance should be

provided here and the purpose of the coordination requirement made

explicit. One of these commenters was concerned that without greater

specificity regarding goals, service coordination will continue to be

secondary and out of step with the ``holistic approach'' to serving

children envisioned. This commenter suggested that the CFSP should be

required to include specific, concrete steps toward service

coordination and to specify when during the five year period these

steps will be completed.

Response: We have not accepted all the suggestions made, but we

have amended paragraph (m)(1) to add a statement of purpose--that is,

that the services coordination process is to improve access to services

and deliver a range of services to children and their families. Again,

we believe that the process itself should be left to the discretion of

individual States and Indian Tribes.

Comment: Several commenters asked that we revise paragraph (m)(2)

to state, ``coordinate * * * to ensure that at-risk children and

families have access to all services necessary to protect the safety of

family members, promote family stability and prevent out-of-home

placement whenever possible, regardless of the boundaries. * * * ''

These commenters further suggested that the examples provided include

developing compatible and linked computer systems.

Response: We have revised the language in paragraph (m)(2) to

include ``linked automated information systems'' as an example of a

process that will lead to additional coordination of services. In

regard to the remaining comment, we feel that the purposes expressed by

these commenters are captured throughout the rule and therefore have

not revised the language.

[[Page 58647]]

Comment: One commenter recommended that the requirements for

service coordination under paragraph (m) and family preservation and

family support services and linkages to other social and health

services under paragraph (o) be merged into a single section which

clearly states that the ultimate purpose of service coordination is to

improve the well-being of children, youth and families. This commenter

stated that while the preamble is clear on the importance of system

coordination, the rule is not; and they suggested the rule be revised

to clearly specify that there should be coordination with service

delivery systems providing social, health, education and economic

services to children and their families but also with mental health,

developmental disabilities and housing systems.

Response: While we agree that paragraphs (m) and (o) speak to

coordination and linkages of services respectively, we do not believe

these requirements should be merged as each paragraph also has a

separate aim. The intent of paragraph (m) is to describe the overall

coordination process for the full range of child and family services

provided by the State. Whereas, paragraph (o) is focused on the

expansion of family preservation and family support services and the

linkages with other services and service delivery systems as well as

within the child and family services continuum.

Section 1357.15(n) Services

At the heart of the State and Indian Tribal plans is the

description of child and family services. We believe that the

description of services required in this section is one of the most

important aspects of the CFSP. Not only will it provide a comprehensive

picture of the services provided and resources available, it can

clearly illustrate State and Indian Tribal decision-making in directing

services toward the goals and objectives in the CFSP and form the basis

for discussion of future coordination of services and improved service

delivery.

We have also noted in the rule that several of the requirements

(providing information on child protective services, child welfare

services, family preservation and support services, foster care, and

adoption) of paragraph (n) can be met by completing the CFS-101, Part

II--the Annual Summary of Child Welfare Services.

Comment: One commenter asked that we revise paragraph (n) to

encourage States to specify private support as well as publicly

supported family support programs in their child and family services

continuum, at least in targeted communities. This commenter also

recommended that the rule provide that child abuse and neglect

prevention, intervention and treatment should be reported separately

and distinctly from foster care even though they are both included in

the child and family services continuum.

Response: While information on private family support programs may

be included in a State's CFSP and are important in helping States to

determine where to target resources, for purposes of Federal reporting,

States need only report information on publicly funded services. We

believe it is clear that child abuse and neglect prevention,

intervention and treatment are to be reported separately from foster

care and we have not made any changes in response to this comment.

Section 1357.15(o) Family Preservation and Family Support Services and

Linkages to Other Social and Health Services

In meeting this requirement, States will use, in part, the

information gathered on the availability of family preservation and

family support services (see Sec. 1357.15(k)(2)). Since FY 1995 is the

first year in which all States are implementing the new title IV-B,

subpart 2 (family preservation and family support services,) we believe

this information will provide a national overview of the development,

operation, and/or expansion of family preservation and family support

services in all States as well as identify the processes States are

using to develop coordinated systems of care.

Comment: Commenters asked that States be specifically required to

link family preservation and family support to mental health and

education.

One commenter asked that the child and family services plan explain

how Federal mental health funds under the Child and Adolescent Service

System Program and the Child Mental Health Service Program, in addition

to CAPTA and ILP will be coordinated with the State's child and family

services system of care.

Response: While we do not require linkage to specific additional

programs or services beyond those directly in the plan, we believe the

language in paragraphs (m) and (o) is sufficiently broad to accommodate

the services listed by the commenters.

Comment: One commenter recommended that we amend the service

requirement to specify that the CFSP describe how the new family

support and family preservation service programs will relate to

privately funded as well as publicly funded family support services.

Response: We believe the commenter's point is addressed in

Sec. 1357.15(o)(3) which requires the CFSP to describe the linkage and

coordination of services in the continuum and other Federal and non-

federally funded public and non-profit private programs.

Section 1357.15(p) Services in Relation to Service Principles

We included the child and family services principles in this rule

at 45 CFR 1355.25 to assure that services designed with title IV-B

funding would be consistent with a vision expressed by practitioners in

the field, which we have embraced. We believe these principles are the

basis for the development of effective, responsive, and quality

services programs.

Comment: One commenter asked that reference to principles of child

and family services be clearly distinct from the vision, goals and

objectives that a CFSP contains. From the commenter's perspective, the

CFSP's vision, goals and objectives are the factors against which

progress should be measured while principles are to be used as

guidelines.

Response: We agree with the respondent's interpretation of the

distinction between the principles and the vision, goals and objectives

and believe this distinction is clear in paragraphs (h) and (i).

Section 1357.15(q) Services in Relation to Permanency Planning

The ``permanency provisions'' enacted by the Adoption Assistance

and Child Welfare Act of 1980 (Pub. L. 96-272) focused on the

importance of providing preventive and crisis intervention services and

establishing permanency for the children in foster care. Through

permanency planning, children were to be placed in permanent living

arrangements as quickly as possible. Permanency is still the

cornerstone of child welfare practice with children.

In October 1994, Pub. L. 103-432 was passed, amending the Social

Security Act. One of the amendments repealed section 427, effective

October 1, 1996. The protections that were formerly under section 427

of the Act are now incorporated in section 422(b)(9) as title IV-B Plan

requirements. Department policy has been and continues to be that the

State, as required by statute, is responsible for providing these

protections to all children, including Indian children. The specific

arrangements with respect to Indian children under Tribal jurisdiction

can

[[Page 58648]]

be effective only if they are discussed jointly by the State and the

Tribe. We are accordingly requiring that the CFSP include a discussion

of the arrangements that the State has made with Tribes for this

purpose. It is expected that the States will take the initiative to

contact all Tribes, if they have not done so already, for the purpose

of ensuring that the 422(b)(9) protections are provided to Indian

children. Likewise, a Tribe that wishes to receive direct funding must

include in its Plan a discussion of the arrangements that have been

made with the State (see Sec. 1357.40).

Comment: One commenter requested that we illustrate that family

preservation and family support services can and should be provided to

families when children live apart from their families in order to

achieve permanency for children.

Response: We agree with the thrust of the respondent's comment and

believe that the definitions of family preservation and support

services in Sec. 1357.10 and the principles at Sec. 1355.25 all support

the use of family preservation and family support services with

children living apart from their families as well as with families

before children have been removed. Family preservation and family

support are two critical strategies to be used to achieve permanency

for children.

Section 1357.15(r) Decision-Making Process: Selection of Family

Support Programs for Funding

In making funding decisions for family support services, we

strongly recommend that States examine the work and accomplishments of

community-based organizations and look to them as the providers of

first resort of family support services. It is these organizations,

based in and trusted by the community, which typically have the

knowledge and expertise to effectively provide these services.

Comment: One commenter suggested that the requirement for

decisionmaking be expanded to include information on how the State will

select criteria for funding services over the five-year period.

Response: While we believe that States should establish such

criteria to support decisionmaking, we believe that such requirements

for selection are not required for Federal reporting purposes.

Comment: One commenter noted that the preamble recommended that

States look to community-based organizations that are based in and

trusted by the community as the highest priority potential providers of

family support services and was concerned that there is nothing in the

rule to allow Federal officials to know the extent to which such

community-based organizations are in fact the providers of these

services. The commenter recommended that the CFSP be required to

reflect in more detail the nature of the providers that are chosen and

what percentage of the family support dollars are being provided by

different types of community-based organizations.

Response: The Statute requires that family support services be

community-based, not necessarily provided by community-based agencies.

We support State efforts to set detailed guidelines or criteria

regarding selection and the extent to which different types of

community-based organizations should be involved. However, reporting of

this nature would not be necessary for Federal purposes.

Section 1357.15(s) Significant Portion of Funds Used for Family

Support and Family Preservation Services

A statutory requirement of section 432(a)(4) of the Act, this

provision is designed to assure that both family preservation and

family support services are developed within a State or Indian Tribe.

While the statute does not define ``significant,'' the State's

rationale will need to be especially strong if the request for either

percentage is below 25 percent.

Comment: While a number of commenters remarked positively on this

section, there were some opposing comments. One commenter recommended

that rather than provide that ``there is no minimum percentage but a

State's rationale will need to be strong if below 25 percent'', we

provide instead, ``There will be no minimum percentage that defines

significant. The States will provide the rationale for funding

allocation method.'' The commenter was concerned that to insist on a

specific percentage imposes a top-down insistence that may not be

embraced positively in the communities.

Another commenter stated that the requirement that States indicate

the specific percentage of Federal funds the State would expend for

community-based family support services and for family preservation

services and a rationale would be difficult if not impossible to

determine since many services can be considered both, such as the

State's new home visiting program. Instead, the commenter asked that

the standard be revised to give the State flexibility in determining

how best to use IV-B funds. One commenter indicated that they would not

support the inclusion of a minimum percentage to define significant

portion of funds, stating that a planning process should be a forum for

reform rather than for ``dividing up the pie.''

Response: We believe that this section, of all the options

considered, best represents the approach for determining ``significant

portion.'' We believe we must provide some guidance to States on

meeting this requirement, while remaining committed to providing

maximum flexibility to accommodate a wide range of differences among

States. While we understand that in some cases it may be difficult to

categorize certain programmatic expenditures as either family

preservation or family support services, we see the joint planning

process as the mechanism by which States, Tribes and Regional Offices

can reach agreement on these matters. We will support all reasonable

determinations made and are available to provide technical assistance

if requested.

Comment: One commenter was concerned about a perceived lack of

emphasis on primary prevention, stating that while the child and family

service plan is important, it may be difficult to coalesce treatment

and prevention agencies without losing hard fought focus on prevention

initiatives. The commenter was concerned that the rule did not provide

guidance on the percentage of funds to devote to programs for family

preservation and support and thought that without this, there may be

less allocated to primary prevention efforts.

Response: We believe that it is important to note that even the

limited focus on prevention provided in this rule is stronger than that

addressed previously. We do not think it necessary, or within our

authority, to provide restrictions on the percentage of funds for

family support or family preservation services. Paragraph (s) of

Sec. 1357.15 requires States to include an explanation of distribution

of funds and requires that States which spend less than 25 percent on

family preservation or on family support have an especially strong

rationale for the minimal funding level.

Section 1357.15(t) Staff Training, Technical Assistance and Evaluation

States and Indian Tribes consistently build staff expertise and

organizational capacity for the design and delivery of family

preservation and family support services as well as conduct self-

evaluations. We want to emphasize that States are not required to

conduct

[[Page 58649]]

evaluations and/or research activities related to the CFSP.

Comment: A number of comments were received on the general nature

or specific aspects of the training and technical assistance portion of

the CFSP as presented in the NPRM.

Two respondents were pleased to see training and technical

assistance conceptualized as a program cost and not viewed as an

administrative cost.

One commenter wanted the subsection strengthened by adding language

from the preamble dealing with interdisciplinary training and

continuous improvement.

Several respondents wanted standards for elements such as staffing

qualifications, different types of training, training requirements, and

coordination.

A commenter was disappointed that the NPRM failed to present a

specific mechanism to teach staff how to work effectively within the

new value base.

A few respondents perceived the preamble of the NPRM as

recommending that the entire staff of the child welfare agency

providing family preservation and family support services be trained

and that specific types of training be proposed. They were concerned

with what appeared to them to be insufficient Federal funds to support

this approach to T&TA and one urged title IV-E training funds be

allowed to be used.

Two commenters called for cross-disciplinary training.

Response: Although a number of focus group members convened to

guide implementation of the Family Preservation and Support Services

Program prior to the publication of the NPRM recommended training all

child welfare system staff, a decision has been made to not transform

that request into regulations. Decisions regarding the facets of

training and specific training content can only be made by each State

or Indian Tribe based upon their CFSP. In response to concerns raised

about interdisciplinary training and continuous improvement, we added

the following language to Sec. 1357.15(t)(1): ``Training must be an

ongoing activity and must include content from various disciplines and

knowledge bases relevant to child and family services, policies,

programs, and practices. Training content must also support the cross-

system coordination consultation basic to the development of the

CFSP.''

Training supported by various Federal funding streams should be

linked together. The title IV-E training plan must be combined with the

CFSP training plan submitted as part of the title IV-B plan to promote

the coordination of overall training and the integration of training in

support of programmatic efforts. States and Indian Tribes are

encouraged to make title IV-E training as complementary to and

supportive of the CFSP as it can be. At the same time, title IV-E

training has a unique focus and operates within a specific statutory

and regulatory framework.

Comment: Several respondents either requested clarity regarding

what was meant by evaluation, or proposed specific evaluation

strategies to be incorporated into the rule.

A respondent requested additional funding support for evaluation.

One respondent felt the use of the term ``evaluation'' in this

subsection was confusing.

Three commenters supported State administered evaluation efforts,

self-evaluation practices tied to the unique circumstances each State

or Indian Tribe has to contend with, or front-end evaluation.

One commenter asked that voluntary providers be involved in the

evaluation of the T&TA effort.

Response: Evaluation is extremely important and although evaluation

is not required and extra funds are not provided specifically, as

indicated in Sec. 1357.15(t)(3), there is support for any evaluation

underway or planned in a State or Indian Tribe related to the goals and

objectives of the CFSP. In addition to State and/or Tribal activities,

the Department is conducting national evaluations which will help

inform professional and policy audiences about the effects of the

services. The Family Preservation and Support Services Program, title

IV-B, subpart 2, remains a capped entitlement program, and no

additional funds beyond the State or Tribal yearly allocation are

available.

Comment: One respondent called for the inclusion of staff from

voluntary agencies in training.

Response: There will be no change in regulatory language because it

would be inappropriate to regulate any specific group that must be

involved in training. It is assumed that when voluntary agencies are

represented in the goals and objectives set forth in the CFSP and

actively involved in the implementation of the CFSP, they will, of

necessity, have to participate in appropriate training.

Comment: Two respondents raised cultural issues in relation to

training.

One commenter urged that ICWA mandates and other American Indian

cultural competence training materials be required for inclusion in

training activities.

A second commenter asked for education and billing ``waivers'' to

develop culturally sensitive providers for specific groups.

Response: In Sec. 1355.25(e) we affirm the importance of cultural

issues and factors in the design and delivery of child and family

services. It would not be suitable to weave into the rule particular

culturally-based items or resource materials that must be included in

training. States which have American Indian or Alaskan Native

populations and Tribal governments or other culturally or

linguistically diverse populations will have the motivation and

flexibility to develop and offer culturally relevant training. Also,

since statutory provisions neither request nor require specific

providers for specific groups, there is no basis for establishing

regulations on the issue.

Section 1357.15(u) Quality Assurance

In designing, expanding, and implementing quality assurance

activities, States and Indian Tribes may wish to refer to the

principles in 45 CFR 1355.25.

Comment: We received several responses to our request for

recommendations for model approaches, procedures and basic measures or

measures of quality. One commenter urged that we continue to gather

information for purposes of providing guidance and technical assistance

to States but that quality assurance systems not be used as a measure

of compliance with any minimal Federal standards. Another commenter

remarked that an HHS Office of the Inspector General 1994 Report

recommended that ACF require States to have quality assurance programs

in place that look at the quality of casework and services provided,

not just documentation of procedures.

The commenter recommended that States be required to spell out, at

a minimum: Standards against which they will assess the quality and

effectiveness of services provided, how various requirements described

in this rule will be met, and procedures to discontinue services that

do not meet certain standards of quality.

Response: We support the commenter's position that quality

assessment can provide information to allow more meaningful Federal

guidance and technical assistance to States. While this information

will be helpful in determining compliance with Federal requirements, it

will not serve as the sole tool for monitoring compliance. We

considered establishing minimum Federal standards for quality

[[Page 58650]]

services, but recognizing the variance in individual State

circumstances, we determined that States should have flexibility to

design their own quality assurance systems.

Comment: One commenter asked that we strengthen the rule by

including some examples of quality assessment techniques for cultural/

linguistic competence.

Another commenter noted that the rule allows virtually unlimited

discretion in designing a quality assurance system but offered that any

effective system would normally be expected to include certain data

collection and assessment methods such as case reading.

Response: We have decided not to expand on the examples or

requirement of quality assessment techniques given in this rule to

provide States with maximum flexibility. These examples were given for

illustrative purposes only and we believe that States would be in the

best position to design their own quality assurance systems.

Comment: One commenter stated that the requirements of this section

could result in the submission of voluminous amounts of data since the

commenter's State has an entire division responsible for quality

assurance, performance/outcome measures.

The commenter suggested that the time spent to prepare an adequate

description to accompany the plan would be better spent on the

processes related to the plan itself.

Response: The requirement of Sec. 1357.15(u) is that States submit

a description of the quality assurance system it will use, and not the

data produced by that system. Since quality improvements are vital to

child and family services, we are committed to the importance of this

requirement.

Section 1357.15(v) Distribution of the CFSP and the Annual Progress

and Services Report

We believe it will be useful to States and Indian Tribes to share

the CFSP and the Annual Progress and Services Reports, both with each

other and with those individuals, agencies, and organizations which are

a part of the ongoing consultation and coordination effort. Such

dissemination can lead to increased support, knowledge and coordination

of services.

Comment: One commenter suggested that the final rule should require

the CFSP and annual progress report be made available to anyone upon

request and require States to provide for similar availability of

quality assurance data. The commenter further recommended that the

grantee should be required to document not only what it plans to do to

accomplish its goals and objectives but also what it does not plan to

do and why. For example, if a state decides to channel all or most of

its funding into one or a limited number of services categories it

should have to explain why.

Response: We agree that the annual progress report must be

available to the public. We will not, however, further specify what a

State or Indian Tribe must include in that review.

Section 1357.16 Annual Progress and Services Reports

Reports from States and Tribes will be key to ongoing learning and

growth in practice of child and family services and the ongoing

planning and implementation of child and family services. The reports

from States and Tribes will be used to update the State's or Indian

Tribe's goals and objectives of the child and family services programs.

We have added in paragraph (b) the requirements for the submission

of the CFS-101. The directions for submitting the CFS-101 will vary

depending upon where each State and eligible Indian Tribe is in terms

of consolidating title IV-B, subparts 1 and 2, and the status of each

eligible Indian Tribe regarding title IV-B, subpart 1.

Comment: One commenter suggested that we call for an inclusive

planning process by requiring that those involved in the ongoing

consultation and coordination process be involved in annual reviews of

a State's activities and that the Annual Progress and Services Report

specify any revisions necessary in goals, objectives, services or

program design to reflect changed circumstances.

Response: We believe both recommendations are addressed in

paragraph (a) of this section.

Comment: One commenter asked that we delete ``review'' from

``Annual progress reviews and services report'' for consistency with

other references.

Response: We agree and have revised the wording of the section

title accordingly.

Comment: Several commenters suggested that we include a requirement

that the annual progress report explain what progress the State has

made toward service coordination. Another commenter asked that the

annual progress review and services report be required to identify

specific accomplishments based on empirical data rather than personal

and professional judgment and recommended deleting the ``e.g.'' which

implies that provided outcomes for children and families is merely an

example of a goal or objective.

Response: We agree with these commenters and we believe that

paragraph (a)(1) addresses the need for a requirement on the progress

States and Indian Tribes have made toward service coordination for

children and families and therefore have not made any changes. We have

also revised the paragraph by deleting the ``e.g.''

Section 1357.20 Child Abuse and Neglect Programs

This section clarifies the titles and relevant citations of the

Child Abuse and Neglect Program.

No comments were received on this section.

Section 1357.30 State Fiscal Requirements (Title IV-B, Subpart 1,

Child Welfare Services)

In order to bring title IV-B, subpart 1 onto the same schedule as

that provided for subpart 2, existing rules which have proven to be

unnecessarily confusing to and burdensome on States, have been

adjusted. We have deleted the requirement for an obligation period and

require instead that subpart 1 funds must be expended (liquidated) by

September 30 of the fiscal year following the fiscal year in which the

funds were awarded. This will mean an identical expenditure period for

funds under title IV-B, subparts 1 and 2, and the independent living

program. As indicated previously, a conforming amendment was made in 45

CFR 1355.30 to clarify that 45 CFR part 95, subpart A, is not

applicable to title IV-B programs.

In response to comments, a change was made in Sec. 1357.30(e),

Sec. 1357.32(d), Sec. 1357.40(d), and Sec. 1357.42(g). We have decided

to allow the use of non-public third-party cash, donations and in-kind

contributions, in accordance with 45 CFR 92.24 (see the discussion of

in-kind in Part II of this preamble).

A technical deletion has been made to paragraph (a) reflecting a

statutory change discontinuing the transfer of title IV-E foster care

funds to title IV-B child welfare services (Pub. L. 103-432).

Comment: One commenter was concerned that it will be problematic to

obligate and liquidate funds in the time limit if subpart 1 is fully

funded.

Response: Once the States and Indian Tribes submit their

applications for subparts 1 and 2 funds by June 30 there will be a full

two years to spend the money.

Comment: One commenter asked if States will have to submit an

application for funds for reallotment or whether the Commissioner will

reallot any available funds independently on

[[Page 58651]]

the basis of the amount originally requested in the annual budget

request.

Response: Since requests for reallotment are rare we will not be

changing the rule on the process for reallotment. If funds become

available for reallotment States will be notified and provided with

instructions to apply for those funds.

Section 1357.32 State Fiscal Requirements (Title IV-B, Subpart 2,

Family Preservation and Family Support Services)

In this section, we have defined administrative costs as those

costs associated with auxiliary functions to support development and

implementation of the Child and Family Services Plan and Annual

Progress and Services Report (e.g., procurement, payroll, personnel

functions, management, maintenance, operation of space and property,

data processing and computer services, accounting, budgeting, auditing,

and indirect costs.)

We have also added a clarification that costs directly associated

with implementing the CFSP are not considered administrative costs

(e.g., delivery of services, planning, consultation, coordination,

training, quality assurance measures, data collection, evaluation, and

supervision) and are considered program costs.

Comment: One commenter asked that in paragraph (d)(2), a definition

of the term ``donated funds'' be provided. Another commenter

recommended that the terminology, Federal, State, and local and private

funds be used rather than Federal, State, local, and donated. This

commenter went on to suggest that when referring to cash versus non

cash, that the term cash alone be used. The term donated can apply to

cash or in-kind but should be used in referring to contributions from

third parties which are not the Family Preservation and Family Support

grantee. The commenter suggested that the definition for cash and in-

kind should be that found in 45 CFR 92.3 for cash contributions and

third-party in-kind contributions.

Response: We are not providing a definition, per se, of ``donated

funds'' in this rule but in response to this comment we clarify that

the non-Federal match may be donated funds and may be in kind

contributions. In addition to the cite to 45 CFR 92.3 provided by the

commenter we would also refer readers to 45 CFR 92.24 as an additional

reference on matching and cost sharing.

Comment: Two commenters stated that they had been given guidance

that existing State general revenue expenditures for family

preservation and family support could be used to meet the match

requirement for service expansion but were concerned that the rule was

not clear on whether this is, in fact, permissible.

Response: Existing State general revenue expenditures can only be

used as match if they are newly devoted to family preservation and

family support purposes.

Comment: Several commenters recommended that non-Federal funds to

meet the non-supplantation requirement be defined as State only, not

local, public funds because of State difficulty in determining and

collecting fiscal information from all local public agencies providing

family preservation and family support services.

Response: We agree and have revised the language in paragraph (f)

by deleting the reference to local public funds and have defined ``non-

Federal funds'' as State funds.

Comment: One commenter suggested that at the State level, an agency

other than the IV-B agency should be treated the same as local public

entities with respect to maintenance of effort requirements to assure

separate records are kept that non-supplantation has not occurred.

Response: While we are not addressing the issue explicitly in this

rule, States have the authority to require assurances of their

subrecipients.

Comment: One commenter voiced concern that the non-supplantation

requirements are vague and largely unenforceable, since identification

of FY 1992 costs in many cases will be infeasible as such costs were

buried in titles IV-B, subpart 1; XX; IV-A EA; IV-A (administration)

and State general revenue costs centers. The commenter recommended that

State non-supplantation should be limited to an ``assurance'' and that

definitive instructions should be developed as to what should be

reported for the annual reporting requirement.

Response: While non-supplantation is an assurance, back-up

documentation must still be maintained at the State level for auditing

purposes.

Comment: Several comments were received regarding the 10 percent

limitation on administrative costs.

One commenter suggested the limit be applied only to the title IV-

B/IV-E agency and not the direct service provider, otherwise the policy

may have the unintended consequence of prohibiting small, community-

based agencies from participating in the initiative.

Another commenter asked that the limitation on administrative costs

be increased to 15 percent.

Several commenters were concerned that the definition of

administrative costs is unworkable since it goes beyond existing cost

allocation procedures. Concern was voiced that to separate costs as

suggested would be very time consuming, and inclusion of the general

category of management in (ii) will mean that large portions of the

cost of carrying out any such program will be ineligible for Federal

funds. It was suggested that management be deleted from the list and a

general definition of administrative expenditures based on existing

cost allocation procedures be used.

Another commenter recommended that administrative costs be defined

as indirect and other non-program support, as allocable in accordance

with the agency approved cost allocation plan.

Response: The 10 percent administrative cost limitation is found in

the statute at Sec. 432(a)(4) and cannot be modified. In response to

comments the 10 percent administrative cost limitation in paragraph (h)

will be applied only to the Federal share of funds.

We believe the definition of administrative costs is consistent

with existing regulations and procedures, including those governing

agency approved cost allocation plans, and provides States increased

flexibility.

We would also like to clarify that ``administrative cost'' and

``program cost'' are program relative terms which describe how costs

relate to specific program activities. The definition of an

administrative or programmatic cost will vary according to the nature

of an individual program. ``Indirect costs'' and ``direct costs'' are

general accounting terms which describe how costs are allocated to a

program or activity budget. Program costs are costs of major functions

such as delivery of services incurred in connection with developing and

implementing the CFSP.

Comment: One commenter suggested that States be required to provide

an explanation of how they will transfer administrative resources to

communities.

Response: The distribution of administrative resources is

undertaken at the discretion of the individual State and we are not

making any changes to the rule to require an explanation of how these

resources are transferred to communities.

Comment: Two commenters asked that a definition of subrecipient be

included in the final rule.

Response: A definition of subrecipient has not been added to this

rule. ``Subrecipient,'' as used in this final rule, refers to a legal

entity to which

[[Page 58652]]

funds have been awarded by a State or Tribal grantee. The term is

intended to reflect the various kinds of funding relationships (e.g.,

grants, contracts, interagency agreements, etc.,) which may exist

between States/Indian Tribes and the agencies and organizations they

fund.

Section 1357.40 Direct Payments to Indian Tribal Organizations (Title

IV-B, Subpart 1, Child Welfare Services)

Previously, Indian Tribes could submit their title IV-B (subpart 1,

child welfare services) plan at one, two, or three year intervals with

annual updates. We believe a five-year plan will not only reduce

administrative burden but will enable the Indian Tribe to deliver

services in the context of a plan that includes both short-term

objectives and long-term goals, supported by consultation and

coordination activities, leading to more coordinated and effective

services.

As previously stated in section 1357.15(q), section 427 of the Act

was repealed by Pub. L. 103-432, effective October 1, 1996. The

protections formerly embodied in section 427 are now incorporated in

section 422(b)(9) as title IV-B Plan requirements. Department policy

has been and continues to be that the State, as required by statute, is

responsible for providing these protections to all children, including

Indian children.

Tribes that wish to receive direct funding under title IV-B, in

accordance with section 428 of the Act, are not required under current

law or regulations to provide the protections that were specified

previously in section 427 to receive direct funding. The provision of

those protections is the legal responsibility of the State. However, a

Tribe, by arrangement with the State, may choose to provide those

protections itself. As set forth in the final regulation, a Tribe that

wishes to receive direct funding under title IV-B, subpart 1, must

include in its Plan a discussion of the arrangements that have been

made with the State for the protection of children in accordance with

section 422(b)(9). It is expected that the States will take the

initiative to contact all Tribes, if they have not done so already, for

the purpose of ensuring that the 422(b)(9) protections are provided to

Indian children.

The NPRM, which was drafted prior to enactment of the Social

Security Amendments of 1994, referred to the section 422 provisions in

their entirety as a basis for direct funding of Tribes; now that the

former section 427 protections have been incorporated in section

422(b)(9), this is no longer accurate. Accordingly, the final rule has

been corrected to make clear that, as is the case under the current

regulation, Tribes are not required to provide the protections in

section 422(b)(9) as a condition of receiving direct funding.

Comment: One commenter asked that the funding of Tribal consortia,

which may serve more than one Tribe, be considered for funding.

Response: The NPRM sanctioned the eligibility of consortia. In

order to make this point clearer, the language in Sec. 1357.40 (a) and

(b) has been modified.

Comment: Several respondents addressed either the content or

duration of the plans to be submitted by Indian Tribal Organizations.

One respondent wanted to make sure the Indian Tribe would say in

its plan how its title IV-B, subpart 1, money would be used.

Another commenter stated that a five-year plan was preferable to a

plan of one, two or three years.

Response: The CFSP and the CFS-101 submitted by Indian Tribes will

detail how title IV-B funds will be spent. There is a statutory basis

for requiring five-year plans.

Comment: One commenter requested substituting the phrase

``federally recognized Indian Tribe'' for ``Indian Tribal

Organization'' to avoid any confusion or misinterpretation.

Response: There will be no change in language because the

respondent's request fails to consider a major distinction between

``Federally recognized Indian Tribe'' and ``Indian Tribal

Organization'' (ITO) in relation to title IV-B, subpart 1. Prevailing

statute and regulations grant Federally recognized Indian Tribes the

authority to delegate authority to an ITO for purposes of securing

title IV-B, subpart 1 funds. Therefore, it is conceivable that an

Indian Tribe could have been given authority by a Federally recognized

Indian Tribe to obtain title IV-B, subpart 1 funds. Use of the term

``Federally recognized Indian Tribe'' is too restrictive because it

eliminates potential recipients of the title IV-B, subpart 1 funds.

Section 1357.50 Direct Payments to Indian Tribal Organizations (Title

IV-B, Subpart 2, Family Preservation and Family Support Services)

We have made several changes in this section in response to

comments, even though most comments were supportive. Changes have been

made in the portions of this section dealing with (d) eligibility, (f)

exemptions, and (g) matching.

In terms of eligibility, as described in Part II of this preamble,

additional Indian Tribes eligible for title IV-B, subpart 2 funding in

FY 1996 and thereafter have been given in (d)(3), (4), and (5) a

timeframe within which a five-year CFSP must be submitted that meets

all of the criteria in Sec. 1357.15. Also in Sec. 1357.50(d)(5)(iii)

Indian Tribes have been given the option of conducting planning

activities or providing services during the first year in which the

Indian Tribe receives title IV-B, subpart 2 funds.

In order to identify ``the most current and reliable information

available,'' required by statute in the selection of eligible Indian

Tribes, we looked at the various sources of data available on the

number of children in each Tribe, including children in the Alaska

Regional Corporations, to determine the data set most reliable and

valid. We concluded that the Census Bureau data--rather than Tribal

documentation or BIA labor force statistics--is the best source. Census

data is more uniform, objective, and based on sample design and the use

of scientific methodology. In addition, the Census Bureau data defines

``child'' as a person from birth to age 20 while the BIA data defines a

child as a person from birth to age 16. The Census Bureau also has data

on child population in all Alaska Regional Corporations while the BIA

has data on only two Regional Corporations.

Comment: One commenter supported the exemption of certain statutory

requirements for Indian Tribes.

Response: The statute grants the Secretary exemption authority for

Indian Tribes from any inappropriate requirements. We have provided

three exemptions of statutory requirements in Sec. 1357.50(f). They

are: (1) 10% limitation on administrative costs; (2) the non-

supplantation requirement; and (3) the requirement that a significant

portion of funds must be used for family preservation and family

support. Indian Tribes can make formal requests to ACF for exemptions

of any other requirements.

Comment: Two respondents dealt with the match issue.

One commenter supported in-kind match for eligible Indian Tribes.

One respondent believed there should be no matching requirement for

Indian Tribes.

Response: In Sec. 1357.50(g) it is made clear that non-public third

party in-kind contributions can be used toward the non-Federal share.

The rules governing match have been designed in such a way that all

eligible Indian Tribes should have no problem meeting the match

requirements.

Comment: One commenter raised concern that the requirement to

expend

[[Page 58653]]

all funds by September 30 of the following fiscal year is not needed

and is inconsistent with the Indian Self-Determination Act.

Response: The Indian Self-Determination Act applies only to

programs funded under that Act. We must adhere to the Social Security

Act, section 434, in this case, which requires that all funds be

expended by the close of the fiscal year following that in which funds

were awarded.

Executive Order 12866

Executive Order 12866 requires that regulations be drafted to

ensure that they are consistent with the priorities and principles set

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

rule is consistent with these priorities and principles. This final

rulemaking implements statutory authority for a broad consultation and

coordination process leading to the development of five-year child and

family services plan.

The Executive Order also encourages agencies, as appropriate, to

provide the public with meaningful participation in the regulatory

process. As described earlier in the preamble, ACF held focus group

discussions with State, local, and Tribal officials, and a broad range

of private nonprofit agencies, organizations, practitioners,

researchers, parents, and others to obtain their views on planning and

implementation issues for this new title IV-B program.

The input received during the consultation process on the new

Family Preservation and Family Support Program was reflected in the

NPRM. The vast majority of comments were extremely supportive of the

NPRM--the flexibility provided to State and local agencies, the

emphasis on collaboration and coordination in order to bring about

improved outcomes for children and families, and the focus group

process employed in the NPRM's development. Commenters particularly

supported the rule's joint planning and consultation process and the

emphasis on a vision and principles of child and family services

leading to more responsive, proactive systems of care. We believe that

this rule reflects, to a considerable degree, the recommendations of

the focus group participants and the comments received in response to

the NPRM.

Regulatory Flexibility Analysis

The Regulatory Flexibility Act (5 U.S.C. Ch. 6) requires the

Federal government to anticipate and reduce the impact of rules and

paperwork requirements on small businesses and other small entities.

Small entities are defined in the Act to include small businesses,

small non-profit organizations, and small governmental entities. This

rule will affect only States and certain Indian Tribes. Therefore, the

Secretary certifies that this rule will not have a significant impact

on a substantial number of small entities.

Paperwork Reduction Act

This rule contains information collection activities which are

subject to review and approval by the Office of Management and Budget

(OMB) under the Paperwork Reduction Act of 1995. Under the Paperwork

Reduction Act of 1995, no persons are required to respond to a

collection of information unless it displays a valid OMB control

number. We will be seeking comment from the public on these information

collection activities in a separate Federal Register notice in the near

future.

List of Subjects

45 CFR Part 1355

Adoption and foster care; Child abuse and neglect; Child and family

services; Child welfare services; Data collection; Definitions--Grant

Programs social programs; Family preservation and family support

services.

45 CFR Part 1356

Adoption and foster care; Administrative costs; Child and family

services; Child welfare services; Fiscal requirements (title IV-E);

Grant Programs--Social programs; Independent living program; statewide

information systems.

45 CFR Part 1357

Adoption and foster care; Child abuse and neglect; Child and family

services; Child welfare services; Family preservation and family

support services; Independent living program.

(Catalog of Federal Domestic Assistance Program No. 93.556--Family

Preservation and Support Services; No 93.645--Child Welfare

Services--State Grants; No. 93.669--Child Abuse and Neglect--State

Grants; and No. 93-674--Independent Living)

Dated: March 22, 1996.

Mary Jo Bane,

Assistant Secretary for Children and Families.

Approved: July 30, 1996.

Donna E. Shalala,

Secretary.

For the reasons set forth in the preamble, 45 CFR Chapter XIII is

amended as follows:

1. Subchapter G is amended by revising the heading to read as

follows:

SUBCHAPTER G--THE ADMINISTRATION ON CHILDREN, YOUTH AND FAMILIES,

FOSTER CARE MAINTENANCE PAYMENTS, ADOPTION ASSISTANCE, AND CHILD AND

FAMILY SERVICES

PART 1355--GENERAL

2. The authority citation for part 1355 continues to read as

follows:

Authority: 42 U.S.C. 620 et seq., 42 U.S.C. 670 et seq. and 42

U.S.C. 1301 and 1302.

3. Section 1355.10 is revised to read as follows:

Sec. 1355.10 Scope.

Unless otherwise specified, part 1355 applies to States and Indian

Tribes and contains general requirements for Federal financial

participation under titles IV-B and IV-E of the Social Security Act.

4. Section 1355.20(a) is amended by revising four definitions and

by adding one definition to read as follows:

Sec. 1355.20 Definitions.

(a) * * *

ACYF means the Administration on Children, Youth and Families,

Administration for Children and Families (ACF), U. S. Department of

Health and Human Services.

* * * * *

Commissioner means the Commissioner on Children, Youth and

Families, Administration for Children and Families, U.S. Department of

Health and Human Services.

* * * * *

Independent Living Program (ILP) means the programs and activities

established and implemented by the State to assist youth, as defined in

section 477(a)(2) of the Act, to prepare to live independently upon

leaving foster care. Programs and activities that may be provided are

found in section 477(d) of the Act.

State means, for title IV-B, the 50 States, the District of

Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands,

the Commonwealth of the Northern Mariana Islands, and American Samoa.

For title IV-E, the term ``State'' means the 50 States and the District

of Columbia.

State agency means the State agency administering or supervising

the administration of the title IV-B and title IV-E State plans and the

title XX social services block grant program. An exception to this

requirement is permitted by section 103(d) of the Adoption Assistance

and Child Welfare Act of 1980 (Pub. L. 96-272). Section 103(d) provides

that, if on December 1, 1974, the title IV-B program (in a State or

local agency) and the social services

[[Page 58654]]

program under section 402(a)(3) of the Act (the predecessor program to

title XX) were administered by separate agencies, that separate

administration of the programs could continue at State option.

* * * * *

5. Section 1355.21(c) is revised to read as follows:

Sec. 1355.21 State plan requirements for titles IV-B and IV-E.

*

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