Association on American Indian Affairs

1. Association on American Indian Affairs Title IV-E: Helping Tribes Meet the Legal Requirements Prepared by Jack F. Trope, Executive Director, Association on American Indian Affairs (AAIA), for the National Congress of American Indians Policy Research Center

2. Association on American Indian Affairs • Overview of Titles IV-B and IV-E • Basic federal child welfare statutes provide core funding for state child welfare systems • Establish requirements routinely included in child welfare systems -- for example, case plans, case review systems, reasonable efforts requirements, focus on child health and safety and expedited permanent placements.

3. Association on American Indian Affairs • Title IV-E: Overview • Provides money for foster care, adoption assistance and relative guardianship payments on an entitlement basis and grant money for services to children aging out of foster care • To be eligible (1) child’s family must have an income below AFDC 1996 eligibility levels, and (2) certain legal findings must have been made by a court of jurisdiction or there must be a voluntary agreement between the party and adminstering agency.

4. Association on American Indian Affairs • Title IV-E: Payments • Reimbursement is received for foster care, adoption assistance and guardianship payments, as well as administration, data systems and training costs connected with providing services to Title IV-E eligible children. • Reimbursement rate for direct payments for children is based on the Federal Medical Assistance Rate (FMAP), a calculation determined by per capita income rates; administration and data systems costs are reimbursed at 50%, most training at 75%

5. Association on American Indian Affairs • Title IV-E: Payments • Administration Reimbursement formula: Allowable costs x IV-E Penetration Rate x 50% of federal reimbursement • Examples of reimbursable administrative costs: training: development of child’s case plan, case management and supervision, case reviews, arranging for services, IV-E data collection, implementation of quality assurance system, overhead related to IV-E activities

6. Association on American Indian Affairs • Title IV-E: Payments • Training Reimbursement formula: Allowable costs x IV-E Penetration Rate x 75% of federal reimbursement • Examples of reimbursable training: topics related to administration, social work practice, cultural competency, activities designed to preserve or reunify the family (but not related directly to services), child abuse and neglect issues (not related directly to CPS), effects of separation, child development, visitation, and substance abuse

7. Association on American Indian Affairs • Fostering Connections to Success and Increasing Adoption Act of 2008: Tribal Provisions • Direct funding to tribes • Tribal-state agreements • Eligibility for foster care maintenance, adoption assistance and guardianship payments • Current recipients protected

8. Association on American Indian Affairs • Fostering Connections to Success and Increasing Adoption Act of 2008: Tribal Provisions (cont.) • Tribal-defined service area • Tribally-developed foster care licensing standards • Financial capacity requirement • Use of tribal per capita for FMAP calculation

9. Association on American Indian Affairs • Fostering Connections to Success and Increasing Adoption Act of 2008: Tribal Provisions (cont.) • In-kind match permitted • Retroactive court orders and affidavits may be used for eligibility for first 12 months • $3 million per year appropriated to assist in implementation – for both technical assistance and capacity building grants

10. Association on American Indian Affairs • Legal basis for children becoming clients of a tribal Title IV-E program • Inherent sovereign authority – tribal members • Jurisdiction over other Indian children • Transfer of jurisdiction from state court • Tribal custody through state court order

11. Association on American Indian Affairs • Existing tribal courts • Almost all tribes have courts except in California (although the number in CA in increasing) • Variety of forms – from traditional to Euro-American based; in some case tribal council may serve as court • Most typical court – Euro-American form with accommodations for tribal laws and customs.

12. Association on American Indian Affairs • Legal framework required • Required Title IV-E plan has 33 required elements, with many subparts. • Most requirements need to be met by reference to documents in written form • Can be tribal codes, rules and regulations, manuals, policies, agreements statements, or other documents depending upon the requirement.

13. Association on American Indian Affairs • Legal standards • Determination that a child is in need of care • Defined case plan • Eligibility determination form • Court proceedings • Removal a child from the home • Contrary to the welfare of the child • Reasonable efforts to prevent removal • Tribal nunc pro tunc

14. Association on American Indian Affairs • Legal standards • Placement preferences • Relatives • Multi-Ethnic Placement Act – ICWA exception • Least restrictive setting in close proximity to the parent’s home • Siblings

15. Association on American Indian Affairs • Legal standards • Termination of parental rights • Foster care placement – 15 of 22 months • Exceptions – case-by-case • Kinship care/guardianships • Adoptions • Customary adoptions • Voluntary placements – 180 days

16. Association on American Indian Affairs • Judicial/Administrative Proceedings • Case review systems – 6 months • Permanency Hearing • 12 months • Reasonable efforts to achieve permanency • Appeals – Denial of benefits/ eligibility

17. Association on American Indian Affairs • Judicial/Administrative Proceedings • Licensing of foster and adoptive homes, guardianships and child care institutions • Tribal standards • Limitations on who can be approved • Indian Child Protection and Family Violence Prevention Act (ICPFVPA)

18. Association on American Indian Affairs • Judicial/Administrative Proceedings • Background checks • Fingerprint checks • Checks of child abuse and neglect registries • ICPFVPA • Case plans • Merit- based Employment practices • Home studies

19. Association on American Indian Affairs • Judicial/Administrative Proceedings (cont.) • Payment level – set by tribe • Maximum number of children in foster care • Providing services • Training • foster parents • agency and court personnel • adoptive parents and guardians • Eligibility determinations – 1996 AFDC trigger

20. Association on American Indian Affairs • Judicial/Administrative Proceedings (cont.) • Reports and evaluation • Chafee program • Direct access • Access through tribal-state agreement • Cross-system coordination • Tribal-state coordination • Intra-tribal coordination

21. Association on American Indian Affairs • Jurisdictional issues • Who is subject to the jurisdiction of the court (personal jurisdiction) • Age • Non-tribal members • Definition of territorial jurisdiction • Service area • Tribal court structure

22. Association on American Indian Affairs • Third Party Rights/Obligations • Foster parents, preadoptive parents and relatives – right of notice, opportunity to be heard for those providing care; all relatives receive notice • Hold harmless – families currently receiving benefits • Reporting of child abuse and neglect • Medicaid • Privacy

23. Association on American Indian Affairs • Tribal-specific regulations • Third party in-kind expenditures can be used to meet the entire federal match for administration and training. Third party not defined. • FMAP for foster care maintenance, adoption assistance and kinship guardianship payments calculated by using census data for those who identify themselves as American Indian and Alaska Native living on tribal lands. Almost 85% of tribes will receive maximum reimbursement allowable (83%)

24. Association on American Indian Affairs • Tribal-specific regulations • Tribes will be subject to comprehensive Child and Family Services Review (CFSR) process only if it has at least 150 foster care and 150 in-home services cases and is operating both a Title IV-E subpart 1 and 2 program.

25. Association on American Indian Affairs • The Role of the States • States have an obligation to negotiate IV-E agreement with tribes in good faith if requested by the tribe. • Requirement should apply to all aspects of the Title IV-E program • State may use tribal FMAP for children covered by a tribal-state agreement

26. Association on American Indian Affairs • State Role (cont.) • In case of direct funding to tribes: • Coordinating with tribes, especially in regard to tribal service areas beyond reservation boundaries and cases involving transfer from state court to tribal court • Providing training, including training that may allow tribe to claim in-kind expenses • Ensuring that no child loses funding as a result of the tribe receiving direct funding

27. Association on American Indian Affairs • State Role (cont.) • Continuing funding to tribe to help provide match • Cross-system coordination between tribal and state IV-E agencies and state Medicaid office • Sub-contracting with tribe to operate parts of the program • States must also consult regarding the Chafee program

28. Association on American Indian Affairs • Possible Advantages of a Tribal-State Agreement • Process may be quicker and easier route to begin operating Title IV-E • Allows tribe to ease their way into the program, including operating only part of the program (although this might be addressed by an agreement even if direct tribal funding)

29. Association on American Indian Affairs • Possible Advantages of a Tribal-State Agreement (cont.) • May be able to utilize some existing state data and other systems • State funding may be available to help with match (although this can also be done when the tribe is funded directly)

30. Association on American Indian Affairs • Possible Disadvantages of a Tribal-State Agreement • May have to use some state systems and standards as opposed to ones that are tribally-developed • In-kind match not available to states • May be subject to CFSR process (for direct funded tribes only tribes with 150 or more children in care are subject to these reviews)

31. Association on American Indian Affairs • Conclusion • Many requirements of Title IV-E are already in tribal codes, regulations and policies • Most tribes will need to make some modifications to these documents in order to run the program • Some Title IV-E requirements are inflexible and tribes will need to decide if they are willing to comply with them in order to run the program • Many of the most important requirements are less prescriptive and tribes have flexibility to craft provisions that are consistent with community needs and tribal culture