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
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.
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.
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%
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
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
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
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
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
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
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.
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.
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
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
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
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
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)
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
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
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
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
•
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
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%)
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.
•
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
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
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
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)
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)
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)
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