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9.4. TRIBES/INDIAN TRIBAL ORGANIZATIONS, Title IV-E Agreements
Answer
It depends on whether the child is under the placement and care of the tribe or state. The title IV-E foster care program pays the costs of foster care for AFDC eligible children removed from their homes, for whom the State or the Tribe has responsibility for placement and care. It is an entitlement program for individual children and must be available to all eligible children.
The title IV-B child welfare services program provides Federal funds in the form of formula grants to States and Tribes consistent with the purposes in section 421 of the Act.
Some federally recognized Tribes providing child welfare services are eligible to receive title IV-B grants directly from the Federal government. Since these are grants to States and Tribes, and are not entitlements for individual children, the States and participating Tribes have the authority to allocate the use of these funds and to set priorities for their use.
Many States and Tribes have developed State-Tribal agreements which formalize the sharing of responsibility for providing foster care maintenance and child welfare services, using title IV-E and title IV-B funds, as well as Social Services Block Grant funds and State funds.
Where neither the State nor the Tribe has resources sufficient to cover all the needs of all Indian children, the Bureau of Indian Affairs (BIA), as payor of last resort, may pay for these services.
Source/Date
ACYF-CB-PIQ-88-02 (1/27/88; 4/14/20)
Legal and Related References
Social Security Act - sections 421, 422, 428, 472, and 479B; 25 CFR 20.3
Answer
No. It would not be necessary to decline entering into such Tribal-State agreements because of the Tribe's inability to meet certain title IV-E requirements.
We assume that by Tribal-State intergovernmental title IV-E agreements you are referring to an agreement for the placement and care of children eligible under section 472 (a) of the Social Security Act (the Act).
The terms of a title IV-E agreement, in accordance with section 472 (a)(2)(B) of the Act, would be negotiated between the State and the Tribe. The agreement should specify the respective responsibilities of each in relation to carrying out the title IV-E requirements. The agreement should also include provisions for assuring that the section 422 protections are afforded to each child in foster care under the Tribes responsibility for placement and care for whom title IV-E foster care maintenance payments are being made by the State. The State and Tribe would determine the responsibilities of each in meeting the section 422 requirements.
However, the State has ultimate responsibility for assuring that the title IV-E requirements are met for title IV-E eligible children.
Source/Date
ACYF-CB-PIQ-85-05 (4/12/85)
Legal and Related References
Social Security Act - section 472 (a)
Answer
In order for a State to meet the section 422 requirements, children under the Tribe's responsibility, but for whom the State is making title IV-E payments, must be included in the State's inventory and information system. The State must also assure that a case review system and a preventive and reunification services program are in operation and applicable to these Native American children.
The title IV-E agreement may designate whether the State or the Tribe will implement the case review system and provide the services specified above, since the State (making the title IV-E foster care maintenance payments) and the Tribe (having the responsibility for placement and care) have a shared responsibility for assuring title IV-E children receive these protections.
Source/Date
ACYF-CB-PIQ-85-05 (4/12/85)
Legal and Related References
Social Security Act - section 472 (a)(2)
Answer
No. Section 472(a) of the Social Security Act (the Act) outlines the eligibility requirements for a child to receive assistance and the conditions under which a State may make foster care maintenance payments under title IV-E and receive Federal financial participation (FFP).
In accordance with section 472(a)(2)(B), a State shall make foster care maintenance payments under title IV-E if, among other conditions, the child's placement and care are the responsibility of the State agency administering the title IV-E State plan or any other public agency (including an Indian Tribe) with whom the State agency has made an agreement which is in effect. There is no provision in the statute that authorizes title IV-E payments where custody or responsibility for placement and care of the child has been given to a private agency.
Therefore, if the State and the Indian Tribe negotiate and enter into an agreement which recognizes that the Tribe has been given custody or responsibility for placement and care of certain title IV-E eligible children and which confirms the Tribe's responsibility to comply with the requirements under title IV-E in relation to these children, the State may claim FFP under title IV-E for the costs of foster care maintenance payments for them.
Source/Date
ACYF-CB-PIQ-87-01 (3/25/87) (revised 12/2/14)
Legal and Related References
Social Security Act - section 472 (a)
Answer
When entering into a title IV-E agreement with a title IV-E agency, the tribe must adhere to the list of aggravated circumstances defined in State law. The statute at section 471 (a)(15)(D)(i) specifically requires that the aggravated circumstances in which reasonable efforts are not required be defined in State law. Moreover, other public agencies and tribes that enter into agreements with the State agency are not operating or developing their own title IV-E program separate and apart from that operated under the State plan. Rather, the agency or tribe is agreeing to operate the title IV-E program established under the State plan for a specific population of children in foster care. Therefore, the other public agency or tribe is bound by any State statute related to the operation of the title IV-E program. We expect the State child welfare agency to engage the tribes, and any other agency with which it has title IV-E agreements, in developing its list of aggravated circumstances.
Source/Date
Preamble to the Final Rule (65 FR 4020) (1/25/00) (revised 12/2/14)
Legal and Related References
Social Security Act - section 471 (a)(15)(D); 45 CFR 1356.21 (b)(3)
Answer
No. Tribes that receive title IV-E funds pursuant to a title IV-E agreement with a title IV-E agency must comport with section 471 (a)(20) of the Social Security Act and 45 CFR 1356.30 in accordance with the State plan in order to receive title IV-E funding on behalf of children placed in the homes it licenses. The statute expressly gives the State the authority to opt out of section 471 (a)(20) through State legislation or a letter from the Governor to the Secretary. Agreements between the State child welfare agency and other public agencies or tribes permit those entities to have placement and care responsibility for a particular group of the foster care population under the approved State plan. Such agreements do not permit other public agencies or tribes to develop a distinct title IV-E program separate from that operated under the approved State plan.
Source/Date
Preamble to the Final Rule (65 FR 4020) (1/25/00) (revised 12/2/14)
Legal and Related References
Social Security Act - section 471 (a)(20); 45 CFR 1356.30
Answer
No. Under title IV-E, Federal financial participation (FFP) is available for the costs of foster care maintenance for a child who meets the eligibility criteria in section 472 (a). For reimbursement under title IV-E, there is no further specification in the statute with regard to certification of a child placing agency which would preclude placement by an Indian Tribal organization or Indian Tribal court.
Source/Date
ACYF-PIQ-87-01 (3/25/87)
Legal and Related References
Social Security Act - section 472 (a)
Answer
The definition of "foster family home" at 45 CFR 1355.20 gives tribal licensing or approval authorities the jurisdiction to license or approve homes that are on or near Indian reservations. This is consistent with ICWA at section 1931(b) which states that for purposes of qualifying for funds under a federally assisted program, licensing or approval of foster or adoptive homes or institutions by an Indian tribe is equivalent to licensing or approval by a State. The authority to license or approve includes the authority to set standards.
Source/Date
ACYF-CB-PIQ-87-01 (3/25/87); Preamble to the Final Rule (65 FR 4020) (1/25/00)
Legal and Related References
The Indian Child Welfare Act of 1978; 45 CFR 1355.20
Answer
Section 1931 of the Indian Child Welfare Act (ICWA) authorizes Indian tribes and tribal organizations to establish and operate child and family services programs "on or near reservations," including a system for licensing or otherwise regulating Indian foster and adoptive homes. We use this language at section 1355.20 of the regulations to remain consistent with the ICWA.
Source/Date
Preamble to the Final Rule (65 FR 4020) (1/25/00)
Legal and Related References
The Indian Child Welfare Act of 1978; 45 CFR 1355.20
Answer
No, there are no exceptions to the requirements at section 471(a)(20)(A)(i) and (ii) of the Act, once the provision is effective in the State. The State, or an Indian tribe under a title IV-E agreement (pursuant to section 472(a)(2)(B)(ii) of the Act) has the discretion to place the child in a home where prospective parents have been convicted of such crimes. However, the State or Tribe may not claim title IV-E foster care maintenance or adoption assistance payments in such cases.
Source/Date
13-Apr-07
Legal and Related References
Social Security Act - sections 471(a)(20)(A) and 472(a)(2)(B)(ii)
Answer
No. An Indian tribe with a section 472(a)(2)(B)(ii) agreement must meet the requirements of section 471(a)(20) of the Act for any prospective foster or adoptive parent who will provide care for a child who will receive title IV-E foster care maintenance payments or title IV-E adoption assistance payments.
Source/Date
13-Apr-07
Legal and Related References
Social Security Act - sections 471(a)(20)(A) and 472(a)(2)(B)(ii)