Tribal Child Welfare, 896-958 [2011-32911]
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Federal Register / Vol. 77, No. 4 / Friday, January 6, 2012 / Rules and Regulations
Tribal Child Welfare
Children and Families, 1250 Maryland
Avenue SW., 8th Floor, Washington, DC
20024.
FOR FURTHER INFORMATION CONTACT:
Elizabeth Sharp, Children’s Bureau,
Administration on Children, Youth and
Families, (202) 205–7265 or by email at
elizabeth.sharp@acf.hhs.gov. Do not
email comments to this address.
SUPPLEMENTARY INFORMATION:
Administration on Children,
Youth and Families (ACYF),
Administration for Children and
Families (ACF), Department of Health
and Human Services (HHS).
ACTION: Interim final rule.
I. Submitting Comments
II. Background
III. Justification for Interim Final Rule
IV. Tribal and Stakeholder Consultation
V. Section by Section Discussion of the
Interim Final Rule
VI. Impact Analysis
DEPARTMENT OF HEALTH AND
HUMAN SERVICES
Administration for Children and
Families
45 CFR Parts 1355 and 1356
RIN 0970–AC41
AGENCY:
The Administration for
Children and Families (ACF) is issuing
this interim final rule to implement
statutory provisions related to the Tribal
title IV–E program. Effective October 1,
2009, section 479B(b) of the Social
Security Act (the Act) authorizes direct
Federal funding of Indian Tribes, Tribal
organizations, and Tribal consortia that
choose to operate a foster care, adoption
assistance and, at Tribal option, a
kinship guardianship assistance
program under title IV–E of the Act. The
Fostering Connections to Success and
Increasing Adoptions Act of 2008
requires that ACF issue interim final
regulations which address procedures to
ensure that a transfer of responsibility
for the placement and care of a child
under a State title IV–E plan to a Tribal
title IV–E plan occurs in a manner that
does not affect the child’s eligibility for
title IV–E benefits or medical assistance
under title XIX of the Act (Medicaid)
and such services or payments; in-kind
expenditures from third-party sources
for the Tribal share of administration
and training expenditures under title
IV–E; and other provisions to carry out
the Tribal-related amendments to title
IV–E. This interim final rule includes
these provisions and technical
amendments necessary to implement a
Tribal title IV–E program.
DATES: This rule is effective February 6,
2012. Consideration will be given to all
comments received by March 6, 2012.
ADDRESSES: Interested persons may
submit written comments to the Federal
eRulemaking Portal: https://
www.regulations.gov. Written comments
also may be submitted via email to
CBComments@acf.hhs.gov. Please
include ‘‘Tribal Child Welfare’’ in the
subject line of the message. Written
comments also may be submitted via
mail or courier delivery: Elizabeth
Sharp, Division of Policy, Children’s
Bureau, Administration on Children,
Youth and Families, Administration for
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SUMMARY:
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I. Submitting Comments
Although this interim final rule is
effective without further regulatory
action as indicated in the ‘dates’ section,
we are soliciting comments from
interested parties that we can use to
determine the need for any further
rulemaking. Comments should be
specific, address issues raised by the
rule, propose alternatives where
appropriate, and explain reasons for any
objections or recommended changes.
You should reference the specific
section of the interim final rule that is
being addressed in the comment. We
urge you to submit comments
electronically to ensure we receive them
in a timely manner.
II. Background
The Fostering Connections to Success
and Increasing Adoptions Act of 2008,
Public Law (Pub. L.) 110–351 (hereafter
‘‘Fostering Connections’’) was enacted
on October 7, 2008. Prior to the law’s
enactment, the title IV–E program
provided States and territories
(hereafter, ‘‘States’’) with Federal funds
to support eligible children in foster
care, eligible children with special
needs in adoptions, and the
administrative expenses of States to
operate the title IV–E program. As
amended, the law permits Federallyrecognized Indian Tribes, Tribal
organizations or consortia (hereafter,
‘‘Indian Tribes’’) to apply to the
Secretary of HHS to operate a title IV–
E program beginning October 1, 2009.
By law, the requirements of title IV–
E apply to a Tribal agency ‘‘in the same
manner as this part [IV–E] applies to a
State’’ (section 479B(b) of the Act), with
limited exceptions specified in the law.
This means that an Indian Tribe wishing
to operate a title IV–E plan must adhere
to most existing statutory and regulatory
title IV–E requirements in place for a
State title IV–E agency, with some
exceptions provided in law. Those
exceptions include: the ability for
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Indian Tribes to define their own
service areas and Tribal licensing
standards; flexibility to use nunc pro
tunc orders and affidavits to meet
judicial determination requirements in
the first 12 months of operation of the
Tribal title IV–E plan; and, the ability to
use in-kind third-party funding sources
for sharing in the costs of the title IV–
E program. As reflected throughout this
rule, we determined that there are a very
limited number of other variances
necessary.
Public Law 110–351 also provides
limited grants, beginning in Federal
fiscal year (FY) 2009, to assist Indian
Tribes that intend to implement a title
IV–E program to develop a title IV–E
plan. Eleven Indian Tribes have
received a title IV–E development grant,
and ACF expects to award grants to five
more Indian Tribes in FY2011. Finally,
the law permits a title IV–E agency to
enter into a contract or cooperative
agreement with an Indian Tribe to share
in the administration of the title IV–E
programs on behalf of Indian children.
In addition to creating these
provisions unique to Indian Tribes,
Fostering Connections contains new
requirements and options for States and
Indian Tribes with title IV–E plans.
Public Law 110–351 permits a title IV–
E agency the option to administer a new
kinship guardianship assistance
program under title IV–E, revises the
eligibility criteria for the title IV–E
adoption assistance program, allows a
title IV–E agency the option to extend
title IV–E foster care, adoption
assistance, and kinship guardianship
assistance payments to youth who meet
certain conditions up to age 21, among
other changes to the title IV–B and IV–
E requirements. The entire text of
Fostering Connections and issuances
related to the new provisions can be
found on the Children’s Bureau’s Web
site at www.acf.hhs.gov/programs/cb
and www.acf.hhs.gov/programs/cb/
laws_policies/
implementation_foster.htm.
III. Justification for Interim Final Rule
Section 301(e) of Public Law 110–351
requires that we publish interim final
rules generally to carry out the
amendments made to title IV–E of the
Act to authorize Indian Tribes to
directly-operate title IV–E programs.
Many of these amendments are present
throughout this rule in the form of
minor language changes to existing
regulatory provisions to be inclusive of
a Tribal title IV–E agency because the
law mandates that we apply title IV–E
requirements equally to States and
Indian Tribes. Also, the law specifically
requires that we develop and codify
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procedures in an interim final rule to
ensure that a transfer of responsibility
for the placement and care of a child
under a State title IV–E plan to a Tribal
title IV–E plan or to an Indian Tribe
with an agreement or contract under
title IV–E does not affect the child’s
eligibility for title IV–E or Medicaid.
Further, the law requires that we
address in interim final rules the types
and amounts of in-kind expenditures
that Indian Tribes may claim under a
title IV–E plan. These specific
requirements can be found in new
sections of the regulation, 45 CFR
1356.67 and 1356.68.
We also are including several
technical and conforming amendments
to existing regulatory requirements that,
although not directly related to the
amendments of Public Law 110–351,
clarify implementation of the title IV–E
programs. These conforming
amendments are to update statutory
citations, remove obsolete references
and make technical corrections. The
Administrative Procedure Act provides
an exception to the standard rulemaking
process to propose rules and solicit
comments prior to adopting a final rule
where an agency finds good cause to
adopt a rule without prior public
participation (5 U.S.C. 553(b)(3)(B)). The
good cause requirement is satisfied
when prior public participation is
impracticable, unnecessary, or contrary
to the public interest. We find proposing
rulemaking for these technical and
conforming amendments impracticable
and unnecessary since they are not
substantive and only align the
regulations with current law or practice.
Moreover, we believe that delaying
rulemaking on these technical
amendments would be contrary to the
public interest since doing so would
cause significant confusion about the
statutory and regulatory provisions to
which Indian Tribes must adhere in
implementing the title IV–E program for
the first time. Therefore we find good
cause to include these technical
amendments in this interim final rule.
More specific rationale for each
amendment can be found in the section
by section discussion.
IV. Tribal and Stakeholder
Consultation
Section 301(e) of Public Law 110–351
requires us to consult with Indian
Tribes and affected States prior to
issuing interim final rules. Consistent
with this requirement and the
Department’s commitment to consult
with Indian Tribes on a government-togovernment basis, we conducted a series
of consultation sessions with Indian
Tribes and other Tribal stakeholders
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prior to issuing these rules. On March
13, 2009, we published a Federal
Register notice, 74 FR 10920 (hereafter,
‘‘FR notice’’) inviting Tribal leaders
and/or their representatives to attend
one of seven in-person meetings held in
Bloomington, Minnesota; Kansas City,
Missouri; Seattle, Washington; Denver,
Colorado; San Francisco, California;
Dallas, Texas; and, Marksville,
Louisiana. The FR notice also invited
written comments from Tribal leaders or
any other interested party.
Indian Tribes and other stakeholders
were invited to provide input on the
following questions:
• Considering that the Secretary is to
apply title IV–E of the Act to Indian
Tribes in the same manner as to States
except where directed by law, what, if
any, provisions and clarifications
related to the title IV–E program for
directly-funded Indian Tribes should be
in regulations?
• Are guidelines above and beyond
those provided pursuant to the Indian
Child Welfare Act (ICWA) of 1974
needed to execute the transfer of
placement and care responsibility of a
title IV–E Indian child to an Indian
Tribe operating a title IV–E plan? If so,
please provide suggestions.
• What specific information
pertaining to title IV–E and Medicaid
should a State make available to an
Indian Tribe that seeks to gain
placement and care responsibility over
an Indian child?
• Should the third-party sources and
in-kind limits on Tribal administrative
and training costs remain consistent
with section 479B(c)(1)(D) of the Act?
Please provide a rationale for this
response.
• Any other comments regarding the
development of an interim final rule per
section 301(e) of Public Law 110–351.
The consultation was limited in scope
and not intended to solicit comments on
the remaining provisions of Public Law
110–351 or the title IV–E program in
general. However, the consultations
elicited a wide range of questions,
issues and suggestions regarding
implementation and operation of a title
IV–E program. Further, we continue to
listen to Tribal partners in ongoing
consultations and less formal
opportunities for discussion such as
grantee meetings. Highlights of the
comments that we received and how
they are addressed in this regulation
follow.
Commenters felt strongly that the
requirement in Public Law 110–351 that
title IV–E requirements apply to Indian
Tribes in the same way as they apply to
States, does not consider Indian Tribes’
sovereignty, cultural standards, lack of
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historical funding under title IV–E and
current economic circumstances. In
particular, commenters requested: (1)
Relief from the application of Statespecific 1996 Aid to Families with
Dependent Children (AFDC)
requirements; (2) use of nunc pro tunc
orders to ensure title IV–E eligibility for
all Indian children who did not have the
requisite court orders beyond the first
twelve months of the approved Tribal
title IV–E plan; and, 3) direct funding of
selected components of the title IV–E
plan of the Indian Tribe’s choosing.
Although we respect Tribal sovereignty
and standards and understand the
unique situation of Indian Tribes in
operating a long-standing Federal
program for the first time, the existing
statutory requirements of title IV–E of
the Social Security Act do not allow us
to meet these particular requests. Rather
we have indicated in this interim final
regulation the areas in which the law
must be applied equally to Indian Tribes
and States, where the law crafted
unique requirements specific to Indian
Tribes with title IV–E plans, and where
there is discretion for the Indian Tribe
to develop its own practices and
approaches. We encourage Indian Tribes
to seek technical assistance from the
Children’s Bureau (CB) Regional Office
staff in dealing with these issues.
Commenters sought more clarity
about the relationships between States
and Indian Tribes, and how those
relationships may impact various parts
of the title IV–E program and/or
transfers of placement and care
responsibility of a child from one
jurisdiction to another. Commenters
asked us to specify: (1) Which entities
are responsible for funding Indian
children in Tribal title IV–E programs;
(2) the extent to which States may
influence the direction of Tribal title
IV–E plans/programs; and, (3) the extent
of Tribal access to State-owned
resources, such as funding, information
systems, data and Medicaid program
benefits. In general, we do not believe
it necessary nor do we have the
authority to prescribe the relationships
between Indian Tribes and States.
Rather, in this interim final regulation
we have specified the minimum
information States must provide to
Indian Tribes with either a title IV–E
plan or agreement when a child is
transferred from the responsibility of the
State to the Indian Tribe and we have
explained that the law permits States
and Indian Tribes to enter into various
arrangements in support of Tribal title
IV–E programs. A State that has a title
IV–E plan under existing law may craft
the relationships and partnerships it
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desires with other public agencies,
private child placing agencies and other
contractors within broad Federal
parameters. Indian Tribes with a title
IV–E plan have this same discretion to
enter into relationships and
partnerships it finds beneficial in
supporting the title IV–E plan. Through
consultation, coordinated efforts and
good faith negotiation of title IV–E
agreements, States and Indian Tribes
can determine for themselves issues of
funding, responsibility, shared
resources and services.
An overarching concern of most
Tribal commenters was funding, and as
such Indian Tribes requested: (1) More
funding to operate the title IV–E
program; (2) relief from provisions that
limit in-kind contributions, require
matching funds and/or allocation of
costs; and (3) numerous clarifications
about how title IV–E funding operates
and interacts with other funding
streams. We have clarified throughout
this regulation how Indian Tribes may
draw down title IV–E funding and will
continue to make this a priority in
further technical assistance activities.
However, the title IV–E program’s basic
funding structure as a reimbursement
program of a portion of an agency’s
expenses on behalf of eligible children,
is not one that we can alter in the
absence of statutory changes.
Finally, we received a number of
specific questions about items that are
not germane to this regulation. For
example, we received questions about
the Family Connection grants
authorized by Public Law 110–351
(section 427 of the Act); availability of
American Recovery and Reinvestment
Act of 2009 (‘‘stimulus’’) funding; and
provisions for a kinship guardianship
assistance program or an extension of
title IV–E assistance to 18 to 21 year
olds which are not specific to Indian
Tribes. We will use the questions and
comments we received in consultation
that are outside this regulation to
formulate other technical assistance
efforts, policy proposals, and further
consultation as appropriate.
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V. Section by Section Discussion of the
Interim Final Rule
Section 1355.20—Definitions
Section 1355.20 contains definitions
pertaining to terms used in 45 CFR parts
1355, 1356 and 1357 of this title. We
amended several definitions by
removing references to ‘‘State’’ or
‘‘States’’ and replacing such references
with the broader terms of ‘‘title IV–E
agency’’ or ‘‘title IV–E agencies’’ or, by
adding references to ‘‘Indian Tribe’’ or
‘‘Tribal’’ as descriptive terms. These
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changes apply the terms defined in the
regulation equally to States and Indian
Tribes with an approved title IV–E plan
pursuant to Public Law 110–351. These
changes are made to the following
definitions: ‘‘date a child is considered
to have entered foster care’’, ‘‘entity’’,
‘‘foster care’’, ‘‘foster family home’’,
‘‘full review’’ and ‘‘permanency
hearing.’’ In some definitions we made
additional conforming changes which
are described below.
Adoption
We amended the definition of the
term ‘‘adoption’’ to include adoptions
under Tribal law for Tribal title IV–E
purposes. We understand that Indian
Tribes finalize legal adoptions through
court processes and/or through
traditional or ceremonial processes, and
therefore this change ensures that the
term ‘‘adoption’’ is inclusive of
adoptions finalized through these
processes for Tribal title IV–E agencies.
Child Care Institution
We amended the definition of a
‘‘child care institution’’ to account for
the ability of an Indian Tribe that has an
approved title IV–E plan pursuant to
section 479B of the Act to license child
care institutions in its service area. The
revised definition provides three types
of licensing authorities: A State
licensing authority in the State in which
the child care institution is located, a
Tribal licensing authority with respect
to a child care institution on or near an
Indian Reservation, or the Tribal
licensing authority of an Indian Tribe
that operates a title IV–E plan pursuant
to section 479B of the Act with respect
to a child care institution in the Indian
Tribe’s service area.
A commenter requested that Indian
Tribes be permitted flexibility with
regard to the definition of ‘‘on or near
an Indian Reservation.’’ This language
comes from section 1931 of the Indian
Child Welfare Act of 1978 (ICWA) (Pub.
L. 95–608) and applies to both child
care institutions and foster family
homes. The ICWA requirement states
that for purposes of qualifying for funds
under a Federally assisted program, e.g.,
titles IV–E and IV–B, licensing or
approval of foster or adoptive homes or
institutions on or near an Indian
Reservation by an Indian Tribe is
equivalent to licensing or approval by a
State. There is no statutory or regulatory
definition of this term. As such, if an
Indian Tribe has a reservation, it has the
discretion to make a reasonable
determination of what it considers on or
near the reservation. Another
commenter requested clarification that
the existing Tribal licensing authorities
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may serve in the licensing role for title
IV–E purposes. We confirm that the
Indian Tribe has the discretion to use
existing licensing authorities or create
new authorities to license foster family
homes or child care institutions on or
near reservations and/or within a Tribal
agency’s service area.
Foster Family Home
We amended the definition of ‘‘foster
family home’’ to add a sentence that
clarifies that the authority that licenses
a foster family home must be a State
licensing authority in the State in which
the foster family home is located
pursuant to section 471(a)(10) of the
Act, a Tribal authority with respect to a
foster family home on or near an Indian
Reservation pursuant to section 1931 of
ICWA, or the Tribal authority of an
Indian Tribe that operates a title IV–E
plan pursuant to section 479B(c)(2) of
the Act with respect to a foster family
home in the Tribal agency’s service area.
These changes are similar to the ones
made to the definition of a child care
institution.
During consultation, some
commenters sought clarification of
whether an Indian Tribe has to abide by
Federal or State foster family home
licensing/approval standards and
exceptions to such standards such as,
State rules that may limit the number of
children in the home, Indian Health
Service safety requirements, or
requirements on driving. Another
commenter sought flexibility in Federal
Tribal licensing standards because of
the limited nature of housing in Indian
country and the unique cultural issues
in Indian Tribes. In response, we would
like to explain the foster family home
licensing/approval requirements in title
IV–E. Section 471(a)(10) of the Act
requires the State or Tribal agency to
establish or designate an authority for
establishing and maintaining standards
for foster family homes and child care
institutions. An Indian Tribe that has a
title IV–E plan will be responsible for
establishing such an authority and
applying the standards developed to the
foster family homes or child care
institutions in its service area and/or on
or near its reservation. At a minimum,
the licensing standards must cover
admission policies, safety, sanitation,
and protection of civil rights (see
sections 471(a)(10) and 479B(c)(2) of the
Act). Therefore, Indian Tribes may take
into consideration the unique features of
the housing, landscape and cultural
norms in developing licensing or
approval standards for foster family
homes. In addition, standards must be
applied equally to any licensed or
approved foster family home receiving
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title IV–B and IV–E funds, with one
exception in section 471(a)(10) of the
Act. The exception permits a title IV–E
agency to waive the application of a
standard unrelated to safety for relative
foster family homes on a case-by-case
basis. The title IV–E agency may not
exclude relative homes, or any other
group from the licensing requirement
(see section 471(a)(10) of the Act and
the definition of ‘‘foster family home’’ in
45 CFR 1355.20). There are no ACF
prescribed standards for licensing or
approving homes, although section
471(a)(10) of the Act requires standards
to accord with recommended standards
of national organizations. An Indian
Tribe or a State may have to follow
other Federal standards for licensure to
the extent that the foster family homes
are governed by other Federal laws and/
or funding restrictions. Please note that
for title IV–E funding purposes, criminal
record and child abuse and neglect
registry checks are a related but separate
issue from licensure. Requirements
related to the criminal record check
provisions are in section 471(a)(20) of
the Act and discussed in relation to
section 1356.30 later in the preamble.
Some commenters sought clarification
on whether Indian Tribes can use title
IV–E to pay for children placed with
prospective foster parents in the process
of being licensed or approved as a foster
family home. In certain circumstances,
a title IV–E agency, including an Indian
Tribe, may seek administrative cost
reimbursement for eligible children
placed with such prospective foster
parents. Consistent with section
472(i)(1)(A) of the Act and policy at
Child Welfare Policy Manual (CWPM)
8.1B Q/A #11, the title IV–E agency may
claim administrative costs on behalf of
an otherwise eligible child placed in an
unlicensed or unapproved relative home
for 12 months or the average length of
time it takes the agency to license or
approve a foster family home,
whichever is less. During this time, an
application for licensure or approval of
the relative home as a foster family
home must be pending. The title IV–E
agency may only claim administrative
costs in this situation for a child placed
in an unlicensed or unapproved relative
foster family home. For the purposes of
this provision, a relative is defined by
section 406(a) of the Act as in effect on
July 16, 1996, and implemented in 45
CFR 233.90(c)(1)(v). In general, a title
IV–E agency may not claim the cost of
a title IV–E foster care maintenance
payment on behalf of an otherwise
eligible child until the first day of the
first month in which the foster family
home meets all licensure or approval
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requirements. See CWPM 8.3A.8c Q/A
#16.
Full Review
We amended the definition of ‘‘full
review’’ to apply the definition equally
to States and Indian Tribes by removing
language that described the Child and
Family Services Review (CFSR) as
focused on child and family service
programs ‘‘in the States’’ relative to
‘‘State’’ plans for title IV–B and IV–E. By
removing this language, we make clear
that the full reviews can occur in States
or Indian Tribes with approved plans
for both titles IV–E and IV–B. Further,
we added parenthetical language to the
definition of a full review to clarify that
the statewide assessment, which is a
component of the CFSR, may be an
assessment of the Tribal service area in
the case of a Tribal agency. For the
purposes of title IV–E, a service area is
defined by the Indian Tribe pursuant to
section 479B(c)(1)(B) of the Act and for
the purposes of title IV–B, it is the area
covered by the Indian Tribe’s Child and
Family Services Plan (CFSP). See
sections 1355.31 through 1355.37 for a
more complete discussion of the CFSRs
as they apply to Indian Tribes with title
IV–E plans.
Partial Review
We amended the definition of ‘‘partial
review’’ to apply the process for
reviewing title IV–E compliance to
Indian Tribes with an approved title IV–
E plan, consistent with section 479B(b)
of the Act. As we did in the ‘‘full
review’’ definition, we removed
language that references States in
paragraph (1) of the definition. This
means that an Indian Tribe with an
approved title IV–E plan will be subject
to a partial review, if necessary, if there
is a compliance issue that falls within
the scope of the CFSR. Also, we added
a new paragraph (3) to the definition to
specify that partial reviews encompass
Tribal title IV–E plan compliance issues
that fall outside of the CFSR. This
requirement is similar to the existing
requirement for States in paragraph (2).
Partial reviews do not pertain to Indian
Tribes with only a title IV–B plan. Such
compliance issues are regulated by the
process described in sections 1355.30(n)
and (p) instead.
Statewide Assessment (or Tribal
Assessment)
We amended the definition of
‘‘statewide assessment’’ to apply the
initial phase of a full review to Tribal
title IV–E agencies by inserting the term
‘‘Tribal assessment.’’ This means that a
Tribal assessment for a Tribal title IV–
E agency is a review of all Federally-
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assisted child and family services
programs in the Tribal service area (as
opposed to a review of all Federallyassisted child and family services
programs in the State for a Statewide
assessment). We also made an
amendment to apply the assessment to
the entire Tribal service area by
inserting the phrase ‘‘(or for a Tribal
title IV–E agency, in the service area).’’
Title IV–E Agency
We added a new definition of a ‘‘title
IV–E agency.’’ This definition is
inclusive of a State or Tribal agency that
administers or supervises the
administration of both the title IV–B
(subparts 1 and 2) plan and IV–E plan
and a Tribal agency that administers or
supervises the administration of both
the title IV–B, subpart 1 and title IV–E
plan. We added this definition pursuant
to Public Law 110–351 which
authorizes Indian Tribes to operate a
title IV–E plan and requires ACF to
apply the title IV–E program equally to
States and Indian Tribes. This term is
used throughout the interim final rule
when we refer to common requirements
for a State or Tribal title IV–E agency;
we use the terms State agency (defined
in this section of the regulation) or
Tribal agency as described below, when
we are referring to requirements unique
to those entities.
Tribal Agency
We added a new definition of ‘‘Tribal
agency.’’ Tribal agency means, for the
purpose of title IV–E, the agency of the
Indian Tribe, Indian Tribal organization
or consortium of Indian Tribes that is
designated to administer or supervise
the administration of the title IV–E and
title IV–B, subpart 1 plan. Section
479B(a) of the Act incorporates the
definition of Indian Tribe in 25 U.S.C.
450b which is any Indian Tribe, band,
nation, or other organized group or
community that is recognized as eligible
for special programs and services
provided by the United States to Indians
because of their status as Indians. Such
Tribes are commonly referred to as
Federally-recognized Indian Tribes.
Section 479B(a) of the Act also
incorporates the definition of Indian
Tribal organization in 25 U.S.C. 450b
which is a recognized body of an Indian
Tribe. In this context, a consortium of
Indian Tribes is two or more Federallyrecognized Indian Tribes that agree to
join for the purpose of operating the title
IV–E plan.
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Section 1355.21—Plan Requirements for
Titles IV–E and IV–B
Section 1355.21 specifies the
requirements for title IV–B and IV–E
plans.
We changed the title of this section by
removing the term ‘‘State’’ so that the
section refers more generally to the plan
requirements for titles IV–E and IV–B
rather than ‘‘State plan’’ requirements.
Similarly, we amended section 1355.21
in paragraphs (a), (b) and (c) to make
conforming changes by removing the
term ‘‘State’’ before ‘‘plan’’ and in
paragraph (c) to replace the term ‘‘State
agency’’ with the more general ‘‘title IV–
E agency’’ to clarify that Indian Tribes
with title IV–E plans must follow the
same rules consistent with Public Law
110–351. These conforming changes
apply the title IV–E and title IV–B plan
requirements in section 1355.21 equally
to States and Indian Tribes.
In addition, we amended paragraph
(b) to add clarifying language that a title
IV–E agency must comply with the
applicable Departmental regulations
described in section 1355.30. Section
1355.30 specifies which Departmental
regulations apply to a title IV–E agency
generally, or those that are specific to
either a Tribal or State title IV–E agency.
In paragraph (c) as indicated above,
we replaced the term ‘‘State agency’’
with ‘‘title IV–E agency’’ to make a
conforming change. Through this
conforming change, we apply the
existing requirement that a title IV–E
agency must make the title IV–E plan
available for public review and
inspection equally to all title IV–E
agencies. Therefore, in addition to
making the Child and Family Services
Plans and the Annual Progress and
Services Reports available for public
review and inspection, an Indian Tribe
with an approved title IV–E plan must
make the title IV–E plan available for
public review and inspection.
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Section 1355.30—Other Applicable
Regulations
Section 1355.30 identifies other
Departmental regulations that are
applicable to title IV–B and IV–E
programs.
We amended the introductory
paragraph to section 1355.30 to apply
the regulations cited in this section to
both State and Tribal title IV–B and title
IV–E programs, as appropriate. The
cited regulations are for: Departmental
Appeals Board procedures (45 CFR
1355.30(a)), collecting claims (45 CFR
1355.30(b)), nonprocurement debarment
and suspension (45 CFR 1355.30(c)),
drug-free workplaces (45 CFR
1355.30(d)), nondiscrimination under
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title VI of the Civil Rights Act and
associated hearing procedures (45 CFR
1355.30(e)–(f)), nondiscrimination on
the basis of handicap (45 CFR
1355.30(g)), nondiscrimination on the
basis of age (45 CFR 1355.30(h)),
lobbying restrictions (45 CFR
1355.30(j)), and grants and
administration of public assistance
programs (45 CFR 1355.30(k), (m) and
(n)). The regulations in the above
mentioned sections previously applied
to State and Tribal title IV–B programs
and State title IV–E programs. These
amendments apply the regulatory
requirements equally to Indian Tribes
with a title IV–E plan consistent with
Public Law 110–351. In addition, we
made conforming amendments in the
paragraphs described below that align
these regulations with other regulatory
and statutory changes implemented
between November 2003 and January
2010.
We amended paragraph (c) to delete
the Administration of Grants rules
previously located in 45 CFR part 74
from the list of applicable requirements
as 45 CFR part 74 is now obsolete. HHS
moved a number of programs, including
titles IV–B and IV–E, into the scope of
45 CFR part 92, and removed such
programs from the scope of Part 74 (68
FR 52843–44, September 8, 2003).
Therefore, an agency operating titles IV–
B and IV–E programs is subject to the
administrative rules published in 45
CFR part 92 as cited by amended section
1355.30(i) (see discussion below). We
amended paragraph (c) further to add ‘‘2
CFR Part 376—Nonprocurement
Debarment and Suspension’’ as an
applicable regulation. This amendment
reflects regulatory changes to the
governmentwide Debarment and
Suspension (nonprocurement)
regulations at 45 CFR Part 76, which
were previously cross-referenced in
section 1355.30(d). HHS issued an
interim final rule on March 1, 2007
which removed the full text of the
Department’s debarment and
suspension rules from 45 CFR part 76
and issued a new 2 CFR part 376 on
nonprocurement debarment and
suspension (72 FR 9233–9235). We
believe that because this change is
technical in nature there is no need to
go through the notice and comment
process to update the regulation.
We made a technical amendment to
paragraph (d) to reflect changes in
regulatory citations by deleting the
current citation and replacing it with ‘‘2
CFR Part 382—Requirements for DrugFree Workplace (Financial Assistance).’’
On November 26, 2003, HHS issued a
final rule that implemented changes to
the governmentwide nonprocurement
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debarment and suspension common
rule and the associated rule on drug-free
workplace requirements (68 FR 66557).
The rule on debarment and suspension
was removed from Part 76 and codified
at 2 CFR part 376 (see discussion in
previous paragraph). The rule on drugfree workplace requirements was
initially revised and codified in 45 CFR
part 82, but effective January 11, 2010
these requirements were further
simplified and relocated to 2 CFR 382
(74 FR 58189).
Paragraph (i) describes the Uniform
Administrative Requirements for Grants
and Cooperative Agreements to State
and Local Governments in 45 CFR part
92 that are applicable to the title IV–B
and IV–E programs. We made a
technical amendment to paragraph (i) by
replacing the reference to the
‘‘Independent Living Program’’ with
‘‘the John H. Chafee Foster Care
Independence Program’’ to reflect the
name change and broader program
purposes established in the Foster Care
Independence Act of 1999. We also
amended paragraph (i) to apply 45 CFR
part 92 to Indian Tribes which operate
Chafee Foster Care Independence
Programs (CFCIP) in accordance with
Section 477(j) of the Act.
We also amended paragraph (i) to
maintain and clarify the current rule
that Part 92 applies to State-operated
title IV–E foster care and adoption
assistance programs. The regulations
cross-referenced in 45 CFR part 74 have
moved to 45 CFR part 92, so we cite the
relocated sections that do not apply to
State title IV–E programs (matching or
cost sharing requirements found at 45
CFR 92.24 which was formerly 45 CFR
74.23 and financial reporting
requirements found at 45 CFR 92.41
which was formerly 45 CFR 74.52).
Therefore, title IV–E policy and
regulations continue to preclude States
from using third-party in-kind
contributions and places certain
conditions on the use of donated funds
as a source of non-Federal funds for the
title IV–E foster care and adoption
assistance programs.
Finally, we added language in
paragraph (i) to apply 45 CFR part 92 to
Tribal title IV–E plans for foster care
and adoption assistance except that
section 92.41 and the sections specified
in section 1356.68 do not apply to a
Tribal title IV–E agency.
Unlike States, title IV–E specifically
allows Indian Tribes with an approved
title IV–E plan to use in-kind
contributions from third-party sources
up to a specified percentage of the
Indian Tribe’s cost sharing requirements
for title IV–E administrative and
training costs for certain fiscal years in
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accordance with section 479B(c)(1)(D) of
the Act. Regulations at 2 CFR part 225
Appendix B, Office of Management and
Budget (OMB) Circular A–87, which set
out cost principles for States, localities
and Tribal Governments, apply to
Indian Tribes and item 12b within that
Circular requires that Indian Tribes that
use third-party contributions follow 45
CFR part 92. Because an Indian Tribe
may claim in-kind administrative and
training contributions of its share of the
title IV–E program from third-party
sources, section 92.24 (formerly section
74.23) applies cost-sharing principals
and section 92.41 (formerly section
74.52) applies financial reporting to an
Indian Tribe’s use of in-kind
contributions from third-party sources.
We amended paragraph (k) to apply
most of 45 CFR part 95 to both States
and Indian Tribes with approved title
IV–B and IV–E plans. The exceptions
are specified in the subparagraphs
detailed below. This is a conforming
change consistent with section 479B(b)
of the Act for an Indian Tribe with a
title IV–E plan; it does not amend
existing rules applicable to States or
Indian Tribes with title IV–B plans or
States with title IV–E plans.
We added a new subparagraph (k)(1),
to maintain the exception to the
applicability of 45 CFR 95.1(a), subpart
A, to the State title IV–B program and
the CFCIP for States, and to apply the
exception to Indian Tribes operating
title IV–B programs and CFCIP as well.
The regulation at 45 CFR 95.1(a)
specifies time limits for submitting
financial claims which do not apply to
the CFCIP or title IV–B programs;
statutory provisions establish the claim
submission timeframe.
We created a new subparagraph (k)(2)
to explain that unlike States, 45 CFR
part 95 subpart E, Cost Allocation Plans,
is not applicable to Indian Tribes with
an approved title IV–E plan pursuant to
section 479B of the Act. This is because
the Department of Interior (Interior) is
the cognizant agency for cost allocation
and Interior has provided for the use of
indirect cost rates for Indian Tribes in
accordance with that authority.
However, ACF still retains authority for
guiding the allocation and
documentation of title IV–E costs
pursuant to section 1356.60 and 2 CFR
225. As such, we issued guidance,
ACYF–CB–PI–10–13, on how Indian
Tribes can develop appropriate cost
methodologies November 23, 2010.
We amended paragraph (m) to clarify
that the regulations in 45 CFR 100.12
related to simplifying, consolidating or
substituting federally required plans
apply to States only. The regulatory
provision relates to a process for
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operationalizing intergovernmental
partnership and Federalism principles
for States. Although this particular
provision applies only to States, other
guidance reflects our commitment to
working with Indian Tribes on a
government-to-government basis. In
particular, Executive Order 13175 (65
FR 6724, November 9, 2000) requires
HHS to develop an accountable process
to ensure ‘‘meaningful and timely input
by Tribal officials in the development of
regulatory policies that have Tribal
implications.’’
In paragraph (n), which applies
certain regulations related to grants for
public assistance programs in 45 CFR
part 201 to programs funded under titles
IV–B and IV–E, we made minor
amendments to remove references to
‘‘State’’ and replace them with more
general references to apply the rules
equally to Indian Tribes in
subparagraph (n)(2). In addition we
removed parenthetical marks but not the
provisions within them, from
paragraphs (n)(1) through (n)(4).
We amended paragraph (o) to clarify
that the provision cross-referenced at 45
CFR 204.1 which requires that title IV–
E plans be submitted for a Governor’s
review is applicable only to States.
Indian Tribe’s must submit their title
IV–E plan to their designated Tribal
leadership for review prior to
submitting it to HHS. More instructions
for doing so are included in the title IV–
E plan preprint (most recently, in
ACYF–CB–PI–09–08 issued October 14,
2009) which is applicable to States and
Indian Tribes and is available on the CB
Web site at www.acf.hhs.gov/programs/
cb.
Section 1355.31—Elements of the Child
and Family Services Review System
This section specifies the scope of the
CFSRs.
The CFSRs were established through
regulations issued on January 25, 2000
(65 FR 4020) to monitor the
performance of State child welfare
programs consistent with section 1123A
of the Act. The review assesses a title
IV–E agency’s substantial conformity
with certain Federal requirements
regarding child protection, foster care,
adoption, family preservation and
family support, and independent living
services. The reviews are based on plan
requirements in titles IV–B, subpart 1
and 2 of the Act and the title IV–E foster
care and adoption programs. The
reviews enable CB to: (1) Ensure
conformity with Federal child welfare
requirements; (2) determine what is
actually happening to children and
families as they are engaged in child
welfare services; and, (3) assist agencies
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901
to enhance their capacity to help
children and families achieve positive
outcomes.
We removed language in this section
that limited the scope of the reviews to
child and family services programs
‘‘administered by States,’’ so that the
CFSRs apply to such programs
administered by a Tribal agency
consistent with the requirement in
Public Law 110–351 to apply the
provisions of the title IV–E program
equally to State and Tribal title IV–E
agencies. The amendments in this
section and throughout the CFSR related
regulatory sections do not affect how we
conduct CFSRs in States or our existing
guidance to States engaged in the CFSR
process. The application of the CFSRs to
a Tribal title IV–E agency has been
modified somewhat to take into
consideration that such agencies are
entering into a preexisting monitoring
process. We encourage Indian Tribes to
review the most recent CFSR procedures
manual on CB’s Web site, which
explains the CFSR process in more
detail (https://www.acf.hhs.gov/
programs/cb/cwmonitoring/tools_guide/
proce_manual.htm).
Section 1355.32—Timetable for the
Reviews
This section specifies the review
timetable for the initial and subsequent
CFSRs.
Section 1355.32(a)—Initial Reviews
In paragraph (a), we provide the
timetable for the initial CFSR for a State
or Tribal agency. The initial reviews for
States were completed between FY’s
2001 and 2004.
We amended paragraph (a) to specify
a schedule of initial reviews for a Tribal
title IV–E agency and replaced the
reference to ‘‘Administration for
Children and Families’’ with the
acronym ‘‘ACF.’’ The added provision
establishes that each Tribal title IV–E
agency must complete an initial full
CFSR during the four-year period after
we determine that the Indian Tribe has
plans approved for each of the title IV–
B subpart 1, title IV–B subpart 2 and
title IV–E programs and has a sufficient
number of cases to apply the procedures
in section 1355.33(c). This new
provision provides for reviews on an
initial schedule for a Tribal agency
similar to that for a State consistent with
the statutory requirement to apply the
title IV–E program rules equally to
Indian Tribes with approved plans.
However, we adjusted the timeframe to
accommodate the unique position of
Indian Tribes with approved title IV–E
plans. When the initial reviews were
scheduled for States, all States were
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operating programs under both subparts
of title IV–B and IV–E, and had been
doing so for several years. This allowed
us to set a fixed timeframe by which all
States had to have an initial review.
Since the title IV–E option is available
to Indian Tribes on a continuous basis,
we allow the timeframe for the initial
review to vary depending on when an
Indian Tribe’s title IV–E plan is
approved and other factors discussed
below.
A title IV–E agency must have a
sufficient number of children in foster
care and children receiving in-home
services during the period under review
(i.e., those that have a case open for inhome services with the child welfare
agency for a period of at least 60 days)
from which we can select a sample of
at least 30–50 cases for an on-site review
as required by existing regulations. This
sample is taken from a larger
oversample of 150 foster care and 150
in-home services cases. At the time of
promulgation of the CFSR process we
were confident that States typically had
at least this many child welfare cases
open during our period under review.
However, we understand that Indian
Tribes operating title IV–E plans may
not serve as many children at the
initiation of their programs or for some
years to follow. Therefore, to maintain
fidelity with the existing CFSR process
and apply the procedures equally to a
Tribal title IV–E agency, we will not
initiate a CFSR for such an Indian Tribe
until we can select a sample that meets
this threshold number of cases.
Finally, certain CFSR criteria are
premised on the agency having in place
a continuum of child welfare services as
supported by the Federal requirements
and provisions of title IV–B, subparts 1
and 2 (see 63 FR 50067), in addition to
those of title IV–E. Indian Tribes which
can be approved to operate a title IV–
E program also must have a title IV–B,
subpart 1 program for child welfare
services (see CWPM Section 9.1 Q/A
#4). However, there is nothing in
Federal law that compels a Tribal title
IV–E agency to operate the Promoting
Safe and Stable Families Program under
title IV–B, subpart 2. In fact, the existing
provisions of title IV–B, subpart 2 limit
the availability of grants under the
program to those Indian Tribes who
would qualify through the formula for a
grant of at least $10,000 (section
432(b)(2)(B) of the Act). We will
conduct a full CFSR only if a Tribal title
IV–E agency is operating both a title IV–
B subpart 1 and 2 program.
Due to the many factors that must be
met for ACF to conduct a CFSR of a
Tribal agency, we will utilize all other
existing monitoring protocols at our
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disposal to ensure that such agencies are
in compliance with Federal
requirements and are achieving positive
outcomes for children and families.
Such protocols include reviewing and
approving title IV–B plans and title IV–
E plans, reviewing actual and estimated
claims submitted on the CB–496
financial reporting forms each quarter
and performance reported by Tribes in
their title IV–B annual progress and
service reviews, conducting partial
reviews of requirements outside the
scope of a CFSR of Federal requirements
that we have reason to believe are out
of conformity, and, as necessary,
requiring Tribal title IV–E agencies to
develop a program improvement plan to
respond to areas we determine are out
of substantial conformity. Consistent
with section 1123A, the necessary
elements of a program improvement
plan and, if necessary, the amount of the
withholding of Federal funds, will be
commensurate with the extent of a
Tribal title IV–E agency’s nonconformity. See sections 1355.21,
1355.32(d), 1356.20 and 1357.15 for
more information on ACF’s oversight
tools. In addition, ACF Regional Offices
will continue to offer ongoing technical
assistance to Indian Tribes as issues
related to title IV–B and IV–E plans
arise.
Section 1355.32(b)—Reviews Following
the Initial Review
Paragraph (b) establishes the timetable
for CFSRs after the initial review. We
conduct a full review every five years
following a review in which we
determine the title IV–E agency to be
operating in substantial conformity or
two years after the approval of the
Program Improvement Plan (PIP) if we
determine that the title IV–E agency is
not operating in substantial conformity.
We made a number of conforming
amendments to paragraph (b) to apply
the regulatory provisions for review
timing following the initial review to a
Tribal title IV–E agency in the same way
as they are applied to a State title IV–
E agency. Specifically, we amended
paragraph (b)(1) to replace the reference
to ‘‘State’’ with ‘‘title IV–E agency.’’ In
paragraph (b)(1)(ii) we added reference
to an assessment of the Tribal service
area to parallel the reference to a
statewide assessment, we removed
‘‘statewide’’ from the second and third
sentences, we replaced the first
reference to ‘‘State’’ with ‘‘title IV–E
agency’’, we replaced the reference to
‘‘Administration for Children and
Families’’ with the acronym ‘‘ACF’’, we
added the phrase ‘‘or Indian Tribe’s’’ to
follow ‘‘the State’s’’, and we removed
the word ‘‘State’’ from the phrase ‘‘State
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plan requirements subject to review.’’ In
paragraph (b)(2) we removed the word
‘‘State’’ in the phrase ‘‘a State program.’’
In sum, these changes mean that once a
Tribal title IV–E agency has had an
initial CFSR review, a subsequent
review will occur five years later if the
agency is found in substantial
compliance or two years following an
approved PIP for an agency that is not
in substantial conformity.
Section 1355.32(c)—Reinstatement of
Reviews Based on Information That a
Title IV–E Agency Is Not in Substantial
Conformity
Paragraph (c) describes the
requirements for reinstatement of a full
or partial review and describes the types
of information that may require a
review.
In paragraph (c) we made a number of
conforming amendments to apply the
requirements for reinstatement of a full
or partial review to a Tribal title IV–E
agency in the same way as the
requirements are applied to a State title
IV–E agency. Specifically, we amended
paragraphs (c) and (c)(1) through (4) to
replace all references to ‘‘State’’ with
‘‘title IV–E agency.’’
Section 1355.32(d)—Partial Reviews
Based on Noncompliance With Plan
Requirements That Are Outside the
Scope of a Child and Family Services
Review
This section sets the parameters for
addressing noncompliance with title
IV–B and IV–E plan requirements that
are outside of the scope of a child and
family services review in the form of a
partial review. In paragraph (d), we
made conforming amendments to apply
the partial review process to a Tribal
title IV–E agency in the same way it is
applied to a State title IV–E agency.
Specifically, we amended the title to
remove the term ‘‘State’’ that preceded
‘‘plan’’ and we replaced all references to
‘‘State’’ with ‘‘title IV–E agency’’ in
paragraphs (d)(1) through (d)(4).
Section 1355.33—Procedures for the
Review
This section sets forth the CFSR
process and outlines general procedures
for both the CFSR assessment and the
on-site review portions of the review.
Section 1355.33(a)
Paragraph (a) describes the two
phases of the review process and the
review team membership. We made a
number of conforming amendments to
this paragraph to apply the two-part
review process and review team
membership to a Tribal title IV–E
agency in the same way they are applied
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to a State title IV–E agency. Specifically,
we amended paragraph (a)(2) to change
‘‘State’’ to ‘‘title IV–E agency’’ to
indicate that when there is a CFSR of a
Tribal title IV–E agency, the review
team will consist of representatives from
ACF and the Tribal title IV–E agency.
This parallels the review team
composition for CFSRs conducted in
States. We amended paragraphs (a)(2)(i),
(a)(2)(ii) and (a)(2)(iv) to replace all
references to ‘‘State’’ with ‘‘title IV–E
agency.’’ In addition, we amended
paragraph (a)(2)(i) to remove the word
‘‘State’’ from the phrase ‘‘State child and
family services agency’’ and the phrase
‘‘State and local’’ from the phrase ‘‘State
and local offices.’’ These changes apply
the two steps of the review process
equally to States and Indian Tribes as
required by Public Law 110–351.
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Section 1355.33(b)—Statewide or Tribal
Assessment
In this paragraph, we describe the
assessment process in more detail. The
assessment involves representatives
from the title IV–E agency and external
stakeholders, reviewing and analyzing
data to evaluate the strengths and needs
of the child and family services system.
We made a number of conforming
amendments in paragraph (b) to apply
the requirements of the assessment
process to a Tribal title IV–E agency in
the same way they are applied to a State
title IV–E agency, as required by Public
Law 110–351. We amended the title to
include ‘‘or Tribal’’ to precede
‘‘assessment’’ so it is clear that there is
either a State or Tribal assessment,
depending on which is the title IV–E
agency subject to the CFSR. We
indicated that in the case of the Tribal
title IV–E agency, the assessment covers
the scope of the Indian Tribe’s service
area, including both the Indian Tribe’s
title IV–E service area (as defined by the
Indian Tribe in the title IV–E plan) and
the title IV–B service area (that is, the
area covered by the Indian Tribe’s
CFSP). In paragraph (b)(1) we replaced
references to ‘‘statewide’’ with
‘‘statewide/Tribal’’ and in paragraph
(b)(2) we replaced references to
‘‘statewide’’ with ‘‘statewide/Tribal
service area’’ to precede ‘‘data
indicators.’’ This is a technical change
to apply the data indicators equally to
both State and Tribal IV–E agencies, as
there is a single set of data indicators for
Tribes and States. We also made
changes throughout paragraphs (b) and
(b)(2) through (b)(6), to replace all
references to ‘‘State’’ and ‘‘State agency’’
with ‘‘title IV–E agency’’ and remove
‘‘statewide’’ where it prefaced
‘‘assessment.’’ These changes ensure
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that the assessment provisions are
parallel for States and Indian Tribes.
Section 1355.33(c)—On-Site Review
Paragraph (c) describes requirements
for the on-site review process, including
information on the scope of the review,
the review sites, sources of information
used in the review, and case sampling.
In paragraph (c) we made a number of
conforming amendments to apply the
regulatory requirements of the on-site
review process to a Tribal title IV–E
agency in the same way they are applied
to a State title IV–E agency, with the
exception of one requirement in
paragraph (c)(2) discussed below.
Specifically, we made conforming
amendments to paragraphs (c)(1)
through (c)(3) by replacing most
references to ‘‘State’’ with ‘‘title IV–E
agency.’’ We also amended paragraph
(c)(4)(iv) to include reference to an
Indian Tribe’s CFSP in the same way
that we reference a State’s CFSP and
replaced the reference to the
‘‘statewide’’ assessment to the
‘‘statewide/Tribal’’ assessment in
paragraph (c)(6). In paragraph (c)(2), we
maintain the reference to the State’s
largest metropolitan area as a mandatory
location for the on-site portion of the
CFSR and did not include a mandate for
a similar location for a Tribal CFSR. We
kept this provision as is because we
recognize that the Tribal title IV–E
agency’s service area in most cases will
not include a metropolitan area at all, or
if there is a metropolitan area, it may
not represent a subdivision in which a
large number of child welfare services
cases can be found as was the intention
with the original requirement.
Taking the paragraph as amended as
a whole, for Indian Tribes the onsite
review will consist of a review of a title
IV–E agency’s title IV–B and IV–E
programs in operation in the title IV–E
agency’s service area. The review will
be planned jointly between ACF and the
Tribal title IV–E agency, may focus on
several political subdivisions in the
Tribal service area (e.g., different Tribal
organizations included in a Tribal
consortium) as guided by information in
the assessment, and will involve the
gathering of information during the onsite portion of the review from Tribal
agency staff, families who are served by
the agency and stakeholders internal
and external to the agency, including
those who participated in the
development of the Indian Tribe’s CFSP.
The review will focus on at least 30
cases of foster care and in-home services
cases, taken from a larger oversample of
cases for each, which may be used to
resolve discrepancies between the
assessment and the on-site review.
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903
Section 1355.33(d)—Resolution of
Discrepancies Between the Assessment
and the Findings of the On-Site Portion
of the Review
In paragraph (d), we describe the
process for resolving discrepancies
between the assessment and the on-site
portion of the review through either, at
the title IV–E agency’s option, the
submission of additional information or
the review of additional cases.
In paragraphs (d), (d)(1) and (d)(2), we
made conforming amendments to apply
the regulatory requirements for
resolution of such discrepancies to a
Tribal title IV–E agency in the same way
they are applied to a State title IV–E
agency by removing the reference to
‘‘State’’ and replacing it with ‘‘title IV–
E agency.’’ The paragraph now requires
that discrepancies between the
assessment and the findings of the onsite portion of the review be resolved by
either information submitted by the title
IV–E agency or the review of additional
cases, as opted by the title IV–E agency.
Section 1355.33(e)—Partial Review
In paragraph (e) we outline when a
targeted partial child and family
services review will be conducted. We
made a conforming amendment in this
paragraph to apply the regulatory
requirements of the partial review
process to a Tribal title IV–E agency in
the same way they are applied to a State
title IV–E agency by removing the
reference to ‘‘State’’ and replacing it
with ‘‘title IV–E agency.’’ In the case of
a Tribal title IV–E agency, partial CFSRs
will be planned and conducted jointly
by ACF and the Tribal title IV–E agency
based on the nature of the concern.
Section 1355.33(f)—Notification
Paragraph (f) provides for ACF to
notify the title IV–E agency as to
whether it is, or is not, operating in
substantial conformity within 30 days
following a full review, partial review or
resolution of a discrepancy between the
findings of the on-site review and the
statewide/Tribal assessments. In this
paragraph we made conforming
amendments to apply the regulatory
requirements of the notification process
to a Tribal title IV–E agency in the same
way they are applied to a State title IV–
E agency by removing the references to
‘‘State agency’’ and ‘‘State’’ and
replacing them with ‘‘title IV–E
agency.’’ We also removed references to
‘‘statewide’’ where it preceded
‘‘assessment’’ so that it is inclusive of
either State or Tribal assessments. ACF
will therefore notify the title IV–E
agency, whether State or Tribal, of its
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conformity status within 30 days of the
events mentioned above.
Section 1355.34—Criteria for
Determining Substantial Conformity
This section describes the criteria that
will be used to determine a title IV–E
agency’s degree of conformity with
specified title IV–B and IV–E plan
requirements for each outcome and
systemic factor of the title IV–E agency’s
service delivery system that undergoes
review.
Section 1355.34(a)—Criteria To Be
Satisfied
Paragraph (a) describes the basic
criteria used to determine the title IV–
E agency’s substantial conformity with
applicable CFSP requirements based on:
(1) The achievement of the seven
outcomes specified in paragraph (b);
and (2) the functioning of seven core
systemic factors directly related to the
title IV–E agency’s capacity to deliver
services leading to improved outcomes.
In paragraph (a) we made conforming
amendments to apply these basic
criteria to a Tribal title IV–E agency in
the same way they are applied to a State
title IV–E agency by removing the word
‘‘State’’ from the phrase ‘‘title IV–B and
IV–E State plan requirements’’ and
removing the references to ‘‘State’’ in
paragraphs (a) and (a)(3) and replacing
them with ‘‘title IV–E agency.’’ In
paragraph (a)(1) we replaced the phrase
‘‘statewide’’ with ‘‘statewide/Tribal
service area’’ to preface data indicators.
This is a technical change to apply the
data indicators equally to both States
and Tribes, as there are not separate
data indicators for each.
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Section 1355.34(b)—Criteria Related to
Outcomes
Paragraph (b) describes the seven
outcomes in the areas of child safety,
permanency for children and child and
family well-being used for the purposes
of the review. The title IV–E agency’s
substantial conformity will be
determined based on its ability to
substantially achieve these outcomes.
We made several conforming
amendments in paragraph (b) to apply
the regulatory requirements to a Tribal
title IV–E agency in the same way they
are applied to a State title IV–E agency
and to update obsolete citations.
Specifically, we made conforming
amendments to remove the references to
‘‘State’’ in paragraphs (b)(1) through
(b)(3) and in most cases replacing them
with ‘‘title IV–E agency.’’ We also
removed the reference to the title IV–B
assurances being made ‘‘by the State’’ so
that more general language remains to
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allow for the review of these assurances
when made by the Indian Tribe.
To remove and replace out-of-date
statutory references with current
citations, we amended: Paragraph
(b)(2)(ii)(C) by removing reference to
section ‘‘422(b)(9)’’ and replacing it with
‘‘422(b)(7)’’; paragraph (b)(2)(ii)(D) by
removing the reference to section
‘‘422(b)(10)(C)(i) and (ii)’’ and replacing
it with ‘‘422(b)(8)(B)’’; paragraph
(b)(2)(ii)(E) by removing the reference to
section ‘‘422(b)(11)’’ and replacing it
with ‘‘422(b)(9)’’ and paragraph
(b)(2)(ii)(F) by removing the reference to
section ‘‘422(b)(12)’’ and replacing it
with ‘‘422(b)(10).’’ We believe that
because these changes are technical in
nature there is no need to go through the
notice and comment process to update
the regulation.
We did not change the reference to
the State’s compliance with ICWA in
paragraph (b)(2)(ii)(E) as one of the
CFSP assurances subject to review to
make it also applicable to a Tribal title
IV–E agency. This is because the ICWA
provisions cited in section 422 of the
Act and referenced here are those
provisions which apply to State court
proceedings and handling of custodial
issues with regard to Indian children.
Such provisions are not applicable to
Indian Tribes and therefore cannot be a
part of a review of Tribal title IV–E
agency compliance with title IV–B and
IV–E provisions.
We amended paragraphs (b)(2)(i),
(b)(3)(i) and (b)(4) by replacing the term
‘‘statewide’’ with ‘‘statewide/Tribal
service area’’ prior to ‘‘data indicator.’’
This allows ACF to develop data
indicators based on title IV–E agencies’
Adoption and Foster Care Analysis and
Reporting System (AFCARS) and
National Child Abuse and Neglect Data
System (NCANDS) data and make such
indicators a factor in substantial
conformity for both State and Tribal IV–
E agencies. However, we did not alter
the references to ‘‘statewide’’ indicators
in paragraph (b)(5) as they refer to the
data standards that were set initially in
2000 and not to those that may be
established in the future. Any changes
to the actual indicators that are
applicable to the CFSR will be
announced by ACF, as applicable,
through other means, such as a Federal
Register notice or other formal issuance.
Section 1355.34(c)—Criteria Related to
Title IV–E Agency Capacity To Deliver
Services Leading to Improved Outcome
for Children and Families
In paragraph (c) we describe criteria
for the seven core systemic factors that
we evaluate to determine the agency’s
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capacity to deliver services that improve
outcomes for children and families.
We made several conforming
amendments in paragraph (c) to apply
the regulatory requirements to a Tribal
title IV–E agency in the same way they
are applied to a State title IV–E agency
and to update outdated citations. The
substance of the systemic factors
remains the same with these conforming
changes.
To apply the regulatory requirements
to a Tribal title IV–E agency in the same
way they are applied to a State title IV–
E agency we removed references to
‘‘State’’ or ‘‘State’s’’ in paragraphs (c),
(c)(2), (c)(3), (c)(4)(iv), (c)(5)(v) and
(c)(6)(iv). We also removed and replaced
references to ‘‘State agency’’ with ‘‘title
IV–E agency’’ in the title, paragraphs (c),
(c)(2) and (c)(2)(iii), (c)(3), (c)(4) and
(c)(4)(i), (c)(5), (c)(6)(i), and (c)(7)(iii)
through (c)(7)(v). We amended the title
of paragraph (c)(1), paragraph (c)(4)(v)
and (c)(6)(i) by replacing the terms
‘‘Statewide’’ with ‘‘Statewide/Tribal’’,
‘‘State-licensed’’ with ‘‘State/Triballicensed’’, ‘‘State-approved’’ with
‘‘State/Tribal-approved’’, ‘‘county’’ with
‘‘county/local’’ and ‘‘State’’ with ‘‘State/
Tribal’’ respectively. We amended
paragraphs (c)(2)(i) and (c)(3)(i) by
adding the phrase ‘‘Tribal service area’’
to follow ‘‘State.’’ We amended
paragraphs (c)(7)(i) and (ii) by adding
the phrase ‘‘or Tribe’’ to follow the word
‘‘State.’’
To conform the regulation to current
law as amended in this section, we
updated several statutory references. In
particular we amended: Paragraph (c)(1)
by replacing the citation to section
‘‘422(b)(10)(B)(i)’’ with
‘‘422(b)(8)(A)(i)’’; paragraphs (c)(2)(i)
through (v) by replacing the citation to
section ‘‘422(b)(10)(B)(ii)’’ with
‘‘422(b)(8)(A)(ii)’’; paragraph (c)(5) by
removing the citation to section
‘‘422(b)(10)(B)(iii)’’ and replacing it with
‘‘422(b)(8)(A)(iii)’’; paragraph (c)(7)(iv)
by removing the citation to section
‘‘422(b)(9)’’ and replacing it with
‘‘422(b)(7)’’; and, paragraph (c)(7)(v) by
removing the citation to section
‘‘422(b)(12)’’ and replacing it with
‘‘422(b)(10).’’ Further, we are amending
one regulatory reference that we have
discovered is incorrect. In paragraph
(c)(6)(i) we are replacing the reference to
45 CFR 1357.15(l)(4) to the correct
reference to the title IV–B consultation
requirements in 45 CFR 1357.15(l)(3).
Section 1355.34(d)—Availability of
Review Instruments
This paragraph describes the
availability of review instruments to
those subject to CFSRs. We made a
conforming amendment in paragraph (d)
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to apply the section to a Tribal title IV–
E agency in the same way it is applied
to a State title IV–E agency by removing
the word ‘‘States’’ from the phrase
‘‘make available to States’’ and replacing
it with the term ‘‘title IV–E agencies.’’
Therefore, review instruments will be
made available to both States and Indian
Tribes that are subject to the CFSR.
Section 1355.35—Program Improvement
Plans
This section describes the
requirements for developing,
implementing and reviewing program
improvement plans and for providing
technical assistance to a title IV–E
agency in implementing the program
improvement plans. It implements the
requirement in section 1123A(b)(4) of
the Act that a title IV–E agency found
not to be in substantial conformity be
afforded the opportunity to develop and
implement a corrective action plan.
These plans are termed PIPs and are
developed through a partnership
between the title IV–E agency and ACF.
In addition to the changes described
below, we added a statement after
paragraph (f) indicating that the
information collection requirements in
this section have been approved by
OMB and providing the applicable OMB
Control Number.
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Section 1355.35(a)—Mandatory Program
Improvement Plan
This paragraph describes the
requirement that a PIP must be
developed jointly by the title IV–E
agency and Federal staff when the title
IV–E agency is not in substantial
conformity, and describes the content
requirements for the PIPs. In paragraph
(a) we made several conforming
amendments to apply the regulatory
requirements of the mandatory PIPs to
a Tribal title IV–E agency in the same
way they are applied to a State title IV–
E agency. Specifically, we removed the
references to ‘‘State’’, ‘‘States’’ and
‘‘State’s’’ and replaced them with ‘‘title
IV–E agency,’’ ‘‘title IV–E agencies’’ and
‘‘title IV–E agency’s’’ in paragraphs
(a)(1), (a)(1)(i), (a)(1)(ii), (a)(1)(v) and
(a)(2). We also amended paragraph
(a)(1)(iv) by replacing the term
‘‘statewide’’ with ‘‘statewide/Tribal.’’
Section 1355.35(b)—Voluntary Program
Improvement Plan
This paragraph explains the
requirements for a voluntary PIP,
developed jointly by the title IV–E
agency and an ACF Regional Office
when the title IV–E agency is in
substantial conformity but elects to
develop a plan to target areas in need of
improvement. In paragraph (b) we made
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several conforming amendments to
apply the regulatory provisions for
voluntary PIPs to a Tribal title IV–E
agency in the same way they are applied
to a State title IV–E agency by removing
the references to ‘‘States’’ ‘‘State’’ and
‘‘State’s’’ and replacing them with ‘‘title
IV–E agencies,’’ ‘‘title IV–E agency’’ and
‘‘title IV–E agency’s’’ in paragraphs (b),
(b)(1) and (b)(3), respectively.
Section 1355.35(c)—Approval of
Program Improvement Plans
This paragraph outlines the
requirements for the approval of a
mandatory PIP by ACF, and sets a 90day timeline for the initial submission
of the PIP with a 30-day timeline for the
resubmission of a plan in need of
revision to meet the approval
requirements, as well as when ACF will
begin to withhold funds. In paragraph
(c) we made several conforming
amendments to apply the regulatory
requirements which govern PIPs to a
Tribal title IV–E agency in the same way
they are applied to a State title IV–E
agency by removing the references to
‘‘State’’ and replacing them with ‘‘title
IV–E agency’’ in paragraphs (c)(1), (c)(3)
and (c)(4).
Section 1355.35(d)—Duration of
Program Improvement Plans
This paragraph describes ACF’s
authority for establishing time frames,
not to exceed two years, for the
completion of PIPs, extensions of
deadlines, the required title IV–E agency
quarterly status reports to ACF. In
paragraph (d) we made several
conforming amendments to apply these
regulatory requirements to a Tribal title
IV–E agency in the same way they are
applied to a State title IV–E agency by
removing the references to ‘‘State’’ and
replacing them with ‘‘title IV–E agency’’
in paragraphs (d)(3) and (d)(4).
Section 1355.35(e)—Evaluating Program
Improvement Plans
This paragraph outlines the
requirements for the joint evaluation of
a PIP by the title IV–E agency and ACF
and the ability to jointly renegotiate a
PIP, as applicable. We made several
conforming amendments to apply these
regulatory requirements to a Tribal title
IV–E agency in the same way they are
applied to a State title IV–E agency by
removing the references to ‘‘State’’ and
‘‘State’s’’ and replacing them with ‘‘title
IV–E agency’’ and ‘‘title IV–E agency’s’’
respectively in paragraphs (e), (e)(1)
through (e)(4) and (e)(4)(i). We also
amended paragraph (e)(1) and (e)(4)(i)
by replacing the term ‘‘statewide’’ with
‘‘statewide/Tribal service area’’ to
precede ‘‘data indicators’’ as they are
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905
applied equally to State and Tribal title
IV–E agencies.
Section 1355.35(f)—Integration of
Program Improvement Plans With CFSP
Planning
This paragraph describes the
requirement that the elements of the PIP
be incorporated into the goals and
objectives of the CFSP and the annual
reviews and progress reports related to
the CFSP. In paragraph (f) we made a
conforming amendment to apply the
regulatory requirements for integrating
PIPs into CFSPs to a Tribal title IV–E
agency in the same way they are applied
to a State title IV–E agency by removing
the reference to ‘‘State’s’’ and replacing
it with ‘‘title IV–E agency’s.’’
Section 1355.36—Withholding Federal
Funds Due to Failure To Achieve
Substantial Conformity or Failure To
Successfully Complete a Program
Improvement Plan
This section describes the pool of
funds that are subject to withholding
and the process for withholding Federal
funds due to the failure of the title IV–
E agency to meet the CFSR criteria for
substantial conformity. The provisions
address the method we use to determine
the amount of funds to be withheld and
the conditions under which such
withholding may be applied, or if
applicable, suspended or terminated.
We made several conforming
amendments to apply the regulatory
requirements for withholding funds to a
Tribal title IV–E agency in the same way
they are applied to a State title IV–E
agency by removing all references to
‘‘State’’, ‘‘States’’ and ‘‘State’s’’ and
replacing them with ‘‘title IV–E
agency’’, ‘‘title IV–E agencies’’, and
‘‘title IV–E agency’s’’ respectively in
paragraphs (a)(1) and (2), (b), (b)(1)
through (4), (b)(4)(i) and (ii), (b)(6),
(b)(7), (b)(7)(iii), (b)(8), (b)(8)(iii), (c)(1),
(c)(1)(ii), (d), (e)(1), (e)(2)(i), (e)(2)(iii),
and (e)(3) through (5).
We made a technical amendment to
paragraph (e)(5) to reflect changes in
regulatory citations by deleting the
current citation and replacing it with
‘‘45 CFR 30.18.’’ On March 8, 2007 HHS
issued a final rule that implemented the
provisions of the Debt Collection
Improvement Act of 1996 (72 FR 10404).
The rule on interest, penalties and
administrative costs was removed from
45 CFR 30.13 and codified at 45 CFR
30.18.
Section 1355.37—Opportunity for
Public Inspection of Review Reports and
Materials
This section requires the title IV–E
agency to make all statewide or Tribal
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assessments, reports of findings, and
PIPs available for public review. In this
paragraph we made a conforming
amendment to apply the regulatory
requirements related to making these
documents available to the public to a
Tribal title IV–E agency in the same way
they are applied to a State title IV–E
agency by removing the reference to
‘‘State’’ and replacing it with ‘‘title IV–
E,’’ and by adding the phrase ‘‘or
Tribal’’ before ‘‘assessment.’’
Section 1355.38—Enforcement of
Section 471(a)(18) of Act Regarding the
Removal of Barriers to Interethnic
Adoption
This section implements the
provisions of sections 474(d)(1) and (2)
of the Act, which contain enforcement
provisions regarding the requirements
in section 471(a)(18) of the Act. Section
471(a)(18) of the Act prohibits a title IV–
E agency, or any other entity in the
State/Tribe that receives Federal funds
and is involved in adoption or foster
care placements, from denying an
individual the opportunity to foster or
adopt on the basis of the child’s or the
prospective parent’s race, color or
national origin, or delay or deny a
child’s placement in foster care or
adoption on that basis. Section 1355.38
describes the existing process for
addressing an identified violation of
section 471(a)(18) of the Act by a title
IV–E agency, including corrective action
plans and withholding. This process
includes collaboration with the
Department’s Office for Civil Rights
(OCR) due to its significant expertise in
investigating alleged civil rights
violations including involvement in the
development and implementation of
corrective action plans. We want to note
that section 471(a)(18) of the Act does
not affect how ICWA applies.
With the exception of paragraph (d),
where no changes were necessary, we
made amendments to apply the
regulatory requirements related to
violations of section 471(a)(18) of the
Act to a Tribal title IV–E agency in the
same way they are applied to a State
title IV–E agency in each paragraph. We
accomplished this by removing the
references to ‘‘State’’, ‘‘States’’ and
State’s’’ in each place those terms
appeared and replacing them with ‘‘title
IV–E’’, ‘‘title IV–E agencies’’ and ‘‘title
IV–E agency’s’’ respectively. We also
added the word ‘‘Tribe’’ to the phrase
‘‘an entity in the State’’ in paragraph
(a)(2).
We made a technical amendment to
paragraph (h)(4) to reflect changes in
regulatory citations by deleting the
current citation and replacing it with
‘‘45 CFR 30.18.’’ On March 8, 2007 HHS
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issued a final rule that implemented the
provisions of the Debt Collection
Improvement Act of 1996 (72 FR 10404).
The rule on interest, penalties and
administrative costs was removed from
45 CFR 30.13 and codified at 45 CFR
30.18.
In addition to the change described
above, we added a statement following
the end of paragraph (h) providing that
the information collection requirements
in this section have been approved by
the Office of Management and Budget
(OMB) and provide the applicable OMB
Control Number.
Section 1355.39—Administrative and
Judicial Review
Section 1355.39 describes the
administrative and judicial review
requirements applicable to a title IV–E
agency if the agency appeals a finding
of non-conformity with title IV–E or IV–
B plan requirements.
We amended section 1355.39 in the
opening paragraph of the section and
paragraphs (b) and (c) to replace the
term ‘‘State’’ with ‘‘title IV–E agency’’
pursuant to Public Law 110–351. In
doing so, we apply the appeal
procedures for title IV–E agencies in 45
CFR Part 16 equally to State and Tribal
title IV–E agencies. The term ‘‘title IV–
E agency’’ is inclusive of both State and
Tribal programs with a plan approved
pursuant to section 471(a) of the Act.
Part 16 allows a title IV–E agency to
file an appeal related to the operation of
the title IV–B and IV–E programs to the
HHS Departmental Appeals Board
(DAB). The DAB is authorized to review
disputes in HHS programs (45 CFR Part
16 Appendix A). The DAB specifically
has jurisdiction over disputes arising
from title IV–E disallowances, and title
IV–B and IV–E withholding
determinations. In accordance with
section 1123A(c)(3) of the Act, we
provide a title IV–E agency with the
opportunity to appeal DAB decisions in
the district court for the judicial district
in which the principal or headquarters
office of the agency responsible for
administering the program is located.
Section 1355.40—Foster Care and
Adoption Data Collection
Section 1355.40(a)—Scope of the Data
Collection System
Paragraph 1355.40(a) describes the
scope of the data collection system and
the reporting populations that each title
IV–E agency is to include in
submissions to ACF. The system is
called AFCARS.
We made several conforming
amendments to apply the regulatory
requirements for data collection and
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reporting to a Tribal title IV–E agency in
the same way they are applied to a State
title IV–E agency either by removing
references to ‘‘State’’, ‘‘States’’ and
‘‘State’s’’ and replacing them with ‘‘title
IV–E agency’’, ‘‘title IV–E agencies’’, and
‘‘title IV–E agency’s’’ respectively, or by
adding a similar provision for a Tribal
title IV–E agency.
In paragraph (a)(1) we removed
specific dates when States were to begin
collecting and transmitting data after the
original AFCARS final rule (58 FR
67912) was issued in 1993 because they
are obsolete. We believe that because
these changes are technical in nature
there is no need to go through the notice
and comment process to update the
regulation. An Indian Tribe will begin
collecting and transmitting AFCARS
data after we approve the Indian Tribe’s
title IV–E plan, so the specific date will
vary among Tribal title IV–E agencies.
In paragraphs (a)(2) and (a)(3) we
added a requirement for children in an
Indian Tribe’s placement and care
responsibility and children placed for
adoption that is similar to the State
requirement in paragraphs (a)(2) and
(a)(3). For children in the Tribal title IV–
E agency’s placement and care
responsibility or who are placed in
foster care or for adoption and who are
placed outside of the Tribal service area,
the Indian Tribe placing the child and
making foster care payments or
adoption assistance payments must
submit and continually update the data
for each such child.
Section 1355.40(b)—Foster Care and
Adoption Reporting Requirements
Paragraph (b) describes the
requirements for transmitting foster care
and adoption data, including timelines
for submission, child-specific data
requirements, summary file
requirements and internal data
consistency checks. We made several
conforming amendments to apply the
regulatory requirements for foster care
and adoption reporting requirements to
a Tribal title IV–E agency in the same
way they are applied to a State title IV–
E agency either by removing references
to ‘‘State’’, ‘‘States’’ and ‘‘State’s’’ and
replacing them with ‘‘title IV–E
agency’’, ‘‘title IV–E agencies’’, and
‘‘title IV–E agency’s’’ respectively, or by
adding a similar provision for a Tribal
title IV–E agency.
Section 1355.40(c)—Missing Data
Standards
Paragraph (c) describes what we
consider to be missing data, which is a
factor in determining compliance with
the AFCARS requirements. We are
amending paragraph (c)(2) and
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removing (c)(3) to remove obsolete
references to a financial penalty as a
consequence of an agency exceeding the
threshold for missing data. In the case
of paragraph (c)(2) we removed the
reference to an obsolete penalty in
paragraph (c)(3) and modified the
language to accurately state that
exceeding the missing data threshold is
considered substantial noncompliance.
We also completely removed paragraph
(c)(3) and its references to penalties as
these provisions are obsolete. Enactment
of the Adoption Promotion Act of 2003
(Pub. L. 108–145), which added section
474(f) to the Act superseded these
penalties in regulation, rendering them
obsolete. We indicated in ACYF–CB–
IM–04–04 that no penalties would be
assessed until we issue revised final
AFCARS regulations, yet to be
published. In the interim, a title IV–E
agency that exceeds the missing data
threshold or any other AFCARS
standard has an opportunity to correct
its data, and failing that receives a
notice that it is not in compliance. We
believe that because these changes are
technical in nature there is no need to
go through the notice and comment
process to update the regulation.
We find proposed rulemaking for
these technical amendments to bring the
regulation in line with existing practice
impracticable and unnecessary since
they are not substantive. States have not
been subject to penalties for some time
and Tribal title IV–E agencies will not
be subject to these penalties until new
regulations state otherwise. Moreover,
we believe that delaying rulemaking on
these technical amendments would be
contrary to the public interest since
doing so would cause significant
confusion about the statutory and
regulatory provisions which Indian
Tribes must abide by in implementing
the title IV–E program for the first time.
Rather, it is prudent to change the
regulation now to conform to existing
practice so that States and Indian Tribes
have an equal understanding that there
is not an existing financial penalty being
implemented due to noncompliance
with AFCARS requirements. Therefore,
we find good cause to include these
technical amendments, and similar ones
described below, in this interim final
rule.
Section 1355.40(d)—Timeliness of
Foster Care Data Reports
In paragraph (d) we renumbered
paragraph (d)(1) as (d) and amended it
to indicate that, in accordance with
current policy, a title IV–E agency that
does not meet the threshold for timely
transaction date entries will be found in
substantial noncompliance. We
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removed paragraph (d)(2), in its entirety
because it references paragraph (e)
regarding penalties for missing data,
which is obsolete. We believe that
because this change is technical in
nature there is no need to go through the
notice and comment process to update
the regulation.
Section 1355.40(e)—Substantial
Noncompliance
In paragraph (e) we describe what
constitutes substantial noncompliance
with the AFCARS requirements. We
renamed the title ‘‘Substantial
Noncompliance’’ as opposed to
‘‘Penalties’’ and removed the second
sentence of paragraph (e)(1) that
discussed penalties. We deleted
paragraphs (e)(2), (3), (4), and (5) and
renumbered paragraph (e) accordingly.
All of the changes to this paragraph
were to bring the regulation in line with
the current practice which does not
penalize a title IV–E agency for
noncompliance with the AFCARS
standards, as discussed previously.
In addition to the changes described
above, we added a statement after the
end of paragraph (e) providing that the
information collection requirements in
this section have been approved by the
OMB and providing the applicable OMB
Control Number.
Section 1355.50—Purpose of This Part
Section 1355.50 describes the
procedures and requirements a title IV–
E agency must meet to receive Federal
financial participation for the automated
child welfare information system.
We amended section 1355.50 to make
a conforming change by replacing the
term ‘‘States’’ with ‘‘title IV–E agencies’’
to comply with Public Law 110–351
which permits Indian Tribes pursuant to
an approved plan under title IV–E to
operate a title IV–E program directly.
We added ‘‘or Tribal’’ to follow
reference to the ‘‘statewide’’ system to
be inclusive of Tribal systems.
Consequently, this conforming
amendment applies the regulatory
requirements to receive Federal
financial participation for the planning,
design, development, installation and
operation of automated child welfare
information systems equally to States
and Indian Tribes operating title IV–E
programs.
Section 1355.52—Funding Authority for
Statewide or Tribal Automated Child
Welfare Information Systems (SACWIS/
TACWIS)
Section 1355.52 describes the
requirements a title IV–E agency must
follow to claim Federal reimbursement
for automated child welfare information
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907
system expenditures at the 50 percent
match rate.
We amended the title to section
1355.52 to include a reference to
‘‘Tribal’’ automated child welfare
systems and the accompanying acronym
‘‘TACWIS’’ within the parenthesis. We
also amended paragraphs (a), (a)(1) and
(b) to make conforming changes by
replacing the term ‘‘States’’ or ‘‘State’’
with ‘‘title IV–E agencies’’ and ‘‘title IV–
E agency’’ respectively. We similarly
added reference to a ‘‘Tribal’’ automated
information system to accompany
references to a ‘‘State’’ or ‘‘statewide’’
automated system in paragraphs (a) and
(a)(3) and removed the word ‘‘State’’
that preceded ‘‘plan’’ in paragraph
(a)(4). These conforming changes apply
the regulatory provisions for a title IV–
E agency to claim Federal Financial
Participation (FFP) for expenditures
related to planning, designing,
developing, and installing a child
welfare information system at the 50
percent rate equally to States and Indian
Tribes, as required by Public Law 110–
351.
In response to the FR notice that
solicited comments, we received
questions regarding funding for the
initial development of an automated
child welfare information system.
Previously, States were eligible to
receive 75% Federal match for the
initial development costs of a SACWIS
as was reflected in the provision in
paragraph (a). However, the statutory
authority for that higher level of match
expired several years ago and there is no
other statutory authority for an
enhanced match for automated systems
development costs for any title IV–E
agency, State or Tribal. To avoid
confusion and accurately reflect existing
law, we are making a technical change
to remove the obsolete reference to a
75% rate for development of a SACWIS.
We believe that because this change is
technical in nature there is no need to
go through the notice and comment
process to update the regulation.
Section 1355.53—Conditions for
Approval of Funding
Section 1355.53 describes the
requirements a title IV–E agency must
follow in designing, developing, and
operating an automated child welfare
system to receive funding for the
system.
We amended paragraphs (b)(2), (b)(3),
(e), and (f) to make conforming changes
by replacing the term ‘‘State’’, ‘‘States’’,
‘‘State agency’’ and ‘‘State agencies’’
with ‘‘title IV–E agency’’ or ‘‘title IV–E
agencies’’ to apply the SACWIS
conditions for funding to a Tribal title
IV–E agency in the same way they are
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applied to a State title IV–E agency, as
required by Public Law 110–351. In
addition, we made additional
conforming amendments to this section
for the same reasons. Specifically, we
amended paragraph (a) to make a
conforming change to add the acronym
‘‘TACWIS’’ to follow ‘‘SACWIS’’ and to
remove the term ‘‘State’’ before ‘‘plan.’’
These conforming changes apply the
advance planning document (APD)
requirements a title IV–E agency must
follow to receive funding for its
automated child welfare system equally
to States and Indian Tribes. Similarly, in
paragraph (b)(2) we added ‘‘or Tribe’’ to
follow the reference to a ‘‘State’’ so that
it is clear that Tribal automated systems
should have electronic exchanges and
referrals with other Tribal systems such
as TANF and child support, as
appropriate. In paragraph (b)(3), we
added a parenthetical provision that
indicates that for Indian Tribes, the
automated system is to support the
collection of data across the Tribal
service area on children in foster care,
which parallels the provision that States
have statewide data that supports the
same. In paragraph (g) we inserted the
term ‘‘and where applicable, Tribal
standards’’ after ‘‘State standards’’ to
apply the existing requirement that the
automated system must perform Quality
Assurance functions related to
compliance with State and Federal
standards equally to Tribal standards
where applicable.
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Section 1355.54—Submittal of Advance
Planning Documents
Section 1355.54 requires that the APD
be signed by the appropriate official, in
accordance with procedures specified in
45 CFR part 95, subpart F.
We amended section 1355.54 to make
conforming changes by removing the
two references to ‘‘State’’ to apply
equally the requirement that the title
IV–E agency submit an APD for an
automated system signed by the
appropriate official to Tribal and State
title IV–E agencies, as required by
Public Law 110–351.
Section 1355.55—Review and
Assessment of the System Developed
With Enhanced Funds
Section 1355.55 explains the process
for the review and assessment of the
automated child welfare information
system. Such a review is conducted to
determine the extent to which the
system meets the functionality
requirements, the approved APD and
the requirements of 45 CFR part 95,
subpart F. More details on the
assessment are available in a review
guide accessible at https://
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www.acf.hhs.gov/programs/cb/systems/
sacwis/sacwisreviewguide/
sacwisreviewguide_08.pdf.
We amended section 1355.55 to make
a conforming change by adding the
acronym ‘‘TACWIS’’ to follow
‘‘SACWIS’’ to apply the same ACF
review and assessment process to both
Tribal and State title IV–E systems.
In addition to the change described
above, we added a statement after the
end of paragraph (b) providing that the
information collection requirements in
this section have been approved by the
OMB and providing the applicable OMB
Control Number.
Section 1355.56—Failure To Meet the
Conditions of the Approved APD
Section 1355.56 discusses the
conditions in which an APD can be
suspended and describes the suspension
process.
We amended section 1355.56 in
paragraphs (a), (b)(1), (b)(1)(iv), (b)(2)
and (b)(4) to make conforming changes
by replacing the term ‘‘State agency’’
with ‘‘title IV–E agency’’ to comply with
Public Law 110–351. These conforming
changes in section in 1355.56 apply the
conditions in which an APD can be
suspended and the suspension process
equally to States and Tribal IV–E
agencies.
Section 1355.57—Cost Allocation
Section 1355.57 discusses the cost
allocation requirements for SACWIS/
TACWIS administrative costs claimed
under title IV–E.
We amended section 1355.57 in
paragraphs (a) and (b) by replacing a
reference to ‘‘State’’ with ‘‘title IV–E
agency,’’ by replacing references to
‘‘State plan’’ with ‘‘title IV–E plan,’’ and
by adding the acronym ‘‘TACWIS’’ after
‘‘SACWIS’’ to comply with Public Law
110–351. We also updated the citation
for section 474(e) to section 474(c) of the
Act. These conforming changes in
section 1355.57 apply the cost
allocation conditions for SACWIS/
TACWIS administrative costs equally to
States and Tribal title IV–E agencies.
We want to note that the Department
of the Interior, not HHS, is the cognizant
agency for cost allocation for Indian
Tribes. However, ACF still retains
authority for guiding the allocation and
documentation of title IV–E costs
pursuant to section 1356.60 and 2 CFR
225. As such, we issued guidance
including ACYF–CB–PI–10–13 (issued
on November 23, 2010) on how Indian
Tribes can develop appropriate cost
methodologies, including the allocation
for TACWIS administrative costs and
ACYF–CB–PI–09–11 (issued on
September 17, 2009) which discusses
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conditions for obtaining Federal
financial participation (FFP) by Indian
Tribes for automated information
technology projects including a
TACWIS.
Appendices to Part 1355
Section 1355.40 includes references to
appendices that identify the data
elements, definitions, format standards
and error standards for AFCARS.
We amended Appendices A through E
to replace many of the references to
‘‘State’’, ‘‘State agency’’ or ‘‘title IV–B/
IV–E State agency’’ with ‘‘title IV–E
agency’’ so that the related AFCARS
provisions are applied equally to States
and Indian Tribes operating title IV–E
programs, pursuant to Public Law 110–
351. We further amended the
appendices as discussed in more detail
below.
Appendix A to Part 1355—Foster Care
Data Elements
Appendix A outlines the definitions
and instructions for the foster care data
elements a title IV–E agency is required
to collect.
We added the variant ‘‘/Tribal service
area’’ to the description of the data
element ‘‘Is Current Placement Out-ofState?’’ and its response options in
section I, V.B so that where applicable,
Indian Tribes can report to AFCARS
whether a child is placed inside or
outside of the Tribal service area as
defined under sections 471(a)(3) and
479B(c)(1)(B) of the Act. This is a
parallel option to that for a State which
must indicate whether a child’s current
placement is intra- or interstate. Here
we slightly modified this data element
because a Tribal title IV–E agency must
operate the title IV–E program in a
Tribal service area. Therefore, a Tribal
title IV–E agency reporting whether a
child in its placement and care
responsibility was placed in- or out-ofState would not provide us with
meaningful information in this context.
The service area of an Indian Tribe may
be incongruent with a State’s
geographical lines. Therefore, we
developed a similar concept that is
specific to a Tribal title IV–E agency to
meet the law’s mandate that title IV–E
requirements apply equally to Indian
Tribes pursuant to Public Law 110–351.
We also amended Section II, Reporting
population, to replace the obsolete
citation to section ‘‘422(b)(10)’’ with
section ‘‘422(b)(8)’’ to reflect the
existing statutory child protections. We
believe that because this change is
technical in nature there is no need to
go through the notice and comment
process to update the regulation.
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In section II, I.A. we amended the
instruction by renaming it Title IV–E
agency and clarifying that an Indian
Tribe submitting the report will use an
abbreviation provided by ACF rather
than a U.S. Postal Service abbreviation.
We had to modify this requirement to
address a Tribal title IV–E agency
because the Tribal service areas do not
correspond to State geographical areas.
Further, we need a separate naming
convention so that we can distinguish
between AFCARS reports that come in
from States and Indian Tribes. ACF will
provide each Tribal title IV–E agency
with an appropriate abbreviation or
code to report in this data element
outside of the regulatory process.
Similarly, in section II, I.C. we amend
the instruction for the data element
‘‘local agency’’ to permit a Tribal title
IV–E agency to use an ACF-provided
code other than a Federal Information
Processing Standard (FIPS) as a
representation of the local agency which
has responsibility for the child’s foster
care case. The FIPS five digit codes that
States use for AFCARS standards were
originally designed by the National
Institute of Standards and Technology
to correspond to county jurisdictional
lines, which would not accurately
reflect Tribal service areas. Again, ACF
will provide the Tribal title IV–E agency
with an appropriate code that represents
the local agency with responsibility for
the child’s case.
In section II, V.A., we amended the
description related to the data element
‘‘Identify the type of setting in which
the child currently lives.’’ We amended
the definitions of ‘‘Foster Family Home
(Relative)’’ and ‘‘Foster Family Home
(Non-Relative)’’ to remove the phrase
‘‘State’’ and replace it with ‘‘title IV–E
agency’’ to indicate that a foster family
home is one regarded by either a State
or Tribal title IV–E agency as a foster
care living arrangement. We also
amended the definition of ‘‘Trial Home
Visit’’ to remove the phrase ‘‘State
agency supervision’’ and replace it with
‘‘title IV–E agency supervision’’ to
indicate that a child that has been in a
foster care placement under State or
Tribal title IV–E agency supervision, but
has been returned to the principal
caretaker for a limited and specified
period of time, is in a trial home visit
placement.
In section II, V.B., we amended the
description related to the data element
‘‘Is current placement setting outside of
the State?’’ We added the phrase ‘‘or
Tribal service area’’ to the element
names and its response options so that
where applicable, Indian Tribes can
report to AFCARS whether a child is
placed inside or outside of the Tribal
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service area as defined under the section
471(a)(3) of the Act. This is the same
change as the one made earlier in
section I, V.B. We made a similar
change in section II, X.B. related to the
‘‘transfer to another agency’’ response
option for the element ‘‘Reason for
discharge.’’ In that provision we added
language to clarify that the title IV–E
agency is to indicate that the reason for
discharge is transfer to another agency
when the responsibility for the care of
the child was awarded to another
agency in or outside of the State ‘‘or
Tribal service area.’’
In section II, XI. we amended the
description related to the data element
‘‘Source(s) of Federal Support/
Assistance for Child.’’ We amended the
definition of ‘‘None of the Above’’ to
remove the phrase ‘‘State’’ and replace
it with ‘‘title IV–E agency’’ so that Tribal
title IV–E agencies can report if a child
is receiving support only from the Tribal
title IV–E agency.
We consider all of these as
conforming changes that apply AFCARS
requirements to a Tribal title IV–E
agency in the same manner as they are
applied to States.
Appendix B to Part 1355—Adoption
Data Elements
In Appendix B we provide definitions
and instructions for the title IV–E
agency reporting of adoption data
elements.
We amended section I to add the
variant ‘‘/Tribal service area’’ to the
description of the responses to the
‘‘Child was placed from’’ data element
described in section I, VII.A so that
where applicable, Indian Tribes can
report to AFCARS whether a child is
placed for adoption inside or outside of
the Tribal service area as defined under
the section 471(a)(3) of the Act. This is
the same change made for the same
reasons as the one described earlier for
the foster care data element related to
child placement. We amended the
question portion of section I, III.A to
remove the phrase ‘‘State child welfare
agency’’ and replace it with ‘‘title IV–E
agency’’ to indicate that both State and
Tribal title IV–E agencies are to report
to AFCARS whether the agency
determined if the child has special
needs. We also amended the title of
section I, VIII by removing the reference
to ‘‘Federal/State’’ from ‘‘Financial
Adoption Support.’’ This change will
require both State and Tribal title IV–E
agencies to report on monthly financial
adoption subsidies being paid on behalf
of a child.
We also amended section II, to add
language to the Reporting Population
section and in the following paragraph
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909
(b), to include children in a Tribal title
IV–E agency’s service area who are
adopted and whom the agency has had
some involvement in the adoption as
within the scope of the reporting
population. This added language
parallels the scope of the adoption
reporting population for a State title IV–
E agency and therefore implements the
requirement that the same title IV–E
requirements apply to Indian Tribes and
States per Public Law 110–351. We
further made a technical change to the
reporting population section to remove
a sentence that instructed States to
report all adoptions which occurred on
or after October 1, 1994. We removed
this instruction because it imposed a
requirement related to the initial
implementation of AFCARS in 1993;
now obsolete. We believe that because
this change is technical in nature there
is no need to go through the notice and
comment process to update the
regulation.
The title IV–E agency must include in
the AFCARS adoption file all children
adopted with the involvement of the
title IV–E agency, at the time of their
adoption, as indicated in the remaining
provisions of the reporting population
section. Finally, in the same paragraph
we revise language that suggested that
financial penalties were a consequence
of failure to report information on
adoptions. As explained elsewhere,
there are no financial penalties in effect
at this time. Therefore, we have
replaced the language with a provision
that explains that a finding of
noncompliance is the consequence for a
title IV–E agency not reporting to
AFCARS information on all adoptions
in the reporting population.
We amended section II, I.A. to
provide for a Tribal title IV–E agency to
submit a two-digit abbreviation
provided by ACF as opposed to the
Postal Service abbreviation used by
States. This is the same amendment
made to the similar element found in
the foster care file addressed previously.
We also amended section II, I.D. related
to the question ‘‘Did the title IV–E
agency have any involvement in this
adoption?’’ The element requires the
title IV–E agency to indicate how it was
involved in the child’s adoption for
children in the reporting population.
We amended the question by changing
‘‘State’’ to ‘‘title IV–E’’ and the
instruction to include children who are
in the placement and care responsibility
of the title IV–E agency who are adopted
‘‘in the service area’’ of the Indian Tribe.
This parallels State reporting of children
within their placement and care
responsibility who are adopted in the
State. This is a conforming change that
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applies the AFCARS requirements to
Indian Tribes in the same manner as
they are applied to States, as required by
Public Law 110–351.
Section II, IV.B describes the adoption
data element ‘‘Was the mother married
at the time of the child’s birth?’’ We
amended this description to define
marriage for the purposes of this data
element to include situations of
common law marriage if it is legal in the
Indian Tribe, in addition to those
situations in which it is legal in the
State. This is a technical change that
allows Indian Tribes to report common
law marriage as with States.
Section II, VII.A and B describe two
data elements related to from where a
child was placed for adoption and who
the child was placed by for adoption. In
the first element, we amended the
response options so that references to
adoptions that occur ‘‘within State’’ and
‘‘another State’’ include the alternatives
‘‘within Tribal service area’’ and
‘‘another Tribal service area.’’ These
response options are to be used by the
Tribal title IV–E agency as appropriate
to indicate when children are placed for
adoption with a family that is
considered either within the service
area or outside of the service area as
defined in section 471(a)(3) of the Act.
As with other conforming changes, this
allows Indian Tribes to report AFCARS
data in a similar manner to States. The
second element describes a Tribal
agency as a unit within one of the
federally-recognized Indian Tribes or
Indian Tribal organizations. We
amended this response option to be
inclusive of Tribal consortia to conform
to Public Law 110–351 which permits
Tribal consortia to operate a title IV–E
plan.
In section II, VIII.A we amended the
title of the section and the data element
instruction regarding whether a child is
receiving a monthly subsidy. We
removed reference in the title to ‘‘State/
Federal’’ adoption support and left it
broad so it can be inclusive of Tribal
adoption support. Similarly, we
amended the instruction for the
response option so that Indian Tribes
can report whether the child was
adopted with an adoption assistance
agreement under which regular ‘‘Tribal’’
subsidies are paid in addition to Federal
or State subsidies. This change is
conforming in nature as it allows a
Tribal title IV–E agency to report the
same type of information as a State as
required by Public Law 110–351;
whether the Indian Tribe is providing
adoption subsidies that are supported
with their own funds, or with Federal
funds.
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Appendix C to Part 1355—Electronic
Data Transmission Format
In Appendix C, we describe the
transmission criteria that must be met
by each title IV–E agency. We amended
Appendix C to replace ‘‘State agency’’
and ‘‘States’’ with ‘‘title IV–E agency’’
and ‘‘title IV–E agencies.’’
In order to meet the transmission
criteria, the regulation offers as much
flexibility as possible to negotiate a
method of transmission best suited to
the title IV–E agency’s environment.
This language allows ACF and Tribal
title IV–E agencies greater flexibility
regarding electronic data exchange and
secure transmission protocols and
standards for the transmission of
AFCARS data files through AFCARS
Technical Bulletins, rather than
regulation. States transmit the AFCARS
data using a secure data transfer
connection between the State’s
information system and the Federal
system. While an Indian Tribe may be
able to submit data electronically using
a similar software program, we also
learned through discussions and
consultations with Indian Tribes in the
Spring 2009 that some Indian Tribes
have limited technical resources with
which to develop or upgrade a data
reporting system and face technological
barriers to submitting data through an
electronic data exchange, including
limited access to software and systems
that will transmit data. We believe that
the inability to transmit data via data
transfer software should not be a barrier
to Tribal operation of a title IV–E
program, and that this section allow us
flexibility regarding electronic data
exchange. We will work with Tribes and
prescribe alternative secure
transmission protocols and standards
for the transmission of AFCARS data
files through AFCARS Technical
Bulletins. We also will provide
technical assistance to Indian Tribes in
order to assist in building the capacity
of Indian Tribes to submit AFCARS data
files via a direct file transfer in
accordance with Appendix C and
1355.40(b).
We removed the description of four
methods for electronic data exchange
that were in operation at HHS at the
time the Appendix was issued in 1993
because the methods are now obsolete.
We believe that because this change is
technical in nature there is no need to
go through the notice and comment
process to update the regulation.
Further, we amended Appendix C to
clarify that the four criteria for data
submissions apply to a Tribal title IV–
E agency in the same manner they apply
to a State title IV–E agency consistent
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with Public Law 110–351, regardless of
whether a Tribal title IV–E agency
transmits data in an electronic or nonelectronic file in accordance with
1355.40(b). The four criteria which
remain in the regulation are: (1) Records
must be written using ASCII standard
character format; (2) all elements must
be comprised of integer (numeric)
value(s); (3) all records must be a fixed
length; and, (4) all State and Tribal title
IV–E agencies must inform the
Department, in writing, of the method of
transfer they intend to use.
Appendix D to Part 1355—Foster Care
and Adoption Record Layouts
Appendix D outlines the detailed
record layouts for the AFCARS files.
We amended Appendix D to
incorporate the changes previously
discussed in Appendices A through C
that affect the record layout. These
changes include replacing references to
‘‘State’’ with ‘‘Title IV–E agency,’’
adding language that indicates whether
a placement for adoption or foster care
is in or out of the ‘‘Tribal service area,’’
and adding language that allows a Tribal
title IV–E agency to submit a two-digit
abbreviation provided by ACF as
opposed to the Postal Service
abbreviation used by States.
Appendix E to Part 1355—Data
Standards
Appendix E outlines the four types of
assessments which are conducted on the
foster care and adoption data
submissions to determine the
completeness and internal consistency
of the data.
We amended Appendix E throughout
to replace references to ‘‘State’’ with
‘‘Title IV–E agency’’ and added language
that indicates whether a placement for
adoption or foster care is in or out of the
‘‘Tribal service area.’’
In section A.2.a.(1) we amend the
instruction for the data element ‘‘Local
Agency’’ and the summary file to permit
a Tribal title IV–E agency to use an ACFprovided code other than a FIPS as a
representation of the local agency which
has responsibility for the child’s foster
care case.
We also amended Appendix E to
remove references to the penalty
provisions in section 1355.40(e) because
they are obsolete as discussed
previously, and replaced such
provisions with language that indicates
that the results of the assessments
determine whether a title IV–E agency is
in substantial compliance with the
AFCARS requirements. We believe that
because these changes are technical in
nature that there is no need to go
through the notice and comment
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process to update the regulation
accordingly.
Appendix F to Part 1355
Appendix F contained a chart that
indicated the State allotments of
incentive funds in 1993. These
allotments were the basis for fiscal
penalties for substantial noncompliance
with AFCARS requirements. We have
deleted Appendix F in its entirety
because as explained previously the
penalty structure in the regulations is no
longer in use.
Part 1356—Requirements Applicable to
Title IV–E
Section 1356.10—Scope
This section indicates the scope of the
part 1356 rules as applicable to the title
IV–E programs for foster care, adoption
assistance and independent living.
We amended this section to replace
‘‘State’’ with ‘‘title IV–E agency’’
pursuant to Public Law 110–351 to
apply the title IV–E program equally to
States and Indian Tribes directly
operating a title IV–E program.
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Section 1356.20—Title IV–E Plan
Document and Submission
Requirements
This section outlines the process for
submission and approval of title IV–E
plans under section 471 of the Act.
We amended section 1356.20 in
paragraphs (a), (b), (c) and (d) (as
renumbered) by deleting all references
to ‘‘State’’ and ‘‘State plan’’ and
replacing them with ‘‘title IV–E agency’’
and ‘‘title IV–E plan’’ respectively, to
apply the title IV–E program equally to
States and Indian Tribes directly
operating a title IV–E program pursuant
to Public Law 110–351. We made
additional changes to these paragraphs
to remove obsolete references, conform
to Public Law 110–351 or make
technical corrections as follows. We
believe that because these changes are
technical in nature there is no need to
go through the notice and comment
process to update the regulation
accordingly.
We amended paragraph (a) to specify
that Indian Tribes directly operating a
title IV–E program must have a plan
approved by the Secretary that meets
the requirements of section 479B(c) of
the Act, in addition to the requirements
of 45 CFR part 1355 and section 471(a)
of the Act. This additional citation to
section 479B(c) of the Act is necessary
since Public Law 110–351 specifies
some unique criteria for Tribal title IV–
E programs only.
We removed an obsolete reference in
paragraph (b) to penalties described in
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45 CFR 1355.40(e) for AFCARS (see
more discussion related to this
provision in the section by section
description of 45 CFR 1355.40(e)). We
believe that because this change is
technical in nature there is no need to
go through the notice and comment
process to update the regulation.
We deleted paragraph (c) because it
contained references to outdated
statutory provisions regarding voluntary
foster care placements. Although these
citations have been removed, both State
and Tribal title IV–E agencies still have
the option to provide title IV–E for
eligible children voluntarily placed into
foster care pursuant to section
472(a)(2)(A)(i) of the Act. Therefore, this
is a technical change only. We
renumbered paragraphs (d) and (e) as (c)
and (d) accordingly.
We made various technical changes to
renumbered paragraph (c) to clarify the
Tribal official who has the authority to
sign the title IV–E plan. States must
have the governor or his or her designee
review and submit the title IV–E plan.
We added a parallel provision for Indian
Tribes to authorize the Tribal leader or
his or her designee to review and submit
the plan in paragraph (c)(2). This is
consistent with the law’s requirement to
apply title IV–E requirements equally to
States and Indian Tribes. We also
amended paragraph (c)(4) because it is
obsolete. ACYF is authorized to approve
title IV–E plans consistent with our
most recent functional statement of
organization rather than the ACF
Regional Administrator (see 71 FR
59117–59123, 10/06/06). We believe
that because this change is technical in
nature there is no need to go through the
notice and comment process to update
the regulation. Further, we amended
paragraph (c)(8) to apply the
requirements for effective dates of a new
title IV–E plan equally to States and
Indian Tribes. As such, in the case of an
Indian Tribe that directly operates a title
IV–E program, the effective date for
expenditures made may not be earlier
than the first day on which the plan is
in operation in the Indian Tribe’s entire
service area. This is a comparable
requirement to the one in existence for
States: Expenditures cannot be made
earlier than the first day the plan is in
operation on a statewide basis.
One commenter requested that an
Indian Tribe that directly operates a title
IV–E program be able to start a title IV–
E program in any quarter of a fiscal year.
This is allowable if the Indian Tribe
submits an approvable title IV–E plan to
ACF by the end of the calendar quarter.
Another commenter requested that
Indian Tribes be permitted to operate
the foster care maintenance payments
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911
program but not the adoption assistance
program. The statute at section 471(a)(1)
of the Act requires the operation of both
the foster care and adoption programs
under title IV–E as mandatory features
of the program.
Section 1356.21—Foster Care
Maintenance Payments Program
Implementation Requirements
This section describes many of the
requirements of the foster care
maintenance payments program which
relate to child eligibility.
We amended section 1356.21
throughout by deleting numerous
references to ‘‘State agency,’’ ‘‘State
plan’’ and ‘‘State’’ replacing them with
‘‘title IV–E agency’’ or ‘‘title IV–E plan’’
respectively pursuant to Public Law
110–351 to apply the title IV–E program
equally to States and Indian Tribes
directly operating a title IV–E program.
The additional changes we made
throughout this section are discussed
below.
Section 1356.21(a)—Statutory and
Regulatory Requirements of the Federal
Foster Care Program
This paragraph states the
requirements that apply in general to
the title IV–E foster care maintenance
payments program. In paragraph (a), for
a Tribal title IV–E agency, we added a
cross reference to section
479B(c)(1)(C)(ii)(II) of the Act. This
statutory provision requires a Tribal title
IV–E agency to use the 1996 AFDC
eligibility standards in effect in the State
of the child’s removal for the purposes
of title IV–E foster care eligibility. We
received comments during consultation
that requested some form of relief from
this requirement, as many noted that it
would be burdensome to an Indian
Tribe to become familiar with and apply
AFDC eligibility standards from a
number of different States. Suggestions
included that we establish a national
AFDC standard, streamline the AFDC
eligibility determination process, and
allow a Tribal title IV–E agency to
disregard the AFDC income/resource
standards or specifically exempt Tribal
per capita payments from State AFDC
standards. We are unable to deviate
from the explicit statutory requirement
regarding the process for determining
eligibility for AFDC (section 479B(c)(1)
(C)(ii)(II) of the Act). The Tribal title IV–
E agency must use the 1996 title IV–A
plan standards of the State in which the
child was residing at the time of
removal including those related to
income and resources, with only those
exceptions provided in law for deviating
from those 1996 standards. Specifically,
a title IV–E agency must use: The
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Federal $10,000 child resources
limitation as provided for in section
472(a)(3)(B) of the Act; the State
definition of unemployed parent subject
to the requirements of 45 CFR
233.101(a)(1) as amended after 1996;
and, the Federal restrictions on benefits
to certain types of immigrants as
provided for in section 401(a) of the
Personal Responsibility and Work
Opportunity Reconciliation Act of 1996
(Pub. L. 104–193).
Section 1356.21(b)—Reasonable Efforts
This paragraph outlines the statutory
requirement at section 471(a)(15) of the
Act. We made a technical change to this
paragraph to replace the reference to
section 472(a)(1) of the Act with the
correct citation to section 472(a)(2). At
the time that the regulations were
originally published, the eligibility
requirement for a judicial determination
regarding reasonable efforts was located
in section 472(a)(1) of the Act. The
Deficit Reduction Act of 2005 (Pub. L.
109–171) amended the law and
repositioned the reasonable efforts
requirement at section 472(a)(2) of the
Act. This is a conforming change only
to update the statutory reference. We
further amended this paragraph to
remove the reference to ‘‘State’’ in the
statement that a child’s health and
safety must be the paramount concern
in making reasonable efforts. This
change applies the requirement equally
to States and Indian Tribes pursuant to
Public Law 110–351.
A commenter sought clarification on
the title IV–E requirements related to
reasonable efforts versus the ICWA
provisions for active efforts and
requested that we explain who is
responsible for determining whether the
reasonable and active efforts standards
are met. The title IV–E foster care
eligibility requirement in paragraph
(b)(1) mandates that the title IV–E
agency obtain a judicial determination
to the effect that reasonable efforts were
made to prevent a child’s removal from
the home within 60 days of the child’s
removal, or a judicial determination that
efforts are not required (i.e., making no
efforts was reasonable) because one of
the conditions in section 471(a)(15)(D)
of the Act have been met. Additionally,
per paragraph (b)(2) the title IV–E
agency must obtain a judicial
determination that it has made
reasonable efforts to finalize the
permanency plan in effect within 12
months of the child’s entry into foster
care. Whether the State or Tribal title
IV–E agency obtains this judicial
determination depends on which party
has placement and care responsibility
for the child at the time it is due. ICWA
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at 25 U.S.C. 1912(d) requires that any
party seeking to effect a foster care
placement of, or termination of parental
rights to, an Indian child under State
law (emphasis added) shall satisfy the
court that active efforts have been made
to provide remedial services and
rehabilitative programs designed to
prevent the breakup of the Indian family
and that these efforts have proved
unsuccessful. Here the party responsible
for obtaining an active efforts
determination is the one making the
petition for foster care or other custodial
proceedings in a State court. The
requirements for reasonable efforts and
active efforts are under separate Federal
authorities and are not altered or
superseded by one another. However, as
ICWA is outside ACF’s purview, we do
not have authority to instruct States and
Tribes on how to meet its requirements.
There is no particular language
required to satisfy the title IV–E
reasonable efforts judicial requirements,
however, the order should be clear that
the court has determined that
reasonable efforts were made or were
not required (65 FR 4056). Therefore, to
the extent that a State court makes a
finding related to active efforts for
ICWA purposes, it is possible that such
a finding could also satisfy one of the
title IV–E requirements related to
reasonable efforts. However, this is a
determination that can only be made in
light of a specific case. ACF regional
office staff and technical assistance
resources are available to work in
partnership with a title IV–E agency and
its courts to help them address
processes for meeting judicial
determination requirements.
Section 1356.21(b)(3)—Circumstances
in Which Reasonable Efforts Are Not
Required To Prevent a Child’s Removal
From Home or to Reunify the Child and
Family
This paragraph describes the
circumstances in which reasonable
efforts to prevent a child’s removal or to
reunify a child with his or her family
are not required consistent with section
471(a)(15)(D) of the Act. We amended
paragraph (b)(3)(i) to specify that if an
Indian Tribe operates a title IV–E
program, Tribal law must define what
constitutes aggravated circumstances
under which reasonable efforts are not
required to prevent a child’s removal
from home or reunify the child and
family. We made this change to align
the requirements for States and Indian
Tribes directly operating a title IV–E
plan as required by Public Law 110–
351. We note here that Tribal law
governs aggravated circumstances in the
case of a Tribal title IV–E plan, but not
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in the situation of a State plan under
which a Tribal public agency has an
title IV–E agreement pursuant to section
472(a)(2)(B)(ii) of the Act. In the case of
a title IV–E agreement, there is no
‘‘Tribal title IV–E agency’’ and our
existing policy at CWPM Section 9.4
Q/A #5 prevails. This policy explains
that another public agency or Indian
Tribe operating under a title IV–E
agreement is bound by any State statute
or policy related to the operation of the
title IV–E program.
We received a comment requesting
clarification on whether a finding
regarding reasonable efforts to prevent
placement is a requirement for children
removed from their homes by police
officers on an emergency basis. In all
cases in which the State or Tribal title
IV–E agency seeks to claim title IV–E
funds for a child involuntary removed
from his/her home, there must be a
judicial determination that either: (1)
Reasonable efforts were made to prevent
the child’s removal from the home; or
(2) that reasonable efforts to prevent
removal are not required because one of
the conditions in section 1356.21(b)(3)
have been satisfied (i.e., a parent has
subjected the child to aggravated
circumstances, the parent was convicted
of murdering another child, etc.). We
also note that we have existing policy
(CWPM Section 8.3A.9b Q/A #4) that
explains, ‘‘* * * if there is a judicial
determination to the effect that efforts to
prevent removal or reunify the family
have not been made due to the
immediate danger to the child, or that
the lack of efforts is appropriate due to
the particular circumstances of the case,
the reasonable efforts requirements in
45 CFR 1356.21(b)(1) and (2) will be
satisfied.’’
Section 1356.21(c)—Contrary to the
Welfare Determinations
This paragraph describes the
requirement under section 472(a)(2) of
the Act for a determination to the effect
that continuation of residence in the
home would be contrary to the welfare
of the child. We made a technical
change to this paragraph to replace the
reference to section 472(a)(1) of the Act
with the correct citation to section
472(a)(2).
Section 1356.21(d)—Documentation of
Judicial Determinations
This paragraph describes the
documentation requirements for the
reasonable efforts and contrary to the
welfare judicial determinations.
We amended paragraph (d)(2) to give
effect to section 479B(c)(1)(C)(ii)(I) of
the Act that allows a Tribal title IV–E
agency to use nunc pro tunc orders and
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affidavits in limited circumstances. This
amendment allows a Tribal title IV–E
agency, for the first 12 months in which
the title IV–E plan is in effect, to use
affidavits or nunc pro tunc orders to
demonstrate that a judicial
determination was made regarding
reasonable efforts or contrary to the
welfare of the child. This means that for
the first 12 month period only, if the
reasonable efforts or contrary to the
welfare determination is not included in
the requisite orders, we will accept an
affidavit, or nunc pro tunc order as
evidence that it was in fact made.
Several commenters to the FR notice
requested that Indian Tribes be able to
use nunc pro tunc orders to correct
existing State/Tribal court orders for
title IV–E eligibility purposes. We are
not clear what was envisioned by this
comment. The Tribal title IV–E agency
may use nunc pro tunc orders to correct
deficiencies in the record and otherwise
provide evidence of a judicial
determination regarding contrary to the
welfare or reasonable efforts. We do not
anticipate that judges will sign a nunc
pro tunc order in the absence of
evidence that substantiates the finding.
In other words, we caution the Tribal
agency from seeking nunc pro tunc
orders as merely a paperwork exercise
to obtain Federal funding. As we
explained in a prior rule (65 FR 4056),
the legislative history of the Federal
foster care program indicates that the
statutory requirement for judicial
determinations was created as an
‘‘important safeguard(s) against
inappropriate agency action.’’ Further,
nunc pro tunc orders are related only to
judicial determinations and cannot be
used to ‘correct’ other aspects of
eligibility, such as licensure of foster
family homes or child care institutions
or AFDC eligibility.
A commenter requested that nunc pro
tunc orders be allowed for cases which
are subject to a State/Tribal title IV–E
agreement. The statutory flexibility
exists only for a Tribal title IV–E agency
through the first 12 months of the title
IV–E plan, therefore, States may not use
nunc pro tunc orders to document a
judicial determination for cases subject
to a title IV–E agreement. Another
commenter requested that we provide a
rationale to explain why nunc pro tunc
orders are allowed for only a 12 month
period at the beginning of the Tribal
title IV–E plan and requested that we
permit such orders beyond this period.
The use of nunc pro tunc orders is
limited in statute to 12 months and
there is no explicit legislative history
that clarifies why this flexibility was
provided to Indian Tribes or why this
particular timeframe. However, the
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effect is to provide Indian Tribes who
are commencing their title IV–E
programs with a limited period where
the Indian Tribe may be held harmless
for court orders that ACF may otherwise
find insufficient for title IV–E funding
purposes.
We amended paragraph (d)(3) to
include a Tribal title IV–E agency in the
provision that explains that court orders
that reference State (or Tribal) law to
substantiate judicial determinations are
not acceptable documentation that the
findings were made. We made this
change to align the requirements for
States and Indian Tribes with a title IV–
E plan as required by Public Law 110–
351.
Section 1356.21(g)—Case Plan
Requirements
This paragraph outlines the
provisions for developing case plans for
each child in foster care. In paragraph
(g) we removed the phrase ‘‘State and
local’’ that preceded ‘‘staff’’ so that the
provision refers to staff of either a State
or Tribal title IV–E agency. The
paragraph now clarifies that the title IV–
E agency must promulgate policy
materials related to case plans. We also
added ‘‘Tribal’’ adoption exchanges to
the list of examples of child specific
recruitment efforts that should be
documented in the case plan for
children with the goal of adoption or
placement in another permanent home
in paragraph (g)(5). These changes apply
the existing case plan requirements to a
Tribal title IV–E agency on the same
basis as a State as required by Public
Law 110–351.
A commenter asked during
consultation whether Indian Tribes will
be required to document child specific
recruitment efforts for permanency; this
change clarifies that they will.
One commenter requested that case
plans developed by a Tribal title IV–E
agency be completed within 90 days
rather than the 60 day period in existing
regulations. The commenter opined that
a lack of Tribal resources and high
caseloads justified the extended
timeframe. We are following the
statutory requirement to implement the
program in the same manner for all title
IV–E agencies and are therefore leaving
the requirement at 60 days. Further, the
requirement to develop case plans
within 60 days is a longstanding
requirement that dates back to the
original title IV–E regulations issued in
1983. At that time, we concluded after
public comment that 60 days is a
reasonable and responsible time period
in which to document the child and
family’s assessed needs, set goals,
identify needed services and estimate a
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913
timeframe for permanency (47 FR
30932). Timely engagement of families
and establishing provisions for the
child’s safety, well-being, and
permanency are critical components to
the title IV–E foster care program.
The same commenter requested
clarification regarding whether a Tribal
title IV–E agency has the discretion to
develop a case plan format of their own.
This is allowable. There are no Federal
requirements regarding the format of the
case plan and a Tribal title IV–E agency
may develop their own formats as they
see fit. An Indian Tribe may want to
take advantage of our Regional Office
staff or technical assistance resource
partners to help them develop or adapt
a case plan format and process that
works best for them and is conducive to
parent engagement and the law’s other
requirements. The same commenter
sought clarification on whether Indian
Tribes can develop case plans jointly
with extended family/kin should
reunification not be likely. The
regulatory requirement is for the IV–E
agency to develop a case plan jointly
with the child’s parents or guardians.
Additional persons, such as family, kin,
service providers and other persons who
can serve as supports to the child and
family, can be engaged to assist in
developing the child’s case plan as the
State or Tribal title IV–E agency deems
appropriate.
A commenter requested that
regulatory references to children being
placed in close proximity to their
parent’s home, as in paragraph (g)(3),
take into consideration that an Indian
child may have affiliations with more
than one Indian Tribe or be located in
a service area that spans the geographic
jurisdictions of several States. We have
not made any adjustments to the
regulatory text in response to this
comment. Rather, we note here that the
case plan provision to discuss how the
placement setting will be in close
proximity to the home of the parents,
among other factors, is not a mandate
that in all cases the child be placed
close to the home of his/her parents.
Rather, the goal is for the agency to
outline in the case plan how the agency
weighed or will weigh close proximity
to the child’s parents in determining
his/her placement setting(s). Another
commenter requested that States
provide enough information when cases
are transferred from State to Tribal
custody to allow the development of a
good case plan. We concur that these
transfers will require extensive
coordination and communication
between title IV–E agencies and set forth
such provisions in new section 1356.67.
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Section 1356.21(i)—Application of the
Requirements for Filing a Petition To
Terminate Parental Rights at Section
475(E) of the Social Security Act
This paragraph implements the
provisions of section 475(E) of the Act
regarding filing a petition to terminate
parental rights (TPR) when a child has
been abandoned, or has been in foster
care for 15 out of 22 months unless a
statutory exception applies.
We amended paragraph (i)(1)(ii) to
include in the parenthetical statement
that when a child is determined by a
court to be abandoned, consistent with
Tribal law, a petition to file termination
of parental rights is due within 60 days
of that determination. The situation in
which Tribal law, as opposed to State
law, is applicable is when an Indian
Tribe has a title IV–E plan. Similar to
aggravated circumstances, if an Indian
Tribe is under a title IV–E agreement
(section 472(a)(2)(B)(ii) of the Act) with
a State, then State law on abandonment
is controlling rather than Tribal law.
We received a request that we clarify
whether customary adoptions satisfy the
TPR requirement and whether Indian
Tribes must follow the requirements for
TPR. While we recognize that
termination of parental rights and
adoption may not be a part of an Indian
Tribe’s traditional belief system or legal
code, there is no statutory authority to
provide a general exemption for Indian
Tribal children from the requirement to
file a petition for TPR. All title IV–E
agencies must file or seek to join a
petition to terminate parental rights in
the case of a child who has been in
foster care for the specified timeframe or
is abandoned. However, Federal law
provides case by case exceptions to the
requirement to file a petition for TPR
that include: The child is being cared
for by a relative; the agency has not
provided reasonable efforts to reunify
the family consistent with the case plan;
adoption is not appropriate for the
child; no legal grounds for TPR exist
(see section 475(5)(E)(i) through (iii) of
the Act). What constitutes the legal
grounds for TPR are at the discretion of
the Indian Tribe with regard to Tribal
title IV–E plans. Once a title IV–E
agency has filed a TPR consistent with
this provision, it must concurrently
begin to identify, recruit, process, and
approve a qualified adoptive family for
the child per section 1356.21(j)(3).
Seeking customary adoption of a child
is equivalent to other forms of legal
adoption for these purposes. We direct
a Tribal title IV–E agency to existing
policy in the CWPM at Section 8.3C.2e
for additional clarifications of the TPR
provisions.
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Section 1356.21(l)—Living With a
Specified Relative
Paragraph 1356.21(l) describes the
required conditions for living with a
specified relative prior to removal from
home to meet the AFDC requirements
for title IV–E eligibility for foster care
maintenance payments.
We amended paragraph (l) regarding
living with a specified relative in two
respects. First, we changed the statutory
citation from section 472(a)(4) of the Act
to section 472(a)(3) of the Act as
renumbered by the enactment of the
Deficit Reduction Act of 2005 (Pub. L.
109–171). Second, we added a reference
to section 479B(c)(1)(C)(ii)(II) of the Act
to cross reference the AFDC
requirements that are applicable to
Indian Tribes with a title IV–E plan. The
terms ‘‘parent’’ and ‘‘specified relative’’
used in paragraph (l) are those of the
AFDC program of the State in which the
child was living at the time of removal
as mandated by the statute. The law
does not provide any discretion for a
Tribal IV–E agency to define these
terms. Rather, the regulations of the
AFDC program at 45 CFR
233.90(c)(1)(v), state that a child may be
considered to meet the requirement of
living with a specified relative if his
home is with a parent or a person in one
of the following groups: (1) Any blood
relative, including those of half-blood,
and including first cousins, nephews, or
nieces, and persons of preceding
generations as denoted by prefixes of
grand, great, or great-great; (2)
Stepfather, stepmother, stepbrother, and
stepsister; (3) Person who legally adopt
a child or his parent as well as the
natural and other legally adopted
children of such persons, and other
relatives of the adoptive parents in
accordance with State law; and, (4)
Spouses of any persons named in the
above groups even after the marriage is
terminated by death or divorce. Several
commenters reasoned that a Tribal IV–
E agency should have discretion
regarding the AFDC-related
requirements by allowing Indian Tribes
to define the scope of a relative or
otherwise permit ‘‘Indian custodians’’ as
a substitute for parents or specified
relatives. To do as the commenters
requested regarding the AFDC-related
requirements of title IV–E would go
beyond the statute’s mandate. All title
IV–E agencies must comply with the
requirements of the AFDC program as in
effect on July 16, 1996. In the case of a
Tribal title IV–E agency, the relevant
AFDC program is the one in effect on
that date in the State the child lived in
at the time of removal.
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We also received a couple of
comments that asked whether we would
overturn the ‘‘Rosales’’ requirement or
deem as title IV–E eligible those
children who resided with different
relatives within six months of the
child’s removal from home. The
commenter asserted that doing so would
be more culturally sensitive to Indian
Tribes. We understand the issue to be
whether we will continue to require a
title IV–E agency to base eligibility on
an AFDC-eligible relative with whom a
child was living during the six months
prior to the removal month, but from
whom he was not removed. The
reference to Rosales is to a court case,
Rosales v. Thompson, 321 F.3d 835 (9th
Cir. 2003), that led to the clarification in
Public Law 109–171 on the specified
relative for whom AFDC eligibility will
be determined. Again, we cannot
deviate from the statutory requirements
which tie title IV–E foster care eligibility
to whether the child meets the AFDC
criteria in the specified relative’s home
from which he or she is removed.
Section 1356.21(n)—Foster Care Goals
This paragraph describes the statutory
requirement related to foster care goals
that must be established by the title IV–
E agency.
We amended paragraph (n) which
requires that foster care goals be in law,
to add in that such goals can be
incorporated into Tribal law by statute,
code, resolution or administrative rule.
This change implements the
requirement that a Tribal title IV–E
agency operate the title IV–E program in
the same manner as a State as required
by Public Law 110–351.
Section 1356.21(o)—Notice and Right
To Be Heard
This paragraph describes the
requirement for a title IV–E agency to
provide foster parents, and any preadoptive parent or relative providing
care for the child with timely notice of
court-held proceedings and a right to be
heard.
We amended paragraph (o) to make it
consistent with the Act and reflect
changes made by Public Law 109–171.
First, we changed the title of the
paragraph from ‘‘Notice and opportunity
to be heard’’ to ‘‘Notice and right to be
heard’’ to reflect the statutory provision.
Second, we deleted specific reference to
the kinds of hearings to which the
regulation applies to and replaced it
with the phrase ‘‘in any proceedings
held with respect to the child during the
time the child is in the care of such
foster parent, pre-adoptive parent, or
relative caregiver’’ to give effect to the
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changes made by Public Law 109–171 to
section 475(5)(G) of the Act.
The regulation now reflects the
requirement that the foster parents, preadoptive parents or relatives providing
care for a child must, at a minimum, be
provided with notice of their right to be
heard in all permanency hearings, as
well as six-month reviews, if held by the
court (see also the CWPM Section
8.3C.2b Q/A #2).
Section 1356.22—Implementation
Requirements for Children Voluntarily
Placed in Foster Care
Section 1356.22 describes the
requirements a title IV–E agency must
follow to receive reimbursement on
behalf of children placed through
voluntary placement agreements.
We amended section 1356.22 in
paragraphs (a) and (c) to make
conforming changes by replacing the
term ‘‘State’’ or ‘‘State agency’’ with
‘‘title IV–E agency.’’ These changes
apply the voluntary placement
agreement provisions equally to State
and Tribal title IV–E agencies consistent
with Public Law 110–351. To remove
and replace an out-of-date statutory
reference with the current citation, we
amended paragraph (a)(2) by removing
the reference to section ‘‘422(b)(10)’’
and replacing it with ‘‘422(b)(8).’’ We
believe that because this change is
technical in nature there is no need to
go through the notice and comment
process to update the regulation. In
addition, we amended paragraph (c) by
inserting the term ‘‘or Tribal’’ after
‘‘State’’ to apply the requirement for a
uniform procedure for revoking
voluntary placement agreements to
Indian Tribes with a title IV–E plan.
During consultation, we received a
request to clarify how the requirement
at section 472(f) of the Act for voluntary
placements may impact work that an
Indian Tribe is doing with an Indian
family. Sections 472(f) and
472(a)(2)(A)(i) of the Act should be read
together as providing the statutory
authority for a title IV–E agency to claim
Federal reimbursement on behalf of an
eligible child who is placed into foster
care as a result of a voluntary agreement
between the agency and the parents/
legal guardians of the child. It is an
option for the State or Tribal title IV–E
agency to have a title IV–E plan that
includes accepting voluntary placement
agreements. Typically, voluntary
agreements are used when the family is
in need of short term stabilization or
experiencing a temporary crisis that
renders them unable to care for the
child (i.e., a single mother has to enter
the hospital for an acute episode and
has no other resources available to take
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care of her child). Judicial
intervention—including judicial
determinations regarding contrary to the
welfare and reasonable efforts to prevent
placement—is not necessary in
voluntary placement cases unless the
title IV–E agency seeks to continue the
child’s placement beyond 180 days.
However, a judicial determination that
continued placement is in the child’s
best interests is required within the first
180 days of such placement to continue
title IV–E payments beyond that period.
See CWPM Section 8.3A.13 for more
information on voluntary placement
agreements.
Section 1356.30—Safety Requirements
for Foster Care and Adoptive Home
Providers
Section 1356.30 describes the
required safety checks for prospective
foster family homes, child care
institutions and adoptive parents.
We amended section 1356.30 in
paragraphs (a), (b), and (c) to make
conforming changes by replacing the
term ‘‘State’’ with ‘‘title IV–E agency.’’
These changes apply the safety
requirements in those paragraphs to
Indian Tribes with a title IV–E plan in
the same manner as States as required
by Public Law 110–351. In addition, we
removed the opening clause of
paragraph (a), which referred to
paragraph (d) and removed and reserved
paragraph (d) as the Adam Walsh Child
Protection and Safety Act of 2006 (Pub.
L. 109–248) made these provisions
obsolete. Paragraph (d) contained
provisions that were relevant if a State
opted out of criminal background
checks, but Public Law 109–248
removed this option. We believe that
because this change is technical in
nature there is no need to go through the
notice and comment process to update
the regulation. Existing law requires a
title IV–E agency to conform to the
criminal background check and child
abuse registry checks described in
section 471(a)(20)(A) through (C) of the
Act.
We amended paragraph (e) by
changing the term ‘‘opts’’ to the past
tense, and by inserting the phrase ‘‘as
permitted prior to the amendments
made by section 152 of Public Law 109–
248’’ after ‘‘criminal records check
requirement.’’ This change was
necessary to preserve the safety
requirements for foster family homes or
child care institutions that were in place
under the prior law’s provisions.
Commenters requested clarification
regarding procedures that are sufficient
to fulfill the criminal background check
requirements for title IV–E. The
commenters inquired whether other
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criminal background check
requirements for other programs would
suffice for title IV–E purposes, such as
those under the Indian Child Protection
and Family Violence Prevention Act
(Pub. L. 101–630). Under section
471(a)(20) of the Act, the title IV–E
agency is required to conduct
fingerprint-based checks for prospective
foster parents, adoptive parents and
relative guardians through the Federal
Bureau of Investigation’s national crime
information databases. As such, it is the
only procedure that will meet title IV–
E requirements.
Section 1356.40—Adoption Assistance
Program: Administrative Requirements
To Implement Section 473 of the Act
Section 1356.40 describes the
administrative requirements a title IV–E
agency must follow for the adoption
assistance program.
We amended section 1356.40 in
paragraphs (a), (d), (e), and (f) to make
conforming changes by replacing the
term ‘‘State’’ or ‘‘State agency’’ with
‘‘title IV–E agency. Through these
conforming amendments we apply the
regulatory provisions for the adoption
assistance program equally to a Tribal
title IV–E agency as they are applied to
a State title IV–E agency. We made the
following additional conforming
amendments in this section.
We amended paragraph (a) to qualify
the provision which requires the title
IV–E agency to comply with section 473
of the Act as this section no longer
refers solely to adoption assistance
provisions. The amendments to the Act
made by Public Law 110–351 added the
optional kinship guardianship
assistance requirements in section
473(d) of the Act. Therefore, we added
the phrase ‘‘the applicable provisions of
section’’ to precede the reference to
section 473 of the Act for those title IV–
E agencies that opt not to implement the
kinship guardianship assistance
program. In addition, we inserted the
word ‘‘section’’ before ‘‘475(3).’’
We amended paragraph (b)(4) by
inserting the phrase ‘‘place of residence
of’’ in place of the phrase ‘‘State of
which’’ in order to apply the regulatory
provision equally to Indian Tribes that
an adoption assistance agreement must
remain in effect regardless of where the
adoptive parents reside at any given
time.
We amended paragraph (d) by
replacing the term ‘‘from one State to
another State’’ with ‘‘from one place of
residence to another’’ to apply the
requirement equally to Indian Tribes to
clarify that if an adoptive family moves,
the family can apply for social services
on behalf of the adoptive child in the
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new ‘‘place of residence’’, formerly
referred to as ‘‘State of residence.’’ We
are making additional changes to this
paragraph by removing the obsolete
phrase ‘‘However, for agreements
entered into on or after October 1, 1983’’
since agreements entered into prior to
this date have since expired. Hence, in
all existing adoption assistance
agreements the title IV–E agency that
entered into the agreement is financially
responsible to provide any specified
social service even in the case that the
adoptive family moves. We believe that
because this change is technical in
nature there is no need to go through the
notice and comment process to update
the regulation.
Commenters requested clarification
regarding the requirements for
placement of a child with an adoptive
family outside of the jurisdiction of the
title IV–E agency. Except for the
requirements described in this
paragraph for ensuring that assistance
continues when a child moves to
another jurisdiction and the overall
obligation of the title IV–E agency not to
delay or deny interjurisdictional
placements based on that basis alone,
there are no Federal title IV–E
requirements unique to children being
placed outside the title IV–E agency’s
jurisdiction. The Tribal title IV–E
agency can effectuate an adoption across
State lines or Tribal service area lines
consistent with its own authorities and
those of the State or Indian Tribe in
which the child will be placed.
We made another conforming change
to paragraph (e) by inserting the term
‘‘or a Tribal service area’’ after ‘‘State’’
to apply the paragraph equally to States
and Indian Tribes with title IV–E plans.
A commenter requested clarification
on whether an Indian Tribe can
participate in the title IV–E adoption
program while another requested
clarification on whether an Indian Tribe
must be responsible for adoption
assistance under a title IV–E directly
funded plan. The adoption assistance
payments program is a mandatory
component of an approvable title IV–E
plan per section 471(a)(1) of the Act and
as such the Indian Tribe with a title IV–
E plan is obligated to provide adoption
assistance on behalf of all children in
the Indian Tribe’s service area who are
eligible for the program, with the
exception of adopted children already
receiving adoption assistance under a
title IV–E agreement with a State. A
Tribal title IV–E agency may claim
allowable expenditures under the title
IV–E adoption assistance program at the
Tribal Federal Medical Assistance
Percentages (FMAP) rate for adoption
subsidies, 50 percent for administrative
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costs, and variable rates for training
expenses per section 474(a) of the Act.
A Tribal title IV–E agency may contract
with outside providers or other public
agencies to assist in the implementation
of the adoption assistance program.
Another commenter requested that we
mandate a standard adoption assistance
subsidy level for all children in the
program. This is not a request we can
accommodate; the statute requires the
agency to negotiate adoption assistance
agreements and the payment with the
adoptive family based on the needs and
circumstances of the child and family
(section 473(a)(3) of the Act).
Section 1356.41—Nonrecurring
Expenses of Adoption
This section describes the
requirements a title IV–E agency must
follow to claim reimbursement for
nonrecurring costs of adoption for
adoptive parents.
We amended section 1356.41
throughout to make conforming changes
to replace the term ‘‘State agency’’ with
‘‘title IV–E agency.’’ Through these
conforming amendments, we apply the
regulatory provisions for nonrecurring
expenses of adoption equally to a Tribal
title IV–E agency as they are applied to
a State title IV–E agency as required by
Public Law 110–351. In addition, we
made the following conforming
amendments to implement this section
in the same manner for State and Tribal
title IV–E agencies or to remove obsolete
provisions. We believe that because this
change is technical in nature that there
is no need to go through the notice and
comment process to update the
regulation accordingly.
We amended paragraph (b) by
inserting the term ‘‘Tribal’’ after ‘‘State’’
to apply the current regulatory
provision equally to Indian Tribes that
an agreement for nonrecurring expenses
of adoption may be a separate document
or part of an agreement for any type of
adoption assistance, whether it is State,
Tribal, or Federal. We also removed the
last clause of paragraph (b) and its two
subordinate paragraphs (b)(1) and (2)
because they referred to outdated
exceptions to the general requirement to
have an agreement for nonrecurring
costs in place prior to the final decree
of adoption.
We amended paragraph (d) to make a
conforming change by removing the
term ‘‘State and local’’ before ‘‘laws’’ to
indicate that a child’s adoptive
placement must be made in accordance
with all applicable laws, whether they
be State, Tribal, or local laws. We
removed the last clause of paragraph
(e)(1) and removed paragraph (e)(2) in
its entirety because these provisions
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referred to actions a State title IV–E
agency had to take after the effective
date of the initial rule related to
nonrecurring adoption expenses which
was issued in 1988 (53 FR 50220). We
renumbered paragraph (e)(3) as
paragraph (e)(2), and removed most of
the text because it also referred to
obsolete provisions that were to occur
pursuant to the 1988 rule. We retained
the text that required that the agreement
for the payment of nonrecurring
expenses must be signed at the time of
or prior to the final decree of adoption
and that adoptive families must file
claims for nonrecurring expenses with
the title IV–E agency within two years
of the date of the final decree of
adoption. We believe that because these
changes are technical in nature there is
no need to go through the notice and
comment process to update the
regulation.
In paragraph (f)(2), we insert the term
‘‘Tribal’’ after ‘‘consistent with State’’ to
apply existing State nonrecurring
payment requirements equally to a
Tribal title IV–E agency. We also
inserted the term ‘‘or Tribal service
area’’ after ‘‘within the State,’’ to allow
Indian Tribes the same ability as States
to set a lower maximum amount for
nonrecurring adoption expenses in a
special needs adoption as permitted by
the paragraph.
In paragraph (h) we replace the term
‘‘interstate placement’’ with ‘‘a
placement outside the State or Tribal
service area’’ to apply equally to State
and Tribal title IV–E agencies the
requirement that the title IV–E agency
that enters into an adoption assistance
agreement is responsible for the
reimbursement of nonrecurring
adoption expenses even if the child is
placed in an area outside of the State or
Tribal service area. We also make
conforming changes to the language so
that the reference to ‘‘State subsidy
program’’ is replaced with ‘‘State or
Tribal subsidy program,’’ by inserting
the term ‘‘Tribal’’ after ‘‘Federal’’ and
replacing the term ‘‘the State in which’’
with ‘‘the title IV–E agency in the
jurisdiction in which.’’ Consequently, if
an adopted child who meets the
requirements of section 473(c) is placed
in a different jurisdiction without an
adoption assistance agreement being
entered into on his/her behalf, then the
title IV–E agency in the jurisdiction in
which the final adoption decree is
issued is responsible for reimbursement
of the nonrecurring expenses.
We made a conforming change to
paragraph (i) in the definition of
‘‘nonrecurring adoption expenses’’ to
exclude any expenses that are
prohibited by applicable laws, whether
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it is State, Tribal, or otherwise. Finally,
we removed the first sentence in
paragraph (j) which referred to an
obsolete requirement for a State agency
to enact legislation following the
publication of the 1988 rule (53 FR
50220). We believe that because this
change is technical in nature there is no
need to go through the notice and
comment process to update the
regulation.
Section 1356.50—Withholding of Funds
for Non-Compliance With the Approved
Title IV–E Plan
Section 1356.50 describes the
conditions for compliance with the title
IV–E plan and directs the title IV–E
agency to the applicable appeal
procedures in section 1355.39 for
challenges of an ACF determination of
non-conformity with the title IV–E plan.
We amended the title of section
1356.50 and paragraphs (a) and (b) to
make conforming changes by removing
the term ‘‘State’’ or replacing it with
‘‘title IV–E agency’’ in appropriate
places to apply the provisions for
withholding funds for noncompliance
equally to States and Indian Tribes with
title IV–E plans pursuant to Public Law
110–351.
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Section 1356.60—Fiscal Requirements
(Title IV–E)
This section describes the fiscal
requirements and available FFP for title
IV–E costs. We amended the section
throughout to replace references to
‘‘State plan’’ with ‘‘title IV–E plan’’ and
‘‘States’’ or ‘‘State and local’’ with ‘‘title
IV–E agencies’’ so that the section
applies equally to States and Tribes
with title IV–E plans consistent with
Public Law 110–351. In addition, we
made the following conforming
amendments.
Section 1356.60(a)—Federal Matching
Funds for Foster Care Maintenance and
Adoption Assistance Payments
We amended paragraph (a)(1) to
remove an obsolete effective date, which
noted that FFP was available to States
as of October 1, 1980. To be inclusive
of a Tribal title IV–E agency that has the
opportunity to operate a title IV–E plan
and receive FFP as of October 1, 2009,
we deleted the reference to the obsolete
1980 date. In paragraph (a)(1)(i), we
removed the obsolete reference to
section 102(d) of the Adoption
Assistance and Child Welfare Act of
1980 (Pub. L. 96–272). This citation was
to provisions related to the original
implementation of voluntary placement
agreements in a State agency regarding
children removed from their home prior
to FY 1980 that are no longer relevant.
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As we explained earlier, both State and
Tribal IV–E agencies have the ability to
receive FFP for voluntary placement
agreements that meet the requirements
of the Act and 45 CFR 1356.22. We
believe that because these changes are
technical in nature there is no need to
go through the notice and comment
process to update the regulation.
We reference section 479B of the Act
in paragraphs (a)(1)(i), (a)(1)(ii) and
(a)(2) to make clear that FFP is
authorized pursuant to Tribal title IV–E
plans in addition to State title IV–E
plans. In paragraph (a)(1)(ii) we made an
additional change to provide for the
applicable parts of section 473 of the
Act to payments for adoption assistance.
Adding the language ‘‘applicable
provisions of’’ section 473 of the Act is
intended to clarify that the provisions in
section 473(d) of the Act that relate only
to the kinship guardianship assistance
program would not apply to receipt of
FFP for the adoption assistance
program. We also amended paragraph
(a)(2) to add a reference to sections
474(a)(1) and (2) of the Act, which
specifically authorize FFP at the Tribal
FMAP rates to Indian Tribes with title
IV–E plans and States with title IV–E
agreements with Indian Tribes. These
changes bring the regulations on fiscal
requirements in line with the changes
made by Public Law 110–351 to
authorize direct payments to Indian
Tribes with title IV–E plans.
Several commenters asked questions
about the fiscal aspects of title IV–E that
made it clear to us that we need to
provide more clarity about this aspect of
the program. Title IV–E funding is
unavailable for activities outside of
those required by title IV–E, including
child abuse prevention or investigatory
activities, social services, medical or
education expenses. A title IV–E agency
submits quarterly claims for Federal
reimbursement and may send us
adjusted claims, upwards or
downwards, for up to two years after the
expense is incurred. ACF reimburses a
title IV–E agency for these expenses
quarterly based on title IV–E agency
reports provided to us. Title IV–E
funding cannot be advanced to a title
IV–E agency. In the absence of any
agreement to which the State and Indian
Tribe may be party which may include
provisions for payment of funds, States
are not obligated to provide title IV–E
funding or matching funds to Indian
Tribes who take placement and care
responsibility for children who were
once in a State’s placement and care
responsibility.
Under title IV–E, FFP is available at
the FMAP rate per sections 1905(b),
474(a)(1) and (2) and 479B(d) of the Act
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to a title IV–E agency with an approved
title IV–E plan for allowable costs in
expenditures for foster care
maintenance payments and adoption
assistance payments. There is a unique
FMAP rate established for a Tribal title
IV–E agency that is at least as high as
the FMAP rate of any State in which the
Indian Tribe is located.
Additional FFP is available for
administrative expenses at the 50
percent rate and training expenses at
rates ranging from 55 to 75 percent, as
indicated in section 474(a)(3) of the Act
and section 203(b) of Public Law 110–
351. The title IV–E agency may receive
Federal reimbursement at the 75 percent
rate for short or long term training of
persons who are employed or preparing
for employment with the title IV–E
agency and are working on title IV–E
activities under certain conditions. Such
training can include educational
programs that will lead to a
baccalaureate or graduate degree in
social work or a related field. FFP also
is available at 75 percent for the title IV–
E agency to provide short-term training
of current or prospective foster or
adoptive parents, the members of the
staff of licensed or approved child care
institutions providing care to title IV–E
eligible foster and adopted children in
ways that increase their ability to
provide support and assistance to such
children.
All title IV–E agencies must follow
the provisions of section 474(a)(3)(A)
and (B) of the Act regarding training
expenses. We are not making changes in
the regulation regarding the new groups
of trainees for which training expenses
may be claimed by a title IV–E agency
as amended by Public Law 110–351 in
this Interim Final Rule as they are not
related to the Tribal provisions of
section 301 of Public Law 110–351.
However, section 474(a)(3)(B) of the Act
allows FFP to be claimed at increasing
rates, rising from 55 percent in FY 2009
to 75 percent in FY 2013, for short-term
training of certain persons. These
groups include title IV–E agencylicensed or approved child welfare
agencies providing services to children
receiving assistance under title IV–E,
members of the staff of abuse and
neglect courts, agency attorneys,
attorneys representing children or
parents, guardians ad litem, or other
court-appointed special advocates
representing children in proceedings of
such courts. The training must be
provided for the purpose of increasing
such persons’ ability to provide support
and assistance to title IV–E foster and
adopted children whether incurred
directly by the IV–E agency or by
contract. All training activities and costs
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funded under title IV–E must be
included in the title IV–E agency’s
training plan for title IV–B. Paragraph
(b)(3) cross-references to 45 CFR 235.63
through 235.66(a) and therefore requires
that all short and long-term training
allocated to title IV–E must be provided
in accordance with these regulations as
well.
Some commenters wondered if
workers receiving title IV–E educational
stipends can fulfill the agency work
requirement with the Tribal title IV–E
agency and we note that this is
permissible. As mentioned above, 45
CFR 1356.60(b) cross-references to 45
CFR 235.63 through 235.66(a). These
regulations require that persons
preparing for employment whose
education costs are being paid for by a
title IV–E agency must commit to work
for the title IV–E agency for a period of
time at least equal to the period for
which financial assistance is provided
to them if the title IV–E agency makes
them an offer of employment within two
months of completion of the training.
One commenter wanted to know if
Tribal colleges are recognized as
qualifying schools while another
requested that Tribal stipend recipients
be able to use the stipend at the college
of their choice. The regulations at 45
CFR 235.63(b)(4) state that persons
preparing for employment may pursue
education at an institution approved by
the title IV–E agency, which can include
Tribal colleges at the option of the title
IV–E agency.
Section 1356.60(e)—Federal Matching
Funds for SACWIS/TACWIS
We amended the title to section
1356.60(e) to include the acronym
‘‘TACWIS’’ (Tribal automated child
welfare information systems). We also
amended paragraph (e) to make a
conforming change by adding a
reference to a ‘‘Tribal’’ automated
information system to accompany the
reference to a ‘‘Statewide’’ automated
system.
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Section 1356.67—Title IV–E State
Procedures for the Transfer of
Placement and Care Responsibility of a
Child to a Tribal Title IV–E Agency
This section provides procedures for
the transfer of placement and care
responsibility of a child from a State
title IV–E agency to an Indian Tribe
with a title IV–E agreement or an
approved title IV–E plan consistent with
section 301(e)(1) of Public Law 110–351.
The law mandates that we regulate these
procedures should an Indian Tribe wish
to take placement and care
responsibility in these situations.
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Paragraph (a) describes the scope of
the transfer procedures. The procedures
apply to each State with a title IV–E
plan approved under section 471 and
479B of the Act or an Indian Tribe with
a title IV–E agreement. A State must
establish procedures, in consultation
with Indian Tribes, for the transfer of
responsibility for the placement and
care of a child under a State title IV–E
plan to a Tribal title IV–E agency or an
Indian Tribe with a title IV–E agreement
in a way that does not affect a child’s
eligibility, receipt of services, or
payment under title IV–E or the
Medicaid program operated under title
XIX. The procedures will apply
regardless of whether there is a
federally-recognized Indian Tribe
within the State’s geographic
boundaries or how the State exercises
jurisdiction over Indian country
pursuant to Public Law 83–280 (also
known as Pub. L. 280). The procedures
also will apply regardless of whether the
State has within its geographic borders
an Indian Tribe with an approved title
IV–E plan or a title IV–E agreement. We
chose broad applicability for these
procedures as Public Law 110–351 seeks
to ensure that an Indian child involved
in a transfer retains his or her eligibility
for title IV–E and Medicaid. We believe
the ideal way to give this provision
effect is to require any State with the
potential to have an Indian child in its
foster care system to have such
procedures. However, we are affording
States some flexibility to determine the
most appropriate procedures that will
ensure this protection in accordance
with minimum elements that are
described further below. A State must
consult with Indian Tribes in
developing the procedures so that the
procedures are responsive to Indian
Tribes who have a need for information
on transfer procedures.
In paragraph (b), we establish the
minimum elements for a State’s
procedures for transferring children to
an Indian Tribe with a title IV–E
agreement or a title IV–E plan. In
paragraph (b)(1), we require the State
title IV–E agency to determine, if this
determination is not already completed,
the child’s eligibility under section 472
or 473 of the Act at the time of the
transfer of placement and care
responsibility of a child to a Tribal title
IV–E agency or Indian Tribe with a title
IV–E agreement. We believe that such a
provision will ensure that the child’s
eligibility for title IV–E and Medicaid is
clear at the time of the child’s transfer
to an Indian Tribe. This is most useful
to the Indian Tribe or Tribal title IV–E
agency in determining the child’s AFDC
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status based on the State of removal as
required by section 472 or 473 of the
Act.
In paragraph (b)(2), we require the
State title IV–E agency to provide
essential documents and information
necessary to continue a child’s
eligibility under title IV–E and Medicaid
to the Tribal title IV–E agency or Indian
Tribe with a title IV–E agreement. In the
subparagraphs we specify the types of
documents that must be provided. In
paragraph (b)(2)(i), we require that the
State provide copies of the judicial
determinations regarding contrary to the
welfare and reasonable efforts. These are
essential because they are threshold
documents used to establish a child’s
eligibility for title IV–E. It is important
that States provide all judicial
determinations regarding contrary to the
welfare and reasonable efforts, and not
just the most recent ones, so that the
Indian Tribe has the ability to
reconstruct eligibility as necessary or
substantiate claims. In paragraph
(b)(2)(ii), we require the State to provide
any other documentation that relates to
the child’s eligibility for title IV–E. We
do not specify in regulation all of the
possible kinds of documentation that
could fall into this category. For
example, the documentation may
include AFDC determinations or
worksheets, findings related to whether
the State considered the child to meet
the special needs criteria pursuant to
section 473(c) of the Act, or
documentation that an 18-year-old is
making progress towards completing
secondary school. As part of this
process, we strongly encourage the State
title IV–E agency to consult with the
State Medicaid agency to ensure a
child’s continuous eligibility under title
XIX.
In paragraph (b)(2)(iii) we require the
State to provide an Indian Tribe with
any other information that relates to the
child’s potential or actual eligibility for
other Federal benefits. Again, we do not
specify in regulations specific
documentation, but examples may
include documentation of a child’s
eligibility for Supplemental Security
Income (SSI), or indications that an
application for SSI is on file. In
addition, we encourage the State title
IV–E agency to coordinate with the State
title IV–D agency to address any existing
child support case or assignment of
rights to the State agency as it relates to
the transfer of placement and care of the
child to an Indian Tribe.
In paragraph (b)(2)(iv), we require the
State to provide the child’s case plan to
the Indian Tribe, including the health
and educational records that are
required elements of those plans
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consistent with section 475(1)(C) of the
Act. The case plan contains critical
information for determining the child’s
existing safety, permanency and wellbeing status, as well as the agency’s
future plans for the child. Further, the
case plan also may contain information
that supports factors of eligibility for the
title IV–E programs or other Federal
benefits, such as efforts the agency made
to finalize permanency. Therefore, we
believe it a critical item to transfer to the
Indian Tribe. We note here that the State
agency is not required to turn over the
entire case record, although States may
choose to do so as it may be useful for
an Indian Tribe who is taking placement
and care responsibility of a child.
Finally, in paragraph (b)(2)(v), we
require a State to provide information
and documentation related to the child’s
placement settings, including a copy of
the most recent provider’s license or
approval. A transfer of a child to the
Indian Tribe does not necessitate that
the child move to a different provider,
so the Indian Tribe will need
information on whether the foster
family home or child care institution the
child is living in is licensed or approved
for title IV–E eligibility purposes.
Further, the Indian Tribe may need to
contact past providers to gather
information on the child’s needs.
Further, we encourage States and Indian
Tribes to discuss during consultation
the formats in which this information
can be provided and/or accepted, i.e.,
through hardcopy, electronic
transmissions, or by allowing Indian
Tribes access to State child welfare case
management systems.
One commenter requested that
‘‘responsibility for a child’’ be clearly
defined in the regulation. To be eligible
for FFP, section 472(a)(2)(B) of the Act
requires that the responsibility for
placement and care of the child is with
the title IV–E agency administering the
plan approved under section 471(a) of
the Act, or any other public agency with
whom the title IV–E agency
administering or supervising the
administration of the plan approved
under section 471(a) of the Act has
made an agreement which is in effect.
We define the phrase ‘‘placement and
care responsibility’’ in the CWPM
Section 8.3A.12 at Q/A #4. Placement
and care responsibility means that the
title IV–E agency is legally accountable
for the day-to-day care and protection of
the child who has come into foster care
through either a court order or a
voluntary placement agreement.
Placement and care responsibility
allows the title IV–E agency to make
placement decisions about the child,
such as where the child is placed and
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the type of placement most appropriate
for the child. It also ensures that the title
IV–E agency provides the child with the
mandated statutory and regulatory
protections, including case plans,
administrative reviews, permanency
hearings, and updated health and
education records.
We received many comments that
provided recommendations and
requested clarification on how a transfer
procedure would be developed, the type
of information that the State title IV–E
agency should provide the Indian Tribe,
ensuring continued Medicaid eligibility,
and concerns about the confidentiality
of information. For example, one Indian
Tribe requested clarification regarding
how we will develop a procedure for
transfer, whether Indian Tribes would
be included in the discussion, and if so,
at what level. To maintain flexibility
and develop a procedure that meets
both the needs of the State and Indian
Tribes, we specified in paragraph (b) the
requirements for States, and that States
are required to consult with Indian
Tribes on such procedures.
Several commenters recommend that
a State title IV–E agency make available
all case-specific information requested
by an Indian Tribe for the purpose of
maintaining a child’s title IV–E and
Medicaid eligibility, in both electronic
and paper format. Several commenters
provide specific suggestions of the type
of documents needed to continue a
child’s eligibility. We do not believe it
is necessary to mandate that the State
make available all information
requested by an Indian Tribe, however,
we have outlined in paragraph (b)(2) the
minimum information that must be
provided when a State title IV–E agency
transfers placement and care
responsibility of a child to an Indian
Tribe. The list is not exhaustive, and the
State title IV–E agency may provide
additional information consistent with
State and Federal laws. We also agree
that the State title IV–E agency should
provide the information to the Tribal
title IV–E agency in a format most
helpful to the Tribal title IV–E agency.
However, we recognize that some Indian
Tribes may have limited technical
resources with which to develop or
upgrade a data reporting system and
technological barriers to receiving
information in an electronic format.
Therefore, to maintain flexibility, we
did not mandate a specific format as
long as the information shared
accomplishes the goal of ensuring
continued eligibility.
Several other commenters
recommended that our regulations
enhance ICWA guidelines to provide for
an adequate transfer process because
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there is currently no uniform
application of ICWA by States. The
commenters requested clarification
about what to do when a State court
does not agree to transfer a child and
requested that we develop an
enforcement mechanism for States that
do not comply with ICWA. We do not
have authority to regulate changes
directly to ICWA, provide additional
guidance for implementation of ICWA
or intervene in court actions regarding
transferring jurisdiction of a child.
Rather, ICWA provisions set forth
procedures for the notification to Indian
Tribes of Indian children in State
custody and the assumption of
jurisdiction over court procedures by
Indian Tribes for such children. The
Bureau of Indian Affairs, Department of
Interior, issued guidelines regarding
such transfers in ‘‘Guidelines for State
Courts-Indian Child Custody
Proceedings’’ (see 44 FR 67584,
November 26, 1979). Such provisions
remain in effect and are not affected by
ACF’s approval of a title IV–E plan for
an Indian Tribe or the effectuation of a
title IV–E agreement between a State
and an Indian Tribe.
We received a number of comments
that requested clarification on
procedures for continuing Medicaid
eligibility. Several commenters
requested clarification as to whether we
can encourage States to continue
Medicaid services without interruption,
and whether the child’s Medicaid card
can remain with the child until the State
child welfare case is closed. The Centers
for Medicare and Medicaid Services is
the Federal agency with authority to
regulate State actions with regard to
Medicaid programs under title XIX
consistent with the law rather than ACF.
However, since a child who is receiving
title IV–E foster care or who is subject
to a title IV–E adoption assistance
agreement consistent with sections
472(h)(1) and 473(b)(1) and (3) of the
Act, is categorically eligible for
Medicaid, the child’s title XIX eligibility
will continue as long as the child is
receiving title IV–E foster care or title
IV–E adoption assistance payments. If a
title IV–E eligible child is moving from
one State’s geographic boundaries to
another in the course of a transfer of
placement and care responsibility to an
Indian Tribe, the child is eligible for
Medicaid in the State where the child
lives, as specified in Medicaid
regulations at 42 CFR 435.403(g). Again,
we encourage State title IV–E agencies
to coordinate with State Medicaid
agencies to ensure continuous title XIX
enrollment when a child eligible under
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title IV–E is transferred to the placement
and care of an Indian Tribe.
Several commenters cited
confidentiality concerns and requested
clarification regarding what information
a State may share with a Tribal title IV–
E agency. The State title IV–E agency
may share information with the Tribal
title IV–E agency pursuant to existing
law and this regulation for the purpose
of administering a Tribal title IV–E plan
as necessary to establish eligibility,
determine the amount of assistance and
provide services. This is because title
IV–E of the Act requires that the title
IV–E agency provide safeguards to
restrict the use and/or disclosure of
information regarding children
receiving title IV–E consistent with
section 471(a)(8) of the Act. In addition,
in accordance with 45 CFR
1355.30(p)(3), records maintained under
title IV–E are subject to the
confidentiality provisions in 45 CFR
205.50. Among other things, 45 CFR
205.50 restricts the release or use of
information concerning individuals
receiving financial assistance under the
title IV–E program to certain persons or
agencies that require the information for
specified purposes. One of those
purposes identified in the law is the
administration of the plan or program
under title IV–B, IV–E, or XIX, or the
SSI program established by title XVI
when necessary to establish eligibility,
determine the amount of assistance, and
provide services for applicants and
recipients. Section 8.4E of the CWPM
provides additional information
regarding confidentiality requirements
of title IV–E.
One Indian Tribe recommended that
the regulation pay special attention to
the multi-jurisdictional aspects of
transferring children from State custody
to the Tribal title IV–E agency. Several
commenters requested that we include
regulatory procedures for inter-Tribal
transfers of title IV–E eligible children.
We are not regulating such inter-Tribal
procedures for two reasons. First, the
statutory language in Section 301(e) of
Public Law 110–351 which requires us
to issue interim final regulations is
limited in scope and provides us
authority to regulate only transfers from
a State to an Indian Tribe. Second, we
do not currently regulate transfer
procedures between State governments
for placement and care responsibility,
and therefore, will not impose such a
regulation between Tribal title IV–E
agencies.
One nonprofit group recommended
that the procedure developed in
regulation recognize that Indian Tribes
cannot become members of Interstate
Compact for the Placement of Children
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(ICPC), and should not require them to
comply with guidelines that they cannot
meet. The ICPC is a State compact and
thus we do not have the authority
require a Tribal title IV–E agency to
comply with the ICPC.
Section 1356.68—Tribal Title IV–E
Agency Requirements for In-Kind
Administrative and Training
Contributions From Third-Party Sources
Section 1356.68 regulates title IV–E
administrative and training cost sharing
requirements for Indian Tribes with an
approved title IV–E plan as they pertain
to in-kind contributions from thirdparty sources.
Section 1356.68(a)—Option To Claim
In-Kind Expenditures From Third-Party
Sources for Non-Federal Share of
Administrative and Training Costs
In paragraph (a), we establish that a
Tribal title IV–E agency may claim
allowable in-kind expenditures from
third-party sources for the purpose of
determining the non-Federal share of
administrative and training costs under
sections 474(a)(3)(A) through (E) of the
Act. This authority is specifically
granted to Tribal title IV–E agencies in
section 479B(c)(1)(D) of the Act and is
not available to States, or by extension,
those Indian Tribes with a title IV–E
agreement. Please note that by crossreference in 45 CFR 1355.30, existing
Departmental regulations including 45
CFR 92.24 which addresses costsharing, apply to Indian Tribes who
choose to use in-kind contributions
from third-parties. Section 45 CFR
1356.60(b) provides examples of
allowable training costs applicable to
the title IV–E program and 45 CFR
1356.60(c)(2) provides specific
examples of allowable administrative
costs necessary for the administration of
the title IV–E program. Additional
information regarding allowable
administrative costs for foster care and
adoption assistance may be found in the
CWPM at Section 8.1.
Section 1356.68(b)—In-Kind
Expenditures for Fiscal Years 2010 and
2011
In paragraph (b), we apply the
percentages of allowable in-kind
expenditures from third-party sources
that Indian Tribes can claim for FY 2010
and FY 2011, as required by section
479(B)(c)(1)(D)(ii) and (iii) of the Act.
We explain the percentages of allowable
in-kind expenditures from third-party
sources as a portion of the total Tribal
title IV–E agency expenditures for each
FY quarter. We believe this clarifies the
statutory references to ‘‘fiscal year
quarter’’ expenditures and ‘‘non-Federal
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shares’’ because the method used to
calculate the non-Federal share begins
by determining the Tribal title IV–E
agency’s total expenditures. Once the
total expenditures are provided, we
determine the portion of total
expenditures that the Indian Tribe may
claim using in-kind contributions from
third-party sources to meet the Tribal
title IV–E agency’s share of costs and the
remaining Federal reimbursement.
In paragraph (b)(1), we specify that a
Tribal title IV–E agency may claim inkind expenditures from third-party
sources of up to 25 percent of the total
administrative funds expended during a
fiscal quarter pursuant to section
474(a)(3)(C), (D) or (E) of the Act. This
percentage limitation for FYs 2010 and
2011 is required by statute. We plan to
address the requirement in section
479B(c)(1)(D)(ii)(1) of the Act for a
Tribal title IV–E agency, for FYs 2010
and 2011, to list the sources of in-kind
contributions in the title IV–E plans in
upcoming guidance on the Tribal title
IV–E claiming process.
In paragraph (b)(2), we specify that a
Tribal title IV–E agency may claim inkind expenditures from third-party
sources of up to 12 percent of the total
training funds expended during a fiscal
quarter pursuant to section 474(a)(3)(A)
and (B) of the Act. These percentage
limitations for FYs 2010 and 2011 are
required by statute. We also specify the
allowable sources of in-kind
contributions as mandated in section
479B(c)(1)(D) of the Act.
Section 1356.68(c)—In-Kind
Expenditures for Fiscal Years 2012 and
Thereafter
In paragraph (c), we specify that
allowable in-kind expenditures from
third-party sources can be used for the
Indian Tribe’s entire non-Federal share
of administrative and training
expenditures for FY 2012 and thereafter.
Section 301(e)(2) of Public Law 110–351
and sections 479B(C)(1)(D)(iii) through
(iv) of the Act require ACF to regulate,
in consultation with Indian Tribes, the
percentage of in-kind expenditures from
third-party sources for Tribal title IV–E
agencies beginning in FY 2012, or the
opportunity to claim such contributions
expires.
During consultation, most
commenters encouraged us to interpret
this provision as broadly as possible to
allow Tribal title IV–E agencies the
financial flexibility needed to operate a
title IV–E program. We found these
arguments compelling. Therefore, in FY
2012 and thereafter, we allow a Tribal
title IV–E agency to claim the entire
non-Federal share (Tribal match) of
administration and training from in-
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kind expenditures from third-party
sources. We did not follow the structure
set out in section 479B(c)(1)(D)(iii)(II)
designed to address FYs 2012–2014
differently than FY 2015 and beyond in
order to provide for a transition period
for ‘‘Early Approved Tribes.’’ Because
we are providing the maximum amount
of flexibility for Indian Tribes beginning
in FY 2012, no transition period is
needed. We believe that this broad and
flexible interpretation is justified by the
unique circumstances of Indian Tribes
and in recognition of the partnerships
they may seek from third-parties to
implement their title IV–E program.
At the same time, we recognize that
even though we are allowing the total
portion of the Indian Tribe’s
expenditures for training and
administration to be in-kind
contributions from third-party sources,
there may be both practical and other
regulatory barriers to a Tribal title IV–
E agency reaching their total required
non-Federal share from such
contributions. In particular, it may be
difficult given the nature of
administrative costs to have an Indian
Tribe’s entire portion of expenditures as
in-kind contributions from third-party
sources. Further, Tribal title IV–E
agencies must ensure that all of their
claims, both in-kind and cash outlay,
meet the applicable requirements of 45
CFR part 92 as well as the applicable
cost allocation methodology.
Paragraph (c)(1) allows a Tribal title
IV–E agency to claim allowable in-kind
expenditures from third-party sources
for up to 50 percent of its total
administrative expenditures for FY 2012
and thereafter. This means that a Tribal
title IV–E agency may claim in-kind
expenditures from third-party sources
for all of the required 50 percent match
for administrative funds pursuant to
section 474(a)(3)(C), (D) or (E) of the
Act.
Paragraph (c)(2) allows a Tribal title
IV–E agency to claim allowable in-kind
expenditures from third-party sources
for up to all of its required portion of
training funds pursuant to section
474(a)(3)(A) and (B) of the Act. During
each quarter of fiscal year 2012, a Tribal
title IV–E agency may claim up to 25 or
30 percent as applicable of the total
training funds expended depending on
the trainee group from allowable in-kind
contributions from third-party sources
depending on the trainee group. The 25
percent match is for the short-term
training of current or prospective foster
or adoptive parents and the members of
the staff of State/Tribal licensed or
State/Tribal approved child care
institutions pursuant to section
474(a)(3)(B) of the Act. The 30 percent
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921
match is for short-term training for
relative guardians, staff of abuse and
neglect courts, agency attorneys,
attorneys representing children or
parents, guardians ad litem or other
court-appointed special advocates
representing children in proceedings of
such courts. This difference in match
rates is due to the phase-in provisions
for the latter trainee groups as required
by section 203(b) of Public Law 110–
351.
After FY 2012, a Tribal title IV–E
agency may claim 25 percent of
allowable in-kind expenditures from the
total training expenditures from thirdparty sources provided in section
474(a)(3)(A) and (B) of the Act. This is
because after FY 2012, title IV–E
agencies are only required to provide a
25 percent match of funds expended on
the total training for all categories of
training listed in section 474(a)(3)(B) of
the Act.
In paragraph (c)(3), we permit Tribal
title IV–E agencies to claim in-kind
training expenditures for training funds
from any allowable third-party source
during or after FY 2012. Prior to FY
2012, the Act restricts third-party
sources for training expenditures to a
specified list provided in statute;
therefore this regulatory provision
provides additional flexibility in later
years. We believe that allowing the
Tribal title IV–E agency to use in-kind
contributions from any source otherwise
allowable provides the greatest degree of
flexibility and supports successful
operation of a Tribal title IV–E program.
programs/cb/cwmonitoring/
index.htm#title.
Throughout section 1356.71 we
removed references to ‘‘State’’ or
‘‘States’’ and in most cases, replaced
them with ‘‘title IV–E agency’’ or ‘‘title
IV–E agencies’’ to apply the
requirements to States and Indian Tribes
with a title IV–E plan equally as
required by Public Law 110–351.
However, title IV–E reviews for Indian
Tribes cannot begin on a date certain as
was the case with the reviews in States.
Rather, an initial title IV–E eligibility
review will be conducted for an Indian
Tribe with a title IV–E plan when ACF
determines there is a sufficient number
of title IV–E foster care cases to review
consistent with the existing sample
protocol. Subsequent reviews will occur
according to the regulated schedule in
45 CFR 1356.71(a) provided that there
are enough sample cases to review. ACF
will work with Indian Tribes that have
an approved title IV–E plan to address
scheduling reviews. To the extent that
we made additional conforming changes
to the title IV–E eligibility review
regulations, they are described below.
In addition, we made a technical
amendment to paragraph (j)(3) to reflect
changes in regulatory citations by
deleting the current citation and
replacing it with ‘‘45 CFR 30.18.’’ On
March 8, 2007 HHS issued a final rule
that implemented the provisions of the
Debt Collection Improvement Act of
1996 (72 FR 10404). The rule on
interest, penalties and administrative
costs was removed from 45 CFR 30.13
and codified at 45 CFR 30.18.
Section 1356.71—Federal Review of the
Eligibility of Children in Foster Care and
the Eligibility of Foster Care Providers in
Title IV–E Programs
Section 1356.71(d)—Requirements
Subject To Review
Paragraph (d) describes the
requirements subject to the title IV–E
eligibility reviews. In paragraph
(d)(1)(iii), we made a conforming
amendment to reference the section of
the Act that requires the responsibility
for placement and care of the child to
be reviewed during the title IV–E
eligibility review by adding ‘‘per section
472(a)(2)(B) of the Act’’ after ‘‘agency.’’
This means we will review whether a
State or Tribal title IV–E agency (or
other public agency under a title IV–E
agreement with the State/Tribe) has
placement and care responsibility of the
child as an eligibility criterion.
We also made a conforming
amendment in paragraph (d)(1)(v) to
reference the sections of the Act that set
forth the AFDC eligibility criteria a
child must meet as part of title IV–E
foster care eligibility. Specifically, we
added the phrase ‘‘per section 472(a)(3)
or 479B(c)(1)(C)(ii)(II) of the Act, as
appropriate’’ after ‘‘July 16, 1996.’’ This
Section 1356.71 describes the
requirements governing Federal reviews
of State and Tribal compliance with title
IV–E eligibility provisions as they apply
to children and foster care providers
under section 472 of the Act. The
purpose of the title IV–E foster care
review is to validate the accuracy of a
title IV–E agency’s claims to assure that
appropriate payments are made on
behalf of eligible children, to eligible
foster family homes and child care
institutions. These determinations are
made by an examination of a sample of
records of children in foster care. By
conducting title IV–E foster care
eligibility reviews, ACF is fulfilling its
financial and programmatic stewardship
responsibilities in the administration of
this program. Additional information on
the reviews and the instruments used
for the review can be found on the CB’s
Web site at https://www.acf.hhs.gov/
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means that we will review whether a
State followed its title IV–A plan in
effect in 1996 in determining whether a
child met the AFDC criteria as required
by section 472(a)(3) of the Act or
whether a Tribal title IV–E agency
followed the title IV–A plan in effect in
the State of the child’s removal in
determining whether a child met the
AFDC criteria as required by section
472(a)(3) of the Act.
In paragraph (d)(2) we added a
reference to section ‘‘479B(c)(2)’’ of the
Act to indicate that for Indian Tribes
with a title IV–E plan, we will review
whether payments were made to
licensed or approved Tribal foster
family homes or child care institutions,
consistent with Tribal licensing
authorities. All changes in paragraph (d)
are made to ensure that the
requirements subject to title IV–E
eligibility reviews are applied in the
same manner for Tribal and State title
IV–E agencies consistent with Public
Law 110–351, with appropriate
allowances for provisions specific to
Indian Tribes granted by law.
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Section 1356.71(i)—Program
Improvement Plans
Paragraph (i) sets forth the
requirement for a title IV–E agency
determined not to be in substantial
compliance to develop a PIP. In
paragraph (i)(1)(iii), we made
conforming changes to apply the
requirements for a PIP equally to Tribal
and State title IV–E agencies. An Indian
Tribe may extend the PIP timeframe
beyond one year in the same way as a
State, if legislation is required to
implement and complete the plan.
Section 1356.83—Reporting
Requirements and Data Elements
Section 1356.83 describes the
reporting requirements and data
elements for the National Youth in
Transition Database (NYTD). We made a
technical amendment in paragraph
(g)(55) to bring the element response in
line with NYTD Technical Bulletin #1
(revised June 29, 2010). Specifically, we
deleted ‘‘not applicable’’ as a response
option for Element 55 (Other health
insurance coverage) because we believe
that if a youth reports ‘‘yes’’ for the
survey question related to data element
54 (Medicaid) and ‘‘no’’ for data element
56 (Health insurance type—Medical),
then this is sufficient information to
identify youth who solely participate in
Medicaid for health insurance coverage.
In addition to the changes described
above, we added a statement after the
end of paragraph (h) providing that the
information collection requirements in
this section have been approved by the
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OMB and providing the applicable OMB
Control Number.
104–4), Executive Order 13175, and
Executive Order 13132.
Section 1356.86—Penalties for NonCompliance
Executive Orders 12866 and 13563
Section 1356.86 describes the Federal
funds subject to penalties for
noncompliance with the NYTD
standards, the amount of those
penalties, notification to agencies of
penalties, the application of interest and
appeals of penalties. We made a
technical amendment to paragraph (e) to
reflect changes in regulatory citations by
deleting the current citation and
replacing it with ‘‘45 CFR 30.18.’’ On
March 8, 2007 HHS issued a final rule
that implemented the provisions of the
Debt Collection Improvement Act of
1996 (72 FR 10404). The rule on
interest, penalties and administrative
costs was removed from 45 CFR 30.13
and codified at 45 CFR 30.18.
Appendix A to Part 1356—NYTD Data
Elements
Appendix A details the information
that must be collected as NYTD Data
Elements. We deleted ‘‘not applicable’’
as a response option for element 55
‘‘other health insurance coverage’’ to
bring the response options in line with
those listed at 45 CFR 1356.83(g)(55)
which do not include the response
option of ‘‘not applicable.’’ We also
added ‘‘no’’ as a response option for
element 56 ‘‘health insurance type—
medical’’ to bring the response options
in line with those listed at 45 CFR
1356.83(g)(56) which include the
response option of ‘‘no.’’
We believe that because these changes
are technical in nature there is no need
to go through the notice and comment
process to update the regulation.
Appendix B to Part 1356—NYTD Youth
Outcome Survey
Appendix B details the information
that must be collected from all youth
surveyed for outcomes in NYTD,
whether the youth are in foster care or
not. We added ‘‘no’’ as a response
option for topic/outcome ‘‘Health
insurance type—medical (56)’’.
We believe that because this change is
technical in nature there is no need to
go through the notice and comment
process to update the regulation.
VI. Impact Analysis
We have examined the impact of this
rule as required by Executive Order
12866 (September 1993, Regulatory
Planning and Review), the Regulatory
Flexibility Act (RFA) (September 19,
1980, Pub. L. 96–354), the Unfunded
Mandates Reform Act of 1995 (Pub. L.
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Executive Orders 13563 and 12866
directs the agency to assess all costs and
benefits of available regulatory
alternatives and, if regulation is
necessary, to select regulatory
approaches that maximize net benefits
(including potential economic,
environmental, public health and safety
effects, distributive impacts, and
equity). Executive Order 13563
emphasizes the importance of
quantifying both costs and benefits, of
reducing costs, of harmonizing rules,
and of promoting flexibility. A
regulatory impact analysis (RIA) must
be prepared for major rules with
economically significant effects ($100
million or more in any one year). The
Department has determined that this
interim final rule is consistent with the
priorities and principles of these
Executive Orders. We have determined
that the costs to Indian Tribes as a result
of this rule will not be significant in
terms of the stated threshold. This rule
has been designated a ‘‘significant
regulatory action,’’ although not
economically significant, under section
3(f) of Executive Order 12866.
Accordingly, the rule has been reviewed
by the Office of Management and
Budget.
Regulatory Flexibility Act (RFA)
The Secretary certifies under 5 U.S.C.
605(b) as enacted by the RFA (Pub. L.
96–354), that this rule will not result in
a significant impact on a substantial
number of small entities. This rule does
not affect small entities because it is
applicable only to Indian Tribes that
administer title IV–E and IV–B of the
Act and States directly. For purposes of
the RFA, States or Indian Tribes are not
small entities subject to the Act.
Therefore, the Secretary certifies that
this rule will not have a significant
economic impact on a substantial
number of small entities.
Unfunded Mandates
Section 202 of the Unfunded
Mandates Reform Act of 1995 also
requires that the agency assess
anticipated costs and benefits before
issuing any rule whose mandates
require an annual expenditure of $100
million (adjusted annually for inflation).
That threshold level is currently
approximately $136 million. This
interim final rule with comment period
has no consequential effect on State,
local, or Tribal governments or on the
private sector that will result in an
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annual expenditure of $100 million or
more.
Executive Order 13132
Executive Order 13132 on Federalism
applies to policies that have federalism
implications, defined as ‘‘regulations,
legislative comments or proposed
legislation, and other policy statements
or actions that have substantial direct
effects on the States, on the relationship
between the national government and
the States, or on the distribution of
power and responsibilities among the
various levels of government.’’ This
interim final rule does not have
federalism implications as defined in
the Executive Order.
Assessment of Federal Regulations and
Policies on Families
Section 654 of the Treasury and
General Government Appropriations
Act of 1999 requires Federal agencies to
determine whether a policy or
regulation may affect family well-being.
If the agency’s conclusion is affirmative,
then the agency must prepare an impact
assessment addressing criteria specified
in the law. We have determined that
this interim final rule may affect family
well-being as defined in section 654 of
the law and certify that we have made
the required impact assessment. The
purpose of direct access to title IV–E
funding by Indian Tribes is to provide
greater safety and permanency for
Indian children and families. This rule
is responsive to the needs of Indian
Tribes and Tribal organizations within
the structure of the law, and provides
them the opportunity to operate
programs that serve this purpose. The
rule will have a positive effect on family
well-being. Implementation of Tribal
title IV–E programs will help strengthen
the safety and stability of Indian
families.
pmangrum on DSK3VPTVN1PROD with RULES2
Paperwork Reduction Act
Under the Paperwork Reduction Act
(Pub. L. 104–13), all Departments are
required to submit to the OMB for
review and approval any reporting or
recordkeeping requirements inherent in
a proposed or final rule. This interim
final rule contains information
collections in certain sections, all of
which are currently authorized by the
OMB. The sections that contain
information collection requirements are:
• 1355.33(b)—Statewide assessment or
Tribal assessment, 0970–0214
• 1355.33(c)—On-site review, 0970–
0214
• 1355.35(a)—Program improvement
plan (CFSR), 0970–0214
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• 1355.38(b)—Corrective action and
penalties for violations with respect to
a person based on a court finding
(Multiethnic Placement Act [MEPA]),
0970–0214
• 1355.40—Adoption and Foster Care
Analysis and Reporting System
(AFCARS), 0980–0267
• 1356.21(g)—Case plan, 0980–0140
• 1356.71(i)—Program improvement
plan (title IV–E review), 0970–0214
In addition, there are information
collection requirements in section
1356.20 related to the title IV–E plan
pre-print (0980–0141). This interim
final rule is not making any changes to
the title IV–E pre-print. However, the
most recent version of the title IV–E preprint approved by OMB through
October 2012 estimates that up to 20
Indian Tribes would submit a title IV–
E plan, so we are carrying that estimate
through to the information collections
included in this interim final rule.
The first set of information collections
(collectively referred to as OMB 0970–
0214) is used by the Children’s Bureau
for various purposes. We use the first
three parts of OMB 0970–0214 when we
monitor child welfare programs through
the CFSR. Title IV–E agencies use the
fourth part of OMB 0970–0214, the Title
IV–E PIP, to demonstrate how they will
develop and implement a plan to correct
areas of noncompliance with the
applicable parts of title IV–E or the
regulations. A title IV–E agency found to
not be acting in accordance with section
471(a)(18) of the Act will use the fifth
part of OMB 0970–0214, the MEPA
corrective action plan, as a framework
for demonstrating that it has changed its
policies, practices and laws to conform
to the applicable Federal laws.
We use AFCARS data (OMB 0980–
0267) to calculate financial bonuses in
the Adoption Incentive Payments
program, describe child outcomes in the
Child Welfare Outcomes Annual Report
and CFSRs, and provide case samples
for the title IV–E eligibility reviews and
CFSRs. We also use the data to develop
our budgets, inform policy and program
decisions, and share information with
the public and stakeholders about
children in foster care and children
being adopted.
OMB 0980–0140 pertains to the ACF
requirement that title IV–E agencies use
a case plan to describe the specific
services offered and provided to meet
the individualized needs of children
and families; document compliance
with requirements of titles IV–B and IV–
E of the Act; report progress in
achieving child safety, permanency and
well-being; and provide for an
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923
assessment of service delivery and
timeliness of decision-making.
Data for the Statewide or Tribal
Assessment and On-site Review come
from a title IV–E agency’s information
system, case review system, quality
assurance system and other internal
systems. If ACF requires a title IV–E
agency to develop a CFSR PIP, MEPA
corrective action plan and/or Title IV–
E PIP, a title IV–E agency will use data
from its internal records and files to
complete the plan.
The regulations pertaining to
AFCARS at 45 CFR 1355.40 require title
IV–E agencies to electronically report
certain data regarding children in foster
care and adoption. The specific data
elements are listed in the Appendix A
and B of the regulations.
The case plan consists of a narrative
description of the child’s individualized
program of care as required by the
applicable Federal laws and regulations.
ACF does not collect the information in
the case plan or require it to be reported
to us.
The respondents to all these
information collections are State or
Tribal government entities.
As required by the Paperwork
Reduction Act of 1995 (44 U.S.C.
3507(d)), ACF has submitted a copy of
these sections to OMB for its review.
This interim final rule changes the
collection requirements of all of these
information collections only by
extending the requirements that
previously applied only to States to
Tribal title IV–E agencies. The new
respondents to the information
collections in this interim final rule are
Indian Tribes, Tribal organizations and
consortia that have an approved title
IV–E plan, or children in the title IV–E
agency’s placement and care
responsibility. We estimate that the total
burden hours will increase from
2,443,205 to 2,568,445 (a 5% increase)
as a result of the increased number of
respondents as provided in this interim
final rule.
The Department expands these
collections of information to include
Indian Tribes that have been approved
to directly-operate a title IV–E program
because, by law, the requirements of the
title IV–E statute apply to such Indian
Tribes ‘‘in the same manner as this part
applies to a State’’ (section 479B(b) of
the Act), with limited exceptions. This
means that Indian Tribes operating title
IV–E plans must adhere to existing
statutory and regulatory title IV–E
requirements in place for States unless
the statute provides an exception.
The following are estimates:
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Number of
respondents
(adding in the
Indian Tribes)
Collection
pmangrum on DSK3VPTVN1PROD with RULES2
1355.33(b)—Statewide or Tribal assessment 0970–0214 ............
1355.33(c)—On-Site Review 0970–0214 ......................................
1355.35(a)—Program Improvement Plan (CFSR) 0970–0214 .....
1355.38(b)—Corrective Action Plan (MEPA) 0970–0214 .............
1355.40—AFCARS 0980–0267 .....................................................
1356.21(g)—Case plan 0980–0140 ..............................................
1356.71(i) Program Improvement Plan (IV–E reviews) 0970–
0214 ...........................................................................................
Below we describe how we arrived at
the estimated burden for each
information collection:
CFSR—Given the complexities and
issues involving conducting a CFSR for
a Tribal title IV–E agency, or an Indian
Tribe with an approved title IV–E plan,
we estimate we will conduct a CFSR in
one Indian Tribe during the first three
year period after the effective date of the
interim final rule. ACF has current OMB
approval for 13 CFSRs.
On-site review—Given the
complexities and issues involving
conducting an on-site review for a
Tribal title IV–E agency, or Indian Tribe
with an approved title IV–E plan, we
estimate we will review one Indian
Tribe during the first three year period.
ACF has current OMB approval for 13
on-site reviews.
CFSR PIP—Given the complexities
and issues involved in developing a PIP
for a Tribal title IV–E agency, or Indian
Tribe with an approved title IV–E plan,
we estimate at most one additional PIP
will be developed during the first three
year period. ACF has current OMB
approval for 13 PIPs.
MEPA—In MEPA enforcement
actions, the Office for Civil Rights and
ACF work jointly to assist the title IV–
E agency to develop and implement
corrective action plans that are targeted
to remedying the violations for which
the agency was cited. There have been
few of these corrective action plans
required in previous years and it has
taken several years for the issues
involved to advance to the corrective
action phase. We are estimating that the
number of title IV–E agencies found to
have compliance issues will continue to
be the exceptional circumstance and are
not adding any additional burden
estimate at this time.
AFCARS—Indian Tribes with title IV–
E plans, which we have previously
estimated as 20, will be required to
submit AFCARS data. ACF has current
OMB approval for 52 AFCARS reports.
Case plan—We have only rough
estimates of the numbers of children in
foster care who may be served by a
Tribal title IV–E agency or Indian Tribe
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Number of
responses per
respondent
14
14
14
1
72
639,735
1
1
1
1
2
1
8
1
Frm 00030
Fmt 4701
Total burden
hours
240
1,170
240
780
3,005
3.3
90
with an approved title IV–E plan. We
are using 50 children per Indian Tribe
as a rough estimate based on our
consultations with Indian Tribes and
information from other sources but are
very interested in hearing from Indian
Tribes how accurate this estimate
appears to be. We expect that it may be
on the high side. ACF has current OMB
approval for 638,735 respondents for the
case plan and we are adding 1,000 more
here.
Title IV–E PIP—We expect to begin
these reviews within a four year period
after an Indian Tribe’s title IV–E plan is
approved. Therefore, we estimate that at
most one additional PIP will be
developed during the first three year
period. ACF has current OMB approval
for 7 title IV–E PIPs.
ACF will consider comments by the
public on these collections of
information in the following areas:
• Evaluating whether the proposed
collections are necessary for the proper
performance of the functions of ACF,
including whether the information will
have practical utility;
• Evaluating the accuracy of the
ACF’s estimate of the burden of the
proposed collection[s] of information,
including the validity of the
methodology and assumptions used;
• Enhancing the quality, usefulness,
and clarity of the information to be
collected; and
• Minimizing the burden of the
collection of information on those who
are to respond, including through the
use of appropriate automated,
electronic, mechanical, or other
technology, e.g., permitting electronic
submission of responses.
OMB is required to make a decision
regarding the collection of information
contained in this interim final rule
between 30 and 60 days after
publication of this document in the
Federal Register. Therefore, a comment
is best assured of having its full effect
if OMB receives it within 30 days of
publication. This does not affect the
deadline for the public to comment to
the Department on the interim final
rule. Written comments to OMB on the
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Average burden
per response
Sfmt 4700
3,360
16,380
3,360
780
432,720
2,111,125
720
information collections included in this
interim final rule should be sent directly
to the following: Office of Management
and Budget, either by fax to (202) 395–
5806 or by email to
OIRA_submission@omb.eop.gov.
Please mark faxes and emails to the
attention of the desk officer for ACF. To
ensure that public comments have
maximum effect, ACF urges that each
comment clearly identify the specific
information collection that the comment
addresses and that comments be in the
same order as the regulations. You may
also send a copy of these comments to
the Department contact named in the
ADDRESSES section of this preamble.
List of Subjects
45 CFR Part 1355
Adoption and foster care, Child
welfare, Grant programs—social
programs.
45 CFR Part 1356
Adoption and foster care, Grant
programs—social programs.
(Catalog of Federal Domestic Assistance
Program Number 93.658, Foster Care
Maintenance)
Dated: July 5, 2011.
George H. Sheldon,
Acting Assistant Secretary for Children and
Families.
Approved: August 29, 2011.
Kathleen Sebelius,
Secretary, Department of Health and Human
Services.
For the reason set out in the preamble,
the Administration for Children and
Families amends 45 CFR parts 1355 and
1356 as follows:
PART 1355—REQUIREMENTS
APPLICABLE TO TITLE
IV–B AND IV–E
1. 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., 42 U.S.C. 1302.
■
2. Amend § 1355.20(a) to:
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a. Revise the definitions of Adoption,
Entity, Foster family home, Full review,
Partial review and Statewide
assessment;
■ b. Remove the first sentence of the
definition of Child care institution and
add two sentences in its place;
■ c. Revise the second sentence of the
definition of Date a child is considered
to have entered foster care;
■ d. Revise paragraphs (1)(ii) and (v)
and the third sentence in paragraph (2)
in the definition of Permanency hearing;
■ e. Revise the first and third sentences
of the definition of Foster Care; and
■ f. Add new definitions of Title IV–E
agency and Tribal agency to read as
follows:
■
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§ 1355.20
Definitions.
(a) * * *
Adoption means the method provided
by State law, or for a Tribal title IV–E
agency, Tribal law, which establishes
the legal relationship of parent and
child between persons who are not so
related by birth, with the same mutual
rights and obligations that exist between
children and their birth parents. This
relationship can only be termed
‘‘adoption’’ after the legal process is
complete.
*
*
*
*
*
Child care institution means a private
child care institution, or a public child
care institution which accommodates no
more than twenty-five children, and is
licensed by the licensing authority
responsible for licensing or approval of
institutions of this type as meeting the
standards established for such licensing.
The licensing authority must be a State
authority in the State in which the child
care institution is located, a Tribal
authority with respect to a child care
institution on or near an Indian
Reservation, or a Tribal authority of a
Tribal title IV–E agency with respect to
a child care institution in the Tribal title
IV–E agency’s service area. * * *
*
*
*
*
*
Date a child is considered to have
entered foster care * * * A title IV–E
agency may use a date earlier than that
required in this definition, such as the
date the child is physically removed
from the home. * * *
*
*
*
*
*
Entity, as used in § 1355.38, means
any organization or agency (e.g., a
private child placing agency) that is
separate and independent of the title
IV–E agency; performs title IV–E
functions pursuant to a contract or
subcontract with the title IV–E agency;
and, receives title IV–E funds. A State
or Tribal court is not an ‘‘entity’’ for the
purposes of § 1355.38 except if an
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administrative arm of the State or Tribal
court carries out title IV–E
administrative functions pursuant to a
contract with the title IV–E agency.
Foster care means 24-hour substitute
care for children placed away from their
parents or guardians and for whom the
title IV–E agency has placement and
care responsibility. * * * A child is in
foster care in accordance with this
definition regardless of whether the
foster care facility is licensed and
payments are made by the State, Tribal
or local agency for the care of the child,
whether adoption subsidy payments are
being made prior to the finalization of
an adoption, or whether there is Federal
matching of any payments that are
made.
*
*
*
*
*
Foster family home means, for the
purpose of title IV–E eligibility, the
home of an individual or family
licensed or approved as meeting the
standards established by the licensing or
approval authority(ies), that provides
24-hour out-of-home care for children.
The licensing authority must be a State
authority in the State in which the foster
family home is located, a Tribal
authority with respect to a foster family
home on or near an Indian Reservation,
or a Tribal authority of a Tribal title IV–
E agency with respect to a foster family
home in the Tribal title IV–E agency’s
service area. The term may include
group homes, agency-operated boarding
homes or other facilities licensed or
approved for the purpose of providing
foster care by the State or Tribal agency
responsible for approval or licensing of
such facilities. Foster family homes that
are approved must be held to the same
standards as foster family homes that
are licensed. Anything less than full
licensure or approval is insufficient for
meeting title IV–E eligibility
requirements. Title IV–E agencies may,
however, claim title IV–E
reimbursement during the period of
time between the date a prospective
foster family home satisfies all
requirements for licensure or approval
and the date the actual license is issued,
not to exceed 60 days.
Full review means the joint Federal
and title IV–E agency review of all
federally-assisted child and family
services programs, including family
preservation and support services, child
protective services, foster care,
adoption, and independent living
services, for the purpose of determining
the title IV–E agency’s substantial
conformity with the plan requirements
of titles IV–B and IV–E as listed in
§ 1355.34 of this part. A full review
consists of two phases, the statewide
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925
assessment (or for a Tribal title IV–E
agency, an assessment of the service
area) and a subsequent on-site review,
as described in § 1355.33 of this part.
*
*
*
*
*
Partial review means:
(1) For the purpose of the child and
family services review, the joint Federal
and State/Tribal review of one or more
federally-assisted child and family
services program(s), including family
preservation and support services, child
protective services, foster care,
adoption, and independent living
services. A partial review may consist of
any of the components of the full
review, as mutually agreed upon by the
title IV–E agency and the
Administration for Children and
Families as being sufficient to determine
substantial conformity of the reviewed
components with the plan requirements
of titles IV–B and IV–E as listed in
§ 1355.34 of this part;
(2) For the purpose of title IV–B and
title IV–E State plan compliance issues
that are outside the prescribed child and
family services review format, e.g.,
compliance with AFCARS
requirements, a review of State laws,
policies, regulations, or other
information appropriate to the nature of
the concern, to determine State
compliance; or
(3) For the purpose of title IV–E plan
compliance issues for a Tribal title IV–
E agency which are outside of the
prescribed child and family services
review format, a review of Tribal laws,
policies, regulations, or other
information appropriate to the nature of
the concern, to determine plan
compliance.
Permanency hearing means:
(1) * * *
(ii) Placed for adoption, with the title
IV–E agency filing a petition for
termination of parental rights;
*
*
*
*
*
(v) Placed in another planned
permanent living arrangement, but only
in cases where the title IV–E agency has
documented to the State or Tribal court
a compelling reason for determining
that it would not be in the best interests
of the child to follow one of the four
specified options above.
(2) * * * The permanency hearing
must be conducted by a family or
juvenile court or another court of
competent jurisdiction or by an
administrative body appointed or
approved by the court which is not a
part of or under the supervision or
direction of the title IV–E agency. * * *
*
*
*
*
*
Statewide assessment (or Tribal
assessment) means the initial phase of
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a full review of all federally-assisted
child and family services programs in
the States (or for a Tribal title IV–E
agency, in the service area), including
family preservation and support
services, child protective services, foster
care, adoption, and independent living
services as described in § 1355.33(b) of
this part, for the purpose of determining
substantial conformity with the plan
requirements of titles IV–B and IV–E as
listed in § 1355.34 of this part.
Title IV–E agency means the State or
Tribal agency administering or
supervising the administration of the
title IV–B and title IV–E plans.
Tribal agency means, for the purpose
of title IV–E, the agency of the Indian
Tribe, Indian Tribal organization (as
those terms are defined in section
479B(a) of the Act) or consortium of
Indian Tribes that is administering or
supervising the administration of the
title IV–E and title IV–B, subpart 1 plan.
■ 3. Amend § 1355.21 to revise the
section heading, paragraphs (a) and (b)
and the second sentence of paragraph
(c) as follows:
§ 1355.21 Plan requirements for titles IV–E
and IV–B.
(a) The plans for titles IV–E and IV–
B must provide for safeguards on the
use and disclosure of information which
meet the requirements contained in
section 471(a)(8) of the Act.
(b) The plans for titles IV–E and IV–
B must provide for compliance with the
Department’s regulations applicable to
the State and/or Tribe as listed in 45
CFR 1355.30.
(c) * * * The title IV–E agency also
must make available for public review
and inspection the title IV–E Plan.
4. Amend § 1355.30 to revise the
introductory text, revise paragraphs (c),
(d), (i), (k), and (m), revise the heading
of paragraph (n), and revise paragraphs
(n)(1) through (n)(4) and (o) to read as
follows:
■
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§ 1355.30
Other applicable regulations.
Except as specified, the following
regulations are applicable to State and
Tribal programs funded under titles IV–
B and IV–E of the Act.
*
*
*
*
*
(c) 2 CFR part 376—Nonprocurement
Debarment and Suspension.
(d) 2 CFR part 382—Requirements for
Drug-Free Workplace (Financial
Assistance).
*
*
*
*
*
(i) 45 CFR part 92—Uniform
Administrative Requirements for Grants
and Cooperative Agreements to State
and Local Governments. Part 92 of this
title is applicable to title IV–B programs
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and the John H. Chafee Foster Care
Independence Program under Section
477 of the Act that are operated by
States and/or Tribes. Part 92 of this title
is applicable to title IV–E foster care and
adoption assistance programs operated
by a State title IV–E agency, except that
section 92.24 Matching or cost sharing
and section 92.41 Financial reporting do
not apply. Part 92 of this title is
applicable to title IV–E foster care and
adoption assistance programs operated
by a Tribal title IV–E agency pursuant
to section 479B, except that section
92.41 and the sections specified in
§ 1356.68 do not apply to a Tribal title
IV–E agency.
*
*
*
*
*
(k) 45 CFR part 95—General
Administration—Grant Programs
(Public Assistance and Medical
Assistance). Part 95 of this title is
applicable to State and Indian Tribe
operated title IV–B and title IV–E
programs, except:
(1) Notwithstanding 45 CFR 95.1(a),
subpart A, Time Limits for States to File
Claims, does not apply to State and
Indian Tribe-operated title IV–B
(subparts 1 and 2) program and the John
H. Chafee Foster Care Independence
Program; and
(2) 45 CFR part 95 Subpart E, Cost
Allocation Plans, is not applicable to
Indian Tribe-operated title IV–E foster
care and adoption assistance pursuant
to section 479B of the Act (ACYF–CB–
PI–10–13).
*
*
*
*
*
(m) 45 CFR part 100—
Intergovernmental Review of
Department of Health and Human
Services Programs and Activities. Only
one section is applicable: 45 CFR
100.12, How may a State simplify,
consolidate, or substitute federally
required State plans? This section is
applicable to a State title IV–E agency
only.
(n) 45 CFR part 201—Grants to States
for Public Assistance Programs. * * *
(1) § 201.5—Grants. Applicable to title
IV–E foster care and adoption assistance
only.
(2) § 201.6—Withholding of payment;
reduction of Federal financial
participation in the costs of social
services and training. Applicable only to
an unapprovable change in an approved
plan, or the failure of the agency to
change its approved plan to conform to
a new Federal requirement for approval
of plans.
(3) § 201.15—Deferral of claims for
Federal financial participation.
Applicable only to title IV–E foster care
and adoption assistance.
(4) § 201.66—Repayment of Federal
funds by installments. Applicable only
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to title IV–E foster care and adoption
assistance.
(o) 45 CFR 204.1—Submittal of State
Plans for Governor’s Review. Applicable
to State title IV–E agencies only.
*
*
*
*
*
■ 5. Revise § 1355.31 to read as follows:
§ 1355.31 Elements of the child and family
services review system.
Scope. Sections 1355.32 through
1355.37 of this part apply to reviews of
child and family services programs
under subparts 1 and 2 of title IV–B of
the Act, and reviews of foster care and
adoption assistance programs under title
IV–E of the Act.
■ 6. Amend § 1355.32 to:
■ a. Add a second sentence to paragraph
(a); and
■ b. Revise paragraphs (b)(1)
introductory text, (b)(1)(ii), (b)(2)
introductory text, (c), the heading of
paragraph (d) and paragraphs (d)(1)
through (4) to read as follows:
§ 1355.32
Timetable for the reviews.
(a) Initial reviews. * * * Each Tribal
title IV–E agency must complete an
initial full review as described in
§ 1355.33 of this part, during the fouryear period after the ACF determines
that the Tribe has approved title IV–B,
subpart 1 and 2 and title IV–E plans and
has sufficient cases for ACF to apply the
procedures in § 1355.33(c).
(b) * * * (1) A title IV–E agency
found to be operating in substantial
conformity during an initial or
subsequent review, as defined in
§ 1355.34 of this part, must:
*
*
*
*
*
(ii) Submit a completed statewide
assessment, or in the case of a Tribal
title IV–E agency, a completed Tribal
assessment of the service area, to ACF
three years after the on-site review. The
assessment will be reviewed jointly by
the title IV–E agency and ACF to
determine the State’s or Indian Tribe’s
continuing substantial conformity with
the plan requirements subject to review.
No formal approval of this interim
assessment by ACF is required.
(2) A program found not to be
operating in substantial conformity
during an initial or subsequent review
will:
*
*
*
*
*
(c) Reinstatement of reviews based on
information that a title IV–E agency is
not in substantial conformity. (1) ACF
may require a full or a partial review at
any time, based on any information,
regardless of the source, that indicates
the title IV–E agency may no longer be
operating in substantial conformity.
(2) Prior to reinstating a full or partial
review, ACF will conduct an inquiry
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and require the title IV–E agency to
submit additional data whenever ACF
receives information that the title IV–E
agency may not be in substantial
conformity.
(3) If the additional information and
inquiry indicates to ACF’s satisfaction
that the title IV–E agency is operating in
substantial conformity, ACF will not
proceed with any further review of the
issue addressed by the inquiry. This
inquiry will not substitute for the full
reviews conducted by ACF under
§ 1355.32(b).
(4) ACF may proceed with a full or
partial review if the title IV–E agency
does not provide the additional
information as requested, or the
additional information confirms that the
title IV–E agency may not be operating
in substantial conformity.
(d) Partial reviews based on
noncompliance with plan requirements
that are outside the scope of a child and
family services review. * * *
(1) Conduct an inquiry and require
the title IV–E agency to submit
additional data.
(2) If the additional information and
inquiry indicates to ACF’s satisfaction
that the title IV–E agency is in
compliance, we will not proceed with
any further review of the issue
addressed by the inquiry.
(3) ACF will institute a partial review,
appropriate to the nature of the concern,
if the title IV–E agency does not provide
the additional information as requested,
or the additional information confirms
that the title IV–E agency may not be in
compliance.
(4) If the partial review determines
that the title IV–E agency is not in
compliance with the applicable plan
requirement, the title IV–E agency must
enter into a program improvement plan
designed to bring the title IV–E agency
into compliance, if the provisions for
such a plan are applicable. The terms,
action steps and time-frames of the
program improvement plan will be
developed on a case-by-case basis by
ACF and the title IV–E agency. The
program improvement plan must take
into consideration the extent of
noncompliance and the impact of the
noncompliance on the safety,
permanency or well-being of children
and families served through the title IV–
E agency’s title IV–B or IV–E allocation.
If the title IV–E agency remains out of
compliance, the title IV–E agency will
be subject to a penalty related to the
extent of the noncompliance.
*
*
*
*
*
■ 7. In § 1355.33, revise paragraphs
(a)(2) introductory text, (a)(2)(i), (ii) and
(iv), paragraphs (b), (c)(1) through (3)
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and (c)(4)(iv), the last sentence of
paragraph (c)(6), paragraph (d), the first
sentence of paragraph (e), and paragraph
(f) to read as follows:
§ 1355.33
Procedures for the review.
(a) * * *
(2) Be conducted by a team of Federal,
and State or Tribal reviewers that
includes:
(i) Staff of the child and family
services agency, including the offices
that represent the service areas that are
the focus of any particular review;
(ii) Representatives selected by the
title IV–E agency, in collaboration with
the ACF Regional Office, from those
with whom the title IV–E agency was
required to consult in developing its
CFSP, as described and required in 45
CFR 1357.15(l);
*
*
*
*
*
(iv) Other individuals, as deemed
appropriate and agreed upon by the title
IV–E agency and ACF.
(b) Statewide or Tribal Assessment.
The first phase of the full review will be
a statewide assessment, or for a Tribal
title IV–E agency a service area
assessment, conducted by the title IV–
E agency’s internal and external
members of the review team. The
assessment must:
(1) Address each systemic factor
under review including the statewide/
Tribal information system; case review
system; quality assurance system; staff
training; service array; agency
responsiveness to the community; and
foster and adoptive parent licensing,
recruitment and retention;
(2) Assess the outcome areas of safety,
permanence, and well-being of children
and families served by the title IV–E
agency using data from AFCARS and
NCANDS. For the initial review, ACF
may approve another data source to
substitute for AFCARS, and in all
reviews, ACF may approve another data
source to substitute for NCANDS. The
title IV–E agency must also analyze and
explain its performance in meeting the
national standards for the statewide/
Tribal service area data indicators;
(3) Assess the characteristics of the
title IV–E agency that have the most
significant impact on the agency’s
capacity to deliver services to children
and families that will lead to improved
outcomes;
(4) Assess the strengths and areas of
the title IV–E agency’s child and family
services programs that require further
examination through an on-site review;
(5) Include a listing of all the persons
external to the title IV–E agency who
participated in the preparation of the
assessment pursuant to
§ 1355.33(a)(2)(ii) and (iv); and
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927
(6) Be completed and submitted to
ACF within 4 months of the date that
ACF transmits the information for the
assessment to the title IV–E agency.
(c) * * *
(1) The on-site review will cover the
title IV–E agency’s programs under titles
IV–B and IV–E of the Act, including inhome services and foster care. It will be
jointly planned by the title IV–E agency
and ACF, and guided by information in
the completed assessment that identifies
areas in need of improvement or further
review.
(2) The on-site review may be
concentrated in several specific political
subdivisions or jurisdictions of the title
IV–E agency, as agreed upon by the ACF
and the title IV–E agency; however, for
a State title IV–E agency, a State’s
largest metropolitan subdivision must
be one of the locations selected.
(3) ACF has final approval of the
selection of specific areas of the title IV–
E agency’s child and family services
continuum described in paragraph (c)(1)
of this section and selection of the
political subdivisions or jurisdiction
referenced in paragraph (c)(2) of this
section.
(4) * * *
(iv) Interviews with key stakeholders,
both internal and external to the agency,
which, at a minimum, must include
those individuals who participated in
the development of the State’s or Tribal
title IV–E agency’s CFSP required at 45
CFR 1357.15(1), courts, administrative
review bodies, children’s guardians ad
litem and other individuals or bodies
assigned responsibility for representing
the best interests of the child.
*
*
*
*
*
(6) * * * The additional cases in the
oversample not selected for the on-site
review will form the sample of cases to
be reviewed, if needed, in order to
resolve discrepancies between the
statewide/Tribal assessment and the onsite review in accordance with
paragraph (d)(2) of this section.
(d) Resolution of discrepancies
between the assessment and the
findings of the on-site portion of the
review. Discrepancies between the
statewide or Tribal assessment and the
findings of the on-site portion of the
review will be resolved by either of the
following means, at the title IV–E
agency’s option:
(1) The submission of additional
information by the title IV–E agency; or
(2) ACF and the title IV–E agency will
review additional cases using only those
indicators in which the discrepancy
occurred. ACF and the title IV–E agency
will determine jointly the number of
additional cases to be reviewed, not to
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exceed 150 foster care cases or 150 inhome services cases to be selected as
specified in paragraph (c)(6) of this
section.
(e) Partial review. A partial child and
family services review, when required,
will be planned and conducted jointly
by ACF and the title IV–E agency based
on the nature of the concern. * * *
(f) Notification. Within 30 calendar
days following either a partial child and
family services review, full child and
family services review, or the resolution
of a discrepancy between the
assessment and the findings of the onsite portion of the review, ACF will
notify the title IV–E agency in writing of
whether the title IV–E agency is, or is
not, operating in substantial conformity.
■ 8. In § 1355.34 revise paragraph (a)
introductory text, (a)(1), (a)(3), (b)(1)
introductory text, (b)(2) introductory
text, (b)(2)(i), (b)(2)(ii)(C) through (F),
(b)(3) introductory text, (b)(3)(i), the first
sentence of (b)(3)(ii), (b)(4), the heading
and introductory text of (c), paragraph
(c)(1), (c)(2) introductory text, (c)(2)(i)
through (v), (c)(3) introductory text,
(c)(3)(i), (c)(4) introductory text, (c)(4)(i),
(c)(4)(iv), (c)(4)(v), (c)(5) introductory
text, (c)(5)(v), (c)(6)(i) and (iv), (c)(7)(i)
through (v), and (d) to read as follows:
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§ 1355.34 Criteria for determining
substantial conformity.
(a) Criteria to be satisfied. ACF will
determine a title IV–E agency’s
substantial conformity with title IV–B
and title IV–E plan requirements based
on the following:
(1) Its ability to meet national
standards, set by the Secretary, for the
statewide/Tribal service area data
indicators associated with specific
outcomes for children and families;
*
*
*
*
*
(3) Its ability to meet criteria related
to the title IV–E agency’s capacity to
deliver services leading to improved
outcomes.
(b) * * * (1) A title IV–E agency’s
substantial conformity will be
determined by its ability to substantially
achieve the following child and family
service outcomes:
*
*
*
*
*
(2) A title IV–E agency’s level of
achievement with regard to each
outcome reflects the extent to which a
title IV–E agency has:
(i) Met the national standard(s) for the
statewide/Tribal service area data
indicator(s) associated with that
outcome, if applicable; and,
(ii) * * *
(C) The requirements in section
422(b)(7) of the Act regarding
recruitment of potential foster and
adoptive families;
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(D) The assurances as required by
section 422(b)(8)(B) of the Act regarding
policies and procedures for abandoned
children;
(E) The requirements in section
422(b)(9) of the Act regarding the State’s
compliance with the Indian Child
Welfare Act;
(F) The requirements in section
422(b)(10) of the Act regarding a title
IV–E agency’s plan for effective use of
cross-jurisdictional resources to
facilitate timely adoptive or permanent
placements; and,
*
*
*
*
*
(3) A title IV–E agency will be
determined to be in substantial
conformity if its performance on:
(i) Each statewide/Tribal service area
data indicator developed pursuant to
paragraph (b)(4) of this section meets
the national standard described in
paragraph (b)(5) of this section; and,
(ii) Each outcome listed in paragraph
(b)(1) of this section is rated as
‘‘substantially achieved’’ in 95 percent
of the cases examined during the on-site
review (90 percent of the cases for an
initial review). * * *
(4) The Secretary may, using AFCARS
and NCANDS, develop statewide/Tribal
service area data indicators for each of
the specific outcomes described in
paragraph (b)(1) of this section for use
in determining substantial conformity.
The Secretary may add, amend, or
suspend any such statewide/Tribal
service area data indicator(s) when
appropriate. To the extent practical and
feasible, the statewide/Tribal service
area data indicators will be consistent
with those developed in accordance
with section 203 of the Adoption and
Safe Families Act of 1997 (Pub. L. 105–
89).
*
*
*
*
*
(c) Criteria related to title IV–E agency
capacity to deliver services leading to
improved outcomes for children and
families. In addition to the criteria
related to outcomes contained in
paragraph (b) of this section, the title
IV–E agency also must satisfy criteria
related to the delivery of services. Based
on information from the assessment and
onsite review, the title IV–E agency
must meet the following criteria for each
systemic factor in paragraphs (c)(2)
through (c)(7) of this section to be
considered in substantial conformity:
All of the plan requirements associated
with the systemic factor must be in
place, and no more than one of the plan
requirements fails to function as
described in paragraphs (c)(2) through
(c)(7) of this section. The systemic factor
in paragraph (c)(1) of this section is
rated on the basis of only one plan
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requirement. To be considered in
substantial conformity, the plan
requirement associated with statewide/
Tribal information system capacity must
be both in place and functioning as
described in the requirement. ACF will
use a rating scale to make the
determinations of substantial
conformity. The systemic factors under
review are:
(1) Statewide/Tribal information
system: The State/Tribal title IV–E
agency is operating a statewide/Tribal
information system that, at a minimum,
can readily identify the status,
demographic characteristics, location,
and goals for the placement of every
child who is (or within the immediately
preceding 12 months, has been) in foster
care (section (422)(b)(8)(A)(i) of the Act);
(2) Case review system: The title IV–
E agency has procedures in place that:
(i) Provide, for each child, a written
case plan to be developed jointly with
the child’s parent(s) that includes
provisions: for placing the child in the
least restrictive, most family-like
placement appropriate to his/her needs,
and in close proximity to the parents’
home where such placement is in the
child’s best interests; for visits with a
child placed out of State/Tribal service
area at least every 12 months by a
caseworker of the agency or of the
agency in the State/Tribal service area
where the child is placed; and for
documentation of the steps taken to
make and finalize an adoptive or other
permanent placement when the child
cannot return home (sections
422(b)(8)(A)(ii), 471(a)(16) and 475(5)(A)
of the Act);
(ii) Provide for periodic review of the
status of each child no less frequently
than once every six months by either a
court or by administrative review
(sections 422(b)(8)(A)(ii), 471(a)(16) and
475(5)(B) of the Act);
(iii) Assure that each child in foster
care under the supervision of the title
IV–E agency has a permanency hearing
in a family or juvenile court or another
court of competent jurisdiction
(including a Tribal court), or by an
administrative body appointed or
approved by the court, which is not a
part of or under the supervision or
direction of the title IV–E agency, no
later than 12 months from the date the
child entered foster care (and not less
frequently than every 12 months
thereafter during the continuation of
foster care) (sections 422(b)(8)(A)(ii),
471(a)(16) and 475(5)(C) of the Act);
(iv) Provide a process for termination
of parental rights proceedings in
accordance with sections
422(b)(8)(A)(ii), 475(5)(E) and (F) of the
Act; and,
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(v) Provide foster parents, preadoptive
parents, and relative caregivers of
children in foster care with notice of
and a right to be heard in permanency
hearings and six-month periodic
reviews held with respect to the child
(sections 422(b)(8)(A)(ii), 475(5)(G) of
the Act, and 45 CFR 1356.21(o)).
(3) Quality assurance system: The title
IV–E agency has developed and
implemented standards to ensure that
children in foster care placements are
provided quality services that protect
the safety and health of the children
(section 471(a)(22)) and is operating an
identifiable quality assurance system
(45 CFR 1357.15(u)) as described in the
CFSP that:
(i) Is in place in the jurisdictions
within the State/Tribal service area
where services included in the CFSP are
provided;
*
*
*
*
*
(4) Staff training: The title IV–E
agency is operating a staff development
and training program (45 CFR
1357.15(t)) that:
(i) Supports the goals and objectives
in the title IV–E agency’s CFSP;
*
*
*
*
*
(iv) Provides ongoing training for staff
that addresses the skills and knowledge
base needed to carry out their duties
with regard to the services included in
the CFSP; and,
(v) Provides training for current or
prospective foster parents, adoptive
parents, and the staff of State/Triballicensed or State/Tribal-approved child
care institutions providing care to foster
and adopted children receiving
assistance under title IV–E that
addresses the skills and knowledge base
needed to carry out their duties with
regard to caring for foster and adopted
children.
(5) Service array: Information from the
assessment and on-site review
determines that the title IV–E agency
has in place an array of services (45 CFR
1357.15(n) and section 422(b)(8)(A)(iii)
and (iv) of the Act) that includes, at a
minimum:
*
*
*
*
*
(v) Services that are accessible to
families and children in all political
subdivisions and/or the entire service
area covered in the CFSP; and,
*
*
*
*
*
(6) * * *
(i) The title IV–E agency, in
implementing the provisions of the
CFSP, engages in ongoing consultation
with a broad array of individuals and
organizations representing the State/
Tribal and county/local agencies
responsible for implementing the CFSP
and other major stakeholders in the
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services delivery system including, at a
minimum, Tribal representatives,
consumers, service providers, foster care
providers, the juvenile court, and other
public and private child and family
serving agencies (45 CFR 1357.15(l)(3));
*
*
*
*
*
(iv) There is evidence that the services
under the plan are coordinated with
services or benefits under other Federal
or federally-assisted programs serving
the same populations to achieve the
goals and objectives in the plan (45 CFR
1357.15(m)).
(7) * * *
(i) The State or Tribe has established
and maintains standards for foster
family homes and child care institutions
which are reasonably in accord with
recommended standards of national
organizations concerned with standards
for such institutions or homes (section
471(a)(10) of the Act);
(ii) The standards so established are
applied by the State or Tribe to every
licensed or approved foster family home
or child care institution receiving funds
under title IV–E or IV–B of the Act
(section 471(a)(10) of the Act);
(iii) The title IV–E agency complies
with the safety requirements for foster
care and adoptive placements in
accordance with sections 471(a)(16),
471(a)(20) and 475(1) of the Act and 45
CFR 1356.30;
(iv) The title IV–E agency has in place
an identifiable process for assuring the
diligent recruitment of potential foster
and adoptive families that reflect the
ethnic and racial diversity of children in
the State or Tribe for whom foster and
adoptive homes are needed (section
422(b)(7) of the Act); and,
(v) The title IV–E agency has
developed and implemented plans for
the effective use of cross-jurisdictional
resources to facilitate timely adoptive or
permanent placements for waiting
children (section 422(b)(10) of the Act).
(d) Availability of review instruments.
ACF will make available to the title IV–
E agencies copies of the review
instruments, which will contain the
specific standards to be used to
determine substantial conformity, on an
ongoing basis, whenever significant
revisions to the instruments are made.
■ 9. In § 1355.35 revise the first
sentence of paragraph (a)(1)
introductory text, paragraphs (a)(1)(i)
through (ii), (iv) and (v), (a)(2), (b)
introductory text, (b)(1) and (3), (c)(1),
(3) and (4), the third sentence of (d)(3),
the first sentence of (d)(4), the first
sentence of (e) introductory text, (e)(1)
through (3), (e)(4) introductory text,
(e)(4)(i), and the first sentence of (f), and
add a parenthetical OMB information
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929
collection statement at the end of the
section, to read as follows:
§ 1355.35
Program improvement plans.
(a) * * * (1) Title IV–E agencies
found not to be operating in substantial
conformity shall develop a program
improvement plan. * * *
(i) Be developed jointly by title IV–E
agency and Federal staff in consultation
with the review team;
(ii) Identify the areas in which the
title IV–E agency’s program is not in
substantial conformity;
*
*
*
*
*
(iv) Set forth the amount of progress
the statewide/Tribal data will make
toward meeting the national standards;
(v) Establish benchmarks that will be
used to measure the title IV–E agency’s
progress in implementing the program
improvement plan and describe the
methods that will be used to evaluate
progress;
*
*
*
*
*
(2) In the event that ACF and the title
IV–E agency cannot reach consensus
regarding the content of a program
improvement plan or the degree of
program or data improvement to be
achieved, ACF retains the final
authority to assign the contents of the
plan and/or the degree of improvement
required for successful completion of
the plan. Under such circumstances,
ACF will render a written rationale for
assigning such content or degree of
improvement.
(b) Voluntary program improvement
plan. Title IV–E agencies found to be
operating in substantial conformity may
voluntarily develop and implement a
program improvement plan in
collaboration with the ACF Regional
Office, under the following
circumstances:
(1) The title IV–E agency and Regional
Office agree that there are areas of the
title IV–E agency’s child and family
services programs in need of
improvement which can be addressed
through the development and
implementation of a voluntary program
improvement plan;
*
*
*
*
*
(3) No penalty will be assessed for the
title IV–E agency’s failure to achieve the
goals described in the voluntary
program improvement plan.
(c) * * *
(1) A title IV–E agency determined not
to be in substantial conformity must
submit a program improvement plan to
ACF for approval within 90 calendar
days from the date the title IV–E agency
receives the written notification from
ACF that it is not operating in
substantial conformity.
*
*
*
*
*
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(3) If the program improvement plan
does not meet the provisions of
paragraph (a) of this section, the title
IV–E agency will have 30 calendar days
from the date it receives notice from
ACF that the plan has not been
approved to revise and resubmit the
plan for approval.
(4) If the title IV–E agency does not
submit a revised program improvement
plan according to the provisions of
paragraph (c)(3) of this section or if the
plan does not meet the provisions of
paragraph (a) of this section,
withholding of funds pursuant to the
provisions of § 1355.36 of this part will
begin.
(d) * * *
(3) * * * The title IV–E agency must
provide compelling documentation of
the need for such an extension. * * *
(4) Title IV–E agencies must provide
quarterly status reports (unless ACF and
the title IV–E agency agree to less
frequent reports) to ACF. * * *
(e) * * * Program improvement plans
will be evaluated jointly by the title IV–
E agency and ACF, in collaboration with
other members of the review team, as
described in the title IV–E agency’s
program improvement plan and in
accordance with the following criteria:
(1) The methods and information used
to measure progress must be sufficient
to determine when and whether the title
IV–E agency is operating in substantial
conformity or has reached the
negotiated standard with respect to
statewide/Tribal service area data
indicators that failed to meet the
national standard for that indicator;
(2) The frequency of evaluating
progress will be determined jointly by
the title IV–E agency and Federal team
members, but no less than annually.
Evaluation of progress will be
performed in conjunction with the
annual updates of the title IV–E
agency’s CFSP, as described in
paragraph (f) of this section;
(3) Action steps may be jointly
determined by the title IV–E agency and
ACF to be achieved prior to projected
completion dates, and will not require
any further evaluation at a later date;
and
(4) The title IV–E agency and ACF
may jointly renegotiate the terms and
conditions of the program improvement
plan as needed, provided that:
(i) The renegotiated plan is designed
to correct the areas of the title IV–E
agency’s program determined not to be
in substantial conformity and/or achieve
a standard for the statewide/Tribal
service area data indicators that is
acceptable to ACF;
*
*
*
*
*
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(f) * * * The elements of the program
improvement plan must be incorporated
into the goals and objectives of the title
IV–E agency’s CFSP. * * *
(This requirement has been approved by
the Office of Management and Budget
under OMB Control Number 0970–0214.
In accordance with the Paperwork
Reduction Act of 1995, an agency may
not conduct or sponsor, and a person is
not required to respond to, a collection
of information unless it displays a
currently valid OMB control number.)
■ 10. In § 1355.36 revise paragraphs
(a)(1) through (2), the first sentence of
the introductory text of (b), (b)(1)
through (4), (b)(6), the introductory text
of (b)(7), (b)(7)(iii), the introductory text
of (b)(8), (b)(8)(iii), the introductory text
of (c)(1), (c)(1)(ii), the first sentence of
(d), (e)(1), (e)(2)(i) and (iii), and (e)(3)
through (5) to read as follows:
§ 1355.36 Withholding Federal funds due
to failure to achieve substantial conformity
or failure to successfully complete a
program improvement plan.
(a) * * *
(1) The term ‘‘title IV–B funds’’ refers
to the title IV–E agency’s combined
allocation of title IV–B subpart 1 and
subpart 2 funds; and
(2) The term ‘‘title IV–E funds’’ refers
to the title IV–E agency’s reimbursement
for administrative costs for the foster
care program under title IV–E.
(b) * * * ACF will determine the
amount of title IV–B and IV–E funds to
be withheld due to a finding that the
title IV–E agency is not operating in
substantial conformity, as follows:
(1) A title IV–E agency will have the
opportunity to develop and complete a
program improvement plan prior to any
withholding of funds.
(2) Title IV–B and IV–E funds will not
be withheld from a title IV–E agency if
the determination of nonconformity was
caused by the title IV–E agency’s correct
use of formal written statements of
Federal law or policy provided the title
IV–E agency by DHHS.
(3) A portion of the title IV–E agency’s
title IV–B and IV–E funds will be
withheld by ACF for the year under
review and for each succeeding year
until the title IV–E agency either
successfully completes a program
improvement plan or is found to be
operating in substantial conformity.
(4) The amount of title IV–B and title
IV–E funds subject to withholding due
to a determination that a title IV–E
agency is not operating in substantial
conformity is based on a pool of funds
defined as follows:
(i) The title IV–E agency’s allotment of
title IV–B funds for each of the years to
which the withholding applies; and
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(ii) An amount equivalent to 10
percent of the title IV–E agency’s
Federal claims for title IV–E foster care
administrative costs for each of the
years to which withholding applies;
*
*
*
*
*
(6) Except as provided for in
paragraphs (b)(7), (b)(8), and (e)(4) of
this section, in the event the title IV–E
agency is determined to be in
nonconformity on each of the seven
outcomes and each of the seven
systemic factors subject to review, the
maximum amount of title IV–B and title
IV–E funds to be withheld due to the
title IV–E agency’s failure to comply is
14 percent per year of the funds
described in paragraph (b)(4) of this
section for each year.
(7) Title IV–E agencies determined not
to be in substantial conformity that fail
to correct the areas of nonconformity
through the successful completion of a
program improvement plan, and are
determined to be in nonconformity on
the second full review following the
first full review in which a
determination of nonconformity was
made will be subject to increased
withholding as follows:
*
*
*
*
*
(iii) The maximum amount of title IV–
B and title IV–E funds to be withheld
due to the title IV–E agency’s failure to
comply on the second full review
following the first full review in which
the determination of nonconformity was
made is 28 percent of the funds
described in paragraph (b)(4) of this
section for each year to which the
withholding of funds applies.
(8) Title IV–E agencies determined not
to be in substantial conformity that fail
to correct the areas of nonconformity
through the successful completion of a
program improvement plan, and are
determined to be in nonconformity on
the third and any subsequent full
reviews following the first full review in
which a determination of
nonconformity was made will be subject
to increased withholding as follows:
*
*
*
*
*
(iii) The maximum amount of title IV–
B and title IV–E funds to be withheld
due to the title IV–E agency’s failure to
comply on the third and any subsequent
full reviews following the first full
review in which the determination of
nonconformity was made is 42 percent
of the funds described in paragraph
(b)(4) of this section for each year to
which the withholding of funds applies.
(c) * * *
(1) For title IV–E agencies determined
not to be operating in substantial
conformity, ACF will suspend the
withholding of the title IV–E agencies’
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title IV–B and title IV–E funds during
the time that a program improvement
plan is in effect, provided that:
*
*
*
*
*
(ii) The title IV–E agency is actively
implementing the provisions of the
program improvement plan.
*
*
*
*
*
(d) * * * For title IV–E agencies
determined not to be in substantial
conformity, ACF will terminate the
withholding of the title IV–E agency’s
title IV–B and title IV–E funds related to
the nonconformity upon determination
by the title IV–E agency and ACF that
the title IV–E agency has achieved
substantial conformity or has
successfully completed a program
improvement plan. * * *
(e) * * *
(1) Title IV–E agencies determined not
to be in substantial conformity that fail
to successfully complete a program
improvement plan will be notified by
ACF of this final determination of
nonconformity in writing within 10
business days after the relevant
completion date specified in the plan,
and advised of the amount of title IV–
B and title IV–E funds which are to be
withheld.
(2) * * *
(i) If the title IV–E agency fails to
submit status reports in accordance with
§ 1355.35(d)(4), or if such reports
indicate that the title IV–E agency is not
making satisfactory progress toward
achieving goals or actions steps, funds
will be withheld at that time for a
period beginning October 1 of the fiscal
year for which the determination of
nonconformity was made and ending on
the specified completion date for the
affected goal or action step.
*
*
*
*
*
(iii) The withholding of funds
commensurate with the level of
nonconformity at the end of the program
improvement plan will begin at the
latest completion date specified in the
program improvement plan and will
continue until a subsequent full review
determines the title IV–E agency to be
in substantial conformity or the title IV–
E agency successfully completes a
program improvement plan developed
as a result of that subsequent full
review.
(3) When the date the title IV–E
agency is determined to be in
substantial conformity or to have
successfully completed a program
improvement plan falls within a specific
quarter, the amount of funds to be
withheld will be computed to the end
of that quarter.
(4) A title IV–E agency that refuses to
participate in the development or
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implementation of a program
improvement plan, as required by ACF,
will be subject to the maximum
increased withholding of 42 percent of
its title IV–B and title IV–E funds, as
described in paragraph (b)(8) of this
section, for each year or portion thereof
to which the withholding of funds
applies.
(5) The title IV–E agency will be liable
for interest on the amount of funds
withheld by the Department, in
accordance with the provisions of 45
CFR 30.18.
■ 11. Revise § 1355.37 to read as
follows:
§ 1355.37 Opportunity for public
inspection of review reports and materials.
The title IV–E agency must make
available for public review and
inspection all statewide or Tribal
assessments (§ 1355.33(b)), report of
findings (§ 1355.33(e)), and program
improvement plans (§ 1355.35(a))
developed as a result of a full or partial
child and family services review.
■ 12. In § 1355.38 revise paragraphs
(a)(2) introductory text, (a)(2)(iii), (a)(3),
(b)(1), (b)(3), (b)(4), the heading of (c),
(c)(1) and (3), (e), (f), (g)(1)(i) and (ii),
(g)(2) through (g)(5), the first and third
sentences of (h)(1), (h)(1)(i) through (iii),
and (h)(2) through (4) to read as follows:
§ 1355.38 Enforcement of section
471(a)(18) of the Act regarding the removal
of barriers to interethnic adoption.
(a) * * *
(2) Based on the findings of the OCR
investigation, ACF will determine if a
violation of section 471(a)(18) has
occurred. A section 471(a)(18) violation
occurs if a title IV–E agency or an entity
in the State/Tribe:
*
*
*
*
*
(iii) With respect to a title IV–E
agency, maintains any statute,
regulation, policy, procedure, or
practice that on its face, is a violation as
defined in paragraphs (a)(2)(i) and (2)(ii)
of this section.
(3) ACF will provide the title IV–E
agency or entity with written
notification of its determination.
*
*
*
*
*
(b) * * *
(1) A title IV–E agency or entity found
to be in violation of section 471(a)(18)
of the Act with respect to a person, as
described in paragraphs (a)(2)(i) and
(a)(2)(ii) of this section, will be
penalized in accordance with paragraph
(g)(2) of this section. A title IV–E agency
or entity determined to be in violation
of section 471(a)(18) of the Act as a
result of a court finding will be
penalized in accordance with paragraph
(g)(4) of this section. The title IV–E
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931
agency may develop, obtain approval of,
and implement a plan of corrective
action any time after it receives written
notification from ACF that it is in
violation of section 471(a)(18) of the
Act.
*
*
*
*
*
(3) If the corrective action plan does
not meet the provisions of paragraph (d)
of this section, the title IV–E agency
must revise and resubmit the plan for
approval until it has an approved plan.
(4) A title IV–E agency or entity found
to be in violation of section 471(a)(18)
of the Act by a court must notify ACF
within 30 days from the date of entry of
the final judgment once all appeals have
been exhausted, declined, or the appeal
period has expired.
(c) Corrective action for violations
resulting from a title IV–E agency’s
statute, regulation, policy, procedure, or
practice. (1) A title IV–E agency found
to have committed a violation of the
type described in paragraph (a)(2)(iii) of
this section must develop and submit a
corrective action plan within 30 days of
receiving written notification from ACF
that it is in violation of section
471(a)(18). Once the plan is approved
the title IV–E agency will have to
complete the corrective action and come
into compliance. If the title IV–E agency
fails to complete the corrective action
plan within six months and come into
compliance, a penalty will be imposed
in accordance with paragraph (g)(3) of
this section.
*
*
*
*
*
(3) If the corrective action plan does
not meet the provisions of paragraph (d)
of this section, the title IV–E agency
must revise and resubmit the plan
within 30 days from the date it receives
a written notice from ACF that the plan
has not been approved. If the title IV–
E agency does not submit a revised
corrective action plan according to the
provisions of paragraph (d) of this
section, withholding of funds pursuant
to the provisions of paragraph (g) of this
section will apply.
*
*
*
*
*
(e) Evaluation of corrective action
plan. ACF will evaluate corrective
action plans and notify the title IV–E
agency (in writing) of its success or
failure to complete the plan within 30
calendar days. If the title IV–E agency
has failed to complete the corrective
action plan, ACF will calculate the
amount of reduction in the title IV–E
agency’s title IV–E payment and include
this information in the written
notification of failure to complete the
plan.
(f) Funds to be withheld. The term
‘‘title IV–E funds’’ refers to the amount
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of Federal funds advanced or paid to the
title IV–E agency for allowable costs
incurred by a title IV–E agency for:
foster care maintenance payments,
adoption assistance payments,
administrative costs, and training costs
under title IV–E and includes the title
IV–E agency’s allotment for the Chafee
Foster Care Independence Program
under section 477 of the Act.
(g) * * *
(1) * * *
(i) A determination that a title IV–E
agency or entity is in violation of
section 471(a)(18) of the Act with
respect to a person as described in
paragraphs (a)(2)(i) and (a)(2)(ii) of this
section, or:
(ii) After a title IV–E agency’s failure
to implement and complete a corrective
action plan and come into compliance
as described in paragraph (c) of this
section.
(2) Once ACF notifies a title IV–E
agency (in writing) that it has
committed a section 471(a)(18) violation
with respect to a person, the title IV–E
agency’s title IV–E funds will be
reduced for the fiscal quarter in which
the title IV–E agency received written
notification and for each succeeding
quarter within that fiscal year or until
the title IV–E agency completes a
corrective action plan and comes into
compliance, whichever is earlier. Once
ACF notifies an entity (in writing) that
it has committed a section 471(a)(18)
violation with respect to a person, the
entity must remit to the Secretary all
title IV–E funds paid to it by the title
IV–E agency during the quarter in which
the entity is notified of the violation.
(3) For title IV–E agencies that fail to
complete a corrective action plan within
6 months, title IV–E funds will be
reduced by ACF for the fiscal quarter in
which the title IV–E agency received
notification of its violation. The
reduction will continue for each
succeeding quarter within that fiscal
year or until the title IV–E agency
completes the corrective action plan and
comes into compliance, whichever is
earlier.
(4) If, as a result of a court finding, a
title IV–E agency or entity is determined
to be in violation of section 471(a)(18)
of the Act, ACF will assess a penalty
without further investigation. Once the
title IV–E agency is notified (in writing)
of the violation, its title IV–E funds will
be reduced for the fiscal quarter in
which the court finding was made and
for each succeeding quarter within that
fiscal year or until the title IV–E agency
completes a corrective action plan and
comes into compliance, whichever is
sooner. Once an entity is notified (in
writing) of the violation, the entity must
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remit to the Secretary all title IV–E
funds paid to it by the title IV–E agency
during the quarter in which the court
finding was made.
(5) The maximum number of quarters
that a title IV–E agency will have its title
IV–E funds reduced due to a finding of
a title IV–E agency’s failure to conform
to section 471(a)(18) of the Act is
limited to the number of quarters within
the fiscal year in which a determination
of nonconformity was made. However,
an uncorrected violation may result in
a subsequent review, another finding,
and additional penalties.
*
*
*
*
*
(h) * * *
(1) Title IV–E agencies that violate
section 471(a)(18) with respect to a
person or fail to implement or complete
a corrective action plan as described in
paragraph (c) of this section will be
subject to a penalty. * * * Penalties
will be levied for the quarter of the
fiscal year in which the title IV–E
agency is notified of its section
471(a)(18) violation, and for each
succeeding quarter within that fiscal
year until the title IV–E agency comes
into compliance with section 471(a)(18).
* * *
(i) 2 percent of the title IV–E agency’s
title IV–E funds for the fiscal year
quarter, as defined in paragraph (f) of
this section, for the first finding of
noncompliance in that fiscal year;
(ii) 3 percent of the title IV–E agency’s
title IV–E funds for the fiscal year
quarter, as defined in paragraph (f) of
this section, for the second finding of
noncompliance in that fiscal year;
(iii) 5 percent of the title IV–E
agency’s title IV–E funds for the fiscal
year quarter, as defined in paragraph (f)
of this section, for the third or
subsequent finding of noncompliance in
that fiscal year.
(2) Any entity (other than the title IV–
E agency) which violates section
471(a)(18) of the Act during a fiscal
quarter must remit to the Secretary all
title IV–E funds paid to it by the title
IV–E agency in accordance with the
procedures in paragraphs (g)(2) or (g)(4)
of this section.
(3) No fiscal year payment to a title
IV–E agency will be reduced by more
than 5 percent of its title IV–E funds, as
defined in paragraph (f) of this section,
where the title IV–E agency has been
determined to be out of compliance
with section 471(a)(18) of the Act.
(4) The title IV–E agency or an entity,
as applicable, will be liable for interest
on the amount of funds reduced by the
Department, in accordance with the
provisions of 45 CFR 30.18.
(This requirement has been approved
by the Office of Management and
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Budget under OMB Control Number
0970–0214. In accordance with the
Paperwork Reduction Act of 1995, an
agency may not conduct or sponsor, and
a person is not required to respond to,
a collection of information unless it
displays a currently valid OMB control
number.)
■ 13. In § 1355.39 revise the
introductory text, paragraph (b), and
paragraph (c) to read as follows:
§ 1355.39
review.
Administrative and judicial
A title IV–E agency determined not to
be in substantial conformity with titles
IV–B and IV–E plan requirements, or a
title IV–E agency or an entity in
violation of section 471(a)(18) of the
Act:
*
*
*
*
*
(b) Will have the opportunity to
obtain judicial review of an adverse
decision of the Departmental Appeals
Board within 60 days after the title IV–
E agency or entity receives notice of the
decision by the Board. Appeals of
adverse Department Appeals Board
decisions must be made to the district
court of the United States for the
judicial district in which the principal
or headquarters office of the agency
responsible for administering the
program is located.
(c) The procedure described in
paragraphs (a) and (b) of this section
will not apply to a finding that a title
IV–E agency or an entity has been
determined to be in violation of section
471(a)(18) which is based on a judicial
decision.
■ 14. In § 1355.40 revise the first
sentence of paragraph (a)(1), remove the
second sentence of paragraph (a)(1),
revise paragraph (a)(2), the first and
fourth sentences of (a)(3), add a
sentence to the end of paragraph (a)(3),
revise the first sentence of (b)(1), revise
the last sentence of (b)(2), revise
paragraphs (b)(3), (b)(4), and (c)(2),
remove paragraph (c)(3), revise
paragraph (d) and (e) and add a
parenthetical OMB information
collection statement at the end of the
section to read as follows:
§ 1355.40 Foster care and adoption data
collection.
(a) * * *
(1) Each title IV–E agency which
administers or supervises the
administration of titles IV–B and IV–E
must implement a system to collect
data. * * *
(2) For the purposes of foster care
reporting, each data transmission must
include all children in foster care for
whom the title IV–E agency has
responsibility for placement, care, or
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supervision. This includes American
Indian children covered under the
assurances in section 422(b)(8) of the
Act on the same basis as any other
child. For children in care less than 30
days, only a core set of information will
be required, as noted in Appendix A to
this part. For children who enter foster
care prior to October 1, 1995 and who
are still in the system, core data
elements will be required; in addition,
the title IV–E agency also will be
required to report on the most recent
case plan goal affecting those children.
For children in out-of-State placement,
the State placing the child and making
the foster care payment submits and
continually updates the data. For
children in the Tribal title IV–E agency’s
placement and care responsibility who
are placed outside of the Tribal service
area, the Indian Tribe placing the child
and making foster care payments
submits and continually updates the
data for each such child.
(3) For the purposes of adoption
reporting, data are required to be
transmitted by the title IV–E agency on
all adopted children who were placed
by the title IV–E agency, and on all
adopted children for whom the agency
is providing adoption assistance (either
ongoing or for nonrecurring expenses),
care or services directly or by contract
or agreement with other private or
public agencies. * * * For a child
adopted out-of-State, the title IV–E
agency which placed the child submits
the data. Similarly, the Tribal title IV–
E agency which placed the child outside
of the Tribal service area for adoption
submits the data.
(b) * * *
(1) The title IV–E agency shall
transmit semi-annually, within 45 days
of the end of the reporting period (i.e.,
by May 15 and November 14),
information on each child in foster care
and each child adopted during the
reporting period. * * *
(2) * * * Entry of this date
constitutes title IV–E agency
certification that the data on the child
have been reviewed and are current.
(3) Adoption data are to be reported
during the reporting period in which the
adoption is legalized or, at the title IV–
E agency’s option, in the following
reporting period if the adoption is
legalized within the last 60 days of the
reporting period. For a semi-annual
period in which no adoptions have been
legalized, the title IV–E agency must
report such an occurrence.
(4) A summary file of the semi-annual
data transmission must be submitted
and will be used to verify the
completeness of the title IV–E agency’s
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detailed submission for the reporting
period.
*
*
*
*
*
(c) * * *
(2) Substantial noncompliance occurs
when missing data exceed 10 percent
for any one data element.
(d) Timeliness of foster care data
reports. Ninety percent of the subject
transactions must have been entered
into the system within 60 days of the
event (removal from home or discharge
from foster care) or the title IV–E agency
will be found in substantial
noncompliance.
(e) Substantial Noncompliance.
Failure by a title IV–E agency to meet
any of the standards described in
paragraphs (a) through (d) of this section
is considered a substantial failure to
meet the requirements of the title IV–E
plan.
(This requirement has been approved
by the Office of Management and
Budget under OMB Control Number
0980–0267. In accordance with the
Paperwork Reduction Act of 1995, an
agency may not conduct or sponsor, and
a person is not required to respond to,
a collection of information unless it
displays a currently valid OMB control
number.)
■ 15. Revise § 1355.50 to read as
follows:
§ 1355.50
Purpose of this part.
This part sets forth the requirements
and procedures title IV–E agencies must
meet in order to receive Federal
financial participation for the planning,
design, development, installation and
operation of statewide or Tribal
automated child welfare information
systems authorized under section
474(a)(3)(c) of the Act.
■ 16. In § 1355.52 revise the section
heading and paragraphs (a) and (b) to
read as follows:
§ 1355.52 Funding authority for statewide
or Tribal automated child welfare
information systems (SACWIS/TACWIS).
(a) Title IV–E agencies may receive
Federal reimbursement at the 50 percent
level for expenditures related to the
planning, design, development and
installation of a statewide or Tribal
automated child welfare information
system, to the extent such system:
(1) Provides for the title IV–E agency
to collect and electronically report
certain data required by section 479(b)
of the Act and § 1355.40 of this part;
(2) To the extent practicable, provides
for an interface with the data collection
system for child abuse and neglect;
(3) To the extent practicable, provides
for an interface with and retrieval of
information from the State or Tribal
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933
automated information system that
collects information relating to the
eligibility of individuals under title IV–
A of the Act; and
(4) Provides for more efficient,
economical and effective administration
of the programs carried out under a plan
approved under title IV–B and title
IV–E.
(b) Title IV–E agencies may also be
reimbursed for the full amount of
expenditures for the hardware
components for such systems at the rate
provided under paragraph (a) of this
section.
*
*
*
*
*
■ 17. In § 1355.53 revise paragraph (a),
paragraph (b)(2) introductory text,
paragraph (b)(3), paragraph (e),
paragraph (f) and paragraph (g) to read
as follows:
§ 1355.53
funding.
Conditions for approval of
(a) As a condition of funding, the
SACWIS or TACWIS must be designed,
developed (or an existing system
enhanced), and installed in accordance
with an approved advance planning
document (APD). The APD must
provide for a design which, when
implemented, will produce a
comprehensive system, which is
effective and efficient, to improve the
program management and
administration of the plans for titles IV–
B and IV–E as provided under this
section.
(b) * * *
(2) Provide, for electronic exchanges
and referrals, as appropriate, with the
following systems within the State or
Tribe, unless the title IV–E agency
demonstrates that such interface or
integration would not be practicable
because of systems limitations or cost
constraints:
*
*
*
*
*
(3) Support the provisions of section
422(a) by providing for the automated
collection, maintenance, management
and reporting of information on all
children in foster care under the
responsibility of the title IV–E agency,
including statewide data (or in the case
of a Tribal title IV–E agency, service
area data) from which the demographic
characteristics, location, and goals for
foster care children can be determined;
*
*
*
*
*
(e) If the cost benefit analysis
submitted as part of the APD indicates
that adherence to paragraphs (c) and (d)
of this section would not be cost
beneficial, final approval of the APD
may be withheld until resolution is
reached on the level of automation
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appropriate to meet the title IV–E
agency’s needs.
(f) A Statewide or Tribal automated
child welfare information system may
be designed, developed and installed on
a phased basis, in order to allow title
IV–E agencies to implement AFCARS
requirements expeditiously, in
accordance with section 479(b) of the
Act, as long as the approved APD
includes the title IV–E agency’s plan for
full implementation of a comprehensive
system which meets all functional and
data requirements as specified in
paragraphs (a) and (b) of this section,
and a system design which will support
these enhancements on a phased basis.
(g) The system must perform Quality
Assurance functions to provide for the
review of case files for accuracy,
completeness and compliance with
Federal requirements, State standards
and where applicable, Tribal standards.
■ 18. Revise § 1355.54 to read as
follows:
§ 1355.54 Submittal of advance planning
documents.
The title IV–E agency must submit an
APD for a statewide automated child
welfare information system, signed by
the appropriate official, in accordance
with procedures specified by 45 CFR
part 95, subpart F.
■ 19. In § 1355.55 revise paragraph (a)
introductory text and add a
parenthetical OMB information
collection statement at the end of the
section to read as follows:
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§ 1355.55 Review and assessment of the
system developed with enhanced funds.
(a) ACF will, on a continuing basis,
review, assess and inspect the planning,
design, development, installation and
operation of the SACWIS or TACWIS to
determine the extent to which such
systems:
*
*
*
*
*
(This requirement has been approved
by the Office of Management and
Budget under OMB Control Number
0970–0007. In accordance with the
Paperwork Reduction Act of 1995, an
agency may not conduct or sponsor, and
a person is not required to respond to,
a collection of information unless it
displays a currently valid OMB control
number.)
■ 20. In § 1355.56 revise paragraph (a),
the introductory text of paragraph (b)(1),
paragraphs (b)(1)(iv), (b)(2), and (b)(4) to
read as follows:
§ 1355.56 Failure to meet the conditions of
the approved APD.
(a) If ACF finds that the title IV–E
agency fails to meet any of the
conditions cited in § 1355.53, or to
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substantially comply with the criteria,
requirements and other undertakings
prescribed by the approved APD,
approval of the APD may be suspended.
(b) * * *
(1) The title IV–E agency will be given
written notice of the suspension. This
notice shall state:
*
*
*
*
*
(iv) The actions required by the title
IV–E agency for future enhanced
funding.
(2) The suspension will be effective as
of the date the title IV–E agency failed
to comply with the approved APD;
*
*
*
*
*
(4) Should a title IV–E agency cease
development of an approved system,
either by voluntary withdrawal or as a
result of Federal suspension, all Federal
incentive funds invested to date that
exceed the normal administrative FFP
rate (50 percent) will be subject to
recoupment.
■ 21. Revise § 1355.57 to read as
follows:
§ 1355.57
Cost allocation.
(a) All expenditures of a title IV–E
agency to plan, design, develop, install,
and operate the data collection and
information retrieval system described
in § 1355.53 of this part shall be treated
as necessary for the proper and efficient
administration of the title IV–E plan,
without regard to whether the system
may be used with respect to foster or
adoptive children other than those on
behalf of whom foster care maintenance
payments or adoption assistance
payments may be made under the title
IV–E plan.
(b) Cost allocation and distribution for
the planning, design, development,
installation and operation must be in
accordance with § 95.631 of this title
and section 474(c) of the Act, if the
SACWIS or TACWIS includes functions,
processing, information collection and
management, equipment or services that
are not directly related to the
administration of the programs carried
out under the plan approved under title
IV–B or IV–E.
■ 22. Remove Appendix F and revise
Appendices A through E to part 1355 to
read as follows:
Appendix A to Part 1355—Foster Care
Data Elements
Section I—Foster Care Data Elements
Data elements preceded by ‘‘**’’ are the
only data elements required for children who
have been in care less than 30 days. For
children who entered care prior to October 1,
1995, data elements preceded by either ‘‘**’’
and ‘‘***’’ are the only data elements
required. This means that, for these two
categories of children, these are the only data
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elements to which the missing data standard
will be applied.
I. General Information
**A. Title IV–E agency lllllllll
**B. Report date ll (mo.) ll (yr.)
**C. Local Agency (County or Equivalent
Jurisdiction) lllllllllllllll
**D. Record Number llllllllll
**E. Date of Most Recent Periodic Review
(if Applicable) ll (mo.) ll (day) ll (yr.)
II. Child’s Demographic Information
**A. Date of Birth ll (mo.) ll (day)
ll (yr.)
**B. Sex ll
Male: 1
Female: 2
C. Race/Ethnicity
a. American Indian or Alaska Native
b. Asian
c. Black or African American
d. Native Hawaiian or Other Pacific
Islander
e. White
f. Unable to Determine
Yes: 1
No: 2
Unable to Determine: 3
D. Has this child been clinically diagnosed
as having a disability(ies)? ll
Yes: 1
No: 2
Not Yet Determined: 3
1. If yes, indicate each type of disability
with a ‘‘1’’
Mental Retardation ll
Visually or Hearing Impaired ll
Physically Disabled ll
Emotionally Disturbed (DSM III)
Other Medically Diagnosed Condition
Requiring Special Care ll
E. 1. Has this child ever been adopted?
ll
Yes: 1
No: 2
Unable to Determine: 3
2. If yes, how old was the child when the
adoption was legalized? ll
Less than 2 years old: 1
2 to 5 years old: 2
6 to 12 years old: 3
13 years or older: 4
Unable to determine: 5
III. Removal/Placement Setting Indicators
A. Removal Episodes
Date of First Removal From Home ll
(mo.) ll (day) ll (yr.)
Total Number of Removals From Home to
Date ll
Date Child was Discharged From Last
Foster Care Episode (if Applicable) ll (mo.)
ll (day) ll (yr.)
**; Date of Latest Removal From Home
ll (mo.) ll (day) ll (yr.)
**Transaction Date ll (mo.) ll (day)
ll (yr.)
B. Placement Settings
Date of Placement in Current Foster Care
Setting ll (mo.) ll (day) ll (yr.)
Number of Previous Placement Settings
During This Removal Episode ll
IV. Circumstances of Removal
A. Manner of Removal From Home for
Current Placement Episode ll
Voluntary: 1
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Court Ordered: 2
Not Yet Determined: 3
B. Actions or Conditions Associated With
Child’s Removal: (Indicate all that apply with
a ‘‘1’’)
Physical Abuse (Alleged/Reported) lll
Sexual Abuse (Alleged/Reported) llll
Neglect (Alleged/Reported) lllllll
Alcohol Abuse (Parent) lllllllll
Drug Abuse (Parent) llllllllll
Alcohol Abuse (Child) lllllllll
Drug Abuse (Child) llllllllll
Child’s Disability lllllllllll
Child’s Behavior Problem
lllllll
Death of Parent(s) lllllllllll
Incarceration of Parent(s) llllllll
Caretaker’s Inability to Cope Due to Illness
or Other Reasons llllllllllll
Abandonment lllllllllllll
Relinquishment llllllllllll
Inadequate Housing llllllllll
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**V. Current Placement Setting llllll
**A. Pre-Adoptive Home: 1
Foster Family Home (Relative): 2
Foster Family Home (Non-Relative): 3
Group Home: 4
Institution: 5
Supervised Independent Living: 6
Runaway: 7
Tribal Home Visit: 8
**B. Is Current Placement Out-of-State/
Tribal service area? lllllllllll
Yes (Out-of-State/Tribal service area
Placement): 1
No (In State/Tribal service area Placement):
2***
VI. Most Recent Case Plan Goal llllll
Reunify With Parent(s) or Principal
Caretaker(s): 1
Live With Other Relative(s): 2
Adoption: 3
Long Term Foster Care: 4
Emancipation: 5
Guardianship: 6
Case Plan Goal Not Yet Established: 7
VII. Principal Caretaker(s) Information
A. Caretaker Family Structure llllll
Married Couple: 1
Unmarried Couple: 2
Single Female: 3
Single Male: 4
Unable to Determine: 5
B. Year of Birth
1st Principal Caretaker lllllllll
2nd Principal Caretaker (If Applicable) l
VIII. Parental Rights Termination (If
Applicable)
A. Mother ll (mo.) ll (day) ll (yr.)
B. Legal or Putative Father ll (mo.) ll
(day) ll (yr.)
IX. Foster Family Home—Parent(s) Data (To
be answered only if Section V., Part A.
CURRENT PLACEMENT SETTING is 1, 2 or
3)
A. Foster Family Structure lllllll
Married Couple: 1
Unmarried Couple: 2
Single Female: 3
Single Male: 4
B. Year of Birth
1st Foster Caretaker llllllllll
2nd Foster Caretaker (If Applicable) lll
C. Race/Ethnicity
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1. Race of 1st Foster Caretaker
a. American Indian or Alaska Native
b. Asian
c. Black or African American
d. Native Hawaiian or Other Pacific
Islander
e. White
f. Unable to Determine
2. Hispanic or Latino Ethnicity of 1st
Foster Caretaker ll
Yes: 1
No: 2
Unable to Determine: 3
3. Race of 2nd Foster Caretaker (If
Applicable)
a. American Indian or Alaska Native
b. Asian
c. Black or African American
d. Native Hawaiian or Other Pacific
Islander
e. White
f. Unable to Determine
4. Hispanic or Latino Ethnicity of 2nd
Foster Caretaker (If Applicable)
Yes: 1
No: 2
Unable to Determine: 3
X. Outcome Information
**A. Date of Discharge From Foster Care
ll (mo.) ll (day)ll (yr.)
**Transaction Date ll (mo.) ll (day)
ll (yr.)
**B. Reason for Discharge lllllll
Reunification With Parents or Primary
Caretakers: 1
Living with Other Relative(s): 2
Adoption: 3
Emancipation: 4
Guardianship: 5
Transfer to Another Agency: 6
Runaway: 7
Death of Child: 8
XI. Source(s) of Federal Financial Support/
Assistance for Child (Indicate all that apply
with a ‘‘1’’)
Title IV–E (Foster Care)
llllllll
Title IV–E (Adoption Assistance) llll
Title IV–A (Aid to Families with Dependent Children) llllllllllllll
Title IV–D (Child Support) lllllll
Title XIX (Medicaid) llllllllll
SSI or Other Social Security Act Benefits
None of the Above lllllllllll
XII. Amount of the monthly foster care
payment (regardless of sources). ll
Section II—Definitions of and Instructions
for Foster Care Data Elements
Reporting population. The population to be
included in this reporting system includes all
children in foster care under the
responsibility of the title IV–E agency
administering or supervising the
administration of the title IV–B Child and
Family Services plan and the title IV–E plan;
that is, all children who are required to be
provided the assurances of section 422(b)(8)
of the Social Security Act.
This population includes all children
supervised by or under the responsibility of
another public agency with which the title
IV–E agency has an agreement under title IV–
E and on whose behalf the title IV–E agency
makes title IV–E foster care maintenance
payments.
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935
Foster care is defined as 24 hour substitute
care for children outside their own home.
The reporting system includes all children
who have or had been in foster care at least
24 hours. The foster care settings include, but
are not limited to:
—Family foster homes
—Relative foster homes (whether payments
are made or not)
—Group homes
—Emergency shelters
—Residential facilities
—Child care institutions
—Pre-adoptive homes
Foster care does not include children who
are in their own homes under the
responsibility of the title IV–E agency.
However, children who are at home on a trial
basis may be included even though they are
not considered to be in foster care. If they are
included, element number V. CURRENT
PLACEMENT SETTING must be given the
value of ‘‘8’’.
I. General Information
A. Title IV–E agency**—for a State, the
U.S. Postal Service two letter abbreviation for
the State submitting the report. For a Tribal
title IV–E agency, the abbreviation provided
by ACF.
B. Report Date**—the last month and year
for the reporting period.
C. Local Agency**— Identity of the county
or equivalent unit which has responsibility
for the case. The 5 digit Federal Information
Processing Standard (FIPS) must be used or
other ACF-provided code.
D. Record Number**—The sequential
number which the title IV–E agency uses to
transmit data to the Department of Health
and Human Services (DHHS) or a unique
number which follows the child as long as
he or she is in foster care. The record number
cannot be linked to the child’s case I.D.
number except at the title IV–E agency level.
E. Date of Most Recent Periodic Review (if
applicable)—For children who have been in
care for seven months or longer, enter the
month, day and year of the most recent
administrative or court review, including
dispositional hearing. For children who have
been in care less than seven months, leave
the field blank. An entry in this field certifies
that the child’s computer record is current up
to this date.
II. Child’s Demographic Information
A. Date of Birth**—Month, day and year
of the child’s birth. If the child is abandoned
or the date of birth is otherwise unknown,
enter an approximate date of birth. Use the
15th as the day of birth.
B. Sex**—Indicate as appropriate.
C. Race/Ethnicity**
1. Race—In general, a person’s race is
determined by how they define themselves or
by how others define them. In the case of
young children, parents determine the race of
the child. Indicate all races (a through e) that
apply with a ‘‘1.’’ For those that do not apply,
indicate a ‘‘0.’’ Indicate ‘‘f. Unable to
Determine’’ with a ‘‘1’’ if it applies and a ‘‘0’’
if it does not.
American Indian or Alaska Native—A
person having origins in any of the original
peoples of North or South America
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(including Central America), and who
maintains tribal affiliation or community
attachment.
Asian—A person having origins in any of
the original peoples of the Far East, Southeast
Asia, or the Indian subcontinent including,
for example, Cambodia, China, India, Japan,
Korea, Malaysia, Pakistan, the Philippine
Islands, Thailand, and Vietnam.
Black or African American—A person
having origins in any of the black racial
groups of Africa.
Native Hawaiian or Other Pacific
Islander—A person having origins in any of
the original peoples of Hawaii, Guam, Samoa,
or other Pacific Islands.
White—A person having origins in any of
the original peoples of Europe, the Middle
East, or North Africa.
Unable to Determine—The specific race
category is ‘‘unable to determine’’ because
the child is very young or is severely
disabled and no person is available to
identify the child’s race. ‘‘Unable to
determine’’ is also used if the parent, relative
or guardian is unwilling to identify the
child’s race.
2. Hispanic or Latino Ethnicity—Answer
‘‘yes’’ if the child is of Mexican, Puerto
Rican, Cuban, Central or South American
origin, or a person of other Spanish cultural
origin regardless of race. Whether or not a
person is Hispanic or Latino is determined by
how they define themselves or by how others
define them. In the case of young children,
parents determine the ethnicity of the child.
‘‘Unable to Determine’’ is used because the
child is very young or is severely disabled
and no person is available to determine
whether or not the child is Hispanic or
Latino. ‘‘Unable to determine’’ is also used if
the parent, relative or guardian is unwilling
to identify the child’s ethnicity.
D. Has the child been clinically diagnosed
as having a disability(ies)? ‘‘Yes’’ indicates
that a qualified professional has clinically
diagnosed the child as having at least one of
the disabilities listed below. ‘‘No’’ indicates
that a qualified professional has conducted a
clinical assessment of the child and has
determined that the child has no disabilities.
‘‘Not Yet Determined’’ indicates that a
clinical assessment of the child by a qualified
professional has not been conducted.
1. Indicate Each Type of Disability With a
‘‘1’’
Mental Retardation—Significantly
subaverage general cognitive and motor
functioning existing concurrently with
deficits in adaptive behavior manifested
during the development period that
adversely affect a child’s/youth’s
socialization and learning.
Visually or Hearing Impaired—Having a
visual impairment that may significantly
affect educational performance or
development; or a hearing impairment,
whether permanent or fluctuating, that
adversely affects educational performance.
Emotionally Disturbed (DSM III)—A
condition exhibiting one or more of the
following characteristics over a long period
of time and to a marked degree: An inability
to build or maintain satisfactory
interpersonal relationships; inappropriate
types of behavior or feelings under normal
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circumstances; a general pervasive mood of
unhappiness or depression; or a tendency to
develop physical symptoms or fears
associated with personal problems. The term
includes persons who are schizophrenic or
autistic. The term does not include persons
who are socially maladjusted, unless it is
determined that they are also seriously
emotionally disturbed. The diagnosis is
based on the Diagnostic and Statistical
Manual of Mental Disorders (Third Edition)
(DSM III) or the most recent edition.
Other Medically Diagnosed Conditions
Requiring Special Care—Conditions other
than those noted above which require special
medical care such as chronic illnesses.
Included are children diagnosed as HIV
positive or with AIDS.
E.1. Has this child ever been adopted? If
this child has ever been legally adopted,
enter ‘‘yes.’’ If the child has never been
legally adopted, enter ‘‘no’’. Enter ‘‘Unable to
Determine’’ if the child has been abandoned
or the child’s parent(s) are otherwise not
available to provide the information.
2. If yes, how old was the child when the
adoption was legalized? Enter the number
which represents the appropriate age range.
If uncertain, use an estimate. If no one is
available to provide the information, enter
‘‘Unable to Determine.’’
III. Removal/Placement Setting Indicators
A. Removal Episodes—The removal of the
child from his/her normal place of residence
resulting in his/her placement in a foster care
setting.
Date of First Removal From Home—Month,
day and year the child was removed from
home for the first time for purpose of
placement in a foster care setting. If the
current 1 removal is the first removal, enter
the date of the current removal.1For children
who have exited foster care, ‘‘current’’ refers
to the most recent removal episode and the
most recent placement setting.
Total Number of Removals from Home to
Date—The number of times the child was
removed from home, including the current
removal.
Date Child was Discharged From Last
Foster Care Episode (If Applicable)—For
children with prior removals, enter the
month, day and year they were discharged
from care for the episode immediately prior
to the current episode. For children with no
prior removals, leave blank.
Date of Latest Removal From Home**—
Month, day and year the child was last
removed from his/her home for the purpose
of being place in foster care. This would be
the date for the current episode or, if the
child has existed foster care, the date of
removal for the most recent removal.
Transaction Date**—A computer
generated date which accurately indicates the
month, day and year the response to ‘‘Date
of Latest Removal From Home’’ was entered
into the information system.
B. Placement Settings.
Date of Placement in Current Foster Care
Setting—Month, day and year the child
moved into the current foster home, facility,
residence, shelter, institution, etc. for
purposes of continued foster care.
Number of Previous Placement Settings
During This Removal Episode—Enter the
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number of places the child has lived,
including the current setting, during the
current removal episode. Do not include trial
home visits as a placement setting.
IV. Circumstances of Removal
A. Manner of Removal From Home for
Current Placement Episode.
Voluntary Placement Agreement—An
official voluntary placement agreement has
been executed between the caretaker and the
agency. The placement remains voluntary
even if a subsequent court order is issued to
continue the child in foster care.
Court Ordered—The court has issued an
order which is the basis of the child’s
removal.
Not Yet Determined—A voluntary
placement agreement has not been signed or
a court order has not been issued. This will
mostly occur in very short-term cases. When
either a voluntary placement agreement is
signed or a court order issued, the record
should be updated to reflect the manner of
removal at that time.
B. Actions or Conditions Associated With
Child’s Removal (indicate all that apply with
a ‘‘1’’.)
Physical Abuse—Alleged or substantiated
physical abuse, injury or maltreatment of the
child by a person responsible for the child’s
welfare.
Sexual Abuse—Alleged or substantiated
sexual abuse or exploitation of a child by a
person who is responsible for the child’s
welfare.
Neglect—Alleged or substantiated
negligent treatment or maltreatment,
including failure to provide adequate food,
clothing, shelter or care.
Alcohol Abuse (Parent)—Principal
caretaker’s compulsive use of alcohol that is
not of a temporary nature.
Drug Abuse (Parent)—Principal caretaker’s
compulsive use of drugs that is not of a
temporary nature.
Alcohol Abuse (Child)—Child’s
compulsive use of or need for alcohol. This
element should include infants addicted at
birth.
Drug Abuse (Child)—Child’s compulsive
use of or need for narcotics. This element
should include infants addicted at birth.
Child’s Disability—Clinical diagnosis by a
qualified professional of one or more of the
following: Mental retardation; emotional
disturbance; specific learning disability;
hearing, speech or sight impairment; physical
disability; or other clinically diagnosed
handicap. Include only if the disability(ies)
was at least one of the factors which led to
the child’s removal.
Child’s Behavior Problem—Behavior in the
school and/or community that adversely
affects socialization, learning, growth, and
moral development. These may include
adjudicated or nonadjudicated child behavior
problems. This would include the child’s
running away from home or other placement.
Death of Parent(s)—Family stress or
inability to care for child due to death of a
parent or caretaker.
Incarceration of Parent(s)—Temporary or
permanent placement of a parent or caretaker
in jail that adversely affects care for the child.
Caretaker’s Inability to Cope Due to Illness
or Other Reasons—Physical or emotional
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illness or disabling condition adversely
affecting the caretaker’s ability to care for the
child.
Abandonment—Child left alone or with
others; caretaker did not return or make
whereabouts known.
Relinquishment—Parent(s), in writing,
assigned the physical and legal custody of
the child to the agency for the purpose of
having the child adopted.
Inadequate Housing—Housing facilities
were substandard, overcrowded, unsafe or
otherwise inadequate resulting in their not
being appropriate for the parents and child
to reside together. Also includes
homelessness.
V. Current Placement Setting**
A. Identify the type of setting in which the
child currently lives.
Pre-Adoptive Home—A home in which the
family intends to adopt the child. The family
may or may not be receiving a foster care
payment or an adoption subsidy on behalf of
the child.
Foster Family Home (Relative)—A licensed
or unlicensed home of the child’s relatives
regarded by the title IV–E agency as a foster
care living arrangement for the child.
Foster Family Home (Non-Relative)—A
licensed foster family home regarded by the
title IV–E agency as a foster care living
arrangement.
Group Home—A licensed or approved
home providing 24-hour care for children in
a small group setting that generally has from
seven to twelve children.
Institution—A child care facility operated
by a public or private agency and providing
24-hour care and/or treatment for children
who require separation from their own
homes and group living experience. These
facilities may include: Child care
institutions; residential treatment facilities;
maternity homes; etc.
Supervised Independent Living—An
alternative transitional living arrangement
where the child is under the supervision of
the agency but without 24 hour adult
supervision, is receiving financial support
from the child welfare agency, and is in a
setting which provides the opportunity for
increased responsibility for self care.
Runaway—The child has run away from
the foster care setting.
Trial Home Visit—The child has been in a
foster care placement, but, under title IV–E
agency supervision, has been returned to the
principal caretaker for a limited and
specified period of time.
B. Is current placement setting outside of
the State or Tribal service area?
‘‘Yes’’ indicates that the current placement
setting is located outside of the State or the
Tribal service area of the Tribal title IV–E
agency making the report.
‘‘No’’ indicates that the child continues to
reside within the State or the Tribal service
area of the Tribal title IV–E agency making
the report.
Note: Only the title IV–E agency with
placement and care responsibility for the
child should include the child in this
reporting system.
VI. Most Recent Case Plan Goal***
Indicate the most recent case plan goal for
the child based on the latest review of the
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child’s case plan—whether a court review or
an administrative review. If the child has
been in care less than six months, enter the
goal in the case record as determined by the
caseworker.
Reunify With Parents or Principal
Caretaker(s)—The goal is to keep the child in
foster care for a limited time to enable the
agency to work with the family with whom
the child had been living prior to entering
foster care in order to reestablish a stable
family environment.
Live With Other Relatives—The goal is to
have the child live permanently with a
relative or relatives other than the ones from
whom the child was removed. This could
include guardianship by a relative(s).
Adoption—The goal is to facilitate the
child’s adoption by relatives, foster parents
or other unrelated individuals.
Long Term Foster Care—Because of
specific factors or conditions, it is not
appropriate or possible to return the child
home or place her or him for adoption, and
the goal is to maintain the child in a long
term foster care placement.
Emancipation—Because of specific factors
or conditions, it is not appropriate or
possible to return the child home, have a
child live permanently with a relative or
have the child be adopted; therefore, the goal
is to maintain the child in a foster care
setting until the child reaches the age of
majority.
Guardianship—The goal is to facilitate the
child’s placement with an agency or
unrelated caretaker, with whom he or she
was not living prior to entering foster care,
and whom a court of competent jurisdiction
has designated as legal guardian.
Case Plan Goal Not Yet Established—No
case plan goal has yet been established other
then the care and protection of the child.
VII. Principal Caretaker(s) Information
A. Caretaker Family Structure—Select from
the four alternatives—married couple,
unmarried couple, single female, single
male—the category which best describes the
type of adult caretaker(s) from whom the
child was removed for the current foster care
episode. Enter ‘‘Unable to Determine’’ if the
child has been abandoned or the child’s
caretakers are otherwise unknown.
B. Year of Birth—Enter the year of birth for
up to two caretakers. If the response to data
element VII. A—Caretaker Family Structure,
was 1 or 2, enter data for two caretakers. If
the response was 3 or 4, enter data only for
the first caretaker. If the exact year of birth
is unknown, enter an estimated year of birth.
VIII. Parental Rights Termination
Enter the month, day and year that the
court terminated the parental rights. If the
parents are known to be deceased, enter the
date of death.
IX. Family Foster Home—Parent(s) Data
Provide information only if data element in
Section V., Part A. CURRENT PLACEMENT
SETTING is 1, 2, or 3.
A. Foster Family Structure—Select from
the four alternatives—married couple,
unmarried couple, single female, single
male—the category which best describes the
nature of the foster parents with whom the
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child is living in the current foster care
episode.
B. Year of Birth—Enter the year of birth for
up to two foster parents. If the response to
data element IX. A.—Foster Family Structure,
was 1 or 2, enter data for two caretakers. If
the response was 3 or 4, enter data only for
the first caretaker. If the exact year of birth
is unknown, enter an estimated year of birth.
C. Race—Indicate the race for each of the
foster parent(s). See instructions and
definitions for the race categories under data
element II.C.1. Use ‘‘f. Unable to Determine’’
only when a parent is unwilling to identify
his or her race. Hispanic or Latino
Ethnicity—Indicate the ethnicity for each of
the foster parent(s). See instructions and
definitions under data element II.C.2. Use ‘‘f.
Unable to Determine’’ only when a parent is
unwilling to identify his or her ethnicity.
X. Outcome Information
Enter data only for children who have
exited foster care during the reporting period.
A. Date of Discharge From Foster Care**—
Enter the month, day and year the child was
discharged from foster care. If the child has
not been discharged from care, leave blank.
Transaction Date**—A computer
generated date which accurately indicates the
month, day and year the response to ‘‘Date
of Discharge from Foster Care’’ was entered
into the information system.
B. Reason for Discharge**.
Reunification With Parents or Primary
Caretakers—The child was returned to his or
her principal caretaker(s)’ home.
Living With Other Relatives—The child
went to live with a relative other than the one
from whose home he or she was removed.
Adoption—The child was legally adopted.
Emancipation—The child reached majority
according to the law by virtue of age,
marriage, etc.
Guardianship—Permanent custody of the
child was awarded to an individual.
Transfer to Another Agency—
Responsibility for the care of the child was
awarded to another agency—either in or
outside of the State or Tribal service area.
Runaway—The child ran away from the
foster care placement.
Death of Child—The child died while in
foster care.
XI. Source(s) of Federal Support/Assistance
for Child (Indicate All That Apply With a
‘‘1’’.)
Title IV–E (Foster Care)—Title IV–E foster
care maintenance payments are being paid on
behalf of the child.
Title IV–E (Adoption Subsidy)—Title IV–E
adoption subsidy is being paid on behalf of
the child who is in an adoptive home, but the
adoption has not been legalized.
Title IV–A (Aid to Families With
Dependent Children)—Child is living with
relative(s) whose source of support is an
AFDC payment for the child.
Title IV–D (Child Support)—Child support
funds are being paid to the State agency on
behalf of the child by assignment from the
receiving parent.
Title XIX (Medicaid)—Child is eligible for
and may be receiving assistance under title
XIX.
SSI or Other Social Security Act Benefits—
Child is receiving support under title XVI or
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other Social Security Act titles not included
in this section.
None of the Above—Child is receiving
support only from the title IV–E agency, or
from some other source (Federal or nonFederal) which is not indicated above.
XII. Amount of the Monthly Foster Care
Payment (Regardless of Sources)
Enter the monthly payment paid on behalf
of the child regardless of source (i.e., Federal,
State, county, municipality, tribal, and
private payments). If title IV–E is paid on
behalf of the child the amount indicated
should be the total computable amount. If the
payment made on behalf of the child is not
the same each month, indicate the amount of
the last full monthly payment made during
the reporting period. If no monthly payment
has been made during the period, enter all
zeros.
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Appendix B to Part 1355—Adoption
Data Elements
Section I—Adoption Data Elements
I. General Information
A. Title IV–E agencyll
B. Report Date ll(mo.) ll(day)
ll(yr.)
C. Record Numberll
D. Did the Title IV–E Agency Have any
Involvement in This Adoption? ll
Yes: 1
No: 2
II. Child’s Demographic Information
A. Date of Birth ll(mo) ll(day)
ll(yr.)
B. Sex ll
Male: 1
Female: 2
C. Race/Ethnicity
1. Race
a. American Indian or Alaska Native
b. Asian
c. Black or African American
d. Native Hawaiian or Other Pacific
Islander
e. White
f. Unable to Determine
2. Hispanic or Latino Ethnicityll
Yes: 1
No: 2
Unable to determine: 3
III. Special Needs Status
A. Has the title IV–E agency determined
that this child has special needs? ll
Yes: 1
No: 2
B. If yes, indicate the primary basis for
determining that this child has special needs
ll
Racial/Original Background: 1
Age: 2
Membership in a Sibling Group to be
Placed for Adoption Together: 3
Medical Conditions or Mental, Physical or
Emotional Disabilities: 4
Other: 5
1. If III. B was ‘‘4,’’ indicate with a ‘‘1’’ the
type(s) of disability(ies)
Mental Retardation ll
Visually or Hearing Impaired ll
Physically Disabled ll
Emotionally Disturbed (DSM III) ll
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Other Medically Diagnosed Condition
Requiring Special Care ll
IV. Birth Parents
A. Year of Birth ll
Mother, If known ll
Father (Putative or Legal), if known ll
B. Was the mother married at the time of
the child’s birth? ll
Yes: 1
No: 2
Unable to Determine: 3
V. Court Actions
A. Dates of Termination of Parental Rights
Mother ll(mo.) ll(day) ll(yr.)
Father ll(mo.) ll(day) ll(yr.)
B. Date Adoption Legalized ll(mo.)
ll(day) ll(yr.)
VI. Adoptive Parents
A. Family Structure ll
Married Couple: 1
Unmarried Couple: 2
Single Female: 3
Single Male: 4
B. Year of Birth
Mother (if Applicable) ll
Father (if Applicable) ll
C. Race/Ethnicity
1. Adoptive Mother’s Race (If Applicable)
a. American Indian or Alaska Native
b. Asian
c. Black or African American
d. Native Hawaiian or Other Pacific
Islander
e. White
f. Unable to Determine
2. Hispanic or Latino Ethnicity of Mother
(If Applicable)ll
Yes: 1
No: 2
Unable to Determine: 3
3. Adoptive Father’s Race (If Applicable)
a. American Indian or Alaska Native
b. Asian
c. Black or African American
d. Native Hawaiian or Other Pacific
Islander
e. White
f. Unable to Determine
4. Hispanic or Latino Ethnicity of Father (If
Applicable)ll
Yes: 1
No: 2
Unable to Determine: 3
D. Relationship of Adoptive Parent(s) to
the Child (Indicate with a ‘‘1’’ all that apply)
Stepparent
Other Relative of Child by Birth or
Marriage ll
Foster Parent of Child ll
Non-Relative ll
VII. Placement Information
A. Child Was Placed From ll
Within State/Tribal Service Area: 1
Another State/Tribal Service Area: 2
Another Country: 3
B. Child Was Placed by ll
Public Agency: 1
Private Agency: 2
Tribal Agency: 3
Independent Person: 4
Birth Parent: 5
VIII. Financial Adoption Support
A. Is a monthly financial subsidy being
paid for this child? ll
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Yes: 1
No: 2
B. If yes, the monthly amount ll
C. If VIII. A is yes, is the subsidy paid
under Title IV–E adoption assistance? ll
Yes: 1
No: 2
Section II—Definitions of Instructions for
Adoption Data Elements
Reporting Population
The title IV–E agency must report on all
children who are adopted in the State or
Tribal service area during the reporting
period and in whose adoption the title IV–
E agency has had any involvement. Failure
to report on these adoptions will result in
assessed finding of noncompliance. Reports
on all other adoptions are encouraged but are
voluntary. Therefore, reports on the
following are mandated:
(a) All children adopted who had been in
foster care under the responsibility and care
of the child welfare agency and who were
subsequently adopted whether special needs
or not and whether subsidies are provided or
not;
(b) All special needs children who were
adopted in the State or Tribal service area,
whether or not they were in the public foster
care system prior to their adoption and for
whom non-recurring expenses were
reimbursed; and
(c) All children adopted for whom an
adoption assistance payment or service is
being provided based on arrangements made
by or through the title IV–E agency.
These children must be identified by
answering ‘‘yes’’ to data element I.D.
Children who are reported by the title IV–E
agency, but for whom there has not been any
title IV–E agency involvement, and whose
reporting, therefore, has not been mandated,
are identified by answering ‘‘no’’ to element
I.D.
I. General Information
A. Title IV–E agency—For a State, the U.S.
Postal Service two letter abbreviation for the
State submitting the report. For a Tribal title
IV–E agency, the two letter abbreviation
provided by ACF.
B. Report Date—The last month and the
year for the reporting period.
C. Record Number—The sequential
number which the title IV–E agency uses to
transmit data to the Department of Health
and Human Services (DHHS). The record
number cannot be linked to the child except
at the title IV–E agency level.
D. Did the title IV–E Agency Have Any
Involvement in This Adoption?
Indicate whether the title IV–E agency had
any involvement in this adoption, that is,
whether the adopted child belongs to one of
the following categories:
• A child who had been in foster care
under the responsibility and care of the child
welfare agency and who was subsequently
adopted whether special needs or not and
whether a subsidy was provided;
• A special needs child who was adopted
in the State or Tribal service area, whether
or not he/she was in the public foster care
system prior to his/her adoption and for
whom non-recurring expenses were
reimbursed; or
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• A child for whom an adoption assistance
payment or service is being provided based
on arrangements made by or through the title
IV–E agency.
II. Child’s Demographic Information
A. Date of Birth—Month and year of the
child’s birth. If the child was abandoned or
the date of birth is otherwise unknown, enter
an approximate date of birth.
B. Sex—Indicate as appropriate.
C. Race/Ethnicity
1. Race—In general, a person’s race is
determined by how they define themselves or
by how others define them. In the case of
young children, parents determine the race of
the child. Indicate all races (a-e) that apply
with a ‘‘1.’’ For those that do not apply,
indicate a ‘‘0.’’ Indicate ‘‘f. Unable to
Determine’’ with a 1’’ if it applies and a ‘‘0’’
if it does not.
American Indian or Alaska Native—A
person having origins in any of the original
peoples of North or South America
(including Central America), and who
maintains tribal affiliation or community
attachment.
Asian—A person having origins in any of
the original peoples of the Far East, Southeast
Asia, or the Indian subcontinent including,
for example, Cambodia, China, India, Japan,
Korea, Malaysia, Pakistan, the Philippine
Islands, Thailand, and Vietnam.
Black or African American—A person
having origins in any of the black racial
groups of Africa.
Native Hawaiian or Other Pacific
Islander—A person having origins in any of
the original peoples of Hawaii, Guam, Samoa,
or other Pacific Islands.
White—A person having origins in any of
the original peoples of Europe, the Middle
East, or North Africa.
Unable to Determine—The specific race
category is ‘‘unable to determine’’ because
the child is very young or is severely
disabled and no person is available to
identify the child’s race. ‘‘Unable to
determine’’ is also used if the parent, relative
or guardian is unwilling to identify the
child’s race.
2. Hispanic or Latino Ethnicity—Answer
‘‘yes’’ if the child is of Mexican, Puerto
Rican, Cuban, Central or South American
origin, or a person of other Spanish cultural
origin regardless of race. Whether or not a
person is Hispanic or Latino is determined by
how they define themselves or by how others
define them. In the case of young children,
parents determine the ethnicity of the child.
‘‘Unable to Determine’’ is used because the
child is very young or is severely disabled
and no other person is available to determine
whether or not the child is Hispanic or
Latino. ‘‘Unable to determine’’ is also used if
the parent, relative or guardian is unwilling
to identify the child’s ethnicity.
III. Special Needs Status
A. Has the title IV–E Agency Determined
That the Child has Special Needs? Use the
title IV–E agency definition of special needs
as it pertains to a child eligible for an
adoption subsidy under title IV–E.
B. Primary Factor or Condition for Special
Needs—Indicate only the primary factor or
condition for categorization as special needs
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and only as it is defined by the title IV–E
agency. Racial/Original Background—
Primary condition or factor for special needs
is racial/original background as defined by
the title IV–E agency.
Age—Primary factor or condition for
special needs is age of the child as defined
by the title IV–E agency.
Membership in a Sibling Group to be
Placed for Adoption Together—Primary
factor or condition for special needs is
membership in a sibling group as defined by
the title IV–E agency.
Medical Conditions of Mental, Physical, or
Emotional Disabilities—Primary factor or
condition for special needs is the child’s
medical condition as defined by the title IV–
E agency, but clinically diagnosed by a
qualified professional.
When this is the response to question B,
then item 1 below must be answered.
1. Types of Disabilities—Data are only to
be entered if response to III.B was ‘‘4.’’
Indicate with a ‘‘1’’ the types of disabilities.
Mental Retardation—Significantly
subaverage general cognitive and motor
functioning existing concurrently with
deficits in adaptive behavior manifested
during the developmental period that
adversely affect a child’s/youth’s
socialization and learning.
Visually or Hearing Impaired—Having a
visual impairment that may significantly
affect educational performance or
development; or a hearing impairment,
whether permanent or fluctuating, that
adversely affects educational performance.
Physically Disabled—A physical condition
that adversely affects the child’s day-to-day
motor functioning, such as cerebral palsy,
spina bifida, multiple sclerosis, orthopedic
impairments, and other physical disabilities.
Emotionally Disturbed (DSM III)—A
condition exhibiting one or more of the
following characteristics over a long period
of time and to a marked degree: An inability
to build or maintain satisfactory
interpersonal relationships; inappropriate
types of behavior or feelings under normal
circumstances; a general pervasive mood of
unhappiness or depression; or a tendency to
develop physical symptoms or fears
associated with personal problems. The term
includes persons who are schizophrenic or
autistic. The term does not include persons
who are socially maladjusted, unless it is
determined that they are also seriously
emotionally disturbed. Diagnosis is based on
the Diagnostic and Statistical Manual of
Mental Disorders (Third Edition) (DSM III) or
the most recent edition.
Other Medically Diagnosed Conditions
Requiring Special Care—Conditions other
than those noted above which require special
medical care such as chronic illnesses.
Included are children diagnosed as HIV
positive or with AIDS.
IV. Birth Parents
A. Year of Birth—Enter the year of birth for
both parents, if known. If the child was
abandoned and no information was available
on either one or both parents, leave blank for
the parent(s) for which no information was
available.
B. Was the Mother Married at the Time of
the Child’s Birth?
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939
Indicate whether the mother was married
at time of the child’s birth; include common
law marriage if legal in the State or Tribe. If
the child was abandoned and no information
was available on the mother, enter ‘‘Unable
to Determine.’’
V. Court Actions
A. Dates of Termination of Parental
Rights—Enter the month, day and year that
the court terminated parental rights. If the
parents are known to be deceased, enter the
date of death.
B. Date Adoption Legalized—Enter the date
the court issued the final adoption decree.
VI. Adoptive Parents
A. Family Structure—Select from the four
alternatives—married couple, unmarried
couple, single female, single male—the
category which best describes the nature of
the adoptive parent(s) family structure.
B. Year of Birth—Enter the year of birth for
up to two adoptive parents. If the response
to data element IV.A—Family Structure, was
1 or 2, enter data for two parents. If the
response was 3 or 4, enter data only for the
appropriate parent. If the exact year of birth
is unknown, enter an estimated year of birth.
C. Race/Ethnicity—Indicate the race/
ethnicity for each of the adoptive parent(s).
See instructions and definitions for the race/
ethnicity categories under data element II.C.
Use ‘‘f. Unable to Determine’’ only when a
parent is unwilling to identify his or her race
or ethnicity.
D. Relationship to Adoptive Parent(s)—
Indicate the prior relationship(s) the child
had with the adoptive parent(s).
Stepparent—Spouse of the child’s birth
mother or birth father.
Other Relative of Child by Birth or
Marriage—A relative through the birth
parents by blood or marriage.
Foster Parent of Child—Child was placed
in a non-relative foster family home with a
family which later adopted him or her. The
initial placement could have been for the
purpose of adoption or for the purpose of
foster care.
Non-Relative—Adoptive parent fits into
none of the categories above.
VII. Placement Information
A. Child Was Placed From: Indicate the
location of the individual or agency that had
custody or responsibility for the child at the
time of initiation of adoption proceedings.
Within State or Tribal service area—
Responsibility for the child resided with an
individual or agency within the State or
service area of the Tribal title IV–E agency
filing the report.
Another State or Tribal service area—
Responsibility for the child resided with an
individual or agency in another State, Tribal
service area, or territory of the United States.
Another Country—Immediately prior to the
adoptive placement, the child was residing in
another country and was not a citizen of the
United States.
B. Child Was Placed By: Indicate the
individual or agency which placed the child
for adoption.
Public Agency—A unit of State or local
government.
Private Agency—A for-profit or non-profit
agency or institution.
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Tribal Agency—A unit within one of the
federally recognized Indian Tribes, Indian
Tribal organizations, or Indian Tribal
consortia.
Independent Person—A doctor, a lawyer or
some other individual.
Birth Parent—The parent(s) placed the
child directly with the Adoptive parent(s).
VIII. Adoption Support
A. Is The Child Receiving a Monthly
Subsidy?
Enter ‘‘yes’’ if this child was adopted with
an adoption assistance agreement under
which regular subsidies (Federal, State, or
Tribal) are paid.
B. Monthly Amount—Indicate the monthly
amount of the subsidy. The amount of the
subsidy should be rounded to the nearest
dollar. Indicate ‘‘0’’ if the subsidy includes
only benefits under titles XIX or XX of the
Social Security Act.
C. If VIII.A is ‘‘Yes,’’ is Child Receiving
Title IV–E Adoption Subsidy?
If VIII.A is ‘‘yes,’’ indicate whether the
subsidy is claimed by the title IV–E agency
for reimbursement under title IV–E. Do not
include title IV–E non-recurring costs in this
item.
Appendix C to Part 1355—Electronic
Data Transmission Format
assistance will be provided to negotiate a
method of transmission best suited to the
title IV–E agency’s environment.
There will be four semi-annual electronic
data transmissions from the title IV–E agency
to the Administration for Children and
Families (ACF).
Regardless of the electronic data
transmission methodology selected, certain
criteria must be met by the title IV–E agency:
(1) Records must be written using ASCII
standard character format.
(2) All elements must be comprised of
integer (numeric) value(s). Element character
length specifications refer to the maximum
number of numeric values permitted for that
element. See Appendix D.
(3) All records must be a fixed length. The
Foster Care Detailed Data Elements Record is
150 characters long and the Adoption
Detailed Data Elements Record is 72
characters long. The Foster Care Summary
Data Elements Record and the Adoption
Summary Data Elements Record are each 172
characters long.
(4) All title IV–E agencies must inform the
Department, in writing, of the method of
transfer they intend to use.
Appendix D to Part 1355—Foster Care
and Adoption Record Layouts
A. Foster Care
All AFCARS data to be sent from title IV–
E agencies to the Department are to be in
electronic form. In order to meet this general
specification, the Department will offer as
much flexibility as possible. Technical
b. Data must be supplied for each of the
elements in accordance with these
instructions:
(1) All data must be numeric. Enter the
appropriate value for each element.
(2) Enter date values in year, month and
day order (YYYYMMDD), e.g., 19991030 for
October 30, 1999, or year and month order
(YYYYMM), e.g., 199910 for October 1999.
Leave the element value blank if dates are not
applicable.
(3) For elements 8, 11–15, 26–40, 52, 54
and 59–65, which are ‘‘select all that apply’’
elements, enter a ‘‘1’’ for each element that
applies, enter a zero for non-applicable
elements.
(4) Transaction Date—is a computer
generated date indicating when the datum
(Elements 21 or 55) is entered into the title
IV–E agency’s automated information system.
(5) Report the status of all children in
foster care as of the last day of the reporting
period. Also, provide data for all children
who were discharged from foster care at any
time during the reporting period, or in the
previous reporting period, if not previously
reported.
c. Foster Care Semi-Annual Detailed Data
Elements Record Layout follows:
1. Foster Care Semi-Annual Detailed Data
Elements Record
a. The record will consist of 66 data
elements.
Appendix A data
element
Data element description
01 ......................
02 ......................
03 ......................
I.A .....................
I.B .....................
I.C .....................
04 ......................
05 ......................
06 ......................
07 ......................
08 ......................
08a ....................
08b ....................
08c ....................
08d ....................
08e ....................
08f .....................
09 ......................
10 ......................
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Element No.
I.D .....................
I.E .....................
II.A ....................
II.B ....................
II.C.1 .................
...........................
...........................
...........................
...........................
...........................
...........................
II.C.2 .................
II.D ....................
11
12
13
14
15
16
17
18
19
20
21
22
23
24
25
II.D.1.a ..............
II.D.1.b ..............
II.D.1.c ..............
II.D.1.d ..............
II.D.1.e ..............
II.E.1 .................
II.E.2 .................
III.A.1 ................
III.A.2 ................
III.A.3 ................
III.A.4 ................
III.A.5 ................
III.B.1 ................
III.B.2 ................
IV.A ...................
Title IV–E agency ..............................................................................................................
Report period ending date .................................................................................................
Local Agency FIPS code (county or equivalent jurisdiction) or other ACF assigned
code.
Record number ..................................................................................................................
Date of most recent periodic review .................................................................................
Child’s date of birth ...........................................................................................................
Sex .....................................................................................................................................
Race ..................................................................................................................................
American Indian or Alaska native .....................................................................................
Asian ..................................................................................................................................
Black or African American .................................................................................................
Native Hawaiian or Other Pacific Islander ........................................................................
White ..................................................................................................................................
Unable to Determine .........................................................................................................
Hispanic or Latino Ethnicity ...............................................................................................
Has this child been clinically diagnosed as having a disability(ies) .................................
Indicate each type of disability of the child with a ‘‘1’’ for elements 11–15 and a zero
for disabilities that do not apply.
Mental retardation ..............................................................................................................
Visually or hearing impaired ..............................................................................................
Physically disabled ............................................................................................................
Emotionally disturbed (DSM III) ........................................................................................
Other medically diagnosed condition requiring special care ............................................
Has this child ever been adopted .....................................................................................
If yes, how old was the child when the adoption was legalized?
Date of first removal from home .......................................................................................
Total number of removals from home to date ..................................................................
Date child was discharged from last foster care episode .................................................
Date of latest removal from home .....................................................................................
Removal transaction date ..................................................................................................
Date of placement in current foster care setting ...............................................................
Number of previous placement settings during this removal episode ..............................
Manner of removal from home for current placement episode ........................................
Actions or conditions associated with child’s removal: Indicate with a ‘‘1’’ for elements
26–40 and a zero for conditions that do not apply.
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
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Number of numeric characters
06JAR2
2
6
5
12
8
8
1
............................
1
1
1
1
1
1
1
1
............................
1
1
1
1
1
1
1
8
2
8
8
8
8
2
1
............................
Federal Register / Vol. 77, No. 4 / Friday, January 6, 2012 / Rules and Regulations
941
Appendix A data
element
Data element description
Number of numeric characters
26 ......................
27 ......................
28 ......................
29 ......................
30 ......................
31 ......................
32 ......................
33 ......................
34 ......................
35 ......................
36 ......................
37 ......................
38 ......................
39 ......................
40 ......................
41 ......................
42 ......................
43 ......................
44 ......................
45 ......................
46 ......................
47 ......................
48 ......................
49 ......................
50 ......................
51 ......................
52 ......................
52a ....................
52b ....................
52c ....................
52d ....................
52e ....................
52f .....................
53 ......................
54 ......................
54a ....................
54b ....................
54c ....................
54d ....................
54e ....................
54f .....................
55 ......................
56 ......................
57 ......................
58 ......................
IV.B.1 ................
IV.B.2 ................
IV.B.3 ................
IV.B.4 ................
IV.B.5 ................
IV.B.6 ................
IV.B.7 ................
IV.B.8 ................
IV.B.9 ................
IV.B.10 ..............
IV.B.11 ..............
IV.B.12 ..............
IV.B.13 ..............
IV.B.14 ..............
IV.B.15 ..............
V.A ....................
V.B ....................
VI ......................
VII.A ..................
VII.B.1 ...............
VII.B.2 ...............
VIII.A .................
VIII.B .................
IX.A ...................
IX.B.1 ................
IX.B.2 ................
IX.C.1 ...............
...........................
...........................
...........................
...........................
...........................
...........................
IX.C.2 ...............
IX.C.3 ...............
...........................
...........................
...........................
...........................
...........................
...........................
IX.C.4 ...............
X.A.1 .................
X.A.2 .................
X.B ....................
XI.A ...................
XI.B ...................
XI.C ..................
XI.D ..................
XI.E ...................
XI.F ...................
XI.G ..................
XII .....................
Physical abuse (alleged/reported) .....................................................................................
Sexual abuse (alleged/reported) .......................................................................................
Neglect (alleged/reported) .................................................................................................
Alcohol abuse (parent) ......................................................................................................
Drug abuse (parent) ..........................................................................................................
Alcohol abuse (child) .........................................................................................................
Drug abuse (child) .............................................................................................................
Child’s disability .................................................................................................................
Child’s behavior problem ...................................................................................................
Death of parent(s) .............................................................................................................
Incarceration of parent(s) ..................................................................................................
Caretaker’s inability to cope due to illness or other reasons ............................................
Abandonment ....................................................................................................................
Relinquishment ..................................................................................................................
Inadequate housing ...........................................................................................................
Current placement setting .................................................................................................
Out of State/Tribal service area placement ......................................................................
Most recent case plan goal ...............................................................................................
Caretaker family structure .................................................................................................
Year of birth (1st principal caretaker) ................................................................................
Year of birth (2nd principal caretaker) ..............................................................................
Date of mother’s parental rights termination .....................................................................
Date of legal or putative father’s parental rights ...............................................................
Foster family structure .......................................................................................................
Year of birth (1st foster caretaker) ....................................................................................
Year of birth (2nd foster caretaker) ...................................................................................
Race of 1st foster caretaker ..............................................................................................
American Indian or Alaska Native .....................................................................................
Asian ..................................................................................................................................
Black or Asian American ...................................................................................................
Native Hawaiian or Other Pacific Islander ........................................................................
White ..................................................................................................................................
Unable to Determine .........................................................................................................
Hispanic or Latino ethnicity of 1st foster caretaker ...........................................................
Race of 2nd foster caretaker .............................................................................................
American Indian or Alaska Native .....................................................................................
Asian ..................................................................................................................................
Black or African American .................................................................................................
Native Hawaiian or Other Pacific Islander ........................................................................
White ..................................................................................................................................
Unable to Determine .........................................................................................................
Hispanic or Latino ethnicity of 2nd foster caretaker .........................................................
Date of discharge from foster care ...................................................................................
Foster care discharge transaction date .............................................................................
Reason for discharge ........................................................................................................
Sources of Federal support/assistance for child; indicate with a ‘‘1’’ for elements 58–64
and a zero for sources that do not apply.
Title IV–E (Foster Care) ....................................................................................................
Title IV–E (Adoption Assistance) .......................................................................................
Title IV–A (Aid to Families With Dependent Children) ......................................................
Title IV–D (Child Support) .................................................................................................
Title XIX (Medicaid) ...........................................................................................................
SSI or other Social Security Act benefits ..........................................................................
None of the above .............................................................................................................
Amount of monthly foster care payment (regardless of source) ......................................
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
1
4
4
8
8
1
4
4
............................
1
1
1
1
1
1
1
............................
1
1
1
1
1
1
1
8
8
1
............................
59
60
61
62
63
64
65
66
Total characters ..........................................................................................................
pmangrum on DSK3VPTVN1PROD with RULES2
Element No.
197
......................
......................
......................
......................
......................
......................
......................
......................
2. Foster Care Semi-Annual Summary Data
Elements Record
a. The record will consist of 22 data
elements.
The values for these data elements are
generated by processing all records in the
semi-annual detailed data transmission and
computing the summary values for Elements
1 and 3–22. Element 2 is the semi-annual
report period ending date. In calculating the
age range for the child, the last day of the
reporting period is to be used.
b. Data must be supplied for each of the
elements in accordance with these
instructions:
(1) Enter the appropriate value for each
element.
(2) For all elements where the total is zero,
enter a numeric zero.
(3) Enter date values in year, month order
(YYYYMM), e.g.,199912 for December 1999.
c. Foster Care Semi-Annual Summary Data
Elements Record Layout follows:
Number of
characters
Element No.
Summary data file
01 ......................
Number of records ...........................................................................................................................................
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1
1
1
1
1
1
1
5
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06JAR2
8
942
Federal Register / Vol. 77, No. 4 / Friday, January 6, 2012 / Rules and Regulations
Element No.
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
Number of
characters
Summary data file
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
Report period ending date (YYYYMM) ............................................................................................................
Children in care under 1 year ..........................................................................................................................
Children in care 1 year old ..............................................................................................................................
Children in care 2 years old .............................................................................................................................
Children in care 3 years old .............................................................................................................................
Children in care 4 years old .............................................................................................................................
Children in care 5 years old .............................................................................................................................
Children in care 6 years old .............................................................................................................................
Children in care 7 years old .............................................................................................................................
Children in care 8 years old .............................................................................................................................
Children in care 9 years old .............................................................................................................................
Children in care 10 years old ...........................................................................................................................
Children in care 11 years old ...........................................................................................................................
Children in care 12 years old ...........................................................................................................................
Children in care 13 years old ...........................................................................................................................
Children in care 14 years old ...........................................................................................................................
Children in care 15 years old ...........................................................................................................................
Children in care 16 years old ...........................................................................................................................
Children in care 17 years old ...........................................................................................................................
Children in care 18 years old ...........................................................................................................................
Children in care over 18 years old ..................................................................................................................
6
8
8
8
8
8
8
8
8
8
8
8
8
8
8
8
8
8
8
8
8
Record Length ..........................................................................................................................................
174
B. Adoption
1. Adoption Semi-Annual Detailed Data
Elements Record
a. The record will consist of 37 data
elements.
b. Data must be supplied for each of the
elements in accordance with these
instructions:
(1) Enter the appropriate value for each
element.
(2) Enter date values in year, month and
day order (YYYYMMDD), e.g., 19991030 for
October 30, 1999, or year and month
(YYYYMM), e.g., 199910 for October 1999.
Leave the element value blank if dates are not
applicable.
(3) For elements 7, 11–15, 25, 27 and 29–
32 which are ‘‘select all that apply’’ elements,
enter a ‘‘1’’ for each element that applies;
enter a zero for non-applicable elements.
c. Adoption Semi-Annual Detailed Data
Elements Record Layout follows:
Appendix B data
element
Data element description
Number of numeric characters
01 ......................
02 ......................
03 ......................
04 ......................
05 ......................
06 ......................
07 ......................
07a ....................
07b ....................
07c ....................
07d ....................
07e ....................
07f .....................
08 ......................
09 ......................
10 ......................
pmangrum on DSK3VPTVN1PROD with RULES2
Element No.
I.A .....................
I.B .....................
I.C .....................
I.D .....................
II.A ....................
II.B ....................
II.C.1 .................
...........................
...........................
...........................
...........................
...........................
...........................
II.C.2 .................
III.A ...................
III.B ...................
2
6
6
1
6
1
............................
1
1
1
1
1
1
1
1
1
............................
11 ......................
12 ......................
13 ......................
14 ......................
15 ......................
16 ......................
17 ......................
18 ......................
19 ......................
20 ......................
21 ......................
22 ......................
23 ......................
24 ......................
25 ......................
25a ....................
25b ....................
III.B.1.a .............
III.B.1.b .............
III.B.1.c .............
III.B.1.d .............
III.B.1.e .............
IV.A.1 ................
IV.A.2 ................
IV.B ...................
V.A.1 .................
V.A.2 .................
V.B ....................
VI.A ...................
VI.B.1 ................
VI.B.2 ................
VI.C.1 ...............
...........................
...........................
Title IV–E agency ..............................................................................................................
Report period ending date .................................................................................................
Record number ..................................................................................................................
Title IV–E agency involvement ..........................................................................................
Date of birth .......................................................................................................................
Sex .....................................................................................................................................
Race ..................................................................................................................................
American Indian or Alaska Native .....................................................................................
Asian ..................................................................................................................................
Black or African American .................................................................................................
Native Hawaiian or Other Pacific Islander ........................................................................
White ..................................................................................................................................
Unable to Determine .........................................................................................................
Hispanic or Latino ethnicity ...............................................................................................
Has the title IV–E agency determined that this child has special needs .........................
Primary basis for special needs ........................................................................................
Indicate a primary basis of special needs with a ‘‘1’’ for elements 11–15. Enter a zero
for special needs that do not apply.
Mental retardation ..............................................................................................................
Visually or hearing impaired ..............................................................................................
Physically disabled ............................................................................................................
Emotionally disturbed (DSM III) ........................................................................................
Other medically diagnosed condition requiring special care ............................................
Mother’s year of birth ........................................................................................................
Father’s (Putative or legal) year of birth ...........................................................................
Was the mother married at time of child’s birth ................................................................
Date of mother’s termination of parental rights .................................................................
Date of father’s termination of parental rights ...................................................................
Date adoption legalized .....................................................................................................
Adoptive parents family structure ......................................................................................
Mother’s year of birth (if applicable) ..................................................................................
Father’s year of birth (if applicable) ..................................................................................
Adoptive mother’s race ......................................................................................................
American Indian or Alaska Native .....................................................................................
Asian ..................................................................................................................................
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06JAR2
1
1
1
1
1
4
4
1
8
8
8
1
4
4
............................
1
1
Federal Register / Vol. 77, No. 4 / Friday, January 6, 2012 / Rules and Regulations
943
Element No.
Appendix B data
element
Data element description
Number of numeric characters
25c ....................
25d ....................
25e ....................
25f .....................
26 ......................
27 ......................
27a ....................
27b ....................
27c ....................
27d ....................
27e ....................
27f .....................
28 ......................
...........................
...........................
...........................
...........................
VI.C.2 ...............
VI.C.3 ...............
...........................
...........................
...........................
...........................
...........................
...........................
VI.C.4 ...............
1
1
1
1
1
............................
1
1
1
1
1
1
1
............................
29
30
31
32
33
34
35
36
37
VI.D.1 ...............
VI.D.2 ...............
VI.D.3 ...............
VI.D.4 ...............
VII.A ..................
VII.B ..................
VIII.A .................
VIII.B .................
VIII.C ................
Black or African American .................................................................................................
Native Hawaiian or Other Pacific Islander ........................................................................
White ..................................................................................................................................
Unable to Determine .........................................................................................................
Hispanic or Latino Ethnicity ...............................................................................................
Adoptive father’s race ........................................................................................................
American Indian or Alaska Native .....................................................................................
Asian ..................................................................................................................................
Black or African American .................................................................................................
Native Hawaiian or Other Pacific Islander ........................................................................
White ..................................................................................................................................
Unable to Determine .........................................................................................................
Hispanic or Latino Ethnicity ...............................................................................................
Indicate each type of relationship of adoptive parent(s) to the child with a ‘‘1’’ for elements 29–32. Enter a zero for relationships that do not apply below.
Stepparent .........................................................................................................................
Other relative of child by birth or marriage .......................................................................
Foster parent of child ........................................................................................................
Other non-relative ..............................................................................................................
Child was placed from .......................................................................................................
Child was placed by ..........................................................................................................
Is this child receiving a monthly subsidy ...........................................................................
If VIII.B is ‘‘yes.’’ What is the monthly amount .................................................................
If VII.B is ‘‘yes.’’ Is the child receiving title IV–E adoption assistance? ............................
Total Characters .........................................................................................................
............................
......................
......................
......................
......................
......................
......................
......................
......................
......................
2. Adoption Semi-Annual Summary Data
Elements Record
a. The record will consist of 22 data
elements.
The values for these data elements are
generated by processing all records in the
semi-annual detailed data transmission and
computing the summary values for Elements
1 and 3–22. Element 2 is the semi-annual
report period ending date. In calculating the
age range for the child, the last day of the
reporting period is to be used.
b. Data must be supplied for each of the
elements in accordance with these
instructions:
Element No.
pmangrum on DSK3VPTVN1PROD with RULES2
01
02
03
04
05
06
07
08
09
10
11
12
13
14
15
16
17
18
19
20
21
22
(1) Enter the appropriate value for each
element.
(2) For all elements where the total is zero,
enter a numeric zero.
(3) Enter data values in year, month order
(YYYYMM), e.g., 199912 for December 1999.
c. Adoption Semi-Annual Summary Data
Element Record Layout follows:
Number of
characters
Summary data file
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
......................
1
1
1
1
1
1
1
5
1
Number of records ...........................................................................................................................................
Report period ending date (YYYYMM) ............................................................................................................
Children adopted Under 1 year old .................................................................................................................
Children adopted 1 year old ............................................................................................................................
Children adopted 2 years old ...........................................................................................................................
Children adopted 3 years old ...........................................................................................................................
Children adopted 4 years old ...........................................................................................................................
Children adopted 5 years old ...........................................................................................................................
Children adopted 6 years old ...........................................................................................................................
Children adopted 7 years old ...........................................................................................................................
Children adopted 8 years old ...........................................................................................................................
Children adopted 9 years old ...........................................................................................................................
Children adopted 10 years old .........................................................................................................................
Children adopted 11 years old .........................................................................................................................
Children adopted 12 years old .........................................................................................................................
Children adopted 13 years old .........................................................................................................................
Children adopted 14 years old .........................................................................................................................
Children adopted 15 years old .........................................................................................................................
Children adopted 16 years old .........................................................................................................................
Children adopted 17 years old .........................................................................................................................
Children adopted 18 years old .........................................................................................................................
Children adopted over 18 years old ................................................................................................................
8
6
8
8
8
8
8
8
8
8
8
8
8
8
8
8
8
8
8
8
8
8
Record Length ..........................................................................................................................................
174
Appendix E to Part 1355—Data
Standards
All data submissions will be evaluated to
determine the completeness and internal
consistency of the data. Four types of
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assessments will be conducted on both the
foster care and adoption data submissions.
The results of these assessments will
determine the applicability of a substantial
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noncompliance determination with the title
IV–E plan.
The four types of assessments are:
• Comparisons of the detailed data to
summary data;
E:\FR\FM\06JAR2.SGM
06JAR2
944
Federal Register / Vol. 77, No. 4 / Friday, January 6, 2012 / Rules and Regulations
pmangrum on DSK3VPTVN1PROD with RULES2
• Internal consistency checks of the
detailed data;
• An assessment of the status of missing
data; and
• Timeliness, an assessment of how
current the submitted data are.
A. Foster Care
1. Summary Data Elements Submission
Standards
A summary file must accompany the
Detailed Data Elements submission. Both
transmissions must be sent through
electronic means (see appendix C for details).
This summary will be used to verify basic
counts of records on the detailed data
received.
a. The summary file must be a discrete file
separate from the semi-annual reporting
period detailed data file. The record layout
for the summary file is included in appendix
D. section A.2.c. All data must be included.
If the value for a numeric field is zero, zero
must be entered.
b. The Department will develop a second
summary file by computing the values from
the detailed data file received from the title
IV–E agency. The two summary files (the one
submitted by the title IV–E agency and the
one created during Federal processing) will
be compared, field by field. If the two files
match, further validation of the detailed data
elements will commence. If the two summary
files do not match, we will assume that there
has been an error in transmission and will
request a retransmission from the title IV–E
agency within 24 hours of the time the title
IV–E agency has been notified. In addition,
a log of these occurrences will be kept as a
means of cataloging problems and offering
suggestions on improved procedures.
2. Detailed Data File Submission Standards
a. Internal Consistency Validations.
Internal consistency validations involve
evaluating the logical relationships between
data elements in a detailed record. For
example, a child cannot be discharged from
foster care before he or she has been removed
from his or her home. Thus, the Date of
Latest Removal From Home data element
must be a date prior to the Date of Discharge.
If this is not the case, an internal
inconsistency will be detected and an ‘‘error’’
indicated in the detailed data file.
A number of data elements have ‘‘if
applicable’’ contingency relationships with
other data elements in the detailed record.
For example, if the Foster Family Structure
has only a single parent, then the appropriate
sex of the Single Female/Male element in the
‘‘Year of Birth’’ and ‘‘Race/Origin’’ elements
must be completed and the ‘‘non-applicable’’
fields for these elements are to be filled with
zero’s or, for dates, left blank.
The internal consistency validations that
will be performed on the foster care detailed
data are as follows:
(1) The Local Agency must be the county
or a county equivalent unit which has
responsibility for the case. The 5 digit
Federal Information Processing Standard
(FIPS) or other ACF assigned code must be
used.
(2) If Date of Latest Removal From Home
(Element 21) is less than nine months prior
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15:02 Jan 05, 2012
Jkt 226001
to the Report Period Ending Date (Element 2)
then the Date of Most Recent Periodic Review
(Element 5) may be left blank.
(3) If Date of Latest Removal From Home
(Element 21) is greater than nine months
from Report Date (Element 2) then the Date
of Most Recent Periodic Review (Element 5)
must not be more than nine months prior to
the Report Date (Element 2).
(4) If a child is identified as having a
disability(ies) (Element 10), at least one Type
of Disability Condition (Elements 11–15)
must be indicated. Enter a zero (0) for
disabilities that do not apply.
(5) If the Total Number of Removals From
Home to Date (Element 19) is one (1), the
Date Child was Discharged From Last Foster
Care Episode (Element 20) must be blank.
(6) If the Total Number of Removals From
Home to Date (Element 19) is two or more,
then the Date Child was Discharged From
Last Foster Care Episode (Element 20) must
not be blank.
(7) If Date Child was Discharged From Last
Foster Care Episode (Element 20) exists, then
this date must be a date prior to the Date of
Latest Removal From Home (Element 21).
(8) The Date of Latest Removal From Home
(Element 21) must be prior to the Date of
Placement in Current Foster Care Setting
(Element 23).
(9) At least one element between elements
26 and 40 must be answered by selecting a
‘‘1’’. Enter a zero (0) for conditions that do
not apply.
(10) If Current Placement Setting (Element
41) is a value that indicates that the child is
not in a foster family or a pre-adoptive home,
then elements 49–55 must be zero (0).
(11) At least one element between elements
59 and 65 must be answered by selecting a
‘‘1’’. Enter a zero for sources that do not
apply.
(12) If the answer to the question, ‘‘Has this
child ever been adopted?’’ (Element 16) is
‘‘1’’ (Yes), then the question, ‘‘How old was
the child when the adoption was legalized?’’
(Element 17) must have an answer from ‘‘1’’
to ‘‘5.’’
(13) If the Date of Most Recent Periodic
Review (Element 5) is not blank, then
Manner of Removal From Home for Current
Placement Episode (Element 25) cannot be
option 3, ‘‘Not Yet Determined.’’
(14) If Reason for Discharge (Element 58)
is option 3, ‘‘Adoption,’’ then Parental Rights
Termination dates (Elements 46 and 47) must
not be blank.
(15) If the Date of Latest Removal From
Home (Element 21) is present, the Date of
Latest Removal From Home Transaction Date
(Element 22) must be present and must be
later than or equal to the Date of Latest
Removal From Home (Element 21).
(16) If the Date of Discharge From Foster
Care (Element 56) is present, the Date of
Discharge From Foster Care Transaction Date
(Element 57) must be present and must be
later than or equal to the Date of Discharge
From Foster Care (Element 56).
(17) If the Date of Discharge From Foster
Care (Element 56) is present, it must be after
the Date of Latest Removal From Home
(Element 21).
(18) In Elements 8, 52, and 54, race
categories (‘‘a’’ through ‘‘e’’) and ‘‘f. Unable
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to Determine’’ cannot be coded ‘‘0,’’ for it
does not apply. If any of the race categories
apply and are coded as ‘‘1’’ then ‘‘f. Unable
to Determine’’ cannot also apply.
b. Out-of-Range Standards.
Out-of-range standards relate to the
occurrence of values in response to data
elements that exceed, either positively or
negatively, the acceptable range of responses
to the question. For example, if the
acceptable responses to the element, Sex of
the Adoptive Child, is ‘‘1’’ for a male and ‘‘2’’
for a female, but the datum provided in the
element is ‘‘3,’’ this represents an out-ofrange response situation.
Out-of-range comparisons will be made for
all elements. The acceptable values are
described in Appendix A, Section I.
3. Missing Data Standards
The term ‘‘missing data’’ refers to instances
where data for an element are required but
are not present in the submission. Data
elements with values of ‘‘Unable to
Determine,’’ ‘‘Not Yet Determined’’ or which
are not applicable, are not considered
missing.
a. In addition, the following situations will
result in converting data values to a missing
data status:
(1) Data elements whose values fail
internal consistency validations as outlined
in A.2.a.(1)–(18) above, and
(2) Data elements whose values are out-ofrange.
b. The maximum amount of allowable
missing data is dependent on the data
elements as described below:
(1) No Missing Data.
The data for the elements listed below
must be present in all records in the
submission. If any record contains missing
data for any of these elements, the entire
submission will be considered missing and
processing will not proceed.
Element
No.
Element name
01 .............
02 .............
03 .............
Title IV–E agency.
Report date.
Local agency FIPS code or other
ACF assigned code.
Record number.
04 .............
(2) Less Than Ten Percent Missing Data.
The data for the elements listed below
cannot have ten percent or more missing data
without incurring a finding of substantial
noncompliance with the title IV–E plan.
Element
No.
Element description
05 .............
Date of most recent periodic, review.
Child’s date of birth.
Child’s sex.
Child’s race.
Child’s Hispanic or Latino Ethnicity.
Does child have a disability(ies)?
Type of disability (at least one
must be selected).
Has child been adopted?
How old was child when adoption was legalized?
06
07
08
09
.............
.............
.............
.............
10 .............
11–15 ......
16 .............
17 .............
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Element
No.
Element description
18 .............
19 .............
Date of first removal from home.
Total number of removals from
home to date.
Date child was discharged from
last foster care.
Date of latest removal from
home.
Removal transaction date.
Date of placement in current foster care setting.
Number of previous placement
settings during this removal
episode.
Manner of removal from home
for current placement episode.
Actions or conditions associated
with child’s removal (at least
one must be selected).
Current placement setting.
Out of State/Tribal service area
placement.
Most recent case plan goal.
Caretaker family structure.
Year of birth of 1st principal
caretaker.
Year of birth of 2nd principal
caretaker.
Date of mother’s parental rights
termination.
Legal or putative father parental
rights termination date.
Foster family structure.
Year of birth of 1st foster caretaker.
Year of birth of 2nd foster caretaker.
Race of 1st foster caretaker.
Hispanic or Latino Ethnicity of
1st foster caretaker.
Race of 2nd foster caretaker.
Hispanic or Latino Ethnicity of
2nd foster caretaker.
Date of discharge from foster
care.
Foster care discharge transaction date.
Reason for discharge.
Sources of Federal support/assistance for child (at least one
must be selected).
Amount of monthly foster care
payment
(regardless
of
source).
20 .............
21 .............
22 .............
23 .............
24 .............
25 .............
26–40 ......
41 .............
42 .............
43 .............
44 .............
45 .............
46 .............
47 .............
48 .............
49 .............
50 .............
51 .............
52 .............
53 .............
54 .............
55 .............
56 .............
57 .............
58 .............
59–65 ......
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66 .............
c. Determination of substantial
noncompliance with the title IV–E plan.
Missing data are a major factor in
determining substantial noncompliance with
the title IV–E plan.
(1) Selection Rules.
All data elements will be used in
calculating missing data unless one of the
following limiting rules applies to the
detailed case record.
(a) If Date of Latest Removal From Home
(Element 21) and the Date of Discharge From
Foster Care (Element 56) is less than 30 days,
then the following date elements are the only
ones to be used in evaluating the missing
data provisions for purposes of a
determination of substantial noncompliance
with the title IV–E plan:
Elements
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1 to 4
6 to 9
21 and 22
41 and 42
56 to 58
(b) If Date of Latest Removal From Home
(Element 18) is prior to October 1, 1995, then
the following data elements are the only ones
to be used in evaluating the missing data
provisions for purposes of a determination of
substantial noncompliance with the title IV–
E plan:
Elements
1 to 4
6 to 9
21 and 22
41 and 43
56 to 58
(2) Determination of substantial
noncompliance with the title IV–E plan.
The percentage calculation will be
performed for each data element. The total
number of detailed records that are included
by the selection rules in 3.c.(1), will serve as
the denominator. The number of missing data
occurrences for each element will serve as
the numerator. The result will be multiplied
by one hundred. The determination of
substantial noncompliance with the title IV–
E plan is made when any one element’s
missing data percentage is ten percent or
greater.
4. Timeliness of Foster Care Data Reports
Title IV–E agencies are required to submit
reports within 45 calendar days after the end
of the semi-annual reporting period.
Computer generated transaction dates
indicate the date when key foster care events
are entered into the title IV–E agency’s
computer system. The intent of these
transaction dates is to ensure that
information about the status of children in
foster care is recorded and, thus, reported in
a timely manner.
a. Date of Latest Removal From Home.
The Date of Latest Removal From Home
Transaction Date (Element 22) must not be
more than 60 days after the Date of Latest
Removal From Home (Element 21) event.
b. The Date of Discharge From Foster Care
Transaction Data (Element 57) must not be
more than 60 days after the Date of Discharge
From Foster Care (Element 56) event.
For purposes of a determination of
substantial noncompliance with the title IV–
E plan, ninety percent of the records in a
detailed data submission, must indicate that:
(1) The difference between the Date of
Latest Removal From Home Transaction Date
(Element 22) and the Date of Latest Removal
From Home (Element 21) event is 60 days or
less;
and, where applicable,
(2) The difference between the Date of
Discharge From Foster Care Transaction Date
(Element 57), and the Date of Discharge From
Foster Care (Element 56) event is 60 days or
less.
B. Adoption
1. Summary Data Elements File Submission
Standards
A summary file must accompany the
detailed Data Elements File submission. Both
files must be sent through electronic means
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(see appendix C for details). This summary
will be used to verify the completeness of the
Detailed Data File submission received.
a. The summary file should be a discrete
file separate from the semi-annual reporting
period detailed data file. The record layout
for the summary file is included in appendix
D, section B.2.c. All data must be included.
If the value for a numeric field is zero, zero
must be entered.
b. The Department will develop a second
summary file by computing the values from
the detailed data file received from the title
IV–E agency. The two summary files (the one
submitted by the title IV–E agency and the
one created during Federal processing) will
be compared, field by field. If the two files
match, further validation of the detailed data
elements will commence. (See section B.2
below.) If the two summary files do not
match, we will assume that there has been an
error in transmission and will request a
retransmission from the title IV–E agency
within 24 hours of the time the title IV–E
agency has been notified. In addition, a log
of these occurrences will be kept as a means
of cataloging problems and offering
suggestions on improved procedures.
2. Detailed Data Elements File Submission
Standards
a. Internal Consistency Validations
Internal consistency validations involve
evaluating the logical relationships between
data elements in a detailed record. For
example, an adoption cannot be finalized
until parental rights have been terminated.
Thus, the dates of Mother/Father
Termination of Parental Rights, elements
must be present and the dates must be prior
to the ‘‘Date Adoption Legalized.’’ If this is
not the case, an internal inconsistency will
be detected and an ‘‘error’’ indicated in the
detailed data file.
A number of data elements have ‘‘if
applicable’’ contingency relationships with
other data elements in the detailed record.
For example, if the Adoptive Parent is single,
then the appropriate sex of the single female/
male element in the ‘‘Family Structure,’’
‘‘Year of Birth’’ and ‘‘Race/Origin’’ elements
must be completed and the ‘‘non-applicable’’
fields for these elements are to be filled with
zeros or left blank.
The internal consistency validations that
will be performed on the adoption detailed
data are as follows:
(1) The Child’s Date of Birth (Element 5)
must be later than both the Mother’s and
Father’s Year of Birth (Elements 16 and 17)
unless either of these is unknown.)
(2) If the title IV–E agency has determined
that the child is a special needs child
(Element 9), then ‘‘the primary basis for
determining that this child has special
needs’’ (Element 10) must be completed. If
‘‘the primary basis for determining that this
child has special needs’’ (Element 10) is
answered by option ‘‘4,’’ then at least one
element between Elements 11–15, ‘‘Type of
Disability,’’ must be selected. Enter a zero (0)
for disabilities that do not apply.
(3) Dates of Parental Rights Termination
(Elements 19 and 20) must be completed and
must be prior to the Date Adoption Legalized
(Element 21).
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(4) If ‘‘Is a monthly financial subsidy being
paid for this child’’ (Element 35) is answered
negatively, ‘‘2’’, then Element 36 must be
zero (0) and ‘‘Is the subsidy paid under Title
IV–E adoption assistance’’ (Element 37) must
be a ‘‘2’’.
(5) If the ‘‘Child Was Placed By’’ (Element
34) is answered with option 1, ‘‘Public
Agency,’’ then the question, ‘‘Did the title
IV–E Agency Have any Involvement in This
Adoption’’ (Element 4) must be ‘‘1’’.
(6) If the ‘‘Relationship of Adoptive
Parent(s) to the Child,’’ ‘‘Foster Parent of
Child’’ (Element 31) is selected, then the
question, ‘‘Did the title IV–E Agency Have
any Involvement in This Adoption’’ (Element
4) must be ‘‘1’’.
(7) If ‘‘Is a monthly financial subsidy being
paid for this child?’’ (Element 35) answered
‘‘1,’’ then the question, ‘‘Did the title IV–E
Agency Have any Involvement in This
Adoption’’ (Element 4) must be ‘‘1.’’
(8) If the ‘‘Family Structure’’ (Element 22)
is option 3, Single Female, then the Mother’s
Year of Birth (Element 23), the ‘‘Adoptive
Mother’s Race’’ (Element 25) and ‘‘Hispanic
or Latino Ethnicity’’ (Element 26) must be
completed. Similarly, if the ‘‘Family
Structure’’ (Element 22) is option 4, Single
Male, then the Father’s Year of Birth
(Element 24), the Adoptive Father’s Race’’
(Element 27) and ‘‘Hispanic or Latino
Ethnicity’’ (Element 28) must be completed.
If the ‘‘Family Structure’’ (Element 22) is
option 1 or 2, then both Mother’s and
Father’s ‘‘Year of Birth,’’ ‘‘Race’’ and
‘‘Hispanic or Latino Ethnicity’’ must be
completed.
(9) In Elements 7, 25, and 27, race
categories (‘‘a’’ through ‘‘e’’) and ‘‘f. Unable
to Determine’’ cannot be coded ‘‘0,’’ for it
does not apply. If any of the race categories
apply and are coded as ‘‘1’’ then ‘‘f. Unable
to Determine’’ cannot also apply.
b. Out-of-Range Standards
Out-of-range standards relate to the
occurrence of values in response to data
elements that exceed, either positively or
negatively, the acceptable range of responses
to the question. For example, if the
acceptable response to the element, Sex of
the Adoptive Child, is ‘‘1’’ for a male and ‘‘2’’
for a female, but the datum provided in the
element is ‘‘3,’’ this represents an out-ofrange response situation.
Out-of-range comparisons will be made for
all elements. The acceptable values are
described in appendix B, section I.
3. Missing Data Standards
The term ‘‘missing data’’ refers to instances
where data for an element are required but
are not present in the submission. Data
elements with values of ‘‘Unable to
Determine,’’ ‘‘Other’’ or which are not
applicable, are not considered missing.
a. In addition, the following situations will
result in converting data values to a missing
data status:
(1) Data elements whose values fail
internal consistency validations as outlined
in 2.a.(1)–(9) above, and
(2) Data elements whose values are out-ofrange.
b. The maximum amount of allowable
missing data is dependent on the data
elements as described below.
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(1) No Missing Data.
The data for the elements listed below
must be present in all records in the
submission. If any record contains missing
data for any of these elements, the entire
submission will be considered missing and
processing will not proceed.
Element
No.
01
02
03
04
.............
.............
.............
.............
Element name
Title IV–E agency.
Report date.
Record number.
Did the title IV–e agency have
any involvement in this adoption?
(2) Less Than Ten Percent Missing Data
The data for the elements listed below
cannot have ten percent or more missing data
without incurring a determination of
substantial noncompliance with the title IV–
E plan.
Element
No.
05
06
07
08
.............
.............
.............
.............
09 .............
10 .............
11–15 ......
16 .............
17 .............
18 .............
19 .............
20 .............
21 .............
22 .............
23
24
25
26
.............
.............
.............
.............
27 .............
28 .............
29–32 ......
33 .............
34 .............
35 .............
36 .............
37 .............
Element name
Child’s date of birth.
Child’s sex.
Child’s race.
Is the child of Hispanic or Latino
ethnicity?
Does child have special needs?
Indicate the primary basis for determining that the child has
special needs. (If Element 09
is yes, you must answer this
question.)
Type of special need (at least
one must be selected.)
Mother’s year of birth.
Father’s year of birth.
Was mother married at time of
child’s birth?
Date of mother’s termination of
parental rights.
Date of father’s termination of
parental rights.
Date adoption legalized.
Adoptive parent(s)’ family structure.
Mother’s year of birth.
Father’s year of birth.
Adoptive mother’s race.
Hispanic or Latino ethnicity of
mother.
Adoptive father’s race.
Hispanic or Latino ethnicity of father.
Relationship of adoptive parent(s) to child (at least one
must be selected.)
Child placed from.
Child placed by.
Is a monthly financial subsidy
paid for this child?
If yes, the monthly amount is?
Is the child receiving Title IV–E
adoption assistance? (If Element 35 is a ‘‘1’’ (Yes) an answer to this question is required.)
c. Determination of substantial
noncompliance with the title IV–E plan.
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Missing data are a major factor in
determining substantial noncompliance with
the title IV–E plan.
(1) Selection Rules.
Only the adoption records with a ‘‘1’’ (Yes)
answer in Element 4, ‘‘Did the title IV–E
Agency have any Involvement in this
adoption’’ will be subject to a determination
of substantial noncompliance with the title
IV–E plan.
(2) Determination of substantial
noncompliance with the title IV–E plan.
The percentage calculation will be
performed for each data element. The total
number of detailed records will serve as the
denominator and the number of missing data
occurrences for each element will serve as
the numerator. The result will be multiplied
by one hundred. The determination of
substantial noncompliance with the title IV–
E plan is made when any one element’s
missing data percentage is ten percent or
greater.
4. Timeliness of Adoption Reports
The title IV–E agency is required to submit
reports within 45 calendar days after the end
of the semi-annual reporting period.
For determinations of substantial
noncompliance with the title IV–E plan
purposes, however, no specific timeliness of
data standards apply. Data on adoptions
should be submitted as promptly after
finalization as possible.
The desired approach to reporting
adoption data is that adoptions should be
reported during the reporting period in
which the adoption is legalized. Or, at the
title IV–E agency’s option, they can be
reported in the following reporting period if
the adoption is legalized within the last 60
days of the reporting period.
Negative reports must be submitted for any
semi-annual period in which no adoptions
have been legalized.
PART 1356—REQUIREMENTS
APPLICABLE TO TITLE IV–E
23. The authority citation for part
1356 continues to read as follows:
■
Authority: 42 U.S.C. 620 et seq., 42 U.S.C.
670 et seq., 42 U.S.C. 1302.
24. Revise § 1356.10 to read as
follows:
■
§ 1356.10
Scope.
This part applies to title IV–E agency
programs for foster care maintenance
payments, adoption assistance
payments, related foster care and
adoption administrative and training
expenditures, and the independent
living services program under title IV–
E of the Act.
■ 25. Revise § 1356.20 to read as
follows:
§ 1356.20 Title IV–E plan document and
submission requirements.
(a) To be in compliance with the title
IV–E plan requirements and to be
eligible to receive Federal financial
participation (FFP) in the costs of foster
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care maintenance payments and
adoption assistance under this part, a
title IV–E agency must have a plan
approved by the Secretary that meets
the requirements of this part, part 1355,
section 471(a) of the Act and for Tribal
title IV–E agencies, section 479B(c) of
the Act. The title IV–E plan must be
submitted to the appropriate Regional
Office, ACYF, in a form determined by
the title IV–E agency.
(b) Failure by a title IV–E agency to
comply with the requirements and
standards for the data reporting system
for foster care and adoption (§ 1355.40
of this chapter) shall be considered a
substantial failure by the title IV–E
agency in complying with the plan.
(c) The following procedures for
approval of plans and amendments
apply to the title IV–E program:
(1) Plan. The plan consists of written
documents furnished by the title IV–E
agency to cover its program under part
E of title IV. After approval of the
original plan by the Commissioner,
ACYF, all relevant changes, required by
new statutes, rules, regulations,
interpretations, and court decisions, are
required to be submitted currently so
that ACYF may determine whether the
plan continues to meet Federal
requirements and policies.
(2) Submittal. Plans and revisions of
the plans are submitted first to the State
governor or his/her designee, or the
Tribal leader or his/her designee for
review and then to the regional office,
ACYF. Title IV–E agencies are
encouraged to obtain consultation of the
regional staff when a plan is in process
of preparation or revision.
(3) Review. Staff in the regional offices
are responsible for review of plans and
amendments. They also initiate
discussion with the title IV–E agency on
clarification of significant aspects of the
plan which come to their attention in
the course of this review. Plan material
on which the regional staff has
questions concerning the application of
Federal policy is referred with
recommendations as required to the
central office for technical assistance.
Comments and suggestions, including
those of consultants in specified areas,
may be prepared by the central office for
use by the regional staff in negotiations
with the title IV–E agency.
(4) Action. ACYF has the authority to
approve plans and amendments thereto
which provide for the administration of
foster care maintenance payments and
adoption assistance programs under
section 471 of the Act. The
Commissioner, ACYF, retains the
authority to determine that proposed
plan material is not approvable, or that
a previously approved plan no longer
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meets the requirements for approval.
The Regional Office, ACYF, formally
notifies the title IV–E agency of the
actions taken on plans or revisions.
(5) Basis for approval. Determinations
as to whether plans (including plan
amendments and administrative
practice under the plans) originally
meet or continue to meet, the
requirements for approval are based on
relevant Federal statutes and
regulations.
(6) Prompt approval of plans. The
determination as to whether a plan
submitted for approval conforms to the
requirements for approval under the Act
and regulations issued pursuant thereto
shall be made promptly and not later
than the 45th day following the date on
which the plan submittal is received in
the regional office, unless the Regional
Office, ACYF, has secured from the title
IV–E agency a written agreement to
extend that period.
(7) Prompt approval of plan
amendments. Any amendment of an
approved plan may, at the option of the
title IV–E agency, be considered as a
submission of a new plan. If the title IV–
E agency requests that such amendment
be so considered, the determination as
to its conformity with the requirements
for approval shall be made promptly
and not later than the 45th day
following the date on which such a
request is received in the regional office
with respect to an amendment that has
been received in such office, unless the
Regional Office, ACYF, has secured
from the title IV–E agency a written
agreement to extend that period. In
absence of request by a title IV–E agency
that an amendment of an approved plan
shall be considered as a submission of
a new plan, the procedures under
§ 201.6(a) and (b) shall be applicable.
(8) Effective date. The effective date of
a new plan may not be earlier than the
first day of the calendar quarter in
which an approvable plan is submitted,
and with respect to expenditures for
assistance under such plan, may not be
earlier than the first day on which the
plan is in operation on a statewide basis
or, in the case of a Tribal title IV–E
agency, in operation in the Tribal title
IV–E agency’s entire service area. The
same applies with respect to plan
amendments.
(d) Once the title IV–E plan has been
submitted and approved, it shall remain
in effect until amendments are required.
An amendment is required if there is
any significant and relevant change in
the information or assurances in the
plan, or the organization, policies or
operations described in the plan.
■ 26. In 1356.21 revise paragraphs (a),
(b) introductory text, (b)(2)(i), (b)(3)
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introductory text, (b)(3)(i), the first
sentence of (c), paragraphs (d)(2) and
(3), paragraph (f), the first sentence of
paragraph (g) introductory text, (g)(1)
and (2), the second sentence of (g)(5),
(h)(1), (h)(3) introductory text,
paragraphs (i)(1) introductory text,
(i)(1)(i) introductory text, (i)(1)(i)(D), the
first sentence of (i)(1)(ii), paragraphs
(i)(2) introductory text, (i)(2)(i), the first
sentence of (i)(2)(ii), paragraphs
(i)(2)(iii), (i)(3), (k)(2), paragraph (l)
introductory text, paragraph (m)
introductory text, paragraph (n) and
paragraph (o) to read as follows:
§ 1356.21 Foster care maintenance
payments program implementation
requirements.
(a) Statutory and regulatory
requirements of the Federal foster care
program. To implement the foster care
maintenance payments program
provisions of the title IV–E plan and to
be eligible to receive Federal financial
participation (FFP) for foster care
maintenance payments under this part,
a title IV–E agency must meet the
requirements of this section, 45 CFR
1356.22, 45 CFR 1356.30, and sections
472, 475(1), 475(4), 475(5), 475(6), and
for a Tribal title IV–E agency section
479(B)(c)(1)(C)(ii)(II) of the Act.
(b) Reasonable efforts. The title IV–E
agency must make reasonable efforts to
maintain the family unit and prevent
the unnecessary removal of a child from
his/her home, as long as the child’s
safety is assured; to effect the safe
reunification of the child and family (if
temporary out-of-home placement is
necessary to ensure the immediate
safety of the child); and to make and
finalize alternate permanency plans in a
timely manner when reunification is not
appropriate or possible. In order to
satisfy the ‘‘reasonable efforts’’
requirements of section 471(a)(15) (as
implemented through section 472(a)(2)
of the Act), the title IV–E agency must
meet the requirements of paragraphs (b)
and (d) of this section. In determining
reasonable efforts to be made with
respect to a child and in making such
reasonable efforts, the child’s health and
safety must be the paramount concern.
*
*
*
*
*
(2) * * *
(i) The title IV–E agency must obtain
a judicial determination that it has made
reasonable efforts to finalize the
permanency plan that is in effect
(whether the plan is reunification,
adoption, legal guardianship, placement
with a fit and willing relative, or
placement in another planned
permanent living arrangement) within
twelve months of the date the child is
considered to have entered foster care in
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accordance with the definition at
§ 1355.20 of this part, and at least once
every twelve months thereafter while
the child is in foster care.
*
*
*
*
*
(3) Circumstances in which
reasonable efforts are not required to
prevent a child’s removal from home or
to reunify the child and family.
Reasonable efforts to prevent a child’s
removal from home or to reunify the
child and family are not required if the
title IV–E agency obtains a judicial
determination that such efforts are not
required because:
(i) A court of competent jurisdiction
has determined that the parent has
subjected the child to aggravated
circumstances (as defined in State, or
for a Tribal title IV–E agency, Tribal
law, which definition may include but
need not be limited to abandonment,
torture, chronic abuse, and sexual
abuse);
*
*
*
*
*
(c) Contrary to the welfare
determination. Under section 472(a)(2)
of the Act, a child’s removal from the
home must have been the result of a
judicial determination (unless the child
was removed pursuant to a voluntary
placement agreement) to the effect that
continuation of residence in the home
would be contrary to the welfare, or that
placement would be in the best interest,
of the child. * * *
(d) * * *
(2) Neither affidavits nor nunc pro
tunc orders will be accepted as
verification documentation in support
of reasonable efforts and contrary to the
welfare judicial determinations except
for a Tribal title IV–E agency for the first
12 months that agency’s title IV–E plan
is in effect as provided for in section
479B(c)(1)(C)(ii)(I) of the Act.
(3) Court orders that reference State or
Tribal law to substantiate judicial
determinations are not acceptable, even
if such law provides that a removal
must be based on a judicial
determination that remaining in the
home would be contrary to the child’s
welfare or that removal can only be
ordered after reasonable efforts have
been made.
*
*
*
*
*
(f) Case review system. In order to
satisfy the provisions of section
471(a)(16) of the Act regarding a case
review system, each title IV–E agency’s
case review system must meet the
requirements of sections 475(5) and
475(6) of the Act.
(g) * * * In order to satisfy the case
plan requirements of sections
471(a)(16), 475(1) and 475(5)(A) and (D)
of the Act, the title IV–E agency must
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promulgate policy materials and
instructions for use by staff to determine
the appropriateness of and necessity for
the foster care placement of the child.
* * *
(1) Be a written document, which is
a discrete part of the case record, in a
format determined by the title IV–E
agency, which is developed jointly with
the parent(s) or guardian of the child in
foster care; and
(2) Be developed within a reasonable
period, to be established by the title IV–
E agency, but in no event later than 60
days from the child’s removal from the
home pursuant to paragraph (k) of this
section;
*
*
*
*
*
(5) * * * When the case plan goal is
adoption, at a minimum, such
documentation shall include childspecific recruitment efforts such as the
use of State, Tribal, regional, and
national adoption exchanges including
electronic exchange systems.
(h) * * *
(1) To meet the requirements of the
permanency hearing, the title IV–E
agency must, among other requirements,
comply with section 475(5)(C) of the
Act.
*
*
*
*
*
(3) If the title IV–E agency concludes,
after considering reunification,
adoption, legal guardianship, or
permanent placement with a fit and
willing relative, that the most
appropriate permanency plan for a child
is placement in another planned
permanent living arrangement, the title
IV–E agency must document to the court
the compelling reason for the alternate
plan. Examples of a compelling reason
for establishing such a permanency plan
may include:
(i) * * *
(1) Subject to the exceptions in
paragraph (i)(2) of this section, the title
IV–E agency must file a petition (or, if
such a petition has been filed by another
party, seek to be joined as a party to the
petition) to terminate the parental rights
of a parent(s):
(i) Whose child has been in foster care
under the responsibility of the title IV–
E agency for 15 of the most recent 22
months. The petition must be filed by
the end of the child’s fifteenth month in
foster care. In calculating when to file a
petition for termination of parental
rights, the title IV–E agency:
*
*
*
*
*
(D) Need only apply section 475(5)(E)
of the Act to a child once if the title IV–
E agency does not file a petition because
one of the exceptions at paragraph (i)(2)
of this section applies;
(ii) Whose child has been determined
by a court of competent jurisdiction to
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be an abandoned infant (as defined
under State or for a Tribal title IV–E
agency, Tribal law). * * *
*
*
*
*
*
(2) The title IV–E agency may elect
not to file or join a petition to terminate
the parental rights of a parent per
paragraph (i)(1) of this section if:
(i) At the option of the title IV–E
agency, the child is being cared for by
a relative;
(ii) The title IV–E agency has
documented in the case plan (which
must be available for court review) a
compelling reason for determining that
filing such a petition would not be in
the best interests of the individual child.
* * *
(iii) The title IV–E agency has not
provided to the family, consistent with
the time period in the case plan,
services that the title IV–E agency
deems necessary for the safe return of
the child to the home, when reasonable
efforts to reunify the family are
required.
(3) When the title IV–E agency files or
joins a petition to terminate parental
rights in accordance with paragraph
(i)(1) of this section, it must
concurrently begin to identify, recruit,
process, and approve a qualified
adoptive family for the child.
*
*
*
*
*
(k) * * *
(2) A removal has not occurred in
situations where legal custody is
removed from the parent or relative and
the child remains with the same relative
in that home under supervision by the
title IV–E agency.
*
*
*
*
*
(l) Living with a specified relative. For
purposes of meeting the requirements
for living with a specified relative prior
to removal from the home under section
472(a)(1) of the Act, all of the conditions
under section 472(a)(3), and for Tribal
title IV–E agencies section
479B(c)(1)(C)(ii)(II) of the Act, one of the
two following situations must apply:
*
*
*
*
*
(m) Review of payments and licensing
standards. In meeting the requirements
of section 471(a)(11) of the Act, the title
IV–E agency must review at reasonable,
specific, time-limited periods to be
established by the agency:
*
*
*
*
*
(n) Foster care goals. The specific
foster care goals required under section
471(a)(14) of the Act must be
incorporated into State law or Tribal
law by statute, code, resolution, Tribal
proceedings or administrative regulation
with the force of law.
(o) Notice and right to be heard. The
title IV–E agency must provide the
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foster parent(s) of a child and any
preadoptive parent or relative providing
care for the child with timely notice of
and the opportunity to be heard in any
proceedings held with respect to the
child during the time the child is in the
care of such foster parent, preadoptive
parent, or relative caregiver. Notice of
and opportunity to be heard does not
include the right to standing as a party
to the case.
■ 27. In § 1356.22 revise paragraphs (a)
introductory text, (a)(2) and (c) to read
as follows:
§ 1356.22 Implementation requirements for
children voluntarily placed in foster care.
(a) As a condition of receipt of Federal
financial participation (FFP) in foster
care maintenance payments for a
dependent child removed from his
home under a voluntary placement
agreement, the title IV–E agency must
meet the requirements of:
*
*
*
*
*
(2) Sections 422(b)(8) and 475(5) of
the Act;
*
*
*
*
*
(c) The title IV–E agency must
establish and maintain a uniform
procedure or system, consistent with
State or Tribal law, for revocation by the
parent(s) of a voluntary placement
agreement and return of the child.
■ 28. In § 1356.30, revise paragraphs (a),
(b) introductory text, and (c)
introductory text, remove and reserve
paragraph (d) and revise paragraph (e) to
read as follows:
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§ 1356.30 Safety requirements for foster
care and adoptive home providers.
(a) The title IV–E agency must provide
documentation that criminal records
checks have been conducted with
respect to prospective foster and
adoptive parents.
(b) The title IV–E agency may not
approve or license any prospective
foster or adoptive parent, nor may the
title IV–E agency claim FFP for any
foster care maintenance or adoption
assistance payment made on behalf of a
child placed in a foster home operated
under the auspices of a child placing
agency or on behalf of a child placed in
an adoptive home through a private
adoption agency, if the title IV–E agency
finds that, based on a criminal records
check conducted in accordance with
paragraph (a) of this section, a court of
competent jurisdiction has determined
that the prospective foster or adoptive
parent has been convicted of a felony
involving:
*
*
*
*
*
(c) The title IV–E agency may not
approve or license any prospective
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foster or adoptive parent, nor may the
title IV–E agency claim FFP for any
foster care maintenance or adoption
assistance payment made on behalf of a
child placed in a foster home operated
under the auspices of a child placing
agency or on behalf of a child placed in
an adoptive home through a private
adoption agency, if the title IV–E agency
finds, based on a criminal records check
conducted in accordance with
paragraph (a) of this section, that a court
of competent jurisdiction has
determined that the prospective foster
or adoptive parent has, within the last
five years, been convicted of a felony
involving:
*
*
*
*
*
(d) [Reserved]
(e) In all cases where the State opted
out of the criminal records check
requirement, as permitted prior to the
amendments made by section 152 of
Public Law 109–248, the licensing file
for that foster or adoptive family must
contain documentation which verifies
that safety considerations with respect
to the caretaker(s) have been addressed.
*
*
*
*
*
■ 29. In § 1356.40 revise paragraphs (a),
(b)(4), (d), (e) and (f) to read as follows:
§ 1356.40 Adoption assistance program:
Administrative requirements to implement
section 473 of the Act.
(a) To implement the adoption
assistance program provisions of the
title IV–E plan and to be eligible for
Federal financial participation in
adoption assistance payments under
this part, the title IV–E agency must
meet the requirements of this section
and section 471(a), applicable
provisions of section 473, and section
475(3) of the Act.
(b) * * *
(4) Specify, with respect to
agreements entered into on or after
October 1, 1983, that the agreement
shall remain in effect regardless of the
place of residence of the adoptive
parents at any given time.
*
*
*
*
*
(d) In the event an adoptive family
moves from one place of residence to
another, the family may apply for social
services on behalf of the adoptive child
in the new place of residence. If a
needed service(s) specified in the
adoption assistance agreement is not
available in the new place of residence,
the title IV–E agency making the
original adoption assistance payment
remains financially responsible for
providing the specified service(s).
(e) A title IV–E agency may make an
adoption assistance agreement with
adopting parent(s) who reside in
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949
another State or a Tribal service area. If
so, all provisions of this section apply.
(f) The title IV–E agency must actively
seek ways to promote the adoption
assistance program.
■ 30. In § 1356.41 revise the first
sentence of paragraph (a), paragraph (b),
paragraphs (d), (e), paragraphs (f)(1) and
(2), the second sentence of paragraph
(g), paragraph (h), the first sentence of
paragraph (i), paragraphs (j) and (k) to
read as follows:
§ 1356.41 Nonrecurring expenses of
adoption.
(a) The amount of the payment made
for nonrecurring expenses of adoption
shall be determined through agreement
between the adopting parent(s) and the
title IV–E agency administering the
program. * * *
(b) The agreement for nonrecurring
expenses may be a separate document or
a part of an agreement for either State,
Tribal, or Federal adoption assistance
payments or services.
*
*
*
*
*
(d) For purposes of payment of
nonrecurring expenses of adoption, the
title IV–E agency must determine that
the child is a ‘‘child with special needs’’
as defined in section 473(c) of the Act,
and that the child has been placed for
adoption in accordance with applicable
laws; the child need not meet the
categorical eligibility requirements at
section 473(a)(2).
(e)(1) The title IV–E agency must
notify all appropriate courts and all
public and licensed private nonprofit
adoption agencies of the availability of
funds for the nonrecurring expenses of
adoption of children with special needs
as well as where and how interested
persons may apply for these funds. This
information should routinely be made
available to all persons who inquire
about adoption services.
(2) The agreement for nonrecurring
expenses must be signed at the time of
or prior to the final decree of adoption.
Claims must be filed with the title IV–
E agency within two years of the date of
the final decree of adoption.
(f)(1) Funds expended by the title IV–
E agency under an adoption assistance
agreement, with respect to nonrecurring
adoption expenses incurred by or on
behalf of parents who adopt a child with
special needs, shall be considered an
administrative expenditure of the title
IV–E Adoption Assistance Program.
Federal reimbursement is available at a
50 percent matching rate, for title IV–E
agency expenditures up to $2,000, for
any adoptive placement.
(2) Title IV–E agencies may set a
reasonable lower maximum which must
be based on reasonable charges,
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consistent with State, Tribal, and local
practices, for special needs adoptions
within the State or Tribal service area.
The basis for setting a lower maximum
must be documented and available for
public inspection.
*
*
*
*
*
(g) * * * Payments for nonrecurring
expenses shall be made either directly
by the title IV–E agency or through
another public or licensed nonprofit
private agency.
(h) When the adoption of the child
involves a placement outside the State
or Tribal service area, the title IV–E
agency that enters into an adoption
assistance agreement under section
473(a)(1)(B)(ii) of the Act or under a
State or Tribal subsidy program will be
responsible for paying the nonrecurring
adoption expenses of the child. In cases
where there is placement outside the
State or Tribal service area but no
agreement for other Federal, Tribal, or
State adoption assistance, the title IV–E
agency in the jurisdiction in which the
final adoption decree is issued will be
responsible for reimbursement of
nonrecurring expenses if the child
meets the requirements of section
473(c).
(i) The term ‘‘nonrecurring adoption
expenses’’ means reasonable and
necessary adoption fees, court costs,
attorney fees and other expenses which
are directly related to the legal adoption
of a child with special needs, which are
not incurred in violation of State, Tribal
or Federal law, and which have not
been reimbursed from other sources or
other funds. * * *
(j) Failure to honor all eligible claims
will be considered non-compliance by
the title IV–E agency with title IV–E of
the Act.
(k) A title IV–E expenditure is
considered made in the quarter during
which the payment was made by a title
IV–E agency to a private nonprofit
agency, individual or vendor payee.
■ 31. In § 1356.50 revise the section
heading and paragraphs (a) and (b) to
read as follows:
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§ 1356.50 Withholding of funds for noncompliance with the approved title IV–E
plan.
(a) To be in compliance with the title
IV–E plan requirements, a title IV–E
agency must meet the requirements of
the Act and 45 CFR 1356.20, 1356.21,
1356.30, and 1356.40 of this part.
(b) To be in compliance with the title
IV–E plan requirements, a title IV–E
agency that chooses to claim FFP for
voluntary placements must meet the
requirements of the Act, 45 CFR 1356.22
and paragraph (a) of this section; and
*
*
*
*
*
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32. In § 1356.60 revise paragraphs
(a)(1)(i) and (a)(2), the heading of
paragraph (b), paragraphs (b)(1)(i),
(b)(2), (c) introductory text, and (e) to
read as follows:
■
§ 1356.60
Fiscal requirements (title IV–E).
(a) * * *
(1) Federal financial participation
(FFP) is available to title IV–E agencies
under an approved title IV–E plan for
allowable costs in expenditures for:
(i) Foster care maintenance payments
as defined in section 475(4) of the Act,
made in accordance with 45 CFR
1356.20 through 1356.30, section 472 of
the Act, and for a Tribal title IV–E
agency, section 479B of the Act;
(ii) Adoption assistance payments
made in accordance with 45 CFR
1356.20 and 1356.40, applicable
provisions of section 473, section 475(3)
and, for a Tribal title IV–E agency,
section 479B of the Act.
(2) Federal financial participation is
available at the rate of the Federal
medical assistance percentage as
defined in section 1905(b), 474(a)(1) and
(2) and 479B(d) of the Act as applicable,
definitions, and pertinent regulations as
promulgated by the Secretary, or his
designee.
(b) Federal matching funds for title
IV–E agency training for foster care and
adoption assistance under title IV–E.
(1) * * *
(i) Training personnel employed or
preparing for employment by the title
IV–E agency administering the plan,
and;
*
*
*
*
*
(2) All training activities and costs
funded under title IV–E shall be
included in the agency’s training plan
for title IV–B.
*
*
*
*
*
(c) Federal matching funds for other
title IV–E agency administrative
expenditures for foster care and
adoption assistance under title IV–E.
Federal financial participation is
available at the rate of fifty percent
(50%) for administrative expenditures
necessary for the proper and efficient
administration of the title IV–E plan.
The State’s cost allocation plan shall
identify which costs are allocated and
claimed under this program.
*
*
*
*
*
(e) Federal matching funds for
SACWIS/TACWIS. All expenditures of a
title IV–E agency to plan, design,
develop, install and operate the
Statewide or Tribal automated child
welfare information system approved
under § 1355.52 of this chapter, shall be
treated as necessary for the proper and
efficient administration of the title IV–
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E plan without regard to whether the
system may be used with respect to
foster or adoptive children other than
those on behalf of whom foster care
maintenance or adoption assistance
payments may be made under this part.
33. Add new § 1356.67 and § 1356.68
to read as follows:
■
§ 1356.67 Procedures for the transfer of
placement and care responsibility of a child
from a State to a Tribal title IV–E agency or
an Indian Tribe with a title IV–E agreement.
(a) Each State with a title IV–E plan
approved under section 471 of the Act
must establish and maintain procedures,
in consultation with Indian Tribes, for
the transfer of responsibility for the
placement and care of a child under a
State title IV–E plan to a Tribal title IV–
E agency or an Indian Tribe with a title
IV–E agreement in a way that does not
affect a child’s eligibility for, or
payment of, title IV–E and the child’s
eligibility for medical assistance under
title XIX of the Act.
(b) The procedures must, at a
minimum, provide for the State to:
(1) Determine, if the eligibility
determination is not already completed,
the child’s eligibility under section 472
or 473 of the Act at the time of the
transfer of placement and care
responsibility of a child to a Tribal title
IV–E agency or an Indian Tribe with a
title IV–E agreement.
(2) Provide essential documents and
information necessary to continue a
child’s eligibility under title IV–E and
Medicaid programs under title XIX to
the Tribal title IV–E agency, including,
but not limited to providing:
(i) All judicial determinations to the
effect that continuation in the home
from which the child was removed
would be contrary to the welfare of the
child and that reasonable efforts
described in section 471(a)(15) of the
Act have been made;
(ii) Other documentation the State has
that relates to the child’s title IV–E
eligibility under sections 472 and 473 of
the Act;
(iii) Information and documentation
available to the agency regarding the
child’s eligibility or potential eligibility
for other Federal benefits;
(iv) The case plan developed pursuant
to section 475(1) of the Act, including
health and education records of the
child pursuant to section 475(1)(C) of
the Act; and
(v) Information and documentation of
the child’s placement settings, including
a copy of the most recent provider’s
license or approval.
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§ 1356.68 Tribal title IV–E agency
requirements for in-kind administrative and
training contributions from third-party
sources.
(a) Option to claim in-kind
expenditures from third-party sources
for non-Federal share of administrative
and training costs. A Tribal title IV–E
agency may claim allowable in-kind
expenditures from third-party sources
for the purpose of determining the nonFederal share of administrative or
training costs subject to paragraphs (b)
through (d) of this section.
(b) In-kind expenditures for fiscal
years 2010 and 2011—(1)
Administrative costs. A Tribal title IV–
E agency may claim allowable in-kind
expenditures from third-party sources of
up to 25 percent of the total
administrative funds expended during a
fiscal quarter pursuant to section
474(a)(3)(C), (D) or (E) of the Act.
(2) Training costs. A Tribal title IV–
E agency may claim in-kind training
expenditures of up to 12 percent of the
total training funds expended during a
fiscal year quarter pursuant to section
474(a)(3)(A) and (B) of the Act, but only
from the following sources:
(i) A State or local government;
(ii) An Indian Tribe, Tribal
organization, or Tribal consortium other
than the Indian Tribe, organization, or
consortium submitting the title IV–E
plan;
(iii) A public institution of higher
education;
(iv) A Tribal College or University (as
defined in section 316 of the Higher
Education Act of 1965 (20 U.S.C.
1059c)); and
(v) A private charitable organization.
(c) In-kind expenditures for fiscal
years 2012 and thereafter—(1)
Administrative costs. A Tribal title IV–
E agency may claim in-kind
expenditures from third-party sources of
up to 50 percent of the total
administrative funds expended during a
fiscal quarter pursuant to section
474(a)(3)(C), (D) or (E) of the Act.
(2) Training costs. A Tribal title IV–
E agency may claim in-kind training
expenditures of up to 25 percent (or 30
percent consistent with section 203(b) of
Pub. L. 110–351) of the total training
funds expended during each quarter of
fiscal year 2012 pursuant to section
474(a)(3)(A) and (B) of the Act. For
fiscal year 2013 and thereafter, a Tribal
title IV–E agency may claim in-kind
training expenditures of up to 25
percent of the total training funds
expended during a fiscal quarter
pursuant to section 474(a)(3)(A) and (B)
of the Act.
(3) Third-party sources. A Tribal title
IV–E agency may claim in-kind training
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expenditures for training funds from
any allowable third-party source.
34. In § 1356.71 revise paragraphs
(a)(1) and (a)(2), (a)(3)(i), the heading
and first sentence of (a)(3)(ii), (b)(1) and
(b)(2), (c)(1), the second and fourth
sentence of paragraph (c)(4), the first
sentence of (c)(5), paragraph (d)
introductory text, paragraphs (d)(1)(i),
(d)(1)(iii), (d)(1)(v), (d)(2), paragraph
(g)(1) introductory text, paragraphs
(g)(2) and (3), (h)(1), (h)(3), (h)(4), (i)(1)
introductory text, paragraph (i)(1)(i) and
(i)(1)(ii), the second and third sentences
of paragraph (i)(1)(iii), (i)(2) through (4),
paragraph (j) introductory text, the first
sentence of paragraph (j)(1) and
paragraphs (j)(2) through (4) to read as
follows:
■
§ 1356.71 Federal review of the eligibility
of children in foster care and the eligibility
of foster care providers in title IV–E
programs.
(a) * * *
(1) This section sets forth
requirements governing Federal reviews
of compliance with the title IV–E
eligibility provisions as they apply to
children and foster care providers under
paragraphs (a) and (b) of section 472 of
the Act.
(2) The requirements of this section
apply to title IV–E agencies that receive
Federal payments for foster care under
title IV–E of the Act.
(3) * * *
(i) Title IV–E agencies in substantial
compliance. Title IV–E agencies
determined to be in substantial
compliance based on the primary
review will be subject to another review
in three years.
(ii) Title IV–E agencies not in
substantial compliance. Title IV–E
agencies that are determined not to be
in substantial compliance based on the
primary review will develop and
implement a program improvement plan
designed to correct the areas of
noncompliance. * * *
(b) * * *
(1) The review team must be
composed of representatives of the title
IV–E agency, and ACF’s Regional and
Central Offices.
(2) The title IV–E agency must
provide ACF with the complete
payment history for each of the sample
and oversample cases prior to the onsite review.
(c) * * *
(1) The list of sampling units in the
target population (i.e., the sampling
frame) will be drawn by ACF statistical
staff from the Adoption and Foster Care
Analysis and Reporting System
(AFCARS) data which are transmitted
by the title IV–E agency to ACF. The
PO 00000
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951
sampling frame will consist of cases of
children who were eligible for foster
care maintenance payments during the
reporting period reflected in a title IV–
E agency’s most recent AFCARS data
submission. For the initial primary
review, if these data are not available or
are deficient, an alternative sampling
frame, consistent with one AFCARS sixmonth reporting period, will be selected
by ACF in conjunction with the title IV–
E agency.
*
*
*
*
*
(4) * * * When the total number of
ineligible cases does not exceed eight,
ACF can conclude with a probability of
88 percent that in a population of 1000
or more cases the population
ineligibility case error rate is less than
15 percent and the title IV–E agency
will be considered in substantial
compliance. * * * A title IV–E agency
which meets this standard is considered
to be in ‘‘substantial compliance’’ (see
paragraph (h) of this section). * * *
(5) A title IV–E agency which has
been determined to be in
‘‘noncompliance’’ (i.e., not in
substantial compliance) will be required
to develop a program improvement plan
according to the specifications
discussed in paragraph (i) of this
section, as well as undergo a secondary
review. * * *
*
*
*
*
*
(d) Requirements subject to review.
Title IV–E agencies will be reviewed
against the requirements of title IV–E of
the Act regarding:
(1) * * *
(i) Judicial determinations regarding
‘‘reasonable efforts’’ and ‘‘contrary to
the welfare’’ in accordance with
§ 1356.21(b) and (c), respectively;
* * *
(iii) Responsibility for placement and
care vested with the title IV–E or other
public agency per section 472(a)(2)(B) of
the Act;
* * *
(v) Eligibility for AFDC under such
State plan as it was in effect on July 16,
1996 per section 472(a)(3) or
479B(c)(1)(C)(ii)(II) of the Act, as
appropriate.
(2) Allowable payments made to
foster care providers who comport with
sections 471(a)(10), 471(a)(20), 472(b)
and (c), and 479B(c)(2) of the Act and
§ 1356.30.
*
*
*
*
*
(g) * * *
(1) For each case being reviewed, the
title IV–E agency must make available a
licensing file which contains the
licensing history, including a copy of
the certificate of licensure/approval or
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letter of approval, for each of the
providers in the following categories:
*
*
*
*
*
(2) The licensing file must contain
documentation that the title IV–E
agency has complied with the safety
requirements for foster and adoptive
placements in accordance with
§ 1356.30.
(3) If the licensing file does not
contain sufficient information to
support a child’s placement in a
licensed facility, the title IV–E agency
may provide supplemental information
from other sources (e.g., a computerized
database).
(h) * * *
(1) Disallowances will be taken, and
plans for program improvement
required, based on the extent to which
a title IV–E agency is not in substantial
compliance with recipient or provider
eligibility provisions of title IV–E, or
applicable regulations in 45 CFR parts
1355 and 1356.
*
*
*
*
*
(3) ACF will notify the title IV–E
agency in writing within 30 calendar
days after the completion of the review
of whether the title IV–E agency is, or
is not, operating in substantial
compliance.
(4) Title IV–E agencies which are
determined to be in substantial
compliance must undergo a subsequent
review after a minimum of three years.
(i) * * *
(1) Title IV–E agencies which are
determined to be in noncompliance
with recipient or provider eligibility
provisions of title IV–E, or applicable
regulations in 45 CFR Parts 1355 and
1356, will develop a program
improvement plan designed to correct
the areas determined not to be in
substantial compliance. The program
improvement plan will:
(i) Be developed jointly by title IV–E
agency and Federal staff;
(ii) Identify the areas in which the
title IV–E agency’s program is not in
substantial compliance;
(iii) * * * A title IV–E agency will
have a maximum of one year in which
to implement and complete the
provisions of the program improvement
plan unless State/Tribal legislative
action is required. In such instances, an
extension may be granted with the title
IV–E agency and ACF negotiating the
terms and length of such extension that
shall not exceed the last day of the first
legislative session after the date of the
program improvement plan; and
*
*
*
*
*
(2) Title IV–E agencies determined not
to be in substantial compliance as a
result of a primary review must submit
the program improvement plan to ACF
for approval within 90 calendar days
from the date the title IV–E agency
receives written notification that it is
not in substantial compliance. This
deadline may be extended an additional
30 calendar days when a title IV–E
agency submits additional
documentation to ACF in support of
cases determined to be ineligible as a
result of the on-site eligibility review.
(3) The ACF Regional Office will
intermittently review, in conjunction
with the title IV–E agency, the title IV–
E agency’s progress in completing the
prescribed action steps in the program
improvement plan.
(4) If a title IV–E agency does not
submit an approvable program
improvement plan in accordance with
the provisions of paragraphs (i)(1) and
(2) of this section, ACF will move to a
secondary review in accordance with
paragraph (c) of this section.
(j) Disallowance of funds. The amount
of funds to be disallowed will be
determined by the extent to which a
title IV–E agency is not in substantial
compliance with recipient or provider
eligibility provisions of title IV–E, or
applicable regulations in 45 CFR parts
1355 and 1356.
(1) Title IV–E agencies which are
found to be in substantial compliance
during the primary or secondary review
will have disallowances (if any)
determined on the basis of individual
cases reviewed and found to be in
error. * * *
(2) Title IV–E agencies which are
found to be in noncompliance during
the primary review will have
disallowances determined on the basis
of individual cases reviewed and found
to be in error, and must implement a
program improvement plan in
accordance with the provisions
contained within it. A secondary review
will be conducted no later than during
the AFCARS reporting period which
immediately follows the program
improvement plan completion date on a
sample of 150 cases drawn from the title
IV–E agency’s most recent AFCARS
data. If both the case ineligibility and
dollar error rates exceed 10 percent, the
title IV–E agency is not in compliance
and an additional disallowance will be
Element No.
Element name
1 ...................
2 ...................
State .........................................................
Report date ..............................................
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determined based on extrapolation from
the sample to the universe of claims
paid for the duration of the AFCARS
reporting period (i.e., all title IV–E funds
expended for a case during the
quarter(s) that case is ineligible,
including administrative costs). If either
the case ineligibility or dollar rate does
not exceed 10 percent, the amount of
disallowance will be computed on the
basis of payments associated with
ineligible cases for the entire period of
time the case has been determined to be
ineligible.
(3) The title IV–E agency will be liable
for interest on the amount of funds
disallowed by the Department, in
accordance with the provisions of 45
CFR 30.18.
(4) Title IV–E agencies may appeal
any disallowance actions taken by ACF
to the HHS Departmental Appeals Board
in accordance with regulations at 45
CFR part 16.
■ 35. In § 1356.83 revise the fifth and
sixth sentences of paragraph (g)(55) and
add a parenthetical OMB information
collection statement at the end of the
section, to read as follows:
§ 1356.83 Reporting requirements and
data elements.
*
*
*
*
*
(g) * * *
(55) * * * Indicate ‘‘yes’’, ‘‘no’’, or
‘‘don’t know’’ as appropriate. If the
youth does not answer this question,
indicate ‘‘declined.’’
*
*
*
*
*
(This requirement has been approved by the
Office of Management and Budget under
OMB Control Number OMB 0970–0340. In
accordance with the Paperwork Reduction
Act of 1995, an agency may not conduct or
sponsor, and a person is not required to
respond to, a collection of information unless
it displays a currently valid OMB control
number.)
36. In § 1356.86 revise paragraph (e) to
read as follows:
■
§ 1356.86
Penalties for noncompliance.
*
*
*
*
*
(e) Interest. The State agency will be
liable for interest on the amount of
funds penalized by the Department, in
accordance with the provisions of 45
CFR 30.18.
*
*
*
*
*
■ 37. Revise Appendixes A and B to Part
1356 to read as follows:
Appendix A to Part 1356—NYTD Data
Elements
Responses options
Applicable population
2 digit FIPS code.
CYYMM.
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Element No.
Element name
Responses options
Record number ........................................
4 ...................
Date of birth .............................................
5 ...................
Sex ...........................................................
6 ...................
Race—American Indian or Alaska Native
7 ...................
Race—Asian ............................................
8 ...................
Race—Black or African American ...........
9 ...................
Race—Native Hawaiian or Other Pacific
Islander.
10 .................
Race—White ............................................
11 .................
Race—Unknown ......................................
12 .................
Race—Declined .......................................
13 .................
Hispanic or Latino Ethnicity .....................
14 .................
Foster care status—services ...................
15 .................
Local agency ............................................
16 .................
Federally-recognized tribe .......................
17 .................
Adjudicated delinquent ............................
18 .................
Education level ........................................
19 .................
Special education ....................................
20 .................
Independent living needs assessment ....
21 .................
Academic support ....................................
22 .................
Post-secondary educational support .......
23 .................
Career preparation ...................................
24 .................
Employment
training.
25 .................
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3 ...................
Budget and financial management ..........
26 .................
Housing education and home management training.
27 .................
Health education and risk prevention ......
28 .................
Family Support/Healthy Marriage Education.
29 .................
Mentoring .................................................
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programs
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or
vocational
PO 00000
CC = century year (i.e., 20).
YY = decade year (00–99).
MM = month (01–12).
Encrypted, unique person identification
number.
CCYYMMDD.
CC = century year (i.e., 20).
YY = decade year (00–99).
MM = month (01–12).
DD= day (01–31).
Male.
Female.
Yes ...........................................................
Applicable population
All youth in served, baseline and followup populations.
No.
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
Unknown.
Declined.
Yes ...........................................................
No.
FIPS code(s).
Centralized unit.
Yes.
No.
Yes.
No.
Less than 6th grade .................................
6th grade.
7th grade.
8th grade.
9th grade.
10th grade.
11th grade.
12th grade.
Postsecondary education or training.
College, at least one semester.
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
Served population only.
Served population only.
No.
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
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Element name
30 .................
Supervised independent living .................
31 .................
Room and board financial assistance .....
32 .................
Education financial assistance ................
33 .................
Other financial assistance .......................
34 .................
Outcomes reporting status ......................
35 .................
Date of outcome data collection ..............
36 .................
Foster care status-outcomes ...................
37 .................
Current full-time employment ..................
38 .................
Current part-time employment .................
39 .................
Employment-related skills ........................
40 .................
Social Security .........................................
41 .................
Educational aid ........................................
42 .................
Public financial assistance .......................
43 .................
Public food assistance .............................
44 .................
Public housing assistance .......................
45 .................
Other financial support ............................
46 .................
Highest educational certification received
47 .................
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Element No.
Current enrollment and attendance .........
48 .................
Connection to adult ..................................
49 .................
Homelessness .........................................
50 .................
Substance abuse referral ........................
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Responses options
No.
Yes.
No.
Yes.
No.
Yes.
No.
Yes.
No.
Youth Participated ...................................
Youth Declined.
Parent Declined.
Youth Incapacitated.
Incarcerated.
Runaway/Missing.
Unable to locate/invite.
Death.
Not in sample.
CCYYMMDD ............................................
CC = century year (i.e., 20).
YY = decade year (00–99).
MM = month (01–12).
DD = day (01–31).
Yes.
No.
Yes.
No.
Declined.
Yes.
No.
Declined.
Yes.
No.
Declined.
Yes.
No.
Declined.
Yes.
No.
Declined.
Yes ...........................................................
No.
Not applicable.
Declined.
Yes.
No.
Not applicable.
Declined.
Yes.
No.
Not applicable.
Declined.
Yes ...........................................................
No.
Declined.
High school diploma/GED.
Vocational certificate.
Vocational license.
Associate’s degree.
Bachelor’s degree.
Higher degree.
None of the above.
Declined.
Yes.
No.
Declined.
Yes.
No.
Declined.
Yes.
No.
Declined.
Yes.
No.
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Applicable population
Baseline and follow-up populations (with
the exception of the response option
‘‘not in sample’’ which is applicable to
19-year olds in the follow-up only).
Baseline and follow-up populations.
Follow-up population not in foster care.
Baseline and follow-up population.
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Element No.
Element name
Responses options
51 .................
Incarceration ............................................
52 .................
Children ....................................................
53 .................
Marriage at child’s birth ...........................
54 .................
Medicaid ...................................................
55 .................
Other health insurance ............................
56 .................
Health insurance type—medical ..............
57 .................
Health insurance type—mental health ....
58 .................
Health
insurance
drugs.
type—prescription
Declined.
Yes.
No.
Declined.
Yes.
No.
Declined.
Yes.
No.
Not applicable.
Declined.
Yes.
No.
Don’t know.
Declined.
Yes ...........................................................
No.
Don’t know.
Declined.
Yes.
No.
Don’t know.
Not Applicable.
Declined.
Yes.
No.
Don’t know.
Not applicable.
Declined.
Yes.
No.
Don’t know.
Not applicable.
Declined.
955
Applicable population
Baseline and follow-up population.
Appendix B to Part 1356—NYTD Youth
Outcome Survey
Question to youth and response
options
Topic/element No.
Definition
INFORMATION TO COLLECT FROM ALL YOUTH SURVEYED FOR OUTCOMES, WHETHER IN FOSTER CARE OR NOT
Current full-time employment (37) ..
Current part-time employment (38)
Employment-related skills (39) ........
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Currently are you employed fulltime?
lYes
lNo
lDeclined
Currently are you employed parttime?
lYes
lNo
lDeclined
In the past year, did you complete
an apprenticeship, internship, or
other on-the-job training, either
paid or unpaid?
lYes
lNo
lDeclined
Currently are you receiving social
security
payments
(Supplemental Security Income (SSI,
Social Security Disability Insurance (SSDI), or dependents’
payments)?
lYes
lNo
lDeclined
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‘‘Full-time’’ means working at least 35 hours per week at one or multiple jobs.
‘‘Part-time’’ means working at least 1–34 hours per week at one or
multiple jobs.
This means apprenticeships, internships, or other on-the-job
trainings, either paid or unpaid, that helped the youth acquire employment-related skills (which can include specific trade skills such
as carpentry or auto mechanics, or office skills such as word processing or use of office equipment).
These are payments from the government to meet basic needs for
food, clothing, and shelter of a person with a disability. A youth
may be receiving these payments because of a parent or guardian’s disability, rather than his/her own.
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Topic/element No.
Question to youth and response
options
Definition
Educational Aid (41) ........................
Currently are you using a scholarship, grant, stipend, student
loan, voucher, or other type of
educational financial aid to
cover any educational expenses?
lYes
lNo
lDeclined
Currently are you receiving any
periodic and/or significant financial resources or support from
another source not previously
indicated and excluding paid
employment?
lYes
lNo
lDeclined
What is the highest educational
degree or certification that you
have received?
lHigh school diploma/GED
lVocational certificate
lVocational license
lAssociate’s degree (e.g., A.A.)
lBachelor’s degree (e.g., B.A. or
B.S.)
lHigher degree
lNone of the above
lDeclined
Currently are you enrolled in and
attending high school, GED
classes, post-high school vocational training, or college?
lYes
lNo
lDeclined
Currently is there at least one
adult in your life, other than your
caseworker, to whom you can
go for advice or emotional support?
lYes
lNo
lDeclined
Have you ever been homeless?
OR
lIn the past two years, were you
homeless at any time?
lYes
lNo
lDeclined
Have you ever referred yourself or
has someone else referred you
for an alcohol or drug abuse assessment or counseling?
OR
In the past two years, did you
refer yourself, or had someone
else referred you for an alcohol
or drug abuse assessment or
counseling?
lYes
lNo
lDeclined
Have you ever been confined in a
jail, prison, correctional facility,
or juvenile or community detention facility, in connection with
allegedly committing a crime?
OR
Scholarships, grants, and stipends are funds awarded for spending
on expenses related to gaining an education. ‘‘Student loan’’
means a government-guaranteed, low-interest loan for students in
post-secondary education.
Other financial support (45) ............
Highest educational certification received (46).
Current enrollment and attendance
(47).
Connection to adult (48) .................
Homelessness (49) .........................
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Substance abuse referral (50) ........
Incarceration (51) ............................
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This means periodic and/or significant financial support from a
spouse or family member (biological, foster or adoptive), child support that the youth receives or funds from a legal settlement. This
does not include occasional gifts, such as birthday or graduation
checks or small donations of food or personal incidentals, child
care subsidies, child support for a youth’s child or other financial
help that does not benefit the youth directly in supporting himself or
herself.
‘‘Vocational certificate’’ means a document stating that a person has
received education or training that qualifies him or her for a particular job, e.g., auto mechanics or cosmetology. ‘‘Vocational license’’ means a document that indicates that the State or local
government recognizes an individual as a qualified professional in
a particular trade or business. An Associate’s degree is generally a
two-year degree from a community college, and a Bachelor’s degree is a four-year degree from a college or university. ‘‘Higher degree’’ indicates a graduate degree, such as a Masters or Doctorate
degree. ‘‘None of the above’’ means that the youth has not received any of the above educational certifications.
This means both enrolled in and attending high school, GED classes,
or postsecondary vocational training or college. A youth is still considered enrolled in and attending school if the youth would otherwise be enrolled in and attending a school that is currently out of
session (e.g., Spring break, summer vacation, etc.).
This refers to an adult who the youth can go to for advice or guidance when there is a decision to make or a problem to solve, or for
companionship to share personal achievements. This can include,
but is not limited to, adult relatives, parents or foster parents. The
definition excludes spouses, partners, boyfriends or girlfriends and
current caseworkers. The adult must be easily accessible to the
youth, either by telephone or in person.
‘‘Homeless’’ means that the youth had no regular or adequate place
to live. This includes living in a car, or on the street, or staying in a
homeless or other temporary shelter.
This includes either self-referring or being referred by a social worker,
school staff, physician, mental health worker, foster parent, or other
adult for an alcohol or drug abuse assessment or counseling. Alcohol or drug abuse assessment is a process designed to determine
if someone has a problem with alcohol or drug use.
This means that the youth was confined in a jail, prison, correctional
facility, or juvenile or community detention facility in connection
with a crime (misdemeanor or felony) allegedly committed by the
youth.
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Question to youth and response
options
Topic/element No.
Children (52) ...................................
Marriage at Child’s Birth (53) ..........
Medicaid (54) ..................................
Other Health insurance Coverage
(55).
Health
(56).
insurance
type—medical
Health
insurance
health (57).
type—mental
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Health insurance type—prescription
drugs (58).
VerDate Mar<15>2010
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In the past two years, were you
confined in a jail, prison, correctional facility, or juvenile or community detention facility, in connection with allegedly committing a crime?
lYes
lNo
lDeclined
Have you ever given birth or fathered any children that were
born?
OR
In the past two years, did you give
birth to or father any children
that were born?
lYes
lNo
lDeclined
If you responded yes to the previous question, were you married to the child’s other parent at
the time each child was born?
lYes
lNo
lDeclined
Currently are you on Medicaid [or
use the name of the State’s
medical assistance program
under title XIX]?
lYes
lNo
lDon’t know
lDeclined
Currently do you have health insurance, other than Medicaid?
lYes
lNo
lDon’t know
lDeclined
Does your health insurance coverage include coverage for medical services?
lYes
lNo
lDon’t know
lNot Applicable
lDeclined
Does your health insurance include coverage for mental
health services?
lYes
lNo
lDon’t know
Not Applicable
lDeclined
Does your health insurance include coverage for prescription
drugs?
lYes
lNo
lDon’t know
lDeclined
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957
Definition
This means giving birth to or fathering at least one child that was
born. If males do not know, answer ‘‘No.’’
This means that when every child was born the youth was married to
the other parent of the child.
Medicaid (or the State medical assistance program) is a health insurance program funded by the government.
‘‘Health insurance’’ means having a third party pay for all or part of
health care. Youth might have health insurance such as group coverage offered by employers or schools, or individual policies that
cover medical and/or mental health care and/or prescription drugs,
or youth might be covered under parents’ insurance. This also
could include access to free health care through a college, Indian
Tribe, or other source.
This means that the youth’s health insurance covers at least some
medical services or procedures. This question is for only those
youth who responded ‘‘yes’’ to having health insurance.
This means that the youth’s health insurance covers at least some
mental health services. This question is for only those youth who
responded ‘‘yes’’ to having health insurance with medical coverage.
This means that the youth’s health insurance covers at least some
prescription drugs. This question is for only those youth who responded ‘‘yes’’ to having health insurance with medical coverage.
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Question to youth and response
options
Topic/element No.
Definition
ADDITIONAL OUTCOMES INFORMATION TO COLLECT FROM YOUTH OUT OF FOSTER CARE
Public financial assistance (42) ......
Public food assistance (43) .............
Public housing assistance (44) .......
Currently are you receiving ongoing welfare payments from the
government to support your
basic needs? [The State may
add
and/or
substitute
the
name(s) of the State’s welfare
program].
lYes
lNo
lDeclined
Currently are you receiving public
food assistance?
lYes
lNo
lDeclined
Currently are you receiving any
sort of housing assistance from
the government, such as living
in public housing or receiving a
housing voucher?
lYes
lNo
lDeclined
This refers to ongoing welfare payments from the government to support your basic needs. Do not consider payments or subsidies for
specific purposes, such as unemployment insurance, child care
subsidies, education assistance, food stamps or housing assistance in this category.
Public food assistance includes food stamps, which are governmentissued coupons or debit cards that recipients can use to buy eligible food at authorized stores. Public food assistance also includes
assistance from the Women, Infants and Children (WIC) program.
Public housing is rental housing provided by the government to keep
rents affordable for eligible individuals and families, and a housing
voucher allows participants to choose their own housing while the
government pays part of the housing costs. This does not include
payments from the child welfare agency for room and board payments.
[FR Doc. 2011–32911 Filed 1–5–12; 8:45 am]
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]]>Agencies
[Federal Register Volume 77, Number 4 (Friday, January 6, 2012)]
[Rules and Regulations]
[Pages 896-958]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-32911]
[[Page 895]]
Vol. 77
Friday,
No. 4
January 6, 2012
Part III
Department of Health and Human Services
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Administration for Children and Families
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45 CFR Parts 1355 and 1356
Tribal Child Welfare; Interim Final Rule
Federal Register / Vol. 77, No. 4 / Friday, January 6, 2012 / Rules
and Regulations
[[Page 896]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Parts 1355 and 1356
RIN 0970-AC41
Tribal Child Welfare
AGENCY: Administration on Children, Youth and Families (ACYF),
Administration for Children and Families (ACF), Department of Health
and Human Services (HHS).
ACTION: Interim final rule.
-----------------------------------------------------------------------
SUMMARY: The Administration for Children and Families (ACF) is issuing
this interim final rule to implement statutory provisions related to
the Tribal title IV-E program. Effective October 1, 2009, section
479B(b) of the Social Security Act (the Act) authorizes direct Federal
funding of Indian Tribes, Tribal organizations, and Tribal consortia
that choose to operate a foster care, adoption assistance and, at
Tribal option, a kinship guardianship assistance program under title
IV-E of the Act. The Fostering Connections to Success and Increasing
Adoptions Act of 2008 requires that ACF issue interim final regulations
which address procedures to ensure that a transfer of responsibility
for the placement and care of a child under a State title IV-E plan to
a Tribal title IV-E plan occurs in a manner that does not affect the
child's eligibility for title IV-E benefits or medical assistance under
title XIX of the Act (Medicaid) and such services or payments; in-kind
expenditures from third-party sources for the Tribal share of
administration and training expenditures under title IV-E; and other
provisions to carry out the Tribal-related amendments to title IV-E.
This interim final rule includes these provisions and technical
amendments necessary to implement a Tribal title IV-E program.
DATES: This rule is effective February 6, 2012. Consideration will be
given to all comments received by March 6, 2012.
ADDRESSES: Interested persons may submit written comments to the
Federal eRulemaking Portal: https://www.regulations.gov. Written
comments also may be submitted via email to CBComments@acf.hhs.gov.
Please include ``Tribal Child Welfare'' in the subject line of the
message. Written comments also may be submitted via mail or courier
delivery: Elizabeth Sharp, Division of Policy, Children's Bureau,
Administration on Children, Youth and Families, Administration for
Children and Families, 1250 Maryland Avenue SW., 8th Floor, Washington,
DC 20024.
FOR FURTHER INFORMATION CONTACT: Elizabeth Sharp, Children's Bureau,
Administration on Children, Youth and Families, (202) 205-7265 or by
email at elizabeth.sharp@acf.hhs.gov. Do not email comments to this
address.
SUPPLEMENTARY INFORMATION:
I. Submitting Comments
II. Background
III. Justification for Interim Final Rule
IV. Tribal and Stakeholder Consultation
V. Section by Section Discussion of the Interim Final Rule
VI. Impact Analysis
I. Submitting Comments
Although this interim final rule is effective without further
regulatory action as indicated in the `dates' section, we are
soliciting comments from interested parties that we can use to
determine the need for any further rulemaking. Comments should be
specific, address issues raised by the rule, propose alternatives where
appropriate, and explain reasons for any objections or recommended
changes. You should reference the specific section of the interim final
rule that is being addressed in the comment. We urge you to submit
comments electronically to ensure we receive them in a timely manner.
II. Background
The Fostering Connections to Success and Increasing Adoptions Act
of 2008, Public Law (Pub. L.) 110-351 (hereafter ``Fostering
Connections'') was enacted on October 7, 2008. Prior to the law's
enactment, the title IV-E program provided States and territories
(hereafter, ``States'') with Federal funds to support eligible children
in foster care, eligible children with special needs in adoptions, and
the administrative expenses of States to operate the title IV-E
program. As amended, the law permits Federally-recognized Indian
Tribes, Tribal organizations or consortia (hereafter, ``Indian
Tribes'') to apply to the Secretary of HHS to operate a title IV-E
program beginning October 1, 2009.
By law, the requirements of title IV-E apply to a Tribal agency
``in the same manner as this part [IV-E] applies to a State'' (section
479B(b) of the Act), with limited exceptions specified in the law. This
means that an Indian Tribe wishing to operate a title IV-E plan must
adhere to most existing statutory and regulatory title IV-E
requirements in place for a State title IV-E agency, with some
exceptions provided in law. Those exceptions include: the ability for
Indian Tribes to define their own service areas and Tribal licensing
standards; flexibility to use nunc pro tunc orders and affidavits to
meet judicial determination requirements in the first 12 months of
operation of the Tribal title IV-E plan; and, the ability to use in-
kind third-party funding sources for sharing in the costs of the title
IV-E program. As reflected throughout this rule, we determined that
there are a very limited number of other variances necessary.
Public Law 110-351 also provides limited grants, beginning in
Federal fiscal year (FY) 2009, to assist Indian Tribes that intend to
implement a title IV-E program to develop a title IV-E plan. Eleven
Indian Tribes have received a title IV-E development grant, and ACF
expects to award grants to five more Indian Tribes in FY2011. Finally,
the law permits a title IV-E agency to enter into a contract or
cooperative agreement with an Indian Tribe to share in the
administration of the title IV-E programs on behalf of Indian children.
In addition to creating these provisions unique to Indian Tribes,
Fostering Connections contains new requirements and options for States
and Indian Tribes with title IV-E plans. Public Law 110-351 permits a
title IV-E agency the option to administer a new kinship guardianship
assistance program under title IV-E, revises the eligibility criteria
for the title IV-E adoption assistance program, allows a title IV-E
agency the option to extend title IV-E foster care, adoption
assistance, and kinship guardianship assistance payments to youth who
meet certain conditions up to age 21, among other changes to the title
IV-B and IV-E requirements. The entire text of Fostering Connections
and issuances related to the new provisions can be found on the
Children's Bureau's Web site at www.acf.hhs.gov/programs/cb and
www.acf.hhs.gov/programs/cb/laws_policies/implementation_foster.htm.
III. Justification for Interim Final Rule
Section 301(e) of Public Law 110-351 requires that we publish
interim final rules generally to carry out the amendments made to title
IV-E of the Act to authorize Indian Tribes to directly-operate title
IV-E programs. Many of these amendments are present throughout this
rule in the form of minor language changes to existing regulatory
provisions to be inclusive of a Tribal title IV-E agency because the
law mandates that we apply title IV-E requirements equally to States
and Indian Tribes. Also, the law specifically requires that we develop
and codify
[[Page 897]]
procedures in an interim final rule to ensure that a transfer of
responsibility for the placement and care of a child under a State
title IV-E plan to a Tribal title IV-E plan or to an Indian Tribe with
an agreement or contract under title IV-E does not affect the child's
eligibility for title IV-E or Medicaid. Further, the law requires that
we address in interim final rules the types and amounts of in-kind
expenditures that Indian Tribes may claim under a title IV-E plan.
These specific requirements can be found in new sections of the
regulation, 45 CFR 1356.67 and 1356.68.
We also are including several technical and conforming amendments
to existing regulatory requirements that, although not directly related
to the amendments of Public Law 110-351, clarify implementation of the
title IV-E programs. These conforming amendments are to update
statutory citations, remove obsolete references and make technical
corrections. The Administrative Procedure Act provides an exception to
the standard rulemaking process to propose rules and solicit comments
prior to adopting a final rule where an agency finds good cause to
adopt a rule without prior public participation (5 U.S.C.
553(b)(3)(B)). The good cause requirement is satisfied when prior
public participation is impracticable, unnecessary, or contrary to the
public interest. We find proposing rulemaking for these technical and
conforming amendments impracticable and unnecessary since they are not
substantive and only align the regulations with current law or
practice. Moreover, we believe that delaying rulemaking on these
technical amendments would be contrary to the public interest since
doing so would cause significant confusion about the statutory and
regulatory provisions to which Indian Tribes must adhere in
implementing the title IV-E program for the first time. Therefore we
find good cause to include these technical amendments in this interim
final rule. More specific rationale for each amendment can be found in
the section by section discussion.
IV. Tribal and Stakeholder Consultation
Section 301(e) of Public Law 110-351 requires us to consult with
Indian Tribes and affected States prior to issuing interim final rules.
Consistent with this requirement and the Department's commitment to
consult with Indian Tribes on a government-to-government basis, we
conducted a series of consultation sessions with Indian Tribes and
other Tribal stakeholders prior to issuing these rules. On March 13,
2009, we published a Federal Register notice, 74 FR 10920 (hereafter,
``FR notice'') inviting Tribal leaders and/or their representatives to
attend one of seven in-person meetings held in Bloomington, Minnesota;
Kansas City, Missouri; Seattle, Washington; Denver, Colorado; San
Francisco, California; Dallas, Texas; and, Marksville, Louisiana. The
FR notice also invited written comments from Tribal leaders or any
other interested party.
Indian Tribes and other stakeholders were invited to provide input
on the following questions:
Considering that the Secretary is to apply title IV-E of
the Act to Indian Tribes in the same manner as to States except where
directed by law, what, if any, provisions and clarifications related to
the title IV-E program for directly-funded Indian Tribes should be in
regulations?
Are guidelines above and beyond those provided pursuant to
the Indian Child Welfare Act (ICWA) of 1974 needed to execute the
transfer of placement and care responsibility of a title IV-E Indian
child to an Indian Tribe operating a title IV-E plan? If so, please
provide suggestions.
What specific information pertaining to title IV-E and
Medicaid should a State make available to an Indian Tribe that seeks to
gain placement and care responsibility over an Indian child?
Should the third-party sources and in-kind limits on
Tribal administrative and training costs remain consistent with section
479B(c)(1)(D) of the Act? Please provide a rationale for this response.
Any other comments regarding the development of an interim
final rule per section 301(e) of Public Law 110-351.
The consultation was limited in scope and not intended to solicit
comments on the remaining provisions of Public Law 110-351 or the title
IV-E program in general. However, the consultations elicited a wide
range of questions, issues and suggestions regarding implementation and
operation of a title IV-E program. Further, we continue to listen to
Tribal partners in ongoing consultations and less formal opportunities
for discussion such as grantee meetings. Highlights of the comments
that we received and how they are addressed in this regulation follow.
Commenters felt strongly that the requirement in Public Law 110-351
that title IV-E requirements apply to Indian Tribes in the same way as
they apply to States, does not consider Indian Tribes' sovereignty,
cultural standards, lack of historical funding under title IV-E and
current economic circumstances. In particular, commenters requested:
(1) Relief from the application of State-specific 1996 Aid to Families
with Dependent Children (AFDC) requirements; (2) use of nunc pro tunc
orders to ensure title IV-E eligibility for all Indian children who did
not have the requisite court orders beyond the first twelve months of
the approved Tribal title IV-E plan; and, 3) direct funding of selected
components of the title IV-E plan of the Indian Tribe's choosing.
Although we respect Tribal sovereignty and standards and understand the
unique situation of Indian Tribes in operating a long-standing Federal
program for the first time, the existing statutory requirements of
title IV-E of the Social Security Act do not allow us to meet these
particular requests. Rather we have indicated in this interim final
regulation the areas in which the law must be applied equally to Indian
Tribes and States, where the law crafted unique requirements specific
to Indian Tribes with title IV-E plans, and where there is discretion
for the Indian Tribe to develop its own practices and approaches. We
encourage Indian Tribes to seek technical assistance from the
Children's Bureau (CB) Regional Office staff in dealing with these
issues.
Commenters sought more clarity about the relationships between
States and Indian Tribes, and how those relationships may impact
various parts of the title IV-E program and/or transfers of placement
and care responsibility of a child from one jurisdiction to another.
Commenters asked us to specify: (1) Which entities are responsible for
funding Indian children in Tribal title IV-E programs; (2) the extent
to which States may influence the direction of Tribal title IV-E plans/
programs; and, (3) the extent of Tribal access to State-owned
resources, such as funding, information systems, data and Medicaid
program benefits. In general, we do not believe it necessary nor do we
have the authority to prescribe the relationships between Indian Tribes
and States. Rather, in this interim final regulation we have specified
the minimum information States must provide to Indian Tribes with
either a title IV-E plan or agreement when a child is transferred from
the responsibility of the State to the Indian Tribe and we have
explained that the law permits States and Indian Tribes to enter into
various arrangements in support of Tribal title IV-E programs. A State
that has a title IV-E plan under existing law may craft the
relationships and partnerships it
[[Page 898]]
desires with other public agencies, private child placing agencies and
other contractors within broad Federal parameters. Indian Tribes with a
title IV-E plan have this same discretion to enter into relationships
and partnerships it finds beneficial in supporting the title IV-E plan.
Through consultation, coordinated efforts and good faith negotiation of
title IV-E agreements, States and Indian Tribes can determine for
themselves issues of funding, responsibility, shared resources and
services.
An overarching concern of most Tribal commenters was funding, and
as such Indian Tribes requested: (1) More funding to operate the title
IV-E program; (2) relief from provisions that limit in-kind
contributions, require matching funds and/or allocation of costs; and
(3) numerous clarifications about how title IV-E funding operates and
interacts with other funding streams. We have clarified throughout this
regulation how Indian Tribes may draw down title IV-E funding and will
continue to make this a priority in further technical assistance
activities. However, the title IV-E program's basic funding structure
as a reimbursement program of a portion of an agency's expenses on
behalf of eligible children, is not one that we can alter in the
absence of statutory changes.
Finally, we received a number of specific questions about items
that are not germane to this regulation. For example, we received
questions about the Family Connection grants authorized by Public Law
110-351 (section 427 of the Act); availability of American Recovery and
Reinvestment Act of 2009 (``stimulus'') funding; and provisions for a
kinship guardianship assistance program or an extension of title IV-E
assistance to 18 to 21 year olds which are not specific to Indian
Tribes. We will use the questions and comments we received in
consultation that are outside this regulation to formulate other
technical assistance efforts, policy proposals, and further
consultation as appropriate.
V. Section by Section Discussion of the Interim Final Rule
Section 1355.20--Definitions
Section 1355.20 contains definitions pertaining to terms used in 45
CFR parts 1355, 1356 and 1357 of this title. We amended several
definitions by removing references to ``State'' or ``States'' and
replacing such references with the broader terms of ``title IV-E
agency'' or ``title IV-E agencies'' or, by adding references to
``Indian Tribe'' or ``Tribal'' as descriptive terms. These changes
apply the terms defined in the regulation equally to States and Indian
Tribes with an approved title IV-E plan pursuant to Public Law 110-351.
These changes are made to the following definitions: ``date a child is
considered to have entered foster care'', ``entity'', ``foster care'',
``foster family home'', ``full review'' and ``permanency hearing.'' In
some definitions we made additional conforming changes which are
described below.
Adoption
We amended the definition of the term ``adoption'' to include
adoptions under Tribal law for Tribal title IV-E purposes. We
understand that Indian Tribes finalize legal adoptions through court
processes and/or through traditional or ceremonial processes, and
therefore this change ensures that the term ``adoption'' is inclusive
of adoptions finalized through these processes for Tribal title IV-E
agencies.
Child Care Institution
We amended the definition of a ``child care institution'' to
account for the ability of an Indian Tribe that has an approved title
IV-E plan pursuant to section 479B of the Act to license child care
institutions in its service area. The revised definition provides three
types of licensing authorities: A State licensing authority in the
State in which the child care institution is located, a Tribal
licensing authority with respect to a child care institution on or near
an Indian Reservation, or the Tribal licensing authority of an Indian
Tribe that operates a title IV-E plan pursuant to section 479B of the
Act with respect to a child care institution in the Indian Tribe's
service area.
A commenter requested that Indian Tribes be permitted flexibility
with regard to the definition of ``on or near an Indian Reservation.''
This language comes from section 1931 of the Indian Child Welfare Act
of 1978 (ICWA) (Pub. L. 95-608) and applies to both child care
institutions and foster family homes. The ICWA requirement states that
for purposes of qualifying for funds under a Federally assisted
program, e.g., titles IV-E and IV-B, licensing or approval of foster or
adoptive homes or institutions on or near an Indian Reservation by an
Indian Tribe is equivalent to licensing or approval by a State. There
is no statutory or regulatory definition of this term. As such, if an
Indian Tribe has a reservation, it has the discretion to make a
reasonable determination of what it considers on or near the
reservation. Another commenter requested clarification that the
existing Tribal licensing authorities may serve in the licensing role
for title IV-E purposes. We confirm that the Indian Tribe has the
discretion to use existing licensing authorities or create new
authorities to license foster family homes or child care institutions
on or near reservations and/or within a Tribal agency's service area.
Foster Family Home
We amended the definition of ``foster family home'' to add a
sentence that clarifies that the authority that licenses a foster
family home must be a State licensing authority in the State in which
the foster family home is located pursuant to section 471(a)(10) of the
Act, a Tribal authority with respect to a foster family home on or near
an Indian Reservation pursuant to section 1931 of ICWA, or the Tribal
authority of an Indian Tribe that operates a title IV-E plan pursuant
to section 479B(c)(2) of the Act with respect to a foster family home
in the Tribal agency's service area. These changes are similar to the
ones made to the definition of a child care institution.
During consultation, some commenters sought clarification of
whether an Indian Tribe has to abide by Federal or State foster family
home licensing/approval standards and exceptions to such standards such
as, State rules that may limit the number of children in the home,
Indian Health Service safety requirements, or requirements on driving.
Another commenter sought flexibility in Federal Tribal licensing
standards because of the limited nature of housing in Indian country
and the unique cultural issues in Indian Tribes. In response, we would
like to explain the foster family home licensing/approval requirements
in title IV-E. Section 471(a)(10) of the Act requires the State or
Tribal agency to establish or designate an authority for establishing
and maintaining standards for foster family homes and child care
institutions. An Indian Tribe that has a title IV-E plan will be
responsible for establishing such an authority and applying the
standards developed to the foster family homes or child care
institutions in its service area and/or on or near its reservation. At
a minimum, the licensing standards must cover admission policies,
safety, sanitation, and protection of civil rights (see sections
471(a)(10) and 479B(c)(2) of the Act). Therefore, Indian Tribes may
take into consideration the unique features of the housing, landscape
and cultural norms in developing licensing or approval standards for
foster family homes. In addition, standards must be applied equally to
any licensed or approved foster family home receiving
[[Page 899]]
title IV-B and IV-E funds, with one exception in section 471(a)(10) of
the Act. The exception permits a title IV-E agency to waive the
application of a standard unrelated to safety for relative foster
family homes on a case-by-case basis. The title IV-E agency may not
exclude relative homes, or any other group from the licensing
requirement (see section 471(a)(10) of the Act and the definition of
``foster family home'' in 45 CFR 1355.20). There are no ACF prescribed
standards for licensing or approving homes, although section 471(a)(10)
of the Act requires standards to accord with recommended standards of
national organizations. An Indian Tribe or a State may have to follow
other Federal standards for licensure to the extent that the foster
family homes are governed by other Federal laws and/or funding
restrictions. Please note that for title IV-E funding purposes,
criminal record and child abuse and neglect registry checks are a
related but separate issue from licensure. Requirements related to the
criminal record check provisions are in section 471(a)(20) of the Act
and discussed in relation to section 1356.30 later in the preamble.
Some commenters sought clarification on whether Indian Tribes can
use title IV-E to pay for children placed with prospective foster
parents in the process of being licensed or approved as a foster family
home. In certain circumstances, a title IV-E agency, including an
Indian Tribe, may seek administrative cost reimbursement for eligible
children placed with such prospective foster parents. Consistent with
section 472(i)(1)(A) of the Act and policy at Child Welfare Policy
Manual (CWPM) 8.1B Q/A 11, the title IV-E agency may claim
administrative costs on behalf of an otherwise eligible child placed in
an unlicensed or unapproved relative home for 12 months or the average
length of time it takes the agency to license or approve a foster
family home, whichever is less. During this time, an application for
licensure or approval of the relative home as a foster family home must
be pending. The title IV-E agency may only claim administrative costs
in this situation for a child placed in an unlicensed or unapproved
relative foster family home. For the purposes of this provision, a
relative is defined by section 406(a) of the Act as in effect on July
16, 1996, and implemented in 45 CFR 233.90(c)(1)(v). In general, a
title IV-E agency may not claim the cost of a title IV-E foster care
maintenance payment on behalf of an otherwise eligible child until the
first day of the first month in which the foster family home meets all
licensure or approval requirements. See CWPM 8.3A.8c Q/A 16.
Full Review
We amended the definition of ``full review'' to apply the
definition equally to States and Indian Tribes by removing language
that described the Child and Family Services Review (CFSR) as focused
on child and family service programs ``in the States'' relative to
``State'' plans for title IV-B and IV-E. By removing this language, we
make clear that the full reviews can occur in States or Indian Tribes
with approved plans for both titles IV-E and IV-B. Further, we added
parenthetical language to the definition of a full review to clarify
that the statewide assessment, which is a component of the CFSR, may be
an assessment of the Tribal service area in the case of a Tribal
agency. For the purposes of title IV-E, a service area is defined by
the Indian Tribe pursuant to section 479B(c)(1)(B) of the Act and for
the purposes of title IV-B, it is the area covered by the Indian
Tribe's Child and Family Services Plan (CFSP). See sections 1355.31
through 1355.37 for a more complete discussion of the CFSRs as they
apply to Indian Tribes with title IV-E plans.
Partial Review
We amended the definition of ``partial review'' to apply the
process for reviewing title IV-E compliance to Indian Tribes with an
approved title IV-E plan, consistent with section 479B(b) of the Act.
As we did in the ``full review'' definition, we removed language that
references States in paragraph (1) of the definition. This means that
an Indian Tribe with an approved title IV-E plan will be subject to a
partial review, if necessary, if there is a compliance issue that falls
within the scope of the CFSR. Also, we added a new paragraph (3) to the
definition to specify that partial reviews encompass Tribal title IV-E
plan compliance issues that fall outside of the CFSR. This requirement
is similar to the existing requirement for States in paragraph (2).
Partial reviews do not pertain to Indian Tribes with only a title IV-B
plan. Such compliance issues are regulated by the process described in
sections 1355.30(n) and (p) instead.
Statewide Assessment (or Tribal Assessment)
We amended the definition of ``statewide assessment'' to apply the
initial phase of a full review to Tribal title IV-E agencies by
inserting the term ``Tribal assessment.'' This means that a Tribal
assessment for a Tribal title IV-E agency is a review of all Federally-
assisted child and family services programs in the Tribal service area
(as opposed to a review of all Federally-assisted child and family
services programs in the State for a Statewide assessment). We also
made an amendment to apply the assessment to the entire Tribal service
area by inserting the phrase ``(or for a Tribal title IV-E agency, in
the service area).''
Title IV-E Agency
We added a new definition of a ``title IV-E agency.'' This
definition is inclusive of a State or Tribal agency that administers or
supervises the administration of both the title IV-B (subparts 1 and 2)
plan and IV-E plan and a Tribal agency that administers or supervises
the administration of both the title IV-B, subpart 1 and title IV-E
plan. We added this definition pursuant to Public Law 110-351 which
authorizes Indian Tribes to operate a title IV-E plan and requires ACF
to apply the title IV-E program equally to States and Indian Tribes.
This term is used throughout the interim final rule when we refer to
common requirements for a State or Tribal title IV-E agency; we use the
terms State agency (defined in this section of the regulation) or
Tribal agency as described below, when we are referring to requirements
unique to those entities.
Tribal Agency
We added a new definition of ``Tribal agency.'' Tribal agency
means, for the purpose of title IV-E, the agency of the Indian Tribe,
Indian Tribal organization or consortium of Indian Tribes that is
designated to administer or supervise the administration of the title
IV-E and title IV-B, subpart 1 plan. Section 479B(a) of the Act
incorporates the definition of Indian Tribe in 25 U.S.C. 450b which is
any Indian Tribe, band, nation, or other organized group or community
that is recognized as eligible for special programs and services
provided by the United States to Indians because of their status as
Indians. Such Tribes are commonly referred to as Federally-recognized
Indian Tribes. Section 479B(a) of the Act also incorporates the
definition of Indian Tribal organization in 25 U.S.C. 450b which is a
recognized body of an Indian Tribe. In this context, a consortium of
Indian Tribes is two or more Federally-recognized Indian Tribes that
agree to join for the purpose of operating the title IV-E plan.
[[Page 900]]
Section 1355.21--Plan Requirements for Titles IV-E and IV-B
Section 1355.21 specifies the requirements for title IV-B and IV-E
plans.
We changed the title of this section by removing the term ``State''
so that the section refers more generally to the plan requirements for
titles IV-E and IV-B rather than ``State plan'' requirements.
Similarly, we amended section 1355.21 in paragraphs (a), (b) and (c) to
make conforming changes by removing the term ``State'' before ``plan''
and in paragraph (c) to replace the term ``State agency'' with the more
general ``title IV-E agency'' to clarify that Indian Tribes with title
IV-E plans must follow the same rules consistent with Public Law 110-
351. These conforming changes apply the title IV-E and title IV-B plan
requirements in section 1355.21 equally to States and Indian Tribes.
In addition, we amended paragraph (b) to add clarifying language
that a title IV-E agency must comply with the applicable Departmental
regulations described in section 1355.30. Section 1355.30 specifies
which Departmental regulations apply to a title IV-E agency generally,
or those that are specific to either a Tribal or State title IV-E
agency.
In paragraph (c) as indicated above, we replaced the term ``State
agency'' with ``title IV-E agency'' to make a conforming change.
Through this conforming change, we apply the existing requirement that
a title IV-E agency must make the title IV-E plan available for public
review and inspection equally to all title IV-E agencies. Therefore, in
addition to making the Child and Family Services Plans and the Annual
Progress and Services Reports available for public review and
inspection, an Indian Tribe with an approved title IV-E plan must make
the title IV-E plan available for public review and inspection.
Section 1355.30--Other Applicable Regulations
Section 1355.30 identifies other Departmental regulations that are
applicable to title IV-B and IV-E programs.
We amended the introductory paragraph to section 1355.30 to apply
the regulations cited in this section to both State and Tribal title
IV-B and title IV-E programs, as appropriate. The cited regulations are
for: Departmental Appeals Board procedures (45 CFR 1355.30(a)),
collecting claims (45 CFR 1355.30(b)), nonprocurement debarment and
suspension (45 CFR 1355.30(c)), drug-free workplaces (45 CFR
1355.30(d)), nondiscrimination under title VI of the Civil Rights Act
and associated hearing procedures (45 CFR 1355.30(e)-(f)),
nondiscrimination on the basis of handicap (45 CFR 1355.30(g)),
nondiscrimination on the basis of age (45 CFR 1355.30(h)), lobbying
restrictions (45 CFR 1355.30(j)), and grants and administration of
public assistance programs (45 CFR 1355.30(k), (m) and (n)). The
regulations in the above mentioned sections previously applied to State
and Tribal title IV-B programs and State title IV-E programs. These
amendments apply the regulatory requirements equally to Indian Tribes
with a title IV-E plan consistent with Public Law 110-351. In addition,
we made conforming amendments in the paragraphs described below that
align these regulations with other regulatory and statutory changes
implemented between November 2003 and January 2010.
We amended paragraph (c) to delete the Administration of Grants
rules previously located in 45 CFR part 74 from the list of applicable
requirements as 45 CFR part 74 is now obsolete. HHS moved a number of
programs, including titles IV-B and IV-E, into the scope of 45 CFR part
92, and removed such programs from the scope of Part 74 (68 FR 52843-
44, September 8, 2003). Therefore, an agency operating titles IV-B and
IV-E programs is subject to the administrative rules published in 45
CFR part 92 as cited by amended section 1355.30(i) (see discussion
below). We amended paragraph (c) further to add ``2 CFR Part 376--
Nonprocurement Debarment and Suspension'' as an applicable regulation.
This amendment reflects regulatory changes to the governmentwide
Debarment and Suspension (nonprocurement) regulations at 45 CFR Part
76, which were previously cross-referenced in section 1355.30(d). HHS
issued an interim final rule on March 1, 2007 which removed the full
text of the Department's debarment and suspension rules from 45 CFR
part 76 and issued a new 2 CFR part 376 on nonprocurement debarment and
suspension (72 FR 9233-9235). We believe that because this change is
technical in nature there is no need to go through the notice and
comment process to update the regulation.
We made a technical amendment to paragraph (d) to reflect changes
in regulatory citations by deleting the current citation and replacing
it with ``2 CFR Part 382--Requirements for Drug-Free Workplace
(Financial Assistance).'' On November 26, 2003, HHS issued a final rule
that implemented changes to the governmentwide nonprocurement debarment
and suspension common rule and the associated rule on drug-free
workplace requirements (68 FR 66557). The rule on debarment and
suspension was removed from Part 76 and codified at 2 CFR part 376 (see
discussion in previous paragraph). The rule on drug-free workplace
requirements was initially revised and codified in 45 CFR part 82, but
effective January 11, 2010 these requirements were further simplified
and relocated to 2 CFR 382 (74 FR 58189).
Paragraph (i) describes the Uniform Administrative Requirements for
Grants and Cooperative Agreements to State and Local Governments in 45
CFR part 92 that are applicable to the title IV-B and IV-E programs. We
made a technical amendment to paragraph (i) by replacing the reference
to the ``Independent Living Program'' with ``the John H. Chafee Foster
Care Independence Program'' to reflect the name change and broader
program purposes established in the Foster Care Independence Act of
1999. We also amended paragraph (i) to apply 45 CFR part 92 to Indian
Tribes which operate Chafee Foster Care Independence Programs (CFCIP)
in accordance with Section 477(j) of the Act.
We also amended paragraph (i) to maintain and clarify the current
rule that Part 92 applies to State-operated title IV-E foster care and
adoption assistance programs. The regulations cross-referenced in 45
CFR part 74 have moved to 45 CFR part 92, so we cite the relocated
sections that do not apply to State title IV-E programs (matching or
cost sharing requirements found at 45 CFR 92.24 which was formerly 45
CFR 74.23 and financial reporting requirements found at 45 CFR 92.41
which was formerly 45 CFR 74.52). Therefore, title IV-E policy and
regulations continue to preclude States from using third-party in-kind
contributions and places certain conditions on the use of donated funds
as a source of non-Federal funds for the title IV-E foster care and
adoption assistance programs.
Finally, we added language in paragraph (i) to apply 45 CFR part 92
to Tribal title IV-E plans for foster care and adoption assistance
except that section 92.41 and the sections specified in section 1356.68
do not apply to a Tribal title IV-E agency.
Unlike States, title IV-E specifically allows Indian Tribes with an
approved title IV-E plan to use in-kind contributions from third-party
sources up to a specified percentage of the Indian Tribe's cost sharing
requirements for title IV-E administrative and training costs for
certain fiscal years in
[[Page 901]]
accordance with section 479B(c)(1)(D) of the Act. Regulations at 2 CFR
part 225 Appendix B, Office of Management and Budget (OMB) Circular A-
87, which set out cost principles for States, localities and Tribal
Governments, apply to Indian Tribes and item 12b within that Circular
requires that Indian Tribes that use third-party contributions follow
45 CFR part 92. Because an Indian Tribe may claim in-kind
administrative and training contributions of its share of the title IV-
E program from third-party sources, section 92.24 (formerly section
74.23) applies cost-sharing principals and section 92.41 (formerly
section 74.52) applies financial reporting to an Indian Tribe's use of
in-kind contributions from third-party sources.
We amended paragraph (k) to apply most of 45 CFR part 95 to both
States and Indian Tribes with approved title IV-B and IV-E plans. The
exceptions are specified in the subparagraphs detailed below. This is a
conforming change consistent with section 479B(b) of the Act for an
Indian Tribe with a title IV-E plan; it does not amend existing rules
applicable to States or Indian Tribes with title IV-B plans or States
with title IV-E plans.
We added a new subparagraph (k)(1), to maintain the exception to
the applicability of 45 CFR 95.1(a), subpart A, to the State title IV-B
program and the CFCIP for States, and to apply the exception to Indian
Tribes operating title IV-B programs and CFCIP as well. The regulation
at 45 CFR 95.1(a) specifies time limits for submitting financial claims
which do not apply to the CFCIP or title IV-B programs; statutory
provisions establish the claim submission timeframe.
We created a new subparagraph (k)(2) to explain that unlike States,
45 CFR part 95 subpart E, Cost Allocation Plans, is not applicable to
Indian Tribes with an approved title IV-E plan pursuant to section 479B
of the Act. This is because the Department of Interior (Interior) is
the cognizant agency for cost allocation and Interior has provided for
the use of indirect cost rates for Indian Tribes in accordance with
that authority. However, ACF still retains authority for guiding the
allocation and documentation of title IV-E costs pursuant to section
1356.60 and 2 CFR 225. As such, we issued guidance, ACYF-CB-PI-10-13,
on how Indian Tribes can develop appropriate cost methodologies
November 23, 2010.
We amended paragraph (m) to clarify that the regulations in 45 CFR
100.12 related to simplifying, consolidating or substituting federally
required plans apply to States only. The regulatory provision relates
to a process for operationalizing intergovernmental partnership and
Federalism principles for States. Although this particular provision
applies only to States, other guidance reflects our commitment to
working with Indian Tribes on a government-to-government basis. In
particular, Executive Order 13175 (65 FR 6724, November 9, 2000)
requires HHS to develop an accountable process to ensure ``meaningful
and timely input by Tribal officials in the development of regulatory
policies that have Tribal implications.''
In paragraph (n), which applies certain regulations related to
grants for public assistance programs in 45 CFR part 201 to programs
funded under titles IV-B and IV-E, we made minor amendments to remove
references to ``State'' and replace them with more general references
to apply the rules equally to Indian Tribes in subparagraph (n)(2). In
addition we removed parenthetical marks but not the provisions within
them, from paragraphs (n)(1) through (n)(4).
We amended paragraph (o) to clarify that the provision cross-
referenced at 45 CFR 204.1 which requires that title IV-E plans be
submitted for a Governor's review is applicable only to States. Indian
Tribe's must submit their title IV-E plan to their designated Tribal
leadership for review prior to submitting it to HHS. More instructions
for doing so are included in the title IV-E plan preprint (most
recently, in ACYF-CB-PI-09-08 issued October 14, 2009) which is
applicable to States and Indian Tribes and is available on the CB Web
site at www.acf.hhs.gov/programs/cb.
Section 1355.31--Elements of the Child and Family Services Review
System
This section specifies the scope of the CFSRs.
The CFSRs were established through regulations issued on January
25, 2000 (65 FR 4020) to monitor the performance of State child welfare
programs consistent with section 1123A of the Act. The review assesses
a title IV-E agency's substantial conformity with certain Federal
requirements regarding child protection, foster care, adoption, family
preservation and family support, and independent living services. The
reviews are based on plan requirements in titles IV-B, subpart 1 and 2
of the Act and the title IV-E foster care and adoption programs. The
reviews enable CB to: (1) Ensure conformity with Federal child welfare
requirements; (2) determine what is actually happening to children and
families as they are engaged in child welfare services; and, (3) assist
agencies to enhance their capacity to help children and families
achieve positive outcomes.
We removed language in this section that limited the scope of the
reviews to child and family services programs ``administered by
States,'' so that the CFSRs apply to such programs administered by a
Tribal agency consistent with the requirement in Public Law 110-351 to
apply the provisions of the title IV-E program equally to State and
Tribal title IV-E agencies. The amendments in this section and
throughout the CFSR related regulatory sections do not affect how we
conduct CFSRs in States or our existing guidance to States engaged in
the CFSR process. The application of the CFSRs to a Tribal title IV-E
agency has been modified somewhat to take into consideration that such
agencies are entering into a preexisting monitoring process. We
encourage Indian Tribes to review the most recent CFSR procedures
manual on CB's Web site, which explains the CFSR process in more detail
(https://www.acf.hhs.gov/programs/cb/cwmonitoring/tools_guide/proce_manual.htm).
Section 1355.32--Timetable for the Reviews
This section specifies the review timetable for the initial and
subsequent CFSRs.
Section 1355.32(a)--Initial Reviews
In paragraph (a), we provide the timetable for the initial CFSR for
a State or Tribal agency. The initial reviews for States were completed
between FY's 2001 and 2004.
We amended paragraph (a) to specify a schedule of initial reviews
for a Tribal title IV-E agency and replaced the reference to
``Administration for Children and Families'' with the acronym ``ACF.''
The added provision establishes that each Tribal title IV-E agency must
complete an initial full CFSR during the four-year period after we
determine that the Indian Tribe has plans approved for each of the
title IV-B subpart 1, title IV-B subpart 2 and title IV-E programs and
has a sufficient number of cases to apply the procedures in section
1355.33(c). This new provision provides for reviews on an initial
schedule for a Tribal agency similar to that for a State consistent
with the statutory requirement to apply the title IV-E program rules
equally to Indian Tribes with approved plans. However, we adjusted the
timeframe to accommodate the unique position of Indian Tribes with
approved title IV-E plans. When the initial reviews were scheduled for
States, all States were
[[Page 902]]
operating programs under both subparts of title IV-B and IV-E, and had
been doing so for several years. This allowed us to set a fixed
timeframe by which all States had to have an initial review. Since the
title IV-E option is available to Indian Tribes on a continuous basis,
we allow the timeframe for the initial review to vary depending on when
an Indian Tribe's title IV-E plan is approved and other factors
discussed below.
A title IV-E agency must have a sufficient number of children in
foster care and children receiving in-home services during the period
under review (i.e., those that have a case open for in-home services
with the child welfare agency for a period of at least 60 days) from
which we can select a sample of at least 30-50 cases for an on-site
review as required by existing regulations. This sample is taken from a
larger oversample of 150 foster care and 150 in-home services cases. At
the time of promulgation of the CFSR process we were confident that
States typically had at least this many child welfare cases open during
our period under review. However, we understand that Indian Tribes
operating title IV-E plans may not serve as many children at the
initiation of their programs or for some years to follow. Therefore, to
maintain fidelity with the existing CFSR process and apply the
procedures equally to a Tribal title IV-E agency, we will not initiate
a CFSR for such an Indian Tribe until we can select a sample that meets
this threshold number of cases.
Finally, certain CFSR criteria are premised on the agency having in
place a continuum of child welfare services as supported by the Federal
requirements and provisions of title IV-B, subparts 1 and 2 (see 63 FR
50067), in addition to those of title IV-E. Indian Tribes which can be
approved to operate a title IV-E program also must have a title IV-B,
subpart 1 program for child welfare services (see CWPM Section 9.1 Q/A
4). However, there is nothing in Federal law that compels a
Tribal title IV-E agency to operate the Promoting Safe and Stable
Families Program under title IV-B, subpart 2. In fact, the existing
provisions of title IV-B, subpart 2 limit the availability of grants
under the program to those Indian Tribes who would qualify through the
formula for a grant of at least $10,000 (section 432(b)(2)(B) of the
Act). We will conduct a full CFSR only if a Tribal title IV-E agency is
operating both a title IV-B subpart 1 and 2 program.
Due to the many factors that must be met for ACF to conduct a CFSR
of a Tribal agency, we will utilize all other existing monitoring
protocols at our disposal to ensure that such agencies are in
compliance with Federal requirements and are achieving positive
outcomes for children and families. Such protocols include reviewing
and approving title IV-B plans and title IV-E plans, reviewing actual
and estimated claims submitted on the CB-496 financial reporting forms
each quarter and performance reported by Tribes in their title IV-B
annual progress and service reviews, conducting partial reviews of
requirements outside the scope of a CFSR of Federal requirements that
we have reason to believe are out of conformity, and, as necessary,
requiring Tribal title IV-E agencies to develop a program improvement
plan to respond to areas we determine are out of substantial
conformity. Consistent with section 1123A, the necessary elements of a
program improvement plan and, if necessary, the amount of the
withholding of Federal funds, will be commensurate with the extent of a
Tribal title IV-E agency's non-conformity. See sections 1355.21,
1355.32(d), 1356.20 and 1357.15 for more information on ACF's oversight
tools. In addition, ACF Regional Offices will continue to offer ongoing
technical assistance to Indian Tribes as issues related to title IV-B
and IV-E plans arise.
Section 1355.32(b)--Reviews Following the Initial Review
Paragraph (b) establishes the timetable for CFSRs after the initial
review. We conduct a full review every five years following a review in
which we determine the title IV-E agency to be operating in substantial
conformity or two years after the approval of the Program Improvement
Plan (PIP) if we determine that the title IV-E agency is not operating
in substantial conformity.
We made a number of conforming amendments to paragraph (b) to apply
the regulatory provisions for review timing following the initial
review to a Tribal title IV-E agency in the same way as they are
applied to a State title IV-E agency. Specifically, we amended
paragraph (b)(1) to replace the reference to ``State'' with ``title IV-
E agency.'' In paragraph (b)(1)(ii) we added reference to an assessment
of the Tribal service area to parallel the reference to a statewide
assessment, we removed ``statewide'' from the second and third
sentences, we replaced the first reference to ``State'' with ``title
IV-E agency'', we replaced the reference to ``Administration for
Children and Families'' with the acronym ``ACF'', we added the phrase
``or Indian Tribe's'' to follow ``the State's'', and we removed the
word ``State'' from the phrase ``State plan requirements subject to
review.'' In paragraph (b)(2) we removed the word ``State'' in the
phrase ``a State program.'' In sum, these changes mean that once a
Tribal title IV-E agency has had an initial CFSR review, a subsequent
review will occur five years later if the agency is found in
substantial compliance or two years following an approved PIP for an
agency that is not in substantial conformity.
Section 1355.32(c)--Reinstatement of Reviews Based on Information That
a Title IV-E Agency Is Not in Substantial Conformity
Paragraph (c) describes the requirements for reinstatement of a
full or partial review and describes the types of information that may
require a review.
In paragraph (c) we made a number of conforming amendments to apply
the requirements for reinstatement of a full or partial review to a
Tribal title IV-E agency in the same way as the requirements are
applied to a State title IV-E agency. Specifically, we amended
paragraphs (c) and (c)(1) through (4) to replace all references to
``State'' with ``title IV-E agency.''
Section 1355.32(d)--Partial Reviews Based on Noncompliance With Plan
Requirements That Are Outside the Scope of a Child and Family Services
Review
This section sets the parameters for addressing noncompliance with
title IV-B and IV-E plan requirements that are outside of the scope of
a child and family services review in the form of a partial review. In
paragraph (d), we made conforming amendments to apply the partial
review process to a Tribal title IV-E agency in the same way it is
applied to a State title IV-E agency. Specifically, we amended the
title to remove the term ``State'' that preceded ``plan'' and we
replaced all references to ``State'' with ``title IV-E agency'' in
paragraphs (d)(1) through (d)(4).
Section 1355.33--Procedures for the Review
This section sets forth the CFSR process and outlines general
procedures for both the CFSR assessment and the on-site review portions
of the review.
Section 1355.33(a)
Paragraph (a) describes the two phases of the review process and
the review team membership. We made a number of conforming amendments
to this paragraph to apply the two-part review process and review team
membership to a Tribal title IV-E agency in the same way they are
applied
[[Page 903]]
to a State title IV-E agency. Specifically, we amended paragraph (a)(2)
to change ``State'' to ``title IV-E agency'' to indicate that when
there is a CFSR of a Tribal title IV-E agency, the review team will
consist of representatives from ACF and the Tribal title IV-E agency.
This parallels the review team composition for CFSRs conducted in
States. We amended paragraphs (a)(2)(i), (a)(2)(ii) and (a)(2)(iv) to
replace all references to ``State'' with ``title IV-E agency.'' In
addition, we amended paragraph (a)(2)(i) to remove the word ``State''
from the phrase ``State child and family services agency'' and the
phrase ``State and local'' from the phrase ``State and local offices.''
These changes apply the two steps of the review process equally to
States and Indian Tribes as required by Public Law 110-351.
Section 1355.33(b)--Statewide or Tribal Assessment
In this paragraph, we describe the assessment process in more
detail. The assessment involves representatives from the title IV-E
agency and external stakeholders, reviewing and analyzing data to
evaluate the strengths and needs of the child and family services
system.
We made a number of conforming amendments in paragraph (b) to apply
the requirements of the assessment process to a Tribal title IV-E
agency in the same way they are applied to a State title IV-E agency,
as required by Public Law 110-351. We amended the title to include ``or
Tribal'' to precede ``assessment'' so it is clear that there is either
a State or Tribal assessment, depending on which is the title IV-E
agency subject to the CFSR. We indicated that in the case of the Tribal
title IV-E agency, the assessment covers the scope of the Indian
Tribe's service area, including both the Indian Tribe's title IV-E
service area (as defined by the Indian Tribe in the title IV-E plan)
and the title IV-B service area (that is, the area covered by the
Indian Tribe's CFSP). In paragraph (b)(1) we replaced references to
``statewide'' with ``statewide/Tribal'' and in paragraph (b)(2) we
replaced references to ``statewide'' with ``statewide/Tribal service
area'' to precede ``data indicators.'' This is a technical change to
apply the data indicators equally to both State and Tribal IV-E
agencies, as there is a single set of data indicators for Tribes and
States. We also made changes throughout paragraphs (b) and (b)(2)
through (b)(6), to replace all references to ``State'' and ``State
agency'' with ``title IV-E agency'' and remove ``statewide'' where it
prefaced ``assessment.'' These changes ensure that the assessment
provisions are parallel for States and Indian Tribes.
Section 1355.33(c)--On-Site Review
Paragraph (c) describes requirements for the on-site review
process, including information on the scope of the review, the review
sites, sources of information used in the review, and case sampling.
In paragraph (c) we made a number of conforming amendments to apply
the regulatory requirements of the on-site review process to a Tribal
title IV-E agency in the same way they are applied to a State title IV-
E agency, with the exception of one requirement in paragraph (c)(2)
discussed below. Specifically, we made conforming amendments to
paragraphs (c)(1) through (c)(3) by replacing most references to
``State'' with ``title IV-E agency.'' We also amended paragraph
(c)(4)(iv) to include reference to an Indian Tribe's CFSP in the same
way that we reference a State's CFSP and replaced the reference to the
``statewide'' assessment to the ``statewide/Tribal'' assessment in
paragraph (c)(6). In paragraph (c)(2), we maintain the reference to the
State's largest metropolitan area as a mandatory location for the on-
site portion of the CFSR and did not include a mandate for a similar
location for a Tribal CFSR. We kept this provision as is because we
recognize that the Tribal title IV-E agency's service area in most
cases will not include a metropolitan area at all, or if there is a
metropolitan area, it may not represent a subdivision in which a large
number of child welfare services cases can be found as was the
intention with the original requirement.
Taking the paragraph as amended as a whole, for Indian Tribes the
onsite review will consist of a review of a title IV-E agency's title
IV-B and IV-E programs in operation in the title IV-E agency's service
area. The review will be planned jointly between ACF and the Tribal
title IV-E agency, may focus on several political subdivisions in the
Tribal service area (e.g., different Tribal organizations included in a
Tribal consortium) as guided by information in the assessment, and will
involve the gathering of information during the on-site portion of the
review from Tribal agency staff, families who are served by the agency
and stakeholders internal and external to the agency, including those
who participated in the development of the Indian Tribe's CFSP. The
review will focus on at least 30 cases of foster care and in-home
services cases, taken from a larger oversample of cases for each, which
may be used to resolve discrepancies between the assessment and the on-
site review.
Section 1355.33(d)--Resolution of Discrepancies Between the Assessment
and the Findings of the On-Site Portion of the Review
In paragraph (d), we describe the process for resolving
discrepancies between the assessment and the on-site portion of the
review through either, at the title IV-E agency's option, the
submission of additional information or the review of additional cases.
In paragraphs (d), (d)(1) and (d)(2), we made conforming amendments
to apply the regulatory requirements for resolution of such
discrepancies to a Tribal title IV-E agency in the same way they are
applied to a State title IV-E agency by removing the reference to
``State'' and replacing it with ``title IV-E agency.'' The paragraph
now requires that discrepancies between the assessment and the findings
of the on-site portion of the review be resolved by either information
submitted by the title IV-E agency or the review of additional cases,
as opted by the title IV-E agency.
Section 1355.33(e)--Partial Review
In paragraph (e) we outline when a targeted partial child and
family services review will be conducted. We made a conforming
amendment in this paragraph to apply the regulatory requirements of the
partial review process to a Tribal title IV-E agency in the same way
they are applied to a State title IV-E agency by removing the reference
to ``State'' and replacing it with ``title IV-E agency.'' In the case
of a Tribal title IV-E agency, partial CFSRs will be planned and
conducted jointly by ACF and the Tribal title IV-E agency based on the
nature of the concern.
Section 1355.33(f)--Notification
Paragraph (f) provides for ACF to notify the title IV-E agency as
to whether it is, or is not, operating in substantial conformity within
30 days following a full review, partial review or resolution of a
discrepancy between the findings of the on-site review and the
statewide/Tribal assessments. In this paragraph we made conforming
amendments to apply the regulatory requirements of the notification
process to a Tribal title IV-E agency in the same way they are applied
to a State title IV-E agency by removing the references to ``State
agency'' and ``State'' and replacing them with ``title IV-E agency.''
We also removed references to ``statewide'' where it preceded
``assessment'' so that it is inclusive of either State or Tribal
assessments. ACF will therefore notify the title IV-E agency, whether
State or Tribal, of its
[[Page 904]]
conformity status within 30 days of the events mentioned above.
Section 1355.34--Criteria for Determining Substantial Conformity
This section describes the criteria that will be used to determine
a title IV-E agency's degree of conformity with specified title IV-B
and IV-E plan requirements for each outcome and systemic factor of the
title IV-E agency's service delivery system that undergoes review.
Section 1355.34(a)--Criteria To Be Satisfied
Paragraph (a) describes the basic criteria used to determine the
title IV-E agency's substantial conformity with applicable CFSP
requirements based on: (1) The achievement of the seven outcomes
specified in paragraph (b); and (2) the functioning of seven core
systemic factors directly related to the title IV-E agency's capacity
to deliver services leading to improved outcomes. In paragraph (a) we
made conforming amendments to apply these basic criteria to a Tribal
title IV-E agency in the same way they are applied to a State title IV-
E agency by removing the word ``State'' from the phrase ``title IV-B
and IV-E State plan requirements'' and removing the references to
``State'' in paragraphs (a) and (a)(3) and replacing them with ``title
IV-E agency.'' In paragraph (a)(1) we replaced the phrase ``statewide''
with ``statewide/Tribal service area'' to preface data indicators. This
is a technical change to apply the data indicators equally to both
States and Tribes, as there are not separate data indicators for each.
Section 1355.34(b)--Criteria Related to Outcomes
Paragraph (b) describes the seven outcomes in the areas of child
safety, permanency for children and child and family well-being used
for the purposes of the review. The title IV-E agency's substantial
conformity will be determined based on its ability to substantially
achieve these outcomes. We made several conforming amendments in
paragraph (b) to apply the regulatory requirements to a Tribal title
IV-E agency in the same way they are applied to a State title IV-E
agency and to update obsolete citations. Specifically, we made
conforming amendments to remove the references to ``State'' in
paragraphs (b)(1) through (b)(3) and in most cases replacing them with
``title IV-E agency.'' We also removed the reference to the title IV-B
assurances being made ``by the State'' so that more general language
remains to allow for the review of these assurances when made by the
Indian Tribe.
To remove and replace out-of-date statutory references with current
citations, we amended: Paragraph (b)(2)(ii)(C) by removing reference to
section ``422(b)(9)'' and replacing it with ``422(b)(7)''; paragraph
(b)(2)(ii)(D) by removing the reference to section ``422(b)(10)(C)(i)
and (ii)'' and replacing it with ``422(b)(8)(B)''; paragraph
(b)(2)(ii)(E) by removing the reference to section ``422(b)(11)'' and
replacing it with ``422(b)(9)'' and paragraph (b)(2)(ii)(F) by removing
the reference to section ``422(b)(12)'' and replacing it with
``422(b)(10).'' We believe that because these changes are technical in
nature there is no need to go through the notice and comment process to
update the regulation.
We did not change the reference to the State's compliance with ICWA
in paragraph (b)(2)(ii)(E) as one of the CFSP assurances subject to
review to make it also applicable to a Tribal title IV-E agency. This
is because the ICWA provisions cited in section 422 of the Act and
referenced here are those provisions which apply to State court
proceedings and handling of custodial issues with regard to Indian
children. Such provisions are not applicable to Indian Tribes and
therefore cannot be a part of a review of Tribal title IV-E agency
compliance with title IV-B and IV-E provisions.
We amended paragraphs (b)(2)(i), (b)(3)(i) and (b)(4) by replacing
the term ``statewide'' with ``statewide/Tribal service area'' prior to
``data indicator.'' This allows ACF to develop data indicators based on
title IV-E agencies' Adoption and
