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[Federal Register Volume 75, Number 195 (Friday, October 8, 2010)]
[Notices]
[Pages 62395-62399]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2010-25344]

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Calculation of Annual Federal Medical Assistance Percentages for 
Indian Tribes for Use in the Title IV-E Foster Care, Adoption 
Assistance, and Kinship Guardianship Assistance Programs

AGENCY: Office of the Secretary, DHHS.

ACTION: Notice with comment period.

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SUMMARY: The Fostering Connections to Success and Increasing Adoptions 
Act of 2008 (Pub. L. 110-351) directed HHS to establish assistance 
payment reimbursement rates for Indian Tribes, tribal organizations and 
tribal consortia participating in certain child welfare programs 
authorized under title IV-E of the Social Security Act. These 
reimbursement rates will be calculated in a manner similar to the 
Federal Medical Assistance Percentage (FMAP) rates used to reimburse 
States. This notice describes the Department's proposed methodology for 
calculating these rates.

DATES: Effective Date: The methodology described in this applies to 
Fiscal Years 2010 and beyond. The FMAP rates included in this notice 
apply to Fiscal Years 2010 and 2011.
    Comment Date: To be assured consideration, comments must be 
received at the address provided below, no later than 5 p.m. on 
December 7, 2010.

ADDRESSES: Comments may be submitted via either regular mail or e-mail. 
If you submit written comments via regular mail, please send one 
original and one copy of your comments to the following address only: 
Department of Health and Human Services, Room 404-E, Attention: Tribal 
FMAP Notice, 200 Independence Ave., SW., Washington, DC 20201.
    Comments via e-mail should be sent to the following e-mail address: 
[email protected].
    Submitting Comments: We welcome comments from the public on the 
calculation methodology set forth in this notice with comment period to 
assist us in fully considering issues and developing policies. Please 
provide a reference to the section on which you choose to comment.

A. Background

    The Fostering Connections to Success and Increasing Adoptions Act 
of 2008 (``Fostering Connections Act'') [Pub. L. 110-351], authorizes 
Indian Tribes, tribal organizations and tribal consortia to receive 
funding directly for Foster Care, Adoption Assistance, and Kinship 
Guardianship Assistance Programs under title IV-E of the Social 
Security Act. Such direct funding may begin in FY 2010 for Indian 
Tribes, tribal organizations or tribal consortia with approved title 
IV-E plans, or eligible Tribes may submit plans to operate such 
programs at any time in the future. Indian Tribes not operating their 
own programs may receive title IV-E funds through agreements with the 
States within which they are located, as authorized under prior law. To 
date, 86 Indian Tribes have submitted letters of intent to the 
Administration for Children and Families (ACF) indicating an interest 
in operating title IV-E programs. Seven Indian Tribes have received 
title IV-E plan development grants intended to assist Indian Tribes to 
develop their programs and prepare an approvable title IV-E plan, and 
one Indian Tribe has submitted a title IV-E plan that is currently 
under review within ACF. Approximately 90 Indian Tribes currently 
operate programs under title IV-E agreements with States.
    The Federal share of assistance payments for the Title IV-E Foster 
Care, Adoption Assistance and Kinship Guardianship Assistance Programs 
is calculated using the Federal Medical Assistance Percentage (FMAP), 
which is the match rate developed originally for use in the Medicaid 
Program. FMAP is calculated annually for each State by HHS according to 
a formula specified in statute (section 1905(b) of the Social Security 
Act, 42 U.S.C. 1396d(b)). A table displaying each State's FMAP is 
published annually in the Federal Register and is used by the Centers 
for Medicare & Medicaid Services (CMS) and others, including the 
Administration for Children and Families (ACF), in calculating the 
Federal share of State and territorial

[[Page 62396]]

expenditures for programs that use the FMAP for determining Federal 
financial participation. The FMAP formula involves comparing the 
State's average per capita income over a three year period with the 
average per capita income of the U.S. as a whole for the same three 
year period, and results in FMAP rates that vary between statutory 
minimum and maximum levels of 50 and 83 percent. The formula produces 
higher Federal matching rates for jurisdictions with lower average per 
capita incomes relative to the U.S. average. Indian Tribes previously 
have not been authorized to administer Federal programs that use FMAPs 
and therefore tribal FMAPs have not previously been calculated.
    Section 301 of the Fostering Connections Act added Section 479B to 
the Social Security Act defining Tribal title IV-E Programs. Section 
479B(d) provides for the funding of foster care and adoption assistance 
programs operated by Indian Tribes and requires HHS to establish FMAP 
rates for Indian Tribes, tribal organizations, or tribal consortia. 
Each Tribe's annual FMAP shall be based on the per capita income of the 
service population of the Indian Tribe, tribal organization, or tribal 
consortium. However, no tribal FMAP shall be lower than the FMAP of any 
State in which the Indian Tribe, tribal organization, or tribal 
consortium is located. That is, for Indian Tribes located in multiple 
States, the Indian Tribe's FMAP (and that to be used with respect to 
claiming through any title IV-E agreements between the Indian Tribe and 
a State title IV-E agency) will be at least as high as that of 
whichever of the States in which it is located that has the highest 
FMAP. The FMAP described here will be used for Indian Tribes' title IV-
E Foster Care, Adoption Assistance, and Kinship Guardianship Assistance 
programs whether they are administered directly by the Indian Tribe or 
through an agreement with a title IV-E State agency. The specific 
statutory language reads as follows:
    (d) Determination of Federal Medical Assistance Percentage for 
Foster Care Maintenance and Adoption Assistance Payments:
    (1) Per Capita Income--For purposes of determining the Federal 
medical assistance percentage applicable to an Indian Tribe, a tribal 
organization, or a tribal consortium under paragraphs (1), (2), and (5) 
of section 474(a), the calculation of the per capita income of the 
Indian Tribe, tribal organization, or tribal consortium shall be based 
upon the service population of the Indian Tribe, tribal organization, 
or tribal consortium, except that in no case shall an Indian Tribe, a 
tribal organization, or a tribal consortium receive less than the 
Federal medical assistance percentage for any State in which the Tribe, 
organization, or consortium is located.
    (2) Consideration of Other Information--Before making a calculation 
under paragraph (1), the Secretary shall consider any information 
submitted by an Indian Tribe, a tribal organization, or a tribal 
consortium that the Indian Tribe, tribal organization, or tribal 
consortium considers relevant to making the calculation of the per 
capita income of the Indian Tribe, tribal organization, or tribal 
consortium.
    The law also requires the application of the tribal FMAP, if higher 
than the State FMAP, for assistance payments claimed by a State IV-E 
agency under title IV-E agreements and contracts between States and 
Indian Tribes. (See Section 474(a)(1) and (2) of the Social Security 
Act.)

B. Calculation of FMAP for Indian Tribes

    The formula for calculating FMAP for States is specified in title 
XIX of the Social Security Act (section 1905(b), 42 U.S.C. 1396d(b)). 
FMAP is calculated according to the following formula:

1-0.45 ((State Per Capita Income)\2\/(U.S. Per Capita Income)\2\)

    The FMAP for a State cannot be less than 50 percent or more than 83 
percent. HHS proposes to use the same formula to calculate FMAP for 
Indian Tribes for title IV-E programs, substituting the Indian Tribe's 
per capita income data for that of the State. That is: 1-0.45((Indian 
Tribe's Per Capita Income)\2\/(U.S. Per Capita Income)\2\).
    As required by statute, the minimum rate of 50% and the maximum 
rate of 83% will apply to Indian Tribes. The FMAP rate for each Indian 
Tribe will be calculated each year in advance of the upcoming fiscal 
year. Rather than use decimal places, tribal FMAP rates will be rounded 
up to the next highest whole number (up to a maximum of 83 percent).

C. Data Sources for Calculation of FMAP for Indian Tribes

    When calculating FMAP for States, HHS uses data on per capita 
income produced by the Bureau of Economic Analysis (BEA) within the 
Department of Commerce, as required by the Medicaid statute (Section 
1101(a)(8)(B) of the Social Security Act, 42 U.S.C. 1301(a)(8)(B)). 
However, BEA does not have data available regarding per capita income 
for Indian Tribes. Alternative data sources must therefore be used to 
calculate FMAP for Indian Tribes. HHS has researched available sources 
of income data for Indian Tribes and has concluded that up to date 
annual data on per capita income are not currently available for most 
Indian Tribes.
    The U.S. Census Bureau produces the only consistent national data 
regarding per capita income for each Indian Tribe. However, the source 
of these data is currently in transition. Per capita income that has in 
the past been collected every 10 years through the decennial census 
``long form'' will in the future be collected by the Census Bureau 
using the American Community Survey (ACS), an ongoing data collection 
mechanism. ACS data will be updated more frequently than Decennial 
Census data, leading to more current estimates in the future. The ACS 
provides annual (1-year) estimates for geographic areas with 
populations of 65,000 or more. By pooling responses from multiple years 
of ACS data, 3-year estimates are currently produced for geographic 
areas with populations of 20,000 or more. Few Indian Tribes, however, 
are large enough for either annual or 3-year estimates to be produced. 
Of the 86 Tribes and tribal organizations that submitted letters of 
intent to ACF indicating an interest in operating title IV-E programs, 
3-year ACS data is available for only eight. Beginning late in calendar 
year 2010 (during Federal Fiscal Year 2011) 5-year estimates will 
become available from the Census Bureau for smaller geographic areas, 
including all Indian Tribes and tribal lands for which Decennial Census 
data has previously been collected. The 3-year and 5-year estimates 
will be updated annually beginning in calendar year 2011.
    HHS plans to use ACS 5-year estimates as the data source for FMAP 
calculations applying to the fiscal year following the April in which 
such data are available. The Census Bureau currently projects that 
these data will become available by the end of calendar year 2010. 
Assuming the data are released as expected or no later than April 2011, 
HHS will use ACS 5-year estimates for 2012 FMAP calculations for Indian 
Tribes.
    Until ACS data become consistently available, the only complete 
source of per capita income data for Indian Tribes and tribal 
communities is that of the 2000 Decennial Census, which reports 1999 
per capita income data for Indian tribal lands. However, these data are 
now ten years old and may not represent current tribal income levels. 
While current levels are preferable for use in calculating the FMAP, 
such data do not yet exist. In the absence of more

[[Page 62397]]

recent data, HHS determined that relying on data from the 2000 
Decennial Census is the most viable option until the ACS data becomes 
available for all Indian Tribes.
    We considered whether to use ACS estimates for the several Indian 
Tribes for which it is available, but decided that it would be more 
equitable to use the same data source for calculating FMAP for all 
participating Indian Tribes, tribal organizations and tribal consortia. 
Therefore, for tribal FMAP rates applying to Fiscal Years 2010 and 
2011, HHS will rely on per capita income data from the 2000 Decennial 
Census, which is the most current data source identified that contains 
information about per capita incomes for the full range of Indian 
Tribes.
    The law requires that FMAP be calculated on the basis of the Indian 
Tribe's ``service population'' for its title IV-E program. Census 
Bureau data regarding per capita income (including that produced for 
the Decennial Census and the ACS) can be presented (a) For the total 
population (all races) living on or near the tribal lands; (b) for the 
population of individuals identifying themselves only as American 
Indian or Alaska Native (AI/AN); or (c) for the population who identify 
themselves as either AI/AN alone or in combination with another race 
(that is, including multiracial individuals who identify themselves as 
part AI/AN). Data for populations described in (a) and (b) are standard 
figures available through the Census Bureau's ``American Factfinder'' 
Web site (www.factfinder.census.gov). Data on the ``AI/AN alone or in 
combination'' population is available only through special tabulations 
which may be purchased from the Census Bureau.
    In the absence of information on how to characterize Indian Tribes' 
intended title IV-E service populations, HHS proposes to use per capita 
income data for the population of individuals identifying themselves 
only as American Indian or Alaska Native. These data are readily 
available without special tabulation and does not typically differ 
substantially from the ``AI/AN alone or in combination'' population. It 
is our understanding that figures for the total population living on or 
near tribal lands includes many persons who are not enrolled members of 
the Indian Tribe and therefore may not accurately reflect the incomes 
of the service population. We encourage comments on the issue of which 
conceptualization of the population should be used in selecting data 
for FMAP calculations.
    Table 1 shows the FMAP rates resulting from various per capita 
income figures in the 2000 Decennial Census. To determine an Indian 
Tribe's Federal Medical Assistance Percentage (FMAP) for Fiscal Years 
2010 and 2011, the Indian Tribe's per capita income as shown in the 
2000 Decennial Census may be matched to the figures in Table 1. Figures 
falling between any two percentage rates will be rounded up to the next 
whole number. Per capita income figures of $13,054 or less in the 2000 
Decennial Census result in the maximum FMAP of 83%. Most Indian Tribes 
have relatively low per capita incomes and would therefore qualify for 
the maximum rate.
    Per capita income data for individual Indian Tribes may be found on 
the Census Bureau Web site at www.factfinder.census.gov. The relevant 
information is in Census 2000 Summary File 3. Under ``custom tables,'' 
the geographic type ``American Indian Area/Alaska Native Area/Hawaiian 
Homelands'' identifies Indian Tribes. The per capita income figure the 
Department intends to use for FMAP calculations is found in table 
P157C.

D. Calculations for Tribal Organizations and Tribal Consortia

    As specified in The Fostering Connections Act, tribal IV-E programs 
may be operated by federally-recognized Indian Tribes, tribal 
organizations and consortia of Indian Tribes. In the case of tribal 
organizations and consortia, data on an individual Indian Tribe will 
not be sufficient for the calculation of the appropriate FMAP. In the 
case of a tribal organization or tribal consortium composed of two or 
more Tribes, HHS will calculate FMAP by weighting the per capita income 
data according to the proportional representation of each Tribe's 
service population relative to the total service population of the 
organization or consortium. For instance, if Tribe A with a population 
of 6,000 members and Tribe B with a population of 4,000 members 
together operate a title IV-E program, the applicable FMAP would be 
calculated by weighting the per capita income figures for the two, such 
that Tribe A's per capita income is multiplied by the ratio of its 
population (6,000) to the combined population of the consortia 
(10,000), that is 6,000/10,000 or 0.6, and Tribe B's per capita income 
is multiplied by 4,000/10,000 (or 0.4) and the two weighted per capita 
income figures would be added to produce the per capita income figure 
for the FMAP formula.

E. Procedures for Producing Annual Updates to Federal Medical 
Assistance Percentages for Indian Tribes

    For fiscal years beyond 2011, the Department plans to use American 
Community Survey 5-year data for the per capita income estimates of 
Indian Tribes as well as for the U.S. per capita income information 
necessary for the FMAP formula. At that point, FMAP rates will be 
updated annually based on the most recent ACS 5-year estimates 
available. The formula for the calculation will remain as described 
above. In the third quarter of each fiscal year ACF regional office 
staff will communicate with each Indian Tribe, tribal organization, or 
tribal consortium their tribal FMAP rate for the upcoming fiscal year. 
Because most Indian Tribes will be receiving the maximum FMAP rate and 
per capita incomes do not tend to change rapidly, it is likely that 
many programs will see little, if any, matching rate shifts from year 
to year. A link to a table similar to the one at the end of this notice 
will be posted annually on ACF's Web site (http://www.acf.hhs.gov) 
displaying the per capita income thresholds for each FMAP rate for the 
fiscal year.

F. Consideration of Supplemental Data

    The Fostering Connections Act specifies that before the tribal FMAP 
calculations for each fiscal year become effective the Secretary shall 
consider relevant data (e.g., ACS 3-year data) the Indian Tribe, tribal 
organization or tribal consortium may submit relating to the per capita 
income calculation.
    In the absence of supplemental data, HHS will use the data and 
procedures described above to calculate the applicable FMAP for the 
grantee. Indian Tribes, tribal organizations and tribal consortia may 
submit additional relevant data for the Department's consideration in 
making the FMAP calculation and such data will be evaluated by the 
Division of Mandatory Grants in the Office of Grants Management at ACF. 
Such data may be submitted to the attention of Joseph Lonergan, 
Director, Division of Mandatory Grant, ACF Office of Grants Management, 
at 202-401-6603 (phone); 202-401-5644 (fax); or e-mail: 
[email protected]. Supplemental data may relate to matters such as the 
per capita income of the Indian Tribe, tribal organization or 
consortium, the numbers and/or geographic locations of its service 
population, and/or defining the grantee's service population to include 
individuals other than those who identified themselves as American 
Indian only to be considered for the

[[Page 62398]]

purposes of calculating the applicable per capita income.
    Data to be considered for a given fiscal year's calculation should 
be submitted no less than 30 days before the beginning of the next 
fiscal year (September 1) in order to provide sufficient time for the 
Department to evaluate the suitability of the additional data. Tribal 
leadership will be consulted prior to a final decision by the 
Department regarding the suitability of any supplemental data 
submitted. The Department will also work closely with tribal leaders 
before establishing a final FMAP for the upcoming fiscal year.

G. Application of Temporary Increases to Tribal Federal Medical 
Assistance Percentages

    From time to time Congress provides for adjustments to FMAP rates 
in response to economic conditions or other circumstances. At present 
and continuing through the first quarter of Fiscal Year 2011 (that is, 
December 30, 2010), States are receiving a temporary increase in their 
FMAP rates, including a temporary increase of 6.2 percentage points 
that is applicable to all title IV-E programs in which assistance 
payments are claimed. The statutory authorization for the temporary 
increase is found in section 5001 of the American Recovery and 
Reinvestment Act (ARRA), Public Law 111-5. In addition, Public Law 111-
226, the Education, Jobs and Medicaid Assistance Act, provides for 
rates of 3.2 percentage points above regular FMAP rates for the second 
quarter of Fiscal Year 2011 (January 1, 2011 through March 31, 2011) 
and 1.2 percentage points above regular FMAP rates for the third 
quarter of Fiscal Year 2011 (April 1, 2011 through June 30, 2011). 
Increased rates authorized by Public Law 111-226 apply to States only 
if the State's Chief Executive Officer certifies by September 24, 2010 
that the State will request and use the additional funds.
    To the extent permitted by statute, it is HHS's intention to treat 
Indian Tribes, tribal organizations, and tribal consortia in the same 
manner as States. We have determined that the temporary FMAP increases 
described above will apply to tribal FMAP as they do to States. In the 
table at the end of this announcement, both standard and temporarily 
adjusted FMAP applicable through December 30, 2010 are shown. The 
temporary increases applicable to the second and third quarters of 
Fiscal Year 2011 are not shown on the table but may be similarly 
calculated. The applicability of any future FMAP adjustments to Indian 
Tribes, tribal organizations, and tribal consortia will depend on the 
specific statutory language enacting such adjustments.
    We encourage interested parties to provide comments on the 
methodology and data sources for calculating the Tribal FMAP rates for 
title IV-E programs. Specifically, we invite comment on the definition 
of service population adopted in this notice and alternate data sources 
for per capita income of Indian tribes, tribal organizations, and 
tribal consortia.

FOR FURTHER INFORMATION CONTACT: Laura Radel, Office of the Assistant 
Secretary for Planning and Evaluation, Room 404-E--Hubert H. Humphrey 
Building, 200 Independence Avenue, SW., Washington, DC 20201; 202-690-
5938; [email protected].

(Catalog of Federal Domestic Assistance Program Nos. 93.658: Foster 
Care Title IV-E; 93.659: Adoption Assistance; 93.090: Guardianship 
Assistance)

    Dated: July 1, 2010.
Kathleen Sebelius,
Secretary.

------------------------------------------------------------------------
 1999 Tribal per capita income range                     FMAP including
   from 2000 decennial census data                       6.2 percentage
-------------------------------------                    point increase
                                       Resulting FMAP     authorized by
                                          (percent)     ARRA through the
  Income greater    Income less than                    first quarter of
 than or equal to     or equal to                            FY 2011
                                                            (percent)
------------------------------------------------------------------------
                        Per Capita Income Levels
    Matched to FY 2010/FY 2011 Federal Medical Assistance Percentage
------------------------------------------------------------------------
  To determine an Indian Tribe's Federal Medical Assistance Percentage
   (FMAP) for Fiscal Years 2010 and 2011, find the Indian Tribe's per
   capita income from the 2000 Decennial Census (American Indian Alone
                 population) in the list of FMAPs below.
 
    1999 Per Capita Income from the 2000 Decennial Census Data: U.S.
                           Estimate = $21,587
 
   FMAP Formula: 1-0.45 x (Indian Tribe Per Capita Income \2\/U.S. Per
                           Capita Income \2\)
------------------------------------------------------------------------
             $0            $13,652                 83              89.2
         13,653             14,027                 82              88.2
         14,028             14,391                 81              87.2
         14,392             14,746                 80              86.2
         14,747             15,093                 79              85.2
         15,094             15,433                 78              84.2
         15,434             15,765                 77              83.2
         15,766             16,090                 76              82.2
         16,091             16,408                 75              81.2
         16,409             16,721                 74              80.2
         16,722             17,028                 73              79.2
         17,029             17,329                 72              78.2
         17,330             17,625                 71              77.2
         17,626             17,917                 70              76.2
         17,918             18,203                 69              75.2
         18,204             18,486                 68              74.2
         18,487             18,764                 67              73.2
         18,765             19,038                 66              72.2
         19,039             19,308                 65              71.2
         19,309             19,574                 64              70.2
         19,575             19,837                 63              69.2
         19,838             20,096                 62              68.2
         20,097             20,352                 61              67.2
         20,353             20,605                 60              66.2
         20,606             20,855                 59              65.2

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         20,856             21,102                 58              64.2
         21,103             21,346                 57              63.2
         21,347             21,587                 56              62.2
         21,588             21,825                 55              61.2
         21,826             22,061                 54              60.2
         22,062             22,295                 53              59.2
         22,296             22,526                 52              58.2
         22,527             22,754                 51              57.2
         22,755    .................               50              56.2
------------------------------------------------------------------------

[FR Doc. 2010-25344 Filed 10-7-10; 8:45 am]
BILLING CODE 4150-05-P
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