Foster Care: HHS Needs to Improve the Consistency and Timeliness of Assistance to Tribes
Published: 2015-02-25T00:00:00

Fast Facts:

Highlights:
section_title: Why GAO Did This Study
paragraphs: Title IV-E of the Social Security Act provides federal support for foster care and adoption assistance programs. Since 2008, 5 tribes have been approved to operate their own title IV-E foster care programs, although more than 80 tribes initially expressed an interest in doing so. HHS provides development grants and technical assistance to tribes interested in establishing a title IV-E program. GAO was asked to review tribes' experiences with title IV-E.
This report examines (1) obstacles facing tribes interested in directly operating a title IV-E program and (2) the assistance HHS has provided. GAO interviewed officials from 17 tribes, 11 of which were currently developing title IV-E programs. These tribes were selected to achieve variation in progress toward developing a title IV-E program, size of the tribe, and HHS region. While this information is non-generalizable, it provides examples of tribes' experiences with the program. GAO also interviewed HHS and Bureau of Indian Affairs officials, and child welfare experts.
section_title: What GAO Found
paragraphs: Indian tribes developing title IV-E foster care programs faced resource constraints and reported challenges adopting some program requirements. According to GAO's interviews with tribal and Department of Health and Human Services (HHS) officials, the resource constraints faced by tribes include limited numbers of staff and staff turnover. While the Fostering Connections to Success and Increasing Adoptions Act of 2008 (Fostering Connections Act) allows tribes to administer a title IV-E foster care program, it generally did not modify title IV-E's requirements for tribes. By contrast, some other programs administered by HHS offer tribes additional flexibilities, provided they are consistent with the objectives of the program. Given tribes' resource constraints and cultural values, adopting some title IV-E requirements has been difficult. For example, officials from 6 of 11 tribes developing title IV-E programs that GAO interviewed said that the requirement to electronically submit case-level data on all children in foster care was challenging. In addition, 7 of these 11 tribal officials reported that incorporating termination of parental rights—which severs the legal parent-child relationship in certain circumstances—into their tribal codes was challenging because it conflicts with their cultural values. HHS recognizes that termination of parental rights may not be part of an Indian tribe's traditional beliefs; however according to the agency it lacks the statutory authority to provide a general exemption for tribal children from the requirement.
HHS provided assistance to tribes interested in directly operating a title IV-E program through its regional offices, headquarters office, and technical assistance providers. Eight of the 11 tribes GAO spoke with reported using HHS-funded technical assistance providers, including a tribally-focused center that was established after the enactment of the Fostering Connections Act. However, GAO found that there are no procedures in place to ensure that the guidance provided by HHS regional staff is consistent across offices or that the review of tribes' draft IV-E plans is timely. To operate a title IV-E program, HHS must approve a tribe's title IV-E plan, ensuring that it complies with program requirements. HHS does not provide its staff or tribes with examples of tribal codes or regulations that would satisfy title IV-E requirements. Regional staff may use their discretion to determine what is allowable in a tribe's plan. HHS officials said they do not provide examples because each tribe is unique and examples for one tribe may not be appropriate for all tribes. However, officials from 6 of 11 tribes GAO interviewed said that they received conflicting guidance from HHS officials, some of them from the same HHS office. Officials from one tribe said that participating in title IV-E peer-to-peer consultations with other tribes—an activity encouraged and sponsored by HHS—can be frustrating because regional offices have provided tribes with different information. HHS officials said that inconsistencies often resulted from differing tribal circumstances rather than interpretations of federal policy. In addition, officials from six tribes GAO spoke with said HHS's suggested revisions on their draft title IV-E plans were not provided in a timely manner. HHS headquarters officials have not provided regional staff with expected timeframes for draft title IV-E plan reviews and there is no limit on the amount of time staff may spend on the reviews. As a result, tribes may continue to have long title IV-E plan development and review periods and limited direct access to federal child welfare program funding.
section_title: What GAO Recommends
paragraphs: GAO recommends that HHS (1) consider submitting a legislative proposal if it determines that flexibilities in program requirements would enable more tribes to participate in title IV-E, (2) take steps to provide consistent guidance to tribes on their IV-E plans, and (3) establish procedures to ensure timely reviews of draft plans. HHS agreed with our first two, but did not agree with the third recommendation. GAO maintains the need for procedures, such as clear timeframes, to ensure timely IV-E plan reviews.

section_title: Letter
paragraphs: Some Indian tribes administer their own foster care programs, but until  2009, tribes did not have direct access to funds provided under title IV-E  of the Social Security Act. Title IV-E is the largest single federal source of  child welfare funding, providing nearly $7 billion in fiscal year 2014 to  child welfare agencies. Title IV-E authorizes funding to states and Indian  tribes to help cover the costs of operating their foster care, adoption  assistance, and guardianship assistance programs. This funding primarily  provides financial support for the care of eligible children who have been  removed from their homes due to abuse or neglect, as well as to families  who adopt eligible children with special needs from the foster care  system.
The Fostering Connections to Success and Increasing Adoptions Act of  2008 (Fostering Connections Act) made federally recognized Indian tribes  directly eligible for title IV-E funding for the first time.the legislation as recognition of tribal sovereignty and affirmation of tribal  rights and responsibilities to care for their children. As of December 2014,  five tribes are approved to operate a title IV-E foster care program;  although over 80 tribes initially expressed an interest in doing so. Each  year since 2008, additional tribes have expressed an interest in operating  their own title IV-E program. The Department of Health and Human  Services (HHS) is responsible for overseeing states’ and tribes’  implementation of title IV-E. During fiscal years 2009 through 2014, HHS  awarded development grants to 27 tribes to help them establish title IV-E   Tribes embraced  programs. You asked us to review the actions HHS has taken to assist  tribes interested in directly operating a title IV-E program.
This report examines: (1) the obstacles facing tribes interested in directly  operating a title IV-E program and (2) how HHS has assisted interested  tribes. To address our objectives we conducted interviews with officials of  tribes and federal agencies and child welfare experts. We interviewed  representatives from 17 federally recognized tribes and tribal consortia in  Alaska, Arizona, California, Michigan, Montana, Oklahoma, and  Washington. Tribes in these states were selected to achieve variation in  how far along the tribe was in developing a title IV-E program and size of  the tribe. Our tribal interviewees included representatives of 11 tribes that  are currently developing title IV-E programs. The other six tribes initially  expressed interest in title IV-E but are not currently developing title IV-E  programs. We also convened two discussion groups with tribes. One  discussion group was held at the National Indian Child Welfare  Association annual conference in April 2014 and the other was held at the  Casey Family Programs’ Tribal Title IV-E Development Plan Grantee  Convening in May 2014. In total, representatives of 19 tribes participated  in the two discussion groups. The information obtained in our interviews  and discussion groups with tribes is not generalizable, but provides  examples of tribes’ experiences with developing title IV-E programs and  obtaining related HHS technical assistance.
We interviewed officials from HHS’s Administration for Children and  Families (ACF), including the nine regional offices that provide technical  assistance to federally recognized tribes and the fiscal year 2010-2014  HHS-funded tribal resource center. We also interviewed Social Services  program staff at the Department of the Interior Bureau of Indian Affairs  (BIA). In addition to conducting interviews, we reviewed relevant federal  laws, regulations, and HHS guidance. We reviewed studies related to  tribes’ experiences with the title IV-E program and interviewed five child  welfare experts. To describe the activities undertaken by tribal  development grantees to help establish their title IV-E programs, we  analyzed semi-annual progress reports submitted to HHS from March  2010 through March 2014 for the 21 tribes awarded grants from fiscal  year 2009 through fiscal year 2013. For more information on our scope  and methodology, see appendix I.
We conducted this performance audit from February 2014 to February  2015 in accordance with generally accepted government auditing  standards. Those standards require that we plan and perform the audit to  obtain sufficient, appropriate evidence to provide a reasonable basis for  our findings and conclusions based on our audit objectives. We believe  that the evidence obtained provides a reasonable basis for our findings  and conclusions based on our audit objectives.
subsections: section_title: Background
subsections: section_title: Tribal Child Protection and Child Welfare Systems
paragraphs: Federally recognized tribes are distinct, independent political communities  that possess certain powers of self-government. Federally recognized  tribes and their members receive certain benefits because of their status  as Indians. At the same time, as U.S. citizens, tribal members are  afforded the same rights and protections as any non-Indian U.S. citizen,  including any specific rights from the states in which they reside.
Indian children enter foster care at twice the rate of all American children.  In 2012, Indian children comprised 1 percent of the total U.S. child  population, although they accounted for 2 percent of children in foster  care, according to HHS data. Multiple agencies, both tribal and non- tribal, can provide child protection and child welfare services for Indian  children at the same time. An Indian child could be the alleged victim of  abuse or neglect reported under any state, tribal, or federal reporting  procedures. Consequently, the agency that receives and potentially  responds to a report of child maltreatment involving an Indian child  depends on a range of factors, including where the child is living, the  nature of the allegation, and the specific state, tribal, or federal  agreements or resources in place to investigate and serve the child and  family. For example, through a memorandum of understanding or other  agreement, tribes may collaborate with state workers to respond to  allegations of maltreatment and provide case management services. In  some cases, BIA social workers may provide protective and other  services.
section_title: Federal Funding for Tribal Child Welfare Programs
paragraphs: Tribes have direct access to some of the federal resources used by states  to finance child welfare programs under programs administered by HHS.  In addition, there are federal funding streams unique to tribes that are  administered by BIA (see table 1). Tribes may participate in some or all of  these programs, and therefore the total amount of federal resources  received by each tribe varies. For example, in fiscal year 2013 there were  approximately 68 tribal Temporary Assistance for Needy Families (TANF)  programs, and in fiscal year 2014, 189 tribes participated in title IV-B  subpart 1. Title IV-B subpart 1 provides funding for child welfare  services—such as parent support and counseling for children and  families—and tribes must be operating this program to participate in title  IV-E.
section_title: Direct Tribal Access to Title IV-E
paragraphs: Prior to the Fostering Connections Act, tribes were not eligible to directly  receive title IV-E funding but could enter into cooperative agreements with  states to administer part of the program. The Act, for the first time,  authorized tribes to directly operate a title IV-E program and obtain  federal reimbursement for eligible program costs. States and tribes are  entitled to federal reimbursement for a portion of eligible title IV-E  program costs. The reimbursement rate varies by type of expense. The  federal share of foster care maintenance payments is between 50 percent  and 83 percent of costs, with higher federal support going to states and  tribes with lower per capita incomes. The federal share of training and  administrative costs is 75 percent and 50 percent, respectively.
The Act requires HHS to apply the provisions of the title IV-E program to  tribes that operate their own programs in the same manner as states, with  limited exceptions. Both states and tribes seeking to operate a title IV-E  program must have an approved title IV-E plan. The title IV-E plan  provides documentation that state or tribal law, regulations, and policies  comply with program requirements. Some of these program requirements  with respect to children in foster care require that states and tribes: make reasonable efforts, consistent with the health and safety of the  child, to preserve and reunify families (1) prior to a child’s placement  in foster care, to prevent the need for removing the child; and (2) to  make it possible for the child to safely return home; prepare a written case plan for each child receiving foster care  maintenance payments and ensure periodic court or administrative  review of each such case; ensure that each child is placed in a safe setting that is the least  restrictive (most family like) and most appropriate setting available,  consistent with the child’s best interest and special needs; make reasonable efforts to place siblings together and ensure  frequent visits between siblings not jointly placed, unless contrary to  their safety or well-being; within a specified time period, hold a permanency hearing and make  reasonable efforts to finalize the permanency plan for each child  (reunification, adoption, legal guardianship, placement with a fit and  willing relative, or another planned permanent living arrangement);  and maintain a child’s education and health records in the case plan and  include a plan to ensure the educational stability of the child while in  foster care.
The title IV-E program also has a number of administrative and financial  requirements. For example:
States and tribes operating a title IV-E program must collect and  report semi-annually to HHS case-level data on all children in foster  care and those who have been adopted with title IV-E agency  involvement. These data are required to be electronically submitted as  part of HHS’s Adoption and Foster Care Analysis and Reporting  System (AFCARS).
Title IV-E funding is provided by HHS in advance through quarterly  estimated grant awards. These estimates are reconciled to reported  actual expenditures after the close of each quarterly reporting  period. In general, states and tribes are only reimbursed for costs  related to children who are eligible for title IV-E assistance.
Tribes must develop a cost allocation methodology (CAM) to  determine what share of the training, data collection, and other  program administration costs may be allocated to title IV-E.
section_title: Title IV-E Assistance for Tribes
paragraphs: To help tribes develop title IV-E programs, the Fostering Connections Act  appropriated $3 million annually for HHS to provide technical assistance,  implementation services, and program development grants. The  Children’s Bureau within the Administration for Children and Families  (ACF) at HHS provides technical assistance to tribes on title IV-E  program requirements via the nine regional offices that serve tribes, and  its technical assistance providers. The Children’s Bureau is also  primarily responsible for reviewing title IV-E plans and ensuring that child  welfare agencies meet program requirements. From fiscal year 2009,  when the grants were first awarded, through fiscal year 2014, ACF  awarded development grants to 27 tribes (see fig. 1). Grants are not to  exceed $300,000. The population of the grantee tribes and the number of  children they could potentially serve varies. For example, according to  BIA data, the 2010 estimated populations of Navajo Nation, Eastern Band  of Cherokee Indians, and Winnebago Tribe of Nebraska were 195,995,  8,600, and 1,450, respectively.
Tribes can use development grants for any cost related to developing a  title IV-E plan and meeting program requirements, such as hiring  personnel or developing a CAM. The Act requires grantees to submit a  title IV-E plan within 24 months of receiving the grant. ACF awarded  tribes development grants for a 24-month period, and may grant tribes an  extension of the initial grant period so that the tribes can continue working  on the title IV-E plan and spend the remaining grant funds. As of  November 2014, 15 of the 16 grantees that have reached the end of their  initial 24-month period received a 1-year extension from ACF to continue  working on the title IV-E plan (see table 2). There are currently five tribes  with an approved title IV-E plan; four of these tribes received a title IV-E  development grant and one did not. Tribes can continue to work on the  title IV-E plan after the initial development grant and grant extension  periods have ended, and several have done so. In its 2014 Strategic  Plan, ACF identified approving additional tribal title IV-E plans as an  agency goal.
section_title: Selected Tribes Reported Resource Constraints and Certain Program Requirements as Obstacles to Directly Operating a Title IV-E Program
subsections: section_title: Insufficient Staff, Staff Turnover, and a Lack of Expertise Made Establishing Title IV-E Programs Challenging
paragraphs: We found that challenges related to staffing were a resource constraint  faced by tribal child welfare programs. Adequacy of staffing is a  significant workforce challenge for tribal child welfare programs in  general, according to a 2011 survey by the National Child Welfare  Resource Center for Tribes and our interviews with tribal officials.  Although staffing is also an issue for state child welfare agencies, it is  especially challenging for tribes because they are commonly located in  rural areas, may only have one or two paid staff for all child welfare  efforts, and lack funding to hire additional staff. We interviewed officials  with 11 tribes that were in various stages of developing a title IV-E plan  and representatives from 7 of these tribes said they have a small number  of staff working on the title IV-E program, and that the staff are often  managing child welfare cases and implementing other tribal programs  such as child support or TANF.
Staff turnover has also been a challenge for tribes establishing title IV-E  programs, according to HHS documents and officials. HHS documents  show that at least 13 of 21 tribes that received title IV-E development  grants from fiscal year 2009 through fiscal year 2013 lost at least one  staff member who was working on the title IV-E plan. In one case, a tribe  reported having four different child welfare directors within a 6-month  period, making it difficult to identify project needs during that time.
Officials in seven of the nine HHS regional offices that work with tribes  said staff turnover has occurred among the tribes in their region,  hindering the tribes’ ability to develop a title IV-E program. HHS regional  officials noted that when staff turnover occurs, a tribe’s child welfare  department loses institutional knowledge and its priorities may change if  there is new leadership.
In addition, insufficient expertise among the staff working on the title IV-E  plan has been an obstacle. One HHS regional official told us it is difficult  for tribes to hire highly skilled child welfare workers because tribes are  unable to compete with salaries paid elsewhere. The 2011 study by the  National Child Welfare Resource Center for Tribes found that some tribal  child welfare workers need additional training on delivering child welfare  services, such as an increased understanding of the child welfare legal  processes and court systems. Officials from two tribes told us that it can  take several months to learn and understand title IV-E program  requirements prior to beginning work on the title IV-E plan.
Child welfare experts and officials from tribes that initially expressed an  interest in title IV-E also said resource constraints hindered tribes’ ability  to implement title IV-E. All five experts we interviewed also said it is  difficult for tribes to establish title IV-E programs because they often have  fewer resources than states, their staffs are balancing multiple  responsibilities, or there is limited funding to address these needs. These  constraints prevented some tribes that initially expressed an interest in  the program from moving forward to develop a title IV-E plan. We  interviewed officials from six of these tribes and they all told us that due to  limited resources, among other considerations, they decided not to  pursue operating a title IV-E program.
Tribes used title IV-E development grants to address these staffing  needs, according to our analysis of progress reports submitted by the 11  tribes that have completed their grant period (see fig. 2). All 11 tribes  hired additional staff, such as program coordinators, to help develop the  title IV-E plan. All 11 grantees reported participating in and developing  staff training. For example, one tribe developed a survey that revealed a  need for staff training on title IV-E eligibility and also identified the  particular departments that needed training. The progress reports also  show that 9 of the 11 grantees hired a consultant for assistance in  completing specific sections of the title IV-E plan.
section_title: Selected Tribes Reported Challenges Adopting Some Title IV-E Requirements
paragraphs: Tribal officials reported challenges adopting some title IV-E program  requirements, including requirements related to termination of parental  rights, collecting case-level data for children in foster care, and  developing a CAM. While the Fostering Connections Act allowed tribes to  directly operate a title IV-E program, it generally did not modify the  program’s requirements or provide flexibilities for tribes. In contrast, the  laws authorizing other programs administered by HHS provide or allow for  certain flexibilities to tribes. For example, the tribal TANF program  provides more flexibility than the state TANF program, such as allowing  tribes to set their own requirements for the minimum number of hours an  individual must work and include additional activities that count as work,  subject to HHS approval. In addition, HHS regulations implementing the  child support enforcement program allow tribes some flexibility to develop  child support programs that are consistent with tribal law and traditions,  provided they meet the objectives of the program. ACF, tribal officials,  and child welfare experts told us the title IV-E program is inflexible and  does not acknowledge that tribes are culturally and organizationally  different from states. In addition, one study found that more tribes might  qualify for title IV-E if the program’s policies were modified to make them  more applicable to the realities of tribal nation characteristics and  differences in tribal nation structure and culture.Connections Act provided tribes with equitable access to title IV-E funds,  but also required title IV-E program requirements to be applied to tribes in  the same manner as states. As a result, HHS officials told us they have  limited authority to modify title IV-E’s program requirements to address  some of the challenges tribes may face.
subsections: section_title: Termination of Parental Rights
paragraphs: Some tribes we contacted told us that termination of parental rights was  in conflict with their cultural values. The Social Security Act requires that  once a child has been in foster care for 15 out of the most recent 22  months, the title IV-E agency file a petition to terminate the parental rights  of the child’s parents and begin the adoption process, subject to certain  exceptions. Officials from 7 of the 11 tribes we interviewed that were  developing title IV-E plans said that incorporating required language on  termination of parental rights into their tribal codes or policies made it  difficult to obtain internal approval and successfully complete the title IV-E  plan. Tribes have difficulty adopting this language because of the history  of non-tribal families adopting tribal children and the resulting loss of  connection from the tribe, according to tribal officials. For example,  officials of one tribe we interviewed said some tribal council members  preferred the tribe not participate in the title IV-E program rather than  include provisions for termination of parental rights in its codes. Officials  at one tribe that initially expressed interest in directly operating a title IV-E  program said that a reason for not moving forward with the program was  the termination of parental rights requirements. The tribe did not want to  include a practice in its policies and procedures with which it  fundamentally disagreed. HHS has acknowledged that termination of  parental rights may not align with Indian tribes’ traditional beliefs, but  stated that the agency lacks statutory authority to provide a general   However, HHS  exemption for tribal children from the requirement.officials also noted that title IV-E provides exceptions to the requirement,  which tribes may use as appropriate on a case by case basis.
Generally, some tribal child welfare programs lack sufficiently  documented child welfare policies.
Although most tribes have an  existing judicial infrastructure and policies for their child welfare agency,  some modifications to existing tribal codes or administrative regulations  and policies may be required to be compliant with title IV-E. Our review of  the progress reports submitted to HHS by the 11 tribes that have  completed their development grant period found that grants were used to  update such policies. Each of the 11 grantees revised agency and tribal  court procedures to meet title IV-E requirements (see fig. 3). Officials from  one tribe told us that before developing their title IV-E plan, their tribe had  not updated their child welfare codes in several decades. One HHS  regional official described working with a tribe to develop its policies  because the existing tribal code did not address foster care and the  administrative regulations for foster care did not meet title IV-E  requirements.
Methods for collecting child welfare data and the type of data collected  vary by tribe. Some tribes have electronic data systems, while others use  paper files to track child welfare data. A study found that many tribes  have technology infrastructure needs and there are limited tribal funds  available to devote to developing child welfare data systems.welfare expert we interviewed said tribes may have outdated computers  and information systems and the cost of software is often prohibitive  given a tribe’s resources.
Officials from 6 of the 11 tribes we interviewed that were developing a title  IV-E plan reported that title IV-E’s data collection requirements were an  obstacle to establishing a program. Tribal title IV-E agencies are required  to electronically submit demographic, placement, and other data on  children in foster care to HHS’s AFCARS. Tribes may collect and store  data using a paper-based process, spreadsheets, databases, or an  automated system. ACF has not endorsed one method for tribes to use to  collect and submit the required AFCARS data elements because the most  appropriate method for each tribe will depend on the tribes’ current  access to software and systems. ACF also stated that some Indian tribes  have limited technical resources to develop or upgrade a data reporting  system. If a tribe cannot electronically submit AFCARS data, HHS will  consider allowing tribal title IV-E agencies to submit the data through an  alternative method.
To manage child welfare data, tribes may elect to use a comprehensive  data collection system that compiles AFCARS data and could also  include information for other programs.was an initial misunderstanding among some tribes that in order to  operate a title IV-E program they were required to create a  comprehensive data system. ACF has worked with the development  grantees to clarify what is required since the first annual grantee meeting  in March 2010 and during monthly conference calls. While ACF   According to ACF officials, there  recommends that title IV-E agencies consider the benefits of using a  comprehensive data system, such a system is not required.
Our analysis of grantee progress reports submitted by 11 tribes found that  many have updated their data collection procedures (see fig. 4). For  example, 10 of the 11 developed data collection procedures to meet  AFCARS requirements and 6 of the 11 reported developing a  comprehensive data collection system. One tribe started developing a  comprehensive data system but ultimately decided to use Microsoft  Access due to a lack of funds to complete the system.
Grant programs with which tribes have experience differ from title IV-E’s  funding structure. Unlike TANF, for example, in which tribes receive  federal funding through block grants, tribes receive federal funding for title  IV-E based on a percentage of actual costs. A CAM outlines how the tribe  will identify and measure eligible title IV-E administrative and training  costs, such as time staff have spent on these types of activities on behalf  of eligible children.
Nine of the 11 tribes used title IV-E development grants to develop the  CAM, according to our analysis of grantee progress reports. In addition,  at least three of these tribes hired consultants to develop their CAM.
However, officials from 5 of the 11 tribes we interviewed that were  developing a title IV-E plan said creating a CAM was challenging. Some  tribal officials told us the CAM requirements are difficult to understand.  Officials from one tribe that successfully developed its CAM said they  were able to do so because its child welfare agency had its own fiscal  specialist; other tribes used a centralized fiscal department to develop  their methodology. One expert we interviewed said developing a CAM is  particularly challenging for tribes because staff time spent on title IV-E  must be segregated from time spent on other tasks and, as previously  noted, tribal child welfare staffs are small and individuals often work on  multiple programs. HHS officials told us that they recognize the need for  flexibility in the design and operation of CAMs given the limited resources  and staffing available to many tribes. In addition, HHS has provided  several national training sessions and direct assistance to individual tribes  to help them develop a CAM.
section_title: HHS Provided Technical Assistance and Guidance to Tribes Interested in Title IV-E but Did Not Always Meet Tribes’ Needs
subsections: section_title: HHS Assisted Tribes, but Selected Tribes Reported Difficulty in Accessing Assistance or with HHS’s Cultural Understanding
paragraphs: HHS provided title IV-E technical assistance to tribes through a variety of  methods (see fig. 5). This assistance was provided by ACF regional and  headquarters staff and through technical assistance providers.
HHS regional staff are the primary technical assistance providers for  tribes developing a title IV-E plan. For example, tribal IV-E development  grantees rely on guidance from their regional office to determine if their  title IV-E plans meet federal requirements. Regional office staff provide  title IV-E information to tribes through e-mail listservs, site visits, and  presentations to tribal leadership. In addition, tribes can submit written  requests for technical assistance from the Training and Technical  Assistance Network to their regional office for review and approval. ACF  headquarters staff also provide title IV-E assistance to tribes. For  example, headquarters staff oversee certain tribal grant requirements,  such as title IV-E financial reports and progress report submissions for  development grants. ACF headquarters staff also host an annual meeting  for tribes to describe title IV-E program requirements and answer tribes’  questions about the program.
ACF’s Training and Technical Assistance Network also provided support  to tribes. From fiscal year 2009 through fiscal year 2014, the network  included 11 National Resource Centers which provided assistance to  states and tribes on areas such as legal and judicial issues, child welfare  data and technology, and organizational improvement. One of these  centers, the National Child Welfare Resource Center for Tribes, focused  on activities such as engaging tribes to increase their access to and use  of the network, coordinating tribal training and technical assistance with  the other centers, and facilitating peer-to-peer child welfare consultation  among tribes. Technical assistance providers from this center said recent  requests from tribal grantees have focused on organizational  assessments, policy and procedures development, and assistance with  the title IV-E plan pre-print. The title IV-E plan pre-print is a document  developed by HHS that outlines all of the title IV-E program requirements  for use by title IV-E agencies and tribes developing a title IV-E plan.
Officials from 8 of 11 tribes developing IV-E plans we interviewed  reported using the National Resource Centers for assistance with  addressing title IV-E requirements. For example, officials from four of  these tribes reported using the National Resource Center for Child  Welfare Data and Technology, which works with states, courts, and tribes  to improve the quality of child welfare and youth data reported to the  federal government. Representatives from several of these tribes also  reported receiving assistance from the National Child Welfare Resource  Center for Tribes. For example, one tribe reported working with the  National Child Welfare Resource Center for Tribes to develop a family  team decision-making approach on how to care for their children and  develop a plan for services. Another tribe reported using the information  available on the center’s website, such as information sheets and  webinars, to learn about specific title IV-E issues. Although several tribes  used the National Resource Centers’ technical assistance services,  officials from 6 of 11 tribes we spoke with reported difficulties accessing  these services. An official from one tribe said it took 6 months to get a  training request approved, and an official from another tribe said its  request for training was denied. Additionally, officials from a third tribe  said when the tribe submitted written requests for assistance, the regional  office often made multiple revisions and comments regarding each  request. As a result of issues with accessing ACF resource centers, some  tribes have turned to organizations, such as Casey Family Programs and  the National Indian Child Welfare Association, for assistance on title IV-E  issues. HHS regional and headquarters officials explained that the  National Resource Center request process involved the technical  assistance providers, regional officials, and the tribe working together to  complete a request tailored to the tribes’ needs.
ACF recently restructured its Training and Technical Assistance Network  to better serve the needs of tribes. Specifically, in September 2014, the  National Resource Center cooperative agreements ended and ACF  transitioned to a new structure that includes three centers: a tribal- capacity building center, a center for states, and a center for court  improvement. According to headquarters officials, ACF centralized its  technical assistance for tribes to ensure that ACF is proactively identifying  and providing assistance to tribes. To address tribes’ past access  concerns, the tribal-capacity center provider has proposed a new  technical assistance request process, which it will finalize with ACF  before the center begins providing services in January 2015. The three  new centers will also be expected to work together and in close  coordination with the regional offices, according to ACF officials.
In addition to these access issues, some tribal officials we interviewed  said the assistance received from HHS lacked cultural understanding.  Representatives of 7 of the 11 tribes developing title IV-E plans we  interviewed said that they experienced cultural insensitivity when  receiving assistance from HHS staff. Tribal officials told us that HHS  headquarters and regional staff did not appropriately acknowledge the  government-to-government relationship the United States has with  federally recognized tribes. For example, three tribal officials reported that  HHS regional officials’ approach was inappropriately prescriptive when  working with their tribe. These tribal officials preferred that HHS instead  explain the title IV-E requirements and then allow the tribes to determine  how to meet them. Officials from two tribes also reported that HHS was  not aware that federal law authorizes a hiring preference for Indians in  some circumstances, and initially did not permit inclusion of this  preference in the tribes’ title IV-E plan based on discrimination  concerns. All five of the tribal child welfare experts we interviewed were  also concerned that HHS’s assistance does not always meet the needs of  tribes. These experts cited HHS officials’ lack of experience working with  tribes and understanding of the type of technical assistance needed, such  as in-person or intensive capacity-building assistance. In a recent report,  HHS also noted that in-person meetings with tribal communities can help  build relationships and facilitate meaningful conversations.
Development grantees raised these cultural concerns to HHS in 2010 and  the agency has taken some steps to address them. For example, as of  August 2014, ACF staff had visited all but two of the tribal IV-E  development grantees and had plans to visit the remaining grantees. ACF  officials reported that the visits have been helpful in establishing  relationships with tribal officials, learning about the tribes’ government  structures, and providing a greater understanding of what it means to run  a title IV-E program on tribal lands. ACF also has regular monthly phone  calls with development grantees, among other activities, to build  relationships. ACF headquarters officials also reported holding some staff  training related to working with tribal nations. For example, ACF reported  holding a cross training in July 2014 with the HHS Office of Family  Assistance, and BIA’s Chief of Social Services on BIA child welfare  services.
section_title: HHS Does Not Have Procedures in Place to Ensure Consistent Guidance or Timely Reviews of Draft Title IV-E Plans
paragraphs: Although HHS regional staff are the primary technical assistance  providers for tribes, we found that some guidance and relevant HHS  regulations were not in place at the time they began assisting tribes with  their title IV-E plans. The Fostering Connections Act authorized HHS to  begin providing title IV-E development grants to tribes in 2009; however,  ACF issued tribal title IV-E guidance for HHS staff and tribes over several  years. Federal standards for internal control state that relevant  information should be identified and distributed in a form and time frame  that allows staff to perform their duties. Regional officials had to begin  assisting the first groups of tribal IV-E development grantees without  some of this guidance in place. For example, specific guidance on how to  develop a CAM was not finalized until the first group of grantees was 14  months into the 24-month award period. Similarly, HHS’s interim final rule  implementing the tribal title IV-E program was issued after the first two  grantee groups had completed the majority of their award periods.
While ACF has developed, over time, additional title IV-E guidance for  regional offices to use as they work with tribes, it has not developed  procedures to ensure that the guidance is consistent across all HHS  regional offices. ACF officials said the title IV-E pre-print document is the  regional officials’ primary source for information on program requirements  and how HHS ensures consistent interpretation of program requirements  across offices. While the pre-print document lists all title IV-E  requirements, it does not provide examples of tribal codes or  administrative regulations that would meet those requirements. Regional  staff may use their discretion to determine what is allowable in a tribe’s  plan. A senior ACF official acknowledged that some regional officials may  interpret title IV-E requirements differently than others. Regional officials  have the option to send questions that emerge from tribal-regional office  discussions to headquarters for resolution. ACF headquarters officials  said they forward any resulting clarifications that are important for all  tribes to all regional offices for their use in future discussions with tribes.
Despite these efforts by ACF, officials from 6 of the 11 tribes developing  title IV-E plans we spoke with told us that they received inconsistent  guidance from HHS regional officials while developing their plans. For  example, officials from one tribe said they received conflicting information  from HHS regional staff regarding a word the tribe could use—other than  “termination”—to address title IV-E’s termination of parental rights  requirements in a way more aligned with their cultural values. These  officials also said that participating in title IV-E peer-to-peer consultations  with other tribes—an activity encouraged and sponsored by HHS—can be  frustrating because regional offices have provided tribes with different  information. Representatives from another tribe said they began tracking  the information received from their HHS regional office because staff  provided conflicting guidance on the same issues over time. These tribal  officials recommended that HHS provide the same guidance to tribes  regardless of their location and create a threshold for what is minimally  acceptable for meeting title IV-E requirements, such as providing an  example of documentation that would satisfy the termination of parental  rights requirement. Two grantees from our conference discussion groups  also reported receiving different responses to the same questions from  officials within the same HHS regional office. ACF officials told us tribes  can contact headquarters staff if they receive conflicting information from  their regional office.
Child welfare experts we spoke to and two studies we reviewed also  identified inconsistent guidance from HHS staff as a challenge for tribes.  The two experts we interviewed said such inconsistencies made it difficult  for tribes to develop title IV-E programs. One expert said inconsistencies  and delays in receiving information have frustrated and discouraged  some tribes that are in the process of developing their title IV-E programs.  In addition, a 2013 study that we reviewed concluded that consistent  interpretation of federal law and guidance is critical for tribes to develop  approvable title IV-E plans. Another study we reviewed recommended  that in order to address ambiguities and inconsistent interpretation in  tribal IV-E policies and regulations, there should be explicit models,  guidelines, and tools for tribes and HHS to use while developing title IV-E  plans. According to ACF officials, they have not provided tribes or  regional office staff with examples because the language in the examples  for one tribe may not be appropriate for all tribes.
We also found that ACF does not have procedures in place to ensure  timely reviews of submitted draft title IV-E plans. The tribal title IV-E  regulations established a process and timeline for the review of final title  IV-E plans (see fig. 6 for process for review of final title IV-E plans).
In contrast, no similar process exists for the review of draft title IV-E  plans. Before submitting a final IV-E plan to HHS for review, tribes submit  draft plans to their regional HHS offices, whose staff then work with the  tribe to finalize the plan. However, ACF has not set any expectations for  regional office staff on the amount of time they should spend reviewing  draft title IV-E plans. A senior ACF official explained that the agency does  not provide expected timeframes for regional office reviews of draft plans  and that there is not any limitation on the amount of time staff can spend  reviewing the plans. Federal standards for internal control state that  information should be recorded and communicated within a timeframe  that enables relevant entities to carry out their responsibilities. Given  HHS’s goal of approving more tribal title IV-E plans, a lack of draft IV-E  plan review timeframes for its staff could continue to result in long tribal  IV-E plan development and review periods.
HHS’s process for reviewing and working with tribes to finalize title IV-E  plans is iterative, meaning there are many discussions between tribes  and their regional office to revise the draft IV-E plan and ensure it meets  program requirements before it is finalized. We examined HHS  documentation for the five tribes with approved title IV-E plans. We found  it took from 5 to 33 months to finalize and approve the tribes’ title IV-E  plans after they submitted their draft plans to HHS (at the end of the 24- month initial development grant period).
While HHS’s iterative process for reviewing draft IV-E plans worked well  for some tribes, others reported challenges with the timeliness of these  reviews. A representative for one tribe that had submitted its title IV-E  plan for review said the tribe’s HHS regional office returned draft plan  sections in plenty of time for the tribe to make revisions. However,  officials from four tribes we interviewed and two additional conference  attendees, all of whom had submitted their title IV-E plans, reported  untimely reviews by their HHS regional office. One tribal official said the  tribe expected a response from its HHS regional office within 45 to 60  days, based on prior federal program experience, but no review  timeframe was communicated by HHS regional officials and the tribe had  to wait approximately three months for a response. This official estimated  that the review process was extended by at least 6 months due to HHS  regional office delays. Officials from two additional tribes also noted that  HHS regional offices did not provide updates on their plans after  submission and they had to follow-up with HHS in order to learn the  status of their plan. Some tribal officials said delays in HHS regional office  responses cost additional tribal staff time, which strained their limited staff  and resources. ACF officials reported, however, that certain tribal actions  taken to address HHS revisions can result in delays. These include  responding to HHS’s suggested changes, scheduling meetings, and  coordinating with states.
section_title: Conclusions
paragraphs: While the Fostering Connections Act provided a new opportunity for tribes  to access federal child welfare funding for the care of their children, the  act also required tribes to meet title IV-E’s complex program requirements  which were originally designed for states. Given existing tribal resource  constraints, many tribes have faced challenges in developing approvable  title IV-E plans. These challenges have been further complicated by  inconsistent guidance from HHS. Ensuring consistent guidance on tribal  title IV-E requirements across all HHS offices could help the agency more  effectively communicate program requirements to tribes and support  tribes in developing their title IV-E plans. While some tribes received  timely title IV-E draft plan reviews, others did not, in part because HHS  has not provided its regional office staff with expected timeframes for  reviewing draft title IV-E plans. Establishing procedures to ensure timely  reviews could improve relationships with tribes and promote a smoother  process for tribes developing their plans. These changes would also  support HHS’s strategic goals of approving more tribal title IV-E plans.  Without improvements in the consistency of HHS guidance and timeliness  of title IV-E plan reviews, tribes may continue to have limited direct  access to child welfare program funding, hindering tribes’ ability to take  advantage of this opportunity to exercise tribal sovereignty over their  foster care programs. In addition, given tribes’ resource constraints, the  complexities of title IV-E’s statutory requirements and HHS’s limited  authority to modify them, the agency could benefit from considering, in  consultation with tribes, if flexibilities in program requirements would help  more tribes develop successful title IV-E plans without compromising  requirements that children be placed in safe and stable environments.  Both HHS and tribes are committed to ensuring that tribal children in  foster care are well cared for, and a collaborative approach to considering  flexibilities in program requirements would help maintain that goal.
section_title: Recommendations for Executive Action
paragraphs: To help enhance tribes’ participation in the title IV-E program, the  Secretary of Health and Human Services, in consultation with tribes,  should take steps to consider whether additional flexibilities in program  requirements would be helpful for tribes in developing title IV-E plans,  while also maintaining safe and stable out-of-home care for children. If  HHS determines, as part of this process, that statutory changes are  necessary to implement these flexibilities, it should develop and submit  an appropriate legislative proposal to Congress.
To improve the consistency of assistance provided to tribes, the  Secretary of Health and Human Services should take steps to provide  consistent title IV-E guidance to tribes across its regional offices.
To improve the timeliness of assistance provided to tribes, the Secretary  of Health and Human Services should establish procedures to ensure  reviews of draft title IV-E plans are conducted by regional office staff in a  timely manner.
section_title: Agency Comments and Our Evaluation
paragraphs: We provided a draft of this report to HHS for review and comment. HHS  provided written comments that are reproduced in appendix II. HHS also  provided technical comments that we incorporated, as appropriate.
HHS concurred with our recommendation that the agency, in consultation  with tribes, consider whether additional flexibilities in title IV-E program  requirements would enable more tribes to participate in the program. HHS  noted the importance of continuing to engage in tribal consultation around  programs and policies affecting tribal child welfare services. According to  HHS, if it determines that legislative changes are necessary to facilitate  greater tribal participation in title IV-E, the agency plans to consider  developing legislative proposals, in the context of existing procedures for  the development of the President’s budget.
HHS also concurred with our recommendation that the agency take steps  to provide consistent title IV-E guidance to tribes across its regional  offices. The agency noted that it has taken an initial step to improve  consistency. Specifically, HHS stated that it plans to hire a tribal  coordinator to work in the office of the Associate Commissioner of the  Children’s Bureau at ACF to help ensure greater consistency by  facilitating additional communication across HHS regional office staff and  among tribes. In addition, HHS commented that reported inconsistencies  may be related to differing circumstances between grantees rather than  differing interpretations of federal policy. HHS noted that this further  reinforces the need to have clear and effective communications with HHS  staff and with tribal officials.
With regard to our third recommended action, HHS agreed that it is  important to provide timely feedback to development grantees and noted  that the department currently provides feedback through a variety of  communication methods. However, the department did not agree that  procedures were needed to ensure the timely review of draft title IV-E  plans at this time. The department acknowledged that the agency has not  established firm timeframes for working with states or tribes during the  development phase. HHS believes that it is not possible to respond to  tribes’ draft IV-E plan submissions within a specific timeframe given the  lack of consistency in materials received from tribal grantees, and HHS  reported establishing a protocol for conducting monthly calls with  development grantees to provide feedback and respond to questions.
We maintain that establishing procedures, including but not limited to  timeframes for responses, would help ensure that tribes receive timely  feedback from regional offices regarding their draft title IV-E plans. This is  because we found that of the five tribes with approved title IV-E plans, it  took a median of 28 months to finalize and approve their title IV-E plans  after submitting a draft to HHS. We noted in the report that HHS has an  iterative process for reviewing draft title IV-E plans and that certain tribal  actions taken to address HHS revisions, such as scheduling meetings  and coordinating with states, can result in delays. We also noted that  while this iterative review process worked well for some tribes, others  reported challenges with the timeliness of these reviews. For example,  officials from two tribes told us that HHS regional offices did not provide  updates on their plans after submission and that they had to follow-up  with HHS to learn the status of their plan. HHS’s plan to hire a tribal  coordinator along with continuing to conduct monthly conference calls  with development grantees are positive steps towards improving  communication across the regions and with tribes. However, twelve tribes  currently have draft title IV-E plans under review and it will be increasingly  important to have procedures in place to ensure timely reviews by  regional office staff as additional tribes submit plans each year.
We are sending copies of this report to the Secretary of Health and  Human Services and interested congressional committees. In addition,  the report is available at no charge on the GAO website at  http://www.gao.gov.
If you or your staff have any questions about this report, please contact  me at (202) 512-7215 or brownke@gao.gov. Contact points for our  Offices of Congressional Relations and Public Affairs may be found on  the last page of this report. GAO staff who made key contributions to this  report are listed in appendix III.
section_title: Appendix I: Objectives, Scope, and Methodology
paragraphs: This report examines: (1) the obstacles facing tribes interested in directly  operating a title IV-E program and (2) how HHS assisted interested tribes.  To address our objectives we conducted interviews with officials of tribes  and federal agencies, and child welfare experts. We interviewed  representatives from 17 federally recognized tribes and tribal consortia in  Alaska, Arizona, California, Michigan, Montana, Oklahoma, and  Washington. Tribes in these states were selected to achieve variation in  how far along the tribe was in developing a title IV-E program and size of  the tribe. These 17 tribes are located in five different HHS regions. Our  tribal interviewees included representatives of 10 tribes that received a  title IV-E development grant and one tribe that is approved to operate the  program, but did not receive a development grant. In the report, we  referred to this group as the 11 tribes we interviewed that are developing  title IV-E plans. The group of 11 tribes also included four of the five tribes  with approved title IV-E plans. In addition, we interviewed six tribes that  expressed interest initially but have not sought approval to operate a title  IV-E program. We also convened two discussion groups with tribes. One  discussion group was held at the National Indian Child Welfare  Association annual conference in April 2014 and the other was held at the  Casey Family Programs Tribal Title IV-E Development Plan Grantee  Convening in May 2014. Our discussion groups were advertised in the  agendas for these events and all tribes in attendance at these events  were invited to participate. In total, representatives of 19 tribes  participated in the two discussion groups. Of the 19 tribes represented in  our two discussion groups, six tribes participated in both discussion  groups. We interviewed eight of these 19 tribes individually based on our  aforementioned selection criteria, and 12 of these tribes received title IV- E development grants. The information obtained in our interviews and  discussion groups with tribes is not generalizable, but provides examples  of tribes’ experiences with developing title IV-E programs and obtaining  related HHS technical assistance.
We interviewed officials from HHS’s Administration for Children and  Families (ACF), including the nine regional offices that provide technical  assistance to federally recognized tribes and the fiscal year 2010-2014  HHS-funded tribal resource center. We also interviewed Social Services  program staff at the Department of the Interior Bureau of Indian Affairs  (BIA). In addition to conducting interviews, to help determine HHS’s role  with regards to tribal title IV-E programs, we reviewed relevant federal  laws, regulations, HHS guidance from January 2008 to November 2014,  and federal standards for internal control. We also reviewed ACF’s  strategic plan and the Interim Final Rule implementing the tribal title IV-E  program.
We conducted key word searches of various databases, such as  ProQuest and EconLit, to identify peer-reviewed journal articles,  association publications, and government reports published from January  2008 to May 2014 on tribes’ experiences with the title IV-E program. We  identified additional studies related to tribal title IV-E on the National Child  Welfare Resource Center for Tribes’ website. Five studies we identified  during this literature review are included in this report. In addition, we  interviewed five child welfare experts. We interviewed these experts  because they had researched and published studies on tribal child  welfare issues related to the title IV-E program. Some of these experts  were identified via the review of studies described above.
We analyzed all semi-annual progress reports submitted to HHS from  March 2010 through March 2014 for the 21 tribes awarded grants from  fiscal year 2009 through fiscal year 2013. We reported our analysis for  the 11 tribes that were awarded grants from fiscal year 2009 through  fiscal year 2011 because these tribes have completed their grant period.  Development grantees self-report to HHS the progress made in  developing their title IV-E programs in each semi-annual progress report,  using the SF-PPR, Performance Progress Report. HHS has published  overall guidance on the grants through its Grants Policy Statement. Each  tribe submitted between one and seven progress reports depending on  when it received the title IV-E development grant from HHS. For example,  the 11 tribes that were awarded grants in fiscal year 2009 through fiscal  year 2011 submitted between four and seven progress reports. We  confirmed that each development grantee submitted a complete set of  required progress reports.
To analyze the progress reports, we defined a list of activities tribes may  engage in as they work on the title IV-E plan based on the program’s  requirements as outlined in the title IV-E pre-print and our interviews with  tribes and HHS. Two analysts independently reviewed a sample of the  progress reports using those definitions. Based on that review we refined  and finalized the list of potential title IV-E program development activities.  One analyst then independently analyzed the entire set of progress  reports using the final categories. Tribes were counted as having  engaged in an activity if an example of the activity was in at least one  progress report. A second analyst reviewed and verified each of the  progress reports and associated counts. Since the progress reports  included sections for the tribes to describe accomplishments and  problems they encountered while developing a title IV-E plan, our  analysis was also used to identify obstacles the tribes faced and  examples of their experiences using HHS assistance. However, the  tribes’ self-reported data has limitations, including being subject to  inaccuracies, containing differing definitions of activities, recall errors, or  choosing to selectively describe some activities over others which would  affect the accuracy of our coding of activities. In addition, according to an  HHS official, tribes were instructed to report on all progress made in  developing title IV-E programs. As a result, it is possible that tribes used  other funds in addition to those provided via the IV-E development grant  to complete the activities described in their progress reports. While we did  not attempt to verify the accuracy of the progress reports, we did check  for internal inconsistencies or illogical content during the course of our  review. In addition, while self-reporting errors may affect the accuracy of  the content of individual reports, we focused on tribes that had submitted  at least four progress reports and the coding we used to identify activities  was based on whether there was at least one instance of an activity such  as hiring personnel or developing specific procedures in any of the  completed progress reports. Allowing for an activity to be reported across  any of the reports may reduce some inaccuracies, such as errors  associated with recall bias. We determined that the progress reports were  sufficient enough to provide a general description of the activities  undertaken by tribal development grantees to help establish their title IV- E programs.
section_title: Appendix II: Comments from the Department of Health and Human Services
section_title: Appendix III: GAO Contact and Staff Acknowledgments
subsections: section_title: GAO Contact
section_title: Staff Acknowledgments
paragraphs: In addition to the contact named above, Elizabeth Morrison (Assistant  Director), Andrea Dawson (Analyst-in-Charge), Maria Gaona, and Kwame  Som-Pimpong made key contributions to this report. Also contributing to  this report were Susan Aschoff, Susan Bernstein, Jennifer Cook, Sarah  Cornetto, Pamela Davidson, Jeffery Malcolm, Jennifer McDonald, and  Mimi Nguyen.