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

Letter

Background

Tribal Child Protection and Child Welfare Systems

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.

Federal Funding for Tribal Child Welfare Programs

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.

Direct Tribal Access to Title IV-E

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.

Title IV-E Assistance for Tribes

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.

Selected Tribes Reported Resource Constraints and Certain Program Requirements as Obstacles to Directly Operating a Title IV-E Program

Insufficient Staff, Staff Turnover, and a Lack of Expertise Made Establishing Title IV-E Programs Challenging

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.

Selected Tribes Reported Challenges Adopting Some Title IV-E Requirements

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.

Termination of Parental Rights

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.

HHS Provided Technical Assistance and Guidance to Tribes Interested in Title IV-E but Did Not Always Meet Tribes’ Needs

HHS Assisted Tribes, but Selected Tribes Reported Difficulty in Accessing Assistance or with HHS’s Cultural Understanding

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.

HHS Does Not Have Procedures in Place to Ensure Consistent Guidance or Timely Reviews of Draft Title IV-E Plans

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.

Conclusions

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.

Recommendations for Executive Action

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.

Agency Comments and Our Evaluation

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.

Appendix I: Objectives, Scope, and Methodology

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.

Appendix II: Comments from the Department of Health and Human Services

Appendix III: GAO Contact and Staff Acknowledgments

GAO Contact

Staff Acknowledgments

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.