Foster Care: Most Tribes Do Not Anticipate Challenges with Case Goal Changes, but HHS Could Further Promote Guardianship Assistance
Released: 2016-09-07T00:00:00

Letter

Background

A federally recognized tribe is an American Indian or Alaska Native tribal entity that is recognized as having a government-to-government relationship with the United States. Federally recognized tribes and their members are eligible for programs and services the federal government provides to Indians because of their status as Indians.

Federal Title IV-E and IV-B Funding for Tribal Child Welfare Programs

Eligible tribes and certain tribal entities have access to federal resources for child welfare programs under programs administered by HHS. Federal funding provided under titles IV-E and IV-B of the Social Security Act covers a portion of costs for states and participating tribes of operating their foster care, adoption assistance, and kinship guardianship assistance programs (title IV-E) and funding for child welfare services, such as parent support and counseling for children and families (title IV- B). Approximately 20,000 of the 415,000 children in foster care at the end of fiscal year 2014 were identified as American Indian or Alaska Native alone or American Indian or Alaska Native in combination with one or more races.

Title IV-E Funding

Title IV-E of the Social Security Act is the largest single federal source of child welfare funding, providing nearly $7.5 billion in fiscal year 2015 to child welfare agencies to support foster care and transitional independent living programs for eligible children, adoption assistance for children with special needs, and kinship guardianship assistance. 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. Among other things, the title IV-E program requires 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; and, regularly hold a permanency hearing to determine the case goal for the child (to be held at least every 12 months) and make reasonable efforts to finalize the case goal—reunification, adoption, legal guardianship, placement with a fit and willing relative, or, where appropriate, another planned permanent living arrangement. Case goal options under title IV-E are shown in table 1.

Title IV-E funds reimburse participating states and tribes for a portion of their eligible costs of providing foster care, adoption assistance, or kinship guardianship assistance on behalf of eligible children:

Title IV-E Foster Care Program: The title IV-E Foster Care Program provides federal funding for state and tribal title IV-E agencies to support out-of-home care for children until the children are safely returned home, placed permanently with adoptive families or placed in other planned arrangements for permanency. Federal funds are available for a portion of monthly maintenance payments for the daily care and supervision of eligible children; administrative costs to manage the program; training of staff and foster care providers; recruitment of foster parents; and costs related to the design, implementation and operation of a state-wide data collection system.

Title IV-E Adoption Assistance Program: The Adoption Assistance Program provides funds to state and tribal title IV-E agencies to facilitate the timely placement of children, whose special needs or circumstances would otherwise make placement with adoptive families difficult. Federal funds are available for a one-time payment to families to assist with the costs of adopting an eligible child, and for a portion of monthly subsidies to assist with the care of an eligible adopted child, as well as for certain administrative and other program costs.

Title IV-E Guardianship Assistance Program: The Guardianship Assistance Program (GAP) is an optional program under title IV-E that provides funds to support the care of children discharged from foster care to legal guardianship who meet the program’s eligibility requirements. Under the program, state and tribal title IV-E agencies who opt to provide guardianship assistance payments to relatives who have assumed legal guardianship of eligible children receive partial reimbursement from the federal government for the cost of providing these payments. In general, eligible children include those who have been eligible for title IV-E foster care maintenance payments during at least a 6 consecutive month period during which the child resided in the home of the prospective relative guardian who was licensed or approved as meeting the licensure requirements as a foster family home, among other criteria.

The reimbursement rate varies by type of expense. The federal share of foster care maintenance payments, adoption assistance payments, and guardianship assistance payments is between 50 percent and 83 percent of costs, with higher federal support going to states and eligible tribes with lower per capita incomes. The federal share of training and administrative costs is 75 percent and 50 percent, respectively.

Eligible tribes may receive federal title IV-E funds either by (1) directly operating a foster care title IV-E program pursuant to an approved title IV- E plan; or (2) administering all or part of a title IV-E program on behalf of a state pursuant to a tribal-state agreement.

Tribal-state agreements: Tribes may enter into cooperative agreements with their state child welfare agency to administer part of the state’s title IV-E program. Through tribal-state agreements, title IV- E funds are generally passed through the state to the tribes. Whether tribes or states have responsibility for activities such as developing a case plan for the child’s placement and care, or reviewing the case plan on a regular basis, can vary depending on the agreement. HHS considers the state to be the grantee for title IV-E funding and as a result, the state has ultimate responsibility for ensuring compliance with title IV-E program requirements.

Direct title IV-E programs: The Fostering Connections to Success and Increasing Adoptions Act of 2008 (Fostering Connections Act) authorized tribes to directly operate a title IV-E program and obtain federal reimbursement for eligible program costs pursuant to an approved title IV-E plan. As of October 2015, there were seven tribes approved to directly operate a title IV-E program. The provisions of title IV-E apply to tribes that operate their own programs in the same manner as they apply to states, with limited exceptions. HHS is responsible for oversight and monitoring of states and tribes that are approved to directly operate a title IV-E program.

Title IV-B Funding

Tribes also have access to federal funding provided under title IV-B, subparts 1 and 2 of the Social Security Act for various child welfare services—$664 million in fiscal year 2015. These programs fund a range of child welfare services and activities generally aimed at preventing abuse and neglect; preserving and reunifying families; and promoting safety, permanency, and well-being of children in foster or adoptive placements. To receive title IV-B funding, states and tribes must submit a 5-year plan—the Child and Family Services Plan—that sets forth the vision and goals to be accomplished to improve the state’s or tribe’s coordinated child and family service delivery system. It also includes, among other things, the state’s or tribe’s plans for use of funding from title IV-B. Tribes that receive title IV-B funding and operate foster care programs must also comply with certain title IV-E requirements, including those related to case goals. State and tribal title IV-B agencies must submit annual updates—Annual Progress and Service Reports—on the progress made toward accomplishing the goals and objectives in the Child and Family Services plan, which are reviewed by HHS regional office staff. Tribes must also be operating a program under title IV-B, subpart 1 to be eligible to directly administer a title IV-E program. The main mechanism for oversight of title IV-B tribal agencies is HHS’s review of the tribe’s Child and Family Service Plan and annual updates. This review is conducted by HHS regional office staff as part of the joint planning process.

In addition, tribes or families involved with tribal child welfare programs may receive other state or federal funding outside of titles IV-E or IV-B to support child welfare services, or they may be supported only through tribal funds.

Another Planned Permanent Living Arrangement as a Case Goal

The Adoption and Safe Families Act of 1997 (ASFA) added APPLA as an option for a child’s case goal if none of the other case goals enumerated in the statute would be in the best interests of the child. In addition, ASFA removed language allowing a child to be “continued in foster care on a permanent or long-term basis” because of his or her special needs or circumstances. Under title IV-E, APPLA is permitted as a case goal in cases where the child welfare agency has documented to the court a “compelling reason” for determining that the other case goals would not be in the best interests of the child. The Preventing Sex Trafficking and Strengthening Families Act, enacted in 2014, restricted the use of APPLA as a case goal to children age 16 and older, although it delayed implementation for children in foster care under the responsibility of an Indian tribe. For older children with a case goal of APPLA, the Act places additional requirements on states and tribes. Among other things, at each permanency hearing (to be held at least every 12 months), the child welfare agency is required to (1) document its intensive, ongoing, and unsuccessful efforts to return the child home or secure a placement with a relative, legal guardian, or adoptive parent; and (2) implement procedures to ensure that the court re-determines whether APPLA is the appropriate case goal for the child and asks the child about his or her desired permanency outcome.

HHS Assistance for Tribes on Titles IV-E and IV-B

ACF’s Children’s Bureau is responsible for providing program guidance under titles IV-B and IV-E to grantees. ACF is also responsible for pro- viding technical assistance to tribes on title IV-B and IV-E program requirements through nine of its regional offices. In 2014, HHS consolidated its training and technical assistance provided to states and tribes. The Center for Tribes (the Center), one of the three centers in HHS’s Child Welfare Capacity Building Collaborative, serves as a technical assistance resource for tribes. All tribes that receive title IV-E or title IV-B funds are eligible to receive assistance from the Center. The Center also develops products that all tribes can access from the Children’s Bureau website, including ones that have information on practices such as customary adoption and family group decisionmaking. It also offers services to tribes that are tailored to their particular needs; tribes are responsible for requesting these services from the Center.

Data Show That the Use of APPLA Was Lower for Indian Children than Non- Indian Children and Children in Both Groups Had A Similar Number of Foster Care Placements

A Lower Percentage of Indian Children Had APPLA as a Case Goal Compared to Non-Indians, though a Higher Percentage of Indians Were Younger than 16

Available data from HHS show that a lower percentage of Indian children were assigned APPLA as a case goal at the end of fiscal year 2014 compared to non-Indian children. According to AFCARS data, about 6.1 percent of Indian children were assigned APPLA as a case goal (approximately 1,200 children) compared to 8.3 percent of non-Indian children (approximately 33,000 children). The percentage of Indian and non-Indian children assigned other case goals also differed (see table 2). However, in part because these children could be in either state or tribal foster care, these data cannot be used to identify children covered by the 3-year delay for the APPLA age restriction. While data on all children in foster care under the responsibility of a state agency are included in AFCARS, data on some children under the responsibility of a tribal agency are not included in AFCARS. In addition, children identified as Indian in AFCARS are not necessarily enrolled members of a federally-recognized tribe.

While a slightly lower percentage of Indian children were assigned APPLA as a case goal than non-Indian children, a higher percentage of Indian children than non-Indian children who were assigned this case goal were younger than 16. Specifically, about 41 percent of Indian children with APPLA were younger than 16 (about 500 children), while about 23 percent of non-Indian children with this case goal were younger than 16 (about 7,500 children) (see fig. 1).

Of Indian children assigned APPLA as a case goal, about 9 percent were ages 6 through 10, while 29 percent were ages 11 through 15, compared to approximately 3 percent and 19 percent of non-Indian children assigned APPLA, respectively. A much smaller percentage of both Indian and non-Indian children assigned this case goal were age 5 or younger (see fig. 2).

Indian and Non-Indian Children with APPLA as a Case Goal Had a Similar Number of Placements while in Foster Care, but a Lower Percentage of Indian Children Were Placed in Institutional Care

On average, Indian and non-Indian children with APPLA as a case goal moved among foster care homes about the same number of times (see table 3). Both Indian and non-Indian children who were assigned APPLA as a case goal had an average of about six different placements during their most recent stay in foster care. In contrast, both Indian and non-Indian children who were assigned other case goals had an average of around three placements. In AFCARS the number of placements is defined as the number of places the child has lived, including the current setting, during the current removal episode and does not include the number of places a child may have lived during a previous episode in foster care or trial home visits.

Our analysis shows that a higher percentage of all children with APPLA as a case goal were placed in either institutions or group homes (about 30 percent) than children with other case goals (between 7 and 11 percent). However, some differences exist between Indian and non-Indian children with APPLA. Although Indian and non-Indian children with APPLA moved among foster homes about the same number of times, a slightly lower percentage of Indian than non-Indian children with APPLA as a case goal were placed in institutional care. While 13.1 percent of Indian children with this case goal were placed in institutional care, 16.8 percent of non-Indian children with APPLA were placed in institutions. Some additional differences exist between the percentage of Indian and non-Indian children placed in group homes, but these differences were small (13.5 percent of Indian compared to 13.9 percent of non-Indians). Data also showed that a higher percentage of Indian children with APPLA were placed in family-style foster homes, either with relatives or non- relatives, than non-Indian children with APPLA (see fig. 3).

Most Selected Tribes Did Not Anticipate Challenges Implementing APPLA Changes, yet Some Reported Other Challenges in Establishing Permanency

Most Selected Tribes We Interviewed Did Not Anticipate Challenges in Limiting APPLA to Older Children and Reported Using APPLA Infrequently

Most tribal officials we interviewed reported that they did not anticipate challenges associated with limiting the use of the APPLA case goal to children aged 16 and older. Specifically, officials from 27 of 32 tribes said they did not anticipate that the restriction would pose challenges for their foster care programs. Tribal officials we interviewed also did not anticipate challenges with implementing the related provisions in the Preventing Sex Trafficking and Strengthening Families Act that introduced additional case review requirements for foster children to whom the APPLA case goal is assigned.

Of the 27 tribes that said they did not anticipate challenges with limiting the use of the APPLA case goal to children aged 16 and older, 17 tribes told us they use APPLA as a case goal for some children under tribal custody. However, these tribes told us that they assign APPLA rarely and only after determining that other case goals, such as reunification, adoption, or guardianship—which are required to be considered before APPLA is used—were not possible or appropriate. Tribal officials reported that most children in their foster care programs are initially assigned reunification as a case goal and are often reunified with their parents. These officials told us that if they determine that reunification is not possible, they will assign adoption or guardianship as a case goal, depending on the specific case. However, some tribal officials also noted certain instances in which these case goals were not possible or appropriate and that they had determined that APPLA was the most appropriate goal. These examples included:

Older children—Officials from 8 tribes said they use APPLA as a case goal either primarily or exclusively for older children or teenagers in foster care. Tribes reported that it was often more difficult to achieve permanency for older children due to a number of challenges, such as a lack of services tailored to older children or greater difficulty in recruiting adoptive families. Some tribes reported that they use APPLA as a last resort when they cannot find a permanent home for older children in foster care; officials told us that they use APPLA to allow the child to continue to receive foster care maintenance payments while preparing to age out of the system. The challenges facing older children in foster care in general are well-documented.

Children who do not want to be adopted or placed into guardianships—Officials from 5 tribes reported assigning APPLA as a case goal in cases in which older foster children indicated that they did not want to be adopted or placed into guardianships. For example, 1 tribe reported assigning APPLA in the case of two children who were under age 16 for whom reunification was unlikely, but who did not want to be adopted. According to tribal officials, the children were initially placed in a family-like foster care home, briefly transferred to a residential facility, and ultimately placed in an independent living arrangement.

Children with severe health issues—Officials from 4 tribes reported using APPLA as a case goal primarily for foster children with significant mental, behavioral, or physical health issues. For example, officials from one tribe told us that they sometimes assign APPLA as a case goal while providing additional services to help foster children through a crisis due to behavioral or mental health issues. These cases could include foster children who might need to stay in residential care for a certain amount of time. These tribal officials told us that APPLA is sometimes used for children who are placed in therapeutic foster homes where they receive specialized care. Some other tribes reported that they believe this case goal could be, in some cases, an appropriate case goal for younger children who need long- term, intensive medical treatment in therapeutic foster homes or residential facilities. Another tribe told us the tribe has recently experienced an influx of tribal children entering the child welfare system who have a number of significant health issues due to prenatal exposure to drugs, for whom APPLA could be the most appropriate case goal.

Some tribes we contacted—5 of 32—said they anticipated that the APPLA change would present challenges for their foster care programs. Of these tribes, two reported using the APPLA case goal extensively for children in tribal foster care. One tribe reported that the majority of children in foster care under their custody, most of whom are younger than 16, are assigned long-term foster care as a case goal. A tribal official told us that while some of these children are in family-like foster homes, most move around between residential facilities based on their behavioral needs or that have specific age or gender restrictions. This official noted that the tribe was concerned about the impact of the APPLA age restriction given the number of their children in long-term foster care arrangements. However, this official said that tribal officials had not discussed the restriction in detail with their tribal attorney, given the 3- year delayed implementation period. The second tribe told us that of the approximately 50 children under tribal custody, the majority are assigned long-term foster care and are placed in stable, family-like foster care homes in the care of extended family members. The tribal official we spoke with said that when the APPLA restriction takes effect, they will have to pursue guardianships for children younger than 16 who had previously been assigned an APPLA case goal. However, the official said that the tribe has faced challenges establishing guardianships. She told us that guardianships limit families’ ability to access other resources, such as educational and training vouchers in some cases, and that the tribe has a number of foster families who would participate in guardianship arrangements but do not want to be licensed for a variety of reasons.

Many Tribes We Interviewed Reported Other Challenges in the Course of Establishing Permanency

While most tribes we contacted did not anticipate challenges in limiting the use of APPLA as a case goal to older children in foster care, many tribal officials reported other challenges that made finding permanent homes for children under tribal custody difficult. Specifically, tribes reported facing challenges regarding cultural opposition to termination of parental rights and differences between state and tribal definition of a relative; licensing requirements; and resource constraints (see fig. 4). Each of these challenges potentially limits the use of adoption, living with a relative, and guardianship as alternative case goals for younger children who have been assigned APPLA when the age limitation on APPLA takes effect.

Several tribes we contacted reported that the federal foster care requirements related to termination of parental rights were in conflict with their cultural values and presented challenges to their efforts to establish permanency for children in foster care. Specifically, 7 tribes we spoke with reported that termination of parental rights is not acceptable in their tribal culture. We previously reported that tribes developing title IV-E plans encountered challenges associated with incorporating required language on termination of parental rights into their tribal codes or policies, which made it difficult to obtain internal approval and successfully complete the title IV-E plan. HHS officials acknowledged that termination of parental rights may not align with Indian tribes’ cultural values and in April 2015, HHS updated its Child Welfare Policy Manual to modify its interpretation of the statute to clarify that tribal title IV-E agencies may develop an alternative to termination of parental rights, such as a modification of parental rights, so long as the alternative satisfies other applicable requirements. Several tribes we interviewed practice tribal customary adoptions, which, unlike traditional adoptions, modify but do not terminate parental rights and also maintain family connections. Of the 29 tribes that discussed their use of customary adoption, 9 tribes reported using such adoptions, 12 tribes reported that they did not, and 8 tribes reported that they did not practice customary adoptions currently but might pursue them in the future. HHS officials told us that they support customary adoption as a culturally-appropriate method of achieving permanency for children. According to HHS officials, families that adopt a child through customary adoption are eligible for title IV-E adoption subsidies.

Definition of a Relative

Several tribal officials we contacted told us that another challenge facing their foster care programs were state definitions of who is considered a “relative” for purposes of foster care; these definitions can contradict tribes’ cultural traditions. Specifically, officials from 9 tribes we spoke with in individual and group interviews said their tribes broadly defined the term relative and that the tribe’s definition was not always compatible with state definitions. For tribes administering title IV-E on behalf of the state pursuant to a tribal-state agreement, this difference could affect tribes’ use of the case goal of “placement with a fit and willing relative” or whether tribal guardianships with relatives would qualify for GAP payments under a state’s definition of “relative.” For example, officials from one tribe told us that tribal children are born into an extensive clan system and that a tribal member’s “extended family” is very large, and their clan affiliation is a permanent and necessary component to their identity. Another tribe reported that nearly all of their children in foster care are placed with individuals who are considered to be relatives under the tribe’s broad definition, which encompasses not only blood relatives but also fictive kin—tribal members who may not be blood related but who have a close relationship with the child. Tribal officials told us that they believed federal title IV-E requirements did not provide for such a broader definition of “relative” and that some tribal members who would be considered relatives under the tribe’s definition may not qualify for certain services, such as GAP. According to HHS policy, there is no federal definition of “relative” for the purpose of the title IV-E GAP. Tribes that administer title IV-E on behalf of the state pursuant to a tribal-state agreement generally follow the state title IV-E plan. HHS officials acknowledged that tribes frequently define “relative” differently than states. However, in some cases, a state’s definition of a relative could be more restrictive than a tribe’s, and this narrower definition could be included in the tribe’s title IV-E agreement with the state. According to HHS, tribes approved to directly operate a title IV-E program have discretion to define the term relative for the purposes of the title IV-E GAP. HHS officials told us that HHS will accept a title IV-E plan or amendment that contains a reasonable interpretation of a relative, including a plan that limits the term to include biological and legal familial ties or a plan that more broadly includes tribal kin, extended family and friends, or other “fictive kin”.

More than one-third of tribes we contacted—15 of 36 tribes—told us that satisfying federal and state licensing requirements often made it more difficult to license potential foster care homes and in some cases also prevented tribes from establishing potential permanent placements for their children. For example, in order to be eligible for GAP payments, a child must have resided with a licensed relative foster caretaker for at least 6 continuous months. Several tribal officials we interviewed said that licensing requirements regarding the number of family members living in a home, the size of the home, or the availability of separate bedrooms presented challenges when attempting to license potential foster homes, given the prevalence of multi-generational homes in tribal communities. An official from one tribe also told us that background checks conducted as part of the licensing process will sometimes disqualify otherwise suitable relatives from becoming licensed and therefore a possible permanent caregiver. For example, some tribal officials noted that an otherwise qualified relative may not pass a background check because of a past drug offense. Participants in a 2011 survey by the National Child Welfare Resource Center for Tribes reported that substance abuse not only contributed to difficulties some families had when they tried to reunify with their children but also created challenges in finding suitable foster homes.

However, other tribes we interviewed reported that they have been able to incorporate some flexibility into their tribal licensing requirements to address licensing challenges or account for other circumstances unique to tribal communities. For example, some tribes we interviewed said that their tribe’s licensing requirements provide more flexibility with regard to the size of a home or the number of bedrooms available. The Fostering Connections Act authorized states to waive, on a case-by-case basis, non-safety licensing standards for relative foster family homes and gave states discretion to determine what constitutes a non-safety standard. According to HHS officials, tribes approved to directly operate title IV-E programs are allowed to define and waive non-safety standards for relative foster family homes, as are states. However, some officials we spoke with from tribes approved to directly operate title IV-E programs were not aware that they were able to waive non-safety licensing standards. In addition, two of the six states we reviewed for our study— Michigan and New Mexico—were not among those that reported in 2014 allowing waivers of non-safety licensing standards for relative foster family homes and defining such standards in state law, regulations, or agency policy, while four states—Arizona, Montana, Oklahoma, and Washington—reported in 2014 that they did allow such waivers. According to HHS, tribes operating programs under title IV-E tribal-state agreements are bound by the terms in those agreements, which could include licensing requirements. HHS officials we spoke with said that tribes have not expressed to them any questions or concerns about challenges they have experienced with non-safety licensing standards.

Resource Constraints

More than half of tribes we spoke with—21 of 36 tribes—told us that resource constraints presented challenges for their foster care programs and for establishing permanency for children under their custody. These constraints include a lack of foster care homes, limited availability of needed services, and limited financial support for permanent guardianships. Officials from 7 tribes reported that a significant challenge for their programs is a shortage of licensed foster care homes, particularly those that are willing and capable of caring for children with special needs. Similarly, officials from 4 tribes told us that they had limited access to therapeutic foster homes or inpatient care facilities because their tribes were located in rural areas far from these homes and facilities or because these resources were already being used by state foster care programs. Tribal officials also reported that the financial assistance available to foster care providers or permanent caregivers for children in foster care is often insufficient to fully cover all of the associated costs. Officials from one tribe reported that the majority of tribal members struggle to make ends meet and feed members of their current households. While the tribe offers financial assistance to foster families, tribal officials said that amount is insufficient to fully cover the costs of fostering a child. In addition, several tribes told us that tribal foster care programs generally do not have access to the range of services available to states, such as independent living services that can help children in foster care transition to permanency or resources and services for children with special needs. HHS officials we spoke with acknowledged that there is great demand among tribes for resources for these high-needs children. Some tribal officials also told us that families entering into guardianships did not receive any financial assistance, such as title IV-E GAP, which, according to tribal officials, made it more difficult to establish permanency through guardianships.

HHS Has Provided Information and Some Assistance to Tribes on APPLA and on Establishing Permanent Homes, but Tribes Reported Low Participation in GAP

HHS has provided information and some assistance to tribes on implementing the change to APPLA, including policy guidance and technical assistance through HHS regional offices, and some support for establishing permanency for children in tribal foster care. Despite reporting resource constraints, however, most tribes we interviewed reported that they did not participate in title IV-E GAP to receive federal funding to support their use of guardianship as a permanent placement. Without greater tribal participation in GAP, tribes may not be receiving available funding that could help them encourage the use of and support guardianship, particularly for older children or those with special needs for whom finding permanent placements may be difficult.

HHS Has Provided Information to Tribes on Changes to APPLA and Technical Assistance to Develop Permanency Options

The Children’s Bureau has sent guidance to regional offices, state child welfare agencies, and tribal organizations concerning the provisions in the Preventing Sex Trafficking and Strengthening Families Act, including the change to the APPLA case goal. For example, the Children’s Bureau used a listserv to disseminate program instructions and information memoranda on changes related to the Act. Staff in the five regions that serve the tribes we interviewed told us that they discussed the guidance with their respective tribal child welfare agencies. Staff in three of these regions reported that because of frequent changes in tribal staff, they maintain an up-to-date listserv of tribal social services directors, who will be responsible for implementing the APPLA change. They used the listserv to disseminate guidance, including program instructions and information memoranda about the change in APPLA. Some tribal officials told us that they were aware of the APPLA change and had received information from HHS, while others were uncertain whether they had received information, and some in our group interviews did not specify whether they had received it.

The regional offices and the Center for Tribes also provide technical assistance to tribes that can include help in implementing the APPLA change and developing other permanency options. Staff in the five regional offices reported that as part of the joint planning process for assisting tribes with developing their 5-year title IV-B plans, regional officials worked with the tribes on how the tribes could address the change in APPLA. An official with the Center for Tribes told us that as of March 2016, one tribe had requested assistance with incorporating all of the elements of the Preventing Sex Trafficking and Strengthening Families Act into their policies and procedures. In addition, officials from one regional office and the Center told us that they help tribes with developing other permanency options such as kinship guardianship (which may be supported by title IV-E GAP) and customary adoption. One regional official reported helping tribes develop provisions on customary adoption that could be added to their tribal code. A Center official also said that they have received inquiries about GAP and have had requests for assistance with customary adoption and licensing.

Most Tribes We Interviewed Reported They Did Not Participate in Title IV-E GAP

Despite the resource constraints reported by many of the tribes we interviewed, most tribal officials we spoke with that use guardianship as a case goal reported that their tribes do not participate in title IV-E GAP, which provides federal funding for a portion of assistance payments paid to relative guardians on behalf of eligible children. Of the 27 tribes that reported using guardianship as a case goal, 20 tribes reported that they do not participate in GAP and do not receive federal funding to support those guardianships. Of these 20 tribes, 6 do not participate because they are located in states that do not offer the program. According to HHS officials, tribes in states that do not offer GAP would need to directly operate a title IV-E program in order to receive federal guardianship assistance. As of March 2016, 33 states and 6 tribes had been approved to operate GAP, according to HHS (see fig. 5).

However, 14 tribes who use guardianship as a case goal are in states that offer GAP, but tribal officials told us they did not participate in GAP for several reasons. Officials from 5 tribes reported that because GAP was not included as an option in their title IV-E tribal-state agreements, families with guardianship arrangements do not receive GAP payments. Officials from 3 other tribes said they did not receive title IV-E funding so their tribes were not eligible for GAP payments. Officials from an additional 5 tribes told us that they did not participate due to access challenges at the state level, such as age restrictions or difficulty meeting state requirements. For example, in one state, according to tribal officials, a child must be 12 years old before a guardianship would be approved. Finally, officials from 1 tribe said that they were unaware of title IV-E GAP (see fig. 6). Given that tribes cited different reasons for not participating in GAP, HHS, states, and tribes may need to take different actions to address those reasons. In addition, there may be other reasons why tribes that we did not interview may not be participating in GAP.

HHS officials said that because the program provides additional support for foster children’s transition to permanency, participating in title IV-E GAP and providing tribes GAP payments is in a state’s interest. However, we previously reported that some states opted not to participate in GAP because of limited funding for the state’s portion of the GAP payment to relative guardians. HHS officials told us that they were not aware of any instances in which a state participated in GAP but did not provide access to tribes through title IV-E agreements. However, officials also noted that HHS generally does not have information on the contents of title IV-E tribal-state agreements, as these agreements are not required to be submitted as part of a state’s title IV-E plan. Officials said that it is the responsibility of tribes and states to discuss GAP and whether to include the program in their IV-E agreements. They noted that Title IV-E calls on states to negotiate in good faith with tribes to develop a tribal-state agreement to administer the IV-E program, including GAP assistance payments. They also told us that the lack of guardianship funding to tribes means that tribes may be forced to rely on long-term foster care to fund permanent placements.

ACF’s strategic plan provides a basis for the Children’s Bureau to support tribes’ participation in GAP. As part of its overarching goal to support underserved and underrepresented populations, ACF’s 2015-2016 strategic plan includes a goal for working with tribes to increase their capacity to promote child safety, permanency, and well-being. It also includes a goal to promote and facilitate improved tribal-state relations and policy at the regional and state levels to improve outcomes for Indian children. In addition, federal standards for internal control state that an agency’s management system should assure that monitoring is performed continually as part of agency operations. Without more awareness by HHS on why tribes may not be participating in GAP, including why some tribal-state agreements do not include GAP as an option for tribes, some tribes that could benefit from GAP may not participate in the program. The limited participation in GAP among the tribes selected for our study suggests that tribes may not be making use of available financial support for guardianships that could assist them in establishing permanency for their children and preventing them from remaining in long-term foster care. In 2012, a collaborative project of six child welfare organizations identified title IV-E GAP as one method of helping child welfare agencies establish permanency for children in foster care, particularly for older or other children for whom finding permanent placements may be difficult. Several states surveyed by the project mentioned that they were targeting, although not exclusively, special groups of children through GAP, including children with the APPLA case goal. The project report noted that financial assistance for guardians raising children who were in foster care is an essential component of the supports relatives need to offer these children permanent families. By taking steps that might increase tribal participation in GAP, HHS could better support tribes’ efforts to find secure and stable homes for their children in foster care.

Conclusions

Changes made by the Preventing Sex Trafficking and Strengthening Families Act to the use of the APPLA case goal were expected by child welfare advocates to help ensure permanent adult connections for older children. While most tribal officials we spoke with did not consider the restriction on the use of APPLA to older children as a challenge, more than half noted that they faced resource constraints—including limited financial resources—which affect their ability to find permanent placements for children under their care. In 2008, title IV-E GAP was established to provide federal dollars to assist states and tribes with payments to relatives who are willing to provide permanent homes for children. However, most tribes we interviewed were not participating in the program. Some reported that their tribal-state title IV-E agreements did not include access to GAP while other tribes faced access challenges at the state level. Others did not receive any title IV-E funding or were unaware of the program, and tribes may have additional reasons for not participating. Guardianship arrangements can be a useful case goal to pursue in situations where reunification is not possible and adoption conflicts with tribal cultural values. GAP could help tribes by providing the financial assistance that tribal relatives need in order to provide a home for a child in their care. When the APPLA restriction takes effect, it can also provide an alternative to APPLA for those tribes trying to place a younger child who has special needs and requires more resources for care and for whom other permanency goals are not viable. As our analysis of the fiscal year 2014 AFCARS data indicated, some of these younger children may now be in institutional care and may need placement in a family setting if they are assigned a new case goal instead of APPLA. In addition, the program can provide needed resources for relatives willing to provide a stable home for children over the age of 16 who might otherwise be assigned APPLA. Without greater tribal participation in title IV-E GAP, some tribes may not have critical financial support to help children exit foster care to homes with relatives. By taking steps to increase participation in GAP, HHS could better support tribes’ efforts to care for their children.

Recommendation for Executive Action

To help improve tribes’ ability to maintain safe, stable, and permanent care for children, the Secretary of Health and Human Services should direct the Children’s Bureau to explore the reasons for low tribal participation and identify actions to increase this participation in the title IV-E Guardianship Assistance Program.

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 Children’s Bureau explore the reasons for low tribal participation and identify actions to increase participation in the title IV-E GAP. HHS noted that some tribal- state agreements might predate 2008, when GAP was established. HHS also said that regional office staff participate annually in joint planning for the title IV-B and IV-E programs with their respective states and tribes and that participation in GAP is a topic covered in joint planning activities. In addition, HHS said that regional office staff are available to assist states and tribes with discussions about GAP participation when tribal- state agreements are renegotiated and that technical assistance is available to tribes, if needed. According to HHS, the agency plans to add information to the Children’s Bureau website about direct federal funding for tribal title IV-E agencies and about tribal-state partnership agreements and plans to distribute issue briefs on GAP and best practices for tribal- state agreements.

We agree that HHS has the planning process, technical assistance resources, and regional staff in place to discuss GAP participation with title IV-E state and tribal agency officials. However, our review found that tribal participation in GAP remains low, which suggests that HHS needs to identify actions to increase participation in this program. We believe that the additional actions HHS plans to take—providing information on the Children’s Bureau website about direct funding and distributing issue briefs on GAP and best practices for tribal-state partnerships and agreements—could support tribes’ participation in GAP either by helping tribes to directly operate a title IV-E program or to negotiate a tribal-state agreement that includes a provision for GAP participation. Because some tribes reported challenges at the state level to participating in GAP and several tribes reported that the state where they are located does not participate in the program, we encourage HHS to engage title IV-E state agency officials in discussions about tribal participation in GAP during the annual review of the their title IV-E state plan. As HHS noted in its response, regional office staff are a resource to states and tribes as they renegotiate agreements to help them explore participation in GAP. Through such discussions, HHS could identify ways that regional office staff might help state agencies resolve any challenges to GAP participation that tribes experience at the state level. HHS has taken several steps over the past few years to help tribes with their title IV-E programs, including hiring a tribal coordinator to facilitate communication between regional offices and tribal title IV-E agencies. Taking additional steps to ensure that tribes have the opportunity to participate in GAP could go a long way toward helping tribes gain more resources for children under their care and better support tribes’ efforts to care for children exiting foster care to permanent homes.

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Appendix I: Objectives, Scope, and Methodology

This report examines: (1) what available data show about Indian children in foster care compared to all other children in foster care; (2) the extent to which selected tribal child welfare agencies face challenges in addressing recent changes to APPLA and in establishing permanent homes for children in tribal foster care; and (3) the extent to which HHS has assisted tribal child welfare agencies in implementing the APPLA change and addressing any challenges to establishing permanent homes.

To determine what available data show about Indian children in foster care compared to all other children in foster care, we analyzed relevant national data on foster care case plans from HHS’s Adoption and Foster Care Analysis and Reporting System (AFCARS) for fiscal year 2014, the most recent year for which data are available. Through AFCARS, state title IV-E agencies are required to report to HHS semi-annually data on (1) all children in foster care for whom the agency has responsibility for placement, care, or supervision, and (2) all adopted children who were placed by the agency or for whom the agency is providing adoption assistance, care, or services. HHS in 2012 issued regulations that generally apply the same requirements for data collection and reporting to tribal title IV-E agencies. AFCARS contains information on placement settings, case plans, and length of time in foster care, among other information. Currently, AFCARS provides the following options for reporting the child’s most recent “case plan goal” (referred to in this report as a “case goal”): reunify with parent(s) or principal caretaker(s); live with other relative(s); long-term foster care; Options for reporting the child’s current placement setting in foster care include: foster family home (relative); foster family home (non-relative); trial home visit.

Specifically, we reviewed AFCARS data for the 415,129 children who were in foster care on the last day of the fiscal year. Our analysis included a number of key data elements, including sex, whether the child was an American Indian/Alaska Native, number of placement settings during current foster care episode, current placement setting, case goal, and length of stay of latest removal episode. For the purposes of our data analysis discussion, we used the term Indian for children identified as American Indian/Alaska Native in AFCARS. Because the fiscal year 2014 AFCARS dataset does not have a measure for the APPLA case goal, we used long-term foster care and emancipation as proxy measures for APPLA. The AFCARS regulations were first issued in 1993, and HHS published a proposed rule in February 2015 to revise AFCARS to, among other things, incorporate statutory changes made since then.

AFCARS contains data on children under the responsibility of tribal title IV-E agencies operating under tribal-state title IV-E agreements but does not yet contain data for the 7 tribes approved to directly operate title IV-E programs. Therefore, some children under the responsibility of tribal title IV-E agencies—and covered by the 3-year delayed implementation period for the APPLA restriction—are not represented in AFCARS. Data for certain other children under the care and custody of tribal child welfare agencies are not submitted into AFCARS. In addition, while AFCARS provides data on most children in foster care in the United States, there are several limitations to using the data available to study Indian children in foster care, particularly those under the care and placement responsibility of Indian tribes. In general, in AFCARS a person’s race is determined by how they define themselves or by how others define them; in the case of young children, parents determine the race of the child. In AFCARS, “American Indian or Alaska Native” (AI/AN) is defined as “a person having origins in any of the original peoples of North or South America (including Central America), and who maintains tribal affiliation or community attachment.” Children identified as Indian in AFCARS are not necessarily enrolled members of a federally-recognized tribe or eligible for enrollment.

Before deciding to use the data provided by HHS, we conducted a data reliability assessment. We assessed the reliability of the data file that HHS provided by (1) performing electronic data testing for obvious errors in accuracy and completeness, (2) reviewing existing information about the data and the system that produced the data, and (3) interviewing agency officials and child welfare experts knowledgeable about these data. We determined that the data were sufficiently reliable for the purposes of this report.

To obtain the perspectives of tribal officials, we conducted semi- structured interviews (2 in person and 13 by telephone) with tribal child welfare officials from 15 federally recognized tribes and held six group interviews with representatives from 21 other federally recognized tribes. We selected the 15 tribes for individual interviews from six states that have high numbers of tribes receiving title IV-E or title IV-B funding: Arizona, Michigan, Montana, New Mexico, Oklahoma, and Washington. Tribes in these states were selected to achieve variation in tribal population under age 21 and type of title IV funding—via a direct title IV-E program, a title IV-E tribal-state agreement, or a title IV-B program only. We conducted one telephone group interview and convened five in- person group interviews with officials from 21 additional tribes who were assembled for regional or national meetings at the following venues:

Session convened by Casey Family Programs prior to a tribal consultation session with the Administration for Children and Families, Washington, D.C., September 2015.

Oklahoma Indian Child Welfare Association Conference, Norman, OK, November 2015 - two discussion groups.

Casey Family Programs National Title IV-E Summit, Denver, CO, December 2015.

Michigan Quarterly Tribal-State Partnership meeting, Lansing, MI, January 2016.

All tribes in attendance at these events were invited to participate in our group interviews. In total, our tribal interviewees included representatives of 6 tribes that were approved to operate a title IV-E program directly through HHS; representatives of 15 tribes that received title IV-E funding through a tribal-state agreement as well as title IV-B funding; and representatives of 13 tribes that received title IV-B funding only. The information obtained in our interviews is not generalizable to the population of federally recognized tribes, but provides examples of tribes’ experience using the APPLA case goal and any challenges they may face establishing permanency for children in their care when the changes go into effect.

In addition, in the report we use qualifiers, such as “some” and “several” in some cases to quantify responses from tribal officials across our individual and group interviews with officials from 36 tribes in total. These qualifiers are defined as follows: “Most” more than 18 tribes “Many” represents 11-17 “Several” represents 6-10 “Some” represents 2-5 We also reviewed relevant federal laws, regulations and HHS guidance to states and tribes. In addition, we interviewed state child welfare officials from the six selected states, as well as officials from the Administration on Children and Families’ (ACF) Children’s Bureau at HHS; officials from five of HHS’s regional offices that work with the states where the selected tribes were located; and the Center for Tribes, an HHS-funded technical assistance provider.

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

Appendix III: GAO Contact and Staff Acknowledgements

GAO Contact

Kay E. Brown, Director, (202) 512-7215 or brownke@gao.gov.

Staff Acknowledgements

In addition to the contact named above, Elizabeth Morrison (Assistant Director), Sara Edmondson (Analyst-in-Charge), Kelly Snow, and Kate Blumenreich made key contributions to this report. Also contributing to this report were Ed Bodine, James Bennett, David Chrisinger, Sarah Cornetto, Jean McSween, and Daren Sweeney.