[Federal Register Volume 74, Number 15 (Monday, January 26, 2009)]
[Proposed Rules]
[Pages 4365-4367]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-1338]



Administration for Children and Families

45 CFR Parts 1355 and 1356

Request for Public Comment Concerning Regulations for 
Transferring Children From the Placement and Care Responsibility of a 
State Title IV-E Agency to a Tribal Title IV-E Agency and Tribal Share 
of Title IV-E Administration and Training Expenditures

AGENCY: Administration on Children, Youth and Families, Administration 
for Children and Families, Department of Health and Human Services.

ACTION: Proposed rule; request for public comment and Tribal 
consultation meetings.


SUMMARY: Effective October 1, 2009, Public Law 110-351 provides Indian 
Tribes with the option to operate a foster care, adoption assistance 
and, at tribal option, a kinship guardianship assistance program under 
title IV-E of the Social Security Act (the Act). The Federal government 
would share in the costs of Tribes operating an ACF-approved title IV-E 
program. Public Law 110-351 requires that ACF develop interim final 
rules after consulting with Tribes and affected States on the 
implementation of the tribal plan requirements in section 479B of the 
Act and other amendments made by the Tribal provisions in section 301 
of Public Law 110-351. The law requires that such regulations include: 
(1) Procedures to ensure that a transfer of State or Tribal 
responsibility for the placement and care of a child under a State 
title IV-E plan to a Tribal title IV-E plan occurs in a manner that 
does not affect the child's eligibility for title IV-E or title XIX 
Medicaid and such services or payments; and, (2) the in-kind 
expenditures from third-party sources permitted for the Tribal share of 
administration and training expenditures under title IV-E. This notice 
is designed to provide a written opportunity for comment to all 
interested persons and notify Tribal leaders of in-person opportunities 
to consult with the Children's Bureau on the development of these 

DATES: Written comments must be submitted to the office listed in the 
ADDRESSES section below on or before April 27, 2009. Please see 
SUPPLEMENTARY INFORMATION for additional details on the Tribal 
consultation meetings.

[[Page 4366]]

ADDRESSES: Interested persons may submit written comments by any of the 
following methods:
     Federal eRulemaking Portal: http://www.regulations.gov. 
Follow the instructions for submitting comments.
     E-mail: [email protected]. Please include ``Comments 
on Tribal IV-E Regulations'' in the subject line of the message.
     Mail or Courier Delivery: Miranda Lynch, Division of 
Policy, Children's Bureau, Administration on Children, Youth and 
Families, Administration for Children and Families, 1250 Maryland 
Avenue, SW., 8th Floor, Washington, DC 20024.
    Instructions: Please be aware that mail sent to us may take an 
additional 3-4 days to process due to changes in mail handling 
resulting from the anthrax crisis of October 2001. If you choose to use 
an express, overnight, or other special delivery method, please ensure 
first that they are able to deliver to the above address. We urge you 
to submit comments electronically to ensure they are received in a 
timely manner. All comments received will be posted without change to 
www.regulations.gov including any personal information provided. 
Comments provided to us during a meeting or in-writing in response to 
this Federal Register notice will receive equal consideration by ACF.

FOR FURTHER INFORMATION CONTACT: Miranda Lynch, Children's Bureau, 1250 
Maryland Avenue, SW., 8th Floor, Washington, DC 20024; (202) 205-8138, 
[email protected].


Title IV-E Background

    The Fostering Connections to Success and Increasing Adoption Act of 
2008, Public Law 110-351 was enacted on October 7, 2008. Prior to the 
law's enactment, the title IV-E program provided States and territories 
with Federal funds to support eligible children in foster care, 
eligible children with special needs in adoptions, and to assist the 
State with the administrative expenses of operating the title IV-E 
program. The law, as amended, permits Federally-recognized Indian 
Tribes, tribal organizations or consortia (hereafter, ``Tribes'') to 
apply to ACF to operate a title IV-E program beginning October 1, 2009. 
By law, the requirements of the title IV-E statute apply to such Tribes 
``in the same manner as this part applies to a State'' (section 479B(b) 
of the Act), with limited exceptions. Public Law 110-351 also provides 
limited funding, beginning in Federal fiscal year (FY) 2009, for Tribes 
that intend to submit an application to ACF for direct funding of the 
title IV-E program to also apply for a grant to assist in developing a 
title IV-E plan. Finally, the law codifies a Tribe's ability to enter 
into agreements and contracts with State title IV-E agencies to share 
in the administration of the title IV-E programs on behalf of Indian 
children in their placement and care responsibility.
    In addition to creating this opportunity for Tribes, the law 
permits title IV-E agencies who choose to do so to administer a new 
kinship guardianship assistance program under title IV-E, revises the 
eligibility criteria for the title IV-E adoption assistance program, 
allows title IV-E agencies to choose to extend title IV-E foster care, 
adoption assistance, and kinship guardianship payments to youth who 
meet certain conditions up to age 21, among other changes to the title 
IV-B and IV-E requirements. The entire law and issuances related to the 
new provisions can be found on the Children's Bureau's Web site at 

Implementation of the Tribal Title IV-E Plan

    The law limits exceptions or modifications to the title IV-E 
statutory requirements for Tribes that will directly operate a title 
IV-E program to those granted in the law (i.e., the ability for Tribes 
to define their own service areas, tribal licensing standards and 
flexibility to use nunc pro tunc and affidavits to meet judicial 
determination requirements in the first 12 months of operation of the 
tribal title IV-E plan). This means that Tribes wishing to operate 
their own title IV-E plan must adhere to the following requirements:
     Secretary approval of a plan to operate a title IV-E 
foster care (per section 472 of the Act) and adoption assistance 
program (per section 473 of the Act) that complies with the applicable 
title IV-E plan requirements in sections 471(a) and definitions in 
section 475 of the Act.
     Tribal title IV-E plan provisions in section 479B of the 
     Regulations in 45 CFR parts 1355 and 1356 or incorporated 
by cross-reference, to the extent that such regulations have not been 
superseded by Public Law 110-351 or are not applicable to directly-
funded Tribes at this time (e.g., title IV-E eligibility reviews and 
Child and Family Services Reviews); and,
     Federal reporting requirements as required by the 
Secretary (section 471(a)(6) of the Act).

Transfer of Placement and Care of Title IV-E Indian Children

    The law requires the Secretary to issue interim final rules on the 
transfer of children in foster care under a State title IV-E plan, to 
the placement and care responsibility of a Tribe under a directly-
funded Tribal title IV-E plan to ensure that a child maintains his 
eligibility for title IV-E and title XIX Medicaid. We note that the 
Indian Child Welfare Act (ICWA) of 1978 provides existing statutory 
direction for State courts to transfer certain child custody 
proceedings--including foster care--involving Indian children to the 
jurisdiction of Indian courts. The Bureau of Indian Affairs, Department 
of the Interior, has also issued guidelines regarding such transfers in 
``Guidelines for State Courts--Indian Child Custody Proceedings'' (see 
44 FR 67584, November 26, 1979).

Tribal Share of Title IV-E Administration and Training Expenditures

    Tribes whose title IV-E plans are approved by the Secretary may 
receive Federal reimbursement of a share of title IV-E allowable 
administrative and training costs (section 479B(c)(1)(D) of the Act). 
As of October 1, 2009, the law permits such Tribes, but not States, to 
use in-kind funds from third-party sources in contributing their Tribal 
share of such costs. The law establishes initial provisions for 
permitted third-party sources and sets specific limits on the 
percentage of the Tribal share that may be used for title IV-E 
purposes. The law requires HHS to develop interim final regulations on 
the tribal share provisions to apply beginning in FY 2012.

Opportunity To Comment

    Interim final rules are final rules that have immediate effect 
without the Federal agency first issuing and inviting public comment on 
a notice of proposed rule. Because the law requires us to use the 
interim final rule process on the limited topics of the procedures to 
effect the transfer of children from State to directly-funded Tribal 
title IV-E plans and the in-kind third party match sources and 
percentages, we are seeking comments from Tribes, affected States and 
other stakeholders through this Federal Register notice and the Tribal 
consultation meetings. Specifically, we are seeking comments on the 
     Considering that the Secretary is to apply title IV-E of 
the Act to Tribes in the same manner as to States except where directed 
by law, what, if any, provisions and clarifications related to

[[Page 4367]]

the title IV-E program for directly-funded Tribes should be in 
     Are guidelines above and beyond those provided pursuant to 
the ICWA needed to execute the transfer of placement and care 
responsibility of a title IV-E Indian child to a Tribe operating a 
title IV-E plan? If, so please provide suggestions.
     What specific information pertaining to title IV-E and 
title XIX Medicaid should a State make available to a Tribe that seeks 
to gain placement and care responsibility over an Indian child?
     Should the third-party sources and in-kind limits on 
Tribal administrative and training costs remain consistent with section 
479B(c)(1)(D) of the Act? Please provide a rationale for this response.
    Any other comments regarding the development of an interim final 
rule per section 301(e) of Public Law 110-351 are welcome. Please note, 
however, that this request is limited in scope and is not intended to 
solicit comments on the remaining provisions of Public Law 110-351.

Tribal Consultation

    We invite Tribal leaders and/or their representatives of Federally 
recognized tribes to attend consultation meetings that will be held in 
certain ACF Regional Offices to provide their input on the issues 
subject to regulations as explained below. Tribal leaders and/or their 
representatives who choose to attend a consultation session must 
register at least one week in advance of the meeting date by contacting 
the applicable Children's Bureau (CB) Regional Program Manager. 
Registered participants for the consultation session may submit written 
remarks in advance, or present them in oral or written form at the 
consultation session. Tribal leaders and/or their representatives, 
regardless of whether they participate in the consultation session, may 
provide written comments as noted in the ADDRESSES section. Finally, 
please note that Federal representatives attending the consultation 
sessions will not be able to respond directly during the session to the 
concerns or questions raised by participants. The consultation sessions 
and contact information are listed below:

Thursday, February 12, 2009-- Region VII

    Federal Office Building, 601 E 12th Street, Kansas City, MO 64106. 
Contact: Rosalyn Wilson, CB Regional Program Manager, phone (816) 426-
3981 or e-mail [email protected].
    Region includes: Iowa, Kansas, Missouri and Nebraska.

Friday, February 20, 2009--Region VI

    1301 Young Street, Room 1119, Dallas, TX 75202. Contact: June 
Lloyd, CB Regional Program Manager, phone (214) 767-9648 or e-mail 
[email protected].
    Region includes: Arkansas, Louisiana, New Mexico, Oklahoma and 

Friday, February 20, 2009--Region IX

    90 7th Street--Conf. Rm. B040 and B020, San Francisco, CA, 94103. 
Contact: Sally Flanzer, CB Regional Program Manager, phone (415) 437-
8400 or e-mail [email protected].
    Region includes: Arizona, California, Hawaii, Nevada, Outer 
Pacific--American Samoa, Commonwealth of the Northern Marianas, 
Federated States of Micronesia (Chuuk, Pohnpei, Yap) Guam, Marshall 
Islands and Palau.

Wednesday, February 25--Region I

    JFK Federal Building 21st Floor, Rm. 2100, Boston, MA 02203. 
Contact: Bob Cavanaugh, CB Regional Program Manager, phone (617) 565-
1020 or e-mail [email protected].
    Region includes: Connecticut, Maine, Massachusetts, New Hampshire, 
Rhode Island, and Vermont.

Wednesday, February 25, 2009-- Region VIII

    Byron Rogers Federal Building, 1961 Stout Street, Denver, CO 80294. 
Contact: Marilyn Kennerson, CB Regional Program Manager, phone (303) 
844-3100 or e-mail [email protected].
    Region includes: Colorado, Montana, North Dakota, South Dakota, 
Utah and Wyoming.

Thursday, February 26, 2009--Region II

    Leo O'Brien Federal Building, Room 826A, 1 Clinton Square, Albany, 
NY 12207. Contact: Junius Scott, CB Regional Program Manager, phone 
(212) 264-2890 or e-mail [email protected].
    Region includes: New Jersey, New York, Puerto Rico and the Virgin 

Thursday, February 26, 2009-- Region IV

    Sam Nunn Atlanta Federal Center, Conf. Rm. A & B, 61 Forsyth Street 
SW., Suite 4M60, Atlanta, GA 30303. Contact: Ruth Walker, CB Regional 
Program Manager, phone (404) 562-2900 or e-mail 
[email protected].
    Region includes: Alabama, Mississippi, Florida, North Carolina, 
Georgia, South Carolina, Kentucky and Tennessee.

Friday, February 27, 2009--Region X

    2201 Sixth Avenue, Seattle, WA 98121-1827. Contact: John Henderson, 
CB Regional Program Manager, phone (206) 615-2482 or e-mail 
[email protected].
    Region includes: Alaska, Idaho, Oregon and Washington.

Thursday, March 5, 2009--Region V

    ACF Tower Conference Room, 233 N Michigan Avenue, Suite 400, 
Chicago, IL 60601. Contact: Carolyn Wilson-Hurey, CB Regional Program 
Manager, phone (312) 353-4237 or e-mail [email protected].
    Region includes: Illinois, Indiana, Michigan, Minnesota, Ohio and 

    Dated: January 14, 2009.
Joan E. Ohl,
Commissioner, Administration on Children, Youth and Families.
[FR Doc. E9-1338 Filed 1-23-09; 8:45 am]