[Federal Register Volume 74, Number 48 (Friday, March 13, 2009)]
[Notices]
[Pages 10920-10922]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: E9-5505]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families


Request for Public Comment Concerning Requirements 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: Department of Health and Human Services, Administration for 
Children and Families, Administration on Children, Youth and Families.

ACTION: Request for Public Comment and Tribal Consultation Meetings.

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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 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 specifically the affected States and to notify Tribal leaders of 
in-person opportunities to consult with the Children's Bureau on the 
development of these regulations.

DATES: Written comments must be submitted to the office listed in the 
ADDRESSES section below on or before May 12, 2009. Please see 
SUPPLEMENTARY INFORMATION for additional details on the Tribal 
consultation meetings.

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.

[[Page 10921]]

     E-mail: [email protected]. Please include ``Request 
for Public Comment on Tribal IV-E Requirements'' 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 Ave., SW., 8th Floor, Washington, DC 20024; (202) 205-8138, 
[email protected].

SUPPLEMENTARY INFORMATION:

Title IV-E Background

    The Fostering Connections to Success and Increasing Adoptions 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 (hereafter, ``States'') 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 that 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 
http://www.acf.hhs.gov/programs/cb.

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:
     Secretarial 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 
Act;
     Regulations in 45 CFR 1355 and 1356 or incorporated by 
cross-reference, except to the extent that such regulations either have 
been superseded by Public Law 110-351 or are not applicable at this 
time to directly-funded Tribes (e.g., regulations requiring 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 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 the children maintain 
their 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 rulemaking. Because the law requires us to 
promulgate interim final regulations 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 in consultation with Indian Tribes, Tribal 
organizations, Tribal consortia, and affected States we will hold in-
person Tribal consultation meetings to discuss these topics. Affected 
States may submit written comments on these issues. Specifically, we 
are seeking comments on the following:
     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 the 
title IV-E program for directly-funded Tribes should be in regulations?

[[Page 10922]]

     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 the representatives of Federally 
recognized Tribes to attend consultation meetings that will be held 
across the United States 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, March 26, 2009--Region V

    Park Plaza Bloomington Hotel, 4460 West 78th Street Circle, 
Bloomington, MN 55435.
    Region includes: Illinois, Indiana, Michigan, Minnesota, Ohio and 
Wisconsin.
    Contact: Carolyn Wilson-Hurey, CB Regional Program Manager, phone 
(312) 353-4237 or e-mail [email protected].

Friday, March 27, 2009--Region VII

    Federal Office Building, 601 E 12th Street, Kansas City, MO 64106.
    Region includes: Iowa, Kansas, Missouri and Nebraska.
    Contact: Rosalyn Wilson, CB Regional Program Manager, phone (816) 
426-2262 or e-mail [email protected].

Thursday, April 9, 2009--Region X

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

Friday, April 17, 2009--Region VIII

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

Monday, April 27, 2009--Region IX

    90 7th Street--Conf. Rm. B040 and B020, San Francisco, CA 94103.
    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.
    Contact: Sally Flanzer, CB Regional Program Manager, phone (415) 
437-8400 or e-mail [email protected].

Thursday, April 30, 2009--Region VI

    1301 Young Street, Room 1119, Dallas, TX 75202.
    Region includes: Arkansas, Louisiana, New Mexico, Oklahoma and 
Texas.
    Contact: June Lloyd, CB Regional Program Manager, phone (214) 767-
8466 or e-mail [email protected].

Wednesday, May 13, 2009--Regions I, II & IV

    Semi-Annual meeting of the United Southern and Eastern Tribes.
    Paragon Casino Resort Hotel, 711 Paragon Place, Marksville, LA 
71351.
    Region I includes: Connecticut, Maine, Massachusetts, New 
Hampshire, Rhode Island, and Vermont.
    Contact: Bob Cavanaugh, CB Regional Program Manager, phone (617) 
565-1020 or e-mail [email protected].
    Region II includes: New Jersey, New York, Puerto Rico and the 
Virgin Islands.
    Contact: Junius Scott, CB Regional Program Manager, phone (212) 
264-2890 or e-mail [email protected].
    Region IV includes: Alabama, Mississippi, Florida, North Carolina, 
Georgia, South Carolina, Kentucky and Tennessee.
    Contact: Ruth Walker, CB Regional Program Manager, phone (404) 562-
2901 or e-mail [email protected].

    Dated: March 9, 2009.
Curtis Coy,
Acting Assistant Secretary for Administration.
 [FR Doc. E9-5505 Filed 3-12-09; 8:45 am]
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