Association on American Indian Affairs

Tribal Provisions – P.L. 110-351

October, 2008

Tribal Provisions – P.L. 110-351 –
Enacted into law on October 7, 2008 –
all provisions in section 301 of the bill
(unless noted)

Direct funding to tribes.  Authorizes tribes, tribal organizations and tribal consortia at their option to apply to the Department of Health and Human Services (DHHS) to administer the Title IV-E foster care and adoption assistance program and receive direct funding from DHHS.  Except in limited circumstances, tribal plans for administration of the program would have to fulfill the same requirements as the statute sets out for state plans. 

Tribal-state agreements.  Tribal-state agreements are an alternative to direct funding.  States are required to negotiate IV-E agreements with tribes in good faith, if requested.  Any tribal-state agreement in effect on the date of enactment will remain in effect subject to the right of either party to revoke or modify the agreement and future tribal-state agreements are authorized.  The state may utilize the tribe’s FMAP for payments made pursuant to a Title IV-E tribal-state agreement (see below). 

Eligibility for foster care maintenance payments.  All Indian children placed by Indian tribes who are operating the Title IV-E program pursuant to an HHS-approved plan or through a tribal-state agreement are eligible to receive IV-E foster care maintenance or adoption assistance payments (or, at the option of the tribe, relative guardianship payments) if they otherwise meet Title IV-E criteria.   In implementing the AFDC eligibility provision in Title IV-E (the so-called “look back” provision), the plan of the State where the child resides shall govern.

Hold harmless. Any Indian family currently receiving Title IV-E benefits will not have their benefits terminated as a result of this legislation, regardless of whether an existing tribal-state agreement remains in force.  

Service Area.  Tribes, tribal organizations and tribal consortia must specify in their plans the service area or areas and population that they intend to serve. 

Foster Care Standards.  Tribes utilize their own foster care standards that must be reasonably in accord with recommended standards developed by national organizations (presumably this reference would include standards that have been developed by organizations like the National Indian Child Welfare Association [NICWA] that specifically address issues relating to licensure of Indian homes.)

Financial Capacity. An Indian tribe, tribal organization or tribal consortium seeking to operate the IV-E program must include in its plan evidence that it has not had any uncorrected significant or material exceptions under Federal grants or contracts that directly relate to the administration of social services for the 3 year period before the date on which it submits the plan.

Tribal FMAP rate used for federal payments.  Tribes, tribal organizations and tribal consortia for foster care and adoption placements would be reimbursed based on their medical assistance rate (FMAP), except that in no case shall the Secretary approve a tribal rate that is lower than that of any state in which the tribe is located.  The FMAP rate is calculated based upon the per capita income of the tribal service population as defined in its plan.  (In other words, a tribe with a lower level of income will receive a higher percentage of federal funding.)  A tribe may submit to the Secretary information relevant to this calculation, and the Secretary must take it into consideration. 

Source of matching funds/DHHS regulations. Tribes may use every source of match that states are permitted to use and all other sources otherwise permitted by law currently (including 638, Self-Governance and BIA ICWA funds).  In addition, there are provisions allowing for the limited use of in-kind match with instructions to HHS to promulgate permanent regulations on the use of in-kind match by October 1, 2011.  Until the regulations are promulgated, tribes may claim up to 25% of administrative costs (50% of the non-federal match) and 12% of training costs (48% of the non-federal match) except for  as in-kind expenditures from certain third party sources – specifically from a State or local government, tribal entity other than the one making the application, public institution of higher education, tribal college or university or a private charitable organization.  (H.R. 6893 expands the list of eligible training recipients; for those individuals, match rates are slightly lower through FY 2012, see section 203.)  There is a slight variation for training activities If regulations are not promulgated by FY 2015, then the right to use in-kind match expires.    There is a grandfather clause allowing tribes that have entered the program prior to the issuance of regulations to continue using in-kind under the statutory formula until October 1, 2013.

Nunc pro tunc limited to 12 months. Nunc pro tunc tribal court orders and affidavits can be used to satisfy the “contrary to the welfare” of the child determination required by law in order for a child to be eligible under Title IV-E, but only for the first 12 months after a plan has been approved by HHS.

Chafee Independent Living Program. Tribes, tribal organizations and tribal consortia are made eligible to receive a direct allocation from the Federal government from the John H. Chafee Independence Program.  The amount of the award would be calculated based upon the percentage of children in the state that are under a tribe’s custody and would be a deduction from the state’s allocation.  Tribes would also be permitted to access the program through tribal-state agreements and the State would be required to negotiate agreements in good faith if requested by a tribe.  HHS would be given some flexibility as to the exact nature of the payments to be made to tribes.

Regulations/In-Kind.  Except in the case of regulations pertaining to in-kind match, the Secretary of HHS is instructed to adopt regulations to implement this legislation within one year after enactment.  The regulations on in-kind match are required to be completed by September 30, 2011.  The Secretary would be required to consult with Indian tribes, tribal organizations and tribal consortia in developing regulations.

Effective date.  These sections take effect on October 1, 2009.

Technical Assistance/Start-Up Grants.   $3 million/year is appropriated to provide technical assistance to tribes operating programs under Title IV-B or IV-E and to provide one-time start up grants for up to two years (maximum $300,000/year) for tribes that intend to apply for direct funding under Title IV-E.   Section 302 of the bill.   This section takes effect immediately.

Other provisions.  State, local and tribal child welfare agencies and private nonprofit organizations are eligible to apply for a new $15million/year family connection grant program.   This competitive grant program focuses on efforts to coordinate and enhance services for relative caregivers.  Section 102 of the bill.  This section takes effect immediately.

Prepared by Jack F. Trope, Executive Director,
Association on American Indian Affairs