[Federal Register Volume 60, Number 106 (Friday, June 2, 1995)]
[Rules and Regulations]
[Pages 28735-28737]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 95-13507]
=======================================================================
-----------------------------------------------------------------------
DEPARTMENT OF HEALTH AND HUMAN SERVICES
Administration for Children and Families
45 CFR Part 1357
RIN AB44
Child Welfare Services Program
AGENCY: Administration on Children, Youth and Families; Administration
for Children and Families, HHS.
ACTION: Final rule.
-----------------------------------------------------------------------
SUMMARY: The Department of Health and Human Services is issuing this
final rule to amend the regulations governing direct payments to Indian
Tribal Organizations (ITOs) for child welfare services. It eliminates
the requirement that to be eligible ITOs must provide services under
contract (or grant) with the Secretary of the Interior under section
102 of the Indian Self-Determination Act, and adds a description of the
formula used to calculate the amount of Federal funds available to
eligible ITOs under title IV-B, Subpart 1 of the Social Security Act.
We believe that complex and limiting eligibility requirements and low
grant amounts have resulted in low ITO participation rates. The
amendment will improve the quality of Indian child welfare services
nationally by broadening eligibility and by allowing for an increase in
grant amounts.
EFFECTIVE DATE: October 1, 1995.
FOR FURTHER INFORMATION CONTACT: Olivia A. Golden, Administration on
Children, Youth and Families, P.O. Box 1182, Washington, DC 20013,
(202) 205-8474.
SUPPLEMENTARY INFORMATION:
I. Program Description and Background
Title IV-B, Subpart 1, of the Social Security Act (the Act), the
Child Welfare Services program, is a formula grant program. Each State
receives a grant representing its share of the current authorized
amount. The grants provide States with Federal support for a wide
variety of State child welfare services including: preplacement
preventive services to strengthen families and avoid placement of
children; services to prevent abuse and neglect; services for the
provision of foster care and adoption; and certain protections for
children in foster care.
The grant funds can be used to provide services regardless of the
income of the families and children who are in need of such services.
The Child Welfare Services program has been a part of the Social
Security Act (the Act) since the Act's inception in 1935. In 1968,
Congress transferred this program to title IV, Part B of the Act
(sections 420-425 of the Act). Historically, title IV-B has provided
Federal grants to States to establish, extend and strengthen child
welfare services. Under this program, services are available to all
children, including the homeless, neglected, dependent and those with
disabilities.
The Adoption Assistance and Child Welfare Act of 1980 (Pub. L. 96-
272) was enacted on June 17, 1980. In addition to amending title IV-B,
Public Law 96-272 established a new program, the title IV-E program,
which replaced on October 1, 1982, the title IV-A foster care program
in the States. The law created links between the two programs with
numerous program and fiscal incentives. The impetus behind the passage
of Public Law 96-272 was the belief of Congress and most State child
welfare administrators, supported by extensive research, that the
public child welfare system responsible for serving dependent and
neglected children, youth and families had become a receiving or
holding system for children living away from their parents. Congress
envisioned in the new legislation a system that would help families
remain together by assisting parents in carrying out their roles and
responsibilities and providing alternative permanent placement for
those children who cannot return to their own homes.
Public Law 96-272 created section 428 of the Act which provides for
direct payments to certain Indian Tribal Organizations, of funds
authorized under title IV-B for child welfare services to certain ITOs.
Effective June 22, 1983, regulations published at 45 CFR 1357.40
implemented section 428 of the Act, and specified which ITOs are
eligible to receive funds directly and under what circumstances direct
payments should be made available. In determining which ITOs would be
eligible for direct funding, the Department decided to make the option
of applying for direct funding available to those ITOs which had
contracted with, or received a grant from, the Bureau of Indian Affairs
under Public Law 93-638 (Indian Self-Determination Act) for child
welfare services. This requirement was intended to limit direct funding
to ITOs that had established the need for child welfare services and
had taken advantage of the opportunity for direct management and
operation of a tribal child welfare services program. Under this
approach, direct grants would be added to existing ongoing Indian child
welfare programs operated by the tribal organizations. The title IV-B
funds were intended to be linked to the other major Federal Indian
social services program to support Indian self-determination, and
complement the provisions of the Indian Child Welfare Act of 1978 (Pub.
L. 95-608). This was considered important by the Department because
title IV-B funds alone are [[Page 28736]] insufficient for an ITO to
establish and operate a basic child welfare services program.
We believe that the requirement that ITOs must contract, or receive
a grant, for child welfare services under Public Law 93-638 in order to
be eligible for direct funding under title IV-B is no longer necessary.
In recent years, Federal social service funding under the Indian Child
Welfare Act (ICWA) has increased significantly. In fiscal year 1994,
530 tribes are expected to receive $22,905,000 under ICWA. We are aware
that there are ITOs which do not receive Indian Self-Determination Act
funding although they are operating child welfare services programs
utilizing ICWA funding, and others which could choose to begin to
provide child welfare services.
II. Discussion of the Comments and Final Rule
On October 20, 1994, the Department published a Notice of Proposed
Rulemaking (NPRM) in the Federal Register [59 FR 52951] that proposed a
revision of 45 CFR Part 1357, the regulation governing direct payments
to Indian Tribal Organizations (ITOs). Interested persons were given 60
days in which to comment on the proposed rule. The following is a
summary of the comments from the respondents and the Department's
response.
The Department received comments from twenty-one respondents,
including Tribal governments, Tribal human services agencies, national
Indian organizations, a Federal agency, and a State agency. Nineteen
comments supported changing the multiplication factor from 1.4 to 3.0.
Eighteen responses supported elimination of the Indian Self-
Determination Act eligibility requirement. One respondent opposed
elimination of the Indian Self-Determination Act eligibility
requirement. Two respondents recommended changes to the proposed rule.
Comment
One respondent opposed elimination of the Indian Self-Determination
Act eligibility requirement, and requested that an impact study be
conducted first to determine the effect of expanding the population of
Indians served on the population of Indians currently served under
title IV-B, Part 1. The respondent recommended that the results of the
study be published in the Federal Register along with the proposed
definition changes and proposed funding allocation, and that there be
an opportunity for comments.
Response
This comment appears to reflect two concerns: that the change
allows for native American consortiums to receive direct title IV-B
funding, and that the resulting increase of population which could
participate in title IV-B funding could adversely impact the program if
not funded appropriately. In response, it should be noted that the
current regulation allows Indian consortiums to receive title IV-B
direct funding. The proposed rule did not change this. However, the
proposed rule, by eliminating the Indian Self-Determination Act
requirement would likely expand the population of Indian children and
families served under title IV-B direct funding. If such a change in
the population served did occur, the corresponding increase of funding
to tribes would result in a corresponding equivalent decrease in
funding available to the State title IV-B agencies. There would be no
decrease in title IV-B funding available to those Indian Self-
Determination Act tribes currently receiving direct title IV-B funding
as a result of increasing the Indian population under this program. We
do not believe that an impact study is therefore necessary or
appropriate.
Comment
One respondent recommended delay of implementation of the
multiplication factor change to FY 1996 and implementation in two
stages: citing as examples, 2.25 in FY 1996, and 3.0 in FY 1997. The
respondent expressed concern about the impact on a State Agency due to
the significant percentage of the budget reduction anticipated and the
lack of adequate advance time for a State Agency to plan for the change
if implemented in FY 1995, as proposed.
Response
The Department agrees that a large increase in direct funding of
Tribes, coming late in a State's budget cycle would impose serious
problems. In order to allow those States that are likely to be
significantly impacted by the final regulation to adequately plan for
the change, the Department will delay the effective date of the final
regulation to October 1, 1995. However, we do not agree with the
proposal to raise the multiplication factor in stages because we do not
believe that a lower multiplication factor than 3.0 would be sufficient
to achieve the purpose of the policy, which is to substantially
increase the participation of the tribes and raise the quality of
Indian child welfare services. Although we understand the State's
concern about the need to maintain adequate State funding to continue
to serve the Indian population of enrolled tribal members living off
reservation, the title IV-B appropriations are not intended to
adequately meet all of a State's child welfare services needs. It is
expected that States will fund a significant portion of State child
welfare services from other sources.
Comment
One respondent recommended replacing the proposed funding formula
with a $20,000 base level of funding per Tribe, plus a percentage for
each child. This comment opposes the proposed formula because small
Tribes cannot sustain a viable program if this proposed funding formula
to tribes is approved and because small tribes have the same base cost
of providing services.
Response
Although we understand the concern that the funding formula does
not adequately meet the needs of the smaller tribes, the Department
believes that title IV-B is not sufficient to sustain base level plus
percentage funding for every Tribe and also fund those States with
either a large number of Tribes and/or a large population of Tribal
children. Title IV-B is intended to supplement other State and Tribal
child welfare resources. Under the Department's plan for increasing the
multiplication factor from 1.4 to 3.0, the Tribes will receive twice
the dollars per child in comparison with the States. The base level
plus percentage proposal would result in differentials far greater in
certain States. The proposed change as stated in the NPRM maintains
more of a balance between the Department's decision to more adequately
fund tribes, and the Federal responsibility to the States to assist
them to meet the needs of the children served in their child welfare
systems.
The Final Rule
This final rule revises paragraph (a) to eliminate the Indian Self-
Determination Act eligibility requirement. Paragraph (a), as revised,
states that ``any ITO that meets the definitions in section 428(c) of
the Act, or any consortium or other group of eligible tribal
organizations authorized by the membership of the tribes to act for
them is eligible to apply for direct funding if the Indian tribe,
consortium or group has a plan for child welfare services provided by
the ITO that is jointly developed by the ITO and the Department''.
In determining the amount of direct funding available to an ITO
eligible under the existing regulation, the [[Page 28737]] Secretary
currently applies a formula similar to the one used to calculate the
title IV-B allotments of the territories. This formula takes into
consideration the Indian tribe's resident population under 21 and its
per capita income.
The current formula for calculating an ITO's allotment results in
an amount which bears the same ratio to the total State's title IV-B
allotment as the product of 1.4 times the proportion of the Indian
tribe's resident population under age 21 to the State's total
population under age 21. The 1.4 multiplication factor has not resulted
in grant amounts large enough to make it worthwhile for many tribes to
apply for title IV-B. By June 1993, only 24 tribes were receiving
direct title IV-B grants totaling $549,340. The average grant available
to specified ITOs was $22,889, and grants ranged from a high of
$166,468 to a low of $648.
The Department plans to change the multiplication factor to 3.0 for
fiscal year 1996 in order to improve the quality of Indian child
welfare nationally. For comparison purposes, using the fiscal year 1993
figures given above, this would have raised the average amount
available to the specified ITO's to $45,778, and grants would have
ranged from a high of $332,936 to a low of $1,296.
Paragraph (g)(6) contains the Department's formula for the
calculation of ITO allotments. The multiplication factor will be
adjusted in future years based on the Department's experience, if
necessary, in order to achieve the purposes of the Act. Any decision to
change the multiplication factor will be promulgated through the
issuance of an Information Memorandum under the ACYF policy issuance
system.
Except for delaying the effective date to October 1, 1995, we have
made no changes in the final rule as proposed in the Notice.
III. Impact Analysis
Executive Order 12866
Executive Order 12866 requires that regulations be written to
ensure that they are consistent with the priorities and principles set
forth in the Executive Order. The Department has determined that the
regulations are consistent with these priorities and principles. This
final rule will not result in more costs because the increased funding
to Indian tribes and ITOs will come from the change in the allotment
formula.
Regulatory Flexibility Act of 1980
Consistent with the Regulatory Flexibility Act of 1980 (5 U.S.C.
Ch. 5), the Department tries to anticipate and reduce the impact of
rules and paperwork requirements on small businesses. For each rule
with a ``significant economic impact on a substantial number of small
entities'' an analysis is prepared describing the rule's impact on
small entities. Small entities are defined in the Act to include small
businesses and small non-profit organizations. This regulation would
affect States and Indian tribes, which are not ``small entities''
within the meaning of the Act. For these reasons, the Secretary
certifies that this rule will not have a significant impact on a
substantial number of small entities.
Paperwork Reduction Act
Under the Paperwork Reduction Act of 1980, Public Law 96-511, all
Departments are required to submit to the Office of Management and
Budget (OMB) for review and approval any reporting or recordkeeping
requirements in a proposed or final rule. This final rule contains no
reporting or recordkeeping requirements. Therefore no submission to OMB
is required.
List of Subjects in 45 CFR Part 1357
Adoption and foster care, Child welfare, Child welfare services,
State plan, Indians, Reporting and recordkeeping requirements.
(Catalog of Federal Domestic Assistance Program Number 93.645, Child
Welfare Services--State Grants)
Dated: May 12, 1995.
Mary Jo Bane,
Assistant Secretary for Children and Families.
For the reasons set forth in the preamble, 45 CFR 1357.40 is
amended as follows:
PART 1357--REQUIREMENTS APPLICABLE TO TITLE IV-B
1. The authority statement for Part 1357 continues to read as
follows:
Authority: 42 U.S.C. 620; 42 U.S.C. 670 et seq.; 42 U.S.C. 1302.
2. Section 1357.40 is amended by revising the heading and paragraph
(a) and by adding paragraph (g)(6) to read as follows:
Sec. 1357.40 Direct payments to Indian Tribal Organizations (title IV-
B, subpart 1, child welfare services).
(a) Who may apply for direct funding? Any Indian Tribal
Organization (ITO) that meets the definitions in section 428(c) of the
Act, or any consortium or other group of eligible tribal organizations
authorized by the membership of the tribes to act for them, is eligible
to apply for direct funding if the ITO, consortium or group has a plan
for child welfare services that is jointly developed by the ITO and the
Department.
* * * * *
(g) Grants: General.
* * * * *
(6) In order to determine the amount of Federal funds available for
a direct grant to an eligible ITO, the Department shall first divide
the State's title IV-B allotment by the number of children in the
State, then multiply the resulting amount by a multiplication factor
determined by the Secretary, and then multiply that amount by the
number of Indian children in the ITO population. The multiplication
factor will be set at a level designed to achieve the purposes of the
Act and revised as appropriate.
[FR Doc. 95-13507 Filed 6-1-95; 8:45 am]
BILLING CODE 4184-01-P
