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Our firm represented a tribe in a land claim case in which we persuaded the federal government to intervene on behalf of the tribe. Canadian St. Regis Band of Mohawk Indians v. State of N.Y., Nos. 82-CV-783, 82-CV-1114, 89-CV-829 (N.D.N.Y.)

General Memorandum 11-115

General Memorandum 11-115
Child Welfare Programs Reauthorized with New Tribal Court Improvement Funding

On September 30, 2011, the President signed HR 2883, the Child and Family Services Improvement and Innovation Act (Act), as Public Law 112-34. The Act reauthorizes child welfare programs which benefit tribes through fiscal year 2016. For the first time tribes will be eligible to apply for Court Improvement Program funds. In addition, a tribe who administers the Title IV-E Foster Care and Adoption Assistance Program will be authorized to apply for a waiver to operate the program as a demonstration project.

The legislation which became PL 112-34 was bipartisan and moved very quickly through the House and Senate. Sponsors were Ways and Means Subcommittee on Human Resources Chairman Geoff Davis (R-KY) and Ranking Member Lloyd Doggett (D-TX) and Senate Finance Committee Chairman Max Baucus (D-MT) and Ranking Member Orrin Hatch (R-UT). The National Indian Child Welfare Association and the Association on American Indian Affairs, who have worked on previous reauthorizations of these programs, were active in this effort.

Stephanie Tubbs Jones Child Welfare Services Program (CWS) (authorized in Title IV-B, Subpart 1 of the Social Security Act). The CWS program provides funds to tribes, territories and states for a wide array of services designed to promote the welfare of children, to prevent child abuse and neglect, to keep families together, and to promote permanency for children. While the authorization for CWS is $325 million, Congress generally appropriates $281 million. In fiscal year 2011, 170 tribes/tribal organizations received $6.2 million from the CWS program. The Act continues the prior method of funding tribes – a tribe's funds are based on its share of the state's population under age 21 with the Department of Health and Human Services (HHS) including an additional factor weighted to the tribe's favor.

The Act adds several new requirements that must be included in the plan that each grantee must submit to HHS: 1) how the IV-B agency will respond to emotional trauma associated with a child's maltreatment and removal from a home; 2) the adoption of protocols for the appropriate use and monitoring of psychotropic medications; 3) the description of the activities taken to reduce the length of time children under age five are in a temporary home; and 4) actions undertaken to address the developmental needs of children who receive the services of this program or the Title IV-E Foster Care and Adoption Assistance Program.

Promoting Safe and Stable Families Program (PSSF) (authorized in Title IV-B, Subpart 2 of the Social Security Act). The PSSF provides funding for the following four services: family support, family preservation, time-limited family reunification, and adoption promotion and support. Under PSSF there are also several other programs: Court Improvement, Caseworker Visits, and Regional Partnerships to help children who are affected by a home where there is substance abuse.

Funding for PSSF is in two forms – mandatory funding of $345 million and discretionary funding authorized at $200 million annually. In 2006 the PSSF was amended to allocate three percent of the mandatory and discretionary funds to tribes, and the Act continues that allocation. The Act also continues the authority of the HHS Secretary to exempt tribes from the ten percent cap on administrative costs and from the requirement that the PSSF funds be divided among the above-mentioned four services. The Secretary, via regulations, has provided these exemptions for tribes.

Funding is allotted to tribes that submit plans to HHS based on a tribe's relative share of children among all tribal entities with an approved PSSF plan as long as the formula would entitle a tribe or tribal consortium to $10,000 or more. In fiscal year 2011 126 tribes/tribal consortia received $11 million from the Promoting Safe and Stable Families Program.

The Regional Partnerships grants program to assist children affected by parental substance abuse is reauthorized through fiscal year 2016 at $20 million annually in mandatory funds. Previously, this program gave some preference to applications that focused on methamphetamine abuse although other forms of substance abuse were also addressed. The Act drops the term "methamphetamine" from the name of the program. Tribes are currently the lead grantee in six of the 53 Regional Partnership programs.

The Court Improvement Program is reauthorized through 2016 at $30 million annually in mandatory funds. This program provides funds to assist courts in the handling of child abuse and neglect cases; to train judges and other personnel in the handling of child welfare cases; to improve the data surrounding child welfare cases; and to engage the entire family in court processes relating to child welfare. Prior to
PL 112-34 all funds were awarded on a formula basis to the highest court in each state. The Act will, for the first time, allow tribal access to this source of funds. There is
$1 million allocated annually for competitive grants to tribes or tribal consortia who:
1) are operating a Title IV-E program; or 2) are seeking to operate a Title IV-E program and have an implementation grant for this purpose; or 3) have a court responsible for proceedings related to foster care or adoption. Thus, the tribal eligibility is very broad.

The definitions of Indian Tribe and Tribal Organization for the PSSF program are changed to be consistent with that used in the Child Welfare Services program, which are the Indian Self-Determination Act definitions.

Other. The Act requires the HHS Secretary to work with the Office of Management and Budget to develop standard data elements for any required reports on the Title IV-B programs.

The Act also makes a number of changes to the Title IV-E Foster Care and Adoption Assistance program, including requiring that the case plan for a child placed in foster care address the issue of educational stability each time a child is moved to another home, not only at the initial placement. In response to reports of a trend of identity theft of foster youth, the Act requires the state to obtain a copy of a credit report for foster youth age 16 and older and to assist them if action needs to be taken.

Finally, the Act amends the Title IV-E program by reinstating the Secretary's waiver authority to allow states to test alternative ways to achieve the goals of the program, albeit with a number of new requirements. The Act would allow ten waivers per year for each of three years (FY 2012 through FY 2014). A tribe operating a Title IV-E program would be eligible to apply for a waiver.

Attached is an Information Memorandum regarding PL 112-34 prepared by the Administration on Children and Families.

Please let us know if we may provide additional information regarding the Child and Family Services Improvement and Innovation Act.

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Inquires may be directed to:
Karen Funk (kfunk@hobbsstraus.com)

Available Documents for Download ( any referenced attachments are included in download )


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