A potential "pot of gold" sits at the end of a rainbow for tribal foster
care programs. Under Title IV-E of the Social Securities Act, tribes may be
reimbursed for many of the costs that they currently spend on foster care
and related services. The seldom-tapped revenue a tribe can access through
Title IV-E could not only improve the lives of Indian children, but also
generate income for much-needed tribal social service programs.
The 75 tribes currently participating in Title IV-E receive thousands of
dollars in reimbursements annually. However, despite the fact that Title
IV-E has been available since 1980, the overwhelming majority of tribes
have not yet accessed the funding.
Title IV-E funds are not direct federal funding. Rather, funds are passed
to tribes through states, which reimburse tribes for a percentage of the
program costs associated with providing foster care services. Tribal
reimbursement under Title IV-E is facilitated through a tribal/state
intergovernmental agreement which, in some cases, has proven to be the most
significant barrier tribes face in accessing such funds. In addition to
discussing some of the political and legal issues tribes face relative to
government-to-government agreements, this article will explain some of the
technical aspects of Title IV-E.
HOW MANY INDIAN CHILDREN ARE IN FOSTER CARE AND ENTITLED TO TITLE IV-E
According to the U.S. Department of Health and Human Services, as of
September 1998, American Indian children were disproportionately
represented in the U.S. foster care system. The 2000 Census recorded only
.09 percent of the U.S. population as American Indian, adults and children.
In 2001, American Indian children represented 2 percent of all children in
foster care. Caucasians, however, represent 66 percent of the U.S.
population, and Caucasian children represent only 36 percent of all
children in foster care. Of the approximately 6,500 Indian children placed
in foster care annually, approximately 71 percent of them meet the
legibility criteria under Title IV-E.
So why such a glaring disparity of Indian children within the system?
Studies suggest three dominant theories: (1) the disproportionate need
found among minority families; (2) racial bias in child welfare
decision-making; and (3) family risk and child welfare practice.
In a 2003 study, participants expressed overwhelming concern for the lack
of resources and the implications for children and families. While the need
for resources, training and other services to American Indian children in
foster care increases annually, tribes underutilize the No. 1 funding
source for children's services, Title IV-E, which accounts for 48 percent
of all federal child welfare spending. While the government facilitates
approximately 30 congressionally authorized federal funding programs
directed at children, Title IV-E is the single largest source of funding.
Still, the vast majority of tribes are not utilizing this valuable social
and financial tool to provide services and generate revenue.
Title IV-E, which is a federal entitlement and not a grant, paid $5.2
billion toward foster care services nationwide in fiscal year 2004. Every
state in the country participates in the program. Tribes and states are
eligible to receive a federal reimbursement of anywhere from 50 percent to
83 percent of the money that they currently spend on Title IV-E eligible
services. It is alarming that only 75 of the more than 560 federally
recognized tribes currently access Title IV-E funds. Moreover, of the 75
tribes participating, few were reimbursed for administrative, training and
data system funding.
HOW DOES A TRIBE OVERCOME TITLE IV-E TECHNICAL DIFFICULTIES?
Tribes may receive federal reimbursement for monthly maintenance payments
for eligible children in foster care, monthly assistance payments for
special needs children in adoptive placements, administration costs
associated with placement of eligible children, and training costs for
personnel administering the programs as well as foster and adoptive
parents. While so many reimbursements are available, as of the year 2000,
less than 20 tribes billed for administrative costs such as case
management, case planning, case coordination and court-related activities;
and fewer than than five tribes have billed for the available training
States, on the other hand, maximize their claiming rates by hiring Title
IV-E consultants. Although hiring consultants may not be the right option
for every tribe, doing so is an excellent way to start billing under Title
IV-E, to receive immediate training and in turn generate revenue. An added
feature is that fees associated with contracting with consultants are
reimbursable as well.
Due to the technical nature of submitting a Title IV-E reimbursement
billing, many tribes experience difficulty in setting up a program. Title
IV-E requires an adequate infrastructure to administer the program and meet
fiscal requirements. Therefore, it may place a greater administrative
burden on child welfare agencies and tribal courts. If, after conducting a
needs assessment, a tribe believes it is appropriate to hire outside
consultants, a negotiated contract between the tribe and consultants should
recognize the sovereign power of the tribe and insulate it from any
improprieties on the part of the contractor.
WHY SHOULD TRIBES ENTER INTO TITLE IV-E AGREEMENTS WITH STATES?
While the complexities of the Title IV-E process may affect some tribal
decisions not to pursue the funding, dealing with states may also be an
obstacle. In current systems, state agencies often take the position that
once a tribe exerts jurisdiction over a children's case, the state
maintains no responsibility, financial or otherwise. These attitudes are
often reinforced by tribes eager to eliminate any state interference into
tribal children's cases. In this situation, the tribes, and more
importantly, tribal children, lose. The key to a successful Title IV-E
tribal/state relationship is a well-thought-out and legally sound
agreement, and it remains the only way that a tribe may access the Title
IV-E funding to which it is entitled.
Some tribal leaders believe that by entering an agreement, the tribe allows
state agencies to participate with or even dictate to tribal personnel, how
case management will occur. However, Title IV-E agreements are contracts in
which the tribe and state negotiate the extent of state involvement in
tribal cases. Based on the interests of both parties, tribal and state
agreements are very unique in scope and tenure. Everyone involved benefits
when tribes and states work together with respect for one another's needs,
roles, and responsibilities.
Pursuant to a sound Title IV-E agreement, Indian children are arguably less
likely to become victims of abuse and neglect, because of additional
services and protections afforded them due to increased funding. For
example, the foster parent training provided under Title IV-E is vital to
the physical and emotional well-being of Indian children and should be
negotiated into every agreement with the state. Title IV-E funds can be
used to address domestic violence and child abuse by providing training for
child welfare staff assigned to these types of cases.
In addition to federal funding for maintenance payments, adoption
assistance funding, administration and staff training -- including higher
education -- can be negotiated. Under such an agreement, tribes may receive
reimbursement for the related college education of tribal employees. Under
some tribal/state agreements, tribal agency employees receive scholarships
for masters-level social work education. Some agreements allow tribes
access to state computerized information systems. In order to maximize the
benefits of a Title IV-E agreement, tribes must come to the table with full
knowledge of the funding available for services under the statute and
negotiate an agreement that takes advantage of such an important program.
HOW DOES A TRIBE BEGIN ACCESSING THE TITLE IV-E ENTITLEMENT?
Tribes must not allow political or technical barriers to deprive Indian
children of their entitlement under Title IV-E. While Title IV-E funding
should, and may in the near future, pass directly from the federal
government to the tribes, tribes have an immediate need to provide services
to the many Native children in foster care.
The first step is to assess whether your tribe should retain consultants. A
starting point would be to contact the National Indian Child Welfare
Association or local Title IV-E consultant groups. Once the tribe selects a
consultant group, tribal leaders and staff must negotiate a contract
representative of the needs and expectations of the tribe. The tribe and
consulting firm, with legal counsel, should then begin negotiating a Title
IV-E agreement that maximizes the tribe's ability to provide and bill for
all eligible services.
With an agreement in place, a legal and programmatic review of the existing
system should occur to ensure Title IV-E compliance, and thus, the legal
and financial eligibility process can begin. The programmatic and financial
benefits of Title IV-E to tribal communities outweigh the technical
difficulties presented by the statute or the issues presented by entering
into an agreement with the state. Title IV-E is a viable option for any
tribe interested in developing the infrastructure of programs that provide
social services to their Indian children and communities.
Leona Colegrove is an attorney with the Seattle-Portland law firm Williams,
Kastner & Gibbs, PLLC. She is a descendant of the Quinault Tribe in
Washington and an enrolled member of the Hoopa Tribe in northern