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 ("Title IV-E"), 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 seventy-five 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.1 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 aspect of Title IV-E.2
1. How many Indian children are in foster care and entitled to Title IV-E funding?
According to the U.S. Department of Health and Human Services (DHHS), as of September 1998, Native American Children were disproportionately represented in the U.S. foster care system. The 2000 Census recorded only .09% of the U.S. population as Native American, adults and children. In 2001 Native American Children represented 2% of all children in foster care. Caucasians, however, represent 66% of the U.S. population, and Caucasian children represent only 36% of all children in foster care. 3 Of the approximately 6,500 Indian children placed in foster care annually, approximately 71% of them meet the legibility criteria under Title IV-E.4
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. 5 While the need for resources, training and other services to Native American Children in foster care increases annually, Tribes underutilize the number one funding source for children’s services, Title IV-E, which accounts for 48 percent of all federal child welfare spending.6 While the government facilitates approximately thirty 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 nation wide in FY 2004. Every state in the country participates in the program. Tribes and States are eligible to receive a federal reimbursement of anywhere from 50% to 83% percent of the money that they currently spend on Title IV-E eligible services. It is alarming that only 75 of the five hundred and sixty-seven federally recognized Tribes currently access Title IVE funds. Moreover, of the seventy five tribes participating, few were reimbursed for administrative, training and data system funding.7
2. 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 twenty tribes billed for administrative costs such as case management, case planning, case coordination and courtrelated activities; and, less than five tribes have billed for the available training funds.8 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, and 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.9
3. Why should tribes enter 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. Brown stated, "In the case of child welfare services for children and families in American Indian communities, states are the necessary allies for receiving Title IV-E funding."10 The key to a successful Title IV-E Tribal/State relationship is a well thought out and legally sound agreement, and 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/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 IVE 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.11
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 the full knowledge of available funding 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 tribes ability to provide and bill for all eligible services. With an agreement in place, a legal and programatic 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 an agreement with the state. Title IV-E is a viable option for any tribe interested in developing the infrastructure of the programs that provide social services to their Indian children and communities.
Footnotes
1 A future amendment to Title IV-E may allow tribes access to direct Title IV-E funding, in which case Tribes would no longer have to enter into agreements with their respective states to access the funding.
2 Leona Colegrove, a Hoopa and Quinault Indian, is an attorney with the law firm of Williams, Kastner & Gibbs. She is previous general counsel to the governing bodies of the Tulalip and Quinault Tribes. Her practice focuses on Indian law. Her experience in the area of Title IV-E and other federal funding sources stems from her work with Quinault Nation.
3 The AFCARS Report: Preliminary FY 2001 Estimates as of March 2003. Washington, DC.: DHHS, 2003. AFCARS: Adoption and Foster Care Analysis and Reproting System.
4 Cross, T.A., Earle, K.A. and Simmons, D., Child abuse and neglect in Indian country: Policy issues. Families in Society: The Journal of Contemporary Human Services. (2000)
5 See Administeation for Children and Families. Children of Color in the Child Welfare System Study, ACF, 2003.
6 Bess, R., Andrews, C., A., et al. The Cost of Protecting Vulnerable Children III: What Factors Affect States’ Fiscal Decisions? Occasional paper No. 61. Washington, DC: The Urban Institute, 2002.
7 Eddie F. Brown, et al. Using Tribal/State Title IV-E agreements to Help American Indian Tribes Access Foster Care and Adoption Funding, 2004.
8 Eddie F. Brown, et. al. Facilitating Tribal Access to Federal Resources, 2000.
9 In Washington State, a consulting firm provided Title IV-E consulting for the Quinault Nation under such an agreement. Only three tribes in Washington currently bill under an Title IV-E agreement, and of the three, Quinault may be the most successful in terms of ammount of services billed for in FY 2004.
10 Brown, El, et al, 2000.
11 Olga Trujillo and Gretchen Test, Funding the Work, 2002. 1
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 California.
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