HHS

Reminder: AFCARS Comments on ICWA Due April 23

Kate Fort

I posted about this here, and comments are due April 23. The Indian Law Clinic should have a model comment available for tribes to use and edit by the end of next week.

This rule proposes to require states that receive federal funding for their foster care systems to gather accurate data on children in state courts who are subject to ICWA’s protections. This is done through the Adoption and Foster Care Analysis and Reporting System (AFCARS) If you are a state worker, please encourage your state agency to comment in favor of this rule.

The proposed rule is here and is nearly identical to the one promulgated in 2016 (and then withdrawn by the Trump administration).

First Tribal Title IV-B 477 Integration

Kate Fort

I am very excited about this. It’s the first step in loosening up the restrictions on HHS money that needs to be flowing to tribes for social service and justice systems.

https://www.acf.hhs.gov/media/press/2023/first-tribal-integration-title-iv-b-child-welfare-programs-477-plan

The new integration comes under Public Law 102-477 (P.L. 102-477). Specifically, ACF recommended, and BIA approved for Citizen Potawatomi Nation, to integrate its child welfare services grants with several other federal grants for employment, training and related services into a single program and budget to address Tribal priorities. 

“Public Law 102-477 has long been critical legislation for ACF to promote Tribal sovereignty, and expansion to include new ACF programs helps meet our nation-to-nation responsibilities,” said ACF Acting Assistant Secretary Jeff Hild. “The feedback we hear from our Tribal advisory committee and Tribal leaders is Tribes know best how to serve their citizens, and 477 is one way to do this.” 

Under P.L. 102-477, Tribes can integrate their federal employment, training and related services from across the federal government to improve the effectiveness of those services. Tribes wishing to integrate a program into a 477 plan must first submit a proposed plan to DOI that identifies the programs to be integrated and consolidated. Once a program is included in such a plan, Tribes have very broad flexibility in use of those funds. 

Dear Tribal Leader Letter re. ICWA Support

Kate Fort

Letter Here

The Administration (DOI, HHS, and DOJ) are asking for input on the following:

What additional supports would Tribal leaders find helpful to build their Tribe’s capacity to exercise their rights and responsibilities under ICWA? 

Are there specific supports you believe the federal government could provide to help state courts and child welfare agencies meet their obligations under ICW A?

In your experience, are there specific aspects or requirements of ICWA where state courts and agencies need to build greater understanding or capacity? 

Are there existing State-Tribe collaborative partnerships or processes that you believe have helped support effective implementation ofICWA? 


Consultation is August 7 online and August 11 in Anchorage. Commends are due by September 15, 2023.

I might note the lawsuit regarding data and ICWA is ongoing in the Ninth Circuit, though the Administration has promised to issue a notice of rule making in October. A description of the issue of funding tribal systems (with citations) can be found here.

Tribal Comments Needed for Notice for Proposed Model Family Foster Home Licensing Standards

Kate Fort

Here is the link. Comments are due by October 1.

By April 1, 2019, title IV-E agencies, which include all states and 12 tribes, must provide the HHS specific and detailed information about:

○ Whether the state or tribal agency foster family home licensing standards are consistent with the model licensing standards identified by HHS, and if not, the reason; and

○ Whether the state or tribal agency waives non-safety licensing standards for relative foster family homes (pursuant to waiver authority provided by section 471(a)(10)(D) of the Act), and if so, how caseworkers are trained to use the waiver authority and whether the agency has developed a process or provided tools to assist caseworkers in waiving these non-safety standards to quickly place children with relatives.

At this stage, HHS is trying to identify the model by which the state and direct IV-E tribes will be measured against. In this notice, the Children’s Bureau provides what they would like to use as that model: “We are proposing one set of standards for comment to apply to relatives and non-relatives, as well as state and tribal title IV-E agencies.”

The model appears problematic at best and is causing concern among both state and tribal IV-E workers and attorneys. As just one example, “i. A continuous supply of safe drinking water. ii. A properly operating kitchen with a sink, refrigerator, stove, and oven;”. We have families in Michigan that do not have a continuous supply of safe drinking water right now. What does “continuous supply” mean if you have to haul water? What is “properly operating”. There are many, many provisions like this in the model (like a functional literacy requirement), and if your tribe is concerned about getting homes licensed by either state or direct tribe IV-E agencies, this will affect you. I don’t see any comments submitted yet, or cannot access them, but if we receive good models or see ones submitted, I will post them as examples.

NICWA’s website further states: “There is no penalty for states or tribes that use different foster care standards than the national ones, but NICWA has raised concerns about how these will be used in future technical assistance and training with tribes by ACF. In addition, the national standards have not adequately taken into consideration unique cultural issues for AI/AN children and families and issues related to tribal authority to establish foster care standards.”

More Comments Needed! Now on Title IV-E/Families First Developments

Kate Fort

Here. DUE JULY 22.

This one is arguably a little more complicated than usual, but also not inherently nefarious. Here’s a very quick overview (with thanks to Jack Trope for his recent presentation up at Grand Traverse Band for all the info).

In somewhat of a surprise development, Congress passed an overhaul to Title IV-E a few months ago. Title IV-E is the reimbursement program for foster care funding. Until this change, called Families First, the funding was triggered both by the removal of the child, and by the family’s income qualification.

Families First does two things–it releases funding for children who are “candidates” for foster care and removes the income qualification for services for those children and families. Allowable pre-removal services include “evidence-based”:

1. Mental health prevention and treatment services
2. Substance abuse prevention and treatment
3. In-home parenting-skill based programs

“Evidence based” Services and programs must be “trauma-informed” and “promising”, “supported”, or “well-supported” practices. HHS is to release practice criteria and pre-approved programs. There are long definitions in the quotes above, but basically:

Promising: one study with a control group
Supported: one study with random control or quasi-experimental
Well-supported: is at least two studies that used a random control or quasi-experimental trial

Finally, HHS must allow programs and services adapted to culture and context of a tribal community. No one really knows how this provision will interact with the evidence based provision above. This call for comments “solicits comments by July 22, 2018 on initial criteria and potential candidate programs and services for review in a Clearinghouse of evidence-based practices in accordance with the Family First Prevention Services Act of 2018.”

The HHS approved list of programs (“Clearinghouse”) will be automatically eligible for the funding. So! If you are provider who knows about such evidence-based practices for tribal youth and families, TELL HHS! Alternatively, if you work for a tribe, you might ask about how tribal consultation will fit into this process.

This may also be a partial game changer for tribes on the fence about doing direct IV-E funding with the federal government. The planning grant for that process should pop up again in the spring.

HHS in the News, and in Regulations, and in Lawsuits

Kate Fort1 Comment

Late last week, this article from Politico started making the rounds:

But the Trump administration contends the tribes are a race rather than separate governments, and exempting them from Medicaid work rules — which have been approved in three states and are being sought by at least 10 others — would be illegal preferential treatment. “HHS believes that such an exemption would raise constitutional and federal civil rights law concerns,” according to a review by administration lawyers.

The Tribal Technical Advisory Group sent a letter to Administrator Verma, linked to in the article and also posted here. The Dear Tribal Leader letter from CMS is attached as an appendix to that letter. As the article states, the letter says “Unfortunately, we are constrained by statute and are concerned that requiring states to exempt AI/ANs from work and community engagement requirements could raise civil rights issues” with no further explanation.

Centers for Medicare & Medicaid Services (CMS) is a division of the Department of Health and Human Services (HHS). So is the Administration for Children and Families (ACF), which has recently called into question the Final Rule on collecting additional data on children in foster care, including important elements on ICWA and also LGBTQ+ kiddos.

Since the election, there have been articles describing VP Pence’s interest in HHS:

On Monday, President Donald Trump nominated Alex Azar, a former Indianapolis-based drug executive and longtime Pence supporter as Health and Human Services secretary. If confirmed, Azar would join an Indiana brain trust that already includes Centers for Medicare & Medicaid Services Administrator Seema Verma and Surgeon General Jerome Adams. Two of Verma’s top deputies — Medicaid director Brian Neale and deputy chief of staff Brady Brookes — are former Pence hands as well, as is HHS’ top spokesman, Matt Lloyd.

Finally, in late March, Texas, which had added two additional states as plaintiffs in the first amended complaint–Indiana and Louisiana–amended their complaint in Texas v. Zinke to include HHS and Secretary Azar as defendants in the ICWA lawsuit, where Count IV claims ICWA’s placement preferences violate the Equal Protection Clause of the Constitution.

 

 

 

Update in Texas v. Zinke (federal ICWA case)

Kate Fort2 Comments

Here are the updated filings in the federal ICWA case in Texas:

The federal government filed a motion to dismiss, here.

But THEN, Plaintiffs filed (another) amended complaint–here.

It’s about 8 pages longer than the previous complaint, and adds the Department of Health and Human Services, the Secretary of the Department, and the United States as defendants. While the complaint still requests the court find all of ICWA unconstitutional and unenforceable, it also broadens the discussion beyond 1915 placement preferences to the collateral challenge provisions in 1913 and 1914. The complaint also still contends that certain provisions of IV-B and IV-E (parts of the Social Security Act) are not enforceable–those that purportedly link state compliance with ICWA to federal funding.

The feds will file another (slightly longer) motion to dismiss, and it will be here as soon as it is available.

However, the court has ALSO granted the tribal motion for intervention, available here.

U.S. HHS Seeks Members for AI/AN Health Advisory Council

Kate Fort

Here.

The HHS Office of Minority Health is currently recruiting to fill several vacancies on the HHS American Indian and Alaska Native Health Research Advisory Council (HRAC) which addresses health disparities in Indian County. The HRAC supports collaborative research efforts between HHS and tribal partners by providing input and guidance on policies, strategies, and programmatic issues affecting Indian tribes. The HRAC consists of 16 delegates: one delegate from each of the 12 Indian Health Service Areas; and four national-at-large delegates.

Federal Grants Available for Tribal-State ICWA Programs

Kate Fort

Here.

The purpose of this funding opportunity announcement is to support the creation of effective practice model partnerships between state courts and/or Court Improvement Program, state public child welfare agency and a tribe, group of tribes, or tribal consortia, including both the tribal child welfare agency and tribal court for effective implementation of the Indian Child Welfare Act (ICWA) of 1978 (Pub.L. 95-608).

Demonstration sites will be required to jointly develop protocols and practices to promote effective and timely:

– Identification of Indian children;
– Notice to tribes;
– Tribal participation as parties in hearings involving Indian children;
– Tribal intervention in dependency cases;
– Transfer of ICWA cases to tribal courts; and
– Placement of Indian children according to tribal preferences.

Partnership models must be co-created by states and tribes, jointly implemented, and designed to generate and capture clear, measurable outcomes such as:

– Compliance with identification methods;
– The number of Indian children identified;
– Length of time from removal or petition filed until identification is made;
– Number of notices sent;
– Length of time from identification until notice sent (state measure)
– Number of notices received (tribal measure)
– Length of time for tribal intervention or participation; (tribal measure)
– Number of cases in which a tribe intervenes; (joint measure)
– Number of transfers; (joint measure); and
– Number of Indian children placed according to tribal placement preferences (joint measure).