Foster Care: HHS Needs to Improve the Consistency and Timeliness of Assistance to Tribes

GAO-15-273 Published: Feb 25, 2015. Publicly Released: Feb 25, 2015.
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What GAO Found

Indian tribes developing title IV-E foster care programs faced resource constraints and reported challenges adopting some program requirements. According to GAO's interviews with tribal and Department of Health and Human Services (HHS) officials, the resource constraints faced by tribes include limited numbers of staff and staff turnover. While the Fostering Connections to Success and Increasing Adoptions Act of 2008 (Fostering Connections Act) allows tribes to administer a title IV-E foster care program, it generally did not modify title IV-E's requirements for tribes. By contrast, some other programs administered by HHS offer tribes additional flexibilities, provided they are consistent with the objectives of the program. Given tribes' resource constraints and cultural values, adopting some title IV-E requirements has been difficult. For example, officials from 6 of 11 tribes developing title IV-E programs that GAO interviewed said that the requirement to electronically submit case-level data on all children in foster care was challenging. In addition, 7 of these 11 tribal officials reported that incorporating termination of parental rights—which severs the legal parent-child relationship in certain circumstances—into their tribal codes was challenging because it conflicts with their cultural values. HHS recognizes that termination of parental rights may not be part of an Indian tribe's traditional beliefs; however according to the agency it lacks the statutory authority to provide a general exemption for tribal children from the requirement.

HHS provided assistance to tribes interested in directly operating a title IV-E program through its regional offices, headquarters office, and technical assistance providers. Eight of the 11 tribes GAO spoke with reported using HHS-funded technical assistance providers, including a tribally-focused center that was established after the enactment of the Fostering Connections Act. However, GAO found that there are no procedures in place to ensure that the guidance provided by HHS regional staff is consistent across offices or that the review of tribes' draft IV-E plans is timely. To operate a title IV-E program, HHS must approve a tribe's title IV-E plan, ensuring that it complies with program requirements. HHS does not provide its staff or tribes with examples of tribal codes or regulations that would satisfy title IV-E requirements. Regional staff may use their discretion to determine what is allowable in a tribe's plan. HHS officials said they do not provide examples because each tribe is unique and examples for one tribe may not be appropriate for all tribes. However, officials from 6 of 11 tribes GAO interviewed said that they received conflicting guidance from HHS officials, some of them from the same HHS office. Officials from one tribe said that participating in title IV-E peer-to-peer consultations with other tribes—an activity encouraged and sponsored by HHS—can be frustrating because regional offices have provided tribes with different information. HHS officials said that inconsistencies often resulted from differing tribal circumstances rather than interpretations of federal policy. In addition, officials from six tribes GAO spoke with said HHS's suggested revisions on their draft title IV-E plans were not provided in a timely manner. HHS headquarters officials have not provided regional staff with expected timeframes for draft title IV-E plan reviews and there is no limit on the amount of time staff may spend on the reviews. As a result, tribes may continue to have long title IV-E plan development and review periods and limited direct access to federal child welfare program funding.

Why GAO Did This Study

Title IV-E of the Social Security Act provides federal support for foster care and adoption assistance programs. Since 2008, 5 tribes have been approved to operate their own title IV-E foster care programs, although more than 80 tribes initially expressed an interest in doing so. HHS provides development grants and technical assistance to tribes interested in establishing a title IV-E program. GAO was asked to review tribes' experiences with title IV-E.

This report examines (1) obstacles facing tribes interested in directly operating a title IV-E program and (2) the assistance HHS has provided. GAO interviewed officials from 17 tribes, 11 of which were currently developing title IV-E programs. These tribes were selected to achieve variation in progress toward developing a title IV-E program, size of the tribe, and HHS region. While this information is non-generalizable, it provides examples of tribes' experiences with the program. GAO also interviewed HHS and Bureau of Indian Affairs officials, and child welfare experts.

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GAO recommends that HHS (1) consider submitting a legislative proposal if it determines that flexibilities in program requirements would enable more tribes to participate in title IV-E, (2) take steps to provide consistent guidance to tribes on their IV-E plans, and (3) establish procedures to ensure timely reviews of draft plans. HHS agreed with our first two, but did not agree with the third recommendation. GAO maintains the need for procedures, such as clear timeframes, to ensure timely IV-E plan reviews.

Recommendations for Executive Action

Agency Affected Recommendation Status
Department of Health and Human Services To help enhance tribes' participation in the title IV-E program, the Secretary of Health and Human Services, in consultation with tribes, should take steps to consider whether additional flexibilities in program requirements would be helpful for tribes in developing title IV-E plans, while also maintaining safe and stable out-of-home care for children. If HHS determines, as part of this process, that statutory changes are necessary to implement these flexibilities, it should develop and submit an appropriate legislative proposal to Congress.
Closed – Implemented
In April 2015, the agency reported that it took administrative action to respond to tribes' concerns about termination of parental rights. HHS updated its Child Welfare Policy Manual to clarify that tribes may develop an alternative to "termination" of parental rights, such as modification of parental rights, as long as the child would then be available for adoption and the tribe would be able to identify a qualified adoptive family. In addition, to help with tribal resource constraints described in the report, the President's FY16 budget request included a proposal to provide enhanced start-up funds to tribal title IV-E agencies during the early years of their implementation of the title IV-E program by providing enhanced federal financial participation for title IV-E administration costs and by temporarily waiving cost allocation requirements.
Department of Health and Human Services To improve the consistency of assistance provided to tribes, the Secretary of Health and Human Services should take steps to provide consistent title IV-E guidance to tribes across its regional offices.
Closed – Not Implemented
In May 2015, HHS hired a tribal coordinator who will work in the Office of the Associate Commissioner of the Children's Bureau. The tribal coordinator's primary functions included facilitating communication across the regions and with tribes to share experiences and information, so as to ensure greater consistency and clarity. While this hire represented an initial step towards improving communication with tribal title IV-E agencies, more time was needed for the tribal coordinator to implement policies and procedures that would ensure consistent title IV-E guidance to tribes across HHS regional offices. In May 2017, the agency reported that the tribal coordinator position was ultimately elevated to the Office of the ACYF Commissioner and became the Commissioner's representative to the tribes. In August 2019, HHS said it regularly communicates with its Regional Offices and provides information and answers to questions that arise relating to state and tribal title IV-E plan provisions, although it is not specific to tribal title IV-E plans.
Department of Health and Human Services To improve the timeliness of assistance provided to tribes, the Secretary of Health and Human Services should establish procedures to ensure reviews of draft title IV-E plans are conducted by regional office staff in a timely manner.
Closed – Not Implemented
HHS has consistently stated that it does not anticipate taking action in response to this recommendation because of its existing protocols for communicating with and responding to tribal title IV-E grantees. In May 2018, HHS noted that additional tribes were approved to operate a title IV-E program. In August 2019, the agency stated that it had no plans to establish procedures to ensure timely reviews of title IV-E plans.

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