[Federal Register Volume 76, Number 147 (Monday, August 1, 2011)]
[Notices]
[Pages 45805-45810]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2011-19358]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Calculation of Annual Federal Medical Assistance Percentages for
Indian Tribes for Use in the Title IV-E Foster Care, Adoption
Assistance, and Kinship Guardianship Assistance Programs
AGENCY: Office of the Secretary, DHHS.
ACTION: Notice.
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SUMMARY: This notice finalizes the methodology that will be used to
calculate reimbursement rates applicable to fiscal years 2010 and
beyond for assistance payments under the tribal Foster Care, Adoption
Assistance and Guardianship Assistance Programs authorized by title IV-
E of the Social Security Act. A Notice with Comment Period on this
topic was previously published on October 8, 2010.
DATES: Effective Date. The methodology described in this Notice is
effective upon publication.
A. Background
The Fostering Connections to Success and Increasing Adoptions Act
of 2008 (``Fostering Connections Act, '' Pub. L. 110-351), authorizes
Indian tribes, tribal organizations and tribal consortia to receive
funding directly for Foster Care, Adoption Assistance, and Kinship
Guardianship Assistance Programs under title IV-E of the Social
Security Act (42 U.S.C. 679c). Such direct funding was authorized to
begin in fiscal year (FY) 2010 for Indian tribes, tribal organizations
or tribal consortia with approved title IV-E plans, or eligible Indian
tribes may submit plans to operate such programs at any time in the
future. Indian tribes not operating their own programs may receive
title IV-E funds through cooperative agreements or contracts with the
States within which they are located. The methodology described in this
notice is also applicable in calculating reimbursement rates under such
agreements beginning in FY 2010.
The Federal share of assistance payments for the Title IV-E Foster
Care, Adoption Assistance and Kinship Guardianship Assistance Programs
is calculated using the Federal Medical Assistance Percentage (FMAP), a
match rate calculated annually for each State by the Department of
Health and Human Services (HHS) according to a formula specified in
statute (section 1905(b) of the Social Security Act, 42 U.S.C.
1396d(b)). The FMAP formula involves comparing the State's average per
capita income over a three year period with the average per capita
income of the U.S. as a whole for the same three year period, and
results in FMAP rates that vary between statutory minimum and maximum
levels of 50 and 83 percent. The formula produces higher Federal
matching rates for jurisdictions with lower per capita incomes relative
to the U.S. as a whole.
Indian tribes previously have not been authorized to directly
administer Federal programs that use FMAPs and therefore tribal FMAPs
have not previously been calculated. However, the Fostering Connections
Act requires HHS to establish FMAP rates for Indian tribes, tribal
organizations, or tribal consortia (Pub. L. 110-351, section 301(d); 42
U.S.C. 679c(d)). The Act further specifies that each Tribe's annual
FMAP shall be based on the per capita income of the service population
of the Indian tribe, tribal organization, or tribal consortium.
However, no tribal FMAP shall be lower than the FMAP of any State in
which the Indian tribe, tribal organization, or tribal consortium is
located.
The FMAP rates calculated using the methodology described here will
be used for Indian tribes' title IV-E Foster Care, Adoption Assistance,
and Kinship Guardianship Assistance programs whether they are
administered directly by the Indian tribe or through an agreement or
contract with a title IV-E State agency per sections 474(a)(1) and (2)
of the Social Security Act, 42 U.S.C. 674(a)(1) and (2). Thus, a State
may also claim reimbursement for title IV-E allowable assistance
payments made on behalf of tribal children served through agreements or
contracts with Indian tribes at the higher of the FMAP rate applicable
to the State or the FMAP rate for the involved Indian tribe.
B. Outreach Regarding the October 8, 2010, Federal Register Notice and
Comments Received
On October 8, 2010, HHS published a Federal Register Notice
requesting comments on its proposed methodology for calculating FMAP
for Indian tribes. A 60-day comment period was provided. HHS mailed
copies of the Notice to tribal chairman of all federally recognized
Indian tribes and posted the Notice to several electronic listserves
operated by the Department's Administration for Children and Families
that are most relevant to tribal child welfare programs. Each of the
letters and postings provided dates and call-in instructions for four
conference calls that were to be held to describe the content of the
Notice and answer any questions Tribes may have had about it. These
calls were held on November 3, 4, 9 and 10, 2010.
A single set of written comments was received on the content of the
Federal
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Register Notice and the methodology for calculating tribal FMAP rates.
These comments, from the National Indian Child Welfare Association
(NICWA), supported several specific aspects of the proposed
methodology. These include: (1) The use of the standard FMAP formula to
calculate rates for Indian tribes, substituting the Indian tribe's per
capita income in place of the State's; (2) the proposal to round each
Indian tribe's rate up to the next higher whole number; (3) the
extension of temporary FMAP increases as specified in Section 5001 of
Public Law 111-5, ``the American Recovery and Reinvestment Act of
2009'' and Section 201 of Public Law 111-226, the ``Education, Jobs and
Medicaid Assistance Act'' to Indian tribes as they apply to States; and
(4) our recommendation to use, as a default, data for the population
identified as American Indian or Alaska Native only in the Indian
tribe's service area to calculate the FMAP rate, while being open to
discussion if the Indian tribe believes another formulation better
represents its service population.
The NICWA comments also expressed guarded support for our proposed
methodology for calculating FMAP rates for consortia or tribal
organizations serving multiple Indian tribes, noting the methodology
``may be appropriate'' but noting that individual situations may
produce complicating factors of which NICWA is unaware. Neither we nor
NICWA has yet identified specific cases in which the proposed
methodology is problematic. However, we acknowledge that no methodology
is guaranteed to work in all situations and remain willing to work with
tribal organizations and consortia to consider alternate methods in
cases where the proposed methodology proves inadequate.
NICWA did express the concern that our proposed data source for
FMAP calculations for fiscal year 2012 and beyond involves 5-year per
capita income estimates from the American Community Survey (ACS). These
data were unavailable before the comment period closed. NICWA,
supported by a resolution from the National Congress of American
Indians, suggested that we extend the comment period for several months
in order to allow a thorough examination of the new data, which was
scheduled for release in December, 2010. By the time the NICWA comments
were received on the last day of the comment period, it was too late to
extend the comment period under the existing Federal Register Notice.
We did consider re-opening the comment period and also considered
finalizing only rates for 2010 and 2011 while asking anew for comments
on the methodology for 2012 and beyond. However, we have decided not to
reopen the comment period for two reasons. First, an examination of
these new data, published December 14, 2010, reveal few differences
between the rates produced using the ACS 5-year estimates and those
produced using the 2000 decennial Census data NICWA supported. Second,
while NICWA expressed apprehension because the new data was as yet
unseen, neither NICWA nor any other organization has identified a
viable alternative to these data for routine use. While individual
Indian tribes may have alternative data sources, and we have said
consistently that we will consider such alternative data as an Indian
tribe may choose to submit, the 5-year ACS data is the only data set we
have been able to identify that provides consistent information on the
per capita incomes of the range of Indian tribes eligible to
participate in the title IV-E Foster Care, Adoption Assistance, and
Guardianship Assistance Programs. Without a viable alternative to
consider, and new evidence that the proposed data source is viable for
FY 2012 and beyond, we have decided to finalize the methodology as
proposed. A fuller analysis of the 5-year ACS estimates and their
implications for tribal FMAP rates appears below. A look-up table for
2012 FMAP rates, equivalent to the table for FYs 2010 and 2011 that
appeared in the previous Federal Register Notice, appears at the end of
this Notice. We also repeat at the end of this notice the lookup table
for the FMAP rates applicable to FYs 2010 and 2011.
During the conference calls we held with Indian tribes to explain
the proposed methodology we did receive questions on the data sources
used to calculate the rate, i.e., the 2000 Decennial Census and the
ACS, both produced by the U.S. Census Bureau. Specifically, we were
asked whether the Census Bureau's definition of income includes tribal
payments to members (it does) and whether the data source makes any
adjustments to account for the high cost of living in Alaska (it does
not). In addition, several callers asked us to provide them with the
per capita income data for their Indian tribe, and the associated FMAP
rate calculated using the proposed methodology. We provided this
information in each case. One caller also asked for clarification
regarding which components of the title IV-E Program are matched using
the FMAP. We noted that FMAP is used to match assistance payments,
which are primarily room and board costs for children in foster care
and payments to families under the adoption assistance and kinship
guardianship assistance programs. Other costs, particularly
administrative and training costs, are matched at other statutorily
defined match rates, 50 percent in the case of administrative costs,
and 55 to 75 percent in the case of eligible training costs.
C. Analysis of American Community Survey 5-Year Estimates for 2005-2009
As noted above, the first 5-year ACS estimates were published by
the Census Bureau on December 14, 2010. We have conducted an analysis
of these data to determine FMAP rates under our proposed methodology
for 162 Indian tribes and Alaska native communities that have, to date,
either expressed interest in participating in title IV-E programs
directly or have agreements or contracts with states under which they
operate title IV-E programs. We considered as ``interested'' those
Indian tribes that currently operate title IV-E programs through
agreements with States as well as those that either applied for a title
IV-E planning grant from the Children's Bureau, or that submitted a
letter of intent to the Children's Bureau indicating they are
considering the submission of a title IV-E plan. Such letters of intent
were solicited by the Children's Bureau in a program instruction in
December, 2008 (http://www.acf.hhs.gov/programs/cb/laws_policies/policy/pi/2008/pi0806.htm). Our analysis of ACS 5-year estimates in
conjunction with the FMAP calculation methodology has revealed the
following:
All 11 Indian tribes with current title IV-E planning
grants would receive the maximum FMAP under the proposed methodology
using the newly released 5-year ACS data, as they did under the 2000
Decennial Census data.
Of the 162 Indian tribes and Alaska native communities
examined, 5-year ACS data was found to be available covering 151 of
these Indian tribes and Alaska native communities. Of the 151, data for
those on tribal lands identifying themselves as American Indian or
Alaska Native (AI/AN) was available for 143. For the remaining 8 Indian
tribes data is available for persons of all races residing in the
tribal area, but not for the AI/AN population specifically.
The data established that, using AI/AN data when it is
available and data for all persons where it is not, a total of 128 of
the 151 Indian tribes and Alaska native communities for which ACS data
is available would receive the maximum FMAP of 83 percent.
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Twenty-four other Indian tribes that have expressed
interest in the title IV-E program were determined to have higher per
capita income and as a result the applicable Tribal FMAP would be lower
than the maximum rate. These 24 include four tribes that would receive
rates of between 80 and 83 percent, 10 that would receive rates between
70 and 79 percent, seven that would receive rates between 60 and 69
percent and two that would receive rates between 50 and 59 percent. In
only three cases (two in Oklahoma and one in Michigan) was the
calculated FMAP for the Indian tribe lower than that of the State
within which the Indian tribe is located. In these three cases, the
Indian tribe would receive the State's higher FMAP rate.
Per capita income data is not available in the 5-year ACS
data for 11 very small Indian tribes that have previously expressed an
interest in the title IV-E programs, but which have not yet submitted a
title IV-E plan or received a title IV-E plan development grant. Some
of these Indian tribes currently receive title IV-E funds under a
contract or cooperative agreement with the State(s) within which they
are located. As described in section E below, we have modified our
proposal to provide a method of calculating FMAP for Indian tribes for
which no ACS data is available.
FMAP rates calculated using the 5-year ACS data are
largely consistent with those calculated using the older 2000 Decennial
Census data. Of the 147 Indian tribes for which we examined FMAP rates
and for which income estimates are available in both data sets, 121
result in the same FMAP rates using both data sources, while 6 would
receive slightly higher rates using the more recent data and 20 would
receive slightly lower rates. This fluctuation is to be expected and
likely reflects differential economic development since 2000. For
instance, the Indian tribe may have opened a casino or other industry
since 2000 that has improved its per capita income relative to the
nation as a whole. Conversely, the Indian tribe may have been
disproportionately affected by the recession if local industry was
particularly hard hit relative to other parts of the nation.
The 5-year ACS data are the most recent data available for almost all
of the Indian tribes that we are aware are considering participating in
title IV-E programs and therefore represents the best measure of the
current per capita income for each Indian tribe. The consistency with
earlier Census data provides further confidence that the ACS data is
suitable for the purpose of calculating FMAP rates for Indian tribes.
D. Calculation of FMAP for Indian Tribes for Use Matching Program
Claims for Fiscal Years 2010 and 2011
In the October 8 Federal Register Notice we proposed to adapt the
standard FMAP formula used for States by substituting each
participating Indian tribe's per capita income for that of the State,
that is to use the formula 1-0.45((Indian Tribe's Per Capita
Income)\2\/(U.S. Per Capita Income)\2\). We further proposed that
minimum and maximum FMAP rates would apply to Indian tribes as they do
to States, noting that we had no legal authority to waive these limits.
We proposed to use 2000 Decennial Census data to calculate the FMAP
rates for FYs 2010 and 2011, noting that it was the only data source we
identified that included per capita income data for all the Indian
tribes that had expressed interest in participating in the Title IV-E
programs. We proposed to use data for those living on tribal lands who
identified themselves solely as American Indian or Alaska Native when
that data is available, and data for all persons in the tribal area
when it is not. Finally, we had proposed that rather than use decimal
places, tribal FMAP rates would be rounded up to the next highest whole
number (up to a maximum of 83 percent).
Having received one supportive comment and no negative comments on
each of the above components of our proposed methodology and no
information about alternative data sources, we are finalizing this
proposal with respect to calculating the FMAP rates for FYs 2010 and
2011.
The calculations using this methodology are to be the default
method to be used to calculate FMAP for Indian tribes. However, as
spelled out in the statute, if in any case the tribal FMAP rate
calculated in this manner is lower than that of any State in which the
Indian tribe is located, the Indian tribe would receive the higher
State rate instead. In addition, also as directed by statute, HHS will
consider using supplemental data identified by an Indian tribe, tribal
organization or tribal consortium rather than 2000 Decennial Census
data on per capita income if the Indian tribe, tribal organization or
tribal consortium can demonstrate that the supplemental data better
represents the per capita income of its service population. See section
H below for further information on how HHS will evaluate the
suitability of supplemental data.
E. Calculation of FMAP for Indian Tribes for Use Matching Program
Claims for Fiscal Years 2012 and Beyond
For fiscal years 2012 and beyond we had proposed to use the same
methodology for calculating the FMAP rate for participating Indian
tribes, but had proposed to use more recent data on tribal per capita
incomes--5-year estimates from the Census Bureau's American Community
Survey, the first of which were to be released in December 2010. As was
the case with the 2000 Decennial Census data, we had proposed to use
data for those on tribal lands identifying themselves only as American
Indian or Alaska Native where it is available, and data for all persons
on tribal lands where it is not. The 5-year estimates for 2005-2009
were released as scheduled on December 14, 2010. These estimates will
be updated annually by the Census Bureau by adding a new year's data
and dropping the oldest year. As described above, the new data result
in FMAP rates that are substantially similar to those produced by the
earlier 2000 Decennial Census data they replace. Decennial census data
for 2010 and beyond will not include the per capita income data needed
for the FMAP formula.
We are finalizing this proposal with respect to calculating the
FMAP rates for FY 2012 and subsequent FYs. The FY 2012 FMAP rates for
Indian tribes will thus be calculated using the ACS 5-year estimates
for 2005-2009 published on December 14, 2010. The tribal FMAP rates for
each subsequent FY will utilize the most recent update of the ACS 5-
year estimates available as of June 30 of the prior FY. As with the
calculations for fiscal years 2010 and 2011, no Indian tribe will
receive an FMAP rate less than that of any State in which the Indian
tribe is located, and any supplemental data provided by the Indian
tribe will be considered.
As noted above, once the first 5-year ACS estimates were published
on December 14, 2010, it became clear that for a few small Indian
tribes, even 5-year ACS estimates would not be sufficient to produce
per capita income estimates for either the AI/AN alone population or
for persons of all races living on tribal lands. In these cases, we
will use as a third choice the per capita income of all individuals in
the State who identify themselves as American Indian/Alaska Native as
an estimate of the Indian tribe's per capita income. If the Indian
tribe operates in multiple States, we will weigh the per capita income
of the AI/AN population in each
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State by the proportion of the Indian tribe's service population in the
State. In establishing FMAP for Indian tribes for which ACS data is
unavailable we will take care to consult with the Indian tribe
regarding the availability of alternate data.
F. Calculation of FMAP for Consortia and Tribal Organizations Serving
Multiple Tribes
In the October 8, 2010 Federal Register Notice we had proposed to
calculate FMAP rates for consortia and tribal organizations serving
multiple Indian tribes by weighting the per capita income data
according to the proportional representation of each Indian tribe's
service population relative to the total service population of the
organization or consortium. Receiving no comments opposing the proposed
methodology and having no alternatives suggested, this now becomes our
established method for producing FMAP for organizations and consortia
serving multiple Indian tribes. Again, consistent with NICWA's
comments, we will consult with organizations and consortia as the issue
comes up to ensure this method accurately represents the program's
service population.
G. Procedures for Producing Annual Updates to Federal Medical
Assistance Percentages for Indian Tribes
As noted above, we will use as our default source of per capita
income data the 5-year estimates the American Community Survey. These
data will be updated annually by the Census Bureau on a rolling basis
by dropping the earliest of the 5 years and adding the latest. For
fiscal year 2012 rates we will use ACS data for 2005-2009. For fiscal
year 2013 we will update to using data for 2006-2010, and so forth. The
formula for the calculation will remain as described above. In the
third quarter of each fiscal year ACF regional office staff will
communicate with each Indian tribe, tribal organization, or tribal
consortium with an approved title IV-E plan their tribal FMAP rate for
the upcoming fiscal year. Those States reporting title IV-E claims for
Tribe-State agreement assistance payments will also be informed by the
ACF regional office staff of the calculated FMAP rates for Indian
tribes located in their State. Because most Indian tribes will be
receiving the maximum FMAP rate, the calculation formula provides for
rounding up to the next highest full percentage point and per capita
incomes do not tend to change rapidly, it is likely that many programs
will see little, if any, matching rate shifts from year to year. A link
to a table similar to the ones at the end of this notice will be posted
annually on ACF's Web site (http://www.acf.hhs.gov) displaying the per
capita income thresholds for each FMAP rate for the fiscal year.
H. Consideration of Supplemental Data
As noted in our previous Federal Register Notice, before finalizing
new FMAP rates for a year, HHS will consider any additional relevant
data on its per capita income submitted by a Indian tribe, tribal
organization or tribal consortium. In the absence of supplemental data,
HHS will use the data and procedures described above to calculate the
applicable FMAP for the grantee. Additional data submitted by Indian
tribes, tribal organizations and tribal consortia will be evaluated by
the Division of Mandatory Grants in the Office of Grants Management at
ACF. Such data may be submitted to the attention of Joseph Lonergan,
Director, Division of Mandatory Grant, ACF Office of Grants Management,
at 202-401-6603 (phone); 202-401-5644 (fax); or email:
tribalfmap@hhs.gov. Supplemental data may relate to matters such as the
per capita income of the Indian tribe, tribal organization or
consortium, the numbers and/or geographic locations of its service
population, and/or defining the grantee's service population to include
individuals other than those who identified themselves solely as
American Indian to be considered for the purposes of calculating the
applicable per capita income.
The suitability of supplemental data submissions from Indian
Tribes, tribal organizations and tribal consortia will be evaluated
based on criteria that include: Whether the Decennial Census or
American Community Survey data that would otherwise be used is either
missing or has a high margin of error; if the supplemental data
reflects the same or similar definitions of income as do the national
data, such as what types of income are included and excluded; if the
data have been collected and tabulated in a reliable manner; and if the
data are current or more recently updated than the data that would
otherwise be used and therefore reflect more current economic
conditions of the Indian tribe's service population.
Data to be considered for a given fiscal year's calculation should
be submitted no later than 30 days before the beginning of the next
fiscal year (September 1) in order to provide sufficient time for the
Department to evaluate the suitability of the additional data. The
tribal FMAP rate for the next fiscal year calculated from the ACS 5-
year data will be in effect beginning on October 1 of that year unless
and until a decision is made by the Department to revise it based on
the supplemental data previously provided by the Indian tribe, tribal
organization, or tribal consortium. Tribal leadership will be consulted
prior to a final decision by the Department regarding the suitability
of any supplemental data submitted. The Department will also work
closely with tribal leaders before establishing a final FMAP for the
upcoming fiscal year.
I. Application of Temporary Increases to Tribal Federal Medical
Assistance Percentages
As proposed in our previous Federal Register Notice, to the extent
permitted by law we will extend to Tribes any temporary adjustments to
FMAP that apply to States. Temporary FMAP rates that applied to states
in Fiscal Year 2010 and 2011 (i.e., those authorized by Public Law 111-
5 and Public Law 111-226) will apply to Indian tribes. The
applicability of any future FMAP adjustments to Indian tribes, tribal
organizations, and tribal consortia will depend on the specific
statutory language enacting such adjustments.
FOR FURTHER INFORMATION CONTACT: Laura Radel, Office of the Assistant
Secretary for Planning and Evaluation, Room 404-E--Hubert H. Humphrey
Building, 200 Independence Avenue, SW., Washington, DC 20201; 202-690-
5938; Laura.Radel@hhs.gov.
(Catalog of Federal Domestic Assistance Program Nos. 93.658: Foster
Care Title IV-E; 93.659: Adoption Assistance; 93.090: Guardianship
Assistance)
Dated: May 20, 2011.
Kathleen Sebelius,
Secretary.
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