[Federal Register Volume 77, Number 4 (Friday, January 6, 2012)]
[Rules and Regulations]
[Pages 895-958]
From the Federal Register Online via the Government Printing Office [www.gpo.gov]
[FR Doc No: 2011-32911]



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Vol. 77

Friday,

No. 4

January 6, 2012

Part III





Department of Health and Human Services





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Administration for Children and Families





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45 CFR Parts 1355 and 1356





Tribal Child Welfare; Interim Final Rule

Federal Register / Vol. 77, No. 4 / Friday, January 6, 2012 / Rules 
and Regulations

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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families

45 CFR Parts 1355 and 1356

RIN 0970-AC41


Tribal Child Welfare

AGENCY: Administration on Children, Youth and Families (ACYF), 
Administration for Children and Families (ACF), Department of Health 
and Human Services (HHS).

ACTION: Interim final rule.

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SUMMARY: The Administration for Children and Families (ACF) is issuing 
this interim final rule to implement statutory provisions related to 
the Tribal title IV-E program. Effective October 1, 2009, section 
479B(b) of the Social Security Act (the Act) authorizes direct Federal 
funding of Indian Tribes, Tribal organizations, and Tribal consortia 
that choose to operate a foster care, adoption assistance and, at 
Tribal option, a kinship guardianship assistance program under title 
IV-E of the Act. The Fostering Connections to Success and Increasing 
Adoptions Act of 2008 requires that ACF issue interim final regulations 
which address procedures to ensure that a transfer of responsibility 
for the placement and care of a child under a State title IV-E plan to 
a Tribal title IV-E plan occurs in a manner that does not affect the 
child's eligibility for title IV-E benefits or medical assistance under 
title XIX of the Act (Medicaid) and such services or payments; in-kind 
expenditures from third-party sources for the Tribal share of 
administration and training expenditures under title IV-E; and other 
provisions to carry out the Tribal-related amendments to title IV-E. 
This interim final rule includes these provisions and technical 
amendments necessary to implement a Tribal title IV-E program.

DATES: This rule is effective February 6, 2012. Consideration will be 
given to all comments received by March 6, 2012.

ADDRESSES: Interested persons may submit written comments to the 
Federal eRulemaking Portal: http://www.regulations.gov. Written 
comments also may be submitted via email to CBComments@acf.hhs.gov. 
Please include ``Tribal Child Welfare'' in the subject line of the 
message. Written comments also may be submitted via mail or courier 
delivery: Elizabeth Sharp, Division of Policy, Children's Bureau, 
Administration on Children, Youth and Families, Administration for 
Children and Families, 1250 Maryland Avenue SW., 8th Floor, Washington, 
DC 20024.

FOR FURTHER INFORMATION CONTACT: Elizabeth Sharp, Children's Bureau, 
Administration on Children, Youth and Families, (202) 205-7265 or by 
email at elizabeth.sharp@acf.hhs.gov. Do not email comments to this 
address.

SUPPLEMENTARY INFORMATION:

I. Submitting Comments
II. Background
III. Justification for Interim Final Rule
IV. Tribal and Stakeholder Consultation
V. Section by Section Discussion of the Interim Final Rule
VI. Impact Analysis

I. Submitting Comments

    Although this interim final rule is effective without further 
regulatory action as indicated in the `dates' section, we are 
soliciting comments from interested parties that we can use to 
determine the need for any further rulemaking. Comments should be 
specific, address issues raised by the rule, propose alternatives where 
appropriate, and explain reasons for any objections or recommended 
changes. You should reference the specific section of the interim final 
rule that is being addressed in the comment. We urge you to submit 
comments electronically to ensure we receive them in a timely manner.

II. Background

    The Fostering Connections to Success and Increasing Adoptions Act 
of 2008, Public Law (Pub. L.) 110-351 (hereafter ``Fostering 
Connections'') was enacted on October 7, 2008. Prior to the law's 
enactment, the title IV-E program provided States and territories 
(hereafter, ``States'') with Federal funds to support eligible children 
in foster care, eligible children with special needs in adoptions, and 
the administrative expenses of States to operate the title IV-E 
program. As amended, the law permits Federally-recognized Indian 
Tribes, Tribal organizations or consortia (hereafter, ``Indian 
Tribes'') to apply to the Secretary of HHS to operate a title IV-E 
program beginning October 1, 2009.
    By law, the requirements of title IV-E apply to a Tribal agency 
``in the same manner as this part [IV-E] applies to a State'' (section 
479B(b) of the Act), with limited exceptions specified in the law. This 
means that an Indian Tribe wishing to operate a title IV-E plan must 
adhere to most existing statutory and regulatory title IV-E 
requirements in place for a State title IV-E agency, with some 
exceptions provided in law. Those exceptions include: the ability for 
Indian Tribes to define their own service areas and Tribal licensing 
standards; flexibility to use nunc pro tunc orders and affidavits to 
meet judicial determination requirements in the first 12 months of 
operation of the Tribal title IV-E plan; and, the ability to use in-
kind third-party funding sources for sharing in the costs of the title 
IV-E program. As reflected throughout this rule, we determined that 
there are a very limited number of other variances necessary.
    Public Law 110-351 also provides limited grants, beginning in 
Federal fiscal year (FY) 2009, to assist Indian Tribes that intend to 
implement a title IV-E program to develop a title IV-E plan. Eleven 
Indian Tribes have received a title IV-E development grant, and ACF 
expects to award grants to five more Indian Tribes in FY2011. Finally, 
the law permits a title IV-E agency to enter into a contract or 
cooperative agreement with an Indian Tribe to share in the 
administration of the title IV-E programs on behalf of Indian children.
    In addition to creating these provisions unique to Indian Tribes, 
Fostering Connections contains new requirements and options for States 
and Indian Tribes with title IV-E plans. Public Law 110-351 permits a 
title IV-E agency the option to administer a new kinship guardianship 
assistance program under title IV-E, revises the eligibility criteria 
for the title IV-E adoption assistance program, allows a title IV-E 
agency the option to extend title IV-E foster care, adoption 
assistance, and kinship guardianship assistance payments to youth who 
meet certain conditions up to age 21, among other changes to the title 
IV-B and IV-E requirements. The entire text of Fostering Connections 
and issuances related to the new provisions can be found on the 
Children's Bureau's Web site at www.acf.hhs.gov/programs/cb and 
www.acf.hhs.gov/programs/cb/laws_policies/implementation_foster.htm.

III. Justification for Interim Final Rule

    Section 301(e) of Public Law 110-351 requires that we publish 
interim final rules generally to carry out the amendments made to title 
IV-E of the Act to authorize Indian Tribes to directly-operate title 
IV-E programs. Many of these amendments are present throughout this 
rule in the form of minor language changes to existing regulatory 
provisions to be inclusive of a Tribal title IV-E agency because the 
law mandates that we apply title IV-E requirements equally to States 
and Indian Tribes. Also, the law specifically requires that we develop 
and codify

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procedures in an interim final rule to ensure that a transfer of 
responsibility for the placement and care of a child under a State 
title IV-E plan to a Tribal title IV-E plan or to an Indian Tribe with 
an agreement or contract under title IV-E does not affect the child's 
eligibility for title IV-E or Medicaid. Further, the law requires that 
we address in interim final rules the types and amounts of in-kind 
expenditures that Indian Tribes may claim under a title IV-E plan. 
These specific requirements can be found in new sections of the 
regulation, 45 CFR 1356.67 and 1356.68.
    We also are including several technical and conforming amendments 
to existing regulatory requirements that, although not directly related 
to the amendments of Public Law 110-351, clarify implementation of the 
title IV-E programs. These conforming amendments are to update 
statutory citations, remove obsolete references and make technical 
corrections. The Administrative Procedure Act provides an exception to 
the standard rulemaking process to propose rules and solicit comments 
prior to adopting a final rule where an agency finds good cause to 
adopt a rule without prior public participation (5 U.S.C. 
553(b)(3)(B)). The good cause requirement is satisfied when prior 
public participation is impracticable, unnecessary, or contrary to the 
public interest. We find proposing rulemaking for these technical and 
conforming amendments impracticable and unnecessary since they are not 
substantive and only align the regulations with current law or 
practice. Moreover, we believe that delaying rulemaking on these 
technical amendments would be contrary to the public interest since 
doing so would cause significant confusion about the statutory and 
regulatory provisions to which Indian Tribes must adhere in 
implementing the title IV-E program for the first time. Therefore we 
find good cause to include these technical amendments in this interim 
final rule. More specific rationale for each amendment can be found in 
the section by section discussion.

IV. Tribal and Stakeholder Consultation

    Section 301(e) of Public Law 110-351 requires us to consult with 
Indian Tribes and affected States prior to issuing interim final rules. 
Consistent with this requirement and the Department's commitment to 
consult with Indian Tribes on a government-to-government basis, we 
conducted a series of consultation sessions with Indian Tribes and 
other Tribal stakeholders prior to issuing these rules. On March 13, 
2009, we published a Federal Register notice, 74 FR 10920 (hereafter, 
``FR notice'') inviting Tribal leaders and/or their representatives to 
attend one of seven in-person meetings held in Bloomington, Minnesota; 
Kansas City, Missouri; Seattle, Washington; Denver, Colorado; San 
Francisco, California; Dallas, Texas; and, Marksville, Louisiana. The 
FR notice also invited written comments from Tribal leaders or any 
other interested party.
    Indian Tribes and other stakeholders were invited to provide input 
on the following questions:
     Considering that the Secretary is to apply title IV-E of 
the Act to Indian Tribes in the same manner as to States except where 
directed by law, what, if any, provisions and clarifications related to 
the title IV-E program for directly-funded Indian Tribes should be in 
regulations?
     Are guidelines above and beyond those provided pursuant to 
the Indian Child Welfare Act (ICWA) of 1974 needed to execute the 
transfer of placement and care responsibility of a title IV-E Indian 
child to an Indian Tribe operating a title IV-E plan? If so, please 
provide suggestions.
     What specific information pertaining to title IV-E and 
Medicaid should a State make available to an Indian Tribe that seeks to 
gain placement and care responsibility over an Indian child?
     Should the third-party sources and in-kind limits on 
Tribal administrative and training costs remain consistent with section 
479B(c)(1)(D) of the Act? Please provide a rationale for this response.
     Any other comments regarding the development of an interim 
final rule per section 301(e) of Public Law 110-351.
    The consultation was limited in scope and not intended to solicit 
comments on the remaining provisions of Public Law 110-351 or the title 
IV-E program in general. However, the consultations elicited a wide 
range of questions, issues and suggestions regarding implementation and 
operation of a title IV-E program. Further, we continue to listen to 
Tribal partners in ongoing consultations and less formal opportunities 
for discussion such as grantee meetings. Highlights of the comments 
that we received and how they are addressed in this regulation follow.
    Commenters felt strongly that the requirement in Public Law 110-351 
that title IV-E requirements apply to Indian Tribes in the same way as 
they apply to States, does not consider Indian Tribes' sovereignty, 
cultural standards, lack of historical funding under title IV-E and 
current economic circumstances. In particular, commenters requested: 
(1) Relief from the application of State-specific 1996 Aid to Families 
with Dependent Children (AFDC) requirements; (2) use of nunc pro tunc 
orders to ensure title IV-E eligibility for all Indian children who did 
not have the requisite court orders beyond the first twelve months of 
the approved Tribal title IV-E plan; and, 3) direct funding of selected 
components of the title IV-E plan of the Indian Tribe's choosing. 
Although we respect Tribal sovereignty and standards and understand the 
unique situation of Indian Tribes in operating a long-standing Federal 
program for the first time, the existing statutory requirements of 
title IV-E of the Social Security Act do not allow us to meet these 
particular requests. Rather we have indicated in this interim final 
regulation the areas in which the law must be applied equally to Indian 
Tribes and States, where the law crafted unique requirements specific 
to Indian Tribes with title IV-E plans, and where there is discretion 
for the Indian Tribe to develop its own practices and approaches. We 
encourage Indian Tribes to seek technical assistance from the 
Children's Bureau (CB) Regional Office staff in dealing with these 
issues.
    Commenters sought more clarity about the relationships between 
States and Indian Tribes, and how those relationships may impact 
various parts of the title IV-E program and/or transfers of placement 
and care responsibility of a child from one jurisdiction to another. 
Commenters asked us to specify: (1) Which entities are responsible for 
funding Indian children in Tribal title IV-E programs; (2) the extent 
to which States may influence the direction of Tribal title IV-E plans/
programs; and, (3) the extent of Tribal access to State-owned 
resources, such as funding, information systems, data and Medicaid 
program benefits. In general, we do not believe it necessary nor do we 
have the authority to prescribe the relationships between Indian Tribes 
and States. Rather, in this interim final regulation we have specified 
the minimum information States must provide to Indian Tribes with 
either a title IV-E plan or agreement when a child is transferred from 
the responsibility of the State to the Indian Tribe and we have 
explained that the law permits States and Indian Tribes to enter into 
various arrangements in support of Tribal title IV-E programs. A State 
that has a title IV-E plan under existing law may craft the 
relationships and partnerships it

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desires with other public agencies, private child placing agencies and 
other contractors within broad Federal parameters. Indian Tribes with a 
title IV-E plan have this same discretion to enter into relationships 
and partnerships it finds beneficial in supporting the title IV-E plan. 
Through consultation, coordinated efforts and good faith negotiation of 
title IV-E agreements, States and Indian Tribes can determine for 
themselves issues of funding, responsibility, shared resources and 
services.
    An overarching concern of most Tribal commenters was funding, and 
as such Indian Tribes requested: (1) More funding to operate the title 
IV-E program; (2) relief from provisions that limit in-kind 
contributions, require matching funds and/or allocation of costs; and 
(3) numerous clarifications about how title IV-E funding operates and 
interacts with other funding streams. We have clarified throughout this 
regulation how Indian Tribes may draw down title IV-E funding and will 
continue to make this a priority in further technical assistance 
activities. However, the title IV-E program's basic funding structure 
as a reimbursement program of a portion of an agency's expenses on 
behalf of eligible children, is not one that we can alter in the 
absence of statutory changes.
    Finally, we received a number of specific questions about items 
that are not germane to this regulation. For example, we received 
questions about the Family Connection grants authorized by Public Law 
110-351 (section 427 of the Act); availability of American Recovery and 
Reinvestment Act of 2009 (``stimulus'') funding; and provisions for a 
kinship guardianship assistance program or an extension of title IV-E 
assistance to 18 to 21 year olds which are not specific to Indian 
Tribes. We will use the questions and comments we received in 
consultation that are outside this regulation to formulate other 
technical assistance efforts, policy proposals, and further 
consultation as appropriate.

V. Section by Section Discussion of the Interim Final Rule

Section 1355.20--Definitions

    Section 1355.20 contains definitions pertaining to terms used in 45 
CFR parts 1355, 1356 and 1357 of this title. We amended several 
definitions by removing references to ``State'' or ``States'' and 
replacing such references with the broader terms of ``title IV-E 
agency'' or ``title IV-E agencies'' or, by adding references to 
``Indian Tribe'' or ``Tribal'' as descriptive terms. These changes 
apply the terms defined in the regulation equally to States and Indian 
Tribes with an approved title IV-E plan pursuant to Public Law 110-351. 
These changes are made to the following definitions: ``date a child is 
considered to have entered foster care'', ``entity'', ``foster care'', 
``foster family home'', ``full review'' and ``permanency hearing.'' In 
some definitions we made additional conforming changes which are 
described below.
Adoption
    We amended the definition of the term ``adoption'' to include 
adoptions under Tribal law for Tribal title IV-E purposes. We 
understand that Indian Tribes finalize legal adoptions through court 
processes and/or through traditional or ceremonial processes, and 
therefore this change ensures that the term ``adoption'' is inclusive 
of adoptions finalized through these processes for Tribal title IV-E 
agencies.
Child Care Institution
    We amended the definition of a ``child care institution'' to 
account for the ability of an Indian Tribe that has an approved title 
IV-E plan pursuant to section 479B of the Act to license child care 
institutions in its service area. The revised definition provides three 
types of licensing authorities: A State licensing authority in the 
State in which the child care institution is located, a Tribal 
licensing authority with respect to a child care institution on or near 
an Indian Reservation, or the Tribal licensing authority of an Indian 
Tribe that operates a title IV-E plan pursuant to section 479B of the 
Act with respect to a child care institution in the Indian Tribe's 
service area.
    A commenter requested that Indian Tribes be permitted flexibility 
with regard to the definition of ``on or near an Indian Reservation.'' 
This language comes from section 1931 of the Indian Child Welfare Act 
of 1978 (ICWA) (Pub. L. 95-608) and applies to both child care 
institutions and foster family homes. The ICWA requirement states that 
for purposes of qualifying for funds under a Federally assisted 
program, e.g., titles IV-E and IV-B, licensing or approval of foster or 
adoptive homes or institutions on or near an Indian Reservation by an 
Indian Tribe is equivalent to licensing or approval by a State. There 
is no statutory or regulatory definition of this term. As such, if an 
Indian Tribe has a reservation, it has the discretion to make a 
reasonable determination of what it considers on or near the 
reservation. Another commenter requested clarification that the 
existing Tribal licensing authorities may serve in the licensing role 
for title IV-E purposes. We confirm that the Indian Tribe has the 
discretion to use existing licensing authorities or create new 
authorities to license foster family homes or child care institutions 
on or near reservations and/or within a Tribal agency's service area.
Foster Family Home
    We amended the definition of ``foster family home'' to add a 
sentence that clarifies that the authority that licenses a foster 
family home must be a State licensing authority in the State in which 
the foster family home is located pursuant to section 471(a)(10) of the 
Act, a Tribal authority with respect to a foster family home on or near 
an Indian Reservation pursuant to section 1931 of ICWA, or the Tribal 
authority of an Indian Tribe that operates a title IV-E plan pursuant 
to section 479B(c)(2) of the Act with respect to a foster family home 
in the Tribal agency's service area. These changes are similar to the 
ones made to the definition of a child care institution.
    During consultation, some commenters sought clarification of 
whether an Indian Tribe has to abide by Federal or State foster family 
home licensing/approval standards and exceptions to such standards such 
as, State rules that may limit the number of children in the home, 
Indian Health Service safety requirements, or requirements on driving. 
Another commenter sought flexibility in Federal Tribal licensing 
standards because of the limited nature of housing in Indian country 
and the unique cultural issues in Indian Tribes. In response, we would 
like to explain the foster family home licensing/approval requirements 
in title IV-E. Section 471(a)(10) of the Act requires the State or 
Tribal agency to establish or designate an authority for establishing 
and maintaining standards for foster family homes and child care 
institutions. An Indian Tribe that has a title IV-E plan will be 
responsible for establishing such an authority and applying the 
standards developed to the foster family homes or child care 
institutions in its service area and/or on or near its reservation. At 
a minimum, the licensing standards must cover admission policies, 
safety, sanitation, and protection of civil rights (see sections 
471(a)(10) and 479B(c)(2) of the Act). Therefore, Indian Tribes may 
take into consideration the unique features of the housing, landscape 
and cultural norms in developing licensing or approval standards for 
foster family homes. In addition, standards must be applied equally to 
any licensed or approved foster family home receiving

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title IV-B and IV-E funds, with one exception in section 471(a)(10) of 
the Act. The exception permits a title IV-E agency to waive the 
application of a standard unrelated to safety for relative foster 
family homes on a case-by-case basis. The title IV-E agency may not 
exclude relative homes, or any other group from the licensing 
requirement (see section 471(a)(10) of the Act and the definition of 
``foster family home'' in 45 CFR 1355.20). There are no ACF prescribed 
standards for licensing or approving homes, although section 471(a)(10) 
of the Act requires standards to accord with recommended standards of 
national organizations. An Indian Tribe or a State may have to follow 
other Federal standards for licensure to the extent that the foster 
family homes are governed by other Federal laws and/or funding 
restrictions. Please note that for title IV-E funding purposes, 
criminal record and child abuse and neglect registry checks are a 
related but separate issue from licensure. Requirements related to the 
criminal record check provisions are in section 471(a)(20) of the Act 
and discussed in relation to section 1356.30 later in the preamble.
    Some commenters sought clarification on whether Indian Tribes can 
use title IV-E to pay for children placed with prospective foster 
parents in the process of being licensed or approved as a foster family 
home. In certain circumstances, a title IV-E agency, including an 
Indian Tribe, may seek administrative cost reimbursement for eligible 
children placed with such prospective foster parents. Consistent with 
section 472(i)(1)(A) of the Act and policy at Child Welfare Policy 
Manual (CWPM) 8.1B Q/A 11, the title IV-E agency may claim 
administrative costs on behalf of an otherwise eligible child placed in 
an unlicensed or unapproved relative home for 12 months or the average 
length of time it takes the agency to license or approve a foster 
family home, whichever is less. During this time, an application for 
licensure or approval of the relative home as a foster family home must 
be pending. The title IV-E agency may only claim administrative costs 
in this situation for a child placed in an unlicensed or unapproved 
relative foster family home. For the purposes of this provision, a 
relative is defined by section 406(a) of the Act as in effect on July 
16, 1996, and implemented in 45 CFR 233.90(c)(1)(v). In general, a 
title IV-E agency may not claim the cost of a title IV-E foster care 
maintenance payment on behalf of an otherwise eligible child until the 
first day of the first month in which the foster family home meets all 
licensure or approval requirements. See CWPM 8.3A.8c Q/A 16.
Full Review
    We amended the definition of ``full review'' to apply the 
definition equally to States and Indian Tribes by removing language 
that described the Child and Family Services Review (CFSR) as focused 
on child and family service programs ``in the States'' relative to 
``State'' plans for title IV-B and IV-E. By removing this language, we 
make clear that the full reviews can occur in States or Indian Tribes 
with approved plans for both titles IV-E and IV-B. Further, we added 
parenthetical language to the definition of a full review to clarify 
that the statewide assessment, which is a component of the CFSR, may be 
an assessment of the Tribal service area in the case of a Tribal 
agency. For the purposes of title IV-E, a service area is defined by 
the Indian Tribe pursuant to section 479B(c)(1)(B) of the Act and for 
the purposes of title IV-B, it is the area covered by the Indian 
Tribe's Child and Family Services Plan (CFSP). See sections 1355.31 
through 1355.37 for a more complete discussion of the CFSRs as they 
apply to Indian Tribes with title IV-E plans.
Partial Review
    We amended the definition of ``partial review'' to apply the 
process for reviewing title IV-E compliance to Indian Tribes with an 
approved title IV-E plan, consistent with section 479B(b) of the Act. 
As we did in the ``full review'' definition, we removed language that 
references States in paragraph (1) of the definition. This means that 
an Indian Tribe with an approved title IV-E plan will be subject to a 
partial review, if necessary, if there is a compliance issue that falls 
within the scope of the CFSR. Also, we added a new paragraph (3) to the 
definition to specify that partial reviews encompass Tribal title IV-E 
plan compliance issues that fall outside of the CFSR. This requirement 
is similar to the existing requirement for States in paragraph (2). 
Partial reviews do not pertain to Indian Tribes with only a title IV-B 
plan. Such compliance issues are regulated by the process described in 
sections 1355.30(n) and (p) instead.
Statewide Assessment (or Tribal Assessment)
    We amended the definition of ``statewide assessment'' to apply the 
initial phase of a full review to Tribal title IV-E agencies by 
inserting the term ``Tribal assessment.'' This means that a Tribal 
assessment for a Tribal title IV-E agency is a review of all Federally-
assisted child and family services programs in the Tribal service area 
(as opposed to a review of all Federally-assisted child and family 
services programs in the State for a Statewide assessment). We also 
made an amendment to apply the assessment to the entire Tribal service 
area by inserting the phrase ``(or for a Tribal title IV-E agency, in 
the service area).''
Title IV-E Agency
    We added a new definition of a ``title IV-E agency.'' This 
definition is inclusive of a State or Tribal agency that administers or 
supervises the administration of both the title IV-B (subparts 1 and 2) 
plan and IV-E plan and a Tribal agency that administers or supervises 
the administration of both the title IV-B, subpart 1 and title IV-E 
plan. We added this definition pursuant to Public Law 110-351 which 
authorizes Indian Tribes to operate a title IV-E plan and requires ACF 
to apply the title IV-E program equally to States and Indian Tribes. 
This term is used throughout the interim final rule when we refer to 
common requirements for a State or Tribal title IV-E agency; we use the 
terms State agency (defined in this section of the regulation) or 
Tribal agency as described below, when we are referring to requirements 
unique to those entities.
Tribal Agency
    We added a new definition of ``Tribal agency.'' Tribal agency 
means, for the purpose of title IV-E, the agency of the Indian Tribe, 
Indian Tribal organization or consortium of Indian Tribes that is 
designated to administer or supervise the administration of the title 
IV-E and title IV-B, subpart 1 plan. Section 479B(a) of the Act 
incorporates the definition of Indian Tribe in 25 U.S.C. 450b which is 
any Indian Tribe, band, nation, or other organized group or community 
that is recognized as eligible for special programs and services 
provided by the United States to Indians because of their status as 
Indians. Such Tribes are commonly referred to as Federally-recognized 
Indian Tribes. Section 479B(a) of the Act also incorporates the 
definition of Indian Tribal organization in 25 U.S.C. 450b which is a 
recognized body of an Indian Tribe. In this context, a consortium of 
Indian Tribes is two or more Federally-recognized Indian Tribes that 
agree to join for the purpose of operating the title IV-E plan.

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Section 1355.21--Plan Requirements for Titles IV-E and IV-B

    Section 1355.21 specifies the requirements for title IV-B and IV-E 
plans.
    We changed the title of this section by removing the term ``State'' 
so that the section refers more generally to the plan requirements for 
titles IV-E and IV-B rather than ``State plan'' requirements. 
Similarly, we amended section 1355.21 in paragraphs (a), (b) and (c) to 
make conforming changes by removing the term ``State'' before ``plan'' 
and in paragraph (c) to replace the term ``State agency'' with the more 
general ``title IV-E agency'' to clarify that Indian Tribes with title 
IV-E plans must follow the same rules consistent with Public Law 110-
351. These conforming changes apply the title IV-E and title IV-B plan 
requirements in section 1355.21 equally to States and Indian Tribes.
    In addition, we amended paragraph (b) to add clarifying language 
that a title IV-E agency must comply with the applicable Departmental 
regulations described in section 1355.30. Section 1355.30 specifies 
which Departmental regulations apply to a title IV-E agency generally, 
or those that are specific to either a Tribal or State title IV-E 
agency.
    In paragraph (c) as indicated above, we replaced the term ``State 
agency'' with ``title IV-E agency'' to make a conforming change. 
Through this conforming change, we apply the existing requirement that 
a title IV-E agency must make the title IV-E plan available for public 
review and inspection equally to all title IV-E agencies. Therefore, in 
addition to making the Child and Family Services Plans and the Annual 
Progress and Services Reports available for public review and 
inspection, an Indian Tribe with an approved title IV-E plan must make 
the title IV-E plan available for public review and inspection.

Section 1355.30--Other Applicable Regulations

    Section 1355.30 identifies other Departmental regulations that are 
applicable to title IV-B and IV-E programs.
    We amended the introductory paragraph to section 1355.30 to apply 
the regulations cited in this section to both State and Tribal title 
IV-B and title IV-E programs, as appropriate. The cited regulations are 
for: Departmental Appeals Board procedures (45 CFR 1355.30(a)), 
collecting claims (45 CFR 1355.30(b)), nonprocurement debarment and 
suspension (45 CFR 1355.30(c)), drug-free workplaces (45 CFR 
1355.30(d)), nondiscrimination under title VI of the Civil Rights Act 
and associated hearing procedures (45 CFR 1355.30(e)-(f)), 
nondiscrimination on the basis of handicap (45 CFR 1355.30(g)), 
nondiscrimination on the basis of age (45 CFR 1355.30(h)), lobbying 
restrictions (45 CFR 1355.30(j)), and grants and administration of 
public assistance programs (45 CFR 1355.30(k), (m) and (n)). The 
regulations in the above mentioned sections previously applied to State 
and Tribal title IV-B programs and State title IV-E programs. These 
amendments apply the regulatory requirements equally to Indian Tribes 
with a title IV-E plan consistent with Public Law 110-351. In addition, 
we made conforming amendments in the paragraphs described below that 
align these regulations with other regulatory and statutory changes 
implemented between November 2003 and January 2010.
    We amended paragraph (c) to delete the Administration of Grants 
rules previously located in 45 CFR part 74 from the list of applicable 
requirements as 45 CFR part 74 is now obsolete. HHS moved a number of 
programs, including titles IV-B and IV-E, into the scope of 45 CFR part 
92, and removed such programs from the scope of Part 74 (68 FR 52843-
44, September 8, 2003). Therefore, an agency operating titles IV-B and 
IV-E programs is subject to the administrative rules published in 45 
CFR part 92 as cited by amended section 1355.30(i) (see discussion 
below). We amended paragraph (c) further to add ``2 CFR Part 376--
Nonprocurement Debarment and Suspension'' as an applicable regulation. 
This amendment reflects regulatory changes to the governmentwide 
Debarment and Suspension (nonprocurement) regulations at 45 CFR Part 
76, which were previously cross-referenced in section 1355.30(d). HHS 
issued an interim final rule on March 1, 2007 which removed the full 
text of the Department's debarment and suspension rules from 45 CFR 
part 76 and issued a new 2 CFR part 376 on nonprocurement debarment and 
suspension (72 FR 9233-9235). We believe that because this change is 
technical in nature there is no need to go through the notice and 
comment process to update the regulation.
    We made a technical amendment to paragraph (d) to reflect changes 
in regulatory citations by deleting the current citation and replacing 
it with ``2 CFR Part 382--Requirements for Drug-Free Workplace 
(Financial Assistance).'' On November 26, 2003, HHS issued a final rule 
that implemented changes to the governmentwide nonprocurement debarment 
and suspension common rule and the associated rule on drug-free 
workplace requirements (68 FR 66557). The rule on debarment and 
suspension was removed from Part 76 and codified at 2 CFR part 376 (see 
discussion in previous paragraph). The rule on drug-free workplace 
requirements was initially revised and codified in 45 CFR part 82, but 
effective January 11, 2010 these requirements were further simplified 
and relocated to 2 CFR 382 (74 FR 58189).
    Paragraph (i) describes the Uniform Administrative Requirements for 
Grants and Cooperative Agreements to State and Local Governments in 45 
CFR part 92 that are applicable to the title IV-B and IV-E programs. We 
made a technical amendment to paragraph (i) by replacing the reference 
to the ``Independent Living Program'' with ``the John H. Chafee Foster 
Care Independence Program'' to reflect the name change and broader 
program purposes established in the Foster Care Independence Act of 
1999. We also amended paragraph (i) to apply 45 CFR part 92 to Indian 
Tribes which operate Chafee Foster Care Independence Programs (CFCIP) 
in accordance with Section 477(j) of the Act.
    We also amended paragraph (i) to maintain and clarify the current 
rule that Part 92 applies to State-operated title IV-E foster care and 
adoption assistance programs. The regulations cross-referenced in 45 
CFR part 74 have moved to 45 CFR part 92, so we cite the relocated 
sections that do not apply to State title IV-E programs (matching or 
cost sharing requirements found at 45 CFR 92.24 which was formerly 45 
CFR 74.23 and financial reporting requirements found at 45 CFR 92.41 
which was formerly 45 CFR 74.52). Therefore, title IV-E policy and 
regulations continue to preclude States from using third-party in-kind 
contributions and places certain conditions on the use of donated funds 
as a source of non-Federal funds for the title IV-E foster care and 
adoption assistance programs.
    Finally, we added language in paragraph (i) to apply 45 CFR part 92 
to Tribal title IV-E plans for foster care and adoption assistance 
except that section 92.41 and the sections specified in section 1356.68 
do not apply to a Tribal title IV-E agency.
    Unlike States, title IV-E specifically allows Indian Tribes with an 
approved title IV-E plan to use in-kind contributions from third-party 
sources up to a specified percentage of the Indian Tribe's cost sharing 
requirements for title IV-E administrative and training costs for 
certain fiscal years in

[[Page 901]]

accordance with section 479B(c)(1)(D) of the Act. Regulations at 2 CFR 
part 225 Appendix B, Office of Management and Budget (OMB) Circular A-
87, which set out cost principles for States, localities and Tribal 
Governments, apply to Indian Tribes and item 12b within that Circular 
requires that Indian Tribes that use third-party contributions follow 
45 CFR part 92. Because an Indian Tribe may claim in-kind 
administrative and training contributions of its share of the title IV-
E program from third-party sources, section 92.24 (formerly section 
74.23) applies cost-sharing principals and section 92.41 (formerly 
section 74.52) applies financial reporting to an Indian Tribe's use of 
in-kind contributions from third-party sources.
    We amended paragraph (k) to apply most of 45 CFR part 95 to both 
States and Indian Tribes with approved title IV-B and IV-E plans. The 
exceptions are specified in the subparagraphs detailed below. This is a 
conforming change consistent with section 479B(b) of the Act for an 
Indian Tribe with a title IV-E plan; it does not amend existing rules 
applicable to States or Indian Tribes with title IV-B plans or States 
with title IV-E plans.
    We added a new subparagraph (k)(1), to maintain the exception to 
the applicability of 45 CFR 95.1(a), subpart A, to the State title IV-B 
program and the CFCIP for States, and to apply the exception to Indian 
Tribes operating title IV-B programs and CFCIP as well. The regulation 
at 45 CFR 95.1(a) specifies time limits for submitting financial claims 
which do not apply to the CFCIP or title IV-B programs; statutory 
provisions establish the claim submission timeframe.
    We created a new subparagraph (k)(2) to explain that unlike States, 
45 CFR part 95 subpart E, Cost Allocation Plans, is not applicable to 
Indian Tribes with an approved title IV-E plan pursuant to section 479B 
of the Act. This is because the Department of Interior (Interior) is 
the cognizant agency for cost allocation and Interior has provided for 
the use of indirect cost rates for Indian Tribes in accordance with 
that authority. However, ACF still retains authority for guiding the 
allocation and documentation of title IV-E costs pursuant to section 
1356.60 and 2 CFR 225. As such, we issued guidance, ACYF-CB-PI-10-13, 
on how Indian Tribes can develop appropriate cost methodologies 
November 23, 2010.
    We amended paragraph (m) to clarify that the regulations in 45 CFR 
100.12 related to simplifying, consolidating or substituting federally 
required plans apply to States only. The regulatory provision relates 
to a process for operationalizing intergovernmental partnership and 
Federalism principles for States. Although this particular provision 
applies only to States, other guidance reflects our commitment to 
working with Indian Tribes on a government-to-government basis. In 
particular, Executive Order 13175 (65 FR 6724, November 9, 2000) 
requires HHS to develop an accountable process to ensure ``meaningful 
and timely input by Tribal officials in the development of regulatory 
policies that have Tribal implications.''
    In paragraph (n), which applies certain regulations related to 
grants for public assistance programs in 45 CFR part 201 to programs 
funded under titles IV-B and IV-E, we made minor amendments to remove 
references to ``State'' and replace them with more general references 
to apply the rules equally to Indian Tribes in subparagraph (n)(2). In 
addition we removed parenthetical marks but not the provisions within 
them, from paragraphs (n)(1) through (n)(4).
    We amended paragraph (o) to clarify that the provision cross-
referenced at 45 CFR 204.1 which requires that title IV-E plans be 
submitted for a Governor's review is applicable only to States. Indian 
Tribe's must submit their title IV-E plan to their designated Tribal 
leadership for review prior to submitting it to HHS. More instructions 
for doing so are included in the title IV-E plan preprint (most 
recently, in ACYF-CB-PI-09-08 issued October 14, 2009) which is 
applicable to States and Indian Tribes and is available on the CB Web 
site at www.acf.hhs.gov/programs/cb.

Section 1355.31--Elements of the Child and Family Services Review 
System

    This section specifies the scope of the CFSRs.
    The CFSRs were established through regulations issued on January 
25, 2000 (65 FR 4020) to monitor the performance of State child welfare 
programs consistent with section 1123A of the Act. The review assesses 
a title IV-E agency's substantial conformity with certain Federal 
requirements regarding child protection, foster care, adoption, family 
preservation and family support, and independent living services. The 
reviews are based on plan requirements in titles IV-B, subpart 1 and 2 
of the Act and the title IV-E foster care and adoption programs. The 
reviews enable CB to: (1) Ensure conformity with Federal child welfare 
requirements; (2) determine what is actually happening to children and 
families as they are engaged in child welfare services; and, (3) assist 
agencies to enhance their capacity to help children and families 
achieve positive outcomes.
    We removed language in this section that limited the scope of the 
reviews to child and family services programs ``administered by 
States,'' so that the CFSRs apply to such programs administered by a 
Tribal agency consistent with the requirement in Public Law 110-351 to 
apply the provisions of the title IV-E program equally to State and 
Tribal title IV-E agencies. The amendments in this section and 
throughout the CFSR related regulatory sections do not affect how we 
conduct CFSRs in States or our existing guidance to States engaged in 
the CFSR process. The application of the CFSRs to a Tribal title IV-E 
agency has been modified somewhat to take into consideration that such 
agencies are entering into a preexisting monitoring process. We 
encourage Indian Tribes to review the most recent CFSR procedures 
manual on CB's Web site, which explains the CFSR process in more detail 
(http://www.acf.hhs.gov/programs/cb/cwmonitoring/tools_guide/proce_manual.htm).

Section 1355.32--Timetable for the Reviews

    This section specifies the review timetable for the initial and 
subsequent CFSRs.
Section 1355.32(a)--Initial Reviews
    In paragraph (a), we provide the timetable for the initial CFSR for 
a State or Tribal agency. The initial reviews for States were completed 
between FY's 2001 and 2004.
    We amended paragraph (a) to specify a schedule of initial reviews 
for a Tribal title IV-E agency and replaced the reference to 
``Administration for Children and Families'' with the acronym ``ACF.'' 
The added provision establishes that each Tribal title IV-E agency must 
complete an initial full CFSR during the four-year period after we 
determine that the Indian Tribe has plans approved for each of the 
title IV-B subpart 1, title IV-B subpart 2 and title IV-E programs and 
has a sufficient number of cases to apply the procedures in section 
1355.33(c). This new provision provides for reviews on an initial 
schedule for a Tribal agency similar to that for a State consistent 
with the statutory requirement to apply the title IV-E program rules 
equally to Indian Tribes with approved plans. However, we adjusted the 
timeframe to accommodate the unique position of Indian Tribes with 
approved title IV-E plans. When the initial reviews were scheduled for 
States, all States were

[[Page 902]]

operating programs under both subparts of title IV-B and IV-E, and had 
been doing so for several years. This allowed us to set a fixed 
timeframe by which all States had to have an initial review. Since the 
title IV-E option is available to Indian Tribes on a continuous basis, 
we allow the timeframe for the initial review to vary depending on when 
an Indian Tribe's title IV-E plan is approved and other factors 
discussed below.
    A title IV-E agency must have a sufficient number of children in 
foster care and children receiving in-home services during the period 
under review (i.e., those that have a case open for in-home services 
with the child welfare agency for a period of at least 60 days) from 
which we can select a sample of at least 30-50 cases for an on-site 
review as required by existing regulations. This sample is taken from a 
larger oversample of 150 foster care and 150 in-home services cases. At 
the time of promulgation of the CFSR process we were confident that 
States typically had at least this many child welfare cases open during 
our period under review. However, we understand that Indian Tribes 
operating title IV-E plans may not serve as many children at the 
initiation of their programs or for some years to follow. Therefore, to 
maintain fidelity with the existing CFSR process and apply the 
procedures equally to a Tribal title IV-E agency, we will not initiate 
a CFSR for such an Indian Tribe until we can select a sample that meets 
this threshold number of cases.
    Finally, certain CFSR criteria are premised on the agency having in 
place a continuum of child welfare services as supported by the Federal 
requirements and provisions of title IV-B, subparts 1 and 2 (see 63 FR 
50067), in addition to those of title IV-E. Indian Tribes which can be 
approved to operate a title IV-E program also must have a title IV-B, 
subpart 1 program for child welfare services (see CWPM Section 9.1 Q/A 
4). However, there is nothing in Federal law that compels a 
Tribal title IV-E agency to operate the Promoting Safe and Stable 
Families Program under title IV-B, subpart 2. In fact, the existing 
provisions of title IV-B, subpart 2 limit the availability of grants 
under the program to those Indian Tribes who would qualify through the 
formula for a grant of at least $10,000 (section 432(b)(2)(B) of the 
Act). We will conduct a full CFSR only if a Tribal title IV-E agency is 
operating both a title IV-B subpart 1 and 2 program.
    Due to the many factors that must be met for ACF to conduct a CFSR 
of a Tribal agency, we will utilize all other existing monitoring 
protocols at our disposal to ensure that such agencies are in 
compliance with Federal requirements and are achieving positive 
outcomes for children and families. Such protocols include reviewing 
and approving title IV-B plans and title IV-E plans, reviewing actual 
and estimated claims submitted on the CB-496 financial reporting forms 
each quarter and performance reported by Tribes in their title IV-B 
annual progress and service reviews, conducting partial reviews of 
requirements outside the scope of a CFSR of Federal requirements that 
we have reason to believe are out of conformity, and, as necessary, 
requiring Tribal title IV-E agencies to develop a program improvement 
plan to respond to areas we determine are out of substantial 
conformity. Consistent with section 1123A, the necessary elements of a 
program improvement plan and, if necessary, the amount of the 
withholding of Federal funds, will be commensurate with the extent of a 
Tribal title IV-E agency's non-conformity. See sections 1355.21, 
1355.32(d), 1356.20 and 1357.15 for more information on ACF's oversight 
tools. In addition, ACF Regional Offices will continue to offer ongoing 
technical assistance to Indian Tribes as issues related to title IV-B 
and IV-E plans arise.
Section 1355.32(b)--Reviews Following the Initial Review
    Paragraph (b) establishes the timetable for CFSRs after the initial 
review. We conduct a full review every five years following a review in 
which we determine the title IV-E agency to be operating in substantial 
conformity or two years after the approval of the Program Improvement 
Plan (PIP) if we determine that the title IV-E agency is not operating 
in substantial conformity.
    We made a number of conforming amendments to paragraph (b) to apply 
the regulatory provisions for review timing following the initial 
review to a Tribal title IV-E agency in the same way as they are 
applied to a State title IV-E agency. Specifically, we amended 
paragraph (b)(1) to replace the reference to ``State'' with ``title IV-
E agency.'' In paragraph (b)(1)(ii) we added reference to an assessment 
of the Tribal service area to parallel the reference to a statewide 
assessment, we removed ``statewide'' from the second and third 
sentences, we replaced the first reference to ``State'' with ``title 
IV-E agency'', we replaced the reference to ``Administration for 
Children and Families'' with the acronym ``ACF'', we added the phrase 
``or Indian Tribe's'' to follow ``the State's'', and we removed the 
word ``State'' from the phrase ``State plan requirements subject to 
review.'' In paragraph (b)(2) we removed the word ``State'' in the 
phrase ``a State program.'' In sum, these changes mean that once a 
Tribal title IV-E agency has had an initial CFSR review, a subsequent 
review will occur five years later if the agency is found in 
substantial compliance or two years following an approved PIP for an 
agency that is not in substantial conformity.
Section 1355.32(c)--Reinstatement of Reviews Based on Information That 
a Title IV-E Agency Is Not in Substantial Conformity
    Paragraph (c) describes the requirements for reinstatement of a 
full or partial review and describes the types of information that may 
require a review.
    In paragraph (c) we made a number of conforming amendments to apply 
the requirements for reinstatement of a full or partial review to a 
Tribal title IV-E agency in the same way as the requirements are 
applied to a State title IV-E agency. Specifically, we amended 
paragraphs (c) and (c)(1) through (4) to replace all references to 
``State'' with ``title IV-E agency.''
Section 1355.32(d)--Partial Reviews Based on Noncompliance With Plan 
Requirements That Are Outside the Scope of a Child and Family Services 
Review
    This section sets the parameters for addressing noncompliance with 
title IV-B and IV-E plan requirements that are outside of the scope of 
a child and family services review in the form of a partial review. In 
paragraph (d), we made conforming amendments to apply the partial 
review process to a Tribal title IV-E agency in the same way it is 
applied to a State title IV-E agency. Specifically, we amended the 
title to remove the term ``State'' that preceded ``plan'' and we 
replaced all references to ``State'' with ``title IV-E agency'' in 
paragraphs (d)(1) through (d)(4).

Section 1355.33--Procedures for the Review

    This section sets forth the CFSR process and outlines general 
procedures for both the CFSR assessment and the on-site review portions 
of the review.
Section 1355.33(a)
    Paragraph (a) describes the two phases of the review process and 
the review team membership. We made a number of conforming amendments 
to this paragraph to apply the two-part review process and review team 
membership to a Tribal title IV-E agency in the same way they are 
applied

[[Page 903]]

to a State title IV-E agency. Specifically, we amended paragraph (a)(2) 
to change ``State'' to ``title IV-E agency'' to indicate that when 
there is a CFSR of a Tribal title IV-E agency, the review team will 
consist of representatives from ACF and the Tribal title IV-E agency. 
This parallels the review team composition for CFSRs conducted in 
States. We amended paragraphs (a)(2)(i), (a)(2)(ii) and (a)(2)(iv) to 
replace all references to ``State'' with ``title IV-E agency.'' In 
addition, we amended paragraph (a)(2)(i) to remove the word ``State'' 
from the phrase ``State child and family services agency'' and the 
phrase ``State and local'' from the phrase ``State and local offices.'' 
These changes apply the two steps of the review process equally to 
States and Indian Tribes as required by Public Law 110-351.
Section 1355.33(b)--Statewide or Tribal Assessment
    In this paragraph, we describe the assessment process in more 
detail. The assessment involves representatives from the title IV-E 
agency and external stakeholders, reviewing and analyzing data to 
evaluate the strengths and needs of the child and family services 
system.
    We made a number of conforming amendments in paragraph (b) to apply 
the requirements of the assessment process to a Tribal title IV-E 
agency in the same way they are applied to a State title IV-E agency, 
as required by Public Law 110-351. We amended the title to include ``or 
Tribal'' to precede ``assessment'' so it is clear that there is either 
a State or Tribal assessment, depending on which is the title IV-E 
agency subject to the CFSR. We indicated that in the case of the Tribal 
title IV-E agency, the assessment covers the scope of the Indian 
Tribe's service area, including both the Indian Tribe's title IV-E 
service area (as defined by the Indian Tribe in the title IV-E plan) 
and the title IV-B service area (that is, the area covered by the 
Indian Tribe's CFSP). In paragraph (b)(1) we replaced references to 
``statewide'' with ``statewide/Tribal'' and in paragraph (b)(2) we 
replaced references to ``statewide'' with ``statewide/Tribal service 
area'' to precede ``data indicators.'' This is a technical change to 
apply the data indicators equally to both State and Tribal IV-E 
agencies, as there is a single set of data indicators for Tribes and 
States. We also made changes throughout paragraphs (b) and (b)(2) 
through (b)(6), to replace all references to ``State'' and ``State 
agency'' with ``title IV-E agency'' and remove ``statewide'' where it 
prefaced ``assessment.'' These changes ensure that the assessment 
provisions are parallel for States and Indian Tribes.
Section 1355.33(c)--On-Site Review
    Paragraph (c) describes requirements for the on-site review 
process, including information on the scope of the review, the review 
sites, sources of information used in the review, and case sampling.
    In paragraph (c) we made a number of conforming amendments to apply 
the regulatory requirements of the on-site review process to a Tribal 
title IV-E agency in the same way they are applied to a State title IV-
E agency, with the exception of one requirement in paragraph (c)(2) 
discussed below. Specifically, we made conforming amendments to 
paragraphs (c)(1) through (c)(3) by replacing most references to 
``State'' with ``title IV-E agency.'' We also amended paragraph 
(c)(4)(iv) to include reference to an Indian Tribe's CFSP in the same 
way that we reference a State's CFSP and replaced the reference to the 
``statewide'' assessment to the ``statewide/Tribal'' assessment in 
paragraph (c)(6). In paragraph (c)(2), we maintain the reference to the 
State's largest metropolitan area as a mandatory location for the on-
site portion of the CFSR and did not include a mandate for a similar 
location for a Tribal CFSR. We kept this provision as is because we 
recognize that the Tribal title IV-E agency's service area in most 
cases will not include a metropolitan area at all, or if there is a 
metropolitan area, it may not represent a subdivision in which a large 
number of child welfare services cases can be found as was the 
intention with the original requirement.
    Taking the paragraph as amended as a whole, for Indian Tribes the 
onsite review will consist of a review of a title IV-E agency's title 
IV-B and IV-E programs in operation in the title IV-E agency's service 
area. The review will be planned jointly between ACF and the Tribal 
title IV-E agency, may focus on several political subdivisions in the 
Tribal service area (e.g., different Tribal organizations included in a 
Tribal consortium) as guided by information in the assessment, and will 
involve the gathering of information during the on-site portion of the 
review from Tribal agency staff, families who are served by the agency 
and stakeholders internal and external to the agency, including those 
who participated in the development of the Indian Tribe's CFSP. The 
review will focus on at least 30 cases of foster care and in-home 
services cases, taken from a larger oversample of cases for each, which 
may be used to resolve discrepancies between the assessment and the on-
site review.
Section 1355.33(d)--Resolution of Discrepancies Between the Assessment 
and the Findings of the On-Site Portion of the Review
    In paragraph (d), we describe the process for resolving 
discrepancies between the assessment and the on-site portion of the 
review through either, at the title IV-E agency's option, the 
submission of additional information or the review of additional cases.
    In paragraphs (d), (d)(1) and (d)(2), we made conforming amendments 
to apply the regulatory requirements for resolution of such 
discrepancies to a Tribal title IV-E agency in the same way they are 
applied to a State title IV-E agency by removing the reference to 
``State'' and replacing it with ``title IV-E agency.'' The paragraph 
now requires that discrepancies between the assessment and the findings 
of the on-site portion of the review be resolved by either information 
submitted by the title IV-E agency or the review of additional cases, 
as opted by the title IV-E agency.
Section 1355.33(e)--Partial Review
    In paragraph (e) we outline when a targeted partial child and 
family services review will be conducted. We made a conforming 
amendment in this paragraph to apply the regulatory requirements of the 
partial review process to a Tribal title IV-E agency in the same way 
they are applied to a State title IV-E agency by removing the reference 
to ``State'' and replacing it with ``title IV-E agency.'' In the case 
of a Tribal title IV-E agency, partial CFSRs will be planned and 
conducted jointly by ACF and the Tribal title IV-E agency based on the 
nature of the concern.
Section 1355.33(f)--Notification
    Paragraph (f) provides for ACF to notify the title IV-E agency as 
to whether it is, or is not, operating in substantial conformity within 
30 days following a full review, partial review or resolution of a 
discrepancy between the findings of the on-site review and the 
statewide/Tribal assessments. In this paragraph we made conforming 
amendments to apply the regulatory requirements of the notification 
process to a Tribal title IV-E agency in the same way they are applied 
to a State title IV-E agency by removing the references to ``State 
agency'' and ``State'' and replacing them with ``title IV-E agency.'' 
We also removed references to ``statewide'' where it preceded 
``assessment'' so that it is inclusive of either State or Tribal 
assessments. ACF will therefore notify the title IV-E agency, whether 
State or Tribal, of its

[[Page 904]]

conformity status within 30 days of the events mentioned above.

Section 1355.34--Criteria for Determining Substantial Conformity

    This section describes the criteria that will be used to determine 
a title IV-E agency's degree of conformity with specified title IV-B 
and IV-E plan requirements for each outcome and systemic factor of the 
title IV-E agency's service delivery system that undergoes review.
Section 1355.34(a)--Criteria To Be Satisfied
    Paragraph (a) describes the basic criteria used to determine the 
title IV-E agency's substantial conformity with applicable CFSP 
requirements based on: (1) The achievement of the seven outcomes 
specified in paragraph (b); and (2) the functioning of seven core 
systemic factors directly related to the title IV-E agency's capacity 
to deliver services leading to improved outcomes. In paragraph (a) we 
made conforming amendments to apply these basic criteria to a Tribal 
title IV-E agency in the same way they are applied to a State title IV-
E agency by removing the word ``State'' from the phrase ``title IV-B 
and IV-E State plan requirements'' and removing the references to 
``State'' in paragraphs (a) and (a)(3) and replacing them with ``title 
IV-E agency.'' In paragraph (a)(1) we replaced the phrase ``statewide'' 
with ``statewide/Tribal service area'' to preface data indicators. This 
is a technical change to apply the data indicators equally to both 
States and Tribes, as there are not separate data indicators for each.
Section 1355.34(b)--Criteria Related to Outcomes
    Paragraph (b) describes the seven outcomes in the areas of child 
safety, permanency for children and child and family well-being used 
for the purposes of the review. The title IV-E agency's substantial 
conformity will be determined based on its ability to substantially 
achieve these outcomes. We made several conforming amendments in 
paragraph (b) to apply the regulatory requirements to a Tribal title 
IV-E agency in the same way they are applied to a State title IV-E 
agency and to update obsolete citations. Specifically, we made 
conforming amendments to remove the references to ``State'' in 
paragraphs (b)(1) through (b)(3) and in most cases replacing them with 
``title IV-E agency.'' We also removed the reference to the title IV-B 
assurances being made ``by the State'' so that more general language 
remains to allow for the review of these assurances when made by the 
Indian Tribe.
    To remove and replace out-of-date statutory references with current 
citations, we amended: Paragraph (b)(2)(ii)(C) by removing reference to 
section ``422(b)(9)'' and replacing it with ``422(b)(7)''; paragraph 
(b)(2)(ii)(D) by removing the reference to section ``422(b)(10)(C)(i) 
and (ii)'' and replacing it with ``422(b)(8)(B)''; paragraph 
(b)(2)(ii)(E) by removing the reference to section ``422(b)(11)'' and 
replacing it with ``422(b)(9)'' and paragraph (b)(2)(ii)(F) by removing 
the reference to section ``422(b)(12)'' and replacing it with 
``422(b)(10).'' We believe that because these changes are technical in 
nature there is no need to go through the notice and comment process to 
update the regulation.
    We did not change the reference to the State's compliance with ICWA 
in paragraph (b)(2)(ii)(E) as one of the CFSP assurances subject to 
review to make it also applicable to a Tribal title IV-E agency. This 
is because the ICWA provisions cited in section 422 of the Act and 
referenced here are those provisions which apply to State court 
proceedings and handling of custodial issues with regard to Indian 
children. Such provisions are not applicable to Indian Tribes and 
therefore cannot be a part of a review of Tribal title IV-E agency 
compliance with title IV-B and IV-E provisions.
    We amended paragraphs (b)(2)(i), (b)(3)(i) and (b)(4) by replacing 
the term ``statewide'' with ``statewide/Tribal service area'' prior to 
``data indicator.'' This allows ACF to develop data indicators based on 
title IV-E agencies' Adoption and Foster Care Analysis and Reporting 
System (AFCARS) and National Child Abuse and Neglect Data System 
(NCANDS) data and make such indicators a factor in substantial 
conformity for both State and Tribal IV-E agencies. However, we did not 
alter the references to ``statewide'' indicators in paragraph (b)(5) as 
they refer to the data standards that were set initially in 2000 and 
not to those that may be established in the future. Any changes to the 
actual indicators that are applicable to the CFSR will be announced by 
ACF, as applicable, through other means, such as a Federal Register 
notice or other formal issuance.
Section 1355.34(c)--Criteria Related to Title IV-E Agency Capacity To 
Deliver Services Leading to Improved Outcome for Children and Families
    In paragraph (c) we describe criteria for the seven core systemic 
factors that we evaluate to determine the agency's capacity to deliver 
services that improve outcomes for children and families.
    We made several conforming amendments in paragraph (c) to apply the 
regulatory requirements to a Tribal title IV-E agency in the same way 
they are applied to a State title IV-E agency and to update outdated 
citations. The substance of the systemic factors remains the same with 
these conforming changes.
    To apply the regulatory requirements to a Tribal title IV-E agency 
in the same way they are applied to a State title IV-E agency we 
removed references to ``State'' or ``State's'' in paragraphs (c), 
(c)(2), (c)(3), (c)(4)(iv), (c)(5)(v) and (c)(6)(iv). We also removed 
and replaced references to ``State agency'' with ``title IV-E agency'' 
in the title, paragraphs (c), (c)(2) and (c)(2)(iii), (c)(3), (c)(4) 
and (c)(4)(i), (c)(5), (c)(6)(i), and (c)(7)(iii) through (c)(7)(v). We 
amended the title of paragraph (c)(1), paragraph (c)(4)(v) and 
(c)(6)(i) by replacing the terms ``Statewide'' with ``Statewide/
Tribal'', ``State-licensed'' with ``State/Tribal-licensed'', ``State-
approved'' with ``State/Tribal-approved'', ``county'' with ``county/
local'' and ``State'' with ``State/Tribal'' respectively. We amended 
paragraphs (c)(2)(i) and (c)(3)(i) by adding the phrase ``Tribal 
service area'' to follow ``State.'' We amended paragraphs (c)(7)(i) and 
(ii) by adding the phrase ``or Tribe'' to follow the word ``State.''
    To conform the regulation to current law as amended in this 
section, we updated several statutory references. In particular we 
amended: Paragraph (c)(1) by replacing the citation to section 
``422(b)(10)(B)(i)'' with ``422(b)(8)(A)(i)''; paragraphs (c)(2)(i) 
through (v) by replacing the citation to section ``422(b)(10)(B)(ii)'' 
with ``422(b)(8)(A)(ii)''; paragraph (c)(5) by removing the citation to 
section ``422(b)(10)(B)(iii)'' and replacing it with 
``422(b)(8)(A)(iii)''; paragraph (c)(7)(iv) by removing the citation to 
section ``422(b)(9)'' and replacing it with ``422(b)(7)''; and, 
paragraph (c)(7)(v) by removing the citation to section ``422(b)(12)'' 
and replacing it with ``422(b)(10).'' Further, we are amending one 
regulatory reference that we have discovered is incorrect. In paragraph 
(c)(6)(i) we are replacing the reference to 45 CFR 1357.15(l)(4) to the 
correct reference to the title IV-B consultation requirements in 45 CFR 
1357.15(l)(3).
Section 1355.34(d)--Availability of Review Instruments
    This paragraph describes the availability of review instruments to 
those subject to CFSRs. We made a conforming amendment in paragraph (d)

[[Page 905]]

to apply the section to a Tribal title IV-E agency in the same way it 
is applied to a State title IV-E agency by removing the word ``States'' 
from the phrase ``make available to States'' and replacing it with the 
term ``title IV-E agencies.'' Therefore, review instruments will be 
made available to both States and Indian Tribes that are subject to the 
CFSR.

Section 1355.35--Program Improvement Plans

    This section describes the requirements for developing, 
implementing and reviewing program improvement plans and for providing 
technical assistance to a title IV-E agency in implementing the program 
improvement plans. It implements the requirement in section 1123A(b)(4) 
of the Act that a title IV-E agency found not to be in substantial 
conformity be afforded the opportunity to develop and implement a 
corrective action plan. These plans are termed PIPs and are developed 
through a partnership between the title IV-E agency and ACF. In 
addition to the changes described below, we added a statement after 
paragraph (f) indicating that the information collection requirements 
in this section have been approved by OMB and providing the applicable 
OMB Control Number.
Section 1355.35(a)--Mandatory Program Improvement Plan
    This paragraph describes the requirement that a PIP must be 
developed jointly by the title IV-E agency and Federal staff when the 
title IV-E agency is not in substantial conformity, and describes the 
content requirements for the PIPs. In paragraph (a) we made several 
conforming amendments to apply the regulatory requirements of the 
mandatory PIPs to a Tribal title IV-E agency in the same way they are 
applied to a State title IV-E agency. Specifically, we removed the 
references to ``State'', ``States'' and ``State's'' and replaced them 
with ``title IV-E agency,'' ``title IV-E agencies'' and ``title IV-E 
agency's'' in paragraphs (a)(1), (a)(1)(i), (a)(1)(ii), (a)(1)(v) and 
(a)(2). We also amended paragraph (a)(1)(iv) by replacing the term 
``statewide'' with ``statewide/Tribal.''
Section 1355.35(b)--Voluntary Program Improvement Plan
    This paragraph explains the requirements for a voluntary PIP, 
developed jointly by the title IV-E agency and an ACF Regional Office 
when the title IV-E agency is in substantial conformity but elects to 
develop a plan to target areas in need of improvement. In paragraph (b) 
we made several conforming amendments to apply the regulatory 
provisions for voluntary PIPs to a Tribal title IV-E agency in the same 
way they are applied to a State title IV-E agency by removing the 
references to ``States'' ``State'' and ``State's'' and replacing them 
with ``title IV-E agencies,'' ``title IV-E agency'' and ``title IV-E 
agency's'' in paragraphs (b), (b)(1) and (b)(3), respectively.
Section 1355.35(c)--Approval of Program Improvement Plans
    This paragraph outlines the requirements for the approval of a 
mandatory PIP by ACF, and sets a 90-day timeline for the initial 
submission of the PIP with a 30-day timeline for the resubmission of a 
plan in need of revision to meet the approval requirements, as well as 
when ACF will begin to withhold funds. In paragraph (c) we made several 
conforming amendments to apply the regulatory requirements which govern 
PIPs to a Tribal title IV-E agency in the same way they are applied to 
a State title IV-E agency by removing the references to ``State'' and 
replacing them with ``title IV-E agency'' in paragraphs (c)(1), (c)(3) 
and (c)(4).
Section 1355.35(d)--Duration of Program Improvement Plans
    This paragraph describes ACF's authority for establishing time 
frames, not to exceed two years, for the completion of PIPs, extensions 
of deadlines, the required title IV-E agency quarterly status reports 
to ACF. In paragraph (d) we made several conforming amendments to apply 
these regulatory requirements to a Tribal title IV-E agency in the same 
way they are applied to a State title IV-E agency by removing the 
references to ``State'' and replacing them with ``title IV-E agency'' 
in paragraphs (d)(3) and (d)(4).
Section 1355.35(e)--Evaluating Program Improvement Plans
    This paragraph outlines the requirements for the joint evaluation 
of a PIP by the title IV-E agency and ACF and the ability to jointly 
renegotiate a PIP, as applicable. We made several conforming amendments 
to apply these regulatory requirements to a Tribal title IV-E agency in 
the same way they are applied to a State title IV-E agency by removing 
the references to ``State'' and ``State's'' and replacing them with 
``title IV-E agency'' and ``title IV-E agency's'' respectively in 
paragraphs (e), (e)(1) through (e)(4) and (e)(4)(i). We also amended 
paragraph (e)(1) and (e)(4)(i) by replacing the term ``statewide'' with 
``statewide/Tribal service area'' to precede ``data indicators'' as 
they are applied equally to State and Tribal title IV-E agencies.
Section 1355.35(f)--Integration of Program Improvement Plans With CFSP 
Planning
    This paragraph describes the requirement that the elements of the 
PIP be incorporated into the goals and objectives of the CFSP and the 
annual reviews and progress reports related to the CFSP. In paragraph 
(f) we made a conforming amendment to apply the regulatory requirements 
for integrating PIPs into CFSPs to a Tribal title IV-E agency in the 
same way they are applied to a State title IV-E agency by removing the 
reference to ``State's'' and replacing it with ``title IV-E agency's.''

Section 1355.36--Withholding Federal Funds Due to Failure To Achieve 
Substantial Conformity or Failure To Successfully Complete a Program 
Improvement Plan

    This section describes the pool of funds that are subject to 
withholding and the process for withholding Federal funds due to the 
failure of the title IV-E agency to meet the CFSR criteria for 
substantial conformity. The provisions address the method we use to 
determine the amount of funds to be withheld and the conditions under 
which such withholding may be applied, or if applicable, suspended or 
terminated.
    We made several conforming amendments to apply the regulatory 
requirements for withholding funds to a Tribal title IV-E agency in the 
same way they are applied to a State title IV-E agency by removing all 
references to ``State'', ``States'' and ``State's'' and replacing them 
with ``title IV-E agency'', ``title IV-E agencies'', and ``title IV-E 
agency's'' respectively in paragraphs (a)(1) and (2), (b), (b)(1) 
through (4), (b)(4)(i) and (ii), (b)(6), (b)(7), (b)(7)(iii), (b)(8), 
(b)(8)(iii), (c)(1), (c)(1)(ii), (d), (e)(1), (e)(2)(i), (e)(2)(iii), 
and (e)(3) through (5).
    We made a technical amendment to paragraph (e)(5) to reflect 
changes in regulatory citations by deleting the current citation and 
replacing it with ``45 CFR 30.18.'' On March 8, 2007 HHS issued a final 
rule that implemented the provisions of the Debt Collection Improvement 
Act of 1996 (72 FR 10404). The rule on interest, penalties and 
administrative costs was removed from 45 CFR 30.13 and codified at 45 
CFR 30.18.

Section 1355.37--Opportunity for Public Inspection of Review Reports 
and Materials

    This section requires the title IV-E agency to make all statewide 
or Tribal

[[Page 906]]

assessments, reports of findings, and PIPs available for public review. 
In this paragraph we made a conforming amendment to apply the 
regulatory requirements related to making these documents available to 
the public to a Tribal title IV-E agency in the same way they are 
applied to a State title IV-E agency by removing the reference to 
``State'' and replacing it with ``title IV-E,'' and by adding the 
phrase ``or Tribal'' before ``assessment.''

Section 1355.38--Enforcement of Section 471(a)(18) of Act Regarding the 
Removal of Barriers to Interethnic Adoption

    This section implements the provisions of sections 474(d)(1) and 
(2) of the Act, which contain enforcement provisions regarding the 
requirements in section 471(a)(18) of the Act. Section 471(a)(18) of 
the Act prohibits a title IV-E agency, or any other entity in the 
State/Tribe that receives Federal funds and is involved in adoption or 
foster care placements, from denying an individual the opportunity to 
foster or adopt on the basis of the child's or the prospective parent's 
race, color or national origin, or delay or deny a child's placement in 
foster care or adoption on that basis. Section 1355.38 describes the 
existing process for addressing an identified violation of section 
471(a)(18) of the Act by a title IV-E agency, including corrective 
action plans and withholding. This process includes collaboration with 
the Department's Office for Civil Rights (OCR) due to its significant 
expertise in investigating alleged civil rights violations including 
involvement in the development and implementation of corrective action 
plans. We want to note that section 471(a)(18) of the Act does not 
affect how ICWA applies.
    With the exception of paragraph (d), where no changes were 
necessary, we made amendments to apply the regulatory requirements 
related to violations of section 471(a)(18) of the Act to a Tribal 
title IV-E agency in the same way they are applied to a State title IV-
E agency in each paragraph. We accomplished this by removing the 
references to ``State'', ``States'' and State's'' in each place those 
terms appeared and replacing them with ``title IV-E'', ``title IV-E 
agencies'' and ``title IV-E agency's'' respectively. We also added the 
word ``Tribe'' to the phrase ``an entity in the State'' in paragraph 
(a)(2).
    We made a technical amendment to paragraph (h)(4) to reflect 
changes in regulatory citations by deleting the current citation and 
replacing it with ``45 CFR 30.18.'' On March 8, 2007 HHS issued a final 
rule that implemented the provisions of the Debt Collection Improvement 
Act of 1996 (72 FR 10404). The rule on interest, penalties and 
administrative costs was removed from 45 CFR 30.13 and codified at 45 
CFR 30.18.
    In addition to the change described above, we added a statement 
following the end of paragraph (h) providing that the information 
collection requirements in this section have been approved by the 
Office of Management and Budget (OMB) and provide the applicable OMB 
Control Number.

Section 1355.39--Administrative and Judicial Review

    Section 1355.39 describes the administrative and judicial review 
requirements applicable to a title IV-E agency if the agency appeals a 
finding of non-conformity with title IV-E or IV-B plan requirements.
    We amended section 1355.39 in the opening paragraph of the section 
and paragraphs (b) and (c) to replace the term ``State'' with ``title 
IV-E agency'' pursuant to Public Law 110-351. In doing so, we apply the 
appeal procedures for title IV-E agencies in 45 CFR Part 16 equally to 
State and Tribal title IV-E agencies. The term ``title IV-E agency'' is 
inclusive of both State and Tribal programs with a plan approved 
pursuant to section 471(a) of the Act.
    Part 16 allows a title IV-E agency to file an appeal related to the 
operation of the title IV-B and IV-E programs to the HHS Departmental 
Appeals Board (DAB). The DAB is authorized to review disputes in HHS 
programs (45 CFR Part 16 Appendix A). The DAB specifically has 
jurisdiction over disputes arising from title IV-E disallowances, and 
title IV-B and IV-E withholding determinations. In accordance with 
section 1123A(c)(3) of the Act, we provide a title IV-E agency with the 
opportunity to appeal DAB decisions in the district court for the 
judicial district in which the principal or headquarters office of the 
agency responsible for administering the program is located.

Section 1355.40--Foster Care and Adoption Data Collection

Section 1355.40(a)--Scope of the Data Collection System
    Paragraph 1355.40(a) describes the scope of the data collection 
system and the reporting populations that each title IV-E agency is to 
include in submissions to ACF. The system is called AFCARS.
    We made several conforming amendments to apply the regulatory 
requirements for data collection and reporting to a Tribal title IV-E 
agency in the same way they are applied to a State title IV-E agency 
either by removing references to ``State'', ``States'' and ``State's'' 
and replacing them with ``title IV-E agency'', ``title IV-E agencies'', 
and ``title IV-E agency's'' respectively, or by adding a similar 
provision for a Tribal title IV-E agency.
    In paragraph (a)(1) we removed specific dates when States were to 
begin collecting and transmitting data after the original AFCARS final 
rule (58 FR 67912) was issued in 1993 because they are obsolete. We 
believe that because these changes are technical in nature there is no 
need to go through the notice and comment process to update the 
regulation. An Indian Tribe will begin collecting and transmitting 
AFCARS data after we approve the Indian Tribe's title IV-E plan, so the 
specific date will vary among Tribal title IV-E agencies.
    In paragraphs (a)(2) and (a)(3) we added a requirement for children 
in an Indian Tribe's placement and care responsibility and children 
placed for adoption that is similar to the State requirement in 
paragraphs (a)(2) and (a)(3). For children in the Tribal title IV-E 
agency's placement and care responsibility or who are placed in foster 
care or for adoption and who are placed outside of the Tribal service 
area, the Indian Tribe placing the child and making foster care 
payments or adoption assistance payments must submit and continually 
update the data for each such child.
Section 1355.40(b)--Foster Care and Adoption Reporting Requirements
    Paragraph (b) describes the requirements for transmitting foster 
care and adoption data, including timelines for submission, child-
specific data requirements, summary file requirements and internal data 
consistency checks. We made several conforming amendments to apply the 
regulatory requirements for foster care and adoption reporting 
requirements to a Tribal title IV-E agency in the same way they are 
applied to a State title IV-E agency either by removing references to 
``State'', ``States'' and ``State's'' and replacing them with ``title 
IV-E agency'', ``title IV-E agencies'', and ``title IV-E agency's'' 
respectively, or by adding a similar provision for a Tribal title IV-E 
agency.
Section 1355.40(c)--Missing Data Standards
    Paragraph (c) describes what we consider to be missing data, which 
is a factor in determining compliance with the AFCARS requirements. We 
are amending paragraph (c)(2) and

[[Page 907]]

removing (c)(3) to remove obsolete references to a financial penalty as 
a consequence of an agency exceeding the threshold for missing data. In 
the case of paragraph (c)(2) we removed the reference to an obsolete 
penalty in paragraph (c)(3) and modified the language to accurately 
state that exceeding the missing data threshold is considered 
substantial noncompliance. We also completely removed paragraph (c)(3) 
and its references to penalties as these provisions are obsolete. 
Enactment of the Adoption Promotion Act of 2003 (Pub. L. 108-145), 
which added section 474(f) to the Act superseded these penalties in 
regulation, rendering them obsolete. We indicated in ACYF-CB-IM-04-04 
that no penalties would be assessed until we issue revised final AFCARS 
regulations, yet to be published. In the interim, a title IV-E agency 
that exceeds the missing data threshold or any other AFCARS standard 
has an opportunity to correct its data, and failing that receives a 
notice that it is not in compliance. We believe that because these 
changes are technical in nature there is no need to go through the 
notice and comment process to update the regulation.
    We find proposed rulemaking for these technical amendments to bring 
the regulation in line with existing practice impracticable and 
unnecessary since they are not substantive. States have not been 
subject to penalties for some time and Tribal title IV-E agencies will 
not be subject to these penalties until new regulations state 
otherwise. Moreover, we believe that delaying rulemaking on these 
technical amendments would be contrary to the public interest since 
doing so would cause significant confusion about the statutory and 
regulatory provisions which Indian Tribes must abide by in implementing 
the title IV-E program for the first time. Rather, it is prudent to 
change the regulation now to conform to existing practice so that 
States and Indian Tribes have an equal understanding that there is not 
an existing financial penalty being implemented due to noncompliance 
with AFCARS requirements. Therefore, we find good cause to include 
these technical amendments, and similar ones described below, in this 
interim final rule.
Section 1355.40(d)--Timeliness of Foster Care Data Reports
    In paragraph (d) we renumbered paragraph (d)(1) as (d) and amended 
it to indicate that, in accordance with current policy, a title IV-E 
agency that does not meet the threshold for timely transaction date 
entries will be found in substantial noncompliance. We removed 
paragraph (d)(2), in its entirety because it references paragraph (e) 
regarding penalties for missing data, which is obsolete. We believe 
that because this change is technical in nature there is no need to go 
through the notice and comment process to update the regulation.
Section 1355.40(e)--Substantial Noncompliance
    In paragraph (e) we describe what constitutes substantial 
noncompliance with the AFCARS requirements. We renamed the title 
``Substantial Noncompliance'' as opposed to ``Penalties'' and removed 
the second sentence of paragraph (e)(1) that discussed penalties. We 
deleted paragraphs (e)(2), (3), (4), and (5) and renumbered paragraph 
(e) accordingly. All of the changes to this paragraph were to bring the 
regulation in line with the current practice which does not penalize a 
title IV-E agency for noncompliance with the AFCARS standards, as 
discussed previously.
    In addition to the changes described above, we added a statement 
after the end of paragraph (e) providing that the information 
collection requirements in this section have been approved by the OMB 
and providing the applicable OMB Control Number.

Section 1355.50--Purpose of This Part

    Section 1355.50 describes the procedures and requirements a title 
IV-E agency must meet to receive Federal financial participation for 
the automated child welfare information system.
    We amended section 1355.50 to make a conforming change by replacing 
the term ``States'' with ``title IV-E agencies'' to comply with Public 
Law 110-351 which permits Indian Tribes pursuant to an approved plan 
under title IV-E to operate a title IV-E program directly. We added 
``or Tribal'' to follow reference to the ``statewide'' system to be 
inclusive of Tribal systems. Consequently, this conforming amendment 
applies the regulatory requirements to receive Federal financial 
participation for the planning, design, development, installation and 
operation of automated child welfare information systems equally to 
States and Indian Tribes operating title IV-E programs.

Section 1355.52--Funding Authority for Statewide or Tribal Automated 
Child Welfare Information Systems (SACWIS/TACWIS)

    Section 1355.52 describes the requirements a title IV-E agency must 
follow to claim Federal reimbursement for automated child welfare 
information system expenditures at the 50 percent match rate.
    We amended the title to section 1355.52 to include a reference to 
``Tribal'' automated child welfare systems and the accompanying acronym 
``TACWIS'' within the parenthesis. We also amended paragraphs (a), 
(a)(1) and (b) to make conforming changes by replacing the term 
``States'' or ``State'' with ``title IV-E agencies'' and ``title IV-E 
agency'' respectively. We similarly added reference to a ``Tribal'' 
automated information system to accompany references to a ``State'' or 
``statewide'' automated system in paragraphs (a) and (a)(3) and removed 
the word ``State'' that preceded ``plan'' in paragraph (a)(4). These 
conforming changes apply the regulatory provisions for a title IV-E 
agency to claim Federal Financial Participation (FFP) for expenditures 
related to planning, designing, developing, and installing a child 
welfare information system at the 50 percent rate equally to States and 
Indian Tribes, as required by Public Law 110-351.
    In response to the FR notice that solicited comments, we received 
questions regarding funding for the initial development of an automated 
child welfare information system. Previously, States were eligible to 
receive 75% Federal match for the initial development costs of a SACWIS 
as was reflected in the provision in paragraph (a). However, the 
statutory authority for that higher level of match expired several 
years ago and there is no other statutory authority for an enhanced 
match for automated systems development costs for any title IV-E 
agency, State or Tribal. To avoid confusion and accurately reflect 
existing law, we are making a technical change to remove the obsolete 
reference to a 75% rate for development of a SACWIS. We believe that 
because this change is technical in nature there is no need to go 
through the notice and comment process to update the regulation.

Section 1355.53--Conditions for Approval of Funding

    Section 1355.53 describes the requirements a title IV-E agency must 
follow in designing, developing, and operating an automated child 
welfare system to receive funding for the system.
    We amended paragraphs (b)(2), (b)(3), (e), and (f) to make 
conforming changes by replacing the term ``State'', ``States'', ``State 
agency'' and ``State agencies'' with ``title IV-E agency'' or ``title 
IV-E agencies'' to apply the SACWIS conditions for funding to a Tribal 
title IV-E agency in the same way they are

[[Page 908]]

applied to a State title IV-E agency, as required by Public Law 110-
351. In addition, we made additional conforming amendments to this 
section for the same reasons. Specifically, we amended paragraph (a) to 
make a conforming change to add the acronym ``TACWIS'' to follow 
``SACWIS'' and to remove the term ``State'' before ``plan.'' These 
conforming changes apply the advance planning document (APD) 
requirements a title IV-E agency must follow to receive funding for its 
automated child welfare system equally to States and Indian Tribes. 
Similarly, in paragraph (b)(2) we added ``or Tribe'' to follow the 
reference to a ``State'' so that it is clear that Tribal automated 
systems should have electronic exchanges and referrals with other 
Tribal systems such as TANF and child support, as appropriate. In 
paragraph (b)(3), we added a parenthetical provision that indicates 
that for Indian Tribes, the automated system is to support the 
collection of data across the Tribal service area on children in foster 
care, which parallels the provision that States have statewide data 
that supports the same. In paragraph (g) we inserted the term ``and 
where applicable, Tribal standards'' after ``State standards'' to apply 
the existing requirement that the automated system must perform Quality 
Assurance functions related to compliance with State and Federal 
standards equally to Tribal standards where applicable.

Section 1355.54--Submittal of Advance Planning Documents

    Section 1355.54 requires that the APD be signed by the appropriate 
official, in accordance with procedures specified in 45 CFR part 95, 
subpart F.
    We amended section 1355.54 to make conforming changes by removing 
the two references to ``State'' to apply equally the requirement that 
the title IV-E agency submit an APD for an automated system signed by 
the appropriate official to Tribal and State title IV-E agencies, as 
required by Public Law 110-351.

Section 1355.55--Review and Assessment of the System Developed With 
Enhanced Funds

    Section 1355.55 explains the process for the review and assessment 
of the automated child welfare information system. Such a review is 
conducted to determine the extent to which the system meets the 
functionality requirements, the approved APD and the requirements of 45 
CFR part 95, subpart F. More details on the assessment are available in 
a review guide accessible at http://www.acf.hhs.gov/programs/cb/systems/sacwis/sacwisreviewguide/sacwisreviewguide_08.pdf.
    We amended section 1355.55 to make a conforming change by adding 
the acronym ``TACWIS'' to follow ``SACWIS'' to apply the same ACF 
review and assessment process to both Tribal and State title IV-E 
systems.
    In addition to the change described above, we added a statement 
after the end of paragraph (b) providing that the information 
collection requirements in this section have been approved by the OMB 
and providing the applicable OMB Control Number.

Section 1355.56--Failure To Meet the Conditions of the Approved APD

    Section 1355.56 discusses the conditions in which an APD can be 
suspended and describes the suspension process.
    We amended section 1355.56 in paragraphs (a), (b)(1), (b)(1)(iv), 
(b)(2) and (b)(4) to make conforming changes by replacing the term 
``State agency'' with ``title IV-E agency'' to comply with Public Law 
110-351. These conforming changes in section in 1355.56 apply the 
conditions in which an APD can be suspended and the suspension process 
equally to States and Tribal IV-E agencies.

Section 1355.57--Cost Allocation

    Section 1355.57 discusses the cost allocation requirements for 
SACWIS/TACWIS administrative costs claimed under title IV-E.
    We amended section 1355.57 in paragraphs (a) and (b) by replacing a 
reference to ``State'' with ``title IV-E agency,'' by replacing 
references to ``State plan'' with ``title IV-E plan,'' and by adding 
the acronym ``TACWIS'' after ``SACWIS'' to comply with Public Law 110-
351. We also updated the citation for section 474(e) to section 474(c) 
of the Act. These conforming changes in section 1355.57 apply the cost 
allocation conditions for SACWIS/TACWIS administrative costs equally to 
States and Tribal title IV-E agencies.
    We want to note that the Department of the Interior, not HHS, is 
the cognizant agency for cost allocation for Indian Tribes. However, 
ACF still retains authority for guiding the allocation and 
documentation of title IV-E costs pursuant to section 1356.60 and 2 CFR 
225. As such, we issued guidance including ACYF-CB-PI-10-13 (issued on 
November 23, 2010) on how Indian Tribes can develop appropriate cost 
methodologies, including the allocation for TACWIS administrative costs 
and ACYF-CB-PI-09-11 (issued on September 17, 2009) which discusses 
conditions for obtaining Federal financial participation (FFP) by 
Indian Tribes for automated information technology projects including a 
TACWIS.

Appendices to Part 1355

    Section 1355.40 includes references to appendices that identify the 
data elements, definitions, format standards and error standards for 
AFCARS.
    We amended Appendices A through E to replace many of the references 
to ``State'', ``State agency'' or ``title IV-B/IV-E State agency'' with 
``title IV-E agency'' so that the related AFCARS provisions are applied 
equally to States and Indian Tribes operating title IV-E programs, 
pursuant to Public Law 110-351. We further amended the appendices as 
discussed in more detail below.
Appendix A to Part 1355--Foster Care Data Elements
    Appendix A outlines the definitions and instructions for the foster 
care data elements a title IV-E agency is required to collect.
    We added the variant ``/Tribal service area'' to the description of 
the data element ``Is Current Placement Out-of-State?'' and its 
response options in section I, V.B so that where applicable, Indian 
Tribes can report to AFCARS whether a child is placed inside or outside 
of the Tribal service area as defined under sections 471(a)(3) and 
479B(c)(1)(B) of the Act. This is a parallel option to that for a State 
which must indicate whether a child's current placement is intra- or 
interstate. Here we slightly modified this data element because a 
Tribal title IV-E agency must operate the title IV-E program in a 
Tribal service area. Therefore, a Tribal title IV-E agency reporting 
whether a child in its placement and care responsibility was placed in- 
or out-of-State would not provide us with meaningful information in 
this context. The service area of an Indian Tribe may be incongruent 
with a State's geographical lines. Therefore, we developed a similar 
concept that is specific to a Tribal title IV-E agency to meet the 
law's mandate that title IV-E requirements apply equally to Indian 
Tribes pursuant to Public Law 110-351. We also amended Section II, 
Reporting population, to replace the obsolete citation to section 
``422(b)(10)'' with section ``422(b)(8)'' to reflect the existing 
statutory child protections. We believe that because this change is 
technical in nature there is no need to go through the notice and 
comment process to update the regulation.

[[Page 909]]

    In section II, I.A. we amended the instruction by renaming it Title 
IV-E agency and clarifying that an Indian Tribe submitting the report 
will use an abbreviation provided by ACF rather than a U.S. Postal 
Service abbreviation. We had to modify this requirement to address a 
Tribal title IV-E agency because the Tribal service areas do not 
correspond to State geographical areas. Further, we need a separate 
naming convention so that we can distinguish between AFCARS reports 
that come in from States and Indian Tribes. ACF will provide each 
Tribal title IV-E agency with an appropriate abbreviation or code to 
report in this data element outside of the regulatory process. 
Similarly, in section II, I.C. we amend the instruction for the data 
element ``local agency'' to permit a Tribal title IV-E agency to use an 
ACF-provided code other than a Federal Information Processing Standard 
(FIPS) as a representation of the local agency which has responsibility 
for the child's foster care case. The FIPS five digit codes that States 
use for AFCARS standards were originally designed by the National 
Institute of Standards and Technology to correspond to county 
jurisdictional lines, which would not accurately reflect Tribal service 
areas. Again, ACF will provide the Tribal title IV-E agency with an 
appropriate code that represents the local agency with responsibility 
for the child's case.
    In section II, V.A., we amended the description related to the data 
element ``Identify the type of setting in which the child currently 
lives.'' We amended the definitions of ``Foster Family Home 
(Relative)'' and ``Foster Family Home (Non-Relative)'' to remove the 
phrase ``State'' and replace it with ``title IV-E agency'' to indicate 
that a foster family home is one regarded by either a State or Tribal 
title IV-E agency as a foster care living arrangement. We also amended 
the definition of ``Trial Home Visit'' to remove the phrase ``State 
agency supervision'' and replace it with ``title IV-E agency 
supervision'' to indicate that a child that has been in a foster care 
placement under State or Tribal title IV-E agency supervision, but has 
been returned to the principal caretaker for a limited and specified 
period of time, is in a trial home visit placement.
    In section II, V.B., we amended the description related to the data 
element ``Is current placement setting outside of the State?'' We added 
the phrase ``or Tribal service area'' to the element names and its 
response options so that where applicable, Indian Tribes can report to 
AFCARS whether a child is placed inside or outside of the Tribal 
service area as defined under the section 471(a)(3) of the Act. This is 
the same change as the one made earlier in section I, V.B. We made a 
similar change in section II, X.B. related to the ``transfer to another 
agency'' response option for the element ``Reason for discharge.'' In 
that provision we added language to clarify that the title IV-E agency 
is to indicate that the reason for discharge is transfer to another 
agency when the responsibility for the care of the child was awarded to 
another agency in or outside of the State ``or Tribal service area.''
    In section II, XI. we amended the description related to the data 
element ``Source(s) of Federal Support/Assistance for Child.'' We 
amended the definition of ``None of the Above'' to remove the phrase 
``State'' and replace it with ``title IV-E agency'' so that Tribal 
title IV-E agencies can report if a child is receiving support only 
from the Tribal title IV-E agency.
    We consider all of these as conforming changes that apply AFCARS 
requirements to a Tribal title IV-E agency in the same manner as they 
are applied to States.
Appendix B to Part 1355--Adoption Data Elements
    In Appendix B we provide definitions and instructions for the title 
IV-E agency reporting of adoption data elements.
    We amended section I to add the variant ``/Tribal service area'' to 
the description of the responses to the ``Child was placed from'' data 
element described in section I, VII.A so that where applicable, Indian 
Tribes can report to AFCARS whether a child is placed for adoption 
inside or outside of the Tribal service area as defined under the 
section 471(a)(3) of the Act. This is the same change made for the same 
reasons as the one described earlier for the foster care data element 
related to child placement. We amended the question portion of section 
I, III.A to remove the phrase ``State child welfare agency'' and 
replace it with ``title IV-E agency'' to indicate that both State and 
Tribal title IV-E agencies are to report to AFCARS whether the agency 
determined if the child has special needs. We also amended the title of 
section I, VIII by removing the reference to ``Federal/State'' from 
``Financial Adoption Support.'' This change will require both State and 
Tribal title IV-E agencies to report on monthly financial adoption 
subsidies being paid on behalf of a child.
    We also amended section II, to add language to the Reporting 
Population section and in the following paragraph (b), to include 
children in a Tribal title IV-E agency's service area who are adopted 
and whom the agency has had some involvement in the adoption as within 
the scope of the reporting population. This added language parallels 
the scope of the adoption reporting population for a State title IV-E 
agency and therefore implements the requirement that the same title IV-
E requirements apply to Indian Tribes and States per Public Law 110-
351. We further made a technical change to the reporting population 
section to remove a sentence that instructed States to report all 
adoptions which occurred on or after October 1, 1994. We removed this 
instruction because it imposed a requirement related to the initial 
implementation of AFCARS in 1993; now obsolete. We believe that because 
this change is technical in nature there is no need to go through the 
notice and comment process to update the regulation.
    The title IV-E agency must include in the AFCARS adoption file all 
children adopted with the involvement of the title IV-E agency, at the 
time of their adoption, as indicated in the remaining provisions of the 
reporting population section. Finally, in the same paragraph we revise 
language that suggested that financial penalties were a consequence of 
failure to report information on adoptions. As explained elsewhere, 
there are no financial penalties in effect at this time. Therefore, we 
have replaced the language with a provision that explains that a 
finding of noncompliance is the consequence for a title IV-E agency not 
reporting to AFCARS information on all adoptions in the reporting 
population.
    We amended section II, I.A. to provide for a Tribal title IV-E 
agency to submit a two-digit abbreviation provided by ACF as opposed to 
the Postal Service abbreviation used by States. This is the same 
amendment made to the similar element found in the foster care file 
addressed previously. We also amended section II, I.D. related to the 
question ``Did the title IV-E agency have any involvement in this 
adoption?'' The element requires the title IV-E agency to indicate how 
it was involved in the child's adoption for children in the reporting 
population. We amended the question by changing ``State'' to ``title 
IV-E'' and the instruction to include children who are in the placement 
and care responsibility of the title IV-E agency who are adopted ``in 
the service area'' of the Indian Tribe. This parallels State reporting 
of children within their placement and care responsibility who are 
adopted in the State. This is a conforming change that

[[Page 910]]

applies the AFCARS requirements to Indian Tribes in the same manner as 
they are applied to States, as required by Public Law 110-351.
    Section II, IV.B describes the adoption data element ``Was the 
mother married at the time of the child's birth?'' We amended this 
description to define marriage for the purposes of this data element to 
include situations of common law marriage if it is legal in the Indian 
Tribe, in addition to those situations in which it is legal in the 
State. This is a technical change that allows Indian Tribes to report 
common law marriage as with States.
    Section II, VII.A and B describe two data elements related to from 
where a child was placed for adoption and who the child was placed by 
for adoption. In the first element, we amended the response options so 
that references to adoptions that occur ``within State'' and ``another 
State'' include the alternatives ``within Tribal service area'' and 
``another Tribal service area.'' These response options are to be used 
by the Tribal title IV-E agency as appropriate to indicate when 
children are placed for adoption with a family that is considered 
either within the service area or outside of the service area as 
defined in section 471(a)(3) of the Act. As with other conforming 
changes, this allows Indian Tribes to report AFCARS data in a similar 
manner to States. The second element describes a Tribal agency as a 
unit within one of the federally-recognized Indian Tribes or Indian 
Tribal organizations. We amended this response option to be inclusive 
of Tribal consortia to conform to Public Law 110-351 which permits 
Tribal consortia to operate a title IV-E plan.
    In section II, VIII.A we amended the title of the section and the 
data element instruction regarding whether a child is receiving a 
monthly subsidy. We removed reference in the title to ``State/Federal'' 
adoption support and left it broad so it can be inclusive of Tribal 
adoption support. Similarly, we amended the instruction for the 
response option so that Indian Tribes can report whether the child was 
adopted with an adoption assistance agreement under which regular 
``Tribal'' subsidies are paid in addition to Federal or State 
subsidies. This change is conforming in nature as it allows a Tribal 
title IV-E agency to report the same type of information as a State as 
required by Public Law 110-351; whether the Indian Tribe is providing 
adoption subsidies that are supported with their own funds, or with 
Federal funds.
Appendix C to Part 1355--Electronic Data Transmission Format
    In Appendix C, we describe the transmission criteria that must be 
met by each title IV-E agency. We amended Appendix C to replace ``State 
agency'' and ``States'' with ``title IV-E agency'' and ``title IV-E 
agencies.''
    In order to meet the transmission criteria, the regulation offers 
as much flexibility as possible to negotiate a method of transmission 
best suited to the title IV-E agency's environment. This language 
allows ACF and Tribal title IV-E agencies greater flexibility regarding 
electronic data exchange and secure transmission protocols and 
standards for the transmission of AFCARS data files through AFCARS 
Technical Bulletins, rather than regulation. States transmit the AFCARS 
data using a secure data transfer connection between the State's 
information system and the Federal system. While an Indian Tribe may be 
able to submit data electronically using a similar software program, we 
also learned through discussions and consultations with Indian Tribes 
in the Spring 2009 that some Indian Tribes have limited technical 
resources with which to develop or upgrade a data reporting system and 
face technological barriers to submitting data through an electronic 
data exchange, including limited access to software and systems that 
will transmit data. We believe that the inability to transmit data via 
data transfer software should not be a barrier to Tribal operation of a 
title IV-E program, and that this section allow us flexibility 
regarding electronic data exchange. We will work with Tribes and 
prescribe alternative secure transmission protocols and standards for 
the transmission of AFCARS data files through AFCARS Technical 
Bulletins. We also will provide technical assistance to Indian Tribes 
in order to assist in building the capacity of Indian Tribes to submit 
AFCARS data files via a direct file transfer in accordance with 
Appendix C and 1355.40(b).
    We removed the description of four methods for electronic data 
exchange that were in operation at HHS at the time the Appendix was 
issued in 1993 because the methods are now obsolete. We believe that 
because this change is technical in nature there is no need to go 
through the notice and comment process to update the regulation.
    Further, we amended Appendix C to clarify that the four criteria 
for data submissions apply to a Tribal title IV-E agency in the same 
manner they apply to a State title IV-E agency consistent with Public 
Law 110-351, regardless of whether a Tribal title IV-E agency transmits 
data in an electronic or non-electronic file in accordance with 
1355.40(b). The four criteria which remain in the regulation are: (1) 
Records must be written using ASCII standard character format; (2) all 
elements must be comprised of integer (numeric) value(s); (3) all 
records must be a fixed length; and, (4) all State and Tribal title IV-
E agencies must inform the Department, in writing, of the method of 
transfer they intend to use.
Appendix D to Part 1355--Foster Care and Adoption Record Layouts
    Appendix D outlines the detailed record layouts for the AFCARS 
files.
    We amended Appendix D to incorporate the changes previously 
discussed in Appendices A through C that affect the record layout. 
These changes include replacing references to ``State'' with ``Title 
IV-E agency,'' adding language that indicates whether a placement for 
adoption or foster care is in or out of the ``Tribal service area,'' 
and adding language that allows a Tribal title IV-E agency to submit a 
two-digit abbreviation provided by ACF as opposed to the Postal Service 
abbreviation used by States.
Appendix E to Part 1355--Data Standards
    Appendix E outlines the four types of assessments which are 
conducted on the foster care and adoption data submissions to determine 
the completeness and internal consistency of the data.
    We amended Appendix E throughout to replace references to ``State'' 
with ``Title IV-E agency'' and added language that indicates whether a 
placement for adoption or foster care is in or out of the ``Tribal 
service area.''
    In section A.2.a.(1) we amend the instruction for the data element 
``Local Agency'' and the summary file to permit a Tribal title IV-E 
agency to use an ACF-provided code other than a FIPS as a 
representation of the local agency which has responsibility for the 
child's foster care case.
    We also amended Appendix E to remove references to the penalty 
provisions in section 1355.40(e) because they are obsolete as discussed 
previously, and replaced such provisions with language that indicates 
that the results of the assessments determine whether a title IV-E 
agency is in substantial compliance with the AFCARS requirements. We 
believe that because these changes are technical in nature that there 
is no need to go through the notice and comment

[[Page 911]]

process to update the regulation accordingly.
Appendix F to Part 1355
    Appendix F contained a chart that indicated the State allotments of 
incentive funds in 1993. These allotments were the basis for fiscal 
penalties for substantial noncompliance with AFCARS requirements. We 
have deleted Appendix F in its entirety because as explained previously 
the penalty structure in the regulations is no longer in use.

Part 1356--Requirements Applicable to Title IV-E

Section 1356.10--Scope

    This section indicates the scope of the part 1356 rules as 
applicable to the title IV-E programs for foster care, adoption 
assistance and independent living.
    We amended this section to replace ``State'' with ``title IV-E 
agency'' pursuant to Public Law 110-351 to apply the title IV-E program 
equally to States and Indian Tribes directly operating a title IV-E 
program.

Section 1356.20--Title IV-E Plan Document and Submission Requirements

    This section outlines the process for submission and approval of 
title IV-E plans under section 471 of the Act.
    We amended section 1356.20 in paragraphs (a), (b), (c) and (d) (as 
renumbered) by deleting all references to ``State'' and ``State plan'' 
and replacing them with ``title IV-E agency'' and ``title IV-E plan'' 
respectively, to apply the title IV-E program equally to States and 
Indian Tribes directly operating a title IV-E program pursuant to 
Public Law 110-351. We made additional changes to these paragraphs to 
remove obsolete references, conform to Public Law 110-351 or make 
technical corrections as follows. We believe that because these changes 
are technical in nature there is no need to go through the notice and 
comment process to update the regulation accordingly.
    We amended paragraph (a) to specify that Indian Tribes directly 
operating a title IV-E program must have a plan approved by the 
Secretary that meets the requirements of section 479B(c) of the Act, in 
addition to the requirements of 45 CFR part 1355 and section 471(a) of 
the Act. This additional citation to section 479B(c) of the Act is 
necessary since Public Law 110-351 specifies some unique criteria for 
Tribal title IV-E programs only.
    We removed an obsolete reference in paragraph (b) to penalties 
described in 45 CFR 1355.40(e) for AFCARS (see more discussion related 
to this provision in the section by section description of 45 CFR 
1355.40(e)). We believe that because this change is technical in nature 
there is no need to go through the notice and comment process to update 
the regulation.
    We deleted paragraph (c) because it contained references to 
outdated statutory provisions regarding voluntary foster care 
placements. Although these citations have been removed, both State and 
Tribal title IV-E agencies still have the option to provide title IV-E 
for eligible children voluntarily placed into foster care pursuant to 
section 472(a)(2)(A)(i) of the Act. Therefore, this is a technical 
change only. We renumbered paragraphs (d) and (e) as (c) and (d) 
accordingly.
    We made various technical changes to renumbered paragraph (c) to 
clarify the Tribal official who has the authority to sign the title IV-
E plan. States must have the governor or his or her designee review and 
submit the title IV-E plan. We added a parallel provision for Indian 
Tribes to authorize the Tribal leader or his or her designee to review 
and submit the plan in paragraph (c)(2). This is consistent with the 
law's requirement to apply title IV-E requirements equally to States 
and Indian Tribes. We also amended paragraph (c)(4) because it is 
obsolete. ACYF is authorized to approve title IV-E plans consistent 
with our most recent functional statement of organization rather than 
the ACF Regional Administrator (see 71 FR 59117-59123, 10/06/06). We 
believe that because this change is technical in nature there is no 
need to go through the notice and comment process to update the 
regulation. Further, we amended paragraph (c)(8) to apply the 
requirements for effective dates of a new title IV-E plan equally to 
States and Indian Tribes. As such, in the case of an Indian Tribe that 
directly operates a title IV-E program, the effective date for 
expenditures made may not be earlier than the first day on which the 
plan is in operation in the Indian Tribe's entire service area. This is 
a comparable requirement to the one in existence for States: 
Expenditures cannot be made earlier than the first day the plan is in 
operation on a statewide basis.
    One commenter requested that an Indian Tribe that directly operates 
a title IV-E program be able to start a title IV-E program in any 
quarter of a fiscal year. This is allowable if the Indian Tribe submits 
an approvable title IV-E plan to ACF by the end of the calendar 
quarter. Another commenter requested that Indian Tribes be permitted to 
operate the foster care maintenance payments program but not the 
adoption assistance program. The statute at section 471(a)(1) of the 
Act requires the operation of both the foster care and adoption 
programs under title IV-E as mandatory features of the program.

Section 1356.21--Foster Care Maintenance Payments Program 
Implementation Requirements

    This section describes many of the requirements of the foster care 
maintenance payments program which relate to child eligibility.
    We amended section 1356.21 throughout by deleting numerous 
references to ``State agency,'' ``State plan'' and ``State'' replacing 
them with ``title IV-E agency'' or ``title IV-E plan'' respectively 
pursuant to Public Law 110-351 to apply the title IV-E program equally 
to States and Indian Tribes directly operating a title IV-E program. 
The additional changes we made throughout this section are discussed 
below.
Section 1356.21(a)--Statutory and Regulatory Requirements of the 
Federal Foster Care Program
    This paragraph states the requirements that apply in general to the 
title IV-E foster care maintenance payments program. In paragraph (a), 
for a Tribal title IV-E agency, we added a cross reference to section 
479B(c)(1)(C)(ii)(II) of the Act. This statutory provision requires a 
Tribal title IV-E agency to use the 1996 AFDC eligibility standards in 
effect in the State of the child's removal for the purposes of title 
IV-E foster care eligibility. We received comments during consultation 
that requested some form of relief from this requirement, as many noted 
that it would be burdensome to an Indian Tribe to become familiar with 
and apply AFDC eligibility standards from a number of different States. 
Suggestions included that we establish a national AFDC standard, 
streamline the AFDC eligibility determination process, and allow a 
Tribal title IV-E agency to disregard the AFDC income/resource 
standards or specifically exempt Tribal per capita payments from State 
AFDC standards. We are unable to deviate from the explicit statutory 
requirement regarding the process for determining eligibility for AFDC 
(section 479B(c)(1)(C)(ii)(II) of the Act). The Tribal title IV-E 
agency must use the 1996 title IV-A plan standards of the State in 
which the child was residing at the time of removal including those 
related to income and resources, with only those exceptions provided in 
law for deviating from those 1996 standards. Specifically, a title IV-E 
agency must use: The

[[Page 912]]

Federal $10,000 child resources limitation as provided for in section 
472(a)(3)(B) of the Act; the State definition of unemployed parent 
subject to the requirements of 45 CFR 233.101(a)(1) as amended after 
1996; and, the Federal restrictions on benefits to certain types of 
immigrants as provided for in section 401(a) of the Personal 
Responsibility and Work Opportunity Reconciliation Act of 1996 (Pub. L. 
104-193).
Section 1356.21(b)--Reasonable Efforts
    This paragraph outlines the statutory requirement at section 
471(a)(15) of the Act. We made a technical change to this paragraph to 
replace the reference to section 472(a)(1) of the Act with the correct 
citation to section 472(a)(2). At the time that the regulations were 
originally published, the eligibility requirement for a judicial 
determination regarding reasonable efforts was located in section 
472(a)(1) of the Act. The Deficit Reduction Act of 2005 (Pub. L. 109-
171) amended the law and repositioned the reasonable efforts 
requirement at section 472(a)(2) of the Act. This is a conforming 
change only to update the statutory reference. We further amended this 
paragraph to remove the reference to ``State'' in the statement that a 
child's health and safety must be the paramount concern in making 
reasonable efforts. This change applies the requirement equally to 
States and Indian Tribes pursuant to Public Law 110-351.
    A commenter sought clarification on the title IV-E requirements 
related to reasonable efforts versus the ICWA provisions for active 
efforts and requested that we explain who is responsible for 
determining whether the reasonable and active efforts standards are 
met. The title IV-E foster care eligibility requirement in paragraph 
(b)(1) mandates that the title IV-E agency obtain a judicial 
determination to the effect that reasonable efforts were made to 
prevent a child's removal from the home within 60 days of the child's 
removal, or a judicial determination that efforts are not required 
(i.e., making no efforts was reasonable) because one of the conditions 
in section 471(a)(15)(D) of the Act have been met. Additionally, per 
paragraph (b)(2) the title IV-E agency must obtain a judicial 
determination that it has made reasonable efforts to finalize the 
permanency plan in effect within 12 months of the child's entry into 
foster care. Whether the State or Tribal title IV-E agency obtains this 
judicial determination depends on which party has placement and care 
responsibility for the child at the time it is due. ICWA at 25 U.S.C. 
1912(d) requires that any party seeking to effect a foster care 
placement of, or termination of parental rights to, an Indian child 
under State law (emphasis added) shall satisfy the court that active 
efforts have been made to provide remedial services and rehabilitative 
programs designed to prevent the breakup of the Indian family and that 
these efforts have proved unsuccessful. Here the party responsible for 
obtaining an active efforts determination is the one making the 
petition for foster care or other custodial proceedings in a State 
court. The requirements for reasonable efforts and active efforts are 
under separate Federal authorities and are not altered or superseded by 
one another. However, as ICWA is outside ACF's purview, we do not have 
authority to instruct States and Tribes on how to meet its 
requirements.
    There is no particular language required to satisfy the title IV-E 
reasonable efforts judicial requirements, however, the order should be 
clear that the court has determined that reasonable efforts were made 
or were not required (65 FR 4056). Therefore, to the extent that a 
State court makes a finding related to active efforts for ICWA 
purposes, it is possible that such a finding could also satisfy one of 
the title IV-E requirements related to reasonable efforts. However, 
this is a determination that can only be made in light of a specific 
case. ACF regional office staff and technical assistance resources are 
available to work in partnership with a title IV-E agency and its 
courts to help them address processes for meeting judicial 
determination requirements.
Section 1356.21(b)(3)--Circumstances in Which Reasonable Efforts Are 
Not Required To Prevent a Child's Removal From Home or to Reunify the 
Child and Family
    This paragraph describes the circumstances in which reasonable 
efforts to prevent a child's removal or to reunify a child with his or 
her family are not required consistent with section 471(a)(15)(D) of 
the Act. We amended paragraph (b)(3)(i) to specify that if an Indian 
Tribe operates a title IV-E program, Tribal law must define what 
constitutes aggravated circumstances under which reasonable efforts are 
not required to prevent a child's removal from home or reunify the 
child and family. We made this change to align the requirements for 
States and Indian Tribes directly operating a title IV-E plan as 
required by Public Law 110-351. We note here that Tribal law governs 
aggravated circumstances in the case of a Tribal title IV-E plan, but 
not in the situation of a State plan under which a Tribal public agency 
has an title IV-E agreement pursuant to section 472(a)(2)(B)(ii) of the 
Act. In the case of a title IV-E agreement, there is no ``Tribal title 
IV-E agency'' and our existing policy at CWPM Section 9.4 Q/A 
5 prevails. This policy explains that another public agency or 
Indian Tribe operating under a title IV-E agreement is bound by any 
State statute or policy related to the operation of the title IV-E 
program.
    We received a comment requesting clarification on whether a finding 
regarding reasonable efforts to prevent placement is a requirement for 
children removed from their homes by police officers on an emergency 
basis. In all cases in which the State or Tribal title IV-E agency 
seeks to claim title IV-E funds for a child involuntary removed from 
his/her home, there must be a judicial determination that either: (1) 
Reasonable efforts were made to prevent the child's removal from the 
home; or (2) that reasonable efforts to prevent removal are not 
required because one of the conditions in section 1356.21(b)(3) have 
been satisfied (i.e., a parent has subjected the child to aggravated 
circumstances, the parent was convicted of murdering another child, 
etc.). We also note that we have existing policy (CWPM Section 8.3A.9b 
Q/A 4) that explains, ``* * * if there is a judicial 
determination to the effect that efforts to prevent removal or reunify 
the family have not been made due to the immediate danger to the child, 
or that the lack of efforts is appropriate due to the particular 
circumstances of the case, the reasonable efforts requirements in 45 
CFR 1356.21(b)(1) and (2) will be satisfied.''
Section 1356.21(c)--Contrary to the Welfare Determinations
    This paragraph describes the requirement under section 472(a)(2) of 
the Act for a determination to the effect that continuation of 
residence in the home would be contrary to the welfare of the child. We 
made a technical change to this paragraph to replace the reference to 
section 472(a)(1) of the Act with the correct citation to section 
472(a)(2).
Section 1356.21(d)--Documentation of Judicial Determinations
    This paragraph describes the documentation requirements for the 
reasonable efforts and contrary to the welfare judicial determinations.
    We amended paragraph (d)(2) to give effect to section 
479B(c)(1)(C)(ii)(I) of the Act that allows a Tribal title IV-E agency 
to use nunc pro tunc orders and

[[Page 913]]

affidavits in limited circumstances. This amendment allows a Tribal 
title IV-E agency, for the first 12 months in which the title IV-E plan 
is in effect, to use affidavits or nunc pro tunc orders to demonstrate 
that a judicial determination was made regarding reasonable efforts or 
contrary to the welfare of the child. This means that for the first 12 
month period only, if the reasonable efforts or contrary to the welfare 
determination is not included in the requisite orders, we will accept 
an affidavit, or nunc pro tunc order as evidence that it was in fact 
made.
    Several commenters to the FR notice requested that Indian Tribes be 
able to use nunc pro tunc orders to correct existing State/Tribal court 
orders for title IV-E eligibility purposes. We are not clear what was 
envisioned by this comment. The Tribal title IV-E agency may use nunc 
pro tunc orders to correct deficiencies in the record and otherwise 
provide evidence of a judicial determination regarding contrary to the 
welfare or reasonable efforts. We do not anticipate that judges will 
sign a nunc pro tunc order in the absence of evidence that 
substantiates the finding. In other words, we caution the Tribal agency 
from seeking nunc pro tunc orders as merely a paperwork exercise to 
obtain Federal funding. As we explained in a prior rule (65 FR 4056), 
the legislative history of the Federal foster care program indicates 
that the statutory requirement for judicial determinations was created 
as an ``important safeguard(s) against inappropriate agency action.'' 
Further, nunc pro tunc orders are related only to judicial 
determinations and cannot be used to `correct' other aspects of 
eligibility, such as licensure of foster family homes or child care 
institutions or AFDC eligibility.
    A commenter requested that nunc pro tunc orders be allowed for 
cases which are subject to a State/Tribal title IV-E agreement. The 
statutory flexibility exists only for a Tribal title IV-E agency 
through the first 12 months of the title IV-E plan, therefore, States 
may not use nunc pro tunc orders to document a judicial determination 
for cases subject to a title IV-E agreement. Another commenter 
requested that we provide a rationale to explain why nunc pro tunc 
orders are allowed for only a 12 month period at the beginning of the 
Tribal title IV-E plan and requested that we permit such orders beyond 
this period. The use of nunc pro tunc orders is limited in statute to 
12 months and there is no explicit legislative history that clarifies 
why this flexibility was provided to Indian Tribes or why this 
particular timeframe. However, the effect is to provide Indian Tribes 
who are commencing their title IV-E programs with a limited period 
where the Indian Tribe may be held harmless for court orders that ACF 
may otherwise find insufficient for title IV-E funding purposes.
    We amended paragraph (d)(3) to include a Tribal title IV-E agency 
in the provision that explains that court orders that reference State 
(or Tribal) law to substantiate judicial determinations are not 
acceptable documentation that the findings were made. We made this 
change to align the requirements for States and Indian Tribes with a 
title IV-E plan as required by Public Law 110-351.
Section 1356.21(g)--Case Plan Requirements
    This paragraph outlines the provisions for developing case plans 
for each child in foster care. In paragraph (g) we removed the phrase 
``State and local'' that preceded ``staff'' so that the provision 
refers to staff of either a State or Tribal title IV-E agency. The 
paragraph now clarifies that the title IV-E agency must promulgate 
policy materials related to case plans. We also added ``Tribal'' 
adoption exchanges to the list of examples of child specific 
recruitment efforts that should be documented in the case plan for 
children with the goal of adoption or placement in another permanent 
home in paragraph (g)(5). These changes apply the existing case plan 
requirements to a Tribal title IV-E agency on the same basis as a State 
as required by Public Law 110-351.
    A commenter asked during consultation whether Indian Tribes will be 
required to document child specific recruitment efforts for permanency; 
this change clarifies that they will.
    One commenter requested that case plans developed by a Tribal title 
IV-E agency be completed within 90 days rather than the 60 day period 
in existing regulations. The commenter opined that a lack of Tribal 
resources and high caseloads justified the extended timeframe. We are 
following the statutory requirement to implement the program in the 
same manner for all title IV-E agencies and are therefore leaving the 
requirement at 60 days. Further, the requirement to develop case plans 
within 60 days is a longstanding requirement that dates back to the 
original title IV-E regulations issued in 1983. At that time, we 
concluded after public comment that 60 days is a reasonable and 
responsible time period in which to document the child and family's 
assessed needs, set goals, identify needed services and estimate a 
timeframe for permanency (47 FR 30932). Timely engagement of families 
and establishing provisions for the child's safety, well-being, and 
permanency are critical components to the title IV-E foster care 
program.
    The same commenter requested clarification regarding whether a 
Tribal title IV-E agency has the discretion to develop a case plan 
format of their own. This is allowable. There are no Federal 
requirements regarding the format of the case plan and a Tribal title 
IV-E agency may develop their own formats as they see fit. An Indian 
Tribe may want to take advantage of our Regional Office staff or 
technical assistance resource partners to help them develop or adapt a 
case plan format and process that works best for them and is conducive 
to parent engagement and the law's other requirements. The same 
commenter sought clarification on whether Indian Tribes can develop 
case plans jointly with extended family/kin should reunification not be 
likely. The regulatory requirement is for the IV-E agency to develop a 
case plan jointly with the child's parents or guardians. Additional 
persons, such as family, kin, service providers and other persons who 
can serve as supports to the child and family, can be engaged to assist 
in developing the child's case plan as the State or Tribal title IV-E 
agency deems appropriate.
    A commenter requested that regulatory references to children being 
placed in close proximity to their parent's home, as in paragraph 
(g)(3), take into consideration that an Indian child may have 
affiliations with more than one Indian Tribe or be located in a service 
area that spans the geographic jurisdictions of several States. We have 
not made any adjustments to the regulatory text in response to this 
comment. Rather, we note here that the case plan provision to discuss 
how the placement setting will be in close proximity to the home of the 
parents, among other factors, is not a mandate that in all cases the 
child be placed close to the home of his/her parents. Rather, the goal 
is for the agency to outline in the case plan how the agency weighed or 
will weigh close proximity to the child's parents in determining his/
her placement setting(s). Another commenter requested that States 
provide enough information when cases are transferred from State to 
Tribal custody to allow the development of a good case plan. We concur 
that these transfers will require extensive coordination and 
communication between title IV-E agencies and set forth such provisions 
in new section 1356.67.

[[Page 914]]

Section 1356.21(i)--Application of the Requirements for Filing a 
Petition To Terminate Parental Rights at Section 475(E) of the Social 
Security Act
    This paragraph implements the provisions of section 475(E) of the 
Act regarding filing a petition to terminate parental rights (TPR) when 
a child has been abandoned, or has been in foster care for 15 out of 22 
months unless a statutory exception applies.
    We amended paragraph (i)(1)(ii) to include in the parenthetical 
statement that when a child is determined by a court to be abandoned, 
consistent with Tribal law, a petition to file termination of parental 
rights is due within 60 days of that determination. The situation in 
which Tribal law, as opposed to State law, is applicable is when an 
Indian Tribe has a title IV-E plan. Similar to aggravated 
circumstances, if an Indian Tribe is under a title IV-E agreement 
(section 472(a)(2)(B)(ii) of the Act) with a State, then State law on 
abandonment is controlling rather than Tribal law.
    We received a request that we clarify whether customary adoptions 
satisfy the TPR requirement and whether Indian Tribes must follow the 
requirements for TPR. While we recognize that termination of parental 
rights and adoption may not be a part of an Indian Tribe's traditional 
belief system or legal code, there is no statutory authority to provide 
a general exemption for Indian Tribal children from the requirement to 
file a petition for TPR. All title IV-E agencies must file or seek to 
join a petition to terminate parental rights in the case of a child who 
has been in foster care for the specified timeframe or is abandoned. 
However, Federal law provides case by case exceptions to the 
requirement to file a petition for TPR that include: The child is being 
cared for by a relative; the agency has not provided reasonable efforts 
to reunify the family consistent with the case plan; adoption is not 
appropriate for the child; no legal grounds for TPR exist (see section 
475(5)(E)(i) through (iii) of the Act). What constitutes the legal 
grounds for TPR are at the discretion of the Indian Tribe with regard 
to Tribal title IV-E plans. Once a title IV-E agency has filed a TPR 
consistent with this provision, it must concurrently begin to identify, 
recruit, process, and approve a qualified adoptive family for the child 
per section 1356.21(j)(3). Seeking customary adoption of a child is 
equivalent to other forms of legal adoption for these purposes. We 
direct a Tribal title IV-E agency to existing policy in the CWPM at 
Section 8.3C.2e for additional clarifications of the TPR provisions.
Section 1356.21(l)--Living With a Specified Relative
    Paragraph 1356.21(l) describes the required conditions for living 
with a specified relative prior to removal from home to meet the AFDC 
requirements for title IV-E eligibility for foster care maintenance 
payments.
    We amended paragraph (l) regarding living with a specified relative 
in two respects. First, we changed the statutory citation from section 
472(a)(4) of the Act to section 472(a)(3) of the Act as renumbered by 
the enactment of the Deficit Reduction Act of 2005 (Pub. L. 109-171). 
Second, we added a reference to section 479B(c)(1)(C)(ii)(II) of the 
Act to cross reference the AFDC requirements that are applicable to 
Indian Tribes with a title IV-E plan. The terms ``parent'' and 
``specified relative'' used in paragraph (l) are those of the AFDC 
program of the State in which the child was living at the time of 
removal as mandated by the statute. The law does not provide any 
discretion for a Tribal IV-E agency to define these terms. Rather, the 
regulations of the AFDC program at 45 CFR 233.90(c)(1)(v), state that a 
child may be considered to meet the requirement of living with a 
specified relative if his home is with a parent or a person in one of 
the following groups: (1) Any blood relative, including those of half-
blood, and including first cousins, nephews, or nieces, and persons of 
preceding generations as denoted by prefixes of grand, great, or great-
great; (2) Stepfather, stepmother, stepbrother, and stepsister; (3) 
Person who legally adopt a child or his parent as well as the natural 
and other legally adopted children of such persons, and other relatives 
of the adoptive parents in accordance with State law; and, (4) Spouses 
of any persons named in the above groups even after the marriage is 
terminated by death or divorce. Several commenters reasoned that a 
Tribal IV-E agency should have discretion regarding the AFDC-related 
requirements by allowing Indian Tribes to define the scope of a 
relative or otherwise permit ``Indian custodians'' as a substitute for 
parents or specified relatives. To do as the commenters requested 
regarding the AFDC-related requirements of title IV-E would go beyond 
the statute's mandate. All title IV-E agencies must comply with the 
requirements of the AFDC program as in effect on July 16, 1996. In the 
case of a Tribal title IV-E agency, the relevant AFDC program is the 
one in effect on that date in the State the child lived in at the time 
of removal.
    We also received a couple of comments that asked whether we would 
overturn the ``Rosales'' requirement or deem as title IV-E eligible 
those children who resided with different relatives within six months 
of the child's removal from home. The commenter asserted that doing so 
would be more culturally sensitive to Indian Tribes. We understand the 
issue to be whether we will continue to require a title IV-E agency to 
base eligibility on an AFDC-eligible relative with whom a child was 
living during the six months prior to the removal month, but from whom 
he was not removed. The reference to Rosales is to a court case, 
Rosales v. Thompson, 321 F.3d 835 (9th Cir. 2003), that led to the 
clarification in Public Law 109-171 on the specified relative for whom 
AFDC eligibility will be determined. Again, we cannot deviate from the 
statutory requirements which tie title IV-E foster care eligibility to 
whether the child meets the AFDC criteria in the specified relative's 
home from which he or she is removed.
Section 1356.21(n)--Foster Care Goals
    This paragraph describes the statutory requirement related to 
foster care goals that must be established by the title IV-E agency.
    We amended paragraph (n) which requires that foster care goals be 
in law, to add in that such goals can be incorporated into Tribal law 
by statute, code, resolution or administrative rule. This change 
implements the requirement that a Tribal title IV-E agency operate the 
title IV-E program in the same manner as a State as required by Public 
Law 110-351.
Section 1356.21(o)--Notice and Right To Be Heard
    This paragraph describes the requirement for a title IV-E agency to 
provide foster parents, and any pre-adoptive parent or relative 
providing care for the child with timely notice of court-held 
proceedings and a right to be heard.
    We amended paragraph (o) to make it consistent with the Act and 
reflect changes made by Public Law 109-171. First, we changed the title 
of the paragraph from ``Notice and opportunity to be heard'' to 
``Notice and right to be heard'' to reflect the statutory provision. 
Second, we deleted specific reference to the kinds of hearings to which 
the regulation applies to and replaced it with the phrase ``in any 
proceedings held with respect to the child during the time the child is 
in the care of such foster parent, pre-adoptive parent, or relative 
caregiver'' to give effect to the

[[Page 915]]

changes made by Public Law 109-171 to section 475(5)(G) of the Act.
    The regulation now reflects the requirement that the foster 
parents, pre-adoptive parents or relatives providing care for a child 
must, at a minimum, be provided with notice of their right to be heard 
in all permanency hearings, as well as six-month reviews, if held by 
the court (see also the CWPM Section 8.3C.2b Q/A 2).

Section 1356.22--Implementation Requirements for Children Voluntarily 
Placed in Foster Care

    Section 1356.22 describes the requirements a title IV-E agency must 
follow to receive reimbursement on behalf of children placed through 
voluntary placement agreements.
    We amended section 1356.22 in paragraphs (a) and (c) to make 
conforming changes by replacing the term ``State'' or ``State agency'' 
with ``title IV-E agency.'' These changes apply the voluntary placement 
agreement provisions equally to State and Tribal title IV-E agencies 
consistent with Public Law 110-351. To remove and replace an out-of-
date statutory reference with the current citation, we amended 
paragraph (a)(2) by removing the reference to section ``422(b)(10)'' 
and replacing it with ``422(b)(8).'' We believe that because this 
change is technical in nature there is no need to go through the notice 
and comment process to update the regulation. In addition, we amended 
paragraph (c) by inserting the term ``or Tribal'' after ``State'' to 
apply the requirement for a uniform procedure for revoking voluntary 
placement agreements to Indian Tribes with a title IV-E plan.
    During consultation, we received a request to clarify how the 
requirement at section 472(f) of the Act for voluntary placements may 
impact work that an Indian Tribe is doing with an Indian family. 
Sections 472(f) and 472(a)(2)(A)(i) of the Act should be read together 
as providing the statutory authority for a title IV-E agency to claim 
Federal reimbursement on behalf of an eligible child who is placed into 
foster care as a result of a voluntary agreement between the agency and 
the parents/legal guardians of the child. It is an option for the State 
or Tribal title IV-E agency to have a title IV-E plan that includes 
accepting voluntary placement agreements. Typically, voluntary 
agreements are used when the family is in need of short term 
stabilization or experiencing a temporary crisis that renders them 
unable to care for the child (i.e., a single mother has to enter the 
hospital for an acute episode and has no other resources available to 
take care of her child). Judicial intervention--including judicial 
determinations regarding contrary to the welfare and reasonable efforts 
to prevent placement--is not necessary in voluntary placement cases 
unless the title IV-E agency seeks to continue the child's placement 
beyond 180 days. However, a judicial determination that continued 
placement is in the child's best interests is required within the first 
180 days of such placement to continue title IV-E payments beyond that 
period. See CWPM Section 8.3A.13 for more information on voluntary 
placement agreements.

Section 1356.30--Safety Requirements for Foster Care and Adoptive Home 
Providers

    Section 1356.30 describes the required safety checks for 
prospective foster family homes, child care institutions and adoptive 
parents.
    We amended section 1356.30 in paragraphs (a), (b), and (c) to make 
conforming changes by replacing the term ``State'' with ``title IV-E 
agency.'' These changes apply the safety requirements in those 
paragraphs to Indian Tribes with a title IV-E plan in the same manner 
as States as required by Public Law 110-351. In addition, we removed 
the opening clause of paragraph (a), which referred to paragraph (d) 
and removed and reserved paragraph (d) as the Adam Walsh Child 
Protection and Safety Act of 2006 (Pub. L. 109-248) made these 
provisions obsolete. Paragraph (d) contained provisions that were 
relevant if a State opted out of criminal background checks, but Public 
Law 109-248 removed this option. We believe that because this change is 
technical in nature there is no need to go through the notice and 
comment process to update the regulation. Existing law requires a title 
IV-E agency to conform to the criminal background check and child abuse 
registry checks described in section 471(a)(20)(A) through (C) of the 
Act.
    We amended paragraph (e) by changing the term ``opts'' to the past 
tense, and by inserting the phrase ``as permitted prior to the 
amendments made by section 152 of Public Law 109-248'' after ``criminal 
records check requirement.'' This change was necessary to preserve the 
safety requirements for foster family homes or child care institutions 
that were in place under the prior law's provisions.
    Commenters requested clarification regarding procedures that are 
sufficient to fulfill the criminal background check requirements for 
title IV-E. The commenters inquired whether other criminal background 
check requirements for other programs would suffice for title IV-E 
purposes, such as those under the Indian Child Protection and Family 
Violence Prevention Act (Pub. L. 101-630). Under section 471(a)(20) of 
the Act, the title IV-E agency is required to conduct fingerprint-based 
checks for prospective foster parents, adoptive parents and relative 
guardians through the Federal Bureau of Investigation's national crime 
information databases. As such, it is the only procedure that will meet 
title IV-E requirements.

Section 1356.40--Adoption Assistance Program: Administrative 
Requirements To Implement Section 473 of the Act

    Section 1356.40 describes the administrative requirements a title 
IV-E agency must follow for the adoption assistance program.
    We amended section 1356.40 in paragraphs (a), (d), (e), and (f) to 
make conforming changes by replacing the term ``State'' or ``State 
agency'' with ``title IV-E agency. Through these conforming amendments 
we apply the regulatory provisions for the adoption assistance program 
equally to a Tribal title IV-E agency as they are applied to a State 
title IV-E agency. We made the following additional conforming 
amendments in this section.
    We amended paragraph (a) to qualify the provision which requires 
the title IV-E agency to comply with section 473 of the Act as this 
section no longer refers solely to adoption assistance provisions. The 
amendments to the Act made by Public Law 110-351 added the optional 
kinship guardianship assistance requirements in section 473(d) of the 
Act. Therefore, we added the phrase ``the applicable provisions of 
section'' to precede the reference to section 473 of the Act for those 
title IV-E agencies that opt not to implement the kinship guardianship 
assistance program. In addition, we inserted the word ``section'' 
before ``475(3).''
    We amended paragraph (b)(4) by inserting the phrase ``place of 
residence of'' in place of the phrase ``State of which'' in order to 
apply the regulatory provision equally to Indian Tribes that an 
adoption assistance agreement must remain in effect regardless of where 
the adoptive parents reside at any given time.
    We amended paragraph (d) by replacing the term ``from one State to 
another State'' with ``from one place of residence to another'' to 
apply the requirement equally to Indian Tribes to clarify that if an 
adoptive family moves, the family can apply for social services on 
behalf of the adoptive child in the

[[Page 916]]

new ``place of residence'', formerly referred to as ``State of 
residence.'' We are making additional changes to this paragraph by 
removing the obsolete phrase ``However, for agreements entered into on 
or after October 1, 1983'' since agreements entered into prior to this 
date have since expired. Hence, in all existing adoption assistance 
agreements the title IV-E agency that entered into the agreement is 
financially responsible to provide any specified social service even in 
the case that the adoptive family moves. We believe that because this 
change is technical in nature there is no need to go through the notice 
and comment process to update the regulation.
    Commenters requested clarification regarding the requirements for 
placement of a child with an adoptive family outside of the 
jurisdiction of the title IV-E agency. Except for the requirements 
described in this paragraph for ensuring that assistance continues when 
a child moves to another jurisdiction and the overall obligation of the 
title IV-E agency not to delay or deny interjurisdictional placements 
based on that basis alone, there are no Federal title IV-E requirements 
unique to children being placed outside the title IV-E agency's 
jurisdiction. The Tribal title IV-E agency can effectuate an adoption 
across State lines or Tribal service area lines consistent with its own 
authorities and those of the State or Indian Tribe in which the child 
will be placed.
    We made another conforming change to paragraph (e) by inserting the 
term ``or a Tribal service area'' after ``State'' to apply the 
paragraph equally to States and Indian Tribes with title IV-E plans.
    A commenter requested clarification on whether an Indian Tribe can 
participate in the title IV-E adoption program while another requested 
clarification on whether an Indian Tribe must be responsible for 
adoption assistance under a title IV-E directly funded plan. The 
adoption assistance payments program is a mandatory component of an 
approvable title IV-E plan per section 471(a)(1) of the Act and as such 
the Indian Tribe with a title IV-E plan is obligated to provide 
adoption assistance on behalf of all children in the Indian Tribe's 
service area who are eligible for the program, with the exception of 
adopted children already receiving adoption assistance under a title 
IV-E agreement with a State. A Tribal title IV-E agency may claim 
allowable expenditures under the title IV-E adoption assistance program 
at the Tribal Federal Medical Assistance Percentages (FMAP) rate for 
adoption subsidies, 50 percent for administrative costs, and variable 
rates for training expenses per section 474(a) of the Act. A Tribal 
title IV-E agency may contract with outside providers or other public 
agencies to assist in the implementation of the adoption assistance 
program.
    Another commenter requested that we mandate a standard adoption 
assistance subsidy level for all children in the program. This is not a 
request we can accommodate; the statute requires the agency to 
negotiate adoption assistance agreements and the payment with the 
adoptive family based on the needs and circumstances of the child and 
family (section 473(a)(3) of the Act).

Section 1356.41--Nonrecurring Expenses of Adoption

    This section describes the requirements a title IV-E agency must 
follow to claim reimbursement for nonrecurring costs of adoption for 
adoptive parents.
    We amended section 1356.41 throughout to make conforming changes to 
replace the term ``State agency'' with ``title IV-E agency.'' Through 
these conforming amendments, we apply the regulatory provisions for 
nonrecurring expenses of adoption equally to a Tribal title IV-E agency 
as they are applied to a State title IV-E agency as required by Public 
Law 110-351. In addition, we made the following conforming amendments 
to implement this section in the same manner for State and Tribal title 
IV-E agencies or to remove obsolete provisions. We believe that because 
this change is technical in nature that there is no need to go through 
the notice and comment process to update the regulation accordingly.
    We amended paragraph (b) by inserting the term ``Tribal'' after 
``State'' to apply the current regulatory provision equally to Indian 
Tribes that an agreement for nonrecurring expenses of adoption may be a 
separate document or part of an agreement for any type of adoption 
assistance, whether it is State, Tribal, or Federal. We also removed 
the last clause of paragraph (b) and its two subordinate paragraphs 
(b)(1) and (2) because they referred to outdated exceptions to the 
general requirement to have an agreement for nonrecurring costs in 
place prior to the final decree of adoption.
    We amended paragraph (d) to make a conforming change by removing 
the term ``State and local'' before ``laws'' to indicate that a child's 
adoptive placement must be made in accordance with all applicable laws, 
whether they be State, Tribal, or local laws. We removed the last 
clause of paragraph (e)(1) and removed paragraph (e)(2) in its entirety 
because these provisions referred to actions a State title IV-E agency 
had to take after the effective date of the initial rule related to 
nonrecurring adoption expenses which was issued in 1988 (53 FR 50220). 
We renumbered paragraph (e)(3) as paragraph (e)(2), and removed most of 
the text because it also referred to obsolete provisions that were to 
occur pursuant to the 1988 rule. We retained the text that required 
that the agreement for the payment of nonrecurring expenses must be 
signed at the time of or prior to the final decree of adoption and that 
adoptive families must file claims for nonrecurring expenses with the 
title IV-E agency within two years of the date of the final decree of 
adoption. We believe that because these changes are technical in nature 
there is no need to go through the notice and comment process to update 
the regulation.
    In paragraph (f)(2), we insert the term ``Tribal'' after 
``consistent with State'' to apply existing State nonrecurring payment 
requirements equally to a Tribal title IV-E agency. We also inserted 
the term ``or Tribal service area'' after ``within the State,'' to 
allow Indian Tribes the same ability as States to set a lower maximum 
amount for nonrecurring adoption expenses in a special needs adoption 
as permitted by the paragraph.
    In paragraph (h) we replace the term ``interstate placement'' with 
``a placement outside the State or Tribal service area'' to apply 
equally to State and Tribal title IV-E agencies the requirement that 
the title IV-E agency that enters into an adoption assistance agreement 
is responsible for the reimbursement of nonrecurring adoption expenses 
even if the child is placed in an area outside of the State or Tribal 
service area. We also make conforming changes to the language so that 
the reference to ``State subsidy program'' is replaced with ``State or 
Tribal subsidy program,'' by inserting the term ``Tribal'' after 
``Federal'' and replacing the term ``the State in which'' with ``the 
title IV-E agency in the jurisdiction in which.'' Consequently, if an 
adopted child who meets the requirements of section 473(c) is placed in 
a different jurisdiction without an adoption assistance agreement being 
entered into on his/her behalf, then the title IV-E agency in the 
jurisdiction in which the final adoption decree is issued is 
responsible for reimbursement of the nonrecurring expenses.
    We made a conforming change to paragraph (i) in the definition of 
``nonrecurring adoption expenses'' to exclude any expenses that are 
prohibited by applicable laws, whether

[[Page 917]]

it is State, Tribal, or otherwise. Finally, we removed the first 
sentence in paragraph (j) which referred to an obsolete requirement for 
a State agency to enact legislation following the publication of the 
1988 rule (53 FR 50220). We believe that because this change is 
technical in nature there is no need to go through the notice and 
comment process to update the regulation.

Section 1356.50--Withholding of Funds for Non-Compliance With the 
Approved Title IV-E Plan

    Section 1356.50 describes the conditions for compliance with the 
title IV-E plan and directs the title IV-E agency to the applicable 
appeal procedures in section 1355.39 for challenges of an ACF 
determination of non-conformity with the title IV-E plan.
    We amended the title of section 1356.50 and paragraphs (a) and (b) 
to make conforming changes by removing the term ``State'' or replacing 
it with ``title IV-E agency'' in appropriate places to apply the 
provisions for withholding funds for noncompliance equally to States 
and Indian Tribes with title IV-E plans pursuant to Public Law 110-351.

Section 1356.60--Fiscal Requirements (Title IV-E)

    This section describes the fiscal requirements and available FFP 
for title IV-E costs. We amended the section throughout to replace 
references to ``State plan'' with ``title IV-E plan'' and ``States'' or 
``State and local'' with ``title IV-E agencies'' so that the section 
applies equally to States and Tribes with title IV-E plans consistent 
with Public Law 110-351. In addition, we made the following conforming 
amendments.
Section 1356.60(a)--Federal Matching Funds for Foster Care Maintenance 
and Adoption Assistance Payments
    We amended paragraph (a)(1) to remove an obsolete effective date, 
which noted that FFP was available to States as of October 1, 1980. To 
be inclusive of a Tribal title IV-E agency that has the opportunity to 
operate a title IV-E plan and receive FFP as of October 1, 2009, we 
deleted the reference to the obsolete 1980 date. In paragraph 
(a)(1)(i), we removed the obsolete reference to section 102(d) of the 
Adoption Assistance and Child Welfare Act of 1980 (Pub. L. 96-272). 
This citation was to provisions related to the original implementation 
of voluntary placement agreements in a State agency regarding children 
removed from their home prior to FY 1980 that are no longer relevant. 
As we explained earlier, both State and Tribal IV-E agencies have the 
ability to receive FFP for voluntary placement agreements that meet the 
requirements of the Act and 45 CFR 1356.22. We believe that because 
these changes are technical in nature there is no need to go through 
the notice and comment process to update the regulation.
    We reference section 479B of the Act in paragraphs (a)(1)(i), 
(a)(1)(ii) and (a)(2) to make clear that FFP is authorized pursuant to 
Tribal title IV-E plans in addition to State title IV-E plans. In 
paragraph (a)(1)(ii) we made an additional change to provide for the 
applicable parts of section 473 of the Act to payments for adoption 
assistance. Adding the language ``applicable provisions of'' section 
473 of the Act is intended to clarify that the provisions in section 
473(d) of the Act that relate only to the kinship guardianship 
assistance program would not apply to receipt of FFP for the adoption 
assistance program. We also amended paragraph (a)(2) to add a reference 
to sections 474(a)(1) and (2) of the Act, which specifically authorize 
FFP at the Tribal FMAP rates to Indian Tribes with title IV-E plans and 
States with title IV-E agreements with Indian Tribes. These changes 
bring the regulations on fiscal requirements in line with the changes 
made by Public Law 110-351 to authorize direct payments to Indian 
Tribes with title IV-E plans.
    Several commenters asked questions about the fiscal aspects of 
title IV-E that made it clear to us that we need to provide more 
clarity about this aspect of the program. Title IV-E funding is 
unavailable for activities outside of those required by title IV-E, 
including child abuse prevention or investigatory activities, social 
services, medical or education expenses. A title IV-E agency submits 
quarterly claims for Federal reimbursement and may send us adjusted 
claims, upwards or downwards, for up to two years after the expense is 
incurred. ACF reimburses a title IV-E agency for these expenses 
quarterly based on title IV-E agency reports provided to us. Title IV-E 
funding cannot be advanced to a title IV-E agency. In the absence of 
any agreement to which the State and Indian Tribe may be party which 
may include provisions for payment of funds, States are not obligated 
to provide title IV-E funding or matching funds to Indian Tribes who 
take placement and care responsibility for children who were once in a 
State's placement and care responsibility.
    Under title IV-E, FFP is available at the FMAP rate per sections 
1905(b), 474(a)(1) and (2) and 479B(d) of the Act to a title IV-E 
agency with an approved title IV-E plan for allowable costs in 
expenditures for foster care maintenance payments and adoption 
assistance payments. There is a unique FMAP rate established for a 
Tribal title IV-E agency that is at least as high as the FMAP rate of 
any State in which the Indian Tribe is located.
    Additional FFP is available for administrative expenses at the 50 
percent rate and training expenses at rates ranging from 55 to 75 
percent, as indicated in section 474(a)(3) of the Act and section 
203(b) of Public Law 110-351. The title IV-E agency may receive Federal 
reimbursement at the 75 percent rate for short or long term training of 
persons who are employed or preparing for employment with the title IV-
E agency and are working on title IV-E activities under certain 
conditions. Such training can include educational programs that will 
lead to a baccalaureate or graduate degree in social work or a related 
field. FFP also is available at 75 percent for the title IV-E agency to 
provide short-term training of current or prospective foster or 
adoptive parents, the members of the staff of licensed or approved 
child care institutions providing care to title IV-E eligible foster 
and adopted children in ways that increase their ability to provide 
support and assistance to such children.
    All title IV-E agencies must follow the provisions of section 
474(a)(3)(A) and (B) of the Act regarding training expenses. We are not 
making changes in the regulation regarding the new groups of trainees 
for which training expenses may be claimed by a title IV-E agency as 
amended by Public Law 110-351 in this Interim Final Rule as they are 
not related to the Tribal provisions of section 301 of Public Law 110-
351. However, section 474(a)(3)(B) of the Act allows FFP to be claimed 
at increasing rates, rising from 55 percent in FY 2009 to 75 percent in 
FY 2013, for short-term training of certain persons. These groups 
include title IV-E agency-licensed or approved child welfare agencies 
providing services to children receiving assistance under title IV-E, 
members of the staff of abuse and neglect courts, agency attorneys, 
attorneys representing children or parents, guardians ad litem, or 
other court-appointed special advocates representing children in 
proceedings of such courts. The training must be provided for the 
purpose of increasing such persons' ability to provide support and 
assistance to title IV-E foster and adopted children whether incurred 
directly by the IV-E agency or by contract. All training activities and 
costs

[[Page 918]]

funded under title IV-E must be included in the title IV-E agency's 
training plan for title IV-B. Paragraph (b)(3) cross-references to 45 
CFR 235.63 through 235.66(a) and therefore requires that all short and 
long-term training allocated to title IV-E must be provided in 
accordance with these regulations as well.
    Some commenters wondered if workers receiving title IV-E 
educational stipends can fulfill the agency work requirement with the 
Tribal title IV-E agency and we note that this is permissible. As 
mentioned above, 45 CFR 1356.60(b) cross-references to 45 CFR 235.63 
through 235.66(a). These regulations require that persons preparing for 
employment whose education costs are being paid for by a title IV-E 
agency must commit to work for the title IV-E agency for a period of 
time at least equal to the period for which financial assistance is 
provided to them if the title IV-E agency makes them an offer of 
employment within two months of completion of the training. One 
commenter wanted to know if Tribal colleges are recognized as 
qualifying schools while another requested that Tribal stipend 
recipients be able to use the stipend at the college of their choice. 
The regulations at 45 CFR 235.63(b)(4) state that persons preparing for 
employment may pursue education at an institution approved by the title 
IV-E agency, which can include Tribal colleges at the option of the 
title IV-E agency.
Section 1356.60(e)--Federal Matching Funds for SACWIS/TACWIS
    We amended the title to section 1356.60(e) to include the acronym 
``TACWIS'' (Tribal automated child welfare information systems). We 
also amended paragraph (e) to make a conforming change by adding a 
reference to a ``Tribal'' automated information system to accompany the 
reference to a ``Statewide'' automated system.

Section 1356.67--Title IV-E State Procedures for the Transfer of 
Placement and Care Responsibility of a Child to a Tribal Title IV-E 
Agency

    This section provides procedures for the transfer of placement and 
care responsibility of a child from a State title IV-E agency to an 
Indian Tribe with a title IV-E agreement or an approved title IV-E plan 
consistent with section 301(e)(1) of Public Law 110-351. The law 
mandates that we regulate these procedures should an Indian Tribe wish 
to take placement and care responsibility in these situations.
    Paragraph (a) describes the scope of the transfer procedures. The 
procedures apply to each State with a title IV-E plan approved under 
section 471 and 479B of the Act or an Indian Tribe with a title IV-E 
agreement. A State must establish procedures, in consultation with 
Indian Tribes, for the transfer of responsibility for the placement and 
care of a child under a State title IV-E plan to a Tribal title IV-E 
agency or an Indian Tribe with a title IV-E agreement in a way that 
does not affect a child's eligibility, receipt of services, or payment 
under title IV-E or the Medicaid program operated under title XIX. The 
procedures will apply regardless of whether there is a federally-
recognized Indian Tribe within the State's geographic boundaries or how 
the State exercises jurisdiction over Indian country pursuant to Public 
Law 83-280 (also known as Pub. L. 280). The procedures also will apply 
regardless of whether the State has within its geographic borders an 
Indian Tribe with an approved title IV-E plan or a title IV-E 
agreement. We chose broad applicability for these procedures as Public 
Law 110-351 seeks to ensure that an Indian child involved in a transfer 
retains his or her eligibility for title IV-E and Medicaid. We believe 
the ideal way to give this provision effect is to require any State 
with the potential to have an Indian child in its foster care system to 
have such procedures. However, we are affording States some flexibility 
to determine the most appropriate procedures that will ensure this 
protection in accordance with minimum elements that are described 
further below. A State must consult with Indian Tribes in developing 
the procedures so that the procedures are responsive to Indian Tribes 
who have a need for information on transfer procedures.
    In paragraph (b), we establish the minimum elements for a State's 
procedures for transferring children to an Indian Tribe with a title 
IV-E agreement or a title IV-E plan. In paragraph (b)(1), we require 
the State title IV-E agency to determine, if this determination is not 
already completed, the child's eligibility under section 472 or 473 of 
the Act at the time of the transfer of placement and care 
responsibility of a child to a Tribal title IV-E agency or Indian Tribe 
with a title IV-E agreement. We believe that such a provision will 
ensure that the child's eligibility for title IV-E and Medicaid is 
clear at the time of the child's transfer to an Indian Tribe. This is 
most useful to the Indian Tribe or Tribal title IV-E agency in 
determining the child's AFDC status based on the State of removal as 
required by section 472 or 473 of the Act.
    In paragraph (b)(2), we require the State title IV-E agency to 
provide essential documents and information necessary to continue a 
child's eligibility under title IV-E and Medicaid to the Tribal title 
IV-E agency or Indian Tribe with a title IV-E agreement. In the 
subparagraphs we specify the types of documents that must be provided. 
In paragraph (b)(2)(i), we require that the State provide copies of the 
judicial determinations regarding contrary to the welfare and 
reasonable efforts. These are essential because they are threshold 
documents used to establish a child's eligibility for title IV-E. It is 
important that States provide all judicial determinations regarding 
contrary to the welfare and reasonable efforts, and not just the most 
recent ones, so that the Indian Tribe has the ability to reconstruct 
eligibility as necessary or substantiate claims. In paragraph 
(b)(2)(ii), we require the State to provide any other documentation 
that relates to the child's eligibility for title IV-E. We do not 
specify in regulation all of the possible kinds of documentation that 
could fall into this category. For example, the documentation may 
include AFDC determinations or worksheets, findings related to whether 
the State considered the child to meet the special needs criteria 
pursuant to section 473(c) of the Act, or documentation that an 18-
year-old is making progress towards completing secondary school. As 
part of this process, we strongly encourage the State title IV-E agency 
to consult with the State Medicaid agency to ensure a child's 
continuous eligibility under title XIX.
    In paragraph (b)(2)(iii) we require the State to provide an Indian 
Tribe with any other information that relates to the child's potential 
or actual eligibility for other Federal benefits. Again, we do not 
specify in regulations specific documentation, but examples may include 
documentation of a child's eligibility for Supplemental Security Income 
(SSI), or indications that an application for SSI is on file. In 
addition, we encourage the State title IV-E agency to coordinate with 
the State title IV-D agency to address any existing child support case 
or assignment of rights to the State agency as it relates to the 
transfer of placement and care of the child to an Indian Tribe.
    In paragraph (b)(2)(iv), we require the State to provide the 
child's case plan to the Indian Tribe, including the health and 
educational records that are required elements of those plans

[[Page 919]]

consistent with section 475(1)(C) of the Act. The case plan contains 
critical information for determining the child's existing safety, 
permanency and well-being status, as well as the agency's future plans 
for the child. Further, the case plan also may contain information that 
supports factors of eligibility for the title IV-E programs or other 
Federal benefits, such as efforts the agency made to finalize 
permanency. Therefore, we believe it a critical item to transfer to the 
Indian Tribe. We note here that the State agency is not required to 
turn over the entire case record, although States may choose to do so 
as it may be useful for an Indian Tribe who is taking placement and 
care responsibility of a child.
    Finally, in paragraph (b)(2)(v), we require a State to provide 
information and documentation related to the child's placement 
settings, including a copy of the most recent provider's license or 
approval. A transfer of a child to the Indian Tribe does not 
necessitate that the child move to a different provider, so the Indian 
Tribe will need information on whether the foster family home or child 
care institution the child is living in is licensed or approved for 
title IV-E eligibility purposes. Further, the Indian Tribe may need to 
contact past providers to gather information on the child's needs. 
Further, we encourage States and Indian Tribes to discuss during 
consultation the formats in which this information can be provided and/
or accepted, i.e., through hardcopy, electronic transmissions, or by 
allowing Indian Tribes access to State child welfare case management 
systems.
    One commenter requested that ``responsibility for a child'' be 
clearly defined in the regulation. To be eligible for FFP, section 
472(a)(2)(B) of the Act requires that the responsibility for placement 
and care of the child is with the title IV-E agency administering the 
plan approved under section 471(a) of the Act, or any other public 
agency with whom the title IV-E agency administering or supervising the 
administration of the plan approved under section 471(a) of the Act has 
made an agreement which is in effect. We define the phrase ``placement 
and care responsibility'' in the CWPM Section 8.3A.12 at Q/A 
4. Placement and care responsibility means that the title IV-E 
agency is legally accountable for the day-to-day care and protection of 
the child who has come into foster care through either a court order or 
a voluntary placement agreement. Placement and care responsibility 
allows the title IV-E agency to make placement decisions about the 
child, such as where the child is placed and the type of placement most 
appropriate for the child. It also ensures that the title IV-E agency 
provides the child with the mandated statutory and regulatory 
protections, including case plans, administrative reviews, permanency 
hearings, and updated health and education records.
    We received many comments that provided recommendations and 
requested clarification on how a transfer procedure would be developed, 
the type of information that the State title IV-E agency should provide 
the Indian Tribe, ensuring continued Medicaid eligibility, and concerns 
about the confidentiality of information. For example, one Indian Tribe 
requested clarification regarding how we will develop a procedure for 
transfer, whether Indian Tribes would be included in the discussion, 
and if so, at what level. To maintain flexibility and develop a 
procedure that meets both the needs of the State and Indian Tribes, we 
specified in paragraph (b) the requirements for States, and that States 
are required to consult with Indian Tribes on such procedures.
    Several commenters recommend that a State title IV-E agency make 
available all case-specific information requested by an Indian Tribe 
for the purpose of maintaining a child's title IV-E and Medicaid 
eligibility, in both electronic and paper format. Several commenters 
provide specific suggestions of the type of documents needed to 
continue a child's eligibility. We do not believe it is necessary to 
mandate that the State make available all information requested by an 
Indian Tribe, however, we have outlined in paragraph (b)(2) the minimum 
information that must be provided when a State title IV-E agency 
transfers placement and care responsibility of a child to an Indian 
Tribe. The list is not exhaustive, and the State title IV-E agency may 
provide additional information consistent with State and Federal laws. 
We also agree that the State title IV-E agency should provide the 
information to the Tribal title IV-E agency in a format most helpful to 
the Tribal title IV-E agency. However, we recognize that some Indian 
Tribes may have limited technical resources with which to develop or 
upgrade a data reporting system and technological barriers to receiving 
information in an electronic format. Therefore, to maintain 
flexibility, we did not mandate a specific format as long as the 
information shared accomplishes the goal of ensuring continued 
eligibility.
    Several other commenters recommended that our regulations enhance 
ICWA guidelines to provide for an adequate transfer process because 
there is currently no uniform application of ICWA by States. The 
commenters requested clarification about what to do when a State court 
does not agree to transfer a child and requested that we develop an 
enforcement mechanism for States that do not comply with ICWA. We do 
not have authority to regulate changes directly to ICWA, provide 
additional guidance for implementation of ICWA or intervene in court 
actions regarding transferring jurisdiction of a child. Rather, ICWA 
provisions set forth procedures for the notification to Indian Tribes 
of Indian children in State custody and the assumption of jurisdiction 
over court procedures by Indian Tribes for such children. The Bureau of 
Indian Affairs, Department of Interior, issued guidelines regarding 
such transfers in ``Guidelines for State Courts-Indian Child Custody 
Proceedings'' (see 44 FR 67584, November 26, 1979). Such provisions 
remain in effect and are not affected by ACF's approval of a title IV-E 
plan for an Indian Tribe or the effectuation of a title IV-E agreement 
between a State and an Indian Tribe.
    We received a number of comments that requested clarification on 
procedures for continuing Medicaid eligibility. Several commenters 
requested clarification as to whether we can encourage States to 
continue Medicaid services without interruption, and whether the 
child's Medicaid card can remain with the child until the State child 
welfare case is closed. The Centers for Medicare and Medicaid Services 
is the Federal agency with authority to regulate State actions with 
regard to Medicaid programs under title XIX consistent with the law 
rather than ACF. However, since a child who is receiving title IV-E 
foster care or who is subject to a title IV-E adoption assistance 
agreement consistent with sections 472(h)(1) and 473(b)(1) and (3) of 
the Act, is categorically eligible for Medicaid, the child's title XIX 
eligibility will continue as long as the child is receiving title IV-E 
foster care or title IV-E adoption assistance payments. If a title IV-E 
eligible child is moving from one State's geographic boundaries to 
another in the course of a transfer of placement and care 
responsibility to an Indian Tribe, the child is eligible for Medicaid 
in the State where the child lives, as specified in Medicaid 
regulations at 42 CFR 435.403(g). Again, we encourage State title IV-E 
agencies to coordinate with State Medicaid agencies to ensure 
continuous title XIX enrollment when a child eligible under

[[Page 920]]

title IV-E is transferred to the placement and care of an Indian Tribe.
    Several commenters cited confidentiality concerns and requested 
clarification regarding what information a State may share with a 
Tribal title IV-E agency. The State title IV-E agency may share 
information with the Tribal title IV-E agency pursuant to existing law 
and this regulation for the purpose of administering a Tribal title IV-
E plan as necessary to establish eligibility, determine the amount of 
assistance and provide services. This is because title IV-E of the Act 
requires that the title IV-E agency provide safeguards to restrict the 
use and/or disclosure of information regarding children receiving title 
IV-E consistent with section 471(a)(8) of the Act. In addition, in 
accordance with 45 CFR 1355.30(p)(3), records maintained under title 
IV-E are subject to the confidentiality provisions in 45 CFR 205.50. 
Among other things, 45 CFR 205.50 restricts the release or use of 
information concerning individuals receiving financial assistance under 
the title IV-E program to certain persons or agencies that require the 
information for specified purposes. One of those purposes identified in 
the law is the administration of the plan or program under title IV-B, 
IV-E, or XIX, or the SSI program established by title XVI when 
necessary to establish eligibility, determine the amount of assistance, 
and provide services for applicants and recipients. Section 8.4E of the 
CWPM provides additional information regarding confidentiality 
requirements of title IV-E.
    One Indian Tribe recommended that the regulation pay special 
attention to the multi-jurisdictional aspects of transferring children 
from State custody to the Tribal title IV-E agency. Several commenters 
requested that we include regulatory procedures for inter-Tribal 
transfers of title IV-E eligible children. We are not regulating such 
inter-Tribal procedures for two reasons. First, the statutory language 
in Section 301(e) of Public Law 110-351 which requires us to issue 
interim final regulations is limited in scope and provides us authority 
to regulate only transfers from a State to an Indian Tribe. Second, we 
do not currently regulate transfer procedures between State governments 
for placement and care responsibility, and therefore, will not impose 
such a regulation between Tribal title IV-E agencies.
    One nonprofit group recommended that the procedure developed in 
regulation recognize that Indian Tribes cannot become members of 
Interstate Compact for the Placement of Children (ICPC), and should not 
require them to comply with guidelines that they cannot meet. The ICPC 
is a State compact and thus we do not have the authority require a 
Tribal title IV-E agency to comply with the ICPC.

Section 1356.68--Tribal Title IV-E Agency Requirements for In-Kind 
Administrative and Training Contributions From Third-Party Sources

    Section 1356.68 regulates title IV-E administrative and training 
cost sharing requirements for Indian Tribes with an approved title IV-E 
plan as they pertain to in-kind contributions from third-party sources.
Section 1356.68(a)--Option To Claim In-Kind Expenditures From Third-
Party Sources for Non-Federal Share of Administrative and Training 
Costs
    In paragraph (a), we establish that a Tribal title IV-E agency may 
claim allowable in-kind expenditures from third-party sources for the 
purpose of determining the non-Federal share of administrative and 
training costs under sections 474(a)(3)(A) through (E) of the Act. This 
authority is specifically granted to Tribal title IV-E agencies in 
section 479B(c)(1)(D) of the Act and is not available to States, or by 
extension, those Indian Tribes with a title IV-E agreement. Please note 
that by cross-reference in 45 CFR 1355.30, existing Departmental 
regulations including 45 CFR 92.24 which addresses cost-sharing, apply 
to Indian Tribes who choose to use in-kind contributions from third-
parties. Section 45 CFR 1356.60(b) provides examples of allowable 
training costs applicable to the title IV-E program and 45 CFR 
1356.60(c)(2) provides specific examples of allowable administrative 
costs necessary for the administration of the title IV-E program. 
Additional information regarding allowable administrative costs for 
foster care and adoption assistance may be found in the CWPM at Section 
8.1.
Section 1356.68(b)--In-Kind Expenditures for Fiscal Years 2010 and 2011
    In paragraph (b), we apply the percentages of allowable in-kind 
expenditures from third-party sources that Indian Tribes can claim for 
FY 2010 and FY 2011, as required by section 479(B)(c)(1)(D)(ii) and 
(iii) of the Act. We explain the percentages of allowable in-kind 
expenditures from third-party sources as a portion of the total Tribal 
title IV-E agency expenditures for each FY quarter. We believe this 
clarifies the statutory references to ``fiscal year quarter'' 
expenditures and ``non-Federal shares'' because the method used to 
calculate the non-Federal share begins by determining the Tribal title 
IV-E agency's total expenditures. Once the total expenditures are 
provided, we determine the portion of total expenditures that the 
Indian Tribe may claim using in-kind contributions from third-party 
sources to meet the Tribal title IV-E agency's share of costs and the 
remaining Federal reimbursement.
    In paragraph (b)(1), we specify that a Tribal title IV-E agency may 
claim in-kind expenditures from third-party sources of up to 25 percent 
of the total administrative funds expended during a fiscal quarter 
pursuant to section 474(a)(3)(C), (D) or (E) of the Act. This 
percentage limitation for FYs 2010 and 2011 is required by statute. We 
plan to address the requirement in section 479B(c)(1)(D)(ii)(1) of the 
Act for a Tribal title IV-E agency, for FYs 2010 and 2011, to list the 
sources of in-kind contributions in the title IV-E plans in upcoming 
guidance on the Tribal title IV-E claiming process.
    In paragraph (b)(2), we specify that a Tribal title IV-E agency may 
claim in-kind expenditures from third-party sources of up to 12 percent 
of the total training funds expended during a fiscal quarter pursuant 
to section 474(a)(3)(A) and (B) of the Act. These percentage 
limitations for FYs 2010 and 2011 are required by statute. We also 
specify the allowable sources of in-kind contributions as mandated in 
section 479B(c)(1)(D) of the Act.
Section 1356.68(c)--In-Kind Expenditures for Fiscal Years 2012 and 
Thereafter
    In paragraph (c), we specify that allowable in-kind expenditures 
from third-party sources can be used for the Indian Tribe's entire non-
Federal share of administrative and training expenditures for FY 2012 
and thereafter. Section 301(e)(2) of Public Law 110-351 and sections 
479B(C)(1)(D)(iii) through (iv) of the Act require ACF to regulate, in 
consultation with Indian Tribes, the percentage of in-kind expenditures 
from third-party sources for Tribal title IV-E agencies beginning in FY 
2012, or the opportunity to claim such contributions expires.
    During consultation, most commenters encouraged us to interpret 
this provision as broadly as possible to allow Tribal title IV-E 
agencies the financial flexibility needed to operate a title IV-E 
program. We found these arguments compelling. Therefore, in FY 2012 and 
thereafter, we allow a Tribal title IV-E agency to claim the entire 
non-Federal share (Tribal match) of administration and training from 
in-

[[Page 921]]

kind expenditures from third-party sources. We did not follow the 
structure set out in section 479B(c)(1)(D)(iii)(II) designed to address 
FYs 2012-2014 differently than FY 2015 and beyond in order to provide 
for a transition period for ``Early Approved Tribes.'' Because we are 
providing the maximum amount of flexibility for Indian Tribes beginning 
in FY 2012, no transition period is needed. We believe that this broad 
and flexible interpretation is justified by the unique circumstances of 
Indian Tribes and in recognition of the partnerships they may seek from 
third-parties to implement their title IV-E program.
    At the same time, we recognize that even though we are allowing the 
total portion of the Indian Tribe's expenditures for training and 
administration to be in-kind contributions from third-party sources, 
there may be both practical and other regulatory barriers to a Tribal 
title IV-E agency reaching their total required non-Federal share from 
such contributions. In particular, it may be difficult given the nature 
of administrative costs to have an Indian Tribe's entire portion of 
expenditures as in-kind contributions from third-party sources. 
Further, Tribal title IV-E agencies must ensure that all of their 
claims, both in-kind and cash outlay, meet the applicable requirements 
of 45 CFR part 92 as well as the applicable cost allocation 
methodology.
    Paragraph (c)(1) allows a Tribal title IV-E agency to claim 
allowable in-kind expenditures from third-party sources for up to 50 
percent of its total administrative expenditures for FY 2012 and 
thereafter. This means that a Tribal title IV-E agency may claim in-
kind expenditures from third-party sources for all of the required 50 
percent match for administrative funds pursuant to section 
474(a)(3)(C), (D) or (E) of the Act.
    Paragraph (c)(2) allows a Tribal title IV-E agency to claim 
allowable in-kind expenditures from third-party sources for up to all 
of its required portion of training funds pursuant to section 
474(a)(3)(A) and (B) of the Act. During each quarter of fiscal year 
2012, a Tribal title IV-E agency may claim up to 25 or 30 percent as 
applicable of the total training funds expended depending on the 
trainee group from allowable in-kind contributions from third-party 
sources depending on the trainee group. The 25 percent match is for the 
short-term training of current or prospective foster or adoptive 
parents and the members of the staff of State/Tribal licensed or State/
Tribal approved child care institutions pursuant to section 
474(a)(3)(B) of the Act. The 30 percent match is for short-term 
training for relative guardians, staff of abuse and neglect courts, 
agency attorneys, attorneys representing children or parents, guardians 
ad litem or other court-appointed special advocates representing 
children in proceedings of such courts. This difference in match rates 
is due to the phase-in provisions for the latter trainee groups as 
required by section 203(b) of Public Law 110-351.
    After FY 2012, a Tribal title IV-E agency may claim 25 percent of 
allowable in-kind expenditures from the total training expenditures 
from third-party sources provided in section 474(a)(3)(A) and (B) of 
the Act. This is because after FY 2012, title IV-E agencies are only 
required to provide a 25 percent match of funds expended on the total 
training for all categories of training listed in section 474(a)(3)(B) 
of the Act.
    In paragraph (c)(3), we permit Tribal title IV-E agencies to claim 
in-kind training expenditures for training funds from any allowable 
third-party source during or after FY 2012. Prior to FY 2012, the Act 
restricts third-party sources for training expenditures to a specified 
list provided in statute; therefore this regulatory provision provides 
additional flexibility in later years. We believe that allowing the 
Tribal title IV-E agency to use in-kind contributions from any source 
otherwise allowable provides the greatest degree of flexibility and 
supports successful operation of a Tribal title IV-E program.

Section 1356.71--Federal Review of the Eligibility of Children in 
Foster Care and the Eligibility of Foster Care Providers in Title IV-E 
Programs

    Section 1356.71 describes the requirements governing Federal 
reviews of State and Tribal compliance with title IV-E eligibility 
provisions as they apply to children and foster care providers under 
section 472 of the Act. The purpose of the title IV-E foster care 
review is to validate the accuracy of a title IV-E agency's claims to 
assure that appropriate payments are made on behalf of eligible 
children, to eligible foster family homes and child care institutions. 
These determinations are made by an examination of a sample of records 
of children in foster care. By conducting title IV-E foster care 
eligibility reviews, ACF is fulfilling its financial and programmatic 
stewardship responsibilities in the administration of this program. 
Additional information on the reviews and the instruments used for the 
review can be found on the CB's Web site at http://www.acf.hhs.gov/programs/cb/cwmonitoring/index.htm#title.
    Throughout section 1356.71 we removed references to ``State'' or 
``States'' and in most cases, replaced them with ``title IV-E agency'' 
or ``title IV-E agencies'' to apply the requirements to States and 
Indian Tribes with a title IV-E plan equally as required by Public Law 
110-351. However, title IV-E reviews for Indian Tribes cannot begin on 
a date certain as was the case with the reviews in States. Rather, an 
initial title IV-E eligibility review will be conducted for an Indian 
Tribe with a title IV-E plan when ACF determines there is a sufficient 
number of title IV-E foster care cases to review consistent with the 
existing sample protocol. Subsequent reviews will occur according to 
the regulated schedule in 45 CFR 1356.71(a) provided that there are 
enough sample cases to review. ACF will work with Indian Tribes that 
have an approved title IV-E plan to address scheduling reviews. To the 
extent that we made additional conforming changes to the title IV-E 
eligibility review regulations, they are described below.
    In addition, we made a technical amendment to paragraph (j)(3) to 
reflect changes in regulatory citations by deleting the current 
citation and replacing it with ``45 CFR 30.18.'' On March 8, 2007 HHS 
issued a final rule that implemented the provisions of the Debt 
Collection Improvement Act of 1996 (72 FR 10404). The rule on interest, 
penalties and administrative costs was removed from 45 CFR 30.13 and 
codified at 45 CFR 30.18.
Section 1356.71(d)--Requirements Subject To Review
    Paragraph (d) describes the requirements subject to the title IV-E 
eligibility reviews. In paragraph (d)(1)(iii), we made a conforming 
amendment to reference the section of the Act that requires the 
responsibility for placement and care of the child to be reviewed 
during the title IV-E eligibility review by adding ``per section 
472(a)(2)(B) of the Act'' after ``agency.'' This means we will review 
whether a State or Tribal title IV-E agency (or other public agency 
under a title IV-E agreement with the State/Tribe) has placement and 
care responsibility of the child as an eligibility criterion.
    We also made a conforming amendment in paragraph (d)(1)(v) to 
reference the sections of the Act that set forth the AFDC eligibility 
criteria a child must meet as part of title IV-E foster care 
eligibility. Specifically, we added the phrase ``per section 472(a)(3) 
or 479B(c)(1)(C)(ii)(II) of the Act, as appropriate'' after ``July 16, 
1996.'' This

[[Page 922]]

means that we will review whether a State followed its title IV-A plan 
in effect in 1996 in determining whether a child met the AFDC criteria 
as required by section 472(a)(3) of the Act or whether a Tribal title 
IV-E agency followed the title IV-A plan in effect in the State of the 
child's removal in determining whether a child met the AFDC criteria as 
required by section 472(a)(3) of the Act.
    In paragraph (d)(2) we added a reference to section ``479B(c)(2)'' 
of the Act to indicate that for Indian Tribes with a title IV-E plan, 
we will review whether payments were made to licensed or approved 
Tribal foster family homes or child care institutions, consistent with 
Tribal licensing authorities. All changes in paragraph (d) are made to 
ensure that the requirements subject to title IV-E eligibility reviews 
are applied in the same manner for Tribal and State title IV-E agencies 
consistent with Public Law 110-351, with appropriate allowances for 
provisions specific to Indian Tribes granted by law.
Section 1356.71(i)--Program Improvement Plans
    Paragraph (i) sets forth the requirement for a title IV-E agency 
determined not to be in substantial compliance to develop a PIP. In 
paragraph (i)(1)(iii), we made conforming changes to apply the 
requirements for a PIP equally to Tribal and State title IV-E agencies. 
An Indian Tribe may extend the PIP timeframe beyond one year in the 
same way as a State, if legislation is required to implement and 
complete the plan.

Section 1356.83--Reporting Requirements and Data Elements

    Section 1356.83 describes the reporting requirements and data 
elements for the National Youth in Transition Database (NYTD). We made 
a technical amendment in paragraph (g)(55) to bring the element 
response in line with NYTD Technical Bulletin 1 (revised June 
29, 2010). Specifically, we deleted ``not applicable'' as a response 
option for Element 55 (Other health insurance coverage) because we 
believe that if a youth reports ``yes'' for the survey question related 
to data element 54 (Medicaid) and ``no'' for data element 56 (Health 
insurance type--Medical), then this is sufficient information to 
identify youth who solely participate in Medicaid for health insurance 
coverage.
    In addition to the changes described above, we added a statement 
after the end of paragraph (h) providing that the information 
collection requirements in this section have been approved by the OMB 
and providing the applicable OMB Control Number.

Section 1356.86--Penalties for Non-Compliance

    Section 1356.86 describes the Federal funds subject to penalties 
for noncompliance with the NYTD standards, the amount of those 
penalties, notification to agencies of penalties, the application of 
interest and appeals of penalties. We made a technical amendment to 
paragraph (e) to reflect changes in regulatory citations by deleting 
the current citation and replacing it with ``45 CFR 30.18.'' On March 
8, 2007 HHS issued a final rule that implemented the provisions of the 
Debt Collection Improvement Act of 1996 (72 FR 10404). The rule on 
interest, penalties and administrative costs was removed from 45 CFR 
30.13 and codified at 45 CFR 30.18.

Appendix A to Part 1356--NYTD Data Elements

    Appendix A details the information that must be collected as NYTD 
Data Elements. We deleted ``not applicable'' as a response option for 
element 55 ``other health insurance coverage'' to bring the response 
options in line with those listed at 45 CFR 1356.83(g)(55) which do not 
include the response option of ``not applicable.'' We also added ``no'' 
as a response option for element 56 ``health insurance type--medical'' 
to bring the response options in line with those listed at 45 CFR 
1356.83(g)(56) which include the response option of ``no.''
    We believe that because these changes are technical in nature there 
is no need to go through the notice and comment process to update the 
regulation.

Appendix B to Part 1356--NYTD Youth Outcome Survey

    Appendix B details the information that must be collected from all 
youth surveyed for outcomes in NYTD, whether the youth are in foster 
care or not. We added ``no'' as a response option for topic/outcome 
``Health insurance type--medical (56)''.
    We believe that because this change is technical in nature there is 
no need to go through the notice and comment process to update the 
regulation.

VI. Impact Analysis

    We have examined the impact of this rule as required by Executive 
Order 12866 (September 1993, Regulatory Planning and Review), the 
Regulatory Flexibility Act (RFA) (September 19, 1980, Pub. L. 96-354), 
the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4), Executive 
Order 13175, and Executive Order 13132.

Executive Orders 12866 and 13563

    Executive Orders 13563 and 12866 directs the agency to assess all 
costs and benefits of available regulatory alternatives and, if 
regulation is necessary, to select regulatory approaches that maximize 
net benefits (including potential economic, environmental, public 
health and safety effects, distributive impacts, and equity). Executive 
Order 13563 emphasizes the importance of quantifying both costs and 
benefits, of reducing costs, of harmonizing rules, and of promoting 
flexibility. A regulatory impact analysis (RIA) must be prepared for 
major rules with economically significant effects ($100 million or more 
in any one year). The Department has determined that this interim final 
rule is consistent with the priorities and principles of these 
Executive Orders. We have determined that the costs to Indian Tribes as 
a result of this rule will not be significant in terms of the stated 
threshold. This rule has been designated a ``significant regulatory 
action,'' although not economically significant, under section 3(f) of 
Executive Order 12866. Accordingly, the rule has been reviewed by the 
Office of Management and Budget.

Regulatory Flexibility Act (RFA)

    The Secretary certifies under 5 U.S.C. 605(b) as enacted by the RFA 
(Pub. L. 96-354), that this rule will not result in a significant 
impact on a substantial number of small entities. This rule does not 
affect small entities because it is applicable only to Indian Tribes 
that administer title IV-E and IV-B of the Act and States directly. For 
purposes of the RFA, States or Indian Tribes are not small entities 
subject to the Act. Therefore, the Secretary certifies that this rule 
will not have a significant economic impact on a substantial number of 
small entities.

Unfunded Mandates

    Section 202 of the Unfunded Mandates Reform Act of 1995 also 
requires that the agency assess anticipated costs and benefits before 
issuing any rule whose mandates require an annual expenditure of $100 
million (adjusted annually for inflation). That threshold level is 
currently approximately $136 million. This interim final rule with 
comment period has no consequential effect on State, local, or Tribal 
governments or on the private sector that will result in an

[[Page 923]]

annual expenditure of $100 million or more.

Executive Order 13132

    Executive Order 13132 on Federalism applies to policies that have 
federalism implications, defined as ``regulations, legislative comments 
or proposed legislation, and other policy statements or actions that 
have substantial direct effects on the States, on the relationship 
between the national government and the States, or on the distribution 
of power and responsibilities among the various levels of government.'' 
This interim final rule does not have federalism implications as 
defined in the Executive Order.

Assessment of Federal Regulations and Policies on Families

    Section 654 of the Treasury and General Government Appropriations 
Act of 1999 requires Federal agencies to determine whether a policy or 
regulation may affect family well-being. If the agency's conclusion is 
affirmative, then the agency must prepare an impact assessment 
addressing criteria specified in the law. We have determined that this 
interim final rule may affect family well-being as defined in section 
654 of the law and certify that we have made the required impact 
assessment. The purpose of direct access to title IV-E funding by 
Indian Tribes is to provide greater safety and permanency for Indian 
children and families. This rule is responsive to the needs of Indian 
Tribes and Tribal organizations within the structure of the law, and 
provides them the opportunity to operate programs that serve this 
purpose. The rule will have a positive effect on family well-being. 
Implementation of Tribal title IV-E programs will help strengthen the 
safety and stability of Indian families.

Paperwork Reduction Act

    Under the Paperwork Reduction Act (Pub. L. 104-13), all Departments 
are required to submit to the OMB for review and approval any reporting 
or recordkeeping requirements inherent in a proposed or final rule. 
This interim final rule contains information collections in certain 
sections, all of which are currently authorized by the OMB. The 
sections that contain information collection requirements are:

 1355.33(b)--Statewide assessment or Tribal assessment, 0970-
0214
 1355.33(c)--On-site review, 0970-0214
 1355.35(a)--Program improvement plan (CFSR), 0970-0214
 1355.38(b)--Corrective action and penalties for violations 
with respect to a person based on a court finding (Multiethnic 
Placement Act [MEPA]), 0970-0214
 1355.40--Adoption and Foster Care Analysis and Reporting 
System (AFCARS), 0980-0267
 1356.21(g)--Case plan, 0980-0140
 1356.71(i)--Program improvement plan (title IV-E review), 
0970-0214

    In addition, there are information collection requirements in 
section 1356.20 related to the title IV-E plan pre-print (0980-0141). 
This interim final rule is not making any changes to the title IV-E 
pre-print. However, the most recent version of the title IV-E pre-print 
approved by OMB through October 2012 estimates that up to 20 Indian 
Tribes would submit a title IV-E plan, so we are carrying that estimate 
through to the information collections included in this interim final 
rule.
    The first set of information collections (collectively referred to 
as OMB 0970-0214) is used by the Children's Bureau for various 
purposes. We use the first three parts of OMB 0970-0214 when we monitor 
child welfare programs through the CFSR. Title IV-E agencies use the 
fourth part of OMB 0970-0214, the Title IV-E PIP, to demonstrate how 
they will develop and implement a plan to correct areas of 
noncompliance with the applicable parts of title IV-E or the 
regulations. A title IV-E agency found to not be acting in accordance 
with section 471(a)(18) of the Act will use the fifth part of OMB 0970-
0214, the MEPA corrective action plan, as a framework for demonstrating 
that it has changed its policies, practices and laws to conform to the 
applicable Federal laws.
    We use AFCARS data (OMB 0980-0267) to calculate financial bonuses 
in the Adoption Incentive Payments program, describe child outcomes in 
the Child Welfare Outcomes Annual Report and CFSRs, and provide case 
samples for the title IV-E eligibility reviews and CFSRs. We also use 
the data to develop our budgets, inform policy and program decisions, 
and share information with the public and stakeholders about children 
in foster care and children being adopted.
    OMB 0980-0140 pertains to the ACF requirement that title IV-E 
agencies use a case plan to describe the specific services offered and 
provided to meet the individualized needs of children and families; 
document compliance with requirements of titles IV-B and IV-E of the 
Act; report progress in achieving child safety, permanency and well-
being; and provide for an assessment of service delivery and timeliness 
of decision-making.
    Data for the Statewide or Tribal Assessment and On-site Review come 
from a title IV-E agency's information system, case review system, 
quality assurance system and other internal systems. If ACF requires a 
title IV-E agency to develop a CFSR PIP, MEPA corrective action plan 
and/or Title IV-E PIP, a title IV-E agency will use data from its 
internal records and files to complete the plan.
    The regulations pertaining to AFCARS at 45 CFR 1355.40 require 
title IV-E agencies to electronically report certain data regarding 
children in foster care and adoption. The specific data elements are 
listed in the Appendix A and B of the regulations.
    The case plan consists of a narrative description of the child's 
individualized program of care as required by the applicable Federal 
laws and regulations. ACF does not collect the information in the case 
plan or require it to be reported to us.
    The respondents to all these information collections are State or 
Tribal government entities.
    As required by the Paperwork Reduction Act of 1995 (44 U.S.C. 
3507(d)), ACF has submitted a copy of these sections to OMB for its 
review. This interim final rule changes the collection requirements of 
all of these information collections only by extending the requirements 
that previously applied only to States to Tribal title IV-E agencies. 
The new respondents to the information collections in this interim 
final rule are Indian Tribes, Tribal organizations and consortia that 
have an approved title IV-E plan, or children in the title IV-E 
agency's placement and care responsibility. We estimate that the total 
burden hours will increase from 2,443,205 to 2,568,445 (a 5% increase) 
as a result of the increased number of respondents as provided in this 
interim final rule.
    The Department expands these collections of information to include 
Indian Tribes that have been approved to directly-operate a title IV-E 
program because, by law, the requirements of the title IV-E statute 
apply to such Indian Tribes ``in the same manner as this part applies 
to a State'' (section 479B(b) of the Act), with limited exceptions. 
This means that Indian Tribes operating title IV-E plans must adhere to 
existing statutory and regulatory title IV-E requirements in place for 
States unless the statute provides an exception.
    The following are estimates:

[[Page 924]]



----------------------------------------------------------------------------------------------------------------
                                             Number of
                                            respondents        Number of       Average burden     Total burden
               Collection                 (adding in the     responses per      per response          hours
                                          Indian Tribes)      respondent
----------------------------------------------------------------------------------------------------------------
1355.33(b)--Statewide or Tribal                        14                 1              240               3,360
 assessment 0970-0214..................
1355.33(c)--On-Site Review 0970-0214...                14                 1            1,170              16,380
1355.35(a)--Program Improvement Plan                   14                 1              240               3,360
 (CFSR) 0970-0214......................
1355.38(b)--Corrective Action Plan                      1                 1              780                 780
 (MEPA) 0970-0214......................
1355.40--AFCARS 0980-0267..............                72                 2            3,005             432,720
1356.21(g)--Case plan 0980-0140........           639,735                 1                3.3         2,111,125
1356.71(i) Program Improvement Plan (IV-                8                 1               90                 720
 E reviews) 0970-0214..................
----------------------------------------------------------------------------------------------------------------

    Below we describe how we arrived at the estimated burden for each 
information collection:
    CFSR--Given the complexities and issues involving conducting a CFSR 
for a Tribal title IV-E agency, or an Indian Tribe with an approved 
title IV-E plan, we estimate we will conduct a CFSR in one Indian Tribe 
during the first three year period after the effective date of the 
interim final rule. ACF has current OMB approval for 13 CFSRs.
    On-site review--Given the complexities and issues involving 
conducting an on-site review for a Tribal title IV-E agency, or Indian 
Tribe with an approved title IV-E plan, we estimate we will review one 
Indian Tribe during the first three year period. ACF has current OMB 
approval for 13 on-site reviews.
    CFSR PIP--Given the complexities and issues involved in developing 
a PIP for a Tribal title IV-E agency, or Indian Tribe with an approved 
title IV-E plan, we estimate at most one additional PIP will be 
developed during the first three year period. ACF has current OMB 
approval for 13 PIPs.
    MEPA--In MEPA enforcement actions, the Office for Civil Rights and 
ACF work jointly to assist the title IV-E agency to develop and 
implement corrective action plans that are targeted to remedying the 
violations for which the agency was cited. There have been few of these 
corrective action plans required in previous years and it has taken 
several years for the issues involved to advance to the corrective 
action phase. We are estimating that the number of title IV-E agencies 
found to have compliance issues will continue to be the exceptional 
circumstance and are not adding any additional burden estimate at this 
time.
    AFCARS--Indian Tribes with title IV-E plans, which we have 
previously estimated as 20, will be required to submit AFCARS data. ACF 
has current OMB approval for 52 AFCARS reports.
    Case plan--We have only rough estimates of the numbers of children 
in foster care who may be served by a Tribal title IV-E agency or 
Indian Tribe with an approved title IV-E plan. We are using 50 children 
per Indian Tribe as a rough estimate based on our consultations with 
Indian Tribes and information from other sources but are very 
interested in hearing from Indian Tribes how accurate this estimate 
appears to be. We expect that it may be on the high side. ACF has 
current OMB approval for 638,735 respondents for the case plan and we 
are adding 1,000 more here.
    Title IV-E PIP--We expect to begin these reviews within a four year 
period after an Indian Tribe's title IV-E plan is approved. Therefore, 
we estimate that at most one additional PIP will be developed during 
the first three year period. ACF has current OMB approval for 7 title 
IV-E PIPs.
    ACF will consider comments by the public on these collections of 
information in the following areas:
     Evaluating whether the proposed collections are necessary 
for the proper performance of the functions of ACF, including whether 
the information will have practical utility;
     Evaluating the accuracy of the ACF's estimate of the 
burden of the proposed collection[s] of information, including the 
validity of the methodology and assumptions used;
     Enhancing the quality, usefulness, and clarity of the 
information to be collected; and
     Minimizing the burden of the collection of information on 
those who are to respond, including through the use of appropriate 
automated, electronic, mechanical, or other technology, e.g., 
permitting electronic submission of responses.
    OMB is required to make a decision regarding the collection of 
information contained in this interim final rule between 30 and 60 days 
after publication of this document in the Federal Register. Therefore, 
a comment is best assured of having its full effect if OMB receives it 
within 30 days of publication. This does not affect the deadline for 
the public to comment to the Department on the interim final rule. 
Written comments to OMB on the information collections included in this 
interim final rule should be sent directly to the following: Office of 
Management and Budget, either by fax to (202) 395-5806 or by email to 
OIRA_submission@omb.eop.gov.
    Please mark faxes and emails to the attention of the desk officer 
for ACF. To ensure that public comments have maximum effect, ACF urges 
that each comment clearly identify the specific information collection 
that the comment addresses and that comments be in the same order as 
the regulations. You may also send a copy of these comments to the 
Department contact named in the ADDRESSES section of this preamble.

List of Subjects

45 CFR Part 1355

    Adoption and foster care, Child welfare, Grant programs--social 
programs.

45 CFR Part 1356

    Adoption and foster care, Grant programs--social programs.

(Catalog of Federal Domestic Assistance Program Number 93.658, 
Foster Care Maintenance)

    Dated: July 5, 2011.
George H. Sheldon,
Acting Assistant Secretary for Children and Families.
    Approved: August 29, 2011.
Kathleen Sebelius,
Secretary, Department of Health and Human Services.

    For the reason set out in the preamble, the Administration for 
Children and Families amends 45 CFR parts 1355 and 1356 as follows:

PART 1355--REQUIREMENTS APPLICABLE TO TITLE IV-B AND IV-E

0
1. The authority citation for part 1355 continues to read as follows:

    Authority: 42 U.S.C. 620 et seq., 42 U.S.C. 670 et seq., 42 
U.S.C. 1302.


0
2. Amend Sec.  1355.20(a) to:

[[Page 925]]

0
a. Revise the definitions of Adoption, Entity, Foster family home, Full 
review, Partial review and Statewide assessment;
0
b. Remove the first sentence of the definition of Child care 
institution and add two sentences in its place;
0
c. Revise the second sentence of the definition of Date a child is 
considered to have entered foster care;
0
d. Revise paragraphs (1)(ii) and (v) and the third sentence in 
paragraph (2) in the definition of Permanency hearing;
0
e. Revise the first and third sentences of the definition of Foster 
Care; and
0
f. Add new definitions of Title IV-E agency and Tribal agency to read 
as follows:


Sec.  1355.20  Definitions.

    (a) * * *
    Adoption means the method provided by State law, or for a Tribal 
title IV-E agency, Tribal law, which establishes the legal relationship 
of parent and child between persons who are not so related by birth, 
with the same mutual rights and obligations that exist between children 
and their birth parents. This relationship can only be termed 
``adoption'' after the legal process is complete.
* * * * *
    Child care institution means a private child care institution, or a 
public child care institution which accommodates no more than twenty-
five children, and is licensed by the licensing authority responsible 
for licensing or approval of institutions of this type as meeting the 
standards established for such licensing. The licensing authority must 
be a State authority in the State in which the child care institution 
is located, a Tribal authority with respect to a child care institution 
on or near an Indian Reservation, or a Tribal authority of a Tribal 
title IV-E agency with respect to a child care institution in the 
Tribal title IV-E agency's service area. * * *
* * * * *
    Date a child is considered to have entered foster care * * * A 
title IV-E agency may use a date earlier than that required in this 
definition, such as the date the child is physically removed from the 
home. * * *
* * * * *
    Entity, as used in Sec.  1355.38, means any organization or agency 
(e.g., a private child placing agency) that is separate and independent 
of the title IV-E agency; performs title IV-E functions pursuant to a 
contract or subcontract with the title IV-E agency; and, receives title 
IV-E funds. A State or Tribal court is not an ``entity'' for the 
purposes of Sec.  1355.38 except if an administrative arm of the State 
or Tribal court carries out title IV-E administrative functions 
pursuant to a contract with the title IV-E agency.
    Foster care means 24-hour substitute care for children placed away 
from their parents or guardians and for whom the title IV-E agency has 
placement and care responsibility. * * * A child is in foster care in 
accordance with this definition regardless of whether the foster care 
facility is licensed and payments are made by the State, Tribal or 
local agency for the care of the child, whether adoption subsidy 
payments are being made prior to the finalization of an adoption, or 
whether there is Federal matching of any payments that are made.
* * * * *
    Foster family home means, for the purpose of title IV-E 
eligibility, the home of an individual or family licensed or approved 
as meeting the standards established by the licensing or approval 
authority(ies), that provides 24-hour out-of-home care for children. 
The licensing authority must be a State authority in the State in which 
the foster family home is located, a Tribal authority with respect to a 
foster family home on or near an Indian Reservation, or a Tribal 
authority of a Tribal title IV-E agency with respect to a foster family 
home in the Tribal title IV-E agency's service area. The term may 
include group homes, agency-operated boarding homes or other facilities 
licensed or approved for the purpose of providing foster care by the 
State or Tribal agency responsible for approval or licensing of such 
facilities. Foster family homes that are approved must be held to the 
same standards as foster family homes that are licensed. Anything less 
than full licensure or approval is insufficient for meeting title IV-E 
eligibility requirements. Title IV-E agencies may, however, claim title 
IV-E reimbursement during the period of time between the date a 
prospective foster family home satisfies all requirements for licensure 
or approval and the date the actual license is issued, not to exceed 60 
days.
    Full review means the joint Federal and title IV-E agency review of 
all federally-assisted child and family services programs, including 
family preservation and support services, child protective services, 
foster care, adoption, and independent living services, for the purpose 
of determining the title IV-E agency's substantial conformity with the 
plan requirements of titles IV-B and IV-E as listed in Sec.  1355.34 of 
this part. A full review consists of two phases, the statewide 
assessment (or for a Tribal title IV-E agency, an assessment of the 
service area) and a subsequent on-site review, as described in Sec.  
1355.33 of this part.
* * * * *
    Partial review means:
    (1) For the purpose of the child and family services review, the 
joint Federal and State/Tribal review of one or more federally-assisted 
child and family services program(s), including family preservation and 
support services, child protective services, foster care, adoption, and 
independent living services. A partial review may consist of any of the 
components of the full review, as mutually agreed upon by the title IV-
E agency and the Administration for Children and Families as being 
sufficient to determine substantial conformity of the reviewed 
components with the plan requirements of titles IV-B and IV-E as listed 
in Sec.  1355.34 of this part;
    (2) For the purpose of title IV-B and title IV-E State plan 
compliance issues that are outside the prescribed child and family 
services review format, e.g., compliance with AFCARS requirements, a 
review of State laws, policies, regulations, or other information 
appropriate to the nature of the concern, to determine State 
compliance; or
    (3) For the purpose of title IV-E plan compliance issues for a 
Tribal title IV-E agency which are outside of the prescribed child and 
family services review format, a review of Tribal laws, policies, 
regulations, or other information appropriate to the nature of the 
concern, to determine plan compliance.
    Permanency hearing means:
    (1) * * *
    (ii) Placed for adoption, with the title IV-E agency filing a 
petition for termination of parental rights;
* * * * *
    (v) Placed in another planned permanent living arrangement, but 
only in cases where the title IV-E agency has documented to the State 
or Tribal court a compelling reason for determining that it would not 
be in the best interests of the child to follow one of the four 
specified options above.
    (2) * * * The permanency hearing must be conducted by a family or 
juvenile court or another court of competent jurisdiction or by an 
administrative body appointed or approved by the court which is not a 
part of or under the supervision or direction of the title IV-E agency. 
* * *
* * * * *
    Statewide assessment (or Tribal assessment) means the initial phase 
of

[[Page 926]]

a full review of all federally-assisted child and family services 
programs in the States (or for a Tribal title IV-E agency, in the 
service area), including family preservation and support services, 
child protective services, foster care, adoption, and independent 
living services as described in Sec.  1355.33(b) of this part, for the 
purpose of determining substantial conformity with the plan 
requirements of titles IV-B and IV-E as listed in Sec.  1355.34 of this 
part.
    Title IV-E agency means the State or Tribal agency administering or 
supervising the administration of the title IV-B and title IV-E plans.
    Tribal agency means, for the purpose of title IV-E, the agency of 
the Indian Tribe, Indian Tribal organization (as those terms are 
defined in section 479B(a) of the Act) or consortium of Indian Tribes 
that is administering or supervising the administration of the title 
IV-E and title IV-B, subpart 1 plan.
0
3. Amend Sec.  1355.21 to revise the section heading, paragraphs (a) 
and (b) and the second sentence of paragraph (c) as follows:


Sec.  1355.21  Plan requirements for titles IV-E and IV-B.

    (a) The plans for titles IV-E and IV-B must provide for safeguards 
on the use and disclosure of information which meet the requirements 
contained in section 471(a)(8) of the Act.
    (b) The plans for titles IV-E and IV-B must provide for compliance 
with the Department's regulations applicable to the State and/or Tribe 
as listed in 45 CFR 1355.30.
    (c) * * * The title IV-E agency also must make available for public 
review and inspection the title IV-E Plan.


0
4. Amend Sec.  1355.30 to revise the introductory text, revise 
paragraphs (c), (d), (i), (k), and (m), revise the heading of paragraph 
(n), and revise paragraphs (n)(1) through (n)(4) and (o) to read as 
follows:


Sec.  1355.30  Other applicable regulations.

    Except as specified, the following regulations are applicable to 
State and Tribal programs funded under titles IV-B and IV-E of the Act.
* * * * *
    (c) 2 CFR part 376--Nonprocurement Debarment and Suspension.
    (d) 2 CFR part 382--Requirements for Drug-Free Workplace (Financial 
Assistance).
* * * * *
    (i) 45 CFR part 92--Uniform Administrative Requirements for Grants 
and Cooperative Agreements to State and Local Governments. Part 92 of 
this title is applicable to title IV-B programs and the John H. Chafee 
Foster Care Independence Program under Section 477 of the Act that are 
operated by States and/or Tribes. Part 92 of this title is applicable 
to title IV-E foster care and adoption assistance programs operated by 
a State title IV-E agency, except that section 92.24 Matching or cost 
sharing and section 92.41 Financial reporting do not apply. Part 92 of 
this title is applicable to title IV-E foster care and adoption 
assistance programs operated by a Tribal title IV-E agency pursuant to 
section 479B, except that section 92.41 and the sections specified in 
Sec.  1356.68 do not apply to a Tribal title IV-E agency.
* * * * *
    (k) 45 CFR part 95--General Administration--Grant Programs (Public 
Assistance and Medical Assistance). Part 95 of this title is applicable 
to State and Indian Tribe operated title IV-B and title IV-E programs, 
except:
    (1) Notwithstanding 45 CFR 95.1(a), subpart A, Time Limits for 
States to File Claims, does not apply to State and Indian Tribe-
operated title IV-B (subparts 1 and 2) program and the John H. Chafee 
Foster Care Independence Program; and
    (2) 45 CFR part 95 Subpart E, Cost Allocation Plans, is not 
applicable to Indian Tribe-operated title IV-E foster care and adoption 
assistance pursuant to section 479B of the Act (ACYF-CB-PI-10-13).
* * * * *
    (m) 45 CFR part 100--Intergovernmental Review of Department of 
Health and Human Services Programs and Activities. Only one section is 
applicable: 45 CFR 100.12, How may a State simplify, consolidate, or 
substitute federally required State plans? This section is applicable 
to a State title IV-E agency only.
    (n) 45 CFR part 201--Grants to States for Public Assistance 
Programs. * * *
    (1) Sec.  201.5--Grants. Applicable to title IV-E foster care and 
adoption assistance only.
    (2) Sec.  201.6--Withholding of payment; reduction of Federal 
financial participation in the costs of social services and training. 
Applicable only to an unapprovable change in an approved plan, or the 
failure of the agency to change its approved plan to conform to a new 
Federal requirement for approval of plans.
    (3) Sec.  201.15--Deferral of claims for Federal financial 
participation. Applicable only to title IV-E foster care and adoption 
assistance.
    (4) Sec.  201.66--Repayment of Federal funds by installments. 
Applicable only to title IV-E foster care and adoption assistance.
    (o) 45 CFR 204.1--Submittal of State Plans for Governor's Review. 
Applicable to State title IV-E agencies only.
* * * * *

0
5. Revise Sec.  1355.31 to read as follows:


Sec.  1355.31  Elements of the child and family services review system.

    Scope. Sections 1355.32 through 1355.37 of this part apply to 
reviews of child and family services programs under subparts 1 and 2 of 
title IV-B of the Act, and reviews of foster care and adoption 
assistance programs under title IV-E of the Act.

0
6. Amend Sec.  1355.32 to:
0
a. Add a second sentence to paragraph (a); and
0
b. Revise paragraphs (b)(1) introductory text, (b)(1)(ii), (b)(2) 
introductory text, (c), the heading of paragraph (d) and paragraphs 
(d)(1) through (4) to read as follows:


Sec.  1355.32  Timetable for the reviews.

    (a) Initial reviews. * * * Each Tribal title IV-E agency must 
complete an initial full review as described in Sec.  1355.33 of this 
part, during the four-year period after the ACF determines that the 
Tribe has approved title IV-B, subpart 1 and 2 and title IV-E plans and 
has sufficient cases for ACF to apply the procedures in Sec.  
1355.33(c).
    (b) * * * (1) A title IV-E agency found to be operating in 
substantial conformity during an initial or subsequent review, as 
defined in Sec.  1355.34 of this part, must:
* * * * *
    (ii) Submit a completed statewide assessment, or in the case of a 
Tribal title IV-E agency, a completed Tribal assessment of the service 
area, to ACF three years after the on-site review. The assessment will 
be reviewed jointly by the title IV-E agency and ACF to determine the 
State's or Indian Tribe's continuing substantial conformity with the 
plan requirements subject to review. No formal approval of this interim 
assessment by ACF is required.
    (2) A program found not to be operating in substantial conformity 
during an initial or subsequent review will:
* * * * *
    (c) Reinstatement of reviews based on information that a title IV-E 
agency is not in substantial conformity. (1) ACF may require a full or 
a partial review at any time, based on any information, regardless of 
the source, that indicates the title IV-E agency may no longer be 
operating in substantial conformity.
    (2) Prior to reinstating a full or partial review, ACF will conduct 
an inquiry

[[Page 927]]

and require the title IV-E agency to submit additional data whenever 
ACF receives information that the title IV-E agency may not be in 
substantial conformity.
    (3) If the additional information and inquiry indicates to ACF's 
satisfaction that the title IV-E agency is operating in substantial 
conformity, ACF will not proceed with any further review of the issue 
addressed by the inquiry. This inquiry will not substitute for the full 
reviews conducted by ACF under Sec.  1355.32(b).
    (4) ACF may proceed with a full or partial review if the title IV-E 
agency does not provide the additional information as requested, or the 
additional information confirms that the title IV-E agency may not be 
operating in substantial conformity.
    (d) Partial reviews based on noncompliance with plan requirements 
that are outside the scope of a child and family services review. * * *
    (1) Conduct an inquiry and require the title IV-E agency to submit 
additional data.
    (2) If the additional information and inquiry indicates to ACF's 
satisfaction that the title IV-E agency is in compliance, we will not 
proceed with any further review of the issue addressed by the inquiry.
    (3) ACF will institute a partial review, appropriate to the nature 
of the concern, if the title IV-E agency does not provide the 
additional information as requested, or the additional information 
confirms that the title IV-E agency may not be in compliance.
    (4) If the partial review determines that the title IV-E agency is 
not in compliance with the applicable plan requirement, the title IV-E 
agency must enter into a program improvement plan designed to bring the 
title IV-E agency into compliance, if the provisions for such a plan 
are applicable. The terms, action steps and time-frames of the program 
improvement plan will be developed on a case-by-case basis by ACF and 
the title IV-E agency. The program improvement plan must take into 
consideration the extent of noncompliance and the impact of the 
noncompliance on the safety, permanency or well-being of children and 
families served through the title IV-E agency's title IV-B or IV-E 
allocation. If the title IV-E agency remains out of compliance, the 
title IV-E agency will be subject to a penalty related to the extent of 
the noncompliance.
* * * * *

0
7. In Sec.  1355.33, revise paragraphs (a)(2) introductory text, 
(a)(2)(i), (ii) and (iv), paragraphs (b), (c)(1) through (3) and 
(c)(4)(iv), the last sentence of paragraph (c)(6), paragraph (d), the 
first sentence of paragraph (e), and paragraph (f) to read as follows:


Sec.  1355.33  Procedures for the review.

    (a) * * *
    (2) Be conducted by a team of Federal, and State or Tribal 
reviewers that includes:
    (i) Staff of the child and family services agency, including the 
offices that represent the service areas that are the focus of any 
particular review;
    (ii) Representatives selected by the title IV-E agency, in 
collaboration with the ACF Regional Office, from those with whom the 
title IV-E agency was required to consult in developing its CFSP, as 
described and required in 45 CFR 1357.15(l);
* * * * *
    (iv) Other individuals, as deemed appropriate and agreed upon by 
the title IV-E agency and ACF.
    (b) Statewide or Tribal Assessment. The first phase of the full 
review will be a statewide assessment, or for a Tribal title IV-E 
agency a service area assessment, conducted by the title IV-E agency's 
internal and external members of the review team. The assessment must:
    (1) Address each systemic factor under review including the 
statewide/Tribal information system; case review system; quality 
assurance system; staff training; service array; agency responsiveness 
to the community; and foster and adoptive parent licensing, recruitment 
and retention;
    (2) Assess the outcome areas of safety, permanence, and well-being 
of children and families served by the title IV-E agency using data 
from AFCARS and NCANDS. For the initial review, ACF may approve another 
data source to substitute for AFCARS, and in all reviews, ACF may 
approve another data source to substitute for NCANDS. The title IV-E 
agency must also analyze and explain its performance in meeting the 
national standards for the statewide/Tribal service area data 
indicators;
    (3) Assess the characteristics of the title IV-E agency that have 
the most significant impact on the agency's capacity to deliver 
services to children and families that will lead to improved outcomes;
    (4) Assess the strengths and areas of the title IV-E agency's child 
and family services programs that require further examination through 
an on-site review;
    (5) Include a listing of all the persons external to the title IV-E 
agency who participated in the preparation of the assessment pursuant 
to Sec.  1355.33(a)(2)(ii) and (iv); and
    (6) Be completed and submitted to ACF within 4 months of the date 
that ACF transmits the information for the assessment to the title IV-E 
agency.
    (c) * * *
    (1) The on-site review will cover the title IV-E agency's programs 
under titles IV-B and IV-E of the Act, including in-home services and 
foster care. It will be jointly planned by the title IV-E agency and 
ACF, and guided by information in the completed assessment that 
identifies areas in need of improvement or further review.
    (2) The on-site review may be concentrated in several specific 
political subdivisions or jurisdictions of the title IV-E agency, as 
agreed upon by the ACF and the title IV-E agency; however, for a State 
title IV-E agency, a State's largest metropolitan subdivision must be 
one of the locations selected.
    (3) ACF has final approval of the selection of specific areas of 
the title IV-E agency's child and family services continuum described 
in paragraph (c)(1) of this section and selection of the political 
subdivisions or jurisdiction referenced in paragraph (c)(2) of this 
section.
    (4) * * *
    (iv) Interviews with key stakeholders, both internal and external 
to the agency, which, at a minimum, must include those individuals who 
participated in the development of the State's or Tribal title IV-E 
agency's CFSP required at 45 CFR 1357.15(1), courts, administrative 
review bodies, children's guardians ad litem and other individuals or 
bodies assigned responsibility for representing the best interests of 
the child.
* * * * *
    (6) * * * The additional cases in the oversample not selected for 
the on-site review will form the sample of cases to be reviewed, if 
needed, in order to resolve discrepancies between the statewide/Tribal 
assessment and the on-site review in accordance with paragraph (d)(2) 
of this section.
    (d) Resolution of discrepancies between the assessment and the 
findings of the on-site portion of the review. Discrepancies between 
the statewide or Tribal assessment and the findings of the on-site 
portion of the review will be resolved by either of the following 
means, at the title IV-E agency's option:
    (1) The submission of additional information by the title IV-E 
agency; or
    (2) ACF and the title IV-E agency will review additional cases 
using only those indicators in which the discrepancy occurred. ACF and 
the title IV-E agency will determine jointly the number of additional 
cases to be reviewed, not to

[[Page 928]]

exceed 150 foster care cases or 150 in-home services cases to be 
selected as specified in paragraph (c)(6) of this section.
    (e) Partial review. A partial child and family services review, 
when required, will be planned and conducted jointly by ACF and the 
title IV-E agency based on the nature of the concern. * * *
    (f) Notification. Within 30 calendar days following either a 
partial child and family services review, full child and family 
services review, or the resolution of a discrepancy between the 
assessment and the findings of the on-site portion of the review, ACF 
will notify the title IV-E agency in writing of whether the title IV-E 
agency is, or is not, operating in substantial conformity.

0
8. In Sec.  1355.34 revise paragraph (a) introductory text, (a)(1), 
(a)(3), (b)(1) introductory text, (b)(2) introductory text, (b)(2)(i), 
(b)(2)(ii)(C) through (F), (b)(3) introductory text, (b)(3)(i), the 
first sentence of (b)(3)(ii), (b)(4), the heading and introductory text 
of (c), paragraph (c)(1), (c)(2) introductory text, (c)(2)(i) through 
(v), (c)(3) introductory text, (c)(3)(i), (c)(4) introductory text, 
(c)(4)(i), (c)(4)(iv), (c)(4)(v), (c)(5) introductory text, (c)(5)(v), 
(c)(6)(i) and (iv), (c)(7)(i) through (v), and (d) to read as follows:


Sec.  1355.34  Criteria for determining substantial conformity.

    (a) Criteria to be satisfied. ACF will determine a title IV-E 
agency's substantial conformity with title IV-B and title IV-E plan 
requirements based on the following:
    (1) Its ability to meet national standards, set by the Secretary, 
for the statewide/Tribal service area data indicators associated with 
specific outcomes for children and families;
* * * * *
    (3) Its ability to meet criteria related to the title IV-E agency's 
capacity to deliver services leading to improved outcomes.
    (b) * * * (1) A title IV-E agency's substantial conformity will be 
determined by its ability to substantially achieve the following child 
and family service outcomes:
* * * * *
    (2) A title IV-E agency's level of achievement with regard to each 
outcome reflects the extent to which a title IV-E agency has:
    (i) Met the national standard(s) for the statewide/Tribal service 
area data indicator(s) associated with that outcome, if applicable; 
and,
    (ii) * * *
    (C) The requirements in section 422(b)(7) of the Act regarding 
recruitment of potential foster and adoptive families;
    (D) The assurances as required by section 422(b)(8)(B) of the Act 
regarding policies and procedures for abandoned children;
    (E) The requirements in section 422(b)(9) of the Act regarding the 
State's compliance with the Indian Child Welfare Act;
    (F) The requirements in section 422(b)(10) of the Act regarding a 
title IV-E agency's plan for effective use of cross-jurisdictional 
resources to facilitate timely adoptive or permanent placements; and,
* * * * *
    (3) A title IV-E agency will be determined to be in substantial 
conformity if its performance on:
    (i) Each statewide/Tribal service area data indicator developed 
pursuant to paragraph (b)(4) of this section meets the national 
standard described in paragraph (b)(5) of this section; and,
    (ii) Each outcome listed in paragraph (b)(1) of this section is 
rated as ``substantially achieved'' in 95 percent of the cases examined 
during the on-site review (90 percent of the cases for an initial 
review). * * *
    (4) The Secretary may, using AFCARS and NCANDS, develop statewide/
Tribal service area data indicators for each of the specific outcomes 
described in paragraph (b)(1) of this section for use in determining 
substantial conformity. The Secretary may add, amend, or suspend any 
such statewide/Tribal service area data indicator(s) when appropriate. 
To the extent practical and feasible, the statewide/Tribal service area 
data indicators will be consistent with those developed in accordance 
with section 203 of the Adoption and Safe Families Act of 1997 (Pub. L. 
105-89).
* * * * *
    (c) Criteria related to title IV-E agency capacity to deliver 
services leading to improved outcomes for children and families. In 
addition to the criteria related to outcomes contained in paragraph (b) 
of this section, the title IV-E agency also must satisfy criteria 
related to the delivery of services. Based on information from the 
assessment and onsite review, the title IV-E agency must meet the 
following criteria for each systemic factor in paragraphs (c)(2) 
through (c)(7) of this section to be considered in substantial 
conformity: All of the plan requirements associated with the systemic 
factor must be in place, and no more than one of the plan requirements 
fails to function as described in paragraphs (c)(2) through (c)(7) of 
this section. The systemic factor in paragraph (c)(1) of this section 
is rated on the basis of only one plan requirement. To be considered in 
substantial conformity, the plan requirement associated with statewide/
Tribal information system capacity must be both in place and 
functioning as described in the requirement. ACF will use a rating 
scale to make the determinations of substantial conformity. The 
systemic factors under review are:
    (1) Statewide/Tribal information system: The State/Tribal title IV-
E agency is operating a statewide/Tribal information system that, at a 
minimum, can readily identify the status, demographic characteristics, 
location, and goals for the placement of every child who is (or within 
the immediately preceding 12 months, has been) in foster care (section 
(422)(b)(8)(A)(i) of the Act);
    (2) Case review system: The title IV-E agency has procedures in 
place that:
    (i) Provide, for each child, a written case plan to be developed 
jointly with the child's parent(s) that includes provisions: for 
placing the child in the least restrictive, most family-like placement 
appropriate to his/her needs, and in close proximity to the parents' 
home where such placement is in the child's best interests; for visits 
with a child placed out of State/Tribal service area at least every 12 
months by a caseworker of the agency or of the agency in the State/
Tribal service area where the child is placed; and for documentation of 
the steps taken to make and finalize an adoptive or other permanent 
placement when the child cannot return home (sections 422(b)(8)(A)(ii), 
471(a)(16) and 475(5)(A) of the Act);
    (ii) Provide for periodic review of the status of each child no 
less frequently than once every six months by either a court or by 
administrative review (sections 422(b)(8)(A)(ii), 471(a)(16) and 
475(5)(B) of the Act);
    (iii) Assure that each child in foster care under the supervision 
of the title IV-E agency has a permanency hearing in a family or 
juvenile court or another court of competent jurisdiction (including a 
Tribal court), or by an administrative body appointed or approved by 
the court, which is not a part of or under the supervision or direction 
of the title IV-E agency, no later than 12 months from the date the 
child entered foster care (and not less frequently than every 12 months 
thereafter during the continuation of foster care) (sections 
422(b)(8)(A)(ii), 471(a)(16) and 475(5)(C) of the Act);
    (iv) Provide a process for termination of parental rights 
proceedings in accordance with sections 422(b)(8)(A)(ii), 475(5)(E) and 
(F) of the Act; and,

[[Page 929]]

    (v) Provide foster parents, preadoptive parents, and relative 
caregivers of children in foster care with notice of and a right to be 
heard in permanency hearings and six-month periodic reviews held with 
respect to the child (sections 422(b)(8)(A)(ii), 475(5)(G) of the Act, 
and 45 CFR 1356.21(o)).
    (3) Quality assurance system: The title IV-E agency has developed 
and implemented standards to ensure that children in foster care 
placements are provided quality services that protect the safety and 
health of the children (section 471(a)(22)) and is operating an 
identifiable quality assurance system (45 CFR 1357.15(u)) as described 
in the CFSP that:
    (i) Is in place in the jurisdictions within the State/Tribal 
service area where services included in the CFSP are provided;
* * * * *
    (4) Staff training: The title IV-E agency is operating a staff 
development and training program (45 CFR 1357.15(t)) that:
    (i) Supports the goals and objectives in the title IV-E agency's 
CFSP;
* * * * *
    (iv) Provides ongoing training for staff that addresses the skills 
and knowledge base needed to carry out their duties with regard to the 
services included in the CFSP; and,
    (v) Provides training for current or prospective foster parents, 
adoptive parents, and the staff of State/Tribal-licensed or State/
Tribal-approved child care institutions providing care to foster and 
adopted children receiving assistance under title IV-E that addresses 
the skills and knowledge base needed to carry out their duties with 
regard to caring for foster and adopted children.
    (5) Service array: Information from the assessment and on-site 
review determines that the title IV-E agency has in place an array of 
services (45 CFR 1357.15(n) and section 422(b)(8)(A)(iii) and (iv) of 
the Act) that includes, at a minimum:
* * * * *
    (v) Services that are accessible to families and children in all 
political subdivisions and/or the entire service area covered in the 
CFSP; and,
* * * * *
    (6) * * *
    (i) The title IV-E agency, in implementing the provisions of the 
CFSP, engages in ongoing consultation with a broad array of individuals 
and organizations representing the State/Tribal and county/local 
agencies responsible for implementing the CFSP and other major 
stakeholders in the services delivery system including, at a minimum, 
Tribal representatives, consumers, service providers, foster care 
providers, the juvenile court, and other public and private child and 
family serving agencies (45 CFR 1357.15(l)(3));
* * * * *
    (iv) There is evidence that the services under the plan are 
coordinated with services or benefits under other Federal or federally-
assisted programs serving the same populations to achieve the goals and 
objectives in the plan (45 CFR 1357.15(m)).
    (7) * * *
    (i) The State or Tribe has established and maintains standards for 
foster family homes and child care institutions which are reasonably in 
accord with recommended standards of national organizations concerned 
with standards for such institutions or homes (section 471(a)(10) of 
the Act);
    (ii) The standards so established are applied by the State or Tribe 
to every licensed or approved foster family home or child care 
institution receiving funds under title IV-E or IV-B of the Act 
(section 471(a)(10) of the Act);
    (iii) The title IV-E agency complies with the safety requirements 
for foster care and adoptive placements in accordance with sections 
471(a)(16), 471(a)(20) and 475(1) of the Act and 45 CFR 1356.30;
    (iv) The title IV-E agency has in place an identifiable process for 
assuring the diligent recruitment of potential foster and adoptive 
families that reflect the ethnic and racial diversity of children in 
the State or Tribe for whom foster and adoptive homes are needed 
(section 422(b)(7) of the Act); and,
    (v) The title IV-E agency has developed and implemented plans for 
the effective use of cross-jurisdictional resources to facilitate 
timely adoptive or permanent placements for waiting children (section 
422(b)(10) of the Act).
    (d) Availability of review instruments. ACF will make available to 
the title IV-E agencies copies of the review instruments, which will 
contain the specific standards to be used to determine substantial 
conformity, on an ongoing basis, whenever significant revisions to the 
instruments are made.

0
9. In Sec.  1355.35 revise the first sentence of paragraph (a)(1) 
introductory text, paragraphs (a)(1)(i) through (ii), (iv) and (v), 
(a)(2), (b) introductory text, (b)(1) and (3), (c)(1), (3) and (4), the 
third sentence of (d)(3), the first sentence of (d)(4), the first 
sentence of (e) introductory text, (e)(1) through (3), (e)(4) 
introductory text, (e)(4)(i), and the first sentence of (f), and add a 
parenthetical OMB information collection statement at the end of the 
section, to read as follows:


Sec.  1355.35  Program improvement plans.

    (a) * * * (1) Title IV-E agencies found not to be operating in 
substantial conformity shall develop a program improvement plan. * * *
    (i) Be developed jointly by title IV-E agency and Federal staff in 
consultation with the review team;
    (ii) Identify the areas in which the title IV-E agency's program is 
not in substantial conformity;
* * * * *
    (iv) Set forth the amount of progress the statewide/Tribal data 
will make toward meeting the national standards;
    (v) Establish benchmarks that will be used to measure the title IV-
E agency's progress in implementing the program improvement plan and 
describe the methods that will be used to evaluate progress;
* * * * *
    (2) In the event that ACF and the title IV-E agency cannot reach 
consensus regarding the content of a program improvement plan or the 
degree of program or data improvement to be achieved, ACF retains the 
final authority to assign the contents of the plan and/or the degree of 
improvement required for successful completion of the plan. Under such 
circumstances, ACF will render a written rationale for assigning such 
content or degree of improvement.
    (b) Voluntary program improvement plan. Title IV-E agencies found 
to be operating in substantial conformity may voluntarily develop and 
implement a program improvement plan in collaboration with the ACF 
Regional Office, under the following circumstances:
    (1) The title IV-E agency and Regional Office agree that there are 
areas of the title IV-E agency's child and family services programs in 
need of improvement which can be addressed through the development and 
implementation of a voluntary program improvement plan;
* * * * *
    (3) No penalty will be assessed for the title IV-E agency's failure 
to achieve the goals described in the voluntary program improvement 
plan.
    (c) * * *
    (1) A title IV-E agency determined not to be in substantial 
conformity must submit a program improvement plan to ACF for approval 
within 90 calendar days from the date the title IV-E agency receives 
the written notification from ACF that it is not operating in 
substantial conformity.
* * * * *

[[Page 930]]

    (3) If the program improvement plan does not meet the provisions of 
paragraph (a) of this section, the title IV-E agency will have 30 
calendar days from the date it receives notice from ACF that the plan 
has not been approved to revise and resubmit the plan for approval.
    (4) If the title IV-E agency does not submit a revised program 
improvement plan according to the provisions of paragraph (c)(3) of 
this section or if the plan does not meet the provisions of paragraph 
(a) of this section, withholding of funds pursuant to the provisions of 
Sec.  1355.36 of this part will begin.
    (d) * * *
    (3) * * * The title IV-E agency must provide compelling 
documentation of the need for such an extension. * * *
    (4) Title IV-E agencies must provide quarterly status reports 
(unless ACF and the title IV-E agency agree to less frequent reports) 
to ACF. * * *
    (e) * * * Program improvement plans will be evaluated jointly by 
the title IV-E agency and ACF, in collaboration with other members of 
the review team, as described in the title IV-E agency's program 
improvement plan and in accordance with the following criteria:
    (1) The methods and information used to measure progress must be 
sufficient to determine when and whether the title IV-E agency is 
operating in substantial conformity or has reached the negotiated 
standard with respect to statewide/Tribal service area data indicators 
that failed to meet the national standard for that indicator;
    (2) The frequency of evaluating progress will be determined jointly 
by the title IV-E agency and Federal team members, but no less than 
annually. Evaluation of progress will be performed in conjunction with 
the annual updates of the title IV-E agency's CFSP, as described in 
paragraph (f) of this section;
    (3) Action steps may be jointly determined by the title IV-E agency 
and ACF to be achieved prior to projected completion dates, and will 
not require any further evaluation at a later date; and
    (4) The title IV-E agency and ACF may jointly renegotiate the terms 
and conditions of the program improvement plan as needed, provided 
that:
    (i) The renegotiated plan is designed to correct the areas of the 
title IV-E agency's program determined not to be in substantial 
conformity and/or achieve a standard for the statewide/Tribal service 
area data indicators that is acceptable to ACF;
* * * * *
    (f) * * * The elements of the program improvement plan must be 
incorporated into the goals and objectives of the title IV-E agency's 
CFSP. * * *


(This requirement has been approved by the Office of Management and 
Budget under OMB Control Number 0970-0214. In accordance with the 
Paperwork Reduction Act of 1995, an agency may not conduct or sponsor, 
and a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.)

0
10. In Sec.  1355.36 revise paragraphs (a)(1) through (2), the first 
sentence of the introductory text of (b), (b)(1) through (4), (b)(6), 
the introductory text of (b)(7), (b)(7)(iii), the introductory text of 
(b)(8), (b)(8)(iii), the introductory text of (c)(1), (c)(1)(ii), the 
first sentence of (d), (e)(1), (e)(2)(i) and (iii), and (e)(3) through 
(5) to read as follows:


Sec.  1355.36  Withholding Federal funds due to failure to achieve 
substantial conformity or failure to successfully complete a program 
improvement plan.

    (a) * * *
    (1) The term ``title IV-B funds'' refers to the title IV-E agency's 
combined allocation of title IV-B subpart 1 and subpart 2 funds; and
    (2) The term ``title IV-E funds'' refers to the title IV-E agency's 
reimbursement for administrative costs for the foster care program 
under title IV-E.
    (b) * * * ACF will determine the amount of title IV-B and IV-E 
funds to be withheld due to a finding that the title IV-E agency is not 
operating in substantial conformity, as follows:
    (1) A title IV-E agency will have the opportunity to develop and 
complete a program improvement plan prior to any withholding of funds.
    (2) Title IV-B and IV-E funds will not be withheld from a title IV-
E agency if the determination of nonconformity was caused by the title 
IV-E agency's correct use of formal written statements of Federal law 
or policy provided the title IV-E agency by DHHS.
    (3) A portion of the title IV-E agency's title IV-B and IV-E funds 
will be withheld by ACF for the year under review and for each 
succeeding year until the title IV-E agency either successfully 
completes a program improvement plan or is found to be operating in 
substantial conformity.
    (4) The amount of title IV-B and title IV-E funds subject to 
withholding due to a determination that a title IV-E agency is not 
operating in substantial conformity is based on a pool of funds defined 
as follows:
    (i) The title IV-E agency's allotment of title IV-B funds for each 
of the years to which the withholding applies; and
    (ii) An amount equivalent to 10 percent of the title IV-E agency's 
Federal claims for title IV-E foster care administrative costs for each 
of the years to which withholding applies;
* * * * *
    (6) Except as provided for in paragraphs (b)(7), (b)(8), and (e)(4) 
of this section, in the event the title IV-E agency is determined to be 
in nonconformity on each of the seven outcomes and each of the seven 
systemic factors subject to review, the maximum amount of title IV-B 
and title IV-E funds to be withheld due to the title IV-E agency's 
failure to comply is 14 percent per year of the funds described in 
paragraph (b)(4) of this section for each year.
    (7) Title IV-E agencies determined not to be in substantial 
conformity that fail to correct the areas of nonconformity through the 
successful completion of a program improvement plan, and are determined 
to be in nonconformity on the second full review following the first 
full review in which a determination of nonconformity was made will be 
subject to increased withholding as follows:
* * * * *
    (iii) The maximum amount of title IV-B and title IV-E funds to be 
withheld due to the title IV-E agency's failure to comply on the second 
full review following the first full review in which the determination 
of nonconformity was made is 28 percent of the funds described in 
paragraph (b)(4) of this section for each year to which the withholding 
of funds applies.
    (8) Title IV-E agencies determined not to be in substantial 
conformity that fail to correct the areas of nonconformity through the 
successful completion of a program improvement plan, and are determined 
to be in nonconformity on the third and any subsequent full reviews 
following the first full review in which a determination of 
nonconformity was made will be subject to increased withholding as 
follows:
* * * * *
    (iii) The maximum amount of title IV-B and title IV-E funds to be 
withheld due to the title IV-E agency's failure to comply on the third 
and any subsequent full reviews following the first full review in 
which the determination of nonconformity was made is 42 percent of the 
funds described in paragraph (b)(4) of this section for each year to 
which the withholding of funds applies.
    (c) * * *
    (1) For title IV-E agencies determined not to be operating in 
substantial conformity, ACF will suspend the withholding of the title 
IV-E agencies'

[[Page 931]]

title IV-B and title IV-E funds during the time that a program 
improvement plan is in effect, provided that:
* * * * *
    (ii) The title IV-E agency is actively implementing the provisions 
of the program improvement plan.
* * * * *
    (d) * * * For title IV-E agencies determined not to be in 
substantial conformity, ACF will terminate the withholding of the title 
IV-E agency's title IV-B and title IV-E funds related to the 
nonconformity upon determination by the title IV-E agency and ACF that 
the title IV-E agency has achieved substantial conformity or has 
successfully completed a program improvement plan. * * *
    (e) * * *
    (1) Title IV-E agencies determined not to be in substantial 
conformity that fail to successfully complete a program improvement 
plan will be notified by ACF of this final determination of 
nonconformity in writing within 10 business days after the relevant 
completion date specified in the plan, and advised of the amount of 
title IV-B and title IV-E funds which are to be withheld.
    (2) * * *
    (i) If the title IV-E agency fails to submit status reports in 
accordance with Sec.  1355.35(d)(4), or if such reports indicate that 
the title IV-E agency is not making satisfactory progress toward 
achieving goals or actions steps, funds will be withheld at that time 
for a period beginning October 1 of the fiscal year for which the 
determination of nonconformity was made and ending on the specified 
completion date for the affected goal or action step.
* * * * *
    (iii) The withholding of funds commensurate with the level of 
nonconformity at the end of the program improvement plan will begin at 
the latest completion date specified in the program improvement plan 
and will continue until a subsequent full review determines the title 
IV-E agency to be in substantial conformity or the title IV-E agency 
successfully completes a program improvement plan developed as a result 
of that subsequent full review.
    (3) When the date the title IV-E agency is determined to be in 
substantial conformity or to have successfully completed a program 
improvement plan falls within a specific quarter, the amount of funds 
to be withheld will be computed to the end of that quarter.
    (4) A title IV-E agency that refuses to participate in the 
development or implementation of a program improvement plan, as 
required by ACF, will be subject to the maximum increased withholding 
of 42 percent of its title IV-B and title IV-E funds, as described in 
paragraph (b)(8) of this section, for each year or portion thereof to 
which the withholding of funds applies.
    (5) The title IV-E agency will be liable for interest on the amount 
of funds withheld by the Department, in accordance with the provisions 
of 45 CFR 30.18.

0
11. Revise Sec.  1355.37 to read as follows:


Sec.  1355.37  Opportunity for public inspection of review reports and 
materials.

    The title IV-E agency must make available for public review and 
inspection all statewide or Tribal assessments (Sec.  1355.33(b)), 
report of findings (Sec.  1355.33(e)), and program improvement plans 
(Sec.  1355.35(a)) developed as a result of a full or partial child and 
family services review.

0
12. In Sec.  1355.38 revise paragraphs (a)(2) introductory text, 
(a)(2)(iii), (a)(3), (b)(1), (b)(3), (b)(4), the heading of (c), (c)(1) 
and (3), (e), (f), (g)(1)(i) and (ii), (g)(2) through (g)(5), the first 
and third sentences of (h)(1), (h)(1)(i) through (iii), and (h)(2) 
through (4) to read as follows:


Sec.  1355.38  Enforcement of section 471(a)(18) of the Act regarding 
the removal of barriers to interethnic adoption.

    (a) * * *
    (2) Based on the findings of the OCR investigation, ACF will 
determine if a violation of section 471(a)(18) has occurred. A section 
471(a)(18) violation occurs if a title IV-E agency or an entity in the 
State/Tribe:
* * * * *
    (iii) With respect to a title IV-E agency, maintains any statute, 
regulation, policy, procedure, or practice that on its face, is a 
violation as defined in paragraphs (a)(2)(i) and (2)(ii) of this 
section.
    (3) ACF will provide the title IV-E agency or entity with written 
notification of its determination.
* * * * *
    (b) * * *
    (1) A title IV-E agency or entity found to be in violation of 
section 471(a)(18) of the Act with respect to a person, as described in 
paragraphs (a)(2)(i) and (a)(2)(ii) of this section, will be penalized 
in accordance with paragraph (g)(2) of this section. A title IV-E 
agency or entity determined to be in violation of section 471(a)(18) of 
the Act as a result of a court finding will be penalized in accordance 
with paragraph (g)(4) of this section. The title IV-E agency may 
develop, obtain approval of, and implement a plan of corrective action 
any time after it receives written notification from ACF that it is in 
violation of section 471(a)(18) of the Act.
* * * * *
    (3) If the corrective action plan does not meet the provisions of 
paragraph (d) of this section, the title IV-E agency must revise and 
resubmit the plan for approval until it has an approved plan.
    (4) A title IV-E agency or entity found to be in violation of 
section 471(a)(18) of the Act by a court must notify ACF within 30 days 
from the date of entry of the final judgment once all appeals have been 
exhausted, declined, or the appeal period has expired.
    (c) Corrective action for violations resulting from a title IV-E 
agency's statute, regulation, policy, procedure, or practice. (1) A 
title IV-E agency found to have committed a violation of the type 
described in paragraph (a)(2)(iii) of this section must develop and 
submit a corrective action plan within 30 days of receiving written 
notification from ACF that it is in violation of section 471(a)(18). 
Once the plan is approved the title IV-E agency will have to complete 
the corrective action and come into compliance. If the title IV-E 
agency fails to complete the corrective action plan within six months 
and come into compliance, a penalty will be imposed in accordance with 
paragraph (g)(3) of this section.
* * * * *
    (3) If the corrective action plan does not meet the provisions of 
paragraph (d) of this section, the title IV-E agency must revise and 
resubmit the plan within 30 days from the date it receives a written 
notice from ACF that the plan has not been approved. If the title IV-E 
agency does not submit a revised corrective action plan according to 
the provisions of paragraph (d) of this section, withholding of funds 
pursuant to the provisions of paragraph (g) of this section will apply.
* * * * *
    (e) Evaluation of corrective action plan. ACF will evaluate 
corrective action plans and notify the title IV-E agency (in writing) 
of its success or failure to complete the plan within 30 calendar days. 
If the title IV-E agency has failed to complete the corrective action 
plan, ACF will calculate the amount of reduction in the title IV-E 
agency's title IV-E payment and include this information in the written 
notification of failure to complete the plan.
    (f) Funds to be withheld. The term ``title IV-E funds'' refers to 
the amount

[[Page 932]]

of Federal funds advanced or paid to the title IV-E agency for 
allowable costs incurred by a title IV-E agency for: foster care 
maintenance payments, adoption assistance payments, administrative 
costs, and training costs under title IV-E and includes the title IV-E 
agency's allotment for the Chafee Foster Care Independence Program 
under section 477 of the Act.
    (g) * * *
    (1) * * *
    (i) A determination that a title IV-E agency or entity is in 
violation of section 471(a)(18) of the Act with respect to a person as 
described in paragraphs (a)(2)(i) and (a)(2)(ii) of this section, or:
    (ii) After a title IV-E agency's failure to implement and complete 
a corrective action plan and come into compliance as described in 
paragraph (c) of this section.
    (2) Once ACF notifies a title IV-E agency (in writing) that it has 
committed a section 471(a)(18) violation with respect to a person, the 
title IV-E agency's title IV-E funds will be reduced for the fiscal 
quarter in which the title IV-E agency received written notification 
and for each succeeding quarter within that fiscal year or until the 
title IV-E agency completes a corrective action plan and comes into 
compliance, whichever is earlier. Once ACF notifies an entity (in 
writing) that it has committed a section 471(a)(18) violation with 
respect to a person, the entity must remit to the Secretary all title 
IV-E funds paid to it by the title IV-E agency during the quarter in 
which the entity is notified of the violation.
    (3) For title IV-E agencies that fail to complete a corrective 
action plan within 6 months, title IV-E funds will be reduced by ACF 
for the fiscal quarter in which the title IV-E agency received 
notification of its violation. The reduction will continue for each 
succeeding quarter within that fiscal year or until the title IV-E 
agency completes the corrective action plan and comes into compliance, 
whichever is earlier.
    (4) If, as a result of a court finding, a title IV-E agency or 
entity is determined to be in violation of section 471(a)(18) of the 
Act, ACF will assess a penalty without further investigation. Once the 
title IV-E agency is notified (in writing) of the violation, its title 
IV-E funds will be reduced for the fiscal quarter in which the court 
finding was made and for each succeeding quarter within that fiscal 
year or until the title IV-E agency completes a corrective action plan 
and comes into compliance, whichever is sooner. Once an entity is 
notified (in writing) of the violation, the entity must remit to the 
Secretary all title IV-E funds paid to it by the title IV-E agency 
during the quarter in which the court finding was made.
    (5) The maximum number of quarters that a title IV-E agency will 
have its title IV-E funds reduced due to a finding of a title IV-E 
agency's failure to conform to section 471(a)(18) of the Act is limited 
to the number of quarters within the fiscal year in which a 
determination of nonconformity was made. However, an uncorrected 
violation may result in a subsequent review, another finding, and 
additional penalties.
* * * * *
    (h) * * *
    (1) Title IV-E agencies that violate section 471(a)(18) with 
respect to a person or fail to implement or complete a corrective 
action plan as described in paragraph (c) of this section will be 
subject to a penalty. * * * Penalties will be levied for the quarter of 
the fiscal year in which the title IV-E agency is notified of its 
section 471(a)(18) violation, and for each succeeding quarter within 
that fiscal year until the title IV-E agency comes into compliance with 
section 471(a)(18). * * *
    (i) 2 percent of the title IV-E agency's title IV-E funds for the 
fiscal year quarter, as defined in paragraph (f) of this section, for 
the first finding of noncompliance in that fiscal year;
    (ii) 3 percent of the title IV-E agency's title IV-E funds for the 
fiscal year quarter, as defined in paragraph (f) of this section, for 
the second finding of noncompliance in that fiscal year;
    (iii) 5 percent of the title IV-E agency's title IV-E funds for the 
fiscal year quarter, as defined in paragraph (f) of this section, for 
the third or subsequent finding of noncompliance in that fiscal year.
    (2) Any entity (other than the title IV-E agency) which violates 
section 471(a)(18) of the Act during a fiscal quarter must remit to the 
Secretary all title IV-E funds paid to it by the title IV-E agency in 
accordance with the procedures in paragraphs (g)(2) or (g)(4) of this 
section.
    (3) No fiscal year payment to a title IV-E agency will be reduced 
by more than 5 percent of its title IV-E funds, as defined in paragraph 
(f) of this section, where the title IV-E agency has been determined to 
be out of compliance with section 471(a)(18) of the Act.
    (4) The title IV-E agency or an entity, as applicable, will be 
liable for interest on the amount of funds reduced by the Department, 
in accordance with the provisions of 45 CFR 30.18.
    (This requirement has been approved by the Office of Management and 
Budget under OMB Control Number 0970-0214. In accordance with the 
Paperwork Reduction Act of 1995, an agency may not conduct or sponsor, 
and a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.)

0
13. In Sec.  1355.39 revise the introductory text, paragraph (b), and 
paragraph (c) to read as follows:


Sec.  1355.39  Administrative and judicial review.

    A title IV-E agency determined not to be in substantial conformity 
with titles IV-B and IV-E plan requirements, or a title IV-E agency or 
an entity in violation of section 471(a)(18) of the Act:
* * * * *
    (b) Will have the opportunity to obtain judicial review of an 
adverse decision of the Departmental Appeals Board within 60 days after 
the title IV-E agency or entity receives notice of the decision by the 
Board. Appeals of adverse Department Appeals Board decisions must be 
made to the district court of the United States for the judicial 
district in which the principal or headquarters office of the agency 
responsible for administering the program is located.
    (c) The procedure described in paragraphs (a) and (b) of this 
section will not apply to a finding that a title IV-E agency or an 
entity has been determined to be in violation of section 471(a)(18) 
which is based on a judicial decision.

0
14. In Sec.  1355.40 revise the first sentence of paragraph (a)(1), 
remove the second sentence of paragraph (a)(1), revise paragraph 
(a)(2), the first and fourth sentences of (a)(3), add a sentence to the 
end of paragraph (a)(3), revise the first sentence of (b)(1), revise 
the last sentence of (b)(2), revise paragraphs (b)(3), (b)(4), and 
(c)(2), remove paragraph (c)(3), revise paragraph (d) and (e) and add a 
parenthetical OMB information collection statement at the end of the 
section to read as follows:


Sec.  1355.40  Foster care and adoption data collection.

    (a) * * *
    (1) Each title IV-E agency which administers or supervises the 
administration of titles IV-B and IV-E must implement a system to 
collect data. * * *
    (2) For the purposes of foster care reporting, each data 
transmission must include all children in foster care for whom the 
title IV-E agency has responsibility for placement, care, or

[[Page 933]]

supervision. This includes American Indian children covered under the 
assurances in section 422(b)(8) of the Act on the same basis as any 
other child. For children in care less than 30 days, only a core set of 
information will be required, as noted in Appendix A to this part. For 
children who enter foster care prior to October 1, 1995 and who are 
still in the system, core data elements will be required; in addition, 
the title IV-E agency also will be required to report on the most 
recent case plan goal affecting those children. For children in out-of-
State placement, the State placing the child and making the foster care 
payment submits and continually updates the data. For children in the 
Tribal title IV-E agency's placement and care responsibility who are 
placed outside of the Tribal service area, the Indian Tribe placing the 
child and making foster care payments submits and continually updates 
the data for each such child.
    (3) For the purposes of adoption reporting, data are required to be 
transmitted by the title IV-E agency on all adopted children who were 
placed by the title IV-E agency, and on all adopted children for whom 
the agency is providing adoption assistance (either ongoing or for 
nonrecurring expenses), care or services directly or by contract or 
agreement with other private or public agencies. * * * For a child 
adopted out-of-State, the title IV-E agency which placed the child 
submits the data. Similarly, the Tribal title IV-E agency which placed 
the child outside of the Tribal service area for adoption submits the 
data.
    (b) * * *
    (1) The title IV-E agency shall transmit semi-annually, within 45 
days of the end of the reporting period (i.e., by May 15 and November 
14), information on each child in foster care and each child adopted 
during the reporting period. * * *
    (2) * * * Entry of this date constitutes title IV-E agency 
certification that the data on the child have been reviewed and are 
current.
    (3) Adoption data are to be reported during the reporting period in 
which the adoption is legalized or, at the title IV-E agency's option, 
in the following reporting period if the adoption is legalized within 
the last 60 days of the reporting period. For a semi-annual period in 
which no adoptions have been legalized, the title IV-E agency must 
report such an occurrence.
    (4) A summary file of the semi-annual data transmission must be 
submitted and will be used to verify the completeness of the title IV-E 
agency's detailed submission for the reporting period.
* * * * *
    (c) * * *
    (2) Substantial noncompliance occurs when missing data exceed 10 
percent for any one data element.
    (d) Timeliness of foster care data reports. Ninety percent of the 
subject transactions must have been entered into the system within 60 
days of the event (removal from home or discharge from foster care) or 
the title IV-E agency will be found in substantial noncompliance.
    (e) Substantial Noncompliance. Failure by a title IV-E agency to 
meet any of the standards described in paragraphs (a) through (d) of 
this section is considered a substantial failure to meet the 
requirements of the title IV-E plan.
    (This requirement has been approved by the Office of Management and 
Budget under OMB Control Number 0980-0267. In accordance with the 
Paperwork Reduction Act of 1995, an agency may not conduct or sponsor, 
and a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.)

0
15. Revise Sec.  1355.50 to read as follows:


Sec.  1355.50  Purpose of this part.

    This part sets forth the requirements and procedures title IV-E 
agencies must meet in order to receive Federal financial participation 
for the planning, design, development, installation and operation of 
statewide or Tribal automated child welfare information systems 
authorized under section 474(a)(3)(c) of the Act.

0
16. In Sec.  1355.52 revise the section heading and paragraphs (a) and 
(b) to read as follows:


Sec.  1355.52  Funding authority for statewide or Tribal automated 
child welfare information systems (SACWIS/TACWIS).

    (a) Title IV-E agencies may receive Federal reimbursement at the 50 
percent level for expenditures related to the planning, design, 
development and installation of a statewide or Tribal automated child 
welfare information system, to the extent such system:
    (1) Provides for the title IV-E agency to collect and 
electronically report certain data required by section 479(b) of the 
Act and Sec.  1355.40 of this part;
    (2) To the extent practicable, provides for an interface with the 
data collection system for child abuse and neglect;
    (3) To the extent practicable, provides for an interface with and 
retrieval of information from the State or Tribal automated information 
system that collects information relating to the eligibility of 
individuals under title IV-A of the Act; and
    (4) Provides for more efficient, economical and effective 
administration of the programs carried out under a plan approved under 
title IV-B and title IV-E.
    (b) Title IV-E agencies may also be reimbursed for the full amount 
of expenditures for the hardware components for such systems at the 
rate provided under paragraph (a) of this section.
* * * * *

0
17. In Sec.  1355.53 revise paragraph (a), paragraph (b)(2) 
introductory text, paragraph (b)(3), paragraph (e), paragraph (f) and 
paragraph (g) to read as follows:


Sec.  1355.53  Conditions for approval of funding.

    (a) As a condition of funding, the SACWIS or TACWIS must be 
designed, developed (or an existing system enhanced), and installed in 
accordance with an approved advance planning document (APD). The APD 
must provide for a design which, when implemented, will produce a 
comprehensive system, which is effective and efficient, to improve the 
program management and administration of the plans for titles IV-B and 
IV-E as provided under this section.
    (b) * * *
    (2) Provide, for electronic exchanges and referrals, as 
appropriate, with the following systems within the State or Tribe, 
unless the title IV-E agency demonstrates that such interface or 
integration would not be practicable because of systems limitations or 
cost constraints:
* * * * *
    (3) Support the provisions of section 422(a) by providing for the 
automated collection, maintenance, management and reporting of 
information on all children in foster care under the responsibility of 
the title IV-E agency, including statewide data (or in the case of a 
Tribal title IV-E agency, service area data) from which the demographic 
characteristics, location, and goals for foster care children can be 
determined;
* * * * *
    (e) If the cost benefit analysis submitted as part of the APD 
indicates that adherence to paragraphs (c) and (d) of this section 
would not be cost beneficial, final approval of the APD may be withheld 
until resolution is reached on the level of automation

[[Page 934]]

appropriate to meet the title IV-E agency's needs.
    (f) A Statewide or Tribal automated child welfare information 
system may be designed, developed and installed on a phased basis, in 
order to allow title IV-E agencies to implement AFCARS requirements 
expeditiously, in accordance with section 479(b) of the Act, as long as 
the approved APD includes the title IV-E agency's plan for full 
implementation of a comprehensive system which meets all functional and 
data requirements as specified in paragraphs (a) and (b) of this 
section, and a system design which will support these enhancements on a 
phased basis.
    (g) The system must perform Quality Assurance functions to provide 
for the review of case files for accuracy, completeness and compliance 
with Federal requirements, State standards and where applicable, Tribal 
standards.

0
18. Revise Sec.  1355.54 to read as follows:


Sec.  1355.54  Submittal of advance planning documents.

    The title IV-E agency must submit an APD for a statewide automated 
child welfare information system, signed by the appropriate official, 
in accordance with procedures specified by 45 CFR part 95, subpart F.

0
19. In Sec.  1355.55 revise paragraph (a) introductory text and add a 
parenthetical OMB information collection statement at the end of the 
section to read as follows:


Sec.  1355.55  Review and assessment of the system developed with 
enhanced funds.

    (a) ACF will, on a continuing basis, review, assess and inspect the 
planning, design, development, installation and operation of the SACWIS 
or TACWIS to determine the extent to which such systems:
* * * * *
    (This requirement has been approved by the Office of Management and 
Budget under OMB Control Number 0970-0007. In accordance with the 
Paperwork Reduction Act of 1995, an agency may not conduct or sponsor, 
and a person is not required to respond to, a collection of information 
unless it displays a currently valid OMB control number.)

0
20. In Sec.  1355.56 revise paragraph (a), the introductory text of 
paragraph (b)(1), paragraphs (b)(1)(iv), (b)(2), and (b)(4) to read as 
follows:


Sec.  1355.56  Failure to meet the conditions of the approved APD.

    (a) If ACF finds that the title IV-E agency fails to meet any of 
the conditions cited in Sec.  1355.53, or to substantially comply with 
the criteria, requirements and other undertakings prescribed by the 
approved APD, approval of the APD may be suspended.
    (b) * * *
    (1) The title IV-E agency will be given written notice of the 
suspension. This notice shall state:
* * * * *
    (iv) The actions required by the title IV-E agency for future 
enhanced funding.
    (2) The suspension will be effective as of the date the title IV-E 
agency failed to comply with the approved APD;
* * * * *
    (4) Should a title IV-E agency cease development of an approved 
system, either by voluntary withdrawal or as a result of Federal 
suspension, all Federal incentive funds invested to date that exceed 
the normal administrative FFP rate (50 percent) will be subject to 
recoupment.

0
21. Revise Sec.  1355.57 to read as follows:


Sec.  1355.57  Cost allocation.

    (a) All expenditures of a title IV-E agency to plan, design, 
develop, install, and operate the data collection and information 
retrieval system described in Sec.  1355.53 of this part shall be 
treated as necessary for the proper and efficient administration of the 
title IV-E plan, without regard to whether the system may be used with 
respect to foster or adoptive children other than those on behalf of 
whom foster care maintenance payments or adoption assistance payments 
may be made under the title IV-E plan.
    (b) Cost allocation and distribution for the planning, design, 
development, installation and operation must be in accordance with 
Sec.  95.631 of this title and section 474(c) of the Act, if the SACWIS 
or TACWIS includes functions, processing, information collection and 
management, equipment or services that are not directly related to the 
administration of the programs carried out under the plan approved 
under title IV-B or IV-E.

0
22. Remove Appendix F and revise Appendices A through E to part 1355 to 
read as follows:

Appendix A to Part 1355--Foster Care Data Elements

Section I--Foster Care Data Elements

    Data elements preceded by ``**'' are the only data elements 
required for children who have been in care less than 30 days. For 
children who entered care prior to October 1, 1995, data elements 
preceded by either ``**'' and ``***'' are the only data elements 
required. This means that, for these two categories of children, 
these are the only data elements to which the missing data standard 
will be applied.

I. General Information

 **A. Title IV-E agency------------------------------------------------
    **B. Report date ---- (mo.) ---- (yr.)
 **C. Local Agency (County or Equivalent Jurisdiction)-----------------
 **D. Record Number----------------------------------------------------
    **E. Date of Most Recent Periodic Review (if Applicable) ---- 
(mo.) ---- (day) ---- (yr.)

II. Child's Demographic Information

    **A. Date of Birth ---- (mo.) ---- (day) ---- (yr.)
    **B. Sex ----
    Male: 1
    Female: 2
    C. Race/Ethnicity
    a. American Indian or Alaska Native
    b. Asian
    c. Black or African American
    d. Native Hawaiian or Other Pacific Islander
    e. White
    f. Unable to Determine
    Yes: 1
    No: 2
    Unable to Determine: 3
    D. Has this child been clinically diagnosed as having a 
disability(ies)? ----
    Yes: 1
    No: 2
    Not Yet Determined: 3
    1. If yes, indicate each type of disability with a ``1''
    Mental Retardation ----
    Visually or Hearing Impaired ----
    Physically Disabled ----
    Emotionally Disturbed (DSM III)
    Other Medically Diagnosed Condition Requiring Special Care ----
    E. 1. Has this child ever been adopted? ----
    Yes: 1
    No: 2
    Unable to Determine: 3
    2. If yes, how old was the child when the adoption was 
legalized? ----
    Less than 2 years old: 1
    2 to 5 years old: 2
    6 to 12 years old: 3
    13 years or older: 4
    Unable to determine: 5

III. Removal/Placement Setting Indicators

    A. Removal Episodes
    Date of First Removal From Home ---- (mo.) ---- (day) ---- (yr.)
    Total Number of Removals From Home to Date ----
    Date Child was Discharged From Last Foster Care Episode (if 
Applicable) ---- (mo.) ---- (day) ---- (yr.)
    **; Date of Latest Removal From Home ---- (mo.) ---- (day) ---- 
(yr.)
    **Transaction Date ---- (mo.) ---- (day) ---- (yr.)
    B. Placement Settings
    Date of Placement in Current Foster Care Setting ---- (mo.) ---- 
(day) ---- (yr.)
    Number of Previous Placement Settings During This Removal 
Episode ----

IV. Circumstances of Removal

    A. Manner of Removal From Home for Current Placement Episode --
--
    Voluntary: 1

[[Page 935]]

    Court Ordered: 2
    Not Yet Determined: 3
    B. Actions or Conditions Associated With Child's Removal: 
(Indicate all that apply with a ``1'')
 Physical Abuse (Alleged/Reported)-------------------------------------
 Sexual Abuse (Alleged/Reported)---------------------------------------
 Neglect (Alleged/Reported)--------------------------------------------
 Alcohol Abuse (Parent)------------------------------------------------
 Drug Abuse (Parent)---------------------------------------------------
 Alcohol Abuse (Child)-------------------------------------------------
 Drug Abuse (Child)----------------------------------------------------
 Child's Disability----------------------------------------------------
 Child's Behavior Problem----------------------------------------------
 Death of Parent(s)----------------------------------------------------
 Incarceration of Parent(s)--------------------------------------------
 Caretaker's Inability to Cope Due to Illness or Other Reasons---------
 Abandonment-----------------------------------------------------------
 Relinquishment--------------------------------------------------------
 Inadequate Housing----------------------------------------------------

**V. Current Placement Setting-----------------------------------------

    **A. Pre-Adoptive Home: 1
    Foster Family Home (Relative): 2
    Foster Family Home (Non-Relative): 3
    Group Home: 4
    Institution: 5
    Supervised Independent Living: 6
    Runaway: 7
    Tribal Home Visit: 8
 **B. Is Current Placement Out-of-State/Tribal service area?-----------
    Yes (Out-of-State/Tribal service area Placement): 1
    No (In State/Tribal service area Placement): 2***

VI. Most Recent Case Plan Goal-----------------------------------------

    Reunify With Parent(s) or Principal Caretaker(s): 1
    Live With Other Relative(s): 2
    Adoption: 3
    Long Term Foster Care: 4
    Emancipation: 5
    Guardianship: 6
    Case Plan Goal Not Yet Established: 7

VII. Principal Caretaker(s) Information

 A. Caretaker Family Structure-----------------------------------------
    Married Couple: 1
    Unmarried Couple: 2
    Single Female: 3
    Single Male: 4
    Unable to Determine: 5
    B. Year of Birth
 1st Principal Caretaker-----------------------------------------------
 2nd Principal Caretaker (If Applicable)-------------------------------

VIII. Parental Rights Termination (If Applicable)

    A. Mother ---- (mo.) ---- (day) ---- (yr.)
    B. Legal or Putative Father ---- (mo.) ---- (day) ---- (yr.)

IX. Foster Family Home--Parent(s) Data (To be answered only if Section 
V., Part A. CURRENT PLACEMENT SETTING is 1, 2 or 3)

 A. Foster Family Structure--------------------------------------------
    Married Couple: 1
    Unmarried Couple: 2
    Single Female: 3
    Single Male: 4
    B. Year of Birth
 1st Foster Caretaker--------------------------------------------------
 2nd Foster Caretaker (If Applicable)----------------------------------
    C. Race/Ethnicity
    1. Race of 1st Foster Caretaker
    a. American Indian or Alaska Native
    b. Asian
    c. Black or African American
    d. Native Hawaiian or Other Pacific Islander
    e. White
    f. Unable to Determine
    2. Hispanic or Latino Ethnicity of 1st Foster Caretaker ----
    Yes: 1
    No: 2
    Unable to Determine: 3
    3. Race of 2nd Foster Caretaker (If Applicable)
    a. American Indian or Alaska Native
    b. Asian
    c. Black or African American
    d. Native Hawaiian or Other Pacific Islander
    e. White
    f. Unable to Determine
    4. Hispanic or Latino Ethnicity of 2nd Foster Caretaker (If 
Applicable)
    Yes: 1
    No: 2
    Unable to Determine: 3

X. Outcome Information

    **A. Date of Discharge From Foster Care ---- (mo.) ---- (day)--
-- (yr.)
    **Transaction Date ---- (mo.) ---- (day) ---- (yr.)
 **B. Reason for Discharge---------------------------------------------
    Reunification With Parents or Primary Caretakers: 1
    Living with Other Relative(s): 2
    Adoption: 3
    Emancipation: 4
    Guardianship: 5
    Transfer to Another Agency: 6
    Runaway: 7
    Death of Child: 8

XI. Source(s) of Federal Financial Support/Assistance for Child 
(Indicate all that apply with a ``1'')

 Title IV-E (Foster Care)----------------------------------------------
 Title IV-E (Adoption Assistance)--------------------------------------
 Title IV-A (Aid to Families with Dependent Children)------------------
 Title IV-D (Child Support)--------------------------------------------
 Title XIX (Medicaid)--------------------------------------------------
 SSI or Other Social Security Act Benefits-----------------------------
 None of the Above-----------------------------------------------------

XII. Amount of the monthly foster care payment (regardless of sources). 
----

Section II--Definitions of and Instructions for Foster Care Data 
Elements

    Reporting population. The population to be included in this 
reporting system includes all children in foster care under the 
responsibility of the title IV-E agency administering or supervising 
the administration of the title IV-B Child and Family Services plan 
and the title IV-E plan; that is, all children who are required to 
be provided the assurances of section 422(b)(8) of the Social 
Security Act.
    This population includes all children supervised by or under the 
responsibility of another public agency with which the title IV-E 
agency has an agreement under title IV-E and on whose behalf the 
title IV-E agency makes title IV-E foster care maintenance payments.
    Foster care is defined as 24 hour substitute care for children 
outside their own home. The reporting system includes all children 
who have or had been in foster care at least 24 hours. The foster 
care settings include, but are not limited to:

    --Family foster homes
    --Relative foster homes (whether payments are made or not)
    --Group homes
    --Emergency shelters
    --Residential facilities
    --Child care institutions
    --Pre-adoptive homes

    Foster care does not include children who are in their own homes 
under the responsibility of the title IV-E agency. However, children 
who are at home on a trial basis may be included even though they 
are not considered to be in foster care. If they are included, 
element number V. CURRENT PLACEMENT SETTING must be given the value 
of ``8''.

I. General Information

    A. Title IV-E agency**--for a State, the U.S. Postal Service two 
letter abbreviation for the State submitting the report. For a 
Tribal title IV-E agency, the abbreviation provided by ACF.
    B. Report Date**--the last month and year for the reporting 
period.
    C. Local Agency**-- Identity of the county or equivalent unit 
which has responsibility for the case. The 5 digit Federal 
Information Processing Standard (FIPS) must be used or other ACF-
provided code.
    D. Record Number**--The sequential number which the title IV-E 
agency uses to transmit data to the Department of Health and Human 
Services (DHHS) or a unique number which follows the child as long 
as he or she is in foster care. The record number cannot be linked 
to the child's case I.D. number except at the title IV-E agency 
level.
    E. Date of Most Recent Periodic Review (if applicable)--For 
children who have been in care for seven months or longer, enter the 
month, day and year of the most recent administrative or court 
review, including dispositional hearing. For children who have been 
in care less than seven months, leave the field blank. An entry in 
this field certifies that the child's computer record is current up 
to this date.

II. Child's Demographic Information

    A. Date of Birth**--Month, day and year of the child's birth. If 
the child is abandoned or the date of birth is otherwise unknown, 
enter an approximate date of birth. Use the 15th as the day of 
birth.
    B. Sex**--Indicate as appropriate.
    C. Race/Ethnicity**
    1. Race--In general, a person's race is determined by how they 
define themselves or by how others define them. In the case of young 
children, parents determine the race of the child. Indicate all 
races (a through e) that apply with a ``1.'' For those that do not 
apply, indicate a ``0.'' Indicate ``f. Unable to Determine'' with a 
``1'' if it applies and a ``0'' if it does not.
    American Indian or Alaska Native--A person having origins in any 
of the original peoples of North or South America

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(including Central America), and who maintains tribal affiliation or 
community attachment.
    Asian--A person having origins in any of the original peoples of 
the Far East, Southeast Asia, or the Indian subcontinent including, 
for example, Cambodia, China, India, Japan, Korea, Malaysia, 
Pakistan, the Philippine Islands, Thailand, and Vietnam.
    Black or African American--A person having origins in any of the 
black racial groups of Africa.
    Native Hawaiian or Other Pacific Islander--A person having 
origins in any of the original peoples of Hawaii, Guam, Samoa, or 
other Pacific Islands.
    White--A person having origins in any of the original peoples of 
Europe, the Middle East, or North Africa.
    Unable to Determine--The specific race category is ``unable to 
determine'' because the child is very young or is severely disabled 
and no person is available to identify the child's race. ``Unable to 
determine'' is also used if the parent, relative or guardian is 
unwilling to identify the child's race.
    2. Hispanic or Latino Ethnicity--Answer ``yes'' if the child is 
of Mexican, Puerto Rican, Cuban, Central or South American origin, 
or a person of other Spanish cultural origin regardless of race. 
Whether or not a person is Hispanic or Latino is determined by how 
they define themselves or by how others define them. In the case of 
young children, parents determine the ethnicity of the child. 
``Unable to Determine'' is used because the child is very young or 
is severely disabled and no person is available to determine whether 
or not the child is Hispanic or Latino. ``Unable to determine'' is 
also used if the parent, relative or guardian is unwilling to 
identify the child's ethnicity.
    D. Has the child been clinically diagnosed as having a 
disability(ies)? ``Yes'' indicates that a qualified professional has 
clinically diagnosed the child as having at least one of the 
disabilities listed below. ``No'' indicates that a qualified 
professional has conducted a clinical assessment of the child and 
has determined that the child has no disabilities. ``Not Yet 
Determined'' indicates that a clinical assessment of the child by a 
qualified professional has not been conducted.
    1. Indicate Each Type of Disability With a ``1''
    Mental Retardation--Significantly subaverage general cognitive 
and motor functioning existing concurrently with deficits in 
adaptive behavior manifested during the development period that 
adversely affect a child's/youth's socialization and learning.
    Visually or Hearing Impaired--Having a visual impairment that 
may significantly affect educational performance or development; or 
a hearing impairment, whether permanent or fluctuating, that 
adversely affects educational performance.
    Emotionally Disturbed (DSM III)--A condition exhibiting one or 
more of the following characteristics over a long period of time and 
to a marked degree: An inability to build or maintain satisfactory 
interpersonal relationships; inappropriate types of behavior or 
feelings under normal circumstances; a general pervasive mood of 
unhappiness or depression; or a tendency to develop physical 
symptoms or fears associated with personal problems. The term 
includes persons who are schizophrenic or autistic. The term does 
not include persons who are socially maladjusted, unless it is 
determined that they are also seriously emotionally disturbed. The 
diagnosis is based on the Diagnostic and Statistical Manual of 
Mental Disorders (Third Edition) (DSM III) or the most recent 
edition.
    Other Medically Diagnosed Conditions Requiring Special Care--
Conditions other than those noted above which require special 
medical care such as chronic illnesses. Included are children 
diagnosed as HIV positive or with AIDS.
    E.1. Has this child ever been adopted? If this child has ever 
been legally adopted, enter ``yes.'' If the child has never been 
legally adopted, enter ``no''. Enter ``Unable to Determine'' if the 
child has been abandoned or the child's parent(s) are otherwise not 
available to provide the information.
    2. If yes, how old was the child when the adoption was 
legalized? Enter the number which represents the appropriate age 
range. If uncertain, use an estimate. If no one is available to 
provide the information, enter ``Unable to Determine.''

III. Removal/Placement Setting Indicators

    A. Removal Episodes--The removal of the child from his/her 
normal place of residence resulting in his/her placement in a foster 
care setting.
    Date of First Removal From Home--Month, day and year the child 
was removed from home for the first time for purpose of placement in 
a foster care setting. If the current \1\ removal is the first 
removal, enter the date of the current removal.\1\For children who 
have exited foster care, ``current'' refers to the most recent 
removal episode and the most recent placement setting.
    Total Number of Removals from Home to Date--The number of times 
the child was removed from home, including the current removal.
    Date Child was Discharged From Last Foster Care Episode (If 
Applicable)--For children with prior removals, enter the month, day 
and year they were discharged from care for the episode immediately 
prior to the current episode. For children with no prior removals, 
leave blank.
    Date of Latest Removal From Home**--Month, day and year the 
child was last removed from his/her home for the purpose of being 
place in foster care. This would be the date for the current episode 
or, if the child has existed foster care, the date of removal for 
the most recent removal.
    Transaction Date**--A computer generated date which accurately 
indicates the month, day and year the response to ``Date of Latest 
Removal From Home'' was entered into the information system.
    B. Placement Settings.
    Date of Placement in Current Foster Care Setting--Month, day and 
year the child moved into the current foster home, facility, 
residence, shelter, institution, etc. for purposes of continued 
foster care.
    Number of Previous Placement Settings During This Removal 
Episode--Enter the number of places the child has lived, including 
the current setting, during the current removal episode. Do not 
include trial home visits as a placement setting.

IV. Circumstances of Removal

    A. Manner of Removal From Home for Current Placement Episode.
    Voluntary Placement Agreement--An official voluntary placement 
agreement has been executed between the caretaker and the agency. 
The placement remains voluntary even if a subsequent court order is 
issued to continue the child in foster care.
    Court Ordered--The court has issued an order which is the basis 
of the child's removal.
    Not Yet Determined--A voluntary placement agreement has not been 
signed or a court order has not been issued. This will mostly occur 
in very short-term cases. When either a voluntary placement 
agreement is signed or a court order issued, the record should be 
updated to reflect the manner of removal at that time.
    B. Actions or Conditions Associated With Child's Removal 
(indicate all that apply with a ``1''.)
    Physical Abuse--Alleged or substantiated physical abuse, injury 
or maltreatment of the child by a person responsible for the child's 
welfare.
    Sexual Abuse--Alleged or substantiated sexual abuse or 
exploitation of a child by a person who is responsible for the 
child's welfare.
    Neglect--Alleged or substantiated negligent treatment or 
maltreatment, including failure to provide adequate food, clothing, 
shelter or care.
    Alcohol Abuse (Parent)--Principal caretaker's compulsive use of 
alcohol that is not of a temporary nature.
    Drug Abuse (Parent)--Principal caretaker's compulsive use of 
drugs that is not of a temporary nature.
    Alcohol Abuse (Child)--Child's compulsive use of or need for 
alcohol. This element should include infants addicted at birth.
    Drug Abuse (Child)--Child's compulsive use of or need for 
narcotics. This element should include infants addicted at birth.
    Child's Disability--Clinical diagnosis by a qualified 
professional of one or more of the following: Mental retardation; 
emotional disturbance; specific learning disability; hearing, speech 
or sight impairment; physical disability; or other clinically 
diagnosed handicap. Include only if the disability(ies) was at least 
one of the factors which led to the child's removal.
    Child's Behavior Problem--Behavior in the school and/or 
community that adversely affects socialization, learning, growth, 
and moral development. These may include adjudicated or 
nonadjudicated child behavior problems. This would include the 
child's running away from home or other placement.
    Death of Parent(s)--Family stress or inability to care for child 
due to death of a parent or caretaker.
    Incarceration of Parent(s)--Temporary or permanent placement of 
a parent or caretaker in jail that adversely affects care for the 
child.
    Caretaker's Inability to Cope Due to Illness or Other Reasons--
Physical or emotional

[[Page 937]]

illness or disabling condition adversely affecting the caretaker's 
ability to care for the child.
    Abandonment--Child left alone or with others; caretaker did not 
return or make whereabouts known.
    Relinquishment--Parent(s), in writing, assigned the physical and 
legal custody of the child to the agency for the purpose of having 
the child adopted.
    Inadequate Housing--Housing facilities were substandard, 
overcrowded, unsafe or otherwise inadequate resulting in their not 
being appropriate for the parents and child to reside together. Also 
includes homelessness.

V. Current Placement Setting**

    A. Identify the type of setting in which the child currently 
lives.
    Pre-Adoptive Home--A home in which the family intends to adopt 
the child. The family may or may not be receiving a foster care 
payment or an adoption subsidy on behalf of the child.
    Foster Family Home (Relative)--A licensed or unlicensed home of 
the child's relatives regarded by the title IV-E agency as a foster 
care living arrangement for the child.
    Foster Family Home (Non-Relative)--A licensed foster family home 
regarded by the title IV-E agency as a foster care living 
arrangement.
    Group Home--A licensed or approved home providing 24-hour care 
for children in a small group setting that generally has from seven 
to twelve children.
    Institution--A child care facility operated by a public or 
private agency and providing 24-hour care and/or treatment for 
children who require separation from their own homes and group 
living experience. These facilities may include: Child care 
institutions; residential treatment facilities; maternity homes; 
etc.
    Supervised Independent Living--An alternative transitional 
living arrangement where the child is under the supervision of the 
agency but without 24 hour adult supervision, is receiving financial 
support from the child welfare agency, and is in a setting which 
provides the opportunity for increased responsibility for self care.
    Runaway--The child has run away from the foster care setting.
    Trial Home Visit--The child has been in a foster care placement, 
but, under title IV-E agency supervision, has been returned to the 
principal caretaker for a limited and specified period of time.
    B. Is current placement setting outside of the State or Tribal 
service area?
    ``Yes'' indicates that the current placement setting is located 
outside of the State or the Tribal service area of the Tribal title 
IV-E agency making the report.
    ``No'' indicates that the child continues to reside within the 
State or the Tribal service area of the Tribal title IV-E agency 
making the report.
    Note: Only the title IV-E agency with placement and care 
responsibility for the child should include the child in this 
reporting system.

VI. Most Recent Case Plan Goal***

    Indicate the most recent case plan goal for the child based on 
the latest review of the child's case plan--whether a court review 
or an administrative review. If the child has been in care less than 
six months, enter the goal in the case record as determined by the 
caseworker.
    Reunify With Parents or Principal Caretaker(s)--The goal is to 
keep the child in foster care for a limited time to enable the 
agency to work with the family with whom the child had been living 
prior to entering foster care in order to reestablish a stable 
family environment.
    Live With Other Relatives--The goal is to have the child live 
permanently with a relative or relatives other than the ones from 
whom the child was removed. This could include guardianship by a 
relative(s).
    Adoption--The goal is to facilitate the child's adoption by 
relatives, foster parents or other unrelated individuals.
    Long Term Foster Care--Because of specific factors or 
conditions, it is not appropriate or possible to return the child 
home or place her or him for adoption, and the goal is to maintain 
the child in a long term foster care placement.
    Emancipation--Because of specific factors or conditions, it is 
not appropriate or possible to return the child home, have a child 
live permanently with a relative or have the child be adopted; 
therefore, the goal is to maintain the child in a foster care 
setting until the child reaches the age of majority.
    Guardianship--The goal is to facilitate the child's placement 
with an agency or unrelated caretaker, with whom he or she was not 
living prior to entering foster care, and whom a court of competent 
jurisdiction has designated as legal guardian.
    Case Plan Goal Not Yet Established--No case plan goal has yet 
been established other then the care and protection of the child.

VII. Principal Caretaker(s) Information

    A. Caretaker Family Structure--Select from the four 
alternatives--married couple, unmarried couple, single female, 
single male--the category which best describes the type of adult 
caretaker(s) from whom the child was removed for the current foster 
care episode. Enter ``Unable to Determine'' if the child has been 
abandoned or the child's caretakers are otherwise unknown.
    B. Year of Birth--Enter the year of birth for up to two 
caretakers. If the response to data element VII. A--Caretaker Family 
Structure, was 1 or 2, enter data for two caretakers. If the 
response was 3 or 4, enter data only for the first caretaker. If the 
exact year of birth is unknown, enter an estimated year of birth.

VIII. Parental Rights Termination

    Enter the month, day and year that the court terminated the 
parental rights. If the parents are known to be deceased, enter the 
date of death.

IX. Family Foster Home--Parent(s) Data

    Provide information only if data element in Section V., Part A. 
CURRENT PLACEMENT SETTING is 1, 2, or 3.
    A. Foster Family Structure--Select from the four alternatives--
married couple, unmarried couple, single female, single male--the 
category which best describes the nature of the foster parents with 
whom the child is living in the current foster care episode.
    B. Year of Birth--Enter the year of birth for up to two foster 
parents. If the response to data element IX. A.--Foster Family 
Structure, was 1 or 2, enter data for two caretakers. If the 
response was 3 or 4, enter data only for the first caretaker. If the 
exact year of birth is unknown, enter an estimated year of birth.
    C. Race--Indicate the race for each of the foster parent(s). See 
instructions and definitions for the race categories under data 
element II.C.1. Use ``f. Unable to Determine'' only when a parent is 
unwilling to identify his or her race. Hispanic or Latino 
Ethnicity--Indicate the ethnicity for each of the foster parent(s). 
See instructions and definitions under data element II.C.2. Use ``f. 
Unable to Determine'' only when a parent is unwilling to identify 
his or her ethnicity.

X. Outcome Information

    Enter data only for children who have exited foster care during 
the reporting period.
    A. Date of Discharge From Foster Care**--Enter the month, day 
and year the child was discharged from foster care. If the child has 
not been discharged from care, leave blank.
    Transaction Date**--A computer generated date which accurately 
indicates the month, day and year the response to ``Date of 
Discharge from Foster Care'' was entered into the information 
system.
    B. Reason for Discharge**.
    Reunification With Parents or Primary Caretakers--The child was 
returned to his or her principal caretaker(s)' home.
    Living With Other Relatives--The child went to live with a 
relative other than the one from whose home he or she was removed.
    Adoption--The child was legally adopted.
    Emancipation--The child reached majority according to the law by 
virtue of age, marriage, etc.
    Guardianship--Permanent custody of the child was awarded to an 
individual.
    Transfer to Another Agency--Responsibility for the care of the 
child was awarded to another agency--either in or outside of the 
State or Tribal service area.
    Runaway--The child ran away from the foster care placement.
    Death of Child--The child died while in foster care.

XI. Source(s) of Federal Support/Assistance for Child (Indicate All 
That Apply With a ``1''.)

    Title IV-E (Foster Care)--Title IV-E foster care maintenance 
payments are being paid on behalf of the child.
    Title IV-E (Adoption Subsidy)--Title IV-E adoption subsidy is 
being paid on behalf of the child who is in an adoptive home, but 
the adoption has not been legalized.
    Title IV-A (Aid to Families With Dependent Children)--Child is 
living with relative(s) whose source of support is an AFDC payment 
for the child.
    Title IV-D (Child Support)--Child support funds are being paid 
to the State agency on behalf of the child by assignment from the 
receiving parent.
    Title XIX (Medicaid)--Child is eligible for and may be receiving 
assistance under title XIX.
    SSI or Other Social Security Act Benefits--Child is receiving 
support under title XVI or

[[Page 938]]

other Social Security Act titles not included in this section.
    None of the Above--Child is receiving support only from the 
title IV-E agency, or from some other source (Federal or non-
Federal) which is not indicated above.

XII. Amount of the Monthly Foster Care Payment (Regardless of Sources)

    Enter the monthly payment paid on behalf of the child regardless 
of source (i.e., Federal, State, county, municipality, tribal, and 
private payments). If title IV-E is paid on behalf of the child the 
amount indicated should be the total computable amount. If the 
payment made on behalf of the child is not the same each month, 
indicate the amount of the last full monthly payment made during the 
reporting period. If no monthly payment has been made during the 
period, enter all zeros.

Appendix B to Part 1355--Adoption Data Elements

Section I--Adoption Data Elements

    I. General Information
    A. Title IV-E agency----
    B. Report Date ----(mo.) ----(day) ----(yr.)
    C. Record Number----
    D. Did the Title IV-E Agency Have any Involvement in This 
Adoption? ----
    Yes: 1
    No: 2

II. Child's Demographic Information

    A. Date of Birth ----(mo) ----(day) ----(yr.)
    B. Sex ----
    Male: 1
    Female: 2
    C. Race/Ethnicity
    1. Race
    a. American Indian or Alaska Native
    b. Asian
    c. Black or African American
    d. Native Hawaiian or Other Pacific Islander
    e. White
    f. Unable to Determine
    2. Hispanic or Latino Ethnicity----
    Yes: 1
    No: 2
    Unable to determine: 3

III. Special Needs Status

    A. Has the title IV-E agency determined that this child has 
special needs? ----
    Yes: 1
    No: 2
    B. If yes, indicate the primary basis for determining that this 
child has special needs ----
    Racial/Original Background: 1
    Age: 2
    Membership in a Sibling Group to be Placed for Adoption 
Together: 3
    Medical Conditions or Mental, Physical or Emotional 
Disabilities: 4
    Other: 5
    1. If III. B was ``4,'' indicate with a ``1'' the type(s) of 
disability(ies)
    Mental Retardation ----
    Visually or Hearing Impaired ----
    Physically Disabled ----
    Emotionally Disturbed (DSM III) ----
    Other Medically Diagnosed Condition Requiring Special Care ----

IV. Birth Parents

    A. Year of Birth ----
    Mother, If known ----
    Father (Putative or Legal), if known ----
    B. Was the mother married at the time of the child's birth? ----
    Yes: 1
    No: 2
    Unable to Determine: 3

V. Court Actions

    A. Dates of Termination of Parental Rights
    Mother ----(mo.) ----(day) ----(yr.)
    Father ----(mo.) ----(day) ----(yr.)
    B. Date Adoption Legalized ----(mo.) ----(day) ----(yr.)

VI. Adoptive Parents

    A. Family Structure ----
    Married Couple: 1
    Unmarried Couple: 2
    Single Female: 3
    Single Male: 4
    B. Year of Birth
    Mother (if Applicable) ----
    Father (if Applicable) ----
    C. Race/Ethnicity
    1. Adoptive Mother's Race (If Applicable)
    a. American Indian or Alaska Native
    b. Asian
    c. Black or African American
    d. Native Hawaiian or Other Pacific Islander
    e. White
    f. Unable to Determine
    2. Hispanic or Latino Ethnicity of Mother (If Applicable)----
    Yes: 1
    No: 2
    Unable to Determine: 3
    3. Adoptive Father's Race (If Applicable)
    a. American Indian or Alaska Native
    b. Asian
    c. Black or African American
    d. Native Hawaiian or Other Pacific Islander
    e. White
    f. Unable to Determine
    4. Hispanic or Latino Ethnicity of Father (If Applicable)----
    Yes: 1
    No: 2
    Unable to Determine: 3
    D. Relationship of Adoptive Parent(s) to the Child (Indicate 
with a ``1'' all that apply)
    Stepparent
    Other Relative of Child by Birth or Marriage ----
    Foster Parent of Child ----
    Non-Relative ----

VII. Placement Information

    A. Child Was Placed From ----
    Within State/Tribal Service Area: 1
    Another State/Tribal Service Area: 2
    Another Country: 3
    B. Child Was Placed by ----
    Public Agency: 1
    Private Agency: 2
    Tribal Agency: 3
    Independent Person: 4
    Birth Parent: 5

VIII. Financial Adoption Support

    A. Is a monthly financial subsidy being paid for this child? --
--
    Yes: 1
    No: 2
    B. If yes, the monthly amount ----
    C. If VIII. A is yes, is the subsidy paid under Title IV-E 
adoption assistance? ----
    Yes: 1
    No: 2

Section II--Definitions of Instructions for Adoption Data Elements

Reporting Population

    The title IV-E agency must report on all children who are 
adopted in the State or Tribal service area during the reporting 
period and in whose adoption the title IV-E agency has had any 
involvement. Failure to report on these adoptions will result in 
assessed finding of noncompliance. Reports on all other adoptions 
are encouraged but are voluntary. Therefore, reports on the 
following are mandated:
    (a) All children adopted who had been in foster care under the 
responsibility and care of the child welfare agency and who were 
subsequently adopted whether special needs or not and whether 
subsidies are provided or not;
    (b) All special needs children who were adopted in the State or 
Tribal service area, whether or not they were in the public foster 
care system prior to their adoption and for whom non-recurring 
expenses were reimbursed; and
    (c) All children adopted for whom an adoption assistance payment 
or service is being provided based on arrangements made by or 
through the title IV-E agency.
    These children must be identified by answering ``yes'' to data 
element I.D. Children who are reported by the title IV-E agency, but 
for whom there has not been any title IV-E agency involvement, and 
whose reporting, therefore, has not been mandated, are identified by 
answering ``no'' to element I.D.

I. General Information

    A. Title IV-E agency--For a State, the U.S. Postal Service two 
letter abbreviation for the State submitting the report. For a 
Tribal title IV-E agency, the two letter abbreviation provided by 
ACF.
    B. Report Date--The last month and the year for the reporting 
period.
    C. Record Number--The sequential number which the title IV-E 
agency uses to transmit data to the Department of Health and Human 
Services (DHHS). The record number cannot be linked to the child 
except at the title IV-E agency level.
    D. Did the title IV-E Agency Have Any Involvement in This 
Adoption?
    Indicate whether the title IV-E agency had any involvement in 
this adoption, that is, whether the adopted child belongs to one of 
the following categories:
     A child who had been in foster care under the 
responsibility and care of the child welfare agency and who was 
subsequently adopted whether special needs or not and whether a 
subsidy was provided;
     A special needs child who was adopted in the State or 
Tribal service area, whether or not he/she was in the public foster 
care system prior to his/her adoption and for whom non-recurring 
expenses were reimbursed; or

[[Page 939]]

     A child for whom an adoption assistance payment or 
service is being provided based on arrangements made by or through 
the title IV-E agency.

II. Child's Demographic Information

    A. Date of Birth--Month and year of the child's birth. If the 
child was abandoned or the date of birth is otherwise unknown, enter 
an approximate date of birth.
    B. Sex--Indicate as appropriate.
    C. Race/Ethnicity
    1. Race--In general, a person's race is determined by how they 
define themselves or by how others define them. In the case of young 
children, parents determine the race of the child. Indicate all 
races (a-e) that apply with a ``1.'' For those that do not apply, 
indicate a ``0.'' Indicate ``f. Unable to Determine'' with a 1'' if 
it applies and a ``0'' if it does not.
    American Indian or Alaska Native--A person having origins in any 
of the original peoples of North or South America (including Central 
America), and who maintains tribal affiliation or community 
attachment.
    Asian--A person having origins in any of the original peoples of 
the Far East, Southeast Asia, or the Indian subcontinent including, 
for example, Cambodia, China, India, Japan, Korea, Malaysia, 
Pakistan, the Philippine Islands, Thailand, and Vietnam.
    Black or African American--A person having origins in any of the 
black racial groups of Africa.
    Native Hawaiian or Other Pacific Islander--A person having 
origins in any of the original peoples of Hawaii, Guam, Samoa, or 
other Pacific Islands.
    White--A person having origins in any of the original peoples of 
Europe, the Middle East, or North Africa.
    Unable to Determine--The specific race category is ``unable to 
determine'' because the child is very young or is severely disabled 
and no person is available to identify the child's race. ``Unable to 
determine'' is also used if the parent, relative or guardian is 
unwilling to identify the child's race.
    2. Hispanic or Latino Ethnicity--Answer ``yes'' if the child is 
of Mexican, Puerto Rican, Cuban, Central or South American origin, 
or a person of other Spanish cultural origin regardless of race. 
Whether or not a person is Hispanic or Latino is determined by how 
they define themselves or by how others define them. In the case of 
young children, parents determine the ethnicity of the child. 
``Unable to Determine'' is used because the child is very young or 
is severely disabled and no other person is available to determine 
whether or not the child is Hispanic or Latino. ``Unable to 
determine'' is also used if the parent, relative or guardian is 
unwilling to identify the child's ethnicity.

III. Special Needs Status

    A. Has the title IV-E Agency Determined That the Child has 
Special Needs? Use the title IV-E agency definition of special needs 
as it pertains to a child eligible for an adoption subsidy under 
title IV-E.
    B. Primary Factor or Condition for Special Needs--Indicate only 
the primary factor or condition for categorization as special needs 
and only as it is defined by the title IV-E agency. Racial/Original 
Background--Primary condition or factor for special needs is racial/
original background as defined by the title IV-E agency.
    Age--Primary factor or condition for special needs is age of the 
child as defined by the title IV-E agency.
    Membership in a Sibling Group to be Placed for Adoption 
Together--Primary factor or condition for special needs is 
membership in a sibling group as defined by the title IV-E agency.
    Medical Conditions of Mental, Physical, or Emotional 
Disabilities--Primary factor or condition for special needs is the 
child's medical condition as defined by the title IV-E agency, but 
clinically diagnosed by a qualified professional.
    When this is the response to question B, then item 1 below must 
be answered.
    1. Types of Disabilities--Data are only to be entered if 
response to III.B was ``4.'' Indicate with a ``1'' the types of 
disabilities.
    Mental Retardation--Significantly subaverage general cognitive 
and motor functioning existing concurrently with deficits in 
adaptive behavior manifested during the developmental period that 
adversely affect a child's/youth's socialization and learning.
    Visually or Hearing Impaired--Having a visual impairment that 
may significantly affect educational performance or development; or 
a hearing impairment, whether permanent or fluctuating, that 
adversely affects educational performance.
    Physically Disabled--A physical condition that adversely affects 
the child's day-to-day motor functioning, such as cerebral palsy, 
spina bifida, multiple sclerosis, orthopedic impairments, and other 
physical disabilities.
    Emotionally Disturbed (DSM III)--A condition exhibiting one or 
more of the following characteristics over a long period of time and 
to a marked degree: An inability to build or maintain satisfactory 
interpersonal relationships; inappropriate types of behavior or 
feelings under normal circumstances; a general pervasive mood of 
unhappiness or depression; or a tendency to develop physical 
symptoms or fears associated with personal problems. The term 
includes persons who are schizophrenic or autistic. The term does 
not include persons who are socially maladjusted, unless it is 
determined that they are also seriously emotionally disturbed. 
Diagnosis is based on the Diagnostic and Statistical Manual of 
Mental Disorders (Third Edition) (DSM III) or the most recent 
edition.
    Other Medically Diagnosed Conditions Requiring Special Care--
Conditions other than those noted above which require special 
medical care such as chronic illnesses. Included are children 
diagnosed as HIV positive or with AIDS.

IV. Birth Parents

    A. Year of Birth--Enter the year of birth for both parents, if 
known. If the child was abandoned and no information was available 
on either one or both parents, leave blank for the parent(s) for 
which no information was available.
    B. Was the Mother Married at the Time of the Child's Birth?
    Indicate whether the mother was married at time of the child's 
birth; include common law marriage if legal in the State or Tribe. 
If the child was abandoned and no information was available on the 
mother, enter ``Unable to Determine.''

V. Court Actions

    A. Dates of Termination of Parental Rights--Enter the month, day 
and year that the court terminated parental rights. If the parents 
are known to be deceased, enter the date of death.
    B. Date Adoption Legalized--Enter the date the court issued the 
final adoption decree.

VI. Adoptive Parents

    A. Family Structure--Select from the four alternatives--married 
couple, unmarried couple, single female, single male--the category 
which best describes the nature of the adoptive parent(s) family 
structure.
    B. Year of Birth--Enter the year of birth for up to two adoptive 
parents. If the response to data element IV.A--Family Structure, was 
1 or 2, enter data for two parents. If the response was 3 or 4, 
enter data only for the appropriate parent. If the exact year of 
birth is unknown, enter an estimated year of birth.
    C. Race/Ethnicity--Indicate the race/ethnicity for each of the 
adoptive parent(s). See instructions and definitions for the race/
ethnicity categories under data element II.C. Use ``f. Unable to 
Determine'' only when a parent is unwilling to identify his or her 
race or ethnicity.
    D. Relationship to Adoptive Parent(s)--Indicate the prior 
relationship(s) the child had with the adoptive parent(s).
    Stepparent--Spouse of the child's birth mother or birth father.
    Other Relative of Child by Birth or Marriage--A relative through 
the birth parents by blood or marriage.
    Foster Parent of Child--Child was placed in a non-relative 
foster family home with a family which later adopted him or her. The 
initial placement could have been for the purpose of adoption or for 
the purpose of foster care.
    Non-Relative--Adoptive parent fits into none of the categories 
above.

VII. Placement Information

    A. Child Was Placed From: Indicate the location of the 
individual or agency that had custody or responsibility for the 
child at the time of initiation of adoption proceedings.
    Within State or Tribal service area--Responsibility for the 
child resided with an individual or agency within the State or 
service area of the Tribal title IV-E agency filing the report.
    Another State or Tribal service area--Responsibility for the 
child resided with an individual or agency in another State, Tribal 
service area, or territory of the United States.
    Another Country--Immediately prior to the adoptive placement, 
the child was residing in another country and was not a citizen of 
the United States.
    B. Child Was Placed By: Indicate the individual or agency which 
placed the child for adoption.
    Public Agency--A unit of State or local government.
    Private Agency--A for-profit or non-profit agency or 
institution.

[[Page 940]]

    Tribal Agency--A unit within one of the federally recognized 
Indian Tribes, Indian Tribal organizations, or Indian Tribal 
consortia.
    Independent Person--A doctor, a lawyer or some other individual.
    Birth Parent--The parent(s) placed the child directly with the 
Adoptive parent(s).

VIII. Adoption Support

    A. Is The Child Receiving a Monthly Subsidy?
    Enter ``yes'' if this child was adopted with an adoption 
assistance agreement under which regular subsidies (Federal, State, 
or Tribal) are paid.
    B. Monthly Amount--Indicate the monthly amount of the subsidy. 
The amount of the subsidy should be rounded to the nearest dollar. 
Indicate ``0'' if the subsidy includes only benefits under titles 
XIX or XX of the Social Security Act.
    C. If VIII.A is ``Yes,'' is Child Receiving Title IV-E Adoption 
Subsidy?
    If VIII.A is ``yes,'' indicate whether the subsidy is claimed by 
the title IV-E agency for reimbursement under title IV-E. Do not 
include title IV-E non-recurring costs in this item.

Appendix C to Part 1355--Electronic Data Transmission Format

    All AFCARS data to be sent from title IV-E agencies to the 
Department are to be in electronic form. In order to meet this 
general specification, the Department will offer as much flexibility 
as possible. Technical assistance will be provided to negotiate a 
method of transmission best suited to the title IV-E agency's 
environment.
    There will be four semi-annual electronic data transmissions 
from the title IV-E agency to the Administration for Children and 
Families (ACF).
    Regardless of the electronic data transmission methodology 
selected, certain criteria must be met by the title IV-E agency:
    (1) Records must be written using ASCII standard character 
format.
    (2) All elements must be comprised of integer (numeric) 
value(s). Element character length specifications refer to the 
maximum number of numeric values permitted for that element. See 
Appendix D.
    (3) All records must be a fixed length. The Foster Care Detailed 
Data Elements Record is 150 characters long and the Adoption 
Detailed Data Elements Record is 72 characters long. The Foster Care 
Summary Data Elements Record and the Adoption Summary Data Elements 
Record are each 172 characters long.
    (4) All title IV-E agencies must inform the Department, in 
writing, of the method of transfer they intend to use.

Appendix D to Part 1355--Foster Care and Adoption Record Layouts

A. Foster Care

1. Foster Care Semi-Annual Detailed Data Elements Record

    a. The record will consist of 66 data elements.
    b. Data must be supplied for each of the elements in accordance 
with these instructions:
    (1) All data must be numeric. Enter the appropriate value for 
each element.
    (2) Enter date values in year, month and day order (YYYYMMDD), 
e.g., 19991030 for October 30, 1999, or year and month order 
(YYYYMM), e.g., 199910 for October 1999. Leave the element value 
blank if dates are not applicable.
    (3) For elements 8, 11-15, 26-40, 52, 54 and 59-65, which are 
``select all that apply'' elements, enter a ``1'' for each element 
that applies, enter a zero for non-applicable elements.
    (4) Transaction Date--is a computer generated date indicating 
when the datum (Elements 21 or 55) is entered into the title IV-E 
agency's automated information system.
    (5) Report the status of all children in foster care as of the 
last day of the reporting period. Also, provide data for all 
children who were discharged from foster care at any time during the 
reporting period, or in the previous reporting period, if not 
previously reported.
    c. Foster Care Semi-Annual Detailed Data Elements Record Layout 
follows:

----------------------------------------------------------------------------------------------------------------
                                                                                                    Number of
           Element No.                 Appendix A data element       Data element description        numeric
                                                                                                   characters
----------------------------------------------------------------------------------------------------------------
01..............................  I.A.............................  Title IV-E agency.........                 2
02..............................  I.B.............................  Report period ending date.                 6
03..............................  I.C.............................  Local Agency FIPS code                     5
                                                                     (county or equivalent
                                                                     jurisdiction) or other
                                                                     ACF assigned code.
04..............................  I.D.............................  Record number.............                12
05..............................  I.E.............................  Date of most recent                        8
                                                                     periodic review.
06..............................  II.A............................  Child's date of birth.....                 8
07..............................  II.B............................  Sex.......................                 1
08..............................  II.C.1..........................  Race......................  ................
08a.............................  ................................  American Indian or Alaska                  1
                                                                     native.
08b.............................  ................................  Asian.....................                 1
08c.............................  ................................  Black or African American.                 1
08d.............................  ................................  Native Hawaiian or Other                   1
                                                                     Pacific Islander.
08e.............................  ................................  White.....................                 1
08f.............................  ................................  Unable to Determine.......                 1
09..............................  II.C.2..........................  Hispanic or Latino                         1
                                                                     Ethnicity.
10..............................  II.D............................  Has this child been                        1
                                                                     clinically diagnosed as
                                                                     having a disability(ies).
                                                                    Indicate each type of       ................
                                                                     disability of the child
                                                                     with a ``1'' for elements
                                                                     11-15 and a zero for
                                                                     disabilities that do not
                                                                     apply.
11..............................  II.D.1.a........................  Mental retardation........                 1
12..............................  II.D.1.b........................  Visually or hearing                        1
                                                                     impaired.
13..............................  II.D.1.c........................  Physically disabled.......                 1
14..............................  II.D.1.d........................  Emotionally disturbed (DSM                 1
                                                                     III).
15..............................  II.D.1.e........................  Other medically diagnosed                  1
                                                                     condition requiring
                                                                     special care.
16..............................  II.E.1..........................  Has this child ever been                   1
                                                                     adopted.
17..............................  II.E.2..........................  If yes, how old was the                    1
                                                                     child when the adoption
                                                                     was legalized?
18..............................  III.A.1.........................  Date of first removal from                 8
                                                                     home.
19..............................  III.A.2.........................  Total number of removals                   2
                                                                     from home to date.
20..............................  III.A.3.........................  Date child was discharged                  8
                                                                     from last foster care
                                                                     episode.
21..............................  III.A.4.........................  Date of latest removal                     8
                                                                     from home.
22..............................  III.A.5.........................  Removal transaction date..                 8
23..............................  III.B.1.........................  Date of placement in                       8
                                                                     current foster care
                                                                     setting.
24..............................  III.B.2.........................  Number of previous                         2
                                                                     placement settings during
                                                                     this removal episode.
25..............................  IV.A............................  Manner of removal from                     1
                                                                     home for current
                                                                     placement episode.
                                                                    Actions or conditions       ................
                                                                     associated with child's
                                                                     removal: Indicate with a
                                                                     ``1'' for elements 26-40
                                                                     and a zero for conditions
                                                                     that do not apply.

[[Page 941]]

 
26..............................  IV.B.1..........................  Physical abuse (alleged/                   1
                                                                     reported).
27..............................  IV.B.2..........................  Sexual abuse (alleged/                     1
                                                                     reported).
28..............................  IV.B.3..........................  Neglect (alleged/reported)                 1
29..............................  IV.B.4..........................  Alcohol abuse (parent)....                 1
30..............................  IV.B.5..........................  Drug abuse (parent).......                 1
31..............................  IV.B.6..........................  Alcohol abuse (child).....                 1
32..............................  IV.B.7..........................  Drug abuse (child)........                 1
33..............................  IV.B.8..........................  Child's disability........                 1
34..............................  IV.B.9..........................  Child's behavior problem..                 1
35..............................  IV.B.10.........................  Death of parent(s)........                 1
36..............................  IV.B.11.........................  Incarceration of parent(s)                 1
37..............................  IV.B.12.........................  Caretaker's inability to                   1
                                                                     cope due to illness or
                                                                     other reasons.
38..............................  IV.B.13.........................  Abandonment...............                 1
39..............................  IV.B.14.........................  Relinquishment............                 1
40..............................  IV.B.15.........................  Inadequate housing........                 1
41..............................  V.A.............................  Current placement setting.                 1
42..............................  V.B.............................  Out of State/Tribal                        1
                                                                     service area placement.
43..............................  VI..............................  Most recent case plan goal                 1
44..............................  VII.A...........................  Caretaker family structure                 1
45..............................  VII.B.1.........................  Year of birth (1st                         4
                                                                     principal caretaker).
46..............................  VII.B.2.........................  Year of birth (2nd                         4
                                                                     principal caretaker).
47..............................  VIII.A..........................  Date of mother's parental                  8
                                                                     rights termination.
48..............................  VIII.B..........................  Date of legal or putative                  8
                                                                     father's parental rights.
49..............................  IX.A............................  Foster family structure...                 1
50..............................  IX.B.1..........................  Year of birth (1st foster                  4
                                                                     caretaker).
51..............................  IX.B.2..........................  Year of birth (2nd foster                  4
                                                                     caretaker).
52..............................  IX.C.1..........................  Race of 1st foster          ................
                                                                     caretaker.
52a.............................  ................................  American Indian or Alaska                  1
                                                                     Native.
52b.............................  ................................  Asian.....................                 1
52c.............................  ................................  Black or Asian American...                 1
52d.............................  ................................  Native Hawaiian or Other                   1
                                                                     Pacific Islander.
52e.............................  ................................  White.....................                 1
52f.............................  ................................  Unable to Determine.......                 1
53..............................  IX.C.2..........................  Hispanic or Latino                         1
                                                                     ethnicity of 1st foster
                                                                     caretaker.
54..............................  IX.C.3..........................  Race of 2nd foster          ................
                                                                     caretaker.
54a.............................  ................................  American Indian or Alaska                  1
                                                                     Native.
54b.............................  ................................  Asian.....................                 1
54c.............................  ................................  Black or African American.                 1
54d.............................  ................................  Native Hawaiian or Other                   1
                                                                     Pacific Islander.
54e.............................  ................................  White.....................                 1
54f.............................  ................................  Unable to Determine.......                 1
55..............................  IX.C.4..........................  Hispanic or Latino                         1
                                                                     ethnicity of 2nd foster
                                                                     caretaker.
56..............................  X.A.1...........................  Date of discharge from                     8
                                                                     foster care.
57..............................  X.A.2...........................  Foster care discharge                      8
                                                                     transaction date.
58..............................  X.B.............................  Reason for discharge......                 1
                                                                    Sources of Federal support/ ................
                                                                     assistance for child;
                                                                     indicate with a ``1'' for
                                                                     elements 58-64 and a zero
                                                                     for sources that do not
                                                                     apply.
59..............................  XI.A............................  Title IV-E (Foster Care)..                 1
60..............................  XI.B............................  Title IV-E (Adoption                       1
                                                                     Assistance).
61..............................  XI.C............................  Title IV-A (Aid to                         1
                                                                     Families With Dependent
                                                                     Children).
62..............................  XI.D............................  Title IV-D (Child Support)                 1
63..............................  XI.E............................  Title XIX (Medicaid)......                 1
64..............................  XI.F............................  SSI or other Social                        1
                                                                     Security Act benefits.
65..............................  XI.G............................  None of the above.........                 1
66..............................  XII.............................  Amount of monthly foster                   5
                                                                     care payment (regardless
                                                                     of source).
                                                                                               -----------------
                                                                       Total characters.......               197
----------------------------------------------------------------------------------------------------------------

    2. Foster Care Semi-Annual Summary Data Elements Record
    a. The record will consist of 22 data elements.
    The values for these data elements are generated by processing 
all records in the semi-annual detailed data transmission and 
computing the summary values for Elements 1 and 3-22. Element 2 is 
the semi-annual report period ending date. In calculating the age 
range for the child, the last day of the reporting period is to be 
used.
    b. Data must be supplied for each of the elements in accordance 
with these instructions:
    (1) Enter the appropriate value for each element.
    (2) For all elements where the total is zero, enter a numeric 
zero.
    (3) Enter date values in year, month order (YYYYMM), e.g.,199912 
for December 1999.
    c. Foster Care Semi-Annual Summary Data Elements Record Layout 
follows:

------------------------------------------------------------------------
                                                            Number of
        Element No.              Summary data file         characters
------------------------------------------------------------------------
01........................  Number of records.........                 8

[[Page 942]]

 
02........................  Report period ending date                  6
                             (YYYYMM).
03........................  Children in care under 1                   8
                             year.
04........................  Children in care 1 year                    8
                             old.
05........................  Children in care 2 years                   8
                             old.
06........................  Children in care 3 years                   8
                             old.
07........................  Children in care 4 years                   8
                             old.
08........................  Children in care 5 years                   8
                             old.
09........................  Children in care 6 years                   8
                             old.
10........................  Children in care 7 years                   8
                             old.
11........................  Children in care 8 years                   8
                             old.
12........................  Children in care 9 years                   8
                             old.
13........................  Children in care 10 years                  8
                             old.
14........................  Children in care 11 years                  8
                             old.
15........................  Children in care 12 years                  8
                             old.
16........................  Children in care 13 years                  8
                             old.
17........................  Children in care 14 years                  8
                             old.
18........................  Children in care 15 years                  8
                             old.
19........................  Children in care 16 years                  8
                             old.
20........................  Children in care 17 years                  8
                             old.
21........................  Children in care 18 years                  8
                             old.
22........................  Children in care over 18                   8
                             years old.
                                                       -----------------
                               Record Length..........               174
------------------------------------------------------------------------

B. Adoption

1. Adoption Semi-Annual Detailed Data Elements Record

    a. The record will consist of 37 data elements.
    b. Data must be supplied for each of the elements in accordance 
with these instructions:
    (1) Enter the appropriate value for each element.
    (2) Enter date values in year, month and day order (YYYYMMDD), 
e.g., 19991030 for October 30, 1999, or year and month (YYYYMM), 
e.g., 199910 for October 1999. Leave the element value blank if 
dates are not applicable.
    (3) For elements 7, 11-15, 25, 27 and 29-32 which are ``select 
all that apply'' elements, enter a ``1'' for each element that 
applies; enter a zero for non-applicable elements.
    c. Adoption Semi-Annual Detailed Data Elements Record Layout 
follows:

----------------------------------------------------------------------------------------------------------------
                                                                                                    Number of
           Element No.                 Appendix B data element       Data element description        numeric
                                                                                                   characters
----------------------------------------------------------------------------------------------------------------
01..............................  I.A.............................  Title IV-E agency.........                 2
02..............................  I.B.............................  Report period ending date.                 6
03..............................  I.C.............................  Record number.............                 6
04..............................  I.D.............................  Title IV-E agency                          1
                                                                     involvement.
05..............................  II.A............................  Date of birth.............                 6
06..............................  II.B............................  Sex.......................                 1
07..............................  II.C.1..........................  Race......................  ................
07a.............................  ................................  American Indian or Alaska                  1
                                                                     Native.
07b.............................  ................................  Asian.....................                 1
07c.............................  ................................  Black or African American.                 1
07d.............................  ................................  Native Hawaiian or Other                   1
                                                                     Pacific Islander.
07e.............................  ................................  White.....................                 1
07f.............................  ................................  Unable to Determine.......                 1
08..............................  II.C.2..........................  Hispanic or Latino                         1
                                                                     ethnicity.
09..............................  III.A...........................  Has the title IV-E agency                  1
                                                                     determined that this
                                                                     child has special needs.
10..............................  III.B...........................  Primary basis for special                  1
                                                                     needs.
                                                                    Indicate a primary basis    ................
                                                                     of special needs with a
                                                                     ``1'' for elements 11-15.
                                                                     Enter a zero for special
                                                                     needs that do not apply.
11..............................  III.B.1.a.......................  Mental retardation........                 1
12..............................  III.B.1.b.......................  Visually or hearing                        1
                                                                     impaired.
13..............................  III.B.1.c.......................  Physically disabled.......                 1
14..............................  III.B.1.d.......................  Emotionally disturbed (DSM                 1
                                                                     III).
15..............................  III.B.1.e.......................  Other medically diagnosed                  1
                                                                     condition requiring
                                                                     special care.
16..............................  IV.A.1..........................  Mother's year of birth....                 4
17..............................  IV.A.2..........................  Father's (Putative or                      4
                                                                     legal) year of birth.
18..............................  IV.B............................  Was the mother married at                  1
                                                                     time of child's birth.
19..............................  V.A.1...........................  Date of mother's                           8
                                                                     termination of parental
                                                                     rights.
20..............................  V.A.2...........................  Date of father's                           8
                                                                     termination of parental
                                                                     rights.
21..............................  V.B.............................  Date adoption legalized...                 8
22..............................  VI.A............................  Adoptive parents family                    1
                                                                     structure.
23..............................  VI.B.1..........................  Mother's year of birth (if                 4
                                                                     applicable).
24..............................  VI.B.2..........................  Father's year of birth (if                 4
                                                                     applicable).
25..............................  VI.C.1..........................  Adoptive mother's race....  ................
25a.............................  ................................  American Indian or Alaska                  1
                                                                     Native.
25b.............................  ................................  Asian.....................                 1

[[Page 943]]

 
25c.............................  ................................  Black or African American.                 1
25d.............................  ................................  Native Hawaiian or Other                   1
                                                                     Pacific Islander.
25e.............................  ................................  White.....................                 1
25f.............................  ................................  Unable to Determine.......                 1
26..............................  VI.C.2..........................  Hispanic or Latino                         1
                                                                     Ethnicity.
27..............................  VI.C.3..........................  Adoptive father's race....  ................
27a.............................  ................................  American Indian or Alaska                  1
                                                                     Native.
27b.............................  ................................  Asian.....................                 1
27c.............................  ................................  Black or African American.                 1
27d.............................  ................................  Native Hawaiian or Other                   1
                                                                     Pacific Islander.
27e.............................  ................................  White.....................                 1
27f.............................  ................................  Unable to Determine.......                 1
28..............................  VI.C.4..........................  Hispanic or Latino                         1
                                                                     Ethnicity.
                                                                    Indicate each type of       ................
                                                                     relationship of adoptive
                                                                     parent(s) to the child
                                                                     with a ``1'' for elements
                                                                     29-32. Enter a zero for
                                                                     relationships that do not
                                                                     apply below.
29..............................  VI.D.1..........................  Stepparent................                 1
30..............................  VI.D.2..........................  Other relative of child by                 1
                                                                     birth or marriage.
31..............................  VI.D.3..........................  Foster parent of child....                 1
32..............................  VI.D.4..........................  Other non-relative........                 1
33..............................  VII.A...........................  Child was placed from.....                 1
34..............................  VII.B...........................  Child was placed by.......                 1
35..............................  VIII.A..........................  Is this child receiving a                  1
                                                                     monthly subsidy.
36..............................  VIII.B..........................  If VIII.B is ``yes.'' What                 5
                                                                     is the monthly amount.
37..............................  VIII.C..........................  If VII.B is ``yes.'' Is                    1
                                                                     the child receiving title
                                                                     IV-E adoption assistance?.
                                                                                               -----------------
                                                                       Total Characters.......  ................
----------------------------------------------------------------------------------------------------------------

2. Adoption Semi-Annual Summary Data Elements Record

    a. The record will consist of 22 data elements.
    The values for these data elements are generated by processing 
all records in the semi-annual detailed data transmission and 
computing the summary values for Elements 1 and 3-22. Element 2 is 
the semi-annual report period ending date. In calculating the age 
range for the child, the last day of the reporting period is to be 
used.
    b. Data must be supplied for each of the elements in accordance 
with these instructions:
    (1) Enter the appropriate value for each element.
    (2) For all elements where the total is zero, enter a numeric 
zero.
    (3) Enter data values in year, month order (YYYYMM), e.g., 
199912 for December 1999.
    c. Adoption Semi-Annual Summary Data Element Record Layout 
follows:

------------------------------------------------------------------------
                                                            Number of
        Element No.              Summary data file         characters
------------------------------------------------------------------------
01........................  Number of records.........                 8
02........................  Report period ending date                  6
                             (YYYYMM).
03........................  Children adopted Under 1                   8
                             year old.
04........................  Children adopted 1 year                    8
                             old.
05........................  Children adopted 2 years                   8
                             old.
06........................  Children adopted 3 years                   8
                             old.
07........................  Children adopted 4 years                   8
                             old.
08........................  Children adopted 5 years                   8
                             old.
09........................  Children adopted 6 years                   8
                             old.
10........................  Children adopted 7 years                   8
                             old.
11........................  Children adopted 8 years                   8
                             old.
12........................  Children adopted 9 years                   8
                             old.
13........................  Children adopted 10 years                  8
                             old.
14........................  Children adopted 11 years                  8
                             old.
15........................  Children adopted 12 years                  8
                             old.
16........................  Children adopted 13 years                  8
                             old.
17........................  Children adopted 14 years                  8
                             old.
18........................  Children adopted 15 years                  8
                             old.
19........................  Children adopted 16 years                  8
                             old.
20........................  Children adopted 17 years                  8
                             old.
21........................  Children adopted 18 years                  8
                             old.
22........................  Children adopted over 18                   8
                             years old.
                                                       -----------------
                               Record Length..........               174
------------------------------------------------------------------------

Appendix E to Part 1355--Data Standards

    All data submissions will be evaluated to determine the 
completeness and internal consistency of the data. Four types of 
assessments will be conducted on both the foster care and adoption 
data submissions. The results of these assessments will determine 
the applicability of a substantial noncompliance determination with 
the title IV-E plan.
    The four types of assessments are:
     Comparisons of the detailed data to summary data;

[[Page 944]]

     Internal consistency checks of the detailed data;
     An assessment of the status of missing data; and
     Timeliness, an assessment of how current the submitted 
data are.

A. Foster Care

1. Summary Data Elements Submission Standards

    A summary file must accompany the Detailed Data Elements 
submission. Both transmissions must be sent through electronic means 
(see appendix C for details). This summary will be used to verify 
basic counts of records on the detailed data received.
    a. The summary file must be a discrete file separate from the 
semi-annual reporting period detailed data file. The record layout 
for the summary file is included in appendix D. section A.2.c. All 
data must be included. If the value for a numeric field is zero, 
zero must be entered.
    b. The Department will develop a second summary file by 
computing the values from the detailed data file received from the 
title IV-E agency. The two summary files (the one submitted by the 
title IV-E agency and the one created during Federal processing) 
will be compared, field by field. If the two files match, further 
validation of the detailed data elements will commence. If the two 
summary files do not match, we will assume that there has been an 
error in transmission and will request a retransmission from the 
title IV-E agency within 24 hours of the time the title IV-E agency 
has been notified. In addition, a log of these occurrences will be 
kept as a means of cataloging problems and offering suggestions on 
improved procedures.

2. Detailed Data File Submission Standards

    a. Internal Consistency Validations.
    Internal consistency validations involve evaluating the logical 
relationships between data elements in a detailed record. For 
example, a child cannot be discharged from foster care before he or 
she has been removed from his or her home. Thus, the Date of Latest 
Removal From Home data element must be a date prior to the Date of 
Discharge. If this is not the case, an internal inconsistency will 
be detected and an ``error'' indicated in the detailed data file.
    A number of data elements have ``if applicable'' contingency 
relationships with other data elements in the detailed record. For 
example, if the Foster Family Structure has only a single parent, 
then the appropriate sex of the Single Female/Male element in the 
``Year of Birth'' and ``Race/Origin'' elements must be completed and 
the ``non-applicable'' fields for these elements are to be filled 
with zero's or, for dates, left blank.
    The internal consistency validations that will be performed on 
the foster care detailed data are as follows:
    (1) The Local Agency must be the county or a county equivalent 
unit which has responsibility for the case. The 5 digit Federal 
Information Processing Standard (FIPS) or other ACF assigned code 
must be used.
    (2) If Date of Latest Removal From Home (Element 21) is less 
than nine months prior to the Report Period Ending Date (Element 2) 
then the Date of Most Recent Periodic Review (Element 5) may be left 
blank.
    (3) If Date of Latest Removal From Home (Element 21) is greater 
than nine months from Report Date (Element 2) then the Date of Most 
Recent Periodic Review (Element 5) must not be more than nine months 
prior to the Report Date (Element 2).
    (4) If a child is identified as having a disability(ies) 
(Element 10), at least one Type of Disability Condition (Elements 
11-15) must be indicated. Enter a zero (0) for disabilities that do 
not apply.
    (5) If the Total Number of Removals From Home to Date (Element 
19) is one (1), the Date Child was Discharged From Last Foster Care 
Episode (Element 20) must be blank.
    (6) If the Total Number of Removals From Home to Date (Element 
19) is two or more, then the Date Child was Discharged From Last 
Foster Care Episode (Element 20) must not be blank.
    (7) If Date Child was Discharged From Last Foster Care Episode 
(Element 20) exists, then this date must be a date prior to the Date 
of Latest Removal From Home (Element 21).
    (8) The Date of Latest Removal From Home (Element 21) must be 
prior to the Date of Placement in Current Foster Care Setting 
(Element 23).
    (9) At least one element between elements 26 and 40 must be 
answered by selecting a ``1''. Enter a zero (0) for conditions that 
do not apply.
    (10) If Current Placement Setting (Element 41) is a value that 
indicates that the child is not in a foster family or a pre-adoptive 
home, then elements 49-55 must be zero (0).
    (11) At least one element between elements 59 and 65 must be 
answered by selecting a ``1''. Enter a zero for sources that do not 
apply.
    (12) If the answer to the question, ``Has this child ever been 
adopted?'' (Element 16) is ``1'' (Yes), then the question, ``How old 
was the child when the adoption was legalized?'' (Element 17) must 
have an answer from ``1'' to ``5.''
    (13) If the Date of Most Recent Periodic Review (Element 5) is 
not blank, then Manner of Removal From Home for Current Placement 
Episode (Element 25) cannot be option 3, ``Not Yet Determined.''
    (14) If Reason for Discharge (Element 58) is option 3, 
``Adoption,'' then Parental Rights Termination dates (Elements 46 
and 47) must not be blank.
    (15) If the Date of Latest Removal From Home (Element 21) is 
present, the Date of Latest Removal From Home Transaction Date 
(Element 22) must be present and must be later than or equal to the 
Date of Latest Removal From Home (Element 21).
    (16) If the Date of Discharge From Foster Care (Element 56) is 
present, the Date of Discharge From Foster Care Transaction Date 
(Element 57) must be present and must be later than or equal to the 
Date of Discharge From Foster Care (Element 56).
    (17) If the Date of Discharge From Foster Care (Element 56) is 
present, it must be after the Date of Latest Removal From Home 
(Element 21).
    (18) In Elements 8, 52, and 54, race categories (``a'' through 
``e'') and ``f. Unable to Determine'' cannot be coded ``0,'' for it 
does not apply. If any of the race categories apply and are coded as 
``1'' then ``f. Unable to Determine'' cannot also apply.
    b. Out-of-Range Standards.
    Out-of-range standards relate to the occurrence of values in 
response to data elements that exceed, either positively or 
negatively, the acceptable range of responses to the question. For 
example, if the acceptable responses to the element, Sex of the 
Adoptive Child, is ``1'' for a male and ``2'' for a female, but the 
datum provided in the element is ``3,'' this represents an out-of-
range response situation.
    Out-of-range comparisons will be made for all elements. The 
acceptable values are described in Appendix A, Section I.

3. Missing Data Standards

    The term ``missing data'' refers to instances where data for an 
element are required but are not present in the submission. Data 
elements with values of ``Unable to Determine,'' ``Not Yet 
Determined'' or which are not applicable, are not considered 
missing.
    a. In addition, the following situations will result in 
converting data values to a missing data status:
    (1) Data elements whose values fail internal consistency 
validations as outlined in A.2.a.(1)-(18) above, and
    (2) Data elements whose values are out-of-range.
    b. The maximum amount of allowable missing data is dependent on 
the data elements as described below:
    (1) No Missing Data.
    The data for the elements listed below must be present in all 
records in the submission. If any record contains missing data for 
any of these elements, the entire submission will be considered 
missing and processing will not proceed.

------------------------------------------------------------------------
            Element No.                         Element name
------------------------------------------------------------------------
01................................  Title IV-E agency.
02................................  Report date.
03................................  Local agency FIPS code or other ACF
                                     assigned code.
04................................  Record number.
------------------------------------------------------------------------

    (2) Less Than Ten Percent Missing Data.
    The data for the elements listed below cannot have ten percent 
or more missing data without incurring a finding of substantial 
noncompliance with the title IV-E plan.

------------------------------------------------------------------------
            Element No.                      Element description
------------------------------------------------------------------------
05................................  Date of most recent periodic,
                                     review.
06................................  Child's date of birth.
07................................  Child's sex.
08................................  Child's race.
09................................  Child's Hispanic or Latino
                                     Ethnicity.
10................................  Does child have a disability(ies)?
11-15.............................  Type of disability (at least one
                                     must be selected).
16................................  Has child been adopted?
17................................  How old was child when adoption was
                                     legalized?

[[Page 945]]

 
18................................  Date of first removal from home.
19................................  Total number of removals from home
                                     to date.
20................................  Date child was discharged from last
                                     foster care.
21................................  Date of latest removal from home.
22................................  Removal transaction date.
23................................  Date of placement in current foster
                                     care setting.
24................................  Number of previous placement
                                     settings during this removal
                                     episode.
25................................  Manner of removal from home for
                                     current placement episode.
26-40.............................  Actions or conditions associated
                                     with child's removal (at least one
                                     must be selected).
41................................  Current placement setting.
42................................  Out of State/Tribal service area
                                     placement.
43................................  Most recent case plan goal.
44................................  Caretaker family structure.
45................................  Year of birth of 1st principal
                                     caretaker.
46................................  Year of birth of 2nd principal
                                     caretaker.
47................................  Date of mother's parental rights
                                     termination.
48................................  Legal or putative father parental
                                     rights termination date.
49................................  Foster family structure.
50................................  Year of birth of 1st foster
                                     caretaker.
51................................  Year of birth of 2nd foster
                                     caretaker.
52................................  Race of 1st foster caretaker.
53................................  Hispanic or Latino Ethnicity of 1st
                                     foster caretaker.
54................................  Race of 2nd foster caretaker.
55................................  Hispanic or Latino Ethnicity of 2nd
                                     foster caretaker.
56................................  Date of discharge from foster care.
57................................  Foster care discharge transaction
                                     date.
58................................  Reason for discharge.
59-65.............................  Sources of Federal support/
                                     assistance for child (at least one
                                     must be selected).
66................................  Amount of monthly foster care
                                     payment (regardless of source).
------------------------------------------------------------------------

    c. Determination of substantial noncompliance with the title IV-
E plan.
    Missing data are a major factor in determining substantial 
noncompliance with the title IV-E plan.
    (1) Selection Rules.
    All data elements will be used in calculating missing data 
unless one of the following limiting rules applies to the detailed 
case record.
    (a) If Date of Latest Removal From Home (Element 21) and the 
Date of Discharge From Foster Care (Element 56) is less than 30 
days, then the following date elements are the only ones to be used 
in evaluating the missing data provisions for purposes of a 
determination of substantial noncompliance with the title IV-E plan:

Elements
1 to 4
6 to 9
21 and 22
41 and 42
56 to 58

    (b) If Date of Latest Removal From Home (Element 18) is prior to 
October 1, 1995, then the following data elements are the only ones 
to be used in evaluating the missing data provisions for purposes of 
a determination of substantial noncompliance with the title IV-E 
plan:
Elements
1 to 4
6 to 9
21 and 22
41 and 43
56 to 58

    (2) Determination of substantial noncompliance with the title 
IV-E plan.
    The percentage calculation will be performed for each data 
element. The total number of detailed records that are included by 
the selection rules in 3.c.(1), will serve as the denominator. The 
number of missing data occurrences for each element will serve as 
the numerator. The result will be multiplied by one hundred. The 
determination of substantial noncompliance with the title IV-E plan 
is made when any one element's missing data percentage is ten 
percent or greater.

4. Timeliness of Foster Care Data Reports

    Title IV-E agencies are required to submit reports within 45 
calendar days after the end of the semi-annual reporting period.
    Computer generated transaction dates indicate the date when key 
foster care events are entered into the title IV-E agency's computer 
system. The intent of these transaction dates is to ensure that 
information about the status of children in foster care is recorded 
and, thus, reported in a timely manner.
    a. Date of Latest Removal From Home.
    The Date of Latest Removal From Home Transaction Date (Element 
22) must not be more than 60 days after the Date of Latest Removal 
From Home (Element 21) event.
    b. The Date of Discharge From Foster Care Transaction Data 
(Element 57) must not be more than 60 days after the Date of 
Discharge From Foster Care (Element 56) event.
    For purposes of a determination of substantial noncompliance 
with the title IV-E plan, ninety percent of the records in a 
detailed data submission, must indicate that:
    (1) The difference between the Date of Latest Removal From Home 
Transaction Date (Element 22) and the Date of Latest Removal From 
Home (Element 21) event is 60 days or less;
    and, where applicable,
    (2) The difference between the Date of Discharge From Foster 
Care Transaction Date (Element 57), and the Date of Discharge From 
Foster Care (Element 56) event is 60 days or less.

B. Adoption

1. Summary Data Elements File Submission Standards

    A summary file must accompany the detailed Data Elements File 
submission. Both files must be sent through electronic means (see 
appendix C for details). This summary will be used to verify the 
completeness of the Detailed Data File submission received.
    a. The summary file should be a discrete file separate from the 
semi-annual reporting period detailed data file. The record layout 
for the summary file is included in appendix D, section B.2.c. All 
data must be included. If the value for a numeric field is zero, 
zero must be entered.
    b. The Department will develop a second summary file by 
computing the values from the detailed data file received from the 
title IV-E agency. The two summary files (the one submitted by the 
title IV-E agency and the one created during Federal processing) 
will be compared, field by field. If the two files match, further 
validation of the detailed data elements will commence. (See section 
B.2 below.) If the two summary files do not match, we will assume 
that there has been an error in transmission and will request a 
retransmission from the title IV-E agency within 24 hours of the 
time the title IV-E agency has been notified. In addition, a log of 
these occurrences will be kept as a means of cataloging problems and 
offering suggestions on improved procedures.

2. Detailed Data Elements File Submission Standards

a. Internal Consistency Validations

    Internal consistency validations involve evaluating the logical 
relationships between data elements in a detailed record. For 
example, an adoption cannot be finalized until parental rights have 
been terminated. Thus, the dates of Mother/Father Termination of 
Parental Rights, elements must be present and the dates must be 
prior to the ``Date Adoption Legalized.'' If this is not the case, 
an internal inconsistency will be detected and an ``error'' 
indicated in the detailed data file.
    A number of data elements have ``if applicable'' contingency 
relationships with other data elements in the detailed record. For 
example, if the Adoptive Parent is single, then the appropriate sex 
of the single female/male element in the ``Family Structure,'' 
``Year of Birth'' and ``Race/Origin'' elements must be completed and 
the ``non-applicable'' fields for these elements are to be filled 
with zeros or left blank.
    The internal consistency validations that will be performed on 
the adoption detailed data are as follows:
    (1) The Child's Date of Birth (Element 5) must be later than 
both the Mother's and Father's Year of Birth (Elements 16 and 17) 
unless either of these is unknown.)
    (2) If the title IV-E agency has determined that the child is a 
special needs child (Element 9), then ``the primary basis for 
determining that this child has special needs'' (Element 10) must be 
completed. If ``the primary basis for determining that this child 
has special needs'' (Element 10) is answered by option ``4,'' then 
at least one element between Elements 11-15, ``Type of Disability,'' 
must be selected. Enter a zero (0) for disabilities that do not 
apply.
    (3) Dates of Parental Rights Termination (Elements 19 and 20) 
must be completed and must be prior to the Date Adoption Legalized 
(Element 21).

[[Page 946]]

    (4) If ``Is a monthly financial subsidy being paid for this 
child'' (Element 35) is answered negatively, ``2'', then Element 36 
must be zero (0) and ``Is the subsidy paid under Title IV-E adoption 
assistance'' (Element 37) must be a ``2''.
    (5) If the ``Child Was Placed By'' (Element 34) is answered with 
option 1, ``Public Agency,'' then the question, ``Did the title IV-E 
Agency Have any Involvement in This Adoption'' (Element 4) must be 
``1''.
    (6) If the ``Relationship of Adoptive Parent(s) to the Child,'' 
``Foster Parent of Child'' (Element 31) is selected, then the 
question, ``Did the title IV-E Agency Have any Involvement in This 
Adoption'' (Element 4) must be ``1''.
    (7) If ``Is a monthly financial subsidy being paid for this 
child?'' (Element 35) answered ``1,'' then the question, ``Did the 
title IV-E Agency Have any Involvement in This Adoption'' (Element 
4) must be ``1.''
    (8) If the ``Family Structure'' (Element 22) is option 3, Single 
Female, then the Mother's Year of Birth (Element 23), the ``Adoptive 
Mother's Race'' (Element 25) and ``Hispanic or Latino Ethnicity'' 
(Element 26) must be completed. Similarly, if the ``Family 
Structure'' (Element 22) is option 4, Single Male, then the Father's 
Year of Birth (Element 24), the Adoptive Father's Race'' (Element 
27) and ``Hispanic or Latino Ethnicity'' (Element 28) must be 
completed. If the ``Family Structure'' (Element 22) is option 1 or 
2, then both Mother's and Father's ``Year of Birth,'' ``Race'' and 
``Hispanic or Latino Ethnicity'' must be completed.
    (9) In Elements 7, 25, and 27, race categories (``a'' through 
``e'') and ``f. Unable to Determine'' cannot be coded ``0,'' for it 
does not apply. If any of the race categories apply and are coded as 
``1'' then ``f. Unable to Determine'' cannot also apply.

b. Out-of-Range Standards

    Out-of-range standards relate to the occurrence of values in 
response to data elements that exceed, either positively or 
negatively, the acceptable range of responses to the question. For 
example, if the acceptable response to the element, Sex of the 
Adoptive Child, is ``1'' for a male and ``2'' for a female, but the 
datum provided in the element is ``3,'' this represents an out-of-
range response situation.
    Out-of-range comparisons will be made for all elements. The 
acceptable values are described in appendix B, section I.

3. Missing Data Standards

    The term ``missing data'' refers to instances where data for an 
element are required but are not present in the submission. Data 
elements with values of ``Unable to Determine,'' ``Other'' or which 
are not applicable, are not considered missing.
    a. In addition, the following situations will result in 
converting data values to a missing data status:
    (1) Data elements whose values fail internal consistency 
validations as outlined in 2.a.(1)-(9) above, and
    (2) Data elements whose values are out-of-range.
    b. The maximum amount of allowable missing data is dependent on 
the data elements as described below.
    (1) No Missing Data.
    The data for the elements listed below must be present in all 
records in the submission. If any record contains missing data for 
any of these elements, the entire submission will be considered 
missing and processing will not proceed.

------------------------------------------------------------------------
           Element  No.                         Element name
------------------------------------------------------------------------
01................................  Title IV-E agency.
02................................  Report date.
03................................  Record number.
04................................  Did the title IV-e agency have any
                                     involvement in this adoption?
------------------------------------------------------------------------

(2) Less Than Ten Percent Missing Data

    The data for the elements listed below cannot have ten percent 
or more missing data without incurring a determination of 
substantial noncompliance with the title IV-E plan.

------------------------------------------------------------------------
           Element  No.                         Element name
------------------------------------------------------------------------
05................................  Child's date of birth.
06................................  Child's sex.
07................................  Child's race.
08................................  Is the child of Hispanic or Latino
                                     ethnicity?
09................................  Does child have special needs?
10................................  Indicate the primary basis for
                                     determining that the child has
                                     special needs. (If Element 09 is
                                     yes, you must answer this
                                     question.)
11-15.............................  Type of special need (at least one
                                     must be selected.)
16................................  Mother's year of birth.
17................................  Father's year of birth.
18................................  Was mother married at time of
                                     child's birth?
19................................  Date of mother's termination of
                                     parental rights.
20................................  Date of father's termination of
                                     parental rights.
21................................  Date adoption legalized.
22................................  Adoptive parent(s)' family
                                     structure.
23................................  Mother's year of birth.
24................................  Father's year of birth.
25................................  Adoptive mother's race.
26................................  Hispanic or Latino ethnicity of
                                     mother.
27................................  Adoptive father's race.
28................................  Hispanic or Latino ethnicity of
                                     father.
29-32.............................  Relationship of adoptive parent(s)
                                     to child (at least one must be
                                     selected.)
33................................  Child placed from.
34................................  Child placed by.
35................................  Is a monthly financial subsidy paid
                                     for this child?
36................................  If yes, the monthly amount is?
37................................  Is the child receiving Title IV-E
                                     adoption assistance? (If Element 35
                                     is a ``1'' (Yes) an answer to this
                                     question is required.)
------------------------------------------------------------------------

    c. Determination of substantial noncompliance with the title IV-
E plan.
    Missing data are a major factor in determining substantial 
noncompliance with the title IV-E plan.
    (1) Selection Rules.
    Only the adoption records with a ``1'' (Yes) answer in Element 
4, ``Did the title IV-E Agency have any Involvement in this 
adoption'' will be subject to a determination of substantial 
noncompliance with the title IV-E plan.
    (2) Determination of substantial noncompliance with the title 
IV-E plan.
    The percentage calculation will be performed for each data 
element. The total number of detailed records will serve as the 
denominator and the number of missing data occurrences for each 
element will serve as the numerator. The result will be multiplied 
by one hundred. The determination of substantial noncompliance with 
the title IV-E plan is made when any one element's missing data 
percentage is ten percent or greater.

4. Timeliness of Adoption Reports

    The title IV-E agency is required to submit reports within 45 
calendar days after the end of the semi-annual reporting period.
    For determinations of substantial noncompliance with the title 
IV-E plan purposes, however, no specific timeliness of data 
standards apply. Data on adoptions should be submitted as promptly 
after finalization as possible.
    The desired approach to reporting adoption data is that 
adoptions should be reported during the reporting period in which 
the adoption is legalized. Or, at the title IV-E agency's option, 
they can be reported in the following reporting period if the 
adoption is legalized within the last 60 days of the reporting 
period.
    Negative reports must be submitted for any semi-annual period in 
which no adoptions have been legalized.

PART 1356--REQUIREMENTS APPLICABLE TO TITLE IV-E

0
23. The authority citation for part 1356 continues to read as follows:

    Authority:  42 U.S.C. 620 et seq., 42 U.S.C. 670 et seq., 42 
U.S.C. 1302.


0
24. Revise Sec.  1356.10 to read as follows:


Sec.  1356.10  Scope.

    This part applies to title IV-E agency programs for foster care 
maintenance payments, adoption assistance payments, related foster care 
and adoption administrative and training expenditures, and the 
independent living services program under title IV-E of the Act.

0
25. Revise Sec.  1356.20 to read as follows:


Sec.  1356.20  Title IV-E plan document and submission requirements.

    (a) To be in compliance with the title IV-E plan requirements and 
to be eligible to receive Federal financial participation (FFP) in the 
costs of foster

[[Page 947]]

care maintenance payments and adoption assistance under this part, a 
title IV-E agency must have a plan approved by the Secretary that meets 
the requirements of this part, part 1355, section 471(a) of the Act and 
for Tribal title IV-E agencies, section 479B(c) of the Act. The title 
IV-E plan must be submitted to the appropriate Regional Office, ACYF, 
in a form determined by the title IV-E agency.
    (b) Failure by a title IV-E agency to comply with the requirements 
and standards for the data reporting system for foster care and 
adoption (Sec.  1355.40 of this chapter) shall be considered a 
substantial failure by the title IV-E agency in complying with the 
plan.
    (c) The following procedures for approval of plans and amendments 
apply to the title IV-E program:
    (1) Plan. The plan consists of written documents furnished by the 
title IV-E agency to cover its program under part E of title IV. After 
approval of the original plan by the Commissioner, ACYF, all relevant 
changes, required by new statutes, rules, regulations, interpretations, 
and court decisions, are required to be submitted currently so that 
ACYF may determine whether the plan continues to meet Federal 
requirements and policies.
    (2) Submittal. Plans and revisions of the plans are submitted first 
to the State governor or his/her designee, or the Tribal leader or his/
her designee for review and then to the regional office, ACYF. Title 
IV-E agencies are encouraged to obtain consultation of the regional 
staff when a plan is in process of preparation or revision.
    (3) Review. Staff in the regional offices are responsible for 
review of plans and amendments. They also initiate discussion with the 
title IV-E agency on clarification of significant aspects of the plan 
which come to their attention in the course of this review. Plan 
material on which the regional staff has questions concerning the 
application of Federal policy is referred with recommendations as 
required to the central office for technical assistance. Comments and 
suggestions, including those of consultants in specified areas, may be 
prepared by the central office for use by the regional staff in 
negotiations with the title IV-E agency.
    (4) Action. ACYF has the authority to approve plans and amendments 
thereto which provide for the administration of foster care maintenance 
payments and adoption assistance programs under section 471 of the Act. 
The Commissioner, ACYF, retains the authority to determine that 
proposed plan material is not approvable, or that a previously approved 
plan no longer meets the requirements for approval. The Regional 
Office, ACYF, formally notifies the title IV-E agency of the actions 
taken on plans or revisions.
    (5) Basis for approval. Determinations as to whether plans 
(including plan amendments and administrative practice under the plans) 
originally meet or continue to meet, the requirements for approval are 
based on relevant Federal statutes and regulations.
    (6) Prompt approval of plans. The determination as to whether a 
plan submitted for approval conforms to the requirements for approval 
under the Act and regulations issued pursuant thereto shall be made 
promptly and not later than the 45th day following the date on which 
the plan submittal is received in the regional office, unless the 
Regional Office, ACYF, has secured from the title IV-E agency a written 
agreement to extend that period.
    (7) Prompt approval of plan amendments. Any amendment of an 
approved plan may, at the option of the title IV-E agency, be 
considered as a submission of a new plan. If the title IV-E agency 
requests that such amendment be so considered, the determination as to 
its conformity with the requirements for approval shall be made 
promptly and not later than the 45th day following the date on which 
such a request is received in the regional office with respect to an 
amendment that has been received in such office, unless the Regional 
Office, ACYF, has secured from the title IV-E agency a written 
agreement to extend that period. In absence of request by a title IV-E 
agency that an amendment of an approved plan shall be considered as a 
submission of a new plan, the procedures under Sec.  201.6(a) and (b) 
shall be applicable.
    (8) Effective date. The effective date of a new plan may not be 
earlier than the first day of the calendar quarter in which an 
approvable plan is submitted, and with respect to expenditures for 
assistance under such plan, may not be earlier than the first day on 
which the plan is in operation on a statewide basis or, in the case of 
a Tribal title IV-E agency, in operation in the Tribal title IV-E 
agency's entire service area. The same applies with respect to plan 
amendments.
    (d) Once the title IV-E plan has been submitted and approved, it 
shall remain in effect until amendments are required. An amendment is 
required if there is any significant and relevant change in the 
information or assurances in the plan, or the organization, policies or 
operations described in the plan.

0
26. In 1356.21 revise paragraphs (a), (b) introductory text, (b)(2)(i), 
(b)(3) introductory text, (b)(3)(i), the first sentence of (c), 
paragraphs (d)(2) and (3), paragraph (f), the first sentence of 
paragraph (g) introductory text, (g)(1) and (2), the second sentence of 
(g)(5), (h)(1), (h)(3) introductory text, paragraphs (i)(1) 
introductory text, (i)(1)(i) introductory text, (i)(1)(i)(D), the first 
sentence of (i)(1)(ii), paragraphs (i)(2) introductory text, (i)(2)(i), 
the first sentence of (i)(2)(ii), paragraphs (i)(2)(iii), (i)(3), 
(k)(2), paragraph (l) introductory text, paragraph (m) introductory 
text, paragraph (n) and paragraph (o) to read as follows:


Sec.  1356.21  Foster care maintenance payments program implementation 
requirements.

    (a) Statutory and regulatory requirements of the Federal foster 
care program. To implement the foster care maintenance payments program 
provisions of the title IV-E plan and to be eligible to receive Federal 
financial participation (FFP) for foster care maintenance payments 
under this part, a title IV-E agency must meet the requirements of this 
section, 45 CFR 1356.22, 45 CFR 1356.30, and sections 472, 475(1), 
475(4), 475(5), 475(6), and for a Tribal title IV-E agency section 
479(B)(c)(1)(C)(ii)(II) of the Act.
    (b) Reasonable efforts. The title IV-E agency must make reasonable 
efforts to maintain the family unit and prevent the unnecessary removal 
of a child from his/her home, as long as the child's safety is assured; 
to effect the safe reunification of the child and family (if temporary 
out-of-home placement is necessary to ensure the immediate safety of 
the child); and to make and finalize alternate permanency plans in a 
timely manner when reunification is not appropriate or possible. In 
order to satisfy the ``reasonable efforts'' requirements of section 
471(a)(15) (as implemented through section 472(a)(2) of the Act), the 
title IV-E agency must meet the requirements of paragraphs (b) and (d) 
of this section. In determining reasonable efforts to be made with 
respect to a child and in making such reasonable efforts, the child's 
health and safety must be the paramount concern.
* * * * *
    (2) * * *
    (i) The title IV-E agency must obtain a judicial determination that 
it has made reasonable efforts to finalize the permanency plan that is 
in effect (whether the plan is reunification, adoption, legal 
guardianship, placement with a fit and willing relative, or placement 
in another planned permanent living arrangement) within twelve months 
of the date the child is considered to have entered foster care in

[[Page 948]]

accordance with the definition at Sec.  1355.20 of this part, and at 
least once every twelve months thereafter while the child is in foster 
care.
* * * * *
    (3) Circumstances in which reasonable efforts are not required to 
prevent a child's removal from home or to reunify the child and family. 
Reasonable efforts to prevent a child's removal from home or to reunify 
the child and family are not required if the title IV-E agency obtains 
a judicial determination that such efforts are not required because:
    (i) A court of competent jurisdiction has determined that the 
parent has subjected the child to aggravated circumstances (as defined 
in State, or for a Tribal title IV-E agency, Tribal law, which 
definition may include but need not be limited to abandonment, torture, 
chronic abuse, and sexual abuse);
* * * * *
    (c) Contrary to the welfare determination. Under section 472(a)(2) 
of the Act, a child's removal from the home must have been the result 
of a judicial determination (unless the child was removed pursuant to a 
voluntary placement agreement) to the effect that continuation of 
residence in the home would be contrary to the welfare, or that 
placement would be in the best interest, of the child. * * *
    (d) * * *
    (2) Neither affidavits nor nunc pro tunc orders will be accepted as 
verification documentation in support of reasonable efforts and 
contrary to the welfare judicial determinations except for a Tribal 
title IV-E agency for the first 12 months that agency's title IV-E plan 
is in effect as provided for in section 479B(c)(1)(C)(ii)(I) of the 
Act.
    (3) Court orders that reference State or Tribal law to substantiate 
judicial determinations are not acceptable, even if such law provides 
that a removal must be based on a judicial determination that remaining 
in the home would be contrary to the child's welfare or that removal 
can only be ordered after reasonable efforts have been made.
* * * * *
    (f) Case review system. In order to satisfy the provisions of 
section 471(a)(16) of the Act regarding a case review system, each 
title IV-E agency's case review system must meet the requirements of 
sections 475(5) and 475(6) of the Act.
    (g) * * * In order to satisfy the case plan requirements of 
sections 471(a)(16), 475(1) and 475(5)(A) and (D) of the Act, the title 
IV-E agency must promulgate policy materials and instructions for use 
by staff to determine the appropriateness of and necessity for the 
foster care placement of the child. * * *
    (1) Be a written document, which is a discrete part of the case 
record, in a format determined by the title IV-E agency, which is 
developed jointly with the parent(s) or guardian of the child in foster 
care; and
    (2) Be developed within a reasonable period, to be established by 
the title IV-E agency, but in no event later than 60 days from the 
child's removal from the home pursuant to paragraph (k) of this 
section;
* * * * *
    (5) * * * When the case plan goal is adoption, at a minimum, such 
documentation shall include child-specific recruitment efforts such as 
the use of State, Tribal, regional, and national adoption exchanges 
including electronic exchange systems.
    (h) * * *
    (1) To meet the requirements of the permanency hearing, the title 
IV-E agency must, among other requirements, comply with section 
475(5)(C) of the Act.
* * * * *
    (3) If the title IV-E agency concludes, after considering 
reunification, adoption, legal guardianship, or permanent placement 
with a fit and willing relative, that the most appropriate permanency 
plan for a child is placement in another planned permanent living 
arrangement, the title IV-E agency must document to the court the 
compelling reason for the alternate plan. Examples of a compelling 
reason for establishing such a permanency plan may include:
    (i) * * *
    (1) Subject to the exceptions in paragraph (i)(2) of this section, 
the title IV-E agency must file a petition (or, if such a petition has 
been filed by another party, seek to be joined as a party to the 
petition) to terminate the parental rights of a parent(s):
    (i) Whose child has been in foster care under the responsibility of 
the title IV-E agency for 15 of the most recent 22 months. The petition 
must be filed by the end of the child's fifteenth month in foster care. 
In calculating when to file a petition for termination of parental 
rights, the title IV-E agency:
* * * * *
    (D) Need only apply section 475(5)(E) of the Act to a child once if 
the title IV-E agency does not file a petition because one of the 
exceptions at paragraph (i)(2) of this section applies;
    (ii) Whose child has been determined by a court of competent 
jurisdiction to be an abandoned infant (as defined under State or for a 
Tribal title IV-E agency, Tribal law). * * *
* * * * *
    (2) The title IV-E agency may elect not to file or join a petition 
to terminate the parental rights of a parent per paragraph (i)(1) of 
this section if:
    (i) At the option of the title IV-E agency, the child is being 
cared for by a relative;
    (ii) The title IV-E agency has documented in the case plan (which 
must be available for court review) a compelling reason for determining 
that filing such a petition would not be in the best interests of the 
individual child. * * *
    (iii) The title IV-E agency has not provided to the family, 
consistent with the time period in the case plan, services that the 
title IV-E agency deems necessary for the safe return of the child to 
the home, when reasonable efforts to reunify the family are required.
    (3) When the title IV-E agency files or joins a petition to 
terminate parental rights in accordance with paragraph (i)(1) of this 
section, it must concurrently begin to identify, recruit, process, and 
approve a qualified adoptive family for the child.
* * * * *
    (k) * * *
    (2) A removal has not occurred in situations where legal custody is 
removed from the parent or relative and the child remains with the same 
relative in that home under supervision by the title IV-E agency.
* * * * *
    (l) Living with a specified relative. For purposes of meeting the 
requirements for living with a specified relative prior to removal from 
the home under section 472(a)(1) of the Act, all of the conditions 
under section 472(a)(3), and for Tribal title IV-E agencies section 
479B(c)(1)(C)(ii)(II) of the Act, one of the two following situations 
must apply:
* * * * *
    (m) Review of payments and licensing standards. In meeting the 
requirements of section 471(a)(11) of the Act, the title IV-E agency 
must review at reasonable, specific, time-limited periods to be 
established by the agency:
* * * * *
    (n) Foster care goals. The specific foster care goals required 
under section 471(a)(14) of the Act must be incorporated into State law 
or Tribal law by statute, code, resolution, Tribal proceedings or 
administrative regulation with the force of law.
    (o) Notice and right to be heard. The title IV-E agency must 
provide the

[[Page 949]]

foster parent(s) of a child and any preadoptive parent or relative 
providing care for the child with timely notice of and the opportunity 
to be heard in any proceedings held with respect to the child during 
the time the child is in the care of such foster parent, preadoptive 
parent, or relative caregiver. Notice of and opportunity to be heard 
does not include the right to standing as a party to the case.

0
27. In Sec.  1356.22 revise paragraphs (a) introductory text, (a)(2) 
and (c) to read as follows:


Sec.  1356.22  Implementation requirements for children voluntarily 
placed in foster care.

    (a) As a condition of receipt of Federal financial participation 
(FFP) in foster care maintenance payments for a dependent child removed 
from his home under a voluntary placement agreement, the title IV-E 
agency must meet the requirements of:
* * * * *
    (2) Sections 422(b)(8) and 475(5) of the Act;
* * * * *
    (c) The title IV-E agency must establish and maintain a uniform 
procedure or system, consistent with State or Tribal law, for 
revocation by the parent(s) of a voluntary placement agreement and 
return of the child.

0
28. In Sec.  1356.30, revise paragraphs (a), (b) introductory text, and 
(c) introductory text, remove and reserve paragraph (d) and revise 
paragraph (e) to read as follows:


Sec.  1356.30  Safety requirements for foster care and adoptive home 
providers.

    (a) The title IV-E agency must provide documentation that criminal 
records checks have been conducted with respect to prospective foster 
and adoptive parents.
    (b) The title IV-E agency may not approve or license any 
prospective foster or adoptive parent, nor may the title IV-E agency 
claim FFP for any foster care maintenance or adoption assistance 
payment made on behalf of a child placed in a foster home operated 
under the auspices of a child placing agency or on behalf of a child 
placed in an adoptive home through a private adoption agency, if the 
title IV-E agency finds that, based on a criminal records check 
conducted in accordance with paragraph (a) of this section, a court of 
competent jurisdiction has determined that the prospective foster or 
adoptive parent has been convicted of a felony involving:
* * * * *
    (c) The title IV-E agency may not approve or license any 
prospective foster or adoptive parent, nor may the title IV-E agency 
claim FFP for any foster care maintenance or adoption assistance 
payment made on behalf of a child placed in a foster home operated 
under the auspices of a child placing agency or on behalf of a child 
placed in an adoptive home through a private adoption agency, if the 
title IV-E agency finds, based on a criminal records check conducted in 
accordance with paragraph (a) of this section, that a court of 
competent jurisdiction has determined that the prospective foster or 
adoptive parent has, within the last five years, been convicted of a 
felony involving:
* * * * *
    (d) [Reserved]
    (e) In all cases where the State opted out of the criminal records 
check requirement, as permitted prior to the amendments made by section 
152 of Public Law 109-248, the licensing file for that foster or 
adoptive family must contain documentation which verifies that safety 
considerations with respect to the caretaker(s) have been addressed.
* * * * *

0
29. In Sec.  1356.40 revise paragraphs (a), (b)(4), (d), (e) and (f) to 
read as follows:


Sec.  1356.40  Adoption assistance program: Administrative requirements 
to implement section 473 of the Act.

    (a) To implement the adoption assistance program provisions of the 
title IV-E plan and to be eligible for Federal financial participation 
in adoption assistance payments under this part, the title IV-E agency 
must meet the requirements of this section and section 471(a), 
applicable provisions of section 473, and section 475(3) of the Act.
    (b) * * *
    (4) Specify, with respect to agreements entered into on or after 
October 1, 1983, that the agreement shall remain in effect regardless 
of the place of residence of the adoptive parents at any given time.
* * * * *
    (d) In the event an adoptive family moves from one place of 
residence to another, the family may apply for social services on 
behalf of the adoptive child in the new place of residence. If a needed 
service(s) specified in the adoption assistance agreement is not 
available in the new place of residence, the title IV-E agency making 
the original adoption assistance payment remains financially 
responsible for providing the specified service(s).
    (e) A title IV-E agency may make an adoption assistance agreement 
with adopting parent(s) who reside in another State or a Tribal service 
area. If so, all provisions of this section apply.
    (f) The title IV-E agency must actively seek ways to promote the 
adoption assistance program.

0
30. In Sec.  1356.41 revise the first sentence of paragraph (a), 
paragraph (b), paragraphs (d), (e), paragraphs (f)(1) and (2), the 
second sentence of paragraph (g), paragraph (h), the first sentence of 
paragraph (i), paragraphs (j) and (k) to read as follows:


Sec.  1356.41  Nonrecurring expenses of adoption.

    (a) The amount of the payment made for nonrecurring expenses of 
adoption shall be determined through agreement between the adopting 
parent(s) and the title IV-E agency administering the program. * * *
    (b) The agreement for nonrecurring expenses may be a separate 
document or a part of an agreement for either State, Tribal, or Federal 
adoption assistance payments or services.
* * * * *
    (d) For purposes of payment of nonrecurring expenses of adoption, 
the title IV-E agency must determine that the child is a ``child with 
special needs'' as defined in section 473(c) of the Act, and that the 
child has been placed for adoption in accordance with applicable laws; 
the child need not meet the categorical eligibility requirements at 
section 473(a)(2).
    (e)(1) The title IV-E agency must notify all appropriate courts and 
all public and licensed private nonprofit adoption agencies of the 
availability of funds for the nonrecurring expenses of adoption of 
children with special needs as well as where and how interested persons 
may apply for these funds. This information should routinely be made 
available to all persons who inquire about adoption services.
    (2) The agreement for nonrecurring expenses must be signed at the 
time of or prior to the final decree of adoption. Claims must be filed 
with the title IV-E agency within two years of the date of the final 
decree of adoption.
    (f)(1) Funds expended by the title IV-E agency under an adoption 
assistance agreement, with respect to nonrecurring adoption expenses 
incurred by or on behalf of parents who adopt a child with special 
needs, shall be considered an administrative expenditure of the title 
IV-E Adoption Assistance Program. Federal reimbursement is available at 
a 50 percent matching rate, for title IV-E agency expenditures up to 
$2,000, for any adoptive placement.
    (2) Title IV-E agencies may set a reasonable lower maximum which 
must be based on reasonable charges,

[[Page 950]]

consistent with State, Tribal, and local practices, for special needs 
adoptions within the State or Tribal service area. The basis for 
setting a lower maximum must be documented and available for public 
inspection.
* * * * *
    (g) * * * Payments for nonrecurring expenses shall be made either 
directly by the title IV-E agency or through another public or licensed 
nonprofit private agency.
    (h) When the adoption of the child involves a placement outside the 
State or Tribal service area, the title IV-E agency that enters into an 
adoption assistance agreement under section 473(a)(1)(B)(ii) of the Act 
or under a State or Tribal subsidy program will be responsible for 
paying the nonrecurring adoption expenses of the child. In cases where 
there is placement outside the State or Tribal service area but no 
agreement for other Federal, Tribal, or State adoption assistance, the 
title IV-E agency in the jurisdiction in which the final adoption 
decree is issued will be responsible for reimbursement of nonrecurring 
expenses if the child meets the requirements of section 473(c).
    (i) The term ``nonrecurring adoption expenses'' means reasonable 
and necessary adoption fees, court costs, attorney fees and other 
expenses which are directly related to the legal adoption of a child 
with special needs, which are not incurred in violation of State, 
Tribal or Federal law, and which have not been reimbursed from other 
sources or other funds. * * *
    (j) Failure to honor all eligible claims will be considered non-
compliance by the title IV-E agency with title IV-E of the Act.
    (k) A title IV-E expenditure is considered made in the quarter 
during which the payment was made by a title IV-E agency to a private 
nonprofit agency, individual or vendor payee.

0
31. In Sec.  1356.50 revise the section heading and paragraphs (a) and 
(b) to read as follows:


Sec.  1356.50  Withholding of funds for non-compliance with the 
approved title IV-E plan.

    (a) To be in compliance with the title IV-E plan requirements, a 
title IV-E agency must meet the requirements of the Act and 45 CFR 
1356.20, 1356.21, 1356.30, and 1356.40 of this part.
    (b) To be in compliance with the title IV-E plan requirements, a 
title IV-E agency that chooses to claim FFP for voluntary placements 
must meet the requirements of the Act, 45 CFR 1356.22 and paragraph (a) 
of this section; and
* * * * *

0
32. In Sec.  1356.60 revise paragraphs (a)(1)(i) and (a)(2), the 
heading of paragraph (b), paragraphs (b)(1)(i), (b)(2), (c) 
introductory text, and (e) to read as follows:


Sec.  1356.60  Fiscal requirements (title IV-E).

    (a) * * *
    (1) Federal financial participation (FFP) is available to title IV-
E agencies under an approved title IV-E plan for allowable costs in 
expenditures for:
    (i) Foster care maintenance payments as defined in section 475(4) 
of the Act, made in accordance with 45 CFR 1356.20 through 1356.30, 
section 472 of the Act, and for a Tribal title IV-E agency, section 
479B of the Act;
    (ii) Adoption assistance payments made in accordance with 45 CFR 
1356.20 and 1356.40, applicable provisions of section 473, section 
475(3) and, for a Tribal title IV-E agency, section 479B of the Act.
    (2) Federal financial participation is available at the rate of the 
Federal medical assistance percentage as defined in section 1905(b), 
474(a)(1) and (2) and 479B(d) of the Act as applicable, definitions, 
and pertinent regulations as promulgated by the Secretary, or his 
designee.
    (b) Federal matching funds for title IV-E agency training for 
foster care and adoption assistance under title IV-E.
    (1) * * *
    (i) Training personnel employed or preparing for employment by the 
title IV-E agency administering the plan, and;
* * * * *
    (2) All training activities and costs funded under title IV-E shall 
be included in the agency's training plan for title IV-B.
* * * * *
    (c) Federal matching funds for other title IV-E agency 
administrative expenditures for foster care and adoption assistance 
under title IV-E. Federal financial participation is available at the 
rate of fifty percent (50%) for administrative expenditures necessary 
for the proper and efficient administration of the title IV-E plan. The 
State's cost allocation plan shall identify which costs are allocated 
and claimed under this program.
* * * * *
    (e) Federal matching funds for SACWIS/TACWIS. All expenditures of a 
title IV-E agency to plan, design, develop, install and operate the 
Statewide or Tribal automated child welfare information system approved 
under Sec.  1355.52 of this chapter, shall be treated as necessary for 
the proper and efficient administration of the title IV-E plan without 
regard to whether the system may be used with respect to foster or 
adoptive children other than those on behalf of whom foster care 
maintenance or adoption assistance payments may be made under this 
part.

0
33. Add new Sec.  1356.67 and Sec.  1356.68 to read as follows:


Sec.  1356.67  Procedures for the transfer of placement and care 
responsibility of a child from a State to a Tribal title IV-E agency or 
an Indian Tribe with a title IV-E agreement.

    (a) Each State with a title IV-E plan approved under section 471 of 
the Act must establish and maintain procedures, in consultation with 
Indian Tribes, for the transfer of responsibility for the placement and 
care of a child under a State title IV-E plan to a Tribal title IV-E 
agency or an Indian Tribe with a title IV-E agreement in a way that 
does not affect a child's eligibility for, or payment of, title IV-E 
and the child's eligibility for medical assistance under title XIX of 
the Act.
    (b) The procedures must, at a minimum, provide for the State to:
    (1) Determine, if the eligibility determination is not already 
completed, the child's eligibility under section 472 or 473 of the Act 
at the time of the transfer of placement and care responsibility of a 
child to a Tribal title IV-E agency or an Indian Tribe with a title IV-
E agreement.
    (2) Provide essential documents and information necessary to 
continue a child's eligibility under title IV-E and Medicaid programs 
under title XIX to the Tribal title IV-E agency, including, but not 
limited to providing:
    (i) All judicial determinations to the effect that continuation in 
the home from which the child was removed would be contrary to the 
welfare of the child and that reasonable efforts described in section 
471(a)(15) of the Act have been made;
    (ii) Other documentation the State has that relates to the child's 
title IV-E eligibility under sections 472 and 473 of the Act;
    (iii) Information and documentation available to the agency 
regarding the child's eligibility or potential eligibility for other 
Federal benefits;
    (iv) The case plan developed pursuant to section 475(1) of the Act, 
including health and education records of the child pursuant to section 
475(1)(C) of the Act; and
    (v) Information and documentation of the child's placement 
settings, including a copy of the most recent provider's license or 
approval.

[[Page 951]]

Sec.  1356.68  Tribal title IV-E agency requirements for in-kind 
administrative and training contributions from third-party sources.

    (a) Option to claim in-kind expenditures from third-party sources 
for non-Federal share of administrative and training costs. A Tribal 
title IV-E agency may claim allowable in-kind expenditures from third-
party sources for the purpose of determining the non-Federal share of 
administrative or training costs subject to paragraphs (b) through (d) 
of this section.
    (b) In-kind expenditures for fiscal years 2010 and 2011--(1) 
Administrative costs. A Tribal title IV-E agency may claim allowable 
in-kind expenditures from third-party sources of up to 25 percent of 
the total administrative funds expended during a fiscal quarter 
pursuant to section 474(a)(3)(C), (D) or (E) of the Act.
    (2) Training costs. A Tribal title IV-E agency may claim in-kind 
training expenditures of up to 12 percent of the total training funds 
expended during a fiscal year quarter pursuant to section 474(a)(3)(A) 
and (B) of the Act, but only from the following sources:
    (i) A State or local government;
    (ii) An Indian Tribe, Tribal organization, or Tribal consortium 
other than the Indian Tribe, organization, or consortium submitting the 
title IV-E plan;
    (iii) A public institution of higher education;
    (iv) A Tribal College or University (as defined in section 316 of 
the Higher Education Act of 1965 (20 U.S.C. 1059c)); and
    (v) A private charitable organization.
    (c) In-kind expenditures for fiscal years 2012 and thereafter--(1) 
Administrative costs. A Tribal title IV-E agency may claim in-kind 
expenditures from third-party sources of up to 50 percent of the total 
administrative funds expended during a fiscal quarter pursuant to 
section 474(a)(3)(C), (D) or (E) of the Act.
    (2) Training costs. A Tribal title IV-E agency may claim in-kind 
training expenditures of up to 25 percent (or 30 percent consistent 
with section 203(b) of Pub. L. 110-351) of the total training funds 
expended during each quarter of fiscal year 2012 pursuant to section 
474(a)(3)(A) and (B) of the Act. For fiscal year 2013 and thereafter, a 
Tribal title IV-E agency may claim in-kind training expenditures of up 
to 25 percent of the total training funds expended during a fiscal 
quarter pursuant to section 474(a)(3)(A) and (B) of the Act.
    (3) Third-party sources. A Tribal title IV-E agency may claim in-
kind training expenditures for training funds from any allowable third-
party source.


0
34. In Sec.  1356.71 revise paragraphs (a)(1) and (a)(2), (a)(3)(i), 
the heading and first sentence of (a)(3)(ii), (b)(1) and (b)(2), 
(c)(1), the second and fourth sentence of paragraph (c)(4), the first 
sentence of (c)(5), paragraph (d) introductory text, paragraphs 
(d)(1)(i), (d)(1)(iii), (d)(1)(v), (d)(2), paragraph (g)(1) 
introductory text, paragraphs (g)(2) and (3), (h)(1), (h)(3), (h)(4), 
(i)(1) introductory text, paragraph (i)(1)(i) and (i)(1)(ii), the 
second and third sentences of paragraph (i)(1)(iii), (i)(2) through 
(4), paragraph (j) introductory text, the first sentence of paragraph 
(j)(1) and paragraphs (j)(2) through (4) to read as follows:


Sec.  1356.71  Federal review of the eligibility of children in foster 
care and the eligibility of foster care providers in title IV-E 
programs.

    (a) * * *
    (1) This section sets forth requirements governing Federal reviews 
of compliance with the title IV-E eligibility provisions as they apply 
to children and foster care providers under paragraphs (a) and (b) of 
section 472 of the Act.
    (2) The requirements of this section apply to title IV-E agencies 
that receive Federal payments for foster care under title IV-E of the 
Act.
    (3) * * *
    (i) Title IV-E agencies in substantial compliance. Title IV-E 
agencies determined to be in substantial compliance based on the 
primary review will be subject to another review in three years.
    (ii) Title IV-E agencies not in substantial compliance. Title IV-E 
agencies that are determined not to be in substantial compliance based 
on the primary review will develop and implement a program improvement 
plan designed to correct the areas of noncompliance. * * *
    (b) * * *
    (1) The review team must be composed of representatives of the 
title IV-E agency, and ACF's Regional and Central Offices.
    (2) The title IV-E agency must provide ACF with the complete 
payment history for each of the sample and oversample cases prior to 
the on-site review.
    (c) * * *
    (1) The list of sampling units in the target population (i.e., the 
sampling frame) will be drawn by ACF statistical staff from the 
Adoption and Foster Care Analysis and Reporting System (AFCARS) data 
which are transmitted by the title IV-E agency to ACF. The sampling 
frame will consist of cases of children who were eligible for foster 
care maintenance payments during the reporting period reflected in a 
title IV-E agency's most recent AFCARS data submission. For the initial 
primary review, if these data are not available or are deficient, an 
alternative sampling frame, consistent with one AFCARS six-month 
reporting period, will be selected by ACF in conjunction with the title 
IV-E agency.
* * * * *
    (4) * * * When the total number of ineligible cases does not exceed 
eight, ACF can conclude with a probability of 88 percent that in a 
population of 1000 or more cases the population ineligibility case 
error rate is less than 15 percent and the title IV-E agency will be 
considered in substantial compliance. * * * A title IV-E agency which 
meets this standard is considered to be in ``substantial compliance'' 
(see paragraph (h) of this section). * * *
    (5) A title IV-E agency which has been determined to be in 
``noncompliance'' (i.e., not in substantial compliance) will be 
required to develop a program improvement plan according to the 
specifications discussed in paragraph (i) of this section, as well as 
undergo a secondary review. * * *
* * * * *
    (d) Requirements subject to review. Title IV-E agencies will be 
reviewed against the requirements of title IV-E of the Act regarding:
    (1) * * *
    (i) Judicial determinations regarding ``reasonable efforts'' and 
``contrary to the welfare'' in accordance with Sec.  1356.21(b) and 
(c), respectively;
    * * *
    (iii) Responsibility for placement and care vested with the title 
IV-E or other public agency per section 472(a)(2)(B) of the Act;
    * * *
    (v) Eligibility for AFDC under such State plan as it was in effect 
on July 16, 1996 per section 472(a)(3) or 479B(c)(1)(C)(ii)(II) of the 
Act, as appropriate.
    (2) Allowable payments made to foster care providers who comport 
with sections 471(a)(10), 471(a)(20), 472(b) and (c), and 479B(c)(2) of 
the Act and Sec.  1356.30.
* * * * *
    (g) * * *
    (1) For each case being reviewed, the title IV-E agency must make 
available a licensing file which contains the licensing history, 
including a copy of the certificate of licensure/approval or

[[Page 952]]

letter of approval, for each of the providers in the following 
categories:
* * * * *
    (2) The licensing file must contain documentation that the title 
IV-E agency has complied with the safety requirements for foster and 
adoptive placements in accordance with Sec.  1356.30.
    (3) If the licensing file does not contain sufficient information 
to support a child's placement in a licensed facility, the title IV-E 
agency may provide supplemental information from other sources (e.g., a 
computerized database).
    (h) * * *
    (1) Disallowances will be taken, and plans for program improvement 
required, based on the extent to which a title IV-E agency is not in 
substantial compliance with recipient or provider eligibility 
provisions of title IV-E, or applicable regulations in 45 CFR parts 
1355 and 1356.
* * * * *
    (3) ACF will notify the title IV-E agency in writing within 30 
calendar days after the completion of the review of whether the title 
IV-E agency is, or is not, operating in substantial compliance.
    (4) Title IV-E agencies which are determined to be in substantial 
compliance must undergo a subsequent review after a minimum of three 
years.
    (i) * * *
    (1) Title IV-E agencies which are determined to be in noncompliance 
with recipient or provider eligibility provisions of title IV-E, or 
applicable regulations in 45 CFR Parts 1355 and 1356, will develop a 
program improvement plan designed to correct the areas determined not 
to be in substantial compliance. The program improvement plan will:
    (i) Be developed jointly by title IV-E agency and Federal staff;
    (ii) Identify the areas in which the title IV-E agency's program is 
not in substantial compliance;
    (iii) * * * A title IV-E agency will have a maximum of one year in 
which to implement and complete the provisions of the program 
improvement plan unless State/Tribal legislative action is required. In 
such instances, an extension may be granted with the title IV-E agency 
and ACF negotiating the terms and length of such extension that shall 
not exceed the last day of the first legislative session after the date 
of the program improvement plan; and
* * * * *
    (2) Title IV-E agencies determined not to be in substantial 
compliance as a result of a primary review must submit the program 
improvement plan to ACF for approval within 90 calendar days from the 
date the title IV-E agency receives written notification that it is not 
in substantial compliance. This deadline may be extended an additional 
30 calendar days when a title IV-E agency submits additional 
documentation to ACF in support of cases determined to be ineligible as 
a result of the on-site eligibility review.
    (3) The ACF Regional Office will intermittently review, in 
conjunction with the title IV-E agency, the title IV-E agency's 
progress in completing the prescribed action steps in the program 
improvement plan.
    (4) If a title IV-E agency does not submit an approvable program 
improvement plan in accordance with the provisions of paragraphs (i)(1) 
and (2) of this section, ACF will move to a secondary review in 
accordance with paragraph (c) of this section.
    (j) Disallowance of funds. The amount of funds to be disallowed 
will be determined by the extent to which a title IV-E agency is not in 
substantial compliance with recipient or provider eligibility 
provisions of title IV-E, or applicable regulations in 45 CFR parts 
1355 and 1356.
    (1) Title IV-E agencies which are found to be in substantial 
compliance during the primary or secondary review will have 
disallowances (if any) determined on the basis of individual cases 
reviewed and found to be in error. * * *
    (2) Title IV-E agencies which are found to be in noncompliance 
during the primary review will have disallowances determined on the 
basis of individual cases reviewed and found to be in error, and must 
implement a program improvement plan in accordance with the provisions 
contained within it. A secondary review will be conducted no later than 
during the AFCARS reporting period which immediately follows the 
program improvement plan completion date on a sample of 150 cases drawn 
from the title IV-E agency's most recent AFCARS data. If both the case 
ineligibility and dollar error rates exceed 10 percent, the title IV-E 
agency is not in compliance and an additional disallowance will be 
determined based on extrapolation from the sample to the universe of 
claims paid for the duration of the AFCARS reporting period (i.e., all 
title IV-E funds expended for a case during the quarter(s) that case is 
ineligible, including administrative costs). If either the case 
ineligibility or dollar rate does not exceed 10 percent, the amount of 
disallowance will be computed on the basis of payments associated with 
ineligible cases for the entire period of time the case has been 
determined to be ineligible.
    (3) The title IV-E agency will be liable for interest on the amount 
of funds disallowed by the Department, in accordance with the 
provisions of 45 CFR 30.18.
    (4) Title IV-E agencies may appeal any disallowance actions taken 
by ACF to the HHS Departmental Appeals Board in accordance with 
regulations at 45 CFR part 16.
0
35. In Sec.  1356.83 revise the fifth and sixth sentences of paragraph 
(g)(55) and add a parenthetical OMB information collection statement at 
the end of the section, to read as follows:


Sec.  1356.83  Reporting requirements and data elements.

* * * * *
    (g) * * *
    (55) * * * Indicate ``yes'', ``no'', or ``don't know'' as 
appropriate. If the youth does not answer this question, indicate 
``declined.''
* * * * *
(This requirement has been approved by the Office of Management and 
Budget under OMB Control Number OMB 0970-0340. In accordance with 
the Paperwork Reduction Act of 1995, an agency may not conduct or 
sponsor, and a person is not required to respond to, a collection of 
information unless it displays a currently valid OMB control 
number.)


0
36. In Sec.  1356.86 revise paragraph (e) to read as follows:


Sec.  1356.86  Penalties for noncompliance.

* * * * *
    (e) Interest. The State agency will be liable for interest on the 
amount of funds penalized by the Department, in accordance with the 
provisions of 45 CFR 30.18.
* * * * *
0
37. Revise Appendixes A and B to Part 1356 to read as follows:

Appendix A to Part 1356--NYTD Data Elements

------------------------------------------------------------------------
                                          Responses        Applicable
    Element No.       Element name         options         population
------------------------------------------------------------------------
1.................  State...........  2 digit FIPS
                                       code.
2.................  Report date.....  CYYMM...........

[[Page 953]]

 
                                      CC = century
                                       year (i.e., 20).
                                      YY = decade year
                                       (00-99).
                                      MM = month (01-
                                       12).
3.................  Record number...  Encrypted,
                                       unique person
                                       identification
                                       number.
4.................  Date of birth...  CCYYMMDD........
                                      CC = century
                                       year (i.e., 20).
                                      YY = decade year
                                       (00-99).
                                      MM = month (01-
                                       12).
                                      DD= day (01-31).
5.................  Sex.............  Male............
                                      Female..........
6.................  Race--American    Yes.............  All youth in
                     Indian or                           served,
                     Alaska Native.                      baseline and
                                                         follow-up
                                                         populations.
                                      No..............
7.................  Race--Asian.....  Yes.............
                                      No..............
8.................  Race--Black or    Yes.............
                     African
                     American.
                                      No..............
9.................  Race--Native      Yes.............
                     Hawaiian or
                     Other Pacific
                     Islander.
                                      No..............
10................  Race--White.....  Yes.............
                                      No..............
11................  Race--Unknown...  Yes.............
                                      No..............
12................  Race--Declined..  Yes.............
                                      No..............
13................  Hispanic or       Yes.............
                     Latino
                     Ethnicity.
                                      No..............
                                      Unknown.........
                                      Declined........
14................  Foster care       Yes.............  Served
                     status--service                     population
                     s.                                  only.
                                      No..............
15................  Local agency....  FIPS code(s)....
                                      Centralized unit
16................  Federally-        Yes.............
                     recognized
                     tribe.
                                      No..............
17................  Adjudicated       Yes.............
                     delinquent.
                                      No..............
18................  Education level.  Less than 6th     Served
                                       grade.            population
                                                         only.
                                      6th grade.......
                                      7th grade.......
                                      8th grade.......
                                      9th grade.......
                                      10th grade......
                                      11th grade......
                                      12th grade......
                                      Postsecondary
                                       education or
                                       training.
                                      College, at
                                       least one
                                       semester.
19................  Special           Yes.............
                     education.
                                      No..............
20................  Independent       Yes.............
                     living needs
                     assessment.
                                      No..............
21................  Academic support  Yes.............
                                      No..............
22................  Post-secondary    Yes.............
                     educational
                     support.
                                      No..............
23................  Career            Yes.............
                     preparation.
                                      No..............
24................  Employment        Yes.............
                     programs or
                     vocational
                     training.
                                      No..............
25................  Budget and        Yes.............
                     financial
                     management.
                                      No..............
26................  Housing           Yes.............
                     education and
                     home management
                     training.
                                      No..............
27................  Health education  Yes.............
                     and risk
                     prevention.
                                      No..............
28................  Family Support/   Yes.............
                     Healthy
                     Marriage
                     Education.
                                      No..............
29................  Mentoring.......  Yes.............

[[Page 954]]

 
                                      No..............
30................  Supervised        Yes.............
                     independent
                     living.
                                      No..............
31................  Room and board    Yes.............
                     financial
                     assistance.
                                      No..............
32................  Education         Yes.............
                     financial
                     assistance.
                                      No..............
33................  Other financial   Yes.............
                     assistance.
                                      No..............
34................  Outcomes          Youth             Baseline and
                     reporting         Participated.     follow-up
                     status.          Youth Declined..   populations
                                      Parent Declined.   (with the
                                      Youth              exception of
                                       Incapacitated..   the response
                                      Incarcerated....   option ``not in
                                      Runaway/Missing.   sample'' which
                                      Unable to locate/  is applicable
                                       invite..          to 19-year olds
                                      Death...........   in the follow-
                                      Not in sample...   up only).
35................  Date of outcome   CCYYMMDD........  Baseline and
                     data collection.                    follow-up
                                                         populations.
                                      CC = century
                                       year (i.e., 20).
                                      YY = decade year
                                       (00-99).
                                      MM = month (01-
                                       12).
                                      DD = day (01-31)
36................  Foster care       Yes.............
                     status-outcomes.
                                      No..............
37................  Current full-     Yes.............
                     time employment.
                                      No..............
                                      Declined........
38................  Current part-     Yes.............
                     time employment.
                                      No..............
                                      Declined........
39................  Employment-       Yes.............
                     related skills.
                                      No..............
                                      Declined........
40................  Social Security.  Yes.............
                                      No..............
                                      Declined........
41................  Educational aid.  Yes.............
                                      No..............
                                      Declined........
42................  Public financial  Yes.............  Follow-up
                     assistance.                         population not
                                                         in foster care.
                                      No..............
                                      Not applicable..
                                      Declined........
43................  Public food       Yes.............
                     assistance.
                                      No..............
                                      Not applicable..
                                      Declined........
44................  Public housing    Yes.............
                     assistance.
                                      No..............
                                      Not applicable..
                                      Declined........
45................  Other financial   Yes.............  Baseline and
                     support.                            follow-up
                                                         population.
                                      No..............
                                      Declined........
46................  Highest           High school
                     educational       diploma/GED.
                     certification
                     received.
                                      Vocational
                                       certificate.
                                      Vocational
                                       license.
                                      Associate's
                                       degree.
                                      Bachelor's
                                       degree.
                                      Higher degree...
                                      None of the
                                       above.
                                      Declined........
47................  Current           Yes.............
                     enrollment and
                     attendance.
                                      No..............
                                      Declined........
48................  Connection to     Yes.............
                     adult.
                                      No..............
                                      Declined........
49................  Homelessness....  Yes.............
                                      No..............
                                      Declined........
50................  Substance abuse   Yes.............
                     referral.
                                      No..............

[[Page 955]]

 
                                      Declined........
51................  Incarceration...  Yes.............
                                      No..............
                                      Declined........
52................  Children........  Yes.............
                                      No..............
                                      Declined........
53................  Marriage at       Yes.............
                     child's birth.
                                      No..............
                                      Not applicable..
                                      Declined........
54................  Medicaid........  Yes.............
                                      No..............
                                      Don't know......
                                      Declined........
55................  Other health      Yes.............  Baseline and
                     insurance.                          follow-up
                                                         population.
                                      No..............
                                      Don't know......
                                      Declined........
56................  Health insurance  Yes.............
                     type--medical.
                                      No..............
                                      Don't know......
                                      Not Applicable..
                                      Declined........
57................  Health insurance  Yes.............
                     type--mental
                     health.
                                      No..............
                                      Don't know......
                                      Not applicable..
                                      Declined........
58................  Health insurance  Yes.
                     type--prescript  No..............
                     ion drugs.       Don't know......
                                      Not applicable..
                                      Declined........
------------------------------------------------------------------------

Appendix B to Part 1356--NYTD Youth Outcome Survey

------------------------------------------------------------------------
                                Question to youth
       Topic/element No.           and response          Definition
                                     options
------------------------------------------------------------------------
 INFORMATION TO COLLECT FROM ALL YOUTH SURVEYED FOR OUTCOMES, WHETHER IN
                           FOSTER CARE OR NOT
------------------------------------------------------------------------
Current full-time employment    Currently are you  ``Full-time'' means
 (37).                           employed full-     working at least 35
                                 time?              hours per week at
                                                    one or multiple
                                                    jobs.
                                --Yes
                                --No
                                --Declined
Current part-time employment    Currently are you  ``Part-time'' means
 (38).                           employed part-     working at least 1-
                                 time?              34 hours per week at
                                                    one or multiple
                                                    jobs.
                                --Yes
                                --No
                                --Declined
Employment-related skills (39)  In the past year,  This means
                                 did you complete   apprenticeships,
                                 an                 internships, or
                                 apprenticeship,    other on-the-job
                                 internship, or     trainings, either
                                 other on-the-job   paid or unpaid, that
                                 training, either   helped the youth
                                 paid or unpaid?    acquire employment-
                                --Yes               related skills
                                --No                (which can include
                                --Declined          specific trade
                                                    skills such as
                                                    carpentry or auto
                                                    mechanics, or office
                                                    skills such as word
                                                    processing or use of
                                                    office equipment).
Social Security (40)..........  Currently are you  These are payments
                                 receiving social   from the government
                                 security           to meet basic needs
                                 payments           for food, clothing,
                                 (Supplemental      and shelter of a
                                 Security Income    person with a
                                 (SSI, Social       disability. A youth
                                 Security           may be receiving
                                 Disability         these payments
                                 Insurance          because of a parent
                                 (SSDI), or         or guardian's
                                 dependents'        disability, rather
                                 payments)?         than his/her own.
                                --Yes
                                --No
                                --Declined

[[Page 956]]

 
Educational Aid (41)..........  Currently are you  Scholarships, grants,
                                 using a            and stipends are
                                 scholarship,       funds awarded for
                                 grant, stipend,    spending on expenses
                                 student loan,      related to gaining
                                 voucher, or        an education.
                                 other type of      ``Student loan''
                                 educational        means a government-
                                 financial aid to   guaranteed, low-
                                 cover any          interest loan for
                                 educational        students in post-
                                 expenses?          secondary education.
                                --Yes
                                --No
                                --Declined
Other financial support (45)..  Currently are you  This means periodic
                                 receiving any      and/or significant
                                 periodic and/or    financial support
                                 significant        from a spouse or
                                 financial          family member
                                 resources or       (biological, foster
                                 support from       or adoptive), child
                                 another source     support that the
                                 not previously     youth receives or
                                 indicated and      funds from a legal
                                 excluding paid     settlement. This
                                 employment?        does not include
                                --Yes               occasional gifts,
                                --No                such as birthday or
                                --Declined          graduation checks or
                                                    small donations of
                                                    food or personal
                                                    incidentals, child
                                                    care subsidies,
                                                    child support for a
                                                    youth's child or
                                                    other financial help
                                                    that does not
                                                    benefit the youth
                                                    directly in
                                                    supporting himself
                                                    or herself.
Highest educational             What is the        ``Vocational
 certification received (46).    highest            certificate'' means
                                 educational        a document stating
                                 degree or          that a person has
                                 certification      received education
                                 that you have      or training that
                                 received?          qualifies him or her
                                --High school       for a particular
                                 diploma/GED        job, e.g., auto
                                --Vocational        mechanics or
                                 certificate        cosmetology.
                                --Vocational        ``Vocational
                                 license            license'' means a
                                --Associate's       document that
                                 degree (e.g.,      indicates that the
                                 A.A.)              State or local
                                --Bachelor's        government
                                 degree (e.g.,      recognizes an
                                 B.A. or B.S.)      individual as a
                                --Higher degree     qualified
                                --None of the       professional in a
                                 above              particular trade or
                                --Declined          business. An
                                                    Associate's degree
                                                    is generally a two-
                                                    year degree from a
                                                    community college,
                                                    and a Bachelor's
                                                    degree is a four-
                                                    year degree from a
                                                    college or
                                                    university. ``Higher
                                                    degree'' indicates a
                                                    graduate degree,
                                                    such as a Masters or
                                                    Doctorate degree.
                                                    ``None of the
                                                    above'' means that
                                                    the youth has not
                                                    received any of the
                                                    above educational
                                                    certifications.
Current enrollment and          Currently are you  This means both
 attendance (47).                enrolled in and    enrolled in and
                                 attending high     attending high
                                 school, GED        school, GED classes,
                                 classes, post-     or postsecondary
                                 high school        vocational training
                                 vocational         or college. A youth
                                 training, or       is still considered
                                 college?           enrolled in and
                                --Yes               attending school if
                                --No                the youth would
                                --Declined          otherwise be
                                                    enrolled in and
                                                    attending a school
                                                    that is currently
                                                    out of session
                                                    (e.g., Spring break,
                                                    summer vacation,
                                                    etc.).
Connection to adult (48)......  Currently is       This refers to an
                                 there at least     adult who the youth
                                 one adult in       can go to for advice
                                 your life, other   or guidance when
                                 than your          there is a decision
                                 caseworker, to     to make or a problem
                                 whom you can go    to solve, or for
                                 for advice or      companionship to
                                 emotional          share personal
                                 support?           achievements. This
                                --Yes               can include, but is
                                --No                not limited to,
                                --Declined          adult relatives,
                                                    parents or foster
                                                    parents. The
                                                    definition excludes
                                                    spouses, partners,
                                                    boyfriends or
                                                    girlfriends and
                                                    current caseworkers.
                                                    The adult must be
                                                    easily accessible to
                                                    the youth, either by
                                                    telephone or in
                                                    person.
Homelessness (49).............  Have you ever      ``Homeless'' means
                                 been homeless?     that the youth had
                                OR                  no regular or
                                --In the past two   adequate place to
                                 years, were you    live. This includes
                                 homeless at any    living in a car, or
                                 time?              on the street, or
                                --Yes               staying in a
                                --No                homeless or other
                                --Declined          temporary shelter.
Substance abuse referral (50).  Have you ever      This includes either
                                 referred           self-referring or
                                 yourself or has    being referred by a
                                 someone else       social worker,
                                 referred you for   school staff,
                                 an alcohol or      physician, mental
                                 drug abuse         health worker,
                                 assessment or      foster parent, or
                                 counseling?        other adult for an
                                OR                  alcohol or drug
                                                    abuse assessment or
                                                    counseling. Alcohol
                                                    or drug abuse
                                                    assessment is a
                                                    process designed to
                                                    determine if someone
                                                    has a problem with
                                                    alcohol or drug use.
                                In the past two
                                 years, did you
                                 refer yourself,
                                 or had someone
                                 else referred
                                 you for an
                                 alcohol or drug
                                 abuse assessment
                                 or counseling?
                                --Yes
                                --No
                                --Declined
Incarceration (51)............  Have you ever      This means that the
                                 been confined in   youth was confined
                                 a jail, prison,    in a jail, prison,
                                 correctional       correctional
                                 facility, or       facility, or
                                 juvenile or        juvenile or
                                 community          community detention
                                 detention          facility in
                                 facility, in       connection with a
                                 connection with    crime (misdemeanor
                                 allegedly          or felony) allegedly
                                 committing a       committed by the
                                 crime?             youth.
                                OR

[[Page 957]]

 
                                In the past two
                                 years, were you
                                 confined in a
                                 jail, prison,
                                 correctional
                                 facility, or
                                 juvenile or
                                 community
                                 detention
                                 facility, in
                                 connection with
                                 allegedly
                                 committing a
                                 crime?
                                --Yes
                                --No
                                --Declined
Children (52).................  Have you ever      This means giving
                                 given birth or     birth to or
                                 fathered any       fathering at least
                                 children that      one child that was
                                 were born?         born. If males do
                                OR                  not know, answer
                                                    ``No.''
                                In the past two
                                 years, did you
                                 give birth to or
                                 father any
                                 children that
                                 were born?
                                --Yes
                                --No
                                --Declined
Marriage at Child's Birth (53)  If you responded   This means that when
                                 yes to the         every child was born
                                 previous           the youth was
                                 question, were     married to the other
                                 you married to     parent of the child.
                                 the child's
                                 other parent at
                                 the time each
                                 child was born?
                                --Yes
                                --No
                                --Declined
Medicaid (54).................  Currently are you  Medicaid (or the
                                 on Medicaid [or    State medical
                                 use the name of    assistance program)
                                 the State's        is a health
                                 medical            insurance program
                                 assistance         funded by the
                                 program under      government.
                                 title XIX]?
                                --Yes
                                --No
                                --Don't know
                                --Declined
Other Health insurance          Currently do you   ``Health insurance''
 Coverage (55).                  have health        means having a third
                                 insurance, other   party pay for all or
                                 than Medicaid?     part of health care.
                                --Yes               Youth might have
                                --No                health insurance
                                --Don't know        such as group
                                --Declined          coverage offered by
                                                    employers or
                                                    schools, or
                                                    individual policies
                                                    that cover medical
                                                    and/or mental health
                                                    care and/or
                                                    prescription drugs,
                                                    or youth might be
                                                    covered under
                                                    parents' insurance.
                                                    This also could
                                                    include access to
                                                    free health care
                                                    through a college,
                                                    Indian Tribe, or
                                                    other source.
Health insurance type--medical  Does your health   This means that the
 (56).                           insurance          youth's health
                                 coverage include   insurance covers at
                                 coverage for       least some medical
                                 medical            services or
                                 services?          procedures. This
                                --Yes               question is for only
                                --No                those youth who
                                --Don't know        responded ``yes'' to
                                --Not Applicable    having health
                                --Declined          insurance.
Health insurance type--mental   Does your health   This means that the
 health (57).                    insurance          youth's health
                                 include coverage   insurance covers at
                                 for mental         least some mental
                                 health services?   health services.
                                --Yes               This question is for
                                --No                only those youth who
                                --Don't know        responded ``yes'' to
                                Not Applicable      having health
                                --Declined          insurance with
                                                    medical coverage.
Health insurance type--         Does your health   This means that the
 prescription drugs (58).        insurance          youth's health
                                 include coverage   insurance covers at
                                 for prescription   least some
                                 drugs?             prescription drugs.
                                --Yes               This question is for
                                --No                only those youth who
                                --Don't know        responded ``yes'' to
                                --Declined          having health
                                                    insurance with
                                                    medical coverage.
------------------------------------------------------------------------

[[Page 958]]

 
ADDITIONAL OUTCOMES INFORMATION TO COLLECT FROM YOUTH OUT OF FOSTER CARE
------------------------------------------------------------------------
Public financial assistance     Currently are you  This refers to
 (42).                           receiving          ongoing welfare
                                 ongoing welfare    payments from the
                                 payments from      government to
                                 the government     support your basic
                                 to support your    needs. Do not
                                 basic needs?       consider payments or
                                 [The State may     subsidies for
                                 add and/or         specific purposes,
                                 substitute the     such as unemployment
                                 name(s) of the     insurance, child
                                 State's welfare    care subsidies,
                                 program].          education
                                                    assistance, food
                                                    stamps or housing
                                                    assistance in this
                                                    category.
                                --Yes
                                --No
                                --Declined
Public food assistance (43)...  Currently are you  Public food
                                 receiving public   assistance includes
                                 food assistance?   food stamps, which
                                --Yes               are government-
                                --No                issued coupons or
                                --Declined          debit cards that
                                                    recipients can use
                                                    to buy eligible food
                                                    at authorized
                                                    stores. Public food
                                                    assistance also
                                                    includes assistance
                                                    from the Women,
                                                    Infants and Children
                                                    (WIC) program.
Public housing assistance (44)  Currently are you  Public housing is
                                 receiving any      rental housing
                                 sort of housing    provided by the
                                 assistance from    government to keep
                                 the government,    rents affordable for
                                 such as living     eligible individuals
                                 in public          and families, and a
                                 housing or         housing voucher
                                 receiving a        allows participants
                                 housing voucher?   to choose their own
                                --Yes               housing while the
                                --No                government pays part
                                --Declined          of the housing
                                                    costs. This does not
                                                    include payments
                                                    from the child
                                                    welfare agency for
                                                    room and board
                                                    payments.
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[FR Doc. 2011-32911 Filed 1-5-12; 8:45 am]
BILLING CODE P