Statement of the National Indian Child Welfare Association

Regarding Foster Care Financing

Submitted to the House Ways and Means Subcommittee on Human Resources

For the June 9, 2005 Hearing

The National Indian Child Welfare Association (NICWA) submits this statement on the Administration's proposal to change the financing structure of the Title IV-E foster care program.

The June 9 testimony of Wade Horn, Department of Health and Human Services Assistant Secretary for Children and Families, relies on an issue brief from the Office of Human Services Policy as a justification for the Department's recommendations. The Department's study concerns state administration of the Title IV-E foster care program. We expect that significant improvements could and should be made to the IV-E program as administered by the states. We also recognize that the study is a snapshot of the program not taking into account, for instance, local and state funds that are available for foster care services and up-front investments that states have made in their child welfare systems.

Our organization, on the other hand, is focused on tribal government delivery of child welfare services to the children under their jurisdiction. Foster care is an important component of any tribal service delivery system, but tribes have not been allowed to directly access the Title IV-E program, and, therefore, we find that generalizations about state service delivery have limited application to American Indian and Alaskan Native (AI/AN) children under tribal care. Our experience, accumulated over 20 years of working with tribal and state governments on child welfare issues, reveals important principles that guide successful program and policy decisions. We actively use these to guide our work in improving access and the quality of child welfare services to this population. First, tribal governments have a sovereign right and governmental responsibility to protect their children. They also have unique knowledge and resources that are critical to successfully addressing child abuse and neglect issues with their tribal members. Therefore, service delivery and financing schemes must support them as the primary service provider and decision-making entity. Second, AI/AN children have better outcomes when their connection to their cultures, families, and tribes are supported and actively incorporated in child welfare interventions. Third, the ability to exercise tribal authority and responsibility is based in large part on the resources available. Adequate resources are necessary for tribal governments to successfully carry out their authority for children under their jurisdiction.

The Administration's proposal, entitled “The Child Welfare Program Option,” would provide to tribes and tribal consortia $30 million annually in capped entitlement funds to operate Title IV-E foster care programs. Only those tribes that can "demonstrate the capacity" to operate a Title IV-E program would be able to access these funds. When the Administration first made this proposal in its budget three years ago we were very encouraged by its recognition that something should be done about the fact that the Title IV-E statute does not include tribal governments and the children under their jurisdiction. We also recognized that the proposal did not address several issues and hoped to be able to work with the Administration to move forward on workable legislation to allow tribes to directly administer the IV-E program. However, the Administration has shown little interest in other Tribal IV-E proposals and has provided few details regarding their own proposal. This environment has made it difficult to meaningfully discuss the fundamental issue of AI/AN children being left out of a federal entitlement program and effective solutions to this inequity.

We do agree with the Administration's position that the continued linking of IV-E eligibility to the former AFDC eligibility is outdated and should be changed. There either needs to be new income eligibility criteria, or IV-E services should not be income-based.

We also agree that adding more service flexibility in the use of IV-E Foster Care funding, including increased support for kinship care, would be beneficial.

We have major concerns with the Administration's proposal in the following areas:

Tribes Have Only One Option. The proposal does not allow tribes the same options as states. It would allow tribes (and a limited number at that) only one option, and that is to administer the new capped program. States, on the other hand, could either administer the current open-ended entitlement program or opt to administer the more flexible capped program.

Not All Tribes Would Be Eligible to Administer the Program. The proposal would allow only some tribes to administer the program—those that the Department deems to have the capacity. Little information is given about what criteria would be utilized, but Department representatives have previously indicated that it might be based upon the eligibility of certain federal programs (i.e., Title IV-E and IV-B, Subpart 2—approximately 70 tribes) that are not available to all tribes. Nonetheless, it is clear that not all tribes will be allowed to provide the services and protections of this important program to their children.

This sends a confusing message regarding how Indian children who are abused and neglected will be provided foster care services in an equitable and comprehensive fashion.

As we understand the proposal, tribes would have only two years to decide to administer the IV-E program. That in and of itself would severely limit tribal participation. IV-E is a complicated program and many tribes may require more lead time. As tribes have watched states operate the IV-E program and seen first hand the issues they face in trying to manage this program effectively, many tribal governments may not want to jump into a program without first assessing their readiness and having time to make adjustments needed to successfully operate the program. Unfortunately, the Administration’s proposal would likely severely limit tribal participation and ask tribes to hurry decisions that should be made more carefully.

The Funding Baseline Is Too Low. We feel the Department's $30 million cap for tribal IV-E programs is too low. We do not know how the Department arrived at that figure. The most recent CBO score on tribal IV-E legislation (S. 667, which is included in the Senate Finance Committee-approved welfare reform bill) estimates $66 million after the program has been available to tribes for a number of years. Tribal governments have not been afforded the opportunity to operate the Title IV-E program and therefore have not been able to establish historical data on their needs or trends in relation to foster care. The best option is to allow tribes to administer the program on an open ended entitlement basis; after 10 years, we would see what a reasonable baseline would be. We expect that tribes will come gradually into the IV-E program, just as they have into the TANF program.

Tribes Left Out of Adoption Assistance. The Administration's proposal does not include tribal eligibility for the Adoption Assistance Program. We find this puzzling given the high priority the Department places on adoption. There is no reason why tribes should not be eligible to administer this portion of the IV-E program.

Capping the Program Could Harm Tribal-State Agreements. We are very concerned that capping the funding for the IV-E program will be a disincentive for states to enter into future IV-E agreements with tribes, and some states may not want to renew existing agreements. There are and will be cases where a tribe finds that a tribal-state IV-E agreement is the better route for them than direct administration of the program.

Conclusion

Our best recommendation is for the Administration to re-evaluate their communication and decision-making strategy with regards to the tribal portions of their proposal. By more effectively utilizing their tribal governmental consultation policies, we think a meaningful dialogue can be established that can lead to better services for all AI/AN children. We continue to be in communication with Subcommittee staff about various Title IV-E Foster Care and Adoption Assistance Act proposals and look forward to continuing this dialogue. We are hopeful that there will finally be the political will in Congress to end the discriminatory treatment of vulnerable Indian children and look forward to assisting you in this endeavor.

Thank you.