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TANF-ACF-PI-2005-03 (Requirements for Tribes and States Concerning Service Areas and Populations for Tribal TANF Programs)

Published: May 11, 2005
Audience:
Tribal TANF
Topics:
TANF Guidance
Types:
Program Instructions (PI)

To:

Indian Tribes Submitting Temporary Assistance for Needy Families (TANF) Plans or Amendments, States, and Other Interested Parties.

Subject:

Requirements for Tribes and States Concerning Service Areas and Populations for Tribal TANF Programs

References:       

Section 412 of the Social Security Act and Federal regulations at 25 CFR 20.100 and 45 CFR 286.20, 286.30, 286.75, and 286.160 .

Purpose:

This program instruction (PI) explains the application of the regulations at 45 CFR Part 286 for determining the service area(s) and population that may be included in a Tribe's TANF plan.  Additionally, it clarifies policy relative to Letters of Intent (LI) from Tribal applicants and explains State, Tribal and Federal roles in the resolution of Tribal competition over the same service area.

Background:           

A number of applicants for and grantees of the Tribal Temporary Assistance for Needy Families (TANF) program have raised several issues related to the policies and procedures contained in the aforementioned Federal regulations.  We will first summarize the content of these regulations and then address the questions raised by Tribes concerning the applicability of these regulations to various situations.

The issues and questions raised by the Tribal representatives were discussed with them during the latter part of 2004.  The Tribal comments were duly noted and were carefully evaluated against the requirements of the Social Security Act and regulations pertaining to the Tribal TANF program.  The requirements reflected in this PI, including the suggested time frames for processing certain actions, are based on these discussions and evaluation.

25 CFR 20.100 includes the definitions used by the Bureau of Indian Affairs (BIA) for the administration of its financial assistance and social services programs. The following definitions apply to the Tribal TANF program:

  • " Service area means a geographic area designated by the Assistant Secretary where financial assistance and social services programs are provided. Such a geographic area designation can include a reservation, near reservation, or other geographic location."
  • " Near reservation means those areas or communities designated by the Assistant Secretary that are adjacent or contiguous to reservations where financial assistance and social service programs are provided."
  • " Reservation means any federally recognized Indian tribe's reservation, pueblo, or colony."

The above definitions at 25 CFR 20.100 as well as the process for designation of service areas at 25 CFR 20.201 supersede the now-obsolete provisions at 25 CFR 20.1(r) which is referenced in the Tribal TANF regulations at 45 CFR 286.75(e). Accordingly, we will follow the definitions at 25 CFR 20.100 for purposes of the Tribal TANF program. Thus, our use of the terms "reservation," "near reservation," and "service area" in this PI have the same meaning as used in the BIA regulations at 25 CFR 20.100.

The BIA designated "service area" has been acknowledged by ACF as a fundamental organizational unit for the delivery of Tribal TANF services to needy Native American families within a recognizable geographic area.  This does not include other types of "service areas," such as those designated by the Department of Labor, the Department of Housing and Urban Development, or other agencies for various purposes.  Please note that Tribal TANF applicants wishing to cover needy Native American families within a BIA designated service area do not have to obtain the concurrence of the State. (See the section of this PI entitled in a BIA designated service area).

The Tribal TANF regulations issued by the Department of Health and Human Services, Administration for Children and Families, Office of Family Assistance, are found at 45 CFR Part 286.  Key provisions relating to the discussion of service area(s) and service population(s) are as follows:

45 CFR 286.20 provides the process and general timeframes for establishing the caseload and expenditure data in order to determine the amount of a Tribal Family Assistance Grant (TFAG), the annual amount of Federal TANF funding to which a Tribe is entitled in order to administer a Tribal TANF program.  Subsection 286.20(a) provides that "[w]e will request and use data submitted by a State to determine the amount of a TFAG.  The State data that we will request and use are the total Federal payments attributable to State expenditures, including administrative costs (which includes systems costs) for fiscal year 1994 under the former Aid to Families With Dependent Children, Emergency Assistance and Job Opportunities and Basic Skills Training programs, for all Indian families residing in the geographic service area or areas identified in the Tribe's letter of intent or Tribal Family Assistance Plan [TFAP]."

45 CFR 286.30 provides that if a Tribe wishes to retrocede a service area or population, it must follow certain required procedures, including:

  1. giving proper notification of termination to the HHS Secretary and the State;
  2. properly closing out the grant, according to the provisions of 45 CFR Part 92; and
  3. returning any unobligated funds to the Federal government. In a situation where only part of a service area/population is impacted by retrocession, these requirements are only applicable to the portion of the TFAG so affected.

45 CFR 286.75 describes what must be included in an acceptable Tribal TANF plan. Subsection 286.75(d) provides that a Tribe must identify the population to be served by the Tribal TANF program. Subsection 286.75 (e) provides that the Tribe must ".  Include a description of the geographic area to be served, including a specific description of any near reservation areas , as defined at 25 CFR 20.1(r), or any areas beyond near reservation to be included in the Tribal TANF service area. Subsection 286.75(e)(1) further provides that "[i]n areas beyond those defined as near reservation, the TFAP must demonstrate the Tribe's administrative capacity to serve such areas and the State(s)', and if applicable, other Tribe(s)' concurrence (emphasis added) with the proposed defined boundaries."

45 CFR 286.160 and the OMB approved Guidance for the Tribal TANF Program require that a Tribe that wishes to administer a Tribal TANF program must submit a LI that will allow ACF to request caseload and expenditure data from the affected State(s) in order to establish the annual amount of the Tribal Family Assistance Grant (TFAG).  The Guidance for the Tribal TANF Program can be reviewed by going to our website at:   

In certain areas of the country, the BIA designated service areas include geographic areas that have been assigned, in whole or in part, to more than one Tribe.  In other areas, States have applied a policy that allows Tribes to serve areas and populations that are outside of their reservation or BIA designated service areas.  These factors have prompted competition among a number of Tribal applicants for TANF and raised questions over the assignment of service areas and the allocation of the Indian population.  This PI clarifies how the Federal regulations address a number of scenarios including the following:

  • What are the purpose, scope, and duration of Tribal letters of intent? (Refer to the discussion below under Purpose, Scope and Duration of a Letter of Intent).
  • Under what circumstances must a Tribal applicant or grantee obtain the concurrence of other Tribes or the State in order to operate a TANF program in a particular area? (Refer to the discussion below under Overlapping Service Areas, Concurrence of Tribes, and Competition Over Service Areas).
  • How can "unaffiliated American Indian or Alaska Native families" be included in a Tribe's service population? (Refer to the discussion below under in a BIA designated service area).
  • If two or more Tribes seek to serve the same area and population and cannot agree to a mutually acceptable arrangement, what are the roles of the State and ACF in resolving this matter? (Refer to the discussion below under in a BIA designated service area and off reservation ad outside of a BIA designated service area).

Policy:

Purpose, Scope, and duration of a Letter of Intent (See 45 CFR 286.20 and 286.160)

An acceptable LI informs ACF of a Tribe's intent to operate a TANF program, and provides a clear description of the service area and population that a Tribe proposes to serve. The LI enables ACF to request from the State the data necessary for negotiation of a Tribal Family Assistance Grant (TFAG) prior to the submission of a formal plan.  The service area and population initially proposed in the LI must be clear and specific, so that we can request, and the State can provide, accurate data.  Although the proposed service area and service population in the LI must be accurately described in order to ensure the provision of accurate data, the LI itself does not confer legal rights to serve that area and/or population.  For example, an LI from one Tribe does not prevent or exclude other Tribes within the same BIA designated service area from seeking to cover the same area, nor does it create entitlement to coverage of "unaffiliated American Indian (AI) and Alaska Native (AN) families" who are part of the service population. "Unaffiliated AI/AN families" have the following characteristics:

  1. they are members of a Federally recognized Tribe; and
  2. they reside on the reservation of another Federally recognized Tribe but are not members of that Tribe; or
  3. they reside in the BIA designated service area of another Federally recognized Tribe but are not members of that Tribe; or
  4. they reside outside of a Federally recognized reservation or BIA designated service area and they are not members of the Federally recognized Tribe(s) seeking to operate or currently operating a TANF program in the area where they reside.

If ACF identifies issues with the LI that require revision, the Tribe will be formally notified of these issues and asked to resolve them via a revised LI.  The Tribe will have 30 days from the date of receipt of the ACF notice to prepare and submit a revised LI to ACF.  If a revised LI is not submitted to ACF within this 30 day period, the original LI will be deemed inactive and ACF will officially notify the Tribe that no further action will be taken.  If, after the 30 day period, the Tribe decides to reactivate the LI by making the suggested revisions and submitting them to ACF, the LI will be considered as a completely new notice of intent to operate a TANF program.  

If a Tribe submits an LI for an area that is already being served by another Tribal grantee under an approved TANF plan, the LI will be deemed unacceptable and ACF will officially notify the Tribe that no further action will be taken.  This is because ACF does not have the authority to withdraw approval of a legitimately operating Tribal TANF plan solely because another Tribal LI has been submitted to serve the same area.

If a Tribe submits an acceptable LI and ACF successfully obtains the relevant data from the State but the Tribe does not take any further steps toward implementation of a TANF program (e.g., the Tribe fails to follow up on the data request by notifying ACF in writing within 45 days of its agreement or disagreement with the State provided data or neglects to develop a TANF plan), the LI will be deemed inactive and ACF will officially notify the Tribe that no further action will be taken on the Tribe's request to operate a TANF program.  If the Tribe accepts the State data within the 45 day period, but fails to submit an acceptable draft TANF plan to ACF within 60 days following the Tribe's acceptance of the State data, the LI will be deemed inactive.  If the Tribe disagrees with the State data and enters into negotiations with the State that result in a mutual agreement over data, an acceptable draft TANF plan must be submitted to ACF within 60 days following the date of the agreement.

If a Tribe submits an acceptable LI to serve an area for which another Tribe has previously submitted an LI and that Tribe is engaged with the State in ongoing negotiations, ACF will request the data for the area described in the newly received LI and remind the State that the area or a portion of the area is already under negotiation with another Tribe.  The State will then decide whether to admit the newly proposing Tribe into the ongoing negotiations. The State will inform the Tribe and ACF of its decision within 45 days of receipt of the ACF request.  

If a Tribe submits an LI for an area in which there are other Tribes with reservation lands and/or BIA service area designations, ACF will take no action to request data from the State until the Tribe proposing to operate a Tribal TANF program:

  1. provides documentation that all other impacted Tribes in the area have been notified in writing of the intent to operate a Tribal TANF program in the area as well as advising them of their opportunity to concur or non-concur; and  
  2. provides either: (a) written concurrence from the impacted Tribes or their written non-concurrence, or (b) a statement that there has been no response to the written notification. The Tribe(s) receiving notification will have 90 days from receipt of the notice to respond. ACF will notify the proposing Tribe if any additional information is necessary.

If the impacted Tribe(s) provides written concurrence, ACF will accept the proposed service area and population.  If one or more of the impacted Tribes provides written non-concurrence, then ACF will require the applicant Tribe to amend its LI in accordance with these decisions.

If the impacted Tribes do not respond to the written notifications within 90 days of receipt of the notice, ACF will first determine if the notifications were adequate (i.e., the notices explicitly explain the proposed service area and population to be covered), and then proceed to contact the impacted Tribes to determine their position with respect to the proposing Tribe's application to administer a TANF program.  If the impacted Tribes are unresponsive to the ACF inquiries, their respective Tribal family members will be excluded from the proposed service population.

Concurrence of Tribes, Overlapping Service Areas and Competition Over Service Areas (See 45 CFR 286.75(d) and (e))

This section outlines a number of critical policies that Tribal TANF applicants must follow when preparing an LI and TANF plan as well as the respective roles of ACF and the State in resolving competition over the same service area(s).  Our foremost objective is for competition between Tribal applicants to be resolved through mutual agreement.  However, if such agreement is not possible, the determination as to who will serve the area will depend on whether the area under dispute is a reservation, a BIA designated service area, or an extended service area.  ACF has responsibility for determining who will serve on reservations and BIA designated service areas; the State will determine who will serve in extended service areas.

On a Reservation

If a Tribe proposes to administer a TANF program within the boundaries of its own reservation, it may include in its service population all AI/AN families residing on the reservation, regardless of Tribal membership.

A Tribe may also serve non-AI/AN families who reside on its reservation, with the concurrence of the State.

If a Tribe proposes to serve its own Tribal members who reside on another Tribe's reservation, it must obtain written permission of the Tribe to whom the reservation belongs. This is true regardless of whether or not the resident Tribe already administers or intends to administer a Tribal TANF program. If the resident Tribe administers its own TANF program and agrees to allow the applicant Tribe to serve the applicant's members living on the reservation, the funding for the TANF program of the resident Tribe will be adjusted accordingly.

A Tribe proposing to administer a TANF program cannot provide services on another Tribe's reservation without their expressed permission.

In A BIA Designated Service Area

If a Tribe proposes to administer a Tribal TANF program within the boundaries of its own reservation, and within the boundaries of its BIA designated service area, the following applies:

If the BIA designated service area has not been assigned to other Tribes by the BIA, the Tribe proposing to administer a TANF program may include its own member families and other AI/AN families from any other Federally recognized Tribe who reside on the reservation and/or in the designated service area.  Non-AI/AN families who reside in the service area may also be covered with the concurrence of the State.

If the BIA designated service area has been assigned to more than one Tribe, the Tribe proposing to administer a TANF program may include its own member families, other Tribal member families, unaffiliated AI/AN families, and non-AI/AN families in its service population.

The proposing Tribe must formally notify the other impacted Tribes in writing of its intent to operate a TANF program and the population it will cover in the proposed service area.  These other impacted Tribes have 90 days from the date of the notice to respond in writing to the proposing Tribe - i.e., to concur with or reject the request to serve their member families and unaffiliated AI/AN families or to indicate whether they intend to administer their own TANF program. Although the impacted Tribes may object to the inclusion of the unaffiliated AI/AN families in the proposing Tribe's plan, the assignment of this population will be decided by ACF.  If, at the end of the 90 day period a Tribe neither concurs nor objects to the notice or fails to respond at all, then ACF will first determine if the notices were adequate and then contact the impacted Tribe to determine its position with respect to the proposed service population. If the impacted Tribe is unresponsive the ACF inquiry, their respective Tribal family members will be excluded from the proposed service population. ACF will then proceed to request the data from the State and if applicable, process the plan.

There are several different outcomes that can occur in such a case, based upon how an impacted Tribe responds to the required notification. These outcomes affect both the Tribe proposing to administer a TANF program and the impacted Tribes (i.e., those Tribes who share a designated near reservation service area with the proposing Tribe). For example:

If an impacted Tribe gives its concurrence to a proposing Tribe to serve its member families in the shared BIA service area, the proposing Tribe must provide documentation of this concurrence. If the proposing Tribe's plan is then approved, the impacted Tribe's member families and any unaffiliated AI/AN families (if requested by the proposing Tribe) will be included in the service population of the proposing Tribe. If in subsequent years, the concurring Tribe decides to administer its own TANF program, it may withdraw its member families from the TANF Tribe's service population and the TANF Tribe's TFAG will be adjusted accordingly. This withdrawal applies only to those families who are members of the concurring Tribe.

If an impacted Tribe objects to having its member families included in the service population , the member families of the objecting Tribe will be excluded from the service population of the Tribe who has proposed to administer a TANF program, whether the impacted Tribe intends to administer a TANF program or not.

Once unaffiliated AI/AN families are included in a Tribe's service population, they will remain in that service population until that Tribe either ceases to administer its TANF program or agrees to voluntarily relinquish these families to another program.  If the Tribe ceases operation of its TANF program, the unaffiliated AI/AN families in its service population may then be included in another Tribe's service population. In the case where a Tribe agrees to voluntarily relinquish the unaffiliated AI/AN family portion of its service population to the State or to another Tribal TANF program, its TFAG will be reduced proportionally so that the funding for these families will be available to the other Tribe or to the State.

If the impacted Tribe intends to administer its own Tribal TANF program, it must respond to the notifying Tribe by clearly indicating this intent and specifying the population it wishes to serve. If both the notifying Tribe and impacted Tribe wish to include the unaffiliated AI/AN families in the shared BIA designated service area, these Tribes must negotiate and come to a mutual agreement on the distribution of the unaffiliated AI/AN families.  If the Tribes cannot agree among themselves as to the distribution of the unaffiliated AI/AN families then ACF will make the decision.

The ACF decision will be based on factors which demonstrate an applicant's capacity to operate an effective TANF program. Factors that will be considered include: audit findings related to a Tribe's administration of Federal grant funds; experience in operating other Federal or State funded programs; current infrastructure capacity to administer a TANF program; current or planned capacity to provide complete and timely reports relative to case and financial expenditure data; current or planned performance management activities; commitment to engaging TANF families in activities which lead to self-sufficiency; and ability to implement the program throughout the service area within a reasonable time period.

Off Reservation and outside of a BIA Designated Service Area

If a Tribe proposes to administer a TANF program in an area that is outside its reservation and is beyond the boundaries of its own BIA designated service area and has not been designated by BIA as a service area for any other Tribe, the Federal regulations at 45 CFR 286.75(e)(1) require that the Tribe must obtain the concurrence of the State to serve this area. This type of proposed service area is defined as an "extended service area."

If more than one Tribe proposes to administer a Tribal TANF program in the same extended service area (which may occur at the same time or after data negotiations have commenced with another Tribe but have not been completed), the State will determine how and whether negotiations for the service area will proceed (e.g., to include a new applicant after negotiations have commenced with another applicant). If negotiations proceed, the State will decide which Tribe(s) will serve the area and, if necessary, how the population will be allocated.  The State's determination of who should serve the area will be used by ACF when evaluating the applicable TANF plan.

If a Tribe proposes to administer a TANF program in an area that has not been designated by BIA as its service area but has in fact been designated as a service area of another Tribe, the proposing Tribe must obtain the concurrence of the Tribe to whom the area has been designated before it can serve any AI/AN families in this area, including its own members.

We have received questions about whether or not a State can withdraw its concurrence for a Tribal applicant to operate a TANF program in an extended service area.  Where a State has given its official concurrence for a Tribal TANF grantee to expand its program into an extended service area, the State may withdraw its earlier concurrence, for any reason, provided that ACF has not approved the applicable Tribal TANF plan.

Plan Modifications (See 45 CFR 286.30 and 286.65)

A Tribe may propose to change, increase, or reduce the service area and/or service population of its Tribal TANF program by submitting an amendment to its current TFAP.  This may also occur at the TFAP renewal/continuation process, which occurs every three years. In any case where a Tribe proposes a change in the service area and/or service population, the same conditions described above will apply where appropriate. In addition, if the proposed change results in a reduction in the service area or population, the regulations on retrocession must be followed.

Inquiries:

Inquiries should be addressed to the appropriate Administration for Children and Families (ACF) Regional Administrator.

/s/

Grant E. Collins II
Acting Director
Office of Family Assistance