POLICY INTERPRETATION QUESTIONS
DATE: May 27, 2016
TO: Tribal IV-D and Start-up Program Directors
FROM: Vicki Turetsky, Commissioner, Office of Child Support Enforcement
SUBJECT: Uniform Guidance Questions for Tribal Programs
With this document, we update the policy guidance provided in OCSE PIQT-13-01 to reflect the recodification and changes to the uniform administrative requirements, cost principles, and audit requirements for states, local governments, and Indian tribal governments now codified in HHS regulations at 45 CFR Part 75. Questions and responses regarding Part 75 follow.
Question 1: What are the uniform administrative requirements, cost principles, and audit requirements that apply to tribal IV-D programs?
Response 1: The Interim Final Rule published in the Federal Register, 79 FR 75871, dated December 19, 2014, provided notice that the uniform administrative requirements for states, local governments, and Indian tribal governments were removed from 45 CFR Part 92 and are now contained in 45 CFR Part 75. The cost principles and audit requirements for these governments were removed from 2 CFR Part 225 and OMB Circulars A-87 and A-133 and are now contained in 45 CFR Part 75 Subparts E and F. The notice indicated that HHS made the rule effective on December 26, 2014 to comply with all other federal agency adoption of a similar rule and to ensure consistency in administration of grants. Tribal IV-D programs should review 45 CFR Part 75 (also known as the “Uniform Guidance”) as the rules have been updated to reduce administrative burden on grantees as well as reduce risk of waste, fraud, and abuse in federally funded programs. The tribal regulations at 45 CFR 309 have also been updated to reflect this change.
Question 2: What are the federal requirements for patents and procurement that apply to tribal IV-D programs?
Response 2: In accordance with 45 CFR 75.335, the non-federal entity's contracts must contain the applicable provisions described in Appendix II to this part. Paragraph F of Appendix II to Part 75 pertains to patents and describes the circumstances under which a non-federal entity’s contracts must include patent right provisions consistent with 37 CFR Part 401 for the rights to inventions made under a tribal IV-D contract or agreement. Additionally, tribes must submit their contracts to OCSE for review and approval as part of their tribal IV-D plans in accordance with 45 CFR 309.60(c) (see TDCL-08-02). Please read Appendix II of Part 75 for the full list of contract provisions and include the applicable provisions in tribal contracts issued under the tribal IV-D plan.
The regulations at 45 CFR 75.326 through 75.340 contain the procurement standards and procedures that apply to tribes. Tribes should review the requirements and ensure that their procurement policies for using IV-D funding comply with the requirements in these sections.
Question 3: Why is it necessary to have patent, copyright, ownership, and confidentiality clauses in contracts used in tribal programs?
Response 3: In addition to meeting the federal requirements, patent, copyright, ownership, and confidentiality provisions help protect tribes from the loss and unauthorized use and disclosure of information or products used or developed under a tribal IV-D contract. For example, these provisions will ensure that tribes obtain access to working papers, own products or data developed for them, and have the required safeguards for confidential information. Therefore, we recommend that tribes develop standard language to include these provisions in their contracts and procurement policies and procedures. Tribal IV-D programs should review the property standards requirements contained in 45 CFR 75.316 through 75.325.
Question 4: Where in 45 CFR Part 75 is the record retention and access requirements that apply to tribal programs?
Response 4: The record retention and access requirements for tribal programs are contained in 45 CFR 75.361 through 75.370. The tribal regulations also reference the record retention requirements at 45 CFR 309.85(b). Tribal IV-D programs should review these requirements.
Question 5: What are the cost principles for rental costs applicable to tribes?
Response 5: The regulations at 45 CFR 75.465 describe the requirements for rental costs applicable to tribes. To claim rent as the non-federal share of program expenditures or as program expenditures under the grant, the tribe must have an arm’s length agreement for the rental of space, that is, the tribe cannot own the building that houses the tribal IV-D program. Additionally, rental costs claimed as the non-federal share of program expenditures under the tribal grant cannot also be claimed as program expenditures for federal funding under the grant. When the tribe owns the building in which the child support agency is housed, the uniform guidance at 45 CFR 75.465(b) allows a tribe to claim depreciation, maintenance, taxes, and insurance expenses.
The same principle applies to a tribe that charges the cost of the building it owns that houses the tribal IV-D program to the child support grant. When the tribe owns the building, the cost of the rent cannot be included as a line item in the grant. In this situation, the tribe may charge to the grant only those depreciation, maintenance, taxes, and insurance expenses related to the space the tribal IV-D program is using in the building.
Tribal child support programs should review and ensure they comply with the uniform administrative requirements, cost principles, and audit requirements found in 45 CFR Part 75. Please contact your designated OCSE Regional Program Specialist if you have any questions or need technical assistance.
Office of Child Support Enforcement
cc: ACF/OCSE Regional Program Managers