This letter transmits policies and procedures and identifies the minimum federal requirements set forth in 45 CFR Section 1356.67 for the transfer of jurisdiction and/or responsibility for the placement and care of an Indian child from an Ohio Title IV-E agency to a Tribal Title IV-E agency or an Indian tribe with a Title IV-E agreement. These federal regulations do not affect the specified right of a tribe to seek the transfer of an Indian child's case from county or court jurisdiction to tribal jurisdiction required under the Indian Child Welfare Act (ICWA). Regardless of whether or not a tribe is a Title IV-E tribe, the tribe continues to have the right to seek and, absent good cause to the contrary, obtain the transfer of jurisdiction of an Indian child's case to the tribe. The requirements outlined in this procedure letter will be added to Chapter 5101:2-53 of the Administrative Code in the near future.

Federal Regulations 45 CFR Section 1356.67

The regulations require, at a minimum, the following:

1.Each state shall establish and maintain procedures 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 Medicaid or other federal benefits.

2.The procedures require that the state shall:

a.Determine, if not already completed, the child's Title IV-E foster care maintenance (FCM) eligibility under section 472 or 473 of the Social Security 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.

b.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 or tribe with a Title IV-E agreement, 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 Social Security 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 Social Security 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 Social Security Act, including health and education records of the child pursuant to section 475(1)(C) of the Social Security Act; and

v.Information and documentation of the child's placement settings, including a copy of the most recent provider's license or approval.

BACKGROUND

In accordance with ICWA [25 USC, section 1911(C)], "in any State court proceeding for the foster care placement of, or termination of parental rights to, an Indian child, the Indian custodian of the child and the Indian child's tribe shall have a right to intervene at any point in the proceeding."

A tribe may request transfer of jurisdiction from a state court to a tribal court at any point throughout the life of the case. In order to ensure a Title IV-E eligible child remains eligible when transferring jurisdiction to a Tribal court, the tribe must be a Tribal Title IV-E Agency or enter into a Title IV-E agreement with the state. The tribe may request:

1.Transfer of jurisdiction to a tribal court

If the jurisdiction is transferred to the tribal court, the tribe assumes transfer of placement and care responsibility.

2.Transfer of placement and care responsibility to a tribe

The tribe may assume placement and care responsibility of an Indian child, while the jurisdiction remains with the State court.

INSTRUCTIONS

Upon a tribe's request for the transfer of jurisdiction or the transfer of placement and care responsibility to the tribe, the Ohio Title IV-E agency will consult, collaborate, and coordinate with the tribe to establish a Title IV-E agreement and procedures to ensure the transfer of jurisdiction is in compliance with federal regulations as outlined in 45 CFR Section 1356.67.

Ohio's Title IV-E agencies are required to take the following steps when transferring an Indian child to a Tribal Title IV-E agency or an Indian tribe with a Title IV-E agreement, in accordance with the aforementioned federal requirements.

1.Title IV-E FCM Eligibility Determination

The Ohio Title IV-E agency that has placement and care responsibilities for the child shall do the following:

Determine FCM eligibility at the time of transfer, if an eligibility determination is not already completed.

Provide a copy of the Title IV-E determination and supporting documentation to the tribe to support the Title IV-E eligibility determination. This documentation includes 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, reasonable efforts to prevent the removal have been made in accordance with rule 5101:2-47-13 of the Administrative Code, and documentation of how the child met the relatedness to the aid to dependent children (ADC) program authorized under Title IV-A of the Social Security Act as of July 16, 1996 in accordance with rule 5101:2-47-14 of the Administrative Code.

Ohio's Title IV-E agency's legal responsibility and FCM reimbursement will be stopped upon acceptance from the receiving Title IV-E tribal agency or court in order for the tribe and state to claim the Title IV-E expenditures according to federal regulations. If the Ohio Title IV-E agency is holding any funding on behalf of the child such as Social Security Income, Child Support, trust, etc., these funds shall be transferred.

The transfer does not affect a child's eligibility, receipt of services, or payment under Title IV-E or the medical assistance program operated under Title XIX.

2.Documentation Requirements

In order to comply with the requirements of 45 CFR section 1356.67, a copy of the entire case file for the current foster care episode is to be provided to the Tribal Title IV-E agency or the Indian tribe with a Title IV-E agreement upon the transfer of the child. This includes the FCM eligibility, case services and licensing information for the child's most recent placement, in the agency's possession. The documents in the court file should also be provided to the tribal agency. This is equivalent to the procedures currently utilized when transferring a child from county to county.

Confidentiality is not violated because the provision of documentation is required by the federal regulations [45 CFR section 1356.67 (b)(2)]. The tribe or tribal agency in entering a Title IV-E agreement has agreed to comply with the same federal requirements on confidentiality to which the state is required to adhere. Moreover, providing the entire file recognizes the need for the receiving agency to have essential documentation and information to maintain the seamless care and provision of services for the well-being of the child.

In order to facilitate consistency in the structure of the file transfer and for purposes of the continuity of eligibility and services to the child, counties shall ensure the records are organized and include the following:

a.Placement and Care Responsibility

A file stamped copy of all judicial orders and court reports for the foster care episode, especially those that include judicial determinations supporting continued Title IV-E eligibility.

b.Placement History

A copy of the child's placement history for the foster care episode shall include:

• A copy of the caregiver's license or approval for the child's most recent placement, including background check documentation verifying clearances for all adults in the caregiver's household and complaint information.
• If a child is currently placed out-of-state by the Title IV-E agency pursuant to the Interstate Compact on Placement of Children (ICPC), the approved ICPC 100A Form and ICPC 100B Form, including copies of reports by the supervising agency, shall also be provided to the tribe.

c.Case Plans and Services

Journalized copies of all case plans including case plan goals for the foster care episode and documentation of services provided to the child and family.

A current copy of the child's health and education forms.

d.Other Federal Benefit Documentation

The child is to be transferred in a manner that does not affect his/her eligibility for, or payment of other federal benefits including Medicaid programs under Title XIX. Therefore, the Title IV-E agency shall provide the tribal agency any essential information and documentation necessary for the seamless continuation of any federal benefits, which the Title IV-E agency has in its possession.

This includes, but is not limited to, information about the child's eligibility for Child Support, Social Security, Supplemental Security Income (SSI), or other benefits, which are known to the Title IV-E agency and/or in pending status.

Children Placed under the Interstate Compact on the Placement of Children (ICPC)

Determining when the ICPC applies:

(1)The Title IV-E agency must inquire whether the receiving tribe has a contract with the receiving state for ICPC application. For example, some tribes contract with their state for child welfare services, home studies, and other similar services. If the receiving tribe has a contract with the receiving state, then the ICPC most likely applies to a placement with that tribe.

(2)If the tribe has a Title IV-E agreement with the receiving state, the ICPC will most likely apply.

(3)If the tribe assumes jurisdiction, there is no authority for a court to act, so the ICPC does not apply.

Transferring a child currently in an out-of-state placement to a tribal agency could jeopardize the continued flow of federal benefits if the placement becomes ineligible due to the termination of the ICPC placement.

The Ohio Title IV-E agency should therefore, upon receipt of the petition to transfer, notify the receiving state that the jurisdiction over the child may be transferred to a Title IV-E tribe or tribal agency. Title IV-E agencies are encouraged to initiate and foster communication between the tribe or tribal agency and the receiving state in order to avoid disruption of the placement and/or federal eligibility for FCM payments to the child's caregivers.