Most sections of the LHEAP statute, as outlined below, and on other pages of this website, apply equally to states, tribes and tribal organizations and territories.
In fact, LIHEAP block grant regulation at 45 CFR 96.42(a) states:
(a) An Indian tribe or tribal organization applying for or receiving direct funding from the Secretary under a block grant program shall be subject to all statutory and regulatory requirements applicable to a State applying for or receiving block grant funds to the extent that such requirements are relevant to an Indian tribe or tribal organization except where otherwise provided by statute or in this part
However, there are a number of statutory or regulatory provisions pertaining only to tribes and some territories, or that provide exemptions for tribes and some territories, as follows:
- State recognition of tribes
- Direct funding of tribes, unless HHS determines a tribe is better served by the state
- Assurance 12: Public hearing or participation in development of the LIHEAP plan and proposed use Of funds
- Assurance 15: Use of alternate outreach and intake sites
- Assurance 9: 10 percent limit on administrative costs
In order for a tribe to received direct funding as a LIHEAP grantee, it must: 1) be recognized by the state in which it is located, and, 2) submit a request the HHS Division of Assistance to become a grantee and apply for funding.
Block grant regulations at 45 CFR 96.48(b)
(b) The terms Indian tribe and tribal organization as used in the Reconciliation Act have the same meaning given such terms in section 4(b) and 4(c) of the Indian Self-Determination and Education Assistance Act (25 U.S.C. 450b) except that the terms shall also include organized groups of Indians that the State in which they reside has expressly determined are Indian tribes or tribal organizations in accordance with State procedures for making such determinations.
c) For purposes of section 2604(d) of the Act (42 U.S.C. 8623(d)), an organized group of Indians is eligible for direct funding based on State recognition if the State has expressly determined that the group is an Indian tribe. A statement by the State's chief executive officer verifying that a tribe is recognized by that State will also be sufficient to verify State recognition for the purpose of direct funding.
The LIHEAP regulations provide for HHS Division of Energy Assistance (DEA) to determine tribes are eligible for direct funding, and, if determined eligible, the DEA will allocate a portion of the state's LIHEAP allocation to a tribal applicant. However under some circumstances the DEA will determine that a tribal applicant would be better served by the state, for example, when the tribe has not used its LIHEAP allotment according to statute.
Block grant regulations at 45 CFR 96.41
(a) The Department has determined that, with the exception of the circumstances addressed in paragraph (c) of this section, Indian tribes and tribal organizations would be better served by means of grants provided directly by the Department to such tribes and organizations out of their State''s allotment of block grant funds than if the State were awarded its entire allotment. Accordingly, with the exception of situations described in paragraph (c) of this section, the Department will, upon request of an eligible Indian tribe or tribal organization and where provided for by statute, reserve a portion of the allotment of the State(s) in which the tribe is located, and, upon receipt of a complete application and related submission meeting statutory and regulatory requirements, grant it directly to the tribe or organization.
(b) An Indian tribe or tribal organization may request direct funding under a block grant program included in this subpart regardless of whether the State in which it is located is receiving funds under the block grant program.
(c) (1) The tribe has not used its block grant allotment substantially in accordance with the provisions of the relevant statute(s); and
(2) Following the procedures of 45 CFR 96.51, the Department has withheld tribal funds because of those deficiencies; and
(3) The tribe has not provided sufficient evidence that it has removed or corrected the reason(s) for withholding. In these cases, block grant funds reserved or set aside for a direct grant to the Indian tribe will be awarded to the State(s), and the State(s) will provide block grant services to the service population of the tribe. Before awarding these funds to the State(s), the Department will allow as much time as it determines to be reasonable for the tribe to correct the conditions that led to withholding, consistent with provision of timely and meaningful services to the tribe's service population during the fiscal year. If a State(s) is awarded funds under this paragraph, the State(s) will receive all remaining funds set aside for the tribe for the Federal fiscal year for which the award is made. Where the Department has withheld funds from a tribe and the tribe has not taken satisfactory corrective action by the first day of the following fiscal year, all of the funds to serve the tribe's service population for the following fiscal year will be awarded to the State(s). The State(s) is responsible for providing services to the service population of the tribe in these cases. This paragraph also applies when funds are withheld from a tribal organization.
Additionally three of the LIHEAP Assurances relating to grantee administrative and program practices include exceptions for tribes:
Assurance 12: Public hearing or participation in development of the LIHEAP plan and proposed use of funds. While states are required to hold public hearings annually as they prepare for the next fiscal year of LIHEAP operations, tribes are not.
Assurance 15: use of alternate outreach and intake sites This Assurance requires states to provide outreach and intake sites that are alternatives to county welfare offices. Neither territories with annual allotments of $200,000 or less nor tribes are subject to Assurance 15.
Assurance 9: 10 percent limit on administrative costs While states are limited to spending 10 percent of their allotment on costs of planning and administration, tribes and territories have different limits, depending on their level of funding:
Block grant regulations at 45 CFR 96.88(b)
(1) Grantees who are direct-grant tribes, tribal organizations or territories with allotments of $20,000 or less may use for planning and administrative costs up to 20 percent of the funds payable.
(2) Grantees that are direct-grant tribes or tribal organizations with allotments over $20,000 may use up to 20 percent of the first $20,000 (or $4,000) plus 10 percent of the funds payable that exceeds $20,000.
LIHEAP Statute Section 2605(9)(B) and other sections below apply to both states and tribes:
LIHEAP Statute Section 2605(9)
B) the State will pay from non-Federal sources the remaining costs of planning and administering the program assisted under this title and will not use Federal funds for such remaining costs (except for the costs of the activities described in paragraph (16);
The LIHEAP statute does not define planning and administrative costs; however, the federal block grant regulations provide some guidance, essentially granting states and tribes some flexibility based on how it handles other programs.
Block Grant Regulations at 45 CFR Part 96.30
Except where otherwise required by Federal law or regulation, a State shall obligate and expend block grant funds in accordance with the laws and procedures applicable to the obligation and expenditure of its own funds.
The 10 percent cost limitation applies whether funds are subcontracted or transferred.
Block Grant Regulations at 45 CFR 96.88(a)
Costs of planning and administration: Any expenditure for governmental functions normally associated with administration in a public assistance program must be included in determining administrative costs subject to the statutory limitation on administrative costs, regardless of whether the expenditure is incurred by the State, a subrecipient, a grantee, or a contractor of the State.
HHS has issued general guidance (LIHEAP-IM-2000-12, DATED 3/15/2000) stating that "...costs associated with...taking applications, determining eligibility and benefits levels, and monitoring the assistance provided, are normally administrative in a predominantly cash assistance program." It added that: Outreach "encompasses activities that are administrative and others that are not."
Furthermore, HHS will defer to the state's definition unless it is based on an interpretation of the statute that is "clearly erroneous".[45 CFR 96.50(e)]