DEPARTMENTAL GRANT APPEALS BOARD
Department of Health and Human Services
SUBJECT: California Department of Social Services
Docket No. 87-99
Decision No. 960
DATE: June 2, 1988
DECISION
The California Department of Social Services (State) appealed
a
determination by the Commissioner, Administration for Children,
Youth
and Families (Agency), disallowing $451,325 claimed by the State
as
federal financial participation (FFP) under Title IV-E of the
Social
Security Act (Act) for the period March 31, 1984 through June 30,
1986.
The claims were for FFP in payments for the care of children placed
in
the Rite of Passage camp program (ROP), a facility alleged to be
a
child-care institution. Title IV-E of the Act authorizes FFP in
foster
care maintenance payments (AFDC-FC) on behalf of children in
child-care
institutions, excluding children in detention facilities or
other
facilities operated primarily for the detention of children who
are
determined to be delinquent. See section 472(c)(2) of the Act and
its
implementing regulations at 45 C.F.R. 1355.20. The Agency based
the
disallowance on its finding that ROP was not a child-care
institution
within the meaning of Title IV-E. The Agency found,
instead, that ROP
was a facility operated primarily for detention and was a
"physically
restricting" facility for the care of children who required
secure
custody.
Based on the record in this case, as discussed below, we find that
the
Agency had a reasonable basis for its determination that ROP is
a
facility that is operated primarily for detention. Therefore, we
uphold
the Agency's disallowance in full.
Applicable Authority
Section 472(c)(2) of the Act provides:
the term "child-care institution" means a nonprofit
private
child-care institution, or a public
child-care institution which
accommodates no more
than twenty-five children, which is licensed
by the
State in which it is situated or has been approved, by
the
agency of such State responsible for licensing
or approval of
institutions of this type, as meeting
the standards established for
such licensing, but
the term shall not include detention
facilities,
forestry camps, training schools, or any other
facility
operated primarily for the detention of
children who are determined
to be delinquent.
(Emphasis added)
45 C.F.R. 1355.20 (1985) provides:
Detention facility in the context of the definition
of child care
institution in section 472 (c)(2) of
the Act means a physically
restricting facility for
the care of children who require secure
custody
pending court adjudication, court disposition, execution
of
a court order or after commitment. (Emphasis
added)
Background
ROP is a sequential, staged program for troubled boys, including
those
placed by a probation department as wards of the juvenile
court.
State's brief, p. 2. According to testimony at the hearing held
in this
case, a juvenile is adjudicated as a ward of the court under section
602
of the California Welfare and Institution Code, which deals
primarily
with youngsters who have committed a crime under the
California
statutes. Further, the testimony differentiated section 602
wards of
the court from section 300 dependents of the court. The
dependency
section of the Code, section 300, deals with unfit and neglectful
home
situations. Transcript of Hearing, p. 8. During the
disallowance
period, only wards of the court, adjudicated delinquents, were
residents
at ROP. Transcript of Hearing, p. 29. Finally,
testimony indicated
that ROP is one of several options available to the court
when making a
decision about a ward of the court. Such alternatives of
the court
include dismissing the matter entirely, having the ward supervised
out
of his home, temporarily removing the child from his home and
placing
him in a non-secure camp or ranch, or committing the child to
the
California Youth Authority. Transcript of Hearing, p. 9.
Thus, it is
clear that ROP is an integral part of the State's system for
dealing
with adjudicated delinquents.
ROP is located on the Walker River Indian Reservation 16 miles from
the
nearest town, which is Schurz, Nevada. ROP is situated in the
desert on
a dried lake bed. The living conditions were described in
ROP
literature as spartan. The residents of ROP slept in Sioux Tipis
in
sleeping bags, did their own laundry in tubs, and used solar
heated
showers once a day. 1/ Meals at ROP were served in a wood frame
mess
hall with plywood tables. Except for a catalytic heater in a sick
tent,
there was no electricity, air conditioning or heating. State's
appeal
file, Ex. 3a.
ROP's stated purpose was to teach "basic athletic training,
desert
survival training and establishment of disciplined respect."
State's
appeal file, Ex. 3a, p. 3. However, the ROP literature in the
record
before us deals primarily with discipline and penalties for
disobeying
the rules. ROP's "graduation" time was 90 "good days," which
averages
150 calendar days spent at the camp. 2/ Discipline at ROP was
described
as "increasingly consistent" and consequences for offenses ranged
from
specific exercises to loss of "good" days needed for "graduation."
ROP
literature states only four reasons for possible early termination:
(1)
successful murder or violent act causing very severe injury;
(2)
successful suicide; (3) permanent physical disability; or (4)
court
order out of placement. State's appeal file, Ex. 3a, p. 4.
Security measures listed by ROP required that all sharp and heavy
objects
and medications or other substances (i.e., gas, solvents, etc.),
be accounted
for and locked up. Additionally, there was evidence that
the shoes of
the residents at the ROP camp were removed and locked up
nightly and head
counts of the residents were taken every 15 to 20
minutes. ROP's
procedure for handling runaways states:
Staff will pursue and bring back to camp any boy who
attempts to go
AWOL. We do this to protect his
health and safety due to the fact
that he could be
dehydrated, get bitten by a rattler, or otherwise
perish in the desert. State's appeal file, Ex. 3a.
Finally, the ROP camp had a procedure for "non-compliance" of the
rules
whereby the non-complying resident was removed and isolated from
the
general population. Transcript of Hearing, p. 50; Agency's appeal
file,
Ex. C, pp. 14 and 39.
State's Arguments
The State maintained that the fundamental issue is whether ROP
was
operated "primarily" for the purpose of detention for delinquent
youth,
which is the standard set forth by Congress. The State argued that
ROP
was a facility whose primary purpose was behavior modification
treatment
and not detention. The State maintained that the isolation of
the
facility was primarily so that the program could be implemented
without
distractions. While conceding that ROP was hard to run away from,
that
it discouraged running away by taking the residents' shoes at
night,
that the residents were closely supervised, and that the
program,
located on an Indian reservation, was very structured with an
almost
military aspect, the State asserted that all these procedures were
for
the purpose of more effective uninterrupted treatment. Moreover,
the
State argued that it presented testimony at the hearing in this case
to
confirm its position regarding the purpose of the program.
3/
Additionally, the State argued that the testimony of Mr. Lepak,
the
Agency's witness who testified about ROP, should be suspect because
he
appeared opposed to the concept of ROP. 4/ The State argued that
the
primary intent of Congress in including qualifying language in the
Act,
i.e., not more than 25 children and not a detention facility, was
to
prevent states from disguising prisons for children as
child-care
institutions or foster homes. 5/ The State also asserted
that a
subsidiary issue is whether ROP was operated as a
"physically
restricting facility." State's brief, p. 6. 6/ The
State maintained
that ROP did not "physically restrict," since the State
concluded that
the obvious connotation for "physically restrict" is a locked
facility
with high walls. 7/ At ROP, the State argued that there were
no locks,
high walls or barbed wire. Moreover, the State argued
that
"geographically" restrictive does not equate to
"physically"
restrictive. In support of this argument, the State
maintained that
although 16 miles "may seem long to most people who spend
most of the
day in front of a word processor," for young men who run as a
matter of
course three miles every morning and who participate in athletics
every
day, 16 miles is not much of a geographic restriction. State's
brief,
p. 6.
Analysis
As discussed below, we find that the Agency had a reasonable basis
for
determining that ROP was operated primarily for the detention
of
delinquent youth. There are two essential aspects of our
finding. One
is that the youth in question had been adjudicated
delinquent and thus
"require[d] secure custody." 45 C.F.R.
1355.20. The State did not
dispute this point. The second is that
the youth were subject to a
variety of physical restrictions, amounting to
detention, and thus ROP
was a "detention facility." Id.
The State argued, in essence, that it was entitled to FFP because ROP
was
operated primarily for the treatment of youth, and that even the
physical
restriction was part of the treatment. Thus, the State
contended, ROP
was not "operated primarily for the detention of
children." State's
Post-hearing brief, p. 1. However, the State cannot
prevail because the
record supports the Agency's determination that ROP
was operated primarily
for the detention of the youth in question.
Moreover, the "treatment"
procedures that the State admitted were used
at ROP, especially the physical
restrictions, were clearly the type of
procedures identified by the Agency in
its regulation as the kind of
restrictive procedures that would determine a
detention facility.
Therefore, the Agency was well within its discretion, and
supported by
ample evidence in the record (see "Background" above) in its
decision
that ROP's purpose was "primarily" detention. Additionally,
the record
shows that a mixture of detention and treatment is common in
juvenile
law. We note that there is precedent for the conclusion that
the
purposes of juvenile law are twofold. In Creek v. Stone, 379 F.2d
106
(D.C. Cir. 1967), the court said that when a child is removed from
his
own family, the juvenile court shall "secure [placement] for
his
custody, care and discipline" as nearly as possible equivalent to
the
type of care which should have been provided by his parents.
Similarly,
in Martarella v. Kelley, 359 F. Supp. 478 (S.D.N.Y. 1973),
in Appendix
A, the court recognized and mandated the type of treatment that
the
State of New York had to provide for juveniles in a "secure
detention
facility."
We believe that it is clear, from the above court cases, that treatment
is
an integral part of the process even when the primary purpose
is
detention. Similarly, we believe that there is an objective
distinction
to be drawn between a facility whose primary emphasis is on
detention
and a facility whose primary emphasis is on treatment. ROP
was, first
and foremost, primarily for delinquent children who required
secure
custody. Although the State presented testimony that dependents
of the
court were also sent to ROP, only section 602 wards --
adjudicated
delinquents -- were at ROP during the disallowance period.
By reaching
this conclusion, we do not reject the State's argument that
the
residents received some treatment. 8/ We conclude, however, that
there
was a reasonable basis for concluding that the treatment aspect of
the
facility was secondary to the detention purpose.
We reject the State's argument that physical restrictions must equate
to
locks, bars, restraining fences or guards. The Agency maintained
that
its regulatory definition of the statutory phrase "any facility
operated
primarily . . . for detention", i.e., in pertinent part, "a
physically
restricting facility for the care of children who require
secure
custody," was specifically designed to be a more concrete and
objective
standard than the statutory phrase. Taken as a whole, we find
that it
was reasonable to view ROP's location and procedures as designed
to
physically restrict its residents and of the type of
physically
restricting environment envisioned by the regulation. The
context here
must be kept in mind: the purpose of the Title IV-E
AFDC-FC program is
to provide for dependent children in specific foster care
situations,
and the further away from that central purpose we are, the
more
questionable it becomes to press an interpretation like the
State's.
Furthermore, all of the camp residents were adjudicated delinquents,
not
merely homeless children in need of structure. ROP's remote setting
and
16-mile surrounding desert may certainly serve the same purpose as
locks
and fences. Unquestionably, ROP's own description that a child
could
"become dehydrated, get bit by a rattler, or otherwise perish in
the
desert" supports this conclusion. Within this context, locks and
fences
would seem less intimidating than the stated alternatives.
Moreover,
ROP's other procedures reinforce this conclusion. ROP's
practices of
nightly collection of shoes, nightly head counts every 15 to 20
minutes,
team use of bathroom facilities, and constant surveillance of
residents
can only be attributable to a detention purpose. Indeed,
ROP's camp
manual devotes a great deal of explanation to the use of physical
force
and security procedures. See Agency's appeal file, Ex. C.
Thus, the
residents at ROP were physically restricted by any reasonable
reading of
the term.
Conclusion
Based on the foregoing, we uphold the Agency's disallowance.
________________________________ Donald
F.
Garrett
________________________________
Alexander
G. Teitz
________________________________ Norval
D.
(John) Settle Presiding Board Member
1. Testimony at the hearing indicated that after the
disallowance
period, certain physical aspects of ROP were changed, i.e., the
sleeping
structures were modified. However, this is not material to the
case at
issue.
2. "Good days" were gained by a resident when he
complied with a set
of tasks created by ROP. These tasks were listed on
a Weekly Checklist
that stated the resident's name and required the answers
to the
following information:
1. Has shown respect for himself and
others. 2. Completed all
school work for
day. 3. Completed all tasks asked of him.
4.
Participated in all work-outs (unless excused
by
doctor).
5. Kept himself and his area
clean. 6. Has taken leadership role
with
other residents. 7. Has been helpful with staff
in
implementing camp projects. 8. Always
acted as role model for
other residents to
follow. 9. Always helped staff in
guiding
other residents
to proper behavior.
3. Gilbert Ward, a section supervisor for the Alameda
County
Probation Department, testified that he considered ROP "an
innovative
treatment program for youngsters not exclusively delinquent,
but
youngsters who are demonstrating severe behavioral
problems."
Transcript of Hearing, p. 23.
Larry Marona, a supervising probation officer for the County of
San
Bernardino, testified that, in his opinion, ROP was designed to
treat
its residents. See, generally, Transcript of Hearing, pp.
70-98.
4. Mr. Lepak, a deputy probation officer for Contra
Costa County
Probation Department, testified that he had filed an abuse
report
against ROP after visiting the camp on October 14, 1985 and that
the
report was amended after an overnight visit on December 18,
1985.
Further he stated that he:
thought the place would be much more
humane if they put up barbed
wire fences
and guard towers . . . then kids would be able
to
have bowel movements when nature told
them they needed to; they'd
be able to
wear their shoes in the evening when they had to
go
out of the tent and go to the
bathroom; they wouldn't be
constantly --
have to be within eyesight of some staff;
they
wouldn't have to do everything and
move in groups. Transcript
of
Hearing, p. 200.
The Agency, however, maintained that Mr. Lepak's testimony was
less
suspect than the State's witnesses because Mr. Lepak's county does
not
have a stake in defending ROP by virtue of having 40 to 50
boys
currently placed at ROP, as did the counties that employed Mr. Ward
and
Mr. Marona. Agency Response to Appellant's Post Hearing Brief, p.
11.
5. Initially, the State argued that ROP also "comes
close if not
within" the State's classification as a "group home". State's
brief, p.
11. However, the State did not pursue this argument. In
any event, we
find that this argument is without merit, since ROP could not
meet the
federal standard for a "foster family home," which requires the
"home of
an individual or family." See 45 C.F.R. 1355.20.
6. The State also argued that ROP is not a facility
operating for
the purpose of holding delinquents "pending" disposition by a
court;
therefore, ROP does not fit within 45 C.F.R. 1335.20. The clear
reading
of the provision indicates that this argument is without merit
because
the completing phrase states "or after commitment."
7. Additionally, in its post-hearing brief, at p. 8,
the State used
the term "physically restraining" in arguing its position that
a
facility must have physical barriers to be within the
regulation's
definition. However, we reject this argument because the
applicable
standard is whether a facility is "physically restrictive"
not
"physically restraining."
8. Moreover, we do not comment on the quality of
treatment provided
by ROP, which is not an issue in
this