DEPARTMENTAL APPEALS BOARD
Department of Health and Human Services
SUBJECT: Idaho Department of Health DATE: February 1, 1989 and
Welfare Docket No. 88-36 Decision No. 1011
DECISION
The Idaho Department of Health and Welfare appealed a determination by
the Administration for Children, Youth and Families (ACYF) of the Office
of Human Development Services. ACYF found that the State was ineligible
for fiscal year (FY) 1986 funds awarded pursuant to section 427 of the
Social Security Act. Section 427 provides that a state may receive
additional funds for child welfare services, beyond the amount otherwise
available under title IV-B of the Act, if the state meets certain
requirements for protecting children in foster care.
ACYF initially approved Idaho's request for section 427 funds for FY
1986 based on a written certification by the State that it met the
requirements of section 427. Subsequently, ACYF performed a compliance
review to validate the State's self-certification. ACYF evaluated the
State's compliance on two levels: whether the State had established
policies and procedures for implementing the section 427 requirements
and whether these policies and procedures were operational. ACYF
determined that the State had policies and procedures for implementing
the section 427 requirements; however, after surveying a sample of
foster care case records, ACYF found that the requirements were not
actually met in a sufficient number of cases to constitute compliance.
ACYF required a 90% rate of compliance in order for the State to be
found eligible for section 427 funds, based on the number of years the
State had participated in the section 427 program. ACYF found a total
of 28 out of 163 cases to be unacceptable. In addition to raising
general legal arguments about the adequacy of ACYF's review, the State
challenged ACYF's findings on 13 of those cases. During Board
proceedings, ACYF accepted the State's position on one of the disputed
cases. ACYF's statistical sampling expert testified that the State
would be found eligible for section 427 funds, using ACYF's sampling
method, if the Board reversed ACYF's findings on any four of the
remaining 12 cases in dispute.
For the reasons stated below, we find that the State did comply with
section 427 requirements, as interpreted by ACYF, in at least four of
the disputed cases and therefore was eligible for section 427 funds in
FY 1986. As a result, we reverse ACYF's determination that it should
recover $353,623 in FY 1986 funds awarded under title IV-B of the Act
and $307,927 in funds awarded under title IV-E of the Act and
transferred to title IV-B.
Applicable Law
As one of the conditions for the receipt of additional child welfare
funds, section 427(a)(2)(B) requires that a state have implemented and
be operating to the satisfaction of the Secretary--
A case review system (as defined in section 475(5)) for each child
receiving foster care under the supervision of the State. . . .
Section 475(5) provides that--
The term "case review system" means a procedure for assuring that--
(A) each child has a case plan designed to achieve placement in
the least restrictive (most family like) setting available and
in close proximity to the parents' home, consistent with the
best interest and special needs of the child,
(B) the status of each child is reviewed periodically but no
less frequently than once every six months by either a court or
by administrative review (as defined in paragraph (6)) in order
to determine the continuing necessity for and appropriateness of
the placement, the extent of compliance with the case plan, and
the extent of progress which has been made toward alleviating or
mitigating the causes necessitating placement in foster care,
and to project a likely date by which the child may be returned
to the home or placed for adoption or legal guardianship, and
(C) with respect to each such child, procedural safeguards will
be applied, among other things, to assure each child in foster
care under the supervision of the State of a dispositional
hearing to be held, in a family or juvenile court or another
court (including a tribal court) of competent jurisdiction, or
by an administrative body appointed or approved by the court, no
later than eighteen months after the original placement (and
periodically thereafter during the continuation of foster care),
which hearing shall determine the future status of the child
(including, but not limited to, whether the child should be
returned to the parent, should be continued in foster care for a
specified period, should be placed for adoption, or should
(because of the child's special needs or circumstances) be
continued in foster care on a permanent or long-term basis); and
procedural safeguards shall also be applied with respect to
parental rights pertaining to the removal of the child from the
home of his parents, to a change in the child's placement, and
to any determination affecting visitation privileges of parents.
Section 475(6) defines an "administrative review" to mean--
a review open to the participation of the parents of the child
conducted by a panel of appropriate persons at least one of whom is
not responsible for the case management of, or the delivery of
services to, either the child or the parents who are the subject of
the review.
These provisions were added by the Adoption Assistance and Child Welfare
Act of 1980, Public Law 96-272, which amended the program of child
welfare services under title IV-B of the Social Security Act and also
established a new foster care maintenance program under title IV-E of
the Act. These amendments had three major goals: (1) prevention of
unnecessary separation of a child from its parents; (2) improved quality
of care and services to children and their families; and (3) permanency
for foster care children through reunification with parents or through
adoption or other permanency planning. See 45 Fed. Reg. 86818 (Dec. 30,
1980).
ACYF's compliance review process
After originally proposing detailed implementing regulations, ACYF
revised its proposal in order to permit states more flexibility. 47
Fed. Reg. 30934 (July 15, 1982). Because the regulations were not yet
promulgated in final form by fiscal year (FY) 1982, ACYF permitted
states to self-certify that they were in compliance with section 427.
ACYF then developed a compliance review process which consisted of two
parts: an administrative review of state policies and a case record
survey of state practices. The case record survey forms identified as
"major safeguards" or "critical elements": a written case
plan, a
timely periodic case review, and a timely dispositional hearing. The
form also listed the following "minor" requirements: the elements
to be
addressed in periodic case reviews in general; the notice to parents and
the participation of an independent person required for administrative
reviews; and the procedural protections mentioned in the statute. For a
case to be accepted, it had to have a written case plan, a timely
periodic review, and a timely dispositional hearing, as well as a
specified number (here 15) of the 18 identified minor protections. Exs.
II-1 and II-3.
For the case record survey, ACYF adopted a sequential sampling method,
which differs from standard sampling in that the sample size is not
fixed, but rather is determined by the results of observed cases as they
accumulate. Using this method, the reviewers start examining in
sequential order a collection of case records chosen in a scientifically
random manner. ACYF then uses a prepared "decision table," which
prescribes how many cases of the total sampled thus far must have failed
in order for ACYF to conclude that a state fails the section 427 review,
as well as how many cases of the total sampled must have passed in order
to conclude that a state passed the review. Illustrated graphically,
the method prescribes a "reject zone" above one boundary line, an
"accept zone" below another line, and a "zone of indifference"
in
between. Ex. E. Essentially, the number of cases rejected (i.e.,
failed) out of the number sampled can be shown as a line on the graph;
if the line goes into the reject zone, the state fails the review, and
if the line goes into the accept zone, the state passes. While the line
is in the zone of indifference, the reviewers are generally unable to
make a decision and therefore continue the review (unless they reach a
point where they "truncate" the review, so that it does not continue
indefinitely). Tr. III, pp. 467-473.
The Idaho reviews
ACYF performed compliance reviews of Idaho for both FY 1982 and FY 1983,
finding Idaho in compliance for those years. For states which have
passed two reviews, ACYF performs a "triennial review" which requires
a
90% rate of compliance in the case record survey. The state must also
pass the administrative review. ACYF performed a "triennial review"
of
Idaho for FY 1986, finding that the State had the required
administrative policies in place but failed the case record survey.
ACYF's statistical expert testified that the ACYF finding that the State
did not comply in 90% of the cases was not based on the State's sample
results falling in the reject zone during the case record survey;
rather, the sample was "truncated" at the 163rd case, where the State
was in the zone of indifference, but above a statistically determined
cutoff point. This result indicated that the State would have failed if
a 100% survey had been performed, but with less assurance than if the
sampling had been stopped in the reject zone. Tr. III, pp. 475-476.
This expert further testified that, if the Board reversed ACYF's
findings on any four of the disputed cases, the State should be found in
compliance according to ACYF's statistical sampling methodology. Tr.
III, pp. 486-487.
ACYF had originally found that 28 cases were not acceptable but had
subsequently accepted one of those cases based on the State's
presentation to the Board. The State did not contest ACYF's findings on
15 cases. Thus, a total of 12 cases remain in dispute. ACYF found five
of the disputed cases were missing a timely periodic case review, three
were missing a timely dispositional hearing, and four were missing both.
ACYF stipulated that the State met 15 of 18 minor protections in all
cases in dispute. Tr. I, p. 88.
The State's arguments
The State challenged the validity of the compliance review process in
general, as well as the validity of the sampling process used here. The
State also raised general issues about the time period for dispositional
hearings applicable under its policies for children whose parental
rights had been terminated, and whether the State court had approved an
administrative hearing process for dispositional hearings for such
children. Finally, the State provided documents and affidavits in
support of its position in certain cases that periodic case reviews or
dispositional hearings had been held in a timely manner. Because we
find below that these documents and affidavits establish that four of
the disputed cases should have been found acceptable -- and thus that
the State was in compliance, we do not reach the State's general
arguments on the process used nor its arguments on what was required or
allowed for children whose parental rights had been terminated.
We note, however, that ACYF rejected all of the State's affidavits as
providing evidence of section 427 compliance, primarily on the basis
that the affidavits were untrustworthy because not contemporaneous. The
State argued that by rejecting the affidavits, ACYF was imposing a
documentation requirement not established by section 427 or the
implementing regulations.
Although ACYF could not point to explicit requirements mandating how a
state should prove that periodic case reviews or dispositional hearings
were held, in our view the State should have known that it would be
required to demonstrate compliance with section 427 since that is
implicit in the idea of section 427 compliance reviews (about which the
State has known since at least 1982). On the other hand, ACYF
specifically chose not to promulgate detailed requirements in its
section 427 regulations, but decided to permit states flexibility in how
to implement the requirements. 48 Fed. Reg. 23107 (May 23, 1983).
Given this, and the fact that a State does not have total control over
how its workers and the courts record and preserve evidence of what they
do, it does not appear warranted for ACYF to fail every case where the
contemporaneous documentation is not complete. In the cases discussed
below, the written, contemporaneous record contains some information
about a proceeding which was scheduled or held and the affidavits merely
provide clarification of the scope or nature of the proceeding or who
participated. Some of the affidavits have specific indicia of
trustworthiness (as discussed below); also, the State offered to present
the affiants as witnesses but they did not testify at the hearing
because ACYF declined the opportunity to cross-examine them. Some of
the information in the affidavits was corroborated by the State's
program officials who were witnesses at the Board hearing in this case
and whom the Board found to be very credible.
Below, we discuss the four cases in which we reverse ACYF's findings.
We do not discuss the remaining eight disputed cases because that is not
necessary to our decision.
Case No. 122 - Barbara B.
Barbara was a 16-year old, with a history of physical and emotional
abuse by her mother and "benign neglect" by her father. Ex. VI-H-3.
A
six-month periodic review for Barbara was due by 12/30/85 (including the
30-day grace period allowed by ACYF). The record shows that a periodic
review was originally scheduled for 12/20/85. The caseworker's notes
state, after that date: "6-month Review, scheduled for 1 p.m. this
date, cancelled due to absence of [the foster child and her father].
Will be rescheduled for sometime in 1-86." Ex. VI-H-5. The State
provided an affidavit from this caseworker, as well as from a Social
Services Program Supervisor, attesting that, although they could not
fully review all of the issues in Barbara's case without the presence of
the natural parents and child, the reviewers did meet on 12/20/85 and
discuss the appropriateness of and compliance with the established case
plan, using in part the contents of a written questionnaire which
Barbara had completed, and including a discussion of her need for
continuing contact with her natural family. Ex. VI-H-4. The record
shows that a review addressing all of the section 427 elements was
subsequently held on 1/24/86. Ex. VI-H-6.
ACYF's written policy is that a dispositional hearing is timely if one
is scheduled for a date which is timely, even if the hearing is
"continued" until a later date. ACYF stipulated that this policy also
applies to periodic reviews. ACYF response to Board questions. ACYF
stated that "had a review actually begun and been continued, the date
used [to determine compliance] would be the date begun." Id. ACYF's
witness (a child welfare specialist who was in charge of the compliance
review for ACYF) explained that ACYF would not accept as a "continuance"
a situation where an attorney for one side simply asked for a change in
the date of a hearing; she said that the word "cancelled" used in
the
caseworker's notes means that a review did not happen, whereas
"continued" means that it began and it continued. Thus, ACYF would
not
accept a continuance that was, for all practical purposes, simply a
rescheduling. She further testified that she found the State's
affidavits untrustworthy because they were not completely consistent
with each other and because caseworkers would have trouble remembering
events from two years in the past when they have dealt with a large
number of cases. Tr. II, p. 257.
ACYF's witness interpreted the word "continued" in the ACYF policy
statement more narrowly than ordinary legal usage. Even accepting
ACYF's position that a review must have actually started to address the
substantive issues in a case on a particular date in order for that date
to be used for compliance purposes, we would, however, accept this case
because we find the State's evidence sufficient to show that a review
was actually started on 12/20/85. The documentary record supports the
affidavits' assertion that the reviewers actually met and discussed the
case: the questionnaire referred to is in the record and the caseworker
noted on 12/20/85 a "PLAN" to contact the parties about visitation
rights, which was the primary issue concerning this child the affidavits
said was discussed. Also, although the contemporaneous notes made by
the caseworker use the word "cancelled," the notes refer to the
"absence" of the child and her father, which suggests the presence
of
others at the scheduled meeting place. Finally, the record supports the
State's position that the State reasonably considered the presence of
the absent parties essential to fully addressing plans for this child,
and that this is not a situation where the review was simply rescheduled
for the convenience of the State.
Thus, we conclude that the case review for Barbara started prior to the
due date for that review and, therefore, was timely, under ACYF's
"continuance" policy.
Case No. 34 - Adan C.
Adan had originally been removed from his home due to physical abuse;
ultimately, his siblings were also removed from the home of their mother
due to neglectful conditions and the mother's lack of parenting skills
and her substance abuse. A hearing held on Adan's status on 9/12/85
resulted in an order renewing the Idaho Department's custody of Adan for
a year. Thus, a periodic review was due for Adan by 4/12/86 (including
the 30-day grace period). On 9/23/85, the mother entered into a
contract with the Department, agreeing to improve housing conditions,
search for a job, and participate in various services to address her own
problems, with the understanding that, if she did not comply, her
parental rights would be terminated. Ex. VII-J-8. A caseworker's notes
from March 1986 indicate in a narrative about Adan and two of his
siblings that the Department thought that it would ultimately petition
the court to terminate parental rights, but at that time was petitioning
only for continued custody. A court hearing was then held on 4/3/86;
ACYF did not accept this as a timely review for Adan because the
resulting custody order did not include Adan's name. The State
explained that it was not necessary for the formal order to extend
custody for Adan, since that had been done in September 1985, but that
Adan's status had been thoroughly addressed in the 4/3/86 hearing.
In support of its position, the State submitted a June 1987 letter by
the Magistrate Judge who had conducted the hearing. He stated that,
while the "formal court hearing" did not include Adan, Adan's best
interest was a part of the hearing and an expressed concern of the
court-appointed guardian. The letter also stated that the contract
between the mother and the Idaho Department of Health and Welfare, which
included Adan, was part of the testimony and cross examination at the
hearing. Ex. VII-J-15. The State also submitted an affidavit from the
attorney who had been appointed as Adan's guardian and who attended the
4/3/86 hearing. He attested that the Judge's letter was accurate and
that the court hearing reviewed the plans for all of the children in the
family.
ACYF rejected the State's evidence, questioning whether individuals with
a large number of cases could accurately remember the details of events
from two years before. ACYF also argued that Adan was an individual
with individual needs, which were not addressed as part of the "formal"
hearing held by the court. The State argued that Adan's needs were
addressed and suggested that this particular case was a memorable one
because the mother had rented her house and had been keeping the
children in a chicken coop. The State also argued that Idaho subscribes
to a family-centered social work practice and that the fact that all
siblings are reviewed in one proceeding does not prohibit individual
goal identification.
We find that the State's evidence is credible in showing that Adan's
needs were actually addressed by the court on 4/3/86. Not only are the
judge and guardian persons with no apparent self-interest who would be
held to a high ethical standard, but the record indicates that the
judge's statement was made after he reviewed the tapes of the hearing.
Ex. VII-J-16. The record as a whole also supports the conclusion that,
while the children had individual needs, the overwhelming consideration
in permanency planning for all the children was whether the mother would
comply with her contract to improve the home and herself. Finally,
documentation of an administrative review with respect to Adan, held by
a review panel shortly after the court hearing, indicates that the
reviewers had determined that a timely review of Adan's case had been
previously held, which would be true only if they considered the 4/3/86
hearing to have also included Adan. Ex. VII-J-9.
Thus, we conclude that the 4/3/86 court hearing did include Adan and
constituted a timely periodic case review.
Case No. 2 - Joe H.
Joe was a 16-year old who had a history of physical abuse and lack of
emotional support from his mother. He also had emotional disorders and
intellectual deficits (apparently because of organic brain dysfunction),
as well as feelings of rejection because of his mother's decision to
stay with a male companion and "let Joe go." Ex. VIII-M-4. He was
placed in the North Idaho Children's Home (NICH), a treatment facility
which provided various levels of structured care for children whose
needs could not be met in a less restrictive environment.
A court proceeding held on 5/28/85 found that Joe should be placed in a
"controlled and supervised environment which will protect and promote
the personal and emotional growth of such child," with an "educational
setting which will provide gains through Vo-Tech training for
emancipation." The court order further made provision for family
counseling and visitation contingent on the recommendation of the
counselors and therapists for the child. Ex. VIII-M-6. ACYF accepted
this court proceeding as a periodic case review and dispositional
hearing and thus found that the next case review was due 12/28/85
(including the 30-day grace period).
Documentation in the record establishes a "Treatment Staffing" for
Joe
at NICH dated 11/20/85. ACYF, while acknowledging that a periodic case
review could be performed in conjunction with a treatment staffing,
originally took the position that this staffing was not a case review
because the case review elements were not specifically addressed in the
documentation. When questioned about whether this was consistent with
ACYF's compliance review approach (which treats the lack of a required
review element to be failure to meet a minor protection, rather than a
failure to hold a timely review), ACYF clarified its position. The ACYF
witness testified that it is not ACYF's position that a NICH staffing
would have to show that all of the minor protections were provided, but
that the staffing would have to meet the purpose of the periodic case
review requirement, to prevent foster care drift and to move toward
permanency for the child. Tr. I, p. 131; Tr. II, pp. 300-301. She
further said that, if there was a "significant indication" that the
staffing was intended to meet the purpose of the law, this would be
considered acceptable. Tr. I, p. 210.
In support of its position that the staffing constituted a case review,
the State provided an affidavit from the former Executive Director of
NICH (who had left that position in 1987 to accept a position with a
California children's center). He attested:
That during the relevant time period progress reviews, "master
treatment plans" and periodic reviews conducted by staff of North
Idaho Children's Home regarding children placed in that facility
for treatment, met requirements of section 475(5). That such
reviews included notice to natural parents, Health and Welfare
staff, and all appropriate other persons maintaining a significant
relationship to the child. If in-person participation was not
possible, telephone conference calls were utilized when possible.
State's Brief, App. B. He further attested that it was the practice of
NICH staff to include all of the elements required in six-month reviews.
Id.
ACYF did not allege that it had any reason to doubt the Executive
Director's truthfulness, but questioned his statements as not
corroborated by the documentary record. ACYF's witness gave the
following as reasons for rejecting the ll/20/85 staffing as a timely
case review: the content of the documented review; the inability to
determine whether any person representing the Idaho Department of Health
and Welfare had participated in the review; and the inability to
determine whether any independent person had participated in the review.
We find the former Executive Director's affidavit sufficient to
establish that one purpose of all of the NICH staffings was certainly to
address permanency planning for NICH children in accordance with section
427. At the time of signing the affidavit in 1988, he had no apparent
self-interest in misrepresenting the nature of NICH staffings. The
focus of the documentation of Joe's staffing is on the progress of the
child in response to the treatment services provided by the facility;
the record shows, however, that these services were also the focus of
the foster care planning for Joe, whose emotional deficits were the
primary barrier to his being placed in a less restrictive, more
permanent placement. Moreover, the documentation goes beyond this and
includes an evaluation of Joe's response to a change in the level of
placement to a less structured environment, the educational progress of
the child, and familial involvement with the child -- thus addressing
all of the major components of the court-approved plan for the child.
Ex. VIII-M-7.
With respect to involvement of the Idaho Department, the record shows
that a copy of the staffing report (signed by three NICH staff members
and by Joe) was sent to the child's caseworker. Although this may not
necessarily indicate that the caseworker actually was present at the
staffing, ACYF's written policy does not require that the caseworker be
present, and ACYF did not point to, nor do we see, anything in the
particular circumstances here which indicates that the caseworker's
presence was necessary for an effective review.
Finally, both a nurse and a teacher from NICH wrote and signed reports
on Joe for the 11/20/85 staffing. ACYF acknowledged that either the
nurse or teacher would qualify as an independent person not providing or
supervising foster care services. While the documentation itself does
not clearly establish that either actually was present at the staffing
meeting, the State provided testimony from the supervisor of its Family
Centered Services Support section that the consistent practice at NICH
is that each of its departments be represented in such staffings. This
was corroborated by the Administrator of the State's Division of Family
and Children Services, who also testified that this is spelled out in
the service delivery requirements of the contract between NICH and the
State. Tr. II, pp. 303-304. Even if the minor protection of an
independent person was not provided, however, we would find that there
are in the record here "significant indications" that this staffing
had
as one of its purposes to address the foster care services and
permanency planning for Joe in accordance with section 427, so the case
was acceptable under ACYF's own standard.
Thus, we find that the 11/20/85 NICH staffing constituted a timely
periodic review.
Case No. 83 - Gregory B.
Gregory was an 11-year old boy, with two brothers. All of the boys had
been removed from their mother's home because of her problems with
alcohol and lack of parenting skills. In May of 1985, the oldest
brother, Carl, was returned to his mother (then living in Washington
State) and was receiving educational services from Lincoln Middle School
in Washington State. A case review was held with respect to the three
boys on 6/5/85. The plan for Gregory and his younger brother, Trevor,
continued to be reunification with their mother, contingent on her
progress in addressing her problems and the success of Carl's return to
the home. Ex. VI-I-4. The next review was due 1/5/86 (including the
30-day grace period), but ACYF found that no review was held until
2/6/86.
The compliance review sheet noted that the caseworker's narrative
mentioned an educational planning meeting for Carl (referred to as an
IEP staffing) held at the Lincoln Middle School on 10/15/85. The State
provided affidavits from the boys' caseworker and from their mother to
support its position that this meeting was not only an IEP staffing but
also constituted a periodic case review.
ACYF provided no rebuttal evidence, but challenged the affidavits
because they were made two years after the event, because ACYF found the
affidavits to be contradictory, and because ACYF felt that the mother
may have been pressured to sign the affidavit.
We find the affidavits sufficient to establish that the meeting reviewed
permanency planning for all of the children. Even if we doubted the
memory of the caseworker about the content of the meeting, her mere
presence at the meeting suggests that the scope of the meeting went
beyond Carl's educational needs to address other needs. Also, both the
caseworker and mother affirmed that the meeting was attended by persons
whom ACYF conceded would be independent persons and that there was a
full discussion of planning for all three children, including the
continuing need for out-of-home placement, to which the mother agreed.
While the caseworker's affidavit says that the meeting "centered around"
Carl, we do not agree with the ACYF witness that this contradicts the
mother's statement that all three children were reviewed. Indeed, the
record establishes that planning for the other two children was in large
part contingent on Carl's progress in living with his mother. The
record also indicates that the State's practice was to consider all of
the boys together. See, e.g., Exs. VI-I-2 and VI-I-4.
We find somewhat disingenuous ACYF's questioning whether the mother's
affidavit was freely signed, given that ACYF declined an opportunity to
cross-examine her after the State offered to have her testify at the
hearing. ACYF's concern was a generalized one, not based on anything
specific in this record. We have no indication that the mother was or
could have been unduly influenced. On the contrary, the record
indicates that this mother was not afraid to express disagreement with
the State: she had previously signed a form saying that she disagreed
with the case planning for her children. Exs. VI-I-5. At the time she
signed the affidavit, moreover, she was no longer seeking to have her
children returned, so it is unclear what she would have to lose by
refusing to sign the affidavit.
Thus, we find the State's evidence establishes that a timely case review
was held which reviewed foster care services and permanency planning for
Gregory as well as his brothers, and therefore met ACYF's standards.
Conclusion
For the reasons stated above, we reverse ACYF's findings on four of the
disputed cases and therefore conclude that Idaho was eligible for
section 427 funds for FY 1986.
________________________________ Cecilia Sparks Ford
________________________________ Alexander G. Teitz
________________________________ Judith A. Ballard Presiding
Board