Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
SUBJECT: Georgia Department of Human Resources
DATE: September 17, 1992
Docket No. 92-30
Decision No. 1355
DECISION
The Georgia Department of Human Resources (Georgia, State) appealed
a
determination by the Administration for Children and Families
(ACF,
Agency) disallowing $2,586,779 in federal financial participation
(FFP)
claimed by the State for foster care maintenance payments
and
administrative costs under Title IV-E of the Social Security Act
(Act)
for federal fiscal year (FY) 1987 (October 1, 1986 through September
30,
1987). 1/
ACF disallowed the largest number of maintenance payments because
it
determined that the court orders directing removal of the children
did
not comply with the requirements of the Act for qualifying payments
for
FFP. ACF determined that the court orders did not contain the
required
findings 1) that continuation of the children in their homes
was
contrary to their welfare and 2) that the State had made
reasonable
efforts to prevent or eliminate the need for removal of the
children
from their homes. ACF also refused to accept nunc pro tunc
(NPT) orders
and other evidence the State submitted as evidence that these
findings
were made. Further, ACF disallowed FFP for foster care
maintenance
payments claimed for periods after judicial determinations were
made in
cases where children entered foster care through voluntary
placements
because the State did not have an approved state plan provision
which
allowed it to claim such costs. Finally, the Agency disallowed
FFP for
administrative costs associated with the disallowed
maintenance
payments.
For the reasons stated below, we uphold the Agency's disallowance
subject
to recalculation of the administrative costs as agreed by the
parties.
Relevant Authority and ACF's Interpretations
Under section 472 of the Act, FFP is available in foster care
maintenance
payments for a child removed from the home of a relative
only if, among other
conditions --
the removal from the home . . . was the result of
a
judicial determination to the effect that
continuation
therein would be contrary to the welfare of such
child
and (effective October 1, 1983) that reasonable
efforts
of the type described in section 471(a)(15) have
been
made; . . . .
Section 472(a) of the Act (emphasis added).
Section 471(a)(15) of the Act requires that, effective October 1, 1983,
a
state plan under Title IV-E must provide that --
in each case, reasonable efforts will be made (A)
prior
to the placement of a child in foster care, to
prevent
or eliminate the need for removal of the child from
his
home, . . . .
The requirement for a judicial determination to the effect
that
continuation of the child in the home would be "contrary to the
welfare
of such child" was continued from the foster care program
previously
funded under section 408 of the Act. The "reasonable
efforts"
requirement was added when foster care was restructured under Title
IV-E
through the Adoption Assistance and Child Welfare Act of 1980,
Public
Law No. 96-272.
The legislative history of Public Law No. 96-272 makes clear that
Congress
was concerned that children were being removed from their homes
unnecessarily
and placed in foster care. In discussing the requirement
for a judicial
determination, the relevant Senate committee report
described such a
determination as "an important safeguard against
inappropriate [state] agency
action," and noted:
The committee is aware of allegations that the
judicial
determination requirement can become a mere pro
forma
exercise in paper shuffling to obtain Federal
funding.
While this could occur in some instances, the
committee
is unwilling to accept as a general proposition that
the
judiciaries of the States would so lightly treat
a
responsibility placed upon them by Federal statute
for
the protection of children.
Sen. Rep. No. 336, 96th Cong., 1st Sess. 16 (1979). On the
Senate
floor, Senator Cranston described the conference agreement as
follows:
In the past, foster care has often been the first
option
selected when a family is in trouble; the new
provisions
will require States to examine alternatives and
provide,
wherever feasible, home-based services that will
help
keep families together . . . . Of course, State
child
protective agencies will continue to have authority
to
remove immediately children from dangerous
situations,
but where removal can be prevented through the
provision
of home-based services, these agencies will be
required
to provide such services before removing the child
and
turning to foster care.
126 Cong. Rec. 14767 (June 13, 1980).
ACF regulations implementing Public Law No. 96-272, adopted on May
23,
1983 (48 Fed. Reg. 23115), contained provisions requiring that
states
provide preplacement preventive services and describe in a child's
case
plan the services offered and provided. 45 C.F.R. Part 1356.
The
regulations did not elaborate on the statutory judicial
determination
requirement.
In a policy announcement issued on January 13, 1984, however, ACF
did
address questions regarding the requirement for a
judicial
determination. The policy announcement stated that the
judicial
determination must be made "at the time of the removal of a child
from
his home" and explained:
The court, after hearing the evidence, must be
satisfied
that reasonable efforts . . . have been made.
Review
and approval of the [state] agency's report
and
recommendation alone are not sufficient to meet
the
requirements of the Act; the court must make
a
determination that the agency's efforts were, in
the
judgment of the court, reasonable for
preventing
placement.
With regard to emergency situations, if the
agency's
judgment was that services could not have
prevented
removal of the child, the court at the time of
the
adjudicatory hearing must find that the lack
of
preventive efforts was reasonable.
ACYF-PA-84-1 (1984 Policy Announcement), State's Exhibit (Ex.) 7.
ACF also issued an information memorandum transmitting a copy of
ACF's
"Financial Review Guide For On-Site Reviews Of The Title IV-E
Foster
Care Program." ACYF-IM-85-25, dated August 14, 1985 (1985
Information
Memorandum), Agency's Ex. 1. The review guide explains to
reviewers
that the court order (in other than voluntary placements) "must
contain
a statement to the effect that continuation of residence at home
is
contrary to the welfare of the child or that placement is in the
best
interests of the child." Agency's Ex. 1, Attachment A, at 2.
The guide
also explained that, after October 1, 1983, the court order must
state
either that "reasonable efforts were made to prevent removal from
the
home" or "it was not appropriate or in the best interests of the
child
to prevent removal from the home." Agency's Ex. 1, Attachment A,
at
2-3.
The checklist for Title IV-E reviews included in the 1985
Information
Memorandum gave rise to questions about the judicial
determination
requirement which were addressed in ACYF-PIQ-86-02, dated May
8, 1986
(1986 Policy Interpretation). State's Ex. 9. That
issuance explained
circumstances which warranted a finding that the
appropriate judicial
determination had been made, even where the court order
itself did not
contain language to satisfy the statutory requirements.
The issuance
stated in pertinent part:
The fact that State laws include generic
provisions
referring to a class of children is not sufficient
to
satisfy the requirements of section 472, which relate
to
an individual determination for each child. However,
if
State law unambiguously requires that removal may
only
be based on a determination that remaining in the
home
would be contrary to the child's welfare (and in
the
appropriate circumstances, that removal can only
be
ordered after reasonable efforts to prevent removal
have
been made), it must be assumed that a judge who orders
a
child's removal from the home in accordance with
that
State law does so only for the reasons authorized by
the
State statute. This conclusion can be drawn only if
the
State law clearly allows removal under no
other
circumstances except those required under
section
472(a)(1) of the Act. If a State can show that it
has
such a clear and unequivocal State law, and if the
court
order is expressly based on that law, then the order
can
be accepted as sufficient evidence that the
required
determinations have been made.
State's Ex. 9, at 2-3 (emphasis in original). The issuance
also
explained that language in a petition submitted to a court would
not
suffice to meet the requirements unless the court order
expressly
adopted the relevant language of the petition and made clear that
a
judicial determination had been made. Id., p. 5.
ACF also issued two information memoranda, ACYF-IM-87-28 on October
7,
1987 (1987 Information Memorandum), and ACYF-IM-89-08 on April 17,
1989
(1989 Information Memorandum), which discussed the circumstances
under
which ACF would accept NPT court orders as evidence that the
requisite
judicial determinations were made. 2/ Essentially, these
information
memoranda made it clear that such orders would be acceptable only
when
used "to supply, for the record, something that has actually
occurred,
but was omitted from the record through inadvertence or
mistake." 1987
Information Memorandum, State's Ex. 10. Further,
the 1987 Information
Memorandum stated:
Requested documentation may include the transcript
of
court proceedings and/or the agency's report to
the
court, or any other documentation that would
confirm
that the information was actually presented to the
court
at the previous hearing and that the court made
the
determination(s) at that time.
Id. at 2 (emphasis added).
The 1989 Information Memorandum expanded upon the
documentation
requirements:
Acceptable documentation that may be requested by
the
Federal agency to make such a verification could
include
court transcripts, bench notes or other court
documents
which, in conjunction with the State agency's
report,
would confirm that the information was presented to
the
court and that the judicial determination(s) had
been
made at the original removal hearing.
Documentation such as post-hearing affidavits is
not
acceptable as verification. The reliability
of
affidavits executed long after a judicial proceeding
is
questionable. These limitations are necessary in
order
to assure children in foster care of the protections
to
which they are entitled under the title IV-E program.
State's Ex. 14, at 3-4.
Background
During June and August 1988 and March 1989, the Agency conducted
three
financial reviews (Preliminary, Stage I, and Stage II) of the
State's
Title IV-E foster care program. State's Ex. 2, at 1.
During the
preliminary review, several payments were examined to determine
whether
payments were being made on behalf of children eligible for Title
IV-E
foster care. If the preliminary review was not satisfactory,
a
two-stage review process would ensue, using a random sample of
foster
care maintenance "payment units" made by a state during a given
period.
During the Stage I review, 50 payment units were examined to
determine
whether they were proper. Because the Stage I review revealed
an error
rate of greater than ten percent, a Stage II review was
instituted.
During the Stage II review, a computerized statistical sample of
250
payment units was reviewed to determine whether FFP was properly
claimed
for each payment. Id. The sample errors were then
projected to the
total universe of payments. The total value of the 250
payments was
$74,663. The review showed that 82 payments totalling
$24,298 ($16,049
in FFP) were in error. Agency's Brief (Br.) at
3-4. The Stage II
review determined, based on the projection of the
sample to all payments
for FY 1987, that $1,297,284 of FFP was
inappropriately claimed.
Additionally, a share of FFP for administrative
expenses, $1,289,495,
was disallowed to reach the total amount disallowed.
3/
Georgia contested ACF's determinations for 42 of the 82
erroneous
payments. Of the contested payments, the Agency determined 32
payments
were unallowable because the court orders directing removal did
not
contain a statement to the effect that continuation of the child in
the
home would be contrary to the welfare of such child and that
reasonable
efforts were made to prevent or eliminate the need for removal,
as
required by section 472 of the Act. Further, the Agency determined
that
10 payments were unallowable because it found that the State claimed
FFP
for payments for voluntarily placed foster care children, without
an
approved state plan, once a judicial determination was made that
the
voluntary placement was in the child's best interest. The
Agency
determined that the federal statute requires a state to have an
approved
plan for voluntary placements before it can receive FFP for
voluntary
placements during the entire stay in foster care. 4/
Analysis
While the State generally argued that the Agency's disallowance should
be
overturned on the grounds that it is arbitrary and capricious, the
State also
made several specific arguments. The State maintained that
the
disallowance should be reversed because its juvenile court code, in
effect at
the time and referenced in the court orders, prohibited
removal of a child
absent both "contrary to the welfare" and "reasonable
efforts"
findings. Alternatively, the State argued that the
disallowance should
be reversed because the State complied with all of
the Agency's requirements
for NPT orders, although there were
inconsistencies between the Agency's
Stage I and Stage II review
requirements for NPT orders. Finally, the
State asserted that it could
receive FFP for voluntary placements once a
judicial determination was
made, although it did not have an approved state
plan to that effect.
Below, we first discuss the State's juvenile court code
in relationship
to the court orders. We next discuss the State's
argument that it
complied with the requirements for NPT orders, and finally
we discuss
the State's assertion regarding voluntary placements. We do
not discuss
separately the State's argument that the disallowance is
arbitrary and
capricious, since the discussions of the State's specific
arguments will
show that the Agency's disallowance was not arbitrary or
capricious.
I. The State's Statute Is Not a Substitute for
a
Judicial Determination.
The State alleged that the Agency's reviewers erred in determining
32
payments erroneous because, rather than looking to the applicable
state
law regarding mandatory requirements for removal of children in
effect
during FY 1987, which contained the findings required by the Act,
the
reviewers based their assessment of the court orders solely upon
review
of the case files.
Georgia argued that the 1984 Policy Announcement was the
applicable
interpretation of the "reasonable efforts" and "contrary to the
welfare"
requirements of the Act. Citing a section from the 1984
Policy
Announcement, the State maintained that the announcement suggested
that
a state--
should review its statutes to determine
whether
legislative change or changing court rules may
be
helpful or necessary in assuring the court's
cooperation
in relation to judicial determination requirements
in
Section 472(a)(1).
State's Br. at 5; State's Ex. 7, at 5.
Georgia asserted that soon after the 1984 Policy Announcement,
its
legislature, in apparent response to the Agency's direction, amended
the
Juvenile Court Code to require clearly and unambiguously that
removal
orders be based upon contrary to the welfare and reasonable
efforts
findings. See O.C.G.A. section 15-11-41(c) (1984), State's Ex.
8, at
496. The State maintained that this legislative method was
approved by
the Agency's 1986 Policy Interpretation, and that the Agency
failed to
follow its own rule by not assuming that the judges' orders
were
authorized by State statute.
Georgia is correct that if there is a clear and unequivocal state
law
permitting removal only where the findings required by section 472
of
the Act have been made, and the court order is expressly based on
that
law, a state is entitled to FFP for foster care maintenance
payments
made for children placed pursuant to such orders. However,
Georgia
never controverted ACF's assertion, citing specific provisions,
that
there were other sections providing authority for removal that did
not
contain these safeguards, and it has not shown here that the
court
orders at issue were expressly based on O.C.G.A. section
15-11-41(c).
As we said in Nebraska Dept. of Social Services, DAB No. 1250 (1991),
at
8:
The original court order at the time of the
child's
removal will obviously be the most persuasive
evidence
about whether a determination was made at that time.
After a review of the court orders submitted by the State, we find
that
the necessary judicial determinations were not made in the
original
court orders. Not only are there no indications in any of the
orders
that the court actually found that the State had made reasonable
efforts
to prevent or eliminate the need for removal or that continuation of
the
children in their homes was contrary to their welfare, but nowhere
in
the original court orders is section 15-11-41(c) specifically cited
or
referenced. It does not appear, and Georgia did not assert, that
the
State has any type of standardized form for court orders which cite
the
specific state statute section upon which the order is based.
The
original orders focused on finding that the children were
being
"deprived" in various ways but the State did not show that
"deprived"
was a specific reference to section 15-11-41(c). Indeed, one
order
found that "the minor child is a deprived child within the meaning
of
O.C.G.A. Section 15-11-2(8) in that there is not a parent that
is
willing and/or able to care for and maintain this minor child."
See
Order at State's Ex. 21. Another order found that the child,
because
she was living in a four room house with 12 other people and
was
habitually absent from school, was being deprived of an education
and
suitable living conditions. See Order at State's Ex. 16. We
note that
while the judges repeatedly found that the children were
"deprived,"
this finding was clearly based on the courts' concerns with
the
children's present situations, rather than focusing on the State's
past
efforts or present ability to ameliorate those situations.
Therefore,
this finding has no relationship to the reasonable efforts and
contrary
to the welfare findings required by the Act.
Finally, we do not give any weight to the State's argument that since 5
of
the 32 court orders in question explicitly state that temporary
custody is
given to Georgia for a period of either 18 months or two
years, and those two
time periods are mentioned in O.C.G.A. section
15-11-41, the Board should
conclude that the courts acted pursuant to
O.C.G.A. section
15-11-41(c). The mentioning of 18 months or two years
appears to be
merely fortuitous in the absence of an express reference
to O.C.G.A. section
15-11-41(c) or of any other language found in that
section. If the
courts intended to act pursuant to that provision, they
only had to make a
simple statement to that effect.
We are not indicating by our decision here that the courts' or the
State's
actions were unsound, but simply that Georgia failed to document
that its
claims met the conditions Congress established as a
prerequisite for Title
IV-E funding. As we said in West Virginia Dept.
of Health and Human
Services, DAB No. 1257 (1991) at 10:
Thus, while we recognize that the State courts
operated
independently of the State agency, the State agency
was
nevertheless responsible for assuring that there
was
adequate documentation of the determinations required
by
section 472(a)(1) of the Act in any case for which
it
claimed FFP. The denial of FFP in those cases
where
there is inadequate documentation does not
necessarily
mean that the court's action was unsound or that
the
proper social work was not done, but simply represents
a
finding that the State agency has failed to
document
that its claims met the conditions Congress
established
as a prerequisite for title IV-E funding.
Congress
determined that it wished to fund foster
care
maintenance payments only where it can be assured
that
an impartial judge had determined that removal
was
necessary for the child's welfare and, if
feasible,
reasonable efforts had been made to prevent
removal.
Therefore, we determine that the Agency appropriately found that these
32
payments were erroneous.
II. Stricter Standards Were Not Retroactively
Applied
by ACF to The State's NPT Orders.
The State argued, secondarily, that even if the State law
regarding
removal of children did not guarantee that the relevant court
orders met
the requirements of the Act, later NPT orders corrected any
alleged
defects. Georgia argued that it complied with the Agency's
requirements
for NPT orders in effect at the time the judicial determinations
were
being made by the State's juvenile courts.
The review report stated:
There was little acceptable evidence that the judge
had
actually made the appropriate ruling at the
appropriate
time. For the most part, documentation made
available
by the State included affidavits by the
worker,
supervisor, or County Director. . . . These
affidavits
were ruled unacceptable as they did not verify that
the
judge had reviewed the efforts and made a determination.
State's Ex. 2, at 11. According to Georgia, during FY 1987 the
states
were operating under federal guidance provided by ACYF-PI-83-6
(1983
Program Instruction), 5/ the 1984 Policy Announcement and the
1986
Policy Interpretation. See State's Exs. 6, 7 and 9. The
State alleged
that the 1987 Information Memorandum, which the Agency cited as
its
basis for the disallowance, had not been authorized, since the
issuance
date for the 1987 Information Memorandum was October 7, 1987, seven
days
after the end of the disallowance period. Georgia also asserted
there
existed an inconsistency between the 1987 Information Memorandum and
the
final determination. Nevertheless, the State argued that it
complied
with the 1987 Information Memorandum, since that memorandum
allowed
inclusion of the State agency's report to the court or any
other
documentation that would confirm presentation and the
court's
determination. State's Br. at 9.
Further, Georgia maintained that ACF unfairly changed its standard
of
compliance during the review process. The State asserted that
following
telephonic communication between the federal reviewer and central
office
of HHS in Washington, a number of cases were passed during the Stage
I
review having affidavits and/or reports to the court consistent with
the
1987 Information Memorandum. But, according to the State,
federal
reviewers later applied a different, more stringent, standard in
Stage
II. State's Br. at 10. Moreover, Georgia maintained that
when the
review was nearly complete, the Agency issued the 1989
Information
Memorandum, which stated that the Agency could request any
documentation
that the Agency determined was necessary to verify that the
court
actually made the determination at the removal hearing. State's
Br. at
11. The State argued that the Agency's after-the-fact
interpretation of
NPT documentation amounts to requiring Georgia to engage in
an
impossible guessing game and is unfair.
As noted above, ACF has, since 1984, addressed questions regarding
the
requirement for judicial determinations, including NPT orders.
The
State's assertion that the Agency applied stricter standards to
its
Stage II review after issuance of the 1987 Information Memorandum
is
incorrect. The standard has remained the same: The State must
produce
evidence that the court made the required findings at the time the
court
order directing removal of a child was made. Thus, NPT orders
must be
supported by adequate contemporaneous or
non-contemporaneous
documentation. The Agency's series of policy
issuances have simply
sought to clarify for the states the Act's requirements
concerning the
evidence needed to show that NPT orders reciting the required
findings
reflect what the court really did, not what it could have or should
have
done.
The 1984 Policy Announcement stated, in part:
Review and approval [by the court] of the
[state]
agency's report and recommendation alone are
not
sufficient to meet the requirements of the Act. . . .
While the 1987 Information Memorandum made clear that NPT orders would
be
acceptable only when used "to supply, for the record, something that
has
actually occurred, but was omitted from the record through
inadvertence or
mistake," and the 1989 Information Memorandum expanded
upon the documentation
requirement, these memoranda did not change the
requirement that the State
show that the court made an independent
judgment as to both findings.
Georgia's NPT orders and supporting
evidence simply do not meet this
requirement.
As we said in Nebraska, supra, at 9:
NPT orders modifying an original court order do
not
always evidence a mistake in the original order
in
failing to reflect findings actually made. Because
a
NPT [order] may be adding findings not made at the
time
of the original order, the Agency may reasonably
require
other corroborative evidence of an actual
determination
as required by the statute.
Further, we have said that NPT orders cannot be used "to show what
the
court might or should have decided." Nebraska, supra, at 11.
Because
it is possible for NPT orders to have a dual purpose, i.e. to modify
a
mistake in an original order or to add findings, NPT orders can
not
simply be accepted on their face. In this case, as in Nebraska,
supra,
the State did not provide copies of the petitions that it presented
to
the court to request the NPT orders. 6/ Thus, our record does
not
include all the information available to the court when deciding
to
issue those orders, and we are unable to evaluate fully
the
circumstances under which they were issued. In other words, we
cannot
tell whether these orders corrected an oversight or added findings
that
were not made.
Further, none of the other documents submitted by Georgia to bolster
the
NPT orders corroborates that the necessary findings were in fact made
at
the time of removal of the children. These documents are, in
general,
non-contemporaneous recollections of case workers, not
reliable,
contemporaneous documents such as transcripts. For example,
Georgia
submitted an "AFFIDAVIT OF EFFORTS" which discussed a November
1983
hearing. Affidavit at State's Ex. 20. However, the affidavit
was
executed on August 24, 1988, long after the original order. The
Board
has long held that the sufficiency of non-contemporaneous
documentation
will be carefully scrutinized. See, e.g., Indiana Dept of
Public
Welfare, DAB No. 772 (1986). In this case, that scrutiny reveals
that
the non-contemporaneous documentation submitted by Georgia does
not
supply reliable evidence of the relevant courts' findings at the time
of
their removal orders.
Further, in Nebraska, supra, at 9-10, the Board said:
These documents merely provide factual
background
information presumably supplied by child
welfare
agencies or caseworkers concerning the children
and
their families. While conceivably the documents
could
have served as support in favor of the judicial
findings
required by the statute, they do not, in and
of
themselves, demonstrate that the findings were made.
Even if the non-contemporaneous documents could show, which they can
not,
that their information was presented to the court, they are unable
to show
that the courts made the necessary judicial findings at the time
of removal
of the child. Consequently, ACF was correct in refusing to
allow FFP
for these claims, as there is no reliable evidence that these
children were
provided the safeguards required by the Act.
III. The Agency's Disallowance for Voluntary
Placements
Was Correct.
The remaining portion of the disallowance involved the FFP disallowed
for
cases that began with a parent's request to place the child in
foster
care. Both parties here treated these as cases where the
children had
been removed from home pursuant to voluntary placement
agreements.
Because Georgia conceded that it did not have a voluntary
placement provision
in its State plan, the State did not claim FFP
following these
removals. Once the State obtained judicial
determinations ratifying
these agreements, it began to claim FFP. The
State asserted that even
though these removals took place pursuant to
voluntary agreements, once
Georgia obtained the determinations, which
allegedly met the requirements of
the Act, then FFP was authorized.
Georgia maintained that section 3102(a)(2) of Public Law No.
96-272,
effective June 17, 1980, provided a method for reimbursement of FFP
for
the period of voluntary placement preceding a judicial
determination
provided the State obtained a judicial determination within 180
days of
removal of a child from the home. Further, the State argued
that the
program instructions for the Title IV-E State Plan, ACYF-PI-81-2
and
ACYF-PI-88-07, emphasized that inclusion of a plan provision
for
recovery of FFP for the period of voluntary placements is at
state
option, and that the section on such placements may be stricken from
the
state plan if FFP is not claimed. Finally, the State asserted
that
while it did not seek reimbursement for the period prior to the
judicial
determination, it is automatically entitled to FFP once there has
been a
judicial determination. Georgia maintained that its position
is
consistent with the 1984 Policy Announcement directive that "when
all
eligibility requirements of 472(A) are met, a state may claim FFP
from
the first day of placement in the month in which all
eligibility
criteria have been met," State's Br. at 15, and that the
State
generally met the requirements of section 472(e) of the Act. The
State
did not deny that there was no specific provision in its State
plan
authorizing it to claim the costs for voluntary placements.
Georgia interprets the Act as somehow permitting it to ignore
the
circumstances of a child's removal from the home by deeming a
child
whose removal was pursuant to a voluntary agreement to be converted to
a
child removed by judicial determination once a judicial determination
is
made, even though the child's removal occurred under the
State's
voluntary placement process and the judicial determination ratified
the
voluntary agreement in effect at the time of the determination.
ACF
argued that in order for a state to receive FFP for a child who
was
removed from the home due to a voluntary placement, the Act requires
the
state to have an approved state plan provision covering
voluntary
placement, which would necessarily provide for a judicial
determination
that the voluntary placement is in the best interests of the
child.
Agency's Br. at 15. We agree. Section 471(a) of the Act
provides, in
part:
In order for a State to be eligible for payments
under
this part, it shall have a plan approved by
the
Secretary which --
(1) provides for foster care maintenance payments
in
accordance with section 472 . . .
Section 472(a) of the Act provides, in part:
Each state with a plan approved under this part
shall
make foster care maintenance payments . . . if --
(1) the removal from the home occurred pursuant to
a
voluntary placement agreement entered into by
the
child's parent or legal guardian, or was the result of
a
judicial determination . . . . (emphasis added)
The Board has previously stated that the plain language of a statute
is
always the best evidence of its meaning, and there is no reason to
go
beyond that plain language to examine other evidence of
legislative
intent unless the language is unclear or ambiguous.
Tennessee Dept. of
Human Services, DAB No. 1054 (1989). In this case,
the plain language
supports the Agency's position that a state's plan must
contain
provisions for voluntary placement agreement removals in order
to
qualify for FFP in cases where the child's removal occurred under
the
state's voluntary placement process and the subsequent court
order
served to ratify an effective placement agreement.
Section 472(e) of the Act provides:
No Federal payment may be made under this part
with
respect to amounts expended by any State as foster
care
maintenance payments under this section, in the case
of
any child who was removed from his or her home
pursuant
to a voluntary placement agreement as described
in
subsection (a) and has remained in voluntary
placement
for a period in excess of 180 days, unless there
has
been a judicial determination by a court of
competent
jurisdiction (within the first 180 days of
such
placement) to the effect that such placement is in
the
best interests of the child.
If a child is removed from a home pursuant to a voluntary
placement
agreement, a subsequent judicial determination that merely affirms
the
existing voluntary placement agreement does not make that
child's
removal the "result of a judicial determination" within the meaning
of
section 472(a)(1). In order for a state to receive FFP for a child
who
was removed from the home due to a voluntary placement, Title
IV-E
requires the state to have an approved state plan covering
voluntary
placements. Sections 471 and 472(a)(1) and (e) of the
Act. The
requirement for a state plan assures that the removal action,
which has
a significant impact on a child even if a court later affirms
the
voluntary placement agreement, is made pursuant to a well-founded
state
program. 7/
While we need not look beyond the plain language of the statute,
the
history of Title IV supports this interpretation. Prior to 1980,
FFP
for foster care was available only when a child was removed from
the
home due to a judicial determination. See Pennsylvania Dept. of
Public
Welfare, DAB No. 1278 (1991) at 4. Thus, prior to 1980, even if
a
voluntary placement was followed by a judicial determination, no FFP
was
available during the entire stay in foster care. Id. at 5, n.
3. In
1980, Congress passed Public Law No. 96-272, which allowed for
FFP for
voluntary placements when the state has an approved plan which meets
the
requirements of sections 471 and 472 of the Act. 8/ Georgia
conceded
that it did not have a qualifying voluntary placement program in
FY
1987. Therefore, the State cannot circumvent this requirement
by
claiming FFP only after a judicial determination has been made.
Conclusion
Based on the foregoing, we uphold the Agency's disallowance
for
maintenance payments and administrative costs (as adjusted). The
State
is granted 30 days, from the date of notice by the Agency of
the
adjusted disallowance amount, to appeal the limited question of
whether
the Agency correctly recalculated the disallowed administrative costs
in
accordance with the parties' agreement.
Cecilia
Sparks
Ford
Donald
F.
Garrett
M. Terry
Johnson
Presiding
Board
Member
1. This disallowance was originally issued by the Administration
for
Children, Youth and Families. Effective April 15, 1991, that agency
was
one of several combined into the Administration for Children
and
Families.
2. Literally translated, nunc pro tunc means "now for then."
3. Georgia maintained that it is inappropriate to
disallow
administrative dollars as projected upon the disallowance of
maintenance
payments. For FY 1987, the State contended that the
allocation of state
and county level administrative costs should have been
calculated using
the State's approved cost allocation plan (CAP) amendment
for FY 1987.
State's Br. at 17 and State's Exs. 2, 3, and 4. Although
the Agency
maintained that the administrative costs disallowance was
proportional
to the disallowance of maintenance payments, the Agency agreed
to
recalculate the administrative cost disallowance in accordance with
the
State's approved CAP amendment. Agency's Br. at 22-23. The
State did
not dispute that, if the disallowance of maintenance costs was
upheld,
ACF's suggested recalculation would be an accurate measure of
related
administrative costs. Thus, we will not discuss these costs
further in
the text, but will direct ACF to make this adjustment to
the
disallowance amount. The State will be granted 30 days, from the
date
of notice by the Agency, to return to the Board on the limited
question
of whether the Agency correctly recalculated the disallowance amount
in
accordance with the State's approved CAP amendment.
4. The Agency stated that of the 40 payments that were not
challenged,
some of the payments were disallowed for multiple errors and, in
order
to challenge a disallowed payment, Georgia must challenge every
reason
why that payment was disallowed. Agency's Br. at 1, n. 2.
Georgia did
not challenge the Agency's statement or deny it; consequently, we
affirm
the part of the disallowance of maintenance payments based on these
40
payments.
5. The 1983 Program Instruction, dated July 29, 1983, was related
to
sections 471(a)(15) and 472(a)(1) of the Act. Essentially, the
program
instruction informed the states that no later than October 1, 1983,
each
state must have amended its Title IV-E state plan to meet
the
requirements of the above-mentioned sections of the Act.
6. We note that the State did, however, in a supplementary
submission,
provide the NPT orders and a discussion of each. See
State's
Supplemental Br. at 4-17 and State's Exs. 16-54. We do not
discuss each
NPT order, or other documents, individually, since they are all
similar
in nature and suffer, as a group, from the defects as discussed in
the
text.
7. Moreover, even if the Board found that the State could have
claimed
FFP after the determinations, the court orders here are
defective. They
do not make the necessary finding that such placement
is in the best
interests of the child, as would be required if the State had
a
voluntary placement State plan provision. Nor do they contain, as
the
State alleged, the reasonable efforts and contrary to the
welfare
findings as required by the Act for removals by judicial
determinations.
Instead, the orders refer to the deprivation of the children
and, thus,
suffer from the same defects as the court orders discussed in
the
previous section.
8. Congress amended the pre-1980 statute as it applied to
judicial
determinations in one respect by providing that a child who
was
voluntarily removed from the home of a relative and who had a
judicial
determination prior to October 1, 1978, was deemed to have been
removed
as a result of such judicial determination. See Pennsylvania,
supra, at
5, n. 3. Georgia did not assert that any of the voluntary
removals had
judicial determinations prior to October
1,