Pennsylvania Department of Public Welfare, DAB No. 1508 (1995)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Appellate Division

SUBJECT: Pennsylvania Department of Public Welfare

DATE: March 1, 1995
Docket No. A-93-195
Control No. A-03-91-00553
Decision No. 1508

DECISION

The Pennsylvania Department of Public Welfare (Pennsylvania) appealed a
determination by the Administration for Children and Families (ACF)
disallowing $4,955,795 in federal funds claimed under title IV-E of the
Social Security Act (Act). This determination revised an earlier
disallowance of $2,140,899 which was withdrawn by ACF. The claim was
for foster care maintenance payments made by Pennsylvania during fiscal
year 1989 on behalf of children in foster care in Allegheny County. The
original disallowance was based on an audit of a sample of payments
conducted by the Department of Health and Human Services Office of
Inspector General (OIG). OIG calculated a recommended disallowance by
extrapolating from the payments it determined were ineligible for
federal financial participation (FFP) to the universe of payments.
Although ACF originally issued a disallowance based on the audit report,
it later revised the disallowance upward based on its own review of the
audit workpapers and underlying documentation. The $4,955,795
disallowance reflects ACF's findings that 89 sample payments were
ineligible. ACF subsequently withdrew its findings of ineligibility
with respect to six sample payments (sample nos. 12, 58, 61, 80, 85 and
92), but did not identify the resulting reduction in the disallowance
amount. Pennsylvania disputed ACF's findings of ineligibility with
respect to 76 of the remaining sample payments, conceding that seven
payments (sample nos. 3, 5, 15, 44, 57, 55 and 78) were ineligible. 1/

The payments were found ineligible for FFP on a number of grounds.
Principally, ACF found that Pennsylvania failed to establish that the
children in question were removed from their homes pursuant to a
judicial determination to the effect that continuation therein would be
contrary to the child's welfare, as required by section 472(a)(1) of the
Act. In addition, ACF found in some cases that Pennsylvania failed to
establish that there was a judicial determination that reasonable
efforts were made to prevent the child's removal from home or to return
the child home, as also required by section 472(a)(1).

Pennsylvania argued that in some cases there was an express
contrary-to-the-welfare (CTW) or reasonable efforts (RE) determination
made in the court order which removed the child from home. Pennsylvania
argued that in other cases a CTW or RE determination could be inferred,
consistent with ACF policies providing for alternative means of
establishing that these determinations were made. Pennsylvania also
argued that ACF erroneously required CTW determinations in "shelter
orders" which physically removed the child from home for a limited time
instead of in the later dispositional order.

Pennsylvania further argued that ACF's finding that there was no RE
determination should be reversed in those cases in which the OIG
auditors found that reasonable efforts were made. In addition,
Pennsylvania contested ACF's finding that one sample payment was
ineligible because the foster family home was not approved. Finally,
Pennsylvania argued that ACF impermissibly used statistical sampling as
the basis for the disallowance, and that the sampling methodology was
not in accordance with ACF policy.

As discussed more fully below, we conclude that:

o ACF correctly relied on statistical sampling as a basis for the
disallowance, and used a valid sampling methodology;

o ACF's findings that certain cases lacked judicial RE
determinations are not erroneous merely because workpapers
supporting the auditors' recommended findings stated that
reasonable efforts were made;

o Lack of a CTW determination in a shelter order does not render a
payment ineligible if the child was removed as a result of a CTW
determination in a later dispositional order;

o Under ACF policy, a petition for the child's removal stating
reasons which could support a CTW or RE determination, together
with a court order granting that petition, is sufficient evidence
that a CTW or RE determination was made if the child entered foster
care before October 1, 1986;

o The finding in orders issued in delinquency cases that the child
was "in need of treatment, supervision, and rehabilitation"
constituted a CTW determination;

o Pennsylvania failed to establish that court orders removing a
child from home in delinquency cases were issued in reliance on a
state statutory provision which required the court to make a RE
determination, or that court orders removing a child from home in
dependency cases were issued in reliance on a state statutory
provision which required the court to make a CTW or RE
determination;

o Nunc pro tunc orders are sufficient to establish that CTW or RE
determinations were timely made where there is evidence that, when
the original order was issued, the court considered information
based on which it could have made these determinations;

o Consistent with ACF's treatment of other foster care providers,
a foster family home which was previously approved remained
eligible even if the re-determination of the home's eligibility was
late.

Specifically, we find that the required judicial determinations were
made in 58 of the 76 sample payments contested by Pennsylvania.
Accordingly, we reverse the disallowance pertaining to these 58 payments
(as well as the six payments which ACF conceded were eligible). We
uphold the disallowance to the extent it is based on the 18 sample
payments which we find were ineligible (as well as the seven payments
which Pennsylvania conceded were ineligible). 2/

Below, we first describe the relevant statutory authority for the
judicial determination requirements at issue in this appeal. We proceed
to discuss Pennsylvania's arguments concerning the statistical sampling
procedure. We then discuss in general Pennsylvania's grounds for
asserting that the necessary judicial determinations were made by the
court, and that the foster family home for one sample payment was
approved. Finally, we discuss each of the sample payments disputed by
Pennsylvania.

Statutory background

Under title IV-E of the Act, federal matching of state foster care
maintenance payments is available for children in foster care who would
otherwise be eligible for Aid to Families with Dependent Children (AFDC)
under title IV-A of the Act. Prior to the enactment of title IV-E (in
the Adoption Assistance and Child Welfare Act of 1980, Public Law No.
96-242), funding for foster care maintenance payments was available
under title IV-A. States were given until October 1, 1982 to begin
operating under approved title IV-E plans.

Section 472(a) provides in pertinent part that foster care maintenance
payments will be available for --

a child who would meet the [AFDC eligibility] requirements . . .
but for his removal from the home of a relative . . . , if--

(1) the removal from the home . . . was the result of a judicial
determination to the effect that continuation therein would be
contrary to the child's welfare and (effective October 1, 1983)
that reasonable efforts of the type described in section 471(a)(15)
of this title have been made. . . .

Section 471(a)(15) in turn 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, and (B) to make it
possible for the child to return to his home.

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." Sen. Rep. No. 336, 96th Cong., 1st
Sess. 16 (1979).

Other relevant statutory provisions are identified later in the
decision.

Whether ACF was permitted to extrapolate from a sample

Pennsylvania took the position that the disallowance was improper to the
extent that it was based on extrapolation from a sample. Pennsylvania
acknowledged that the Board had in prior decisions upheld the use of
statistical sampling as a basis for disallowances under title IV-E, but
argued that these decisions were wrong. Specifically, Pennsylvania
argued that ACF impermissibly changed the policy adopted for the title
IV-A foster care program, which Pennsylvania alleged did not permit
extrapolation from a sample. According to Pennsylvania, it is clear
from the legislative history of Public Law No. 96-272 that Congress
intended that the policies applicable to the title IV-A foster care
program continue to apply after the foster care program was transferred
to title IV-E. In Pennsylvania's view, the change from the IV-A policy
of disallowing only individually identified payments was not only
contrary to congressional intent, but also violated the notice and
comment rulemaking requirements in the Administrative Procedure Act
(APA), which Pennsylvania said required ACF to supply a reasoned
analysis for any policy change. Pennsylvania suggested that the
requirement for such an analysis had heightened meaning in light of the
principle in Pennhurst State School and Hospital v. Halderman, 451 U.S.
1 (1981), that conditions on the receipt of federal funds must be
clearly stated. Pennsylvania also noted that title IV-E is the only
Social Security Act program which does not contain express statutory
provisions for quality control or other statistical procedures, and
argued that this showed that Congress intended that extrapolation not be
used in determining unallowable payments.

We conclude that ACF acted properly in basing the disallowance on
extrapolation from a statistical sample. The Board has previously
considered and rejected arguments by Pennsylvania that extrapolation was
not proper. In Pennsylvania Dept. of Public Welfare, DAB No. 1278
(1991), the Board acknowledged that the IV-A policy at one time was to
disallow only individually identified foster care payments. 3/ However,
the Board pointed out that this policy applied to cases which were part
of the AFDC quality control system (following unsuccessful efforts to
establish, as part of that system, a tolerance level for errors
identified using a statistical sample of AFDC payments). The Board
concluded that the rationale for this policy did not apply to payments
made pursuant to the foster care program under title IV-E, stating that
"[a]lthough the title IV-E foster care program still relies on
requirements of title IV-A to establish eligibility for foster care
payments, the effect of Public Law 96-272 was to sever the foster care
program from the AFDC program." DAB No. 1278, at 7.

Moreover, we are not persuaded that the Senate report on the bill
enacting title IV-E which Pennsylvania cited here is evidence of
congressional intent to continue the IV-A policy of disallowing only
individually identified payments. While the report states that "[t]he
bill essentially moves the existing AFDC foster care program to a new
part of the Social Security Act (Part E of Title IV)," it continues:
"For the most part, the existing regulations governing the foster care
program could be continued without change." S. Rep. No. 336, 96th
Cong., 2d Sess. 1, 97 (1980) (emphasis added). Moreover, this language
appears in the "regulatory impact" section of the report. Thus, both
the language itself and its placement in the report indicate that the
agency administering the IV-E program would decide which IV-A
regulations should apply to IV-E. There is no basis in the report for
concluding that title IV-A regulations, much less statements of policy
which did not rise to the level of regulations, were required to remain
the same under the new title IV-E program.

Pennsylvania nevertheless contended that ACF had determined that the
IV-A policy should continue to apply to the IV-E program. None of the
ACF issuances cited by Pennsylvania support this contention, however.
ACYF-PIQ- 82-3, dated January 29, 1982, states in pertinent part that
"[i]n general, the policies and procedures relating to payment under
title IV-A foster care apply to the administration of the title IV-E
program." The policy of disallowing only individually identified
payments is not similar in nature to the policies identified in that
PIQ, all of which relate to the timing of claims and payments.
Similarly, the policy in question here is not within the scope of
ACYF-PIQ-82-15, dated September 13, 1982, which indicates that some IV-A
regulations pertaining to the determination of a child's eligibility for
AFDC will continue to apply. Finally, ACYF-PA-84-1, dated January 13,
1984, is also inapplicable because it simply permits the use of
documentation "currently" used to meet the requirement for a CTW
determination to meet the then "new requirement" for a RE determination.

Furthermore, we see no basis for finding that there was an APA
requirement for a reasoned analysis of a policy change which applied
here. In New York State Dept. of Social Services, DAB No. 1358 (1992),
the Board concluded that, in light of the context in which the IV-A
policy to disallow only individually identified payments was developed,
ACF's policy to disallow based on extrapolation from a statistical
sample did not represent a policy change. Even if ACF's policy on
extrapolation did represent a policy change, however, there was no
violation of the APA. The APA requires that an agency provide an
explanation of the basis and purpose of a rule required to be published
pursuant to notice and comment rulemaking. 5 U.S.C. 553(c). However,
notice and comment rulemaking is required only for legislative rules,
not for interpretative rules, general statements of policy, or rules of
agency procedure or practice. 5 U.S.C. 553(b)(3)(A). 4/ The Board
has previously concluded that an agency's policy on use of statistical
sampling in audits is a general statement of policy or a rule of agency
procedure or practice, since it represents "a means for gathering
evidence on a state's compliance with statutory requirements, rather
than an inflexible standard that must be applied." Ohio Dept. of Human
Services, DAB No. 1202 (1990) (upheld in State of Ohio, Dep't of Human
Services v. Sullivan, 789 F. Supp. 1395 (S.D. Ohio 1992)) (addressing
statistical sampling as a basis for determining whether state
substantially complied with requirements of title IV-D); see also DAB
No. 1358 ("the methodology used by the auditors here is simply a means
of gathering evidence; it does not substantively change what the State
is required to do in order to be entitled to FFP.")

Moreover, the authorities cited by Pennsylvania do not support a finding
that notice and comment rulemaking is required whenever an agency makes
a policy change regardless of the type of issuance involved. The legal
principle stated by the court in Macon County Samaritan Memorial
Hospital v. Shalala, 7 F.3d 762, 765-766 (8th Cir. 1993), is that
"[w]hen a new rule reflects a departure from the agency's prior
policies, the agency `is obligated to supply a reasoned analysis for the
change beyond that which may be required when the agency does not act in
the first instance,'" (citing Motor Vehicle Mfrs. Ass'n v. State Farm
Mut. Auto. Ins. Co., 463 U.S. 29 (1983)). However, the issue in Macon
was whether this principle applied to regulations implementing a
statutory amendment. Macon does not provide any authority for applying
this principle to the agency policy in question here. In Chaves County
Home Health Services v. Sullivan, 931 F.2d 914 (D.C. Cir. 1991), cert.
denied, 112 S. Ct. 1160 (1992), the court concluded that an agency
policy was an interpretative rule which confirmed the agency's
longstanding practice and thus was not subject to notice and comment
rulemaking requirements. There is nothing in that decision which stands
for the proposition advanced here by Pennsylvania. 5/

Pennsylvania's reliance on the absence of any express statutory
authority for statistical sampling is also misplaced. As the Board
pointed out in DAB No. 1358, numerous courts have held that an agency
need not have specific authority to use statistical sampling. See
Chaves County Home Health Service, Inc. v. Sullivan; Michigan Dep't of
Education v. U.S. Dep't of Education, 875 F.2d 1196 (6th Cir. 1989);
Mile High Therapy Centers, Inc. v. Bowen, 735 F. Supp. 984 (D. Colo.
1988). In addition, Pennsylvania pointed to nothing in the language or
history of title IV-E indicating any intent to preclude the use of
statistical sampling as a basis for disallowances.

Whether the statistical sampling methodology was valid

Pennsylvania argued that the disallowance should be reversed because OIG
failed to follow the sampling procedures set out in 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). These procedures call for a
minimum sample size of 200 "payment units" (50 units in a "Stage I"
review and an additional 150 units in a "Stage II" review). OIG used a
sample of 100 payments instead. Pennsylvania noted that the OIG audit
was specifically identified as a "Stage II" review in ACF documents.
Pennsylvania argued in the alternative that if the OIG audit was
"performed under the OIG's own authority" rather than pursuant to ACF's
Financial Review Guide, OIG lacked authority to perform the audit.
Pennsylvania reply brief dated 6/14/94 at 4. Pennsylvania cited in
support of this argument the holding in Burlington Northern v. Office of
Inspector General, 983 F.2d 631 (5th Cir. 1993), that an Inspector
General generally lacks the authority to conduct audits which are
designed to carry out the federal agency's responsibility for ensuring
compliance with the provisions of a regulatory statute.

Pennsylvania is correct that the disallowance was based on an ACF
review. 6/ Nevertheless, the failure to use the minimum sample size
specified in the Financial Review Guide is not a basis for reversing the
disallowance. In response to New York's argument in DAB No. 1358 that
its IV-E disallowance should be overturned on this basis, the Board
stated:

. . . the State did not allege that it was somehow prejudiced by
use of the particular sample size chosen. This is not surprising
since sample size affects the precision of sample results in
estimating the most likely true value, and a smaller sample size
generates a wider confidence interval. Since ACF disallowed only
the amount established by the lower limit of the confidence
interval, the State potentially benefitted from the use of a sample
totaling 300 units, rather than a larger sample size.

DAB No. 1358, at 48; see also Oklahoma Dept. of Human Services, DAB No.
1436, at 8 (1993) (calculation of disallowance using lower bound of
confidence interval as the error rate gave Oklahoma "the benefit of any
doubt raised by use of the smaller sample"). ACF indicated that, as in
DAB No. 1358, only the amount established by the lower limit of the
confidence interval was disallowed here. ACF brief dated 4/29/94, at
32, n. 8. Pennsylvania thus was not prejudiced, and indeed likely
benefitted, from the use of a smaller sample. Accordingly, the use of a
smaller sample than called for by ACF policy does not invalidate the
disallowance.

Whether a statement in OIG audit workpapers that reasonable efforts were
made in a case is a basis for reversing ACF's finding that there was no
RE determination

In several cases which ACF found ineligible for lack of a RE
determination, Pennsylvania provided audit workpapers for individual
sample payments in which OIG auditors specifically noted that reasonable
efforts were made to reunify the family. 7/ (ACF stated that its policy
was to accept as a RE determination either a determination made prior to
placement that reasonable efforts were made to prevent the child's
removal or that the lack of efforts to prevent removal was reasonable,
or a later determination that reasonable efforts were made to return the
child home (i.e., to reunify the family). See ACF brief dated 4/29/94,
at 15, and ACF response to discovery request dated 8/9/94, at 22.)
Pennsylvania argued that the statement in the audit workpapers should be
dispositive. We disagree.

The issue here is whether Pennsylvania has shown that removal was a
result of a judicial determination that reasonable efforts were made.
Evidence that reasonable efforts were in fact made may provide some
support for a finding that such a determination was made; however, such
evidence is not determinative without some basis for finding that the
court examined the question and itself determined that reasonable
efforts were made. To accept the auditors' assessment that reasonable
efforts were made would in effect substitute the auditors' judgment for
that of the court.

Moreover, the auditors made only recommended findings, which ACF was
free to reject if it found, as it did here, that the recommended
findings did not comport with the applicable requirements. Furthermore,
we have reviewed each of the payments in question here to determine
whether there is evidence which shows that a RE determination was made.
In the absence of any such evidence, there is no basis for accepting the
statements in the auditors' workpapers. Finally, in cases in which ACF
reversed the auditors' recommended findings of ineligibility,
Pennsylvania did not contend that ACF lacked authority to overrule the
auditors. Thus, ACF's finding that there was no RE determination in a
case is not erroneous merely because ACF chose not to rely on
recommended findings made by the OIG auditors.

Whether a CTW determination should have been included in a shelter order
instead of the later dispositional order

In most of the cases in which ACF found that there was no CTW
determination in the court order, the order to which ACF referred
removed the child from home for a limited time only. These orders were
issued pursuant to Pennsylvania's Juvenile Act, which permitted a child
to be placed in a shelter care or detention facility prior to the filing
of a petition requesting that the child be adjudicated dependent or
delinquent. 42 Pa.C.S. 6325. A petition was required to be filed
within 24 hours of the child's admission to shelter care or detention.
42 Pa.S.C. 6331. Within 72 hours of the child's admission, the court
was required to hold an informal hearing to determine if the child's
continuation in shelter care or detention was required on one of the
following grounds: 1) to protect the person or property of others or of
the child; 2) because the child may abscond or be removed from the
jurisdiction of the court; or 3) because the child has no parent,
guardian, or custodian or other person able to provide supervision and
care for him and return him to the court when required. 42 Pa.C.S.
6332. An order issued pursuant to this informal hearing was generally
known as a "Shelter Order" in dependency cases and as a "Detention
Order" in delinquency cases. Pennsylvania referred to both types of
orders as "shelter orders." 8/ A hearing on the petition was required
to be held within 10 days after the filing of the petition, although the
child could be kept in shelter care or detention for another 10 days
pending such a hearing if the court determined that certain criteria
were met. 42 Pa.C.S. 6335. In the cases in question here, the order
issued pursuant to a hearing on the petition was generally captioned
"Child Welfare Service Order" or "Placement Order." We refer to such
orders here as dispositional orders.

ACF contended that the shelter orders should have contained a CTW
determination because these orders removed the child from home. ACF
found that most of Pennsylvania's shelter orders contained no CTW
determination. Pennsylvania took the position that, under the Act, it
was sufficient if there was a CTW determination in the dispositional
order which was issued after a hearing on the petition. Pennsylvania
alleged that either there were express CTW determinations in the
dispositional orders for the cases in question, or it could properly be
inferred from the dispositional orders that a CTW determination was
made. As discussed below, we conclude that the CTW determination need
not be found in the shelter order, but may instead appear in the later
dispositional order.

In support of its position that a shelter order must contain a CTW
determination, ACF maintained that the plain language of the Act
requires that the court make a CTW determination when it removes the
child from home. Section 472(a)(1) of the Act authorizes foster care
maintenance payments for certain children removed from the home of a
relative if "the removal from the home . . . was the result of a
determination to the effect that continuation therein would be contrary
to the welfare of such child . . . ."

Pennsylvania acknowledged that a shelter order physically removes the
child from the home. Transcript of October 5, 1994 hearing (Tr.) at
151-155. It is not clear that this constitutes a "removal" within the
meaning of the Act, however, since a shelter order is generally issued
before the court is able to determine whether the child's placement in
foster care is warranted. In any event, contrary to what ACF argued,
section 472(a)(1) does not require that a CTW determination be made at
the time the child is removed from home. Instead, this section requires
that the removal be the "result of" a judicial CTW determination. ACF's
longstanding interpretation of this language is that a removal will be
considered a judicial removal if the court proceedings leading to the
CTW determination were initiated within six months of the date the child
was last living in the home from which the child was removed. See New
York Dept. of Social Services, DAB No. 1485, at 6-7 (1994) and policy
issuances discussed therein. In most of the cases in question here, not
only were judicial proceedings initiated within six months of the
child's removal but the dispositional order allegedly containing a CTW
determination was issued within six months of the child's removal. 9/
If the child had been removed from home without an order, there would be
no question that any CTW determination in the dispositional order was
timely. Pennsylvania should not be penalized simply because it issued a
temporary order authorizing the child's removal prior to a hearing on
the petition and the issuance of a dispositional order.

This situation is somewhat analogous to that considered in Pennsylvania
Dept. of Public Welfare, DAB No. 1392 (1993), in which Philadelphia
County entered into a voluntary placement agreement valid for only 30
days, after which a court order was issued. The question presented was
whether the child was removed pursuant to the voluntary placement
agreement or the court order, since Pennsylvania's state plan did not
provide for FFP for children removed from home voluntarily. The Board
found that the voluntary placement agreement was merely an "interim
measure" and that the child was removed pursuant to the court order. In
making this finding, the Board relied in part on the fact that the
voluntary placement agreement was valid for only a limited time and that
the court order was issued within six months of the child's physical
removal. Since the court order contained the findings required by
section 472(a)(1) of the Act, the Board concluded that the case was
eligible for FFP. 10/

Like the voluntary placement agreements in DAB No. 1392, the shelter
orders in question here were an extra procedural safeguard not
contemplated by section 472(a). That section contemplates that, if the
court makes a CTW determination, the court will give the state agency
responsibility for the child's care and placement. Here, however, this
action would have been premature. Pennsylvania asserted, and ACF did not
dispute, that its procedure is to conduct an investigation of the
child's home situation after the shelter order is issued. A shelter
order thus provides some judicial oversight of a child who has been
removed from home on a temporary basis until such time as there is
sufficient information for the court to make a determination about the
child's welfare. Accordingly, it makes little sense to require that a
shelter order contain a CTW determination. (This does not mean, of
course, that a CTW determination could not have been included in a
shelter order where the court had sufficient information to make such a
determination.)

ACF nevertheless contended that it was clear from the ACF policy in
effect during the period at issue here that a CTW determination was
required in shelter orders. ACYF- PIQ-82-3 11/ stated in pertinent part
that --

a temporary shelter care order that meets the requirements of a
"judicial determination" would permit the authorization of FFP as
of the date of the shelter care order, provided all other
eligibility requirements are met. As to the requirements of a
"judicial determination," the essential element is that the court
order (temporary or dispositional) for removal of the child from
the home is based on a determination that continuation therein
would be contrary to the welfare of the child.

In our view, however, this could reasonably be read to mean that
temporary shelter care orders need not contain a CTW determination. ACF
appeared to acknowledge the possibility of this reading, asserting that
the Allegheny County shelter orders were not "temporary shelter care
orders" within the meaning of the PIQ because they were not
time-limited. ACF also suggested that the PIQ applied only to orders
issued in emergency situations, and asserted that the shelter orders
were issued as part of Pennsylvania's routine procedures instead. See
ACF brief dated 4/29/94, at 10-12.

We see no basis for ACF's characterization of the Allegheny County
shelter orders. Although the orders in the cases in question were not
always limited in duration to 10 days, as required by Pennsylvania law,
they either provided for a hearing within 30 days or less or did not set
a hearing date, in which case we assume that the order was intended to
be limited to 10 days in accordance with the statute. 12/ Moreover,
Pennsylvania's statutory scheme does not provide for the issuance of
shelter orders as a routine matter, but authorizes shelter care or
detention only in limited circumstances, some of which could be
characterized as emergencies. Accordingly, the PIQ does not clearly
require that the shelter orders in question here include CTW
determinations.

We therefore conclude that ACF erroneously found cases ineligible on the
ground that the shelter order lacked a CTW determination. 13/

Whether Pennsylvania established that CTW or RE determinations were made
when the court granted a petition for the removal of a child who entered
foster care before October 1, 1986

In numerous cases in which it was undisputed that there was no CTW or RE
determination on the face of the order, Pennsylvania argued that the
petition granted by the order was sufficient evidence to show that these
determinations were made. Pennsylvania relied on an August 11, 1986
memorandum from Dodie Livingston, Commissioner, Administration for
Children, Youth and Families, to Regional Administrators and Regional
Program Directors ("Livingston memorandum") regarding the requirement
for a CTW determination. The Livingston memorandum noted that, prior to
the transfer of the foster care program from title IV-A to title IV-E,
the Agency's policy, set out in SRS-PIQ-75-21, dated April 2, 1975, was
that the requirement for a CTW determination was satisfied where there
was "a petition to the court stating the reason for the agency's request
for custody, followed by a court order granting the agency's petition
for custody . . . ." The Livingston memorandum further stated that,
because some state agencies believed, until the issuance of
ACYF-PIQ-86-02 on May 8, 1986, that this practice continued to be
acceptable in the title IV-E program, "disallowances will not be taken
where the State agency was following the precedent established in 1975,
in cases in which the child entered care prior to October 1, 1986."
(Emphasis in original.) 14/ During the proceedings in this appeal, ACF
stated that the requirement for a RE determination could also be met
under the circumstances specified in the Livingston memorandum, even
though both that memorandum and ACYF- PIQ-86-02 referred solely to CTW
determinations. ACF submission dated 8/9/94, at 12-13.

ACF did not dispute that it was bound to apply the Livingston memorandum
in the cases in question here. However, ACF took the position that,
even under this memorandum, the documentation in the disputed cases was
insufficient to establish that a CTW determination was made. (ACF did
not dispute that a RE determination could be inferred based on the
Livingston memorandum in one case in which the child entered care before
October 1, 1986.) ACF argued that the petition must give as the reason
for requesting the child's removal from home abuse or neglect, or
circumstances which indicated that the child had been abused or
neglected. Some of the petitions on which Pennsylvania relied did not
clearly allege neglect or abuse or the equivalent. Pennsylvania took
the position that it was unreasonable to find the cases ineligible on
this basis, however.

We agree with Pennsylvania that application of the Livingston memorandum
is not limited to situations where the petition alleges neglect or abuse
or the equivalent. Instead, this memorandum contains no limitation on
the grounds for removal alleged in the petition. SRS PIQ-75- 21, from
which the standards in the Livingston memorandum were derived, indicates
that a court order which grants a petition alleging abuse or neglect
would satisfy the requirement for a CTW determination. However, the PIQ
merely gives this as an example of a situation where there would be a
CTW determination. Moreover, the PIQ also cites the language of 45
C.F.R. 233.110 referring to removal from home "as a result of a
judicial determination that continuance in the home of the relative
would be contrary to [the child's] welfare, for any reason . . . ."
(Emphasis added.) Thus, the PIQ appears to contemplate that the
requirement for a CTW determination could be satisfied by an order
granting a petition which alleges any reason which would support a CTW
determination. Moreover, ACF agreed that a number of petitions
submitted by Pennsylvania in this case alleged a sufficient basis for
making a CTW determination, even though ACF originally stated that these
petitions were deficient because they did not allege abuse or neglect or
the equivalent. See Tr. at 115. We consider whether the petitions in
question here provided an adequate basis for a CTW determination in our
discussion of the individual sample payments.

In addition, ACF initially argued that the court order had to refer to
the petition by date. Most of the orders stated merely that the case
had been heard in open court "upon petition" and did not identify the
date of the petition. (The orders for sample nos. 13 and 88 do not
contain any reference to a petition and those cases are thus clearly
ineligible for application of the Livingston memorandum.) According to
ACF, a date was necessary to ensure that the petition on which a state
relied was the one granted by the court. ACF later admitted that this
was merely a "convention" and stated that it would accept other
documentation which established that the petition on which Pennsylvania
relied was the petition granted by the court order in question. ACF
Hearing Ex. 2, Declaration of Daniel Lewis, at Paragraph 7. In all but
one of the cases in question here, Pennsylvania supplied docket sheets
which list the actions in the case in sequence by date and refer only to
the petition on which Pennsylvania relied. In the remaining case
(sample no. 33), Pennsylvania supplied the transcript of the court
hearing resulting in the order. The transcript referred to the petition
on which Pennsylvania relied. Accordingly, we conclude that the lack of
a specific reference to the petition by date in the orders in question
here was not a basis for finding these cases ineligible. 15/

Whether the ACF policy permitting a state to establish that a CTW or RE
determination was made when the court granted a petition for the child's
removal should apply to children who entered foster care October 1, 1986
or later

As indicated above, the Livingston memorandum stated that, for cases
involving children who entered foster care prior to October 1, 1986, ACF
would accept (as evidence that a CTW determination was made) a court
order which granted a petition stating reasons for the state agency's
request for custody. However, the Livingston memorandum stated that
this standard, which was derived from SRS PIQ-75-21, would not apply to
children who entered foster care at a later date since ACYF-PIQ-86-02,
issued May 8, 1986, clearly stated that a court order which merely
refers to a petition, rather than expressly adopting the specific
relevant language of the petition, is not evidence of a CTW
determination.

Pennsylvania took the position that the policy in SRS PIQ-75-21 should
continue to apply notwithstanding the issuance of ACYF-PIQ-86-02. 16/
In Pennsylvania's view, ACF impermissibly changed the policy in SRS
PIQ-75-21 by issuing ACYF-PIQ-86-02 without articulating reasons for the
change, thus violating the APA. Pennsylvania argued that the continued
application of SRS PIQ-75-21 in the absence of any authorized change was
consistent with what it characterized as congressional intent that the
policies of the title IV-A foster care program continue to apply to the
foster care program under title IV-E.

We find no merit in Pennsylvania's argument that Congress intended that
a policy such as the one in question here continue to apply to the IV-E
program. As discussed previously with respect to the IV-A policy of
disallowing only individually identified payments, the legislative
history suggested only that some regulations could remain applicable,
not that each and every regulation had to remain applicable and
certainly not that policies which did not rise to the level of
regulations would necessarily continue to apply. Moreover, ACF made
clear in ACYF-PIQ-86-02 that SRS PIQ-75-21 was no longer applicable.

Furthermore, we are not persuaded that an explanation of the change made
by ACYF-PIQ-86-02 was required. As also discussed previously,
Pennsylvania cited no authority for requiring notice and comment
rulemaking for other than legislative rules. As discussed below, we
conclude that the provisions of ACYF-PIQ-86-02 concerning whether a
petition together with a court order granting a petition may be evidence
of a CTW determination do not constitute a legislative rule or even an
interpretative rule, but are at most a general statement of policy or a
rule of agency practice or procedure.

Pennsylvania gave several reasons for characterizing ACYF-PIQ-86-02 as a
legislative rule. The first reason was that this PIQ made a substantive
change in the meaning of the term "judicial determination" as it
appeared in the statute and regulations by limiting the type of orders
which could qualify as judicial determinations. We disagree.
Legislative rules create law or obligations, while interpretative rules
are statements of what an administrative agency thinks a statute or
regulation means. See New York State Dept. of Social Services, DAB No.
1473 (1994) and cases cited therein. ACYF-PIQ-86-02 merely discusses
what could be considered acceptable evidence that the requisite judicial
determinations were made. It does not purport to create any new law or
obligation.

Pennsylvania also argued that the PIQ was a legislative rule because it
made law by changing the federal common law presumption of regularity in
state court proceedings. In addition, Pennsylvania argued that the PIQ
was a legislative rule because it was clearly intended to have binding
effect and reflected an exercise of judgment as to how best to implement
a general statutory mandate. However, the PIQ does not affect any
presumption of regularity in state court proceedings which may exist in
federal common law. In requiring evidence that a CTW determination
required by state law was made, the PIQ does not call into question the
court's adherence to state law, but merely seeks to assure that there is
adequate documentation that the court in fact made a CTW determination.
Cf. DAB No. 1392, at 16, and Ruling on Reconsideration of DAB No. 1392,
at 6. Furthermore, the PIQ does not purport to be a binding
implementation of a statutory mandate. Instead, it simply describes the
evidence which would reasonably show that the statutory mandate for a
CTW determination was met.

Accordingly, we reject Pennsylvania's argument that ACYF- PIQ-86-02 was
invalid and that the title IV-A foster care policy accepting a petition
and a court order granting the petition as evidence of a CTW
determination therefore continued to apply in the case of children who
entered care October 1, 1986 or later.

Whether the language of orders removing children from home in
delinquency cases constituted a CTW determination

ACF found that court orders in a number of sample cases in which the
child was adjudicated delinquent did not contain CTW determinations. 17/
Pennsylvania disagreed, citing language in the court orders, identified
as "commitment orders," that the child "is in need of treatment,
supervision, and rehabilitation." Pennsylvania noted that
ACYF-PIQ-84-5, dated July 5, 1985, stated that "there . . . is . . . no
specific language required in the court order . . . ." Pennsylvania
contended that the words "treatment," "supervision," and
"rehabilitation" were sufficient to constitute a CTW determination
because they are all focused upon the needs of the child, consistent
with the requirements of section 472(a)(1) of the Act.

ACF did not dispute that no specific words were required in a CTW
determination. Indeed, ACYF-PIQ-84-5 also notes that section 472
requires only that the determination be "to the effect" that
continuation would be contrary to the welfare of the child. In its
Financial Review Guide, moreover, ACF instructed reviewers that "[t]he
court order 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." Financial Review
Guide, attached "Title IV-E Foster Care Eligibility Review Checklist
Guide," at 2.

ACF nevertheless argued initially that the finding in the delinquency
orders was deficient as a CTW determination because it did not focus
solely on the welfare of the child, as "the supervision and
rehabilitation of delinquent children is also intended to protect the
community and other individuals from their criminal acts." ACF brief
dated 4/29/94, at 15. However, at the hearing on this appeal, an
employee of ACF's Region III Child Care/Child Welfare Branch testified
that a finding that the child was "in need of treatment, supervision,
and rehabilitation" focused on the child's needs. Tr. at 78. Moreover,
section 6301 of the Juvenile Act identifies one of the purposes of the
Act as being, "consistent with the protection of the public interest, to
remove from children committing delinquent acts the consequences of
criminal behavior, and to substitute therefor a program of supervision,
care and rehabilitation. . . ." The separate reference to the public
interest indicates that "supervision, care and rehabilitation" was
regarded as focusing on the child alone. We see no significant
difference between this statutory language and the language used in the
court orders at issue here.

ACF also argued that the finding was deficient as a CTW determination
because it did not indicate that the child's need to receive treatment,
supervision and rehabilitation required the child's removal from home.
However, the fact that this finding was made in an order removing the
child from home clearly indicates that the court regarded removal as
necessary to meet the child's needs. In fact, ACF elsewhere indicated
that it would accept as a CTW determination another finding which did
not contain an explicit statement that removal was necessary. See
ACYF-PIQ-91-03, dated April 3, 1991 ("A court order indicating that the
child is a threat to himself satisfies the requirement of a
determination that remaining in the home would be contrary to the
child's welfare.") Thus, the court's finding was tantamount to a
finding that removal was in the child's best interest. 18/

Whether CTW or RE determinations may be inferred based on the court's
reliance on state statutory provisions

Pennsylvania took the position with respect to numerous sample payments
that, even if the court order removing the child lacked an express CTW
or RE determination, a CTW or RE determination was made because the
court relied on a state statutory provision requiring such a
determination. In ACYF-PIQ-86-02, ACF provided that a state could
establish that a CTW determination was made by showing that the court
order was "expressly based" on a "clear and unequivocal State law" which
"requires that removal may only be based on a determination that
remaining in the home would be contrary to the child's welfare."
(Emphasis in original.) ACF did not dispute that a state could
establish that a RE determination was made in a similar manner, i.e., by
showing that the court order was expressly based on a clear and
unequivocal State law requiring that removal be based only on a RE
determination.

Citing ACYF-PIQ-86-02, Pennsylvania contended that section 6351 of
Pennsylvania's Juvenile Act required a court to make a CTW or RE
determination in order to remove a child who was adjudicated dependent,
and that the court relied on this section when it issued an order
removing such a child. The 1982 version of that section stated that
"[i]f the child is found to be a dependent child the court may make any
of the following orders of disposition best suited to the protection of
the physical, mental, and moral welfare of the child. . . ." Section
6351(a). The dispositions included transfer of temporary legal custody
of the child. Section 6351(b) was amended in 1986 (effective February
13, 1987) to expressly require that, before issuing an order removing a
child, the court find that the child's continuation in the home is
contrary to the child's welfare and also that the court determine
whether (1) reasonable efforts were made to prevent placement, (2) the
lack of such efforts was reasonable, or (3) reasonable efforts to return
the child home were underway. As discussed below, we conclude that
Pennsylvania's evidence is insufficient to show that the court was
relying on section 6351 (either before or after its amendment) when it
issued orders adjudicating a child dependent. Thus, it is immaterial
whether that section in fact required the court to make a CTW or RE
determination. 19/

None of the court orders in question expressly cited section 6351.
However, Pennsylvania argued that the court relied on this section since
(1) both the orders and the petitions referred to the child as
"dependent," a term of art in Pennsylvania signalling reliance on
section 6351; and (2) there is no statutory provision other than section
6351 upon which the judges could have been relying.

The Board found the same arguments unpersuasive in its Ruling on
Reconsideration of DAB No. 1392. The Board there found that the word
"dependent" in the court orders "does not necessarily even refer to
section 6351 since it is used in other sections of the Act. . . ."
Ruling on Reconsideration at 4. The Board also found that "[t]he mere
existence of a statute which required a `contrary to the welfare'
determination . . . does not establish that the court in fact made such
a determination in any particular case . . . ." Id. at 6. 20/

Pennsylvania did not specifically challenge the Board's reasoning in the
Ruling nor did Pennsylvania provide any more persuasive evidence that
the court orders here were in fact issued pursuant to section 6351 and
its requirements. Pennsylvania argued, however, that the Board should
"re-evaluate its construction and application of ACYF-PIQ-86-02 in light
of the disclosure of the Livingston memorandum . . . ." Pennsylvania
reply brief dated 6/14/94, at 9 (emphasis in the original). Pennsylvania
correctly noted that the Board "approached the PIQ as a narrow exception
to the general rule that CTW . . . findings must appear in court
orders." Pennsylvania brief dated 2/10/94, at 9. Pennsylvania argued
that the Livingston memorandum showed that ACF's predecessor agencies
took a broader view of the type of documentation that could be used to
show that a CTW determination was made, and that the Board should
therefore construe ACYF-PIQ-86-02 more liberally in order to effectuate
"[c]ongressional intent to preserve prior AFDC-FC policies."
Pennsylvania reply brief at 9.

Pennsylvania's argument has no merit. The Livingston memorandum
addresses the circumstances under which a petition for state custody of
a child can be used to show that the court made a CTW determination.
Nothing in the Livingston memorandum (or elsewhere) indicates that there
was a policy under the title IV-A foster care program which presumed
that if one of the potentially applicable state statutes authorizing a
court to remove a child from home required a CTW determination, the
court must have relied on this statute and met its requirements in
ordering a specific child's removal. Thus, even if Congress had
intended to preserve the policies of the title IV-A foster care program
(which we conclude above was not so), this would not advance
Pennsylvania's case.

Pennsylvania also contended that section 6352 of the Juvenile Act
required a court to make a RE determination in order to remove a child
who was adjudicated delinquent, and that the court relied on this
section when it issued an order removing such a child. 21/ Section 6352
states that "[i]f the child is found to be a delinquent child the court
may make any of the following orders of disposition best suited to his
treatment, supervision, rehabilitation, and welfare: (1) Any order
authorized by section 6351. . . ." 22/ Pennsylvania pointed to nothing
in the language of this section which could reasonably be construed as
requiring a RE determination, however. Thus, even if the court relied
on section 6352 in issuing the orders in question, that section did not
provide a basis for the court to make a RE determination.

Whether nunc pro tunc orders established that the court made a CTW or RE
determination

In numerous cases in which ACF found there was no CTW or RE
determination, Pennsylvania produced nunc pro tunc (NPT) orders to
establish that the requisite determinations were made. The NPT orders
were signed by the judge who issued the original order and indicated
that the court had made a CTW or RE determination at the time of the
hearing which resulted in the original order, but that this
determination was not recorded in that order.

Pennsylvania also provided documentation for most of the cases in
question which it alleged corroborated that the requisite determination
had been made at the time the original order was issued. In a number of
cases, Pennsylvania provided the transcript of the hearing which
resulted in the original order. The other documentation included
caseworker summaries and recommendations and, for two cases, a document
identified as a "Placement Amendment."

In support of its position that the NPT orders showed that the court
made CTW or RE determinations when it issued the original order,
Pennsylvania cited ACYF-IM-87- 28, dated October 7, 1987. ACYF-IM-87-28
indicates that ACF's policy is to accept as evidence of CTW or RE
determinations NPT orders which were intended to correct a mistake in
the original court order, i.e., the failure to reflect a judicial
determination actually made at the time of entry of the original order.
ACYF-IM-87-28 also provides that states would be required to submit
documentation to verify that this was the function of the NPT orders,
stating:

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. 23/

The requirement that NPT orders be accompanied by documentation
establishing that the judicial determinations were actually made at the
time of removal has been upheld as a reasonable interpretation of the
Act. Harvey v. Shalala, 824 F. Supp. 186 (D. Neb. 1993) aff'd, 19 F.3d
1252 (8th Cir. 1994). Thus, with the exception explained below, we find
that, for those sample payments without any documentation supporting the
NPT orders, ACF properly rejected the NPT orders as evidence that the
requisite determinations were made.

In some cases (sample nos. 2, 75, and 94) in which there was no
acceptable documentation outside the NPT order, the NPT order summarized
the testimony presented at the original hearing and indicated that this
summary was based on the judge's bench notes. This corroborates the
finding in the NPT order that the court made the requisite determination
at the time of the original order. It is unnecessary to require the
production of the bench notes themselves, which the judge may not have
intended to be made public, since the judge attested to their existence
in the NPT order. 24/

Not all of the documentation Pennsylvania provided with the NPT orders
adequately supports the NPT orders, however. In Harvey, the court
upheld the Board's determination in Nebraska Dept. of Social Services,
DAB No. 1250 (1991), that state agency reports on the child which were
submitted to the court prior to the removal hearing did not constitute
adequate supporting documentation for NPT orders. The Board concluded
that such reports did not corroborate that the court made the requisite
determinations at the time the original orders were issued because they
"merely provide factual background information presumably supplied by
child welfare agencies or caseworkers concerning the children and their
families." DAB No. 1250, at 9; see also Harvey at 190. Some of the
caseworker recommendations and summaries provided here, like the state
agency reports in DAB No. 1250, constituted background information which
may not have been considered by the court. Moreover, the caseworker
documents for some sample payments are dated after the order allegedly
corrected by the NPT order, and therefore clearly could not have been
considered by the court. There is also no basis for finding that either
of the two Placement Amendments relied on by Pennsylvania was considered
by the court since one is dated after the date of the original order
(sample no. 48) and the other is undated (sample no. 49).

Contrary to ACF's position, however, we conclude that the hearing
transcripts provided by Pennsylvania for all but two cases corroborate
that the court made the requisite determinations at the time it issued
the original orders. The transcripts include statements by such
individuals as the caseworker, counsel for the child, counsel for the
parents, the child, and the child's parent(s). In most cases, ACF did
not dispute that these statements provided information based on which
the court could have made the requisite determinations. (We explain in
the discussion of the individual sample payments why we disagree with
ACF's position that the transcript in one case (sample no. 52) did not
provide such information. We find the transcript unacceptable in two
other cases (sample nos. 23 and 86), however.)

ACF nevertheless maintained that the transcripts showed merely that
information was presented to the court and not that the court made the
requisite determinations based on this information. We disagree. The
purpose of a transcript is not to show that the court actually made the
requisite determinations, but to corroborate the finding in the NPT
order that the court made these determinations. ACYF-IM-87-28 requires
that the documentation accompanying the NPT order, which the IM states
may include hearing transcripts, "confirm" that the court made the
requisite determinations at the time of the original hearing. The fact
that the judge ordered the child's removal from home after eliciting
statements about the child's situation which would support a CTW or RE
determination could reasonably be viewed as adequate confirmation that
the appropriate determination was made. Moreover, ACYF-PIQ-86-02
indicates that an express CTW or RE determination may be found in a
hearing transcript. ("The signed court order or a transcript of court
proceedings may be used to satisfy the requirement in section 472(a)(1)
if the judicial determination in relation to removal is included. . . ."
ACYF-PIQ-86-02, at 5.) Thus, it follows that something less than an
express determination is sufficient to corroborate a NPT order. Indeed,
if ACF had intended instead that the judge make an express determination
at the hearing, it presumably would have said so in ACYF-IM-87-28.

ACF also argued that the NPT orders themselves were not reliable because
they were executed in order to qualify the cases in question for FFP,
not to correct the record. ACF noted that most of the orders were
entered over a period of only four months in 1991, even though the
original orders were issued over a period of five years. We are not
persuaded that this is a basis for not accepting the NPT orders for
which there is corroborating evidence. In DAB Nos. 1250 and 1257, the
Board cited as one factor in its decision not to accept NPT orders the
fact that the NPT orders were issued after a significant lapse of time
at the request of the state in order to respond to the threat of
disallowance. However, in those cases, the NPT orders were submitted
without any evidence which corroborated that the court actually made the
requisite determinations at the time of the original order. The Board
did not intend that NPT orders for which there is corroborating evidence
be rejected simply because they were not issued until the lack of CTW
and RE findings in the original orders was questioned by ACF.
(However, a NPT order should clearly be subject to greater scrutiny
where it is made in response to a disallowance rather than issued sua
sponte by a court. See Harvey v. Shalala at 824 F. Supp. at 189 ("To
issue 5 NPT orders long after the original removal hearing, and after
the 5 cases have been specifically targeted as non- complying cases,
concerns this court even though the court recognizes the presumed
validity of court orders").)

ACF also took the position that the statement in some of the NPT orders
that there was a "present clear necessity to place the child outside the
home" did not constitute a CTW determination since it did not explain
the reason for the need to place the child outside the home, i.e.,
whether the placement was needed by the state, the child, the parents,
or for some other reason. However, the NPT orders were clearly intended
to indicate that a CTW determination was made when the court issued the
original order. Thus, it is sufficient that the corroborating evidence
verifies that the court was considering the interest of the child at
that time.

ACF further argued that, where the original court order was on a form on
which the court could simply check off the applicable language
pertaining to reasonable efforts (e.g., that reasonable efforts were
made, that reasonable efforts were not made, or that the lack of efforts
was reasonable), and the court failed to do so, it was not likely that a
RE determination was inadvertently omitted, as represented in the NPT
order. We disagree. ACF offered no reason why a judge would have
intentionally ignored the language pertaining to reasonable efforts.
Where there were credible NPT orders, it could just as easily be
inferred that the court's failure to check off the applicable language
in the original order was inadvertent as that it was deliberate. Thus,
the court's failure to check off this language is not a basis for
questioning whether the NPT order corrected a mistake in the original
order.

Whether the foster family home was approved

ACF found that one payment (sample no. 18) was ineligible for FFP on the
ground that the home in which the child was placed was not approved as a
foster family home for the period in question. Section 472(b) of the
Act provides that foster care maintenance payments may be made only on
behalf of a child who is in a foster family home or child care
institution. Section 472(c)(1) defines "foster family home" as "a
foster family home for children which is licensed by the State in which
it is situated or has been approved by the agency of such State having
responsibility for licensing homes of this type, as meeting the
standards established for such licensing . . . ."

ACF found the documentation originally submitted by Pennsylvania for
this case inadequate because it did not show the date the home was
approved. Pennsylvania subsequently submitted the "Foster Home Annual
Re- Evaluation" form for the home in question. The form indicates that
the re-evaluation home visit took place on December 15, 1988. The
caseworker and her supervisor signed the re-evaluation form on December
16 and December 19, 1988, respectively.

Pennsylvania argued that the case was eligible since the home was
approved during the month for which payment was made, December 1988.
ACF argued initially that the case was ineligible because the home was
not approved prior to the child's placement in foster care. ACF later
modified its position and stated that FFP was available only for that
part of December after the home was approved. ACF submission dated
1/9/95, at 1.

We need not reach here the issue whether FFP is available only for that
part of a month after a foster care provider is approved. In the
instant case, the form provided by Pennsylvania pertains to an annual
re- evaluation of the foster home. Thus, it is clear that the home was
previously approved. Even if that approval (which in Pennsylvania was
good for one year) was no longer current, ACF determined in other cases
included in the sample that the fact that a foster home was not re-
reviewed within one year was not a basis for a finding of ineligibility.
25/ Thus, as long as the home was originally approved before the month
for which FFP was claimed, FFP should be available for the entire month.
Since re-determinations were due annually, it is clear from the fact
that the re-determination here took place in mid-December that the home
was originally approved prior to December. Accordingly, consistent with
ACF's treatment of the other cases, this case should be eligible even if
the re-determination was late.

Discussion of Individual Sample Payments

Below, we discuss the individual sample payments in light of the
preceding discussion of the major issues raised by this appeal. In some
instances, we do not discuss all of the arguments made by Pennsylvania
with respect to a sample case if other arguments are dispositive. We
indicate in the caption for each sample case whether we find that case
eligible or ineligible.

Sample No. 1 (Ex. 8) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the March
29, 1985 Shelter Order instead of the May 25, 1985 Child Welfare Service
Order. There is no CTW determination on the face of the latter order.
However, a CTW determination may be inferred pursuant to the Livingston
memorandum. The Child Welfare Service Order refers to a petition. A
petition dated April 15, 1985 alleges that the mother reported that she
did not have a residence where she could take the child. ACF did not
argue that the petition did not state a reasonable basis for making a
CTW determination. We find that this is the petition granted by the
order since this is the only petition noted on the docket sheet. (The
docket sheet refers to a petition filed the day after the date on this
petition.)

Sample No. 2 (Ex. 9) -- eligible

ACF found that this case lacked both a CTW and a RE determination. ACF
erroneously found that a CTW determination should have been included in
the May 28, 1987 Shelter Order instead of the June 24, 1987 Placement
Order. The latter order contains an express CTW determination.
Pennsylvania argued that the NPT order established that the court made a
RE determination. Although Pennsylvania did not provide any
contemporaneous documentation in support of the NPT order, the judge
states in the order that he reviewed notes he made contemporaneously
with the June 24, 1987 hearing, and that, according to the notes,
testimony was presented to show that "[r]easonable efforts were made to
continue the child in parental placement through a parenting skills
program but mother lacked housing and agreed with placement." The notes
clearly corroborate the assertion in the NPT order that a RE
determination was made at the time of the original order. Since the
judge attested to the existence of his own contemporaneous notes, we
conclude that there is sufficient evidence of a timely RE determination.

Sample No. 4 (Ex. 10) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the November
28, 1980 Attachment Order (not in the record) instead of the December
12, 1980 Child Welfare Service Order. We concluded above that an
attachment order should be treated like a shelter order, which need not
include a CTW determination. There is no CTW determination on the face
of the Child Welfare Service Order. However, Pennsylvania argued, and
we agree, that a CTW determination may be inferred pursuant to the
Livingston memorandum. The Child Welfare Service Order refers to a
petition. A petition dated November 28, 1980 alleges that the mother
had no prospect for housing and seemed incapable of providing proper
care for the children, and that a complaint of neglect had previously
been received. ACF did not argue that the petition did not state a
reasonable basis for making a CTW determination. We find that this is
the petition granted by the order since this is the only petition noted
on the docket sheet.

Sample No. 6 (Ex. 11) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the March 3,
1978 Miscellaneous Order/Shelter Order instead of the June 7, 1978 Child
Welfare Service Order. There is no CTW determination on the face of the
latter order. However, a CTW determination may be inferred pursuant to
the Livingston memorandum. The Child Welfare Service Order refers to a
petition. A petition dated March 6, 1978 alleges generally that the
child was without proper parental care and control. The petition also
alleges that the child was brought to the hospital by the parents for a
respiratory problem, was found on examination to be in a state of poor
hygiene, and could not be discharged because the parents did not come to
pick her up. ACF did not argue that the petition did not state a
reasonable basis for making a CTW determination. We find that this is
the petition granted by the order since this is the only petition noted
on the docket sheet.

Sample No. 8 (Ex. 12) -- ineligible

ACF found that this case lacked a CTW determination. The parties
disagreed as to what order removed the child and should therefore
contain a CTW determination. Pennsylvania asserted that the child was
removed by a Modified Child Welfare Service Order dated January 13,
1986. There is no CTW determination on the face of that order; however,
Pennsylvania argued that a CTW determination could be inferred because,
according to Pennsylvania, the court relied on section 6351 of the
Juvenile Act and that section required a CTW determination. We
concluded above that there is no basis for finding such reliance where
an order merely finds a child dependent without specifically citing
section 6351. Thus, even if Pennsylvania is correct that the January 13,
1986 Modified Child Welfare Service Order removed the child, the case is
ineligible.

Sample No. 9 (Ex. 13) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the June 1,
1994 Shelter Order instead of the October 17, 1984 Child Welfare Service
Order. There is no CTW determination on the face of the latter order.
Pennsylvania argued that the NPT order established that a CTW
determination was made, and submitted a transcript of the October 17,
1984 hearing as supporting documentation. There is no dispute that the
information in the transcript is sufficient to support a CTW
determination. Thus, the transcript corroborates the assertion in the
NPT order that a CTW determination was made at the time of the original
order.

Sample No. 13 (Ex. 15) -- ineligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the October
28, 1985 Shelter Order instead of the December 18, 1985 Order of Court.
There is no CTW determination on the face of the latter order. However,
Pennsylvania argued that a CTW determination may be inferred pursuant to
the Livingston memorandum. We conclude that the Livingston memorandum
does not apply because the Order of Court does not refer to a petition.
In order to qualify for the application of the Livingston memorandum, a
petition stating reasons for giving custody of the child to the state
agency must be granted by the court order; this implicitly requires that
the court order refer to a petition. (Indeed, Pennsylvania argued only
that the order need not refer to a petition by date, not that the order
need not contain any reference to a petition.) Pennsylvania also argued
that a CTW determination could be inferred because, according to
Pennsylvania, the court relied on section 6351 of the Juvenile Act and
that section required a CTW determination. We concluded above that
there is no basis for finding such reliance where an order merely finds
a child dependent without specifically citing section 6351.

Sample No. 14 (Ex. 16) -- eligible

Sample No. 16 (Ex. 18) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the November
8, 1979 Miscellaneous Order instead of the November 14, 1979 Child
Welfare Service Order. The Miscellaneous Order provides that the child
is to be placed in the custody of the maternal aunt prior to the filing
of and hearing on the petition, and thus should be treated like a
shelter order, which need not include a CTW determination. There is no
CTW determination on the face of the Child Welfare Service Order.
However, a CTW determination may be inferred pursuant to the Livingston
memorandum. The Child Welfare Service Order refers to a petition. A
petition dated November 13, 1979 alleges that the mother was providing
inadequate care and supervision for the child and that the home was in
very poor condition with little food. ACF did not argue that the
petition did not state a reasonable basis for making a CTW
determination. We find that this is the petition granted by the order
since it is the only petition noted on the docket sheet.

Sample No. 17 (Ex. 19) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the April 4,
1985 Attachment Order instead of the April 18, 1985 Placement Order. We
concluded above that an attachment order should be treated like a
shelter order, which need not include a CTW determination. The
Placement Order contains an express CTW determination.

Sample No. 18 (Ex. 20) -- eligible

ACF found that this case lacked a CTW determination and that the foster
care provider was ineligible. ACF erroneously found that a CTW
determination should have been included in the November 16, 1984 Shelter
Order instead of the December 5, 1984 Placement Order. The latter order
contains an express CTW determination.

ACF also found that the foster care provider was not approved until the
middle of the month for which the sample payment was made. As discussed
above, we find that the provider was previously approved, and that even
if the re-determination of the provider's eligibility was late, ACF
should have found the provider eligible consistent with its treatment of
other, similarly situated providers to whom sample payments were made.

Sample No. 19 (Ex. 21) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the June 25,
1987 Shelter Order instead of the July 15, 1987 Placement Order. The
latter order contains an express CTW determination.

Sample No. 20 (Ex. 22) -- ineligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the February
13, 1985 Miscellaneous Order instead of the February 27, 1985 Child
Welfare Service Order. The Miscellaneous Order continues the case until
February 27, 1985, and thus should be treated like a shelter order,
which need not include a CTW determination. There is no CTW
determination on the face of the Child Welfare Service Order.
Pennsylvania argued that a CTW determination could be inferred because,
according to Pennsylvania, the court relied on section 6351 of the
Juvenile Act and that section required a CTW determination. However, we
concluded above that there is no basis for finding such reliance where
an order merely finds a child dependent without specifically citing
section 6351.

Sample No. 21 (Ex. 23) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in a January
19, 1988 order instead of a February 11, 1988 Commitment Order. The
January 19, 1988 order finds, after a hearing on a petition, that the
child has committed certain delinquent acts, commits the child to a
detention home, and defers disposition to a later date. Thus, this
order is in effect a detention order, a type of shelter order. The
Commitment Order states that the child "is in need of treatment,
supervision, and rehabilitation." We concluded above that this language
constitutes a CTW determination.

Sample No. 22 (Ex. 24) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in an October
12, 1988 Shelter Order instead of a November 30, 1988 Placement Order.
The latter order contains an express CTW determination.

Sample No. 23 (Ex. 25) -- ineligible

ACF found that this case lacked both a CTW and a RE determination. ACF
erroneously found that a CTW determination should have been included in
a March 24, 1988 Shelter Order instead of an April 20, 1988 Placement
Order (at Exhibit 24 of Pennsylvania submission dated September 23,
1994). The latter order contains an express CTW determination.
Pennsylvania argued that the NPT order established that the court made a
RE determination, and submitted a transcript of the March 24, 1988
shelter hearing as supporting documentation. ACF argued that the
transcript did not show that the state agency made reasonable efforts to
prevent removal of the child from home. We agree. A state agency
representative participating in the shelter hearing stated at one point:
"We also need to look at if [the mother] is willing to accept any
in-home services." It could be inferred from this that no preventive
services were previously offered. Pennsylvania also argued that a RE
determination may be inferred from the Placement Order because,
according to Pennsylvania, the court relied on section 6351 of the
Juvenile Act and that section required a RE determination. However, we
concluded above that there is no basis for finding such reliance where
an order merely finds a child dependent without specifically citing
section 6351.

Sample No. 24 (Ex. 26) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the November
19, 1986 Shelter Order instead of the December 17, 1986 Placement Order.
The latter order contains an express CTW determination.

Sample No. 25 (Ex. 27) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the July 25,
1988 Detention Order instead of the August 25, 1988 Commitment Order.
The latter order states that the child was "in need of treatment,
supervision, and rehabilitation." We concluded above that this language
constitutes a CTW determination.

Sample No. 26 (Ex. 27) -- eligible

See Sample No. 25 (different payment for same child)

Sample No. 27 (Ex. 28) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the November
12, 1986 Shelter Order instead of the February 6, 1987 Modified
Placement Order. The latter order contains an express CTW determination.

Sample No. 28 (Ex. 29) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the
September 16, 1988 Detention Order instead of the October 31, 1988
Modified Commitment Order. The latter order states that the child is
"in need of treatment, supervision, and rehabilitation." We concluded
above that this language constitutes a CTW determination.

Sample No. 31 (Ex. 30) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the March
24, 1987 Shelter Order instead of the May 1, 1987 Placement Order. The
latter order contains an express CTW determination.

Sample No. 33 (Ex. 31) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the October
2, 1984 Shelter Order instead of the December 21, 1984 Child Welfare
Service Order. There is no CTW determination on the face of the latter
order. However, a CTW determination may be inferred pursuant to the
Livingston memorandum. The Child Welfare Service Order refers to a
petition. An "Amended Petition" dated October 10, 1984 alleges that the
mother was unable to care for the child because she was an alcoholic and
was without housing, and the father was incarcerated. ACF did not argue
that the petition did not state a reasonable basis for making a CTW
determination. We find that this is the petition granted by the order
since this is the petition described in the transcript of the December
21, 1984 hearing. (The transcript indicates that the court was actually
referring to the original petition dated October 4, 1984; however, it
appears that this petition differed from the October 10, 1984, petition
only with respect to the date set for hearing.)

Sample No. 34 (Ex. 32) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the January
15, 1988 Shelter Order instead of the January 22, 1988 Placement Order.
The latter order contains an express CTW determination.

Sample No. 35 (Ex. 33) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the November
30, 1976 Shelter Order (not in record) instead of the January 5, 1977
Child Welfare Service Order. There is no CTW determination on the face
of the latter order. However, a CTW determination may be inferred
pursuant to the Livingston memorandum. The Child Welfare Service Order
refers to a petition. A petition dated December 2, 1976 alleges that
the mother repeatedly left the children with caretakers without adequate
provision for food and clothing and neglected their medical care. ACF
did not argue that the petition did not state a reasonable basis for
making a CTW determination. We find that this is the petition granted
by the order since this is the only petition noted on the docket sheet.

Sample No. 36 (Ex. 34) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in a March 5,
1984 Attachment Order instead of an April 4, 1984 Child Welfare Service
Order. We concluded that an attachment order should be treated like a
shelter order, which need not include a CTW determination. (There was
also a March 8, 1984 Shelter Order which need not have included a CTW
determination.) There is no CTW determination on the face of the Child
Welfare Service Order. However, a CTW determination may be inferred
pursuant to the Livingston memorandum. The Child Welfare Service Order
refers to a petition. A petition dated March 8, 1984 alleges that the
child was hospitalized with severe diaper rash and pneumonia which
resulted from the parents' willful failure to provide the necessities of
life. ACF did not argue that the petition did not state a reasonable
basis for making a CTW determination. We find that this is the petition
granted by the order since this is the only petition noted on the docket
sheet.

Sample No. 37 (Ex. 35) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the
September 29, 1987 Shelter Order instead of the December 9, 1987
Placement Order. The latter order contains an express CTW
determination.

Sample No. 38 (Ex. 36) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in a November
30, 1982 Miscellaneous Order (supplied by Pennsylvania after ACF
postulated that an earlier order was issued on or about November 26,
1982) instead of an order dated December 9, 1982. The Miscellaneous
Order directs that the child be admitted to the Shuman Center, a
temporary detention center. Thus, the Miscellaneous Order is in effect
a detention order, a type of shelter order, which need not include a CTW
determination. The December 9, 1982 order states that the child is "in
need of treatment, supervision, and rehabilitation." We concluded above
that this language constitutes a CTW determination.

Sample No. 39 (Ex. 37) -- eligible

ACF found that this case lacked a CTW determination. There is no CTW
determination on the face of the May 10, 1978 Child Welfare Service
Order. However, a CTW determination may be inferred pursuant to the
Livingston memorandum. The Child Welfare Service Order refers to a
petition. A petition dated April 13, 1978 alleges that the child was in
a special education class and was declining behaviorally, academically
and emotionally, and that efforts by a public health nurse and school
staff to instruct the mother as to the proper care of the child had not
been successful. Contrary to ACF's position, we find that the petition
stated a reasonable basis for making a CTW determination since it
indicates that the mother was unable to meet the child's special needs.
We find that this is the petition granted by the order since it is the
only petition noted on the docket sheet.

Sample No. 40 (Ex. 38) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
determined that a CTW determination should have been included in the
October 14, 1988 Shelter Order instead of the March 17, 1989 Modified
Placement Order. The latter order contains an express CTW determination.

Sample No. 41 (Ex. 39) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
determined that a CTW determination should have been included in the
March 11, 1988 Shelter Order instead of the March 18, 1988 Placement
Order. The latter order contains an express CTW determination.

Sample No. 42 (Ex. 9) -- eligible

See Sample No. 2 (same child, different payment)

Sample No. 43 (Ex. 40) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the August
26, 1988 Shelter Order instead of the September 14, 1988 Placement
Order. The latter order contains an express CTW determination.

Sample No. 46 (Ex. 41) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the November
8, 1987 Detention Order instead of the January 4, 1988 Commitment Order.
The latter order states that "the child is in need of treatment,
supervision, and rehabilitation." Moreover, an intervening order dated
November 9, 1987 contains the same language. We concluded above that
this language constitutes a CTW determination.

Sample No. 47 (Ex. 42) -- eligible

ACF found that this case lacked a CTW determination. A December 3, 1987
Commitment Order states that the child "is in need of treatment,
supervision, and rehabilitation." We concluded above that this language
constitutes a CTW determination.

Sample No. 48 (Ex. 43) -- ineligible

ACF found that this case lacked both a CTW and a RE determination. ACF
found that a CTW determination should have been included in an order
issued prior to the September 15, 1988 Commitment Order. ACF referred
to a July 30, 1988 order removing the child which was not then in the
record. Pennsylvania subsequently produced a July 30, 1988 Master's
recommendation that the child be detained. It is not clear that ACF
would argue that the CTW determination should have been in this
document. ACF also suggested that a CTW determination should have been
included in a August 11, 1988 order. However, this order merely defers
placement until a later date, and should therefore be treated like a
shelter order, which need not include a CTW determination. Thus, we
conclude that a CTW determination could properly have been made in the
Commitment Order. The Commitment Order states that "the child is in
need of treatment, supervision, and rehabilitation." We concluded above
that this language constitutes a CTW determination. Pennsylvania argued
that the NPT order established that the court made a RE determination.
However, the documentation submitted in support of the NPT order, a
Placement Amendment dated September 8, 1988, is not adequate because the
court could not have considered this documentation in issuing the August
11, 1988 order referred to in the NPT order. Pennsylvania further argued
that a RE determination could be implied because, according to
Pennsylvania, the court relied on a provision of the Juvenile Act
requiring a RE determination. However, we concluded above that the
provision cited by Pennsylvania, section 6352, does not require a RE
determination.

Sample No. 49 (Ex. 44) -- ineligible

ACF found that this case lacked both a CTW and a RE determination.
Pennsylvania argued that ACF erroneously found that a CTW determination
should have been included in a Placement Order instead of a Commitment
Order dated December 1, 1988. ACF stated that the Placement Order is
dated November 30, 1988; however, the order merely indicates that the
"Date Placed" is November 30, 1988. Moreover, the terms of the Placement
Order are the same as the terms of the Commitment Order. Since it is
likely that the two orders were issued simultaneously, a CTW
determination in the Commitment Order rather than the Placement Order is
acceptable. The Commitment Order states that the child "is in need of
treatment, supervision, and rehabilitation." We concluded above that
this language constitutes a CTW determination. Pennsylvania also argued
that a RE determination could be inferred from a document captioned
"Statement of Facts and Reasons Accompanying the Detention/Continued
Detention of a Child by a Judge or Master Prior to Adjudication," dated
January 30, 1989. (We assume for purposes of this discussion that this
document constituted a judicial determination since it was signed by
either a judge or a master and Pennsylvania contended that a master was
a judicial officer under Pennsylvania law.) The "Statement" identifies
the alternatives to "secure detention" which were considered and
rejected, including "parent(s)/guardian(s)" and "in-home detention," and
states that the alternatives are not appropriate because of "failure to
adjust at Court ordered placement." Pennsylvania argued that this
constituted a determination that the lack of efforts to prevent removal
was reasonable. As indicated previously, ACF stated in its briefing in
this appeal that it would accept a finding that the lack of efforts to
prevent removal was reasonable. The reason given in the "Statement" for
rejecting the alternatives to removal does not provide any basis for a
determination that the lack of efforts was reasonable. Pennsylvania
also argued that the NPT order established that the court made a RE
determination. However, the documentation submitted in support of the
NPT order, an undated Placement Amendment, is not adequate because there
is no evidence that the court considered this documentation in issuing
an order pursuant to the December 1, 1988 hearing referred to in the NPT
order. Pennsylvania further argued that a RE determination could be
implied because, according to Pennsylvania, the court relied on a
provision of the Juvenile Act requiring a RE determination. However, we
concluded above that the provision cited by Pennsylvania, section 6352,
does not require a RE determination.

Sample No. 50 (Ex. 45) -- ineligible

ACF found that this case lacked both a CTW and a RE determination. ACF
erroneously found that a CTW determination should have been included in
the January 31, 1989 Shelter Order instead of the March 1, 1989
Placement Order. The latter order contains an express CTW
determination. Pennsylvania argued that the NPT order established that
the court made a RE determination. However, the documentation submitted
in support of the NPT order, a recommendation prepared by the caseworker
prior to the March 1, 1989 hearing, is not adequate because there is no
evidence that the court actually considered this documentation in
issuing the Placement Order referred to in the NPT order. Pennsylvania
also argued that a RE determination could be implied because, according
to Pennsylvania, the court relied on section 6351 of the Juvenile Act
and that section requires a RE determination. We concluded above that
there is no basis for finding such reliance where an order merely finds
a child dependent without specifically citing section 6351.

Sample No. 52 (Ex. 46) -- eligible

ACF found that this case lacked both a CTW and a RE determination.
Pennsylvania argued that the NPT order established that the court made
these determinations at the time it issued the January 19, 1989 Shelter
Order, and submitted a transcript of the shelter hearing as supporting
documentation. ACF did not dispute that the information in the
transcript was sufficient to support a CTW determination, but argued
that the transcript contained no information about the efforts the state
agency made to prevent the child's removal from home. However, the NPT
order states that it was determined at the time of the original order
that the absence of efforts to prevent the child's placement was
reasonable. The transcript indicates that the court was informed that
the child had been repeatedly beaten by the mother. Since the court
could have determined based on this information that this was an
emergency situation in which the lack of efforts to prevent the child's
removal was reasonable, the transcript corroborates the findings in the
NPT order that a RE determination as well as a CTW determination was
made at the time of the original order.

Sample No. 53 (Ex. 46.5) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the January
11, 1989 Detention Order instead of the January 31, 1989 Commitment
Order. (ACF erroneously identified the date of the Detention Order as
January 10, 1989, the date the child was detained.) The latter order
states that the child is "in need of treatment, supervision, and
rehabilitation." We concluded above that this language constitutes a
CTW determination.

Sample No. 54 (Ex. 47) -- ineligible

ACF found that this case lacked both a CTW and a RE determination. ACF
erroneously found that a CTW determination should have been included in
a December 22, 1988 Detention Order instead of the January 30, 1989
Commitment Order. The latter order states that the child "is in need of
treatment, supervision, and rehabilitation." We concluded above that
this language constitutes a CTW determination. Pennsylvania asserted
that there was a RE determination in a Review Order dated June 26, 1989.
However, this determination is not acceptable since it was made after
the month for which the payment was made (May 1989). Pennsylvania
argued further that a RE determination could be inferred from a document
captioned "Statement of Facts and Reasons Accompanying the
Detention/Continued Detention of a Child by a Judge or Master Prior to
Adjudication," dated December 21, 1988. (We assume for purposes of this
discussion that this document constituted a judicial determination since
it was signed by either a judge or a master and Pennsylvania contended
that a master was a judicial officer under Pennsylvania law.) The
"Statement" identifies the alternatives to "secure detention" which were
considered and rejected, including "parent(s)/guardian(s)" and "in-home
detention," and states that the alternatives are not appropriate because
"child has absconded from HSB." Pennsylvania argued that this
constituted a determination that the lack of efforts to prevent removal
was reasonable. However, the reason given in the "Statement" for
rejecting the alternatives to removal does not provide any basis for
determining that the lack of efforts was reasonable. Pennsylvania also
argued that the NPT order established that the court made a RE
determination. Pennsylvania did not provide any contemporaneous
documentation in support of this order, however. Finally, Pennsylvania
argued that a RE determination could be implied because, according to
Pennsylvania, the court relied on a provision of the Juvenile Act
requiring a RE determination. However, we concluded above that the
provision cited by Pennsylvania, section 6352, does not require a RE
determination.

Sample No. 56 (Ex. 48) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the October
23, 1987 Shelter Order instead of the April 25, 1988 Modified Placement
Order. The latter order contains an express CTW determination.

Sample No. 57 -- eligible

See Sample No. 31 (same child, different payment).

Sample No. 60 (Ex. 50) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the April
11, 1984 Shelter Order instead of the May 23, 1984 Placement Order. The
latter order contains an express CTW determination.

Sample No. 62 (Ex. 52) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the March
19, 1985 Shelter Order instead of the April 10, 1985 Child Welfare
Service Order. There is no CTW determination on the face of the latter
order. However, a CTW determination may be inferred pursuant to the
Livingston memorandum. The Child Welfare Service Order refers to a
petition. A petition dated March 27, 1985 alleges that the parents are
unable to care for the child because they both have histories of
emotional problems and are currently in residence at treatment programs.
ACF did not argue that the petition did not state a reasonable basis for
making a CTW determination. We find that this is the petition granted by
the order since this is the only petition noted on the docket sheet.

Sample No. 63 (Ex. 53) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the November
14, 1984 Attachment Order instead of the January 16, 1985 Placement
Order. We concluded above that an attachment order should be treated
like a shelter order, which need not include a CTW determination. The
Placement Order contains an express CTW determination.

Sample No. 65 (Ex. 54) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the March
11, 1983 Miscellaneous Order/Shelter Order instead of the March 30, 1983
Child Welfare Service Order. There is no CTW determination on the face
of the latter order. However, a CTW determination may be inferred
pursuant to the Livingston memorandum. The Child Welfare Service Order
refers to a petition. A petition dated March 11, 1984 alleges that the
mother insisted on the child's removal, stating that it was beyond her
ability to control the child, who was stealing, not attending school,
and staying out late at night. ACF did not argue that the petition did
not state a reasonable basis for making a CTW determination. We find
that this is the petition granted by the order since this is the only
petition noted on the docket sheet.

Sample No. 66 (Ex. 55) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the November
21, 1986 Shelter Order instead of the June 17, 1987 Modified Placement
Order. The latter order contains an express CTW determination. ACF also
argued that the case was ineligible because the Modified Placement Order
was not issued within six months of the child's removal. However, as
discussed above, the Act requires only that judicial proceedings be
initiated within six months of the child's removal. Although the record
does not show either the date of removal or the date the petition was
filed, we noted previously that it is reasonable to assume that the
child's removal occurred no more than a few days before the date of the
shelter order since Pennsylvania's Juvenile Act requires that a shelter
hearing be held within 72 hours of the child's placement in shelter
care. Similarly, it is reasonable to assume that the petition was filed
within 24 hours of the child's removal, as required by the Juvenile Act.
Moreover, it appears that, in this case, a petition may have even been
filed before the Shelter Order was issued since the standard language on
the Shelter Order requiring a petition to be filed within 24 hours is
crossed out.

Sample No. 67 (Ex. 56) -- eligible

ACF found that this case lacked both a CTW and a RE determination. ACF
erroneously found that a CTW determination should have been included in
the July 11, 1986 Shelter Order instead of the August 1, 1986 Child
Welfare Service Order. There is no CTW determination on the face of the
latter order. However, a CTW and a RE determination may be inferred
pursuant to the Livingston memorandum. The Child Welfare Service Order
refers to a petition. The petition dated July 17, 1986 alleges that the
mother was in prison and that there were no other relatives willing to
care for the child. ACF did not argue that the petition did not state a
reasonable basis for making a CTW determination. In addition, the
allegation that the mother was in prison would clearly support a
determination that there was an emergency situation in which the lack of
efforts to prevent the child's removal from home was reasonable. We
find that this is the petition granted by the order since this is the
only petition noted on the docket sheet.

Sample No. 68 (Ex. 57) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the January
14, 1986 Shelter Order instead of the February 13, 1985 Child Welfare
Service Order. There is no CTW determination on the face of the latter
order. However, a CTW determination may be inferred based on the
Livingston memorandum. The Child Welfare Service Order refers to a
petition. The petition dated January 15, 1985 alleges that the mother
had no permanent residence and that she admitted that she lacked all the
necessary supplies to care for the child. The petition also indicates
that the mother had been discharged from the hospital after giving birth
to the child, and had not inquired about the infant, who remained in the
hospital, for over a week. ACF did not argue that the petition did not
state a reasonable basis for making a CTW determination. We find that
this is the petition granted by the order since this is the only
petition noted on the docket sheet.

Sample No. 69 (Ex. 58) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the
Detention Order instead of the May 22, 1989 Commitment Order. (There
may have been two detention orders in this case. The Detention Order in
the record is dated March 16, 1989; however, ACF refers to a Detention
Order dated April 17, 1989, apparently based on the reference in the
probation officer's report to an April 17, 1989 detention hearing.) The
Commitment Order states that "the child is in need of treatment,
supervision, and rehabilitation." We concluded above that this language
constitutes a CTW determination.

Sample No. 70 (Ex. 59) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the January
31, 1989 Transportation Order instead of the April 13, 1989 Commitment
Order. The Transportation Order directs the child to be transported to
the Shuman Center, a temporary detention center, and is thus in effect a
detention order, which need not include a CTW determination. The
Commitment Order states that "the child is in need of treatment,
supervision, and rehabilitation." We concluded above that this language
constitutes a CTW determination.

Sample No. 71 (Ex. 60) -- eligible

ACF found that this case lacked both a CTW and a RE determination. ACF
erroneously found that a CTW determination should have been included in
the March 28, 1989 Shelter Order instead of the April 14, 1989 Placement
Order. The latter order contains an express CTW determination.
Pennsylvania argued that the NPT order established that the court made a
RE determination, and submitted transcripts of both the shelter hearing
and the placement hearing as supporting documentation. (The NPT order
referred to both hearings.) There is no dispute that the information in
the transcripts is sufficient to support a RE determination. Thus, the
transcript corroborates the assertion in the NPT order that a RE
determination was made at the time of the original order.

Sample No. 72 (Ex. 61) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the February
6, 1989 Shelter Order instead of the February 24, 1989 Placement Order.
The latter order contains an express CTW determination.

Sample No. 73 (Ex. 62) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the May 11,
1989 Shelter Order instead of the June 9, 1989 Placement Order. The
latter order contains an express CTW determination.

Sample No. 74 (Ex. 63) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the April
10, 1989 Shelter Order instead of the April 21, 1989 Placement Order.
The latter order contains an express CTW determination.

Sample No. 75 (Ex. 64) -- eligible

ACF found that this case lacked both a CTW and a RE determination. ACF
erroneously found that a CTW determination should have been included in
the December 20, 1988 Shelter Order instead of the January 11, 1989
Placement Order. The latter order contains an express CTW
determination. Pennsylvania also argued that the NPT order established
that the court made a RE determination. However, the documentation
submitted in support of the NPT order, a summary of the case prepared by
the caseworker recommending that the court find the child dependent, is
not adequate because there is no evidence that the court considered this
documentation in issuing the Placement Order referred to in the NPT
order. Although Pennsylvania did not provide adequate supporting
documentation for the NPT order, the judge states in the order that he
reviewed notes he made contemporaneously with the January 11, 1989
hearing, and that, according to the notes, testimony was presented to
show that the mother had a drug and alcohol problem and had abandoned
her child and no other relatives were available to take custody of the
child. Based on this, the judge could have determined that there was an
emergency situation in which the lack of efforts to prevent the child's
removal from home was reasonable. Thus, the notes corroborate the
assertion in the NPT order that a RE determination was made at the time
of the original order. Since the judge attested to the existence of his
own contemporaneous notes, we conclude that there is sufficient evidence
of a timely RE determination.

Sample No. 76 (Ex. 65) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the May 24,
1988 Miscellaneous Order/Detention Hearing instead of the August 2, 1988
Commitment Order. The latter order states that the child "is in need of
treatment, supervision, and rehabilitation." We concluded above that
this language constitutes a CTW determination.

Sample No. 77 (Ex. 66) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the February
26, 1987 Attachment Order instead of the March 18, 1989 Placement Order.
We concluded above that an attachment order should be treated like a
shelter order, which need not include a CTW determination. The
Placement Order contains an express CTW determination.

Sample No. 79 (Ex. 68) -- eligible

ACF found that this case lacked a CTW determination. Pennsylvania argued
that ACF erroneously found that a CTW determination should have been
included in the April 23, 1986 Miscellaneous Order/Continued Hearing
instead of the May 21, 1986 Placement Order. The Miscellaneous Order
merely directs that the hearing be continued and thus should be treated
like a shelter order, which need not include a CTW determination. There
is an express CTW determination in the Placement Order.

Sample No. 81 (Ex. 70) -- ineligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the March 8,
1984 Shelter Order instead of the March 27, 1984 Modified Child Welfare
Service Order. There is no CTW determination on the face of the latter
order. However, Pennsylvania argued that a CTW determination may be
inferred pursuant to the Livingston memorandum. We disagree. The
Modified Child Welfare Service Order refers to a petition. The petition
dated November 22, 1983 alleges that the child is the daughter of a
dependent child under the supervision of the state agency. The petition
does not state a reasonable basis for making a CTW determination,
however, since it does not indicate why it would be contrary to the
child's welfare to remain with the mother in her foster care placement.
Pennsylvania also argued that the NPT order established that the court
made a CTW determination. However, the documentation submitted in
support of the NPT order, a recommendation by the caseworker dated April
24, 1984, is not adequate because there is no evidence that the court
actually considered this documentation in issuing either the Shelter
Order or the Modified Child Welfare Service Order, both of which are
referred to in the NPT order. Pennsylvania also argued that a CTW
determination could be inferred because, according to Pennsylvania, the
court relied on section 6351 of the Juvenile Act, and that section
required a CTW determination. We concluded above that there is no basis
for finding such reliance where an order merely finds a child dependent
without specifically citing section 6351.

Sample No. 82 (Ex. 60) -- eligible

See Sample No. 71 (sibling, same documentation).

Sample No. 83 (Ex. 71) -- eligible

ACF found that this case lacked a CTW determination. Pennsylvania argued
that the NPT order established that the court made a CTW determination
at the time it issued the March 12, 1984 Shelter Order, and submitted a
transcript of the shelter hearing as supporting documentation. There is
no dispute that the information in the transcript is sufficient to
support a CTW determination. Thus, the transcript corroborates the
assertion in the NPT order that a CTW determination was made at the time
of the original order.

Sample No. 84 (Ex. 72) -- ineligible

ACF found that this case lacked both a CTW and a RE determination. ACF
erroneously found that a CTW determination should have been included in
the July 20, 1988 Attachment Order instead of the August 26, 1988
Placement Order. We concluded above that an attachment order should be
treated like a shelter order, which need not include a CTW
determination. The Placement Order contains an express CTW
determination. Pennsylvania argued that a RE determination may be
inferred because, according to Pennsylvania, the court relied on section
6351 of the Juvenile Act and that section required a RE determination.
We concluded above that there is no basis for finding such reliance
where an order merely finds a child dependent without specifically
citing section 6351.

Sample No. 86 (Ex. 74) -- ineligible

ACF found that this case lacked both a CTW and a RE determination. ACF
erroneously found that a CTW determination should have been included in
the February 12, 1988 Shelter Order instead of the March 30, 1988
Modified Placement Order. The latter order contains an express CTW
determination. Pennsylvania argued that the NPT order established that
a RE determination was made, and submitted the transcript of the
February 12, 1988 shelter hearing as supporting documentation. However,
the NPT order does not purport to correct the Shelter Order, but refers
instead to a March 4, 1988 review hearing. Thus, the transcript does
not corroborate the assertion in the NPT order that a RE determination
was made at the time the Shelter Order was issued. Pennsylvania also
argued that a RE determination may be inferred because, according to
Pennsylvania, the court relied on section 6351 of the Juvenile Act and
that section required a RE determination. We concluded above that there
is no basis for finding such reliance where an order merely finds a
child dependent without specifically citing section 6351.

Sample No. 88 (Ex. 75) -- ineligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the December
18, 1981 Miscellaneous Order/Shelter Order instead of the January 22,
1982 Miscellaneous Order/Final Order. There is no CTW determination on
the face of the latter order. Pennsylvania argued that a CTW
determination may be inferred pursuant to the Livingston memorandum.
However, this case does not qualify for application of the Livingston
memorandum because the Miscellaneous Order/Final Order does not refer to
a petition. Pennsylvania also argued that a CTW determination may be
inferred because, according to Pennsylvania, the court relied on section
6351 of the Juvenile Act and that section required a CTW determination.
We concluded above that there is no basis for finding such reliance
where an order merely finds a child dependent without specifically
citing section 6351.

Sample No. 89 (Ex. 76) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the August
21, 1979 Miscellaneous Order/Attachment Order instead of the January 30,
1980 Modified Child Welfare Service Order. We concluded above that an
attachment order should be treated like a shelter order, which need not
contain a CTW determination. There is no CTW determination on the face
of the Modified Child Welfare Service Order. However, a CTW
determination may be inferred pursuant to the Livingston memorandum.
The Modified Child Welfare Service Order refers to a petition. A
petition with an illegible handwritten date but date-stamped August 29,
1979, alleges that the family had been evicted from their home and that
the child reported to police that he and his family had been living in a
van. ACF did not argue that the petition did not state a reasonable
basis for making a CTW determination. We find that this is the petition
granted by the order since this is the only petition noted on the docket
sheet.

Sample No. 90 (Ex. 77) -- ineligible

ACF found that this case lacked a CTW determination. Pennsylvania argued
that ACF erroneously found that a CTW determination should have been
included in the January 13, 1987 Shelter Order instead of a June 8, 1988
decree terminating parental rights. However, the Title IV-E Foster Care
Eligibility Checklist for this sample case shows that there was an
earlier dispositional order, which should have included a CTW
determination. Moreover, even if there was no prior dispositional order,
Pennsylvania did not present any evidence as to when judicial
proceedings leading to the June 8, 1988 order were initiated. Since
this order was issued nearly a year and a half after the date of the
child's removal (which presumably took place within a few days of the
date of the Shelter Order), it is questionable whether judicial
proceedings were initiated within six months of the date of the child's
removal.

Sample No. 91 (Ex. 78) -- eligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the
September 8, 1982 Miscellaneous Order/Shelter Order instead of the
October 22, 1982 Child Welfare Service Order. There is no CTW
determination on the face of the latter order. However, a CTW
determination may be inferred pursuant to the Livingston memorandum.
The Child Welfare Service Order refers to a petition. The petition in
the record, which is undated but date-stamped September 13, 1982,
alleges that the child had been hospitalized after being thrown off a
third story balcony by his mother. ACF did not argue that the petition
did not state a reasonable basis for making a CTW determination. We
find that this is the petition granted by the order since this is the
only petition noted on the docket sheet.

Sample No. 94 (Ex. 80) -- eligible

ACF found that this case lacked both a CTW and a RE determination. ACF
erroneously found that a CTW determination should have been included in
the April 21, 1989 Shelter Order instead of the May 10, 1989 Placement
Order. The latter order contains an express CTW determination.
Pennsylvania argued that a RE determination may be inferred pursuant to
the Livingston memorandum notwithstanding the fact that the child
entered care after October 1, 1986. We concluded above that such cases
did not qualify for application of the Livingston memorandum.
Pennsylvania also submitted two NPT orders (one of which refers to the
shelter order and one of which refers to the placement hearing) and
argued that they established that the court made a RE determination.
Pennsylvania said that it provided contemporaneous documentation in
support of the NPT orders. However, the only document in the record
other than the orders is an April 26, 1989 petition. This documentation
is not adequate because there is no evidence that the court actually
considered the petition in issuing either the Shelter Order or the
Placement Order referred to in the NPT orders. Although Pennsylvania
did not provide adequate supporting documentation for the NPT order, the
judge states in the order that he reviewed notes he made
contemporaneously with the April 21, 1989 hearing, and that, according
to the notes, testimony was presented to show that the mother was
incarcerated and that no other relatives were available to care for the
newborn child. Based on this, the judge could have determined that
there was an emergency situation in which the lack of efforts to prevent
the child's removal from home was reasonable. Thus, the notes
corroborate the assertion in the NPT order that a RE determination was
made at the time of the original order. Since the judge attested to the
existence of his own contemporaneous notes, we conclude that there is
sufficient evidence of a timely RE determination.

Sample No. 95 (Ex. 81) -- ineligible

ACF found that this case lacked both a CTW and a RE determination. ACF
erroneously found that a CTW determination should have been included in
the October 14, 1988 Detention Order instead of the November 7, 1988
Commitment Order. The latter order states that the child "is in need of
treatment, supervision, and rehabilitation." We concluded above that
this language constitutes a CTW determination. Pennsylvania argued that
a RE determination could be inferred from a document captioned
"Statement of Facts and Reasons Accompanying the Detention/Continued
Detention of a Child by a Judge or Master Prior to Adjudication," dated
October 14, 1988. (We assume for purposes of this discussion that this
document constituted a judicial determination since it was signed by a
judge or master and Pennsylvania contended that a master was a judicial
officer under Pennsylvania law.) The "Statement" identifies the
alternatives to "secure detention" which were considered and rejected,
including "parent(s)/guardian(s)" and "in- home detention," and states
that the alternatives are not appropriate because "child is charged of
residence plus" (sic). Pennsylvania argued that this constituted a
finding that the lack of efforts to prevent removal was reasonable.
However, since the reason given in the "Statement" for rejecting the
alternatives to removal is unintelligible, we cannot conclude that the
court made this determination. Pennsylvania also argued that a RE
determination may be inferred because the court specifically relied on a
provision of the Juvenile Act requiring a RE determination. We
concluded above that the provision cited by Pennsylvania, section 6352,
does not require a RE determination.

Sample No. 96 (Ex. 82) -- ineligible

ACF found that this case lacked both a CTW and a RE determination. ACF
erroneously found that a CTW determination should have been included in
the July 7, 1989 Shelter Order instead of the August 18, 1989 Placement
Order. The latter order contains an express CTW determination.
Pennsylvania argued that a RE determination may be inferred because,
according to Pennsylvania, the court relied on section 6351 of the
Juvenile Act and that section requires a RE determination. We concluded
above that there is no basis for finding such reliance where an order
merely finds a child dependent without specifically citing section 6351.

Sample No. 97 (Ex. 83) -- ineligible

ACF found that this case lacked a CTW determination. ACF erroneously
found that a CTW determination should have been included in the May 26,
1989 Shelter Order instead of the July 7, 1989 Review Order. There is
no CTW determination on the face of the latter order. Pennsylvania
argued that the NPT order established that a CTW determination was made,
and submitted as supporting documentation a document captioned "Service
Documentation," apparently prepared by a caseworker on May 24, 1989.
However, this document is not adequate because there is no evidence that
the court actually considered it in issuing either the Shelter Order or
the Review Order referred to in the NPT order. Pennsylvania argued that
a CTW determination could be inferred because, according to
Pennsylvania, the court relied on section 6351 of the Juvenile Act and
that section required a CTW determination. We concluded above that
there is no basis for finding such reliance where an order merely finds
a child dependent without specifically citing section 6351.

Sample No. 98 (Ex. 84) -- ineligible

ACF found that this case lacked both a CTW and a RE determination. ACF
erroneously found that a CTW determination should have been included in
the June 22, 1989 Shelter Order instead of the later dispositional
order. However, the only other order in the record is a July 21, 1989
Review Order which contains no CTW determination. Pennsylvania argued
that a RE determination may be inferred because, according to
Pennsylvania, the court relied on section 6351 of the Juvenile Act and
that section requires a RE determination. We concluded above that there
is no basis for finding such reliance where an order merely finds a
child dependent without specifically citing section 6351.

Sample No. 99 (Ex. 85) -- ineligible

ACF found that this case lacked both a CTW and a RE determination. ACF
erroneously found that a CTW determination should have been included in
the September 1, 1989 Shelter Order instead of the October 26, 1989
Placement Order. The latter order contains an express CTW
determination. Pennsylvania argued that a RE determination could be
inferred from a document captioned "Statement of Facts and Reasons
Accompanying the Detention/Continued Detention of a Child by a Judge or
Master Prior to Adjudication," dated September 20, 1989. (We assume for
purposes of this discussion that this document constituted a judicial
determination since it was signed by a judge or master and Pennsylvania
contended that a master was a judicial officer under Pennsylvania law.)
The "Statement" identifies the alternatives to "secure detention" which
were considered and rejected, including "parent(s)/guardian(s)" and "in-
home detention," and states that the alternatives are not appropriate
because of "Serious Nature." Pennsylvania argued that this constituted
a determination that the lack of efforts to prevent removal was
reasonable. However, since the reason given in the "Statement" for
rejecting the alternatives to removal is unclear and incomplete, we
cannot conclude that the court made this determination. Pennsylvania
also argued that a RE determination may be inferred because the court
specifically relied on a provision of the Juvenile Act requiring a RE
determination. We concluded above that the provision cited by
Pennsylvania, section 6352, does not require a RE determination.

Sample No. 100 (Ex. 86) -- eligible

ACF found that this case lacked both a CTW and a RE determination.
Pennsylvania argued that the NPT order established that the court made
these determinations in the dispositional order. The NPT order refers
to hearings corresponding to the dates of the two Review Orders in the
record, dated June 27, 1989 and July 26, 1989. Pennsylvania submitted
only a transcript of the July 26, 1989 hearing as supporting
documentation. However, ACF did not dispute that the information in this
transcript alone is sufficient to support CTW and RE determinations.
Thus, the transcript corroborates the assertion in the NPT order that
CTW and RE determinations were made at the time of the original order.

Conclusion

For the foregoing reasons, we reverse the disallowance to the extent
that it pertains to the 58 sample payments which we determine were
eligible in addition to the nine sample payments which ACF conceded were
eligible. We uphold the disallowance to the extent that it pertains to
the 18 sample payments which we determine were ineligible in addition to
the seven sample payments which Pennsylvania conceded were ineligible.
This decision does not preclude ACF from disallowing the amount claimed
for any months prior to the issuance of the dispositional order in cases
in which the CTW determination was made in the dispositional order.

__________________________ Judith A. Ballard

__________________________ M. Terry Johnson

___________________________ Donald F.
Garrett Presiding Board Member

1. Pennsylvania also raised questions about ACF's authority to
charge interest on the disallowance, the applicable rate of interest,
and whether interest charges should be waived. However, in a ruling
dated May 27, 1994, the Board found, pursuant to the standard set forth
in 45 C.F.R. Part 16, Appendix A, Paragraph G, that it was bound by
ACF's opinion that the Board had no jurisdiction to consider any such
issues.

2. During the course of the proceedings before the Board, ACF also
withdrew some findings of ineligibility as to cases which ACF maintained
remained ineligible on other grounds. In addition, ACF made new
findings of ineligibility as to some cases which it had already found
ineligible. This decision does not identify the findings withdrawn on
other grounds nor does it distinguish the new findings from earlier
findings.

3. This policy is discussed in detail in California Dept. of Social
Services, DAB No. 319 (1982), Reconsideration of Decision No. 319
(December 30, 1982), and Louisiana Dept. of Health and Human Services,
DAB No. 580 (1984).

4. Section 553(a)(2) exempts matters relating to grants from these
procedural requirements. This exemption would clearly apply to title
IV-E funds but for a Federal Register notice adopting section 553
procedures for the Department of Health and Human Services (then the
Department of Health, Education and Welfare) grant programs. 36 Fed.
Reg. 2532 (Feb. 5, 1971).

5. Pennsylvania cited two additional cases as authority for its
argument, discussed later, that the policy in ACYF-PIQ-86-02 concerning
documentation of a CTW determination was invalid because it was an
unexplained policy change: National Family Planning v. Sullivan, 979
F.2d 227 (D.C. Cir. 1992), and Clinton Memorial Hospital v. Shalala, 10
F.3d 854 (D.C. Cir. 1993). However, both of these cases involve
legislative rules and are therefore inapposite here.

6. Although the original disallowance was based directly on the OIG
audit, ACF subsequently reviewed OIG's audit workpapers and copies of
documents from the files on children for whom the sample payments were
made, withdrew the earlier disallowance, and issued a revised
disallowance. Since ACF did not rely directly on the OIG determinations
regarding Pennsylvania's compliance with the statutory requirements, we
need not reach the question of the OIG's authority to conduct program
compliance audits. We note in any event that title IV-E is not a
regulatory statute like the statute at issue in Burlington.

7. ACF alleged that the documents in question were not intended to
support the recommendations in the audit report because they were
prepared by the auditors in response to a request by the OIG/OAS Deputy
Regional Inspector General to keep a record "for information reasons" of
what efforts the state agency made to reunite children with their
parents. ACF brief dated 4/29/94, discussion of disputed sample
payments at 13. The documents appear to have been prepared in the
course of the audit and clearly addressed a matter which was a subject
of the audit, however.

8. Pennsylvania also took the position that an attachment order,
which authorized the sheriff, bailiff, or any constable of Allegheny
County to take the child into custody and to transport the child to a
shelter, was a type of shelter order. In some cases, an attachment
order was followed by a shelter order. Since the attachment orders were
issued without any hearing at which the child's welfare could have been
considered, it is clearly appropriate to treat them as shelter orders
for purposes of this case. Pennsylvania further argued that
"miscellaneous orders and transportation orders can fall under the
generic concept of `shelter' orders depending on how they are used by
the court." Pennsylvania submission dated 1/3/95, at 1. We conclude
that the miscellaneous orders and transportation orders in question here
(the contents of which are described in the discussion of the individual
sample payments) are properly treated as shelter orders since, like
shelter orders, they were issued to authorize the child's physical
removal (or the child's continuation in shelter care or detention after
initial authorization had been granted) before the court had sufficient
information to determine whether placement in foster care was
appropriate.

9. The record does not show the date of the child's removal in most
cases. However, it is reasonable to assume that the child's removal
occurred no more than a few days before the date of the shelter order
since Pennsylvania's Juvenile Act requires that a shelter hearing be
held within 72 hours of the child's placement in shelter care or
detention.

10. The Board also noted that, "[c]onsistent with its view that the
voluntary placement agreement was merely an interim measure prior to the
issuance of a court order, Pennsylvania claimed FFP only in payments
made for the child following the issuance of the court order." DAB No.
1392 at 7. In response to the Board's inquiry concerning the point as
of which FFP was claimed in the instant case, Pennsylvania stated that
it did not know what Allegheny County's practice was. Pennsylvania
response to Board questions, dated 6/10/93, at 1. However, it is clear
that any FFP claimed here prior to the month in which the dispositional
order containing a CTW determination was issued would not be allowable.
Accordingly, in determining the amount of the final disallowance, ACF
may require Pennsylvania to establish the date as of which FFP was
claimed, and may disallow the amount claimed for any months prior to the
issuance of the dispositional order in which the CTW determination was
made even if the case is otherwise eligible for FFP.

11. In response to Pennsylvania's request for all policy issuances
relating to this issue, ACF cited a number of other policy issuances
which were issued prior to the period in question here (fiscal year
1989). However, none of them specifically addresses shelter orders.

ACYF-PIQ-91-03, issued after fiscal year 1989, states that a temporary
detention order--issued for a child who entered detention through the
county probation department--must contain a CTW determination. ACF did
not argue that this PIQ should be retroactively applied here, however.

12. However, in several cases, there were one or more "Review
Orders" issued before the dispositional order. These orders effectively
extended the shelter order.

ACF also noted that the dispositional hearings were not always held
within the time frame specified in the orders. However, this does not
mean that the shelter orders were not short-term orders. Instead, it
appears that the shelter orders simply expired at the end of the term
specified in them (or, if no term was specified, at the end of the 10
days provided by statute).

13. Pennsylvania also argued that the Model Act for Family Courts,
issued by the Office of Youth Development in the Office of Human
Development (one of the agencies later merged into ACF) in 1975, did not
provide for CTW determinations in shelter orders, and argued that ACF's
position that CTW determinations should have been included in shelter
orders thus unfairly subjected the states to conflicting requirements.
We need not address this issue, however, since there is already ample
support for concluding that a CTW determination need not be in the
shelter order as opposed to the later dispositional order.

14. According to the August 11, 1986 memorandum, ACYF-PIQ-86-02
"makes clear that a court order that only grants or makes reference to
the agency's petition will not be sufficient to meet the requirements of
section 472(a)(1). . . . [O]nly if the court order expressly adopts the
specific relevant language of the petition and makes clear that a
judicial determination has been made, would the petition language, in
conjunction with the court order, meet this requirement."

15. ACF also argued that, in most cases, the petition on which
Pennsylvania relied was dated after the issuance of the shelter order
which removed the child from home, and thus could not be the petition
granted by the court. However, as discussed in the preceding section, we
conclude that the CTW determination need not have been in the shelter
order but could have been in the dispositional order instead. The
petitions in question here were dated before the issuance of the
dispositional orders.

16. Pennsylvania provided documentation to show that the
requirements of the Livingston memorandum were met for one sample case
(no. 94) in which the child entered care after October 1, 1986.
However, Pennsylvania contended that it should be given the opportunity
to provide relevant documentation for other cases should the Board agree
that the Livingston memorandum applied where the child entered foster
care after October 1, 1986.

17. Under section 472(b) and (c), title IV-E payments are not
available for a child who is placed in a "facility operated primarily
for the detention of children who are determined to be delinquent."
Most of the adjudicated delinquents for whom the sample payments were
made were initially placed by a Detention Order in a facility identified
as a "detention home" and later committed to another facility. However,
ACF did not argue that any child was in an excluded facility during the
period for which FFP was claimed or that any other statutory requirement
(such as the requirement that the child be placed in foster care as a
result of the judicial determination) was not met for reasons related to
the fact that the child was adjudicated delinquent.

18. Pennsylvania also pointed out that the Model Act for Family
Courts provides that "[i]f a child is found to be delinquent, the court
may make any of the following dispositions for his supervision, care and
rehabilitation . . . ," including an order placing the child in foster
care. Pennsylvania argued that it was therefore unreasonable for ACF to
reject the similar language in the court orders in question here as a
CTW determination. It is unnecessary to reach this issue here, however.

19. We nevertheless note that ACF maintained that neither the 1982
nor the 1986 version of section 6351 required a RE determination. ACF
did not specifically address here whether either version of section 6351
required a CTW determination; however, the Board noted in DAB No. 1392
that ACF did not dispute that the 1982 version of section 6351 required
such a determination. See DAB No. 1392, at 11.

20. In DAB No. 1392, the Board further found that the testimony of
the judges that they generally issued removal orders in reliance on the
provisions of the Juvenile Act requiring a CTW determination "cannot
establish what the [Social Security] Act here requires: evidence of a
specific finding by the court following evaluation of the facts of the
individual case." DAB No. 1392, at 14. Pennsylvania did not present
any judges or court officials as witnesses in the instant case.

21. Pennsylvania also contended that section 6352 required a court
to make a CTW determination in order to remove a child who was
adjudicated delinquent, and that the court relied on this section when
it issued an order removing such a child. We do not consider this
contention since we concluded above that the language in the court
orders themselves constituted an express CTW determination.

22. Similarly, section 6341 of the Juvenile Act provides that, if
the court makes an adjudication of delinquency, it shall "hear evidence
as to whether the child is in need of treatment, supervision or
rehabilitation and . . . make and file its findings thereon." This
appears to refer to the same proceeding as section 6352.

23. Another agency issuance, ACYF-IM-89-08, dated April 17, 1989,
expanded upon the documentation requirements for NPT orders, indicating
that acceptable documentation "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." It also stated that documentation "such as
post-hearing affidavits" would not be acceptable.

24. In several other cases, the NPT order stated that the judge had
reviewed "documentation prepared contemporaneously with the [hearing],"
or "Court records made contemporaneously with the [hearing]," and
described the testimony as shown by the documentation or the records.
However, there is no basis for concluding that the judge considered the
documentation or the records in issuing the original order. Thus, like
the NPT orders accompanied by caseworker documents (discussed below),
these NPT orders do not fall within the scope of ACYF-IM- 87-28, which
permits the use of NPT orders to correct a mistake in the original
order, not to supply a determination which the court failed to make in
the first instance.

25. The original disallowance letter issued by ACF (later withdrawn
and reissued) requested the OIG auditors to recompute the recommended
disallowance "removing errors . . . for foster care homes not
re-reviewed within one year." Pennsylvania Ex. 1-2. The disallowance
letter indicated that this request was based on Pennsylvania's argument,
in response to the draft audit report, that a disallowance cannot be
taken for a late redetermination of foster home eligibility. Id.; see
also Pennsylvania Ex. 2-18 (OIG audit