GAB Decision 378
January 31, 1983 Illinois Department of Public Aid; Docket No. 82-143
Ford, Cecilia; Settle, Norval Garrett, Donald
The Illinois Department of Public Aid (appellant) appealed a
$1,188,331 disallowance, by the Office of Human Development Services
(OHDS or respondent), of federal financial participation (FFP) in costs
claimed under Title IV-A, Aid to Families with Dependent Children-Foster
Care (AFDC-FC), of the Social Security Act (the Act). The only item
remaining in dispute here is $337,692 of costs claimed for relative
boarding homes, for the period July 1, 1975 through September 30, 1978.
/1/ The issue is whether the appellant approved the relative boarding
homes as meeting the standards for licensing foster family homes, as
required by the definition of "foster family home" under the Act.
For reasons stated below, we find that the appellant approved the
relative boarding homes using the standards applied for licensing homes
as foster family homes. Therefore, we reverse the respondent's
disallowance.
I. Background
Title IV-A of the Act, section 408 provides for foster care payments
to foster family homes or child-care institutions for eligible children
under the AFDC program. /2/ The AFDC-FC program is administered at (2)
the federal level by the Administration for Children, Youth and Families
within OHDS. /3/ At the state level in Illinois, the appellant is
responsible for administering the AFDC program. The foster care portion
of the program is administered by the Illinois Department of Children
and Family Services (DCFS).
HHS Office of Inspector General auditors performed an audit of the
appellant to determine whether federal funds were properly claimed on
behalf of AFDC-FC eligible children. (Audit Control No. 05-10252) The
auditors found that certain children for whom FFP had been claimed were
ineligible because they were placed in unlicensed relative boarding
homes. Relative boarding homes are homes accepting placement of
children who are related to the individuals providing care and
supervision. The auditors stated that foster care provided in
unlicensed relative boarding homes was not covered under the approved
State plan. (Audit Report, p. 6) The appellant disputed this finding
and the respondent did not base its disallowance on it. Instead, the
respondent determined that the procedure used by DCFS to approve
relative boarding homes was not comparable to that used for licensing
unrelated foster family homes, and, therefore, the relative boarding
homes did not qualify as foster family homes under the Act. The
respondent based this determination not on an audit finding but on its
own comparison of the form used for approval of relative boarding homes
with the licensing regulation.
II. The Parties' Positions
The definition of "foster family home" following section 408(f)
of
the Act states in part --
. . . the term "foster family home" means 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 responsible for licensing
homes of this type as meeting the standards established for such
licensing; . . .
The appellant's licensing standards are embodied in a regulation:
Children and Family Services (CFS) Regulation No. 5.12. CFS Regulation
No. 5.12 sets out the licensing procedure and the standards the homes
must meet. (Appeal File, tab 1)
The appellant uses different methods to approve relative boarding
homes and to license non-relative homes applying to become foster family
homes. To approve a relative boarding home, the appellant requires (3)
that a state caseworker perform a home study and complete a DCFS Form
454 entitled "relative Foster Care Approval Checklist." (Appeal File
tab
2) The appellant stated, and OHDS did not deny, that DCFS Form 454 has
been used since 1976, and that the form was developed with the
cooperation of HHS (then HEW). (Appellant's Brief, p. 5) To license a
foster family home, the appellant requires that a different form, DCFS
Form 599, be completed by a member of the licensing staff to verify that
a home study was done and that the home is suitable for licensing. /4/
The appellant argued that the respondent's only basis for finding
that the relative boarding home approval standards did not meet the
foster family home licensing standards was that the approval form
consisted of a one page checklist and the licensing standards consisted
of eleven pages. The appellant argued that, even though different forms
were used for the approval of relative boarding homes and the licensing
of other foster family homes, the approval standards and the licensing
standards were comparable since only one state regulation was created to
comply with section 408 of the Act. If forms are to be compared, the
appellant contended, DCFS Form 454 should be compared with DCFS Form
599, the licensing form. Finally, the appellant argued that the DCFS
Form 454 was only one step in the approval process. The appellant
asserted that relative boarding homes are subject to the same basic
process as foster family homes: (1) both require on-site investigations
of the home; (2) both require two year renewals and immediate renewal
if the family relocates; (3) both providers are contacted on a monthly
basis; and (4) placement can not occur until a home is formally
approved or licensed.
The respondent stated that the disagreement between the parties was
the view of how closely the approval standards must parallel the
licensing standards. (Respondent's Brief, p. 2) The respondent argued
that the approval standards must be the same as the licensing standards
and not just "comparable" as asserted by the appellant. The respondent
submitted documents received from the appellant to show whether the
approval standards for relative boarding homes were comparable to the
licensing standards for foster family homes. These documents included
letters from the appellant's representatives and a "crosswalk" chart,
prepared by the appellant, comparing the relative boarding home approval
form to the foster family home licensing form. Also included in the
documents were statements from appellant's caseworkers comparing the
procedures used for approving relative boarding homes and licensing
foster family homes. The respondent argued that the information
received (4) from the appellant tended to show that there were
significant differences between the approval standards and the licensing
standards. Specifically, the respondent argued that the appellant's
"crosswalk" chart revealed that certain foster family home licensing
standards were not included in the relative boarding home approval
standards: (1) home conditions dealing with food products from
home-raised animals; (2) medical reports concerning the foster family;
(3) inspection of the home dealing with the number of children in the
foster home; and (4) confidentiality of information concerning foster
child. Additionally, the respondent noted that a number of blank spaces
were left in the column of the "crosswalk" used to indicate whether
standards were comparable.
The appellant's reply restated a number of arguments made in its
original submission, and stated that the respondent misinterpreted a
number of items, including statements made by the appellant's
representatives, the appellant's "crosswalk", and the caseworkers'
statements.
III. Analysis
A. The homes were approved as meeting the licensing standards.
The statute requires that, to be considered foster family homes,
unlicensed relative boarding homes must be approved as meeting the
licensing standards. The respondent never alleged that these homes were
not "approved" but questioned whether they were approved as meeting
the
appellant's licensing standards. According to the appellant, however,
the standards for licensing in CFS Regulation 5.12 were also applicable
to relative boarding homes. The respondent presented nothing to
directly contradict the appellant's assertion that it considered the
approval of a relative boarding home to be approval that the standards
in the regulation were met. Essentially, what the respondent is asking
us to do here is to uphold the disallowance of the entire amount the
appellant spent for relative boarding homes during the disallowance
period by looking behind the appellant's approval of the homes. The
evidence does not show that the approval was not what the appellant said
it was.
There was no audit finding here that the licensing standards were not
applicable to relative boarding homes. Rather, the respondent based its
initial finding on a comparison of the approval checklist with the
regulation, apparently without any attempt to determine whether this was
a meaningful comparison. The record shows that it is not. The
regulation is intended to cover more than the licensing standards and
serves a different purpose from the approval checklist. During Board
proceedings, the respondent did not present any affirmative evidence to
show that the approval of the homes was based on standards other than
those in the licensing regulation.
(5) Instead, the respondent relied on certain statements made by the
appellant's representatives or its caseworkers which the respondent
thought indicated that different standards applied. These statements
generally concern the differences in the procedures followed for
approval and licensing or the absence of certain items on the approval
checklist. We discuss these issues below.
B. The statute permits the use of different procedures for licensing
and approval.
Differences in procedure account for most of the statements which the
respondent alleged showed that the approval standards were not the same
as the licensing standards. The appellant provided a reasonable
explanation for the differences in the procedures, however. According
to the appellant, it can require that anyone applying for a license to
care for a foster child fill in detailed forms to show that licensing
standards are met because the applicant is actively seeking to become a
foster parent. On the other hand, the appellant explained, where a
caseworker is soliciting a relative to care for a foster child, the
relative might hesitate to accept the child if that entailed complying
with complicated administrative procedures. We agree with the appellant
that the respondent failed to consider that the statute requires
application of the same standards, not use of the same procedures.
Moreover, the appellant alleged, without denial, that in certain
critical respects the approval process was the same as the licensing
process: both involve on-site investigation of the home, detailed
discussion of child care needs, periodic renewals, and monthly contacts.
/5/
C. The absence of certain items from the approval checklist is not
determinative.
We agree with the respondent that it would be preferable if the
approval checklist itself evidenced that all the licensing standards
were met. However, we do not think that the mere absence of reference
on the checklist to some parts of the licensing regulation is a
sufficient (6) basis for a finding that the licensing standards were not
applied in the approval process, particularly where, to the extent the
missing items are standards, they are ones which could be considered
during site visits. Further, the respondent has not denied that it
participated in developing the form.
In fact, since the approval checklist parallels the licensing
regulation in practically all respects (including the order in which the
covered items are listed), it tends to support the appellant's
contention that the form was intended as verification that the licensing
standards had been met.
On the whole, the caseworkers' statements support the appellant's
contention that the applicable standards were the same for licensing and
for approval, and were applied in practice. Two of the five caseworkers
whose statements are in the record had licensing experience and all but
one of the caseworkers had training in the standards. This caseworker
indicated that she kept the health, safety and child care standards in
mind when inspecting a relative boarding home. Moreover, the appellant
has explained that the items not specifically mentioned on the form were
either technical requirements or standards which the caseworkers could
have considered during site visits.
The items not specifically referred to on the form do appear to
relate to standards which could be observed during site visits or which
are procedural or technical. An experienced caseworker could observe
how many children were in a home, whether there were any animals raised
as pets or food products, and whether anyone in the household had any
health problems, and could make the necessary inquiries concerning these
matters. While the appellant's statements indicate that it did not
require relative boarding homes to fill in the detailed medical reports
required of applicants for a license, medical reports may be considered
merely one means for determining whether the health standard was met.
With respect to the provision in the licensing regulation requiring that
an applicant for a license assure confidentiality of information
concerning the child, the appellant stated this requirement was merely
technical and was not a standard to be met. This appears to be a
reasonable characterization. Moreover, there would not appear to be the
same need for imposing this requirement on a relative of the child as on
a stranger.
This is not to say that the appellant's statements are free from
ambiguity. Some of the appellant's representatives or caseworkers use
the terms "similar" or "comparable" in comparing the approval
and (7)
licensing standards, whereas the statute appears to require that they be
the same. However, the appellant affirmatively represented here that
the same standards applied, and gave a reasonable explanation of
apparent discrepancies.
Conclusion
While some of the statements made by the appellant's representatives
and caseworkers are somewhat ambiguious, the record shows on the whole
that the licensing standards were the applicable standards for approval
of the relative boarding homes, and were applied in practice.
Accordingly, we reverse the respondent's disallowance. /1/ Initially,
the disallowance consisted of three items: (1) $265,580 of
costs claimed for group homes; (2) $337,692 of costs claimed for
relative boarding homes; and (3) allegedly overstated costs of $585,050
claimed for foster care. The respondent withdrew its disallowance
pertaining to group homes, and the parties agreed that the overstated
costs issue should be decided separately, in order to permit OHDS to
review documentation submitted by the appellant. The dispute concerning
this third issue has been assigned Docket No. 82-229. /2/ A new Title
IV-E Foster Care and Adoption Assistance Program was added by
section 101(a)(1) of Public Law 96-272, effective October 1, 1980. The
AFDC-FC program under Title IV-A has been repealed by section 101(a)(2)
of Public Law 96-272. The repeal was effective at the time a state plan
under title IV-E became effective, but no later than September 30, 1982.
/3/ Prior to June 5, 1981, the AFDC-FC program was administered at the
federal level by the Social Security Administration. /4/ The
respondent alleged that a different form, DCFS 453, was used for
licensing but the appellant explained that the DCFS 453 was obsolete and
that the DCFS 599 was the form used during the period relevant here.
/5/ In support of the disallowance, the respondent pointed to the fact
that the caseworkers who reviewed the relative boarding homes were not
part of the licensing staff. The appellant replied that both groups
were part of the same State agency and that that was all the statute
required. This view is consistent with the plain language of the
statute, and the respondent has presented nothing to contradict it.
OCTOBER 22, 1983