PI-82-06 Issued June 3, 1982

PLEASE NOTE: This policy issuance has been withdrawn in its entirety and should be used only for historical or reference purposes.

ACF Administration for Children and Families	U.S. DEPARTMENT OF HEALTH AND HUMAN SERVICES Administration for Children, Youth and Families
	1. Log No.: PI-82-06	2. Issuance Date: June 3, 1982
	3. Originating Office: Children's Bureau
	4. Key Word: Section 427 Validation Review P.L. 96-272

ACYF STAFF INSTRUCTION

TO: Regional Program Directors Administration for Children, Youth and Families

SUBJECT: Guidance to ACYF Regional officials in validating State Certification of Compliance with Section 427 of the Adoption Assistance and Child Welfare Act of 1980 (P.L. 96-272)

BACKGROUND

The Adoption Assistance and Child Welfare Act of 1980, P.L. 96-272, provides funding support to encourage States to modify practices and policies which lead to inappropriate use of foster care by establishing certain protections for children as requirements for State eligibility for Federal payments above $141,000,000 under title IV-B.

In order to be eligible for such funding a State should

-- have conducted an inventory of all children who have been in foster care for six months or more and determined the appropriateness and the necessity of the placements, the likelihood of family reunification or the need to consider adoption and the services necessary to provide a permanent placement;

-- have implemented and have been operating

- a statewide information system which meets certain case management needs for all children currently in foster care or who have been in foster care in the preceding twelve months

- a case review system for each child in foster care

- a service program to facilitate reunification with families or other permanent placement; and

- have implemented and have had in operation a preplacement preventive service program designed to help children remain with their families.

Moreover, to be eligible for funds in a given fiscal year, a State's systems must be implemented and in operation for all affected children by September 30 of that year.

In FY 1981, the first year for which section 427 was applicable, States were instructed to declare their eligibility by means of a statement of self-certification. This approach was necessary as the Department had not yet published final regulations, and other logistical constraints would have made on-site compliance reviews practically impossible.

States were requested to self-certify on the basis of their understanding of the statutory requirements and a analysis of the related child welfare system policies implemented and in operation within the State during FY 1981. They were also informed that their self-certification would be subject to a review by the Department to assure that policies and program questions complied with the section 427 requirements.

In determining an individual State's eligibility under section 427, it has been important to emphasize two methodological considerations. First, even in the absence of clarifying regulations, the Department must assure conformity and equity in the interpretation of statutory requirements. Second, as States had no basis for determining their own eligibility other than the statute itself, the Department cannot now impose any more specific (and in all likelihood limiting or restrictive) standards or criteria beyond those identified in P.L. 96-272.

Keeping in mind these two important considerations, ACYF undertook a pilot review activity with the States beginning earlier this year. Based largely on the three pilot compliance reviews conducted in Missouri, Utah and Connecticut and on analysis and feedback subsequent to these reviews, ACYF has refined the process for conducting such reviews and has developed guidance to address questions and other issues that will invariably surface in the context of these reviews.

The attached materials provide regional staff with a format for conducting the reviews and reporting on State eligibility. In effect, the attached forms represent internal checklists that catalogue verbatim, elements in the statute that form the basis for Section 427 compliance.

BASIC INFORMATION

States have been given several options to review their compliance with the section 427 requirements. These include:

Option 1: The case record review may be conducted by a team of Federal reviewers. A sequential sampling technique would be used requiring a random sample of no more than 160 case records in larger States and no more than 85 case records in States with fewer than 1,000 children in foster care.

Option 2: Using the same sampling procedure as in Option 1, the case record review may be conducted by a combined team of Federal and State reviewers. The State reviewers would be selected by the State from its staff.

Option 3: The State may conduct its own review of case records, using the sampling methodology of its choice if Federal criteria for reliability and decision points are met. A Federal team would review a smaller subsample to verify and validate the State review.

The sequential sampling methodology under options 1 and 2 has been chosen to provide maximum confidence in the findings with a minimum of case reading and, therefore, a minimum of staff time. It allows a limited number of randomly selected case records to be reviewed one after the other only until certain decision points are reached.

Under this method, a statistically valid random sample of approximately 160 case records (10 extra to allow for error) is drawn from throughout the State. The State should be encouraged to assemble the case records in a central location for review because the sampling procedure requires that they be read in the same order they are selected, regardless of what region of the State they are from. (If this sampling method is chosen, but State cannot assemble cases in one location, the Regional staff should consult with the Central Office Children's Bureau.)

States with legislation or written policy guidelines or regulations to initiate periodic case reviews prior to six months after placement may include such cases in the case record sample. Thus, all children who have been in foster care for at least one periodic case review by September 30, 1981 may be included in the universe of case records to be sampled, i.e., a State which begins the periodic review at 45 days after placement may include children who entered placement by August 16, 1981 or earlier.

As a very small sample is used and items rated "Not Applicable" are given a positive value it is necessary to use a stratified random sample to provide evidence that the case plan, the periodic case review, and the procedural safeguards including the dispositional hearing have been implemented and are operating in accordance with the legislation.

Whichever option is selected, the review by ACYF staff will include 2 principal activities:

-- review of State administrative procedures; and

-- review of a sample of case records.

The following discussion describes the process employed in both components of the review and highlights major issues and concerns based on the pilot review experience and subsequent impact from Federal and State staff who participated in the reviews.

Review of State Administrative Procedures

The review of administrative procedures is designed to determine the State's specific response to the legislative requirements of section 427, as established by State laws, policies, procedures and systems. In effect, the review focuses on the following major administrative components:

--the statewide inventory;

--the statewide information system;

--the case review system; and

--a service program.
1. Inventory
  
  Section 427(a)(1)..."has conducted an inventory of all children who have been in foster care under the responsibility of the State for a period of six months preceding the inventory, and determined the appropriateness of, and necessity for, the current placement, whether the child can be or should be returned to his parents or should be freed for adoption, and the services necessary to facilitate either the return of the child or the placement of the child for adoption or legal guardianship."
  
  Two components are key in determining whether State completion of an inventory satisfies the statutory requirements. First, the process used in conducting the inventory must assure that a complete and accurate listing is made of all children in foster care for at least six months preceding the inventory. While the nature and form of such an inventory may vary from one State to the next, it is important to examine the source(s) of information that comprises the actual inventory.
  
  Second, the State should have procedures for determining the appropriateness of and the necessity for each child's current placement and the services necessary to facilitate permanent placement for each child identified in the inventory. This, too, must be examined during the administrative review stage.
2. Statewide Information System
  
  Sec. 427(a)(2) "...has implemented and is operating to the satisfaction of the Secretary--
  
  "(A) a statewide information system from which the status, demographic characteristics, location and goals of every child in foster care or who has been in such care within the preceding twelve months can readily be determined;"
  
  The attached checklist addresses the four key elements of the information system requirement: demographic characteristics; legal status; location; and placement goals. It is also important to verify that the system contains information on all children in foster care (including those identified in the inventory) and that it is in operation throughout the State.
3. Case Review System
  
  Section 475(5). "The term 'case review system' means a procedure for assuring that--
  
  "(A) each child has a case plan designed to achieve placement in the least restrictive (most family like) setting available and in close proximity to the parents' home, consistent with the best interest and special needs of the child,
  
  "(B) the status of each child is reviewed periodically but no less frequently than once every six months by either a court or by administrative review (as defined in paragraph (6)) in order to determine the continuing necessity for and appropriateness of the placement, the extent of compliance with the case plan, and the extent of process which has been made toward alleviating or mitigating the causes necessitating placement in foster care, and to project a likely date by which the child may be returned home or placed for adoption or legal guardianship, and
  
  "(C) with respect to each such child, procedural safeguards will be applied, among other things, to assure each child in foster care under the supervision of the State of a dispositional hearing to be held, in a family or juvenile court or another court (including a tribal court) of competent jurisdiction, or by an administrative body appointed or approved by the court, no later than eighteen months after the original placement (and periodically thereafter during the continuation of foster care), which hearing shall determine the future status of the child (including, but not limited to, whether the child should be returned to the parent, should be continued in foster care for a specified period, should be placed for adoption, or should (because of the child's special needs or circumstances) be continued in foster care on a permanent or long-term basis);
  
  "and procedural safeguards shall also be applied with respect to parental rights pertaining to the removal of the child from the home of his parents, to a change in the child's placement, and to any determination affecting visitation privileges of parents."
  
  For purposes of the review, and this aspect of the 427 compliance, the attached checklist breaks the major requirements of the case review system down into two components: the case plan and the case review (including the periodic review and dispositional hearings).
  1. Case Plan
    
    Sec. 475(1) "...The term 'case plan' means a written document which includes at least the following: A description of the type of home or institution in which a child is to be placed, including a discussion of the appropriateness of the placement and how the agency which is responsible for the child plans to carry out the judicial determination made with respect to the child in accordance with section 472(a)(1); and that services are provided to the parents, child, and foster parents in order to improve the conditions in the parents' home, facilitate return of the child to his own home or the permanent placement of the child, and address the needs of the child while in foster care, including a discussion of the appropriateness of the services that have been provided to the child under the plan."
  Here again, the form of such a plan may vary from State to State. Thus, it is important to focus on the specific means that a State has employed in addressing the essential elements of the statutory definition (e.g. description of placement setting, discussion of appropriateness of placement, etc.). The attached checklist enumerates seven essential elements.
  1. Case Review
    
    The basic requirements pertaining to the case review (which are part of the overall case review system) are outlined in Sec. 475(5) cited earlier and are contained in the attached checklist.
    
    The checklist attempts to isolate each of these requirements by clustering them into five (5) major groupings. These include items that relate to:
    
    -- specific case plan elements;
    
    -- the requirement for a periodic review;
    
    -- the nature of the periodic review;
    
    -- the nature of an administrative review; and
    
    -- procedural safeguards.
    
    The case plan elements specified as part of the case review system (in Sec. 475(5)(A)) augment the definition of a case plan provided in Sec. 475(1). In this instance, it is important to inquire into the State's formal procedures for assuring the most appropriate placement for the child.
  As for the periodic review, the review team must determine whether the State's procedures provide for a review by a court or for an administrative review as defined in the Act.
  
  When the periodic review is an administrative review, the team must determine that the review is conducted by a panel which includes at least one person who is not responsible for the case management or the delivery of services to the child or parents. This should be verified by the State's procedures and policy manuals and it must be determined how the requirement will be verified in the case record.
  
  Procedures must also be verified for assuring that administrative reviews are open to parental participation.
  
  Lastly, there are items that pertain to procedural safeguards (i.e.; the dispositional hearing and related parental rights).
  
  The dispositional hearing differs from the periodic review in that it requires the involvement of a court or an administrative body acting on behalf of the court; and it requires that a hearing be held with the concomitant due process safeguards that apply to court proceedings.
  
  The review team should examine the State's arrangements with the courts in the conduct of dispositional hearings--both the dispositional hearing required within 18 months of placement and subsequent hearings "periodically thereafter".
  
  When the dates of the dispositional hearing and the periodic review coincide, the dispositional hearing can replace the periodic review. Periodic reviews, however, cannot substitute for dispositional hearings unless they are held in a court or by a body appointed or approved by a court which address the elements required in 475(5)(C).
  
  P.L. 96-272 also emphasizes safeguarding the rights of parents of children in foster care or who may enter foster care. States are required to apply procedural safeguards for certain critical events designated by the Act. The review team should explore the specific safeguards implemented by the State for each of the designated critical events specified in the legislation to assure that there is a system of procedural safeguards in place to protect the rights of parents.
  
  States are free to determine the nature and method of procedural safeguards. These may include prior written notice, verification that notice was received, notification in the language of the recipient to assure understanding, right to review, comment and object to any intended change, right to be represented by counsel before the agency or courts, procedures to assure that objections of parents will be considered by the agency and can be appealed through agency review or hearing processes. Reviewers should identify the States' procedural safeguards, how they can be implemented and what documents or other verification may be found in case records.
4. Service Program
  
  The service program requirements that should be examined during the administrative review of State compliance with P.L. 96-272 are authorized in Sec. 427(a)(2)(C) and Sec. 427(b)(3). These requirements are restated in the attached checklist and are largely self explanatory. One item deals with permanency planning services for those already removed from their homes; the other focuses on preplacement preventive services designed to help children remain with their families.
Review of a Sample of Case Records

The second component of the compliance review requires a review of a sample of foster care case record. The twenty-one (21) case record survey items contained in the attached form are derived directly from sections 472 and 475 of the law.

Assuming that the State has met the 5 major requirements of section 427 (covered in the review of the State's administrative procedures), a minimum of 66% or 88% of sampled cases must be found acceptable for the State to attain conditional compliance or substantial compliance, respectively. To be found acceptable, a case record should show evidence of:

-- a case plan;

-- a periodic review;

-- a dispositional hearing (if applicable); and

-- 13 of the remaining 18 elements of section 427.

Conditional compliance (66% to 79%) allows the State FFP under section 427 for the year under review and provides an additional year for the State to meet the 80% (substantial compliance) level. If 65% or fewer sampled cases are found acceptable, the State would be considered ineligible for its share of funds under section 427.

Additional questions concerning case reviews have been raised as a result of the pilot compliance reviews conducted in Missouri, Utah and Connecticut. Attachment D, "Policy Guidance for Certain Section 427 Requirements" provides information and guidance in dealing with these questions.
Exit Conference and Other Post-Review Activities

On completion of the review, it is expected that the team conduct an exit interview with the State agency administrators in which general impressions of the review may be conveyed. However, binding statements regarding State eligibility should not be made until the review findings have been fully analyzed.

Assuming that the Regional office finds the State in compliance--either substantially or conditionally--

The Regional office should provide the State with a report within 15 work days of the case record review including a summary of the results of the review for each major requirement, and a copy of the form "Report on State Eligibility".

The summary should specify

-- the State's eligibility under section 427(a), and 427(b), if relevant;

-- areas of excellence as well as weak performance; and

-- reasons for each component found to be "not met" with recommendations to achieve conformity with the requirements.

Copies of the team's report and the Report on State Eligibility should be sent to the ACYF Commissioner and to the State Grants Division of the Children's Bureau.

If, on the other hand, the State has not met the requirements, it is expected that the Regional office notify the State of its recommendation of disapproval within 15 work days of the review.

Such a recommendation for disapproval must be made within 15 work days of the review to the Commissioner, ACYF, with copies to the Associate Chief, Children's Bureau and the State Grants Division. The decision package must include:

-- a copy of the Report on State Eligibility; and

-- a draft letter to the State agency for the signature of the Commissioner, ACYF, notifying the State of disapproval with an analysis of the reasons for disapproval and recommendations for actions which would bring the State into compliance.

The final decision will be made by the ACYF Commissioner, after consultation with the Regional Program Director and the Assistant Secretary, HDS. If the recommendation is upheld, a letter of disapproval from the Commissioner will be sent to the State and a copy to the Regional Program Director.

The official file for all section 427 approvals shall be in the Regional Office. The official file for all section 427 denials shall be in the Children's Bureau, Central Office.

/s/
Clarence E. Hodges
Commissioner, ACYF

Attachments:

Attachment A - Report on State Eligibility
Attachment B - State Agency Administrative Review
Attachment C - Case Record Survey
Attachment D - Policy Guidance for Certain Section 427 Requirements
Attachment E - Case Record Sample Survey for Section 427 of the Social Security Act (SSA) Eligibility Determination