Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
SUBJECT: Massachusetts Department of Social Services
DATE: January 7, 1992
Docket No. 90-138
Decision No. 1289
DECISION
The Massachusetts Department of Social Services (Massachusetts or
State)
appealed the determination of the Administration for Children
and
Families (Agency) that the State was ineligible for $1,838,495
advanced
to it for fiscal year (FY) 1988 under section 427 of title IV-B of
the
Social Security Act (Act). Section 427 of the Act provides that a
state
may receive additional funds for child welfare services, beyond
the
amount available under section 420 of the Act, if the state
meets
certain requirements for protecting children in foster care.
The Agency evaluated states' compliance with section 427 on two
levels.
First the Agency determined whether a state had established policies
or
procedures for implementing the requirements of the Act. Second,
the
Agency reviewed a sample of case records to determine whether
these
policies or procedures were operational. If a state failed to
establish
a requirement as a matter of policy, or a state did not comply with
the
applicable requirements in a certain percentage of the cases
as
determined through a case sample, the Agency required the return of
the
section 427 funds.
In this case, however, the Agency approved Massachusetts' policies
and
procedures but found the State ineligible without conducting a
case
record survey. The determination of ineligibility was based on
the
Agency's rejection of the sampling methodology proposed by the State
for
a case record survey to determine compliance with section 427.
As
pertinent here, the State proposed to exclude from the universe for
the
sample certain children in voluntary placements whom it identified
as
"discretionary special needs children" (special needs children).
The
State also proposed to have the universe include cases which had
been
open for less than six consecutive months during FY 1988 and cases
which
were closed as of the end of FY 1988. The Agency concluded that
this
sampling methodology was invalid and that the State should be
found
ineligible for the section 427 funds since a case record survey
could
not be conducted based on this methodology. At the hearing held
in this
case, however, the Agency stated that the proper remedy was to
permit
the Agency to conduct a case record survey using the
sampling
methodology which it had determined was correct. Transcript of
hearing
(TR) 21. The State agreed that this would be appropriate if the
Board
were to agree with the Agency regarding the sampling methodology.
Id.
For the reasons stated below, we conclude that the Agency
properly
rejected the State's proposed sampling methodology. Therefore,
in
accordance with the agreement of the parties, we remand the appeal
to
the Agency to conduct a case record survey using the
methodology
required by the Agency here.
Applicable Law and Guidelines
The Adoption Assistance and Child Welfare Act of 1980, Public Law
96-272,
amended the program of child welfare services under title IV-B
of the Act and
also established a new foster care maintenance program
under title IV-E of
the Act. These amendments were precipitated by
studies which showed
that the public child welfare system had become a
holding system for children
living away from parents, rather than a
system assisting parents in carrying
out their roles and
responsibilities and providing for alternative permanent
placement for
children who cannot return to their own homes. Thus, one
of the goals
of Public Law 96-272 was to ensure that children do not remain
adrift in
the foster care system. To this end, the statute provided
that states
could obtain additional funding for child welfare services if
they had
implemented case plan and case review procedures that
periodically
assessed the appropriateness of a child's placement in foster
care and
reevaluated the services provided to assist the child and the
family.
See 48 Fed. Reg. 23104 (May 23, 1983).
As pertinent here, section 427(a)(2)(B) requires as a condition
for
receipt of section 427 funds that a state have implemented and
be
operating to the satisfaction of the Secretary --
A case review system . . . for each child receiving foster
care
under the supervision of the State . . .
An Agency issuance, ACYF-PIQ-82-12, dated July 12, 1982, identified
two
salient factors in determining what children should be covered by
the
case review system (as well as other section 427 requirements).
The
first factor was whether the child is in foster care. The second
factor
was whether the child is "under the responsibility of the state
agency
administering or supervising the administration of the title
IV-A(FC),
IV-E, or IV-B State plan[.]" With regard to the second
factor, the PIQ
further stated that "[a] controlling indicator . . . is
whether the
State agency has the responsibility for care and placement of the
child
and the power to determine the child's placement."
ACYF-PIQ-82-12, p. 4
(at State's appeal file, exhibit (ex.) 9).
As part of its compliance review process, the Agency conducted a
case
record survey. In the first year of certifying compliance with
section
427 requirements, a state was found eligible if the section
427
protections were provided in 66% of the sampled cases. The
compliance
rate increased to 80% for subsequent reviews and 90% for
triennial
reviews. PI-82-06, dated June 3, 1982, p. 11 (at Agency ex.
3). The
Agency also took into consideration problems which states might
have in
their initial year of operation by accepting sample cases if the
section
427 procedures were implemented by the end of the year and by
applying
grace periods so that states were not penalized when reviews or
hearings
were late only by a matter of days. Id; see also Maryland
Dept. of
Human Resources, DAB No. 706 (1985), p. 7.
The Agency specified the composition of the universe for the case
record
survey in its Section 427 Review Handbook (dated August 1988),
which
stated in pertinent part:
For the Initial Review, the sample must include children
who
have been in foster care for at least six consecutive
months
during the fiscal year under review and whose case is still
open
at the end of the fiscal year. This includes all children
who
entered care before 4/1 and are still in care on 9/30 of
the
year under review.
For Subsequent and Triennial Reviews, the sample must
include
both open and closed cases provided they were open for at
least
six consecutive months during the fiscal year under review.
State ex. 14, p. 6. PI-82-06 referred specifically to the case
record
survey for initial reviews for the year ended September 30, 1981,
and
similarly required that the children sampled have been in foster
care
six months or more as of that date. See PI-82-06, Attachment E,
pp. 4,
8.
Factual Background
FY 1988 was the first year for which the State certified that it had
a
section 427 program in operation. (A certification submitted for
two
earlier years was withdrawn.) The Agency notified the State on
November
17, 1988 that it was initiating a review to verify compliance
with
section 427 requirements. The Agency requested that the State
provide
certain information to enable the Agency to determine whether
the
State's administrative procedures complied with section 427. The
Agency
also requested that the State identify the universe of foster care
cases
for a case record survey to determine whether the
administrative
procedures had been implemented.
In a letter responding to the latter request, the State
specifically
requested that one category of children not be included in the
universe,
stating in pertinent part:
This category is defined as those children in placement
through
a discretionary/special needs voluntary agreement with
the
parents. In this regard, a "discretionary/special
needs"
voluntary placement case is one in which the [State] agency
has
agreed to assume responsibility for the care of a child in
order
to be able to supply him/her with special services that
the
child would not otherwise be able to obtain (e.g.,
special
education services; residential treatment; etc.). This
type of
voluntary placement case is generally opened in response to
the
service needs of the child rather than in response to actions
or
limitations of the parent. Further, there is no
Federal
involvement in these cases as the Department will exclude
them
from Title IV-E claims.
State ex. 5 at 2.
By letter dated July 16, 1989, the Agency notified the State that
its
administrative procedures had been approved. However, the Agency
also
indicated that special needs children were not appropriately
excluded
from the section 427 universe, stating:
In the absence of any distinction in policies, procedures,
or
placement agreement which applied to children in
voluntary
foster care during FFY [federal fiscal year] 1988 there is
no
basis in administrative procedures to differentiate
these
children from the universe of cases from which the sample
will
be drawn. The policy and procedural changes being proposed
for
FFY 1989 appear to establish a distinct program for children
in
the special needs category and leave parental rights of
care
intact. These policies were not in effect during FFY 1988
and
therefore are not a basis to conclude that these children
were
not in foster care as defined by Policy Announcement 87-02.
State ex. 6 at 4.
In response, the State advised the Agency that it had requested
a
recommendation from its legal counsel concerning how to proceed
with
respect to the Agency's determination regarding special needs
children.
The State also indicated that there might be "other points of
conflict
between DSS [Department of Social Services] and your agency as
regards
the delineation of the Section 427 universe." State ex. 7 at
4.
Specifically, the State stated that it was unreasonable for the
Agency
to require that it "only include those cases which were in
its
care/custody for at least six (6) months during the fiscal year
under
review and which were still open on the last day of that fiscal
year."
Id. The letter articulated the State's view that --
this requirement is arbitrary and capricious (i.e., it
could
force DSS to exclude cases that had been in care for up
to
eleven (11) months and twenty-nine (29) days) -- and it
unfairly
penalizes DSS with regard to those out-of-home care cases
for
which the agency has achieved a timely reunification (i.e., if
a
child is returned home before (s)he has been in care for
fewer
than six months, the agency is not allowed to count that
case
even though it is an obvious "success" in terms of
the
underlying intent and purpose of P.L. 96-272).
Id. The State indicated that it was awaiting a recommendation from
its
legal counsel about how to proceed with regard to this matter as
well.
The State ultimately submitted a proposed sampling methodology
which
excluded special needs children and included cases which had not
been
open at least six months during the fiscal year or which were not
open
at the end of the fiscal year. The Agency subsequently determined
that
the State was ineligible for FY 1988 section 427 funds because of
these
aspects of its sampling methodology.
Below, we discuss first whether the universe for the case record
survey
should include special needs children and then whether the
universe
should include only cases which were open for at least six months
during
the fiscal year and remained open at the end of the fiscal year.
Discussion
Special Needs Children
This case presents the issue whether, during FY 1988, the State
was
required to provide the section 427 protections to children in
foster
care whom the State later identified as special needs children.
The
State admitted that it had no official policy or procedure
which
distinguished special needs children from other children in
voluntary
placements who were covered by section 427. Indeed, the
State
acknowledged that it used the same voluntary placement agreement
(at
State ex. 22) for special needs children as for other children
in
voluntary placements. The State also admitted that special
needs
children were "receiving foster care" within the meaning of
section
427(a)(2)(B). However, the State argued that they were not
covered by
section 427 because they were not "under the supervision of the
State"
within the meaning of this section. The State asserted that the
absence
of State supervision was manifest in the way in which special
needs
children were treated as a matter of practice, which, according to
the
State, differed markedly from the way in which other voluntarily
placed
children were treated. The practical distinctions alleged by the
State
included the following:
1. Other voluntary placements occurred in
cases in which there was
actual or suspected abuse
or neglect, whereas a special needs child
was placed
solely to allow the State to assist the parents with
the
costs of meeting the child's special needs.
2. Placement decisions for special needs
children were made by the
child's family: the child
would not be placed if the child's family
did not
agree to the placement and any placement would be
terminated at the parents' request. Placement decisions for
other
children in voluntary care were ultimately
made by the State, which
would seek an order from a
court for involuntary placement of the
child if the
parents did not agree to placement initially or
objected to the child's continuation in foster care.
3. Most special needs children were placed in
group care and
residential treatment
facilities. Other children in voluntary
placements were usually placed in foster homes.
4. The State agency had minimal contact with
the facility in which
the special needs child was
placed. In the case of other
voluntarily
placed children, the caseworker would be in constant
touch with the foster home and the child's biological family.
5. The responsibility for decisions concerning
the child's
education and medical treatment rested
with the biological parents
of the special needs
child, but with the foster parents of other
children
in voluntary placements.
6. Parents of other children in voluntary
placements often had an
agreement with the State to
attend Alcoholics Anonymous meetings,
substance
abuse programs, or therapy to address their abuse of
the
child. There were no comparable
requirements for parents of
special needs
children.
7. The State did not monitor the child or the
family situation
after the placement of a special
needs child was terminated,
whereas the State would
continue to monitor the situation for up to
six
months in the case of other children who returned
home
following a voluntary placement.
8. The State did not claim title IV-E funding
for special needs
children but did claim such
funding for other children in voluntary
placements.
We reject the State's position that special needs children should
be
excluded from the universe for the section 427 case record survey
for
the following reasons:
o The basic issue here is whether the State
had responsibility for
the care and placement of
special needs children and the power to
determine
their placement or, in other words, whether these
children were under the supervision of the State. The State's
own
description of special needs children (used in
its inventory of
children in foster care) was as
children for whose care the State
had the
responsibility. State ex. 3. Moreover, the
voluntary
placement agreement in effect at this time
explicitly gave the
State the power to determine
where the child would be placed; the
mere practice
of consulting with parents on placement of special
needs children (a practice which the agreement
specifically
authorized with respect to all
children), would not deprive the
State of the power
accorded to the State by the agreement. See
State ex. 22, para. 5.
o The State's own testimony showed that the
State clearly
understood that special needs children
were in the section 427
universe. Both State
witnesses testified that the State had
developed a
program (known as the parenting partnership program)
specifically to remove these children from the section
427
universe, knowing that section 427 funding was
in jeopardy because
these children were not
receiving dispositional hearings at 18
months, as
required by the Act. TR 44-50, 64, 75, 105-107;
see
also TR 204-205. The State did not
implement the program until
1989 for political
reasons, not because the State did not know
earlier
the potential effect on section 427 funds of the failure
to
change its relationship with these
children. TR 51-52.
o The State presented no convincing evidence
to show that it in
fact applied an interpretation of
its policies that distinguished
between types of
voluntary placements. The State presented no
testimony from any caseworker that the alleged distinctions
between
special needs children and other children in
voluntary placements
affected actual casework
practice during the period in question
here, nor any
case record documentation showing the distinctions.
The State's main witness was the Director of External Relations
for
the Department of Social Services, whose primary
responsibility was
ensuring receipt of federal
funds. TR 25, 27. While he expressed
his
opinion that the "overall responsibility" for care of a
special
needs child fell to the parents and that the
"supervision or
control of the child during the time
the child was in placement"
rested between the
parents and the residential treatment facility
(TR
39), this opinion was obviously based on his general
impression
of the situation rather than a first-hand
knowledge of specific
cases and ignored the child's
legal status under the voluntary
placement
agreement.
o In any event, as discussed below, we find
based on the evidence
in the record that the State
did not in practice clearly
distinguish special
needs children from other children in voluntary
placements who were admittedly receiving foster care under
the
supervision of the State. It appears from
the State's own
description of its practice that
many of the alleged distinctions
were not present in
every case. Other alleged distinctions were
contrary to the express terms of the voluntary placement
agreement
used for both special needs children and
other voluntarily placed
children. Moreover,
some of the alleged distinctions do not have
any
bearing on the question whether special needs children
were
under the supervision of the State.
We find specifically that the State's reliance on some of the
alleged
distinctions is unwarranted because there was some overlap
possible
between special needs placements and other voluntary
placements. For
example, while the State alleged a distinction on the
basis of whether
placement resulted from abuse/neglect, the State did not
rule out the
possibility that reports of abuse/neglect had led to the
placement of
some special needs children. See TR 87-89. Moreover,
the State did not
address how it treated children who were placed because
they were
delinquent or out of control. Since some such children might
have
warranted treatment as special needs children, the basis for
placement
is not necessarily a distinguishing factor.
The State also alleged that most special needs children were in group
care
and residential treatment facilities; however, since some special
needs
children were in foster homes, this is not a distinguishing
factor. See
TR 33. (There is no dispute that children in all three
types of
placements were in foster care, moreover.) In any event, while
the
characteristics of the special needs children may have influenced
the reason
for placement and the type of placement, that does not show
that the State
considered itself as having no responsibility for the
children.
In addition, the record does not support the State's allegation that
it
could not seek a court order to continue a special needs child in
foster
care over the objection of a parent. Instead, the voluntary
placement
agreement used for all voluntarily placed children specifically
states
that "[i]f the parent(s) terminates this Agreement by giving
written
notice to D.S.S., and D.S.S. believes that returning the child(ren)
home
will place the child(ren) at risk of abuse or neglect, D.S.S.
may
petition a court of competent jurisdiction for custody of the
child(ren)
. . . ." State ex. 22, para. 2. In addition, even if
the State could
not seek a court order to remove special needs children from
their
parents initially, this does not distinguish special needs children
from
other children in voluntary placements, but rather distinguishes
all
voluntarily placed children from children who were placed pursuant to
a
court order. Moreover, the inability of the State to seek a
court
order with respect to special needs children would not have any
bearing
on whether these children were supervised by the State while a
voluntary
placement agreement was in effect.
Similarly, whether or not the State monitored a case after the
termination
of the voluntary placement is not a useful distinction for
purposes of this
appeal since it does not show whether or not the State
was responsible for
the supervision of the child while the child was in
foster care.
The State also failed to demonstrate that the degree of contact
between
the State and the foster care facility was a distinguishing
factor.
While the State indicated that there was minimal contact in the case
of
special needs children and constant contact in the case of
other
voluntarily placed children, it did not specify a point at which
the
degree of contact, which would likely vary depending on the
particular
circumstances of a case, would clearly identify a case as one type
of
case or the other. Moreover, one State witness acknowledged that
some
contacts would be made with a residential facility in which a
special
needs child was placed. TR 34. Fewer contacts simply
indicates a
lesser degree of supervision of special needs children, not a
lack of
supervisory responsibility.
Furthermore, while the State alleged that special needs children
differed
from other voluntarily placed children with respect to how
decisions
concerning their medical treatment were handled, there was no
indication of
such a difference in the voluntary placement form used for
all children,
which stated "DSS shall have the right to approve any and
all routine and
emergency medical, psychological, and dental care,
testing or studies."
State ex. 22, para. 8. Moreover, the State
acknowledged that it had no
policy of communicating to foster parents of
special needs children that they
should consult with the natural parents
before arranging medical or dental
services for the child. TR 85.
Thus, this was not a distinguishing
factor.
In addition, it was not a distinguishing factor that parents of
special
needs children were not required to participate in AA programs or
the
like since parents of other children in voluntary placements were
not
always required to do so.
We also disagree that the absence of any claim for title IV-E funding
for
special needs children is a significant distinguishing factor.
As
previously noted, section 427 requires that certain protections
be
provided to all children receiving foster care under the supervision
of
the state. The State did not point to anything in the language of
the
statute which further limits the scope of the section to only
those
children for whom title IV-E funding is claimed. If the children
were
otherwise covered by section 427, the State cannot exclude them from
its
coverage merely by choosing not to claim title IV-E funding for
them.
This view is not inconsistent with Illinois Dept. of Children and
Family
Services, DAB No. 1037 (1989). The Board stated in that decision
that
if there were any title IV-E claims, this would undermine
Illinois's
contention that the children in question were not in foster care
since
Illinois had effectively acknowledged that title IV-E children were
in
foster care. It does not necessarily follow that the lack of title
IV-E
claims means that the children at issue here were not in foster
care.
We also note that, while the State indicated that it could
identify
special needs children by using an inventory of foster care
children
taken by the State in September 1988, this does not mean that
a
distinction was made as a matter of practice prior to that time.
The
inventory required caseworkers to identify each voluntarily placed
child
in the inventory as either a special needs or a
preventive/protective
placement. This was done based on how each case
was actually handled.
However, if a child was not identified as a special
needs child when the
voluntary placement agreement was entered into, then the
State had the
same responsibility for the child's placement and care as it
did for any
other voluntarily placed child, regardless of whether it
exercised this
responsibility.
We therefore find that the State's treatment of special needs children
did
not differ from that of other voluntarily placed children in such a
way as to
show that special needs children, unlike the other children,
were not "under
the supervision of the State." This does not mean that
there were no
differences between special needs children and other
children in voluntary
placements, or that special needs children would
necessarily have benefitted
from the section 427 protections to the same
extent as the other
children. Nevertheless, there was clearly some
benefit to be obtained
from the application of the section 427
protections to special needs
children. The State itself acknowledged
that permanency planning was
required for special needs children as well
as for other voluntarily placed
children. TR 87. The purpose of the
section 427 protections is to
assure that such planning is done
initially and that progress towards
achieving permanancy (i.e., by
returning the child to his parents, adoption
or placement in permanent
foster care) is evaluated periodically. The
State stated that it
required a case plan, one of the section 427
protections, for all
children in foster care, including special needs
children. TR 92. It
appears, moreover, that the State also
provided periodic reviews for
special needs children. See TR 49.
Thus, the application of the
section 427 protections to these children would
have furthered the
purposes of the Act.
Accordingly, we conclude that the special needs children were under
the
supervision of the State. The legal status of these children
was
determined by a voluntary placement agreement which gave the State
the
ultimate authority to determine their placement; thus, even if the
State
did not fully exercise this authority in practice, these children
were
under the supervision of the State. The State itself was aware
that
special needs children were in the section 427 universe by virtue
of
their legal status, and developed but failed to implement in time a
new
voluntary placement agreement which provided that the parents
remained
responsible for these children. Furthermore, the evidence
provided by
the State in support of its argument that special needs children
were
not as a matter of practice considered under the supervision of
the
State was not persuasive. The State relied on broad generalizations
by
individuals with no first-hand knowledge of how these children
were
treated. In addition, the distinctions which these individuals
alleged
existed were more apparent than real, and did not in many instances
have
any bearing on the issue of whether the children were under
the
supervision of the State. Thus, the Agency was justified in
requiring
that special needs children be included in the universe for the
section
427 case record survey.
Six-Month and End-of-Year Requirements
The State challenged the Agency's position that the case record
survey
should exclude children who were not in foster care at least six
months
during the fiscal year or who were not in foster care as of the end
of
the fiscal year. The State argued that both of these requirements
were
arbitrary and capricious because they excluded cases which might
have
had an appropriate case plan, periodic review, and
dispositional
hearing, while including cases in which the identical actions
might have
been taken. In addition, the State argued that the
end-of-year
requirement was arbitrary and capricious because it applied only
to
initial reviews and not to subsequent or triennial reviews. The
State
also argued that the six-month requirement was unreasonable because
it
excluded cases in which the State achieved the statutory purpose
of
eliminating foster care drift by closing the cases in a short period
of
time. Finally, the State asserted that it might skew the accuracy
of
the case record survey to exclude cases not meeting these
requirements,
noting that the Agency had failed to obtain information about
the type
or number of excluded cases from which the effect of the
requirements
could be determined.
The Agency presented testimony regarding the six-month and
end-of-year
requirements from a witness who had participated in a task force
to
develop procedures for measuring section 427 requirements. The
witness
stated that the six-month requirement was established so that the
sample
could measure progress toward permanency at the critical junction,
i.e.,
when the periodic review was due, and that the
end-of-the-year
requirement was adopted because the Agency wanted to focus on
current
cases. TR 188-189, 199. She also testified that if a case
had been
closed by the end of the fiscal year, in effect some action had
been
taken to remove the problem of foster care drift for that child.
TR
200. While the Agency's other witness had a different understanding
of
the reasons for the requirements, the Agency noted that the
requirements
were clearly set out in its Section 427 Review Handbook and
argued that
it was unreasonable to expect the Agency to change the rules
for
Massachusetts, one of the last states to implement the section
427
program.
The Board has considered states' challenges to the six-month
and
end-of-year requirements in several earlier decisions. In
Arkansas
Dept. of Human Services, DAB No. 553 (1984), the Board first noted
the
language in section 427(a)(2)(B) of the Act requiring states to
operate
"to the satisfaction of the Secretary" a case review system "for
each
child in foster care . . . ." The Board then stated:
The Agency could have therefore required compliance with
the
applicable safeguards in 100% of a state's foster care
caseload
for fiscal year 1982, with some leeway for minor
violations.
The Agency instead selected only a portion of the caseload
for
review and required compliance with the applicable safeguards
in
80% of the cases reviewed. [Footnote omitted.] We see
no
reason why the Agency should have been required to draw a
sample
from the entire caseload.
Arkansas, supra, p. 10. Accordingly, the Board found that both
the
six-month requirement and the end-of-year requirement were
justified
(although the latter was not disputed by Arkansas) on the basis
that
"the Agency had reasonable discretion in choosing the cases to
be
reviewed." Arkansas, supra, p. 9, n. 7. In Wyoming Dept. of
Health and
Social Services, DAB No. 554 (1984), the Board upheld both the
six-month
requirement and the end-of-year requirement, and in Florida Dept.
of
Health and Rehabilitative Services, DAB No. 643 (1985), the Board
upheld
the six-month requirement (the end-of-year requirement not
being
applicable to the subsequent review at issue in that case).
After examining these precedents in light of the arguments made here
by
the State, we once again conclude that the Agency was justified
in
applying the six-month and end-of-year limitations on the universe
for
the case record survey. The State did not advance any reason why
the
Board erred in finding that the language of the statute gives the
Agency
discretion to choose which cases will be reviewed. Thus, the
Agency was
justified in excluding certain cases from the universe even if
the
reasons for the limitations do not apply in every case since
the
limitations are not unreasonable on their face and were
applied
consistently to all participating states.
The State nevertheless suggested that it was an abuse of discretion
to
exclude certain cases from a state's universe if the effect was to
bias
the sample against the state. However, the State admitted that
there
was no information based on which it could be determined "whether
the
requirements are helpful, detrimental, or neutral from a
particular
State's . . . [perspective]." State's post-hearing brief
dated
10/11/91, p. 20. While the State argued that the Agency should
have
ascertained whether its requirements might bias the sample against
the
State before it applied these requirements, we see no reason to
impose
that burden on the Agency where the requirements appear neutral on
their
face.
Moreover, even if the six-month and end-of-year requirements did result
in
some bias against the State, this was more than offset by the Agency
policy
which provided that, if 66% of the cases in the sample complied
with the
section 427 requirements, a state passed the case record
survey. The
Board has previously held that the rate of compliance
necessary to pass a
case record survey is within the Agency's discretion
as well. Maryland
Dept. of Human Resources, DAB No. 706 (1985);
Connecticut Dept. of Children
and Youth Services, DAB No. 952 (1988).
If the Agency had adopted a different
policy on what cases to include in
the universe (based on the rationale that
the cases at issue here were
more likely to pass than some other cases), the
Agency could have
reasonably adopted a higher rate of compliance. In
our view, the Agency
is not arbitrary in applying a consistent sampling
policy and compliance
rate to all states and refusing to accept the State's
proposed sampling
plan. That plan would lead to sample results which
could not fairly be
compared to those of other states, nor fairly measured
using the same
compliance rate.
Finally, we do not agree that the six-month requirement defeats
the
underlying statutory purpose of eliminating foster care drift.
The
State argued specifically that, due to this requirement, a case
which
could be closed within six months might be kept open if the section
427
protections had been provided so that it could be included in the
case
record survey as a passing case. However, the Agency
provided
uncontradicted testimony that this would be generally
considered
unethical conduct for a social worker and was thus not likely to
occur.
TR 176-177. In any event, viewed another way, the Agency's
review of
only cases which have been open at least six months and are open at
the
end of the fiscal year furthers the statutory purpose of
eliminating
foster care drift because it focuses attention on those cases
which are
currently most in need of the section 427 protections.
Conclusion
For the foregoing reasons, we find that the Agency properly required
that
the universe for the State's FY 1988 case record survey (1) include
special
needs children, (2) exclude children in foster care less than
six consecutive
months during the fiscal year, and (3) exclude children
no longer in foster
care at the end of the fiscal year. Accordingly,
pursuant to the
parties' agreement, we remand the case to the Agency to
conduct a case record
survey using a sample drawn from such a universe.
_____________________________ Donald F. Garrett
_____________________________ Norval D. (John) Settle
_____________________________ Judith A. Ballard Presiding
Board