West Virginia Department of Health and Human Resources, DAB No. 1437 (1993)
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
SUBJECT: West Virginia Department DATE: September
7, 1993 of Health
and Human Resources Docket No.
A-93-142 Decision No. 1437
DECISION
The West Virginia Department of Health and Human Resources (West
Virginia)
appealed the determination of the Administration for Children
and Families
(ACF) that West Virginia was ineligible for $1,040,447 in
federal funds
advanced to it for fiscal year (FY) 1989 under section 427
of title IV-B of
the Social Security Act (Act). Section 427 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. West
Virginia also
appealed ACF's concurrent determination disallowing
$974,030 which West
Virginia claimed under title IV-E of the Act for
foster care maintenance
payments made for children in voluntary
placements. This disallowance
was also based on West Virginia's failure
to comply with the section 427
requirements.
ACF has established a two-stage process for evaluating states'
eligibility
for section 427 funds. First, ACF conducts an
administrative procedures
review to determine whether a state has
established policies or procedures
for implementing the section 427
requirements. Second, ACF reviews a
sample of case records to determine
whether these policies or procedures were
operational. If a state fails
to establish a requirement as a matter of
policy, or does not comply
with the applicable requirements in a certain
percentage of the cases as
determined through a case sample, ACF requires the
return of the section
427 funds. Under criteria established by ACF,
West Virginia had to
comply with the applicable requirements in 90% of the
cases in order to
be eligible for section 427 funding for FY 1989. 1/
ACF initially approved West Virginia's written request for
additional
funds based on a written certification by West Virginia that it
met the
requirements of section 427. However, based on a review of
sample cases
conducted in May 1992 to validate West Virginia's
self-certification,
ACF determined that West Virginia did not meet the 90%
compliance
standard. The deficiencies for which the sampled cases were
cited
included lack of the case plan, the periodic review, and/or
the
dispositional hearing required by section 427, and failure to
comply
with "minor protections" specified in section 427. West Virginia
Ex. 1
at 1. 2/ ACF subsequently found West Virginia ineligible for the
FY
1989 section 427 funds and disallowed title IV-E funds claimed
for
voluntary placements on this basis as well.
On appeal, West Virginia did not specifically dispute ACF's findings.
It
argued instead that ACF's determinations should be reversed because
the
section 427 requirements for a case review system, which includes a
case
plan, a periodic review and a dispositional hearing, were so vague
as to be
unconstitutional. As discussed below, however, we conclude
that West
Virginia's argument has no merit since these requirements are
clearly
articulated in the statute. Accordingly, we uphold both
ACF's
determination that West Virginia was ineligible for the FY 1989
section
427 funds and its disallowance of the title IV-E funds claimed
for
voluntary placements. 3/
Statutory Provisions
The Adoption Assistance and Child Welfare Act of 1980, Public Law
No.
96-272, amended the program of child welfare services under title
IV-B
of the Act by adding a new section 427 and also established a new
title
IV-E authorizing funding for foster care maintenance payments.
Section
427 provides that states may obtain additional funding for child
welfare
services if they have implemented case plan and case review
procedures
that periodically assess the appropriateness of a child's
placement in
foster care and reevaluate the services provided to assist the
child and
the family. Moreover, a state must comply with all of the
requirements
of section 427 in order to be eligible for title IV-E funds for
children
in voluntary placements. Section 472(d).
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 (as defined in section 475(5)) for
each
child receiving foster care under the supervision of the State
.
. . .
Section 475(5) of title IV-E provides that --
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 progress 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 to the home
or placed for adoption or
legal guardianship, and
(C) . . . 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 . .
.
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) . . . .
Analysis
West Virginia took the position that the statutory requirements for a
case
review system were unconstitutionally vague. 4/ West Virginia
cited in
support of its position Del A. v. Roemer, 777 F. Supp. 1297
(E.D. La. 1991),
a case involving an action filed on behalf of children
in foster care under
the supervision of the state agency alleging
violation of rights arising from
Public Law No. 96-272. West Virginia
noted specifically the court's
conclusion that "the provisions requiring
a case plan and case review system
are so vague and amorphous as to
evade judicial enforcement." 777 F.
Supp. at 1309. West Virginia
reasoned that these provisions were
unconstitutional on due process
grounds because they did not give states fair
warning as to what was
prohibited and because the lack of explicit standards
carried the danger
of arbitrary and discriminatory enforcement.
West Virginia's argument raises an issue which is outside the scope of
the
Board's review. The Board is "bound by all applicable laws
and
regulations." 45 C.F.R. . 16.14. Thus, we have no authority
to reverse
the ACF determination even if we were to conclude that the
controlling
statute is unconstitutionally vague. Delaware Dept. of
Health and
Social Services, DAB No. 732 (1986); Arkansas Dept. of Human
Services,
DAB No. 553 (1984).
West Virginia's argument can nevertheless be viewed as raising an issue
of
statutory interpretation: whether the statute clearly requires
the
foster care protections which ACF found were lacking in the
sample
cases. We conclude, however, that the basic statutory
requirements for
these protections are clear on their face. Both the
Board and the
courts have upheld numerous ACF determinations finding states
ineligible
for section 427 funds based on these requirements. See,
e.g.,
Connecticut Department of Children and Youth Services, DAB No.
952
(1988), aff'd, Connecticut Dept. of Children and Youth Services
v.
Department of Health and Human Services, 788 F. Supp. 573 (D.D.C.
1992).
As noted by the court in Connecticut, these requirements are "couched
in
specific . . . terms." 788 F. Supp. at 578. The statute sets
forth in
considerable detail the function that each of the three protections
in
question--the case plan, the periodic review, and the
dispositional
hearing--is intended to serve, and, in the case of the latter
two
protections, states specifically when the protections are to be
afforded
and in what forum. 5/ Thus, West Virginia's position
that these
requirements are too vague to be enforceable by ACF is simply
not
credible. This is particularly apparent with respect to the
requirement
for a case plan since it appears that in some of West Virginia's
sample
cases, there was no case plan at all. See West Virginia's brief
at 3;
ACF Ex. 1, at 11. There is clearly no doubt that the statute
requires a
case plan.
Even assuming that there was some ambiguity in how these
statutory
provisions should be applied to particular facts, that would
merely
justify a state's reliance on its own reasonable interpretation of
the
provisions (in the absence of timely notice of ACF's
interpretation).
See Connecticut Dept. of Children and Youth Services, DAB
No. 1395
(1993); Illinois Dept. of Children and Family Services, DAB No.
1335
(1992). Here, however, West Virginia has not specifically
identified
any ambiguities in the statute nor has it advanced any
interpretation of
the statute which is contrary to ACF's interpretation.
Moreover, West Virginia's reliance on Roemer is misplaced. In
that
case, the court found that Public Law No. 96-272 did not
create
judicially enforceable rights under the Civil Rights Act or imply
a
private right of action for children in foster care. In this
context,
the language quoted by West Virginia (concluding that the
requirements
for a case review system were "vague and amorphous") does not
support
West Virginia's position that ACF may not withdraw funding from a
state
based on a finding that the state has not complied with section
427.
The court was concerned that, in order to determine whether
the
requirement for a case plan in particular was met, an
individualized
assessment of the needs of the child would have to be
made. While a
court might not have the expertise to make such an
assessment, however,
ACF clearly does. Thus, the court's conclusion
does not preclude a
finding that the section 427 requirements are
administratively
enforceable. Indeed, the court specifically stated
that "[t]he contents
of the case plan and the case review procedure are
adequately delineated
in [the statute]." 777 F. Supp. at 1309.
Furthermore, West Virginia's argument that the statute is unclear
is
undermined by the fact that the majority of sample cases were
found
acceptable. Although West Virginia did not meet the 90%
compliance
standard, ACF found that 89% of the sample cases had acceptable
case
plans, 72% of the sample cases had acceptable periodic reviews, and
63%
of the sample cases had acceptable dispositional hearings. See
West
Virginia Ex. 2, letter dated 11/20/92, at 1. West Virginia was
unlikely
to have achieved this level of compliance if the meaning of the
statute
were truly unclear. In fact, West Virginia itself originally
attributed
its failure to meet the 90% compliance standard to a decrease in
social
services' staff, which it said affected periodic reviews, and
to
problems with its judiciary, which it said affected
dispositional
hearings. West Virginia Ex. 2, letter dated
12/4/92. Thus, West
Virginia's argument on appeal does not appear to
reflect the inability
of its program administrators to understand the
statute. 6/
Conclusion
For the foregoing reasons, we conclude that ACF properly determined
that
West Virginia did not meet the requirements of section 427 in FY
1989.
Accordingly, we sustain ACF's determination that West Virginia
was
ineligible for $1,040,447 available under section 427 and
disallowing
$974,030 in title IV-E funds claimed for children in
voluntary
placements for that year.
________________________ Donald
F.
Garrett
________________________ Norval
D.
(John) Settle
________________________ Judith
A.
Ballard Presiding Board Member
1. ACF established a 90% compliance standard for
triennial reviews
of compliance with the section 427 requirements, such as
the review in
question here. A lesser rate of compliance was required
for earlier
reviews. ACF Exhibit (Ex.) 3, at 7 (1988 Section 427 Review
Handbook,
at 5).
2. ACF stated that it was able to determine that West
Virginia
failed to comply with the section 427 requirements in 90% of
cases
subject to the section 427 protections based on a review of only 14
of
150 sample cases. However, ACF indicated that this determination
was
confirmed by its analysis of the remaining cases. West Virginia Ex.
1,
at 2.
3. After the parties filed briefs in this case,
Congress enacted a
moratorium on the collection of certain disallowances
under Parts B or E
of title IV of the Act. Section 13716 of the Omnibus
Reconciliation Act
of 1993 (effective August 14, 1993) provides in part that
--
The Secretary of Health and Human Services shall not,
before
October 1, 1994-- (1) reduce any payment to, withhold
any
payment from, or seek any repayment from any State under
part
B or E of title IV of the Social Security Act by reason of
a
determination made in connection with a review of
State
compliance with section 427 of such Act for any Federal
fiscal
year before fiscal year 1995 . . . .
Since the case was fully briefed and since our role is simply to issue
the
final Department determination on compliance (rather than actually
to collect
the funds), we determined that it would be appropriate for us
to proceed to
decision without asking the parties to comment on the
effect of the
moratorium.
4. One of the sample cases at issue, sample no. 9,
involved only a
finding that West Virginia failed to comply with "minor
protections"
required by section 427. West Virginia Ex. 1, at 1.
Since West
Virginia did not challenge this finding, we sustain it without
further
consideration. All of the remaining sample cases were
found
unacceptable based on the lack of compliance with one or more of
the
requirements challenged by West Virginia. Id.
5. Moreover, as ACF noted, it informed state agencies
of the
statutory requirements in two policy directives which were sent to
all
state agencies prior to the year in question here: Program
Instruction
85-2, dated January 29, 1985, and a Review Handbook, dated August
1988
(ACF Ex. 2 and 3). Although these directives track the language of
the
statute, they break down each requirement into several elements in
order
to make the requirement more easily understood.
6. Moreover, if West Virginia in fact found the
section 427
requirements too vague to implement, then presumably it would not
have
certified that it met those