SUBJECT: Missouri Department Of
Social Services,

DECISION

The Missouri Department of Social Services (DSS) appealed eight disallowances totaling $13,172,236 that Missouri claimed as administrative costs under the foster care program of title IV-E of the Social Security Act (Act), for the period January 1, 2001 through June 30, 2003. Missouri claimed the disallowed amounts as reimbursement for the cost of activities related to foster care cases performed by Juvenile Officers employed by Missouri's court system. Juvenile Officers are the individuals authorized by Missouri law to remove children from their homes in cases of neglect or abuse, and they also participate, along with the employees of DSS, in other foster care activities, including the development of case plans and court petitions for foster care children.

Missouri claimed the disallowed costs pursuant to an agreement between DSS, its state IV-E agency, and the Office of State Courts Administrator (OSCA), which oversees the Juvenile Officers and provides administrative services to Missouri's courts. Missouri argued that the agreement enabled it to claim federal financial participation (FFP) for the Juvenile Officers' activities under section 472(a) of the Act, which directs states to make foster care maintenance payments on behalf of eligible children whose placement and care are the responsibility of either the state IV-E agency, or "any other public agency" with whom the state agency has made an agreement. ACF disallowed the claims on the grounds that the agreement with OSCA did not satisfy the Act's criteria for when state agencies other than the state IV-E agency may perform reimbursable foster care activities, and because the criteria that the Juvenile Officers used to allocate their time to foster care cases were too broad and could result in Missouri claiming unallowable administrative costs. ⁽¹⁾ The record in this appeal consists of the parties' briefs, the transcript of an in-person hearing held by the Board on February 12 and 13, 2003, and the parties' post-hearing briefs.

For the reasons explained below, we sustain the disallowance of these costs as not necessary for the proper and efficient administration of Missouri's IV-E program. Section 471(a) of the Act requires that the designated state IV-E agency administers or supervises the administration of the state's IV-E program. DSS could not claim FFP for the Juvenile Officers' activities at issue here because DSS did not administer those activities and did not supervise the Juvenile Officers' or OSCA's administration of those activities as required by section 471. Moreover, the section 472 requirement relating to IV-E eligible children that Missouri relied on is unavailing as a basis for funding the disputed activities. Section 472 contemplates that IV-E children would not lose their eligibility if a public agency other than the designated state IV-E agency is responsible for their placement and care. Missouri failed to establish that either OSCA or the Juvenile Officers in fact had the responsibility for the placement and care of IV-E children in Missouri in lieu of DSS, and the evidence instead indicated that IV-E children in Missouri are placed by courts into the care and custody of DSS. ACF's implementation of the foregoing statutory provisions is consistent with the limited nature of the foster care program and the limited number of activities that may be claimed as administrative costs under the program. As we find that the claimed costs were unallowable for these reasons, we do not address ACF's other basis for the disallowance, its claim that the criteria that the Juvenile Officers used to allocate their time to foster care cases were too broad.

Applicable law and regulations

Title IV-E was originally enacted as part of the Adoption Assistance and Child Welfare Act of 1980, Public Law No. 96-272. Title IV-E authorizes appropriations to enable states to provide, in appropriate cases, maintenance payments for foster care children who would otherwise have been eligible for assistance under the former Aid to Families with Dependent Children program (AFDC) of title IV-A of the Act and adoption assistance for children with special needs. ⁽²⁾

To be eligible for federal funding for IV-E expenditures, a state must have a plan approved by the Secretary which (among other requirements)--

(1) provides for foster care maintenance payments in accordance with section 472 and for adoption assistance in accordance with section 473;

(2) provides that the State agency responsible for administering the program authorized by subpart 1 of part B of this title [child welfare services] shall administer, or supervise the administration of, the program authorized by this part; . . .

Section 471(a) of the Act.

Section 472 in turn provides for foster care maintenance payments with respect to a child who would have been eligible for assistance under the former AFDC program but for his removal from the home of a specified relative, if certain conditions are met (e.g., the removal occurred pursuant to a voluntary placement agreement by the child's parent or legal guardian, or was the result of a judicial determination to the effect that keeping the child in the home would be contrary to the child's welfare and that reasonable efforts have been made to keep the child in his home). Section 472 goes on to require that --

such child's placement and care are the responsibility of (A) the State agency administering the State plan approved under section 471, or (B) any other public agency with whom the State agency administering or supervising the administration of the State plan approved under section 471 has made an agreement which is still in effect . . .

Section 472(a)(2) of the Act.

Under section 474 of the Act, a state may receive federal funding, at specified rates, for foster care maintenance payments, adoption assistance payments, and for expenditures "found necessary by the Secretary for the provision of child placement services and for the proper and efficient administration of the State plan" under title IV-E. Section 474(a)(1)-(3) of the Act.

At 45 C.F.R. � 1356.60(c)(2), ACF has listed the following "examples of allowable administrative costs necessary for the administration of the foster care program:"

(i) Referral to services;
(ii) Preparation for and participation in judicial determinations;
(iii) Placement of the child;
(iv) Development of the case plan;
(v) Case reviews;
(vi) Case management and supervision;
(vii) Recruitment and licensing of foster homes and institutions;
(viii) Rate setting; and
(ix) A proportionate share of related agency overhead.
(x) Costs related to data collection and reporting.

The Board has held that an allowable administrative activity must be one of the nine activities specifically listed in the regulation or closely related to one of the listed activities. Illinois Dept. of Children and Family Services, DAB No. 1530, at 26-27 (1995); New York Dept. of Social Services, DAB No. 1428, at 10 (1983), aff'd, New York v. Shalala, No. 96 CIV. 8464 (JFK), 1998 WL 150955 (S.D. N.Y. Apr. 1, 1998). At 45 C.F.R. � 1356.60(c)(3), the regulation also provides that allowable administrative costs do not include the costs of social services which provide counseling or treatment to ameliorate or remedy personal problems, behaviors or home conditions. Moreover, under section 472(b) and (c) of the Act, foster care payments are not available on behalf of a child who is placed in a facility operated primarily for the detention of children who are determined to be delinquent.

FFP in foster care administrative costs is available for activities related to children who are eligible for foster care maintenance payments, and also in limited circumstances for activities related to children that a state determines are candidates for foster care, even if the children are not eventually placed in foster care, so long as such expenses are necessary for the proper and efficient administration of the state plan. ACYF-PA-87-05; New York, DAB No. 1428; Missouri Dept. of Social Services, DAB No. 844 (1987). ACF has defined "candidate for foster care" as "a child who is at serious risk of removal from home as evidenced by the state agency either pursuing his/her removal from the home or making reasonable efforts to prevent such removal." ACF Child Welfare Policy Manual (CWPM) � 8.1D, Question 2; ACYF-CB-PA-01-02 (July 3, 2001), ACF Exhibit (Ex.) 2.

Factual background

DSS is Missouri's state agency designated to administer Missouri's IV-E plan. ⁽³⁾ ACF Brief (Br.) at 5; Missouri Br. at 7; Transcript of Hearing (Tr.) at 34. As such, Missouri is eligible to receive FFP at the rate of 50% in the costs of allowable administrative activities specified at 45 C.F.R. � 1356.60 that DSS workers carry out with respect to children who are recipients of, or candidates for, title IV-E foster care maintenance payments.

At issue are Missouri's claims for the costs of activities that Juvenile Officers carried out in foster care cases, beginning on January 1, 2001. ⁽⁴⁾ Prior to 1999, the Juvenile Officers were employed by county courts; Missouri's decision to claim FFP for the Juvenile Officers' activities was preceded by legislative action transferring the juvenile court staff of Missouri's 35 multi-county judicial circuits to the state payroll. Missouri Ex. D, at 25. Prior to claiming FFP for the Juvenile Officers' activities, DSS entered into an interagency agreement, effective July 1, 2000, with OSCA, the body within Missouri's court system that has administrative authority over court employees, including the Juvenile Officers. Missouri alleged that this written agreement qualified as the type of agreement referenced in section 472 of the Act. That section directs states to make IV-E maintenance payments on behalf of children whose placement and care are the responsibility of the state IV-E agency or "any other public agency with whom the State agency administering or supervising the administration of the State plan approved under section 471 has made an agreement." The parties referred to such an agreement as a 472 agreement. Missouri Br. at 2; ACF Br. at 1.

To determine the amount of its claims for FFP, Missouri utilized a random moment time study, a technique that entailed having Juvenile Officers record the activities they were engaged in at randomly selected moments. See, e.g., Illinois Dept. of Children and Family Services, DAB No. 1462, at 5, n.4 (1994). Missouri used the results of the time study to determine how much time the Juvenile Officers spent on the types of administrative activities that may be allowable under title IV-E. Missouri deemed approximately 280 out of 1300 Juvenile Officers appropriate for participation in the time study and inclusion in its claims for FFP. Missouri Br. at 13; Missouri Ex. Y at � 14. Prior to submitting its claims, Missouri adjusted the total costs of the Juvenile Officers' time in foster cases by the ratio of federal IV-E foster care cases to all foster care cases, state and federal.

Summary of positions

In taking the disallowance, ACF determined that OSCA was not a proper party to the section 472 agreement with DSS because it was not a "child placing agency." ACF Br. at 5. As noted above, section 472 directs states to make IV-E maintenance payments on behalf of children whose "placement and care are the responsibility of" either the state IV-E agency (in this case DSS) or "any other public agency" with whom the state agency administering or supervising the administration of the IV-E program has made an agreement. ACF argued that OSCA was not responsible for the placement and care of children and was thus not an agency eligible to enter into an agreement with DSS to carry out that responsibility under section 472 of the Act.

In response, Missouri argued that if DSS and OSCA could not enter into a section 472 agreement, then it should still be permitted to receive IV-E funding for the Juvenile Officers' activities pursuant to an interagency agreement between DSS and the Juvenile Officers or OSCA. Tr. at 109-10, 148-52. Missouri argued that such an agreement was permitted by 45 C.F.R. � 95.507(b)(6); this section specifies the documentation that a state's approved cost allocation plan must contain if a state intends to claim the costs of services provided by a governmental agency outside the state agency. ACF referred to such an agreement as a "471 agreement," apparently in reference to that section's requirement that the same state agency responsible for administering the program authorized by title IV-B either administer, or supervise the administration of, the state's IV-E program. Tr. at 150.

Missouri argued that it has a unique child welfare system in which Juvenile Officers perform activities in foster care cases that in other states are carried out by the state IV-E or other executive branch agencies, and for which Missouri should be able to receive federal funding. Missouri Br. at 5; Missouri Ex. Y at � 11. One of those activities is the removal of children from their homes: Juvenile Officers are the persons authorized by Missouri law to take a child into custody if there is reasonable cause to believe that the child is without proper care, custody, or support, and that temporary protective custody is necessary to prevent personal harm to the juvenile.  Missouri Br. at 6, n.2, citing Missouri Supreme Court Rule (Mo.S.Ct.R.) 111.01(a)(4); Missouri Ex. Y at � 16, 17. Missouri reported that DSS social workers are not authorized to remove children, and that any time a DSS worker requires that a child be removed from his home and placed in foster care, the DSS worker must go through the local juvenile office and secure the services of a Juvenile Officer. Missouri further reported that it is the juvenile office (and thus the Juvenile Officer), and not the DSS worker, who petitions the court for removal of the child. Affidavit of Jeffrey M. Barlow, Mo. Ex. QQ at � 15. Missouri argued that the Juvenile Officers also perform other important functions related to particular children in the foster care system, including the preparation of legal documents and court pleadings, and participate in the development of case plans for each child which document that the child is eligible, or a candidate, for IV-E foster care.

In response to Missouri's argument on appeal, ACF argued that DSS could not arrange for the Juvenile Officers to perform IV-E administrative activities under an interagency agreement with DSS, because section 471 of the Act requires that a state's designated IV-E agency administer or supervise the administration of its IV-E program. ACF argued that DSS, Missouri's IV-E agency, did not supervise the Juvenile Officers or their activities, and that DSS furthermore was not even authorized to perform the Juvenile Officers' most significant activities that are at issue here.

As explained below, we sustain the disallowance. The statute requires that a single state IV-E agency administer or supervise the administration of the state's IV-E program. Here, Missouri's single state IV-E agency neither administers nor supervises the administration of the activities of the Juvenile Officers as required by section 471(a) of the Act. Indeed, the most significant activity that the Juvenile Officers perform, the removal of children from their homes, has not even been delegated or placed under the responsibility of Missouri's single state agency by Missouri law, but rather has been delegated solely to the Juvenile Officers. Thus, FFP was not available for the Juvenile Officers' activities under the interagency agreement since DSS had no administrative or supervisory responsibility over those activities.

Moreover, while section 472(a)(2) permits IV-E children to retain their eligibility if another public agency rather than the single state IV-E agency is responsible for their placement and care, pursuant to an agreement with the state IV-E agency, the Act clearly contemplates that this be a public agency that in fact has the responsibility for the placement and care of the state's IV-E children. Here, Missouri did not demonstrate that either OSCA or the Juvenile Officers were responsible for the placement and care of Missouri's IV-E children in lieu of DSS. Thus, any purported 472 agreement is unavailing to make FFP available for these activities.

1. Neither the Juvenile Officers nor OSCA were qualified under section 471 of the Act to perform reimbursable IV-E functions on behalf of DSS, because neither they nor their activities were supervised by DSS.

Section 471(a) of the Act requires that the designated state agency administer or supervise the administration of the state's IV-E state plan and thus its IV-E program. In title IV-E, "state agency" means the state agency administering or supervising the administration of the title IV-B and title IV-E state plans and the title XX social services block grant program. 45 C.F.R. � 1355.20. Regulations governing the general administration of public assistance programs require that states establish or designate a single state agency with authority to administer or supervise the administration of the state plan, and that the agency's legal authority to do so must be certified by the state's attorney general. 45 C.F.R. � 205.100, made applicable to title IV-E by 45 C.F.R. � 1355.30(p). The requirement that a single state agency administer or supervise the administration of the state plan and thus its program is central to most mandatory grant programs under various titles of the Act.

As early as 1983, when it published rules implementing title IV-E, ACF emphasized the requirement that the state agency administer the state's foster care program, and the limitations on a state IV-E agency's ability to delegate IV-E functions:

The State agency supervising the administration of the title IV-E State plan may enter into an agreement with other public agencies to implement the placement and care responsibilities under the plan (section 472(a)(2)(B)). However, the responsibility for assuring that the plan is administered in accordance with the Act and this final rule rests with the title IV-E/IV-B State agency.

48 Fed. Reg. 23,104, 23,105 (May 23, 1983). This statement was in response to comments on ACF's proposal to permit local agencies to assist in administering the state IV-E plan. Based on the language of the Act, ACF abandoned that proposal. Id.

Here, the Juvenile Officers were not eligible to administer or perform reimbursable IV-E functions because DSS, the designated IV-E agency, neither supervised the Juvenile Officers nor administered the activities that the Juvenile Officers performed. DSS does not supervise the Juvenile Officers, who are employees or officers of Missouri's court system, and "serve under the direction" of the courts in some counties, and the circuit judge in others. Missouri Ex. KK, at 12, citing Mo.Rev.Stat. � 211.351. The job descriptions that Missouri provided for the Juvenile Officers and other evidence indicate that Juvenile Officers work under the direction of higher-level Juvenile Officers, judges of the juvenile and family courts, and court administrators. Missouri Ex. B; Tr. at 35-36. Administrative oversight of the Juvenile Officers for personnel-related matters such as payroll was exercised by OSCA, a court office. Missouri Ex. B. Statements from Missouri witnesses, including a Chief Juvenile Officer and a DSS official, indicate that although the Juvenile Officers interact with DSS workers, they function independently of DSS and are not under the direction or supervision of DSS. Missouri Exs. TT, UU.

Similarly, the interagency agreement between DSS and OSCA relied upon by Missouri contains no indication that DSS was to supervise the Juvenile Officers. Missouri Ex. B. The agreement makes no reference to DSS exercising any oversight over the activities of Juvenile Officers in foster care cases, and nowhere indicates that the Juvenile Officers were to take direction from DSS as they carried out those activities. Language in the agreement calling for DSS to receive claims for IV-E administrative costs for the Juvenile Officers' activities from OSCA and file them in conjunction with DSS's own claims further indicates that the Juvenile Officers were to operate outside of DSS oversight. Additionally, there is no indication that OSCA, the party to the agreement with DSS, exercises any supervisory oversight of the Juvenile Officers. The agreement describes OSCA as responsible for administering payroll for juvenile court personnel, and for administrative support of the juvenile courts.

The evidence of record furthermore establishes that DSS does not administer one of the most significant functions that the Juvenile Officers perform in foster care cases, the removal of children from their homes. Under Missouri law, DSS workers are without authority to remove children from their homes; that authority is vested only in the Juvenile Officers. (In certain circumstances, such as in the case of a child facing imminent danger, police officers and physicians may take custody of the child, but must immediately notify a Juvenile Officer. Mo.Rev.Stat. � 210.125; Mo.S.Ct.R. 111.01, Missouri Ex. HH.)

Thus, DSS did not administer or supervise the administration of those aspects of its IV-E program in which the Juvenile Officers participated, as required by section 471 of the Act. It is irrelevant that the Juvenile Officers arguably carried out functions related to permissible IV-E administrative activities, and which might have been eligible for IV-E funding if performed or supervised by employees of DSS, the state IV-E agency.

The requirement that the state IV-E (and IV-B) agency administer or supervise the administration of the IV-E program provides federal funding sources with a degree of accountability that is especially important where IV-E administrative costs are at issue, because of the distinctly limited nature of the activities for which IV-E administrative funding is available. Title IV-E provides "only limited authorization for funding of administrative activities." Missouri Dept. of Social Services, DAB No. 1783, at 4 (2001). This limitation springs from the recognition that title IV-E itself is a program of limited purposes. Its primary component involves funding maintenance payments for foster care children who would otherwise have been eligible for AFDC under former title IV-A, and it was never intended to share in those costs incurred in carrying out a state's fundamental responsibility to protect and ensure the safety of the children who live within its jurisdiction. New York State Dept. of Social Services, DAB No. 1630 (1997); New York State Dept. of Social Services, DAB No. 1588 (1996). As part of that responsibility, states fund and administer a range of child welfare services which would have been provided even if title IV-E did not exist. Id. The Board decisions recognize that there is a panoply of diverse services and activities that states may carry out in child welfare cases that are geared towards improving the lot of neglected and abused children, but that many of these, however worthy, do not qualify for federal funding as IV-E administrative costs. In contrast to this wide array of activities that states provide, the IV-E program is "at the far end of a continuum of government programs which seek to ensure that children are not abused or maltreated." New York, DAB No. 1428, at 14-15. Thus, as noted earlier, the Board has upheld the limitation of allowable administrative costs to only the nine activities that are specifically listed in the regulations or to activities that are closely related to one of the listed activities. Illinois, DAB No. 1530, at 26; New York, DAB No. 1428, at 10. Recognition of the limited nature of IV-E administrative funding is equally important with respect to activities related to children who are candidates for foster care, as such children are not and might never become IV-E eligible. ⁽⁵⁾

A result of the limited nature of the IV-E program and the requirement that the single state agency administer or supervise the administration of the program is that federal funding is not available for the activities that a number of people from different agencies and disciplines may provide in foster care cases. The record here showed that many other individuals besides Juvenile Officers participate with DSS in developing case plans and in making other contributions to DSS's handling of foster care cases. These different people include guardians ad litem, alternative care providers, parents or caretakers, parents' attorneys, school personnel (especially in the case of a child with learning disabilities), foster parents, psychologists and other mental health providers, counselors, extended family members, parent education professionals, other state agency providers, and persons representing other community resources. Missouri Ex. UU at � 14; Tr. at 34-35, 54, 168. They constitute the family support teams that the DSS worker convenes for each child removed from his home, that work to develop a treatment plan for each child, identify resources for families, and make ongoing recommendations to the court on placement, services, permanency and concurrent planning. Missouri Exs. UU at � 12-16; KK at 26; McKee Declaration at � 13; Tr. at 34-35, 41-42, 54-55, 58-59, 166-69.

The participation of these other individuals in foster care case activities does not give rise to eligibility for FFP in additional IV-E administrative costs. Missouri did not assert that the contributions of any of these other team participants qualify as reimbursable administrative costs, even if they could be viewed as allowable activities when performed by DSS workers, and however valuable they may be towards ameliorating the difficulties that cause the child's entrance into the child welfare system. A Missouri witness, a Chief Juvenile Officer in one of Missouri's judicial circuits, confirmed that, to his knowledge, personnel from agencies outside of DSS, such as from the Department of Mental Health, schools and community resources, are not reimbursed by Title IV-E for their participation. Tr. at 34-35. Permitting FFP for the activities of such a large number and variety of persons outside the IV-E agency would increase the risk that federal funding would be claimed for potentially duplicative or unallowable activities, and force ACF to devote inordinate resources towards auditing and verifying claims for IV-E administrative costs.

Moreover, the testimony of an ACF employee who used to work for Missouri cast doubt on the uniqueness of the Juvenile Officers' activities in foster care cases (outside of the removal of children from their homes), and Missouri's assertion that there is no duplication of services between DSS workers and the Juvenile Officers. Missouri Br. at 28, n.20; Missouri Ex. Y at � 18. The witness, Mary McKee, worked in Missouri state government with DSS and its organizational predecessor from 1969 through the end of 2000, most recently as a social services supervisor. While she worked primarily in one county, she also reported having participated in annual statewide reviews of the child welfare system beginning in 1996, which included interviewing persons active in the foster care system, including DSS workers and Juvenile Officers. The DSS workers bore responsibility for determining the child's placement, drafting the case plan, and convening and facilitating periodic case reviews conducted by the family support teams at specified intervals. She stated that Juvenile Officers would participate in the family support team meetings "in some cases," and that their participation was similar to that of other members, such as foster parents, psychologists, and mental health providers, consisting of asking questions, providing information and making recommendations for case plans (like the other participants). McKee Declaration; Tr. at 168. Although the Juvenile Officers are considered "core members" of the family support teams, their presence is not required. Tr. at 168. The Juvenile Officers with whom the witness had the most contact had very little impact on the case planning, and participated in the family support team meetings sporadically, and not on a regular basis. Tr. at 167-68.

The witness also testified that DSS workers sometimes participate in the preparation of judicial pleadings for foster care cases, by gathering needed information and providing it to the Juvenile Officer, and that the relative contributions towards that function by Juvenile Officers and DSS workers varied depending on the judicial circuit involved. Tr. at 171-72. This testimony was consistent with a slide that was part of a presentation that Missouri gave to the HHS Office of the General Counsel in March 2002 in support of its effort to gain approval to claim FFP for the Juvenile Officers' activities. The slide, titled "roles are all statutorily complimentary" depicts the Juvenile Officers and DSS staff as having essentially identical duties. Missouri Ex. KK at 4. The exhibit depicts both the Juvenile Officers and DSS staff as playing roles in, among other things, preparation for judicial proceedings and placement of children. Id. Additionally, a letter from DSS to the HHS Division of Cost Allocation concerning the methods that would be used to claim federal funding for the Juvenile Officers' activities indicates that DSS used a random moment time study to allocate the time that DSS workers spent performing "these same activities." Missouri Ex. I, at 1.

In arguing that the DSS should be able to receive FFP for otherwise allowable IV-E administrative activities that are performed by the Juvenile Officers, Missouri cited Board decisions stating that reimbursement should not turn on how a state subdivides its social welfare function and authority, and that the state as a whole must be viewed as a single unit responsible for the administration of grant funds. New York State Dept. of Social Services, DAB No. 1441 (1993); Oregon Dept. of Human Resources, DAB No. 1298 (1992). Neither decision is applicable or supports Missouri's position. The principle that a state as a whole must be viewed as a single unit responsible for the administration of grant funds refers to the state's obligation to account for grant funds received by its designated state agency, which does not necessarily end upon the transfer of those funds to another state agency. See, e.g., Alabama Dept. of Finance, DAB No. 1635 (1997). This principle does not obviate the basic requirement that a state designate a single agency to administer or supervise the administration of its IV-E program.

That basic requirement may not be disregarded on the grounds that the Juvenile Officers may have performed activities that in other states would have been the responsibility of the state executive branch, as Missouri argued. Moreover, Missouri did not demonstrate that the alleged distinction between it and the other states resulted in any corresponding differentials in the levels of federal funding provided for IV-E administrative costs. For example, as we noted above, one of the primary responsibilities of the Juvenile Officers is the removal of children from their homes. Missouri did not argue or show that this function is in all other states underwritten with IV-E funding, or that states where police officers carry out the removal function receive FFP for that activity.

2. Neither the Juvenile Officers nor OSCA were engaged in the placement and care of children as referred to in section 472 of the Act and thus Missouri could not claim FFP for the activities in question pursuant to an agreement under section 472.

Prior to arguing on appeal that DSS could arrange for the Juvenile Officers to perform IV-E functions through an interagency agreement with OSCA, Missouri had attempted to secure funding for the Juvenile Officers' activities through an agreement under section 472 of the Act, which the parties referred to as a 472 agreement. ACF determined OSCA could not enter into such an agreement with DSS because OSCA did not function as a "child placing agency." ACF Br. at 5, 16-21. ⁽⁶⁾

Section 472 of the Act contains the eligibility requirements for foster care children that must be met in order for states to make federally-funded foster care maintenance payments on their behalf. Among other requirements, a child's placement and care must be the responsibility of the state IV-E agency, or any other public agency with whom the state agency has an agreement that is still in effect. Section 472(a)(2) of the Act.

The history of this provision clearly indicates that it was designed to permit children in a few states where the state IV-E agency lacked responsibility for the care and placement of children to be eligible for IV-E foster care. As originally enacted, this provision (at former section 408 in title IV-A of the Act, the predecessor to section 472) limited responsibility for the placement and care of foster care children to the single state IV-A (now IV-E) agency. Pub. L. No. 87-31 (May 8, 1961); S. Rep. No. 165, 87^th Cong., 1^st Sess. 1961 (April 14, 1961), 1961 U.S.C.C.A.N. 1716, 1722; S. Rep. No. 1589, 87^th Cong., 2^nd Sess. 1962 (June 14, 1962) 1962 U.S.C.C.A.N. 1943, 1955. The exception at issue was added because in a few states the single state agency lacked responsibility for the actual placement and care of children who had been removed from their homes; in such states, it had been the practice for other public agencies, particularly juvenile courts, to be responsible for arranging the placement and providing for the supervision of children. S. Rep. No. 307, 88^th Cong., 1^st Sess. 1963 (June 25, 1963), 1963 U.S.C.C.A.N. 705; S. Rep. No. 1088, 88^th Cong., 2^nd Sess. 1964 (June 16, 1964), 1964 U.S.C.C.A.N. 2317. The other public agency was to have in effect an agreement with the single state agency under which a plan for each child would be made and other objectives of the program carried out in a manner satisfactory to the single state agency. Pub. L. No. 87-543, Public Welfare Amendments of 1962 (July 25, 1962); S. Rep. No. 1589, 87^th Cong., 2^nd Sess. 1962 (June 14, 1962) 1962 U.S.C.C.A.N. 1943, 1955. This section thus permits eligibility to be established even where the state IV-E agency does not have responsibility for the placement and care of children. Thus, based on section 472, ACF has properly required that the other public entity that agrees to be responsible for the care and placement of foster care children under section 472(a) be a certifiable child placement agency.

There is no indication here that OSCA was qualified to enter into such an agreement. Missouri conceded that OSCA, as the administrative arm of the Missouri Supreme Court, has no child placing authority of its own, and did not respond to ACF's offer, prior to taking the disallowance, to accept an opinion from the Missouri Attorney General that OSCA qualified as a child placing agency under all applicable state and federal laws and regulations. Missouri Post-Hearing Br. at 18; Missouri Ex. S. Instead, Missouri argued that the Juvenile Officers exercised child-placing responsibilities, and that OSCA was the proper party to a 472 agreement because it exercised administrative oversight over the Juvenile Officers, and because it would not have been practical for DSS to enter into individual section 472 agreements with each of the approximately 280 Juvenile Officers for whom FFP was claimed.

However, past Board decisions addressing whether a state agency in fact had responsibility for the placement and care of children have found that section 472 requires that the agency exercise a far greater and more sustained degree of control over a child's placement and care than what the evidence demonstrates was exercised by the Juvenile Officers. The Board has held that the relevant language of section 472 (and the former section 408) requires that the state agency have "the ability to control where a child is placed, and to alter the plan of care without further petitioning of the court to do so." Maryland Dept. of Human Resources, DAB No. 1225, at 7 (1991), citing Washington Dept. of Social and Health Services, DAB No. 280, at 8 (1982). The Board noted that even if the state agency were responsible for providing services to support the child's placement, this did not constitute responsibility for the child's care, and observed that if Congress had intended to make title IV-E funds available for any case in which the state agency took an interest, it would not have required specifically that the state agency have responsibility for the child's placement and care. Maryland; see also New York State Dept. of Social Services, DAB No. 1358, at 30 (1992). The placement and care standard was not met where the state agency did not have the authority to make final decisions or changes regarding a child's placement and care, and so had no real control over the child. Washington.

Here, the evidence fails to establish that the OSCA or the Juvenile Officers exercised the requisite degree of control over children, including responsibility for their placement and care. OSCA's responsibilities are primarily geared towards overseeing the operations of the juvenile courts, including evaluating juvenile court services and performance standards, and, as noted above, Missouri conceded that OSCA did not engage in the placement of children. Moreover, the evidence fails to establish that the Juvenile Officers engaged in the placement and care of children. Missouri argued that "the juvenile officer alone is charged with (1) taking temporary protective custody of a child, (2) preparing necessary petitions, legal memoranda and temporary protective custody orders and (3) working with [DSS] on case plan development and management and (4) bringing cases before the court." Missouri Br. at 28. This description of the Juvenile Officers' responsibilities is significant for the absence of information about the placement and care of the child, or the Juvenile Officer's role in these activities. The description does not indicate that Juvenile Officers have authority to make final decisions or changes regarding a child's placement and care or otherwise have real control over the child's placement or care.

Instead, the evidence indicates that the Juvenile Officers' direct involvement with children consists mostly of removing children from their homes upon the request of DSS, after DSS receives reports of neglect or abuse, conducts investigations, arranges the delivery of needed services, and then refers the more serious cases to the Juvenile Officers for removal. Missouri Ex. UU at �� 8-10. Children who are removed from their homes are placed in the physical custody of DSS, after which the DSS worker is responsible for finding a safe, available and appropriate placement for the child. Id. at �� 12, 18. The agreement between DSS and OSCA states that foster care children are placed in the care and custody of DSS. Missouri Ex. B. In addition to removing children from their homes, it appears that the Juvenile Officers' most significant responsibilities primarily consisted of acting as "gatekeepers" to the juvenile court system, preparing legal petitions for use in juvenile court, and working with DSS workers as part of the "family support teams" that DSS convenes for each child removed from his or her home, consisting of persons from various agencies and disciplines. Missouri Exs. UU at � 12-16; KK at 26; Y at � 17; Tr. at 34-35, 41-42, 54-55, 58-59, 166-69. A statement of a DSS official indicates that, as noted above, children who are removed from their homes are placed in the physical custody of DSS, after which the DSS worker is responsible for finding a safe, available and appropriate placement for the child. Missouri Ex. UU, at �� 12, 18. The placement of a child in care is often done by DSS with the involvement of the Juvenile Officers. Id. at 18; Missouri Ex. TT at � 8. However, Juvenile Officers were not shown to have the ability to make decisions affecting a child's placement, once they had relinquished their temporary custody. In this regard, section 472(a) addresses an agreement for the placement and care of children who have already been removed from their home, and thus would not pertain to personnel such as the Juvenile Officers who have responsibilities pertaining primarily to the removal of the child.

Missouri also argued that, under its court rules, Juvenile Officers are charged with determining whether to release a child to an appropriate guardian, or to continue detention. Missouri Br. at 6, n.2, citing Mo.S.Ct.R. 111.04. However, the section of the court rules that Missouri cited applies to children removed for reasons of delinquency, and not to children who are removed from their homes for reasons of neglect or abuse. ⁽⁷⁾ Status as a delinquent does not establish eligibility for IV-E maintenance payments. 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."

Accordingly, we conclude that neither OSCA nor the Juvenile Officers were responsible for the placement and care of foster care children within the meaning of section 472(a) of the Act, and thus the agreement with DSS was not an agreement under that section.

Conclusion

For the preceding reasons, we conclude that Missouri was not entitled to claim FFP in the costs of the activities of the Juvenile Officers, because the Juvenile Officers were not engaged in the placement and care of children, and their activities were not under the supervision of DSS, Missouri's state IV-E agency within the meaning of sections 471 and 472 of the Act. Thus, the costs of the Juvenile Officers' activities were not necessary for the proper and efficient administration of Missouri's IV-E program. Therefore, we uphold the disallowance of these claims in full.

Judith A. Ballard

Cecilia Sparks Ford

Donald F. Garrett
Presiding Board Member

1. The disallowance letters indicate that unspecified amounts of some of the disallowances were for costs relating to adoption assistance and IV-E training expenditures for the Juvenile Officers. Missouri made no reference to these other costs in its notices or its requests that the appeals be consolidated, and the parties did not address them in their briefs. In acknowledging the appeal in Docket No. A-03-65, the Board asked ACF to clarify whether the portion of that disallowance related to adoption assistance could be included in this proceeding, and ACF reported that the adoption assistance amount was included in Missouri's claim for administrative costs. Based on this information and the parties' failure to address these amounts separately during briefing, we conclude that these costs raise no unique issues not considered elsewhere in this decision. For the sake of brevity, in this decision we refer to title IV-E foster care administrative costs as also encompassing administrative costs related to adoption assistance and IV-E training.

2. The Personal Responsibility and Work Opportunity Reconciliation Act of 1996, Public Law No. 104-193, repealed the title IV-A program and amended title IV-E so that it refers to certain provisions of former title IV-A as they were in effect on June 1, 1995.

3. During the appeal, rather than refer to DSS, the parties sometimes referred to the DSS Division of Family Services (DFS), which is the division within DSS that performs reimbursable IV-E activities. However, as DSS is the designated IV-E agency, we refer only to DSS in this decision.

4. The appeal comprised the following eight disallowances:

Docket No. Amount Claim period

A-02-23 $5,011,704 - January 1, 2001 - September 30, 2001

A-02-53 1,202,670 - October 1, 2001 - December 31, 2001

A-02-93 1,088,240 - January 1, 2002 - March 31, 2002

A-02-136 1,172,868 - April 1, 2002 - June 30, 2002

A-3-22 1,132,927 - July 1, 2002 - September 30, 2002

A-03-49 1,162,286 - October 1, 2002 - December 31, 2002

A-03-65 1,195,688 - January 1, 2003 - March 31, 2003

A-03-106 1,205,853 - April 1, 2003 - June 30, 2003

5. It is not clear what percentage of Missouri's claim relates to children who were candidates for foster care. Missouri stated in its brief that the disallowance was for activities related to foster care candidates, but later stated that foster care children were involved as well. Missouri Br. at 1; Post-Hearing Br. at 1. At the hearing, Missouri counsel stated that the claim involved only those cases that were already at the stage of removal of the child from the home or later, or that were virtually ready for removal. Tr. at 13.

6. Missouri law defines "child placing agency" as any person, other than the parents, who places a child outside the home of the child's parents or guardian, or advertises or holds himself forth as performing such services. Mo.Rev.Stat. � 210.481(2); ACF Br. at 5.

7. The cited court rule says that it is "the procedure to be followed when a juvenile has been taken into custody for placement in a detention facility." Missouri Ex. HH, Mo.S.Ct.R 111.04. The definition of "detention" in the court rules, Mo.S.Ct.R at 110.05, cites two specific subparagraphs of Missouri law, Mo.Rev.Stat. � 211.031.1 (2) and (3), that address delinquency. The definition of detention does not cite Mo.Rev.Stat. � 211.031.1(1), which addresses cases of neglect, where "[t]he parents, or other persons legally responsible for the care and support of the child or person seventeen years of age, neglect or refuse to provide proper support, education which is required by law. . ."