SUBJECT: Wyoming Department of Family Services

DECISION

The Wyoming Department of Family Services (Wyoming) appealed in part the determination of the Administration for Children and Families (ACF) dated October 13, 2004 identifying as "error cases" 15 sample cases for which Wyoming had claimed a total of $113,576 of federal funds for foster care maintenance payments and administrative costs under title IV-E of the Social Security Act (Act). ACF's determination was based on a subsequent primary review of payments claimed by Wyoming for the period April 1 through September 30, 2003. The purpose of the review was to determine whether the payments were made on behalf of eligible children to eligible foster care providers. Wyoming disputed ACF's findings with respect to two sample cases, #8 and #14. ACF disallowed federal financial participation (FFP) in the amount of $8,901 for sample case #8 but did not disallow any FFP for sample case #14.

For the reasons discussed below, we uphold the amount disallowed for sample case #8 and the remaining sample cases not contested by Wyoming. We do not consider Wyoming's appeal of ACF's finding that sample case #14 is an error case since the resolution of this matter would not affect the outcome of the primary review.

Applicable Authority

Title IV-E was originally enacted as part of the Adoption Assistance and Child Welfare Act of 1980, Public Law No. 96-272. ⁽¹⁾ Under section 472(a) of title IV-E, as amended by the Adoption and Safe Families Act of 1997 (ASFA), Public Law No. 105-89, federal matching of state foster care maintenance payments is available for a child in foster care who would have been eligible for Aid to Families with Dependent Children under title IV-A as in effect as of June 1, 1995 -

but for his removal from the home of a relative . . . if-

(1) the removal from the home . . . was the result of a judicial determination to the effect that continuation therein would be contrary to the welfare of such child and (effective October 1, 1983) that reasonable efforts of the type described in section 471(a)(15) for a child have been made[.]

Under section 471(a)(15)(B), a state plan under title IV-E must provide that "reasonable efforts shall be made to preserve and reunify families-"

(i) prior to the placement of a child in foster care, to prevent or eliminate the need for removing the child from the child's home; and
(ii) to make it possible for a child to safely return to the child's home; . . .

Revised regulations implementing ASFA were effective March 27, 2000. 65 Fed. Reg. 4020 (Jan. 25, 2000). Section 1356.21 of 45 C.F.R. states in pertinent part:

(b) Reasonable efforts. The State must make reasonable efforts to maintain the family unit and prevent the unnecessary removal of a child from his/her home, as long as the child's safety is assured; to effect the safe reunification of the child and family (if temporary out-of-home placement is necessary to ensure the immediate safety of the child); and to make and finalize alternate permanency plans in a timely manner when reunification is not appropriate or possible. In order to satisfy the "reasonable efforts" requirements of section 471(a)(15) . . . , the State must meet the requirements of paragraphs (b) and (d) of this section. . . .
(1) Judicial determination of reasonable efforts to prevent a child's removal from the home.
(i) When a child is removed from his/her home, the judicial determination as to whether reasonable efforts were made, or were not required to prevent the removal, in accordance with paragraph (b)(3) of this section, must be made no later than 60 days from the date the child is removed from the home . . . .

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(2) Judicial determination of reasonable efforts to finalize a permanency plan.
(i) The State agency must obtain a judicial determination that it has made reasonable efforts to finalize the permanency plan that it is in effect . . . within twelve months of the date the child is considered to have entered foster care in accordance with the definition at � 1355.20 . . . and at least once every twelve months thereafter . . . .

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(c) Contrary to the welfare determination. Under section 472(a)(1) of the Act, the child's removal from the home must have been the result of a judicial determination (unless the child was removed pursuant to a voluntary placement agreement) to the effect that continuation of residence in the home would be contrary to the welfare, or that placement would be in the best interest, of the child. The contrary to the welfare determination must be made in the first court ruling that sanctions (even temporarily) the removal of a child from home. . . .
(d) Documentation of judicial determinations. The judicial determinations regarding contrary to the welfare, reasonable efforts to prevent removal, and reasonable efforts to finalize the permanency plan in effect, including judicial determinations that reasonable efforts are not required, must be explicitly documented and must be made on a case-by-case basis and so stated in the court order.
(1) If the reasonable efforts and contrary to the welfare judicial determinations are not included as required in the court orders identified in paragraphs (b) and (c) of this section, a transcript of the court proceedings is the only other documentation that will be accepted to verify that these required determinations have been made. ⁽²⁾

Section 1356.71 of 45 C.F.R. describes a process for "Federal review of the eligibility of children in foster care and the eligibility of foster care providers in title IV-E programs." Pursuant to this regulation, ACF conducts primary reviews every three years based on a randomly drawn sample of 80 cases. ACF reviews these cases to determine whether title IV-E payments were made (1) on behalf of eligible children and (2) to eligible foster family homes and child care institutions. If a state's ineligible cases in the sample do not exceed eight in the initial primary review, or four in a "subsequent primary review," a state's program is deemed in "substantial compliance," and the state is not subject to another primary review for three years. However, a disallowance is assessed for ineligible payments and administrative costs associated with specific error cases found in the sample. If a state's program is deemed not in substantial compliance, a program improvement plan is required, and the state is thereafter subject to a secondary review of 150 randomly drawn cases. If both case and dollar error rates in this secondary review exceed 10 percent, a disallowance is taken, based on an extrapolation from the sample to the universe of claims paid.

Section 1356.71(j)(4) of 45 C.F.R. provides that "States may appeal any disallowance actions taken by ACF to the HHS Departmental Appeals Board in accordance with regulations at 45 CFR Part 16." Part 16 contains the requirements and procedures of the Board applicable to certain disputes arising under Department of Health and Human Services programs, including appeals of disallowances under title IV-E. 45 C.F.R. � 16.1 and Appendix A, �B(a)(1).

Factual Background

ACF determined that there were 15 "error cases" in the 80 cases sampled during a subsequent primary review of Wyoming's IV-E program. ⁽³⁾ The sample was drawn from children in the Adoption and Foster Care Analysis and Reporting System "who had received at least one title IV-E foster care maintenance payment" during the six-month period April 1 through September 30, 2003. Wyoming Ex. 2 (ACF letter dated 10/13/05) at 1 (unnumbered). ACF notified Wyoming that, pursuant to 45 C.F.R. � 1356.71(i), Wyoming had 90 days to develop a program improvement plan designed to correct those areas determined not to be in substantial compliance, following which ACF would conduct a secondary review of a sample of 150 cases. Id. ACF also notified Wyoming that it was disallowing $113,576 FFP for IV-E foster care maintenance payments for ineligible cases identified in the review. Id. at 2. ⁽⁴⁾

Wyoming appeals ACF's findings that two sample cases, #8 and #14, were error cases. Of the total amount disallowed, $8,901 was attributable to sample case #8. ACF identified this case as an error case based on its finding that there was no judicial determination that the state had made reasonable efforts to prevent the child's removal from home, as required by 45 C.F.R. � 1356.21. Wyoming Ex. 2, at page 4 of IV-E review report. Although sample case #14 was also identified by ACF as an error case, the review report shows the "Erroneous dollars (disallowance)" for this case as "$0." Id. at 6. (The chart attached to the review report shows a disallowance of "0" for both "Maintenance" and "Administration.") ACF identified this case as an error case based on its finding that the judicial determination that the state had made reasonable efforts to finalize the child's permanency plan was not timely. Id.

Below, we discuss each of the two contested sample cases in turn.

We note preliminarily that our inquiry here is a limited one: whether the state has met its burden of documenting its claims for FFP in the payments. Thus, "[t]he denial of FFP in those cases where there is inadequate documentation does not necessarily mean that the court's action was unsound or that the proper social work was not done, but simply represents a finding that the state agency has failed to document that its claims met the conditions Congress established as a prerequisite for title IV-E funding." West Virginia Dept. of Health and Human Services, DAB No. 1257, at 10 (1991).

Sample Case #8

This child was removed from home pursuant to a temporary placement order dated February 5, 2002. The order states that a petition had been filed alleging that the child was neglected and that the child had been placed in the protective custody of the Wyoming Department of Family Services. The order includes the following findings:

4. That evidence produced at the hearing established that the minor child was living in an unclean environment and without adequate provision for food; and that the child had not been cared for by the mother for prolonged periods of time.
5. That the Department of Family Services is an appropriate placement for the minor child and there is no reasonable alternative at the present time.
6. Continued shelter care is in the best interest of the child at this time.

Wyoming Ex. 3, at 1-2. ACF found that this order does not establish that the court had determined that reasonable efforts were made to prevent the child's removal from home. Wyoming Ex. 2, at page 4 of review report. On appeal, Wyoming argues that findings 4 and 5 constitute a reasonable efforts determination, stating: "The reasonable efforts included information as to the suitability of the home and food for the minor child. The Court found that placement with the state was appropriate and no reasonable alternative existed." Wyoming Br. at 10.

In response, ACF takes the position that the court order documents only that the court made a contrary-to-the-welfare determination. ACF maintains that the court order contains "no findings whatever that address what efforts were made to prevent removal from the home (i.e., what efforts were made to assist the mother in providing the child with a clean environment, adequate nutrition, or other care that was found to be lacking)." ACF Br. at 3.

As Wyoming correctly states, a court order need not contain the language "reasonable efforts" to meet the requirement for a reasonable efforts determination. Nevertheless, we agree with ACF that the February 5 court order does not contain a reasonable efforts determination. Finding 4 recites the evidence as to why living in the home was not a reasonable alternative for the child. There is nothing in the order that describes any efforts made to return the child home, much less any language determining that such efforts were reasonable. See West Virginia at 12 ("a simple statement in a court order that removal is in the child's 'best interests' is not sufficient to meet the reasonable efforts requirement. That requirement is met only if the court explicitly stated a finding to the effect that reasonable efforts had been made . . . .")

Wyoming also asserts that the Board previously held that "the reasonable efforts requirement was met when the court order complied with the state's reasonable efforts statute," and argues that that was the case here. Wyoming Br. at 11, citing West Virginia. However, this assertion mischaracterizes West Virginia, which states instead that if a court order clearly cites a state statute requiring a reasonable efforts determination, it could be inferred that the court made a reasonable efforts determination pursuant to that state statute. Wyoming does not point to any language in the February 5 court order that cites the state statute to which its brief refers. More importantly, West Virginia was decided before the IV-E regulations were revised in 2000 to state that "[c]ourt orders that reference State law to substantiate judicial determinations are not acceptable . . . ." See 45 C.F.R. � 1356.21(d)(3).

Wyoming also argues on appeal that the transcript of a court hearing held on February 26, 2002 contains a reasonable efforts determination since "the judge made a case specific inquiry into the reasons the child was taken into protective custody and the efforts the Department had made to remedy the situation and to place the child back with the mother." Wyoming Br. at 11. Wyoming argues further that the transcript shows that there was a reasonable efforts determination because "the transcript makes clear that all other conditions had been remedied to the point the child could have returned home had the mother kept her appointment to address the concerns around depression." Notice of appeal at 2. ACF maintains, however, that, "although some evidence was presented that indirectly related to efforts that had been made to remediate or otherwise address some of the alleged conditions that led the State to seek placement in foster care, there were no judicial findings that expressly went to whether reasonable efforts had been made to prevent removal from the home." ACF Br. at 4.

We conclude that the transcript does not show that the court determined that reasonable efforts were made to prevent the child's removal from home. First, the evidence at the hearing did not address efforts that had been made to prevent the child's removal from home, but rather efforts made to reunify the child with her mother. ⁽⁵⁾ Second, as the Board has previously stated, "[e]vidence that reasonable efforts were in fact made may provide some support for a finding that such a determination was made; however, such evidence is not determinative without some basis for finding that the court examined the question and itself determined that reasonable efforts were made." Pennsylvania Dept. of Public Welfare, DAB No. 1508, at 11 (1995). Here, the court inquired into what efforts were made by the state agency, but there is no basis in the transcript for finding that the court determined that those efforts were reasonable.

Accordingly, we conclude that ACF properly determined that sample case #8 was an error case.

Sample Case #14

ACF determined that sample case #14 is an error case based on its finding that the judicial determination that reasonable efforts were made to finalize the child's permanency plan was not timely. However, ACF showed the disallowance amount for this case as $0. Wyoming Ex. 2, page 6 of review report and attached chart.

On appeal, Wyoming disputes that this case is an error case. Wyoming maintains that ACF failed to follow the definition in 45 C.F.R. � 1355.20 of when a child is considered to have entered foster care and therefore erroneously determined that a reasonable efforts determination was due on September 5, 2003. According to Wyoming, the child entered foster care on November 6, 2002, so that the reasonable efforts determination was due on November 6, 2003 and was timely made on October 16, 2003 at the Twelve-Month Review Hearing. Wyoming Br. at 15-16. Wyoming also argues that, even if the reasonable efforts determination was due on September 5, 2003, the case was not an error case under the "one day one month rule." According to Wyoming, under this rule, the period of ineligibility did not start until the following month, which was after the review period ended. Wyoming Br. at 17-18, citing 45 C.F.R. � 1356.21(b)(2)(ii) and Wyoming Ex. 8 (ACF's Child Welfare Policy Manual, at Ch. 8.3A.15).

ACF does not dispute that it took a "disallowance action" within the meaning of 45 C.F.R. � 1356.71(j)(4), that Wyoming properly appealed that disallowance action and that the Board has jurisdiction to review it. ⁽⁶⁾ However, ACF disputes the Board's jurisdiction to review within that disallowance action the specific finding that sample case #14 is an error case because ACF did not disallow any payments based on that finding. This appears to us to be more an issue of the scope of our review than one of jurisdiction since we clearly have jurisdiction over the disallowance action. However, we need not resolve this issue. The overall disallowance does not include any disallowed payments for sample case #14; therefore, the amount of the disallowance would not be affected by a decision to either uphold or overturn the finding for that case. Neither would a decision to either uphold or overturn that finding affect the outcome of the subsequent primary review. Wyoming is challenging only two of 15 sample cases identified by ACF as error cases. Thus, even if the Board were to conclude that one or both of these two cases were not properly identified as error cases, this conclusion would not change the fact that Wyoming was not in substantial compliance with the IV-E requirements and is required to develop a program improvement plan and undergo a secondary review.

Wyoming acknowledges that this is so, but nevertheless argues that "the [B]oard's decision on this case will impact future error rates. Allowing this error to stand places this case in direct conflict with the ACF policy regarding the one day one month rule . . . ." Wyoming Reply Br. at 2. In other words, Wyoming asks that the Board review ACF's finding regarding sample case #14 in order to give guidance for a future review. Accordingly, if we were to decide this matter, it would be tantamount to issuing an advisory opinion. This is something that the Board has consistently declined to do and that we decline to do here. See, e.g., Texas Dept. of Human Services, DAB No. 1954 (2004); Colorado Dept. of Personnel & Administration, DAB No. 1872 (2003).

Moreover, it is not clear that there is a dispute to resolve, since ACF challenged the Board's authority to review the issue rather than addressing the merits. Wyoming is free to seek formal policy guidance on the issue directly from ACF outside the context of this litigation.

Conclusion

For the foregoing reasons, we uphold the disallowance with respect to sample case #8 and the remaining sample cases not contested by Wyoming. We do not review ACF's finding that sample case #14 is an error case since the resolution of this matter would not affect either the amount of the disallowance or the outcome of the primary review.

Cecilia Sparks Ford

Sheila Ann Hegy

Judith A. Ballard
Presiding Board Member

1. Social Security Act �� 470 through 479A; 42 U.S.C.A. �� 670 through 679b. The current version of the Social Security Act can be found at www.ssa.gov/OP_Home/ssact/comp-ssa.htm. Each section of the Act on that website contains a reference to the corresponding United States Code chapter and section. Also, a cross reference table for the Act and the United States Code can be found at 42 U.S.C.A. Ch. 7, Disp Table.

2. The statute and regulations also provide that the court may make a determination that circumstances exist in which reasonable efforts are not required to prevent a child's removal from home or to reunify the child and family. Section 471(a)(15)(D) of the Act; 45 C.F.R. � 1356.71(j)(3). Wyoming did not rely on these provisions, however.

3. ACF's Title IV-E Foster Care Eligibility On-site Review Instrument and Instructions states that "[a]n ineligible payment occurs whenever a title IV-E eligibility criterion is not met and title IV-E funds were claimed for foster care maintenance payments." It further states that "an error case occurs when the ineligible payment is for a period (1) in which an eligibility criterion related to the child's entry into foster care is not met . . . or (2) in which an eligibility criterion is not met during the [period under review]." Wyoming Ex. 5, at 3.

4. A chart attached to ACF's letter shows that the $113,576 disallowed included both maintenance payments and associated administrative costs. Wyoming Ex. 2, at 12.

5. ACF in the past accepted a judicial determination that reasonable efforts have been made to reunify a child with his or her family as satisfying the requirement for a judicial determination that reasonable efforts have been made to prevent the child's removal from home; however, ACF gave timely notice in its November 2001 Title IV-E Foster Care Eligibility Review Checklist that it would do so only in the case of a child removed from home prior to March 27, 2000 (the effective date of the revised title IV-E regulations). See www.acf.hhs.gov/programs/cb/laws/im/im0111a1h1.htm (instructions for item 13). (The same language also appears in the January 2004 Title IV-E Foster Care Eligibility On-site Review Instrument and Instructions included in the record at Wyoming Exhibits 4 and 5 (instructions for item 12).) Since the child in sample case #8 entered foster care in February 2002, a separate judicial determination regarding reasonable efforts to prevent the child's removal from home was required.

6. Wyoming incorrectly cited 45 C.F.R. � 1355.39(a) as the basis for the Board's jurisdiction. That regulation pertains to a determination of nonconformity pursuant to a child and family services review, not a determination pursuant to a foster care eligibility review.