California Department of Social Services, DAB No. 960 (1988)

DEPARTMENTAL GRANT APPEALS BOARD

Department of Health and Human Services

SUBJECT:  California Department of Social Services

Docket No. 87-99
Decision No. 960

DATE:  June 2, 1988

DECISION

The California Department of Social Services (State) appealed a
determination by the Commissioner, Administration for Children, Youth
and Families (Agency), disallowing $451,325 claimed by the State as
federal financial participation (FFP) under Title IV-E of the Social
Security Act (Act) for the period March 31, 1984 through June 30, 1986.
The claims were for FFP in payments for the care of children placed in
the Rite of Passage camp program (ROP), a facility alleged to be a
child-care institution.  Title IV-E of the Act authorizes FFP in foster
care maintenance payments (AFDC-FC) on behalf of children in child-care
institutions, excluding children in detention facilities or other
facilities operated primarily for the detention of children who are
determined to be delinquent.  See section 472(c)(2) of the Act and its
implementing regulations at 45 C.F.R. 1355.20.  The Agency based the
disallowance on its finding that ROP was not a child-care institution
within the meaning of Title IV-E.  The Agency found, instead, that ROP
was a facility operated primarily for detention and was a "physically
restricting" facility for the care of children who required secure
custody.

Based on the record in this case, as discussed below, we find that the
Agency had a reasonable basis for its determination that ROP is a
facility that is operated primarily for detention. Therefore, we uphold
the Agency's disallowance in full.

Applicable Authority

Section 472(c)(2) of the Act provides:

     the term "child-care institution" means a nonprofit private
     child-care institution, or a public child-care institution which
     accommodates no more than twenty-five children, which is licensed
     by the State in which it is situated or has been approved, by the
     agency of such State responsible for licensing or approval of
     institutions of this type, as meeting the standards established for
     such licensing, but the term shall not include detention
     facilities, forestry camps, training schools, or any other facility
     operated primarily for the detention of children who are determined
     to be delinquent.  (Emphasis added)

45 C.F.R. 1355.20 (1985) provides:

     Detention facility in the context of the definition of child care
     institution in section 472 (c)(2) of the Act means a physically
     restricting facility for the care of children who require secure
     custody pending court adjudication, court disposition, execution of
     a court order or after commitment. (Emphasis added)

Background

ROP is a sequential, staged program for troubled boys, including those
placed by a probation department as wards of the juvenile court.
State's brief, p. 2.  According to testimony at the hearing held in this
case, a juvenile is adjudicated as a ward of the court under section 602
of the California Welfare and Institution Code, which deals primarily
with youngsters who have committed a crime under the California
statutes.  Further, the testimony differentiated section 602 wards of
the court from section 300 dependents of the court.  The dependency
section of the Code, section 300, deals with unfit and neglectful home
situations.  Transcript of Hearing, p. 8.  During the disallowance
period, only wards of the court, adjudicated delinquents, were residents
at ROP.  Transcript of Hearing, p.  29.  Finally, testimony indicated
that ROP is one of several options available to the court when making a
decision about a ward of the court.  Such alternatives of the court
include dismissing the matter entirely, having the ward supervised out
of his home, temporarily removing the child from his home and placing
him in a non-secure camp or ranch, or committing the child to the
California Youth Authority.  Transcript of Hearing, p. 9.  Thus, it is
clear that ROP is an integral part of the State's system for dealing
with adjudicated delinquents.

ROP is located on the Walker River Indian Reservation 16 miles from the
nearest town, which is Schurz, Nevada.  ROP is situated in the desert on
a dried lake bed.  The living conditions were described in ROP
literature as spartan.  The residents of ROP slept in Sioux Tipis in
sleeping bags, did their own laundry in tubs, and used solar heated
showers once a day. 1/  Meals at ROP were served in a wood frame mess
hall with plywood tables. Except for a catalytic heater in a sick tent,
there was no electricity, air conditioning or heating.  State's appeal
file, Ex. 3a.

ROP's stated purpose was to teach "basic athletic training, desert
survival training and establishment of disciplined respect."  State's
appeal file, Ex. 3a, p. 3. However, the ROP literature in the record
before us deals primarily with discipline and penalties for disobeying
the rules.  ROP's "graduation" time was 90 "good days," which averages
150 calendar days spent at the camp. 2/  Discipline at ROP was described
as "increasingly consistent" and consequences for offenses ranged from
specific exercises to loss of "good" days needed for "graduation."  ROP
literature states only four reasons for possible early termination:  (1)
successful murder or violent act causing very severe injury; (2)
successful suicide; (3) permanent physical disability; or (4) court
order out of placement. State's appeal file, Ex. 3a, p. 4.

Security measures listed by ROP required that all sharp and heavy
objects and medications or other substances (i.e., gas, solvents, etc.),
be accounted for and locked up.  Additionally, there was evidence that
the shoes of the residents at the ROP camp were removed and locked up
nightly and head counts of the residents were taken every 15 to 20
minutes.  ROP's procedure for handling runaways states:

     Staff will pursue and bring back to camp any boy who attempts to go
     AWOL.  We do this to protect his health and safety due to the fact
     that he could be dehydrated, get bitten by a rattler, or otherwise
     perish in the desert. State's appeal file, Ex. 3a.

Finally, the ROP camp had a procedure for "non-compliance" of the rules
whereby the non-complying resident was removed and isolated from the
general population.  Transcript of Hearing, p. 50; Agency's appeal file,
Ex. C, pp. 14 and 39.


State's Arguments

The State maintained that the fundamental issue is whether ROP was
operated "primarily" for the purpose of detention for delinquent youth,
which is the standard set forth by Congress. The State argued that ROP
was a facility whose primary purpose was behavior modification treatment
and not detention.  The State maintained that the isolation of the
facility was primarily so that the program could be implemented without
distractions. While conceding that ROP was hard to run away from, that
it discouraged running away by taking the residents' shoes at night,
that the residents were closely supervised, and that the program,
located on an Indian reservation, was very structured with an almost
military aspect, the State asserted that all these procedures were for
the purpose of more effective uninterrupted treatment.  Moreover, the
State argued that it presented testimony at the hearing in this case to
confirm its position regarding the purpose of the program. 3/
Additionally, the State argued that the testimony of Mr. Lepak, the
Agency's witness who testified about ROP, should be suspect because he
appeared opposed to the concept of ROP. 4/  The State argued that the
primary intent of Congress in including qualifying language in the Act,
i.e., not more than 25 children and not a detention facility, was to
prevent states from disguising prisons for children as child-care
institutions or foster homes. 5/  The State also asserted that a
subsidiary issue is whether ROP was operated as a "physically
restricting facility."  State's brief, p. 6. 6/  The State maintained
that ROP did not "physically restrict," since the State concluded that
the obvious connotation for "physically restrict" is a locked facility
with high walls. 7/  At ROP, the State argued that there were no locks,
high walls or barbed wire. Moreover, the State argued that
"geographically" restrictive does not equate to "physically"
restrictive.  In support of this argument, the State maintained that
although 16 miles "may seem long to most people who spend most of the
day in front of a word processor," for young men who run as a matter of
course three miles every morning and who participate in athletics every
day, 16 miles is not much of a geographic restriction.  State's brief,
p. 6.

Analysis

As discussed below, we find that the Agency had a reasonable basis for
determining that ROP was operated primarily for the detention of
delinquent youth.  There are two essential aspects of our finding.  One
is that the youth in question had been adjudicated delinquent and thus
"require[d] secure custody."  45 C.F.R. 1355.20.  The State did not
dispute this point.  The second is that the youth were subject to a
variety of physical restrictions, amounting to detention, and thus ROP
was a "detention facility."  Id.

The State argued, in essence, that it was entitled to FFP because ROP
was operated primarily for the treatment of youth, and that even the
physical restriction was part of the treatment.  Thus, the State
contended, ROP was not "operated primarily for the detention of
children."  State's Post-hearing brief, p. 1. However, the State cannot
prevail because the record supports the Agency's determination that ROP
was operated primarily for the detention of the youth in question.
Moreover, the "treatment" procedures that the State admitted were used
at ROP, especially the physical restrictions, were clearly the type of
procedures identified by the Agency in its regulation as the kind of
restrictive procedures that would determine a detention facility.
Therefore, the Agency was well within its discretion, and supported by
ample evidence in the record (see "Background" above) in its decision
that ROP's purpose was "primarily" detention.  Additionally, the record
shows that a mixture of detention and treatment is common in juvenile
law.  We note that there is precedent for the conclusion that the
purposes of juvenile law are twofold.  In Creek v. Stone, 379 F.2d 106
(D.C. Cir. 1967), the court said that when a child is removed from his
own family, the juvenile court shall "secure [placement] for his
custody, care and discipline" as nearly as possible equivalent to the
type of care which should have been provided by his parents. Similarly,
in Martarella v. Kelley, 359 F. Supp. 478 (S.D.N.Y.  1973), in Appendix
A, the court recognized and mandated the type of treatment that the
State of New York had to provide for juveniles in a "secure detention
facility."

We believe that it is clear, from the above court cases, that treatment
is an integral part of the process even when the primary purpose is
detention.  Similarly, we believe that there is an objective distinction
to be drawn between a facility whose primary emphasis is on detention
and a facility whose primary emphasis is on treatment.  ROP was, first
and foremost, primarily for delinquent children who required secure
custody.  Although the State presented testimony that dependents of the
court were also sent to ROP, only section 602 wards -- adjudicated
delinquents -- were at ROP during the disallowance period.  By reaching
this conclusion, we do not reject the State's argument that the
residents received some treatment. 8/  We conclude, however, that there
was a reasonable basis for concluding that the treatment aspect of the
facility was secondary to the detention purpose.

We reject the State's argument that physical restrictions must equate to
locks, bars, restraining fences or guards.  The Agency maintained that
its regulatory definition of the statutory phrase "any facility operated
primarily . . . for detention", i.e., in pertinent part, "a physically
restricting facility for the care of children who require secure
custody," was specifically designed to be a more concrete and objective
standard than the statutory phrase.  Taken as a whole, we find that it
was reasonable to view ROP's location and procedures as designed to
physically restrict its residents and of the type of physically
restricting environment envisioned by the regulation.  The context here
must be kept in mind:  the purpose of the Title IV-E AFDC-FC program is
to provide for dependent children in specific foster care situations,
and the further away from that central purpose we are, the more
questionable it becomes to press an interpretation like the State's.
Furthermore, all of the camp residents were adjudicated delinquents, not
merely homeless children in need of structure.  ROP's remote setting and
16-mile surrounding desert may certainly serve the same purpose as locks
and fences.  Unquestionably, ROP's own description that a child could
"become dehydrated, get bit by a rattler, or otherwise perish in the
desert" supports this conclusion.  Within this context, locks and fences
would seem less intimidating than the stated alternatives.  Moreover,
ROP's other procedures reinforce this conclusion.  ROP's practices of
nightly collection of shoes, nightly head counts every 15 to 20 minutes,
team use of bathroom facilities, and constant surveillance of residents
can only be attributable to a detention purpose.  Indeed, ROP's camp
manual devotes a great deal of explanation to the use of physical force
and security procedures.  See Agency's appeal file, Ex. C.  Thus, the
residents at ROP were physically restricted by any reasonable reading of
the term.

Conclusion

Based on the foregoing, we uphold the Agency's disallowance.


                            ________________________________ Donald F.
                            Garrett

 

                            ________________________________ Alexander
                            G. Teitz

 

                            ________________________________ Norval D.
                            (John) Settle Presiding Board Member

 

 

1.     Testimony at the hearing indicated that after the disallowance
period, certain physical aspects of ROP were changed, i.e., the sleeping
structures were modified.  However, this is not material to the case at
issue.

2.     "Good days" were gained by a resident when he complied with a set
of tasks created by ROP.  These tasks were listed on a Weekly Checklist
that stated the resident's name and required the answers to the
following information:

     1.  Has shown respect for himself and others.  2.  Completed all
     school work for day.  3.  Completed all tasks asked of him.  4.
     Participated in all work-outs (unless excused by         doctor).
     5.  Kept himself and his area clean.  6.  Has taken leadership role
     with other residents.  7.  Has been helpful with staff in
     implementing camp projects.  8.  Always acted as role model for
     other residents to follow.  9.  Always helped staff in guiding
     other residents to        proper behavior.

3.     Gilbert Ward, a section supervisor for the Alameda County
Probation Department, testified that he considered ROP "an innovative
treatment program for youngsters not exclusively delinquent, but
youngsters who are demonstrating severe behavioral problems."
Transcript of Hearing, p. 23.

Larry Marona, a supervising probation officer for the County of San
Bernardino, testified that, in his opinion, ROP was designed to treat
its residents.  See, generally, Transcript of Hearing, pp. 70-98.

4.     Mr. Lepak, a deputy probation officer for Contra Costa County
Probation Department, testified that he had filed an abuse report
against ROP after visiting the camp on October 14, 1985 and that the
report was amended after an overnight visit on December 18, 1985.
Further he stated that he:

       thought the place would be much more humane if they put up barbed
       wire fences and guard towers . . . then kids would be able to
       have bowel movements when nature told them they needed to; they'd
       be able to wear their shoes in the evening when they had to go
       out of the tent and go to the bathroom; they wouldn't be
       constantly -- have to be within eyesight of some staff; they
       wouldn't have to do everything and move in groups.  Transcript of
                          Hearing, p. 200.

The Agency, however, maintained that Mr. Lepak's testimony was less
suspect than the State's witnesses because Mr. Lepak's county does not
have a stake in defending ROP by virtue of having 40 to 50 boys
currently placed at ROP, as did the counties that employed Mr. Ward and
Mr. Marona.  Agency Response to Appellant's Post Hearing Brief, p. 11.

5.     Initially, the State argued that ROP also "comes close if not
within" the State's classification as a "group home". State's brief, p.
11.  However, the State did not pursue this argument.  In any event, we
find that this argument is without merit, since ROP could not meet the
federal standard for a "foster family home," which requires the "home of
an individual or family."  See 45 C.F.R. 1355.20.

6.     The State also argued that ROP is not a facility operating for
the purpose of holding delinquents "pending" disposition by a court;
therefore, ROP does not fit within 45 C.F.R. 1335.20.  The clear reading
of the provision indicates that this argument is without merit because
the completing phrase states "or after commitment."

7.     Additionally, in its post-hearing brief, at p. 8, the State used
the term "physically restraining" in arguing its position that a
facility must have physical barriers to be within the regulation's
definition.  However, we reject this argument because the applicable
standard is whether a facility is "physically restrictive" not
"physically restraining."

8.     Moreover, we do not comment on the quality of treatment provided
by ROP, which is not an issue in this