Maryland Department of Human Resources, DAB No. 1053 (1989)

DEPARTMENTAL APPEALS BOARD

Department of Health and Human Services

SUBJECT: Maryland Department of DATE: May 24, 1989 Human Resources
Docket No. 89-70 Decision No. 1053

DECISION

The Maryland Department of Human Resources (State) appealed a
determination by the Administration for Children, Youth and Families,
Office of Human Development Services (Agency), that the State was
ineligible for fiscal year (FY) 1983 funds awarded pursuant to section
427 of the Social Security Act (Act). Section 427 provides that a state
may receive additional funds for child welfare services, beyond the
amount otherwise available under Title IV-B of the Act, if the state
meets certain requirements for protecting children in foster care.

The Agency's determination was made and appealed in 1985 and proceedings
before the Board were completed that year. However, the Board declined
to proceed to decision since the Agency indicated that it would withdraw
its determination of ineligibility if the Board reversed the Agency's
determination of ineligibility for section 427 funds for the preceding
year (FY 1982). In Maryland Dept. of Human Resources, DAB No. 706
(1985), the Board found that continued review of the FY 1982 cases was
required in order to determine if the State was eligible or ineligible,
and remanded that appeal to the Agency. The FY 1982 appeal was finally
resolved in Maryland Dept. of Human Resources, DAB No. 1039 (1989),
where the Board upheld the Agency's determination. Since there is no
longer a possibility that the Agency will withdraw its determination
regarding the FY 1983 funds, we now proceed to decide the appeal of that
determination. The Agency initially approved the State's request for
additional funds for FY 1983 based on a written certification by the
State that it met the requirements of section 427. Subsequently, the
Agency performed a compliance review to validate the State's
self-certification. The Agency evaluated the State's compliance on two
levels: whether the State had established policies and procedures for
implementing the requirements and whether these policies and procedures
were operational. The Agency determined that the State had policies and
procedures for implementing the section 427 requirements; however, after
surveying a sample of foster care case records, the Agency found that
the requirements were not actually met in a sufficient number of cases
to constitute compliance.

The Agency required an 80% rate of compliance in order for the State to
be found eligible for the section 427 funds, based on the number of
years the State had participated in the section 427 program. The Agency
found 15 of 22 cases reviewed to be unacceptable. The statistical
sampling method used by the Agency, sequential sampling, enabled the
Agency to determine based on this small sample that the State did not
meet the 80% compliance standard. The State contested the Agency's
findings in nine of the 15 failed cases. (In several of the cases, the
State argued for reversal of the Agency's findings on more than one
ground.) As explained below, we uphold the Agency's findings in seven
of the nine cases, but reverse its findings in the two remaining cases.
Under the sequential sampling method, unless at least nine cases fail, a
review of a sample of 22 cases is inconclusive. Accordingly, we must
remand the appeal to the Agency to continue reviewing cases until there
are a sufficient number of failed cases to find the State ineligible for
the FY 1983 funds or until a sufficient number of cases pass to find the
State eligible for these funds.

The State also challenged the compliance review process used by the
Agency on a number of different grounds. Its arguments were (1) that
the process, set out in the OHDS program instruction (PI 82-06), was
inconsistent with the statute; (2) that the process was invalid because
the instruction was not promulgated using notice and comment rulemaking
under section 553 of the Administrative Procedure Act; and (3) that
reliance on the process was inconsistent with Agency policy as stated in
a letter from the Assistant Secretary for Human Development Services.
The Board rejected these arguments, which the State also raised in its
appeal of the FY 1982 determination, in DAB No. 706, supra.
Accordingly, based on the analysis in DAB No. 706, we conclude that the
compliance review process used to determine the State's eligibility for
the FY 1983 section 427 funds was a valid one, consistent with the
statute and with Agency policy.

Below, we first set out the applicable law. We then address the
following issues raised by the State regarding individual cases: (1)
whether the requirement for an independent person in periodic reviews
was enforceable; (2) whether there were children in permanent placements
for whom no periodic review were required; (3) whether a treatment
facility staffing constituted a periodic review; and (4) whether cases
were properly failed based on the absence of a periodic review due in
the prior fiscal year.

Applicable Law

As one of the conditions for the receipt of additional child welfare
funds, section 427(a)(2)(B) requires 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) 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) with respect to each such child, 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 (including a
tribal 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); and procedural safeguards
shall also be applied with respect to parental rights
pertaining to the removal of the child from the home of
his parents, to a change in the child's placement, and
to any determination affecting visitation privileges of
parents. Section 475(6) defines an "administrative
review" to mean--

a review open to the participation of the parents of the child
conducted by a panel of appropriate persons at least one of whom
is not responsible for the case management of, or the delivery
of services to, either the child or the parents who are the
subject of the review.

Whether the Requirement for An "Independent Person" in Periodic Reviews
Was Enforceable

In seven of the contested cases (cases #1, #6, #7, #9, #14, #17, and
#A-3), the Agency found that no "independent person" participated in the
activity which the State said was a periodic review, concluding that
there was no timely periodic review. Section 475(5) requires that the
status of each child be reviewed no less frequently than once every six
months either by a court or by "administrative review." An
"administrative review" as defined in section 475(6) requires the
participation of at least one person who "is not responsible for the
case management of, or the delivery of services to, either the child or
the parents who are the subject of the review."

The State contended that the Agency should have accepted as periodic
reviews within the meaning of section 427 "supervisory reviews"
conducted by the social worker assigned to the child and the social
worker's supervisor. The State acknowledged that a supervisor was not
an "independent person," as clearly required by the statute. However,
it argued that the Agency was estopped from enforcing this requirement
because the Agency did not fail any FY 1982 cases on the basis that no
"independent person" participated in the review. The State asserted
that since the Agency did not notify the State until after the end of FY
1983 (in February 1984) that it would enforce this requirement for FY
1983, "the federal Agency prevented Maryland from taking responsive
measures during FFY 1983." State's post-hearing brief, p. 61.

The Agency argued that its failure to require the participation of an
"independent person" during the FY 1982 review did not eliminate this as
a requirement of the statute. It asserted that it was clearly
reasonable to enforce this requirement for FY 1983 since the State's
internal procedures, adopted in August 1981, called for an independent
person to participate in any periodic review not conducted by a court.

A similar situation was considered by the Board in Delaware Dept. of
Services for Children, Youth and Their Families, DAB No. 699 (1985).
The Board there rejected Delaware's argument that the Agency should have
accepted a "supervisory review" as an "administrative review" that would
have fulfilled the statutory requirement for a periodic review. The
Board found that Delaware's use of a "supervisory review" was not in
accordance with the clear statutory requirement that an independent
person participate in an administrative review and that Delaware could
not reasonably have relied on the Agency's failure to enforce the
requirement in the prior year. Accordingly, the Board found that
Delaware could not make out a prima facie case of estoppel. We see no
basis for distinguishing the case before us from Delaware.

The State also argued that the "independent person" requirement appears
in the Agency's case record survey form as a "minor" safeguard rather
than a "major safeguard." The State is correct that this is how the
"independent person" requirement is treated on the form, which was
issued by the Agency as an attachment to PI 82-06. Specifically, under
PI 82-06, the failure to provide a periodic review in a timely manner is
considered a failure to provide a "major" safeguard. This safeguard may
be considered met even if the periodic review fails to meet other
statutorily mandated aspects of a review--such as the requirement for an
"independent person"--designated as "minor" safeguards.

While the Agency may excuse the absence of an "independent person" under
certain circumstances, this flexibility would not apply to permit a
State after-the-fact to designate any activity as a periodic review
simply because it addressed some of the elements which are statutorily
required for a periodic review. In determining whether the "major
safeguard" of a timely periodic review has been met, a basic
consideration is whether the activity was intended as a periodic review.
Where a state seeks to substitute for its regular periodic review some
proceeding not designed for that purpose, a finding that the state has
timely provided a periodic review is not warranted unless the state
shows that the proceeding actually functioned as a periodic review by
meeting all statutory requirements for a periodic review. Accordingly,
the lack of an "independent person" may be excused as a failure to
provide a "minor" safeguard only when that failure occurs despite the
use of procedures designed to implement the periodic review requirement,
for example, where an "independent person" who is scheduled to
participate fails to appear.

In the present case, the State tried to characterize as periodic reviews
"supervisory reviews" which were not designed to include an "independent
person," and which the State's procedures did not intend to function as
periodic reviews. Thus, the absence of an "independent person" here is
not simply a minor deviation from procedures established for periodic
reviews but is instead a critical failing for purposes of determining
whether the State provided a timely periodic review.

Accordingly, we conclude that supervisory reviews were not acceptable as
periodic reviews in the cases identified above. Whether There Were
Children in Permanent Placements for Whom No Periodic Reviews Were
Required

The State also argued that the periodic review requirement did not apply
to children in permanent placements. It asserted that cases #6, #7, #9,
#11, and #12 involved children in permanent placements and should not
have been failed for lack of a timely periodic review.

The argument that children in permanent placements are exempt from
periodic reviews was raised by the State in its appeal of the FY 1982
determination as well. In DAB No. 706, the Board held that the State
reasonably interpreted the requirement not to apply to children in
permanent placements, and remanded the appeal to the Agency for a
continued case record review since the Agency conceded that three cases
involved children in permanent placements. Accordingly, the only issue
before us here is whether the children in question were in fact in
permanent placements. The Agency conceded that case #9 involved a child
in a permanent placement. Stipulation Regarding Individual Cases,
enclosed with 7/17/85 letter from Kaplan to Ballard. Thus, this case
should have passed.

Before proceeding to discuss the remaining individual cases, we
summarize here the guidance in DAB No. 706 for determining whether a
child in a permanent placement. The decision notes that, while the
determination must be based on the specific facts of each case, certain
criteria must be met in order for a case to be properly considered as
involving a permanent placement. In the absence of any definition by
the Agency, the Board found "generally reasonable" the State's
definition of a permanent placement as "a living arrangement which is
intended to be the permanent home, permanent living arrangement for that
child until the child reaches the age of majority." DAB No. 706, p. 19.
Under this definition, the Board noted, placements in addition to
adoption or legal guardianship could constitute permanent placements.
Other factors which the Board stated were critical in deciding whether
the State properly exempted a case from the periodic review requirement
were: (1) whether permanency had been achieved for the child at the
time the periodic review was due; (2) whether there was substantial
agreement by all interested parties that the placement be permanent, or,
in the absence of such agreement, a court order; and (3) whether the
legal status of the child, and not simply the child's living
arrangement, reflected a permanent placement.

Case #6

The Agency failed this case on the ground that a periodic review was not
held within six months plus 30 days (the "grace period" allowed by the
Agency) of the last periodic review on 8/3/82. The child, who had been
abused by her mother and whose father was unknown, was placed in foster
care in the home of her maternal grandmother by court order dated
5/19/77. Docket No. 85-70, Supplemental Record on Appeal (SR), p. 35.
A progress report by the social worker dated 9/9/82 recommended
"permanent foster care in the home of their grandparents" for the child
and her sibling. SR, p. 37. However, another report dated 8/18/83
stated that there was no service agreement because [the child's
grandmother] is not accepting this plan for the children." Id., p. 44.
Yet another report indicates that, as of early spring 1983, the child's
mother "was not that enthusiastic that the children remain in [the
grandmother's] . . . custody." Id., p. 43.

We conclude that this child was not in a permanent placement because
there was no agreement that the placement should be permanent. We noted
in DAB No. 706 that the agreement of all interested parties was a
critical factor.

The State argued that the placement was permanent because the child was
placed in the grandmother's home by court order and could not be removed
from the home except pursuant to another court order. TR I, p. 142.
However, there is nothing in the court order which indicates that the
placement was intended to be a permanent placement. In a decision in
which the Board addressed the question whether a child was in a court
sanctioned permanent placement within the meaning of the exception to
the dispositional hearing requirement in 45 C.F.R. 1356.21(e), the Board
stated that the "fact that the court may have known when it committed
the child to the State. . . that the child was living with a particular
foster family does not mean that the court determined that this was
appropriate as a permanent placement." Connecticut Dept. of Children
and Youth Services, DAB No. 952 (1988), p. 18. Similarly, we conclude
here that the court's placement of the child with a particular foster
family does not necessarily mean that the court intended the placement
as a permanent one. Moreover, we see no reason why the necessity to
secure another court order before the child could be moved to another
placement would make this placement a permanent one since the Department
of Social Services (DSS) could have sought another court order at any
time.

Furthermore, the record shows that the social worker and his supervisor
did not consider the placement with the grandmother a permanent one
during the period in question. A report signed by the social worker on
7/22/83 and the supervisor on 8/4/83 suggests a meeting with the mother
as "a first step in determining a permanent plan for these youngsters."
SR, p. 45. Accordingly, this case is not properly considered a
permanent placement.

Case #7

The Agency failed this case on the ground that a periodic review was not
held within six months plus 30 days of the last periodic review on
2/3/83. The child was placed in foster care with a specified family by
court order dated 12/2/77 because her father had evicted her and her
mother from their home and her mother was unable to provide food and
shelter. SR, p. 51. A permanency planning form, undated but apparently
prepared before 12/81, shows that DSS planned to seek "[g]uardianship
with the right to consent for adoption" and that adoption by the current
foster parents was contemplated. SR, p. 53. The record clearly
indicates that it was necessary for DSS to obtain guardianship since the
mother did not consent to adoption. SR, pp. 61, 63. (In view of this,
we do not accord any weight to the State witness' statement that
"everyone was in agreement that this was the placement for the child,
all parties verbally agreed this was the appropriate placement for this
child." TR I, p. 146.) A report signed by the supervisor on 8/23/83
states that DSS had petitioned the court for "guardianship . . . with
consent to adopt," and that the foster parents planned to adopt the
child. SR, p. 66.

We conclude that the child was not in a permanent placement because the
child's mother did not consent to the adoption and DSS did not have
guardianship with the right to consent to adoption at the time the
periodic review was due. As indicated previously, either the agreement
of all interested parties or a court order is necessary to support a
finding that the child was in a permanent placement. Moreover, although
placements other than adoption or guardianship can be considered
permanent placements, here we cannot find the child's placement with the
foster parents to be a permanent placement since there is no evidence
that the child would have remained in that placement on a permanent
basis if the court had denied DSS's petition for guardianship with the
right to consent to adopt.

The State argued, as it did with respect to case #6, that this was a
permanent placement because the court committed the child to the care
and custody of DSS for placement in a specified home, and the court
order could not be modified without resort to a subsequent court order.
TR I, p. 145. Like the court order in case #6, however, this court
order contains no indication that the court approved the child's
placement with the foster parents as a permanent placement. Similarly,
the necessity for a further court order before the child could be placed
elsewhere is of no significance. Accordingly, this case is not properly
considered a permanent placement.

Case #11

The Agency failed case #11 on the ground that a periodic review was not
held within six months plus 30 days of the last review on 9/30/82. The
child was placed in foster care in the home of her maternal grandparents
in 3/80. SR, p. 90. While both parents were incarcerated in the
Maryland House of Corrections as of 9/30/82 (SR, pp. 90, 92), a
permanency planning form which is undated but was apparently prepared
before 3/83 indicates that the planned permanent living arrangement was
"Return home to mother." SR, p. 94. A rescission of the child's
commitment to DSS was also planned. Id. A report signed by the social
worker on 6/2/83 states that the child and two siblings "were reunited
with their mother in 3/83." SR, p. 96. The report noted that the
family remained in the maternal grandparents' home. Id. By court order
dated 7/13/83, the order committing the child to DSS was rescinded. SR,
p. 99.

The State took the position that no periodic review was necessary
because the child had returned home. In DAB No. 706, the Board
concluded that "a periodic review is not required for a child returned
to his own home." P. 26. Thus, the question here is whether this
child had in fact returned home within the meaning of the statute.

The Agency stated that the child "was reunited with her mother pursuant
to an order dated July 13, 1983. . . ," and that prior to the order,
"the child was clearly in foster care. . . ." Administration for
Children, Youth, and Families' Statement of Cases in Dispute, dated
7/16/85, p. 4. We agree that the timing of the child's reunification
was critical. However, to the extent that this constitutes an argument
that the child was not properly considered as having returned home to
her mother until the child's commitment to DSS was rescinded, despite
the fact that she actually lived with her mother as of 3/83, we
disagree. Instead, we conclude that the record supports a finding that
the child returned home within the meaning of the statute in 3/83.
Although the child was still committed to DSS at that time, DSS clearly
intended that she remain permanently with her mother since rescission of
the commitment was planned. Thus, there was no real conflict between
the child's living arrangement as of 3/83 and her legal status.
Moreover, the fact that the child remained in the grandparents' home
does not mean that she had not returned home; the social worker's report
indicated that the mother had joined the child in the home and "has had
full responsibility for care and supervision since 3/83." SR, p. 95.

Accordingly, we conclude that the child was not subject to the periodic
review requirement since she had returned home to her mother.

Case #12

The Agency failed case #12 on the ground that no periodic review was
held between March 1 and October 1, 1982. The child was placed in
foster care in 1972 because the mother was incapacitated. SR, p. 109.
The child's mother died in 1976. SR, p. 111. A social worker's report
dated 8/2/83 indicated that on 6/9/83, the child's father had requested
that the child be returned to him. The report further stated that no
reunification funds were available, but that the Master for Juvenile
Causes had "mandated return or on before (sic) 9/1/83 and efforts
continue to effect reunification by that date." SR, p. 115. By order
dated 8/9/83, the court committed the child to DSS "for placement with
father" for a period not to exceed six months, with court review within
six months if DSS had not filed a request for rescission of the
commitment. SR, p. 117.

The State argued that the child was exempt from the periodic review
requirement because the child was reunited with his father during fiscal
year 1983. As noted previously, a critical factor is whether the child
was in a permanent placement at the time the periodic review was due.
Here, the child was returned to the father months after the periodic
review was due; indeed, the father did not even request the child's
return until after the periodic review was due.

Accordingly, we conclude that the child's reunification with his father
did not excuse the State from holding a periodic review in this case.

Whether a Treatment Facility Staffing Constituted a Periodic Review

The Agency failed case #1 on the ground that there was no periodic
review within six months plus 30 days of the prior review on 9/24/82.
The State argued that a "staffing" held on 1/19/83 at the psychiatric
hospital where the child was placed constituted a periodic review. (The
State's argument that a supervisory review held within that time period
satisfied the periodic review requirement was discussed earlier in this
decision.) The 1/19/83 staffing was documented in a "Diagnostic
Formulation and Individual Treatment Plan" signed by the child's
therapist on 1/21/83. State's hearing exhibit I. A State witness
testified that the staffing constituted a periodic review--

. . . because it was looking at the child's current placement,
and although it's called a diagnostic formulation, it was really
very wide-ranging. It talked about a great deal more than his
emotional health. It talked about his adjustment in placement,
his social adjustment, and his legal status, it talked about his
vocational and educational plans and his hopes for his future.
It states short term goals and long term goals which were in
keeping with the previously stated goals in the child's case
plan.

TR I, p. 178. An Agency witness testified, however, that the staffing
did not satisfy the requirement for a periodic review because it was not
convened for the purposes described in the Act. TR. II, pp. 150-151;
see also, Agency's post-hearing brief dated 9/17/85, p. 10.

As discussed earlier, the fact that an activity was not intended as a
periodic review does not mean that it could not serve this purpose if
all of the statutory requirements were met. Here, however, we cannot
find that the staffing constituted a periodic review since it did not
function to review the foster care status of the child. Instead, the
record shows that the purpose of the staffing was to perform a
psychiatric evaluation of the child. SR, Ex. 1, p. 14. Based on the
evaluation, hospital staff recommended long-term treatment at the
hospital. Id.; see also, State's hearing exhibit I, p. 5. This
recommendation was not formally adopted until April 1983, when a
permanency planning form showed "long term in-patient treatment" at the
hospital as a necessary step towards implementing a plan for the child's
return home. SR, Ex. 1, p. 22. Thus, the staffing merely served as a
basis for developing a case plan for the child. The record contains no
earlier case plan which might have been considered by the participants
in the staffing, nor is there any reference in the report of the
staffing to any such plan.

Accordingly, we conclude that the 1/19/83 staffing did not satisfy the
requirement for a periodic review.

Whether Cases Were Properly Failed Based on the Absence of a Periodic
Review Due in the Prior Fiscal Year

The Agency failed cases #12 and #14 on the ground that no periodic
review was held from March 1 through October 1, 1982. The Agency
asserted that the State thus failed to meet its certification "that its
cases were continuously in compliance with the requirements of section
427." Agency's brief dated 6/19/85, p. 12. The State pointed out that,
for FY 1982 cases, the Agency gave states a 90-day grace period after
the beginning of the fiscal year in which to hold a periodic review
which was due in the last six months of the prior fiscal year. The
State asserted that the requirement that the State hold reviews due in
the last six months of FY 1982 by the first day of FY 1983 was arbitrary
and capricious since it was not articulated in any regulations or
program instructions and no advance notice was given. The State also
asserted that the policy was unreasonable because it ignored the results
achieved in a given case during the rest of the fiscal year.

The question whether a case was properly failed based on the lack of a
periodic review due in a prior year was presented in Connecticut Dept.
of Children and Youth Services, DAB No. 952 (1988). There, the Agency
failed cases for which there was no review within the last six months
plus 30 days of the prior fiscal year. The Board concluded that the
Agency--

properly exercised its discretion in finding the cases out of
compliance for failure to establish periodicity. That the Act
contains specific requirements as to the timing of periodic
reviews . . . is clear. There is no way to determine whether
the first review held in FY 1985 was timely without knowing when
in FY 1984 the last review took place. . . . If each year were
evaluated without regard to past performance, then up to six
months could be added to the six months the Act allows between
periodic reviews. . . . This not only violates the specific
requirements of the Act with respect to the timing of periodic
reviews. . . , but also frustrates congressional intent to
prevent foster care "drift." Thus, although funds are
separately appropriated for each fiscal year, the section 427
protections cannot be implemented if each fiscal year is viewed
separately in evaluating a state's performance.

Connecticut, pp. 15-16.

However, unlike Connecticut, which involved a compliance review
following two unreviewed years, this case involves the second of two
successive compliance reviews. The Board left open in Connecticut "the
question whether a case could properly be failed for lack of periodicity
where the case was in effect failed on the same basis in two successive
years." Connecticut, supra, p. 16, n. 11. The State did not allege
that either of the two cases in question here failed the FY 1982 case
record review for lack of a timely periodic review in the last half of
that fiscal year. Even if that had occurred, however, we would conclude
that the case was properly found out of compliance in FY 1983.

A case for which no periodic review was held in the last six months
(plus 30 days) of FY 1982 could clearly have been properly failed in FY
1982 since the Act requires a periodic review to be held every six
months. If a periodic review had not yet been held as of the first day
of FY 1983, then the first review due in FY 1983 was untimely. Thus,
the lack of a periodic review is relevant in both years.

We also note that the Agency's policy did not result in failing in FY
1983 all cases included in the sample for which the second periodic
review due in FY 1982 was late. With the 30-day "grace period," the
State had up to seven months--in a case in which the periodic review was
due on March 1, 1982--in which to hold the periodic review before there
would be a basis for failing the case in FY 1983. Thus, the State was
not automatically penalized twice for the same failing, but had an
opportunity to avoid a finding of non-compliance in FY 1983 by holding
the overdue periodic review by October 1, 1982.

Moreover, the Agency's decision to accord the states an additional 90
days beyond the beginning of FY 1982 to hold an overdue periodic review
is not a basis for finding that the same treatment was required for the
FY 1983 case record review. This Board has consistently held that the
granting of a "grace period" which effectively extends the statutory
deadline for periodic reviews or dispositional hearings is a matter of
Agency discretion and does not authorize a state to grant itself a
further extension of time. See Illinois Dept. of Children and Family
Services, DAB No. 1037 (1989), at p. 19. Thus, the fact that the State
received a 90-day "grace period" for FY 1982 did not entitle it to the
same "grace period" in FY 1983.

Accordingly, we find cases that cases #12 and #14 were properly failed
based on the lack of a periodic review due in the prior fiscal year.

Conclusion

For the reasons discussed above, we remand the appeal to the Agency to
continue the FY 1983 case record review. In determining how many
additional cases to review, the Agency should count cases #9 and #11 as
having passed the review.

The Agency may wish to review cases beyond the minimum number required
under the sequential sampling method. This would eliminate the necessity
for a continued review in the event that the State appeals the Agency's
determination and the Board reverses the Agency's findings on one or
more cases.

If the Agency once again finds the State ineligible for FY 1983 section
427 funds, the State may return to the Board, within 30 days after
receiving the Agency's determination, for the limited purpose of Board
review of the Agency's findings in additional cases reviewed on remand.

________________________________ Donald F. Garrett


________________________________ Norval D. (John) Settle


________________________________ Judith A. Ballard Presiding
Board