Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
SUBJECT: Pennsylvania Department
DATE: August 2, 1990
of Public Welfare Docket No. 90-78
Decision No. 1181
DECISION
The Pennsylvania Department of Public Welfare
(Pennsylvania/Commonwealth) appealed a determination by the Office of
Human Development Services' Administration for Children, Youth and
Families (OHDS/Agency) disallowing $7,090.85 in federal financial
participation (FFP) claimed by Pennsylvania under Title IV-E of the
Social Security Act (Act) for the 1986 fiscal year.
The disallowance was based on the Agency's review of 68 adoption subsidy
claims in four counties. The review uncovered seven erroneous claims.
In its brief, the Commonwealth conceded that the Agency's decision to
disallow three of the claims was correct. In a subsequent telephone
conference, Pennsylvania accepted the Agency's findings in a fourth
case. Thus, this appeal addresses the issues raised by the three claims
still in dispute and involves $4,295.83 in FFP.
This appeal was heard under the Board's expedited process as set out at
45 C.F.R. 16.12. The record consists of the parties' briefs and
evidentiary submissions as well as the tape of our July 28, 1990
telephone conference. Based on the record and the following analysis, we
uphold the full disallowance of $4,295.83 for the remaining three
claims.
Background
Title IV-E of the Act provides states with federal payments for foster
care and adoption assistance for children who would otherwise be
eligible for federal assistance under Title IV-A of the Act. 1/ See
section 470 of the Act. Section 471 of the Act requires that states
wishing to participate in Title IV-E have an approved state plan for
foster care maintenance payments and adoption assistance. Section 473
of the Act establishes the Adoption Assistance Program. In relevant
part that section provides:
(a)(1)(A) Each State having a plan approved under this part shall
enter into adoption assistance agreements . . . with the adoptive
parents of children with special needs.
(B) Under any adoption assistance agreement entered into by a State
with parents who adopt a child with special needs, the State --
* * *
(ii) in any case where the child meets the requirement of
paragraph (2), may make adoption assistance payments to such
parents, . . . in amounts so determined.
(2) For purposes of paragraph (1)(B)(ii), a child meets the
requirements of this paragraph if such child --
(A)(i) at the time adoption proceedings were initiated, met
the requirements of section 406(a) or section 407 or would
have met such requirements except for his removal from the
home of a relative . . . either pursuant to a voluntary
placement agreement with respect to which Federal payments are
provided . . . or as the result of a judicial determination to
the effect that continuation therein would be contrary to the
welfare of such child.
As we noted above, the Agency disallowed a total of seven claims. Each
claim is identified by a case number. 2/ OHDS disallowed funding for
Cases No. 52 and No. 56 because the court orders removing these children
from their homes did not indicate that continued placement in their
homes would be contrary to their welfare. See OHDS Br., p. 2; see also
Pennsylvania Exhibits (Exs.) A-1 and A-2.
Pennsylvania argued that the law did not require that a court order
actually contain such specific language. Rather, Pennsylvania asserted
that evidence of a judicial determination to that effect would suffice.
Pennsylvania contended that testimony from the relevant court hearings
would indicate that the children's continued placement in their mothers'
homes would be contrary to the children's welfare and that all
reasonable efforts had been made to avoid foster care placement.
Pennsylvania Br., pp. 2-3.
Case No. 57 involves a situation in which a child was voluntarily placed
in a foster home for a 30-day period. Pennsylvania admitted that during
this period, its State Plan did not provide maintenance payments for
voluntary placements. See 45 C.F.R. 1356.30(a). However, Pennsylvania
indicated that after the 30-day voluntary placement, the child was
placed in a foster home pursuant to a court order. Pennsylvania
indicated that after the 30-day voluntary period, it is the duty of the
responsible county agency to petition the court for placement of the
child. Pennsylvania asserted that a judicial determination to place a
child in a foster setting "supersedes any voluntary placement
arrangement and foster care payments should be deemed eligible [for
FFP]." Thus, Pennsylvania framed the issue in this case not as a
question of whether a voluntary placement would be eligible for FFP, but
as one in which there had been a judicial determination that placement
was necessary for the child. Pennsylvania argued that there was nothing
in the statute or implementing regulations supporting the conclusion
that voluntary placement status continued indefinitely and could never
be considered a court- ordered placement. Pennsylvania Br., pp. 4-5.
OHDS did not dispute that section 427(a)(1) of the Act and the
implementing regulations at 45 C.F.R. 1356.60(a) provide FFP for foster
care maintenance payments in cases of voluntary placements. However,
OHDS noted that, at the time in issue, Pennsylvania's Title IV-E State
Plan did not provide maintenance payments for voluntary placements.
OHDS argued that the subsequent court order directing that the child be
placed in a foster setting did not alter the fact that the original
placement was voluntary. OHDS also noted that even if this case were
viewed as a court-ordered placement, there had been no judicial
determination that continued residence in the home of a relative was
contrary to the child's best interest. OHDS Br., pp. 2-3.
Analysis
Pennsylvania's claims for FFP in each of these cases must fail.
Cases No. 52 and No. 56
Pennsylvania Exhibits A-1 and A-2 are copies of the court orders
removing these children from their homes. In each case the orders
simply state that the child is being placed in the custody of the county
youth services agency. These orders contain no determination that
continued residence in their particular homes would be detrimental to
the children's welfare. During the telephone conference, Pennsylvania
requested and received an opportunity to obtain and submit documentation
from the court, which would satisfy the Agency's concerns regarding
judicial determinations of the reasons for the removal of these children
from their homes. Pennsylvania was unable to obtain any documentation
to support its position. 3/
Section 473 of the Act clearly requires a judicial determination to the
effect that continued residence in the home of a relative would be
detrimental to the child's welfare. Absent such determination, these
cases are clearly ineligible for FFP under Title IV-E.
Case No. 57
This case is ineligible for FFP under either of two theories. First, as
the Commonwealth conceded, during the period at issue Pennsylvania's
State Plan did not provide for foster care maintenance payments in cases
of voluntary placements. Thus, if we were to adopt OHDS's position, and
view this child's placement as strictly voluntary, the claim is clearly
ineligible for FFP under the State Plan in effect at that time. Title
IV-E funding is available only for payments made in accordance with an
approved state plan. See section 471 of the Act, and 45 C.F.R. 1356.20.
However, even if we were to find merit in the Commonwealth's position,
which essentially is that a subsequent court order in a case of
voluntary placement transforms the placement to one resulting from a
judicial determination, this claim would still not qualify for FFP. The
court order in this case (Pennsylvania Exhibit A-3) is no more explicit
than the orders in the preceding two cases. There is no judicial
determination that continued residence in the home of a relative would
be detrimental to the child's welfare. Given these facts, we need not
reach the question of whether a subsequent court order transforms the
original nature of a voluntary placement. 4/ This claim is simply not
eligible for FFP.
Conclusion
Based on the preceding analysis, we sustain the Agency's determinations
in Cases No. 52, No. 56, and No. 57 and uphold the disallowance of
$4,295.83 resulting from those determinations. Given our findings on
the disputed cases and the Commonwealth's concession in the others, we
sustain the entire disallowance of $7,090.85.
Judith A. Ballard
Norval D. (John) Settle
Alexander G. Teitz Presiding Board Member
1. Title IV-A is the Aid to Families with Dependent Children or AFDC
program.
2. The disallowed claims conceded by Pennsylvania are Nos. 17, 21,
45, and 68. See Pennsylvania Brief (Br.), pp. 1-2; and Summary of
Telephone Conference (June 29, 1990). The FFP in the disputed claims is
broken down as follows: Case No. 52 -- $621.08; Case No. 56 --
$1,397.44; Case No. 57 -- $2,277.31.
3. During the conference, the Commonwealth referred to an
Administration for Children, Youth and Families Information Memorandum
(89-08) which allowed nunc pro tunc court orders to satisfy judicial
determination requirements in certain instances. Pennsylvania submitted
the Information Memorandum, but never submitted any documentation to
show that the circumstances of the claims at issue here came within the
scope of the Memorandum.
4. For the record, we note that the Agency has addressed the question
of whether a voluntary placement can be considered a judicial removal in
circumstances such as are present in this case. In short, the Agency's
determination is that a placement is either voluntary or made subsequent
to judicial determination. Once voluntary, the placement cannot later
be consider to have resulted from a judicial determination. See OHDS
Ex. 3 (Administration for Children, Youth and Families, Policy
Interpretation Question, 89-03, p. 2). Since we do not rely on this
interpretation for our decision, we need not address the question of
whether it is binding on the states.