Massachusetts Department of Social Services, DAB No. 1289 (1992)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Appellate Division


SUBJECT:  Massachusetts Department of Social Services

DATE: January 7, 1992
Docket No. 90-138
Decision No. 1289

DECISION

The Massachusetts Department of Social Services (Massachusetts or State)
appealed the determination of the Administration for Children and
Families (Agency) that the State was ineligible for $1,838,495 advanced
to it for fiscal year (FY) 1988 under section 427 of title IV-B of the
Social Security Act (Act).  Section 427 of the Act provides that a state
may receive additional funds for child welfare services, beyond the
amount available under section 420 of the Act, if the state meets
certain requirements for protecting children in foster care.

The Agency evaluated states' compliance with section 427 on two levels.
First the Agency determined whether a state had established policies or
procedures for implementing the requirements of the Act.  Second, the
Agency reviewed a sample of case records to determine whether these
policies or procedures were operational.  If a state failed to establish
a requirement as a matter of policy, or a state did not comply with the
applicable requirements in a certain percentage of the cases as
determined through a case sample, the Agency required the return of the
section 427 funds.

In this case, however, the Agency approved Massachusetts' policies and
procedures but found the State ineligible without conducting a case
record survey.  The determination of ineligibility was based on the
Agency's rejection of the sampling methodology proposed by the State for
a case record survey to determine compliance with section 427.  As
pertinent here, the State proposed to exclude from the universe for the
sample certain children in voluntary placements whom it identified as
"discretionary special needs children" (special needs children).  The
State also proposed to have the universe include cases which had been
open for less than six consecutive months during FY 1988 and cases which
were closed as of the end of FY 1988.  The Agency concluded that this
sampling methodology was invalid and that the State should be found
ineligible for the section 427 funds since a case record survey could
not be conducted based on this methodology.  At the hearing held in this
case, however, the Agency stated that the proper remedy was to permit
the Agency to conduct a case record survey using the sampling
methodology which it had determined was correct.  Transcript of hearing
(TR) 21.  The State agreed that this would be appropriate if the Board
were to agree with the Agency regarding the sampling methodology.  Id.

For the reasons stated below, we conclude that the Agency properly
rejected the State's proposed sampling methodology.  Therefore, in
accordance with the agreement of the parties, we remand the appeal to
the Agency to conduct a case record survey using the methodology
required by the Agency here.


Applicable Law and Guidelines

The Adoption Assistance and Child Welfare Act of 1980, Public Law
96-272, amended the program of child welfare services under title IV-B
of the Act and also established a new foster care maintenance program
under title IV-E of the Act.  These amendments were precipitated by
studies which showed that the public child welfare system had become a
holding system for children living away from parents, rather than a
system assisting parents in carrying out their roles and
responsibilities and providing for alternative permanent placement for
children who cannot return to their own homes.  Thus, one of the goals
of Public Law 96-272 was to ensure that children do not remain adrift in
the foster care system.  To this end, the statute provided that states
could obtain additional funding for child welfare services if they had
implemented case plan and case review procedures that periodically
assessed the appropriateness of a child's placement in foster care and
reevaluated the services provided to assist the child and the family.
See 48 Fed. Reg. 23104 (May 23, 1983).

As pertinent here, section 427(a)(2)(B) requires as a condition for
receipt of section 427 funds that a state have implemented and be
operating to the satisfaction of the Secretary --

 A case review system . . . for each child receiving foster care
 under the supervision of the State . . .

An Agency issuance, ACYF-PIQ-82-12, dated July 12, 1982, identified two
salient factors in determining what children should be covered by the
case review system (as well as other section 427 requirements).  The
first factor was whether the child is in foster care.  The second factor
was whether the child is "under the responsibility of the state agency
administering or supervising the administration of the title IV-A(FC),
IV-E, or IV-B State plan[.]"  With regard to the second factor, the PIQ
further stated that "[a] controlling indicator . . . is whether the
State agency has the responsibility for care and placement of the child
and the power to determine the child's placement."  ACYF-PIQ-82-12, p. 4
(at State's appeal file, exhibit (ex.) 9).

As part of its compliance review process, the Agency conducted a case
record survey.  In the first year of certifying compliance with section
427 requirements, a state was found eligible if the section 427
protections were provided in 66% of the sampled cases.  The compliance
rate increased to 80% for subsequent reviews and 90% for triennial
reviews.  PI-82-06, dated June 3, 1982, p. 11 (at Agency ex. 3).  The
Agency also took into consideration problems which states might have in
their initial year of operation by accepting sample cases if the section
427 procedures were implemented by the end of the year and by applying
grace periods so that states were not penalized when reviews or hearings
were late only by a matter of days.  Id; see also Maryland Dept. of
Human Resources, DAB No. 706 (1985), p. 7.

The Agency specified the composition of the universe for the case record
survey in its Section 427 Review Handbook (dated August 1988), which
stated in pertinent part:

 For the Initial Review, the sample must include children who
 have been in foster care for at least six consecutive months
 during the fiscal year under review and whose case is still open
 at the end of the fiscal year.  This includes all children who
 entered care before 4/1 and are still in care on 9/30 of the
 year under review.

 For Subsequent and Triennial Reviews, the sample must include
 both open and closed cases provided they were open for at least
 six consecutive months during the fiscal year under review.

State ex. 14, p. 6.  PI-82-06 referred specifically to the case record
survey for initial reviews for the year ended September 30, 1981, and
similarly required that the children sampled have been in foster care
six months or more as of that date.  See PI-82-06, Attachment E, pp. 4,
8.


Factual Background

FY 1988 was the first year for which the State certified that it had a
section 427 program in operation.  (A certification submitted for two
earlier years was withdrawn.)  The Agency notified the State on November
17, 1988 that it was initiating a review to verify compliance with
section 427 requirements.  The Agency requested that the State provide
certain information to enable the Agency to determine whether the
State's administrative procedures complied with section 427.  The Agency
also requested that the State identify the universe of foster care cases
for a case record survey to determine whether the administrative
procedures had been implemented.

In a letter responding to the latter request, the State specifically
requested that one category of children not be included in the universe,
stating in pertinent part:

 This category is defined as those children in placement through
 a discretionary/special needs voluntary agreement with the
 parents.  In this regard, a "discretionary/special needs"
 voluntary placement case is one in which the [State] agency has
 agreed to assume responsibility for the care of a child in order
 to be able to supply him/her with special services that the
 child would not otherwise be able to obtain (e.g., special
 education services; residential treatment; etc.).  This type of
 voluntary placement case is generally opened in response to the
 service needs of the child rather than in response to actions or
 limitations of the parent.  Further, there is no Federal
 involvement in these cases as the Department will exclude them
 from Title IV-E claims.

State ex. 5 at 2.

By letter dated July 16, 1989, the Agency notified the State that its
administrative procedures had been approved.  However, the Agency also
indicated that special needs children were not appropriately excluded
from the section 427 universe, stating:

 In the absence of any distinction in policies, procedures, or
 placement agreement which applied to children in voluntary
 foster care during FFY [federal fiscal year] 1988 there is no
 basis in administrative procedures to differentiate these
 children from the universe of cases from which the sample will
 be drawn.  The policy and procedural changes being proposed for
 FFY 1989 appear to establish a distinct program for children in
 the special needs category and leave parental rights of care
 intact.  These policies were not in effect during FFY 1988 and
 therefore are not a basis to conclude that these children were
 not in foster care as defined by Policy Announcement 87-02.

State ex. 6 at 4.

In response, the State advised the Agency that it had requested a
recommendation from its legal counsel concerning how to proceed with
respect to the Agency's determination regarding special needs children.
The State also indicated that there might be "other points of conflict
between DSS [Department of Social Services] and your agency as regards
the delineation of the Section 427 universe."  State ex. 7 at 4.
Specifically, the State stated that it was unreasonable for the Agency
to require that it "only include those cases which were in its
care/custody for at least six (6) months during the fiscal year under
review and which were still open on the last day of that fiscal year."
Id.  The letter articulated the State's view that --

 this requirement is arbitrary and capricious (i.e., it could
 force DSS to exclude cases that had been in care for up to
 eleven (11) months and twenty-nine (29) days) -- and it unfairly
 penalizes DSS with regard to those out-of-home care cases for
 which the agency has achieved a timely reunification (i.e., if a
 child is returned home before (s)he has been in care for fewer
 than six months, the agency is not allowed to count that case
 even though it is an obvious "success" in terms of the
 underlying intent and purpose of P.L. 96-272).

Id.  The State indicated that it was awaiting a recommendation from its
legal counsel about how to proceed with regard to this matter as well.

The State ultimately submitted a proposed sampling methodology which
excluded special needs children and included cases which had not been
open at least six months during the fiscal year or which were not open
at the end of the fiscal year.  The Agency subsequently determined that
the State was ineligible for FY 1988 section 427 funds because of these
aspects of its sampling methodology.

Below, we discuss first whether the universe for the case record survey
should include special needs children and then whether the universe
should include only cases which were open for at least six months during
the fiscal year and remained open at the end of the fiscal year.

Discussion

   Special Needs Children

This case presents the issue whether, during FY 1988, the State was
required to provide the section 427 protections to children in foster
care whom the State later identified as special needs children.  The
State admitted that it had no official policy or procedure which
distinguished special needs children from other children in voluntary
placements who were covered by section 427.  Indeed, the State
acknowledged that it used the same voluntary placement agreement (at
State ex. 22) for special needs children as for other children in
voluntary placements.  The State also admitted that special needs
children were "receiving foster care" within the meaning of section
427(a)(2)(B).  However, the State argued that they were not covered by
section 427 because they were not "under the supervision of the State"
within the meaning of this section.  The State asserted that the absence
of State supervision was manifest in the way in which special needs
children were treated as a matter of practice, which, according to the
State, differed markedly from the way in which other voluntarily placed
children were treated.  The practical distinctions alleged by the State
included the following:

     1.  Other voluntary placements occurred in cases in which there was
     actual or suspected abuse or neglect, whereas a special needs child
     was placed solely to allow the State to assist the parents with the
     costs of meeting the child's special needs.

     2.  Placement decisions for special needs children were made by the
     child's family: the child would not be placed if the child's family
     did not agree to the placement and any placement would be
     terminated at the parents' request.  Placement decisions for other
     children in voluntary care were ultimately made by the State, which
     would seek an order from a court for involuntary placement of the
     child if the parents did not agree to placement initially or
     objected to the child's continuation in foster care.

     3.  Most special needs children were placed in group care and
     residential treatment facilities.  Other children in voluntary
     placements were usually placed in foster homes.

     4.  The State agency had minimal contact with the facility in which
     the special needs child was placed.  In the case of other
     voluntarily placed children, the caseworker would be in constant
     touch with the foster home and the child's biological family.

     5.  The responsibility for decisions concerning the child's
     education and medical treatment rested with the biological parents
     of the special needs child, but with the foster parents of other
     children in voluntary placements.

     6.  Parents of other children in voluntary placements often had an
     agreement with the State to attend Alcoholics Anonymous meetings,
     substance abuse programs, or therapy to address their abuse of the
     child.  There were no comparable requirements for parents of
     special needs children.

     7.  The State did not monitor the child or the family situation
     after the placement of a special needs child was terminated,
     whereas the State would continue to monitor the situation for up to
     six months in the case of other children who returned home
     following a voluntary placement.

     8.  The State did not claim title IV-E funding for special needs
     children but did claim such funding for other children in voluntary
     placements.

We reject the State's position that special needs children should be
excluded from the universe for the section 427 case record survey for
the following reasons:

     o  The basic issue here is whether the State had responsibility for
     the care and placement of special needs children and the power to
     determine their placement or, in other words, whether these
     children were under the supervision of the State.  The State's own
     description of special needs children (used in its inventory of
     children in foster care) was as children for whose care the State
     had the responsibility.  State ex. 3.  Moreover, the voluntary
     placement agreement in effect at this time explicitly gave the
     State the power to determine where the child would be placed; the
     mere practice of consulting with parents on placement of special
     needs children (a practice which the agreement specifically
     authorized with respect to all children), would not deprive the
     State of the power accorded to the State by the agreement.  See
     State ex. 22, para. 5.

     o  The State's own testimony showed that the State clearly
     understood that special needs children were in the section 427
     universe.  Both State witnesses testified that the State had
     developed a program (known as the parenting partnership program)
     specifically to remove these children from the section 427
     universe, knowing that section 427 funding was in jeopardy because
     these children were not receiving dispositional hearings at 18
     months, as required by the Act.  TR 44-50, 64, 75, 105-107; see
     also TR 204-205.  The State did not implement the program until
     1989 for political reasons, not because the State did not know
     earlier the potential effect on section 427 funds of the failure to
     change its relationship with these children.  TR 51-52.

     o  The State presented no convincing evidence to show that it in
     fact applied an interpretation of its policies that distinguished
     between types of voluntary placements.  The State presented no
     testimony from any caseworker that the alleged distinctions between
     special needs children and other children in voluntary placements
     affected actual casework practice during the period in question
     here, nor any case record documentation showing the distinctions.
     The State's main witness was the Director of External Relations for
     the Department of Social Services, whose primary responsibility was
     ensuring receipt of federal funds.  TR 25, 27.  While he expressed
     his opinion that the "overall responsibility" for care of a special
     needs child fell to the parents and that the "supervision or
     control of the child during the time the child was in placement"
     rested between the parents and the residential treatment facility
     (TR 39), this opinion was obviously based on his general impression
     of the situation rather than a first-hand knowledge of specific
     cases and ignored the child's legal status under the voluntary
     placement agreement.

     o  In any event, as discussed below, we find based on the evidence
     in the record that the State did not in practice clearly
     distinguish special needs children from other children in voluntary
     placements who were admittedly receiving foster care under the
     supervision of the State.  It appears from the State's own
     description of its practice that many of the alleged distinctions
     were not present in every case.  Other alleged distinctions were
     contrary to the express terms of the voluntary placement agreement
     used for both special needs children and other voluntarily placed
     children.  Moreover, some of the alleged distinctions do not have
     any bearing on the question whether special needs children were
     under the supervision of the State.

We find specifically that the State's reliance on some of the alleged
distinctions is unwarranted because there was some overlap possible
between special needs placements and other voluntary placements.  For
example, while the State alleged a distinction on the basis of whether
placement resulted from abuse/neglect, the State did not rule out the
possibility that reports of abuse/neglect had led to the placement of
some special needs children.  See TR 87-89.  Moreover, the State did not
address how it treated children who were placed because they were
delinquent or out of control.  Since some such children might have
warranted treatment as special needs children, the basis for placement
is not necessarily a distinguishing factor.

The State also alleged that most special needs children were in group
care and residential treatment facilities; however, since some special
needs children were in foster homes, this is not a distinguishing
factor.  See TR 33.  (There is no dispute that children in all three
types of placements were in foster care, moreover.)  In any event, while
the characteristics of the special needs children may have influenced
the reason for placement and the type of placement, that does not show
that the State considered itself as having no responsibility for the
children.

In addition, the record does not support the State's allegation that it
could not seek a court order to continue a special needs child in foster
care over the objection of a parent.  Instead, the voluntary placement
agreement used for all voluntarily placed children specifically states
that "[i]f the parent(s) terminates this Agreement by giving written
notice to D.S.S., and D.S.S. believes that returning the child(ren) home
will place the child(ren) at risk of abuse or neglect, D.S.S. may
petition a court of competent jurisdiction for custody of the child(ren)
. . . ."  State ex. 22, para. 2.  In addition, even if the State could
not seek a court order to remove special needs children from their
parents initially, this does not distinguish special needs children from
other children in voluntary placements, but rather distinguishes all
voluntarily placed children from children who were placed pursuant to a
court order.   Moreover, the inability of the State to seek a court
order with respect to special needs children would not have any bearing
on whether these children were supervised by the State while a voluntary
placement agreement was in effect.

Similarly, whether or not the State monitored a case after the
termination of the voluntary placement is not a useful distinction for
purposes of this appeal since it does not show whether or not the State
was responsible for the supervision of the child while the child was in
foster care.

The State also failed to demonstrate that the degree of contact between
the State and the foster care facility was a distinguishing factor.
While the State indicated that there was minimal contact in the case of
special needs children and constant contact in the case of other
voluntarily placed children, it did not specify a point at which the
degree of contact, which would likely vary depending on the particular
circumstances of a case, would clearly identify a case as one type of
case or the other.  Moreover, one State witness acknowledged that some
contacts would be made with a residential facility in which a special
needs child was placed.  TR 34.  Fewer contacts simply indicates a
lesser degree of supervision of special needs children, not a lack of
supervisory responsibility.

Furthermore, while the State alleged that special needs children
differed from other voluntarily placed children with respect to how
decisions concerning their medical treatment were handled, there was no
indication of such a difference in the voluntary placement form used for
all children, which stated "DSS shall have the right to approve any and
all routine and emergency medical, psychological, and dental care,
testing or studies."  State ex. 22, para. 8.  Moreover, the State
acknowledged that it had no policy of communicating to foster parents of
special needs children that they should consult with the natural parents
before arranging medical or dental services for the child.  TR 85.
Thus, this was not a distinguishing factor.

In addition, it was not a distinguishing factor that parents of special
needs children were not required to participate in AA programs or the
like since parents of other children in voluntary placements were not
always required to do so.

We also disagree that the absence of any claim for title IV-E funding
for special needs children is a significant distinguishing factor.  As
previously noted, section 427 requires that certain protections be
provided to all children receiving foster care under the supervision of
the state.  The State did not point to anything in the language of the
statute which further limits the scope of the section to only those
children for whom title IV-E funding is claimed.  If the children were
otherwise covered by section 427, the State cannot exclude them from its
coverage merely by choosing not to claim title IV-E funding for them.
This view is not inconsistent with Illinois Dept. of Children and Family
Services, DAB No. 1037 (1989).  The Board stated in that decision that
if there were any title IV-E claims, this would undermine Illinois's
contention that the children in question were not in foster care since
Illinois had effectively acknowledged that title IV-E children were in
foster care.  It does not necessarily follow that the lack of title IV-E
claims means that the children at issue here were not in foster care.

We also note that, while the State indicated that it could identify
special needs children by using an inventory of foster care children
taken by the State in September 1988, this does not mean that a
distinction was made as a matter of practice prior to that time.  The
inventory required caseworkers to identify each voluntarily placed child
in the inventory as either a special needs or a preventive/protective
placement.  This was done based on how each case was actually handled.
However, if a child was not identified as a special needs child when the
voluntary placement agreement was entered into, then the State had the
same responsibility for the child's placement and care as it did for any
other voluntarily placed child, regardless of whether it exercised this
responsibility.

We therefore find that the State's treatment of special needs children
did not differ from that of other voluntarily placed children in such a
way as to show that special needs children, unlike the other children,
were not "under the supervision of the State."  This does not mean that
there were no differences between special needs children and other
children in voluntary placements, or that special needs children would
necessarily have benefitted from the section 427 protections to the same
extent as the other children.  Nevertheless, there was clearly some
benefit to be obtained from the application of the section 427
protections to special needs children.  The State itself acknowledged
that permanency planning was required for special needs children as well
as for other voluntarily placed children.  TR 87.  The purpose of the
section 427 protections is to assure that such planning is done
initially and that progress towards achieving permanancy (i.e., by
returning the child to his parents, adoption or placement in permanent
foster care) is evaluated periodically.  The State stated that it
required a case plan, one of the section 427 protections, for all
children in foster care, including special needs children.  TR 92.  It
appears, moreover, that the State also provided periodic reviews for
special needs children.  See TR 49.  Thus, the application of the
section 427 protections to these children would have furthered the
purposes of the Act.

Accordingly, we conclude that the special needs children were under the
supervision of the State.  The legal status of these children was
determined by a voluntary placement agreement which gave the State the
ultimate authority to determine their placement; thus, even if the State
did not fully exercise this authority in practice, these children were
under the supervision of the State.  The State itself was aware that
special needs children were in the section 427 universe by virtue of
their legal status, and developed but failed to implement in time a new
voluntary placement agreement which provided that the parents remained
responsible for these children.  Furthermore, the evidence provided by
the State in support of its argument that special needs children were
not as a matter of practice considered under the supervision of the
State was not persuasive.  The State relied on broad generalizations by
individuals with no first-hand knowledge of how these children were
treated.  In addition, the distinctions which these individuals alleged
existed were more apparent than real, and did not in many instances have
any bearing on the issue of whether the children were under the
supervision of the State.  Thus, the Agency was justified in requiring
that special needs children be included in the universe for the section
427 case record survey.


 Six-Month and End-of-Year Requirements

The State challenged the Agency's position that the case record survey
should exclude children who were not in foster care at least six months
during the fiscal year or who were not in foster care as of the end of
the fiscal year.  The State argued that both of these requirements were
arbitrary and capricious because they excluded cases which might have
had an appropriate case plan, periodic review, and dispositional
hearing, while including cases in which the identical actions might have
been taken.  In addition, the State argued that the end-of-year
requirement was arbitrary and capricious because it applied only to
initial reviews and not to subsequent or triennial reviews.  The State
also argued that the six-month requirement was unreasonable because it
excluded cases in which the State achieved the statutory purpose of
eliminating foster care drift by closing the cases in a short period of
time.  Finally, the State asserted that it might skew the accuracy of
the case record survey to exclude cases not meeting these requirements,
noting that the Agency had failed to obtain information about the type
or number of excluded cases from which the effect of the requirements
could be determined.

The Agency presented testimony regarding the six-month and end-of-year
requirements from a witness who had participated in a task force to
develop procedures for measuring section 427 requirements.  The witness
stated that the six-month requirement was established so that the sample
could measure progress toward permanency at the critical junction, i.e.,
when the periodic review was due, and that the end-of-the-year
requirement was adopted because the Agency wanted to focus on current
cases.  TR 188-189, 199.  She also testified that if a case had been
closed by the end of the fiscal year, in effect some action had been
taken to remove the problem of foster care drift for that child.  TR
200.  While the Agency's other witness had a different understanding of
the reasons for the requirements, the Agency noted that the requirements
were clearly set out in its Section 427 Review Handbook and argued that
it was unreasonable to expect the Agency to change the rules for
Massachusetts, one of the last states to implement the section 427
program.

The Board has considered states' challenges to the six-month and
end-of-year requirements in several earlier decisions.  In Arkansas
Dept. of Human Services, DAB No. 553 (1984), the Board first noted the
language in section 427(a)(2)(B) of the Act requiring states to operate
"to the satisfaction of the Secretary" a case review system "for each
child in foster care . . . ."  The Board then stated:

 The Agency could have therefore required compliance with the
 applicable safeguards in 100% of a state's foster care caseload
 for fiscal year 1982, with some leeway for minor violations.
 The Agency instead selected only a portion of the caseload for
 review and required compliance with the applicable safeguards in
 80% of the cases reviewed.  [Footnote omitted.]  We see no
 reason why the Agency should have been required to draw a sample
 from the entire caseload.

Arkansas, supra, p. 10.  Accordingly, the Board found that both the
six-month requirement and the end-of-year requirement were justified
(although the latter was not disputed by Arkansas) on the basis that
"the Agency had reasonable discretion in choosing the cases to be
reviewed."  Arkansas, supra, p. 9, n. 7.  In Wyoming Dept. of Health and
Social Services, DAB No. 554 (1984), the Board upheld both the six-month
requirement and the end-of-year requirement, and in Florida Dept. of
Health and Rehabilitative Services, DAB No. 643 (1985), the Board upheld
the six-month requirement (the end-of-year requirement not being
applicable to the subsequent review at issue in that case).

After examining these precedents in light of the arguments made here by
the State, we once again conclude that the Agency was justified in
applying the six-month and end-of-year limitations on the universe for
the case record survey.  The State did not advance any reason why the
Board erred in finding that the language of the statute gives the Agency
discretion to choose which cases will be reviewed.  Thus, the Agency was
justified in excluding certain cases from the universe even if the
reasons for the limitations do not apply in every case since the
limitations are not unreasonable on their face and were applied
consistently to all participating states.

The State nevertheless suggested that it was an abuse of discretion to
exclude certain cases from a state's universe if the effect was to bias
the sample against the state.  However, the State admitted that there
was no information based on which it could be determined "whether the
requirements are helpful, detrimental, or neutral from a particular
State's . . . [perspective]."  State's post-hearing brief dated
10/11/91, p. 20.  While the State argued that the Agency should have
ascertained whether its requirements might bias the sample against the
State before it applied these requirements, we see no reason to impose
that burden on the Agency where the requirements appear neutral on their
face.

Moreover, even if the six-month and end-of-year requirements did result
in some bias against the State, this was more than offset by the Agency
policy which provided that, if 66% of the cases in the sample complied
with the section 427 requirements, a state passed the case record
survey.  The Board has previously held that the rate of compliance
necessary to pass a case record survey is within the Agency's discretion
as well.  Maryland Dept. of Human Resources, DAB No. 706 (1985);
Connecticut Dept. of Children and Youth Services, DAB No. 952 (1988).
If the Agency had adopted a different policy on what cases to include in
the universe (based on the rationale that the cases at issue here were
more likely to pass than some other cases), the Agency could have
reasonably adopted a higher rate of compliance.  In our view, the Agency
is not arbitrary in applying a consistent sampling policy and compliance
rate to all states and refusing to accept the State's proposed sampling
plan.  That plan would lead to sample results which could not fairly be
compared to those of other states, nor fairly measured using the same
compliance rate.

Finally, we do not agree that the six-month requirement defeats the
underlying statutory purpose of eliminating foster care drift.  The
State argued specifically that, due to this requirement, a case which
could be closed within six months might be kept open if the section 427
protections had been provided so that it could be included in the case
record survey as a passing case.  However, the Agency provided
uncontradicted testimony that this would be generally considered
unethical conduct for a social worker and was thus not likely to occur.
TR 176-177.  In any event, viewed another way, the Agency's review of
only cases which have been open at least six months and are open at the
end of the fiscal year furthers the statutory purpose of eliminating
foster care drift because it focuses attention on those cases which are
currently most in need of the section 427 protections.

Conclusion

For the foregoing reasons, we find that the Agency properly required
that the universe for the State's FY 1988 case record survey (1) include
special needs children, (2) exclude children in foster care less than
six consecutive months during the fiscal year, and (3) exclude children
no longer in foster care at the end of the fiscal year.  Accordingly,
pursuant to the parties' agreement, we remand the case to the Agency to
conduct a case record survey using a sample drawn from such a universe.

 

 _____________________________ Donald F. Garrett

 

 _____________________________ Norval D. (John) Settle

 

 _____________________________ Judith A. Ballard Presiding Board