Georgia Department of Human Resources, DAB No. 1355 (1992)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Appellate Division

SUBJECT:  Georgia Department  of Human  Resources

DATE:  September 17, 1992
Docket No. 92-30
Decision No. 1355

DECISION

The Georgia Department of Human Resources (Georgia, State) appealed a
determination by the Administration for Children and Families (ACF,
Agency) disallowing $2,586,779 in federal financial participation (FFP)
claimed by the State for foster care maintenance payments and
administrative costs under Title IV-E of the Social Security Act (Act)
for federal fiscal year (FY) 1987 (October 1, 1986 through September 30,
1987). 1/

ACF disallowed the largest number of maintenance payments because it
determined that the court orders directing removal of the children did
not comply with the requirements of the Act for qualifying payments for
FFP.  ACF determined that the court orders did not contain the required
findings 1) that continuation of the children in their homes was
contrary to their welfare and 2) that the State had made reasonable
efforts to prevent or eliminate the need for removal of the children
from their homes.  ACF also refused to accept nunc pro tunc (NPT) orders
and other evidence the State submitted as evidence that these findings
were made.  Further, ACF disallowed FFP for foster care maintenance
payments claimed for periods after judicial determinations were made in
cases where children entered foster care through voluntary placements
because the State did not have an approved state plan provision which
allowed it to claim such costs.  Finally, the Agency disallowed FFP for
administrative costs associated with the disallowed maintenance
payments.

For the reasons stated below, we uphold the Agency's disallowance
subject to recalculation of the administrative costs as agreed by the
parties.

Relevant Authority and ACF's Interpretations

Under section 472 of the Act, FFP is available in foster care
maintenance payments for a child removed from the home of a relative
only if, among other conditions --

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

Section 472(a) of the Act (emphasis added).

Section 471(a)(15) of the Act requires that, effective October 1, 1983,
a state plan under Title IV-E must provide that --

  in each case, reasonable efforts will be made (A) prior
  to the placement of a child in foster care, to prevent
  or eliminate the need for removal of the child from his
  home, . . . .

The requirement for a judicial determination to the effect that
continuation of the child in the home would be "contrary to the welfare
of such child" was continued from the foster care program previously
funded under section 408 of the Act.  The "reasonable efforts"
requirement was added when foster care was restructured under Title IV-E
through the Adoption Assistance and Child Welfare Act of 1980, Public
Law No. 96-272.

The legislative history of Public Law No. 96-272 makes clear that
Congress was concerned that children were being removed from their homes
unnecessarily and placed in foster care.  In discussing the requirement
for a judicial determination, the relevant Senate committee report
described such a determination as "an important safeguard against
inappropriate [state] agency action," and noted:

  The committee is aware of allegations that the judicial
  determination requirement can become a mere pro forma
  exercise in paper shuffling to obtain Federal funding.
  While this could occur in some instances, the committee
  is unwilling to accept as a general proposition that the
  judiciaries of the States would so lightly treat a
  responsibility placed upon them by Federal statute for
  the protection of children.

Sen. Rep. No. 336, 96th Cong., 1st Sess. 16 (1979).  On the Senate
floor, Senator Cranston described the conference agreement as follows:

  In the past, foster care has often been the first option
  selected when a family is in trouble; the new provisions
  will require States to examine alternatives and provide,
  wherever feasible, home-based services that will help
  keep families together . . . .  Of course, State child
  protective agencies will continue to have authority to
  remove immediately children from dangerous situations,
  but where removal can be prevented through the provision
  of home-based services, these agencies will be required
  to provide such services before removing the child and
  turning to foster care.

126 Cong. Rec. 14767 (June 13, 1980).

ACF regulations implementing Public Law No. 96-272, adopted on May 23,
1983 (48 Fed. Reg. 23115), contained provisions requiring that states
provide preplacement preventive services and describe in a child's case
plan the services offered and provided.  45 C.F.R. Part 1356.  The
regulations did not elaborate on the statutory judicial determination
requirement.

In a policy announcement issued on January 13, 1984, however, ACF did
address questions regarding the requirement for a judicial
determination.  The policy announcement stated that the judicial
determination must be made "at the time of the removal of a child from
his home" and explained:

  The court, after hearing the evidence, must be satisfied
  that reasonable efforts . . . have been made.  Review
  and approval of the [state] agency's report and
  recommendation alone are not sufficient to meet the
  requirements of the Act; the court must make a
  determination that the agency's efforts were, in the
  judgment of the court, reasonable for preventing
  placement.

  With regard to emergency situations, if the agency's
  judgment was that services could not have prevented
  removal of the child, the court at the time of the
  adjudicatory hearing must find that the lack of
  preventive efforts was reasonable.

ACYF-PA-84-1 (1984 Policy Announcement), State's Exhibit (Ex.) 7.

ACF also issued an information memorandum transmitting a copy of ACF's
"Financial Review Guide For On-Site Reviews Of The Title IV-E Foster
Care Program."  ACYF-IM-85-25, dated August 14, 1985 (1985 Information
Memorandum), Agency's Ex. 1.  The review guide explains to reviewers
that the court order (in other than voluntary placements) "must contain
a statement to the effect that continuation of residence at home is
contrary to the welfare of the child or that placement is in the best
interests of the child."  Agency's Ex. 1, Attachment A, at 2.  The guide
also explained that, after October 1, 1983, the court order must state
either that "reasonable efforts were made to prevent removal from the
home" or "it was not appropriate or in the best interests of the child
to prevent removal from the home."  Agency's Ex. 1, Attachment A, at
2-3.

The checklist for Title IV-E reviews included in the 1985 Information
Memorandum gave rise to questions about the judicial determination
requirement which were addressed in ACYF-PIQ-86-02, dated May 8, 1986
(1986 Policy Interpretation).  State's Ex. 9.  That issuance explained
circumstances which warranted a finding that the appropriate judicial
determination had been made, even where the court order itself did not
contain language to satisfy the statutory requirements.  The issuance
stated in pertinent part:

  The fact that State laws include generic provisions
  referring to a class of children is not sufficient to
  satisfy the requirements of section 472, which relate to
  an individual determination for each child.  However, if
  State law unambiguously requires that removal may only
  be based on a determination that remaining in the home
  would be contrary to the child's welfare (and in the
  appropriate circumstances, that removal can only be
  ordered after reasonable efforts to prevent removal have
  been made), it must be assumed that a judge who orders a
  child's removal from the home in accordance with that
  State law does so only for the reasons authorized by the
  State statute.  This conclusion can be drawn only if the
  State law clearly allows removal under no other
  circumstances except those required under section
  472(a)(1) of the Act.  If a State can show that it has
  such a clear and unequivocal State law, and if the court
  order is expressly based on that law, then the order can
  be accepted as sufficient evidence that the required
  determinations have been made.

State's Ex. 9, at 2-3 (emphasis in original).  The issuance also
explained that language in a petition submitted to a court would not
suffice to meet the requirements unless the court order expressly
adopted the relevant language of the petition and made clear that a
judicial determination had been made.  Id., p. 5.

ACF also issued two information memoranda, ACYF-IM-87-28 on October 7,
1987 (1987 Information Memorandum), and ACYF-IM-89-08 on April 17, 1989
(1989 Information Memorandum), which discussed the circumstances under
which ACF would accept NPT court orders as evidence that the requisite
judicial determinations were made. 2/  Essentially, these information
memoranda made it clear that such orders would be acceptable only when
used "to supply, for the record, something that has actually occurred,
but was omitted from the record through inadvertence or mistake."  1987
Information Memorandum, State's Ex. 10.  Further, the 1987 Information
Memorandum stated:

  Requested documentation may include the transcript of
  court proceedings and/or the agency's report to the
  court, or any other documentation that would confirm
  that the information was actually presented to the court
  at the previous hearing and that the court made the
  determination(s) at that time.

Id. at 2 (emphasis added).

The 1989 Information Memorandum expanded upon the documentation
requirements:

  Acceptable documentation that may be requested by the
  Federal agency to make such a verification could include
  court transcripts, bench notes or other court documents
  which, in conjunction with the State agency's report,
  would confirm that the information was presented to the
  court and that the judicial determination(s) had been
  made at the original removal hearing.

  Documentation such as post-hearing affidavits is not
  acceptable as verification.  The reliability of
  affidavits executed long after a judicial proceeding is
  questionable.  These limitations are necessary in order
  to assure children in foster care of the protections to
  which they are entitled under the title IV-E program.

State's Ex. 14, at 3-4.

Background

During June and August 1988 and March 1989, the Agency conducted three
financial reviews (Preliminary, Stage I, and Stage II) of the State's
Title IV-E foster care program.  State's Ex. 2, at 1.  During the
preliminary review, several payments were examined to determine whether
payments were being made on behalf of children eligible for Title IV-E
foster care.  If the preliminary review was not satisfactory, a
two-stage review process would ensue, using a random sample of foster
care maintenance "payment units" made by a state during a given period.
During the Stage I review, 50 payment units were examined to determine
whether they were proper.  Because the Stage I review revealed an error
rate of greater than ten percent, a Stage II review was instituted.
During the Stage II review, a computerized statistical sample of 250
payment units was reviewed to determine whether FFP was properly claimed
for each payment.  Id.  The sample errors were then projected to the
total universe of payments.  The total value of the 250 payments was
$74,663.  The review showed that 82 payments totalling $24,298 ($16,049
in FFP) were in error.  Agency's Brief (Br.) at 3-4.  The Stage II
review determined, based on the projection of the sample to all payments
for FY 1987, that $1,297,284 of FFP was inappropriately claimed.
Additionally, a share of FFP for administrative expenses, $1,289,495,
was disallowed to reach the total amount disallowed. 3/

Georgia contested ACF's determinations for 42 of the 82 erroneous
payments.  Of the contested payments, the Agency determined 32 payments
were unallowable because the court orders directing removal did not
contain a statement to the effect that continuation of the child in the
home would be contrary to the welfare of such child and that reasonable
efforts were made to prevent or eliminate the need for removal, as
required by section 472 of the Act.  Further, the Agency determined that
10 payments were unallowable because it found that the State claimed FFP
for payments for voluntarily placed foster care children, without an
approved state plan, once a judicial determination was made that the
voluntary placement was in the child's best interest.  The Agency
determined that the federal statute requires a state to have an approved
plan for voluntary placements before it can receive FFP for voluntary
placements during the entire stay in foster care. 4/

Analysis

While the State generally argued that the Agency's disallowance should
be overturned on the grounds that it is arbitrary and capricious, the
State also made several specific arguments.  The State maintained that
the disallowance should be reversed because its juvenile court code, in
effect at the time and referenced in the court orders, prohibited
removal of a child absent both "contrary to the welfare" and "reasonable
efforts" findings.  Alternatively, the State argued that the
disallowance should be reversed because the State complied with all of
the Agency's requirements for NPT orders, although there were
inconsistencies between the Agency's Stage I and Stage II review
requirements for NPT orders.  Finally, the State asserted that it could
receive FFP for voluntary placements once a judicial determination was
made, although it did not have an approved state plan to that effect.
Below, we first discuss the State's juvenile court code in relationship
to the court orders.  We next discuss the State's argument that it
complied with the requirements for NPT orders, and finally we discuss
the State's assertion regarding voluntary placements.  We do not discuss
separately the State's argument that the disallowance is arbitrary and
capricious, since the discussions of the State's specific arguments will
show that the Agency's disallowance was not arbitrary or capricious.

  I.  The State's Statute Is Not a Substitute for a
  Judicial Determination.

The State alleged that the Agency's reviewers erred in determining 32
payments erroneous because, rather than looking to the applicable state
law regarding mandatory requirements for removal of children in effect
during FY 1987, which contained the findings required by the Act, the
reviewers based their assessment of the court orders solely upon review
of the case files.

Georgia argued that the 1984 Policy Announcement was the applicable
interpretation of the "reasonable efforts" and "contrary to the welfare"
requirements of the Act.  Citing a section from the 1984 Policy
Announcement, the State maintained that the announcement suggested that
a state--

  should review its statutes to determine whether
  legislative change or changing court rules may be
  helpful or necessary in assuring the court's cooperation
  in relation to judicial determination requirements in
  Section 472(a)(1).

State's Br. at 5; State's Ex. 7, at 5.

Georgia asserted that soon after the 1984 Policy Announcement, its
legislature, in apparent response to the Agency's direction, amended the
Juvenile Court Code to require clearly and unambiguously that removal
orders be based upon contrary to the welfare and reasonable efforts
findings.  See O.C.G.A. section 15-11-41(c) (1984), State's Ex. 8, at
496.  The State maintained that this legislative method was approved by
the Agency's 1986 Policy Interpretation, and that the Agency failed to
follow its own rule by not assuming that the judges' orders were
authorized by State statute.

Georgia is correct that if there is a clear and unequivocal state law
permitting removal only where the findings required by section 472 of
the Act have been made, and the court order is expressly based on that
law, a state is entitled to FFP for foster care maintenance payments
made for children placed pursuant to such orders.  However, Georgia
never controverted ACF's assertion, citing specific provisions, that
there were other sections providing authority for removal that did not
contain these safeguards, and it has not shown here that the court
orders at issue were expressly based on O.C.G.A. section 15-11-41(c).

As we said in Nebraska Dept. of Social Services, DAB No. 1250 (1991), at
8:

  The original court order at the time of the child's
  removal will obviously be the most persuasive evidence
  about whether a determination was made at that time.

After a review of the court orders submitted by the State, we find that
the necessary judicial determinations were not made in the original
court orders.  Not only are there no indications in any of the orders
that the court actually found that the State had made reasonable efforts
to prevent or eliminate the need for removal or that continuation of the
children in their homes was contrary to their welfare, but nowhere in
the original court orders is section 15-11-41(c) specifically cited or
referenced.  It does not appear, and Georgia did not assert, that the
State has any type of standardized form for court orders which cite the
specific state statute section upon which the order is based.  The
original orders focused on finding that the children were being
"deprived" in various ways but the State did not show that "deprived"
was a specific reference to section 15-11-41(c).  Indeed, one order
found that "the minor child is a deprived child within the meaning of
O.C.G.A. Section 15-11-2(8) in that there is not a parent that is
willing and/or able to care for and maintain this minor child."  See
Order at State's Ex. 21.  Another order found that the child, because
she was living in a four room house with 12 other people and was
habitually absent from school, was being deprived of an education and
suitable living conditions.  See Order at State's Ex. 16.  We note that
while the judges repeatedly found that the children were "deprived,"
this finding was clearly based on the courts' concerns with the
children's present situations, rather than focusing on the State's past
efforts or present ability to ameliorate those situations.  Therefore,
this finding has no relationship to the reasonable efforts and contrary
to the welfare findings required by the Act.

Finally, we do not give any weight to the State's argument that since 5
of the 32 court orders in question explicitly state that temporary
custody is given to Georgia for a period of either 18 months or two
years, and those two time periods are mentioned in O.C.G.A. section
15-11-41, the Board should conclude that the courts acted pursuant to
O.C.G.A. section 15-11-41(c).  The mentioning of 18 months or two years
appears to be merely fortuitous in the absence of an express reference
to O.C.G.A. section 15-11-41(c) or of any other language found in that
section.  If the courts intended to act pursuant to that provision, they
only had to make a simple statement to that effect.

We are not indicating by our decision here that the courts' or the
State's actions were unsound, but simply that Georgia failed to document
that its claims met the conditions Congress established as a
prerequisite for Title IV-E funding.  As we said in West Virginia Dept.
of Health and Human Services, DAB No. 1257 (1991) at 10:

  Thus, while we recognize that the State courts operated
  independently of the State agency, the State agency was
  nevertheless responsible for assuring that there was
  adequate documentation of the determinations required by
  section 472(a)(1) of the Act in any case for which it
  claimed FFP.  The denial of FFP in those cases where
  there is inadequate documentation does not necessarily
  mean that the court's action was unsound or that the
  proper social work was not done, but simply represents a
  finding that the State agency has failed to document
  that its claims met the conditions Congress established
  as a prerequisite for title IV-E funding.  Congress
  determined that it wished to fund foster care
  maintenance payments only where it can be assured that
  an impartial judge had determined that removal was
  necessary for the child's welfare and, if feasible,
  reasonable efforts had been made to prevent removal.

Therefore, we determine that the Agency appropriately found that these
32 payments were erroneous.

  II.  Stricter Standards Were Not Retroactively Applied
  by ACF to The State's NPT Orders.

The State argued, secondarily, that even if the State law regarding
removal of children did not guarantee that the relevant court orders met
the requirements of the Act, later NPT orders corrected any alleged
defects.  Georgia argued that it complied with the Agency's requirements
for NPT orders in effect at the time the judicial determinations were
being made by the State's juvenile courts.

The review report stated:

  There was little acceptable evidence that the judge had
  actually made the appropriate ruling at the appropriate
  time.  For the most part, documentation made available
  by the State included affidavits by the worker,
  supervisor, or County Director. . . .  These affidavits
  were ruled unacceptable as they did not verify that the
  judge had reviewed the efforts and made a determination.

State's Ex. 2, at 11.  According to Georgia, during FY 1987 the states
were operating under federal guidance provided by ACYF-PI-83-6 (1983
Program Instruction), 5/ the 1984 Policy Announcement and the 1986
Policy Interpretation.  See State's Exs. 6, 7 and 9.  The State alleged
that the 1987 Information Memorandum, which the Agency cited as its
basis for the disallowance, had not been authorized, since the issuance
date for the 1987 Information Memorandum was October 7, 1987, seven days
after the end of the disallowance period.  Georgia also asserted there
existed an inconsistency between the 1987 Information Memorandum and the
final determination.  Nevertheless, the State argued that it complied
with the 1987 Information Memorandum, since that memorandum allowed
inclusion of the State agency's report to the court or any other
documentation that would confirm presentation and the court's
determination.  State's Br. at 9.

Further, Georgia maintained that ACF unfairly changed its standard of
compliance during the review process.  The State asserted that following
telephonic communication between the federal reviewer and central office
of HHS in Washington, a number of cases were passed during the Stage I
review having affidavits and/or reports to the court consistent with the
1987 Information Memorandum.  But, according to the State, federal
reviewers later applied a different, more stringent, standard in Stage
II.  State's Br. at 10.  Moreover, Georgia maintained that when the
review was nearly complete, the Agency issued the 1989 Information
Memorandum, which stated that the Agency could request any documentation
that the Agency determined was necessary to verify that the court
actually made the determination at the removal hearing.  State's Br. at
11.  The State argued that the Agency's after-the-fact interpretation of
NPT documentation amounts to requiring Georgia to engage in an
impossible guessing game and is unfair.

As noted above, ACF has, since 1984, addressed questions regarding the
requirement for judicial determinations, including NPT orders.  The
State's assertion that the Agency applied stricter standards to its
Stage II review after issuance of the 1987 Information Memorandum is
incorrect.  The standard has remained the same:  The State must produce
evidence that the court made the required findings at the time the court
order directing removal of a child was made.  Thus, NPT orders must be
supported by adequate contemporaneous or non-contemporaneous
documentation.  The Agency's series of policy issuances have simply
sought to clarify for the states the Act's requirements concerning the
evidence needed to show that NPT orders reciting the required findings
reflect what the court really did, not what it could have or should have
done.

The 1984 Policy Announcement stated, in part:

  Review and approval [by the court] of the [state]
  agency's report and recommendation alone are not
  sufficient to meet the requirements of the Act. . . .

While the 1987 Information Memorandum made clear that NPT orders would
be acceptable only when used "to supply, for the record, something that
has actually occurred, but was omitted from the record through
inadvertence or mistake," and the 1989 Information Memorandum expanded
upon the documentation requirement, these memoranda did not change the
requirement that the State show that the court made an independent
judgment as to both findings.  Georgia's NPT orders and supporting
evidence simply do not meet this requirement.

As we said in Nebraska, supra, at 9:

  NPT orders modifying an original court order do not
  always evidence a mistake in the original order in
  failing to reflect findings actually made.  Because a
  NPT [order] may be adding findings not made at the time
  of the original order, the Agency may reasonably require
  other corroborative evidence of an actual determination
  as required by the statute.

Further, we have said that NPT orders cannot be used "to show what the
court might or should have decided."  Nebraska, supra, at 11.  Because
it is possible for NPT orders to have a dual purpose, i.e. to modify a
mistake in an original order or to add findings, NPT orders can not
simply be accepted on their face.  In this case, as in Nebraska, supra,
the State did not provide copies of the petitions that it presented to
the court to request the NPT orders. 6/  Thus, our record does not
include all the information available to the court when deciding to
issue those orders, and we are unable to evaluate fully the
circumstances under which they were issued.  In other words, we cannot
tell whether these orders corrected an oversight or added findings that
were not made.

Further, none of the other documents submitted by Georgia to bolster the
NPT orders corroborates that the necessary findings were in fact made at
the time of removal of the children.  These documents are, in general,
non-contemporaneous recollections of case workers, not reliable,
contemporaneous documents such as transcripts.  For example, Georgia
submitted an "AFFIDAVIT OF EFFORTS" which discussed a November 1983
hearing.  Affidavit at State's Ex. 20.  However, the affidavit was
executed on August 24, 1988, long after the original order.  The Board
has long held that the sufficiency of non-contemporaneous documentation
will be carefully scrutinized.  See, e.g., Indiana Dept of Public
Welfare, DAB No. 772 (1986).  In this case, that scrutiny reveals that
the non-contemporaneous documentation submitted by Georgia does not
supply reliable evidence of the relevant courts' findings at the time of
their removal orders.

Further, in Nebraska, supra, at 9-10, the Board said:

  These documents merely provide factual background
  information presumably supplied by child welfare
  agencies or caseworkers concerning the children and
  their families.  While conceivably the documents could
  have served as support in favor of the judicial findings
  required by the statute, they do not, in and of
  themselves, demonstrate that the findings were made.

Even if the non-contemporaneous documents could show, which they can
not, that their information was presented to the court, they are unable
to show that the courts made the necessary judicial findings at the time
of removal of the child.  Consequently, ACF was correct in refusing to
allow FFP for these claims, as there is no reliable evidence that these
children were provided the safeguards required by the Act.

  III.  The Agency's Disallowance for Voluntary Placements
  Was Correct.

The remaining portion of the disallowance involved the FFP disallowed
for cases that began with a parent's request to place the child in
foster care.  Both parties here treated these as cases where the
children had been removed from home pursuant to voluntary placement
agreements.  Because Georgia conceded that it did not have a voluntary
placement provision in its State plan, the State did not claim FFP
following these removals.  Once the State obtained judicial
determinations ratifying these agreements, it began to claim FFP.  The
State asserted that even though these removals took place pursuant to
voluntary agreements, once Georgia obtained the determinations, which
allegedly met the requirements of the Act, then FFP was authorized.

Georgia maintained that section 3102(a)(2) of Public Law No. 96-272,
effective June 17, 1980, provided a method for reimbursement of FFP for
the period of voluntary placement preceding a judicial determination
provided the State obtained a judicial determination within 180 days of
removal of a child from the home.  Further, the State argued that the
program instructions for the Title IV-E State Plan, ACYF-PI-81-2 and
ACYF-PI-88-07, emphasized that inclusion of a plan provision for
recovery of FFP for the period of voluntary placements is at state
option, and that the section on such placements may be stricken from the
state plan if FFP is not claimed.  Finally, the State asserted that
while it did not seek reimbursement for the period prior to the judicial
determination, it is automatically entitled to FFP once there has been a
judicial determination.  Georgia maintained that its position is
consistent with the 1984 Policy Announcement directive that "when all
eligibility requirements of 472(A) are met, a state may claim FFP from
the first day of placement in the month in which all eligibility
criteria have been met,"  State's Br. at 15, and that the State
generally met the requirements of section 472(e) of the Act.  The State
did not deny that there was no specific provision in its State plan
authorizing it to claim the costs for voluntary placements.

Georgia interprets the Act as somehow permitting it to ignore the
circumstances of a child's removal from the home by deeming a child
whose removal was pursuant to a voluntary agreement to be converted to a
child removed by judicial determination once a judicial determination is
made, even though the child's removal occurred under the State's
voluntary placement process and the judicial determination ratified the
voluntary agreement in effect at the time of the determination.  ACF
argued that in order for a state to receive FFP for a child who was
removed from the home due to a voluntary placement, the Act requires the
state to have an approved state plan provision covering voluntary
placement, which would necessarily provide for a judicial determination
that the voluntary placement is in the best interests of the child.
Agency's Br. at 15.  We agree.  Section 471(a) of the Act provides, in
part:

  In order for a State to be eligible for payments under
  this part, it shall have a plan approved by the
  Secretary which --

  (1) provides for foster care maintenance payments in
  accordance with section 472 . . .

Section 472(a) of the Act provides, in part:

  Each state with a plan approved under this part shall
  make foster care maintenance payments . . . if --

  (1) the removal from the home occurred pursuant to a
  voluntary placement agreement entered into by the
  child's parent or legal guardian, or was the result of a
  judicial determination . . . . (emphasis added)

The Board has previously stated that the plain language of a statute is
always the best evidence of its meaning, and there is no reason to go
beyond that plain language to examine other evidence of legislative
intent unless the language is unclear or ambiguous.  Tennessee Dept. of
Human Services, DAB No. 1054 (1989).  In this case, the plain language
supports the Agency's position that a state's plan must contain
provisions for voluntary placement agreement removals in order to
qualify for FFP in cases where the child's removal occurred under the
state's voluntary placement process and the subsequent court order
served to ratify an effective placement agreement.

Section 472(e) of the Act provides:

  No Federal payment may be made under this part with
  respect to amounts expended by any State as foster care
  maintenance payments under this section, in the case of
  any child who was removed from his or her home pursuant
  to a voluntary placement agreement as described in
  subsection (a) and has remained in voluntary placement
  for a period in excess of 180 days, unless there has
  been a judicial determination by a court of competent
  jurisdiction  (within the first 180 days of such
  placement) to the effect that such placement is in the
  best interests of the child.

If a child is removed from a home pursuant to a voluntary placement
agreement, a subsequent judicial determination that merely affirms the
existing voluntary placement agreement does not make that child's
removal the "result of a judicial determination" within the meaning of
section 472(a)(1).  In order for a state to receive FFP for a child who
was removed from the home due to a voluntary placement, Title IV-E
requires the state to have an approved state plan covering voluntary
placements.  Sections 471 and 472(a)(1) and (e) of the Act.  The
requirement for a state plan assures that the removal action, which has
a significant impact on a child even if a court later affirms the
voluntary placement agreement, is made pursuant to a well-founded state
program. 7/

While we need not look beyond the plain language of the statute, the
history of Title IV supports this interpretation.  Prior to 1980, FFP
for foster care was available only when a child was removed from the
home due to a judicial determination.  See Pennsylvania Dept. of Public
Welfare, DAB No. 1278 (1991) at 4.  Thus, prior to 1980, even if a
voluntary placement was followed by a judicial determination, no FFP was
available during the entire stay in foster care.  Id. at 5, n. 3.  In
1980, Congress passed Public Law No. 96-272, which allowed for FFP for
voluntary placements when the state has an approved plan which meets the
requirements of sections 471 and 472 of the Act. 8/  Georgia conceded
that it did not have a qualifying voluntary placement program in FY
1987.  Therefore, the State cannot circumvent this requirement by
claiming FFP only after a judicial determination has been made.

Conclusion

Based on the foregoing, we uphold the Agency's disallowance for
maintenance payments and administrative costs (as adjusted).  The State
is granted 30 days, from the date of notice by the Agency of the
adjusted disallowance amount, to appeal the limited question of whether
the Agency correctly recalculated the disallowed administrative costs in
accordance with the parties' agreement.

 

       Cecilia Sparks
       Ford

 


       Donald F.
       Garrett

 

       M. Terry Johnson
       Presiding Board
       Member

1.  This disallowance was originally issued by the Administration for
Children, Youth and Families.  Effective April 15, 1991, that agency was
one of several combined into the Administration for Children and
Families.

2.  Literally translated, nunc pro tunc means "now for then."

3.  Georgia maintained that it is inappropriate to disallow
administrative dollars as projected upon the disallowance of maintenance
payments.  For FY 1987, the State contended that the allocation of state
and county level administrative costs should have been calculated using
the State's approved cost allocation plan (CAP) amendment for FY 1987.
State's Br. at 17 and State's Exs. 2, 3, and 4.  Although the Agency
maintained that the administrative costs disallowance was proportional
to the disallowance of maintenance payments, the Agency agreed to
recalculate the administrative cost disallowance in accordance with the
State's approved CAP amendment.  Agency's Br. at 22-23.  The State did
not dispute that, if the disallowance of maintenance costs was upheld,
ACF's suggested recalculation would be an accurate measure of related
administrative costs.  Thus, we will not discuss these costs further in
the text, but will direct ACF to make this adjustment to the
disallowance amount.  The State will be granted 30 days, from the date
of notice by the Agency, to return to the Board on the limited question
of whether the Agency correctly recalculated the disallowance amount in
accordance with the State's approved CAP amendment.

4.  The Agency stated that of the 40 payments that were not challenged,
some of the payments were disallowed for multiple errors and, in order
to challenge a disallowed payment, Georgia must challenge every reason
why that payment was disallowed.  Agency's Br. at 1, n. 2.  Georgia did
not challenge the Agency's statement or deny it; consequently, we affirm
the part of the disallowance of maintenance payments based on these 40
payments.

5.  The 1983 Program Instruction, dated July 29, 1983, was related to
sections 471(a)(15) and 472(a)(1) of the Act.  Essentially, the program
instruction informed the states that no later than October 1, 1983, each
state must have amended its Title IV-E state plan to meet the
requirements of the above-mentioned sections of the Act.

6.  We note that the State did, however, in a supplementary submission,
provide the NPT orders and a discussion of each.  See State's
Supplemental Br. at 4-17 and State's Exs. 16-54.  We do not discuss each
NPT order, or other documents, individually, since they are all similar
in nature and suffer, as a group, from the defects as discussed in the
text.

7.  Moreover, even if the Board found that the State could have claimed
FFP after the determinations, the court orders here are defective.  They
do not make the necessary finding that such placement is in the best
interests of the child, as would be required if the State had a
voluntary placement State plan provision.  Nor do they contain, as the
State alleged, the reasonable efforts and contrary to the welfare
findings as required by the Act for removals by judicial determinations.
Instead, the orders refer to the deprivation of the children and, thus,
suffer from the same defects as the court orders discussed in the
previous section.

8.  Congress amended the pre-1980 statute as it applied to judicial
determinations in one respect by providing that a child who was
voluntarily removed from the home of a relative and who had a judicial
determination prior to October 1, 1978, was deemed to have been removed
as a result of such judicial determination.  See Pennsylvania, supra, at
5, n. 3.  Georgia did not assert that any of the voluntary removals had
judicial determinations prior to October 1,