Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
SUBJECT: Connecticut Department of Children and Youth Services
DATE: March 8, 1993
Docket No. A-92-119
Decision No. 1395
DECISION
The Connecticut Department of Children and Youth Services
(Connecticut)
appealed a determination by the Administration for Children and
Families
(ACF) that Connecticut was ineligible for $5,034,326 in federal
funds
advanced to it for fiscal years (FYs) 1986 through 1991 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. One requirement is that dispositional hearings be held
every 18
months for all children in foster care under the supervision of
the
state.
In March 1992, ACF found that Connecticut's administrative procedures
did
not provide for timely dispositional hearings for children who were
committed
to the Department of Children and Youth Services (DCYS)
following an
adjudication of delinquency and placed by DCYS in group
homes or residential
treatment facilities. (These children are
referred to throughout
this decision as "adjudicated delinquents.") ACF
determined that
Connecticut did "not have in place the necessary laws,
policies, and
procedures to comply fully with the requirements of
section 427."
Connecticut appeal file (A.F.), Exhibit (Ex.) 1, at 1.
Without conducting a
case record review to determine whether such
policies and procedures were
operational, ACF required the return of the
section 427 funds which had been
advanced to Connecticut for FYs 1986
through 1991. In addition, ACF
disallowed $12,775,933 claimed under
title IV-E of the Act for FYs 1986
through 1991 for children in
voluntary placements. 1/ This disallowance
was also based on
Connecticut's failure to comply with section 427 and was
appealed by
Connecticut on the same ground as it appealed ACF's determination
of
ineligibility.
On appeal, Connecticut argued that ACF's determination of
ineligibility
for section 427 funds for the six years in question should be
set aside
on several alternative grounds. Connecticut's arguments, as
summarized
during oral proceedings before the Board, were that (1) it had no
prior
notice that ACF considered adjudicated delinquents to be subject
to
section 427 requirements; (2) ACF failed to follow its own
policy
requiring that a state be afforded an opportunity to correct
its
administrative procedures prior to a determination of ineligibility;
(3)
DCYS had adopted administrative procedures in January 1987
which
required dispositional hearings for adjudicated delinquents every
18
months; and (4) adjudicated delinquents were not in "foster care"
or
"under the supervision of the State" within the meaning of section
427.
Transcript of December 8, 1992 oral argument (Tr.) at 13-14.
In
addition, Connecticut argued that the title IV-E funds were
improperly
disallowed. However, it noted that this issue had been
previously
decided in ACF's favor by the Board in its October 20, 1988 Ruling
on
Request for Reconsideration of Connecticut Dept. of Children and
Youth
Services, DAB No. 952 (1988), and had been raised in
Connecticut's
appeal of that decision now pending before the U.S. Court of
Appeals for
the D.C. Circuit.
As discussed in detail below, we conclude that ACF improperly
determined
that Connecticut was ineligible for section 427 funds for FYs
1986
through 1991 based on a finding that Connecticut's
administrative
procedures did not provide for timely dispositional hearings
for
adjudicated delinquents. Specifically, we find that:
o As of January 1987, Connecticut's administrative
procedures
implementing the section 427 requirements included
adjudicated
delinquents. Thus, ACF erroneously found in March
1992 that
Connecticut's administrative procedures were not in
compliance
with section 427.
o ACF's interpretation of section 427 as including
adjudicated
delinquents was not the only reasonable
interpretation. ACF was
precluded from finding Connecticut
ineligible based on this
interpretation since ACF did not give
Connecticut timely notice
that it was required to include adjudicated
delinquents under
its administrative procedures.
o ACF failed to give Connecticut an opportunity to correct
its
administrative procedures prior to finding it ineligible for
the
section 427 funds, contrary to ACF's own policy.
Based on these findings, we reverse ACF's determination that
Connecticut
was ineligible for section 427 funds for FYs 1986 through
1991. Since
ACF's determination disallowing Connecticut's claim for
title IV-E
payments made during that period for children in voluntary
placements
was based solely on Connecticut's ineligibility for section 427
funds,
we reverse that determination as well. However, ACF is not
precluded
from conducting a case record review to determine whether
Connecticut
complied in practice with the requirements of section 427 or
from
disallowing Connecticut's title IV-E claim based on any
resulting
determination of ineligibility.
Statutory Background
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 by
adding a new section 427 and also established a new title
IV-E authorizing
funding for foster care maintenance payments. 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. See 48
Fed. Reg. 23104
(May 23, 1983) (preamble to regulations implementing section
427). To
this end, section 427 provides that states may obtain
additional funding
for child welfare services if they have implemented case
plan and case
review procedures that periodically assess the appropriateness
of a
child's placement in foster care and reevaluate the services provided
to
assist the child and the family. Moreover, in order to be eligible
for
title IV-E funds, a state must provide for periodic
administrative
reviews of a child's status, one element of the case review
system
required by section 427. Section 472(a)(16). In addition,
a state must
comply with all of the requirements of section 427 in order to
be
eligible for title IV-E funds for children in voluntary
placements.
Section 427(d).
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 (as defined in section 475(5)) for
each
child receiving foster care under the supervision of the State
.
. . .
Section 475(5) of title IV-E provides that --
The term "case review system" means a procedure for
assuring
that --
* * *
(C) . . . 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 . .
.
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) . . . .
There is no definition of the term "foster care" in either the Act or
the
implementing regulations.
Factual Background
ACF has established a two-stage process for evaluating states'
eligibility
for section 427 funds. First, ACF conducts an
administrative procedures
review to determine whether a state
established policies or procedures for
implementing the requirements of
section 427. Second, ACF reviews a
sample of case records to determine
whether these policies or procedures were
operational.
Prior to the review in question here, ACF conducted reviews
of
Connecticut's eligibility for section 427 funds for FY 1981
(initial
review), FY 1982 (subsequent review), and FY 1985 (triennial
review).
Connecticut passed both the FY 1981 and FY 1982 reviews. For
FY 1985,
ACF determined that, although Connecticut had administrative
procedures
implementing the section 427 requirements, these requirements were
not
actually met in a sufficient number of cases. 2/
ACF notified Connecticut on August 7, 1991, that it intended to conduct
a
review of Connecticut's eligibility for section 427 funds for FYs
1986
through 1991. In response to ACF's request, on September 20,
1992,
Connecticut provided copies of its administrative
procedures
implementing the section 427 requirement for a case review
system.
Connecticut also notified ACF that the sample for the section 427
case
record review would exclude children placed in Long Lane,
Connecticut's
only secure facility for the detention of delinquents. On
March 13,
1992, without conducting a case record review, ACF notified
Connecticut
of its determination that Connecticut was ineligible for section
427
funds advanced to it for FYs 1986 through 1991 because it had
no
provision for a timely dispositional hearing for adjudicated
delinquents
not placed at Long Lane. (ACF indicated that it had
determined that
delinquent children who were placed at Long Lane were not
subject to the
section 427 requirements.) ACF further notified
Connecticut that,
unless it amended its State statute by September 30, 1992
to provide for
timely dispositional hearings for adjudicated delinquents, it
would also
be found ineligible for section 427 funds for FY 1992.
Throughout the relevant period, Connecticut law defined a
"delinquent"
child as a child "(1) who has violated any federal or state law
or
municipal or local ordinance, other than an ordinance
regulating
behavior of a child in a family with service needs as defined in
this
section or (2) who has violated any order of the superior
court."
Connecticut General Statutes (CGS) . 46b-120. Section 46b-140,
CGS,
provided that, upon an adjudication of delinquency, the court may
place
the child "in the care of any institution or agency which is
permitted
by law to care for children" and "shall commit such child to
the
department of children and family services" if the court finds that
its
probation services or other services available to it are not
adequate
for the child. In addition, CGS . 46-141 provided that --
(a) . . . commitment of children adjudged delinquent by
the
superior court to the department of children and youth
services
shall be for an indeterminate time up to a maximum of two
years,
or, when so adjudged on a serious juvenile offense, up to
a
maximum of four years at the discretion of the court,
unless
extended as hereinafter provided.
* * *
(c) . . . Commitments may be reopened and terminated at any
time
by said court, provided the commissioner of children and
youth
services shall be given notice of such proposed reopening and
a
reasonable opportunity to present his views thereon.
The
parents or guardian of such child may apply not more than
twice
in any calendar year for such reopening and termination
of
commitment.
Effective June 1, 1992, CGS . 46-141 was amended to reduce the
maximum
commitment for a non-serious offense to 18 months, and to
require
judicial review every 18 months of each child adjudged delinquent on
a
serious juvenile offense.
Connecticut indicated that some children were removed from home
and
committed by DCYS pursuant to both an adjudication of delinquency and
a
finding by the court that the child was neglected, dependent or
uncared
for. However, Connecticut alleged, and ACF did not dispute,
that such
children were considered neglected, dependent or uncared-for
children,
not adjudicated delinquents, for purposes of applying
Connecticut's
procedures implementing section 427. Tr. at 11.
Thus, the children in
question here are those who were committed to DCYS
solely pursuant to an
adjudication of delinquency.
Analysis
I. The determination of ineligibility should be reversed
because
Connecticut had administrative procedures in place as of January
1987
which required a dispositional hearing every 18 months for
adjudicated
delinquents.
Connecticut took the position that ACF erred in finding that it had
no
administrative procedures which required a dispositional hearing
every
18 months for adjudicated delinquents. Connecticut argued that
its
"Revised Guidelines for Federal 427 Compliance" (Revised
Guidelines)
issued January 14, 1987 contained the requisite provisions and
that
ACF's finding of ineligibility should therefore be reversed.
ACF did not dispute that the Revised Guidelines in fact
required
dispositional hearings every 18 months for adjudicated delinquents
(and
indeed this is the only reasonable reading of the Guidelines).
ACF
brief, undated but received by Board 9/22/92, at 12; Tr. at 30.
3/
Furthermore, ACF did not dispute Connecticut's contention that if it
had
procedures which complied with section 427 in place in January 1987,
it
should pass the administrative procedures review done in FY 1991
and
1992 for FYs 1986 through 1991. However, ACF argued that the
Revised
Guidelines did not "override" the State statute which provided
for
commitment to DCYS for up to two years (four years in the case of
a
serious juvenile offense) without any requirement for a hearing
during
that time period. ACF brief received 11/22/92, at
12. In response,
Connecticut took the position that the Revised
Guidelines supplemented
rather than conflicted with the State statute since
that statute
provided that commitments to DCYS could be "reopened and
terminated at
any time" by the court. The plain language of this
provision permitted
the court to hold a hearing at any time before the end of
the period for
which a child was originally committed to DCYS. Even if
it were unclear
whether the State statute permitted dispositional hearings
prior to the
end of this period, the Board has held that a state's
reasonable
interpretation of its own law is entitled to deference. See,
e.g., Iowa
Dept. of Human Services, DAB No. 1340 (1992) at 11. Thus,
the policy in
the Revised Guidelines requiring dispositional hearings for
adjudicated
delinquents every 18 months was not inconsistent with the State
statute
in question here. Furthermore, it is clear that a state may provide
for
the requisite dispositional hearing in administrative procedures
rather
than by statute. In a letter advising Connecticut of its intent
to
review its eligibility for section 427 funds for the years in
question
here, ACF specifically requested "the statutes or
administrative
procedures and forms which provide for the case review and
permanency
planning system." A.F. Ex. 15, at 1 (letter dated
8/7/91). Thus, ACF
clearly contemplated that Connecticut could meet the
dispositional
hearing requirement through administrative procedures such as
the
Revised Guidelines.
Moreover, ACF previously found that, notwithstanding a State statute
which
authorized the commitment of neglected, uncared-for, and dependent
children
to DCYS for two years, the DCYS policy in effect during FYs
1981 and 1982
requiring dispositional hearings for such children every
18 months
(identified as "Bulletin #43") met the requirements of section
427.
A.F. Ex. 7, at 7. ACF did not offer any reason, nor are we aware
of
any, why it treated this situation differently from the present one.
4/
Accordingly, we conclude that ACF's determination of ineligibility
should
be reversed because Connecticut had the requisite administrative
procedures
in place as of January 1987.
II. The determination of ineligibility should be reversed because
ACF's
interpretation of the term "foster care" in section 427 as
including
adjudicated delinquents is not the only reasonable interpretation,
and
ACF did not give timely, adequate notice of its interpretation.
As noted previously, in order to be eligible for section 427 funds,
a
state must have implemented and be operating the case review
system
specified in section 475(5) (including a dispositional hearing every
18
months) "for each child receiving foster care under the supervision
of
the State. . . ." Section 427(a)(2)(B) of the Act. ACF's
determination
of ineligibility was based on its view that adjudicated
delinquents were
both in "foster care" and "under the supervision of the
State" within
the meaning of this provision. For the reasons discussed
below, we find
that ACF's interpretation of the term "foster care" as
including
adjudicated delinquents is not the only reasonable one and that
"foster
care" may also be reasonably interpreted as not including
adjudicated
delinquents. 5/ We further find that ACF failed to give
Connecticut
timely notice of its interpretation. Accordingly, we
conclude that ACF
improperly relied on its interpretation in finding
Connecticut
ineligible for section 427 funds for the fiscal years in
question. 6/
A. ACF's interpretation of foster care as including
adjudicated
delinquents is reasonable, but is not required by the Act.
Although Connecticut argued that adjudicated delinquents were not
in
foster care within the meaning of section 427, it pointed to nothing
in
the language of the Act which indicated that this was an
unreasonable
interpretation. Indeed, ACF's interpretation is consistent
with the
underlying purpose of the statute and the legislative history.
As the
Board noted in Illinois Dept. of Children and Family Services, DAB
No.
1335 (1992), "[s]ince the purposes of section 427 are protective,
a
broad reading of the term 'foster care' which entitles the
maximum
number of children to the section 427 protections best
effectuates
congressional intent." DAB No. 1335 at 10. That decision
also cited a
Senate report which described the amendments made by Public Law
96-272
as involving --
a major restructuring of Social Security Act programs for
the
care of children who must be removed from their own homes.
In
particular, the incentive structure of present law is
modified
to lessen the emphasis on foster care placement and to
encourage
greater efforts to find permanent homes for children either
by
making it possible for them to return to their own families
or
by placing them in adoptive homes.
S. REP. No. 336, 95th Cong., 2nd Sess. 1 (1979). The
adjudicated
delinquents in question here were within the scope of section 427
as
described in this report since they were "removed from their own
homes"
and placed in homes which were not "permanent" homes. 7/
Moreover, Connecticut did not argue that no purpose would be served
by
affording adjudicated delinquents the section 427
protections.
Connecticut asserted that adjudicated delinquents required
out-of-home
placements either to obtain treatment or for the protection of
society,
whereas other children subject to the section 427 protections
required
placement because there were no family members able to care for
them.
However, Connecticut did not explain how the mere fact that the
reasons
for their placement differed would render the section 427
protections
inapplicable to adjudicated delinquents. As ACF suggested,
there was
still a need to decide the future disposition of those
adjudicated
delinquents who were committed to DCYS for more than 18
months. In any
event, the fact that Connecticut's procedures were in
full compliance
with section 427 except for the frequency of dispositional
hearings
provided for adjudicated delinquents indicates that Connecticut saw
some
utility in providing the section 427 protections to these children.
While ACF's interpretation was clearly reasonable, we do not agree
with
ACF's contention that the language and the legislative history of
the
Act require this interpretation. ACF noted that section
475(5)(C),
which defines the elements of the case review required by section
427,
requires that the protections be afforded to "each child." ACF
also
contended that the legislative history of section 427 establishes
that
its purpose was to prevent "any child" from being trapped in foster
care
drift. ACF brief received 9/22/92, at 6 (emphasis in
original). In
addition, ACF cited court cases finding that the Act
"conditions the
receipt of Federal funds upon the State's implementation of a
case
review system for each child receiving foster care under the
supervision
of the State." Id. at 10. However, as the Board noted
in DAB No. 1335,
the phrase "each child" in section 427 logically refers to
each child in
foster care. See DAB No. 1335, at 13. Since the
question here is
whether adjudicated delinquents are in foster care, ACF's
arguments do
not advance its position.
ACF also relied on the definition of the term "child-care institution"
in
section 472(c)(2) of title IV-E, which specifically excludes "any . .
.
facility operated primarily for the detention of children who are
determined
to be delinquent." ACF suggested that this established that
adjudicated
delinquents in all other DCYS placements were covered by
section 427.
However, on its face this provision means simply that no
child in a facility
which is operated primarily for the detention of
adjudicated delinquents is
eligible for title IV-E foster care
maintenance payments. It does not
necessarily follow from this that all
children in other facilities, including
adjudicated delinquents, are
eligible for foster care maintenance payments
and thus are in foster
care. (As indicated by the Senate report
referred to in note 7 of this
decision, Congress clearly intended that
children who are eligible for
foster care maintenance payments under title
IV-E be afforded the
section 427 protections.)
In addition, ACF relied on the definition of "child welfare services"
in
section 425 of title IV-B, which includes services to prevent or
remedy
"problems which may result in the . . . delinquency of children . . .
."
However, that section also provides that child welfare services
are
intended to protect and promote "the welfare of all children . . .
."
Thus, these services are directed at a broader class of children
than
simply those in foster care. DAB No. 1335, at 16.
Accordingly, the
fact that adjudicated delinquents are eligible for child
welfare
services does not mean that these children are in foster care within
the
meaning of section 427.
We also find no merit in ACF's argument that, since
adjudicated
delinquents are not one of the two groups of children
specifically
exempted from the dispositional hearing requirement by 45 C.F.R.
.
1356.21, they are required to be afforded dispositional hearings
in
accordance with section 475(5)(C) of the Act. The regulatory
exemptions
were based on ACF's determination that no purpose would be served
by
requiring a dispositional hearing for the children specified, not
that
these children were not in foster care under the supervision of
the
state. 48 Fed. Reg. 23104, 23109 (May 23, 1983).
Since we conclude that ACF's interpretation of foster care as
including
adjudicated delinquents is not required by the Act, Connecticut
could
reasonably define the term "foster care" as excluding
adjudicated
delinquents if there was some rational basis for distinguishing
these
children from other children subject to the section 427
protections.
The grounds for making such a distinction here include the fact
that
adjudicated delinquents were committed to DCYS solely pursuant to
an
adjudication of delinquency by the court, whereas other children
were
committed based on a determination that they were neglected,
dependent
or uncared for, or based on a voluntary placement agreement.
In
addition, adjudicated delinquents were placed only in group homes
or
residential treatment facilities, whereas neglected, dependent
or
uncared-for children were placed in a wider range of
facilities,
including foster family homes. Moreover, DCYS only had
custody of
adjudicated delinquents whereas DCYS could assume guardianship
of
neglected, dependent or uncared-for children. We therefore
conclude
that Connecticut's interpretation of foster care, like
ACF's
interpretation, was a reasonable one. 8/
B. Connecticut did not receive timely, adequate notice of
ACF's
interpretation.
It is well-established in Board and court precedent that where, as
here,
there are two conflicting interpretations of a statute, both of
which
are reasonable, the federal agency's interpretation is entitled
to
deference if appropriate notice of that interpretation has been given
to
the state. DAB No. 1335 at 17, and cases cited therein. We
therefore
turn to the question of whether Connecticut received timely,
adequate
notice of the interpretation advanced by ACF here.
ACF acknowledged that neither the Act nor the implementing
regulations
define the term "foster care." ACF's letter notifying Connecticut
that
it had been found ineligible for section 427 funds stated, however,
that
"[d]efinitions of foster care for section 427 compliance purposes may
be
found in Information Memorandum ACYF-IM-88-22, and in
Policy
Interpretation Question ACYF-PIQ-85-06, and in Policy
Announcement
ACYF-PA-87-02." A.F. Ex. 1, at 2. During the appeal
proceedings, ACF
also cited ACYF PIQ-82-12 as providing a definition of
foster care. As
discussed below, we conclude that none of these
issuances gave
Connecticut adequate notice that ACF interpreted the term
"foster care"
in section 427 as including adjudicated delinquents.
Moreover,
ACYF-PA-87-02 was dated June 1987 and ACYF-IM-88-22 was dated
August
1988. Thus, even if these issuances had clearly indicated that
ACF
considered adjudicated delinquents in foster care, notice of
ACF's
interpretation was not timely for all of the years in question. 9/
According to ACF, the relevant language in ACYF PIQ-82-12, issued
7/12/82,
states that one of the two factors which determines what
children should be
covered by the section 427 requirements is "whether
the State agency has the
responsibility for care and placement of the
child and the power to determine
the child's placement." See ACF's
brief received 9/22/92, at 9, quoting
PIQ-82-12 at 4. ACF contended
that since adjudicated delinquents are
committed to DCYS, this factor
applied and these children were required to be
afforded the section 427
protections. However, as the Board noted in
DAB No. 1335 in response to
a similar argument made by ACF, whether a state
"has the responsibility"
for the children determines whether the children are
"under the
supervision of the State" within the meaning of section 427, and
does
not address the separate requirement that the children be in
foster
care. Accordingly, this issuance did not address the matter in
dispute
here.
ACYF-PIQ-85-6, dated 6/5/85, addresses how to determine whether
children
should be included "in the State's foster care population, for
purposes
of section 427" and identifies two considerations:
1. Is the child in foster care? Has the child been
removed
from his home pursuant to a voluntary placement agreement or
as
the result of a judicial determination and placed in
out-of-home
care?
2. Is the child under the responsibility of the State
agency
for placement and care?
A.F. Ex. 17, at 8. However, this definition of foster care does
not
clearly include adjudicated delinquents, since it requires that
the
children be removed from home pursuant to either a voluntary
placement
agreement or a judicial determination. Adjudicated
delinquents were not
removed voluntarily from their homes. Moreover, it
seems reasonable to
read the PIQ as referring to the "judicial determination"
specified in
section 472(a)(1) of the Act, i.e., a determination by a judge
that
remaining in the home is contrary to the child's welfare (and,
where
applicable, that reasonable efforts have been made to prevent
the
child's removal from home). Since the adjudicated delinquents
in
question here were removed solely pursuant to an adjudication
of
delinquency, this PIQ did not constitute notice that ACF
considered
these children to be in foster care.
Finally, as pertinent here, both ACYF-PA-87-02, dated 6/1/87,
and
ACYF-IM-88-22, dated 8/18/88, provide:
The circumstances of placement, the existence of
handicapping
conditions, the status of the child (e.g.,
adjudicated
delinquent, or refugee minor), or the existence of a
blood
relationship between the foster parent and the child are
not
reasons for excluding children from the section 427 review.
A.F. Ex. 19, at 6. However, this provision does not affirmatively
state
that adjudicated delinquents must be included in the section 427
review.
Instead, read literally, it means that a child who is in foster care
may
not be excluded from this review on the ground that he or she is also
an
adjudicated delinquent. It is clear that Connecticut did not
exclude
adjudicated delinquents from the section 427 review simply because
of
their status as adjudicated delinquents, since it afforded the
requisite
dispositional hearings to children who were both adjudicated
delinquent
and who were found by the court to be neglected, dependent or
uncared
for. 10/ Accordingly, these issuances, like those discussed
above,
failed to put Connecticut on notice of the interpretation of foster
care
advanced by ACF here.
While none of the ACF issuances clearly indicated that
adjudicated
delinquents were subject to the section 427 protections, it is
arguable
that the lack of a clear definition of foster care gave rise to a
duty
on the part of Connecticut to inquire whether adjudicated
delinquents
were covered by section 427. However, we conclude that,
under the
circumstances here, Connecticut had no such duty. As noted
previously,
Connecticut passed the administrative procedures review for three
prior
fiscal years, FYs 1981, 1982 and 1985, although neither its
State
statute nor its administrative procedures required
dispositional
hearings for adjudicated delinquents every 18 months.
Thus, Connecticut
could have reasonably assumed that adjudicated delinquents
were not
subject to the section 427 protections.
ACF nevertheless contended that Connecticut was given notice of
ACF's
interpretation at a November 19, 1987 meeting at which ACF
suggested
that Connecticut submit a position paper to the Region I office of
ACF
setting forth the grounds for its view that adjudicated delinquents
were
properly excluded from the section 427 universe.
However,
contemporaneous notes of the meeting, made by a state employee
and
submitted to the Board by ACF, contain no indication that ACF
advised
Connecticut at that time of any official interpretation of section
427
as including adjudicated delinquents. If anything, the notes
indicate
that the issue was still open. See ACF's letter dated
12/15/92, Ex. B
at 4.
Accordingly, we conclude that Connecticut did not receive timely,
adequate
notice of ACF's interpretation, and that in the absence of such
notice, ACF
was precluded from finding Connecticut ineligible for the
section 427 funds
for FYs 1986 through 1991. 11/
III. The determination of ineligibility should be reversed because
ACF
failed to give Connecticut an opportunity to correct its
administrative
procedures prior to finding Connecticut ineligible for the
section 427
funds.
Connecticut also argued that ACF's determination of ineligibility
should
be reversed because ACF failed to follow its own policy requiring that
a
state be given an opportunity to correct deficiencies in
its
administrative procedures before being found ineligible for section
427
funds. Connecticut contended that this policy was set out in
ACF's
Section 427 Review Handbook, which was issued on August 18, 1988 as
an
attachment to ACYF-IM-88-12. The Handbook stated in pertinent
part:
If subsequent deficiencies are discovered after a State
has
initially passed its administrative Procedures Review, the
State
must take corrective action in consultation with the
Regional
Office within an approved timeframe so that all
section
427-related policies and procedures conform with the
Federal
requirements. The Case Record Survey may be conducted
as
scheduled. However, if corrective action is not
completed
within the timeframe allowed, section 427 funds may be
recovered
from the State even if the State passes the Case Record
Survey
portion of the review.
A.F. Ex. 18, at 4.
ACF acknowledged that the Handbook required that Connecticut be given
an
opportunity to correct its deficiency before a notice of
ineligibility
was issued (ACF submission dated 12/15/92, at 1); however, ACF
argued
that Connecticut had already been provided that opportunity in
the
November 19, 1987 meeting referred to previously (at which ACF
suggested
that Connecticut submit a position paper explaining its view
that
adjudicated delinquents were properly excluded from the section
427
universe).
As discussed earlier, we conclude that ACF did not give
Connecticut
adequate notice of its interpretation at the November 19, 1987
meeting,
or indeed in any written issuance prior to the March 13, 1992 notice
of
ineligibility appealed here. Without such notice, Connecticut could
not
reasonably be said to have been given an opportunity for
corrective
action. Accordingly, under the policy set out in the
Handbook, ACF
could not properly find Connecticut ineligible for the section
427 funds
for the fiscal years in question based solely on an
administrative
procedures review.
In any event, as discussed earlier, Connecticut in fact changed
its
administrative procedures in January 1987 to require
dispositional
hearings for adjudicated delinquents every 18 months.
Moreover,
Connecticut amended CGS . 46-141 in 1992 to the same
effect.
Accordingly, even if an opportunity for corrective action had
been
given, Connecticut clearly took the necessary action.
Conclusion
For the foregoing reasons, we conclude that ACF improperly
determined
Connecticut ineligible for section 427 funds advanced for FYs
1986
through 1991 and, accordingly, we reverse this determination.
We
further conclude that the disallowance of title IV-E funds for
children
in voluntary placements claimed for the fiscal years in question
is
improper since it was based on ACF's determination of ineligibility
for
the section 427 funds. Accordingly, we reverse this disallowance
in
full. This decision does not preclude ACF from issuing a
new
determination of ineligibility if it finds, based on a case
record
review, that Connecticut did not comply in practice with
the
requirements of section 427 during one or more of the fiscal years
in
question, nor does it preclude ACF from issuing a new disallowance
of
title IV-E funds based on any such finding of ineligibility.
________________________ Judith A. Ballard
________________________
Norval D. (John)
Settle
________________________
Cecilia Sparks
Ford
Presiding Board Member
1. This figure includes $1,831,755 which was not identified in
ACF's
March 13, 1992 determination but was identified for the first time
in
ACF's response to Board questions, dated November 13, 1992.
2. ACF's determination of ineligibility for FY 1985 was upheld
on
appeal to the Board. Connecticut Dept. of Children and Youth
Services,
DAB No. 952 (1988). DAB No. 952 was affirmed by the District
Court, but
a further appeal was taken by Connecticut. Connecticut
Department of
Children and Youth Services v. Department of Health and Human
Services,
Slip op. (D.D.C. March 18, 1992), appeal pending, No. 92-5182
(D.C.
Cir.).
3. ACF nevertheless questioned whether adjudicated delinquents
were
included in the particular category of placement in the
Revised
Guidelines which was identified by Connecticut, i.e., the
category
"Aftercare." However, ACF did not substantiate its view
that
"Aftercare" covered children other than adjudicated delinquents and
did
not assert that additional Board proceedings were required to
resolve
this issue. In any event, ACF acknowledged that adjudicated
delinquents
could have fallen under other categories listed in the Guidelines
for
which a dispositional hearing every 18 months was required.
ACF's
letter dated 12/15/92, at 2. Moreover, the Revised
Guidelines
specifically excepted from the section 427 requirements only
"[c]hildren
who are placed in an institution for delinquent children."
A.F. Ex. 4,
at 1. Since the adjudicated delinquents in question here
were in group
homes and residential treatment facilities, none of which were
operated
primarily for the detention of delinquent children, these children
were
clearly subject to the section 427 requirements under the
Revised
Guidelines.
4. The record indicates that, when Bulletin #43 was issued,
Connecticut
made "oral and written contact . . . with the Chief
Administrative Judge
to secure agreement on the conversion . . . ."
A.F. Ex. 7, at 7.
However, Connecticut asserted that there was no requirement
in State law
that DCYS notify the court of its policies and procedures
for
dispositional hearings, and that DCYS simply notified the court when
a
hearing was required in each case. Connecticut's response to
Board
questions, dated 11/12/92, at 3.
5. Connecticut did not initially dispute that the
adjudicated
delinquents were "under the supervision of the State" within the
meaning
of section 427, but subsequently raised this issue. We
conclude,
however, that the evidence in the record supports a finding
that
adjudicated delinquents were under state supervision. ACF's own
policy
indicates that the salient question in making such a finding is
whether
the state had responsibility for the care and placement of the
children
and had the power to determine their placement. ACYF PIQ
82-12, dated
7/12/82; see also, Massachusetts Dept. of Social Services, DAB
No. 1289
(1992), at 8. Here, Connecticut law provided that the
Commissioner of
DCYS could place on parole an adjudicated delinquent who had
been
committed to his custody, as well as return a child whom he had
placed
on parole to "any institution, resource or facility administered by
or
available to" DCYS without the need for court action. CGS .
17a-7
(formerly . 17-415a). Thus, following the initial placement by
the
court (which was required by CGS . 46b-140(b) to be made in
consultation
with DCYS), the Commissioner had responsibility for the care
and
placement of adjudicated delinquents, even if the court could
intervene
by extending or terminating a commitment.
6. Our analysis here is consistent with our analysis in Illinois
Dept.
of Children and Family Services, DAB No. 1335 (1992).
Specifically at
issue there was whether the term "foster care" covered
children who were
removed from their own homes and placed in the home of a
relative which
was not licensed or approved as meeting state licensing
standards for
foster family homes. Noting that the term "foster care"
was not
expressly defined in section 427 or elsewhere in the Act, the
Board
found that ACF's interpretation of that term as including the
children
in question was reasonable since it was not inconsistent with
the
statutory language or the legislative history. However, the
Board
rejected ACF's contention that its interpretation was required by
the
Act and found that Illinois' contrary interpretation was
also
reasonable. The Board further found that Illinois was entitled to
rely
on its interpretation in the absence of adequate, timely notice of
ACF's
interpretation.
7. DAB No. 1335 also noted, citing the Senate report, that
Congress
clearly viewed "foster care" as covering children in addition to
those
eligible for foster care maintenance payments under title IV-E.
See DAB
No. 1335, at 11. Thus, although the adjudicated delinquents
were
ineligible for title IV-E funds (since the judicial
determination
required by section 472(a) was not made for them), that is not
a basis
for concluding that they were not in foster care for purposes of
section
427.
8. Connecticut also asserted that, since the Federal Juvenile
Justice
Act permitted the commitment of delinquents to the Attorney General
for
placement in a foster home for an indefinite period without a
hearing,
this indicated that Congress did not intend adjudicated delinquents
to
be subject to the dispositional hearing requirements of section
427.
However, these two situations are not analogous. Section 427
provides
incentive funding for child welfare services which is conditioned on
a
state's provision of additional planning and review in individual
cases
designed to move children out of foster care placement. The fact
that a
delinquent child may be committed indefinitely in the federal
juvenile
justice system has no bearing on whether states are eligible for
section
427 funds without providing the requisite protections.
9. ACF did not argue here that these issuances should be
retroactively
applied. In any event, the Board rejected such an
argument in DAB No.
1335 made with respect to PIQ 85-6, which ACF claimed set
forth its
interpretation of foster care as including children placed
with
relatives in unapproved homes. See DAB No. 1335, at 21-23.
10. These issuances also stated that "[f]or purposes of the section
427
review, foster care is defined as twenty-four hour substitute care
for
children outside their own homes." However, ACF did not
specifically
argue that adjudicated delinquents were in foster care based on
this
provision. Indeed, if the term "substitute care" means any care
out of
home, it would require the inclusion in foster care of children whom
ACF
determined were excluded from the section 427 review, such
as
delinquents in secure facilities.
11. We further find that the fact that the Revised Guidelines issued
in
January 1987 provided for dispositional hearings for
adjudicated
delinquents every 18 months did not show that Connecticut had
notice of
an official interpretation by ACF. It is entirely plausible
that, as
Connecticut asserted, it voluntarily decided to apply the section
427
procedures to adjudicated delinquents without notice of
ACF's
interpretation (and without agreeing that the Act required
this
interpretation). However, once Connecticut provided for
dispositional
hearings for adjudicated delinquents every 18 months, it could
not claim
that it was prejudiced by the lack of notice. Thus, ACF can
reasonably
require Connecticut to include adjudicated delinquents in the
section
427 universe for the case record review for the fiscal years after
the
Revised Guidelines were issued (FYs 1988 through 1991). This would
be
consistent with Connecticut's original intent to include
adjudicated
delinquents in the universe for the case record review for the
entire
period in