West Virginia Department of Health and Human Resources, DAB No. 1437 (1993)

  Department of Health and Human Services

        DEPARTMENTAL APPEALS BOARD

     Appellate Division

SUBJECT:  West Virginia Department   DATE:  September 7, 1993 of Health
     and Human Resources Docket No. A-93-142 Decision No. 1437

   DECISION

The West Virginia Department of Health and Human Resources (West
Virginia) appealed the determination of the Administration for Children
and Families (ACF) that West Virginia was ineligible for $1,040,447 in
federal funds advanced to it for fiscal year (FY) 1989 under section 427
of title IV-B of the Social Security Act (Act).  Section 427 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.  West
Virginia also appealed ACF's concurrent determination disallowing
$974,030 which West Virginia claimed under title IV-E of the Act for
foster care maintenance payments made for children in voluntary
placements.  This disallowance was also based on West Virginia's failure
to comply with the section 427 requirements.

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 has
established policies or procedures for implementing the section 427
requirements.  Second, ACF reviews a sample of case records to determine
whether these policies or procedures were operational.  If a state fails
to establish a requirement as a matter of policy, or does not comply
with the applicable requirements in a certain percentage of the cases as
determined through a case sample, ACF requires the return of the section
427 funds.  Under criteria established by ACF, West Virginia had to
comply with the applicable requirements in 90% of the cases in order to
be eligible for section 427 funding for FY 1989. 1/

ACF initially approved West Virginia's written request for additional
funds based on a written certification by West Virginia that it met the
requirements of section 427.  However, based on a review of sample cases
conducted in May 1992 to validate West Virginia's self-certification,
ACF determined that West Virginia did not meet the 90% compliance
standard.  The deficiencies for which the sampled cases were cited
included lack of the case plan, the periodic review, and/or the
dispositional hearing required by section 427, and failure to comply
with "minor protections" specified in section 427.  West Virginia Ex. 1
at 1. 2/  ACF subsequently found West Virginia ineligible for the FY
1989 section 427 funds and disallowed title IV-E funds claimed for
voluntary placements on this basis as well.

On appeal, West Virginia did not specifically dispute ACF's findings.
It argued instead that ACF's determinations should be reversed because
the section 427 requirements for a case review system, which includes a
case plan, a periodic review and a dispositional hearing, were so vague
as to be unconstitutional.  As discussed below, however, we conclude
that West Virginia's argument has no merit since these requirements are
clearly articulated in the statute.  Accordingly, we uphold both ACF's
determination that West Virginia was ineligible for the FY 1989 section
427 funds and its disallowance of the title IV-E funds claimed for
voluntary placements. 3/

Statutory Provisions

The Adoption Assistance and Child Welfare Act of 1980, Public Law No.
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.  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, 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 472(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 --

      (A) each child has a case plan designed to achieve
      placement in the least restrictive (most family like)
      setting available and in close proximity to the parents'
      home, consistent with the best interest and special needs
      of the child,

      (B) the status of each child is reviewed periodically but
      no less frequently than once every six months by either a
      court or by administrative review (as defined in paragraph
      (6)) in order to determine the continuing necessity for and
      appropriateness of the placement, the extent of compliance
      with the case plan, and the extent of progress which has
      been made toward alleviating or mitigating the causes
      necessitating placement in foster care, and to project a
      likely date by which the child may be returned to the home
      or placed for adoption or legal guardianship, and

      (C) . . . 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), which
      hearing shall determine the future status of the child
      (including, but not limited to, whether the child should be
      returned to the parent, should be continued in foster care
      for a specified period, should be placed for adoption, or
      should (because of the child's special needs or
      circumstances) be continued in foster care on a permanent
      or long-term basis) . . . .

Analysis

West Virginia took the position that the statutory requirements for a
case review system were unconstitutionally vague. 4/  West Virginia
cited in support of its position Del A. v. Roemer, 777 F. Supp. 1297
(E.D. La. 1991), a case involving an action filed on behalf of children
in foster care under the supervision of the state agency alleging
violation of rights arising from Public Law No. 96-272.  West Virginia
noted specifically the court's conclusion that "the provisions requiring
a case plan and case review system are so vague and amorphous as to
evade judicial enforcement."  777 F. Supp. at 1309.  West Virginia
reasoned that these provisions were unconstitutional on due process
grounds because they did not give states fair warning as to what was
prohibited and because the lack of explicit standards carried the danger
of arbitrary and discriminatory enforcement.

West Virginia's argument raises an issue which is outside the scope of
the Board's review.  The Board is "bound by all applicable laws and
regulations."  45 C.F.R. . 16.14.  Thus, we have no authority to reverse
the ACF determination even if we were to conclude that the controlling
statute is unconstitutionally vague.  Delaware Dept. of Health and
Social Services, DAB No. 732 (1986); Arkansas Dept. of Human Services,
DAB No. 553 (1984).

West Virginia's argument can nevertheless be viewed as raising an issue
of statutory interpretation:  whether the statute clearly requires the
foster care protections which ACF found were lacking in the sample
cases.  We conclude, however, that the basic statutory requirements for
these protections are clear on their face.  Both the Board and the
courts have upheld numerous ACF determinations finding states ineligible
for section 427 funds based on these requirements.  See, e.g.,
Connecticut Department of Children and Youth Services, DAB No. 952
(1988), aff'd, Connecticut Dept. of Children and Youth Services v.
Department of Health and Human Services, 788 F. Supp. 573 (D.D.C. 1992).
As noted by the court in Connecticut, these requirements are "couched in
specific . . . terms."  788 F. Supp. at 578.  The statute sets forth in
considerable detail the function that each of the three protections in
question--the case plan, the periodic review, and the dispositional
hearing--is intended to serve, and, in the case of the latter two
protections, states specifically when the protections are to be afforded
and in what forum. 5/   Thus, West Virginia's position that these
requirements are too vague to be enforceable by ACF is simply not
credible.  This is particularly apparent with respect to the requirement
for a case plan since it appears that in some of West Virginia's sample
cases, there was no case plan at all.  See West Virginia's brief at 3;
ACF Ex. 1, at 11.  There is clearly no doubt that the statute requires a
case plan.

Even assuming that there was some ambiguity in how these statutory
provisions should be applied to particular facts, that would merely
justify a state's reliance on its own reasonable interpretation of the
provisions (in the absence of timely notice of ACF's interpretation).
See Connecticut Dept. of Children and Youth Services, DAB No. 1395
(1993); Illinois Dept. of Children and Family Services, DAB No. 1335
(1992).  Here, however, West Virginia has not specifically identified
any ambiguities in the statute nor has it advanced any interpretation of
the statute which is contrary to ACF's interpretation.

Moreover, West Virginia's reliance on Roemer is misplaced.  In that
case, the court found that Public Law No. 96-272 did not create
judicially enforceable rights under the Civil Rights Act or imply a
private right of action for children in foster care.  In this context,
the language quoted by West Virginia (concluding that the requirements
for a case review system were "vague and amorphous") does not support
West Virginia's position that ACF may not withdraw funding from a state
based on a finding that the state has not complied with section 427.
The court was concerned that, in order to determine whether the
requirement for a case plan in particular was met, an individualized
assessment of the needs of the child would have to be made.  While a
court might not have the expertise to make such an assessment, however,
ACF clearly does.  Thus, the court's conclusion does not preclude a
finding that the section 427 requirements are administratively
enforceable.  Indeed, the court specifically stated that "[t]he contents
of the case plan and the case review procedure are adequately delineated
in [the statute]."  777 F. Supp. at 1309.

Furthermore, West Virginia's argument that the statute is unclear is
undermined by the fact that the majority of sample cases were found
acceptable.  Although West Virginia did not meet the 90% compliance
standard, ACF found that 89% of the sample cases had acceptable case
plans, 72% of the sample cases had acceptable periodic reviews, and 63%
of the sample cases had acceptable dispositional hearings.  See West
Virginia Ex. 2, letter dated 11/20/92, at 1.  West Virginia was unlikely
to have achieved this level of compliance if the meaning of the statute
were truly unclear.  In fact, West Virginia itself originally attributed
its failure to meet the 90% compliance standard to a decrease in social
services' staff, which it said affected periodic reviews, and to
problems with its judiciary, which it said affected dispositional
hearings.  West Virginia Ex. 2, letter dated 12/4/92.  Thus, West
Virginia's argument on appeal does not appear to reflect the inability
of its program administrators to understand the statute. 6/

Conclusion

For the foregoing reasons, we conclude that ACF properly determined that
West Virginia did not meet the requirements of section 427 in FY 1989.
Accordingly, we sustain ACF's determination that West Virginia was
ineligible for $1,040,447 available under section 427 and disallowing
$974,030 in title IV-E funds claimed for children in voluntary
placements for that year.

    ________________________ Donald F.
    Garrett

    ________________________ Norval D.
    (John) Settle

    ________________________ Judith A.
    Ballard Presiding Board Member

1.     ACF established a 90% compliance standard for triennial reviews
of compliance with the section 427 requirements, such as the review in
question here.  A lesser rate of compliance was required for earlier
reviews.  ACF Exhibit (Ex.) 3, at 7 (1988 Section 427 Review Handbook,
at 5).

2.     ACF stated that it was able to determine that West Virginia
failed to comply with the section 427 requirements in 90% of cases
subject to the section 427 protections based on a review of only 14 of
150 sample cases.  However, ACF indicated that this determination was
confirmed by its analysis of the remaining cases.  West Virginia Ex. 1,
at 2.

3.     After the parties filed briefs in this case, Congress enacted a
moratorium on the collection of certain disallowances under Parts B or E
of title IV of the Act.  Section 13716 of the Omnibus Reconciliation Act
of 1993 (effective August 14, 1993) provides in part that --

 The Secretary of Health and Human Services shall not, before
 October 1, 1994-- (1) reduce any payment to, withhold any
   payment from, or seek any repayment from any State under part
   B or E of title IV of the Social Security Act by reason of a
   determination made in connection with a review of State
   compliance with section 427 of such Act for any Federal fiscal
   year before fiscal year 1995 . . . .

Since the case was fully briefed and since our role is simply to issue
the final Department determination on compliance (rather than actually
to collect the funds), we determined that it would be appropriate for us
to proceed to decision without asking the parties to comment on the
effect of the moratorium.

4.     One of the sample cases at issue, sample no. 9, involved only a
finding that West Virginia failed to comply with "minor protections"
required by section 427.  West Virginia Ex. 1, at 1.  Since West
Virginia did not challenge this finding, we sustain it without further
consideration.  All of the remaining sample cases were found
unacceptable based on the lack of compliance with one or more of the
requirements challenged by West Virginia.  Id.

5.     Moreover, as ACF noted, it informed state agencies of the
statutory requirements in two policy directives which were sent to all
state agencies prior to the year in question here:  Program Instruction
85-2, dated January 29, 1985, and a Review Handbook, dated August 1988
(ACF Ex. 2 and 3).  Although these directives track the language of the
statute, they break down each requirement into several elements in order
to make the requirement more easily understood.

6.     Moreover, if West Virginia in fact found the section 427
requirements too vague to implement, then presumably it would not have
certified that it met those