Free Memorandum in Opposition - District Court of California - California

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SUBCHAPTER G--THE ADMINISTRATION ON CHILDREN, YOUTH AND FAMILIES, FOSTER CARE MAINTENANCE PAYMENTS, ADOPTION ASSISTANCE, AND CHILD AND FAMILY SERVICES
PART 1355--GENERAL
Sec. 1355.10 Scope. 1355.20 Definitions. 1355.21 State plan requirements for titles IV-E and IV-B. 1355.25 Principles of child and family services. 1355.30 Other applicable regulations. 1355.31 Elements of the child and family services review system. 1355.32 Timetable for the reviews. 1355.33 Procedures for the review. 1355.34 Criteria for determining substantial conformity. 1355.35 Program improvement plans. 1355.36 Withholding Federal funds due to failure to achieve substantial conformity or failure to successfully complete a program improvement plan. 1355.37 Opportunity for Public Inspection of Review Reports and Materials. 1355.38 Enforcement of section 471(a)(18) of the Act regarding the removal of barriers to interethnic adoption. 1355.39 Administrative and judicial review. 1355.40 Foster care and adoption data collection. 1355.50 Purpose of this part. 1355.52 Funding authority for statewide automated child welfare information systems (SACWIS). 1355.53 Conditions for approval of funding. 1355.54 Submittal of advance planning documents. 1355.55 Review and assessment of the system developed with enhanced funds. 1355.56 Failure to meet the conditions of the approved APD. 1355.57 Cost allocation. APPENDIX A TO PART 1355--FOSTER CARE DATA ELEMENTS. APPENDIX B TO PART 1355--ADOPTION DATA ELEMENTS. APPENDIX C TO PART 1355--ELECTRONIC DATA TRANSMISSION FORMAT. APPENDIX D TO PART 1355--FOSTER CARE AND ADOPTION RECORD LAYOUTS. APPENDIX E TO PART 1355--DATA STANDARDS. APPENDIX F TO PART 1355--ALLOTMENT OF FUNDS WITH 427 INCENTIVE FUNDS TITLE IV-B CHILD WELFARE SERVICES FISCAL YEAR 1993.
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§ 1355.10 Scope. Unless otherwise specified, part 1355 applies to States and Indian Tribes and contains general requirements for Federal financial participation under titles IV-B and IV-E of the Social Security Act.
[61 FR 58653, Nov. 18, 1996]

AUTHORITY: 42 U.S.C. 620 et seq., 42 U.S.C. 670 et seq.; 42 U.S.C. 1302.

§ 1355.20 Definitions. (a) Unless otherwise specified, the following terms as they appear in 45 CFR parts 1355, 1356 and 1357 of this title are defined as follows-- Act means the Social Security Act, as amended. ACYF means the Administration on Children, Youth and Families, Administration for Children and Families (ACF), U. S. Department of Health and Human Services. Adoption means the method provided by State law which establishes the legal relationship of parent and child between persons who are not so related by birth, with the same mutual rights and obligations that exist between children and their birth parents. This relationship can only be termed ``adoption'' after the legal process is complete. Child abuse and neglect means the definition contained in 42 U.S.C. 5106(g)(2). Child care institution means a private child care institution, or a public child care institution which accommodates no more than twenty-five children, and is licensed by the State in which it is situated or has been approved by the agency of such State or tribal licensing authority (with respect to child care institutions on or near Indian Reservations) responsible for licensing or approval of institutions of this type as meeting the standards established for such licensing. This definition must not include detention facilities, forestry camps, training schools, or any other facility operated primarily for the detention of children who are determined to be delinquent.

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§ 1355.20
Commissioner means the Commissioner on Children, Youth and Families, Administration for Children and Families, U.S. Department of Health and Human Services. Date a child is considered to have entered foster care means the earlier of: The date of the first judicial finding that the child has been subjected to child abuse or neglect; or, the date that is 60 calendar days after the date on which the child is removed from the home pursuant to § 1356.21(k). A State may use a date earlier than that required in this paragraph, such as the date the child is physically removed from the home. This definition determines the date used in calculating all time period requirements for the periodic reviews, permanency hearings, and termination of parental rights provision in section 475(5) of the Act and for providing time-limited reunification services described at section 431(a)(7) of the Act. The definition has no relationship to establishing initial title IV-E eligibility. Department means the United States Department of Health and Human Services. Detention facility in the context of the definition of child care institution in section 472(c)(2) of the Act means a physically restricting facility for the care of children who require secure custody pending court adjudication, court disposition, execution of a court order or after commitment. Entity, as used in § 1355.38, means any organization or agency (e.g., a private child placing agency) that is separate and independent of the State agency; performs title IV-E functions pursuant to a contract or subcontract with the State agency; and, receives title IV-E funds. A State court is not an ``entity'' for the purposes of § 1355.38 except if an administrative arm of the State court carries out title IV-E administrative functions pursuant to a contract with the State agency. Foster care means 24-hour substitute care for children placed away from their parents or guardians and for whom the State agency has placement and care responsibility. This includes, but is not limited to, placements in foster family homes, foster homes of relatives, group homes, emergency

45 CFR Ch. XIII (10­1­07 Edition)
shelters, residential facilities, child care institutions, and preadoptive homes. A child is in foster care in accordance with this definition regardless of whether the foster care facility is licensed and payments are made by the State or local agency for the care of the child, whether adoption subsidy payments are being made prior to the finalization of an adoption, or whether there is Federal matching of any payments that are made. Foster care maintenance payments are payments made on behalf of a child eligible for title IV-E foster care to cover the cost of (and the cost of providing) food, clothing, shelter, daily supervision, school supplies, a child's personal incidentals, liability insurance with respect to a child, and reasonable travel for a child's visitation with family, or other caretakers. Local travel associated with providing the items listed above is also an allowable expense. In the case of child care institutions, such term must include the reasonable costs of administration and operation of such institutions as are necessarily required to provide the items described in the preceding sentences. ``Daily supervision'' for which foster care maintenance payments may be made includes: (1) Foster family care--licensed child care, when work responsibilities preclude foster parents from being at home when the child for whom they have care and responsibility in foster care is not in school, licensed child care when the foster parent is required to participate, without the child, in activities associated with parenting a child in foster care that are beyond the scope of ordinary parental duties, such as attendance at administrative or judicial reviews, case conferences, or foster parent training. Payments to cover these costs may be: included in the basic foster care maintenance payment; a separate payment to the foster parent, or a separate payment to the child care provider; and (2) Child care institutions--routine day-to-day direction and arrangements to ensure the well-being and safety of the child. Foster family home means, for the purpose of title IV-E eligibility, the home of an individual or family licensed or

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approved as meeting the standards established by the State licensing or approval authority(ies) (or with respect to foster family homes on or near Indian reservations, by the tribal licensing or approval authority(ies)), that provides 24-hour out-of-home care for children. The term may include group homes, agency-operated boarding homes or other facilities licensed or approved for the purpose of providing foster care by the State agency responsible for approval or licensing of such facilities. Foster family homes that are approved must be held to the same standards as foster family homes that are licensed. Anything less than full licensure or approval is insufficient for meeting title IV-E eligibility requirements. States may, however, claim title IV-E reimbursement during the period of time between the date a prospective foster family home satisfies all requirements for licensure or approval and the date the actual license is issued, not to exceed 60 days. Full review means the joint Federal and State review of all federally-assisted child and family services programs in the States, including family preservation and support services, child protective services, foster care, adoption, and independent living services, for the purpose of determining the State's substantial conformity with the State plan requirements of titles IV-B and IV-E as listed in § 1355.34 of this part. A full review consists of two phases, the statewide assessment and a subsequent on-site review, as described in § 1355.33 of this part. Legal guardianship means a judicially-created relationship between child and caretaker which is intended to be permanent and self-sustaining as evidenced by the transfer to the caretaker of the following parental rights with respect to the child: protection, education, care and control of the person, custody of the person, and decision-making. The term legal guardian means the caretaker in such a relationship. National Child Abuse and Neglect Data System (NCANDS) means the voluntary national data collection and analysis system established by the Administration for Children and Families in response to a requirement in the Child

§ 1355.20

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Abuse Prevention and Treatment Act (Pub. L. 93­247), as amended. Partial review means: (1) For the purpose of the child and family services review, the joint Federal and State review of one or more federally-assisted child and family services program(s) in the States, including family preservation and support services, child protective services, foster care, adoption, and independent living services. A partial review may consist of any of the components of the full review, as mutually agreed upon by the State and the Administration for Children and Families as being sufficient to determine substantial conformity of the reviewed components with the State plan requirements of titles IV-B and IV-E as listed in § 1355.34 of this part; and (2) For the purpose of title IV-B and title IV-E State plan compliance issues that are outside the prescribed child and family services review format, e.g., compliance with AFCARS requirements, a review of State laws, policies, regulations, or other information appropriate to the nature of the concern, to determine State plan compliance. Permanency hearing means: (1) The hearing required by section 475(5)(C) of the Act to determine the permanency plan for a child in foster care. Within this context, the court (including a Tribal court) or administrative body determines whether and, if applicable, when the child will be: (i) Returned to the parent; (ii) Placed for adoption, with the State filing a petition for termination of parental rights; (iii) Referred for legal guardianship; (iv) Placed permanently with a fit and willing relative; or (v) Placed in another planned permanent living arrangement, but only in cases where the State agency has documented to the State court a compelling reason for determining that it would not be in the best interests of the child to follow one of the four specified options above. (2) The permanency hearing must be held no later than 12 months after the date the child is considered to have entered foster care in accordance with the definition at § 1355.20 of this part or

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§ 1355.21
within 30 days of a judicial determination that reasonable efforts to reunify the child and family are not required. After the initial permanency hearing, subsequent permanency hearings must be held not less frequently than every 12 months during the continuation of foster care. The permanency hearing must be conducted by a family or juvenile court or another court of competent jurisdiction or by an administrative body appointed or approved by the court which is not a part of or under the supervision or direction of the State agency. Paper reviews, ex parte hearings, agreed orders, or other actions or hearings which are not open to the participation of the parents of the child, the child (if of appropriate age), and foster parents or preadoptive parents (if any) are not permanency hearings. State means, for title IV-B, the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, Guam, the Virgin Islands, the Commonwealth of the Northern Mariana Islands, and American Samoa. For title IV-E the term ``State'' means the 50 States, the District of Columbia, the Commonwealth of Puerto Rico, the United States Virgin Islands, Guam, and American Samoa. State agency means the State agency administering or supervising the administration of the title IV-B and title IV-E State plans and the title XX social services block grant program. An exception to this requirement is permitted by section 103(d) of the Adoption Assistance and Child Welfare Act of 1980 (Pub. L. 96­272). Section 103(d) provides that, if on December 1, 1974, the title IV-B program (in a State or local agency) and the social services program under section 402(a)(3) of the Act (the predecessor program to title XX) were administered by separate agencies, that separate administration of the programs could continue at State option. Statewide assessment means the initial phase of a full review of all federallyassisted child and family services programs in the States, including family preservation and support services, child protective services, foster care, adoption, and independent living services as described in § 1355.33(b) of this

45 CFR Ch. XIII (10­1­07 Edition)
part, for the purpose of determining the State's substantial conformity with the State plan requirements of titles IV-B and IV-E as listed in § 1355.34 of this part. (b) Unless otherwise specified, the definitions contained in section 475 of the Act apply to all programs under titles IV-E and IV-B of the Act.
[48 FR 23114, May 23, 1983, as amended at 57 FR 30429, July 9, 1992; 58 FR 67924, Dec. 22, 1993; 61 FR 58653, Nov. 18, 1996; 65 FR 4076, Jan. 25, 2000; 66 FR 58675, Nov. 23, 2001]

§ 1355.21 State plan requirements for titles IV-E and IV-B. (a) The State plans for titles IV-E and IV-B must provide for safeguards on the use and disclosure of information which meet the requirements contained in section 471(a)(8) of the Act. (b) The State plans for titles IV-E and IV-B must provide for compliance with the Department's regulations listed in 45 CFR 1355.30. (c) The State agency and the Indian Tribe must make available for public review and inspection the Child and Family Services Plan (CFSP) and the Annual Progress and Services Reports. (See 45 CFR 1357.15 and 1357.16.) The State agency also must make available for public review and inspection the title IV-E State Plan.
[48 FR 23114, May 23, 1983, as amended at 61 FR 58654, Nov. 18, 1996]

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§ 1355.25 Principles of child and family services. The following principles, most often identified by practitioners and others as helping to assure effective services for children, youth, and families, should guide the States and Indian Tribes in developing, operating, and improving the continuum of child and family services. (a) The safety and well-being of children and of all family members is paramount. When safety can be assured, strengthening and preserving families is seen as the best way to promote the healthy development of children. One important way to keep children safe is to stop violence in the family including violence against their mothers. (b) Services are focused on the family as a whole; service providers work with families as partners in identifying and

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meeting individual and family needs; family strengths are identified, enhanced, respected, and mobilized to help families solve the problems which compromise their functioning and wellbeing. (c) Services promote the healthy development of children and youth, promote permanency for all children and help prepare youth emancipating from the foster care system for self-sufficiency and independent living. (d) Services may focus on prevention, protection, or other short or long-term interventions to meet the needs of the family and the best interests and need of the individual(s) who may be placed in out-of-home care. (e) Services are timely, flexible, coordinated, and accessible to families and individuals, principally delivered in the home or the community, and are delivered in a manner that is respectful of and builds on the strengths of the community and cultural groups. (f) Services are organized as a continuum, designed to achieve measurable outcomes, and are linked to a wide variety of supports and services which can be crucial to meeting families' and children's needs, for example, housing, substance abuse treatment, mental health, health, education, job training, child care, and informal support networks. (g) Most child and family services are community-based, involve community organizations, parents and residents in their design and delivery, and are accountable to the community and the client's needs. (h) Services are intensive enough and of sufficient duration to keep children safe and meet family needs. The actual level of intensity and length of time needed to ensure safety and assist the family may vary greatly between preventive (family support) and crisis intervention services (family preservation), based on the changing needs of children and families at various times in their lives. A family or an individual does not need to be in crisis in order to receive services.
[61 FR 58654, Nov. 18, 1996]

§ 1355.30

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§ 1355.30 Other applicable regulations. Except as specified, the following regulations are applicable to all pro-

grams funded under titles IV-B and IVE of the Act. (a) 45 CFR Part 16--Procedures of the Departmental Grant Appeals Board. (b) 45 CFR Part 30--Claims Collection. (c) 45 CFR Part 74--Administration of Grants (Applicable only to title IV-E foster care and adoption assistance, except that: (1) Section 74.23 Cost Sharing or Matching, and (2) section 74.52 Financial Reporting Requirements, will not apply.) (d) 45 CFR Part 76--Governmentwide Debarment and Suspension (Nonprocurement) and Governmentwide Requirements for Drug-Free Workplace (Grants). (e) 45 CFR Part 80--Nondiscrimination Under Programs Receiving Federal Assistance Through the Department of Health and Human Services Effectuation of Title VI of the Civil Rights Act of 1964. (f) 45 CFR Part 81--Practice and Procedure for Hearings Under Part 80 of This Title. (g) 45 CFR Part 84--Nondiscrimination on the Basis of Handicap in Programs and Activities Receiving Federal Financial Assistance. (h) 45 CFR Part 91--Nondiscrimination on the Basis of Age in HHS Programs or Activities Receiving Federal Financial Assistance. (i) 45 CFR Part 92--Uniform Administrative Requirements for Grants and Cooperative Agreements to State and Local Governments (Applicable only to the title IV-B programs and the Independent Living Program under Section 477 of the Act). (j) 45 CFR Part 93--New Restrictions on Lobbying. (k) 45 CFR Part 95--General Administration--Grant Programs (Public Assistance and Medical Assistance). (Applicable to title IV-B and title IV-E except that, notwithstanding 45 CFR 95.1(a), Subpart A, Time Limits for States to File Claims, does not apply to title IV-B (subparts 1 and 2) and the Independent Living Program.) (l) 45 CFR Part 97--Consolidation of Grants to the Insular Areas. (Applicable only to the title IV-B programs). (m) 45 CFR Part 100--Intergovernmental Review of Department of Health and Human Services Programs

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§ 1355.31
and Activities. (Only one section is applicable: 45 CFR 100.12, How may a State simplify, consolidate, or substitute federally required State plans?). (n) 45 CFR Part 201--Grants to States for Public Assistance Programs. Only the following sections are applicable: (1) § 201.5--Grants. (Applicable to title IV-E foster care and adoption assistance only.) (2) § 201.6--Withholding of payment; reduction of Federal financial participation in the costs of social services and training. (Applicable only to an unapprovable change in an approved State plan, or the failure of the State to change its approved plan to conform to a new Federal requirement for approval of State plans.) (3) § 201.15--Deferral of claims for Federal financial participation. (Applicable only to title IV-E foster care and adoption assistance.) (4) § 201.66--Repayment of Federal funds by installments. (Applicable only to title IV-E foster care and adoption assistance.) (o) 45 CFR Part 204.1--Submittal of State Plans for Governor's Review. (p) 45 CFR Part 205--General Administration--Public Assistance Programs. Only the following sections are applicable: (1) § 205.5--Plan amendments. (2) § 205.10--Hearings. (3) § 205.50--Safeguarding information for the financial assistance programs. (4) § 205.100--Single State agency.
[61 FR 58654, Nov. 18, 1996, as amended at 66 FR 58675, Nov. 23, 2001]

45 CFR Ch. XIII (10­1­07 Edition)
the four-year period after the final rule becomes effective. (b) Reviews following the initial review. (1) A State found to be operating in substantial conformity during an initial or subsequent review, as defined in § 1355.34 of this part, must: (i) Complete a full review every five years; and (ii) Submit a completed statewide assessment to ACF three years after the on-site review. The statewide assessment will be reviewed jointly by the State and the Administration for Children and Families to determine the State's continuing substantial conformity with the State plan requirements subject to review. No formal approval of this interim statewide assessment by ACF is required. (2) A State program found not to be operating in substantial conformity during an initial or subsequent review will: (i) Be required to develop and implement a program improvement plan, as defined in § 1355.35 of this part; and (ii) Begin a full review two years after approval of the program improvement plan. (c) Reinstatement of reviews based on information that a State is not in substantial conformity. (1) ACF may require a full or a partial review at any time, based on any information, regardless of the source, that indicates the State may no longer be operating in substantial conformity. (2) Prior to reinstating a full or partial review, ACF will conduct an inquiry and require the State to submit additional data whenever ACF receives information that the State may not be in substantial conformity. (3) If the additional information and inquiry indicates to ACF's satisfaction that the State is operating in substantial conformity, ACF will not proceed with any further review of the issue addressed by the inquiry. This inquiry will not substitute for the full reviews conducted by ACF under § 1355.32(b). (4) ACF may proceed with a full or partial review if the State does not provide the additional information as requested, or the additional information confirms that the State may not be operating in substantial conformity.

§ 1355.31 Elements of the child and family services review system. Scope. Sections 1355.32 through 1355.37 of this part apply to reviews of child and family services programs administered by States under subparts 1 and 2 of title IV-B of the Act, and reviews of foster care and adoption assistance programs administered by States under title IV-E of the Act.
[65 FR 4076, Jan. 25, 2000]

§ 1355.32
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Timetable for the reviews.

(a) Initial reviews. Each State must complete an initial full review as described in § 1355.33 of this part during

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(d) Partial reviews based on noncompliance with State plan requirements that are outside the scope of a child and family services review. When ACF becomes aware of a title IV-B or title IV-E compliance issue that is outside the scope of the child and family services review process, we will: (1) Conduct an inquiry and require the State to submit additional data. (2) If the additional information and inquiry indicates to ACF's satisfaction that the State is in compliance, we will not proceed with any further review of the issue addressed by the inquiry. (3) ACF will institute a partial review, appropriate to the nature of the concern, if the State does not provide the additional information as requested, or the additional information confirms that the State may not be in compliance. (4) If the partial review determines that the State is not in compliance with the applicable State plan requirement, the State must enter into a program improvement plan designed to bring the State into compliance, if the provisions for such a plan are applicable. The terms, action steps and timeframes of the program improvement plan will be developed on a case-bycase basis by ACF and the State. The program improvement plan must take into consideration the extent of noncompliance and the impact of the noncompliance on the safety, permanency or well-being of children and families served through the State's title IV-B or IV-E allocation. If the State remains out of compliance, the State will be subject to a penalty related to the extent of the noncompliance. (5) Review of AFCARS compliance will take place in accordance with 45 CFR 1355.40.
[65 FR 4076, Jan. 25, 2000, as amended at 66 FR 58675, Nov. 23, 2001]

§ 1355.33

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§ 1355.33 Procedures for the review. (a) The full child and family services reviews will: (1) Consist of a two-phase process that includes a statewide assessment and an on-site review; and (2) Be conducted by a team of Federal and State reviewers that includes: (i) Staff of the State child and family services agency, including the State

and local offices that represent the service areas that are the focus of any particular review; (ii) Representatives selected by the State, in collaboration with the ACF Regional Office, from those with whom the State was required to consult in developing its CFSP, as described and required in 45 CFR part 1357.15(l); (iii) Federal staff of HHS; and (iv) Other individuals, as deemed appropriate and agreed upon by the State and ACF. (b) Statewide assessment. The first phase of the full review will be a statewide assessment conducted by the internal and external State members of the review team. The statewide assessment must: (1) Address each systemic factor under review, including the statewide information system; case review system; quality assurance system; staff training; service array; agency responsiveness to the community; and foster and adoptive parent licensing, recruitment and retention; (2) Assess the outcome areas of safety, permanence, and well-being of children and families served by the State agency using data from AFCARS and NCANDS. For the initial review, ACF may approve another data source to substitute for AFCARS, and in all reviews, ACF may approve another data source to substitute for NCANDS. The State must also analyze and explain its performance in meeting the national standards for the statewide data indicators; (3) Assess the characteristics of the State agency that have the most significant impact on the agency's capacity to deliver services to children and families that will lead to improved outcomes; (4) Assess the strengths and areas of the State's child and family services programs that require further examination through an on-site review; (5) Include a listing of all the persons external to the State agency who participated in the preparation of the statewide assessment pursuant to §§ 1355.33(a)(2)(ii) and (iv); and (6) Be completed and submitted to ACF within 4 months of the date that ACF transmits the information for the statewide assessment to the State.

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§ 1355.33
(c) On-site review. The second phase of the full review will be an on-site review. (1) The on-site review will cover the State's programs under titles IV-B and IV-E of the Act, including in-home services and foster care. It will be jointly planned by the State and ACF, and guided by information in the completed statewide assessment that identifies areas in need of improvement or further review. (2) The on-site review may be concentrated in several specific political subdivisions of the State, as agreed upon by the ACF and the State; however, the State's largest metropolitan subdivision must be one of the locations selected. (3) ACF has final approval of the selection of specific areas of the State's child and family services continuum described in paragraph (c)(1) of this section and selection of the political subdivisions referenced in paragraph (c)(2) of this section. (4) Sources of information collected during the on-site review to determine substantial conformity must include, but are not limited to: (i) Case records on children and families served by the agency; (ii) Interviews with children and families whose case records have been reviewed and who are, or have been, recipients of services of the agency; (iii) Interviews with caseworkers, foster parents, and service providers for the cases selected for the on-site review; and (iv) Interviews with key stakeholders, both internal and external to the agency, which, at a minimum, must include those individuals who participated in the development of the State's CFSP required at 45 CFR 1357.15(1), courts, administrative review bodies, children's guardians ad litem and other individuals or bodies assigned responsibility for representing the best interests of the child. (5) The sample will range from 30­50 cases. Foster care cases must be drawn randomly from AFCARS, or, for the initial review, from another source approved by ACF and include children who entered foster care during the year under review. In-home cases must be drawn randomly from NCANDS or from

45 CFR Ch. XIII (10­1­07 Edition)
another source approved by ACF. To ensure that all program areas are adequately represented, the sample size may be increased. (6) The sample of 30­50 cases reviewed on-site will be selected from a randomly drawn oversample of no more than 150 foster care and 150 in-home services cases. The oversample must be statistically significant at a 90 percent compliance rate (95 percent in subsequent reviews), with a tolerable sampling error of 5 percent and a confidence coefficient of 95 percent. The additional cases in the oversample not selected for the on-site review will form the sample of cases to be reviewed, if needed, in order to resolve discrepancies between the statewide assessment and the on-site reviews in accordance with paragraph (d)(2) of this section. (d) Resolution of discrepancies between the statewide assessment and the findings of the on-site portion of the review. Discrepancies between the statewide assessment and the findings of the onsite portion of the review will be resolved by either of the following means, at the State's option: (1) The submission of additional information by the State; or (2) ACF and the State will review additional cases using only those indicators in which the discrepancy occurred. ACF and the State will determine jointly the number of additional cases to be reviewed, not to exceed 150 foster care cases or 150 in-home services cases to be selected as specified in paragraph (c)(6) of this section. (e) Partial review. A partial child and family services review, when required, will be planned and conducted jointly by ACF and the State agency based on the nature of the concern. A partial review does not substitute for the full reviews as required under § 1355.32(b). (f) Notification. Within 30 calendar days following either a partial child and family services review, full child and family services review, or the resolution of a discrepancy between the statewide assessment and the findings of the on-site portion of the review, ACF will notify the State agency in writing of whether the State is, or is

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not, operating formity. in substantial con-

§ 1355.34

[65 FR 4077, Jan. 25, 2000, as amended at 66 FR 58675, Nov. 23, 2001]

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§ 1355.34 Criteria for determining substantial conformity. (a) Criteria to be satisfied. ACF will determine a State's substantial conformity with title IV-B and title IV-E State plan requirements based on the following: (1) Its ability to meet national standards, set by the Secretary, for statewide data indicators associated with specific outcomes for children and families; (2) Its ability to meet criteria related to outcomes for children and families; and (3) Its ability to meet criteria related to the State agency's capacity to deliver services leading to improved outcomes. (b) Criteria related to outcomes. (1) A State's substantial conformity will be determined by its ability to substantially achieve the following child and family service outcomes: (i) In the area of child safety: (A) Children are, first and foremost, protected from abuse and neglect; and, (B) Children are safely maintained in their own homes whenever possible and appropriate; (ii) In the area of permanency for children: (A) Children have permanency and stability in their living situations; and (B) The continuity of family relationships and connections is preserved for children; and (iii) In the area of child and family well-being: (A) Families have enhanced capacity to provide for their children's needs; (B) Children receive appropriate services to meet their educational needs; and (C) Children receive adequate services to meet their physical and mental health needs. (2) A State's level of achievement with regard to each outcome reflects the extent to which a State has: (i) Met the national standard(s) for the statewide data indicator(s) associated with that outcome, if applicable; and,

(ii) Implemented the following CFSP requirements or assurances: (A) The requirements in 45 CFR 1357.15(p) regarding services designed to assure the safety and protection of children and the preservation and support of families; (B) The requirements in 45 CFR 1357.15(q) regarding the permanency provisions for children and families in sections 422 and 471 of the Act; (C) The requirements in section 422(b)(9) of the Act regarding recruitment of potential foster and adoptive families; (D) The assurances by the State as required by section 422(b)(10)(C)(i) and (ii) of the Act regarding policies and procedures for abandoned children; (E) The requirements in section 422(b)(11) of the Act regarding the State's compliance with the Indian Child Welfare Act; (F) The requirements in section 422(b)(12) of the Act regarding a State's plan for effective use of cross-jurisdictional resources to facilitate timely adoptive or permanent placements; and, (G) The requirements in section 471(a)(15) of the Act regarding reasonable efforts to prevent removals of children from their homes, to make it possible for children in foster care to safely return to their homes, or, when the child is not able to return home, to place the child in accordance with the permanency plan and complete the steps necessary to finalize the permanent placement. (3) A State will be determined to be in substantial conformity if its performance on: (i) Each statewide data indicator developed pursuant to paragraph (b)(4) of this section meets the national standard described in paragraph (b)(5) of this section; and, (ii) Each outcome listed in paragraph (b)(1) of this section is rated as ``substantially achieved'' in 95 percent of the cases examined during the on-site review (90 percent of the cases for a State's initial review). Information from various sources (case records, interviews) will be examined for each outcome and a determination made as to the degree to which each outcome

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§ 1355.34
has been achieved for each case reviewed. (4) The Secretary may, using AFCARS and NCANDS, develop statewide data indicators for each of the specific outcomes described in paragraph (b)(1) of this section for use in determining substantial conformity. The Secretary may add, amend, or suspend any such statewide data indicator(s) when appropriate. To the extent practical and feasible, the statewide data indicators will be consistent with those developed in accordance with section 203 of the Adoption and Safe Families Act of 1997 (Pub. L. 105­ 89). (5) The initial national standards for the statewide data indicators described in paragraph (b)(4) of this section will be based on the 75th percentile of all State performance for that indicator, as reported in AFCARS or NCANDS. The Secretary may adjust these national standards if appropriate. The initial national standard will be set using the following data sources: (i) The 1997 and 1998 submissions to NCANDS (or the most recent and complete 2 years available), for those statewide data indicators associated with the safety outcomes; and, (ii) The 1998b, 1999c, and 2000a submissions to AFCARS (or the most recent and complete report periods available), for those statewide data indicators associated with the permanency outcomes. (c) Criteria related to State agency capacity to deliver services leading to improved outcomes for children and families. In addition to the criteria related to outcomes contained in paragraph (b) of this section, the State agency must also satisfy criteria related to the delivery of services. Based on information from the statewide assessment and onsite review, the State must meet the following criteria for each systemic factor in paragraphs (c)(2) through (c)(7) of this section to be considered in substantial conformity: All of the State plan requirements associated with the systemic factor must be in place, and no more than one of the state plan requirements fails to function as described in paragraphs (c)(2) through (c)(7) of this section. The systemic factor in paragraph (c)(1) of this

45 CFR Ch. XIII (10­1­07 Edition)
section, is rated on the basis of only one State plan requirement. To be considered in substantial conformity, the State plan requirement associated with statewide information system capacity must be both in place and functioning as described in the requirement. ACF will use a rating scale to make the determinations of substantial conformity. The systemic factors under review are: (1) Statewide information system: The State is operating a statewide information system that, at a minimum, can readily identify the status, demographic characteristics, location, and goals for the placement of every child who is (or within the immediately preceding 12 months, has been) in foster care (section 422(b)(10)(B)(i) of the Act); (2) Case review system: The State has procedures in place that: (i) Provide, for each child, a written case plan to be developed jointly with the child's parent(s) that includes provisions: for placing the child in the least restrictive, most family-like placement appropriate to his/her needs, and in close proximity to the parent' home where such placement is in the child's best interests; for visits with a child placed out of State at least every 12 months by a caseworker of the agency or of the agency in the State where the child is placed; and for documentation of the steps taken to make and finalize an adoptive or other permanent placement when the child cannot return home (sections 422(b)(10)(B)(ii), 471(a)(16) and 475(5)(A) of the Act); (ii) Provide for periodic review of the status of each child no less frequently than once every six months by either a court or by administrative review (sections 422(b)(10)(B)(ii), 471(a)(16) and 475(5)(B) of the Act); (iii) Assure that each child in foster care under the supervision of the State has a permanency hearing in a family or juvenile court or another court of competent jurisdiction (including a Tribal court), or by an administrative body appointed or approved by the court, which is not a part of or under the supervision or direction of the State agency, no later than 12 months from the date the child entered foster care (and not less frequently than every 12 months thereafter during the

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continuation of foster care) (sections 422(b)(10)(B)(ii), 471(a)(16) and 475(5)(C) of the Act); (iv) Provide a process for termination of parental rights proceedings in accordance with sections 422(b)(10(B)(ii), 475(5)(E) and (F) of the Act; and, (v) Provide foster parents, preadoptive parents, and relative caregivers of children in foster care with notice of and an opportunity to be heard in permanency hearings and sixmonth periodic reviews held with respect to the child (sections 422(b)(10)(B)(ii), 475(5)(G) of the Act, and 45 CFR 1356.21(o)). (3) Quality assurance system: The State has developed and implemented standards to ensure that children in foster care placements are provided quality services that protect the safety and health of the children (section 471(a)(22)) and is operating an identifiable quality assurance system (45 CFR 1357.15(u)) as described in the CFSP that: (i) Is in place in the jurisdictions within the State where services included in the CFSP are provided; (ii) Is able to evaluate the adequacy and quality of services provided under the CFSP; (iii) Is able to identify the strengths and needs of the service delivery system it evaluates; (iv) Provides reports to agency administrators on the quality of services evaluated and needs for improvement; and (v) Evaluates measures implemented to address identified problems. (4) Staff training: The State is operating a staff development and training program (45 CFR 1357.15(t)) that: (i) Supports the goals and objectives in the State's CFSP; (ii) Addresses services provided under both subparts of title IV-B and the training plan under title IV-E of the Act; (iii) Provides training for all staff who provide family preservation and support services, child protective services, foster care services, adoption services and independent living services soon after they are employed and that includes the basic skills and knowledge required for their positions;

§ 1355.34

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(iv) Provides ongoing training for staff that addresses the skills and knowledge base needed to carry out their duties with regard to the services included in the State's CFSP; and, (v) Provides training for current or prospective foster parents, adoptive parents, and the staff of State-licensed or State-approved child care institutions providing care to foster and adopted children receiving assistance under title IV-E that addresses the skills and knowledge base needed to carry out their duties with regard to caring for foster and adopted children. (5) Service array: Information from the Statewide assessment and on-site review determines that the State has in place an array of services (45 CFR 1357.15(n) and section 422(b)(10)(B)(iii) and (iv) of the Act) that includes, at a minimum: (i) Services that assess the strengths and needs of children and families assisted by the agency and are used to determine other service needs; (ii) Services that address the needs of the family, as well as the individual child, in order to create a safe home environment; (iii) Services designed to enable children at risk of foster care placement to remain with their families when their safety and well-being can be reasonably assured; (iv) Services designed to help children achieve permanency by returning to families from which they have been removed, where appropriate, be placed for adoption or with a legal guardian or in some other planned, permanent living arrangement, and through postlegal adoption services; (v) Services that are accessible to families and children in all political subdivisions covered in the State's CFSP; and, (vi) Services that can be individualized to meet the unique needs of children and families served by the agency. (6) Agency responsiveness to the community: (i) The State, in implementing the provisions of the CFSP, engages in ongoing consultation with a broad array of individuals and organizations representing the State and county agencies responsible for implementing the CFSP and other major stakeholders in

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§ 1355.35
the services delivery system including, at a minimum, tribal representatives, consumers, service providers, foster care providers, the juvenile court, and other public and private child and family serving agencies (45 CFR 1357.15(l)(4)); (ii) The agency develops, in consultation with these or similar representatives, annual reports of progress and services delivered pursuant to the CFSP (45 CFR 1357.16(a)); (iii) There is evidence that the agency's goals and objectives included in the CFSP reflect consideration of the major concerns of stakeholders consulted in developing the plan and on an ongoing basis (45 CFR 1357.15(m)); and (iv) There is evidence that the State's services under the plan are coordinated with services or benefits under other Federal or federally-assisted programs serving the same populations to achieve the goals and objectives in the plan (45 CFR 1357.15(m)). (7) Foster and adoptive parent licensing, recruitment and retention: (i) The State has established and maintains standards for foster family homes and child care institutions which are reasonably in accord with recommended standards of national organizations concerned with standards for such institutions or homes (section 471(a)(10) of the Act); (ii) The standards so established are applied by the State to every licensed or approved foster family home or child care institution receiving funds under title IV-E or IV-B of the Act (section 471(a)(10) of the Act); (iii) The State complies with the safety requirements for foster care and adoptive placements in accordance with sections 471(a)(16), 471(a)(20) and 475(1) of the Act and 45 CFR 1356.30; (iv) The State has in place an identifiable process for assuring the diligent recruitment of potential foster and adoptive families that reflect the ethnic and racial diversity of children in the State for whom foster and adoptive homes are needed (section 422(b)(9) of the Act); and, (v) The State has developed and implemented plans for the effective use of cross-jurisdictional resources to facilitate timely adoptive or permanent

45 CFR Ch. XIII (10­1­07 Edition)
placements for waiting children (section 422(b)(12) of the Act). (d) Availability of review instruments. ACF will make available to the States copies of the review instruments, which will contain the specific standards to be used to determine substantial conformity, on an ongoing basis, whenever significant revisions to the instruments are made.
[65 FR 4078, Jan. 25, 2000, as amended at 66 FR 58675, Nov. 23, 2001]

§ 1355.35

Program improvement plans.

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(a) Mandatory program improvement plan. (1) States found not to be operating in substantial conformity shall develop a program improvement plan. The program improvement plan must: (i) Be developed jointly by State and Federal staff in consultation with the review team; (ii) Identify the areas in which the State's program is not in substantial conformity; (iii)Set forth the goals, the action steps required to correct each identified weakness or deficiency, and dates by which each action step is to be completed in order to improve the specific areas; (iv) Set forth the amount of progress the statewide data will make toward meeting the national standards; (v) Establish benchmarks that will be used to measure the State's progress in implementing the program improvement plan and describe the methods that will be used to evaluate progress; (vi) Identify how the action steps in the plan build on and make progress over prior program improvement plans; (vii) Identify the technical assistance needs and sources of technical assistance, both Federal and non-Federal, which will be used to make the necessary improvements identified in the program improvement plan. (2) In the event that ACF and the State cannot reach consensus regarding the content of a program improvement plan or the degree of program or data improvement to be achieved, ACF retains the final authority to assign the contents of the plan and/or the degree of improvement required for successful completion of the plan. Under such circumstances, ACF will render a

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written rationale for assigning such content or degree of improvement. (b) Voluntary program improvement plan. States found to be operating in substantial conformity may voluntarily develop and implement a program improvement plan in collaboration with the ACF Regional Office, under the following circumstances: (1) The State and Regional Office agree that there are areas of the State's child and family services programs in need of improvement which can be addressed through the development and implementation of a voluntary program improvement plan; (2) ACF approval of the voluntary program improvement plan will not be required; and (3) No penalty will be assessed for the State's failure to achieve the goals described in the voluntary program improvement plan. (c) Approval of program improvement plans. (1) A State determined not to be in substantial conformity must submit a program improvement plan to ACF for approval within 90 calendar days from the date the State receives the written notification from ACF that it is not operating in substantial conformity. (2) Any program improvement plan will be approved by ACF if it meets the provisions of paragraph (a) of this section. (3) If the program improvement plan does not meet the provisions of paragraph (a) of this section, the State will have 30 calendar days from the date it receives notice from ACF that the plan has not been approved to revise and resubmit the plan for approval. (4) If the State does not submit a revised program improvement plan according to the provisions of paragraph (c)(3) of this section or if the plan does not meet the provisions of paragraph (a) of this section, withholding of funds pursuant to the provisions of § 1355.36 of this part will begin. (d) Duration of program improvement plans. (1) ACF retains the authority to establish time frames for the program improvement plan consistent with the seriousness and complexity of the remedies required for any areas determined

§ 1355.35

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not in substantial conformity, not to exceed two years. (2) Particularly egregious areas of nonconformity impacting child safety must receive priority in both the content and time frames of the program improvement plans and must be addressed in less than two years. (3) The Secretary may approve extensions of deadlines in a program improvement plan not to exceed one year. The circumstances under which requests for extensions will be approved are expected to be rare. The State must provide compelling documentation of the need for such an extension. Requests for extensions must be received by ACF at least 60 days prior to the affected completion date. (4) States must provide quarterly status reports (unless ACF and the State agree upon less frequent reports) to ACF. Such reports must inform ACF of progress in implementing the measures of the plan. (e) Evaluating program improvement plans. Program improvement plans will be evaluated jointly by the State agency and ACF, in collaboration with other members of the review team, as described in the State's program improvement plan and in accordance with the following criteria: (1) The methods and information used to measure progress must be sufficient to determine when and whether the State is operating in substantial conformity or has reached the negotiated standard with respect to statewide data indicators that failed to meet the national standard for that indicator; (2) The frequency of evaluating progress will be determined jointly by the State and Federal team members, but no less than annually. Evaluation of progress will be performed in conjunction with the annual updates of the State's CFSP, as described in paragraph (f) of this section; (3) Action steps may be jointly determined by the State and ACF to be achieved prior to projected completion dates, and will not require any further evaluation at a later date; and (4) The State and ACF may jointly renegotiate the terms and conditions of the program improvement plan as needed, provided that:

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(i) The renegotiated plan is designed to correct the areas of the State's program determined not to be in substantial conformity and/or achieve a standard for the statewide data indicators that is acceptable to ACF; (ii) The amount of time needed to implement the provisions of the plan does not extend beyond three years from the date the original program improvement plan was approved; (iii) The terms of the renegotiated plan are approved by ACF; and (iv) The Secretary approves any extensions beyond the two-year limit. (f) Integration of program improvement plans with CFSP planning. The elements of the program improvement plan must be incorporated into the goals and objectives of the State's CFSP. Progress in implementing the program improvement plan must be included in the annual reviews and progress reports related to the CFSP required in 45 CFR 1357.16.
[65 FR 4080, Jan. 25, 2000, as amended at 66 FR 58675, Nov. 23, 2001]

45 CFR Ch. XIII (10­1­07 Edition)
(3) A portion of the State's title IVB and IV-E funds will be withheld by ACF for the year under review and for each succeeding year until the State either successfully completes a program improvement plan or is found to be operating in substantial conformity. (4) The amount of title IV-B and title IV-E funds subject to withholding due to a determination that a State is not operating in substantial conformity is based on a pool of funds defined as follows: (i) The State's allotment of title IVB funds for each of the years to which the withholding applies; and (ii) An amount equivalent to 10 percent of the State's Federal claims for title IV-E foster care administrative costs for each of the years to which withholding applies; (5) The amount of funds to be withheld from the pool in paragraph (b)(4) of this section will be computed as follows: (i) Except as provided for in paragraphs (b)(7) and (b)(8) of this section, an amount equivalent to one percent of the funds described in paragraph (b)(4) of this section for each of the years to which withholding applies will be withheld for each of the seven outcomes listed in § 1355.34(b)(1) of this part that is determined not to be in substantial conformity; and (ii) Except as provided for in paragraphs (b)(7) and (b)(8) of this section, an amount equivalent to one percent of the funds described in paragraph (b)(4) of this section for each of the years to which withholding applies will be withheld for each of the seven systemic factors listed in § 1355.34(c) of this part that is determined not to be in substantial conformity. (6) Except as provided for in paragraphs (b)(7), (b)(8), and (e)(4) of this section, in the event the State is determined to be in nonconformity on each of the seven outcomes and each of the seven systemic factors subject to review, the maximum amount of title IVB and title IV-E funds to be withheld due to the State's failure to comply is 14 percent per year of the funds described in paragraph (b)(4) of this section for each year.

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§ 1355.36 Withholding Federal funds due to failure to achieve substantial conformity or failure to successfully complete a program improvement plan. (a) For the purposes of this section: (1) The term ``title IV-B funds'' refers to the State's combined allocation of title IV-B subpart 1 and subpart 2 funds; and (2) The term ``title IV-E funds'' refers to the State's reimbursement for administrative costs for the foster care program under title IV-E. (b) Determination of the amount of Federal funds to be withheld. ACF will determine the amount of the State title IV-B and IV-E funds to be withheld due to a finding that the State is not operating in substantial conformity, as follows: (1) A State will have the opportunity to develop and complete a program improvement plan prior to any withholding of funds. (2) Title IV-B and IV-E funds will not be withheld from a State if the determination of nonconformity was caused by the State's correct use of formal written statements of Federal law or policy provided the State by DHHS.

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(7) States determined not to be in substantial conformity that fail to correct the areas of nonconformity through the successful completion of a program improvement plan, and are determined to be in nonconformity on the second full review following the first full review in which a determination of nonconformity was made will be subject to increased withholding as follows: (i) The amount of funds described in paragraph (b)(5) of this section will increase to two percent for each of the seven outcomes and each of the seven systemic factors that continues in nonconformity since the immediately preceding child and family services review; (ii) The increased withholding of funds for areas of continuous nonconformity is subject to the provisions of paragraphs (c), (d), and (e) of this section; (iii) The maximum amount of title IV-B and title IV-E funds to be withheld due to the State's failure to comply on the second full review following the first full review in which the determination of nonconformity was made is 28 percent of the funds described in paragraph (b)(4) of this section for each year to which the withholding of funds applies. (8) States determined not to be in substantial conformity that fail to correct the areas of nonconformity through the successful completion of a program improvement plan, and are determined to be in nonconformity on the third and any subsequent full reviews following the first full review in which a determination of nonconformity was made will be subject to increased withholding as follows: (i) The amount of funds described in paragraph (b)(5) of this section will increase to three percent for each of the seven outcomes and each of the seven systemic factors that continues in nonconformity since the immediately preceding child and family services review; (ii) The increased withholding of funds for areas of continuous nonconformity is subject to the provisions of paragraphs (c), (d), and (e) of this section;

§ 1355.36

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(iii) The maximum amount of title IV-B and title IV-E funds to be withheld due to the State's failure to comply on the third and any subsequent full reviews following the first full review in which the determination of nonconformity was made is 42 percent of the funds described in paragraph (b)(4) of this section for each year to which the withholding of funds applies. (c) Suspension of withholding. (1) For States determined not to be operating in substantial conformity, ACF will suspend the withholding of the State title IV-B and title IV-E funds during the time that a program improvement plan is in effect, provided that: (i) The program improvement plan conforms to the provisions of § 1355.35 of this part; and (ii) The State is actively implementing the provisions of the program improvement plan. (2) Suspension of the withholding of funds is limited to three years following each review, or the amount of time approved for implementation of the program improvement plan, whichever is less. (d) Terminating the withholding of funds. For States determined not to be in substantial conformity, ACF will terminate the withholding of the State's title IV-B and title IV-E funds related to the nonconformity upon determination by the State and ACF that the State has achieved substantial conformity or has successfully completed a program improvement plan. ACF will rescind the withholding of the portion of title IV-B and title IV-E funds related to specific goals or action steps as of the date at the end of the quarter in which they were determined to have been achieved. (e) Withholding of funds. (1) States determined not to be in substantial conformity that fail to successfully complete a program improvement plan will be notified by ACF of this final determination of nonconformity in writing within 10 business days after the relevant completion date specified in the plan, and advised of the amount of title IV-B and title IV-E funds which are to be withheld. (2) Title IV-B and title IV-E funds will be withheld based on the following:

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§ 1355.37
(i) If the State fails to submit status reports in accordance with § 1355.35(d)(4), or if such reports indicate that the State is not making satisfactory progress toward achieving goals or actions steps, funds will be withheld at that time for a period beginning October 1 of the fiscal year for which the determination of nonconformity was made and ending on the specified completion date for the affected goal or action step. (ii) Funds related to goals and action steps that have not been achieved by the specified completion date will be withheld at that time for a period beginning October