[Federal Register Volume 65, Number 96 (Wednesday, May 17, 2000)]
[Notices]
[Pages 31335-31337]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 00-12374]


-----------------------------------------------------------------------

DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families


Notice of Appeal

AGENCY: Administration for Children and Families (ACF), DHHS.

ACTION: Notice of appeal.

-----------------------------------------------------------------------

SUMMARY: By designation of the Administration for Children and 
Families, a member of the Departmental Appeals Board will be the 
presiding officer for appeals concerning ACF's imposition of Adoption 
and Foster Care Analysis and Reporting System penalties for the States 
of California, Florida, Iowa, Kansas, Maryland, Minnesota, New York 
North Carolina,

[[Page 31336]]

Ohio, South Dakota, Texas, Virginia, and Wisconsin.

REQUESTS TO PARTICIPATE: Requests to participate as a party or as 
amicus curiae must be submitted to the Board in the form specified at 
45 CFR 213.15 by June 1, 2000.

FOR FURTHER INFORMATION CONTACT: Sara Anderson, Staff Attorney, 
Departmental Appeals Board, Department of Health and Human Services, 
Room 637-D, Hubert H. Humphrey Building, 200 Independence Avenue, SW, 
Washington, DC 20201, Telephone Number (202) 690-6044.

SUPPLEMENTARY INFORMATION: Notice of appeal is hereby given as set 
forth in the following letter, which has been sent to the following 
addressees:

Phyllis D. Thompson, Attorney for the States of California, Florida, 
Kansas, Maryland, Minnesota, New York, Ohio, South Dakota, Texas, 
Virginia, and Wisconsin, Covington & Burling, 1201 Pennsylvania Avenue, 
NW, Washington, DC 20004-2401

and

Belinda A. Smith, Assistant Attorney General, State of North Carolina, 
P.O. Box 629, Raleigh, North Carolina 27602-0629

and

Vern Armstrong, Iowa Department of Human Services, Hoover State Office 
Building, 5th Floor, Des Moine, Iowa 50319

and

Madeline Nesse, Llewellyn Woolford, Office of the General Counsel, 
Department of Health and Human Services, Room 411-D, 200 Independence 
Avenue, SW, Washington, DC 20201

Counsel

    This letter constitutes notice of a proceeding pursuant to 45 CFR 
part 213 to review the imposition of penalties by the Administration 
for Children and Families (ACF) for noncompliance with the Adoption and 
Foster Care Analysis and Reporting System requirements.
    Section 479 of the Social Security Act (42 U.S.C. 6779) required 
the Department of Health and Human Services to provide for the 
implementation of an Adoption and Foster Care Analysis and Reporting 
System (AFCARS) for the collection of data relating to adoption and 
foster care in the United States. The regulation implementing section 
479, found at 45 CFR 1355.40, set forth standards for the collection 
and reporting of this data and penalties for failure to comply with 
those standards.
    Beginning 1999, the Administration for Children and Families (ACF) 
imposed a series of penalties for State's failure to meet the 
requirements of 45 CFR 1355.40 for the report periods October 1, 1997 
through March 31, 1998, April 1, 1998 through September 30, 1998; and 
October 1, 1998 through March 31, 1999.
    The States of California, Florida, Iowa, Kansas, Maryland, 
Minnesota, New York, North Carolina, Ohio, South Dakota, Texas, 
Virginia, and Wisconsin (the Appellants) appealed the imposition of 
such penalties. Initially, the Appellants appealed the penalties 
pursuant to section 1123A(c) of the Act and 45 CFR part 16. 
Subsequently, the Appellants and ACF agreed that the penalties would be 
reviewed pursuant to 45 CFR part 213.
    The issue to be addressed in this Part 213 hearing is whether 
Appellants are subject to penalties under the AFCARS regulations on the 
ground that their AFCARS submissions were noncompliant and thereby 
constituted substantial failures of title IV-E State plan compliance.
    This hearing will be upon briefs and other written submissions in 
lieu of live testimony unless the presiding officer determines, either 
sua sponte or in response to a request by any party, that the 
presentation of live testimony is necessary to assist the presiding 
officer in arriving at a recommended decision in any case. If a hearing 
for testimony is found to be necessary, it will be held on June 29 and 
30, 2000, in the Departmental Appeals Board Hearing Room, Room 644-G, 
Hubert Humphrey Building, 200 Independence Avenue, SW, Washington, DC, 
20201.
    Further, the parties have agreed as follows:
    ACF will refund penalty payments made by Appellants and Appellants 
may retain all AFCARS penalty amounts without interest, pending a 
determination by the Assistant Secretary for ACF.
    ACF will not require payment of additional penalties for 
noncomplaint AFCARS submissions, and no interest shall run on such 
unpaid penalties, until after a final determination in these Part 213 
proceedings by the Assistant Secretary.
    The merits of all AFCARS penalties appealed in these cases, as well 
as subsequent penalties issued against the Appellants prior to the 
Assistant Secretary's final determination will be incorporated into the 
Part 213 proceedings.
    Discovery proceedings in the prior Board cases will be made part of 
the Part 213 proceeding.
    The Assistant Secretary's decision will be the final decision of 
the Department.
    I have designated Judith A. Ballard, a Departmental Appeals Board 
Member, as the presiding officer pursuant to 45 CFR 213.21. ACF and the 
Appellants are now parties in this matter. 45 CFR 213.15(a).
    A copy of this letter will appear as a Notice in the Federal 
Register and any person wishing to request recognition as a party will 
entitled to file a petition pursuant to 45 CFR 213.15(b) with the 
Departmental Appeals Board within 15 days after that notice has been 
published. A copy of the petition should be served on each party of 
record at that time. The petition must explain how the issues to be 
considered have caused them injury and how their interest is within the 
zone of interests to be protected by the governing Federal statute. 45 
CFR 213.15(b)(1). In addition, the petition must concisely state 
petitioner's interest in the proceeding, who will represent the 
petitioner, and the issues on which petitioner wishes to participate. 
45 CFR 213.15(b)(2). Additionally, if the petitioner believes that 
there are disputed issues of fact which require an in-person 
evidentiary hearing, the petitioner should concisely specify the 
disputed issues of fact in the petition, and also state whether 
petitioner intends to present witnesses. Any party may, within 5 days 
of receipt of such petition, file comments thereon; the presiding 
officer will subsequently issue a ruling on whether and on what basis 
participation will be permitted.
    Any interested person or organization wishing to participate as 
amicus curiae may also file a petition with the presiding officer, 
which shall conform to the requirements at 45 CFR 213.15(c)(2). This 
petition should be filed within 15 days after this notice, in time to 
permit the presiding officer an adequate opportunity to consider and 
rule upon it.
    Any further inquiries, submissions, or correspondence regarding 
this matter should be filed in an original and two copies with Ms. 
Ballard at the Departmental Appeals Board, Room 637-D, Hubert H. 
Humphrey, Building, 200 Independence Avenue, SW, Washington, DC 20201, 
where the record in this matter will be kept. Each submission must 
include a statement that a copy of the material has been sent to the 
other party, identifying when and to whom the copy was sent. Please 
refer to Board Docket Nos. A-2000-59 (California, Florida, Kansas, 
Maryland, Minnesota, New York, Ohio, South Dakota, Texas, Virginia, and 
Wisconsin);

[[Page 31337]]

A-2000-60 (Iowa), A-2001-61 (North Carolina).

    Dated: May 10, 2000.
Olivia A. Golden,
Assistant Secretary for Children and Families.
[FR Doc. 00-12374 Filed 5-16-00; 8:45 am]
BILLING CODE 4184-01-M