[Federal Register Volume 70, Number 17 (Thursday, January 27, 2005)]
[Notices]
[Pages 3933-3934]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 05-1452]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Administration for Children and Families


Notice of Appeal

AGENCY: Administration on Children, Youth and Families, ACF, DHHS.
SUMMARY: By designation of the Administration for Children and 
Families, a member of the Departmental Appeals Board has been appointed 
as the presiding officer for an appeal of the Administration for 
Children and Families' (ACF) disapproval of an amendment to the plan of 
the New York State Office of Children and Family Services for 
implementing title IV-E of the Social Security Act (Foster Care and 
Adoption Assistance). The purpose of this notice is to give interested 
parties an opportunity to participate.
    Requests To Participate: Requests to participate as a party or as 
amicus curiae must be submitted to the Departmental Appeals Board in 
the form specified at 45 CFR 213.15 by February 11, 2005. Within that 
time, those persons, groups, or organizations seeking participation as 
parties or amici may file petitions or request extensions of time for 
submitting petitions to participate, and may also contact the Board to 
obtain copies of the briefs that the parties have filed.

FOR FURTHER INFORMATION CONTACT: Jeffrey Sacks, Staff Attorney, 
Departmental Appeals Board, Appellate Division, MS-6127, Room G-644, 
Cohen Building, 330 Independence Avenue, SW., Washington, DC 20201, 
telephone number (202) 565-0123, [email protected].

SUPPLEMENTARY INFORMATION: Notice of appeal is hereby given as set 
forth in the following letter, which has been sent to the New York 
State Office of Children and Family Services.

Alan A. Pfeffer, Assistant Deputy Counsel, New York State Office of 
Children and Family Services, Capital View Office Park, 52 Washington 
Street, Rensselaer, New York 12144-2796.

Counsel:

    This letter is in response to the request of the New York State 
Office of

[[Page 3934]]

Children and Family Services (State) for a hearing to contest the 
Administration for Children and Families' (ACF) disapproval of an 
amendment to the State's plan for implementing title IV-E of the Social 
Security Act (Foster Care and Adoption Assistance).
    The basis for the disapproval is that the plan amendment alters the 
eligibility criteria for title IV-E Foster Care in a manner that is 
inconsistent with the criteria at section 472 of the Social Security 
Act (Act) (42 U.S.C. 672).
    Section 472(a) requires that each state with an approved plan under 
title IV-E make foster care maintenance payments with respect to a 
child who has been removed from his or her home and placed in foster 
care pursuant to a voluntary placement agreement or court order, and 
who would have been eligible for benefits under the former Aid to 
Families with Dependent Children (AFDC) program at former title IV-A of 
the Act (as in effect on July 16, 1996) in the month in which the 
agreement was entered or court proceedings initiated, or within six 
months prior to such month, if the child had still been in the home 
from which the child was removed.
    The State's plan amendment (Transmittal No. 03-4) would alter the 
eligibility requirements with respect to whether the child must have 
been eligible for AFDC in the home from which he or she was removed, 
consistent with the holding of the U.S. Court of Appeals for the Ninth 
Circuit in Rosales v. Thompson, 321 F.3d 835 (9th Cir. 2003). That case 
involved a child who was removed from his parent's home and placed 
informally with a grandparent who later became the child's foster care 
parent upon entry of the court order legally removing the child from 
the parent's home. The child would not have been eligible for AFDC 
payments while in the parent's home, but was eligible in the 
grandparent's home. The court found that the child was eligible for 
title IV-E Foster Care, based on the child's eligibility for AFDC while 
residing informally in the grandparent's home.
    ACF has determined that the holding in Rosales v. Thompson 
misinterprets the Act and conflicts with Department regulations and 
policy, and has declined to apply it with respect to states outside the 
Ninth Circuit. ACF has determined that the child's eligibility for AFDC 
must be based on the home of the parent or other specified relative who 
was the child's legal guardian and from which the child is legally 
removed, and not on the home of a specified relative with whom the 
child resides informally after the child has been physically removed 
from home of the child's parent or specified relative who was the 
child's legal guardian, but prior to the judicial determination or 
voluntary placement agreement legally removing the child from the home 
of the child's parent or other specified relative who was the child's 
legal guardian.
    I have designated Donald F. Garrett, a member of the Departmental 
Appeals Board, as the presiding officer pursuant to 45 CFR 213.21. ACF 
and the State are now parties in this matter. 45 CFR 213.15(a). The 
parties have agreed that there are no disputed issues of fact, and that 
an in-person hearing is not necessary to resolve the State's request 
for reconsideration. Accordingly, the parties have agreed that the 
appeal be decided based on their written submissions.
    A copy of this letter will appear as a notice in the Federal 
Register and any individual or group wishing to request recognition as 
a party will be 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 petitioner, and the issues on which petitioner wishes to 
participate. 45 CFR 213.15(b)(2). Additionally, if petitioner believes 
that there are disputed issues of fact which require an in-person 
hearing, petitioner should concisely specify the disputed issues of 
fact in the petition, and also state whether petitioner intends to 
present witnesses. Petitioners may also, within 15 days after this 
notice has been published, request extensions of the time for 
requesting participation for the purpose of obtaining and reviewing 
copies of the parties' written submissions.
    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 Board, which shall 
conform to the requirements at 45 CFR 213.15(c)(1). This petition, or a 
request for an extension of time to review the briefs, must be filed 
within 15 days after this notice has been published, to permit the 
presiding officer an adequate opportunity to consider and rule upon it.
    Upon the conclusion of proceedings in this matter, the presiding 
officer will issue a proposed decision. I will then issue the final 
decision of the Department. 45 CFR 213.22, 213.32.
    Any further inquiries, submissions, or correspondence regarding 
this matter should be filed in an original and two copies with Mr. 
Garrett at the Departmental Appeals Board, Appellate Division, MS-6127, 
Room G-644, Cohen Building, 330 Independence Avenue, SW., Washington, 
DC 20201. For convenience please refer to Board Docket No. A-04-82. 
Electronic inquiries, submissions, or correspondence may be submitted 
by sending electronic mail (e-mail) to Jeffrey Sacks, Departmental 
Appeals Board Staff Attorney, at [email protected]. Submit comments 
as an ASCII file avoiding the use of special characters and any form of 
encryption. The Board also accepts comments and data on disks in Word, 
WordPerfect or ASCII file format. Identify all submissions by Board 
Docket No. A-04-82.
    The record in this matter, including the parties' written 
submissions, is available for public inspection. Interested persons or 
organizations may contact Jeffrey Sacks, Board Staff Attorney, at 202-
565-0123 (or at [email protected]) to arrange for inspection and 
copying of the record. Each submission must include a statement that a 
copy of the submission has been sent to the other parties, identifying 
when and to whom the copy was sent. For convenience please refer to 
Board Docket No. A-04-82.

    Dated: December 16, 2004.
Wade F. Horn,
Assistant Secretary for Children and Families.
[FR Doc. 05-1452 Filed 1-26-05; 8:45 am]
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