Tennessee Department of Children's Services, DAB No. 3150 (2024)

Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division

Tennessee Department of Children’s Services

Docket No. A-23-19
Decision No. 3150

DECISION

The Tennessee Department of Children’s Services (Tennessee or TN) appealed a December 2, 2022 determination by the Administration for Children and Families (ACF) to withhold federal funds in the amount of $770,550 under titles IV-B and IV-E of the Social Security Act (Act).  From April 1 to September 30, 2017, ACF, in collaboration with Tennessee, conducted a Child and Family Services Review (CFSR) of Tennessee’s child and family services programs.  The CFSR found that Tennessee was not operating these programs in substantial conformity with applicable federal requirements in six outcome areas and three systemic factors.  Tennessee and ACF jointly developed a Program Improvement Plan (PIP), and at the end of the PIP implementation and 18-month non-overlapping evaluation periods, Tennessee remained out of substantial conformity with respect to one regulatory outcome area – Permanency Outcome 1, Item 4, Stability of Foster Care Placement.  Based on the determination that Tennessee failed to successfully complete the PIP, ACF withheld funds under titles IV-B and IV-E for federal fiscal year (FFY) 2017 through FFY 2021 (October 1, 2016 – September 30, 2021).

We conclude that Tennessee failed to successfully attain the outcome required by the PIP, and we sustain in full ACF’s determination to withhold the funds at issue.

Legal Background

Title IV-B of the Act establishes a program for Child Welfare Services, which authorizes federal funds for states to support services intended, among other things, to prevent abuse and neglect of children and assure adequate foster care when children cannot be returned home or placed for adoption.  Act § 421 et seq.  Title IV-B funds may also be used toward programs that provide family support and reunification services, and adoption promotion and support services.  Id. To receive title IV-B funds, a state must develop a federally approved plan, known under implementing regulations as a “Child and Families Services Plan” (CFSP).  Act § 422(a); 45 C.F.R. §§ 1357.10(c), 1357.15(a), (b)(1).

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Title IV-E authorizes the appropriation of federal funds for states to provide foster care and transitional independent living programs, adoption assistance for children with special needs, kinship guardianship assistance, and related prevention services or programs.  Act § 470 et seq.  To receive title IV-E funds, a state must develop a federally approved title IV-E state plan.  Act § 471(a); see also 45 C.F.R. § 1356.20(a).

A. The Governing Statute

Section 1123A(a) of the Act 1 provides, in relevant part:

(a) IN GENERAL. — The Secretary [of the U.S. Department of Health and Human Services], in consultation with the State agencies administering the State programs under parts B and E of [title] IV, shall promulgate regulations for the review of such programs to determine whether such programs are in substantial conformity with— 

(1)  State plan requirements under such parts B and E, 
(2)  implementing regulations promulgated by the Secretary, and 
(3)  the relevant approved State plans.

Section 1123A requires the promulgation of regulations that “specify the timetable for conformity reviews of State programs,” and “specify the requirements subject to review . . . and the criteria to be used to measure conformity with such requirements and to determine whether there is a substantial failure to so conform[.]”  Act § 1123A(b)(1)-(2).

In addition, “with respect to any State program found to have failed substantially to so conform,” the regulations required by section 1123A must “require the Secretary” —

(A) to afford the State an opportunity to adopt and implement a corrective action plan, approved by the Secretary, designed to end the failure to so conform;

(B) to make technical assistance available to the State to the extent feasible to enable the State to develop and implement such a corrective action plan;

(C) to suspend the withholding of any Federal matching funds under this section while such a corrective action plan is in effect; and

(D) to rescind any such withholding if the failure to so conform is ended by successful completion of such a corrective action plan.

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Act § 1123A(b)(4).  Section 1123A(c)(2) of the Act provides for appeal to the Departmental Appeals Board (Board) of a final determination that a title IV-E agency’s program is not in substantial conformity.  See also 45 C.F.R. § 1355.39(a) (allowing a title IV-E agency, “pursuant to 45 CFR part 16,” to appeal a “final determination and any subsequent withholding of, or reduction in, funds . . . within 60 days after receipt of a notice of nonconformity” under 45 C.F.R. § 1355.36(e)(1)).

B. CFSR Regulations

In March 2000, under the authority of section 1123A, ACF established the CFSR process.  See 65 Fed. Reg. 4,020 (Jan. 25, 2000), codified in 45 C.F.R. Part 1355.  The regulations focus on the quality of results of the services provided to children and families.  Id.  The final rule reflected a combination of using statewide data indicators (SWDIs), 2 measured against national standards, in combination with on-site review findings to determine substantial conformity.  Id. at 4,024.  The national standard for each SWDI would be calculated based on all states’ performance for that data indicator, as reported in the Adoption and Foster Care Analysis and Reporting System (AFCARS) and the National Child Abuse and Neglect Data System (NCANDS).3  Id.  ACF recognized that setting a national standard for data and basing a determination of a state’s substantial conformity on meeting that national standard was new and, as yet, untested.  Id. at 4,025.  ACF initially “purposely limited” the number of SWDIs assigned to outcomes and did not regulate them because ACF expected SWDIs to change over time.  Id.

Titles IV-B and IV-E of the Act are the primary sources of Federal funds for State child welfare services, foster care, and adoption assistance.  Id. at 4,020.  The regulations define a “title IV-E agency” as “the State or Tribal agency administering or supervising the administration of the title IV-B and title IV-E plans.”  45 C.F.R. § 1355.20(a).4  A CFSR is to be conducted every five years by a team of Federal and State/Tribal reviewers and consists of a two-phase process that includes a “Statewide Assessment” and an “on-site review.”  Id. §§ 1355.32(b)(1)(i), 1355.33(a)(1), (b)-(c). 

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ACF will determine a title IV-E agency’s substantial conformity with IV-B and IV-E plan requirements based on:  

(1) Its ability to meet national standards, set by the Secretary, for the statewide/Tribal service area 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 title IV-E agency’s capacity to deliver services leading to improved outcomes.

45 C.F.R. § 1355.34(a). 

The regulations list seven “outcomes” in the broad areas of child safety, permanency for children, and child and family well-being; and seven “systemic factors” addressing “capacity” to deliver services leading to improved outcomes.  Id. § 1355.34(b)(1), (c). 

The Secretary may, using AFCARS and NCANDS, develop SWDIs for each of the specific outcomes described in paragraph (b)(1) of this section for use in determining substantial conformity.  Id. § 1355.34(b)(4).  The Secretary may add, amend, or suspend any SWDIs when appropriate.  Id.

The Secretary “may adjust these national standards if appropriate.”  Id. § 1355.34(b)(5).  The initial “national standards” for the SWDIs were “based on the 75th percentile of all State’s performance for that indicator,” as reported in AFCARS or NCANDS.  
65 Fed. Reg. 4,020, 4,024 (Jan. 25, 2000).

For the outcomes with SWDIs assigned, ACF will determine a title IV-E agency’s substantial conformity if its performance on each SWDI meets the national standard described in paragraph (b)(5), and each outcome is rated as “substantially achieved” in 95 percent of the cases examined during the on-site review.  45 C.F.R. § 1355.34(b)(3)(i)-(ii).  Information from various sources (case records and interviews) will be examined for each outcome and a determination made as to the degree to which each outcome has been achieved for each case reviewed.  Id. § 1355.34(b)(3)(ii).

After the completion of the on-site review phase, a determination is made regarding substantial conformity for each of the seven outcomes and seven systemic factors under review based on the requirements set forth at section 1355.34.   

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i. The Program Improvement Plan (PIP)

“A [child and family services] program found not to be operating in substantial conformity during an initial or subsequent review will . . . [b]e required to develop and implement a program improvement plan” (PIP).  45 C.F.R. § 1355.32(b)(2)(i).  The PIP will be “developed jointly by [the] title IV-E agency and Federal staff in consultation with the [CFSR] team,” and must, among other things:

  • Identify the areas in which the title IV-E agency’s program is not in substantial conformity;
  • 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;
  • Set forth the amount of progress the statewide/Tribal data will make toward meeting the national standards;
  • 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 [PIP].

Id. § 1355.35(a)(1)(ii)-(iv), (vii).  

The title IV-E agency must submit a PIP for approval within 90 days of being notified it is not in substantial conformity.  Id. § 1355.35(c)(1).  The regulations impose no deadline by which time ACF must approve a PIP.  The period for implementing the PIP is “not to exceed two years,” though the Secretary may approve extensions of up to one year.  Id. § 1355.35(d)(1), (3).  ACF guidance also provides title IV-E agencies with an additional, “non-overlapping evaluation period” of one year, to occur following the implementation period, at the end of which time the title IV-E agency “must meet the required measures of improvement” for ACF to determine successful PIP completion.  TN Ex. 1 (CFSR Procedures Manual (2015)), at 64.5

ii. The Withholding Process

ACF “will” withhold a portion of a title IV-E agency’s title IV-B and IV-E funds “for the year under review and for each succeeding year until the title IV-E agency either successfully completes a [PIP] or is found to be operating in substantial conformity.”  45 C.F.R. § 1355.36(b)(3); see also id. § 1355.36(e)(2)(ii) (“Funds related to goals and action steps that have not been achieved by the specified completion date will be withheld . . . .”).  ACF suspends the withholding of these funds, however, while the

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approved PIP is in effect, provided that the PIP complies with the requirements of section 1355.35 and “the title IV-E agency is actively implementing the [PIP’s] provisions.”  Id. § 1355.36(c)(1).  Furthermore, ACF will “terminate the withholding of the title IV-E agency’s title IV-B and title IV-E funds” arising from a finding of nonconformity, “upon determination . . . that the title IV-E agency has achieved substantial conformity or has successfully completed a [PIP],” and “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.”  Id. § 1355.36(d).  

The total pool of funds from which a withholding may be drawn consists of “[t]he title IV‑E agency’s allotment of title IV-B funds for each of the years to which the withholding applies,” plus “10 percent of the title IV-E agency’s Federal claims for title IV-E foster care administrative costs for each of the years to which withholding applies.”  Id. § 1355.36(b)(4)(i)-(ii).  ACF withholds one percent of this pool “for each of the years to which withholding applies,” with respect to each outcome and each systemic factor that is found not to be in substantial conformity.  Id. § 1355.36(b)(5)(i)-(ii). 

C. ACF’s Procedures Manual and other issuances

In 2014, in preparation for developing CFSR Round 3, ACF changed how SWDIs, and national standards would be used as compared to prior rounds, including the method to calculate such indicators and standards.  See 79 Fed. Reg. 61,241 (Oct. 10, 2014).  ACF also concurrently issued CFSR Technical Bulletin #8 providing additional technical information and discussion relevant to the SWDIs, national standards, and states’ performance on them.6

Two SWDIs were modified, and one SWDI was added.  79 Fed. Reg. at 61,241.  Additionally, the “national standard” normally set at the 75th percentile of all states’ performance (adjusted for sampling error), was set at the “national observed performance” and defined as the “weighted mean” of the state means; and the state observed performance data would be converted to a risk-standardized performance (RSP).7  See id. at 61,248; Technical Bulletin #8, at 3-5.  A state’s RSP and the national observed performance are based on the same national case mix, allowing for a comparison to determine if the state performed above or below the “average” state.  Technical Bulletin #8, at 5.

In May 2015, ACF published a correction to the Final Notice of SWDIs and National Standards for CFSR Round 3.  See 80 Fed. Reg. 27,263 (May 13, 2015).  Relevant to the

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case before us, those corrections involved changes or clarifications in the methods of calculating the national standards and state performance that affect the national standards originally provided.  Id. at 27,265.  Those corrections did not result in a change to the national standard for Permanency Outcome 1, Item 4.  Compare id. at 27,265 with 79 Fed. Reg. at 61,249.  CFSR Technical Bulletin #8A was concurrently released, providing additional information on the technical aspects of measuring performance on the SWDIs and performance measurement associated with the case review items and systemic factor items.  See ACF Ex. 4.  In November 2015, ACF issued the CFSR Procedures Manual (2015) that would be used in Round 3 of the CFSR.  See TN Ex. 1.

After CFSR Round 3 had started, but prior to Tennessee’s submission of its Statewide Assessment, ACF notified the states in October 2016 that SWDIs and national standards would only be used “for context purposes” and “suspended their use in conformity decisions.”  See TN Exs. 2 and 3 (Technical Bulletin #9 Transmittal Letter and Technical Bulletin #9 (October 11, 2016)).  The Transmittal Letter indicated ACF had discovered additional technical errors in the syntax and formulation of the SWDIs after the May 2015 notice, and explicitly stated that ACF “will not use the indicators in determinations of substantial conformity for the entire round 3 of the CFSR, and they will not be used as a basis for potentially imposing financial penalties.”  TN Ex. 2, at 1. 

Technical Bulletin #9 addressed the impact of these changes to states that had already completed their review and received a determination on substantial conformity, and those that had a scheduled review in FFY 2016 or later.  TN Ex. 3, at 1-2.  The Technical Bulletin specifically recognized there are numerous references in the CFSR procedures manual and other issuances regarding how a state’s performance on the SWDIs are factored into the determination of substantial conformity, and asked the states to “read these earlier issued guidance and training documents in concert with the instructions in this [Technical Bulletin] until such time as we can update them to be consistent with the decision to use [SWDIs] for context purposes.”  Id. at 3.  

Technical Bulletin #9 also provided guidance for “determining and approving PIP item measurement methods and degrees of improvement.”  Id. at 3-4.  Regarding Permanency Outcome 1 items, the guidance stated:

We will also require states to specify particular measures for Permanency Outcome 1 items when that outcome is not in substantial conformity.  Given that there are no permanency [SWDIs] that are required for inclusion and improvement in the PIP, item measures will be required.  We will negotiate with the state the specific Permanency 1 items that the state will measure based on the state’s CFSR findings and the state’s proposed strategies to address the outcome.

Id. at 4. 

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Technical Bulletin #9 further stated that the development of PIP baselines would be negotiated “from the state’s most reliable data source for onsite review instrument item measures other than [SWDIs]” and that states must identify the sources of their baseline data, including the review instruments the state will use, the sample frame of cases included in the baseline, and the number of applicable cases by item.  Id. at 5.

Finally, Technical Bulletin #9 provided the states three approved approaches to choose from in developing their PIP monitoring and measurement plans – a retrospective method where a state’s baseline data is available prior to approval of the PIP; a prospective method where the baseline is established using the state’s 12 months of practice findings beginning after PIP implementation; or a method using a state case management data or other aggregate data to measure a universe larger than a sample review approach.  Id.  Goals and improvement would be determined depending on the method selected.  Id. at 6-8.    

Case Background

Tennessee submitted its Statewide Assessment on February 1, 2017.  See TN Ex. 4.  On January 17, 2018, ACF issued its report regarding Tennessee’s Round 3 CFSR results.  See TN Exs. 5-7; TN Ex. 11, at 1.  The report included findings from Tennessee’s initial Statewide Assessment in 2017; a “state conducted review” of 75 cases in all 12 regions of Tennessee (conducted by Tennessee’s Department of Children’s Services from April 1 to September 30, 2017); and collaborative interviews of various state “stakeholders and partners.”  TN Ex. 5, at 1-28; TN Ex. 6, at 89.  The CFSR found that the case review process revealed Tennessee was not operating in substantial conformity with six of seven outcomes and three of seven systemic factors, as outlined in 45 C.F.R. § 1355.34.  TN Ex. 5, at 3, 5-23, App. A (at A-1 to A-8); TN Ex. 6, at 15-71. 

In April 2018, Tennessee initially submitted a PIP for ACF approval, and additional drafts were submitted over the next 11 months following additional discussions and negotiations with ACF.  See TN Ex. 9, at 1.10  The 2018 CFSR results were used to determine the baseline for the measurement plan.  Id. at 3; see also TN Ex. 10.11  ACF

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approved the plan, effective February 20, 2019, with an implementation date of April 1, 2019.  TN Ex. 11, at 1.  The approval letter, dated March 22, 2019, stated that in accordance with section 1355.36, “an estimated minimum penalty of $1,385,543 for Fiscal Year 2018 is applicable to this level of nonconformity”; however, ACF was suspending the withholding of funds associated with this penalty during the implementation period and non-overlapping evaluation period, and if ACF determined that Tennessee successfully completed its PIP and “rectified the areas of nonconformity,” ACF would “rescind the withholding of federal funds associated with those respective areas.”  Id.     

The two-year implementation period for Tennessee’s PIP was from April 1, 2019, to March 31, 2021, with an initial 12-month non-overlapping evaluation period, later extended to 18 months (April 1, 2021 to September 30, 2022) in accordance with ACF’s June 2020 notice to title IV-E agencies.  TN Ex. 38, at 1; ACF Ex. 7.  The parties later renegotiated and revised aspects of the PIP, at Tennessee’s request (both involving Permanency Outcome 1), effective April 10, 2020, and May 20, 2020.  See TN Exs. 15, 17; see also ACF Ex. 9, ¶ 8.  Consistent with regulations and guidance, Tennessee’s PIP listed its goals12 and specified 10 “strategies” and 45 “key activities” toward achieving the goals and attaining substantial conformity for the outcomes and systemic factors identified in the CFSR, along with nine “measurement items.”  TN Exs. 9-10; accord TN Ex. 1 (CFSR Procedures Manual (2015)), at 62-63 (citing 45 C.F.R. § 1355.35(a)).

During the PIP implementation period, Tennessee provided ACF with updates via conference calls and semi-annual written progress reports demonstrating its progress on completing required strategies and activities and attaining measurement goals.  See, e.g., TN Exs. 11-12, 16, 19, 22, 25; see also TN Exs. 13, 18, 23, 27 (correspondence from ACF regarding Tennessee’s PIP progress); ACF Ex. 9, ¶ 7.  Additionally, ACF revised target completion dates for activities where necessary; noted areas where Tennessee needed to improve in order to successfully complete its PIP; and offered and provided technical assistance to Tennessee, along with suggestions for attaining its PIP goals where needed.  See, e.g., TN Exs. 15, 17; ACF Ex. 9, ¶¶ 9, 11-12; ACF Exs. 11-12.  

Two months before the PIP period ended, Tennessee requested technical assistance from the Capacity Building Center for States (Center)13 and the Child Welfare Information

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Gateway to “determine best practices currently being used by other states” and technical consultation for the purpose of improving the engagement of birth parents to ensure their voice is heard in building and enhancing services.  TN Ex. 24, at 1.  This request was granted, and the Center provided technical assistance on eight of the nine measurement items, and later, together with ACF and Tennessee, developed a “Rapid Response” project to assist Tennessee in achieving substantial conformity on Permanency Outcome 1, Item 4.  ACF Ex. 9, ¶¶ 10-11; ACF Exs. 11-12; see also TN Ex. 38, at 2.   

In a letter dated June 24, 2021, ACF acknowledged the conclusion of the two-year PIP implementation period, and Tennessee’s partial progress toward completing the PIP measurement goals.  TN Ex. 27.  While ACF indicated Tennessee had successfully completed “all required PIP goals and necessary strategies” related to areas of non-conformity during the PIP implementation period, Tennessee did not meet “outstanding PIP measures and the associated CFSR outcomes” as described in the letter and agreed upon in the PIP measurement plan.  Id. at 1.

ACF also stated that it was “rescinding the withholding of funds for completion of PIP goals related to” two of the six outcomes and all three systemic factors that had been out of substantial conformity.  Id. at 2.  ACF explained, however, that Tennessee had still not met PIP measurement goals for Safety Outcome 2 (Items 2 and 3), Permanency Outcome 1 (Items 4-6), and Well-Being Outcome 1 (Items 12, 13, 15).  Id.  ACF advised that Tennessee would have until the end of the non-overlapping evaluation period (September 30, 2022) to meet the PIP measurement goals for the remaining three outcomes.  Id.  

As was the case during the PIP, rating summaries were provided during the non-overlapping period.  See TN Exs. 29, 31, 34-37.  In a letter to Tennessee dated January 14, 2022, midway through the non-overlapping evaluation period, ACF informed Tennessee that at that time, only one outcome measure remained below the measurement goal (Permanency Outcome 1, Item 4), and that Tennessee had “until the end of the non-overlapping evaluation period” to meet that remaining unmet PIP measurement goal.  TN Ex. 33, at 1-2.

ACF notified Tennessee, by letter dated December 2, 2022, that it failed to meet the PIP measurement goal for Permanency Outcome 1, Item 4 by the end of the non-overlapping evaluation period.  TN Ex. 38, at 2.  Because Tennessee did not meet this measurement goal, ACF withheld $770,550 in federal financial participation (FFP) for the outcome remaining out of substantial conformity.  Id. at 2, 6. 

Pursuant to section 1355.36(b)(5)(i), ACF explained that “this amount represents one percent of the pool of funds subject to withholding for each outcome and systemic factor for which a penalty is applicable,” and that “[t]his pool of funds includes the state allotment of title IV-B funds for each of the years to which the withholding applies and an amount equivalent to ten percent of the state’s federal claims for title IV-E foster care 

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administrative costs for each year funds are to be withheld,” as required by section 1355.36(b)(4).  Id. at 2-3.

ACF further indicated that the penalty was “based on final allotments through the end of Federal Fiscal Year [FFY] 2021 and reported claiming information submitted through the claiming quarter end[ing] September 30, 2021,” and that an “updated penalty amount will be calculated for [FFY] 2022 after the fourth quarter title IV-E financial report is submitted and finalized.”  Id. at 3.  However, by letter dated March 27, 2023, ACF notified Tennessee of its “decision to revise the approach to withholding for Round 3 of the CFSR” for all states that did not complete PIP requirements.  ACF Ex. 8, at 1.  Departing from rules for the ongoing calculation of penalties, as set forth in 45 C.F.R. § 1355.36(e)(2), ACF advised that it would not continue to withhold penalties “for additional periods until the state is found to be in substantial conformity in its Round 4 CFSR or successfully completes a Round 4 PIP.”  Id. (emphasis omitted).

Tennessee timely appealed the withholding to the Board.

Board Proceedings 

On appeal, Tennessee asserts:

  • The data sets and methods used to set the standard and target improvement goal for Permanency Outcome 1, Item 4, Placement Stability for Tennessee were inconsistent with applicable regulations and ACF’s own guidance;
  • ACF’s determination that Tennessee was not in substantial conformity was arbitrary and capricious; and
  • ACF erred in withholding funding when Tennessee had successfully completed all goals, strategies, and action steps of its program improvement plan.

Appellant’s Brief (App. Br.) at 1-2.

ACF’s response asserts:

  • The plain text of section 1123A and ACF’s regulations permitted ACF to suspend statewide data indicators and corresponding national standards (ACF Resp. Br. at 15);
  • ACF’s decision to suspend the statewide data indicators under section 1355.34(b)(4) did not prejudice Tennessee (Id. at 20); 
  • Tennessee has not demonstrated that its Permanency Outcome, Item 4 measurement goal was improper (Id. at 22); and
  • Tennessee failed to successfully complete its PIP because it did not meet its Permanency Outcome, Item 4 measurement goal (Id. at 27).

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Burden of Proof and Standard of Review

In appeals governed by the regulations in 45 C.F.R. Part 16, “the awarding federal agency must first articulate the basis for its decision to enable the non-federal party to understand and respond to the issues raised by the agency’s decision.”  Neb. Dep’t of Health and Hum. Servs., DAB No. 3071, at 7 (2022); see also Mass. Exec. Off. of Health & Hum. Servs., DAB No. 2218, at 11 (2008), aff’d, 701 F. Supp. 2d 182 (D. Mass. 2010); Mo. Dep’t of Soc. Servs., DAB No. 2994, at 6 (2020) (citing cases).  If the federal agency meets that burden, which we have described as minimal, the non-federal party bears the burden to demonstrate that the federal agency’s decision was wrong.  Nebraska at 7; see also Massachusetts at 11; Gulf Coast Cmty. Action Agency, Inc., DAB No. 2670, at 3 (2015) (The non-federal party “always bears the burden to demonstrate that it has operated its federally funded program” consistent with applicable authorities and the award’s terms and conditions.); Targazyme, Inc., DAB No. 2939, at 4 (2019) (“[I]n the kind of cases that come before the Board under 45 C.F.R. Part 16, the appellant always bears a general burden of proof.”).

Board review under Part 16 procedures is “generally limited to resolving disputes about material facts and deciding whether the appealed decision is consistent with applicable law and regulations.”  Tex. Health & Hum. Servs. Comm., DAB No. 3066, at 10 (2022). The Board must uphold a withholding determination if it is authorized by law and the non-federal party has not disproved the factual basis for the decision.  See 45 C.F.R. § 16.14 (stating that the Board is “bound by all applicable laws and regulations”).

Analysis

As discussed below, we conclude that none of Tennessee’s arguments provides a basis to reverse, in whole or in part, ACF’s determination to withhold $770,550 in title IV-B and title IV-E federal funds.

A. ACF met its burden to demonstrate the basis for its withholding determination in connection with Tennessee’s failure to achieve substantial conformity with Permanency Outcome 1, Item 4.

The record indicates that Tennessee’s 2017 CFSR revealed that Tennessee was not operating in substantial conformity with respect to Permanency Outcome 1, Item 4 (among others).  See TN Ex. 5, at 7; see also TN Ex. 4, at 15.  

Tennessee does not challenge the data associated with the final report.  Instead, Tennessee asserts that ACF’s final report indicates that “the findings for Tennessee were based upon the statewide assessment and case reviews.”  See App. Br. at 5 (italics in original) (citing TN Ex. 5).  However, the final report explicitly states the findings related 

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to the performance on the outcomes was based on “performance summaries from the case review findings.”  See TN Ex. 5, at 5; see also ACF Ex. 6, ¶ 6.  While it is true that the final report included findings from the Statewide Assessment, which contained an assessment of the state’s performance compared to the national standards, those assessments were not used in reaching the determination of non-conformity.  See TN Ex. 5, at 4 (“Round 3 . . . suspended the use of the state’s performance on the national standards . . . .  For contextual information, Appendix A . . . shows the state’s performance on [SWDIs] . . . [which] represents the performance . . . for an earlier point in time.”); see also id., App. A at A-2, A-8.   

Additionally, the record supports that after the conclusion of the two-year PIP and 18-month non-overlapping evaluation period, Tennessee failed to successfully achieve the measurement goal associated with Permanency Outcome 1, item 4.  See ACF Ex. 13.  As described above, Tennessee provided ACF with evidence showing Tennessee’s ongoing failure to attain the measurement goal for the single review item at issue and provided sufficient factual support for ACF’s determination that Tennessee failed, at any time in the PIP and non-overlapping evaluation periods, to achieve this measurement goal, thereby failing to successfully complete the PIP.

The record supports that ACF met its minimal burden and has provided sufficient evidence to demonstrate that Tennessee’s 2017 CFSR established it was not operating in substantial conformity, resulting in the implementation of a PIP.  It equally supports that Tennessee failed to achieve the requisite measurement goals for Permanency Outcome 1, Item 4, at any time during the PIP and 18-month non-overlapping evaluation periods, resulting in the withholding of federal funds.  

B. The data sets and methods used to set the initial conformity standard and subsequent target improvement goals for Tennessee were not inconsistent with applicable regulations and ACF’s guidance.

Tennessee does not dispute it did not meet the improvement goal established in the PIP but asserts that because the 2017 CFSR failed to comply with the regulations, the determination that it was not operating in substantial conformity was not in accordance with the law, and the withholding should be reversed.  App. Br. at 12.  As indicated above, CFSR Round 3 began in 2015.  ACF published the SWDIs and national standards in the Federal Register in May of 2015.  See 79 Fed. Reg. at 61,241-47; 80 Fed. Reg. 27,263 (May 13, 2015).  In 2016, after multiple entities alerted ACF to “errors in the syntax and formulation” of the SWDIs, ACF suspended the use of the SWDIs for conformity determinations for the entirety of Round 3.14  See ACF Ex. 6, ¶ 7; TN Ex. 2, at 1.  ACF communicated its decision to suspend the SWDIs in Technical Bulletin #9 and 

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an accompanying transmittal letter.  See TN Exs. 2-3.  ACF indicated it took this action based on the authority in the regulations at section 1355.34(b)(4).  ACF Resp. Br. at 15; see also TN Ex. 2, at 1.   

Tennessee acknowledges that 45 C.F.R. § 1355.34(b)(4) permits ACF to “add, amend, or suspend” any SWDIs “when appropriate,” and section 1355.34(b)(5) allows ACF to “adjust” the national standards when appropriate; however, Tennessee challenges ACF’s authority to suspend all the SWDIs and national standards in determining conformity in Round 3.  See App. Br. at 8-10.  Tennessee argues that ACF’s decision to suspend all SWDIs and determine substantial conformity relying totally on one information source, i.e., the onsite review, conflicts with both the wording and intent of the regulations, to Tennessee’s detriment.  Id. at 9, 14; see also Reply Br. at 4-5.

Tennessee further asserts that it relied to its detriment on ACF’s “inconsistent and confusing” “messaging” as to whether or not SWDIs and national standards were used in determining substantial compliance.  App. Br. at 9-10.  Specifically, Tennessee argues:

Section II of the statewide assessment contained the statewide data indicators and national standards, and for indicators and standards related to placement stability, found Tennessee had not met the national standard.  The statewide assessment contained no guidance from ACF related to the suspension of the use of these measures for conformity decisions.

*    *    *    *

The regulations do not permit the suspension of the national standards, merely the adjustment.  ACF was inconsistent in communications as to whether or not reliance on the statewide data indicators and national standards was used in determining substantial conformity. 

*    *    *    *

. . . Tennessee relied upon these formal written statements of law and policy provided by ACF to its detriment.  Pursuant to 45 C.F.R. § 1355.36(b)(2), funds should not be withheld from Tennessee.

Id. (internal citations omitted). 

In support of its argument, Tennessee relies on a prior Board decision which held that “ACF may not properly support a determination leading to a penalty based on a standard calculated in a manner that conflicts with the wording and intent of the regulations in some respects, and with what ACF said in its own issuance in other respects.”  Id. (citing California Dep’t of Social Servs., DAB No. 2285, at 6 (2009)).  Relying on California, 

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Tennessee argues that the regulations do not permit ACF to suspend the use of the national standards in conformity decisions and ACF’s actions did not comply with the regulations and were therefore arbitrary and capricious.  Id. at 12-13.

The factual premise of the decision in California is distinguishable from the CFSR process involved in this case.  California did not involve the suspension of any SWDI, but the application of a national standard calculated by ACF in a manner that conflicts with the wording and intent of the regulations.  In California, the regulation in effect (published in January 2000) identified specific reporting period data would be used to develop the national standards for the SWDIs for Permanency Outcome 1; and the national standard would be based on the 75th percentile of all state performance for that indicator as reported in AFCARS, which was 77 percent.  California at 4-5.  Later, in August of 2000, ACF issued its Procedures Manual, indicating that for one of the SWDIs, the national standard would be set using different AFCARS data submissions, but did not change the national standard.  Id. at 5-6.  The manual did not explain why the different AFCARS data was used instead of the submissions identified in the regulation.  Id. at 6.  Approximately four months later, ACF issued an information memorandum explaining the different reporting period data was used “to avoid using the same data to establish the standards and to determine substantial conformity on the first reviews.”  Id. at 6-7.  The memorandum also explained the methodologies ACF used for computing the national standards.  Id. at 7.  In August 2001, ACF again issued an information memorandum, rescinding earlier memoranda and providing “updated information on the national standards” and “guidance . . . in negotiating the amount of improvement necessary” in an approved PIP.  Id.  This information memorandum indicated the “update” to the national standards involved “the application of new rules that disregard skewed data points in calculating the national standards” and “[t]he inclusion of a sampling error associated with each national standard[.]”  Id.  This information memorandum further indicated the national standard was now 86.7 percent, which was determined by subtracting the “sampling error” from the identified 75th percentile of states’ performance.  Id.  

The Board’s analysis in California was based on the “multiple and important ways ACF deviated from the regulations and its revised information memorandum with respect to the only standard at issue” in the case.  California at 10.  The facts before us are significantly different.  In this case, ACF did not establish different standards based on different data sets, to calculate the SWDIs and associated national standards.  Here, ACF suspended the use of SWDIs for conformity purposes due to faulty syntax associated with the calculation of SWDIs.  ACF did not apply any SWDI in determining that Tennessee was not in substantial conformity.  Again, unlike the situation in California, the actions ACF took were precisely what it indicated it would do in Technical Bulletin #9, issued in October of 2016, before Tennessee was required to submit the statewide data submission that initiated its Round 3 CFSR.  

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Section 1123A of the Act and the regulations governing CFSRs give ACF wide latitude to establish the criteria on which conformity decisions are based.  Specifically, section 1123A(b)(2) of the Act gives ACF the authority to “specify” the criteria used to measure conformity during CFSRs.  The regulations indicate the aim of regulating only “the basic framework” of CFSRs and retaining flexibility to change the review process.  See 65 Fed. Reg. at 4,024.  Furthermore, this flexibility is illustrated in the language addressing ACF’s approach to regulating the SWDIs – ACF may “suspend any” statewide data indicator “when appropriate.”  45 C.F.R. § 1355.34(b)(4); 65 Fed. Reg. at 4,025.  We find ACF’s decision to suspend the use of SWDIs for conformity determinations in Round 3 was in accordance with the express language and intent of the statute and regulations. 

i. ACF’s authorized suspension of the SWDIs resulted in the national standards no longer being applicable in substantial conformity determinations.

Tennessee asserts that ACF exceeded its authority in suspending the use of national standards in conformity decisions (as section 1355.34(b)(5) only allows for them to be adjusted) and, therefore, the entire review failed to comply with the regulations.  App. Br. at 12.  Tennessee’s argument is unavailing.

As an initial matter, the applicable regulations do not require the Secretary to develop SWDIs for any specific outcomes for use in determining substantial conformity.  45 C.F.R. § 1355.34(b)(4) (providing that the Secretary “may” develop SWDIs using AFCARS and NCANDS data).  By suspending the SWDIs that were developed, something Tennessee expressly acknowledges was “clearly” within the authority of ACF (App. Br. at 9), the ability to calculate a corresponding national standard was impossible as national standards are calculated using all states’ performance on the applicable data indicators.  See 45 C.F.R. § 1355.34(b)(5); 65 Fed. Reg. at 4,024; see also ACF Ex. 1, at 14 n.12 (“National performance is how the nation as a whole performed on a given data indicator.”).  In other words, when a SWDI is suspended for a specific outcome, there is no corresponding national standard for that outcome.  ACF did not “adjust” the national standard in accordance with 45 C.F.R. § 1355.34(b)(5) because there was no national standard to adjust once the SWDIs were suspended.    

Tennessee’s further argument that it was prejudiced by not being evaluated against a national standard is without a basis under the regulations and unsupported by the record.  Pursuant to the regulations, only outcomes to which there are SWDIs assigned use a two-step analysis to determine substantial conformity – “assessing whether an outcome is substantially achieved based on information obtained during the on-site review, and determining as part of the Statewide Assessment whether performance on a SWDI meets the applicable national standard, if applicable.”  See 45 C.F.R. § 1355.34(b)(2)(i), (b)(3).  Correspondingly, if an outcome has no SWDI assigned, the conformity determination is based on the onsite review alone.  Id. § 1355.34(b)(3)(ii).  Therefore, when an SWDI is 

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suspended, it is no different than if there were no applicable SWDI, and a state’s substantial conformity determination is based on the onsite review.15 This was the process used to establish Tennessee’s nonconformity determination.

Moreover, if an SWDI had been applied to this outcome, Tennessee would have been required to meet both applicable measurements to establish substantial conformity – meet the national standard and obtain a “substantially achieved” rating in 95 percent of the cases reviewed during the onsite review.  See 45 C.R.R. § 1355.34(b)(3)(i)-(ii).  Based on the onsite review, Tennessee’s Round 3 case review score for Permanency Outcome 1, Item 4 was 60 percent.  See TN Ex. 5, at 7.  Tennessee has not shown that it would have met any “national standard” if the SWDI had not been suspended.  In any event, having failed to satisfy the requirements of the onsite review, Tennessee failed to show it was in substantial conformity.      

Furthermore, while not a basis for Tennessee’s nonconformity determination, the data depicting Tennessee’s performance on the placement stability SWDI, used only for context purposes, indicates Tennessee was statistically worse than the national performance for all reporting periods beginning with the Statewide Assessment and Final Report through the end of the PIP and non-overlapping evaluation periods.  See ACF Ex. 6, ¶ 11 (chart).  

The CFSR Round 3 was accomplished in accordance with the Act and regulations and, therefore, ACF’s determination that Tennessee was not in substantial conformity is neither arbitrary nor capricious.

ii. PIP measurement goals were properly calculated.

Tennessee further argues that the suspension of the SWDIs and national standards “unreasonably limit[ed] the information used to determine whether a state is in compliance with any particular outcome” and by doing so ACF “would be relying upon a statistically nonsignificant sample to decide a state’s performance, producing arbitrary and inequitable results.”  App. Br. at 12-13.  Tennessee asserts “the unreliability of the data sample is evidenced by the 2018 review,” which served as the baseline for the PIP.  Id. at 14.  Tennessee’s position is based on the premise that the 2018 data identified 83 percent of cases for Item 4 rated as “strengths,” which Tennessee characterizes as an “outlier” when compared to “other review years.”  Id.  Tennessee asserts that had ACF used the 2017 review or reviewed a larger sample size (in terms of the number of cases reviewed) in setting the PIP measurement goal, Tennessee “likely would have met 

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substantial conformity” and it should not pay the price for ACF’s errors.  Id. (italics added).

Tennessee’s assertion fails for a number of reasons.  First, Tennessee chose to use the 2018 review data as the baseline, which had a sample size of 76 cases (almost twice as many as the 40 used in the 2017 review included), in accordance with the procedures outlined in Technical Bulletin #9 (the retrospective method).  See TN Ex. 9, at 3; ACF Ex. 10, at 2, 4, 8.  The measurement plans were then jointly established by Tennessee and ACF, and the measurement goals were established, again in accordance with Technical Bulletin #9, using “the state’s most reliable data source for onsite review instrument item measures.”  See TN Ex. 3, at 5; ACF Ex. 6, ¶ 6, 19; ACF Ex. 10, at 2, 8.  ACF correctly stated that if Tennessee believed its 2018 case review data was “not indicative of its statewide performance” it could have requested that ACF consider alternative “‘state-provided aggregate data’” to create its measurement plan, but it did not do so.  ACF Resp. Br. at 24 (quoting TN Ex. 3, at 4).  

Additionally, ACF challenges Tennessee’s argument that 76 cases are a “statistically nonsignificant sample,” indicating that “[s]tatistical significance does not apply to sample sizes.  Sampling is used when it is not feasible to collect information from an entire population, and samples are used to examine representative, unbiased subsets of the population (i.e., cases) from which inferences about the population are made.”  The baseline cases “‘selected using a simple random sampling methodology,’” were “‘an unbiased representation of the foster care population,’” and “‘the proportion of total cases a sample represents is not indicative of representation.’”  Id. (quoting ACF Ex. 6, ¶¶ 16-17).  Tennessee offered no independent evidence or expert testimony in support of their apparent assertions that the use of the simple random sampling method itself was inappropriate in this case and that the sample size was too small or otherwise not representative of the case population from which the sample was drawn.  See Ga. Dep’t of Hum. Servs., DAB No. 2309, at 16-17 (2010); aff’d, Ga. Dep’t of Human Servs. v. HHS, Case No. 1:10-cv-01745 (N.D. Ga. Aug. 19, 2011).  Furthermore, Tennessee requested, and ACF approved, increasing the sample size to 84 cases throughout PIP measurement.  See App. Br. at 13; ACF Ex. 6, ¶ 17.  Accordingly, Tennessee cannot now reasonably claim that a sample of 84 cases was too small.  Additionally, Tennessee offers no reasoned argument, supported by evidence, that “an exceptionally small sample size” of cases that Tennessee says represents less than one percent of the state’s “total custodial population” (App. Br. at 13-14) is not large enough to yield a statistically valid or defensible result.   

We agree with ACF that Tennessee’s argument that it “likely would have met” substantial conformity if a different review period or a larger sample of cases had been used to establish the baseline is purely speculative.  ACF Resp. Br. at 24; see also Idaho Dep’t of Health & Welfare, DAB No. 3110, at 14 (2023) (contention that the goals and expectations set forth in the PIP were, in hindsight, unrealistic and unattainable provides 

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no legal basis for the Board to excuse Idaho’s undisputed failure to successfully complete the PIP.).  In any case, the question is not whether, in hindsight, Tennessee could have achieved substantial conformity had the PIP goals been defined or set differently to maximize Tennessee’s chances for achieving substantial conformity.  Rather, the question is whether Tennessee, in fact, achieved substantial conformity based on the agreed-upon PIP measurement goals, which we find were properly calculated.  As we explain, Tennessee did not do so.

iii. ACF appropriately calculated Tennessee’s performance during the PIP implementation period.

Tennessee further asserts that ACF failed to adequately consider Tennessee’s explicit concerns about data quality in determining placement stability and failed to make any modifications to the PIP measurement goal or consider the data errors in determining substantial compliance.16  App. Br. at 15.    

In November 2020, Tennessee believed the data captured in the TFACTS and SACWIS systems created an inflated number of placement moves of children (associated with Item 4, which concerns stability of foster care placement) and requested technical assistance from ACF in February of 2021 based on this concern.  See TN Ex. 22, at 6; TN Ex. 24.  Tennessee asserts that ACF failed to consider issues related to the reliability of the data on placement moves, despite the fact that the data “is . . . the source of information used in the onsite reviews which constituted the entire data used by ACF in making determinations of substantial conformity.”  App. Br. at 15.  There is no dispute that Tennessee requested, and received, technical assistance on this issue, focusing on both SWDIs and case review results.  See TN Ex. 22; ACF Ex. 9, ¶¶ 9-11; ACF Exs. 11-12.

ACF contends that Tennessee’s assertions that “data errors” impacted its performance on Item 4 and that ACF ignored Tennessee’s concerns are incorrect.  ACF Resp. Br. at 26.  Upon receipt of Tennessee’s concerns, the Children’s Bureau Measurement and Sampling Committee reviewed the alleged “data errors” and ultimately determined that the state’s reporting of temporary moves was not impacting its Item 4 placement stability measure.  See ACF Ex. 6, ¶ 15; ACF Ex. 9, ¶ 12 (unrebutted declaration of Antonette Rollins, Technical Advisor for Regional Programs in ACF).  Furthermore, Tennessee’s argument that the purportedly inaccurate data were the “entire data used by ACF” in making its substantial conformity determination is inaccurate, as case reviewers 

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considered information from both case files and case participant interviews and did not count temporary moves in reviewing Item 4 performance.  ACF Resp. Br. at 26 (citing ACF Ex. 6, ¶ 15; ACF Ex. 3, at 5).

The record supports ACF’s position that the onsite review instrument used by reviewers to rate performance on Item 4 (which obtains data from SACWIS) expressly instructed reviewers not to consider temporary moves – including hospitalizations, trial home visits, and runaway episodes – as new “placement settings” for purposes of the placement stability measure.  See ACF Ex. 3, at 27.  Furthermore, the unrebutted declaration of Tammy White, Social Science Research Analyst in ACF’s Children’s Bureau (CB) for 12 years, states “the temporary settings Tennessee identified . . . would not have been counted” and further states “SACWIS data are not the ‘entire data’ used in determining Item 4 ratings,” and the SACWIS data “would have been relevant if the SWDI for Placement Stability was used.”  ACF Ex. 6,  15. 

We find no error in the process ACF used to assess Tennessee’s PIP performance.

C. ACF did not wrongfully withhold $770,550 at the conclusion of the PIP and non-overlapping period because Tennessee had not met the goal for Permanency Outcome 1, item 4.

Finally, Tennessee asserts it was error for ACF to withhold $770,550 because 45 C.F.R. § 1355.36(e)(1) contemplates that only agencies “that fail to successfully complete a program improvement plan” are subject to funds being withheld and agencies will be notified by ACF of nonconformity in writing within 10 business days after the relevant completion date specified in the plan.  App. Br. at 16-17.  Tennessee asserts that it “successfully achieved all goals, all strategies, and completed all action steps on its PIP,” and was notified 42 business days after the non-overlapping period completion date, and as such, ACF’s decision to withhold funds was improper and should be reversed.  Id.  

As stated above, section 1355.36(b)(3) states that ACF will withhold a “portion” of the state’s IV-B and IV-E funding “for the year under review and for each succeeding year until the title IV-E agency either successfully completes a program improvement plan or is found to be operating in substantial conformity.”  Section 1355.35(a)(1)(iii) requires that states found not to be operating in substantial conformity develop a PIP which must, among other things, “[s]et 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[.]”  Section 1355.36(d) provides that ACF will rescind the withholding of the part of the pool “related to specific goals or action steps” as of the end of the quarter in which they were determined to have been achieved.  Similarly, section 1355.36(e)(2)(ii) provides that “[f]unds related to goals and action steps that have not been achieved by the specified completion date will be withheld . . . .”

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To achieve substantial conformity, Tennessee was required to both complete the strategies and action steps of the PIP and achieve the measurement goals.  See 45 C.F.R. § 1355.36(e)(2)(ii); Georgia, DAB No. 2309, at 11 (“The regulations clearly indicate that whether funds are to be withheld following a PIP depends on whether the state has completed the action steps, as well as met the percentage goals.”).  While it is true that Tennessee made significant progress during the PIP implementation and the non-overlapping periods and was able to either achieve the measurement goals or operate in substantial compliance in seven other items across three outcomes, Tennessee did not meet the measurement goal for Item 4.  See ACF Ex. 6, ¶ 6 (chart).  Accordingly, ACF was authorized to withhold funds associated with the non-compliance for Permanency Outcome 1, Item 4, Placement Stability. 

With regard to the timeliness of the notice, we note that the final data submission from Tennessee to ACF was sent on October 24, 2022 (15 business days after the plan completion date), and Tennessee acknowledged it “was not in conformity.”  See ACF Ex. 13; TN Ex. 37, at 2.  The record is clear that at several points throughout the PIP process, ACF advised Tennessee of the regulatory basis for withholding of federal funds, provided a current estimate of withholding according to existing levels of nonconformity, and provided calculations explaining how the current total amount was reached.  See, e.g., TN Ex.23, at 2; TN Ex. 27, at 2; TN Ex. 33, at 1.  Lastly, in its December 2, 2022 notice of withholding, ACF informed Tennessee that based on the determination of nonconformity with respect to the sole outcome that remained out of substantial conformity, the final withholding amount was $770,550, that this amount was the result of applying the formula found at 45 C.F.R. § 1355.36(b)(4) and (b)(5)(i), and that the amount was “based on final allotments through the end of [FFY] 2021 and reported claiming information submitted through the claiming quarter ended September 30, 2021.”  TN Ex. 38, at 2-3. Tennessee does not claim it was prejudiced by the “untimely” notice and does not identify any authority for the proposition that an allegedly untimely notice invalidates the withholding and should be reversed.  Tennessee was fully aware that it failed to achieve the improvement goal for one outcome item and upon receiving the notice from ACF, availed itself of the right to appeal the nonconformity determination.      

ACF’s decision to withhold $770,550 in federal funds as a result of Tennessee not meeting the progress goal for Permanency Outcome 1, Item 4 is well-supported by the record and in accordance with governing regulations.  ACF determined, pursuant to 45 C.F.R. § 1355.36, that Tennessee was subject to withholding of federal funds because of its failure to successfully complete all of the requirements of its approved PIP.  Tennessee raises no argument challenging the calculations behind that amount, only asserting that it “successfully completed” the PIP goals and strategies, and that the progress measurements were based on flawed data and should not be considered.  We find ACF’s withholding determination is authorized by law and Tennessee has not disproved the factual basis for the determination giving rise to the withholding.  We therefore affirm ACF’s withholding determination in its entirety.

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Conclusion

We conclude that Tennessee was not operating its child and family services programs in substantial conformity with federal requirements with respect to one regulatory outcome.  We therefore uphold ACF’s determination to withhold $770,550 in title IV-B and title IV-E funds.

Endnotes

1  Section 1123A of the Act is titled “Reviews of child and family services programs, and of foster care and adoption assistance programs, for conformity with State plan requirements.”

2  The SWDIs are “aggregate measures” calculated from data in the Adoption and Foster Care Analysis and Reporting System (AFCARS) and the National Child Abuse and Neglect Data System (NCANDS).  See 63 Fed. Reg. 50,058, 50,088 (Sept. 18, 1998) and 79 Fed. Reg. 61,241 (Oct. 10, 2014); see also ACF Resp. Br. at 5.

3  Under 45 C.F.R. § 1355.41, each title IV-E agency is required to implement a system, known as AFCARS, to collect and electronically report to ACF certain data regarding all children in foster care for whom the title IV-E agency has responsibility for placement, care, or supervision.  NCANDS is a voluntary data collection system that gathers information from all 50 states, the District of Columbia, and Puerto Rico about reports of child abuse and neglect.  Id. § 1355.20(a); see also ACF, Children’s Bureau, Description of “Reporting Systems,”  http://www.acf.hhs.gov/cb/research-data-technology/reporting-systems (last visited Aug. 28, 2024).

4  We quote the regulations currently in effect.  The regulations were amended in 2012 under the authority of new statutory provisions related to the Tribal title IV-E program.  See generally 77 Fed. Reg. 89,665 (Jan. 6, 2012).

5  By letter dated June 4, 2020, ACF offered all title IV-E agency administrators an extended, 18-month non-overlapping evaluation period following the two-year implementation period, “to ensure all states have the same amount of time to measure progress from implementing their PIP and other . . . implementation activities.”  ACF Ex. 7.

6  Neither party offered this Technical Bulletin but it can be found at https://www.acf.hhs.gov/sites/default/files/documents/cb/cfsr_tb8.pdf (last visited Aug. 28, 2024).

7  The process for calculating a state’s Risk Standardized Performance is explained in Technical Bulletin #8, at 3-5; see also TN Ex. 5, App. A at A-8 n*.

8  We cite to the page numbers centered on the bottom of the page, corresponding to the table of contents.

9  We cite to the .pdf page numbers as this exhibit contains no page numbers.

10  We cite to the page numbers that appear in the bottom right-hand corner of the exhibit, and do not include the cover page.

11  The record indicates that baselines and PIP measurement goals were established for three of the six outcomes, specifically nine items rated as areas needing improvement during Round 3 of the CFSR:  Safety Outcome 2, Permanency Outcome 1, and Well-Being Outcome 1.  The remaining three outcomes (Permanency Outcome 2 and Well-Being Outcomes 2 and 3) required strategies and interventions, but not measures in the PIP Measurement Plan.  See ACF Ex. 6, ¶ 4. 

12  The four approved PIP goals were:  (1) “Ensure children and families receive timely, quality initial and ongoing assessments”; (2) “Utilize an enhanced service array that meets the assessed needs of children and families to ensure that services are trauma informed and personalized to meet their unique needs”; (3) “Ensure children have quality supports to promote safety and stability in their living situations, continuity of family relationships, and preserved connections to their identified home community and culture”; and (4) “Enhance the Continuous Quality Improvement process to monitor progress on the Child and Family Service Review Program Improvement Plan and program outcomes.”  TN Ex. 9, at 4, 14, 25, 33.

13  The Center is an ACF contractor that supports state agencies by providing technical assistance that helps the state build capacity to strengthen, implement, and sustain effective child welfare practice in the state, so as to achieve better outcomes for children, youth, and families.  ACF Ex. 9, ¶ 10.

14  Syntax in this context “‘refers to the rules for how different NCANDS and AFCARS data elements are used to calculate performance on each indicator.’”  ACF Resp. Br. at 9 (quoting ACF Ex. 14, at 3).

15  Accordingly, the regulatory preamble language requiring ACF to “resolve any discrepancies” between the SWDIs and the onsite review findings “so that substantial conformity does not rely totally on one or the other information source” would be inapplicable.  See 65 Fed. Reg. at 4,025.  If a discrepancy were shown, it would be resolved in accordance with the process outlined under 45 C.F.R. § 1355.33(d).   

16  Tennessee refers to “TFACTS” and “SACWIS” data specifically.  The Statewide Automated Child Welfare Information System (SACWIS) was a federally funded, voluntary, comprehensive, and automated case management tool title IV-E agencies could have used for their child welfare information system, and which offered enhanced cost allocation along with federally defined requirements.  Further information can be found at https://www.acf.hhs.gov/cb/training-technical-assistance/state-tribal-info-systems/historical-info (last visited Aug. 28, 2024).  The Tennessee Family and Child Tracking System (TFACTS) is Tennessee’s SACWIS based system.  This information can be found at https://rmd-rda.tnsos.net/node/35186 (last visited Aug. 27, 2024). 

/s/

Michael Cunningham Board Member

/s/

Susan S. Yim Board Member

/s/

Karen E. Mayberry Presiding Board Member