UNITED STATES DEPARTMENT OF HEALTH AND HUMAN
SERVICES
ADMINISTRATION FOR CHILDREN AND FAMILIES
| In the Matter of AFCARS Penalties | ) | |
| Imposed on California, Florida, | ) | |
| Kansas, Maryland, Minnesota, | ) | DOCKET NOS. A-2000-59 |
| New York, North Carolina, Ohio, | ) | A-2000-61 |
| South Dakota, Texas, Virginia, | ) | |
| And Wisconsin | ) | |
| _________________________ | ) |
FINAL DECISION OF THE ASSISTANT SECRETARY
This is a consolidated proceeding currently involving 12 states that appealed penalties originally imposed by the Administration for Children and Families (ACF). The penalties were imposed following findings that the states had failed to comply with the requirements of the Adoption and Foster Care Analysis and Reporting System (AFCARS). There were numerous objections to the AFCARS requirements, their application, and the authority of ACF to impose penalties.
By agreement, these appeals were conducted under the procedures at 45 C.F.R. Part 213. A presiding officer was appointed to conduct the hearing and develop the record. This process resulted in recommended findings and a proposed decision. The parties did not dispute any material facts, but rather argued the meaning of the agreed on facts, and the law and policy as applied to these facts.
The presiding officer recommended withdrawal of the penalties. The primary basis for the recommendation was a statutory change to the AFCARS penalty provision, with a directive that regulations be promulgated that would include a corrective action process.
Having reviewed the Recommended Findings and Proposed Decision of the presiding officer, it is my decision to withdraw the penalties. However, this decision should not be viewed as indicating agreement with all of the recommended findings, whether factual or legal.
For example, one conclusion with which I disagree concerns the conclusions about the effect of the Paperwork Reduction Act (PRA). The relevant statutory provision at 44 U.S.C 3512 is clear in providing that failure to display a valid Office of Management and Budget (OMB) number indicating OMB's approval of the data collection requirement, or to provide a statement that lack of a valid number means that no response is required to the data collection requirement, bars imposing a penalty. While this aspect of the proposed decision is correct, it fails to address additional provisions concerning the PRA. The states' argument, and the proposed decision, adopt the position that the failure to post a valid OMB number or advise states that they did not have to comply with the data collection requirement precludes enforcing compliance with AFCARS requirements with no exception. This is not the case. 5 C.F.R 1320.6(c) provides:
Whenever an agency has imposed a collection of information as a means for proving or satisfying a condition for the receipt of a benefit, or the avoidance of a penalty, and the collection of information does not display a currently valid OMB control number or inform the potential persons who are to respond to the collection of information, as prescribed in sec. 1320.5(b), the agency shall not treat a person's failure to comply, in and of itself, as grounds for withholding the benefit or imposing the penalty. The agency shall instead permit respondents to prove or satisfy the legal conditions in any other reasonable manner. [Emphasis supplied.]
Thus, I conclude that the PRA violation does not preclude enforcement of the AFCARS requirements if states are provided the opportunity to satisfy their requirements in any other reasonable manner. This analysis would apply not only to the AFCARS requirements, but to any other situation where there has been or might be a failure to comply with 5 C.F.R 1320(a)(2) or 1320(5)(b)(2)(i). Having noted this, it is necessary to say that my decision to reverse the penalties is in no way predicated on lack of compliance with the PRA.
The other grounds that I rely on cannot be remedied by a remand or further corrective action by ACF at this time.
This constitutes my final decision in these cases.
DATED:
Washington, D.C.
 ________________________ Wade F. Horn, Ph.D. Assistant Secretary Administration for Children and Families |
