Pennsylvania Department of Public Welfare, DAB No. 1508 (1995) Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Appellate Division SUBJECT: Pennsylvania Department DATE: March 1, 1995 of Public Welfare Docket No. A-93-195 Control No. A-03-91-00553 Decision No. 1508 DECISION The Pennsylvania Department of Public Welfare (Pennsylvania) appealed a determination by the Administration for Children and Families (ACF) disallowing $4,955,795 in federal funds claimed under title IV-E of the Social Security Act (Act). This determination revised an earlier disallowance of $2,140,899 which was withdrawn by ACF. The claim was for foster care maintenance payments made by Pennsylvania during fiscal year 1989 on behalf of children in foster care in Allegheny County. The original disallowance was based on an audit of a sample of payments conducted by the Department of Health and Human Services Office of Inspector General (OIG). OIG calculated a recommended disallowance by extrapolating from the payments it determined were ineligible for federal financial participation (FFP) to the universe of payments. Although ACF originally issued a disallowance based on the audit report, it later revised the disallowance upward based on its own review of the audit workpapers and underlying documentation. The $4,955,795 disallowance reflects ACF's findings that 89 sample payments were ineligible. ACF subsequently withdrew its findings of ineligibility with respect to six sample payments (sample nos. 12, 58, 61, 80, 85 and 92), but did not identify the resulting reduction in the disallowance amount. Pennsylvania disputed ACF's findings of ineligibility with respect to 76 of the remaining sample payments, conceding that seven payments (sample nos. 3, 5, 15, 44, 57, 55 and 78) were ineligible. 1/ The payments were found ineligible for FFP on a number of grounds. Principally, ACF found that Pennsylvania failed to establish that the children in question were removed from their homes pursuant to a judicial determination to the effect that continuation therein would be contrary to the child's welfare, as required by section 472(a)(1) of the Act. In addition, ACF found in some cases that Pennsylvania failed to establish that there was a judicial determination that reasonable efforts were made to prevent the child's removal from home or to return the child home, as also required by section 472(a)(1). Pennsylvania argued that in some cases there was an express contrary-to-the-welfare (CTW) or reasonable efforts (RE) determination made in the court order which removed the child from home. Pennsylvania argued that in other cases a CTW or RE determination could be inferred, consistent with ACF policies providing for alternative means of establishing that these determinations were made. Pennsylvania also argued that ACF erroneously required CTW determinations in "shelter orders" which physically removed the child from home for a limited time instead of in the later dispositional order. Pennsylvania further argued that ACF's finding that there was no RE determination should be reversed in those cases in which the OIG auditors found that reasonable efforts were made. In addition, Pennsylvania contested ACF's finding that one sample payment was ineligible because the foster family home was not approved. Finally, Pennsylvania argued that ACF impermissibly used statistical sampling as the basis for the disallowance, and that the sampling methodology was not in accordance with ACF policy. As discussed more fully below, we conclude that: o ACF correctly relied on statistical sampling as a basis for the disallowance, and used a valid sampling methodology; o ACF's findings that certain cases lacked judicial RE determinations are not erroneous merely because workpapers supporting the auditors' recommended findings stated that reasonable efforts were made; o Lack of a CTW determination in a shelter order does not render a payment ineligible if the child was removed as a result of a CTW determination in a later dispositional order; o Under ACF policy, a petition for the child's removal stating reasons which could support a CTW or RE determination, together with a court order granting that petition, is sufficient evidence that a CTW or RE determination was made if the child entered foster care before October 1, 1986; o The finding in orders issued in delinquency cases that the child was "in need of treatment, supervision, and rehabilitation" constituted a CTW determination; o Pennsylvania failed to establish that court orders removing a child from home in delinquency cases were issued in reliance on a state statutory provision which required the court to make a RE determination, or that court orders removing a child from home in dependency cases were issued in reliance on a state statutory provision which required the court to make a CTW or RE determination; o Nunc pro tunc orders are sufficient to establish that CTW or RE determinations were timely made where there is evidence that, when the original order was issued, the court considered information based on which it could have made these determinations; o Consistent with ACF's treatment of other foster care providers, a foster family home which was previously approved remained eligible even if the re-determination of the home's eligibility was late. Specifically, we find that the required judicial determinations were made in 58 of the 76 sample payments contested by Pennsylvania. Accordingly, we reverse the disallowance pertaining to these 58 payments (as well as the six payments which ACF conceded were eligible). We uphold the disallowance to the extent it is based on the 18 sample payments which we find were ineligible (as well as the seven payments which Pennsylvania conceded were ineligible). 2/ Below, we first describe the relevant statutory authority for the judicial determination requirements at issue in this appeal. We proceed to discuss Pennsylvania's arguments concerning the statistical sampling procedure. We then discuss in general Pennsylvania's grounds for asserting that the necessary judicial determinations were made by the court, and that the foster family home for one sample payment was approved. Finally, we discuss each of the sample payments disputed by Pennsylvania. Statutory background Under title IV-E of the Act, federal matching of state foster care maintenance payments is available for children in foster care who would otherwise be eligible for Aid to Families with Dependent Children (AFDC) under title IV-A of the Act. Prior to the enactment of title IV-E (in the Adoption Assistance and Child Welfare Act of 1980, Public Law No. 96-242), funding for foster care maintenance payments was available under title IV-A. States were given until October 1, 1982 to begin operating under approved title IV-E plans. Section 472(a) provides in pertinent part that foster care maintenance payments will be available for -- a child who would meet the [AFDC eligibility] requirements . . . but for his removal from the home of a relative . . . , if-- (1) the removal from the home . . . was the result of a judicial determination to the effect that continuation therein would be contrary to the child's welfare and (effective October 1, 1983) that reasonable efforts of the type described in section 471(a)(15) of this title have been made. . . . Section 471(a)(15) in turn requires that, effective October 1, 1983, a state plan under title IV-E must provide that -- in each case, reasonable efforts will be made (A) prior to the placement of a child in foster care, to prevent or eliminate the need for removal of the child from his home, and (B) to make it possible for the child to return to his home. The legislative history of Public Law No. 96-272 makes clear that Congress was concerned that children were being removed from their homes unnecessarily and placed in foster care. In discussing the requirement for a judicial determination, the relevant Senate committee report described such a determination as "an important safeguard against inappropriate [state] agency action." Sen. Rep. No. 336, 96th Cong., 1st Sess. 16 (1979). Other relevant statutory provisions are identified later in the decision. Whether ACF was permitted to extrapolate from a sample Pennsylvania took the position that the disallowance was improper to the extent that it was based on extrapolation from a sample. Pennsylvania acknowledged that the Board had in prior decisions upheld the use of statistical sampling as a basis for disallowances under title IV-E, but argued that these decisions were wrong. Specifically, Pennsylvania argued that ACF impermissibly changed the policy adopted for the title IV-A foster care program, which Pennsylvania alleged did not permit extrapolation from a sample. According to Pennsylvania, it is clear from the legislative history of Public Law No. 96-272 that Congress intended that the policies applicable to the title IV-A foster care program continue to apply after the foster care program was transferred to title IV-E. In Pennsylvania's view, the change from the IV-A policy of disallowing only individually identified payments was not only contrary to congressional intent, but also violated the notice and comment rulemaking requirements in the Administrative Procedure Act (APA), which Pennsylvania said required ACF to supply a reasoned analysis for any policy change. Pennsylvania suggested that the requirement for such an analysis had heightened meaning in light of the principle in Pennhurst State School and Hospital v. Halderman, 451 U.S. 1 (1981), that conditions on the receipt of federal funds must be clearly stated. Pennsylvania also noted that title IV-E is the only Social Security Act program which does not contain express statutory provisions for quality control or other statistical procedures, and argued that this showed that Congress intended that extrapolation not be used in determining unallowable payments. We conclude that ACF acted properly in basing the disallowance on extrapolation from a statistical sample. The Board has previously considered and rejected arguments by Pennsylvania that extrapolation was not proper. In Pennsylvania Dept. of Public Welfare, DAB No. 1278 (1991), the Board acknowledged that the IV-A policy at one time was to disallow only individually identified foster care payments. 3/ However, the Board pointed out that this policy applied to cases which were part of the AFDC quality control system (following unsuccessful efforts to establish, as part of that system, a tolerance level for errors identified using a statistical sample of AFDC payments). The Board concluded that the rationale for this policy did not apply to payments made pursuant to the foster care program under title IV-E, stating that "[a]lthough the title IV-E foster care program still relies on requirements of title IV-A to establish eligibility for foster care payments, the effect of Public Law 96-272 was to sever the foster care program from the AFDC program." DAB No. 1278, at 7. Moreover, we are not persuaded that the Senate report on the bill enacting title IV-E which Pennsylvania cited here is evidence of congressional intent to continue the IV-A policy of disallowing only individually identified payments. While the report states that "[t]he bill essentially moves the existing AFDC foster care program to a new part of the Social Security Act (Part E of Title IV)," it continues: "For the most part, the existing regulations governing the foster care program could be continued without change." S. Rep. No. 336, 96th Cong., 2d Sess. 1, 97 (1980) (emphasis added). Moreover, this language appears in the "regulatory impact" section of the report. Thus, both the language itself and its placement in the report indicate that the agency administering the IV-E program would decide which IV-A regulations should apply to IV-E. There is no basis in the report for concluding that title IV-A regulations, much less statements of policy which did not rise to the level of regulations, were required to remain the same under the new title IV-E program. Pennsylvania nevertheless contended that ACF had determined that the IV-A policy should continue to apply to the IV-E program. None of the ACF issuances cited by Pennsylvania support this contention, however. ACYF-PIQ- 82-3, dated January 29, 1982, states in pertinent part that "[i]n general, the policies and procedures relating to payment under title IV-A foster care apply to the administration of the title IV-E program." The policy of disallowing only individually identified payments is not similar in nature to the policies identified in that PIQ, all of which relate to the timing of claims and payments. Similarly, the policy in question here is not within the scope of ACYF-PIQ-82-15, dated September 13, 1982, which indicates that some IV-A regulations pertaining to the determination of a child's eligibility for AFDC will continue to apply. Finally, ACYF-PA-84-1, dated January 13, 1984, is also inapplicable because it simply permits the use of documentation "currently" used to meet the requirement for a CTW determination to meet the then "new requirement" for a RE determination. Furthermore, we see no basis for finding that there was an APA requirement for a reasoned analysis of a policy change which applied here. In New York State Dept. of Social Services, DAB No. 1358 (1992), the Board concluded that, in light of the context in which the IV-A policy to disallow only individually identified payments was developed, ACF's policy to disallow based on extrapolation from a statistical sample did not represent a policy change. Even if ACF's policy on extrapolation did represent a policy change, however, there was no violation of the APA. The APA requires that an agency provide an explanation of the basis and purpose of a rule required to be published pursuant to notice and comment rulemaking. 5 U.S.C.  553(c). However, notice and comment rulemaking is required only for legislative rules, not for interpretative rules, general statements of policy, or rules of agency procedure or practice. 5 U.S.C.  553(b)(3)(A). 4/ The Board has previously concluded that an agency's policy on use of statistical sampling in audits is a general statement of policy or a rule of agency procedure or practice, since it represents "a means for gathering evidence on a state's compliance with statutory requirements, rather than an inflexible standard that must be applied." Ohio Dept. of Human Services, DAB No. 1202 (1990) (upheld in State of Ohio, Dep't of Human Services v. Sullivan, 789 F. Supp. 1395 (S.D. Ohio 1992)) (addressing statistical sampling as a basis for determining whether state substantially complied with requirements of title IV-D); see also DAB No. 1358 ("the methodology used by the auditors here is simply a means of gathering evidence; it does not substantively change what the State is required to do in order to be entitled to FFP.") Moreover, the authorities cited by Pennsylvania do not support a finding that notice and comment rulemaking is required whenever an agency makes a policy change regardless of the type of issuance involved. The legal principle stated by the court in Macon County Samaritan Memorial Hospital v. Shalala, 7 F.3d 762, 765-766 (8th Cir. 1993), is that "[w]hen a new rule reflects a departure from the agency's prior policies, the agency `is obligated to supply a reasoned analysis for the change beyond that which may be required when the agency does not act in the first instance,'" (citing Motor Vehicle Mfrs. Ass'n v. State Farm Mut. Auto. Ins. Co., 463 U.S. 29 (1983)). However, the issue in Macon was whether this principle applied to regulations implementing a statutory amendment. Macon does not provide any authority for applying this principle to the agency policy in question here. In Chaves County Home Health Services v. Sullivan, 931 F.2d 914 (D.C. Cir. 1991), cert. denied, 112 S. Ct. 1160 (1992), the court concluded that an agency policy was an interpretative rule which confirmed the agency's longstanding practice and thus was not subject to notice and comment rulemaking requirements. There is nothing in that decision which stands for the proposition advanced here by Pennsylvania. 5/ Pennsylvania's reliance on the absence of any express statutory authority for statistical sampling is also misplaced. As the Board pointed out in DAB No. 1358, numerous courts have held that an agency need not have specific authority to use statistical sampling. See Chaves County Home Health Service, Inc. v. Sullivan; Michigan Dep't of Education v. U.S. Dep't of Education, 875 F.2d 1196 (6th Cir. 1989); Mile High Therapy Centers, Inc. v. Bowen, 735 F. Supp. 984 (D. Colo. 1988). In addition, Pennsylvania pointed to nothing in the language or history of title IV-E indicating any intent to preclude the use of statistical sampling as a basis for disallowances. Whether the statistical sampling methodology was valid Pennsylvania argued that the disallowance should be reversed because OIG failed to follow the sampling procedures set out in ACF's "Financial Review Guide for On-Site Reviews of the Title IV-E Foster Care Program" (ACYF-IM-85-25, dated August 14, 1985). These procedures call for a minimum sample size of 200 "payment units" (50 units in a "Stage I" review and an additional 150 units in a "Stage II" review). OIG used a sample of 100 payments instead. Pennsylvania noted that the OIG audit was specifically identified as a "Stage II" review in ACF documents. Pennsylvania argued in the alternative that if the OIG audit was "performed under the OIG's own authority" rather than pursuant to ACF's Financial Review Guide, OIG lacked authority to perform the audit. Pennsylvania reply brief dated 6/14/94 at 4. Pennsylvania cited in support of this argument the holding in Burlington Northern v. Office of Inspector General, 983 F.2d 631 (5th Cir. 1993), that an Inspector General generally lacks the authority to conduct audits which are designed to carry out the federal agency's responsibility for ensuring compliance with the provisions of a regulatory statute. Pennsylvania is correct that the disallowance was based on an ACF review. 6/ Nevertheless, the failure to use the minimum sample size specified in the Financial Review Guide is not a basis for reversing the disallowance. In response to New York's argument in DAB No. 1358 that its IV-E disallowance should be overturned on this basis, the Board stated: . . . the State did not allege that it was somehow prejudiced by use of the particular sample size chosen. This is not surprising since sample size affects the precision of sample results in estimating the most likely true value, and a smaller sample size generates a wider confidence interval. Since ACF disallowed only the amount established by the lower limit of the confidence interval, the State potentially benefitted from the use of a sample totaling 300 units, rather than a larger sample size. DAB No. 1358, at 48; see also Oklahoma Dept. of Human Services, DAB No. 1436, at 8 (1993) (calculation of disallowance using lower bound of confidence interval as the error rate gave Oklahoma "the benefit of any doubt raised by use of the smaller sample"). ACF indicated that, as in DAB No. 1358, only the amount established by the lower limit of the confidence interval was disallowed here. ACF brief dated 4/29/94, at 32, n. 8. Pennsylvania thus was not prejudiced, and indeed likely benefitted, from the use of a smaller sample. Accordingly, the use of a smaller sample than called for by ACF policy does not invalidate the disallowance. Whether a statement in OIG audit workpapers that reasonable efforts were made in a case is a basis for reversing ACF's finding that there was no RE determination In several cases which ACF found ineligible for lack of a RE determination, Pennsylvania provided audit workpapers for individual sample payments in which OIG auditors specifically noted that reasonable efforts were made to reunify the family. 7/ (ACF stated that its policy was to accept as a RE determination either a determination made prior to placement that reasonable efforts were made to prevent the child's removal or that the lack of efforts to prevent removal was reasonable, or a later determination that reasonable efforts were made to return the child home (i.e., to reunify the family). See ACF brief dated 4/29/94, at 15, and ACF response to discovery request dated 8/9/94, at 22.) Pennsylvania argued that the statement in the audit workpapers should be dispositive. We disagree. The issue here is whether Pennsylvania has shown that removal was a result of a judicial determination that reasonable efforts were made. Evidence that reasonable efforts were in fact made may provide some support for a finding that such a determination was made; however, such evidence is not determinative without some basis for finding that the court examined the question and itself determined that reasonable efforts were made. To accept the auditors' assessment that reasonable efforts were made would in effect substitute the auditors' judgment for that of the court. Moreover, the auditors made only recommended findings, which ACF was free to reject if it found, as it did here, that the recommended findings did not comport with the applicable requirements. Furthermore, we have reviewed each of the payments in question here to determine whether there is evidence which shows that a RE determination was made. In the absence of any such evidence, there is no basis for accepting the statements in the auditors' workpapers. Finally, in cases in which ACF reversed the auditors' recommended findings of ineligibility, Pennsylvania did not contend that ACF lacked authority to overrule the auditors. Thus, ACF's finding that there was no RE determination in a case is not erroneous merely because ACF chose not to rely on recommended findings made by the OIG auditors. Whether a CTW determination should have been included in a shelter order instead of the later dispositional order In most of the cases in which ACF found that there was no CTW determination in the court order, the order to which ACF referred removed the child from home for a limited time only. These orders were issued pursuant to Pennsylvania's Juvenile Act, which permitted a child to be placed in a shelter care or detention facility prior to the filing of a petition requesting that the child be adjudicated dependent or delinquent. 42 Pa.C.S.  6325. A petition was required to be filed within 24 hours of the child's admission to shelter care or detention. 42 Pa.S.C.  6331. Within 72 hours of the child's admission, the court was required to hold an informal hearing to determine if the child's continuation in shelter care or detention was required on one of the following grounds: 1) to protect the person or property of others or of the child; 2) because the child may abscond or be removed from the jurisdiction of the court; or 3) because the child has no parent, guardian, or custodian or other person able to provide supervision and care for him and return him to the court when required. 42 Pa.C.S.  6332. An order issued pursuant to this informal hearing was generally known as a "Shelter Order" in dependency cases and as a "Detention Order" in delinquency cases. Pennsylvania referred to both types of orders as "shelter orders." 8/ A hearing on the petition was required to be held within 10 days after the filing of the petition, although the child could be kept in shelter care or detention for another 10 days pending such a hearing if the court determined that certain criteria were met. 42 Pa.C.S.  6335. In the cases in question here, the order issued pursuant to a hearing on the petition was generally captioned "Child Welfare Service Order" or "Placement Order." We refer to such orders here as dispositional orders. ACF contended that the shelter orders should have contained a CTW determination because these orders removed the child from home. ACF found that most of Pennsylvania's shelter orders contained no CTW determination. Pennsylvania took the position that, under the Act, it was sufficient if there was a CTW determination in the dispositional order which was issued after a hearing on the petition. Pennsylvania alleged that either there were express CTW determinations in the dispositional orders for the cases in question, or it could properly be inferred from the dispositional orders that a CTW determination was made. As discussed below, we conclude that the CTW determination need not be found in the shelter order, but may instead appear in the later dispositional order. In support of its position that a shelter order must contain a CTW determination, ACF maintained that the plain language of the Act requires that the court make a CTW determination when it removes the child from home. Section 472(a)(1) of the Act authorizes foster care maintenance payments for certain children removed from the home of a relative if "the removal from the home . . . was the result of a determination to the effect that continuation therein would be contrary to the welfare of such child . . . ." Pennsylvania acknowledged that a shelter order physically removes the child from the home. Transcript of October 5, 1994 hearing (Tr.) at 151-155. It is not clear that this constitutes a "removal" within the meaning of the Act, however, since a shelter order is generally issued before the court is able to determine whether the child's placement in foster care is warranted. In any event, contrary to what ACF argued, section 472(a)(1) does not require that a CTW determination be made at the time the child is removed from home. Instead, this section requires that the removal be the "result of" a judicial CTW determination. ACF's longstanding interpretation of this language is that a removal will be considered a judicial removal if the court proceedings leading to the CTW determination were initiated within six months of the date the child was last living in the home from which the child was removed. See New York Dept. of Social Services, DAB No. 1485, at 6-7 (1994) and policy issuances discussed therein. In most of the cases in question here, not only were judicial proceedings initiated within six months of the child's removal but the dispositional order allegedly containing a CTW determination was issued within six months of the child's removal. 9/ If the child had been removed from home without an order, there would be no question that any CTW determination in the dispositional order was timely. Pennsylvania should not be penalized simply because it issued a temporary order authorizing the child's removal prior to a hearing on the petition and the issuance of a dispositional order. This situation is somewhat analogous to that considered in Pennsylvania Dept. of Public Welfare, DAB No. 1392 (1993), in which Philadelphia County entered into a voluntary placement agreement valid for only 30 days, after which a court order was issued. The question presented was whether the child was removed pursuant to the voluntary placement agreement or the court order, since Pennsylvania's state plan did not provide for FFP for children removed from home voluntarily. The Board found that the voluntary placement agreement was merely an "interim measure" and that the child was removed pursuant to the court order. In making this finding, the Board relied in part on the fact that the voluntary placement agreement was valid for only a limited time and that the court order was issued within six months of the child's physical removal. Since the court order contained the findings required by section 472(a)(1) of the Act, the Board concluded that the case was eligible for FFP. 10/ Like the voluntary placement agreements in DAB No. 1392, the shelter orders in question here were an extra procedural safeguard not contemplated by section 472(a). That section contemplates that, if the court makes a CTW determination, the court will give the state agency responsibility for the child's care and placement. Here, however, this action would have been premature. Pennsylvania asserted, and ACF did not dispute, that its procedure is to conduct an investigation of the child's home situation after the shelter order is issued. A shelter order thus provides some judicial oversight of a child who has been removed from home on a temporary basis until such time as there is sufficient information for the court to make a determination about the child's welfare. Accordingly, it makes little sense to require that a shelter order contain a CTW determination. (This does not mean, of course, that a CTW determination could not have been included in a shelter order where the court had sufficient information to make such a determination.) ACF nevertheless contended that it was clear from the ACF policy in effect during the period at issue here that a CTW determination was required in shelter orders. ACYF- PIQ-82-3 11/ stated in pertinent part that -- a temporary shelter care order that meets the requirements of a "judicial determination" would permit the authorization of FFP as of the date of the shelter care order, provided all other eligibility requirements are met. As to the requirements of a "judicial determination," the essential element is that the court order (temporary or dispositional) for removal of the child from the home is based on a determination that continuation therein would be contrary to the welfare of the child. In our view, however, this could reasonably be read to mean that temporary shelter care orders need not contain a CTW determination. ACF appeared to acknowledge the possibility of this reading, asserting that the Allegheny County shelter orders were not "temporary shelter care orders" within the meaning of the PIQ because they were not time-limited. ACF also suggested that the PIQ applied only to orders issued in emergency situations, and asserted that the shelter orders were issued as part of Pennsylvania's routine procedures instead. See ACF brief dated 4/29/94, at 10-12. We see no basis for ACF's characterization of the Allegheny County shelter orders. Although the orders in the cases in question were not always limited in duration to 10 days, as required by Pennsylvania law, they either provided for a hearing within 30 days or less or did not set a hearing date, in which case we assume that the order was intended to be limited to 10 days in accordance with the statute. 12/ Moreover, Pennsylvania's statutory scheme does not provide for the issuance of shelter orders as a routine matter, but authorizes shelter care or detention only in limited circumstances, some of which could be characterized as emergencies. Accordingly, the PIQ does not clearly require that the shelter orders in question here include CTW determinations. We therefore conclude that ACF erroneously found cases ineligible on the ground that the shelter order lacked a CTW determination. 13/ Whether Pennsylvania established that CTW or RE determinations were made when the court granted a petition for the removal of a child who entered foster care before October 1, 1986 In numerous cases in which it was undisputed that there was no CTW or RE determination on the face of the order, Pennsylvania argued that the petition granted by the order was sufficient evidence to show that these determinations were made. Pennsylvania relied on an August 11, 1986 memorandum from Dodie Livingston, Commissioner, Administration for Children, Youth and Families, to Regional Administrators and Regional Program Directors ("Livingston memorandum") regarding the requirement for a CTW determination. The Livingston memorandum noted that, prior to the transfer of the foster care program from title IV-A to title IV-E, the Agency's policy, set out in SRS-PIQ-75-21, dated April 2, 1975, was that the requirement for a CTW determination was satisfied where there was "a petition to the court stating the reason for the agency's request for custody, followed by a court order granting the agency's petition for custody . . . ." The Livingston memorandum further stated that, because some state agencies believed, until the issuance of ACYF-PIQ-86-02 on May 8, 1986, that this practice continued to be acceptable in the title IV-E program, "disallowances will not be taken where the State agency was following the precedent established in 1975, in cases in which the child entered care prior to October 1, 1986." (Emphasis in original.) 14/ During the proceedings in this appeal, ACF stated that the requirement for a RE determination could also be met under the circumstances specified in the Livingston memorandum, even though both that memorandum and ACYF- PIQ-86-02 referred solely to CTW determinations. ACF submission dated 8/9/94, at 12-13. ACF did not dispute that it was bound to apply the Livingston memorandum in the cases in question here. However, ACF took the position that, even under this memorandum, the documentation in the disputed cases was insufficient to establish that a CTW determination was made. (ACF did not dispute that a RE determination could be inferred based on the Livingston memorandum in one case in which the child entered care before October 1, 1986.) ACF argued that the petition must give as the reason for requesting the child's removal from home abuse or neglect, or circumstances which indicated that the child had been abused or neglected. Some of the petitions on which Pennsylvania relied did not clearly allege neglect or abuse or the equivalent. Pennsylvania took the position that it was unreasonable to find the cases ineligible on this basis, however. We agree with Pennsylvania that application of the Livingston memorandum is not limited to situations where the petition alleges neglect or abuse or the equivalent. Instead, this memorandum contains no limitation on the grounds for removal alleged in the petition. SRS PIQ-75- 21, from which the standards in the Livingston memorandum were derived, indicates that a court order which grants a petition alleging abuse or neglect would satisfy the requirement for a CTW determination. However, the PIQ merely gives this as an example of a situation where there would be a CTW determination. Moreover, the PIQ also cites the language of 45 C.F.R.  233.110 referring to removal from home "as a result of a judicial determination that continuance in the home of the relative would be contrary to [the child's] welfare, for any reason . . . ." (Emphasis added.) Thus, the PIQ appears to contemplate that the requirement for a CTW determination could be satisfied by an order granting a petition which alleges any reason which would support a CTW determination. Moreover, ACF agreed that a number of petitions submitted by Pennsylvania in this case alleged a sufficient basis for making a CTW determination, even though ACF originally stated that these petitions were deficient because they did not allege abuse or neglect or the equivalent. See Tr. at 115. We consider whether the petitions in question here provided an adequate basis for a CTW determination in our discussion of the individual sample payments. In addition, ACF initially argued that the court order had to refer to the petition by date. Most of the orders stated merely that the case had been heard in open court "upon petition" and did not identify the date of the petition. (The orders for sample nos. 13 and 88 do not contain any reference to a petition and those cases are thus clearly ineligible for application of the Livingston memorandum.) According to ACF, a date was necessary to ensure that the petition on which a state relied was the one granted by the court. ACF later admitted that this was merely a "convention" and stated that it would accept other documentation which established that the petition on which Pennsylvania relied was the petition granted by the court order in question. ACF Hearing Ex. 2, Declaration of Daniel Lewis, at Paragraph 7. In all but one of the cases in question here, Pennsylvania supplied docket sheets which list the actions in the case in sequence by date and refer only to the petition on which Pennsylvania relied. In the remaining case (sample no. 33), Pennsylvania supplied the transcript of the court hearing resulting in the order. The transcript referred to the petition on which Pennsylvania relied. Accordingly, we conclude that the lack of a specific reference to the petition by date in the orders in question here was not a basis for finding these cases ineligible. 15/ Whether the ACF policy permitting a state to establish that a CTW or RE determination was made when the court granted a petition for the child's removal should apply to children who entered foster care October 1, 1986 or later As indicated above, the Livingston memorandum stated that, for cases involving children who entered foster care prior to October 1, 1986, ACF would accept (as evidence that a CTW determination was made) a court order which granted a petition stating reasons for the state agency's request for custody. However, the Livingston memorandum stated that this standard, which was derived from SRS PIQ-75-21, would not apply to children who entered foster care at a later date since ACYF-PIQ-86-02, issued May 8, 1986, clearly stated that a court order which merely refers to a petition, rather than expressly adopting the specific relevant language of the petition, is not evidence of a CTW determination. Pennsylvania took the position that the policy in SRS PIQ-75-21 should continue to apply notwithstanding the issuance of ACYF-PIQ-86-02. 16/ In Pennsylvania's view, ACF impermissibly changed the policy in SRS PIQ-75-21 by issuing ACYF-PIQ-86-02 without articulating reasons for the change, thus violating the APA. Pennsylvania argued that the continued application of SRS PIQ-75-21 in the absence of any authorized change was consistent with what it characterized as congressional intent that the policies of the title IV-A foster care program continue to apply to the foster care program under title IV-E. We find no merit in Pennsylvania's argument that Congress intended that a policy such as the one in question here continue to apply to the IV-E program. As discussed previously with respect to the IV-A policy of disallowing only individually identified payments, the legislative history suggested only that some regulations could remain applicable, not that each and every regulation had to remain applicable and certainly not that policies which did not rise to the level of regulations would necessarily continue to apply. Moreover, ACF made clear in ACYF-PIQ-86-02 that SRS PIQ-75-21 was no longer applicable. Furthermore, we are not persuaded that an explanation of the change made by ACYF-PIQ-86-02 was required. As also discussed previously, Pennsylvania cited no authority for requiring notice and comment rulemaking for other than legislative rules. As discussed below, we conclude that the provisions of ACYF-PIQ-86-02 concerning whether a petition together with a court order granting a petition may be evidence of a CTW determination do not constitute a legislative rule or even an interpretative rule, but are at most a general statement of policy or a rule of agency practice or procedure. Pennsylvania gave several reasons for characterizing ACYF-PIQ-86-02 as a legislative rule. The first reason was that this PIQ made a substantive change in the meaning of the term "judicial determination" as it appeared in the statute and regulations by limiting the type of orders which could qualify as judicial determinations. We disagree. Legislative rules create law or obligations, while interpretative rules are statements of what an administrative agency thinks a statute or regulation means. See New York State Dept. of Social Services, DAB No. 1473 (1994) and cases cited therein. ACYF-PIQ-86-02 merely discusses what could be considered acceptable evidence that the requisite judicial determinations were made. It does not purport to create any new law or obligation. Pennsylvania also argued that the PIQ was a legislative rule because it made law by changing the federal common law presumption of regularity in state court proceedings. In addition, Pennsylvania argued that the PIQ was a legislative rule because it was clearly intended to have binding effect and reflected an exercise of judgment as to how best to implement a general statutory mandate. However, the PIQ does not affect any presumption of regularity in state court proceedings which may exist in federal common law. In requiring evidence that a CTW determination required by state law was made, the PIQ does not call into question the court's adherence to state law, but merely seeks to assure that there is adequate documentation that the court in fact made a CTW determination. Cf. DAB No. 1392, at 16, and Ruling on Reconsideration of DAB No. 1392, at 6. Furthermore, the PIQ does not purport to be a binding implementation of a statutory mandate. Instead, it simply describes the evidence which would reasonably show that the statutory mandate for a CTW determination was met. Accordingly, we reject Pennsylvania's argument that ACYF- PIQ-86-02 was invalid and that the title IV-A foster care policy accepting a petition and a court order granting the petition as evidence of a CTW determination therefore continued to apply in the case of children who entered care October 1, 1986 or later. Whether the language of orders removing children from home in delinquency cases constituted a CTW determination ACF found that court orders in a number of sample cases in which the child was adjudicated delinquent did not contain CTW determinations. 17/ Pennsylvania disagreed, citing language in the court orders, identified as "commitment orders," that the child "is in need of treatment, supervision, and rehabilitation." Pennsylvania noted that ACYF-PIQ-84-5, dated July 5, 1985, stated that "there . . . is . . . no specific language required in the court order . . . ." Pennsylvania contended that the words "treatment," "supervision," and "rehabilitation" were sufficient to constitute a CTW determination because they are all focused upon the needs of the child, consistent with the requirements of section 472(a)(1) of the Act. ACF did not dispute that no specific words were required in a CTW determination. Indeed, ACYF-PIQ-84-5 also notes that section 472 requires only that the determination be "to the effect" that continuation would be contrary to the welfare of the child. In its Financial Review Guide, moreover, ACF instructed reviewers that "[t]he court order must contain a statement to the effect that continuation of residence at home is contrary to the welfare of the child or that placement is in the best interests of the child." Financial Review Guide, attached "Title IV-E Foster Care Eligibility Review Checklist Guide," at 2. ACF nevertheless argued initially that the finding in the delinquency orders was deficient as a CTW determination because it did not focus solely on the welfare of the child, as "the supervision and rehabilitation of delinquent children is also intended to protect the community and other individuals from their criminal acts." ACF brief dated 4/29/94, at 15. However, at the hearing on this appeal, an employee of ACF's Region III Child Care/Child Welfare Branch testified that a finding that the child was "in need of treatment, supervision, and rehabilitation" focused on the child's needs. Tr. at 78. Moreover, section 6301 of the Juvenile Act identifies one of the purposes of the Act as being, "consistent with the protection of the public interest, to remove from children committing delinquent acts the consequences of criminal behavior, and to substitute therefor a program of supervision, care and rehabilitation. . . ." The separate reference to the public interest indicates that "supervision, care and rehabilitation" was regarded as focusing on the child alone. We see no significant difference between this statutory language and the language used in the court orders at issue here. ACF also argued that the finding was deficient as a CTW determination because it did not indicate that the child's need to receive treatment, supervision and rehabilitation required the child's removal from home. However, the fact that this finding was made in an order removing the child from home clearly indicates that the court regarded removal as necessary to meet the child's needs. In fact, ACF elsewhere indicated that it would accept as a CTW determination another finding which did not contain an explicit statement that removal was necessary. See ACYF-PIQ-91-03, dated April 3, 1991 ("A court order indicating that the child is a threat to himself satisfies the requirement of a determination that remaining in the home would be contrary to the child's welfare.") Thus, the court's finding was tantamount to a finding that removal was in the child's best interest. 18/ Whether CTW or RE determinations may be inferred based on the court's reliance on state statutory provisions Pennsylvania took the position with respect to numerous sample payments that, even if the court order removing the child lacked an express CTW or RE determination, a CTW or RE determination was made because the court relied on a state statutory provision requiring such a determination. In ACYF-PIQ-86-02, ACF provided that a state could establish that a CTW determination was made by showing that the court order was "expressly based" on a "clear and unequivocal State law" which "requires that removal may only be based on a determination that remaining in the home would be contrary to the child's welfare." (Emphasis in original.) ACF did not dispute that a state could establish that a RE determination was made in a similar manner, i.e., by showing that the court order was expressly based on a clear and unequivocal State law requiring that removal be based only on a RE determination. Citing ACYF-PIQ-86-02, Pennsylvania contended that section 6351 of Pennsylvania's Juvenile Act required a court to make a CTW or RE determination in order to remove a child who was adjudicated dependent, and that the court relied on this section when it issued an order removing such a child. The 1982 version of that section stated that "[i]f the child is found to be a dependent child the court may make any of the following orders of disposition best suited to the protection of the physical, mental, and moral welfare of the child. . . ." Section 6351(a). The dispositions included transfer of temporary legal custody of the child. Section 6351(b) was amended in 1986 (effective February 13, 1987) to expressly require that, before issuing an order removing a child, the court find that the child's continuation in the home is contrary to the child's welfare and also that the court determine whether (1) reasonable efforts were made to prevent placement, (2) the lack of such efforts was reasonable, or (3) reasonable efforts to return the child home were underway. As discussed below, we conclude that Pennsylvania's evidence is insufficient to show that the court was relying on section 6351 (either before or after its amendment) when it issued orders adjudicating a child dependent. Thus, it is immaterial whether that section in fact required the court to make a CTW or RE determination. 19/ None of the court orders in question expressly cited section 6351. However, Pennsylvania argued that the court relied on this section since (1) both the orders and the petitions referred to the child as "dependent," a term of art in Pennsylvania signalling reliance on section 6351; and (2) there is no statutory provision other than section 6351 upon which the judges could have been relying. The Board found the same arguments unpersuasive in its Ruling on Reconsideration of DAB No. 1392. The Board there found that the word "dependent" in the court orders "does not necessarily even refer to section 6351 since it is used in other sections of the Act. . . ." Ruling on Reconsideration at 4. The Board also found that "[t]he mere existence of a statute which required a `contrary to the welfare' determination . . . does not establish that the court in fact made such a determination in any particular case . . . ." Id. at 6. 20/ Pennsylvania did not specifically challenge the Board's reasoning in the Ruling nor did Pennsylvania provide any more persuasive evidence that the court orders here were in fact issued pursuant to section 6351 and its requirements. Pennsylvania argued, however, that the Board should "re-evaluate its construction and application of ACYF-PIQ-86-02 in light of the disclosure of the Livingston memorandum . . . ." Pennsylvania reply brief dated 6/14/94, at 9 (emphasis in the original). Pennsylvania correctly noted that the Board "approached the PIQ as a narrow exception to the general rule that CTW . . . findings must appear in court orders." Pennsylvania brief dated 2/10/94, at 9. Pennsylvania argued that the Livingston memorandum showed that ACF's predecessor agencies took a broader view of the type of documentation that could be used to show that a CTW determination was made, and that the Board should therefore construe ACYF-PIQ-86-02 more liberally in order to effectuate "[c]ongressional intent to preserve prior AFDC-FC policies." Pennsylvania reply brief at 9. Pennsylvania's argument has no merit. The Livingston memorandum addresses the circumstances under which a petition for state custody of a child can be used to show that the court made a CTW determination. Nothing in the Livingston memorandum (or elsewhere) indicates that there was a policy under the title IV-A foster care program which presumed that if one of the potentially applicable state statutes authorizing a court to remove a child from home required a CTW determination, the court must have relied on this statute and met its requirements in ordering a specific child's removal. Thus, even if Congress had intended to preserve the policies of the title IV-A foster care program (which we conclude above was not so), this would not advance Pennsylvania's case. Pennsylvania also contended that section 6352 of the Juvenile Act required a court to make a RE determination in order to remove a child who was adjudicated delinquent, and that the court relied on this section when it issued an order removing such a child. 21/ Section 6352 states that "[i]f the child is found to be a delinquent child the court may make any of the following orders of disposition best suited to his treatment, supervision, rehabilitation, and welfare: (1) Any order authorized by section 6351. . . ." 22/ Pennsylvania pointed to nothing in the language of this section which could reasonably be construed as requiring a RE determination, however. Thus, even if the court relied on section 6352 in issuing the orders in question, that section did not provide a basis for the court to make a RE determination. Whether nunc pro tunc orders established that the court made a CTW or RE determination In numerous cases in which ACF found there was no CTW or RE determination, Pennsylvania produced nunc pro tunc (NPT) orders to establish that the requisite determinations were made. The NPT orders were signed by the judge who issued the original order and indicated that the court had made a CTW or RE determination at the time of the hearing which resulted in the original order, but that this determination was not recorded in that order. Pennsylvania also provided documentation for most of the cases in question which it alleged corroborated that the requisite determination had been made at the time the original order was issued. In a number of cases, Pennsylvania provided the transcript of the hearing which resulted in the original order. The other documentation included caseworker summaries and recommendations and, for two cases, a document identified as a "Placement Amendment." In support of its position that the NPT orders showed that the court made CTW or RE determinations when it issued the original order, Pennsylvania cited ACYF-IM-87- 28, dated October 7, 1987. ACYF-IM-87-28 indicates that ACF's policy is to accept as evidence of CTW or RE determinations NPT orders which were intended to correct a mistake in the original court order, i.e., the failure to reflect a judicial determination actually made at the time of entry of the original order. ACYF-IM-87-28 also provides that states would be required to submit documentation to verify that this was the function of the NPT orders, stating: Requested documentation may include the transcript of court proceedings and/or the agency's report to the court, or any other documentation that would confirm that the information was actually presented to the court at the previous hearing and that the court made the determination(s) at that time. 23/ The requirement that NPT orders be accompanied by documentation establishing that the judicial determinations were actually made at the time of removal has been upheld as a reasonable interpretation of the Act. Harvey v. Shalala, 824 F. Supp. 186 (D. Neb. 1993) aff'd, 19 F.3d 1252 (8th Cir. 1994). Thus, with the exception explained below, we find that, for those sample payments without any documentation supporting the NPT orders, ACF properly rejected the NPT orders as evidence that the requisite determinations were made. In some cases (sample nos. 2, 75, and 94) in which there was no acceptable documentation outside the NPT order, the NPT order summarized the testimony presented at the original hearing and indicated that this summary was based on the judge's bench notes. This corroborates the finding in the NPT order that the court made the requisite determination at the time of the original order. It is unnecessary to require the production of the bench notes themselves, which the judge may not have intended to be made public, since the judge attested to their existence in the NPT order. 24/ Not all of the documentation Pennsylvania provided with the NPT orders adequately supports the NPT orders, however. In Harvey, the court upheld the Board's determination in Nebraska Dept. of Social Services, DAB No. 1250 (1991), that state agency reports on the child which were submitted to the court prior to the removal hearing did not constitute adequate supporting documentation for NPT orders. The Board concluded that such reports did not corroborate that the court made the requisite determinations at the time the original orders were issued because they "merely provide factual background information presumably supplied by child welfare agencies or caseworkers concerning the children and their families." DAB No. 1250, at 9; see also Harvey at 190. Some of the caseworker recommendations and summaries provided here, like the state agency reports in DAB No. 1250, constituted background information which may not have been considered by the court. Moreover, the caseworker documents for some sample payments are dated after the order allegedly corrected by the NPT order, and therefore clearly could not have been considered by the court. There is also no basis for finding that either of the two Placement Amendments relied on by Pennsylvania was considered by the court since one is dated after the date of the original order (sample no. 48) and the other is undated (sample no. 49). Contrary to ACF's position, however, we conclude that the hearing transcripts provided by Pennsylvania for all but two cases corroborate that the court made the requisite determinations at the time it issued the original orders. The transcripts include statements by such individuals as the caseworker, counsel for the child, counsel for the parents, the child, and the child's parent(s). In most cases, ACF did not dispute that these statements provided information based on which the court could have made the requisite determinations. (We explain in the discussion of the individual sample payments why we disagree with ACF's position that the transcript in one case (sample no. 52) did not provide such information. We find the transcript unacceptable in two other cases (sample nos. 23 and 86), however.) ACF nevertheless maintained that the transcripts showed merely that information was presented to the court and not that the court made the requisite determinations based on this information. We disagree. The purpose of a transcript is not to show that the court actually made the requisite determinations, but to corroborate the finding in the NPT order that the court made these determinations. ACYF-IM-87-28 requires that the documentation accompanying the NPT order, which the IM states may include hearing transcripts, "confirm" that the court made the requisite determinations at the time of the original hearing. The fact that the judge ordered the child's removal from home after eliciting statements about the child's situation which would support a CTW or RE determination could reasonably be viewed as adequate confirmation that the appropriate determination was made. Moreover, ACYF-PIQ-86-02 indicates that an express CTW or RE determination may be found in a hearing transcript. ("The signed court order or a transcript of court proceedings may be used to satisfy the requirement in section 472(a)(1) if the judicial determination in relation to removal is included. . . ." ACYF-PIQ-86-02, at 5.) Thus, it follows that something less than an express determination is sufficient to corroborate a NPT order. Indeed, if ACF had intended instead that the judge make an express determination at the hearing, it presumably would have said so in ACYF-IM-87-28. ACF also argued that the NPT orders themselves were not reliable because they were executed in order to qualify the cases in question for FFP, not to correct the record. ACF noted that most of the orders were entered over a period of only four months in 1991, even though the original orders were issued over a period of five years. We are not persuaded that this is a basis for not accepting the NPT orders for which there is corroborating evidence. In DAB Nos. 1250 and 1257, the Board cited as one factor in its decision not to accept NPT orders the fact that the NPT orders were issued after a significant lapse of time at the request of the state in order to respond to the threat of disallowance. However, in those cases, the NPT orders were submitted without any evidence which corroborated that the court actually made the requisite determinations at the time of the original order. The Board did not intend that NPT orders for which there is corroborating evidence be rejected simply because they were not issued until the lack of CTW and RE findings in the original orders was questioned by ACF. (However, a NPT order should clearly be subject to greater scrutiny where it is made in response to a disallowance rather than issued sua sponte by a court. See Harvey v. Shalala at 824 F. Supp. at 189 ("To issue 5 NPT orders long after the original removal hearing, and after the 5 cases have been specifically targeted as non- complying cases, concerns this court even though the court recognizes the presumed validity of court orders").) ACF also took the position that the statement in some of the NPT orders that there was a "present clear necessity to place the child outside the home" did not constitute a CTW determination since it did not explain the reason for the need to place the child outside the home, i.e., whether the placement was needed by the state, the child, the parents, or for some other reason. However, the NPT orders were clearly intended to indicate that a CTW determination was made when the court issued the original order. Thus, it is sufficient that the corroborating evidence verifies that the court was considering the interest of the child at that time. ACF further argued that, where the original court order was on a form on which the court could simply check off the applicable language pertaining to reasonable efforts (e.g., that reasonable efforts were made, that reasonable efforts were not made, or that the lack of efforts was reasonable), and the court failed to do so, it was not likely that a RE determination was inadvertently omitted, as represented in the NPT order. We disagree. ACF offered no reason why a judge would have intentionally ignored the language pertaining to reasonable efforts. Where there were credible NPT orders, it could just as easily be inferred that the court's failure to check off the applicable language in the original order was inadvertent as that it was deliberate. Thus, the court's failure to check off this language is not a basis for questioning whether the NPT order corrected a mistake in the original order. Whether the foster family home was approved ACF found that one payment (sample no. 18) was ineligible for FFP on the ground that the home in which the child was placed was not approved as a foster family home for the period in question. Section 472(b) of the Act provides that foster care maintenance payments may be made only on behalf of a child who is in a foster family home or child care institution. Section 472(c)(1) defines "foster family home" as "a foster family home for children which is licensed by the State in which it is situated or has been approved by the agency of such State having responsibility for licensing homes of this type, as meeting the standards established for such licensing . . . ." ACF found the documentation originally submitted by Pennsylvania for this case inadequate because it did not show the date the home was approved. Pennsylvania subsequently submitted the "Foster Home Annual Re- Evaluation" form for the home in question. The form indicates that the re-evaluation home visit took place on December 15, 1988. The caseworker and her supervisor signed the re-evaluation form on December 16 and December 19, 1988, respectively. Pennsylvania argued that the case was eligible since the home was approved during the month for which payment was made, December 1988. ACF argued initially that the case was ineligible because the home was not approved prior to the child's placement in foster care. ACF later modified its position and stated that FFP was available only for that part of December after the home was approved. ACF submission dated 1/9/95, at 1. We need not reach here the issue whether FFP is available only for that part of a month after a foster care provider is approved. In the instant case, the form provided by Pennsylvania pertains to an annual re- evaluation of the foster home. Thus, it is clear that the home was previously approved. Even if that approval (which in Pennsylvania was good for one year) was no longer current, ACF determined in other cases included in the sample that the fact that a foster home was not re- reviewed within one year was not a basis for a finding of ineligibility. 25/ Thus, as long as the home was originally approved before the month for which FFP was claimed, FFP should be available for the entire month. Since re-determinations were due annually, it is clear from the fact that the re-determination here took place in mid-December that the home was originally approved prior to December. Accordingly, consistent with ACF's treatment of the other cases, this case should be eligible even if the re-determination was late. Discussion of Individual Sample Payments Below, we discuss the individual sample payments in light of the preceding discussion of the major issues raised by this appeal. In some instances, we do not discuss all of the arguments made by Pennsylvania with respect to a sample case if other arguments are dispositive. We indicate in the caption for each sample case whether we find that case eligible or ineligible. Sample No. 1 (Ex. 8) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the March 29, 1985 Shelter Order instead of the May 25, 1985 Child Welfare Service Order. There is no CTW determination on the face of the latter order. However, a CTW determination may be inferred pursuant to the Livingston memorandum. The Child Welfare Service Order refers to a petition. A petition dated April 15, 1985 alleges that the mother reported that she did not have a residence where she could take the child. ACF did not argue that the petition did not state a reasonable basis for making a CTW determination. We find that this is the petition granted by the order since this is the only petition noted on the docket sheet. (The docket sheet refers to a petition filed the day after the date on this petition.) Sample No. 2 (Ex. 9) -- eligible ACF found that this case lacked both a CTW and a RE determination. ACF erroneously found that a CTW determination should have been included in the May 28, 1987 Shelter Order instead of the June 24, 1987 Placement Order. The latter order contains an express CTW determination. Pennsylvania argued that the NPT order established that the court made a RE determination. Although Pennsylvania did not provide any contemporaneous documentation in support of the NPT order, the judge states in the order that he reviewed notes he made contemporaneously with the June 24, 1987 hearing, and that, according to the notes, testimony was presented to show that "[r]easonable efforts were made to continue the child in parental placement through a parenting skills program but mother lacked housing and agreed with placement." The notes clearly corroborate the assertion in the NPT order that a RE determination was made at the time of the original order. Since the judge attested to the existence of his own contemporaneous notes, we conclude that there is sufficient evidence of a timely RE determination. Sample No. 4 (Ex. 10) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the November 28, 1980 Attachment Order (not in the record) instead of the December 12, 1980 Child Welfare Service Order. We concluded above that an attachment order should be treated like a shelter order, which need not include a CTW determination. There is no CTW determination on the face of the Child Welfare Service Order. However, Pennsylvania argued, and we agree, that a CTW determination may be inferred pursuant to the Livingston memorandum. The Child Welfare Service Order refers to a petition. A petition dated November 28, 1980 alleges that the mother had no prospect for housing and seemed incapable of providing proper care for the children, and that a complaint of neglect had previously been received. ACF did not argue that the petition did not state a reasonable basis for making a CTW determination. We find that this is the petition granted by the order since this is the only petition noted on the docket sheet. Sample No. 6 (Ex. 11) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the March 3, 1978 Miscellaneous Order/Shelter Order instead of the June 7, 1978 Child Welfare Service Order. There is no CTW determination on the face of the latter order. However, a CTW determination may be inferred pursuant to the Livingston memorandum. The Child Welfare Service Order refers to a petition. A petition dated March 6, 1978 alleges generally that the child was without proper parental care and control. The petition also alleges that the child was brought to the hospital by the parents for a respiratory problem, was found on examination to be in a state of poor hygiene, and could not be discharged because the parents did not come to pick her up. ACF did not argue that the petition did not state a reasonable basis for making a CTW determination. We find that this is the petition granted by the order since this is the only petition noted on the docket sheet. Sample No. 8 (Ex. 12) -- ineligible ACF found that this case lacked a CTW determination. The parties disagreed as to what order removed the child and should therefore contain a CTW determination. Pennsylvania asserted that the child was removed by a Modified Child Welfare Service Order dated January 13, 1986. There is no CTW determination on the face of that order; however, Pennsylvania argued that a CTW determination could be inferred because, according to Pennsylvania, the court relied on section 6351 of the Juvenile Act and that section required a CTW determination. We concluded above that there is no basis for finding such reliance where an order merely finds a child dependent without specifically citing section 6351. Thus, even if Pennsylvania is correct that the January 13, 1986 Modified Child Welfare Service Order removed the child, the case is ineligible. Sample No. 9 (Ex. 13) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the June 1, 1994 Shelter Order instead of the October 17, 1984 Child Welfare Service Order. There is no CTW determination on the face of the latter order. Pennsylvania argued that the NPT order established that a CTW determination was made, and submitted a transcript of the October 17, 1984 hearing as supporting documentation. There is no dispute that the information in the transcript is sufficient to support a CTW determination. Thus, the transcript corroborates the assertion in the NPT order that a CTW determination was made at the time of the original order. Sample No. 13 (Ex. 15) -- ineligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the October 28, 1985 Shelter Order instead of the December 18, 1985 Order of Court. There is no CTW determination on the face of the latter order. However, Pennsylvania argued that a CTW determination may be inferred pursuant to the Livingston memorandum. We conclude that the Livingston memorandum does not apply because the Order of Court does not refer to a petition. In order to qualify for the application of the Livingston memorandum, a petition stating reasons for giving custody of the child to the state agency must be granted by the court order; this implicitly requires that the court order refer to a petition. (Indeed, Pennsylvania argued only that the order need not refer to a petition by date, not that the order need not contain any reference to a petition.) Pennsylvania also argued that a CTW determination could be inferred because, according to Pennsylvania, the court relied on section 6351 of the Juvenile Act and that section required a CTW determination. We concluded above that there is no basis for finding such reliance where an order merely finds a child dependent without specifically citing section 6351. Sample No. 14 (Ex. 16) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the November 21, 1986 Shelter Order instead of the December 14, 1986 Placement Order. The latter order contains an express CTW determination. Sample No. 16 (Ex. 18) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the November 8, 1979 Miscellaneous Order instead of the November 14, 1979 Child Welfare Service Order. The Miscellaneous Order provides that the child is to be placed in the custody of the maternal aunt prior to the filing of and hearing on the petition, and thus should be treated like a shelter order, which need not include a CTW determination. There is no CTW determination on the face of the Child Welfare Service Order. However, a CTW determination may be inferred pursuant to the Livingston memorandum. The Child Welfare Service Order refers to a petition. A petition dated November 13, 1979 alleges that the mother was providing inadequate care and supervision for the child and that the home was in very poor condition with little food. ACF did not argue that the petition did not state a reasonable basis for making a CTW determination. We find that this is the petition granted by the order since it is the only petition noted on the docket sheet. Sample No. 17 (Ex. 19) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the April 4, 1985 Attachment Order instead of the April 18, 1985 Placement Order. We concluded above that an attachment order should be treated like a shelter order, which need not include a CTW determination. The Placement Order contains an express CTW determination. Sample No. 18 (Ex. 20) -- eligible ACF found that this case lacked a CTW determination and that the foster care provider was ineligible. ACF erroneously found that a CTW determination should have been included in the November 16, 1984 Shelter Order instead of the December 5, 1984 Placement Order. The latter order contains an express CTW determination. ACF also found that the foster care provider was not approved until the middle of the month for which the sample payment was made. As discussed above, we find that the provider was previously approved, and that even if the re-determination of the provider's eligibility was late, ACF should have found the provider eligible consistent with its treatment of other, similarly situated providers to whom sample payments were made. Sample No. 19 (Ex. 21) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the June 25, 1987 Shelter Order instead of the July 15, 1987 Placement Order. The latter order contains an express CTW determination. Sample No. 20 (Ex. 22) -- ineligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the February 13, 1985 Miscellaneous Order instead of the February 27, 1985 Child Welfare Service Order. The Miscellaneous Order continues the case until February 27, 1985, and thus should be treated like a shelter order, which need not include a CTW determination. There is no CTW determination on the face of the Child Welfare Service Order. Pennsylvania argued that a CTW determination could be inferred because, according to Pennsylvania, the court relied on section 6351 of the Juvenile Act and that section required a CTW determination. However, we concluded above that there is no basis for finding such reliance where an order merely finds a child dependent without specifically citing section 6351. Sample No. 21 (Ex. 23) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in a January 19, 1988 order instead of a February 11, 1988 Commitment Order. The January 19, 1988 order finds, after a hearing on a petition, that the child has committed certain delinquent acts, commits the child to a detention home, and defers disposition to a later date. Thus, this order is in effect a detention order, a type of shelter order. The Commitment Order states that the child "is in need of treatment, supervision, and rehabilitation." We concluded above that this language constitutes a CTW determination. Sample No. 22 (Ex. 24) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in an October 12, 1988 Shelter Order instead of a November 30, 1988 Placement Order. The latter order contains an express CTW determination. Sample No. 23 (Ex. 25) -- ineligible ACF found that this case lacked both a CTW and a RE determination. ACF erroneously found that a CTW determination should have been included in a March 24, 1988 Shelter Order instead of an April 20, 1988 Placement Order (at Exhibit 24 of Pennsylvania submission dated September 23, 1994). The latter order contains an express CTW determination. Pennsylvania argued that the NPT order established that the court made a RE determination, and submitted a transcript of the March 24, 1988 shelter hearing as supporting documentation. ACF argued that the transcript did not show that the state agency made reasonable efforts to prevent removal of the child from home. We agree. A state agency representative participating in the shelter hearing stated at one point: "We also need to look at if [the mother] is willing to accept any in-home services." It could be inferred from this that no preventive services were previously offered. Pennsylvania also argued that a RE determination may be inferred from the Placement Order because, according to Pennsylvania, the court relied on section 6351 of the Juvenile Act and that section required a RE determination. However, we concluded above that there is no basis for finding such reliance where an order merely finds a child dependent without specifically citing section 6351. Sample No. 24 (Ex. 26) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the November 19, 1986 Shelter Order instead of the December 17, 1986 Placement Order. The latter order contains an express CTW determination. Sample No. 25 (Ex. 27) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the July 25, 1988 Detention Order instead of the August 25, 1988 Commitment Order. The latter order states that the child was "in need of treatment, supervision, and rehabilitation." We concluded above that this language constitutes a CTW determination. Sample No. 26 (Ex. 27) -- eligible See Sample No. 25 (different payment for same child) Sample No. 27 (Ex. 28) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the November 12, 1986 Shelter Order instead of the February 6, 1987 Modified Placement Order. The latter order contains an express CTW determination. Sample No. 28 (Ex. 29) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the September 16, 1988 Detention Order instead of the October 31, 1988 Modified Commitment Order. The latter order states that the child is "in need of treatment, supervision, and rehabilitation." We concluded above that this language constitutes a CTW determination. Sample No. 31 (Ex. 30) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the March 24, 1987 Shelter Order instead of the May 1, 1987 Placement Order. The latter order contains an express CTW determination. Sample No. 33 (Ex. 31) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the October 2, 1984 Shelter Order instead of the December 21, 1984 Child Welfare Service Order. There is no CTW determination on the face of the latter order. However, a CTW determination may be inferred pursuant to the Livingston memorandum. The Child Welfare Service Order refers to a petition. An "Amended Petition" dated October 10, 1984 alleges that the mother was unable to care for the child because she was an alcoholic and was without housing, and the father was incarcerated. ACF did not argue that the petition did not state a reasonable basis for making a CTW determination. We find that this is the petition granted by the order since this is the petition described in the transcript of the December 21, 1984 hearing. (The transcript indicates that the court was actually referring to the original petition dated October 4, 1984; however, it appears that this petition differed from the October 10, 1984, petition only with respect to the date set for hearing.) Sample No. 34 (Ex. 32) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the January 15, 1988 Shelter Order instead of the January 22, 1988 Placement Order. The latter order contains an express CTW determination. Sample No. 35 (Ex. 33) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the November 30, 1976 Shelter Order (not in record) instead of the January 5, 1977 Child Welfare Service Order. There is no CTW determination on the face of the latter order. However, a CTW determination may be inferred pursuant to the Livingston memorandum. The Child Welfare Service Order refers to a petition. A petition dated December 2, 1976 alleges that the mother repeatedly left the children with caretakers without adequate provision for food and clothing and neglected their medical care. ACF did not argue that the petition did not state a reasonable basis for making a CTW determination. We find that this is the petition granted by the order since this is the only petition noted on the docket sheet. Sample No. 36 (Ex. 34) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in a March 5, 1984 Attachment Order instead of an April 4, 1984 Child Welfare Service Order. We concluded that an attachment order should be treated like a shelter order, which need not include a CTW determination. (There was also a March 8, 1984 Shelter Order which need not have included a CTW determination.) There is no CTW determination on the face of the Child Welfare Service Order. However, a CTW determination may be inferred pursuant to the Livingston memorandum. The Child Welfare Service Order refers to a petition. A petition dated March 8, 1984 alleges that the child was hospitalized with severe diaper rash and pneumonia which resulted from the parents' willful failure to provide the necessities of life. ACF did not argue that the petition did not state a reasonable basis for making a CTW determination. We find that this is the petition granted by the order since this is the only petition noted on the docket sheet. Sample No. 37 (Ex. 35) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the September 29, 1987 Shelter Order instead of the December 9, 1987 Placement Order. The latter order contains an express CTW determination. Sample No. 38 (Ex. 36) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in a November 30, 1982 Miscellaneous Order (supplied by Pennsylvania after ACF postulated that an earlier order was issued on or about November 26, 1982) instead of an order dated December 9, 1982. The Miscellaneous Order directs that the child be admitted to the Shuman Center, a temporary detention center. Thus, the Miscellaneous Order is in effect a detention order, a type of shelter order, which need not include a CTW determination. The December 9, 1982 order states that the child is "in need of treatment, supervision, and rehabilitation." We concluded above that this language constitutes a CTW determination. Sample No. 39 (Ex. 37) -- eligible ACF found that this case lacked a CTW determination. There is no CTW determination on the face of the May 10, 1978 Child Welfare Service Order. However, a CTW determination may be inferred pursuant to the Livingston memorandum. The Child Welfare Service Order refers to a petition. A petition dated April 13, 1978 alleges that the child was in a special education class and was declining behaviorally, academically and emotionally, and that efforts by a public health nurse and school staff to instruct the mother as to the proper care of the child had not been successful. Contrary to ACF's position, we find that the petition stated a reasonable basis for making a CTW determination since it indicates that the mother was unable to meet the child's special needs. We find that this is the petition granted by the order since it is the only petition noted on the docket sheet. Sample No. 40 (Ex. 38) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously determined that a CTW determination should have been included in the October 14, 1988 Shelter Order instead of the March 17, 1989 Modified Placement Order. The latter order contains an express CTW determination. Sample No. 41 (Ex. 39) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously determined that a CTW determination should have been included in the March 11, 1988 Shelter Order instead of the March 18, 1988 Placement Order. The latter order contains an express CTW determination. Sample No. 42 (Ex. 9) -- eligible See Sample No. 2 (same child, different payment) Sample No. 43 (Ex. 40) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the August 26, 1988 Shelter Order instead of the September 14, 1988 Placement Order. The latter order contains an express CTW determination. Sample No. 46 (Ex. 41) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the November 8, 1987 Detention Order instead of the January 4, 1988 Commitment Order. The latter order states that "the child is in need of treatment, supervision, and rehabilitation." Moreover, an intervening order dated November 9, 1987 contains the same language. We concluded above that this language constitutes a CTW determination. Sample No. 47 (Ex. 42) -- eligible ACF found that this case lacked a CTW determination. A December 3, 1987 Commitment Order states that the child "is in need of treatment, supervision, and rehabilitation." We concluded above that this language constitutes a CTW determination. Sample No. 48 (Ex. 43) -- ineligible ACF found that this case lacked both a CTW and a RE determination. ACF found that a CTW determination should have been included in an order issued prior to the September 15, 1988 Commitment Order. ACF referred to a July 30, 1988 order removing the child which was not then in the record. Pennsylvania subsequently produced a July 30, 1988 Master's recommendation that the child be detained. It is not clear that ACF would argue that the CTW determination should have been in this document. ACF also suggested that a CTW determination should have been included in a August 11, 1988 order. However, this order merely defers placement until a later date, and should therefore be treated like a shelter order, which need not include a CTW determination. Thus, we conclude that a CTW determination could properly have been made in the Commitment Order. The Commitment Order states that "the child is in need of treatment, supervision, and rehabilitation." We concluded above that this language constitutes a CTW determination. Pennsylvania argued that the NPT order established that the court made a RE determination. However, the documentation submitted in support of the NPT order, a Placement Amendment dated September 8, 1988, is not adequate because the court could not have considered this documentation in issuing the August 11, 1988 order referred to in the NPT order. Pennsylvania further argued that a RE determination could be implied because, according to Pennsylvania, the court relied on a provision of the Juvenile Act requiring a RE determination. However, we concluded above that the provision cited by Pennsylvania, section 6352, does not require a RE determination. Sample No. 49 (Ex. 44) -- ineligible ACF found that this case lacked both a CTW and a RE determination. Pennsylvania argued that ACF erroneously found that a CTW determination should have been included in a Placement Order instead of a Commitment Order dated December 1, 1988. ACF stated that the Placement Order is dated November 30, 1988; however, the order merely indicates that the "Date Placed" is November 30, 1988. Moreover, the terms of the Placement Order are the same as the terms of the Commitment Order. Since it is likely that the two orders were issued simultaneously, a CTW determination in the Commitment Order rather than the Placement Order is acceptable. The Commitment Order states that the child "is in need of treatment, supervision, and rehabilitation." We concluded above that this language constitutes a CTW determination. Pennsylvania also argued that a RE determination could be inferred from a document captioned "Statement of Facts and Reasons Accompanying the Detention/Continued Detention of a Child by a Judge or Master Prior to Adjudication," dated January 30, 1989. (We assume for purposes of this discussion that this document constituted a judicial determination since it was signed by either a judge or a master and Pennsylvania contended that a master was a judicial officer under Pennsylvania law.) The "Statement" identifies the alternatives to "secure detention" which were considered and rejected, including "parent(s)/guardian(s)" and "in-home detention," and states that the alternatives are not appropriate because of "failure to adjust at Court ordered placement." Pennsylvania argued that this constituted a determination that the lack of efforts to prevent removal was reasonable. As indicated previously, ACF stated in its briefing in this appeal that it would accept a finding that the lack of efforts to prevent removal was reasonable. The reason given in the "Statement" for rejecting the alternatives to removal does not provide any basis for a determination that the lack of efforts was reasonable. Pennsylvania also argued that the NPT order established that the court made a RE determination. However, the documentation submitted in support of the NPT order, an undated Placement Amendment, is not adequate because there is no evidence that the court considered this documentation in issuing an order pursuant to the December 1, 1988 hearing referred to in the NPT order. Pennsylvania further argued that a RE determination could be implied because, according to Pennsylvania, the court relied on a provision of the Juvenile Act requiring a RE determination. However, we concluded above that the provision cited by Pennsylvania, section 6352, does not require a RE determination. Sample No. 50 (Ex. 45) -- ineligible ACF found that this case lacked both a CTW and a RE determination. ACF erroneously found that a CTW determination should have been included in the January 31, 1989 Shelter Order instead of the March 1, 1989 Placement Order. The latter order contains an express CTW determination. Pennsylvania argued that the NPT order established that the court made a RE determination. However, the documentation submitted in support of the NPT order, a recommendation prepared by the caseworker prior to the March 1, 1989 hearing, is not adequate because there is no evidence that the court actually considered this documentation in issuing the Placement Order referred to in the NPT order. Pennsylvania also argued that a RE determination could be implied because, according to Pennsylvania, the court relied on section 6351 of the Juvenile Act and that section requires a RE determination. We concluded above that there is no basis for finding such reliance where an order merely finds a child dependent without specifically citing section 6351. Sample No. 52 (Ex. 46) -- eligible ACF found that this case lacked both a CTW and a RE determination. Pennsylvania argued that the NPT order established that the court made these determinations at the time it issued the January 19, 1989 Shelter Order, and submitted a transcript of the shelter hearing as supporting documentation. ACF did not dispute that the information in the transcript was sufficient to support a CTW determination, but argued that the transcript contained no information about the efforts the state agency made to prevent the child's removal from home. However, the NPT order states that it was determined at the time of the original order that the absence of efforts to prevent the child's placement was reasonable. The transcript indicates that the court was informed that the child had been repeatedly beaten by the mother. Since the court could have determined based on this information that this was an emergency situation in which the lack of efforts to prevent the child's removal was reasonable, the transcript corroborates the findings in the NPT order that a RE determination as well as a CTW determination was made at the time of the original order. Sample No. 53 (Ex. 46.5) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the January 11, 1989 Detention Order instead of the January 31, 1989 Commitment Order. (ACF erroneously identified the date of the Detention Order as January 10, 1989, the date the child was detained.) The latter order states that the child is "in need of treatment, supervision, and rehabilitation." We concluded above that this language constitutes a CTW determination. Sample No. 54 (Ex. 47) -- ineligible ACF found that this case lacked both a CTW and a RE determination. ACF erroneously found that a CTW determination should have been included in a December 22, 1988 Detention Order instead of the January 30, 1989 Commitment Order. The latter order states that the child "is in need of treatment, supervision, and rehabilitation." We concluded above that this language constitutes a CTW determination. Pennsylvania asserted that there was a RE determination in a Review Order dated June 26, 1989. However, this determination is not acceptable since it was made after the month for which the payment was made (May 1989). Pennsylvania argued further that a RE determination could be inferred from a document captioned "Statement of Facts and Reasons Accompanying the Detention/Continued Detention of a Child by a Judge or Master Prior to Adjudication," dated December 21, 1988. (We assume for purposes of this discussion that this document constituted a judicial determination since it was signed by either a judge or a master and Pennsylvania contended that a master was a judicial officer under Pennsylvania law.) The "Statement" identifies the alternatives to "secure detention" which were considered and rejected, including "parent(s)/guardian(s)" and "in-home detention," and states that the alternatives are not appropriate because "child has absconded from HSB." Pennsylvania argued that this constituted a determination that the lack of efforts to prevent removal was reasonable. However, the reason given in the "Statement" for rejecting the alternatives to removal does not provide any basis for determining that the lack of efforts was reasonable. Pennsylvania also argued that the NPT order established that the court made a RE determination. Pennsylvania did not provide any contemporaneous documentation in support of this order, however. Finally, Pennsylvania argued that a RE determination could be implied because, according to Pennsylvania, the court relied on a provision of the Juvenile Act requiring a RE determination. However, we concluded above that the provision cited by Pennsylvania, section 6352, does not require a RE determination. Sample No. 56 (Ex. 48) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the October 23, 1987 Shelter Order instead of the April 25, 1988 Modified Placement Order. The latter order contains an express CTW determination. Sample No. 57 -- eligible See Sample No. 31 (same child, different payment). Sample No. 60 (Ex. 50) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the April 11, 1984 Shelter Order instead of the May 23, 1984 Placement Order. The latter order contains an express CTW determination. Sample No. 62 (Ex. 52) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the March 19, 1985 Shelter Order instead of the April 10, 1985 Child Welfare Service Order. There is no CTW determination on the face of the latter order. However, a CTW determination may be inferred pursuant to the Livingston memorandum. The Child Welfare Service Order refers to a petition. A petition dated March 27, 1985 alleges that the parents are unable to care for the child because they both have histories of emotional problems and are currently in residence at treatment programs. ACF did not argue that the petition did not state a reasonable basis for making a CTW determination. We find that this is the petition granted by the order since this is the only petition noted on the docket sheet. Sample No. 63 (Ex. 53) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the November 14, 1984 Attachment Order instead of the January 16, 1985 Placement Order. We concluded above that an attachment order should be treated like a shelter order, which need not include a CTW determination. The Placement Order contains an express CTW determination. Sample No. 65 (Ex. 54) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the March 11, 1983 Miscellaneous Order/Shelter Order instead of the March 30, 1983 Child Welfare Service Order. There is no CTW determination on the face of the latter order. However, a CTW determination may be inferred pursuant to the Livingston memorandum. The Child Welfare Service Order refers to a petition. A petition dated March 11, 1984 alleges that the mother insisted on the child's removal, stating that it was beyond her ability to control the child, who was stealing, not attending school, and staying out late at night. ACF did not argue that the petition did not state a reasonable basis for making a CTW determination. We find that this is the petition granted by the order since this is the only petition noted on the docket sheet. Sample No. 66 (Ex. 55) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the November 21, 1986 Shelter Order instead of the June 17, 1987 Modified Placement Order. The latter order contains an express CTW determination. ACF also argued that the case was ineligible because the Modified Placement Order was not issued within six months of the child's removal. However, as discussed above, the Act requires only that judicial proceedings be initiated within six months of the child's removal. Although the record does not show either the date of removal or the date the petition was filed, we noted previously that it is reasonable to assume that the child's removal occurred no more than a few days before the date of the shelter order since Pennsylvania's Juvenile Act requires that a shelter hearing be held within 72 hours of the child's placement in shelter care. Similarly, it is reasonable to assume that the petition was filed within 24 hours of the child's removal, as required by the Juvenile Act. Moreover, it appears that, in this case, a petition may have even been filed before the Shelter Order was issued since the standard language on the Shelter Order requiring a petition to be filed within 24 hours is crossed out. Sample No. 67 (Ex. 56) -- eligible ACF found that this case lacked both a CTW and a RE determination. ACF erroneously found that a CTW determination should have been included in the July 11, 1986 Shelter Order instead of the August 1, 1986 Child Welfare Service Order. There is no CTW determination on the face of the latter order. However, a CTW and a RE determination may be inferred pursuant to the Livingston memorandum. The Child Welfare Service Order refers to a petition. The petition dated July 17, 1986 alleges that the mother was in prison and that there were no other relatives willing to care for the child. ACF did not argue that the petition did not state a reasonable basis for making a CTW determination. In addition, the allegation that the mother was in prison would clearly support a determination that there was an emergency situation in which the lack of efforts to prevent the child's removal from home was reasonable. We find that this is the petition granted by the order since this is the only petition noted on the docket sheet. Sample No. 68 (Ex. 57) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the January 14, 1986 Shelter Order instead of the February 13, 1985 Child Welfare Service Order. There is no CTW determination on the face of the latter order. However, a CTW determination may be inferred based on the Livingston memorandum. The Child Welfare Service Order refers to a petition. The petition dated January 15, 1985 alleges that the mother had no permanent residence and that she admitted that she lacked all the necessary supplies to care for the child. The petition also indicates that the mother had been discharged from the hospital after giving birth to the child, and had not inquired about the infant, who remained in the hospital, for over a week. ACF did not argue that the petition did not state a reasonable basis for making a CTW determination. We find that this is the petition granted by the order since this is the only petition noted on the docket sheet. Sample No. 69 (Ex. 58) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the Detention Order instead of the May 22, 1989 Commitment Order. (There may have been two detention orders in this case. The Detention Order in the record is dated March 16, 1989; however, ACF refers to a Detention Order dated April 17, 1989, apparently based on the reference in the probation officer's report to an April 17, 1989 detention hearing.) The Commitment Order states that "the child is in need of treatment, supervision, and rehabilitation." We concluded above that this language constitutes a CTW determination. Sample No. 70 (Ex. 59) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the January 31, 1989 Transportation Order instead of the April 13, 1989 Commitment Order. The Transportation Order directs the child to be transported to the Shuman Center, a temporary detention center, and is thus in effect a detention order, which need not include a CTW determination. The Commitment Order states that "the child is in need of treatment, supervision, and rehabilitation." We concluded above that this language constitutes a CTW determination. Sample No. 71 (Ex. 60) -- eligible ACF found that this case lacked both a CTW and a RE determination. ACF erroneously found that a CTW determination should have been included in the March 28, 1989 Shelter Order instead of the April 14, 1989 Placement Order. The latter order contains an express CTW determination. Pennsylvania argued that the NPT order established that the court made a RE determination, and submitted transcripts of both the shelter hearing and the placement hearing as supporting documentation. (The NPT order referred to both hearings.) There is no dispute that the information in the transcripts is sufficient to support a RE determination. Thus, the transcript corroborates the assertion in the NPT order that a RE determination was made at the time of the original order. Sample No. 72 (Ex. 61) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the February 6, 1989 Shelter Order instead of the February 24, 1989 Placement Order. The latter order contains an express CTW determination. Sample No. 73 (Ex. 62) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the May 11, 1989 Shelter Order instead of the June 9, 1989 Placement Order. The latter order contains an express CTW determination. Sample No. 74 (Ex. 63) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the April 10, 1989 Shelter Order instead of the April 21, 1989 Placement Order. The latter order contains an express CTW determination. Sample No. 75 (Ex. 64) -- eligible ACF found that this case lacked both a CTW and a RE determination. ACF erroneously found that a CTW determination should have been included in the December 20, 1988 Shelter Order instead of the January 11, 1989 Placement Order. The latter order contains an express CTW determination. Pennsylvania also argued that the NPT order established that the court made a RE determination. However, the documentation submitted in support of the NPT order, a summary of the case prepared by the caseworker recommending that the court find the child dependent, is not adequate because there is no evidence that the court considered this documentation in issuing the Placement Order referred to in the NPT order. Although Pennsylvania did not provide adequate supporting documentation for the NPT order, the judge states in the order that he reviewed notes he made contemporaneously with the January 11, 1989 hearing, and that, according to the notes, testimony was presented to show that the mother had a drug and alcohol problem and had abandoned her child and no other relatives were available to take custody of the child. Based on this, the judge could have determined that there was an emergency situation in which the lack of efforts to prevent the child's removal from home was reasonable. Thus, the notes corroborate the assertion in the NPT order that a RE determination was made at the time of the original order. Since the judge attested to the existence of his own contemporaneous notes, we conclude that there is sufficient evidence of a timely RE determination. Sample No. 76 (Ex. 65) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the May 24, 1988 Miscellaneous Order/Detention Hearing instead of the August 2, 1988 Commitment Order. The latter order states that the child "is in need of treatment, supervision, and rehabilitation." We concluded above that this language constitutes a CTW determination. Sample No. 77 (Ex. 66) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the February 26, 1987 Attachment Order instead of the March 18, 1989 Placement Order. We concluded above that an attachment order should be treated like a shelter order, which need not include a CTW determination. The Placement Order contains an express CTW determination. Sample No. 79 (Ex. 68) -- eligible ACF found that this case lacked a CTW determination. Pennsylvania argued that ACF erroneously found that a CTW determination should have been included in the April 23, 1986 Miscellaneous Order/Continued Hearing instead of the May 21, 1986 Placement Order. The Miscellaneous Order merely directs that the hearing be continued and thus should be treated like a shelter order, which need not include a CTW determination. There is an express CTW determination in the Placement Order. Sample No. 81 (Ex. 70) -- ineligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the March 8, 1984 Shelter Order instead of the March 27, 1984 Modified Child Welfare Service Order. There is no CTW determination on the face of the latter order. However, Pennsylvania argued that a CTW determination may be inferred pursuant to the Livingston memorandum. We disagree. The Modified Child Welfare Service Order refers to a petition. The petition dated November 22, 1983 alleges that the child is the daughter of a dependent child under the supervision of the state agency. The petition does not state a reasonable basis for making a CTW determination, however, since it does not indicate why it would be contrary to the child's welfare to remain with the mother in her foster care placement. Pennsylvania also argued that the NPT order established that the court made a CTW determination. However, the documentation submitted in support of the NPT order, a recommendation by the caseworker dated April 24, 1984, is not adequate because there is no evidence that the court actually considered this documentation in issuing either the Shelter Order or the Modified Child Welfare Service Order, both of which are referred to in the NPT order. Pennsylvania also argued that a CTW determination could be inferred because, according to Pennsylvania, the court relied on section 6351 of the Juvenile Act, and that section required a CTW determination. We concluded above that there is no basis for finding such reliance where an order merely finds a child dependent without specifically citing section 6351. Sample No. 82 (Ex. 60) -- eligible See Sample No. 71 (sibling, same documentation). Sample No. 83 (Ex. 71) -- eligible ACF found that this case lacked a CTW determination. Pennsylvania argued that the NPT order established that the court made a CTW determination at the time it issued the March 12, 1984 Shelter Order, and submitted a transcript of the shelter hearing as supporting documentation. There is no dispute that the information in the transcript is sufficient to support a CTW determination. Thus, the transcript corroborates the assertion in the NPT order that a CTW determination was made at the time of the original order. Sample No. 84 (Ex. 72) -- ineligible ACF found that this case lacked both a CTW and a RE determination. ACF erroneously found that a CTW determination should have been included in the July 20, 1988 Attachment Order instead of the August 26, 1988 Placement Order. We concluded above that an attachment order should be treated like a shelter order, which need not include a CTW determination. The Placement Order contains an express CTW determination. Pennsylvania argued that a RE determination may be inferred because, according to Pennsylvania, the court relied on section 6351 of the Juvenile Act and that section required a RE determination. We concluded above that there is no basis for finding such reliance where an order merely finds a child dependent without specifically citing section 6351. Sample No. 86 (Ex. 74) -- ineligible ACF found that this case lacked both a CTW and a RE determination. ACF erroneously found that a CTW determination should have been included in the February 12, 1988 Shelter Order instead of the March 30, 1988 Modified Placement Order. The latter order contains an express CTW determination. Pennsylvania argued that the NPT order established that a RE determination was made, and submitted the transcript of the February 12, 1988 shelter hearing as supporting documentation. However, the NPT order does not purport to correct the Shelter Order, but refers instead to a March 4, 1988 review hearing. Thus, the transcript does not corroborate the assertion in the NPT order that a RE determination was made at the time the Shelter Order was issued. Pennsylvania also argued that a RE determination may be inferred because, according to Pennsylvania, the court relied on section 6351 of the Juvenile Act and that section required a RE determination. We concluded above that there is no basis for finding such reliance where an order merely finds a child dependent without specifically citing section 6351. Sample No. 88 (Ex. 75) -- ineligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the December 18, 1981 Miscellaneous Order/Shelter Order instead of the January 22, 1982 Miscellaneous Order/Final Order. There is no CTW determination on the face of the latter order. Pennsylvania argued that a CTW determination may be inferred pursuant to the Livingston memorandum. However, this case does not qualify for application of the Livingston memorandum because the Miscellaneous Order/Final Order does not refer to a petition. Pennsylvania also argued that a CTW determination may be inferred because, according to Pennsylvania, the court relied on section 6351 of the Juvenile Act and that section required a CTW determination. We concluded above that there is no basis for finding such reliance where an order merely finds a child dependent without specifically citing section 6351. Sample No. 89 (Ex. 76) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the August 21, 1979 Miscellaneous Order/Attachment Order instead of the January 30, 1980 Modified Child Welfare Service Order. We concluded above that an attachment order should be treated like a shelter order, which need not contain a CTW determination. There is no CTW determination on the face of the Modified Child Welfare Service Order. However, a CTW determination may be inferred pursuant to the Livingston memorandum. The Modified Child Welfare Service Order refers to a petition. A petition with an illegible handwritten date but date-stamped August 29, 1979, alleges that the family had been evicted from their home and that the child reported to police that he and his family had been living in a van. ACF did not argue that the petition did not state a reasonable basis for making a CTW determination. We find that this is the petition granted by the order since this is the only petition noted on the docket sheet. Sample No. 90 (Ex. 77) -- ineligible ACF found that this case lacked a CTW determination. Pennsylvania argued that ACF erroneously found that a CTW determination should have been included in the January 13, 1987 Shelter Order instead of a June 8, 1988 decree terminating parental rights. However, the Title IV-E Foster Care Eligibility Checklist for this sample case shows that there was an earlier dispositional order, which should have included a CTW determination. Moreover, even if there was no prior dispositional order, Pennsylvania did not present any evidence as to when judicial proceedings leading to the June 8, 1988 order were initiated. Since this order was issued nearly a year and a half after the date of the child's removal (which presumably took place within a few days of the date of the Shelter Order), it is questionable whether judicial proceedings were initiated within six months of the date of the child's removal. Sample No. 91 (Ex. 78) -- eligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the September 8, 1982 Miscellaneous Order/Shelter Order instead of the October 22, 1982 Child Welfare Service Order. There is no CTW determination on the face of the latter order. However, a CTW determination may be inferred pursuant to the Livingston memorandum. The Child Welfare Service Order refers to a petition. The petition in the record, which is undated but date-stamped September 13, 1982, alleges that the child had been hospitalized after being thrown off a third story balcony by his mother. ACF did not argue that the petition did not state a reasonable basis for making a CTW determination. We find that this is the petition granted by the order since this is the only petition noted on the docket sheet. Sample No. 94 (Ex. 80) -- eligible ACF found that this case lacked both a CTW and a RE determination. ACF erroneously found that a CTW determination should have been included in the April 21, 1989 Shelter Order instead of the May 10, 1989 Placement Order. The latter order contains an express CTW determination. Pennsylvania argued that a RE determination may be inferred pursuant to the Livingston memorandum notwithstanding the fact that the child entered care after October 1, 1986. We concluded above that such cases did not qualify for application of the Livingston memorandum. Pennsylvania also submitted two NPT orders (one of which refers to the shelter order and one of which refers to the placement hearing) and argued that they established that the court made a RE determination. Pennsylvania said that it provided contemporaneous documentation in support of the NPT orders. However, the only document in the record other than the orders is an April 26, 1989 petition. This documentation is not adequate because there is no evidence that the court actually considered the petition in issuing either the Shelter Order or the Placement Order referred to in the NPT orders. Although Pennsylvania did not provide adequate supporting documentation for the NPT order, the judge states in the order that he reviewed notes he made contemporaneously with the April 21, 1989 hearing, and that, according to the notes, testimony was presented to show that the mother was incarcerated and that no other relatives were available to care for the newborn child. Based on this, the judge could have determined that there was an emergency situation in which the lack of efforts to prevent the child's removal from home was reasonable. Thus, the notes corroborate the assertion in the NPT order that a RE determination was made at the time of the original order. Since the judge attested to the existence of his own contemporaneous notes, we conclude that there is sufficient evidence of a timely RE determination. Sample No. 95 (Ex. 81) -- ineligible ACF found that this case lacked both a CTW and a RE determination. ACF erroneously found that a CTW determination should have been included in the October 14, 1988 Detention Order instead of the November 7, 1988 Commitment Order. The latter order states that the child "is in need of treatment, supervision, and rehabilitation." We concluded above that this language constitutes a CTW determination. Pennsylvania argued that a RE determination could be inferred from a document captioned "Statement of Facts and Reasons Accompanying the Detention/Continued Detention of a Child by a Judge or Master Prior to Adjudication," dated October 14, 1988. (We assume for purposes of this discussion that this document constituted a judicial determination since it was signed by a judge or master and Pennsylvania contended that a master was a judicial officer under Pennsylvania law.) The "Statement" identifies the alternatives to "secure detention" which were considered and rejected, including "parent(s)/guardian(s)" and "in- home detention," and states that the alternatives are not appropriate because "child is charged of residence plus" (sic). Pennsylvania argued that this constituted a finding that the lack of efforts to prevent removal was reasonable. However, since the reason given in the "Statement" for rejecting the alternatives to removal is unintelligible, we cannot conclude that the court made this determination. Pennsylvania also argued that a RE determination may be inferred because the court specifically relied on a provision of the Juvenile Act requiring a RE determination. We concluded above that the provision cited by Pennsylvania, section 6352, does not require a RE determination. Sample No. 96 (Ex. 82) -- ineligible ACF found that this case lacked both a CTW and a RE determination. ACF erroneously found that a CTW determination should have been included in the July 7, 1989 Shelter Order instead of the August 18, 1989 Placement Order. The latter order contains an express CTW determination. Pennsylvania argued that a RE determination may be inferred because, according to Pennsylvania, the court relied on section 6351 of the Juvenile Act and that section requires a RE determination. We concluded above that there is no basis for finding such reliance where an order merely finds a child dependent without specifically citing section 6351. Sample No. 97 (Ex. 83) -- ineligible ACF found that this case lacked a CTW determination. ACF erroneously found that a CTW determination should have been included in the May 26, 1989 Shelter Order instead of the July 7, 1989 Review Order. There is no CTW determination on the face of the latter order. Pennsylvania argued that the NPT order established that a CTW determination was made, and submitted as supporting documentation a document captioned "Service Documentation," apparently prepared by a caseworker on May 24, 1989. However, this document is not adequate because there is no evidence that the court actually considered it in issuing either the Shelter Order or the Review Order referred to in the NPT order. Pennsylvania argued that a CTW determination could be inferred because, according to Pennsylvania, the court relied on section 6351 of the Juvenile Act and that section required a CTW determination. We concluded above that there is no basis for finding such reliance where an order merely finds a child dependent without specifically citing section 6351. Sample No. 98 (Ex. 84) -- ineligible ACF found that this case lacked both a CTW and a RE determination. ACF erroneously found that a CTW determination should have been included in the June 22, 1989 Shelter Order instead of the later dispositional order. However, the only other order in the record is a July 21, 1989 Review Order which contains no CTW determination. Pennsylvania argued that a RE determination may be inferred because, according to Pennsylvania, the court relied on section 6351 of the Juvenile Act and that section requires a RE determination. We concluded above that there is no basis for finding such reliance where an order merely finds a child dependent without specifically citing section 6351. Sample No. 99 (Ex. 85) -- ineligible ACF found that this case lacked both a CTW and a RE determination. ACF erroneously found that a CTW determination should have been included in the September 1, 1989 Shelter Order instead of the October 26, 1989 Placement Order. The latter order contains an express CTW determination. Pennsylvania argued that a RE determination could be inferred from a document captioned "Statement of Facts and Reasons Accompanying the Detention/Continued Detention of a Child by a Judge or Master Prior to Adjudication," dated September 20, 1989. (We assume for purposes of this discussion that this document constituted a judicial determination since it was signed by a judge or master and Pennsylvania contended that a master was a judicial officer under Pennsylvania law.) The "Statement" identifies the alternatives to "secure detention" which were considered and rejected, including "parent(s)/guardian(s)" and "in- home detention," and states that the alternatives are not appropriate because of "Serious Nature." Pennsylvania argued that this constituted a determination that the lack of efforts to prevent removal was reasonable. However, since the reason given in the "Statement" for rejecting the alternatives to removal is unclear and incomplete, we cannot conclude that the court made this determination. Pennsylvania also argued that a RE determination may be inferred because the court specifically relied on a provision of the Juvenile Act requiring a RE determination. We concluded above that the provision cited by Pennsylvania, section 6352, does not require a RE determination. Sample No. 100 (Ex. 86) -- eligible ACF found that this case lacked both a CTW and a RE determination. Pennsylvania argued that the NPT order established that the court made these determinations in the dispositional order. The NPT order refers to hearings corresponding to the dates of the two Review Orders in the record, dated June 27, 1989 and July 26, 1989. Pennsylvania submitted only a transcript of the July 26, 1989 hearing as supporting documentation. However, ACF did not dispute that the information in this transcript alone is sufficient to support CTW and RE determinations. Thus, the transcript corroborates the assertion in the NPT order that CTW and RE determinations were made at the time of the original order. Conclusion For the foregoing reasons, we reverse the disallowance to the extent that it pertains to the 58 sample payments which we determine were eligible in addition to the nine sample payments which ACF conceded were eligible. We uphold the disallowance to the extent that it pertains to the 18 sample payments which we determine were ineligible in addition to the seven sample payments which Pennsylvania conceded were ineligible. This decision does not preclude ACF from disallowing the amount claimed for any months prior to the issuance of the dispositional order in cases in which the CTW determination was made in the dispositional order. __________________________ Judith A. Ballard __________________________ M. Terry Johnson ___________________________ Donald F. Garrett Presiding Board Member 1. Pennsylvania also raised questions about ACF's authority to charge interest on the disallowance, the applicable rate of interest, and whether interest charges should be waived. However, in a ruling dated May 27, 1994, the Board found, pursuant to the standard set forth in 45 C.F.R. Part 16, Appendix A, Paragraph G, that it was bound by ACF's opinion that the Board had no jurisdiction to consider any such issues. 2. During the course of the proceedings before the Board, ACF also withdrew some findings of ineligibility as to cases which ACF maintained remained ineligible on other grounds. In addition, ACF made new findings of ineligibility as to some cases which it had already found ineligible. This decision does not identify the findings withdrawn on other grounds nor does it distinguish the new findings from earlier findings. 3. This policy is discussed in detail in California Dept. of Social Services, DAB No. 319 (1982), Reconsideration of Decision No. 319 (December 30, 1982), and Louisiana Dept. of Health and Human Services, DAB No. 580 (1984). 4. Section 553(a)(2) exempts matters relating to grants from these procedural requirements. This exemption would clearly apply to title IV-E funds but for a Federal Register notice adopting section 553 procedures for the Department of Health and Human Services (then the Department of Health, Education and Welfare) grant programs. 36 Fed. Reg. 2532 (Feb. 5, 1971). 5. Pennsylvania cited two additional cases as authority for its argument, discussed later, that the policy in ACYF-PIQ-86-02 concerning documentation of a CTW determination was invalid because it was an unexplained policy change: National Family Planning v. Sullivan, 979 F.2d 227 (D.C. Cir. 1992), and Clinton Memorial Hospital v. Shalala, 10 F.3d 854 (D.C. Cir. 1993). However, both of these cases involve legislative rules and are therefore inapposite here. 6. Although the original disallowance was based directly on the OIG audit, ACF subsequently reviewed OIG's audit workpapers and copies of documents from the files on children for whom the sample payments were made, withdrew the earlier disallowance, and issued a revised disallowance. Since ACF did not rely directly on the OIG determinations regarding Pennsylvania's compliance with the statutory requirements, we need not reach the question of the OIG's authority to conduct program compliance audits. We note in any event that title IV-E is not a regulatory statute like the statute at issue in Burlington. 7. ACF alleged that the documents in question were not intended to support the recommendations in the audit report because they were prepared by the auditors in response to a request by the OIG/OAS Deputy Regional Inspector General to keep a record "for information reasons" of what efforts the state agency made to reunite children with their parents. ACF brief dated 4/29/94, discussion of disputed sample payments at 13. The documents appear to have been prepared in the course of the audit and clearly addressed a matter which was a subject of the audit, however. 8. Pennsylvania also took the position that an attachment order, which authorized the sheriff, bailiff, or any constable of Allegheny County to take the child into custody and to transport the child to a shelter, was a type of shelter order. In some cases, an attachment order was followed by a shelter order. Since the attachment orders were issued without any hearing at which the child's welfare could have been considered, it is clearly appropriate to treat them as shelter orders for purposes of this case. Pennsylvania further argued that "miscellaneous orders and transportation orders can fall under the generic concept of `shelter' orders depending on how they are used by the court." Pennsylvania submission dated 1/3/95, at 1. We conclude that the miscellaneous orders and transportation orders in question here (the contents of which are described in the discussion of the individual sample payments) are properly treated as shelter orders since, like shelter orders, they were issued to authorize the child's physical removal (or the child's continuation in shelter care or detention after initial authorization had been granted) before the court had sufficient information to determine whether placement in foster care was appropriate. 9. The record does not show the date of the child's removal in most cases. However, it is reasonable to assume that the child's removal occurred no more than a few days before the date of the shelter order since Pennsylvania's Juvenile Act requires that a shelter hearing be held within 72 hours of the child's placement in shelter care or detention. 10. The Board also noted that, "[c]onsistent with its view that the voluntary placement agreement was merely an interim measure prior to the issuance of a court order, Pennsylvania claimed FFP only in payments made for the child following the issuance of the court order." DAB No. 1392 at 7. In response to the Board's inquiry concerning the point as of which FFP was claimed in the instant case, Pennsylvania stated that it did not know what Allegheny County's practice was. Pennsylvania response to Board questions, dated 6/10/93, at 1. However, it is clear that any FFP claimed here prior to the month in which the dispositional order containing a CTW determination was issued would not be allowable. Accordingly, in determining the amount of the final disallowance, ACF may require Pennsylvania to establish the date as of which FFP was claimed, and may disallow the amount claimed for any months prior to the issuance of the dispositional order in which the CTW determination was made even if the case is otherwise eligible for FFP. 11. In response to Pennsylvania's request for all policy issuances relating to this issue, ACF cited a number of other policy issuances which were issued prior to the period in question here (fiscal year 1989). However, none of them specifically addresses shelter orders. ACYF-PIQ-91-03, issued after fiscal year 1989, states that a temporary detention order--issued for a child who entered detention through the county probation department--must contain a CTW determination. ACF did not argue that this PIQ should be retroactively applied here, however. 12. However, in several cases, there were one or more "Review Orders" issued before the dispositional order. These orders effectively extended the shelter order. ACF also noted that the dispositional hearings were not always held within the time frame specified in the orders. However, this does not mean that the shelter orders were not short-term orders. Instead, it appears that the shelter orders simply expired at the end of the term specified in them (or, if no term was specified, at the end of the 10 days provided by statute). 13. Pennsylvania also argued that the Model Act for Family Courts, issued by the Office of Youth Development in the Office of Human Development (one of the agencies later merged into ACF) in 1975, did not provide for CTW determinations in shelter orders, and argued that ACF's position that CTW determinations should have been included in shelter orders thus unfairly subjected the states to conflicting requirements. We need not address this issue, however, since there is already ample support for concluding that a CTW determination need not be in the shelter order as opposed to the later dispositional order. 14. According to the August 11, 1986 memorandum, ACYF-PIQ-86-02 "makes clear that a court order that only grants or makes reference to the agency's petition will not be sufficient to meet the requirements of section 472(a)(1). . . . [O]nly if the court order expressly adopts the specific relevant language of the petition and makes clear that a judicial determination has been made, would the petition language, in conjunction with the court order, meet this requirement." 15. ACF also argued that, in most cases, the petition on which Pennsylvania relied was dated after the issuance of the shelter order which removed the child from home, and thus could not be the petition granted by the court. However, as discussed in the preceding section, we conclude that the CTW determination need not have been in the shelter order but could have been in the dispositional order instead. The petitions in question here were dated before the issuance of the dispositional orders. 16. Pennsylvania provided documentation to show that the requirements of the Livingston memorandum were met for one sample case (no. 94) in which the child entered care after October 1, 1986. However, Pennsylvania contended that it should be given the opportunity to provide relevant documentation for other cases should the Board agree that the Livingston memorandum applied where the child entered foster care after October 1, 1986. 17. Under section 472(b) and (c), title IV-E payments are not available for a child who is placed in a "facility operated primarily for the detention of children who are determined to be delinquent." Most of the adjudicated delinquents for whom the sample payments were made were initially placed by a Detention Order in a facility identified as a "detention home" and later committed to another facility. However, ACF did not argue that any child was in an excluded facility during the period for which FFP was claimed or that any other statutory requirement (such as the requirement that the child be placed in foster care as a result of the judicial determination) was not met for reasons related to the fact that the child was adjudicated delinquent. 18. Pennsylvania also pointed out that the Model Act for Family Courts provides that "[i]f a child is found to be delinquent, the court may make any of the following dispositions for his supervision, care and rehabilitation . . . ," including an order placing the child in foster care. Pennsylvania argued that it was therefore unreasonable for ACF to reject the similar language in the court orders in question here as a CTW determination. It is unnecessary to reach this issue here, however. 19. We nevertheless note that ACF maintained that neither the 1982 nor the 1986 version of section 6351 required a RE determination. ACF did not specifically address here whether either version of section 6351 required a CTW determination; however, the Board noted in DAB No. 1392 that ACF did not dispute that the 1982 version of section 6351 required such a determination. See DAB No. 1392, at 11. 20. In DAB No. 1392, the Board further found that the testimony of the judges that they generally issued removal orders in reliance on the provisions of the Juvenile Act requiring a CTW determination "cannot establish what the [Social Security] Act here requires: evidence of a specific finding by the court following evaluation of the facts of the individual case." DAB No. 1392, at 14. Pennsylvania did not present any judges or court officials as witnesses in the instant case. 21. Pennsylvania also contended that section 6352 required a court to make a CTW determination in order to remove a child who was adjudicated delinquent, and that the court relied on this section when it issued an order removing such a child. We do not consider this contention since we concluded above that the language in the court orders themselves constituted an express CTW determination. 22. Similarly, section 6341 of the Juvenile Act provides that, if the court makes an adjudication of delinquency, it shall "hear evidence as to whether the child is in need of treatment, supervision or rehabilitation and . . . make and file its findings thereon." This appears to refer to the same proceeding as section 6352. 23. Another agency issuance, ACYF-IM-89-08, dated April 17, 1989, expanded upon the documentation requirements for NPT orders, indicating that acceptable documentation "could include court transcripts, bench notes or other court documents which, in conjunction with the State agency's report, would confirm that the information was presented to the court and that the judicial determination(s) had been made at the original removal hearing." It also stated that documentation "such as post-hearing affidavits" would not be acceptable. 24. In several other cases, the NPT order stated that the judge had reviewed "documentation prepared contemporaneously with the [hearing]," or "Court records made contemporaneously with the [hearing]," and described the testimony as shown by the documentation or the records. However, there is no basis for concluding that the judge considered the documentation or the records in issuing the original order. Thus, like the NPT orders accompanied by caseworker documents (discussed below), these NPT orders do not fall within the scope of ACYF-IM- 87-28, which permits the use of NPT orders to correct a mistake in the original order, not to supply a determination which the court failed to make in the first instance. 25. The original disallowance letter issued by ACF (later withdrawn and reissued) requested the OIG auditors to recompute the recommended disallowance "removing errors . . . for foster care homes not re-reviewed within one year." Pennsylvania Ex. 1-2. The disallowance letter indicated that this request was based on Pennsylvania's argument, in response to the draft audit report, that a disallowance cannot be taken for a late redetermination of foster home eligibility. Id.; see also Pennsylvania Ex. 2-18 (OIG audit