Legal Accountability In The Service-Based Welfare State .
Law & Social InquiryVolume 34, Issue 3, 523–568, Summer 2009Legal Accountability in theService-Based Welfare State:Lessons from Child WelfareReformlsi 1157523.568Kathleen G. Noonan, Charles F. Sabel, and William H. SimonCurrent trends intensify the longstanding problem of how the rule of lawshould be institutionalized in the welfare state. Welfare programs are beingredesigned to increase their capacities to adapt to rapidly changing conditionsand to tailor their responses to diverse clienteles. These developments challengethe understanding of legal accountability developed in the Warren Court era.This article reports on an emerging model of accountable administration thatstrives to reconcile programmatic flexibility with rule-of-law values. The modelhas been developed in the reform of state child protective services systems, butit has potentially broad application to public law. It also has novel implicationsfor such basic rule-of-law issues as the choice between rules and standards, therelation of bureaucratic and judicial control, the proper scope of judicialintervention into dysfunctional public agencies, and the justiciability of “positive” (or social and economic) rights.INTRODUCTIONRecent trends in welfare systems in America and abroad intensify longstanding uncertainties about how rule-of-law values apply in these systems.Kathleen Noonan is Managing Director, PolicyLab, Children’s Hospital of Philadelphia.Contact: noonank@email.chop.edu.Charles F. Sabel is Maurice T. Moore Professor of Law, Columbia University. Contact:cfs11@columbia.edu.William H. Simon is Arthur Levitt Professor of Law, Columbia University. Contact:wsimon@law.columbia.edu.The authors are grateful to many people for advice and encouragement, including RichardAnderson, Stephen Cohen, Navina Forsythe, Barbara Fried, Ivor Groves, Jonathan Lipson,Jerry Mashaw, Brad McGarry, Sherry Orbach, Carol Spigner, Jane Spinak, George Taylor, PaulVincent, and Michael Wald. 2009 American Bar Foundation.523
524 LAW & SOCIAL INQUIRYPrograms that once focused on financial redistribution increasingly link transfer payments to services, and services are increasingly customized to the needsof individual recipients. The move to services is driven by the perception thattransfer payments alone do not induce (and may inhibit) the development ofskills that permit self-sufficiency. The move to individuation is driven in partby a conception of fairness that mandates response to “difference” in people’svalues and circumstances and by the perception that these circumstances aremore fluid than they have been in the past (Handler 2004).As the welfare state becomes more individuating and more adaptive, itthreatens to undermine the awkward compromise between rule-of-law valuesand welfare state practices worked out in the Warren Court years and theiraftermath. Two key features of that compromise were (1) the idea of a balancebetween relatively rigid rules to govern the conduct of low-status frontlineworkers and relatively flexible standards to govern the conduct of professionals, and (2) the idea of coordination between a bureaucratic accountabilitysystem for routine cases and a quasi-judicial accountability system for cases inwhich beneficiaries protest their treatment (Simon 1984). In addition, thecompromise distinguished two modes of court intervention into the administrative system—routine discrete intervention focused on particular practices or narrow norms and extraordinary systemic intervention designed torestructure entire programs (Chayes 1976).The core tendencies of the new programs put these arrangements underpressure. The need to customize and adapt makes rules an ineffective meansof controlling discretion. Effective review of frontline efforts routinelyrequires the type of beneficiary participation that the old regime reserved forcases in which beneficiaries complained. Because the emerging systeminvolves more complex coordination and more frequent adjustment, judicialreview of discrete judgments and practices seems less practicable.Yet, at the same time they create new pressures, current developmentssuggest new opportunities. In this article, we explore the possibility of a noveland promising accommodation of rule-of-law values and the new welfarestate. We focus on developments in child protective services, especially inAlabama and Utah. Child protective services may seem an unlikely realm inwhich to discover rule-of-law success. Doctrinally, the field is dominated byvague standards such as “substantial risk of harm” that connote uncabinablediscretion. Institutionally, the field has been associated with chaos, oppression, and tragic ineffectiveness. As we elaborate in Part I, a series of majorfederal statutory initiatives failed to impose order on the state-run systems. Inat least thirty states, courts have found or defendants have conceded systemicnoncompliance with constitutional or statutory requirements on a scale warranting structural intervention (ABA Center on Children and the Law 2005,1). However, some of these interventions have made progress, and the modelwe find promising has emerged in a handful of states. It may be because thesesystems have been so deeply broken that they have lent themselves to
Legal Accountability in the Service-Based Welfare State 525relatively radical experimentation. Or perhaps because child welfare hasalways been committed in principle to the individuation and adaptability that has only recently characterized the welfare state generally, it hasproven fertile ground for innovation that combines these qualities withaccountability.Our aims are twofold. First, in Parts II and III, we report on the consolidation of a distinctive model of child welfare administration and suggestthat it promises improved performance (though we have only impressionisticevidence for this promise). Some elements of this model have been themes inchild welfare discussion for many years, but one represents an importantinnovation—a process of diagnostic monitoring called the Quality ServiceReview (QSR). The QSR is an important contribution to the approach topublic administration we call “experimentalist”—an approach that seeks toinduce continuous reconsideration of a system’s norms in the course of monitoring compliance with them (Dorf and Sabel 1998; Sabel 1995; Simon2006).Second, especially in Part IV, we draw attention to the jurisprudentialproperties of this model and argue that they complicate the longstandingdebates about the rule of law in the welfare state and suggest possible resolutions of those debates. The Alabama-Utah model suggests a response to thequestion of the optimal specificity of legal norms—rules versus standards—that combines the accountability associated with rules with the contextualization associated with standards. It is also pertinent to the choice betweenbureaucratic and adjudicatory modes of administrative control. The centralprocess in this model combines features of both bureaucracy and adjudicationin ways that have been occasionally called for but rarely observed in theliterature on legal accountability in the welfare system (see Handler 1986).Furthermore, Alabama and Utah have implications for the debate overthe proper scope of judicial intervention into chronically underperformingpublic institutions (Chayes 1976; Sabel and Simon 2004). Reform in thesestates emerged from judicial decrees mandating broad institutional form; yet,in each case the court and the parties avoided the rigidification and arbitrariness associated with “command-and-control” type judicial intervention.Finally, the reforms we discuss have implications for the debate over thenature of welfare rights. Legal tradition makes a basic distinction between“negative rights” to be free from state interference and “positive” rights tostate assistance. Theory is often torn between, on the one hand, the insightthat any strong version of this distinction seems arbitrary in the light of therelative importance of the social interests that a modern legal system shouldprotect and, on the other hand, recognition that the traditional notions ofright do not seem fully generalizable to the welfare system. But the reforms wedescribe resonate with a conception of legal right that is responsive to theinterests created by the modern welfare state and capable of effective institutionalization across the legal system. The conception has been observed in
526 LAW & SOCIAL INQUIRYthe jurisprudence of the South African Constitutional Court (Tushnet 2003),which sees welfare rights as connoting, most fundamentally, entitlementnot to a particular outcome or benefit but to a process in which the relationbetween the claimant’s interests and the values underpinning the relevantpublic programs can be fairly and effectively considered. The Alabama-Utahmodel is richly suggestive as to how this notion of rights, only vaguelyinvoked in the celebrated South African cases, might be elaborated.I.THE STRUGGLE FOR CHILD PROTECTIONThe Federal Response to Abuse and NeglectAbused and neglected children were identified as a social problem at theend of the nineteenth century by lay philanthropies, most notably a group oflocal Societies for the Prevention of Cruelty to Children (SPCC), the bestknown of which were in New York and Boston. They gradually evolved twocompeting perspectives. The “rescue” perspective, associated with the NewYork SPCC, emphasized intervention and removal of children from homeswith abusive or neglectful parents, typically to institutions. The “preventive”approach, associated with the Boston SPCC, emphasized in-home supportthrough social services and material assistance (Costin, Karger, and Stoesz1996).The public assistance titles of the Social Security Act of 1935 created afederal program of grants-in-aid to the states to support income maintenanceand social services for “dependent children.” Foster care, one of the federallysupported services available through welfare workers, evolved into a routineresponse to severe family problems, including abuse and neglect.Concern about child abuse and neglect intensified in the 1960s and1970s when the term “battered-child syndrome” was introduced into medicaldiagnosis. The federal Child Abuse Prevention and Treatment Act of 1974created a federal system for collecting data on child abuse, promulgated amodel state reporting statute, and directed federal money to state programsprotecting at-risk children. Reported and documented instances of abusesoared. So did foster care placements.A “preservationist” reaction soon emerged, as did a general impressionthat the system was out of control. Critics complained that children werearbitrarily and unnecessarily removed to foster care. Once there, they mightbe shifted repeatedly from placement to placement, or simply left alonewithout monitoring and reassessment. Investigations showed shockingadministrative disarray in the state systems; many simply could not account atall for large numbers of children that they had taken charge of. And evenwhen child welfare agencies were minimally accountable, the routinizednature of their responses was cause for concern; in practice, workers used a
Legal Accountability in the Service-Based Welfare State 527very small menu of interventions that took little account of particularcircumstances (Garrison 1987).In 1980, Congress overhauled the child protection regime with theAdoption Assistance and Child Welfare Act (AACWA), which set conditions for federal grants for child welfare services, including foster care,adoption, and family support. The act, as frequently amended, continues toprovide the basic federal framework.Substantively, AACWA declares “permanency” as the predominant goalfor children in state care. It also mandates priority for natural family preservation and, where that is not possible, for adoption rather than foster care,and for any kind of family care rather than institutional care.Procedurally, AACWA, since 1980, has prescribed the kind of individuated attention that has become a central goal of most welfare programs.The caseworker, for example, must prepare a “case plan” for each foster careplacement that explains how the permanency and other goals of the statute arebeing met. The plan draws on an array of services; the record must documentthe “appropriateness” of the services provided, and the child’s circumstancesand the plan must be reviewed “periodically but no less frequently than everysix months” (AACWA, 42 U.S.C. sections 671(a)(16), 675(1)).Case work is conceived as a process of “coordination” and “collaboration” among stakeholders (parents, caregivers, and children), professionals,and institutions. States are encouraged or mandated to create “multidisciplinary teams”; to “collaborate . . . with families”; to enhance the ability of“community-based programs to integrate shared leadership strategies withparents and professionals”; to “enhance interagency collaboration betweenthe child protection system and the juvenile justice system”; to support“collaboration among public health agencies, the child protection system,and private community-based programs”; and to foster “cooperation of Statelaw enforcement officials, courts of competent jurisdiction, and appropriateState agencies providing human services” in responding to abuse and neglect(42 U.S.C. sections 5102a(a), 5106(b)(2)(xi)).The dialectic of “rules” (rigid and specific norms) and “standards” (flexible and vague ones) has been a prominent theme in the AACWA. The 1980text embraced family preservation through a standard—states were requiredto make undefined “reasonable efforts” to avoid removing a child from hisnatural parents, and where removal was necessary, to reunify the family (42U.S.C. section 671(a)(10)). In 1997, Congress retreated somewhat frompreservation. The use of foster care, which initially declined after 1980, wastrending upward again. An important influence was the increase in seriousabuse and neglect cases associated with the epidemic of crack cocaine.Another was the reappraisal of the “preservation” model, in part as a result ofresearch failing to confirm its presumption that children would usually farebetter if kept in their own families with supportive services than if moved tofoster care (Garrison 2005).
528 LAW & SOCIAL INQUIRYApparently fearing that the “reasonable efforts” standard was beingtreated as a virtually irrebutable presumption, Congress, in the Adoption andSafe Families Act of 1997 (ASFA), made an explicit exception to the duty topursue reunification for situations where such efforts would impede permanency or where there were “aggravated circumstances” such as violence orsexual abuse. In order to facilitate adoption, ASFA also mandated that statesinitiate termination of parental rights whenever a child has been in foster carefor fifteen of the most recent twenty-two months (AACWA, 42 U.S.C. section675(5)(e)). Thus, Congress initially prescribed a standard, then perceived thatit was being treated like a rule strongly favoring reunification, and so pulledback by prescribing an explicit rule limiting reunification efforts. Not surprisingly, the ASFA twenty-two-month rule is now criticized as pointlessly rigidifying the process, especially for the large number of long-term foster carechildren who have minimal prospect of adoption (Ross 2003; Stack 2005).The dialectic of bureaucratic and adjudicatory control is also prominent.The original legislation emphasized judicial modes of accountability. Congress mandated as early as 1974 that children have a representative (inpractice, often a lawyer) in any removal proceeding (AACWA, 42 U.S.C.section 5106a(b)(2)(13)). In 1980, AACWA required that the states provide a “fair hearing” procedure for parents or caregivers who claimed theyhad been improperly refused services under the act (42 U.S.C. section671(a)(12)). Most importantly, AACWA sought to make the juvenile orfamily court a key monitor of administrative compliance. The appropriatenessof the “case plan” must be judicially reviewed at least once every six months.There must be a judicial “permanency” hearing within twelve months ofremoval of a child and at least annually thereafter. And removal of a childrequires a judicial determination that the “reasonable efforts” at reunificationrequired by the statute have been made (42 U.S.C. sections 672a(2)(A)(ii);675(5)(B), 675(5)(E)(iii)).However, expectations for quasi-judicial and judicial oversight havebeen disappointed. Representatives for the child can play important roles insituations of high-stakes disputes, such as contested terminations of parentalrights. But they typically have high caseloads—100 to 150—and thereforecannot often play an active role in routine decision making. “Fair hearing”systems are not a significant influence in most states. Beneficiaries are notaware of them, the systems have few resources, and they have little influencebeyond a small number of cases. Most cases come before the courts, but judgestypically lack the knowledge, the resources, or the inclination to undertakesearching review. Despite the AACWA requirement that judges must determine that “reasonable efforts” are being made in any permanency hearing, a1989 study found that no such determination was made in 44 percent of thecases (Guggenheim 2005, 189; Huntington 2006).Moreover, judges who take their oversight responsibilities seriouslyfeel constrained by the limits of case-by-case intervention. They can order
Legal Accountability in the Service-Based Welfare State 529additional analysis, reject proposed placements, and mandate services, but theefficacy of these alternatives depends on the larger system. Where workers areoverwhelmed, available placements tend to be unsatisfactory, and serviceoptions are narrow, judges may accept as “reasonable” efforts that would notbe reasonable in a more adequate system.In the 1990s, Congress turned to bureaucratic control. Statutes had longobliged the states to report a broad range of data on their child welfareactivities, and the Administration for Children and Families of the Department of Health and Human Services had long been charged with monitoringstate compliance with federal statutory requirements. Congress now sought toaugment and reorient such conventional monitoring in two ways. First, thestate (if it accepts certain federal support) must establish “citizen reviewpanels” (AACWA, 42 U.S.C. section 5106(a)). The panels, composed ofvolunteers, including some with expertise in child welfare, are to review theoverall performance of the child protection agencies in the light of thestatutory goals and make an annual public report. The state must also arrangefor an “independently conducted audit of its programs at least every threeyears” (42 U.S.C. section 671(a)(13)).Second, and most importantly, Congress mandated what has come to beknown as Child and Family Service Review (CFSR). Reflecting growingdissatisfaction with “command-and-control” regulation, amendments soughtto move federal oversight from a “compliance” orientation, in which successis measured by conformity to rule toward a “performance” orientation, inwhich the focus is on achievement of goals. In this spirit, the statute directsthe Secretary of Health and Human Services (HHS) to develop a system offederal review based on “outcome measures” that “rate” state performancesand examines “the reasons for high performance and low performance” (42U.S.C. section 679b).1Yet, for the most part, these initiatives have not borne fruit. “Citizenreview” panels have been formed, but they meet only erratically and oftenlack expertise and access to information. HHS’s initial efforts at outcomeoriented review were fumbling and often arbitrary (National Coalition forChild Protection Reform 2003). There are some indications that they haverecently improved but only after they were reconceived along the linespioneered i
Service-Based Welfare State: Lessons from Child Welfare Reform lsi_1157 523.568 Kathleen G. Noonan, Charles F. Sabel, and William H. Simon Current trends intensify the longstanding problem of how the rule of law should be institutionalized in the welfare st
May 02, 2018 · D. Program Evaluation ͟The organization has provided a description of the framework for how each program will be evaluated. The framework should include all the elements below: ͟The evaluation methods are cost-effective for the organization ͟Quantitative and qualitative data is being collected (at Basics tier, data collection must have begun)
Silat is a combative art of self-defense and survival rooted from Matay archipelago. It was traced at thé early of Langkasuka Kingdom (2nd century CE) till thé reign of Melaka (Malaysia) Sultanate era (13th century). Silat has now evolved to become part of social culture and tradition with thé appearance of a fine physical and spiritual .
Dr. Sunita Bharatwal** Dr. Pawan Garga*** Abstract Customer satisfaction is derived from thè functionalities and values, a product or Service can provide. The current study aims to segregate thè dimensions of ordine Service quality and gather insights on its impact on web shopping. The trends of purchases have
On an exceptional basis, Member States may request UNESCO to provide thé candidates with access to thé platform so they can complète thé form by themselves. Thèse requests must be addressed to esd rize unesco. or by 15 A ril 2021 UNESCO will provide thé nomineewith accessto thé platform via their émail address.
̶The leading indicator of employee engagement is based on the quality of the relationship between employee and supervisor Empower your managers! ̶Help them understand the impact on the organization ̶Share important changes, plan options, tasks, and deadlines ̶Provide key messages and talking points ̶Prepare them to answer employee questions
Chính Văn.- Còn đức Thế tôn thì tuệ giác cực kỳ trong sạch 8: hiện hành bất nhị 9, đạt đến vô tướng 10, đứng vào chỗ đứng của các đức Thế tôn 11, thể hiện tính bình đẳng của các Ngài, đến chỗ không còn chướng ngại 12, giáo pháp không thể khuynh đảo, tâm thức không bị cản trở, cái được
Food outlets which focused on food quality, Service quality, environment and price factors, are thè valuable factors for food outlets to increase thè satisfaction level of customers and it will create a positive impact through word ofmouth. Keyword : Customer satisfaction, food quality, Service quality, physical environment off ood outlets .
Le genou de Lucy. Odile Jacob. 1999. Coppens Y. Pré-textes. L’homme préhistorique en morceaux. Eds Odile Jacob. 2011. Costentin J., Delaveau P. Café, thé, chocolat, les bons effets sur le cerveau et pour le corps. Editions Odile Jacob. 2010. Crawford M., Marsh D. The driving force : food in human evolution and the future.
