Full opinion text
KEETON, District Judge: This class action tests the jurisdiction and competence of the court to provide a remedy for a case of human tragedy. Simply and candidly stated, the facts are that children have suffered unspeakable injuries to body and spirit. They have suffered, it is true, because of circumstances beyond the reach of the most benign and effective protection any government has ever afforded. But, as well, children have suffered because state officials charged with protecting them have fallen short of what they undertook to do. In the motion now before the court, plaintiffs seek relief designed to bring Massachusetts’ foster care system into compliance with federal requirements the Commonwealth promised to fulfill as a condition of receiving federal funding. As to this request, however sufficient the plaintiffs’ proof and the court’s jurisdiction may appear, the stark reality is that judicial power to give effect to rights created by Congress is meager. No doubt a primary factor in the failure of protection of victimized children has been limited resources. And yet, ironically, the only relief the court can award is an order compelling state officials to give up some of those resources — funds appropriated by Congress — if federal requirements are not met. Thus, it may be that the only remedy the court can provide is a remedy that we shall later know to have been worse than none, and yet a remedy the court must grant when sought by persons legitimately entitled to demand it. I. In August of 1978, plaintiffs brought this action on behalf of themselves and a class later certified by the court, alleging that Massachusetts’ system for providing foster care and child welfare services violates the due process clause of the Fourteenth Amendment, the Social Security Act (codified at 42 U.S.C. §§ 601 et seq.), and regulations promulgated by the Secretary of Health and Human Services (“the Secretary”). The case is currently before the court on plaintiffs’ motion for a preliminary injunction, filed on August 7, 1981. Hearings on plaintiffs’ motion, at which plaintiffs and defendants presented evidence, were held intermittently commencing on August 13,1981 and terminating on June 9, 1982. Plaintiffs and defendants subsequently filed several written submissions. The court now grants, in part, the preliminary injunction sought by plaintiffs. This opinion sets forth findings of fact and conclusions of law. At the outset, it is important to determine which of the many provisions of the Social Security Act and implementing regulations cited in various submissions by plaintiffs are now before the court as bases of claims for preliminary relief. Plaintiffs’ complaint, alleging generally in paragraph 1 “defendants’ failure to comply with ... 42 U.S.C. §§ 608, 625 and 45 C.F.R. §§ 220.1 et seq.,” asserts causes of action under the provisions codified at 42 U.S.C. § 608 and 45 C.F.R. §§ 1392.40, 1392.-40(b)(3), 1392.3, and 1392.5. See ¶¶ 80-86. Elsewhere in the complaint, plaintiffs indicate that the specific regulatory provisions upon which they rely are 45 C.F.R. §§ 1392.40(b)(3), 1392.5(a), 1392.3(b), and 1392.10. See ¶ 38. In the memorandum of June 9, 1981, the court, in considering defendants’ motion to dismiss, examined only plaintiffs’ claims under 42 U.S.C. § 608 and 45 C.F.R. §§ 1392.40(b)(3), 1392.5(a), 1392.-3(b), and 1392.10. With respect to plaintiffs’ claims of entitlement to “services,” the court concluded that, of the provisions examined, only 42 U.S.C. § 608 and 45 C.F.R. § 1392.40(b)(3) serve as proper bases for these claims by creating rights enforceable in an action under 42 U.S.C. § 1983. See June 9, 1981 Memorandum and Order, at 18. At that time, however, the court did not consider the effect on plaintiffs’ claims of the Adoption Assistance and Child Welfare Act of 1980 (“the 1980 Act”), Pub.L. No. 96-272, 94 Stat. 518 (1980). In their motion for preliminary injunction filed August 7, 1981, plaintiffs claim under a regulation, 45 C.F.R. § 1392.92, not cited in their complaint and not examined in the memorandum of June 9, 1981. In submissions filed after the close of the hearings on plaintiffs’ motion for preliminary injunction, plaintiffs seek to rely on additional provisions neither referred to in their complaint nor previously examined by the court. See, e.g., Plaintiffs’ Proposed Order, June 15, 1982; July 26, 1982 Letter accompanying Plaintiffs’ Opposition to Defendants’ Motion. Although they indicated in their most recent submission that they would do so, see Plaintiffs’ Memorandum in Response to the Court’s Procedural Order, at 2, plaintiffs have not filed a motion to amend their complaint to include causes of action under the provisions, other than 42 U.S.C. § 608 and 45 C.F.R. § 1392.40(b)(3), cited in their submissions filed after June 9, 1981. Defendants have objected to plaintiffs’ assertion of rights to relief under any provisions other than 42 U.S.C. § 608 and 45 C.F.R. § 1392.40(b)(3). In these circumstances, I conclude that it is appropriate, for purposes of the current motion, to consider only claims under 42 U.S.C. § 608 and 45 C.F.R. § 1392.40(b)(3). As explained more fully below, however, see parts IV.A, V.A., infra, because of special problems created by the amendments effected by the 1980 Act, I will also consider provisions in Title IV-B (42 U.S.C. §§ 621 et seq.) and Title IV-E (42 U.S.C. §§ 671 et seq.) that contain requirements analogous to those found in 42 U.S.C. § 608 and 45 C.F.R. § 1392.40(b)(3). Plaintiffs are, of course, free to file, before the trial on the merits in this case, a motion to amend their complaint to state claims under any statutory provisions or regulations not considered here. II. In the First Circuit, a plaintiff seeking a preliminary injunction bears the burden of satisfying four criteria: (1) that plaintiff will suffer irreparable injury if the injunction is not granted; (2) that such injury outweighs any harm which granting injunctive relief would inflict on the defendant; (3) that plaintiff has exhibited a likelihood of success on the merits, and (4) that the public interest will not be adversely affected by the granting of the injunction. Massachusetts Association for Retarded Citizens v. King, 668 F.2d 602, 607 (1st Cir. 1981), quoting Massachusetts Coalition of Citizens v. Civil Defense Agency, 649 F.2d 71, 74 (1st Cir.1981). Each of these criteria, with respect to plaintiffs’ claims under 42 U.S.C. § 608 and 45 C.F.R. § 1392.40(b)(3) and relevant analogous provisions, is considered below. III. Claims Under 42 U.S.C. § 608 A. Likelihood of Success on the Merits Plaintiffs allege that defendants have violated 42 U.S.C. § 608 by ... failing to develop and periodically review service plans and by failing to provide social services to prevent the initial or on-going need for foster care and/or to improve conditions in natural homes ... Plaintiffs’ Complaint, ¶ 80; and by ... failing to provide adequate numbers of trained and qualified social workers to evaluate plans, to develop and review service plans and to provide social services Plaintiffs’ Complaint, ¶ 82. 42 U.S.C. § 608 is part of Title IV-A, establishing the Aid to Families with Dependent Children-Foster Care program (“AFDG-FC”), which is one component of the Aid to Families with Dependent Children program (“AFDC”) created by the Social Security Act. In King v. Smith, the Supreme Court summarized the legal framework of AFDC as follows: The AFDC program is based on a scheme of cooperative federalism ... States are not required to participate in the program, but those which desire to take advantage of the substantial federal funds available ... are required to submit an AFDC plan for the approval of the Secretary [of Health and Human Services] ... The plan must conform with several requirements of the Social Security Act and with rules and regulations promulgated by [the Secretary], 392 U.S. 309, 316-17, 88 S.Ct. 2128, 2133, 20 L.Ed.2d 1118 (1968) (citations omitted). 42 U.S.C. § 602(a) requires that “a State plan for aid and services to needy families with children ... (20) ... provide for aid to families with dependent children in the form of foster care in accordance with section 608 of this title.” Section 608 limits federal payments for such aid to those states “whose State plan approved under section 602 of this title— (e) includes aid for any child described in paragraph (a) of this section, and (f) includes provision for (1) development of a plan for such child (including periodic review of the necessity for the child’s being in a foster family home or child care institution) to assure that he receives proper care and that services are provided which are designed to improve the conditions in the home from which he was removed or to otherwise make possible his being placed in the home of a relative specified in section 606(a) of this title . . . As noted above, the court concluded in the June 9, 1981 Memorandum and Order that 42 U.S.C. § 608 creates rights enforceable by plaintiffs in an action brought under 42 U.S.C. § 1983. In this opinion the court is called upon to define the scope of the rights secured by section 608(f), to determine whether plaintiffs have proved violations of those rights sufficient to justify preliminary relief, and, if so, to fashion an appropriate remedy. As might be expected, plaintiffs and defendants hold differing views of the obligations imposed on the Commonwealth, under section 608(f), as a condition of receiving federal funding. Three components of section 608(f) are in dispute: (1) what is necessary to fulfill the requirement of development of a “plan” to assure that the foster child receives proper care and that services are provided designed to improve the conditions in the child’s original home; (2) whether the state must provide services designed to ensure proper care for the child and to improve conditions in the child’s original home, as part of the requirement of the plan; and (3) what is required to satisfy the mandated periodic review. 1. Requirements of Section 608(f) (a) The Plan As to what is required to comply with section 608(f)’s requirement of a “plan” (“case plan”), plaintiffs and defendants disagree about both the form and the content the plan must take. Defendants argue that the case plan need not be maintained in any particular form, indeed that it need not even be in writing. They urge the court to adopt, as a framework of analysis, the description of a service or “case plan” set forth in Florida v. Mathews, 422 F.Supp. 1231 (D.D.C.1976): There was a service plan concept in the federal social services program for many years. No specific format or definition of a service plan was provided by HEW and state practice varied widely. The concept of a service plan involves the identification of a goal to be achieved by the provision of service to a person with a problem. There need be no single document or series of documents establishing a service plan, although this is not precluded. There need be no special study, as had been commonly employed in the past and which some states continued to utilize for AFDC cases. A service plan is often inferred from the course of dealings between the recipient and the service worker or provider. A service plan was to aid in identifying the services needed by a recipient and to facilitate the provision of those services. It is a technique for expanding service delivery. Id, at 1235. Plaintiffs, on the other hand, contend that section 608(f) should be interpreted to include very specific requirements, including a requirement that the plan be in writing in a single entry in the case file. As potential sources of those requirements, the plaintiffs refer the court to: (1) the criteria for a case plan used by the Administration for Children, Youth and Families (“ACYF”) within the U.S. Department of Health and Human Services (“HHS”) in conducting program reviews of child welfare services in the states; (2) the definition of a case plan set forth in 42 U.S.C. § 675(1), part of the new Title IV-E program established by the 1980 Act; and (3) the definition of a case plan to which Dr. Alan Gruber, one of plaintiffs’ experts, testified. Determining what is required under section 608(f) is not an easy matter. Ordinarily, the views of an agency charged with enforcing a statute are to be given great deference by a court in interpreting the statute’s requirements. United States v. Rutherford, 442 U.S. 544, 552, 99 S.Ct. 2470, 2475, 61 L.Ed.2d 68 (1979). Here, however, the only regulations promulgated by the Secretary of HHS do not contain any specific requirements for the format or content of the statutorily prescribed case plan. 45 C.F.R. § 1392.16. Moreover, the Program Review Manual for Child Welfare Services cited by plaintiffs does not indicate that the case plan requirements set forth therein are to be used in determining the states’ compliance with the requirements of Title IVA, or that the states were ever apprised that the criteria contained in the manual would be used for this purpose. Ex. 55. In these circumstances, I conclude that it would not be appropriate to hold the Commonwealth to the standards established by ACYF in its program review manual, in determining the Commonwealth’s compliance with the dictates of section 608(f). Nor would it be proper, at this juncture, to incorporate the definition of a case plan set forth in section 675(1) of Title IV-E, created by Congress in the 1980 Act. It is true, as plaintiffs contend, that Title IV-E contains many provisions analogous to those found in Title IV-A, one of which is the requirement of a case plan. It does not follow, however, that the criteria for a case plan stated in section 675(1) should be incorporated by the court into section 608(f), on the theory that section 675(1) merely codifies the ease plan requirements that Congress intended in enacting section 608(f). The legislative history on this point is not entirely clear. There are references, in the legislative history of Title IV-E, to section 608(f) that support plaintiffs’ argument that, from its inception, section 608(f) mandated certain requirements for case plans. For example, Senator Cranston, in discussing the need for reform of the Title IV-A program, observed that “[t]he GAO investigation [conducted in 1977 at Cranston’s initiation] ... found a widespread failure to include in the case plans developed for foster children vital information in the case plans — as required under section [608(f) ] of existing law.” 125 Cong.Rec. S15289 (daily ed. Oct. 29, 1979). At the same time, there are indications, in statements by the same Senator, that the detailed requirements in section 675(1) were adopted precisely because section 608(f) did not provide enough guidance to the states regarding their obligations with respect to case plans. Senator Cranston, in discussing section 608(f) and the states’ compliance, noted that: . . . Unfortunately, the evidence is all too clear that there has been little, if any, compliance with this generalized requirement. As I mentioned before, the 1977 GAO investigation of foster care placement found a widespread failure to include vital information in the case plans developed for foster children. Indeed, only one-third of the children reviewed in the GAO investigation had received case, reviews. The GAO report noted that current federal requirements for case plans are “very general and do not require that the plans be documented.” The legislation as reported would strengthen the provisions in existing law by describing exactly what factors should be included in the ease plan ... It is our hope that these specific requirements will assist in providing the kind of focus for case plans that is missing under current law and is needed to reduce unnecessary foster care. Id. at Í5290-91 (emphasis added). The Supreme Court has stated that “. .. if Congress intends to impose a condition on the grant of federal moneys, it must do so unambiguously.” Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 17, 101 S.Ct. 1531, 1539, 67 L.Ed.2d 694 (1981). Given that section 608(f) does not state that the plan must be in writing and does not enumerate specific contents for the plan, and in light of the failure of the legislative history to indicate clearly that the requirements imposed in section 675(1) were intended under section 608(f), I conclude that section 608(f) does not incorporate the criteria set forth in section 675(1), including the requirement that the plan be in writing. Finally, this court cannot adopt, as requirements of section 608(f), Dr. Gruber’s opinion of what should be included in a case plan. Regardless of the expertise of Dr. Gruber, his opinions do not have the force of law. The difficulty created by these conclusions is that the court is left with little guidance as to what section 608(f) does require of the states with respect to case plans. If a case plan need not be in writing and does not have to include specific information, what is a case plan? In the absence of Congressional intent or applicable regulations indicating a less amorphous definition, I conclude that the essence of a case plan under section 608(f) is “the identification of a goal to be achieved by the provision of services,” Florida v. Mathews, 422 F.Supp. at 1235, and a plan or course of action — that need not be specified in writing in a single document — to furnish those services. In this case, the services that are the focus of the plan are those needed to ensure proper care for the foster child and to improve the conditions in the home from which he or she was removed. Congress clearly intended that some requirement of planning for appropriate services be imposed on the states. If this minimal definition were not formulated, section 608(f) would be rendered devoid of all meaning. The problem, from plaintiffs’ perspective, is one of proving the absence of something as elusive as the case plan defined above. Were the case plan required to be in writing, plaintiffs could rely on evidence of the absence of written case plans in significant numbers of cases to prove a violation of the statute. Yet, because section 608(f) does not mandate a written plan, plaintiffs could, theoretically, be required to introduce evidence of the states of mind of substantial numbers of DSS employees to show that they had formulated no identification of and course of action for provision of services to children and their families. I decline to impose such a harsh burden of proof, absent evidence that Congress intended it. Instead, I conclude that absence of required case plans may be shown, circumstantially, by evidence of lack of delivery of services intended as the subject of those case plans together with proof of absence of written case plans. If plaintiffs have proved that DSS employees provide neither written case plans nor appropriate services in a significant number of cases, then the inference may be drawn that these employees have not formulated the required identification of and plan for provision of those services. Defendants, as the parties having greater access to and control of Department of Social Services (“DSS”) employees and case records, may, of course, rebut plaintiffs’ case by proving that its employees did formulate the required case plans. This proof may be supplied either directly, through testimony of DSS employees, or circumstantially, through proof of the existence of written case plans or delivery of appropriate services. In the absence of such proof, the inference may be drawn that the Department — as the party having greater access to and control of the evidence — lacked it. Cf. International Union, UAW v. NLRB, 459 F.2d 1329, 1336-37 (D.C.Cir.1972) (discussing common law adverse inference rule). Findings with respect to compliance with the case plan requirement are stated in part III.A.2. below. (b) Services The second major controversy between plaintiffs and defendants centers around whether section 608(f) requires the provision of services designed to ensure proper care for the foster child and to improve conditions in his or her original home. The issue here is not whether a plan or course of action is formulated, but whether it is implemented. Citing 45 C.F.R. § 1392.19, among other provisions, plaintiffs argue that section 608(f) requires that the state, in addition to devising a case plan, carry out the plan by providing services reasonably calculated to achieve the goals stated in the statute. Defendants, on the other hand, contend that no services need actually be provided by the state under the statute. In part IV.B infra, I conclude that, whether or not section 608(f) of Title IV-A imposes an obligation to provide services, the new Title IV-A, which takes effect on October 1, 1982, does not require the states to provide reunification services until October 1, 1983. Given this conclusion, I need not determine whether section 608(f) requires the Commonwealth to provide services. Even if section 608(f) imposes such an obligation, it would be inappropriate to enforce it, in light of the impending replacement of Title IV-A with a new statute that does not currently mandate that the state provide services. (c) Periodic Review Section 608(f) provides that, as part of the plan for each foster child, the state must include “periodic review of the necessity for the child’s being in a foster family home or child care institution.” Defendants argue that the statute does not require that the review take any particular form or be conducted by any particular person(s) or body, or that the product of the review be contained in a specific document, or that the review be performed within any particular time frame. Defendants argue also that the only issue that need be reviewed is the necessity for substitute care. Plaintiffs do not affirmatively argue for an alternative interpretation, although they contend, generally, that the criteria set forth in Title IV-E should be incorporated into provisions in Title IV-A containing analogous requirements. For reasons similar to those stated in the analysis of the case plan requirement, supra, I conclude that the requirements of section 675(5) are not incorporated in the periodic review provision of section 608(f). This does not mean, however, that the requirement of periodic review is meaningless. Periodic review, as that concept is used in the statute and in the social services context generally, is designed to ensure that the plan for the foster child is adapted to changing circumstances. It is designed to ensure that, in light of current conditions, the child’s placement in foster care continues to be necessary and appropriate to his or her needs. Indeed, the statute defines periodic review as something “included” in the development of the plan, implying that it is an integral part of a case plan that remains dynamic, being modified in light of the ongoing developments in the foster home, the home from which the child was removed, and the child’s circumstances generally. Because of the findings reached below, it is not necessary to determine the specific time period within which the statute requires periodic review to be conducted. 2. The Evidence Numerous DSS social workers, from different offices and at varying levels of experience and responsibilities, testified that they are unable to provide written service plans in most of their cases, and unable to deliver services to ensure proper care of children in foster care and services designed to make it possible for these children eventually to return to their original homes. A clear theme emerged from the testimony of these Department employees. Because of pressures created by heavy caseloads, they are relegated to responding to crises in their cases. They do not have time to engage in appropriate planning and review, or to furnish the ongoing supervision and services they feel are necessary to assure appropriate care for foster children and to improve the conditions in the homes from which they were removed. See, e.g., Affidavits of Lee Chamberlain (Social Worker [“SW”] III, Brockton Area office); Robert Moro (SW II, Blaekstone Valley Area office); Peter Barrows (SW II, James Street office of Area 38); Donna Boyd (SW II, James Street office); Judith Hart (SW I, James Street office); Barbara Headrick (SW III, Greenfield Area office); Roberta Caulfield (SW I, Quincy Area office); Katherine Knowles (SW III, Brockton Area office); Steven Sylvia (SW II, Brockton Area office). Most of these social workers testified, on the basis of their experience, that their failure to plan for and deliver appropriate services was causing harm to the children— including children in foster care — under their supervision. Some provided examples of cases in which harm befell foster children as a result of lack of proper attention and provision of appropriate services. See, e.g., Affidavit of Donna Boyd. Moreover, files of actual cases revealed several instances in which children in foster care suffered serious emotional and physical injury — and even death — that could have been prevented. Only less serious injury or none would have been sustained had the Department taken reasonable steps to ensure the safety and welfare of these children. See, e.g., Ex. 9-E-9, Ex. 10-F-9, and Tr. 5/5/82, at 85-101; Ex. 9-E-2, Ex. 10-F-2, Tr. 5/3/82, at 86-97; Ex. 7-C-5, Ex. 8-D-5, and Tr. 4/28/82, at 21-31, 5/3/82, at 201-03; Ex. 7-C-10, Ex. 8-D-10, Tr. 4/29/82, at 29-41. This evidence of lack of planning and service delivery is supported by a program review conducted in Massachusetts on February 1-5, 1982, by the Regional Children’s Bureau Division of ACYF. Based on a sample of at least 300 case records, the program review indicated that the Commonwealth was “seriously deficient” in providing written case plans for each child and family receiving services. The Children’s Bureau Division found that 20 per cent of all foster care cases do not have written case plans. Of the foster care cases that did have written case plans, 37 per cent were incomplete. The goals of the case plans that did exist were not met in 17 per cent of the cases. This evidence of lack of written case plans and failure to furnish services that would be the subject of case plans is sufficient circumstantial proof to warrant a finding that DSS is failing, in significant numbers of cases, to provide the case plans mandated by section 608(f). In light of this evidence and of defendants’ failure to produce proof sufficient to negate it, and on a preponderance of the evidence in the case as a whole, I find that plaintiffs have demonstrated a likelihood of success on the merits of their claim that DSS is violating 42 U.S.C. § 608(f) by failing to provide case plans to AFDC-FC children. With respect to noncompliance with the statutory mandate of periodic review, plaintiffs presented testimony of social workers indicating that, due to the volume of eases they carry, they are unable in substantial numbers of eases to complete the quarterly reviews required by the Department. Also, the Children’s Bureau program review indicated that 17 per cent of foster care cases in which written case plans existed had not been reviewed within the last six months. The most significant proof, though, of the failure to provide periodic review is evidence of lack of case plans. It is difficult to see how periodic review could be conducted when there is no plan to review. One could hypothesize that, even in the absence of a case plan, a social worker could periodically reassess whether foster care is necessary and appropriate for the child. But attempting to make such a determination without considering whether goals for the child and the child’s family — the proper subjects of a case plan — have been met would have little utility or meaning. Considering all this proof as circumstantial evidence of failure to perform periodic review, I find, on a preponderance of the evidence, that plaintiffs have shown a likelihood of succeeding on their claim that DSS is in violation of the periodic review requirement of section 608(f). I recognize that there are certain weaknesses in plaintiffs’ proof. For example, some of the social worker testimony regarding failure to formulate case plans and conduct periodic review does not clearly separate out foster care cases from other child welfare cases. And none of the evidence offered distinguishes between children in foster care under Title IV-A and those in foster care under Title IV-B. It would therefore be difficult, on the proof submitted, to reach a finding with respect to the precise number of AFDC-FC cases in which case plans and periodic review are not being furnished. These flaws are not fatal to plaintiffs’ motion for preliminary injunction, however. Defendants, as the parties having greater access to and control of relevant evidence, have offered little proof to rebut the powerful inference that case plans and periodic review are not being provided in significant numbers of cases involving children in foster care. In addition, plaintiffs’ access to evidence may have been hampered by actions taken by the Commissioner of DSS during the course of this litigation. See January 28, 1982 Memorandum and Order. Plaintiffs need not actually prove their case at this juncture. They have shown that more probably than not they will do so. B. Irreparable Injury The second factor the court must consider is whether plaintiffs will suffer irreparable injury if preliminary relief is not awarded. Plaintiffs bear the burden of satisfying a stringent standard. As the First Circuit has stated: Only a viable threat of serious harm whieh cannot be undone authorizes exercise of a court’s equitable power to enjoin before the merits are fully determined .... A preliminary injunction will not be issued simply to prevent a mere possibility of injury. A presently existing, actual threat must be shown. Massachusetts Coalition of Citizens v. Civil Defense Agency, 649 F.2d 71, 74 (1st Cir. 1981). I find that plaintiffs have met this burden. The evidence shows that, if the court fails to grant preliminary relief, there is a very real threat that great harm will befall children in foster care in Massachusetts. The physical and emotional damage threatening these children, should it occur, could never be undone. Plaintiffs have demonstrated, by a preponderance of the evidence, that the Department fails to provide case plans and periodic review to significant numbers of children in foster care. The case plan is the very foundation of the system of protection for a foster child. It is a blueprint of the steps that must be taken, and services that must be provided, to ensure the safety and welfare of the child. Without such a plan, the worker responsible for the child’s supervision simply cannot address adequately the child’s needs. Indeed, without a case plan, the worker may not address those needs at all. The same is true of periodic review. Through periodic review, the worker updates and reassesses the original plan of action for caring for the child, taking into account changed circumstances in the child’s life. Thus, without a case plan and periodic review, the psychological and bodily safety of the child is at serious risk, for there is no guarantee that anyone is looking out for his or her interests. A dramatic illustration of this point is the case of two children in DSS care who were killed in a fire. The last contact by one of the children’s social worker had taken place a year before the fire in which the children died. The worker who had been assigned the case of this foster child was carrying 23 cases at the time of the assignment. The DSS case review unit report on the ease revealed that the worker had failed to engage in the planning necessary to lead to the discovery that the foster child for whom the worker was responsible was in danger. Tr. 8/3/81, at 62-63. In addition to risk of emotional and physical injury inflicted in the foster home, a child in foster care' faces another type of harm without a case plan and periodic review. The child is confronted with the threat of simply drifting along in foster care, without ever coming to rest in a permanent family setting. A case plan, periodically reviewed, is necessary to ensure that the child does not become lost in the foster care system. Indeed, the Congress that enacted the 1980 Act envisioned, as essential safeguards for preventing the foster care drift that has characterized the plight of abused and neglected children in this country, requirements of case planning and review more stringent than those the Department is now violating: [Children in foster care] can be likened to criminals who face a long sentence, but, unlike criminals, they have done nothing wrong — their greatest crime is being abused or neglected by their parents. They enter foster care for a “temporary” period which in most cases lasts a good portion of their childhood. During these years a child can be placed in as many as five foster homes or institutions .... In a majority of the cases, there are little or no attempts to reunite the child with the natural family.... [B]ecause of the heavy caseloads of the caseworkers, many children are placed in homes that do not provide proper care of a proper environment for the child. The enactment of this legislation would require a written case plan on each child, which will have a description of the home or institution in which the child is to be placed, including a discussion of the appropriateness of the placement. A review of this case plan will occur every 6 months with a dispositional hearing no later than 18 months after placement. Therefore, with the passage of H.R. 3434, instead of being faced with a rootless insecurity, these children can now be assured a more stable and more permanent family setting. 125 Cong.Rec. H7097 (daily ed. Aug. 2,1979) (statement of Congressman Rostenkowski). It has been over a year now since the first hearing on plaintiffs’ motion for preliminary injunction. The hearing and adjudication of a trial on the merits in this case would, most likely, require at the least another comparable period of time. A year is a very long time in the life of a child. During that period a child can suffer irreversible harm. The injury caused by physical or mental abuse in a foster home, or emotional insecurity bred by the lack of a secure and loving environment, is beyond the power of any court to remedy. Without case plans and periodic review, children in foster care in the Commonwealth face a grave threat of such harm. C. Balance of Hardships Having found that plaintiffs are threatened with irreversible bodily and emotional injury, the court must consider whether this harm outweighs any harm that would be inflicted on defendants by the granting of preliminary relief. Arguing that the balance of harms tilts in their favor, defendants characterize the hardship that would be imposed on them by the award of preliminary relief as follows: The defendants’ interest consists in freedom from a burdensome judicial order that will disrupt the management of [DSS], including delivery of the very services plaintiffs seek. For a court to intrude in the present case is to risk demoralizing agency personnel and engendering cynicism in an improving administration; to substitute judicial judgment for that of trained professionals and a legalistic atmosphere for a therapeutic one; to risk a confrontation with the state legislature; to risk stripping funds from crucial programs in order to pay for others receiving judicial attention; to risk forcing the state to give up badly needed federal funds, rather than comply with a far more costly judicial order. The problem with defendants’ argument is that it proves too much. Defendants merely raise concerns of federalism that are present in any case in which a class of plaintiffs 'seek the aid of a federal court in securing state compliance with federal law. To be sure, it is essential for federal courts to be ever sensitive to these considerations. Every federal judge must be concerned about the prospect of issuing relief that unduly hampers the day-to-day administration of a state agency. And every federal judge must be concerned about the effect of granting the only remedy ultimately available — an order that the state cease spending badly needed federal funds. This is especially true in a time of economic hardship. But the need for judicial sensitivity to these concerns does not justify abdication of judicial responsibility. Here, Congress— and not any court — created requirements it thought essential to protect the welfare of foster children. The Commonwealth voluntarily undertook to fulfill those requirements as a condition of receiving federal money. Plaintiffs filed suit to enforce those requirements because they believed it would serve their best interests to do so. They were aware that the final result might be a loss of federal funding by the Commonwealth. In the face of that knowledge, they chose to continue with this action. In granting preliminary relief to plaintiffs, this court does not substitute its judgment for that of state officials. It instead gives realization to the will of Congress and protection requested by those Congress intended to protect. Indeed, if the court chose to deny relief on the grounds urged by defendants, that denial would reflect a judgment that the wisdom of Congress and desires of plaintiffs should go unheeded because the Commonwealth knows better than any of them how to serve plaintiffs’ interests. This court is not free to make such a judgment. Accordingly, I conclude that the threat of irreparable injury to plaintiffs outweighs any burden imposed on the state as a result of the granting of preliminary relief. D. The Public Interest The final factor the court must consider is whether the public interest would be adversely affected by the granting of plaintiffs’ motion for preliminary injunction. No one would dispute that our society has an interest in ensuring proper care for its children. Here, however, both plaintiffs and defendants claim to represent the public interest. Both contend that the societal interest in protecting children from harm would best be served by a ruling in their favor. For reasons similar to those stated in the discussion of the balance of harms, supra, I conclude that granting relief designed to secure the Commonwealth’s compliance with requirements of federal law will not adversely affect the public interest. Congress imposed these requirements in the belief that they were essential to assure the proper care of children in the foster care system. The evidence confirms that failure to satisfy the Congressional conditions may result in grave harm to foster children. Guided by the Congressional determination of the public interest in this context, I conclude that the public interest will be furthered by awarding a remedy calculated to ensure that Massachusetts’ foster care system conforms to the dictates of the Social Security Act. IV. The Remedy for Non-Compliance with 42 U.S.C. § 608 A. Effect of the 1980 Act Had this case been adjudicated before June 17,1980, the effective date of the 1980 Act, the court would be called upon to devise a remedy designed merely to secure compliance with the requirements of 42 U.S.C. § 608(f). Because of the amendments affected by the 1980 Act, however, the task of fashioning appropriate equitable relief has become more complicated. The 1980 Act replaces the Title IV-A AFDG-FC program with a new Title IV-E AFDC-FC program, codified at 42 U.S.C. §§ 671 et seq. Title IV-E applies to the same group of children previously covered by Title IV-A. Compare 42 U.S.C. § 608(a) with 42 U.S.C. § 672(a). Under section 101(a)(2) of the 1980 Act, states were permitted to begin operating under the new Title IV-E program as early as October 1, 1980, and will be required to make the transition to IV-E (if they are to participate in the AFDC-FC program at all) by the quarter beginning on October 1,1982, at which time Title IV-A is repealed. Thus, between September 30,1980 and September 30, 1982, a state may operate under Title IV-A or Title IV-E, but not both. Currently, the Commonwealth is operating under Title IV-A. See Stipulation, July 14, 1982. It is therefore appropriate to adjudicate Massachusetts’ compliance with federal law under the requirements of section 608(f) of Title IV-A, as the court does here, because the provisions of Title IV-E do not become applicable until the state has in effect a plan approved under Title IV-E. It does not follow, however, that section 608(f) supplies the basis for the most appropriate remedy to secure Massachusetts’ compliance with its future obligations, under federal law, to AFDC-FC children. The parties have stipulated that DSS is now preparing a Title IV-E plan for submission to HHS. Once submitted, HHS must approve or disapprove the plan within 45 days. If the plan is approved by HHS, DSS will be entitled to receive Title IV-E funds retroactive to the first day of the quarter in which the Title IV-E plan is submitted. DSS intends to submit a Title IV-E plan to HHS by September 30, 1982. After the plan is submitted, DSS will be eligible and plans to apply for Title IV-E funds retroactive to July 1, 1982. Stipulation, July 14, 1982. In short, within a matter of days, the Commonwealth’s duties toward AFDC-FC children will be governed not by Title IV-A but by the new Title IV-E. Many of the provisions of Title IV-A find close parallels in Title IV-E. 47 Fed.Reg. 30,932 (July 15, 1982). In enacting Title IV-E, Congress intended to incorporate and give content to provisions of Title IV-A that had proved to be too generalized adequately to protect children from simply drifting in the foster care system with little or no hope of obtaining a permanent home. See, e.g., 126 Cong.Rec. S6941 (daily ed. June 13, 1980) (statement of Senator Cranston) (“[S]ome of the most important aspects of this legislation relate to provisions strengthening the supervision and case planning for children in foster care. Current law contains a very generalized requirement that a case plan be developed for each child in foster care and that there be periodic review of the necessity for the child’s being in foster care. One of the most serious and well-documented problems with our existing foster care system is the tendency for a child to become lost in the foster care system, with no efforts made to return the child home or to free the child for adoption if a return home is not feasible”). The case plan and periodic review requirements of section 608(f) of Title IV-A find analogues in section 671(a)(16) and section 675(1), (5)(B) of Title IV-E. Section 671(a)(16) of Title IV-E provides that (a) In order for a State to be eligible for payments under this part, it shall have a plan approved by the Secretary which— sf: ¡fc s}: % % (16) provides for the development of a case plan (as defined in section 675(1) of this title) for each child receiving foster care maintenance payments under the State plan and provides for a case review system which meets the requirements of section 675(5)(B) of this title with respect to each such child. 42 U.S.C. § 675(1) defines the mandated “case plan” as ... a written document which includes at least the following: A description of the type of home or institution in which a child is to be placed, including a discussion of the appropriateness of the placement and how the agency which is responsible for the child plans to carry out the voluntary placement agreement entered into or judicial determination made with respect to the child in accordance with section 672(a)(1) of this title; and a plan for assuring that the child receives proper care and that services are provided to the parents, child, and foster parents in order to improve the conditions in the parents’ home, facilitate return of the child to his own home or the permanent placement of the child, and address the needs of the child while in foster care, including a discussion of the appropriateness of the services that have been provided to the child under the plan. Section 675(5)(B) defines the case review system required under section 671(a)(16) as follows: (5) ... a procedure for assuring that— (B) the status of each child is reviewed periodically but no less frequently than once every six months by either a court or by administrative review (as defined in paragraph (6)) in order to determine the continuing necessity for and appropriateness of the placement, the extent of compliance with the case plan, and the extent of progress which has been made toward alleviating or mitigating the causes necessitating placement in foster care, and to project a likely date by which the child may be returned to the home or placed for adoption or legal guardianship ... Administrative review, under section 675(6), ... means a review open to the participation of the parents of the child, conducted by a panel of appropriate persons at least one of whom is not responsible for the case management of, or the delivery of services to, either the child or the parents who are the subject of the review. Both the plain language of these Title IV-E provisions and the legislative history of their enactment reveal that sections 671(a)(16) and 675(1), (5)(B) continue and strengthen the case plan and periodic review requirements of section 608(f). See, e.g., 126 Cong.Rec. H4981 (daily ed. June 13, 1980) (summary of provisions of conference agreement on H.R. 3434) (“The present Title IV-A AFDC Foster Care program would be shifted to a new Title IV-E. Foster care assistance would continue to be a required program as under current law”); 126 Cong.Rec. S6941 (daily ed. June 13, 1980) (statement of Senator Cranston) (“[T]he conference agreement adopted the Senate provision which would establish a new part E of Title IV of the Social Security Act — transferring the existing foster care maintenance program from Title IV-A to the new Title IV-E and creating in the new title an adoption assistance program for children with special needs ... [S]ome of the most important aspects of this legislation relate to provisions strengthening the supervision and case planning for children in foster care”); 125 Cong.Rec. S15290 (daily ed. Oct. 29, 1979) (discussion of Senate version of H.R. 3434 by Senator Cranston) (“The legislation as reported would strengthen the provisions in existing law by describing exactly what factors should be covered in the case plan”). Thus, proof of violation of the generalized case plan and periodic review requirements of section 608(f) also constitutes proof of violation of the more stringent, detailed requirements for case plans and case review set forth in sections 671(a)(16) and 675(1), (5)(B). Plaintiffs have exhibited a likelihood of success on their claims under section 608(f). Since DSS is not now complying with section 608(f), it would take nothing short of a miracle for the Department to come into compliance with sections 671(a)(16) and 675(1), (5)(B) by October 1, 1982, when those provisions become applicable. In spite of improvements by DSS, the evidence does not warrant a finding that such a miracle will occur. In these circumstances, I conclude that the most appropriate relief in this case is forward-reaching relief designed to secure the Department’s compliance with sections 671(a)(16) and 675(1), (5)(B) of Title IV-E, in the event that the Commonwealth submits and obtains Secretarial approval of a IV-E plan. Very shortly, the repeal of the Title IV-A program will be effective. Under Edelman v. Jordan, “... a federal court’s remedial power, consistent with the Eleventh Amendment, is necessarily limited to prospective injunctive relief ... and may not include a retroactive award which requires the payment of funds from the state treasury ....” 415 U.S. 651, 677, 94 S.Ct. 1347, 1362, 39 L.Ed.2d 662 (1974). And yet, it is evident that issuing prospective relief based on Title IV-A would serve little purpose, and, indeed, would thwart Congressional intent in enacting the amendments effected by Title IV-E. Congress intended that Title IV-A be replaced with IV-E as of October 1, 1982 at the latest. That Congressional purpose can be fulfilled most effectively by this court’s issuing prospective relief based on sections 671(a)(16) and 675(1), (5)(B) of Title IV-E, to be imposed if and when the Commonwealth begins operation under the Title IV-E program. Of course, if the state does not submit a IV-E plan, it will receive no federal funds and will be relieved of the obligation to comply with the requirements of Title IV-E. This court has jurisdiction to fashion appropriate relief, see Rosado v. Wyman, 397 U.S. 397, 420, 90 S.Ct. 1207, 1221, 25 L.Ed.2d 442 (1970), designed to secure compliance with the provisions of 42 U.S.C. §§ 671(a)(16), 675(1), (5)(B). For the reasons stated below, I conclude that plaintiffs would be entitled to enforce rights created by those provisions in a separate action under 42 U.S.C. § 1983. From this it follows that the court may enforce those provisions in this action, as soon as they become applicable to the Commonwealth by reason of DSS’s submission of a Title IV-E plan approved by the Secretary. Pennhurst State School & Hospital v. Halderman, 451 U.S. 1, 101 S.Ct. 1531, 67 L.Ed.2d 694 (1981) teaches that, in order to serve as a basis of a claim for relief under 42 U.S.C. § 1983, a provision of a federal statute establishing a scheme of cooperative federalism must (1) have been intended by Congress to impose “an obligation on the States to spend money to fund certain rights as a condition of receiving federal moneys...,” id. at 18, 101 S.Ct. at 1540; and (2) give rise to “a private cause of action to compel state compliance with [the statutory] conditions,” id. at 27-28, 101 S.Ct. at 1545. First, the plain language and the legislative history of section 671(a)(16) indicates that Congress intended to impose on the states, as a condition of receipt of federal IV-E funds, an obligation to provide each AFDC-FC child a case plan meeting the criteria of section 675(1) and a case review fulfilling the requirements of section 675(5)(B). Second, I conclude, for the reasons summarized here and stated more fully in the June 9, 1981 Memorandum and Order, that section 671(a)(16) supports a private right of action to enforce the case plan and case review requirements contained therein. A long line of precedent supports plaintiffs’ right, as the beneficiaries of these services, to secure state compliance with provisions of the Social Security Act. See Rosado v. Wyman, 397 U.S. 397, 90 S.Ct. 1207, 25 L.Ed.2d 442 (1970); Maine v. Thiboutot, 448 U.S. 1, 5-6, 100 S.Ct. 2502, 2505, 65 L.Ed.2d 555 (1979) (collecting cases). Moreover, in Rosado v. Wyman, supra, the Supreme Court rejected the argument that a federal court is without power to review state welfare provisions or prohibit the use of federal funds by the states in view of the fact that Congress has lodged in the Department of [HHS] the power to cut off federal funds for noncompliance with statutory requirements. 397 U.S. at 420, 90 S.Ct. at 1221. O.n this authority, I conclude that Title IV-E, see 42 U.S.C. § 671(b), does not provide “an exclusive remedy for violations of [its terms].” Pennhurst, supra, at 28, 101 S.Ct. at 1545, quoting Maine v. Thiboutot, supra, 448 U.S. at 22 n. 11, 100 S.Ct. at 2513 n. 11 (Powell, J., dissenting). Accordingly, the court may provide the remedy for violations of section 608(f) — and, consequently, sections 671(a)(16) and 675(1), (5)(B) — discussed below. B. Requirements for Compliance with Federal Law In Rosado v. Wyman, supra, the Supreme Court considered what form of relief is appropriate when a state fails to comply with a federally imposed condition on state participation in a cooperative federalism program. The Court held that, in such circumstances, plaintiffs “are entitled to declaratory relief and an appropriate injunction by the District Court against the payment of federal monies ... should the State not develop a conforming plan within a reasonable period of time.” 397 U.S. at 420, 90 S.Ct. at 1221 (emphasis in original). The Court remanded “the case to the District Court to fix a date that will afford [the state] an opportunity to revise its program in accordance with the requirements of [the Social Security Act] if the State wishes to do so.” Id. at 421, 90 S.Ct. at 1222. The district court was directed to “retain jurisdiction to review ... any revised program adopted by the State, or should [the state] choose not to submit a revamped program by the determined date, issue its order restraining the further use of federal monies pursuant to the ... statute.” Id. at 421-22, 90 S.Ct. at 1222. The requirements imposed on the Commonwealth by 42 U.S.C. §§ 671(a)(16) and 675(1), (5)(B) are spelled out rather clearly in sections 675(1), (5)(B). For the sake of clarity, they are enumerated in the order accompanying this opinion. Three issues regarding the scope of the Commonwealth’s obligations under the statute must be addressed in this opinion. First, plaintiffs contend that one of the obligations imposed on the Commonwealth under 42 U.S.C. §§ 671(a)(16), 675(1) is a duty to provide services to facilitate the child’s return home or otherwise make possible the child’s permanent placement. Plaintiffs argue that these obligations exist under section 608(f) of Title IV — A and are continued under the analogous provisions of Title IV-E. There is support for plaintiffs’ contention that these services are required under section 608(1). See, e.g., Miller v. Yoakim, 440 U.S. 125, 137, 141, 99 S.Ct. 957, 965, 967, 59 L.Ed.2d 194 (1979) (“section 608(f)(1) of the Act obligates states to ensure that services are provided which are designed to improve the conditions in the home from which [the foster child] was removed or to otherwise make possible his being placed in the home of a relative... ”) (“Section 408 embodies Congress’ recognition of the peculiar status of neglected children in requiring that States work to improve the conditions in the foster child’s original home or to transfer him to a relative when feasible, [§ 608(f)(1) ]...”) (emphasis added); 126 Cong.Rec. S6942 (daily ed. June 13, 1980) (statement of Senator Cranston) (... [Cjurrent law [42 U.S.C. § 608(f)(1)] requires that a child in foster care receive proper care and services designed to improve the conditions in the home from which he was removed or otherwise make possible his being placed in the home of a relative. These very generalized provisions have had little specific impact upon a State’s responsibility to provide services designed to prevent a child’s removal from his or her home, or to help alleviate the problem which caused the child’s removal in the first place.... [S]ome courts have specifically held that social services agencies had no affirmative duty to provide preventive services to a distressed family before the removal of a child”) (emphasis added). Even if such a duty exists under section 608(f), however, whether it is continued under sections 671(a)(16), 675(1) of Title IV-E is a more debatable proposition. Section 671(a)(15) of the new statute requires that effective October 1, 1983, [the state shall have a plan approved by the Secretary which] provides 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; ... Thus, it appears that, if a duty to provide reunification services exists under Title IVA, Congress — perhaps in recognition of the widespread failure of the states to meet this obligation — decided to allow the states some time in which to redesign their programs before imposing that duty as a condition of receiving federal funds under Title IV-E. There is nothing in the legislative history, or the Secretary’s recently proposed rules to implement the Title IV — E AFDC-FC program, see 47 Fed.Reg. 30932-43 (July 15, 1982), to suggest the contrary. Accordingly, the court will not now hold DSS responsible, under Title IV-E, for actually providing services designed to improve the conditions in the home from which a foster child was removed, pursuant to a judicial determination, so as to facilitate the child s return home. After October 1,1983, the Department will be required to fulfill this obligation in order to receive federal funds under Title IV-E. The second issue the court must address is the problem created by the unmanageable caseloads of DSS social workers. It would be difficult, on the evidence submitted, to pinpoint an average number of cases currently being carried by DSS social workers. Compare, e.g., Ex. 22-Q-6 (reflecting a department-wide ratio of 1 worker to 21.4 cases as of December, 1981) with Ex. 13 (indicating, as of May, 1981, a department-wide ratio of 1 worker to 33.5 cases, including cases involving out-of-home placements). One thing is clear, however. Social worker after social worker testified that their caseloads are too heavy to afford them time to engage in planning and review of their cases — indeed, too heavy to allow them to do almost anything but respond to emergencies. The evidence is overwhelming that the existence of high caseloads is a predominant factor preventing DSS employees from fulfilling their responsibilities under federal law. Congress recognized that the existence of unmanageable caseloads was responsible for many of the problems for which the 1980 Act is an intended cure. Senator Cranston, discussing the need for reform in a floor debate of the Senate version of the bill that became the 1980 Act, quoted from the following 1975 report of the Subcommittee on Children and Youth of the Labor and Public Welfare Committee: Because of the large caseloads and rapid turnover rates among case workers, some children in foster care “get lost.” The word “lost” may seem a little dramatic, but it is appropriate. Given the pressures of a large caseload, the social worker usually has to concentrate on the clients that present immediate problems. As a result, the social worker often loses track of the nonproblem child, is unaware of that child’s needs, and develops no goals and provides no active services for the child or his family. 125 Cong.Rec. S15289 (daily ed. Oct. 29, 1979) (emphasis added). See also 125 Cong. Rec. H7097 (daily ed. Aug. 2, 1979) (statement of Congressman Rostenkowski) (“... [B]ecause of the heavy caseloads of the case workers, many children are placed in homes that do not provide proper care or a proper environment for the child”.) (emphasis added). For these reasons, I conclude that it is appropriate to set standards for the numbers of cases that may be carried by DSS social workers. The evidence shows that it is necessary to do so in order to aid the Department in achieving prospective compliance with the requirements of Title IV-E detailed above. I will therefore order that the Department may not assign to its social workers a number of cases that is greater than the number of cases that workers are able to carry and simultaneously fulfill their obligations to provide case plans and periodic review (as defined in 42 U.S.C. § 675(1), (5)(B)) in their cases. In determining the Department’s compliance with this requirement, I will use the following guidelines: (1) The Department’s establishment and maintenance of an average ratio, in each DSS area, of twenty “generic” or “mix