Alabama Department of Human Resources, QC No. 86 (1995)

 Department of Health and Human Services

 Departmental Appeals Board

AFDC QUALITY CONTROL REVIEW PANEL

SUBJECT:  Alabama Department of 
Human Resources
Docket No. A-95-089
Decision No. QC86

DATE:  August 9, 1995

DECISION

The Alabama Department of Human Resources (Alabama)
appealed the March 3, 1995 quality control (QC) review
determination of the Regional Administrator of the
Administration for Children and Families (ACF) that an
Aid to Families with Dependent Children (AFDC) recipient 
 1/ was ineligible for the assistance payment she
received in the review month of December 1993.  ACF
therefore found a payment error in the amount of $164. 

This case turns on whether Alabama's suspension policy
applies to the facts of this case.  ACF determined that,
because the recipient had earned income which rendered
her ineligible for AFDC for only one month (October, the
budget month), Alabama's suspension policy applied and
the recipient's December payment should have been
calculated retrospectively on the basis of October's
income.  Alabama argued that, under its permissible State
practice (PSP), its suspension policy did not apply to
the facts of this case and therefore the recipient was
eligible for the December payment based on prospective
budgeting.  For the reasons discussed below, we conclude
that this case is governed by PSP.  Under Alabama's PSP,
suspension was not appropriate, prospective budgeting was
applicable to this case and, thus, the recipient was
eligible for the December payment.  Accordingly, we
reverse ACF's error determination.

 

Applicable Authority

Section 402(a)(7) of the Social Security Act (Act)
requires that a state plan for AFDC determine applicants'
need taking into consideration the income and resources
of children and relatives required to be included in the
AFDC assistance unit (AU).  Section 402(a)(18) provides
that an AU is ineligible for AFDC in any month in which
total earned income exceeds 185% of the state's standard
of need.

Eligibility for AFDC must be determined prospectively for
all payment months.  Section 233.33 of 45 C.F.R. provides
" . . .  the State agency shall establish eligibility
based on its best estimate of income and circumstances
which will exist in the month for which the assistance
payment is made."

If an AU is determined to be eligible for assistance,
income is again considered in determining the amount of
assistance the AU receives.  The AU's income, less
certain "disregards," is subtracted from the state's
payment standard to arrive at the assistance payment to
the AU. 

The amount of assistance may be computed "prospectively"
or "retrospectively."  Prospective budgeting, similar to
prospective eligibility determination, requires the state
to compute the payment amount based on its best estimate
of the income and circumstances which will exist in the
payment month.  45 C.F.R. � 233.31(b)(1).  Retrospective
budgeting requires the state to calculate the amount of
assistance for a payment month based on the recipient's
actual income in a previous "budget" month.  45 C.F.R. �
233.31(b)(2).  States may adopt either one-month
retrospective budgeting, in which the budget month is the
month immediately preceding the payment month, or two-
month retrospective budgeting, in which the budget month
is two months prior to the payment month.  45 C.F.R. �
233.32.  Alabama has adopted two-month retrospective
budgeting.

Under the general rule, AFDC assistance must be
terminated if an AU becomes ineligible and the AU must
thereafter reapply for assistance.  However, states have
the option of adopting a "suspension" policy for cases in
which "the agency has knowledge of, or reason to believe
that ineligibility would be only for one payment month."
 45 C.F.R. � 233.34(d)(1).  Applying suspension in a two-
month retrospectively budgeted case, if an AU was
ineligible in the budget month (October), the payment for
the corresponding payment month (December) would be
"suspended" and the AU would receive no assistance in
December.  The case would then continue to be paid
retrospectively (January's payment based on November's
income) if "the family's circumstances for the initial
month had not changed significantly from those reported
in the corresponding budget month, e.g., loss of job." 
45 C.F.R. � 233.34(c)(3).

The QC Manual (QCM) addresses the issue of suspension of
cases.  It provides:

 [I]f the AU is being retrospectively budgeted and
the period of ineligibility is expected to last only
one month, the State may choose to suspend the
payment.  States electing the suspension option must
outline the criteria in their written policy
instructions.  Under the suspension policy, if the
AU is ineligible under circumstances specified by
the State in any month, the State will not recoup
assistance, but will instead suspend assistance for
the payment month corresponding to the month of
ineligibility.

QCM � 3430 (emphasis added).  However, the QCM directs
the reviewer to assume termination in cases where
suspension is inapplicable:

 If the budget month, intervening month, or review
month's income and circumstances result in
ineligibility and suspension is not appropriate,
assume termination, revert to prospective budgeting,
and use actual review month income to determine the
amount of payment for the review month.
 
QCM � 3430,  5 (emphasis added).

Alabama has adopted a suspension policy.  However,
Alabama's suspension policy is more limited than the
suspension option set forth in the federal regulations. 
Specifically, Alabama's Assistance Payments Manual states
that prospective budgeting applies to

 The first two payment months following a one month
break in eligibility when there has been a
significant change in the family's circumstance
which caused ineligibility originally . . . .  For
example, if wages caused ineligibility originally
and the reported change . . . was loss of job, this
is a significant change in the circumstances which
caused ineligibility; therefore, prospective
budgeting would apply for the 1st two payment
months.

Assistance Payments Manual � 3101.B.3 (attachment C to
Alabama's appeal request).

Federal regulations, at 45 C.F.R. � 205.40(a)(12), define
permissible state practice as follows:

 written rules and policies relating to eligibility
and payment that are in accordance with existing,
approved State plan provisions . . .

Section 3130 of the QCM, governing PSP review, instructs
QC reviewers to review against the state plan provision
using state instructions, to the extent such instructions
are consistent with the state plan.


Background

The facts in this case are not disputed.  The assistance
unit consisted of the recipient, TL, and her two
children.   2/  TL was employed at Wal-Mart from
September 8 through October 22, 1993.  She did not report
her wages to the caseworker until December 14, 1993.  In
December she was again eligible for AFDC.  Her wages
rendered her ineligible for the month of October only. 
Alabama uses two-month retrospective budgeting;
accordingly, October is the budget month for December,
the review month in this case.

TL's case was selected for QC review for the month of
December 1993.  Alabama had paid assistance to TL for
December, budgeted prospectively based on no income. 
Alabama QC found the case correctly paid.  Federal QC
found error, concluding that the December payment ought
to have been calculated retrospectively and, thus,
suspended based on ineligibility in the budget month,
October.

        
Analysis

Alabama and ACF agree that TL was prospectively eligible
for AFDC in the review month, December 1993, as she had
no income in that month.  Alabama and ACF also agree that
TL was ineligible for AFDC in October 1993, based on
excess income in that month.  Alabama paid TL for both
October and December.  It is apparent that TL was
ineligible for one of these two payments and, thus, one
of them was erroneous.  If the December payment was
erroneous, then Alabama has committed an error for QC
purposes.  However, if it is the October payment that was
erroneous, that error is outside the scope of QC review
because the review month is December.  The determination
as to which of the two payments was erroneous depends
upon whether prospective budgeting or suspension and
retrospective budgeting applies. 

ACF argues that retrospective budgeting applies in this
case because, according to ACF, Alabama's suspension
policy applies.  Suspension, as opposed to termination
and reapplication, is permitted when the recipient is
expected to be ineligible for only one month.  Alabama
has elected to have a suspension procedure.  ACF's
argument, in essence, is that suspension must be applied
in all cases if the following conditions are met:  (1)
the state has a suspension policy; (2) the recipient was,
in fact, ineligible for only one month; and (3) the state
did not learn of the recipient's ineligibility until the
recipient had again become eligible.  We disagree with
this position because we conclude that the question of
whether suspension applies depends upon PSP.

The federal regulation governing suspension permits, but
does not require, states to adopt suspension.  The
regulations provide that:  "A State may suspend, rather
than terminate, assistance" and continue in a
retrospective budgeting cycle when the local agency "has
knowledge of, or reason to believe that ineligibility
would be only for one payment month."  45 C.F.R. �
233.34(d)(emphasis added).  Moreover, the QCM is quite
clear that reviewers are to follow PSP to determine
whether prospective budgeting or suspension and
retrospective budgeting is appropriate.  QCM � 3430. 
Alabama argued that it has adopted a suspension policy
which applies to a more limited range of cases than might
otherwise be permissible under the federal regulation. 
Under Alabama's policy, suspension and continued
retrospective budgeting are not applied to cases in which
there has been a significant change in the circumstances
which caused the AU's one-month ineligibility.  In such
cases, Alabama's PSP provides that:

 Prospective Budgeting Applies [to] . . .[t]he first
two payment months following a one month break in
eligibility when there has been a significant change
in the family's circumstance which caused
ineligibility originally . . . .  For example, if
wages caused ineligibility originally and the
reported change . . . was loss of job, this is a
significant change in the circumstances which caused
ineligibility; therefore, prospective budgeting
would apply for the 1st two payment months.

Assistance Payments Manual � 3101.B.3 (attachment C to
Alabama's appeal request).

We view Alabama's PSP as a limited implementation of the
federal regulation which permits the local agency to
apply suspension if it determines that ineligibility is
likely to be for one month only.  Under the terms of
Alabama's PSP, suspension is never applicable when a
recipient begins a regular job paying wages which make
the recipient ineligible.  This is because the event
which would make the recipient eligible again--loss of
that job after only one month--would be "a significant
change in the family's circumstance which caused
ineligibility originally."  Alabama's PSP, in effect,
requires caseworkers to assume that if a recipient begins
a regular job which renders the recipient ineligible,
suspension does not apply and the case must be
terminated.  Therefore, under Alabama's PSP, in cases
involving ineligibility due to regular employment,
termination followed by prospective budgeting applies,
even where that ineligibility lasts only one month.

We can find no prohibition in the regulations or the QCM
against a state adopting a suspension policy that would
apply to a more limited number of cases than would
otherwise be permitted by 45 C.F.R. � 233.34.  States are
not required to have any suspension policy.  Rather,
suspension is an option states may elect so that they can
maintain cases in a retrospective budgeting cycle. 
Therefore, we do not view a state's decision to craft a
narrower policy as being inconsistent with federal
standards.  Further, Alabama's policy is consistent with
its State plan.  Therefore, we conclude that Alabama's
suspension policy, as contained in its Assistance
Payments Manual, represents PSP.

The facts of this case fall squarely within the
prospective budgeting policy described in the Assistance
Payments Manual.  TL was ineligible for the month of
October, based on her wages from her job at Wal-Mart. 
ACF has not suggested that there was any reason to
believe her job was temporary, as of the time she began
work.  In November, she lost her job, which represented a
significant change in her circumstances.  The loss of her
job was a change in the circumstance which caused
ineligibility originally.  Therefore, according to PSP,
the caseworker was required to assume termination, and
prospective budgeting is applicable to the first two
payment months (November and December) following the one-
month break in eligibility (October).   3/  Moreover,
this result is consistent with the QCM provision which
directs that prospective budgeting be used following a
month of ineligibility where suspension is not
appropriate.  QCM � 3430,  5.

ACF argues that the use of prospective budgeting in this
case would inject an element of speculation into the QC
process.  ACF acknowledges that the eligibility worker
would have had the option to terminate AFDC to the
recipient, had the recipient reported the earnings from
her job.  However, in fact, the recipient did not report
her earnings, the worker did not terminate AFDC, and the
recipient was ineligible for only one month.  Thus,
according to ACF, QC review cannot speculate, after the
fact, as to what the eligibility worker might have done.
 Based on the facts known in hindsight, the recipient was
ineligible for a single month and, therefore, suspension
should apply.

We agree with ACF that, to the extent possible, the QC
process should avoid speculating about what might have
been--but was not--done in a given case.   4/  However,
where, as here, a written State policy instruction is
applicable, it is not speculative to assume that the
State worker would apply that instruction.  Here,
speculation is not an issue because the State Assistance
Payments Manual directs the eligibility worker, in
essence, to treat the case as terminated as of October
and to budget the case prospectively for November and
December.  Budgeted prospectively, the payment for
December was proper.  Therefore we find for Alabama.

Conclusion

For the reasons stated, we reverse ACF's determination
that TL was ineligible for the AFDC payment she received
in December 1993.


      __________________________
      Peggy McFadden-Elmore


      __________________________
      Maxine Winerman


      __________________________
      Leslie A. Weyn


* * * Footnotes * * *

      1.    The State QC review number is 312075.
      2.    We refer to the recipient by her initials to
protect her privacy.
      3.    Indeed, in a December 30, 1994 Memorandum to
ACF's Regional Administrator for Region IV, ACF's
Director of the Office of Family Assistance indicated
that Alabama's practice was consistent with federal
policy and affirmed that the QCM was not intended to
include every aspect of program policy.  Attachment F to
Alabama's request for a hearing.  However, this
Memorandum is not helpful in the resolution of this case,
in that it appears to assume a different result in a fact
situation similar to the present case.  In response to a
question from the Panel, Alabama stated that the result
described in the Memorandum is contrary to Alabama's
interpretation of its policy and that it has not been
able to find out from ACF the basis for ACF's statements
regarding Alabama's policy.  See Letter dated July 14,
1995 from P.L. Corley to Leslie A. Weyn.
      4.    ACF relies on an April 25, 1988 Memorandum
from the Director of the Office of Family Assistance to
the Regional Administrator for Region IV in support of
its contention that application of prospective budgeting
would be speculative in a Tennessee case involving facts
similar to those of this case.  See ACF Exhibit 2. 
However, there is no suggestion that Tennessee had a
written State policy instruction that was equivalent to
that found in the Alabama Assistance Payments Manual.