New York State Department of Social Services, QC No. 19 (1992)

Department of Health and Human Services

Departmental Appeals Board

AFDC QUALITY CONTROL REVIEW PANEL

SUBJECT:  New York State  
Department of Social Services
Docket No. A-92-142

DATE:  August 24, 1992

DECISION

The New York State Department of Social Services (State)
appealed the April 24, 1992 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) assistance
unit was ineligible for its assistance payment for the
review month of May, 1991 because there was no child
included in the grant.  For the reasons discussed below,
we sustain ACF's determination.

Background

The assistance unit (AU) had been comprised of the
recipient and her son.   1/  In March, 1991, the
recipient wrote to the State and requested that the son
be removed from the AFDC grant because she was receiving
$140 biweekly in child support on his behalf.  The State
removed the son from the AFDC grant effective April 1,
1991.  For the review month of May, 1991, the recipient
was the only person on the AFDC grant, and was awarded a
payment of $340.  The federal QC review found the case
ineligible because there was no eligible child in the
grant.

Law and regulations

Title IV-A of the Social Security Act (Act) provides for
payments to needy families with dependent children. 
Section 406(b) of the Act defines "aid to families with
dependent children" as money payments with respect to a
dependent child, and includes money payments to meet the
needs of the relative with whom any dependent child is
living.  Section 402(a)(38) of the Act requires that
State AFDC plans provide that income, resources and needs
of a dependent child's parents and any other dependent
child in the family be considered in determining
eligibility and need for the child.   2/

Analysis

The State requested that the Panel find that the ACF
determination of ineligibility was incorrect, and that
the mother and son comprised an AU eligible for an award
of AFDC, with the child support received on behalf of the
recipient's son considered as income.  As explained more
fully below, we find that under the Act and supporting
regulations, the presence in the AU of a child is a
prerequisite for the award of AFDC, except in limited and
specified exceptions not applicable here.  We also
decline to find that the recipient and her child
comprised an AU eligible for an award of AFDC, as the
State asserts, as there is no evidence that the State
processed the case in this fashion for the review month.

1.  AFDC is conditioned on the presence of a dependent
child.

At the outset, we note that ACF's finding that the State
removed the recipient's child from the AFDC grant and
made an award to the recipient alone was not contested. 
Instead, the State asserted that its appeal efforts were
prejudiced because ACF has changed the basis of its
ineligibility determination throughout the QC difference
and appeal process.  The State argued that ACF's original
QC finding was that there was no dependent child on the
grant, that the ACF Regional Administrator's decision
found that there was no needy child, and that ACF did
not, until its response dated July 2, 1992, base its
finding on the absence of a child from the grant.

However, we find that ACF's point has been clear
throughout this process:  there must be a child in the
grant for the AU to be eligible for AFDC.  The existence
of need or dependency on the part of a child is
irrelevant if that child is not included in the AU. 
Regardless of whether ACF's finding was classified as
absence of a dependent child, or absence of a needy
child, it is apparent that ACF's QC determination
resulted from the fact, not disputed by the State, that
there was no child in the AU for the review month.  This
is apparent from the statements in ACF's original QC
determination letter, dated February 25, 1992, that the
only child potentially eligible for assistance was
removed from the AFDC grant effective April 1, 1991, and
that the only person on the grant for the review month
was the recipient.  State Exhibit (Ex.) 1.  We believe
that these statements were sufficient to put the State on
notice that it was the absence of the child from the
grant that was the basis of the QC finding of
ineligibility, and not whether or not the child met the
standards of dependency and need.

The existence of a dependent child, and thus a child, in
the AU is the central focus of the AFDC program.  Section
406(b) of the Act, for example, defines AFDC as money
payments "with respect to a dependent child."  This
section also provides that AFDC includes money payments
to meet the needs of the relative with whom any dependent
child is living.  Similarly, section 402(a)(38) of the
Act requires that state AFDC plans provide that, in
determining eligibility and need for a dependent child,
the State shall include the child's parents and any other
dependent child in the family in the determination.

The regulations also base an award of AFDC on the
presence of a child.  The definition of application in
the regulations provides that the relative with whom a
child is living or will live ordinarily applies for AFDC
"for the child."  45 C.F.R. � 206.10(b)(2).  In order for
the family to be eligible for AFDC, an application with
respect to a dependent child must also include the
child's parents and other specified relatives, if living
in the same household and otherwise eligible for
assistance.  45 C.F.R. � 206.10(a)(1)(vii).  The State
included a copy of a Social Security Administration (SSA)
Action Transmittal which instructs states in the
implementation of this requirement that certain family
members must file for assistance as a unit.  SSA-AT-86-1,
State Ex. 7.  It is couched in terms of whether or not
the family members in question live in the same household
as the dependent child.  We thus find that the purpose,
description and requirements of the AFDC program clearly
assume the presence of a child in the AU.

The State argued that while a dependent child is defined
as one who is needy, need is not defined in the Act or
regulations, and that consequently the State was free to
apply its own standards in determining need.  It argued
that under the State's regulations, the child's neediness
is not to be determined independently but rather as part
of the family unit.  Thus, it does not matter that the
child may have had income sufficient for its needs, where
the mother did not and the family was thus still needy. 
The State also cited the case of Burns v. Alcala, 420
U.S. 575 (1975), for the position that need is determined
under state standards, and that benefits must be provided
to all individuals who meet the need standard.  However,
as we noted above, since there was admittedly no child
included in this AFDC grant, it is not germane to this
inquiry whether the child who could have been but was not
included was dependent or needy.  Although the State may
have been required to provide benefits to the child if he
had been included in the AU, it instead provided benefits
to the recipient alone.

The State also cited another State regulation, which
provides for categorical eligibility of a child with
sufficient resources to meet its needs where a parent
essential to his needs has insufficient means for self
support.  On its face, this regulation does not appear to
address the instant situation, where the State has
excluded the child from the AU.  It does not overcome the
clear federal requirement that an award of AFDC be based
on the presence of a child.  Additionally, we note that
the State is free to provide assistance to those persons
who are not covered by, or are not eligible for,
assistance under federal programs.

The State provided a copy of a public assistance
recertification form, dated February 13, 1991, which
includes the name of the recipient's child.  The State
reported that this form is used as the application for
public assistance, medical assistance, and food stamps. 
Although the recipient subsequently requested that the
child be removed from the grant, she also stated that she
was still in need of medical assistance for him.  Thus,
the State argued, the removal of the child from cash
assistance while simultaneously requesting medical
assistance did not constitute removal of the child from
the application.  The State noted that 45 C.F.R.        
  � 206.10(a)(1)(vii) requires that an application with
respect to a dependent child must also include other
eligible family members; here, the application was made
with respect to the child.  Again, however, these
arguments must fail in light of the fact that, subsequent
to the date of the application, the child was removed
from the AFDC grant, a fact that the State has not
denied.  That an application may have still been made for
other forms of assistance has no bearing on this appeal.

The State also, by reference to its request for
reconsideration by ACF, noted that there are exceptions
to the requirement that there be a dependent child in the
grant.  These exceptions provide for assistance to
pregnant women (45 C.F.R. � 233.90(c)(2)(iv)) and for the
exclusion from the AU, for the purposes of determining
need and the amount of assistance, of individuals
receiving SSI (45 C.F.R. � 233.20(a)(1)(ii)).  As ACF
argued, these are limited, specific exceptions which by
their terms are not applicable in this case.

2. Inclusion of the child in the AU.

The State requested that the Panel find that the AU
consisted of the recipient and her son, with the child
support considered as income to the unit.  The State
asserted that even considering the $140 received biweekly
in child support as income, the recipient and her child
would still have been eligible for assistance.  The State
reported that the child support resulted in net monthly
income of $253.10 (after deduction of the first $50),
less than the applicable need standard for a family of
two of $453.   3/

However, this argument, that the child support did not
render the recipient and her child ineligible for
assistance, assumes that the child was included in the
AU, which was not case here.  The State did not dispute
ACF's determinations that it removed the child from the
recipient's AFDC grant at her request, and awarded $340
to the recipient alone for the review month.  Although
the State might have been able to award some amount of
assistance to the recipient and her son, it did not do
so.  The focus of our inquiry is what the State did that
led to ACF's finding of a QC error, not what other
actions the State might have been permitted to take.

The State's information suggests that including the child
(and the child support received on his behalf) in the AU
would have been the correct course to follow, at least
for the purpose of maximizing the recipient's federally-
funded AFDC award.  To accomplish this end, the State
could have advised the recipient not to remove the child
from the grant, and to file as an AU with the child
support considered in determining the award.  We note
that 45 C.F.R. � 206.10(a)(2)(i) requires that applicants
for assistance be informed about the eligibility
requirements and their rights under the program,
including information about coverage and conditions of
eligibility.

Conclusion

For the reasons discussed above, we conclude that the AU
was not eligible for the review month payment because it
did not include a dependent child, and we sustain ACF's
finding of ineligibility.

 

                          
 Carmen Cafasso

 

                          
 Thomas D. Horvath

 

                          
 Jeffrey A. Sacks


* * * Footnotes * * *

      1.  The household consisted of seven people:  the
recipient and the son; her live-in boyfriend and their
two children, the boyfriend's nephew, and a foster child.
 None of the other children were potentially eligible for
assistance.
      2.  A dependent child is a needy child who has been
deprived of parental support or care and who is living
with specified relatives.  Sections 406(a) and 407(a) of
the Act.
      3.  The State did not indicate the amount of
assistance that would have been paid to the recipient and
her child under its State AFDC plan.