Department of Health and Human Services
Departmental Appeals Board
QUALITY CONTROL REVIEW PANEL
SUBJECT: Kansas Department of Social and Rehabilitation Services
Docket No. A-92-135
DATE: September 3, 1992
DECISION
The Kansas Department of Social and Rehabilitation Services (State) appealed the quality control (QC) review determination of the Regional Administrator of the Administration for Children and Families (ACF) in State QC review number 93073. ACF determined that an Aid to Families with Dependent Children (AFDC) grant recipient was overpaid because the recipient did not furnish a social security number (SSN) for one of her children as required by applicable law and regulations. ACF found specifically that the recipient received the SSN before the month preceding the review month and that the failure to report the SSN by the review date thus constituted a regular error and required the finding of an overpayment. The State took the position that the recipient received the SSN during the month preceding the review month so that the failure to report the SSN by the review date constituted a payment adjustment lag (PAL) error which did not require the finding of an overpayment.
For the reasons discussed below, we conclude that the recipient received the SSN before the month preceding the review month. Accordingly, we sustain ACF's finding of an overpayment.
Relevant Legal Authority
Section 1137(a) of the Social Security Act (Act) provides that, as a condition of eligibility for AFDC payments under title IV-A of the Act, a state shall require that "each applicant for or recipient of benefits . . . furnish to the State his social security account number . . ." Regulations implementing this requirement (commonly referred to as the "enumeration requirement") were issued in 1986. Section 205.52 of 45 C.F.R. states in pertinent part that a state title IV-A plan must provide that --
(a) As a condition of eligibility, each applicant for or recipient of aid will be required:
(1) To furnish to the State or local agency a social security account number, hereinafter referred to as the SSN . . . and
(2) If he cannot furnish a SSN (either because such SSN has not been issued or is not known), to apply for such number through procedures adopted by the State or local agency with the Social Security Administration. If such procedures are not in effect, the applicant or recipient shall apply directly for such number, submit verification of such application, and provide the number upon its receipt.
Under the Omnibus Budget Reconciliation Act of 1989 setting up the present QC system, a payment shall be considered erroneous for QC purposes if made to a family "any member of which is a recipient of aid . . . and does not have a social security account number (unless an application for a social security account number for the family member has been filed within 30 days after the date of application for such aid)." Section 408(c)(4)(B) of the Act.
The Quality Control Manual (QCM) issued by ACF contains several options for applications for SSNs, including the Enumeration at Birth (EAB) procedure used here. This permits a mother to apply for a child's SSN through the hospital where the child is born. The hospital sends the necessary information to the state's vital statistics office, which in turn transmits the information to the Social Security Administration (SSA) via magnetic tape for automatic issuance of a SSN. The QCM provides that, where this option is used, proof of application must be provided for the case file and "the SSN must be provided to the agency upon its receipt." QCM, Appendix W at 13.
Several official Agency issuances refer to the "total processing time" for receipt of the SSN through the EAB procedure. FSA-AT-89-3, dated July 20, 1989, states that the total processing time ranges from 8 to 17 weeks, depending on the state, while FSA-IM-89-12, dated June 6, 1989, and FSA-IM-88-15, dated November 28, 1988, state that the total processing time ranges from 3 to 13 weeks, again depending on the state. 1/
On September 9, 1991, ACF issued revisions to Appendix W of the QCM (effective as of the October 1991 review month) which added guidance for determining whether or when the recipient received his/her social security card. The revisions state in pertinent part:
Follow these guidelines when the date of receipt of an SSN is questionable:
* * * * *
b. Determine the date of receipt by adding 15 days to the issuance date indicated by SSA when the recipient cannot remember when s/he received the number.
Factual Background
The recipient, K.M., received a $563 AFDC grant for the review month of September 1991. The payment amount was determined based on an assistance unit which consisted of E.S. and her dependent children, including C.N., who was born on May 14, 1991. On the same day, K.M. applied for a SSN for C.N. through the EAB procedure. K.M. received Form SSA-2853 from the hospital, which certified that she had requested a SSN for C.N. and stated that she should receive her baby's social security card "in about 13 weeks." The SSA-2853 further stated:
In your State, it takes about 12 weeks before the information about your baby's birth is provided to the Social Security Administration. . . . The card will be mailed to you in about 1 week after we are notified by the State of your baby's birth.
The SSN was issued on July 15, 1991. On August 26 and September 25, 1991, the State agency sent notices to K.M. advising her that failure to provide C.N.'s SSN would result in the removal of C.N.'s needs from the case. The State agency received C.N.'s SSN from K.M. on October 9, 1991.
K.M. initially stated that she received the SSN on May 17 or 18, 1991 (prior to the date the SSN was issued). 2/ In response to a later inquiry by the federal QC reviewer, K.M. was unable to recall when she received the SSN or when she reported it to the State agency. However, when asked specifically why she did not provide the SSN when requested to do so in the August and September notices, she responded, "Didn't think I had the card." 3/
State QC found that the case was eligible for the review month of September 1991. Federal QC, however, found that the case was ineligible because C.N.'s SSN had not been reported as of the review date. Specifically, federal QC determined that K.M. received the SSN on July 30, 1991 by adding 15 days to the date of issuance in accordance with revised Appendix W of the QCM. Federal QC concluded that the inclusion of C.N.'s needs in the grant constituted a regular error, resulting in an overpayment of $59.
On appeal, the State argued that the 15-day period used by ACF to determine the date the SSN was received by K.M. was arbitrary because no rationale for selecting that time period was articulated. The State also argued that ACF's use of the 15-day period was inconsistent with various Agency issuances which the State said indicated that it could take from 13 to 17 weeks from the date of application for the SSN to be received. In addition, the State noted that it had contacted an account number clerk in the Pittsburg SSA office, who stated that it had been her experience that it takes from 2 to 3 weeks, and occasionally even longer, for someone to receive their SSN after it is issued.
Discussion
There is no dispute that if K.M. received the SSN after July 30, 1991, her failure to report the SSN by the September 1, 1991 review date was a PAL error and did not result in an overpayment, whereas if K.M. received the SSN on July 30, 1991, or earlier, her failure to report the SSN by the review date was a regular error and resulted in an overpayment. Both parties agree, moreover, that K.M.'s statements regarding the date of receipt are inconclusive. Thus, the question presented here is what receipt date can reasonably be imputed for purposes of determining whether there was an overpayment.
As previously noted, ACF calculated the date of receipt by adding 15 days to the date of issuance, in accordance with revised Appendix W. However, this document is by its own terms effective beginning with the October 1991 review month. Since the review month in question here is September 1991, the revision is not binding on the State.
ACF nevertheless contended that adding 15 days to the date of issuance of the SSN was a more accurate way to determine the date of receipt than using the total processing time, as the State sought to do. According to ACF, 15 days is "the average mailing time," i.e., the average time it takes for a SSN to get from SSA to the recipient through the mail. ACF response to State's appeal request at 4. ACF contended that adding this time to the date of issuance was more reliable than adding the total processing time to the date of application since the total processing time is subject to more variation (e.g., due to how fast a hospital mails out the EAB application or to SSA workload levels).
We conclude that ACF properly determined that the SSN was received within 15 days of its issuance. It is a matter of common knowledge that 15 days is well in excess of the length of time it normally takes for a letter to be delivered in the continental United States. The State did not specifically dispute ACF's assumption that the SSN was mailed on the day of issuance, or offer any reason why it would have taken more than 15 days for the SSN to be delivered in this particular case. Instead, the State merely cited the statement of an "account number clerk" in the Pittsburg SSA office (not the office which would have served K.M.) that it took two to three weeks from issuance, and sometimes longer, for a SSN to be received. The State did not explain the basis for the account number clerk's statement, which in any event was not a sworn statement but was merely related by the State.
Furthermore, we agree with ACF that the Agency issuances relied on by the State do not establish that the SSN was received after July 30. These issuances specify a wide range of total processing times from as few as three weeks to as many as 17 weeks. Since the issuances indicate that the total processing time depends on the individual state, Kansas cannot simply assume that the processing time here was in excess of 11 weeks. (The July 30, 1991 receipt date calculated by ACF was 11 weeks from the date of application.) Moreover, although the SSA-2853 stated that K.M. would receive the SSN in about 13 weeks, this estimate was based on the time from date of application to date of issuance and does not take mailing time into account. Since it is undisputed that the SSN was issued on July 15, 1991, the time specified in the SSA-2853 is not relevant.
Conclusion
For the foregoing reasons, we conclude that K.M.'s failure to report the SSN by the review date constituted a regular error. We therefore sustain ACF's finding of an overpayment.
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Thomas D. Horvath
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Maxine Winerman
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Carolyn Reines-Graubard
* * * Footnotes * * *
1. These documents were issued by the Family Support Administration (FSA). The AFDC program was previously administered by FSA, which was one of several agencies combined into ACF effective April 15, 1991.
2. This statement is noted in the Regional Administrator's April 1, 1992 difference letter; however, there is no indication when the statement was made.
3. The State reported this statement in its "State Response to Difference Letters," dated March 19, 1992; however, it did not indicate when the statement was made.
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