Department of Health and Human Services
Departmental Appeals Board
AFDC QUALITY CONTROL REVIEW PANEL
SUBJECT: Appeal of Missouri Department of Social Services
Docket Nos. 92-157 92-161 92-197 92-205 92-217 92-241
DATE:
DECISION
The Missouri Department of Social Services (State) appealed the quality control (QC) review determinations of the Regional Administrator of the Administration for Children and Families (ACF) in these six cases. 1/ In each case, ACF found either that the assistance units (AU) were ineligible to receive an Aid to Families with Dependent Children (AFDC) grant or that their AFDC grant was overpaid, due to the fact that the AFDC recipients had not provided their newborn children's social security numbers (SSNs) to the local agency prior to the State QC review date.
For the reasons discussed below, we uphold ACF's determinations in these cases.
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 . . . 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 . . . . 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.
45 C.F.R. § 205.52 (1991) (emphasis added).
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 [SSN] . . . (unless an application for a [SSN] . . . 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 applying for a SSN. A state may have an agreement with the Social Security Administration (SSA) through which the local agency accepts applications for SSNs (termed "agreement" states). Once proof of application is in the case file, an AFDC applicant or recipient does not have to provide the SSN, when received, to the local agency, because SSA sends the number directly to the agency. In other cases, a state may refer an applicant or recipient to the SSA District Office to make direct application for a SSN (termed "non- agreement" states). In a non-agreement state, the applicant or recipient without a SSN must first provide proof of application for a SSN and then furnish the SSN, when received, to the local agency. Under the Enumeration at Birth (EAB) procedure, the procedure used in all five of these cases, a parent may apply for a SSN for a newborn child through the hospital at which 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 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. 2/
Factual Background and State Arguments
In all five of these cases, the AFDC recipients in question had applied for SSNs for their newborn children through the EAB procedure and all had received their children's SSNs prior to the State QC review date. The recipients had not, however, furnished these SSNs to the local agency upon receipt or as of the State QC review date. Based on the fact that the recipients had not reported their children's SSNs to the local agency as of the review date, ACF found each of these cases either overpaid or ineligible.
The State does not dispute that in these cases the recipients received their children's SSNs. Further, the State does not dispute the fact that these SSNs were not reported by the review date. The State contends, however, that it is an agreement state and, therefore, its AFDC applicants or recipients are not required to report a SSN, when received, to the local agency. The State argues that element 170 of section 3539 of the QCM (a prior version of what is now element 170 of Appendix W) requires only that a recipient be enumerated and that the accuracy of the recipient's SSN be verified, but does not require that the SSN be reported to the local agency. Thus, the State argues that in these cases all that is required to satisfy the enumeration requirement is that proof be shown that a SSN has been applied for, which the State asserts was done in each of these cases by use of an "E" on a computer screen. 3/ Further, the State asserts that it had received approval from FSA 4/ for using the "E" as verification that the enumeration requirement was met, via both a September 7, 1989 letter from Dwight F. High, Regional Administrator, FSA and in oral advice given to State employees by FSA employees (documented in handwritten notes made by State employees of telephone conversations with FSA employees of October 2, 5, and 6, 1989 and November 6, 1989). The State argues that it has used this policy clarification as a guide to enumeration since then and that, until these cases, ACF had not cited such errors. Finally, the State argues that upon an ACF change in position regarding this matter, the State should have been notified and allowed time to implement the change. State Appeal Requests of May 29, 1992, June 4, 1992, July 9, 1992, July 21, 1992, August 17, 1992, and September 9, 1992.
Discussion
In prior decisions we have sustained ACF's findings of erroneous payments in cases where AFDC recipients who have properly applied for their children's SSNs through the EAB procedure and then verified that application, have failed to furnish their children's SSN to the local agency upon receipt. We held that it is not sufficient to satisfy the enumeration requirement that an applicant for or recipient of AFDC actually have a SSN or have applied for one. An applicant or recipient who has a SSN must furnish it to the local agency upon receipt. Kansas Department of Social and Rehabilitation Services, Docket No. A-92-135 (1992); New Mexico Human Services Department, Docket No. A-92-78 (1992); Tennessee Department of Human Services, Docket Nos. 91-148, 91-149, 92-26 (1992), upheld on reconsideration (1992). Similarly, in this case we conclude that verification of application does not suffice to satisfy the enumeration requirement.
The purpose of the enumeration requirement is not to see that all AFDC recipients have SSNs. The purpose is to use recipients' SSNs to obtain verification of an AU's income in order to determine eligibility and benefits. To this end, the regulations specifically require that all members of an AU without a SSN apply for one and then furnish the SSN upon receipt. 45 C.F.R. § 205.52. If verification of application for a SSN sufficed, once an applicant or recipient had verified the filing of an application for a SSN, that applicant or recipient would never have to report the SSN to the local agency, thus defeating the purpose of the enumeration requirement.
The State argues that it is an agreement state, and that in an agreement state it is not necessary for an applicant or recipient to report a SSN when received. However, this is precisely because the SSA provides the SSNs of AFDC applicants or recipients to agreement states such as Missouri. The recipients in these cases, however, had not applied for their children's SSNs via agreement state procedures. Instead, they chose to apply for their children's SSNs through the EAB procedure. Moreover, the State is incorrect in its characterization of section 3539 of the QCM. Both section 3539 and the revised EAB procedure now reflected in Appendix W require more than that an applicant or recipient simply have a SSN or that the SSN itself be verified once it is reported. Instead, all versions of the QCM identifying EAB as an enumeration option provide that under the EAB procedure, "in all cases, the SSN must be provided to the agency upon its receipt". 5/
The State's final argument is that, in citing enumeration errors in these cases, ACF has changed its position, from allowing the "E" on the computer screen to satisfy the enumeration requirement, to now requiring applicants and recipients utilizing the EAB procedure to furnish their SSN upon receipt. The State asserts that it relied on FSA's advice that the former was permissible, and that the State should have been allowed time to implement the change. The State offers Mr. High's letter, and State employees' handwritten notes of alleged oral conversations with two FSA program specialists, as evidence that FSA had approved the use of the "E" on the computer screen as sufficient to satisfy the enumeration requirement under EAB. We do not believe, however, that this evidence adequately supports the State's argument.
Mr. High's letter of September 11, 1989, written in response to a State request of August 10, 1989, approves the use of the "E" on the computer screen as verification that the recipient has applied for a SSN. However, neither the State's letter requesting acceptance of this EAB procedure, nor Mr. High's response, address the requirement set forth in the regulations and the QCM that the SSN be reported upon receipt. Further, the State employee's notes of a November 6, 1989 telephone conversation with an FSA employee do not address the EAB procedure, but concern whether or not, under agreement state procedures, an applicant or recipient's SSN has to be reported upon receipt.
Thus, only a State employee's notes of telephone conversations with an FSA employee on October 2, 5, and 6, 1989, even address the State's contention that FSA gave oral advice that, even if an applicant or recipient had received a SSN, no error would be cited as long as an "E" appeared on the computer screen. We do not believe, however, that this alone precludes ACF from finding enumeration errors in these cases. These notes simply reflect a state employee's understanding of what occurred during telephone conversations. The State has not submitted any other evidence to substantiate this understanding. Furthermore, under Section 408(c)(3)(C) of the Act, only if the State relied upon and correctly used written statements of federal policy in making a payment, is ACF is precluded from considering the payment erroneous. The Act, by requiring written statements as to federal policy, recognizes that oral representations with regard to federal policy are unreliable, as they are subject to misrepresentation and misconstruction. Here the only statements of written federal policy with regard to EAB, as outlined in the QCM, clearly state that under the EAB procedure a SSN must be reported when received. The Act thus precludes the State from arguing its reliance on FSA's oral representations. Furthermore, even if we accepted the State employee's 1989 notes as evidence that FSA advised the State that under EAB a SSN did not have to be reported when received, any reliance on the part of the State on such advice is overcome by the QCM's clear language with regard to the necessity of reporting a SSN when received.
CONCLUSION
For the reasons discussed above, we conclude that the payments made in these cases were either overpayments or payments to ineligibles, as found by ACF. Accordingly, we affirm ACF's determinations.
Carolyn Reines-Graubard
Leslie Sussan
Maxine Winerman
* * * Footnotes * * *
1. These cases have been consolidated as the legal issues and the parties in each case are the same.
2. The current provision for satisfying the enumeration requirement using the EAB option is found in Appendix W, Element 170, of the QCM. This provision became effective on October 1, 1991. The review date in three of these cases was prior to this effective date, and in the remaining three cases after. However, earlier versions of the QCM regarding EAB were similar to the current version, and all required that the SSN be reported to the agency upon receipt.
3. Under the State's EAB procedure, the form completed by the hospital for the certification of birth includes a question asking if the mother wishes to obtain a SSN for her newborn. If she does, the hospital forwards this form to the State's Department of Health, and that information is automatically sent to SSA for issuance of a SSN for that child. At the same time the Department of Health enters an "E" in its computer system showing that a SSN has been applied for. The local agency has access to this system, via a computer screen. August 10, 1989 letter from Gary Stangler to Dwight High.
4. The AFDC program was previously administered by the Family Support Administration (FSA), which was one of several agencies combined into ACF effective April 15, 1991.
5. The State is now entering a pilot program where the SSA will report the SSNs of individuals enumerated under EAB to the State, as is now done under agreement state procedures. State Appeal Requests of May 29, 1992, June 4, 1992, July 9, 1992, July 21, 1992, August 17, 1992, and September 9, 1992. The pilot program was not in effect when these cases arose.
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