New York State Department of Social Services, QC No. 60 (1994)

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-94-011
Decision No. QC60-R

DATE:  January 28, 1994

 DECISION ON RECONSIDERATION

The Administration for Children and Families (ACF)
requested reconsideration of the Panel's decision in New
York State Department of Social Services, DAB QC52
(1993)(Docket No. A-92-253).  In that decision we
reversed ACF's error determinations in two cases
involving "essential person" status under New York's
State Plan.  In the two cases, the New York State
Department of Social Services (NYSDSS) conceded that it
had committed errors, but disagreed with ACF as to the
measure of those errors.  In one case ACF found the Aid
to Families with Dependent Children (AFDC) assistance
unit (AU) ineligible rather than overpaid, and in the
other case ACF identified a larger overpayment than that
found by NYSDSS.  The basis for ACF's findings was its
conclusion that NYSDSS must treat as available to the AU
the excess income or resources of individuals residing
with the AU who had been presumed to be essential
persons.  The Panel reversed ACF's findings because we
agreed with NYSDSS that, under New York's State Plan, the
individuals in question were not eligible for essential
person status.

The key to our earlier decision was our interpretation of
 the New York State Plan's definition of an essential
person as one who is "eligible for public assistance
other than AFDC on the basis of income and resources."  
NYSDSS contended, and we agreed, that the quoted language
excludes from the class of essential persons someone who
was receiving public assistance for which that person
was, in fact, ineligible.  The individuals ACF contended
must be treated as essential persons were ineligible for
the public assistance payments they had received.  On
that basis we concluded that the individuals were not
essential persons and, thus, their income was not
required to be treated as available to the AUs.

The Panel's Guidelines provide that a party may request
reconsideration of a Panel decision upon a showing of a
clear error of fact or law.  ACF requested
reconsideration of our earlier decision, contending that
it contained errors of fact and law.  ACF asserted that
our interpretation of New York's State Plan is erroneous
as a matter of law.  ACF contended that the phrase "is
eligible for public assistance" in the State Plan must be
read in light of State written policies which include the
phrase "is eligible for or is receiving public
assistance" (emphasis added).  ACF interpreted "is
receiving" to include improper receipt of public
assistance.

We have carefully considered ACF's arguments and NYSDSS's
responses.  The arguments advanced by ACF to justify
reconsideration are, in substance, the same arguments
that we considered and rejected in our initial decision.
We remain convinced that New York's State Plan requires
essential persons to be eligible for public assistance. 
ACF's contention that an ineligible public assistance
recipient must be treated as an essential person is
irreconcilable with the plain language of the State Plan.
 ACF's contention that both NYSDSS and ACF understood and
intended the State Plan definition to extend to all
public assistance recipients whether eligible or not is
completely unsupported in the record.  Therefore, we
conclude that our prior decision was not erroneous as a
matter of fact or law, and we deny ACF's request for
reconsideration.


Relevant Authority

Section 402(a)(7)(A) of the Social Security Act (Act)
requires that states, in calculating need for AFDC
purposes:

 take into consideration any other income and
resources of any child or relative claiming [AFDC],
or of any other individual (living in the same home
as such child and relative) whose needs the State
determines should be considered in determining the
need of the child or relative claiming such aid [.]

Federal regulations provide, at 45 C.F.R. �
233.20(a)(2)(vii), that a State Plan must:

 if the State chooses to establish the need of the
individual on a basis that recognizes, as essential
to his/her basic well-being, the presence in the
home of other needy individuals, . . . specify the
persons whose needs will be included in the
individual's need . . . .

Section 3577 of the QC Manual (QCM) provides:

 If the State chooses, in establishing the need of an
AU, to take into account the presence in the home of
another needy, but categorically ineligible
individual(s), PSP [Permissible State Practice] must
specify the kinds of individuals whose needs will be
included in determining the AU's need, and provide
that the decision as to whether any individual will
be recognized as essential to the recipient's well-
being shall rest with the recipient.

Permissible State Practice (PSP) is defined by regulation
at 42 C.F.R. � 205.40(a)(8):

 Permissible State practice means State written
policy instructions that are consistent with the
State plan . . . .  In all instances where written
instructions are not consistent with the State plan
or proposed plan amendments, permissible State
practice means the provisions of the State plan.

Similarly, section 3131 of the QCM defines PSP to mean: 
"written rules and policies that are in accordance with
existing, approved State plan provisions."

New York State Plan Amendment Transmittal No. 85-22
(effective September 17, 1989), provides:

 The following kinds of individuals may be recognized
as "essential persons:"

  Persons, relative or non-relative, who:

  1. reside in the same home as the recipient;

  2. are eligible for public assistance other than
[AFDC] on the basis of income and resources;

  3. persons who meet the above requirements are
presumed to be essential persons unless the head
of household states otherwise.

This State Plan Amendment was conditionally approved by
Administrator Wayne Stanton of the Family Support
Administration (FSA) (predecessor to ACF) in a decision
dated July 29, 1988.

ACF's Arguments

Briefly stated, the undisputed facts are that NYSDSS
presumed that two individuals receiving home relief
(general assistance funded by the State) and residing
with AFDC AUs were essential persons.   1/  State QC
review discovered that the home relief recipients were
ineligible, based on income and resources, for the home
relief payments they had received.  Based on their
ineligibility for home relief, State QC determined that
the individuals were also ineligible for essential person
status and cited QC errors on this basis.  State QC
calculated the payment errors by removing the needs and
resources of the home relief recipients from the AFDC
grants due the AUs.  ACF contended throughout these
proceedings that it was improper for NYSDSS to have
removed the needs and resources of these individuals from
the AUs in calculating the errors for QC purposes.

ACF contended that our earlier decision contained an
error of fact, in that we incorrectly assumed that FSA
had at one time interpreted the State Plan to require the
same result sought by NYSDSS in the present case.  See
DAB QC52 at 13 n.10.  ACF offered the affidavit of Thomas
DePippo, ACF Deputy Regional Administrator, Region II
(dated Oct. 26, 1993), for the proposition that the QC
decision to which we referred, issued by FSA on July 8,
1988, did not correctly reflect agency policy at the time
it was issued.

The balance of ACF's arguments on reconsideration
challenged the legal basis for our earlier decision.  ACF
argued that we had incorrectly interpreted the provisions
of New York's State Plan when we held that the Plan's
definition of an essential person as one who is "eligible
for public assistance other than [AFDC] on the basis of
income and resources" (emphasis added) precluded treating
a person wrongly in receipt of public assistance (i.e.,
home relief) as an essential person.  ACF relied on two
NYSDSS Administrative Directives which were not before
the Panel when we issued our earlier decision:  85 ADM-
44, dated November 7, 1985;   2/ and 88 ADM-53, dated
December 19, 1988.   3/

ACF argued that these directives proved that NYSDSS
intended the State Plan to include as essential persons
all home relief recipients whether eligible or not. 
Request for Reconsideration at 3-4.  Therefore, ACF
argued, the Panel was wrong to conclude that
Administrative Directive 91 ADM-29, which we analyzed in
our earlier decision, contradicted the State Plan.   4/

ACF additionally argued that the State Plan must be read
as supplemented by 91 ADM-29.  ACF impliedly argued that
ACF would not have approved the State Plan in the absence
of the language contained in 91 ADM-29.  Request for
Reconsideration at 4 & n.3.  ACF's position appears to be
that a definition of essential person which would exclude
persons who received public assistance payments for which
they were not eligible would conflict with federal law. 
 5/


Analysis

It is in the interests of all parties that the issues be
fully developed during initial decision proceedings
before the Panel.  Therefore, under most circumstances,
the Panel will not consider, on reconsideration,
documents or legal arguments that could have been
presented previously, but were not.  The Administrative
Directives which ACF asserts justify reconsideration of
our earlier decision in this case all substantially pre-
date any proceedings before this Panel and do not
constitute newly-discovered evidence.  We nevertheless
address ACF's arguments here, but only to make clear that
they would not change our conclusion that reconsideration
is not warranted.

The only issue in this case is whether the language
"eligible for public assistance other than [AFDC] on the
basis of income and resources" in the State Plan must be
read to apply to individuals who are receiving public
assistance for which they are, in fact, ineligible.  In
our view, the answer is self-evident.  A person who is
wrongly receiving public assistance because that person
is ineligible for assistance on the basis of income or
resources is, by definition, excluded from the category
of essential persons.  Nor can we discern any requirement
in federal law that would require a different result.

The essence of ACF's argument on reconsideration was that
both NYSDSS and ACF intended and understood the State
Plan definition of essential persons to apply to all
persons in receipt of public assistance.  ACF cited to
Administrative Directive 85 ADM-44, which contains the
phrase "is eligible for or is receiving public
assistance" in defining essential person status.   6/ 
ACF argued that the State's use of the "is receiving"
language in a directive which pre-dated the State Plan
demonstrated that the State intended to include in its
definition of essential persons all recipients of public
assistance--whether eligible or not.   7/

NYSDSS asserted throughout these proceedings that the "is
receiving" language should be read to mean "is properly
receiving" public assistance.  On that basis, NYSDSS
contended that there was no conflict between the
provisions of its regulations and administrative
directives and its State Plan.  Although our earlier
decision did not adopt NYSDSS' interpretation of the
disputed language, we cannot say that NYSDSS'
interpretation is unreasonable.  Given that the language
can be interpreted as consistent with the State Plan, we
cannot conclude that it demonstrates an intent to adopt a
policy that would negate the Plan definition.  Indeed,
were we to reconsider our previous decision, we might
conclude that we should defer to NYSDSS' interpretation
of its directives and regulations as consistent with its
State Plan.  However, reconsideration of our previous
interpretation would not change the result in this case.
 Therefore, we decline to reconsider our decision on this
basis.

In addition to arguing that the State intended to include
all public assistance recipients in the class of
essential persons, ACF asserted that the State Plan
language approved by ACF actually incorporated the "is
receiving" language found in the administrative
directives.  ACF argued that the "is receiving" language
was incorporated into the State Plan because 91 ADM-29
was issued to address the operational conditions imposed
by Administrator Wayne Stanton of FSA when he approved
the State Plan amendment relating to essential persons.

ACF's suggestion that ACF would not have approved the
State Plan amendment if 91 ADM-29 had not added the "is
receiving" language is completely unsupported in the
record.  Administrator Stanton's decision approved the
proposed amendment, subject to the following two
conditions:

  1. The New York State Department of Social
Services is to issue a written directive to
caseworkers instructing them: (1) to explain the
concept of "essential person" to recipients and
(2) to ask recipients whether they consider as
essential to their well-being each individual
residing in their home whose only possible basis
for being included in the grant is that he is an
essential person; and

  2.  The New York State Department of Social
Services is to issue a written interpretation of
the term "head of household" in its amendment to
mean "recipient".

ACF Exhibit 7 in Docket No. A-92-253.  It is apparent
that the two conditions imposed by Administrator Stanton
did not relate to the State Plan requirement that an
essential person be eligible for public assistance. 
Therefore, we conclude that the wording of the State Plan
amendment defining an essential person as one who is
eligible for public assistance constitutes the approved
State Plan provision.

ACF argued on reconsideration that the Panel's
interpretation placed the State Plan in conflict with
federal statutes and regulations.  This argument is not
substantially different from ACF's previous position that
the result sought by NYSDSS would violate the requirement
of section 402(a)(7)(A) of the Act that the income and
resources of essential persons be treated as available to
the AU.  We rejected that argument in our earlier
decision because it assumes the existence of the precise
issue in dispute, namely:  whether the individuals in
question are essential persons or not.  Neither the Panel
nor NYSDSS disputed that if the individuals are essential
persons, their income and resources must be deemed
available to the AU.  The Panel remains convinced that
the individuals in question here are not essential
persons under the State Plan.  ACF has failed throughout
this proceeding to articulate a basis under federal law
for deeming the income and resources of an individual who
is not an essential person to be available to the AU.

Finally, the error of fact alleged by ACF does not
justify reconsideration of our decision.  The affidavit
of Thomas DePippo asserts that an earlier FSA QC decision
erred in concluding that an ineligible home relief
recipient was not an essential person and therefore
should be removed from the AU.  Even if it were true that
the result in that case did not reflect FSA policy at
that time, it would not present a reason to reach a
different result here.  In reaching our earlier decision,
we did not rely on the earlier FSA ruling, but simply
noted its existence.  DAB QC52 at 4 n.3.  The result
reached in our initial decision was based on our
conclusion that the definition of essential person
contained in the State Plan amendment represented PSP,
which could not be superseded by conflicting written
policies.  Our interpretation of that provision would be
the same regardless of FSA's policy at the time.


Conclusion

For the reasons stated, we conclude that our Decision No.
QC52 was not erroneous as a matter of fact or law. 
Therefore, we decline to reconsider it.


    _____________________________
    Leslie A. Sussan


    _____________________________
    Maxine Winerman


    _____________________________
    Leslie A. Weyn


* * * Footnotes * * *

      1.    Our initial decision recited the procedural
history of this case in some detail.  We do not repeat
that history here, as it is not material to our decision
to deny reconsideration.
      2.    Administrative Directive 85 ADM-44 contains
two statements regarding the definition of "essential
person:"

 Federal regulations allow the State to include in an
[AFDC] grant an allowance for the needs of any
household member(s) eligible for public assistance
who are essential to the well-being of the [AFDC]
recipient, but are not categorically eligible for
[AFDC].

 *  *  *

 The grant made to an applicant/recipient of [AFDC]
shall include the needs of any other individuals
 . . . provided that such individuals have applied
for and are eligible for or are receiving public
assistance, and whose presence is essential to the
recipient's well-being. . . .  This includes adult
and minor [home relief] recipients living in the
same household.

(emphasis added).

      3.    Administrative Directive 88 ADM-53 contains
the following language:

 New York State regulations provide that persons who
reside in the same home as the recipient and have
applied and been found eligible for public
assistance other than [AFDC] on the basis of income
and resources are presumed to be an . . . essential
person unless the head of household states
otherwise.

(emphasis added).

      4.    Administrative Directive 91 ADM-29 contains
the following definition of "essential person":

 An essential person is an individual(s) who has
applied for and is eligible for or is receiving
public assistance other than [AFDC], who is living
in the same home as an [AFDC] dependent child(ren)
who is an applicant/recipient, and whose presence is
essential to the [AFDC] recipient's well-being.

(emphasis added).
      5.    In its Reply, ACF denied that it was arguing
that the State Plan conflicts with federal law.  Instead,
ACF explained, its position is that the Panel's
interpretation of the State Plan is in conflict with
federal law.
      6.    ACF argued that 88 ADM-53 contained similar
language.  ACF's reliance on 88 ADM-53 is misplaced,
however, because the relevant language (quoted supra n.4)
focuses on eligibility, not receipt. 
      7.    ACF pointed out that New York regulations, at
N.Y. Comp. Codes R. & Regs. tit. 18, � 369.3(c)(2), also
include the "is receiving" language.  ACF argued that the
regulation was further evidence that the State intended
its essential person policy to include all public
assistance recipients.