Department of Health and Human Services
Departmental Appeals Board
QUALITY CONTROL REVIEW PANEL
SUBJECT: New Mexico Human
Services Department
Docket No. A-94-37
Decision No. QC64
DATE: April 13, 1994
DECISION
The New Mexico Human Services Department (New Mexico)
appealed the
quality control (QC) review determination of
the Regional Administrator of
the Administration for
Children and Families (ACF) in State QC review number
2346. In that case, ACF determined that the assistance
unit was
ineligible for Aid to Families with Dependent
Children (AFDC) because the
client, who initially applied
for AFDC in February 1993 and was approved for
March
1993, received excess income in the form of emergency
unemployment
compensation benefits (UCB) during the
review month of March 1993. New
Mexico conceded that the
payment was erroneous, but argued that the error
should
be considered as a payment adjustment lag (PAL) rather
than a
regular error. PAL errors generally are those
which result from a
change of circumstances in the month
preceding the review month. The
emergency UCB was
approved and issued in February but the check was not
received until March. ACF classified the error as
regular, rather
than PAL, on the grounds that --
(1) the unemployment benefits were approved and
issued before the
initial AFDC payment was approved,
and in new cases, conditions existing at
the point
of AFDC approval are not "changes in circumstances,"
and
(2) because the eligibility worker (EW) knew or
could have known
that the unemployment benefits
would be issued, the failure to include the
anticipated income in the "best estimate" made the
estimate inaccurate,
and all errors resulting from
inaccurate estimates are regular.
After the briefing was concluded in this case, the Panel
issued an order
to develop the record, which included a
preliminary analysis and a number of
questions to the
parties. Both parties responded to the order, and
their
comments have been considered in the analysis set forth
below.
We conclude that the error was regular, for the reasons
explained
below. Therefore, we sustain ACF's
determination.
Background
The recipient applied for AFDC assistance on February 17,
1993 (after an
initial contact on February 1, 1993)
because his unemployment compensation
benefits were
ending and he had been informed that a decision on his
request for emergency unemployment benefits would not be
made for six to
eight weeks. His AFDC application was
approved on February 26, 1993
for the review month of
March 1993. As of February 26, 1993, the case
record
contained the following information:
A computer search on February 24, 1993 showed only
the issuance of
the final regular unemployment
checks on January 28th (two week's payment of
$192)
and February 11th (a single payment of $96). New
Mexico
Exhibit (Ex.) 1, at 2 and Attachment (Att.)
7.
The February 11th unemployment check contained a
notation that
regular benefits had been exhausted.
Id., Att. 8.
A February 26, 1993 contact to the unemployment
office showed
payments of $288 to the recipient,
matching the two final checks which would
have been
received in February. Id., Atts. 7 and 9.
On this basis, the AFDC payment was approved on February
26th. The
State QC reviewers found that an approval
letter for emergency UCB was sent
sometime prior to
February 25, 1993, and the first check was issued on
February 25th (which meant actual mailing on the next day
according to
an interview with an unemployment office
supervisor). Id., at 2 and
Att. 14; Notice of Appeal at
5. The federal QC reviewers reported that
the approval
letter was mailed on February 23rd. New Mexico Ex. 2,
at 2 (Federal Reconsideration Decision, dated November 2,
1993).
New Mexico provided evidence that the computer records of
unemployment
benefits are updated once a week to reflect
benefits paid two weeks
previously. New Mexico Ex. 3.
The recipient reported that he
received the first
emergency UCB check sometime after March 1, 1993.
New
Mexico, Ex. 1, Att. 15. The endorsement on the copy of
the
check submitted by New Mexico is not legible but ACF
did not contest New
Mexico's assertion that it was cashed
sometime in March 1993. Notice
of Appeal at 5.
Analysis
It is uncontested that the payment in this case was
erroneous because the
recipient received excess income
from the emergency UCB. The only
issue is whether the
error should be counted as regular or excluded from the
error rate calculation as a PAL error. A PAL error is
defined in the Quality Control Manual (QCM) as a
discrepancy that
"results from a change in . . .
circumstances that first occurred in
the review month or
the month immediately preceding the review month" that
affects the review month's payment. QCM � 3300, at III-1
(references throughout are to October 1992 version
applicable in the
review month of March 1993 and relied
on by both parties). The purpose
of the PAL concept is
to account for "advance notice requirements or systems
limitations" which may prevent timely payment
corrections. Id. at
III-2. However, the QCM also
provides that, "[f]or new applications,
changes in
circumstances which occur prior to authorization of the
first
assistance payment will result in regular
discrepancies regardless of the
review date." Id. at
III-7.
ACF initially argued that the EW had information in the
file actually
reflecting the receipt of the emergency
UCB. Thus, ACF interpreted the
February 26th
confirmation of $288 in income from unemployment as
reflecting payments of $96 dated February 11th and the
first emergency
UCB check of $192 issued February 25th as
"anticipated and actual income" as
of that date. See
Federal QC Difference Letter, dated Sept. 10, 1993,
at 2.
ACF further argued that the case disposition notes on
the
date of AFDC approval showed that benefits were being
denied based on this
income. ACF Brief (Br.) at 4-5.
This is not the most reasonable inference to be drawn
from the case
record. The disposition section states
that benefits were denied in
February "due to anticipated
and actual income," that the anticipated income
was
$412.80 but the actual income received (based on the
February 26th
call to the employment office) was $288.
The emergency benefits could
not have been received as
actual income by February 26 when they had been
mailed at
the earliest only the preceding day, yet the case record
notes
do not refer to benefits issued but to income
actually received. ACF
is mistaken in stating that the
$288 figure reflected anticipated, as well
as actual,
income. We thus do not accept ACF's argument that the
record shows the EW to have had knowledge of the approval
of emergency
UCB or its receipt in the review month, and
to have acted in disregard of
that knowledge in approving
the recipient's AFDC payment. 1/
However, even accepting New Mexico's factual allegations
that the
approval of the emergency UCB was not known to
the EW when AFDC was approved
and that the check was not
received until after March 1st, we must consider
two
arguments supporting ACF's determination that the error
was
regular. We first discuss whether the error was a
result of conditions
existing prior to approval (and
therefore regular), as opposed to a change
of
circumstances in the month preceding the review month
(and therefore
PAL). We then consider whether the error
was a result of an inaccurate
estimate (and therefore
regular), as opposed to a change of circumstances
after
an accurate estimate was properly calculated (and
therefore
PAL). 2/
Regulations define a "change in circumstances" as "a
change occurring
after the date of authorization of the
initial payment which may affect the
assistance unit's
eligibility or payment amount." 45 C.F.R. �
205.42(d)(1)
(1992) (emphasis added). Similarly, the QCM states that
"[e]vents occurring prior to authorization of the initial
payment of
assistance are not changes in circumstances
for QC purposes." QCM �
3400, at IV-14; see also id. at
III-7. The QCM goes on to explain that
"the agency has
the opportunity to act on these changes before
authorizing payment." Id. at IV-14. These provisions
appear
to exclude a situation existing on or before the
day of the initial
authorization from the concept of a
change in circumstances justifying PAL
treatment.
Here, emergency UCB was approved and the first check
issued by February
26th, the date of initial
authorization of AFDC. Therefore, we must
consider
whether the UCB approval and payment was a relevant
income-related situation, or whether the receipt of the
check itself
(which did not occur until the review month
and therefore after the date of
AFDC authorization) was
the relevant change in circumstances.
New Mexico insisted that a change in circumstances
relating to income can
only be considered to have
occurred when the income is actually
received. In
support, New Mexico relied primarily on the following QCM
provision: "In ongoing cases involving income, the
change in
circumstance is the date income first differs
from the income amount" used
in the estimate on which the
review month payment was based. QCM �
3300, at III-5,
cited in Notice of Appeal at 8 (emphasis added).
3/
New Mexico noted that the QCM has a different provision
for new
cases where the income change results from a
change in employment status
(such as job loss or
promotion) "during the month of application." In
such
new cases, the change of circumstances is dated from the
status
change. QCM � 3300, at III-6. New Mexico pointed
out that no
exception is articulated in the QCM for new
cases in which the income change
results from approval of
emergency UCB or other non-employment related
status
changes. Consequently, New Mexico reasoned that the
general
rule is that such a change in income must be
considered to occur on the date
of receipt of the income
from the benefits, not on the date of the status
change,
i.e. approval, absent an express exception like that in
regard
to employment status in new cases. New Mexico
Reply Br. at 2.
Thus, New Mexico's position was that new
cases are expressly distinguished
from ongoing cases only
where employment status changes, and, in all other
income
changes in new cases, the rule for ongoing cases
involving income
changes should be applied to new cases
as well.
We read the phrase "in ongoing cases involving income" in
the QCM to mean
that changes in income in new cases are
to be treated differently from
ongoing cases. Otherwise,
the reference to ongoing cases in section
3300 would be
rendered meaningless. It is an elementary principle that
a reasonable interpretation of a provision which gives
effect to all its
terms should be preferred over one
which would render some of the language
chosen by its
drafter superfluous. The distinction between new and
ongoing cases implied in section 3300 can most reasonably
be interpreted
to mean that income changes in new cases
are governed by the general
proposition that events
should be accounted as they exist at the point of
AFDC
approval, while in ongoing cases, events prospectively
affecting
income are to be taken into account only when
they have resulted in a change
in income in hand. This
interpretation is in accord with the concept
that
preexisting conditions which affect the calculation of
the payment
amount in a new case are not changes in
circumstances, because the agency
has the opportunity to
take them into account in the application and
authorization process. (In ongoing cases, the agency may
not have
a review opportunity at which to react to a
change, especially before an
actual change in income has
occurred or where some prior notice is required
before
the agency acts adversely to the client. Hence, the
distinction drawn between new and ongoing cases in
relation to PAL
errors has some foundation in policy
considerations.)
New Mexico failed to account adequately for the
distinction in the QCM
between ongoing and new cases.
Instead, New Mexico argued that the
distinction is not
important on the grounds that the relevant change
occurred after the date of authorization here. Hence, no
preexisting conditions were involved, so it did not
matter that the case
was new. But, New Mexico's argument
is circular because it depends on
the income change rule
itself to define the relevant event as the receipt,
rather than the approval or issuance of the emergency
UCB. Yet
that rule applies by its terms only to ongoing
cases and cannot help New
Mexico here in defining the
relevant event in a new case. Therefore,
we conclude
that the date of receipt rule is inapplicable here
because
this was a new rather than an ongoing case.
New Mexico argued that the Panel was in error in deriving
this general
rule that events affecting prospective
income which occur before AFDC
approval in new cases are
required to be considered when they occur, rather
than
when the income is received. New Mexico asserted that
general
provisions of the QCM, other than the one
relating to ongoing cases quoted
above, set out a general
rule that changes of income-related circumstances
are
always considered to occur when the income is received.
New
Mexico Response to Order to Develop Record, at 2-3.
In support, New
Mexico cited sections 3300 and
3420(I)(B). We discern no support for
New Mexico's
position in those provisions. We have discussed the
reference to income-related changes in ongoing cases as
opposed to
employment status changes in new cases in the
text. The only other
portion of section 3300 which New
Mexico referenced was in the overview of
the PAL concept
which New Mexico asserted "ties a change in income
circumstances to the `start of/end of' income." Id.,
at 2.
Again, New Mexico ignored surrounding language
which makes clear in context
that the start and end of
income are only examples of possible
income-related
changes in circumstances. Thus, the provision
reads:
A change in circumstances is regarded as any status-
changing event
which will result in ineligibility or
a different amount of assistance . . .
. Examples
of changes in circumstances generally include
changes
in income (start of/end of), changes in
employment status (full/part-time,
loss of,
promotion/demotion, etc.), changes in resources,
changes in
conditions of eligibility.
Section 3300 of the QCM, at III-1 (emphasis added). An
almost
identical list of examples occurs in the
discussion of changes of
circumstances in Section
3420(I)(B) of the QCM at IV-9. New Mexico did
not
identify specific language in section 3420(I)(B) on which
it based
the assertion that the provision "indicates that
a change in income
circumstances occurs on the date when
income is received." New Mexico
Response to Order to
Develop Record, at 2. Section 3420(I)(B) nowhere
so
states. It does state in relation to new cases that:
Events occurring prior to authorization of the
initial payment of
assistance are not changes in
circumstances for QC purposes. Since the
agency has
the opportunity to act on these changes before
authorizing
payment, any discrepancies
(income/income-related factors as well as
non-income
factors of eligibility) are classified as regular
errors.
Section 3420(I)(B) of the QCM at IV-14 to IV-15. We
reject New
Mexico's argument that the QCM establishes a
general rule that all
income/income-related events are to
be considered as occurring only when the
actual income is
received. 4/
New Mexico also relied on Missouri Dept. of Social
Services, DAB QC30
(1992) as support for its claim that
the Panel should treat the events here
as constituting a
change in circumstances after AFDC approval, rather than
a preexisting set of events which should have been
reflected in the best
estimate. New Mexico Response to
the Order to Develop Record at
7. The Missouri decision
does not support New Mexico's position,
because Missouri
involved an ongoing case. For that reason, the
rule
treating all income-related changes in ongoing cases as
occurring
on the date of receipt directly applied to the
facts in Missouri, which
involved a change in employment
status in a preceding month resulting in a
change in
income in the review month. The Panel mentioned that the
rule would be different in a newly-approved AFDC case,
such as we are
faced with here. Missouri at 6, n.4.
Furthermore, the Panel in
Missouri noted that while the
date of a change of circumstances "usually"
decides
whether an error is regular or PAL, this is not the case
when
the estimate used by the state was inaccurate.
Thus, the Panel pointed
out, for example, that "ACF's
policy does not treat as PAL errors those
errors which
are based on inaccurate estimates of an AU's prospective
income, even if those errors would otherwise be PAL
errors based on the
date of the change in circumstance."
Missouri at 5.
5/ Nothing in Missouri is inconsistent
with finding a regular error in
a new case where a status
change affecting income but not related to
employment
occurred before initial AFDC authorization.
We therefore conclude that the change in the client's
status upon
approval and issuance of an emergency UCB
check was a situation existing
before AFDC
authorization. 6/ The later receipt of the
check which
had already been mailed did not constitute a change in
circumstances occurring after the authorization and
causing the
error. Therefore, the error was regular,
rather than PAL.
We further find, as an independent basis for our
conclusion, that the
estimate used by New Mexico was
inaccurate. The prospective budgeting
system requires
the EW to calculate for new applicants an estimate of
their anticipated income on which to base a payment
amount. The EW
must use a "best estimate," which
"accurately reflects all facts that
occurred (whether
known or unknown to the State) during the time frame(s)
which the State uses to determine the estimate." QCM
� 3420, at
IV-6. To weigh the accuracy of a "best
estimate," the QC reviewers
"may have to go beyond the
information used by the local agency . . .
because [the
best estimate must encompass] all information that could
have been known regarding" the recipient's income. QCM �
3420, at
IV-7. However, an estimate is inaccurate for QC
purposes when it is
not properly calculated based on all
information which could have been known
when the
calculation was made, not simply because it fails to
predict
actual circumstances correctly.
The EW's accuracy in following the required procedures in
making a best
estimate affects the nature of any error
that results from an income change,
because "if the
agency's best estimate . . . is not considered correct
because requisite information was not used or used
incorrectly, then all
income/income-related discrepancies
linked to or associated with the
inaccurate estimate are
classified as regular errors." QCM � 3300, at
III-8; see
also QCM � 3420.C.1 (any payment discrepancy in new cases
associated with an inaccurate estimate or a change in
income
circumstances before the date of the estimate is a
regular error, unless a
change in income circumstances
also occurred after authorization independent
of the
inaccurate estimate).
The procedures to be followed in making an estimate of
prospective income
are set by the State in its
permissible state practice (PSP).
7/ If the best
estimate was wrongly made based on the governing PSP,
the
PAL issue is irrelevant, and any resulting error is
always
regular. If no PSP covers the case circumstances,
then the best
estimate is the actual circumstances and
any income discrepancy will be
considered a regular error
regardless of whether it occurred in the PAL
period. QCM
� 3420, at IV-8. It is therefore important to
determine
whether New Mexico established a PSP governing the
circumstances presented in this case, i.e. approval of
emergency UCB and
issuance of a check before the date the
first AFDC payment was approved but
not resulting in
receipt of the first check until after the review
date.
New Mexico provided its PSP for formulating a best
estimate in response
to the Panel's questions. New
Mexico Response to Order to Develop the
Record,
Enclosure 2. The PSP, in relevant part, requires the
agency to consider its knowledge of "past and current
circumstances" and
to accurately reflect "all facts that
occurred (whether known or unknown to
the State)." The
State's methodology states that "If the amount of
income
or the receipt of income is uncertain, it will not be
considered. The exact income the budget group
anticipates to
receive during the month will be counted
[except for situations not relevant
here] . . . Exact
income is the actual income which the budget group
has
already received and anticipates to receive during the
month."
New Mexico State Plan, TN #92-2 at 1, approved
July 6, 1992. In
addition, the State manual provides for
accounting for anticipated changes
in future income, as
follows:
It must be determined if any factors affecting
income are going to
change in the current or in
future months. Such factors include
starting of
income source . . .
Income from a future month which the
applicant/recipient is not
certain to receive will
not be considered. Income will be considered
only
when the amount of the income and the date it is to
be received are
reasonably certain. In the event
that a change is known for future
months, benefits
will be computed taking into account the change in
income.
New Mexico Financial Assistance Manual, FA 442.9 (June 1,
1992).
Clearly, PSP obliged the agency to consider anticipated
income even if it
had not already been received at the
time the estimate was made. New
Mexico argued that the
income change in this case could not be anticipated
with
a reasonable degree of certainty so that the agency was
justified
in disregarding it. New Mexico Response to
Order to Develop Record at
7. However, the UCB benefits
had already been approved and the first
check issued at
the time of AFDC authorization. These facts sufficed
to
meet any reasonable requirement of predictability. 8/
The examples given in the State manual contrast the mere
hope of
obtaining part-time work (which is too uncertain
to consider) with an
employer's promise of a specified
raise in an amount verified by the
employer (which must
be considered). A raise could be withdrawn; the
employee
might be fired; the company might go out of business.
Despite these contingencies, the increased income must be
included in
the best estimate. By contrast, the
likelihood that a check already
issued by the State in an
amount certain will not be received appears
relatively
small. (Nor can New Mexico rely, as it suggested, on the
fact that the EW was given erroneous information
concerning the approval
of the emergency UCB as evidence
that the UCB benefits were uncertain.
The actual facts
at the time of making the estimate, which control
evaluation of the accuracy of the estimate, were that
approval had
already occurred and the benefits could be
anticipated with
confidence.) The situation at issue
does not resemble in any respect
the vague hope to obtain
work at an uncertain time and for an uncertain pay,
which
would justify disregarding anticipated income.
It is also worth observing that, in the example of the
raise, the best
estimate (in both ongoing and new cases)
must include the changed income
even though it has not
yet been received, merely based on the change in
"status," resulting from the employer's promise. This
undercuts
New Mexico's argument applying its
interpretation of the change of
circumstances as
occurring only upon receipt of income to the context of
formulating a best estimate.
New Mexico also cited the verification standards in its
State plan as
evidence that the EW was not required to
account for the emergency
UCB. New Mexico Response to
Order to Develop Record at 6. The
verification standards
list three sources for verification of unemployment
compensation: the wage data screen, a benefit check, and
an award
letter. New Mexico State Plan, TN 90-1 at 30,
approved February 9,
1988. These verification standards
apply to actual income (and they
appear in the manual
section on financial verification, not the section on
estimates and prospective budgeting). They would not
necessarily
be appropriate in verifying anticipated
income which is likely not to be
documented in the same
sources since it would not have occurred yet.
For
example, a new job or a raise beginning the following
month, though
verified with the prospective employer to
get a reasonably certain starting
date and amount of
anticipated income, could not be documented by the
verification standards methods for earned income, i.e. a
wage stub or
the Department of Labor wage data screens.
Cf. id. at 27.
The State manual contains a provision on documenting
anticipated income
in formulating a best estimate which
does not contain any limitation as to
the sources or
methods of documentation to be used to verify anticipated
income. It requires only that "[d]ocumentation must be
placed in
the case record to clearly show how the
anticipated income" was
computed. New Mexico Financial
Assistance Manual, � FA 445, at
20-12. Had the EW
obtained an accurate answer from the Department of
Labor
concerning the approval of the emergency UCB, any
documentation
showing the basis for the expected amount
would have been adequate to meet
this PSP. New Mexico
has not adopted any PSP permitting its EWs to
rely only
on the computer data, perhaps because the data is known
to be
out-of-date, 9/ nor to limit their inquiries to
specified
personnel at the unemployment office. While it
may seem unfair to
penalize New Mexico for failing to act
on information that the EW did not
actually possess, New
Mexico, rather than the federal government, is in the
best position to improve communication and information in
order to
prevent such delays from causing overpayments.
10/ The EW
was given inaccurate information, and as a
result, the estimate was
inaccurate.
Since all errors resulting from inaccurate estimates are
regular, we
conclude that the error in this case is
regular.
Conclusion
For the reasons explained above, we sustain ACF's
determination that the
assistance unit was ineligible and
that the error was regular.
Peggy McFadden-Elmore
Leslie Weyn
Leslie A.
Sussan
* * * Footnotes * * *
1. ACF's brief went
further, asserting that the
EW was "advised that [the recipient] was
authorized to
receive emergency UCB payment starting in February 1993."
ACF Br. at 4. We noted in our preliminary analysis that
there is no support in the record for this assertion, and
ACF failed to
provide any supporting evidence in
response. We therefore reject the
assertion that the EW
had actual information of the UCB
authorization.
2. The
phrase "change in circumstances" occurs
in relation to both the PAL and the
best estimate
concepts. As a result, the analysis of the two arguments
overlaps to some extent, although different QCM
provisions are
involved.
3. However,
New Mexico failed to refer to the
limitation to ongoing cases, which we have
emphasized in
the quotation and which, as we discuss, is critical. New
Mexico Notice of Appeal at 8.
4. New Mexico argued that the relevant change
can only be
considered to have occurred once the income
is received because "if for some
reason the EUCB had not
been received in the review month, due to a mail
loss for
example, there would be no error in this case." New
Mexico Response to the Order to Develop the Record at 2.
Under any
prospective budgeting system, it is always
possible that an unpredictable
event may occur during a
review month which would affect the correctness of
the
payment amount. Such events are dealt with by
retrospective
adjustments and, in the QC context, are
considered PAL errors.
However, the fact that a
subsequent unpredictable event might have caused
the
payment amount to be serendipitously correct does not
excuse the
error which in fact resulted from omitting
from the payment calculation
income expected as a result
of a change of status which had already occurred
before
the initial AFDC authorization.
5. The Panel in
Missouri went on to find that
the error in that case was nevertheless a PAL
error,
because the estimate was accurate. It was accurate,
despite
the fact that the state could have known of the
change of employment at the
time of the estimate, only
because of the application of the rule on when to
account
for income-related changes in ongoing cases in section
3300 of
the QCM. Missouri at 5-6.
6. New Mexico also argued that the operative
event in
defining a change of circumstances should be
consistent with the event
triggering reporting
requirements, since the PAL concept was, in part,
intended to account for advance notice requirements when
the agency was
to take action as a result of a change.
New Mexico Response to Order
to Develop Record at 9-10.
New Mexico cited section 512.91 of its
Financial
Assistance Policy Handbook, which requires AFDC
recipients to
report UCB "when any member of the
[assistance unit] receives" it, as
evidence a change in
unemployment benefits need not be reported until a
check
is received. First, the reporting requirement for an
assistance unit is not necessarily co-extensive with the
PSP for an EW
formulating a "best estimate." Second, the
reporting requirement
applies to ongoing recipients and
does not necessarily affect what
information an applicant
must provide or an EW seek in approving a new AFDC
case.
This only reinforces the reasonableness of the QCM in
treating changes in circumstances differently in new and
ongoing cases,
since advance notice and reporting
requirements are relevant only in ongoing
cases. Third,
the section also says that the assistance unit "must
report any change in the amount of unearned income, as
well as, the
termination of income." Nothing in the
section clarifies whether the
beginning, change or ending
of UCB are tied only to the date a check is
received, as
opposed to the date a recipient is informed of the change
or the date the check is cashed.
7. "A State should
describe its procedures for
establishing a best estimate in its PSP; QC will
review
accordingly." QCM � 3420, at
IV-7.
8. It is true,
as we have discussed above, that
the EW may well not have had actual
knowledge of these
facts. It may also be true, as New Mexico
contended,
that the EW took proper steps to obtain the information
without success. Nevertheless, as quoted in the text,
the best
estimate must be based not on the facts as
ascertained by the EW but on "all
facts that occurred
(whether known or unknown to the State)."
Furthermore,
while the computer posting system presently used in the
State may not permit a sufficiently timely turnaround to
prevent
miscommunication to eligibility workers about
very recent changes in
unemployment compensation, the
information was obviously available to at
least some
State workers, i.e. those who approved the UCB and issued
the
check.
9. New Mexico
argued that the EW could not have
obtained the information because the IEVS
is updated only
weekly and would not have reflected the approval and
issuance of the UCB check until some time after the AFDC
authorization. Notice of Appeal at 5-6. As noted in the
text, a best estimate is accurate only if it reflects all
information
that the State could have known, whether or
not the EW actually had those
facts in hand at the time.
Plainly, someone in the unemployment office
knew, as of
at least February 25th, that the recipient was going to
be
receiving emergency UCB for the coming
month.
10. New Mexico
asserted that the error was the
result of "federally-prescribed limits" on
"the
collection and use of UCB data." New Mexico Response to
Order
to Develop Record at 5. In support, New Mexico
references provisions
requiring states to establish
Income and Eligibility Verification Systems,
including
UCB data. Id., citing 45 C.F.R. �� 205.51(a)(3) and
205.55(a)(2). Since the data is not required to be
submitted with
enough speed to make it available in time
for the EW's inquiry in this case,
and since New Mexico's
IEVS was approved with permission to exclude UCB data
from otherwise-required follow-up efforts, New Mexico
concluded that any
failure to obtain accurate UCB timely
was the result of federal rules.
All of this is simply
irrelevant. The PSP for setting a best estimate
does not
restrict sources for determining anticipated UCB income
to the
IEVS (which, as noted, makes sense, because
anticipated income would not
ever be likely to appear in
those systems which report actual income
retroactively).
Therefore, the turnaround times for IEVS reporting in
New Mexico (even if they are as quick as required by
federal
regulations) do not control this case.
(..continued)