Wisconsin Department of Health and Social Services, QC No. 67 (1994)

 Department of Health and Human Services

 Departmental Appeals Board

 QUALITY CONTROL REVIEW PANEL

SUBJECT:  Wisconsin Department   
of Health and Social Services
Docket No. A-94-113
Decision No. QC67

DATE:  June 30, 1994

DECISION

The Wisconsin Department of Health and Social Services
(Wisconsin) appealed a March 7, 1994 quality control (QC)
determination by the Regional Administrator of the
Administration for Children and Families (ACF).  ACF
determined that Wisconsin's state QC review had erred in
finding that I.M. had received an overpayment of $232 in
her Aid to Families with Dependent Children (AFDC) grant
during the review month.   1/  ACF determined that
Wisconsin incorrectly calculated the overpayment amount
and that the actual overpayment amount in I.M.'s grant
was $375.  Wisconsin agreed that there had been a
calculation error in the amount of I.M.'s grant, but
determined that, after a review of I.M.'s case situation,
I.M.'s case should be dropped from the quality control
sample.

Thus, the dispute between the parties is not the proper
amount of I.M.'s AFDC grant, but whether I.M.'s case
should be included in the QC sample.  For the reasons
discussed below, we find that ACF was correct that the
case of I.M. should not be dropped from the QC sample.

Applicable Authority

Section 408(a) of the Social Security Act (Act) provides:

 In order to improve the accuracy of payments of
[AFDC], the Secretary shall establish and operate a
quality control system under which the Secretary
shall determine, with respect to each State, the
amount (if any) of the disallowance required to be
repaid to the Secretary due to erroneous payments
made by the State in carrying out the State plan
approved under this part.

Further, the Act requires each state to review a sample
of cases in which AFDC payments were made during the    
  review period in order to determine the level of
erroneous payments.  The Act then provides that the
Secretary shall review a subsample of the cases reviewed
by a state, and notify the state of any case in the
subsample which the Secretary finds involves an erroneous
payment.  See section 408(b)(1)(A) of the Act.

Regulations provide that a state agency in the operation
of its QC system shall follow the "policies and
procedures prescribed in the Quality Control Manuals
issued by the Department [of Health and Human Services]."
45 C.F.R. � 205.40(b)(1).

In regard to the practice of dropping a case from the QC
sample, section 3200 of the Quality Control Manual (QCM)
states, in relevant part:

 Occasionally, a reviewer will find that he/she
cannot complete a case review because of
circumstances which makes it impossible to obtain
enough information to render an eligibility and/or
payment determination.  If a review is not
completed, the case must be dropped from the sample.

 * * * *

 After the reviewer has verified as many elements as
possible, he/she completes or drops the case
according to the following criteria:

 * * * *

 2. If evidence to verify all the elements cannot be
obtained, and no eligibility error has been
identified, the case must be dropped.  A finding
of correctly paid, overpaid or underpaid cannot
be made unless all elements can be verified
because the effect of unverified elements on the
sample month's payment is unknown.

Thus, in order to prevail here and have I.M.'s case
dropped from the QC sample, Wisconsin must demonstrate
that it was unable to verify a necessary element of
I.M.'s case.

Factual Background

I.M.'s assistance unit (AU) consisted of herself and her
three children.  When her case was selected for review by
the Wisconsin state QC review, the state reviewer found
that I.M. had not reported income she had earned from a
job during the review month of October 1992.  The state
reviewer determined that I.M.'s AFDC grant was overpaid
$232 during the review month as a result of the
unreported income.  When ACF reviewed I.M.'s case, it
determined that the Wisconsin QC review incorrectly
calculated the overpayment amount and that the actual
overpayment was $375.  

Wisconsin admitted that its QC review had made a
mathematical error and that ACF's re-calculation of the
error amount was correct, but then argued that I.M.'s
case should be dropped from the QC sample because the
review also had produced contradictory evidence about
I.M.'s marital status and whether she was living with a
man, T.L., thereby calling into question the composition
of her household, which Wisconsin alleged was an element
of I.M.'s AFDC case status. 

Wisconsin contended that the ambiguities about I.M.'s
status, resulting in its inability to verify all of the
elements of AFDC eligibility or make an accurate finding
that the amount of the grant was correct, arose from the
following circumstances.  At the time of the October 1992
review date, I.M. claimed that she was single and never
had been married.  A friend of I.M. corroborated this in
a written statement. 

In the course of the state QC review, however, the state
reviewer interviewed I.M.'s landlord who stated that I.M.
had leased her apartment beginning in August 1992 under
the name of R.L. and lived in the apartment with her
husband T.L. whom, the landlord asserted, I.M. had said
she had married in August.  The state reviewer also
discovered that I.M. had received a car loan under the
name of R.L.   2/  The reviewer further contacted T.L.'s
employer and the post office and confirmed from both
sources that T.L. resided at I.M.'s address.

When the state reviewer confronted I.M. with the
landlord's assertion, I.M. responded that she and her
children did not live with T.L. and that she was not
married to T.L.  I.M. explained that she used T.L.'s name
as her husband in order to lease the apartment and that,
while T.L. visits her frequently, he lives with his
sister at another address.

Analysis

Wisconsin contended that I.M.'s case should be dropped
from the QC sample because it received conflicting
evidence concerning what it considered a basic element
affecting I.M.'s AFDC grant, specifically whether I.M. is
married to T.L.  ACF contended that there was no relevant
controversy concerning this element because:  1) under
Wisconsin law any relationship between I.M. and T.L. is
relevant only if T.L. were the parent of any of I.M.'s
children; 2) the alleged marriage is not supported by
either primary or secondary evidence of the kind required
by the QCM; and 3) the state reviewer made a "special
determination" that no marriage existed since there was
no conflicting primary and secondary evidence, and the
collateral evidence of a marriage was slight.

Wisconsin argued that section 3533 of the QCM requires
the establishment of the relationship of all members of
an AFDC household:

 [T]he statute requires that certain individuals
living in the household must be included in the AU.
 As a consequence, relationship of other individuals
in the household to members of the AU must be
developed to determine if all necessary members of
the unit were included in the grant.

Wisconsin pointed out these discrepancies in the status
of I.M.'s household:  I.M. signed the lease as T.L.'s
wife and applied for a loan also in that name; I.M.'s
landlord told the state reviewer that I.M. was married to
T.L. and contacts with the post office and T.L.'s
employer affirmed that T.L. had given I.M.'s address as
his home; on the other hand, I.M. denied that she was
married and gave an explanation for representing herself
as T.L.'s spouse on the lease; a close friend of I.M.
provided a signed statement that I.M.'s household
consisted solely of herself and her there children;
additionally, a check of Wisconsin, Illinois, and
Nebraska records revealed no evidence of a marriage
between I.M. and T.L.

Wisconsin insisted that it was impossible under the
circumstances to verify the existence of a marriage
between I.M. and T.L. as the couple could have been
married anywhere in the United States or under alias
names.  Similarly, Wisconsin stated that it could not
verify the absence of T.L. from I.M.'s household.

Because of these unresolved discrepancies concerning the
relationship between I.M. and T.L. and its effect on the
AFDC household, Wisconsin maintained that I.M.'s case
accordingly should be dropped from the QC sample as
provided for in section 3200 of the QCM.  Wisconsin
acknowledged that its state reviewer did complete I.M.'s
case and, while recommending that the food stamp portion
of the case be dropped, found sufficient information to
conclude the existence of an overpayment in the amount of
the AFDC grant.  Wisconsin further admitted that it was
only after the federal review that Wisconsin's re-
evaluation of the case concluded that the case should
have been dropped by its reviewer rather than completed.
 
ACF maintained that the state reviewer's completion of
I.M.'s case should stand and that nothing in the
regulations or the QCM required dropping the case.  ACF
noted the QCM's admonition against the dropping of cases
from a QC sample:

 It is imperative that the reviewer make every effort
to complete a case because a large number of dropped
cases can bias the integrity of the sample.

Section 3200.

ACF argued that the mere fact that T.L. might have lived
with I.M. is irrelevant for purposes of AFDC eligibility
and cannot in and of itself affect the amount of the AFDC
grant under applicable regulations.   3/  ACF further
pointed out that there is no evidence or even a
suggestion by Wisconsin that T.L. is the father of any of
the children in the AU.  ACF contended that even if I.M.
and T.L. were married, and T.L. thus became the
stepfather to I.M.'s children, under Wisconsin state law
T.L. was under no legal responsibility to support I.M.'s
children.  ACF noted that under 45 C.F.R. � 233.90(a)(1)
a stepparent will be considered a parent under the AFDC
program only if the stepparent is legally married to a
child's natural parent and state law requires a
stepparent to support his or her stepchildren to the same
extent that natural or adoptive parents are required to
support their children.

A review of the QCM supports ACF's position that T.L.'s
mere residence in I.M.'s household is immaterial for AFDC
grant purposes.  The QCM directs a state reviewer:

 Due to the requirement that certain individuals
living in the household must be included in the AU,
determine the relationship of all members of the
household to any dependent child(ren).  The purpose
of the review under this element is to ascertain
 . . . if a household member is a parent or minor
sibling who must be included in the AU. 

Section 3533.C (emphasis added).  This clearly implies
that individuals other than parents or siblings are not
relevant to this element.  As stated above, there is no
indication that T.L. was the father of any of the
children in the AU, and a stepparent or live-in boyfriend
is not considered a parent under the provisions above.

Section 3533 of the QCM lists the following items as
primary evidence that may be used to establish a specific
relationship other than parentage within an AU:  birth
certificates, adoption papers or records, marriage
license or certificate, divorce papers, Indian census
records, hospital or public health records of birth and
parentage, government records of birth and parentage,
court records of parentage, baptismal records of birth
and parentage, juvenile court records, court child
support records, and Social Security Administration (SSA)
records indicating that a relationship has been
established.  Secondary evidence consists of:  church
records, a family bible, health care records, child care
center records, voluntary social service agency records,
insurance records, school records, census records,
paternity records maintained by the Office of Child
Support Enforcement, and SSA records without an
indication that a relationship has been established.

We see no basis for Wisconsin's conclusion that 
conflicting evidence concerning I.M.'s marital status
merits her case being dropped from the QC sample. 
Section 3520 of the QCM requires documentation by at
least one piece of required primary or secondary
evidence, or by a signed statement from a collateral
source.  In this case, neither primary nor secondary
evidence demonstrated a marital relationship between I.M.
and T.L.  There is no marriage license.  The only
"evidence" referred to by Wisconsin was the collateral
oral statement given to the state reviewer by I.M.'s
landlord that I.M. was married.  I.M. flatly contradicted
this statement and gave a plausible explanation why she
had told the landlord she was married.  A close friend of
I.M. supplied a written statement corroborating that I.M.
lived only with her children.

ACF argued that the state reviewer, in completing the
AFDC QC review of I.M.'s case, made what amounted to a
special determination, evaluating all the information at
the reviewer's disposal regarding T.L.'s relationship
with I.M.'s household, and concluded that T.L. was not
married to I.M and had no effect on the amount of I.M.
AFDC grant.  A "special determination," as provided for
in section 3520 of the QCM, is defined as --

 a reasonable conclusion, fully documented, based on
evidence which provides sufficient basis for a
conclusion, but which does not meet verification
requirements.

ACF added that the state reviewer noted on the review
worksheet that while it is likely that T.L. lives with
I.M., there is not enough evidence to refute I.M.'s
statement that T.L. did not reside with the AU.  ACF Ex.
A at 5.

An examination of the state reviewer's worksheet for
I.M's case reveals, as ACF argued, that the reviewer
recommended that I.M.'s case be dropped only for food
stamp quality control purposes, and not dropped from the
AFDC QC review.  ACF Ex A at 1a.  All members of a
household may be relevant in the determination of food
stamp benefits, but, as discussed above, the presence of
a non-parent is not relevant to the assistance unit
determination under Wisconsin's AFDC program.

The discrepancies concerning the composition of I.M.'s
household that Wisconsin claimed precluded a
determination that AFDC standards were met are not
supported by evidence admissible under the QCM.  With no
primary or secondary or acceptable collateral evidence
establishing a marriage relationship between I.M. and
T.L., the state reviewer properly completed the review of
I.M.'s case as an AU consisting of I.M. and her children
and determined that I.M.'s case should not be dropped. 
We concur in that assessment.  Wisconsin simply has not
produced any evidence under the standards set forth in
the QCM that merits I.M.'s case being dropped from the QC
sample.

Conclusion

For the reasons discussed above, we conclude that
Wisconsin cannot drop I.M.'s case from the quality
control sample.


                          ___________________________
                          Peggy McFadden-Elmore


                          ___________________________
                          Leslie Sussan


                          ___________________________
                          Thomas D. Horvath


* * * Footnotes * * *

       1.    In order to protect their privacy, this AFDC
recipient and her friend are identified by their
initials.  The Wisconsin QC review number is 112067.
       2.    I.M. on occasion used Renee as her first
name.
       3.    Section 233.90(a)(1) of 45 C.F.R. provides -
-

   the inclusion in the family,
or the presence in the home, of a "substitute
parent" or "man-in-the-house" or any other
individual other than the one described in this
paragraph [i.e., a natural or adoptive parent,
or a stepparent who is legally obligated to
support the child under state law] is not an
acceptable basis for a finding of ineligibility
or for assuming the availability of income by
the State.

Section 233.20(a)(2)(viii) of 45 C.F.R. further provides
that the amount of a grant will not be reduced or
prorated solely because of the presence in the household
of a non-legally responsible individual; contributions
from such an individual for the support of the AU cannot
be assumed.
 

(..continued)