Florida Department of Health and Rehabilitative Services, QC No. 79 (1995)

Department of Health and Human Services

Departmental Appeals Board

AFDC QUALITY CONTROL REVIEW PANEL

SUBJECT: Florida Department of
Health and Rehabilitative Services
Docket No. A-95-28
Decision No. QC79

Date: March 15, 1995

DECISION

The Florida Department of Health and Rehabilitative
Services (Florida) appealed an October 13, 1994 quality
control (QC) determination by the Regional Administrator
of the Administration for Children and Families (ACF).
The federal QC review found that the assistance unit (AU)
was ineligible for Aid to Families with Dependent
Children (AFDC) in the review month of January 1994 on
the basis that Florida's QC review failed to verify,
through primary or secondary evidence or a special
determination, that the degree of relationship required
by section 406(a)(1) of the Social Security Act (Act)
exists between the child in this case, Christopher, and
the caretaker payee, Linda. 1/

In this appeal to the panel, Florida maintained that it
had made a valid special determination that the caretaker
payee is the child's aunt and consequently a specified
relative of a proper degree under section 406(a)(1) of
the Act.

For the reasons discussed below, we find that Florida's
QC review failed to verify that the proper degree of
relationship exists between the caretaker payee and the
child. Therefore, the federal QC finding of
ineligibility of this case is sustained.

Applicable Authority

The AFDC program provides payments for the support of
needy and dependent children and the parents or relatives
with whom they are living. Section 401 of the Act. For
purposes of AFDC eligibility, a dependent child is
defined as a child "who is living with his father,
mother, grandfather, grandmother, brother, sister,
stepfather, stepmother, stepbrother, stepsister, uncle,
aunt, first cousin, nephew, or niece . . . ." Section
406(a)(1) of the Act. 2/ If a child is not living with
specified relative of the proper degree, the child and
his/her caretaker are not eligible for AFDC.

Section 408(a) of the 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).

Because the purpose of the QC review is to develop
correct and reliable case findings based on actual case
conditions for each member of the AU as of the review
date, the Quality Control Manual (QCM) sets verification
standards for the purpose of establishing the facts
regarding eligibility and payment for the sample case as
of the review date. Section 3500 of the QCM. Further,
the QCM provides:

Verification standards have been established to
provide a systematic and nationally uniform level of
documentation in the QC review process and provide a
thorough, consistent method of substantiating the
reviewer's decision regarding each element of
eligibility and payment. Minimum verification
standards have been developed for each eligibility
and payment determination element. All requirements
in the verification standards must be met before the
element can be considered to be properly verified
and documented.

Section 3500 of the QCM. This section also provides that
documentation listed in the QCM as primary evidence has a
higher probative value than the documentation listed as
secondary evidence. If secondary evidence is used, at
least two pieces of such evidence are required as the
basis for the decision. Section 3500 A. Moreover, a
state is instructed to use primary evidence in situations
when primary and secondary evidence conflict unless the
unreliability of the primary evidence has been
documented. Section 3500.

Section 3533 (Relationship -- Element 120) of the QCM
sets forth standards for documenting the relationships
between members of the assistance unit in a sample case.
As to the requirement that a child be living with a
specified relative, the QCM provides in relevant part:

This element relates to the requirement that the
dependent child must be living with a parent or
other specified relative in order to be eligible for
AFDC. A specified relative is any relation who is
within the fifth degree of kinship to the dependent
child . . . . In order to establish that this
requirement has been met, it is necessary to verify
the relationship between the caretaker and each
child.

* * *

If the child is living with a specified relative or
guardian other than a parent, first determine
parentage, as described above, then obtain
sufficient documentation to trace the relationship
between the caretaker relative and the child. In
these situations, one piece of primary evidence or
two pieces of secondary evidence may not be
sufficient to verify the proper degree of
relationship, since tracing relationship from the
child to the specified relative may involve a number
of different relationships, e.g., child to parent to
aunt through a common parent. Obtain as many pieces
of evidence as necessary to clearly establish
relationship.

Section 3520 of the QCM provides that in cases where it
is not possible to document an element of eligibility
according to the verification standards, a state may make
a special determination. A "special determination" is a
"reasonable conclusion, fully documented, based on
evidence which provides sufficient basis for a
conclusion, but which does not meet verification
requirements." Section 3520 of the QCM. Special
determinations can be used when:

1. The reviewer cannot obtain the amount or kind of
evidence required for a particular element;

2. Information contained in different pieces of
evidence conflicts, even if the reviewer is able to
come to a conclusion regarding the element in
question; or

3. The conclusion is not obvious from the evidence
presented.

Id.

However, section 3520 of the QCM also provides that an
element of eligibility established by a special
determination cannot be considered properly documented
unless substantiated by at least one piece of required
primary or secondary evidence, or by a signed statement
from a collateral source. A signed statement from a
recipient or caretaker relative is not sufficient
evidence for use in making a special determination.
A signed collateral statement can be used only if:

(1) nothing in the review finding conflicts with
the statement;

(2) no doubts or unanswered questions remain;

(3) verification requirements outlined in QCM 3530
do not preclude the statement.

Section 3520 of the QCM.

Background and Arguments

Florida argued that documenting the relationship in this
case under section 3533 of the QCM would have required
six separate pieces of primary evidence: the birth
certificates or their equivalent for child Christopher,
Christopher's mother (mother Mary), Christopher's
grandmother (grandmother Patricia), the payee (Linda),
and payee Linda's mother (Marjorie), and a marriage
certificate between Marjorie and her third husband (name
unknown). While Florida did not explain its theory of
how these documents would show that payee Linda is child
Christopher's aunt, it represented that its QC reviewer
was unable to obtain such primary (or secondary evidence)
which would document each genealogical link between payee
Linda and child Christopher.

Florida conceded that, under the standards set forth in
section 3533 of the QCM, it did not have sufficient
primary or secondary evidence to verify that payee Linda
is Christopher's aunt. See Florida's reply, p. 1.
Instead, Florida maintained that it made a valid special
determination concerning the relationship between child
Christopher and payee Linda. The reviewer based her
special determination on a Power of Attorney executed by
Christopher's natural mother (Mary) in which she stated
that payee Linda was her aunt, and on two medical records
and one school record which identified payee Linda as
child Christopher's aunt. See attachment (att.) to
notice of appeal, pp. 1-4. 3/

ACF argued that in order to establish the relationship
between child Christopher and payee Linda, it is first
necessary to prove that mother Mary and payee Linda are
related. ACF alleged, and Florida did not dispute, that
the purported "link" between child Christopher and payee
Linda is an unnamed stepfather of Linda, whose
relationship to mother Mary is unknown. 4/ In order to
aid the panel's conceptualization, ACF also provided a
relationship chart to demonstrate its theory of the
relative common to both payee Linda and child
Christopher:

Analysis

The issue in this case is whether Florida made a valid
special determination that the caretaker payee was the
child's aunt and therefore a specified relative as
required by section 406(a)(1) of the Act.

We conclude that Florida's decision in the case does not
meet the QCM standards for a special determination.
Section 3520 of the QCM provides that a "special
determination" is a "reasonable conclusion, fully
documented, based on evidence which provides sufficient
basis for a conclusion, but which does not meet
verification requirements." Florida's special
determination does not satisfy this definition for at
least two reasons. First, the evidence on which Florida
relied to establish that payee Linda is child
Christopher's aunt was not sufficiently reliable or
informative to "fully document" the relationship or to
provide "a sufficient basis" for Florida's special
determination. Second, Florida failed to articulate any
genealogical theory for how payee Linda is Christopher's
aunt and therefore its conclusion that payee Linda is
Christopher's specified relative, as defined by section
406(a)(1) of the Act and 45 C.F.R. � 233.90(c)(1)(v),
cannot be considered reasonable. Below we discuss each
of these reasons.

First, the evidence on which Florida relied did not
provide a sufficient basis for Florida's special
determination. Below we review the QCM standards for
evidence, the evidence in the record, and the reasons for
our conclusion that Florida's evidence was not
sufficient.

Section 3520 of the QCM provides that an element of
eligibility established by a special determination cannot
be considered properly documented unless substantiated by
at least one piece of required primary or secondary
evidence, or by a signed statement from a collateral
source. A signed collateral statement can be used only
if nothing in the review finding conflicts with the
statement and no doubts or unanswered questions remain.

Florida relied on four pieces of evidence:

o A Power of Attorney executed in October 1992 by
child Christopher's mother naming payee Linda
as her aunt and giving her the authority to
make decisions about child Christopher's
medical care and education.

o A response to the Florida QC reviewer's letter
from a doctor, saying that according to his
records payee Linda is the "aunt - guardian" of
child Christopher. 5/

o A response to the Florida QC reviewer's letter
from CMS (a medical clinic) saying that
according to its records payee Linda is the
"aunt" of child Christopher. 6/

o A response to the Florida QC reviewer's letter
from Brandenton Middle School saying that
according to its records payee Linda is the
"aunt/guardian" of child Christopher.

Under the standards set forth in the QCM, the medical
records constitute secondary evidence. The school record
and the mother's Power of Attorney constitute collateral
statements.

Florida argued that the medical records are defined as
acceptable secondary evidence by section 3533 of the QCM
and satisfied the requirement in section 3520 that
special determinations be documented by at least one
piece of secondary evidence. However, as to secondary
evidence, section 3500 expressly provides that "secondary
evidence cannot be used if there is any reason to doubt
its reliability." For the following reasons, we conclude
that these medical records, in the context of this case,
were not sufficiently reliable to establish that payee
Linda is a specified relative:

o Section 3510 sets forth standards for judging
the probative value of evidence. It requires
the reviewer to consider the "basis for the
evidence" and asks "What or who is the source?"
As to the medical records in this case, the
most probable "source" of the information that
the child Christopher is payee Linda's nephew
was the Power of Attorney executed by his
natural mother giving payee Linda authority for
his medical care. Given that the Florida QC
reviewer could not obtain primary evidence
linking child Christopher to payee Linda, it is
highly unlikely that a health provider obtained
verification beyond the Power of Attorney.
Therefore, these records are of dubious
probative value in that their most likely
source was the mother's Power of Attorney.

o In judging the probative value of evidence,
section 3510 also requires the reviewer to
consider whether the "written evidence clearly
establish the facts of the issue being
reviewed?" In this case the medical records
(and school record) do not provide answers to
the question of how payee Linda is a specified
relative. Florida needed to verify the links
between child Christopher and payee Linda.
These records do not help establish those
links.

o Section 3510 requires that the reviewer to
determine that the secondary evidence does not
conflict with other evidence, or that the
conflicts are resolved and documented. In this
case, the evidence contained the conflict that
the Power of Attorney names the payee Linda as
the natural mother's "aunt" while the medical
and school records name the payee Linda as the
child's "aunt." 7/ In light of the confusion
in the record as to the nature of the payee
Linda's relationship to child Christopher, the
question of whether payee Linda was an aunt, a
great-aunt (or not a relative at all) should
have been resolved.

For similar reasons, the combination of the medical
records with the school record and Power of Attorney does
not support a special determination. First, the most
likely source for the school record was the mother's
Power of Attorney. Second, the mother's Power of
Attorney is deficient because is does not help answer the
question of why payee Linda is child Christopher's aunt.
Given the confusion surrounding this question, there is
no way to reasonably conclude that, when the mother used
the term "aunt," she was confirming the degree of
relationship required by section 406(a)(1) of the Act and
45 C.F.R. � 230.90(v)(A)(1).

In light of the flaws in the evidence presented by
Florida, we conclude that the evidence does not "fully
document" or provide "sufficient basis for a conclusion"
in a special determination.

The second reason we conclude that Florida's special
determination is not valid concerns its failure to
describe the chain of relatives through which payee Linda
is a specified relative of child Christopher. The
closest Florida came to a description was in its request
for review by the QC Panel when it stated that proving
the relationship between payee Linda and child
Christopher would entail six pieces of primary evidence.
8/ However, Florida never described how this evidence
would connect these two groups of people (Christopher,
his mother and grandmother; Linda, her mother, her
mother's third husband) in a manner which made Linda
Christopher's "aunt" as defined by section 406(a)(1) of
the Act and 45 C.F.R. � 233.90(c)(1)(v).

That the Florida reviewer realized she needed additional
information about child Christopher's genealogy is
apparent from the letter she sent payee Linda. In it she
asked for the name of Linda's stepfather, when Linda's
mother and stepfather were married, whether they were
divorced, what the stepfather's relationship was to
Patricia (Christopher's presumed grandmother), Patricia's
relationship to Christopher, and "any comments necessary
to explain your relationship to Chris." Att. to notice
of appeal, p. 5. According to the notation on the
letter, payee Linda never responded and the record
contains no indication that the reviewer ever obtained
answers to her questions from any other source. Without
this information, the reviewer, and therefore, Florida,
was apparently unable to explain why payee Linda is a
specified relative under the Act.

In light of the fact that the record does not contain any
explanation by Florida of how payee Linda was a specified
relative of child Christopher, we conclude that Florida's
determination was not a "reasonable conclusion." It is
not reasonable to conclude that a relationship exists
when one does not describe, much less document, the links
that create the relationship. This is particularly true
when the apparent mix of family groups involved in the
problem could be associated in a way in which Linda would
not be a specified relative. For example, if payee
Linda's mother and her "third husband" (see chart at page
6) were never actually married, then payee Linda and
Patricia (Christopher's grandmother) would not be related
even by marriage and Linda would not be Christopher's
specified relative under section 406(a)(1) of the Act and
45 C.F.R. � 233.90(c)(1)(v). 9/

Finally, we note section 3520 of the QCM provides a
process which the state reviewer should use in making a
special determination. It provides that the reviewer
should "(1) outline steps taken to obtain primary and
secondary evidence specified for that element, and (2)
fully record the basis for making the determination."
It then sets out an example of the detail with which a
reviewer is required to document his/her efforts and
conclusions. In this case there is no evidence in the
record that the Florida reviewer engaged in the
considered and thorough process required by section 3520.
Perhaps if the reviewer's determination had been better
documented in the record, we would have understood
Florida's theory of how Linda is Christopher's specified
relative.

In its reply submission, Florida made a conclusory
argument that, if it did not have enough viable evidence
to make a special determination, the case should be
dropped from QC review. It cited section 3200 of the
QCM. We find this argument to be without merit.

Section 3200 of the QCM provides that cases can be
dropped from the QC sample when the reviewer "cannot
complete a case review because of circumstances which
make it impossible to obtain enough information to render
an eligibility and/or payment determination." Section
3200 then sets forth four grounds for dropping a case.
Florida did not identify the grounds for dropping this
case but we presume it would be "the reviewer has
documented his/her unsuccessful efforts to obtain
information which would make it possible to make an
eligibility and/or payment determination." For this
ground there are three categories: the recipient is
unwilling to give information, the recipient cannot be
located, and "other." Again, Florida did not articulate
which category it believed pertained to this case. We
presume that the information gathering problem in this
case was caused in large part by payee Linda's apparent
refusal to respond to the reviewer's request for
information about the nature of her relationship to
Christopher. Where a recipient fails to cooperate, the
QCM sets forth an extensive process a state must follow
in order to try to obtain cooperation. 10/ There is
no indication that Florida engaged in such a process.
Therefore, there is no basis in the record for us to
determine that this case should have been dropped under
section 3220.

Conclusion

Based on the foregoing, we conclude that ACF correctly
determined that Florida failed to verify that the AU was
eligible for AFDC in the review month of January 1994.

Peggy McFadden-Elmore

Sara Anderson

Thomas D. Horvath

* * * Footnotes * * *

1. Recipients and other individuals are
identified by their first names to protect their privacy.
The Florida QC review number is 340784.
2. As to the relationship of aunt/nephew, the
regulations implementing section 406 provide:

45 C.F.R. � 233.90(c)(1)(v) "Living with [a
specified relative] in a place of residence
maintained * * * as his   * * * own home". (A) A
child may be considered to meet the requirement of
living with one of the relatives specified in the
Act if his home is with a parent or a person in one
of the following groups:
     (1) Any blood relative, including those of
half-blood, and including first cousins, nephews, or
nieces, and persons of preceding generations as
denoted by prefixes of grand, great, or great-great.
       3.    While Florida stated in is notice of appeal
that it had been unable to obtain Christopher's birth
certificate, ACF indicated that his birth certificate was
in the case record. ACF did not specifically dispute
that the Mary who executed the power of attorney in this
case was Christopher's natural mother but it did note
that she executed the Power of Attorney under a different
surname than was on the birth certificate, apparently due
to a subsequent marriage. Further, while Florida
maintained that the Power of Attorney identified payee
Linda as child Christopher's aunt, the document stated
that payee Linda is the aunt of mother Mary.
       4.    Federal QC supplemented the information
Florida had by obtaining a social security administration
(SSA) numident query for Christopher's mother Mary
identifying her mother as grandmother Patricia, and a SSA
numident on payee Linda which lists her mother as
Marjorie and her father as T.G.H. (We are unable to use
the first name of this individual because ACF supplied
only the initials.) ACF noted that there is no
verification to prove that the Marjorie named by payee
Linda as her mother is the same person named on the SSA
numident because the last names are different and there
is no verification to substantiate a marriage between
Marjorie and her alleged third husband (name unknown) or
his relationship to grandmother Patricia.
       5.     The QC reviewer's letter explained to the
doctor that the case had been selected for review and
stated, in part:

[W]e need verification of the child's living
arrangements as of your records . Would you
please complete the information below and return
in the enclosed envelope.

The following information was requested:

o Living address of above child
o Child in care of
o Relationship to child

The person who provided the information had to sign and
date the letter in the appropriate places and provide a
telephone number. It is unclear from the record why this
doctor would have relevant information. He may have
treated child Christopher; however, the second document,
indicates that child Christopher is treated at the
Children's Medical Services Clinic. See att. to notice
of appeal, pp. 1 and 2.
6. The QC reviewer's letter stated, in part:

I am doing a special Quality Control review for
Linda who receives Aid to Families with Dependent
Children. She has reported that she brings the
above child/children to the Clinic.

The requested information was essentially the same as
noted above for the letter to the doctor.
7. Florida argued that there was no conflict in
the record. It stated:

[The doctor] shows Linda to be the child's aunt.
Children's Medical Services shows Linda . . . to be
the child's aunt. Brandenton Middle School shows
Linda . . . to be the child's aunt. The Power of
Attorney shows Linda . . . to be the child's aunt.
Clearly, what we have here is not conflicting
statements, but a demonstration of corroborating
evidence that supports our special determination.
       8.    According to Florida these would be birth
certificates or their equivalent for Christopher, his
mother, his grandmother, payee Linda, and payee Linda's
mother (Marjorie), and the marriage certificate between
the payee's mother, Marjorie, and her third husband whose
name was unknown.
       9.    Further, even if Linda's mother and
Christopher's grandmother were step-sisters by virtue of
a marriage between the former's mother and the latter's
father, it is arguable that Linda would not be a
specified relative under 45 C.F.R. � 233.90(v)(1). That
subsection seems to provide that an aunt and a nephew
must be "blood relatives." However, neither party
addressed this question so we do not consider it.
       10.     In cases of non-cooperation, section 3220
requires the state reviewer either to refer the case to
the local agency for termination (if termination is part
of the state's permissible state practice) or to refer
the case to a second reviewer and then the local agency
in order to try to obtain cooperation. Section 3220 also
provides:

If the reviewer cannot verify all elements because
the recipient was unwilling to provide information,
and none of the verified elements establishes
ineligibility, the case must be dropped. . . . If
the case is dropped for this reason, the QC record
must contain the following documentation:

1. A full record of the reviewer's actions to
obtain the caretaker's relative's cooperation.

2. A full record of the second reviewer's actions
to obtain the caretaker's relative's
cooperation.

3. An explanation of efforts made to obtain
information concerning elements for which
verification could not be obtained.

4. A notation that the case was referred to the
State agency for appropriate action.

(..continued)