Oregon Department of Human Resources, QC No. 8 (1992)

Department of Health and Human Services

Departmental Appeals Board

AFDC QUALITY CONTROL REVIEW PANEL

SUBJECT: Oregon Department of
Human Resources
Docket No. A-92-17

DATE: January 16, 1992

DECISION

The Oregon Department of Human Resources (State) appealed
the determination of the Regional Administrator of the
Administration for Children and Families (Agency), based
on a quality control (QC) review of AFDC payments   1/
made by the State in Februrary 1991, that K.L. was
overpaid $97.   2/ The Agency determined that K.L.'s
eighteen-year-old daughter, S.C., should not have been
included in the assistance unit because she was not
reasonably expected to complete secondary school before
reaching age nineteen. The Agency therefore deducted
S.C.'s needs from the amount of K.L.'s grant. For the
reasons discussed below, we conclude that the Agency's
determination was correct and uphold the Agency's finding
of an overpayment.

Relevant Statutory and State Manual Provisions

Title IV-A of the Social Security Act provides for
payments to needy families with dependent children.
Section 406(a)(2) states in pertinent part that the term
"dependent child" means a needy child who is --

(A) under the age of eighteen, or (B) at the option
of the State, under the age of nineteen and a full-
time student in a secondary school (or in the
equivalent level of vocational or technical
training), if before he attains age nineteen, he may
reasonably be expected to complete the program of
such secondary school (or such training) . . . .

The implementing regulations at 45 C.F.R. 233.39(b)(ii)
contain essentially the same provision.

Rule 461-120-510 of the State agency manual dated 4/1/90
provides that, to be eligible for AFDC, the child must be
--

(A) Under age 18; OR

(B) Age 18 and regularly attending school full time
per rule 461-120-530. 3/

Rule 461-120-530 in turn provides that --

[R]egular school attendance means enrolled in and
attending any of the following:

(a) A school in grade 12 or below.

(b) GED classes in lieu of high school.

(d) The state school for the deaf or the state
school for the Blind.

Factual Background

S.C. was enrolled as a full-time student in the twelfth
grade at Portland Night High School (at Grant) from
September 1990 until April 1991, when she withdrew from
the school. Based on her performance on a General
Educational Development (GED) pre-test, she was enrolled
in regular rather than remedial classes. As of October
1990, S.C. had 13 of the 22 credits needed for
graduation. She earned only an additional .75 credits by
the time of her withdrawal. A student at the school
normally earned five to six credits a year.

Shortly after her withdrawal, S.C. took the GED test,
receiving her GED on 5/29/91. The purpose of the GED
test is "to enable persons who have not graduated from
high school to demonstrate the attainment of developed
abilities normally acquired through completion of a high
school program of study." GED Examiner's Manual, Section
2 (1991 edition). The results of GED tests are used in
all fifty states as a basis for issuing high school
credentials. Id. The GED test generally may not be
administered to students who have graduated from or are
currently enrolled in a regular high school. Id.,
Section 5.1.

S.C.'s birth date was 3/11/72. Thus, she was still a
full-time student in a secondary school when she turned
nineteen.

S.C. was included in the assistance unit in determining
the amount of the AFDC grant for the review month. State
QC found that the grant was correct. However, federal QC
found that there was an overpayment because S.C. was
improperly included in the assistance unit. This finding
was based on a statement by the director of the school,
in response to federal QC's inquiry, that S.C. was not
expected to graduate from the school by her nineteenth
birthday.

The State requested reconsideration of the federal QC
finding. The State relied in part on its own inquiry to
the director of the school, who "indicated that given the
information in the file, he was reasonably certain that
. . . [S.C.] could have completed the requirements for
her GED prior to her 19th birthday." Letter from Arlin
to Henigson dated 9/16/91, p. 2.

The Regional Administrator sustained the finding of an
overpayment after contacting the director of the school
again on 9/27/91. The Regional Administrator found
specifically that S.C. was not in a GED program and thus
rejected the State's argument that the determinative
factor was whether S.C. could reasonably be expected to
obtain her GED before her nineteenth birthday. The
decision noted that S.C. was enrolled in regular night
classes, not remedial GED classes, and that if obtaining
the GED was her goal, she would have taken the test
before her nineteenth birthday since she did well on the
GED pre-test at the beginning of the school year.

State Arguments

On appeal to this Panel, the State maintained that S.C.
was properly included in the assistance unit because, as
of the review month, she was reasonably expected to
complete the requirements for her GED before her
nineteenth birthday. The State took the position that
the statute and regulations did not require that an
eighteen-year-old receive a high school diploma before
turning nineteen in order to be included in the
assistance unit, but merely that he/she be reasonably
able to complete an educational, vocational or technical
program by that time. The State contended that the GED
was a "program" within the meaning of the statute and
regulations, citing language in the GED Examiner's Manual
referring to the GED "program." The State also contended
that the night school program in which S.C. was enrolled
was "directed towards the GED as an equivalent to the
traditional high school diploma." State submission dated
12/6/91, p. 2. The State further asserted that it had a
policy of "providing all avenues for obtaining high
school or equivalent training," as evidenced by its JOBS
program requirement that teen parents who do not have a
high school diploma or GED must participate in education
activities designed to ensure functional literacy. 4/
Id. Finally, the State asserted that its interpretation
of the statute should be adopted because the preamble to
the implementing regulations indicated that the Agency
intended to give the states flexibility to determine
which eighteen-year-olds should remain eligible to be
included in an assistance unit.

Discussion

We find no merit in any of the State's arguments.
Section 406(a)(2) requires that, in order to be included
in the grant, an eighteen-year-old must be either a full-
time student in a secondary school or in the equivalent
level of vocational or technical training. If the child
is enrolled in a secondary school, he/she must
"reasonably be expected to complete the program of such
secondary school . . . " prior to his/her nineteenth
birthday. It is undisputed that S.C. was a full-time
student in a secondary school. Thus, in order to satisfy
the requirements of section 406(a)(2), she must have been
reasonably expected to graduate from secondary school
before age nineteen. The State did not contend that
there was any reasonable expectation that she would do
this. Moreover, the record does not support a finding to
this effect: even if S.C. had earned six credits during
the 1990-1991 school year -- the number of credits earned
by a student making normal progress -- she would not have
had enough credits to graduate by the end of the school
year, much less by her birthday (on 3/11/91). 5/

The State asserted, however, that, although the night
school program in which S.C. was enrolled could lead to a
high school diploma, it was also designed to prepare
students to take the GED test should they not graduate.
Thus, in the State's view, a student could complete the
program of the school by obtaining a GED. However, the
record does not clearly support the State's assertion.
The report of the Agency's telephone contact with school
personnel on 9/27/91 states as follows:

The person answering the call advised that preparing
for a GED and working toward a high school diploma
were two different things. A student could opt for
the GED exam, and take remedial courses in
preparation for it. A student could also work
toward a diploma by taking regular high school
classes.

Some students could do both. She then referred my
call to . . . [the director of the school].

[He] . . . advised that [S.C.] . . . was in a double
program. It did not involve electing one or the
other program but was something that counselors kept
in mind as they worked with students. Students who
fail to get a diploma are encouraged to take away at
least a GED.

They are encouraged to take the GED test later
rather than sooner so they can get the highest
possible points, which will be permanently recorded.

[S.C.] . . . did take a GED pre-test. She did not
appear to need GED training. She was enrolled in
regular classes. She had pretty competent skills.

Letter from Henigson to Concannon dated 10/8/91,
enclosure. Notwithstanding the reference to a "double
program," this document indicates that students were
enrolled in either remedial classes which provided
training for the GED test or regular classes designed to
lead to a high school diploma. Students in regular
classes were merely encouraged to take the GED test if
they were unable to graduate. Thus, a student who was
enrolled in regular classes, as S.C. was, could complete
the school program only by graduating from the school.

In addition, as the Agency pointed out, with certain
exceptions not applicable here, students who are enrolled
in a secondary school are not eligible to take the GED
test. It would defy logic to find that a student who
withdraws from school in order to take the GED test
thereby completes the program of the school.

Moreover, the State agency manual defines "regular school
attendance" as enrolled in and attending, among other
things, "[a] school in grade 12 or below" or "GED classes
in lieu of high school." This indicates that the State
viewed classes which prepare a student for the GED test
as distinct from high school. (That a GED was considered
equivalent to high school training under the State's JOBS
program did not mean that the State considered them one
and the same thing, moreover.) Thus, this provision
undermines the State's argument that taking the GED test
completed S.C.'s program at the night high school.

The State also asserted that the GED itself was a
"program" within the meaning of the statute. If this
were the case, then passing the GED test would arguably
constitute completion of the program. However, while the
GED Examiner's Manual contains references to a "GED
program," it also states more specifically that this is a
"testing program." GED Examiner's Manual, Section 1.1.
A testing program is not a program of either vocational
or technical training, the two types of programs (other
than a secondary school program) specified in section
406(a)(2).

Finally, the State's reliance on the preamble to the
regulation is misplaced. The preamble addresses the
question whether the Agency "should provide Federal
definitions for 'full-time student' and other terms used
in the statute." 47 Fed. Reg. 5648, 5470 (February 5,
1982). The dispute in this case does not involve the
meaning of any of the specific terms in the statute,
however, but rather the meaning of section 406(a)(2) as a
whole. Moreover, as the Agency noted, the interpretation
which the State advanced here would permit the State to
include in the grant any eighteen-year-old enrolled as a
full-time student in secondary school, since the student
could drop out of school at any time and take the GED
test. The Agency surely did not intend to give the
states flexibility to adopt an interpretation which would
render the limitations in the statute meaningless.

Conclusion

For the reasons discussed above, we conclude that S.C.
was not properly included in the assistance unit.
Accordingly, we sustain the Agency's finding of an
overpayment in the case of K.L.

_____________________________
Thomas D. Horvath

_____________________________
Leslie A. Weyn

_____________________________
Carolyn Reines-Graubard

* * * Footnotes * * *

      1.    AFDC payments are made pursuant to the Aid to
Families with Dependent Children program established by
title IV-A of the Social Security Act.
      2.    We identify the client and her daughter by
their initials in order to protect their privacy. The
State quality control review number is 115525.
      3.    As the Agency pointed out, this provision is
inconsistent with the statute since it does not require
that the child be reasonably expected to complete the
program of the school before turning nineteen. However,
the State did not rely on this provision, arguing instead
that the requirements of the statute were satisfied here.
      4.    AFDC recipients are generally required to
participate in the Job Opportunities and Basic Skills
Training (JOBS) program established by a state. See 45
C.F.R. 250.30.
      5.    This would have been apparent in September
1990, the beginning of the school year, as well as during
the February 1991 review month. Thus, we need not
address the State's contention that the determination
regarding when S.C. could reasonably be expected to
complete her secondary school program was required to be
made based on what was known on October 25, 1990 (the
date of the last periodic redetermination of eligibility
before the review month) and not some later date.