Department of Health and Human Services
Departmental Appeals Board
AFDC QUALITY CONTROL REVIEW PANEL
SUBJECT: Alabama Department of Human Resources
Docket No. A-92-145
DATE: September 15, 1992
DECISION
The Alabama Department of Human Resources (State) appealed the quality control (QC) review determination of the Regional Administrator of the Administration for Children and Families (ACF) in State QC review number 303030. ACF found that an Aid to Families with Dependent Children (AFDC) grant recipient was overpaid as a result of the recipient's failure to furnish a social security number (SSN) for her newborn child prior to the review date of March 1, 1991. The State contended that no QC error occurred because ACF failed to prove that the recipient ever received the SSN. Further, the State argued that the recipient's personal circumstances (particularly her transiency and mental problems) made it unreasonable to presume receipt from evidence that the card was mailed to her address.
For the reasons discussed below, we agree with the State that no erroneous payment occurred.
Relevant Legal Authority
The Social Security Act (Act) provides that each State must require, as a condition of eligibility for AFDC payments under Title IV-A of the Act, that "each applicant for or recipient of benefits under that program furnish to the State" an SSN. Section 1137(a)(1) of the Act. This provision (commonly called the "enumeration requirement") is part of a comprehensive income and eligibility verification system. Cf. Section 1137 of the Act. The regulations implementing this requirement, which were in effect at all pertinent times, state in relevant part that a state Title IV-A plan must provide that --
(a) As a condition of eligibility, each applicant for or recipient of aid will be required:
(1) To furnish to the State or local agency, a . . . SSN . . . and
(2) If he cannot furnish a SSN (either because such SSN has not been issued or is not known), to apply for such number through procedures adopted by the State or local agency . . . . If such procedures are not in effect, the applicant or recipient shall apply directly for such number, submit verification of such application, and provide the number upon its receipt.
45 C.F.R. § 205.52 (1991)(emphasis added).
Under the Omnibus Budget Reconciliation Act of 1989 setting up the present QC system, a payment shall be considered erroneous for QC purposes if made to a family "any member of which is a recipient of aid . . . and does not have a [SSN] . . . (unless an application for a [SSN] . . . for the family member has been filed within 30 days after the date of application for such aid)." Section 408(c)(4)(B) of the Act.
The Quality Control Manual (QCM) contains several options for applications for SSNs, including the Enumeration at Birth procedure used here. Under that mechanism, the mother may apply for a SSN for a newborn child through the hospital, so long as proof of application is provided for the case file and the SSN is "provided to the agency upon its receipt." QCM, Appendix W at 13. 1/
Factual Background
Since L.D. was required to furnish her son's SSN "upon its receipt," the parties agreed that the "narrow factual issue" to be decided here is whether she received it before the review date. 2/ ACF Br. at 1; State Reply Br. at 1. The parties have not disputed most of the evidence in the record concerning receipt, which is set forth below, but have disputed the conclusions to be reached based on this evidence.
(1) L.D. gave birth on September 28, 1990 to a son for whose SSN she applied through the Enumeration at Birth procedure.
(2) She listed an address on the birth certificate.
(3) The SSN was issued on November 20, 1990 and mailed to the address on the birth certificate.
(4) L.D. stated at the redetermination on November 29, 1990 that she had not received the SSN.
(5) The State reviewer questioned L.D. on April 11, 1991 and reported that L.D. said she did not have the SSN, and that "it could not be determined if or when" the SSN had been received, "[d]ue to her mental condition." The review also noted that she had been "in and out" of the hospital due to her mental disorder, and had only recently returned home from a hospitalization at the time of the home visit. ACF Exs. at 7. L.D. was hospitalized in a psychiatric ward and received Social Security benefits for a mental disability.
(6) A State QC reviewer made a later visit to L.D. at which L.D. indicated that she had moved after applying for the SSN and had not received it as of the April 1991 visit. L.D. then said she got the SSN "in September." After the reviewer pointed out that the child was not born until September 28, 1990, L.D. stated that she meant September 1991, six months after the review date. L.D. also stated that the SSN was lost or unavailable. ACF Exs. at 30.
(7) The federal QC reviewer obtained a signed form dated November 25, 1991 from L.D. with the following entries:
Please indicate first (as well as you can remember) date you received a [SSN for your newborn] . . . 10/90 [answered in ink]
What date did you report receipt of SSN to welfare agency? . . . 11/90 [answered in ink]
ACF Exs. at 35.
(8) The Post Office form, which was intended to determine whether L.D.'s mail was being delivered as of March 1, 1991 at the address given on the birth certificate, was marked ambiguously (an "x" covered both the box indicating that mail was delivered at that address and the box indicating that addressee had moved without forwarding address). However, this evidence is not particularly useful since it is undisputed that at least some mail for L.D. was delivered to that address, and the form does not indicate whether the mail was being delivered to her there continuously throughout the relevant period (about November 20, 1990 through March 1, 1991).
(9) L.D.'s mother and friend 3/ indicated to the State reviewer that they "were unable to recall seeing" the SSN. State Br. at 3. It is not clear either would have seen the SSN, even if it had been received by L.D. The friend also confirmed that L.D. was living at the address given as of March 1, 1991, although again this does not disprove her transiency during the period when the SSN may have been delivered.
(10) The State asserted that L.D. moved in and out of her house several times during the period in question, staying at times with her mother. State Br. at 1.
(11) There is no evidence that L.D. ever filed a change of address form with the Post Office.
(12) ACF asserted and the State did not deny that L.D.'s disability and welfare checks were mailed to the address on the birth certificate and were cashed throughout the relevant period.
(13) The State asserted that L.D. was contacted on other occasions and "entirely denied receipt" of the SSN. State Br. at 3.
Arguments of the Parties
The State argued that it is impossible to verify whether or when L.D. may have received a SSN for her son, because she moved often and was hospitalized during the time it should have been received and because she was mentally ill and made conflicting and erroneous responses to questioning on the subject. Since receipt cannot be established, the State's position was that the case should either be removed from the sample or be considered correct.
ACF, on the other hand, argued that there is no proof that L.D. did not receive the card, which was directed to an address where she admittedly received other mail, including her checks. ACF insisted that mental illness does not constitute an exception to the obligation of caretaker to furnish a child's SSN as a condition of eligibility. L.D.'s statements do not amount to a conclusive denial of receipt, according to ACF, and the reasonable presumption is that the SSN was delivered to her at her permanent mailing address, which was the same throughout the relevant time frame. Therefore, ACF's position was that the payment was erroneous.
Analysis
As both parties have suggested, we must focus on a narrow set of facts in this analysis. The requirement to furnish a SSN for which application has been made arises only upon its receipt, so evidence of receipt prior to the review date is a prerequisite for finding an enumeration error. In most circumstances, ACF would be correct in asserting that proof of mailing to an address at which a party normally receives mail raises a presumption that the item mailed was received within a reasonable time frame of its mailing, especially if the party does not deny having received it at some time. However, the unusual circumstances which the State has presented here suffice to overcome the presumption which might otherwise favor ACF.
In order to find an erroneous payment, ACF must have evidence that L.D. failed to furnish the SSN by the review date, despite having received it sufficiently in advance of that date so that she could reasonably have been expected to have done so. As ACF admitted, the Postal Service is not infallible, even though most mail is delivered uneventfully. Cf. ACF Br. at 4. The State alleged that, while her legal address may not have changed, L.D. was not physically present at that address during much of the period when delivery might have occurred. It is true that at least some mail was successfully delivered to L.D. at that address, since her checks were cashed. However, the State pointed out that special efforts may have been made to arrange pick up of these checks, which are received on a predictable schedule, whereas the arrival of the SSN transmittal could not be anticipated as exactly and was not likely to be planned for with the same urgency. State Reply Br. at 3. Since L.D. was "staying back and forth between her home . . . and her mother's home," her home may have appeared vacant at times, which increases the chances of items of mail being lost or stolen. Id. Common experience suggests that this risk is greatest during the holiday season when the volume of mail is highest, and the delivery might have been expected to have occurred during this period. State Reply Br. at 3. In summary, L.D.'s transiency provides an explanation to rebut the otherwise reasonable presumption that she received mail sent to her at her legal address.
This situation is not one where a recipient eventually provided a number, but could not remember when it was received. Where a recipient acknowledges receiving a SSN or provides it to the agency at some point, but the date of receipt is at issue, ACF may fairly assume that the receipt occurred within some reasonable period from issuance, absent contrary proof. However, in this case, we have no acknowledgement of receipt. Every time she was asked directly, L.D. indicated that she did not have the SSN. ACF argued that the form which it obtained from L.D. amounted to an admission of receipt. ACF acknowledged that the date given for receipt was impossible, since the SSN was not even issued until the next month. Nevertheless, ACF argued that L.D.'s error about the date did "not mean that she was also wrong about the fact of having received" the SSN. ACF Br. at 5. The State contended that the form failed to inquire whether L.D. ever in fact received the SSN, but rather assumed receipt and reporting and asked only for dates. We agree that responding to a leading question on a form by filling in an impossible date cannot fairly be treated as an admission of receipt. The fact that L.D. had a mental disability serves to undercut further the likelihood that her response was intended as an admission of receipt and to provide some explanation for the inconsistency in her statements.
Our reasoning does not result in a conclusion that mental illness provides an exception to the requirement that a SSN be furnished upon its receipt, contrary to ACF's concerns. Cf. ACF Br. at 5. Thus, we do not conclude that L.D. was excused from furnishing her child's SSN on the basis that she lacked some mental capacity to meet her responsibilities. Rather, we conclude that L.D.'s mental illness was one factor contributing to the difficulty in ascertaining that the SSN was ever in fact received so as to trigger the obligation to furnish it.
This case differs substantially from other situations in which we have sustained enumeration errors. In New Mexico Human Services Dept., Docket No. A-92-78 (1992), the recipient had the SSN (and in fact showed it to the state QC reviewer), but had failed to furnish it as of the review date, even though she had received it at least two months in advance. We rejected the position that proof of application for a SSN is enough to satisfy enumeration requirements when the SSN has not been provided to the agency upon its receipt. In Tennessee Dept. of Human Services, Docket Nos. 91-148, 91-149, and 92-26 (1992), upheld on reconsideration (1992), we dealt with three different situations, but in all of them the recipient had in fact received the SSN. Here, however, no SSN for the child was ever recorded in L.D.'s case file, and there was no conclusive evidence that the SSN was actually received at any time before the review date.
Conclusion
For the foregoing reasons, we conclude that no erroneous payment occurred and therefore reverse ACF's determination of an enumeration error.
___________________________
Carolyn Reines-Graubard
___________________________
Maxine Winerman
___________________________
Leslie A. Sussan
* * * Footnotes * * *
1. After the review date in this case, Appendix W was revised to establish a presumption of receipt of a SSN on the fifteenth day after issuance by the Social Security Administration under certain circumstances. ACF did not seek to enforce that presumption here, but rather argued that receipt must reasonably be assumed here because more than 90 days elapsed from the issuance of the SSN to the review period. We therefore review the facts presented by both parties to determine whether it is reasonable to conclude that the SSN was received in advance of the review date. Since we do not apply the 15-day presumption in the revised QCM, we do not address the arguments of the State that the reviews should have been promulgated through notice and comment rulemaking procedures. State Brief (Br.) at 4.
2. We identify recipients by their initials in order to protect their privacy.
3. At one point, the State described the person as L.D.'s sister, but the form which she submitted indicated that she was not related to L.D., and she is elsewhere characterized as a friend. Cf. State Br. at 3; ACF Exhibits at 19.