Ohio Department of Human Services, QC No. 55 (1993)

Department of Health and Human Services

Departmental Appeals Board

QUALITY CONTROL REVIEW PANEL

SUBJECT:  Ohio Department of    
Human Services
Docket No. A-93-183
Decision No. QC55

DATE:  October 21, 1993

DECISION

The Ohio Department of Human Services (Ohio) appealed the
quality control (QC) review determination of the Regional
Administrator of the Administration for Children and
Families (ACF).  ACF determined that Ohio overpaid $274
in Aid to Families with Dependent Children (AFDC) to W.B.
because W.B. received a worker's compensation award.   1/
 Ohio argued that W.B.'s receipt of the worker's
compensation should result in a finding of a $75
overpayment.

For the reasons discussed below, we sustain ACF's
determination.

Background

This case involves the application of section 402(a)(17)
of the Social Security Act, commonly referred to as the
"lump sum rule."  Under the lump sum rule, an AFDC family
receiving non-recurring lump sum income becomes
ineligible for AFDC benefits for the number of months
that the income would last if the family spent an amount
equal to the state's AFDC standard of need each month. 
The period of ineligibility is determined by dividing the
lump sum and other income by the standard of need for a
family of that size.   2/  45 C.F.R. �
233.20(a)(3)(ii)(F).

W.B. was part of a two person AFDC assistance group
consisting of herself and her niece.  W.B. was included
in the assistance group as a grantee relative and the
grant was calculated on the basis of her and her niece's
needs.   3/  In December 1991, W.B. received a lump sum
worker's compensation award of $3,342.12.  W.B. did not
report the receipt of this money to her caseworker and
continued to receive a two-person AFDC grant through
April 1992, the QC review month.

Also living in the household with W.B. were five other
nieces and nephews who constituted two additional AFDC
assistance groups.  These two assistance groups consisted
only of children and are not at issue here.  W.B. was the
payee relative for those groups, i.e., the grants were
paid to her for the children's benefit and her needs,
income, and resources were not considered in calculating
the amount of the grants.

In its QC review, Ohio QC discovered W.B.'s worker's
compensation award and concluded that it made W.B.
ineligible for AFDC in April.  Ohio QC also found that
the lump sum rule did not apply to the niece and the
worker's compensation award did not affect her continuing
eligibility.  Therefore, Ohio QC calculated the error to
be $75 -- the amount which represented W.B.'s portion of
the $274 grant.

In contrast, Federal QC determined that the lump sum rule
applied to both W.B. and her niece.  It calculated the
error by dividing $3,342.12 (the worker's compensation
award) by $670 (Ohio's standard of need for two people)
and concluded that W.B. and her niece were completely
ineligible from January through April.  Federal QC
therefore found that the entire grant ($274) was overpaid
in April 1992.

Analysis

The question presented by this case is whether Ohio's
permissible state practice (PSP) would have required Ohio
to remove W.B. from the assistance group and treat the
niece as eligible had Ohio known in April that W.B.
received a lump sum.   4/  Below we summarize Ohio's
arguments concerning its PSP.  We then explain why we
conclude that Ohio failed to show that its PSP would
result in the niece's continuing eligibility.   5/

Ohio correctly pointed out that W.B. was a grantee
relative who was not required to be included in the
assistance group.  45 C.F.R. � 206.10(a)(1)(vii).  Ohio
argued that under its rule for establishing an assistance
unit, the eligibility of such a grantee relative is
determined independently from that of the child(ren) and
that only when the grantee relative is needy, i.e., meets
the eligibility standards for income and resources, is he
or she entitled to be included in the assistance group. 
Therefore, under Ohio's construction of its PSP, W.B.'s
eligibility to be included in the assistance group with
the niece ended when W.B. received the lump sum and the
lump sum did not affect the niece's eligibility.

We reject Ohio's position because it conflicts with 
Ohio's rules concerning lump sums.  Ohio's rules
implementing the federal lump sum requirement are found
at Ohio Administrative Code �� 5101:1-23-07 through
5101:1-23-074.  Ohio Administrative Code � 5101:1-23-
072(A), the most relevant to this case, provides:

  Any member of the family who was included in the
ADC assistance group in the month of receipt of
the lump sum is included in the period of
ineligibility.  After a determination of future
ineligibility is made, a change in family
composition does not alter the period of
ineligibility.  Any member of the original
assistance group is ineligible until the period
of ineligibility ends UNLESS ONE OR MORE OF THE
CONDITIONS SET FORTH IN RULE 5101:1-23-073 . . .
EXISTS.  (Underline emphasis added.)

Under the plain language of this rule, the niece would be
included in the period of ineligibility because she and
W.B. constituted an assistance group in January 1991, the
month W.B. received the worker's compensation award and
none of the conditions in Ohio Administrative Code
� 5101:1-23-073 apply.

Furthermore, Ohio's other rules concerning lump sums
support this construction of Ohio Administrative Code
� 5101:1-23-072(A).
 
 o  Ohio Administrative Code � 5101:1-23-07(B)
defines a lump sum payment as "nonrecurring payments
received by an assistance group."  A worker's
compensation award is specifically identified as a
lump sum payment.  Ohio Admin. Code � 5101:1-23-
07(D)(8). 

 o  Ohio Administrative Code � 5101:1-23-07(J) sets
forth circumstances under which a lump sum is
considered "unavailable to meet current and future
needs" and therefore excluded from the lump sum
provisions.  The circumstances described by that
rule do not include receipt of a lump sum by a
member of an assistance group who is not required to
be included in the assistance group or receipt by a
member who has no independent obligation to support
the other members of an assistance group. 

 o  The rule describing how a lump sum period of
ineligibility is calculated uses the assistance
group which received the lump sum as the basis for
the calculation.  The rule does not provide for
excluding any member of the assistance group.  Ohio
Admin. Code � 5101:1-23-071.

 o  The rule describing lump sum budgeting procedures
states that the procedures are to be used "[w]hen a
lump-sum payment is received by any member of an
assistance group . . . ."  Ohio Admin. Code �
5101:1-23-074.  Again, there is nothing in the
language of this rule which would support Ohio's
position that lump sums received by grantee
relatives are to be budgeted differently than other
lump sums.

Therefore, we conclude that Ohio's lump sum rules apply
to all members of an assistance group if one member
receives a lump sum which exceeds Ohio's standard of need
for that size group.

As authority for its position that its PSP resulted in
the removal of W.B. from the assistance group and
authorized it to treat the niece as eligible, Ohio relied
on � 5101:1-21-013 of the Ohio Administrative Code.  That
section provides:

 � 5101:1-21-013  ADC; establishing the assistance
group.

             * * *

 (C)  When the grantee relative requests assistance
for himself and the eligible children, his need must
be verified and his resources counted in the same
manner as the children's own parent.  If the grantee
relative's own resources . . . exceed the ADC
resource limit, the grantee relative shall not be
eligible to be included in the assistance group.
 (D)  When the grantee relative has a spouse, the
income of that spouse must be evaluated to determine
the spouse's ability to support the grantee
relative.  If the countable income is sufficient to
meet the need of the grantee relative, the grantee
relative shall not be eligible to be included in the
assistance group.   If the countable income is not
sufficient to meet the need of the grantee relative,
the grantee relative may be included in the ADC
assistance group and no portion of the spouses'
income is deducted from the payment standard for the
assistance group. (Emphasis added).

Ohio supported its construction of Ohio Administrative
Code � 5101:1-21-013 by citing section 3000 of its Public
Assistance Manual which refers to eligibility criteria
that must be met "for financial assistance to be issued
to children and their needy caretaker relatives."

We conclude that Ohio's arguments concerning Ohio
Administrative Code � 5101:1-21-013 are not persuasive
for the following reasons.

  o  The heading of section 5101:1-21-013 describes
it as dealing with "establishing the assistance
group" and the section is placed with the
regulations governing the eligibility
determination process.  Thus, the section's
relevance to an established assistance group in
which the grantee relative subsequently becomes
ineligible is ambiguous.  Its questionable
relevance renders it particularly unpersuasive in
light of Ohio's more definitive lump sum rules.

  o  In its briefing before the Panel, Ohio
expressly relied on subsection (C) of Ohio
Administrative Code � 5101:1-21-013.  That
subsection concerns the effect of a grantee's
relative's resources, not a grantee relative's
income.   6/  However, a lump sum is income--
i.e., the effect of the lump sum rule is to
prevent lump sums from ever becoming a resource
by budgeting them as income for a prescribed
period of time.  See Ohio Admin. Code � 5101:1-
23-07(I), (J)(5).  Therefore, it is unclear why
the language concerning the grantee relative's
resources is relevant to Ohio's treatment of a
grantee relative's income or lump sums.

  o  Subsection (D) of the section deals with the
grantee relative's income.  However, this
subsection only addresses the effect of income
deemed to a grantee relative because of his or
her spouse's income.  Therefore, the portion of
the rule addressing income does not address the
issue of a grantee relative's own income.

In further support of its construction of Ohio
Administrative Code � 5101:1-21-013 Ohio cited an
administrative appeal decision in which an aunt in an
assistance group consisting of herself and her niece
received a worker's compensation lump sum.  The case
worker and subsequent hearing officer held that receipt
of a lump sum by one member of an assistance group
affected the remaining members and therefore the niece
lost her eligibility.  Subsequently, an administrative
hearing examiner reversed this decision and held that the
aunt's receipt of a worker's compensation award made the
aunt ineligible but did not affect the continuing
eligibility of the niece.  Administrative Appeal
Decision, Appeal Nos. 223216, 223217, Attachment to
Ohio's Submission of June 21, 1993.  The examiner
reasoned that upon receipt of the award, the aunt was no
longer eligible to be included in the assistance group
and that "[h]er removal from the assistance group thereby
negates any effect the receipt of income might have on
any other member of the assistance group." 

We conclude that this administrative hearing decision is
not persuasive here for the following reasons.

 o  The hearing decision relies on subsection (D) of
Ohio Administrative Code � 5101:1-21-013 which
concerns the effect of a grantee relative's spouse's
income.  The decision does not acknowledge that the
plain language of this subsection goes to the issue
of the spouse's income and does not explain how this
subsection is relevant to the situation where the
grantee relative receives a lump sum.

 o  The hearing decision does not address the
apparent conflict between Ohio's lump sum
regulations and the examiner's application of Ohio
Administrative Code � 5101:1-21-013.

 o  In the case before the hearing examiner, the aunt
timely reported her receipt of the lump sum. 
Therefore, the hearing examiner could conclude that
the aunt had requested that a new assistance group
be "established" under Ohio Administrative Code �
5101:1-21-013 to exclude her as a non-needy grantee
relative.  In contrast, W.B. did not report the
receipt of the worker's compensation award and
continued to accept payments on behalf of a two
person assistance group.  Therefore, W.B. never
invoked the protection offered by Ohio
Administrative Code � 5101:1-21-013.

Therefore, we conclude that the hearing decision
submitted by Ohio does not resolve the inherent conflict
between the plain language of its lump sum rules and its
construction of Ohio Administrative Code � 5101:1-21-013.

Ohio also appeared to argue that it was unfair that the
niece in the assistance group with W.B. was determined to
be ineligible while W.B.'s other nieces and nephews who
were part of different assistance groups were not
affected.  The lump sum rule has been repeatedly
challenged on the grounds that it treats certain groups
of people inequitably.  As ACF pointed out, the judicial
response to such challenges has been to rule that simply
because the lump sum rule may produce harsh results does
not make it unlawful.  Watkins v. Blinzinger, 789 F.2d
474, 482-83 (7th Cir. 1986); see also Lukhard v. Reed, at
381.  Ohio did not make any arguments which addressed the
long line of judicial precedent which has upheld the lump
sum rule.

Conclusion

For the foregoing reasons, we conclude that ACF properly
determined that W.B. and her niece were ineligible for
assistance in April 1992 and correctly calculated the
amount of the error.


                          
 Peggy McFadden-Elmore


                          
 Leslie A. Sussan


                          
 Sara Anderson


* * * Footnotes * * *

       1.    We identify the recipient by her initials in
order to protect her privacy.  The Ohio quality control
number is 012129.
       2.    Because of the lump sum rule's effect on
eligibility, considerable litigation has resulted from
its implementation.  Two of these cases have reached the
Supreme Court:  Gardebring v. Jenkins, 485 U.S. 415
(1988) (holding that states did not have to give AFDC
recipients notice of the lump sum rule prior to
implementing it) and Lukhard v. Reed, 481 U.S. 368 (1987)
(holding that Virginia could treat personal injury awards
as lump sums under section 402(a)(17)).  No cases appear
to have addressed the question of whether the lump sum
rule must be applied to all members of an assistance
group where the member receiving the lump sum has no
independent duty to support the other members.  Because
this decision is based on Ohio's regulations, we do not
address this question.
       3.    The Code of Federal Regulations uses the
term "assistance unit" to describe the group of "all
individuals whose needs, income, and resources are
considered in determining eligibility for, and the amount
of, an assistance payment for which Federal participation
is claimed . . . ."  45 C.F.R. � 205.40(a)(1).  Ohio's
administrative code uses the term "assistance group,"
therefore, we use Ohio's term in this decision.

       4.    PSPs are "written rules that are in
accordance with existing, approved State plan
provisions."  QC Manual 3131(B)(1).  If a state practice
employed prior to QC review is a PSP, a payment made in
accordance with that practice should be upheld.  See QC
Manual 3130-3131.
       5.    ACF argued that Ohio's position violated
Ohio's regulations, its AFDC state plan, and federal law.
 Since we agree with ACF that Ohio's regulations do not
support Ohio's position, we do not reach the issues
concerning Ohio's state plan or federal law. 
       6.    Prior to the enactment of section 402(a)(17)
of the Social Security Act, the distinction between
resources and income was ". . . minimized by an HHS
requirement that States treat any income received in a
given month as a resource the following months."  Lukhard
v. Reed, at 372.  However, since section 402(a)(17)
applies only to "income," and projects the availability
of that income over future months, the distinction
between income and resources came to have significant
consequences for determining the period of ineligibility
of an assistance unit.
 

(..continued)