Department of Health and Human Services
Departmental Appeals Board
AFDC QUALITY CONTROL REVIEW PANEL
SUBJECT: New York State
Department of
Social Services
Docket No. A-94-011
Decision No. QC60-R
DATE: January 28, 1994
DECISION ON RECONSIDERATION
The Administration for Children and Families (ACF)
requested
reconsideration of the Panel's decision in New
York State Department of
Social Services, DAB QC52
(1993)(Docket No. A-92-253). In that
decision we
reversed ACF's error determinations in two cases
involving
"essential person" status under New York's
State Plan. In the two
cases, the New York State
Department of Social Services (NYSDSS) conceded
that it
had committed errors, but disagreed with ACF as to the
measure
of those errors. In one case ACF found the Aid
to Families with
Dependent Children (AFDC) assistance
unit (AU) ineligible rather than
overpaid, and in the
other case ACF identified a larger overpayment than
that
found by NYSDSS. The basis for ACF's findings was its
conclusion that NYSDSS must treat as available to the AU
the excess
income or resources of individuals residing
with the AU who had been
presumed to be essential
persons. The Panel reversed ACF's findings
because we
agreed with NYSDSS that, under New York's State Plan, the
individuals in question were not eligible for essential
person
status.
The key to our earlier decision was our interpretation of
the New
York State Plan's definition of an essential
person as one who is "eligible
for public assistance
other than AFDC on the basis of income and
resources."
NYSDSS contended, and we agreed, that the quoted
language
excludes from the class of essential persons someone who
was
receiving public assistance for which that person
was, in fact,
ineligible. The individuals ACF contended
must be treated as essential
persons were ineligible for
the public assistance payments they had
received. On
that basis we concluded that the individuals were not
essential persons and, thus, their income was not
required to be treated
as available to the AUs.
The Panel's Guidelines provide that a party may request
reconsideration
of a Panel decision upon a showing of a
clear error of fact or law.
ACF requested
reconsideration of our earlier decision, contending that
it contained errors of fact and law. ACF asserted that
our
interpretation of New York's State Plan is erroneous
as a matter of
law. ACF contended that the phrase "is
eligible for public assistance"
in the State Plan must be
read in light of State written policies which
include the
phrase "is eligible for or is receiving public
assistance"
(emphasis added). ACF interpreted "is
receiving" to include improper
receipt of public
assistance.
We have carefully considered ACF's arguments and NYSDSS's
responses. The arguments advanced by ACF to justify
reconsideration are, in substance, the same arguments
that we considered
and rejected in our initial decision.
We remain convinced that New York's
State Plan requires
essential persons to be eligible for public
assistance.
ACF's contention that an ineligible public assistance
recipient must be treated as an essential person is
irreconcilable with
the plain language of the State Plan.
ACF's contention that both
NYSDSS and ACF understood and
intended the State Plan definition to extend
to all
public assistance recipients whether eligible or not is
completely unsupported in the record. Therefore, we
conclude that
our prior decision was not erroneous as a
matter of fact or law, and we deny
ACF's request for
reconsideration.
Relevant Authority
Section 402(a)(7)(A) of the Social Security Act (Act)
requires that
states, in calculating need for AFDC
purposes:
take into consideration any other income and
resources of any child
or relative claiming [AFDC],
or of any other individual (living in the same
home
as such child and relative) whose needs the State
determines should
be considered in determining the
need of the child or relative claiming such
aid [.]
Federal regulations provide, at 45 C.F.R. �
233.20(a)(2)(vii), that a
State Plan must:
if the State chooses to establish the need of the
individual on a
basis that recognizes, as essential
to his/her basic well-being, the
presence in the
home of other needy individuals, . . . specify the
persons whose needs will be included in the
individual's need . . .
.
Section 3577 of the QC Manual (QCM) provides:
If the State chooses, in establishing the need of an
AU, to take
into account the presence in the home of
another needy, but categorically
ineligible
individual(s), PSP [Permissible State Practice] must
specify
the kinds of individuals whose needs will be
included in determining the
AU's need, and provide
that the decision as to whether any individual will
be recognized as essential to the recipient's well-
being shall rest with
the recipient.
Permissible State Practice (PSP) is defined by regulation
at 42 C.F.R. �
205.40(a)(8):
Permissible State practice means State written
policy instructions
that are consistent with the
State plan . . . . In all instances where
written
instructions are not consistent with the State plan
or proposed
plan amendments, permissible State
practice means the provisions of the
State plan.
Similarly, section 3131 of the QCM defines PSP to mean:
"written
rules and policies that are in accordance with
existing, approved State plan
provisions."
New York State Plan Amendment Transmittal No. 85-22
(effective September
17, 1989), provides:
The following kinds of individuals may be recognized
as "essential
persons:"
Persons, relative or non-relative, who:
1. reside in the same home as the recipient;
2. are eligible for public assistance other than
[AFDC] on
the basis of income and resources;
3. persons who meet the above requirements are
presumed to be
essential persons unless the head
of household states otherwise.
This State Plan Amendment was conditionally approved by
Administrator
Wayne Stanton of the Family Support
Administration (FSA) (predecessor to
ACF) in a decision
dated July 29, 1988.
ACF's Arguments
Briefly stated, the undisputed facts are that NYSDSS
presumed that two
individuals receiving home relief
(general assistance funded by the State)
and residing
with AFDC AUs were essential persons. 1/
State QC
review discovered that the home relief recipients were
ineligible, based on income and resources, for the home
relief payments
they had received. Based on their
ineligibility for home relief, State
QC determined that
the individuals were also ineligible for essential person
status and cited QC errors on this basis. State QC
calculated the
payment errors by removing the needs and
resources of the home relief
recipients from the AFDC
grants due the AUs. ACF contended throughout
these
proceedings that it was improper for NYSDSS to have
removed the
needs and resources of these individuals from
the AUs in calculating the
errors for QC purposes.
ACF contended that our earlier decision contained an
error of fact, in
that we incorrectly assumed that FSA
had at one time interpreted the State
Plan to require the
same result sought by NYSDSS in the present case.
See
DAB QC52 at 13 n.10. ACF offered the affidavit of Thomas
DePippo, ACF Deputy Regional Administrator, Region II
(dated Oct. 26,
1993), for the proposition that the QC
decision to which we referred, issued
by FSA on July 8,
1988, did not correctly reflect agency policy at the time
it was issued.
The balance of ACF's arguments on reconsideration
challenged the legal
basis for our earlier decision. ACF
argued that we had incorrectly
interpreted the provisions
of New York's State Plan when we held that the
Plan's
definition of an essential person as one who is "eligible
for
public assistance other than [AFDC] on the basis of
income and resources"
(emphasis added) precluded treating
a person wrongly in receipt of public
assistance (i.e.,
home relief) as an essential person. ACF relied on
two
NYSDSS Administrative Directives which were not before
the Panel
when we issued our earlier decision: 85 ADM-
44, dated November 7,
1985; 2/ and 88 ADM-53, dated
December 19, 1988.
3/
ACF argued that these directives proved that NYSDSS
intended the State
Plan to include as essential persons
all home relief recipients whether
eligible or not.
Request for Reconsideration at 3-4. Therefore,
ACF
argued, the Panel was wrong to conclude that
Administrative
Directive 91 ADM-29, which we analyzed in
our earlier decision, contradicted
the State Plan. 4/
ACF additionally argued that the State Plan must be read
as supplemented
by 91 ADM-29. ACF impliedly argued that
ACF would not have approved
the State Plan in the absence
of the language contained in 91 ADM-29.
Request for
Reconsideration at 4 & n.3. ACF's position appears to
be
that a definition of essential person which would exclude
persons who
received public assistance payments for which
they were not eligible would
conflict with federal law.
5/
Analysis
It is in the interests of all parties that the issues be
fully developed
during initial decision proceedings
before the Panel. Therefore, under
most circumstances,
the Panel will not consider, on reconsideration,
documents or legal arguments that could have been
presented previously,
but were not. The Administrative
Directives which ACF asserts justify
reconsideration of
our earlier decision in this case all substantially
pre-
date any proceedings before this Panel and do not
constitute
newly-discovered evidence. We nevertheless
address ACF's arguments
here, but only to make clear that
they would not change our conclusion that
reconsideration
is not warranted.
The only issue in this case is whether the language
"eligible for public
assistance other than [AFDC] on the
basis of income and resources" in the
State Plan must be
read to apply to individuals who are receiving public
assistance for which they are, in fact, ineligible. In
our view,
the answer is self-evident. A person who is
wrongly receiving public
assistance because that person
is ineligible for assistance on the basis of
income or
resources is, by definition, excluded from the category
of
essential persons. Nor can we discern any requirement
in federal law
that would require a different result.
The essence of ACF's argument on reconsideration was that
both NYSDSS and
ACF intended and understood the State
Plan definition of essential persons
to apply to all
persons in receipt of public assistance. ACF cited to
Administrative Directive 85 ADM-44, which contains the
phrase "is
eligible for or is receiving public
assistance" in defining essential person
status. 6/
ACF argued that the State's use of the "is
receiving"
language in a directive which pre-dated the State Plan
demonstrated that the State intended to include in its
definition of
essential persons all recipients of public
assistance--whether eligible or
not. 7/
NYSDSS asserted throughout these proceedings that the "is
receiving"
language should be read to mean "is properly
receiving" public
assistance. On that basis, NYSDSS
contended that there was no conflict
between the
provisions of its regulations and administrative
directives
and its State Plan. Although our earlier
decision did not adopt
NYSDSS' interpretation of the
disputed language, we cannot say that NYSDSS'
interpretation is unreasonable. Given that the language
can be
interpreted as consistent with the State Plan, we
cannot conclude that it
demonstrates an intent to adopt a
policy that would negate the Plan
definition. Indeed,
were we to reconsider our previous decision, we
might
conclude that we should defer to NYSDSS' interpretation
of its
directives and regulations as consistent with its
State Plan. However,
reconsideration of our previous
interpretation would not change the result
in this case.
Therefore, we decline to reconsider our decision on this
basis.
In addition to arguing that the State intended to include
all public
assistance recipients in the class of
essential persons, ACF asserted that
the State Plan
language approved by ACF actually incorporated the "is
receiving" language found in the administrative
directives. ACF
argued that the "is receiving" language
was incorporated into the State Plan
because 91 ADM-29
was issued to address the operational conditions imposed
by Administrator Wayne Stanton of FSA when he approved
the State Plan
amendment relating to essential persons.
ACF's suggestion that ACF would not have approved the
State Plan
amendment if 91 ADM-29 had not added the "is
receiving" language is
completely unsupported in the
record. Administrator Stanton's decision
approved the
proposed amendment, subject to the following two
conditions:
1. The New York State Department of Social
Services is to
issue a written directive to
caseworkers instructing them: (1) to explain
the
concept of "essential person" to recipients and
(2) to ask
recipients whether they consider as
essential to their well-being each
individual
residing in their home whose only possible basis
for being
included in the grant is that he is an
essential person; and
2. The New York State Department of Social
Services is
to issue a written interpretation of
the term "head of household" in its
amendment to
mean "recipient".
ACF Exhibit 7 in Docket No. A-92-253. It is apparent
that the two
conditions imposed by Administrator Stanton
did not relate to the State Plan
requirement that an
essential person be eligible for public
assistance.
Therefore, we conclude that the wording of the State Plan
amendment defining an essential person as one who is
eligible for public
assistance constitutes the approved
State Plan provision.
ACF argued on reconsideration that the Panel's
interpretation placed the
State Plan in conflict with
federal statutes and regulations. This
argument is not
substantially different from ACF's previous position that
the result sought by NYSDSS would violate the requirement
of section
402(a)(7)(A) of the Act that the income and
resources of essential persons
be treated as available to
the AU. We rejected that argument in our
earlier
decision because it assumes the existence of the precise
issue
in dispute, namely: whether the individuals in
question are essential
persons or not. Neither the Panel
nor NYSDSS disputed that if the
individuals are essential
persons, their income and resources must be deemed
available to the AU. The Panel remains convinced that
the
individuals in question here are not essential
persons under the State
Plan. ACF has failed throughout
this proceeding to articulate a basis
under federal law
for deeming the income and resources of an individual who
is not an essential person to be available to the AU.
Finally, the error of fact alleged by ACF does not
justify
reconsideration of our decision. The affidavit
of Thomas DePippo
asserts that an earlier FSA QC decision
erred in concluding that an
ineligible home relief
recipient was not an essential person and therefore
should be removed from the AU. Even if it were true that
the
result in that case did not reflect FSA policy at
that time, it would not
present a reason to reach a
different result here. In reaching our
earlier decision,
we did not rely on the earlier FSA ruling, but simply
noted its existence. DAB QC52 at 4 n.3. The result
reached
in our initial decision was based on our
conclusion that the definition of
essential person
contained in the State Plan amendment represented PSP,
which could not be superseded by conflicting written
policies. Our
interpretation of that provision would be
the same regardless of FSA's
policy at the time.
Conclusion
For the reasons stated, we conclude that our Decision No.
QC52 was not
erroneous as a matter of fact or law.
Therefore, we decline to
reconsider it.
_____________________________
Leslie
A. Sussan
_____________________________
Maxine
Winerman
_____________________________
Leslie
A. Weyn
* * * Footnotes * * *
1. Our initial decision
recited the procedural
history of this case in some detail. We do not
repeat
that history here, as it is not material to our decision
to deny
reconsideration.
2.
Administrative Directive 85 ADM-44 contains
two statements regarding the
definition of "essential
person:"
Federal regulations allow the State to include in an
[AFDC] grant
an allowance for the needs of any
household member(s) eligible for public
assistance
who are essential to the well-being of the [AFDC]
recipient,
but are not categorically eligible for
[AFDC].
* * *
The grant made to an applicant/recipient of [AFDC]
shall include
the needs of any other individuals
. . . provided that such individuals
have applied
for and are eligible for or are receiving public
assistance, and whose presence is essential to the
recipient's
well-being. . . . This includes adult
and minor [home relief]
recipients living in the
same household.
(emphasis added).
3. Administrative Directive
88 ADM-53 contains
the following language:
New York State regulations provide that persons who
reside in the
same home as the recipient and have
applied and been found eligible for
public
assistance other than [AFDC] on the basis of income
and resources
are presumed to be an . . . essential
person unless the head of household
states
otherwise.
(emphasis added).
4. Administrative Directive
91 ADM-29 contains
the following definition of "essential person":
An essential person is an individual(s) who has
applied for and is
eligible for or is receiving
public assistance other than [AFDC], who is
living
in the same home as an [AFDC] dependent child(ren)
who is an
applicant/recipient, and whose presence is
essential to the [AFDC]
recipient's well-being.
(emphasis added).
5. In
its Reply, ACF denied that it was arguing
that the State Plan conflicts with
federal law. Instead,
ACF explained, its position is that the Panel's
interpretation of the State Plan is in conflict with
federal
law.
6. ACF argued that 88
ADM-53 contained similar
language. ACF's reliance on 88 ADM-53 is
misplaced,
however, because the relevant language (quoted supra n.4)
focuses on eligibility, not receipt.
7. ACF pointed out that New
York regulations, at
N.Y. Comp. Codes R. & Regs. tit. 18, � 369.3(c)(2),
also
include the "is receiving" language. ACF argued that the
regulation was further evidence that the State intended
its essential
person policy to include all public
assistance recipients.