Department of Health and Human Services
Departmental Appeals Board
AFDC QUALITY CONTROL REVIEW PANEL
SUBJECT: Virginia Department
of Social Services
Docket No. A-94-125
Decision No. QC71
DATE: October 28, 1994
DECISION
The Virginia Department of Social Services (Virginia)
appealed the March
31, 1994 quality control (QC) review
determination of the Regional
Administrator of the
Administration for Children and Families (ACF) in State
QC Review No. 06678. The Regional Administrator
sustained the
federal QC finding that the Aid to Families
with Dependent Children (AFDC)
assistance unit in that
sample case received a $42 overpayment during the
review
month of November 1991.
The AFDC recipient (the mother) lived with her minor
daughter and her
son, the daughter's half brother, who
was six months old at the time of the
review month. The
AFDC assistance unit (AU) consisted of the mother
and
daughter only. ACF determined that the AU was overpaid
because
the son should have been included in the AU and
that child support provided
by his father, who did not
live in the household, should have been
considered in
calculating the AU's award of assistance.
Virginia argued that the son was not required to be in
the AU because his
father, despite being absent from the
household, provided parental support
and care so that the
son was not "deprived" under AFDC laws and
regulations.
Accordingly, Virginia asserted, the support income
received from the father did not have to be considered in
determining
the AU's award of assistance, and the AU
received the correct payment for
the review month.
In its response to ACF's brief in this appeal, Virginia
also argued that
ACF's overpayment determination should
be reversed because ACF did not
respond to its initial
letter disagreeing with the federal QC determination
within the time provided in the QC regulations, and then
took over a
year to render its decision. As this
argument had not been raised
earlier, ACF was given an
opportunity to file an additional response.
Virginia was
then provided the opportunity to reply to ACF's
submission.
For the reasons discussed below, we find that ACF's
untimely response
does not require that the overpayment
determination be reversed, and that
the father's support
payments should have been included in determining the
amount of assistance for the review month. Accordingly,
we sustain
ACF's overpayment determination.
Virginia's procedural claim
Virginia argued that ACF's overpayment determination
should be reversed
because ACF failed to respond to
Virginia's initial letter requesting review
of ACF's QC
finding within the time specified in the QC regulations
at
42 C.F.R. � 205.42(3). That regulation says that the
ACF Regional
Administrator shall respond to the state
within 21 calendar days of receipt
of the review request.
Virginia sought review of the initial federal
QC finding
by letter dated December 8, 1992. The Regional
Administrator's response, which requested more time to
consider the
legal issues, was dated January 6, 1993.
ACF did not dispute that this
response was untimely.
Virginia also argued that ACF abused its
discretion
because it took over one year after the January 6, 1993
response to make its decision upholding the overpayment
determination.
It is not clear that there is any remedy for the delay
cited by
Virginia. While section 205.42 calls for the
ACF Regional
Administrator to respond to the state's
disagreement letter within 21 days,
it does not provide
any sanction for a late response. Rather, the
regulation
permits the Regional Administrator's response to be "an
indication that the decision will be delayed pending
further review of
applicable laws, regulations, or
policies." Thus, the regulation does
not provide any
firm time limit for the Regional Administrator's
decision. 1/ 42 C.F.R. � 205.42(3).
To the extent that there may be a remedy for ACF's delay,
Virginia has
not shown that the Panel has jurisdiction to
address a procedural issue that
arose prior to the appeal
to the Panel. As ACF argued, the Panel was
established
to review QC difference cases, which are defined as cases
involving payments which ACF finds erroneous and which
the state's
review determines to be correct. Section
408(b)(3)-(5) of the Social
Security Act (Act). We
concur with ACF that the Panel lacks authority
to remedy
the procedural delay by reversing ACF's substantive
difference
finding. Accordingly, we find that Virginia's
argument is not
sufficient for the Panel to reverse ACF's
overpayment determination.
Virginia's substantive argument
1. Legal background
Title IV-A of the Act provides for payments to needy
families with
dependent children. Section 406(b) of the
Act defines "aid to families
with dependent children" as
money payments with respect to a dependent
child,
including payments to meet the needs of the relative with
whom
any dependent child is living.
This case concerns application of section 402(a)(38) of
the Act, which
requires that certain related persons
living together be included in the AU,
and that their
income be considered in determining the AU's need for
assistance (the filing unit provision). 2/ Prior to
the enactment of section 402(a)(38), families applying
for AFDC could
lawfully choose to exclude family members
living in the household from the
AU if they had income
that would reduce the family's benefit or make the
family
ineligible for AFDC. Section 402(a)(38) was added to the
Act by Section 2640(a) of Public Law No. 98-369, 98 Stat.
494, 1145, the
Deficit Reduction Act of 1984 (DEFRA '84).
The legislative history of
DEFRA '84 and subsequent
judicial decisions demonstrate that Congress
enacted the
filing unit provision to end this practice, by requiring
that such family members, and their income, be included
in the AU.
The Senate Committee on Finance explained the amendment
as follows:
There is no requirement in present law that
parents and all
siblings be included in the
AFDC filing unit. Families applying for
assistance may exclude from the filing unit
certain family members who
have income which
might reduce the family benefit. For example,
a
family might choose to exclude a child who is
receiving social security or
child support
payments, if the payments would reduce the
family's
benefits by an amount greater than the
amount payable on behalf of the
child.
The provision approved by the Committee would
require States to
include in the filing unit
the parents and all dependent minor siblings
(except SSI recipients and any stepbrothers and
stepsisters) living with
a child who applies
for or receives AFDC. . . . This change will
end the present practice whereby families
exclude members with income in
order to
maximize family benefits, and will ensure that
the income of
family members who live together
and share expenses is recognized and
counted as
available to the family as a whole.
Senate Comm. on Finance, 98th Cong., 2d Sess., Deficit
Reduction Act of
1984, Explanation of Provisions Approved
by Committee on March 21, 1984, at
980 (Comm. Print
1984). A similar explanation was also provided by the
House of Representatives. H.R. Conf. Rep. No. 861, 98th
Cong., 2d
Sess. 1407, reprinted in 1984 U.S.C.C.A.N.
1445, 2095.
Accordingly, section 402(a)(38) of the Act requires
states, in
determining a dependent child's need for
assistance, to include in the AU
with the dependent
child, and take into account the income of, any brother
or sister of the child living in the same home who "meets
the conditions
described in clauses (1) and (2)" of
section 406(a) of the Act.
Section 406(a) of the Act in
turn defines a "dependent child" as a needy
child who (1)
has been deprived of parental support or care by reason
of
the death, continued absence from the home or
incapacity of a parent, and
who is living with a
specified relative, and (2) is under 18. The
regulation
implementing DEFRA '84 stated that in order for the
family to
be eligible for AFDC, an application with
respect to a dependent child must
also include, if living
in the same household and otherwise eligible for
assistance, any blood-related or adoptive brother or
sister. 45
C.F.R. � 206.10(a)(1)(vii)(B) (1985).
Thus, a sibling of a dependent child must be included in
the AU if that
sibling is deprived of parental support or
care by reason of the death,
continued absence from the
home or incapacity of a parent. See, Bowen
v. Gilliard,
483 U.S. 587 (1987); Skidgel v. Maine Dept. of Human
Services, 994 F.2d 930 (1st Cir. 1993); Gorrie v. Bowen,
809 F.2d 508
(8th Cir. 1987). The parent's continued
absence from the home results
in deprivation of parental
support or care when "the nature of the absence
is such
as either to interrupt or terminate the parent's
functioning as
a provider of maintenance, physical care,
or guidance for the child, and the
known or indefinite
duration of the absence precludes counting on the
parent's performance of the function of planning for the
present support
or care of the child." 45 C.F.R.
� 233.90(c)(1)(iii).
Virginia's AFDC state plan provides that when absence is
due to
separation, continued absence is determined based
on the provision of
physical care, guidance and
maintenance by the absent parent.
Transmittal No. 91-1,
ACF Exhibit (Ex.) 5.
Virginia's AFDC Manual provides that continued absence of
a parent, and
deprivation of the parent's child, is
established automatically by
circumstances such as legal
divorce, deportation, or a parent's
incarceration. In
cases of continued absence due to the parents'
separation, however, the Manual provides that:
When a parent is absent parental functioning
must be evaluated to
determine whether the
nature of the absence is such that the
provision
of either physical care, guidance, or
maintenance (support) is interrupted
or
terminated. If so, deprivation exists.
(Exception:
When both parents provide written
statements agreeing that although the
parent is
absent from the home the child is not rendered
deprived, the
child would not be included in
the assistance unit. No further
evaluation of
maintenance, physical care, and guidance is
required.)
Virginia AFDC Manual � 201.4.B.7, ACF Ex. 3, Virginia Ex.
B.
Virginia's AFDC Manual defines maintenance, physical
care, and guidance
as follows:
a. Maintenance - Support from the absent parent
which equals
or exceeds the standard of
assistance for the number of people required
to be evaluated for inclusion in the
assistance unit. In
determining who would
be included in this number do not include
individuals who do not meet the categorical
requirements of age, living
with, residency,
and citizenship/alienage. Also, do not
include
SSI recipients, and individuals
ineligible due to the receipt of a lump sum.
If the applicant/recipient indicates
support is being provided by
the absent
parent, the amount of support provided must
be verified.
Note: The $50.00 disregard is not allowed in
the
evaluation of maintenance. Additionally,
all in-kind contributions,
including food and
clothing, will not be counted in this
evaluation.
b. Guidance - Parental participation in the
responsibility for
the child's development.
Such participation includes, but is not
limited to, attending school conferences,
disciplining the child,
participating in
decisions concerning the child's well-being,
and
involvement in the child's
extracurricular activities.
c. Physical Care - Providing continuous care
for the child by
performing tasks required
in the child's daily life. Such physical
care may include bathing, feeding, dressing,
assuring medical attention
is received by
the child, preparing meals, supervising the
child's
activities, and assisting with other
physical care needs. The
provision of
physical care may vary from child to child
depending on the
child's age.
If either physical care, guidance, or
maintenance is not provided
by the absent
parent as defined above, parental functioning
is
considered interrupted/terminated and
deprivation based on continued absence
exists.
Virginia AFDC Manual � 201.4.B.7; ACF Ex. 3, Virginia Ex.
B.
2. Case background
The issue in this appeal is whether the record supports
Virginia's
determination that the father's absence from
the home did not terminate or
interrupt his functioning
as a provider of maintenance, physical care, and
guidance
for his son, such that the son was a not "dependent
child" who
had to be included in the AU with his half-
sister and his mother.
Virginia argued that the son was not deprived of parental
care or support
as a result of his father's absence,
since pursuant to the policy in its
AFDC Manual, both
parents gave written statements to the local agency that
the father provided maintenance, physical care, and
guidance for his
son. The mother completed a form titled
"Evaluation of Maintenance,
Physical Care, and Guidance",
and checked boxes indicating that the father
provided
physical care, guidance, and "maintenance/support" in the
amount of $50 every two weeks. ACF Ex. 1. The parents
also
gave brief written statements: the father's that he
provided guidance,
physical care, and money in the amount
of $100 monthly for the care of his
son, the mother's
that he provided guidance, physical care and support for
his son on a daily basis. 3/ Both parents wrote that
they did not desire assistance for the son. ACF Ex. 2.
Virginia determined that the son was not deprived of
parental support
and care by reason of the father's
continued absence, and did not include
him in the AU.
ACF determined that the parents' statements were not
sufficient to
support Virginia's determination that the
child was not deprived, and that
he should have been
included in the AU with his mother and half
sister. In
response, Virginia argued that a finding that a child is
not deprived is not based solely on parents' statements,
and asserted
that its eligibility worker determines that
a child is not deprived based on
an evaluation of the
facts of the case. The parties did not dispute
that if
the son was included in the AU, and the child support his
father
provided considered in determining the award of
assistance, then the AU
received a $42 overpayment for
the review month, and that there was no
overpayment if
the son was not included.
3. Analysis
For the following reasons, we conclude that ACF correctly
determined that
the son should have been included in the
AU, and that the AU received an
overpayment for the
review month. First, section 201.4.B.7 of
Virginia's
AFDC Manual seems to preclude any evaluation of whether a
child is deprived by a parent's absence when both parents
provide
statements agreeing that the child is not
deprived. To the extent this
is so, that policy is
inconsistent with the intent of the filing unit
provision
and with Virginia's AFDC state plan and is not a
permissible
state practice. Second, although Virginia
argued that the eligibility
worker independently
evaluates whether a child is deprived, the case record
does not show that such evaluation occurred, or that the
absent father
provided maintenance, physical care and
guidance as defined in Virginia's
AFDC Manual.
Excluding the son from the AU with his mother and half
sister meant that
his support income was not considered
in determining the AU's award of
assistance, and the AU
received greater benefits for the review month than
if he
had been included. The filing unit provision of DEFRA
'84
was intended to address precisely this situation.
The express purpose
behind the enactment of section
402(a)(38) of the Act was to end the
practice whereby
families could exclude children with income from the
family filing unit in order to maximize family benefits.
Comm.
Print 1984; Gilliard, 483 U.S. at 593-4. Given
this clear purpose, a
state's method of determining
whether to include a sibling in the AU must
prevent such
practice by providing some record that the sibling is not
deprived; i.e., that the parent's absence did not
interrupt or terminate
his role as a provider of
maintenance, physical care, or guidance for the
child.
Section 406(a)(1),(2) of the Act; 45 C.F.R.
�
233.90(c)(1)(iii).
Virginia's AFDC Manual appears to preclude any inquiry
into whether the
father provided maintenance, physical
care, and guidance for his son.
Virginia's AFDC Manual
does provide generally that parental functioning must
be
evaluated to determine whether the nature of the parent's
absence is
such that the provision of physical care,
guidance, or maintenance is
interrupted or terminated.
Virginia's AFDC Manual also contains
specific definitions
of physical care, guidance, and maintenance.
However,
the Manual sets forth an exception to this evaluation
requirement for separated parents: if both parents
provide written
statements that the child is not
deprived, the child is not included in the
AU and "no
further evaluation of maintenance, physical care, and
guidance is required." Virginia AFDC Manual � 201.4.B.7.
Thus, under this Manual provision, parents can exclude a
child
from the AU by providing statements that the child
is not deprived, without
any evaluation by the worker of
whether the absent parent provides
maintenance, physical
care, or guidance. Allowing the parent to
determine that
a child with income will be excluded from the AU, thus
increasing the AU's benefits, violates the clear intent
of the filing
unit provision. Comm. Print 1984;
Gilliard, 483 U.S. at 593-4.
The QC regulations and the ACF QC Manual (QCM) provide
that the basis for
judging the correctness of eligibility
and payment determinations is
permissible state practice
(PSP). PSP is defined as written rules and
policies that
are in accordance with existing, approved AFDC state plan
provisions. If PSP is inconsistent with the state plan,
the review
is conducted against the state plan. QCM
�� 3020, 3131; 42 C.F.R. �� 205.40(b)(12), 205.42(b).
Virginia's AFDC state plan provides that when absence is
due to
separation, continued absence is determined based
on the provision of
physical care, guidance and
maintenance by the absent parent.
Transmittal No. 91-1,
ACF Ex. 5. Virginia's plan thus calls for an
affirmative
determination of maintenance, physical care, and guidance
before finding that the child of an absent parent is not
deprived (and
thus not included in the AU). The plan
does not suggest that parental
statements that the child
is not deprived can be substituted for a
determination by
the eligibility worker, without any evaluation of the
veracity of those statements, or without any application
of the
definitions of maintenance, physical care and
guidance to the facts of the
case. Accordingly, we find
that the policy in Virginia's AFDC Manual,
specifically
the "exception" for separated parents who provide
statements that the child is not deprived, is not a PSP.
4/ Virginia AFDC Manual � 201.4.B.7.
Virginia also argued that contrary to the plain language
of its manual,
the eligibility worker does investigate
the circumstances of the family
before asking the parent
to complete the statement on deprivation.
Virginia
stated that its AFDC eligibility worker explains the
definitions of maintenance, physical care, and guidance
to the AFDC
applicant and determines if the child is
deprived based on the
responses. If an applicant
explains to the worker's satisfaction that
the absent
parent does provide maintenance, physical care, and
guidance,
Virginia reported, then the worker requests
written statements from both
parents, and determines
whether or not the child is deprived based upon the
applicant's responses to the definitions, the written
statements of both
parents, and other pertinent
information. Virginia explained that the
local AFDC
agency treats all this information as reasonable evidence
that the absent parent is providing maintenance, physical
care, and
guidance.
However, the case record does not support Virginia's
description of its
evaluation process or its contention
that such an evaluation was performed
here. While the
form signed by the mother states that the meanings of
maintenance, care, and guidance were explained to her,
nothing in the
record shows that she or the father
explained to the worker's satisfaction
how the father
engaged in activities that fulfilled the definitions of
those terms in Virginia's AFDC Manual. For instance, the
case
record contains no documentation that he performed
such tasks as bathing,
feeding, or dressing the child, or
any of the other things listed in the
definition of
physical care, or that he participated in decisions
concerning the child's well-being as in the definition of
guidance. Nor does the case record show that he did
anything else
which, though not listed in the examples,
would suffice to meet these
definitions. Because of
their conclusory nature, the parents' written
statements
provided nothing for the worker to evaluate or consider.
Therefore, nothing in the case record showed that
Virginia looked
behind or in any way verified the
statements supplied by the parents before
finding that
the child was not deprived and thus ineligible for AFDC.
The QCM provides that the case record is the QC
reviewer's sole source of
information about the state
agency's action. QCM � 3120. Here,
the case record does
not contain sufficient information to support either
Virginia's contention that its worker conducted an
evaluation of the
circumstances of the case, or that the
absent father provided maintenance,
physical care and
guidance to his son as defined in Virginia's AFDC
Manual.
While the case record does indicate that the father
provided $50 every
two weeks in child support for his
son, the father's financial support, even
if it met
Virginia's definition of maintenance, would not by itself
support a finding that the child was not deprived. 5/
Courts interpreting the filing unit provision have held
that a child who
receives financial support from his
absent parent must be included in the AU
with his
dependent siblings, even though he might not be needy.
Skidgel,
994 F.2d at 938; Gorrie, 809 F.2d at 513-16.
See also
Gilliard. The courts noted that section
402(a)(38) of the Act mandates
the inclusion of minor
siblings in the household who meet the requirements
of
clauses (1) and (2) of section 406(a), and that section
406(a)
defines "dependent child" as a needy child (1) who
has been deprived of
parental support or care by reason
of a parent's death, continued absence,
or incapacity and
(2) is under the age of eighteen. The requirement
that a
child be needy is not part of clauses (1) and (2) of
section
406(a), and the child thus does not have to be
needy in order to be
mandatorily included in the filing
unit under section 402(a)(38).
Gorrie, 809 F.2d at 514.
The courts also found that DEFRA '84 and its
legislative
history indicate that Congress intended that all
coresident
siblings of a dependent child applying for
AFDC and their income, including
child support, should be
counted in determining need and thus eligibility
for AFDC
assistance. Id. at 516. Overwhelmingly, courts have
rejected the argument that a child must be needy before
that child is to
be included in the family filing unit.
Skidgel, 994 F.2d at 938.
Accordingly, the fact that the
father provided financial support for his son
did not
mean that the child was not deprived of parental support
or
care.
Virginia argued that permitting parents to keep a child
off assistance is
consistent with governmental goals of
reducing dependence on welfare.
Parents should be able
to show that they provide for children and forego
welfare
benefits, Virginia argued, especially where the
government is
encouraging families to get off welfare and
stop the cycle of
dependency. We do not disagree with
these goals. However, in
this case, there was not
sufficient information to support a finding that
the
absent father provided for his son such that he was not
deprived. Additionally, excluding the son from the AU,
and not
considering his support income in determining the
award, increased the
amount of benefits that the family
received. Rather than serving the
general governmental
goals Virginia cited, this practice was contrary to
Congress's specific and unmistakable intent in enacting
the filing unit
provision.
Virginia also argued that it had developed its
deprivation policy after
consulting with ACF, that it
gave ACF a copy of its current AFDC Manual
provision when
it was proposed, and that ACF Region III staff did not
indicate any problem with that policy. Virginia provided
correspondence from ACF's organizational predecessor, the
Family Support
Administration (FSA), dated from March
1989 through October 1990, indicating
that Virginia could
not use a percentage of the standard of need as a test
of
deprivation, and advising Virginia to withdraw a proposed
state plan
amendment which used 120 hours a month of care
as a guide to determining
whether parental functioning
had been interrupted by a parent's
absence. Virginia
Exs. D-F. In response to that correspondence,
Virginia
sent FSA a copy of its current policy, including the
provision
in section 201.4.B.7 of Virginia's AFDC Manual
that no further evaluation is
required when separated
parents provide statements that their child is not
deprived. Virginia Ex. G. There is no evidence that FSA
ever
responded to, approved, or otherwise commented on
the current policy, and
Virginia cited no authority which
would show that ACF had a duty to comment
on the AFDC
Manual language, or that ACF's failure to respond
constituted approval. 6/
Further, FSA's correspondence concerned Virginia's
definitions of
maintenance and support, and did not
address the policy in the Virginia AFDC
Manual permitting
the determination of deprivation to be based on parents'
statements alone. Thus, the fact that Virginia provided
FSA with a
copy of its deprivation policy should not
prevent ACF from now determining
that the AU was overpaid
for the review month.
Virginia also represented that other states accept
statements of
applicants and recipients as evidence of
deprivation, and argued that its
practice of
substantiating the absence of deprivation by using
statements from both parents should be equally
acceptable. The
only authority Virginia cited in support
of this representation was Fettrow
v. Commonwealth, 407
A.2d 487 (Pa. Commw. Ct. 1979). Virginia argued
that in
Fettrow, the oral statements of both parents were
considered
sufficient evidence that one of the parents
was not continuously absent.
We conclude that Fettrow does not support Virginia's
position in this
case. In Fettrow, the issue was whether
the father was continuously
absent, not whether the
nature of the absence was such as either to
interrupt or
terminate his functioning as a provider of maintenance,
physical care, or guidance for the child. Section
406(a)(1),(2) of
the Act; 45 C.F.R. � 233.90(c)(1)(iii).
In Fettrow the AFDC
applicant asserted that her child
was deprived, but had told her caseworker
that her
husband had been back and forth between her house and his
parents' house and had spent some nights with her. The
case record
thus contained specific information
permitting a determination that the
father was not
continuously absent. Here, by contrast, there is no
evidence in the case record of what the father did to
provide physical
care and guidance. Furthermore,
accepting the applicant's statements
in Fettrow did not
result in the exclusion of a child with income from the
AU, the situation addressed by DEFRA '84 and the filing
unit provision
at section 402(a)(38) of the Act.
Virginia provided no other evidence
in support of its
assertions about other states' practices in establishing
deprivation.
Virginia also cited Freeman v. Lukhard, 465 F.Supp. 1269
(E.D. Va. 1979),
for the proposition that an absent
parent can provide parental support and
care such that
the child is not deprived. Freeman involved a challenge
to Virginia's former deprivation policy, under which the
AFDC agency
could find the child of separated parents
ineligible for assistance if it
could prove and document
that even though a parent had moved out of the
home, he
could be counted on to continuously provide maintenance,
physical care and guidance for the child. The court in
Freeman
noted that the absent father continued to visit
the children daily,
discussed their care with the
applicant, and provided them with milk and
diapers.
Thus, his absence from the home did not result in total
deprivation of maintenance, physical care, or guidance.
Id. at
1271. Virginia noted that the Superior Court of
New Jersey cited
Freeman for the proposition that the
child is not deprived or dependent
within the meaning of
section 406(a) of the Act if the absent parent
contributes in any small way to the child's maintenance,
guidance, and
support. In re Souder, 497 A.2d 1258 (N.J.
Super. Ct. App. Div.
1984).
These cases do not support Virginia's position. In
Freeman there
was evidence of the specific activities the
father performed to provide
maintenance, physical care,
and guidance, and the court held that (under
Virginia's
old policy) the child would not be deprived if the absent
parent provided "any amount of all three" (emphasis
added).
Freeman, 465 F.Supp. at 1271. Here, the father
provided financial
support, but there was no specific
evidence that he provided physical care
or guidance, two
components necessary for a finding that the child is not
deprived. Additionally, Virginia's former policy
required it to
prove and document that the absent father
could be counted on to
continuously provide maintenance,
physical care, and guidance. The
current policy contains
no requirement of proof and appears to end any
inquiry
into the absent parent's functions if the parents provide
statements that the child is not deprived. As the Souder
court
stated, finding that a child of separated parents
is not deprived requires a
showing that the absent parent
continued to function as a parent.
Souder, 497 A.2d at
1262-4. The case record in this appeal does not
support
such a showing.
Conclusion
For the reasons discussed above, we sustain ACF's
determination that the
assistance unit received an
overpayment for the review month.
Sara Anderson
Leslie A. Sussan
Jeffrey A. Sacks
* * * Footnotes * * *
1. By contrast, the
regulation provides that
the Regional Administrator's decision shall become
final
if the state fails to request review by the Panel within
30 days
after receiving the decision.
2. The QC regulations define assistance unit as
all
individuals whose needs, income, and resources are
considered in determining
eligibility for, and the amount
of, an AFDC payment for which federal
financial
participation is claimed. 45 C.F.R. 205.40(b)(1)
(1993).
3. The father
also provided a separate
statement that he provided $50 every two weeks,
which
would equal $108.33 per month. ACF Ex. 1. These
differences have no bearing on the outcome of this
appeal.
4. The
language in the Virginia's AFDC Manual
immediately preceding the
"exception," which states that
when a parent is absent parental functioning
must be
evaluated to determine whether the nature of the absence
is such
that the provision of either physical care,
guidance, or maintenance
(support) is interrupted or
terminated, appears to be consistent with
Virginia's AFDC
state plan.
5. The parties did not address whether the
financial
support provided by the father met the
definition of maintenance in
Virginia's AFDC Manual.
While ACF stated in its initial difference
letter dated
November 18, 1992, that the father's support did not
satisfy that definition, ACF did not pursue this argument
before the
Panel. ACF Ex. 1.
6. The Act does provide that erroneous payments
made
solely by reason of a state's reliance on, and
correct use of, erroneous
information about matters of
fact or incorrect statements of federal policy
provided
by ACF are not considered erroneous payments in
determining a
state's QC error rate. Section 408(c)(3)
of the Act. There has
been no showing that Virginia
relied on such erroneous advice
here.
(..continued)