New York State Department of Social Services, QC No. 76 (1994)

Department of Health and Human Services

Departmental Appeals Board

QUALITY CONTROL REVIEW PANEL

SUBJECT:  New York State        
Department of Social Services
Docket No. A-94-207
Decision No. QC76

DATE:  December 30, 1994

DECISION

The New York State Department of Social Services (New
York) appealed an August 4, 1994 quality control (QC)
review determination of the Regional Administrator of the
Administration for Children and Families (ACF) in State
QC number 691829.  In that case, ACF found an overpayment
of $40.00 based on two errors:  a carfare allowance of
$32.50 and receipt of $8.00 in Retirement, Survivors and
Disability Insurance benefits.  New York conceded the
error relating to the $8.00 benefits amount, but
contested the overpayment finding relating to the $32.50
carfare payment.  New York admitted that the carfare
allowance was not properly made under the Aid to Families
with Dependent Children (AFDC) program, but argued that
it was a proper payment under the Emergency Assistance to
Families (EAF) program.  Since claims by New York on both
programs are paid at the same rate of federal
reimbursement, New York argued that it should not be
penalized by finding an overpayment merely because of the
"technical" error of charging the wrong federal program.
 New York Br. at 2.

We conclude that the AFDC payment in this case was
erroneous because of the inclusion of the carfare
payment.  Therefore, we sustain the Regional
Administrator's determination.

Facts

The facts underlying this case are undisputed.  The
budget on which the AFDC payment was based for the review
month included a carfare allowance of $32.50 for the
mother in the assistance unit (AU) to look for an
apartment.  New York's AFDC state plan provisions do not
permit a carfare allowance for this purpose.  In some
circumstances, such an allowance is permissible under New
York's EAF state plan provisions.
 
Legal Background

Title IV, Part A of the Social Security Act (Act)
establishes the AFDC program to provide assistance to
specified needy children and their caretakers.  Section
408(a) of the Act requires states to establish a quality
control system in order to determine the amount of any
erroneous AFDC payments made by a state in administering
the AFDC program.  The AFDC QC system consists of a state
review of a sample of the state's AFDC payments during a
given period and a federal re-review of a subsample of
the sample. 

Pursuant to this statutory mandate, the Secretary has
issued regulations for the AFDC QC system, which require,
among other things, that the state operate its AFDC QC
system in accordance with applicable regulations and with
the policies and procedures prescribed in the QC Manuals
issued by the Department of Health and Human Services. 
45 C.F.R. � 205.40(d)(1).  The regulations set forth the
scope of the QC system for AFDC which is "designed to
reduce incorrect expenditures by identifying the nature,
magnitude and causes of all errors and to improve the
accuracy of the AFDC and Adult Assistance programs."  45
C.F.R. � 205.40(a)(1).  To this end, the QC reviews seek
to identify any "overpayments."  An overpayment is
defined as:

 a financial assistance payment received by or
for an assistance unit, for the review month,
which exceeds by at least $5.00 the amount for
which that unit was eligible under permissible
State practice in effect on the first day of
the review month.
 
45 C.F.R. � 205.40(b)(9); see Section 3040 of the QC
Manual (nearly identical language).

Section 402 of the Act requires each state to submit for
the Secretary's approval a state plan for aid to needy
families with children meeting certain requirements.  The
QC system reviews AFDC payments against permissible state
practice (PSP).  PSP is defined, in relevant part, as
"written rules and policies relating to eligibility and
payment that are in accordance with existing, approved
State plan provisions."  45 C.F.R. � 205.40(b)(12); QC
Manual � 3131.

 

Analysis

Since both the AFDC and EAF programs are established
under title IV-A of the Act, and since the federal
government matches the New York's costs in each program
at the same rate, New York argued that no overpayment
should be found where the AU was eligible for the funds
regardless of which program should have been the source.

New York argued that its position was supported by the
definitions of overpayment and of PSP, because neither is
expressly limited to payments made with AFDC funds or
under the approved State plan relating to AFDC only.  New
York asserted that the definitions in the regulations and
the Manual apply to "several titles of the Act, including
Title IV-A, which provides for both the AFDC and EAF
programs," and that nothing in the definitions requires
the payment to be funded under any particular program. 
New York Br. at 2-3.  In this case, New York concluded
there was no "overpayment" within the meaning of 45
C.F.R. � 205.40(b)(9) because the AU was eligible for the
carfare allowance under the PSP established by the
provisions of New York's EAF state plan.

We find no merit in New York's position.  On the
contrary, New York's arguments ignore the scope and goals
of the AFDC QC process and merge two programs (AFDC and
EAF) which have different requirements for eligibility
and payment.

The statutory purpose of the AFDC QC program is to
"improve the accuracy of payments of aid to families with
dependent children."  Section 408(a) of the Act (entitled
"AFDC Quality Control System").  It is designed to assess
the correctness of payments under AFDC, not under all
federal assistance programs or Title IV programs.  While
the definitions of PSP and overpayment do not repeat the
limitations of an AFDC-funded payment, they occur in the
context of a system which reviews only the correct
application of AFDC standards to AFDC payments.  Such
repetition would have added nothing.  Therefore, the
absence of a limitation in those definitions to the AFDC
QC process does not imply, as New York suggested, that an
overpayment only occurs when the net payment to an
assistance unit is more than the total for which it would
have been eligible "regardless of the source of the
funding," under any title in the Act covered by 45 C.F.R.
Part 205.  Cf. New York Br. at 3. 

A review of the process by which AFDC payments are tested
in the AFDC QC demonstrates the unreasonableness of New
York's construction of the terms "overpayment" and "PSP."
 
o Each month a random sample of AFDC cases is
identified for review.  The QC manual states that a
claim for FFP "through the AFDC program is essential
for a case to be included in the AFDC QC universe."
 The QC Manual further explicitly instructs that:
"All emergency assistance cases should be dropped as
'Listed in Error.'"  QC Manual � 3250; see also �
2421.1.  EAF payments are thus expressly excluded
from review in the AFDC QC sample.

o Once a case is part of the AFDC QC sample, its
subjected to a methodical and exhaustive review in
which each aspect of AFDC eligibility and payment is
tested.  The review process examines 570 "elements"
which are keyed to the regulations governing AFDC
eligibility and payment.  The elements are limited
to AFDC standards.

o AFDC QC reviews payments of AFDC as they were made
by the states, without adjusting for recoveries or
collections from other sources.  In determining
disallowances resulting from QC error rates, the
preamble to the QC regulations points out that AFDC
expenditures are defined as --

  total payments of aid to families with
dependent children.  It is this amount that is
reviewed in the QC sample and not the paid
amount less child support collections and AFDC
recoveries or cancellations.
 
 57 Fed. Reg. 46,799 (October 13, 1992).  While the
kind of collections and recoveries mentioned are not
the same as recasting a claim to a different Title
IV federal program, the principle involved is
similar.  The amount on which any potential
disallowance is to be calculated is tied to the
accuracy of the total payments which are subject to
review in the AFDC QC process, i.e., only AFDC
payments, regardless of any other source from which
a state may be able to recover the funds.

Therefore, the fact that the definitions of overpayment
and PSP do not state that they are limited to AFDC
payments or eligibility under AFDC state plans does not
mean that AFDC payments must be tested under all other
Title IV PSPs before they could be determined to be
overpayments. 

Besides overlooking the narrow scope of the AFDC QC
system, New York's argument glosses over the very
substantial differences between AFDC and EAF.  For
example, New York acknowledged that the two programs have
distinct state plan provisions.  The most relevant
distinction is the undisputed fact that, while the state
plan for EAF permits payment of a carfare allowance,   1/
the state plan for AFDC does not allow such a payment. 
New York Br. at 3; ACF Br. at 1.  More generally, the EAF
program serves a constituency which is not coextensive
with that of the AFDC program.  An AU may be ineligible
for AFDC, but may nevertheless qualify for EAF benefits
in some circumstances.   2/  On the other hand, only a
subset of AFDC AUs qualify for EAF benefits.  AFDC
eligibility centers on a "dependent child," as defined in
the Act.  Section 406 (a) of the Act; see also section
406 (b).  A dependent child must be under 18 (unless a
student), deprived of parental support or care due a
parent's death, absence or incapacity, and living with a
specified relative.  Id.  "Aid to families with dependent
children" means payments made with respect to such a
child.  EAF, by contrast, is generally available, for no
more than 30 days in a year, to "needy families with
children" under age 21.  The child in an EAF family must
be or have been within a specified period living with
specified relatives, "but only where such child is
without available resources, the payments, care, or
services involved are necessary to avoid destitution of
such child or to provide living arrangements in a home
for such child," and the need did not result from a
relative's refusal to work.  Section 406 (e)(1) of the
Act.  It is evident that evaluating the accuracy of an
EAF payment would necessitate reviewers gathering
information about a number of circumstances that are not
relevant to eligibility for AFDC. 

Also, the rate of FFP is 50 percent for all allowable EAF
expenditures, whereas the rate of FFP for AFDC
expenditures varies from state to state.  Section 403 of
the Act; 45 C.F.R. � 233.120 (b)(2).  The fact that New
York receives the same rate for both programs is
coincidental.   3/

Further, New York incorrectly asserted that in the
present case there was "no dispute that the assistance
unit was eligible for the EAF program."  New York Br. at
2.  ACF stated only that the payment "would have been
allowable under EAF had it a) been timely and b) been
incurred by a homeless family seeking a permanent home."
 ACF Br. at 2.  However, New York did not demonstrate
that any of the elements included in the state or federal
QC review were directed to determining whether the family
was homeless or whether the expenses were incurred in
search of a home.  There would have been no reason for
the reviewers to have ascertained these facts since they
would be relevant only to a review of EAF payments,
which, as noted above, are excluded from the universe of
AFDC QC sampled cases and not tested in the AFDC QC
review process.

New York made an additional argument in its reply brief
based on the two-year period provided in the Act for
filing claims for federal financial participation (FFP).
 Section 1132 of the Act.  The claiming deadline bars FFP
for any expenditure for which a claim is not filed by a
state within two years after the quarter in which the
expenditure was made (with exceptions not relevant here).
 New York argued that, under this provision, it has until
September 1995 to file a revised claim and receive full
payment without reduction in FFP.  New York contended,
therefore, that it should be "permitted to re-claim the
amount of the allowance under the correct program,
without loss of FFP."  New York Reply at 2.

This argument is not relevant to the issue in this case.
 The issue here is only whether New York made an
erroneous AFDC payment.  Whether or not New York may
revise its claims under EAF to recover FFP for an
expenditure originally claimed in error under AFDC does
not change the fact that New York made an erroneous AFDC
payment.  Not counting the improper carfare allowance as
a payment error would be contrary to the design of the
AFDC QC process for two reasons.  First, as explained
above, the AFDC QC process tests only the correctness of
AFDC payments.  It provides no way to determine whether
an erroneous AFDC payment would be allowable under some
other federal program and would therefore be a "claiming
mistake."  Second, in the AFDC QC sampling process, this
overpayment represents other erroneous AFDC payments in
the total universe of AFDC cases.  A state's AFDC error
rate is calculated on the basis of the ratio of its
erroneous payments to its total AFDC payments and the
national error rate is calculated on basis of the ratio
of all erroneous payments by the states to the total of
aid paid by the states Sections 408 (d) and (m)(1) of the
Act.  Allowing states to remove "claiming mistakes,"
while leaving the universe of AFDC payments unchanged,
would distort the error rate formulas.

Contrary to its characterization, New York is not being 
penalized by the finding of an erroneous payment for
having made a "claiming mistake."  Cf. New York Reply Br.
at 2.  The ultimate result of the QC process may be that
New York could be penalized if its administration of the
AFDC program permits too many errors in AFDC payments to
occur.  However, we are not resolving a disallowance of
$32.50.  Our task is simply to resolve whether the
payment at issue was erroneous for purposes of the AFDC
QC difference process.  We conclude that it was.

Conclusion

We conclude that the AU was overpaid by the amount of the
carfare allowance.  Since New York conceded error in
regard to the receipt of benefits, we sustain the federal
determination.


    
 ___________________________
     Sara B. Anderson


    
 ___________________________
     Jeffrey A. Sacks


    
 ___________________________
     Leslie A. Sussan


* * * Footnotes * * *

       1.    New York's EAF plan provides for assistance
to families with minor children which is "necessary to
avoid destitution of the children or to provide living
arrangements for them in a home." New York Ex. 6, at 2. 
New York policy permits such assistance to include
transportation, as follows:  "If otherwise eligible,
child care and transportation may be paid under EAF for
homeless families seeking permanent housing."  New York
Ex. 7 (New York State Public Assistance Sourcebook at X-
D-1).
       2.    Hence, the regulations provide that
"eligibility conditions imposed" on EAF recipients in a
state plan providing for EAF "may be more liberal than
those applicable" to other parts.  45 C.F.R. � 233.120
(a)(1).
       3.    It is only by relying on this coincidence
that New York is able to argue here that the total amount
of federal funds affected would not be altered by
recasting the erroneous AFDC payment as a correct EAF
payment, since "the funding streams have the same
matching rates."  New York Br. at 2.  The AFDC QC program
is nationwide, however, and its scope cannot depend on
the FFP rate that happens to apply in a particular state.
 

(..continued)