Department of Health and Human Services
Departmental Appeals Board
AFDC QUALITY CONTROL REVIEW PANEL
SUBJECT: New Jersey Department
of Human Services
Docket No. A-95-188
Decision No. QC91
DATE: November 9, 1995
DECISION
The New Jersey Department of Human Services (New Jersey)
appealed the
July 19, 1995 quality control (QC) review
determination of the Regional
Administrator of the
Administration for Children and Families (ACF) in state
QC Review No. 962 (federal QC Review No. 262-0876). The
Regional
Administrator determined that the Aid to
Families with Dependent Children
(AFDC) assistance unit
(AU) in this sample case received a $287 overpayment
for
the review month of July 1994.
The AFDC recipient (the mother) lived with her five
children, but only
two of the children were included with
her in the AU. ACF determined
that two of the other
children should have been included in the AU and that
child support provided by their father, who did not live
in the
household, should have been considered in
calculating the AU's amount of
assistance. It was not
disputed that if the two children had been
included in
the AU, and the child support their father provided
considered in determining the amount of assistance, the
AU would have
received $287 less for the review month.
New Jersey argued that the two children were not required
to be in the AU
because their father, while not living in
the household, provided parental
support and care for
them such that they were not "deprived" under AFDC laws
and regulations. Since they were not deprived, New
Jersey
asserted, the support income received from the
father did not have to be
considered in determining the
AU's amount of assistance, and the AU received
the
correct payment for the review month.
For the reasons discussed below, we find 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.
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.
Section 402(a)(38) of the Act, the filing unit provision,
requires that
certain related persons living together be
included in the AU and their
income be considered in
determining the AU's need for
assistance. 1/ 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). Prior to DEFRA '84,
families
applying for AFDC could exclude family members
living in the household from
the AU if they had income
that would reduce the family's AFDC benefits or
make the
family ineligible for AFDC. 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 DEFRA '84
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.
Section 402(a)(38) of the Act thus 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 sets forth the definition of
"dependent
child." It provides that a dependent child is
a needy, minor child
living with a specified relative who
has been deprived of parental support
or care by reason
of the death, continued absence from the home, or
incapacity of a parent. 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). In
this case, "otherwise
eligible" refers to deprivation by reason of the
continued absence of the father.
Thus, a minor 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).
Arguments
New Jersey argued that under federal regulations and New
Jersey policy
these two children were not deprived of
parental care or support as a result
of their father's
absence because he provided them with maintenance,
physical care, and guidance. New Jersey relied on a
November 1993
statement from the father in the case
record that he provided $120 per week
in child support,
saw the children for two to three hours four to five days
a week, took them every other weekend and to activities
such as family
gatherings and shopping, and planned to
have them included in his health
insurance. Since the
children were not deprived, they were not
"otherwise
eligible" for assistance and did not have to be included
in
the AU with their mother and the other children. New
Jersey referred
to its Public Assistance Manual and a
state circular letter which discuss
deprivation based on
continued absence of a parent, and argued that it has
long been New Jersey policy that deprivation based on
continued absence
cannot be found when a parent is absent
from the home but providing
maintenance, physical care,
and guidance.
Analysis
The issue of whether the child of an absent parent can be
excluded from
the AU based on the parent's provision of
maintenance, physical care, and
guidance was previously
discussed in Virginia Dept. of Social Services, DAB
QC71
(1994) and Virginia Dept. of Social Services, Decision on
Reconsideration, DAB QC75-R (1994). We observed there
that the
express purpose of the filing unit provision was
to end the practice whereby
families could exclude
children with income from the family filing unit in
order
to maximize family benefits. DAB No. QC71, at 8; see
also
Comm. Print 1984; Gilliard, 483 U.S. at 593-4.
Given this clear purpose, a decision to remove a child of
an absent
parent from an AU (and thus increase the AU's
benefits) should be supported
by evidence and made
pursuant to a state policy containing criteria for
determining if the absent parent is providing
maintenance, physical
care, and guidance for the child.
Section 406(a)(1),(2) of the Act; 45
C.F.R.
§ 233.90(c)(1)(iii). Accordingly, section 3540 of the
AFDC
QC Manual (QCM) provides that the review of
continued absence for the
purposes of establishing
deprivation consists only of verifying that the
absent
parent does not live in the household with the child,
unless the
state's permissible state practice (PSP) is
more explicit than the
regulations. 2/
New Jersey's PSP is not more specific than the
regulations. The
materials New Jersey provided are aimed
primarily at determining whether a
parent is continually
absent from the home and provide no specific criteria
for
determining whether the absent parent should be found to
be
providing maintenance, physical care, and guidance so
that the child is not
deprived. Public Assistance Manual
§ 10:81-2.7(d). The New
Jersey manual merely repeats the
language contained in 45 C.F.R. §
233.90(c)(1)(iii). It
states only that if the parent is not residing
with the
AU:
"evidence must exist of the parent's provision
of three parental
functions: maintenance,
physical care, and guidance to the child(ren).
Unless all three parental functions are
present, the 'absent'
parent shall be
considered continually absent."
Id. Since New Jersey's policy was not more specific than
the
federal regulations and contained no criteria for
gauging the provision of
the three parental functions by
the absent parent, New Jersey was bound to
follow the QCM
procedures. Under these circumstances, the QCM provides
that deprivation exists where the parent does not
continuously reside in
the household. 3/ We do not
concur with New Jersey that
the QCM here is impermissably
establishing policy. Rather, the QCM is
consistent with
the purpose of the filing unit provision and with its
apparent intent that coresident siblings be included in
the AU, unless
they are not dependent children as defined
by section 406(a) of the
Act. Therefore, the QCM
appropriately requires a state to establish
criteria
pursuant to which a determination can be made, on a
uniform
basis, as to whether an absent parent should be
considered to be providing
maintenance, physical care,
and guidance.
In the absence of specific criteria, there was no basis
for determining
whether the evidence in the record,
consisting only of the father's
statement, justified
removing the child from the AU. This statement
indicated
that the father had regular contact with his children and
provided them $120 a week. New Jersey's Public
Assistance Manual
and the PSP provided no means to
determine that this particular level of
support and
contact amounted to the provision of maintenance,
physical
care, and guidance, such that removing the
children from the AU would not be
contrary to the intent
of the filing unit provision. 4/
Moreover, the record
does not establish that the information in the
statement
was verified by the local AFDC agency. There was no
indication, for example, that New Jersey conducted the
sort of
investigation that its Public Assistance Manual
requires to verify that a
parent does not live in the
home in cases of deprivation based on continued
absence.
The circular letter that New Jersey provided states that
evidence supporting a determination that the absent
parent is providing
all three parental functions "should,
of course, be fully documented in the
case record."
Attachment to Circular Letter No. 83-8-3. It does
not
appear that New Jersey complied with this requirement.
New Jersey stated that it has sought but not received
policy guidance
from ACF on the issue of deprivation due
to parental absence. New
Jersey stated that, for
example, it was told that there was no written
policy on
whether cash support from an absent parent constitutes
physical care and guidance and that such determinations
had to be made
on a case-by-case basis. However, the QC
review process provides no
remedy for lack of clear
policy guidance. Moreover, New Jersey could
have
addressed this deficiency by developing specific
standards in its
PSP.
Conclusion
For the reasons discussed above, we sustain ACF's
determination that the
assistance unit received an
overpayment of $287 for the review month.
Sara Anderson
Leslie A. Sussan
Jeffrey A. Sacks
* * * Footnotes * * *
1. 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) (1994).
2. Each state is required to operate its AFDC QC
system in
accordance with the policies and procedures
prescribed by ACF in the QCM. 45
C.F.R. § 205.40(d)(1).
3. By
contrast, the New Jersey manual contains
specific instructions for
determining if a parent is
actually physically absent from the home.
The local
agency is required to commence a comprehensive
investigation
of the family situation if information is
received that an absent parent is
living with the family
and provides specific evidentiary requirements,
including
checking with appropriate authorities, observing the
family at
home, conducting interviews, and following up
all leads.
Id.
4. We note that
regardless of the absence of
specific criteria, the child support that the
father
provided would not, by itself, justify removing the
children from
their mother's AU. As we discussed in
Virginia, 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, cited in DAB No. QC71, at
10-11. 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. Gorrie,
809 F.2d 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.