New Mexico Human Services Department, QC No. 5 (1991)

Department of Health and Human Services

Departmental Appeals Board

AFDC QUALITY CONTROL REVIEW PANEL

SUBJECT:  New Mexico Human    
Services Department
Docket No. 91-117
Decision No. QC5

DATE:  December 3, 1991

 DECISION

The New Mexico Human Services Department (State) appealed
the determination of the Acting Regional Administrator
of the Administration for Children and Families (Agency),
based on a quality control (QC) review of AFDC payments 
 1/ made by the State in December 1990, that N.S. was
overpaid $88.   2/  State QC had previously determined
that the $184 grant to N.S. was correct.  However,
federal QC found that N.S. was not eligible for the
common requirements of shelter and utilities and that
there was thus an overpayment equal to the amount
budgeted for these items.  For the reasons discussed
below, we conclude that the case was properly budgeted
for shelter and utilities.  Accordingly, we reverse the
Agency's finding of an overpayment.

Timeliness of Appeal

In its response to the appeal request, the Agency raised
the threshold issue of whether the appeal request was

timely.  The Quality Control (QC) Manual issued by the
Agency provides for appeals to the Quality Control Review
Panel and states in pertinent part:

 The request must be postmarked or telefaxed to
the QCRP [Quality Control Review Panel] by the
close of business of the 28th day following the
receipt date of the reconsideration decision
letter sustaining or modifying the Federal
finding.  With the exception of "unusual or
catastrophic occurrences," as previously
defined, requests postmarked or telefaxed
late will be rejected.

QC Manual, Appendix W, p. 7.  The Agency contended that
the appeal request should be rejected because it was
postmarked more than 28 days after the Agency telefaxed
its decision to the State.   3/

The State responded that its appeal request was timely
because it was postmarked within 28 days of the State's
receipt of the same decision through the U.S. mail.  The
decision referred to by the State makes no reference to a
prior transmission and advises the Secretary of the Human
Services Department, to whom it is addressed, that he has
28 days from receipt of the letter to file an appeal. 
The State asserted that it determined only after the
Agency raised the timeliness issue here that its Quality
Control Bureau had received a facsimile of the decision
on June 27, 1991.  According to the State, the QC staff
did not notify the Secretary's office of its receipt
because they believed that it was only a courtesy
copy.  The State also pointed out that the Agency had
historically notified states of its decisions by mailed
letter and that it was notified by mailed letter dated
June 26, 1991 that the decision in this case would be
delayed until after June 27, 1991.

We conclude that the appeal was timely filed.   4/  The
QC Manual indicates that the operative date is the
"receipt date of the reconsideration letter" but does not
specify

how the reconsideration letter is to be transmitted. 
Given this lack of specificity and the Agency's failure
to notify states that it was changing its practice of
sending official notice by mail, the State reasonably
assumed that the receipt date was the date that the
letter was received through the U.S. mail.   5/  There is
nothing on the face of the mailed letter from which the
State could have ascertained that it was not the official
letter.  Moreover, since the letter was addressed to the
Secretary, the QC staff acted reasonably in treating the
facsimile of this letter as a courtesy copy.

Permissible State Practice

The QC Manual states that "[t]he QC review is to be
conducted against 'permissible State practice' (PSP)." 
QC Manual, Appendix W, p. 1.  Permissible State practice
is defined as "state written policy instructions that are
consistent with the State plan. . . ."  QC Manual,
section 3130.  This case presents the question whether
the State followed the permissible State practice for
budgeting shelter and utility expenses set out in section
FA 422.3 of the New Mexico Income Support Division Manual
(dated December 1, 1987).  This section, entitled
"Budgeting Common Requirements," provides in pertinent
part as follows:

 When the family unit (see definitions) of which the
budget group is a part must meet the expenses for
shelter or utilities or both, the standards of need
for shelter, or utilities or both, will be included
in the budget.  The full amount of the standard is
allowed, regardless of the actual amount of the
expense.

 Normally, common requirements are budgeted when the
family unit has an expense.  In some circumstances,
however, the specified relative may not wish to be
budgeted for common requirements.  For example, a
child may live with grandparents who do not want to
charge the child rent.  In such cases the standards
will not be budgeted.  The worker must make it clear

 to the specified relative that common requirements
can be budgeted for the child(ren) and should
document in the record that the explanation has
been provided.

Appeal request, Exhibit (Ex.) 1, Attachment (Att.) 7,
pp. 1-2.

The State Manual defines the term "Family Unit" as
including, among others, "the dependent children for whom
assistance is being requested or rendered" and "the
specified relative."  Id., Att. 8.

Factual Background

N.S. lived alone with his grandmother, R.W.  In October
1989, the grandmother applied for AFDC benefits on
behalf of her grandson.  On the application form, the
grandmother listed as expenses a monthly mortgage payment
as well as several utility payments (electric, gas,
telephone, and water and sewage), specifying the monthly
amount of each payment as well as the account number for
three of the utilities.  Appeal request, Ex. 1, Att. 1,
pp. 1, 7.  An AFDC payment of $184 per month for the
grandson was authorized.  This amount consisted of $96
for the "basic requirements" of a one-person budget
group, a "shelter standard" of $56 for one person, and
a "utility standard" of $32.  Id., Att. 3, p. 21.

State QC determined that this payment amount was correct.
 The State QC review worksheet section on basic budgetary
allowances noted that the grandmother "said they have
mortgage expense AORD [as of review date] of $98 to
Suburban - & claimed also heating (gas) & elec, water
expenses AORD."  The worksheet further noted that the
mortgage expense had been verified and that the case
reviewer saw a gas bill, an electric bill, and a water
bill at the home visit.  Id., pp. 17-18.

However, federal QC determined that there was an
overpayment consisting of the $56 budgeted for the
shelter standard and the $32 budgeted for the utility
standard.  This determination was based on a statement
made by the grandmother to the federal QC reviewer that
she did not charge her grandson rent or apply any of his
AFDC check toward household costs but instead used it for
his personal needs, i.e., clothing and school supplies. 
 See appeal request, Ex. 2, p. 8.  Federal QC found that
permissible State practice, as set out in section FA
422.3 of the New Mexico Income Support Division Manual,

did not allow the standards for shelter and utilities to
be budgeted under these circumstances.

The record before us also includes documents not
referred to in either the State or federal QC findings
but on which the State relied on appeal.  One document
consists of handwritten notes, identified by the State
as "QC Field Notes," which state that the grandmother
always deposited her grandson's AFDC check into her
checking account and that she paid all bills by check.  
6/  Appeal request, Ex. 1, Att. 10.  The field notes are
corroborated by bank statements for three months (ending
4/18/91, 3/20/91, and 10/23/90) which show that a deposit
of $184 was made each month.   7/ Id., Att. 11.

Parties' Arguments

The State asserted that the Agency had misinterpreted
section FA 422.3 of the Manual.  According to the State,
this section provides that the shelter and utility
standards must generally be allowed where the family
unit, which in this case included both the grandson and
his grandmother, has a shelter and a utility expense. 
In the State's view, the only instance in which the
standards are not allowed under this provision is where
the specified relative takes the position that she does
not wish to be budgeted for the standards and maintains
that position even after being told by the eligibility
worker that the standards can be budgeted.  The State
contended that the grandmother's statement to the federal
QC reviewer that she did not charge her grandson rent or
use his AFDC check to make mortgage or utility payments
was irrelevant since she did not express a wish that the
shelter and utility standards not be budgeted.   8/

The Agency did not argue that any federal law or policy
prohibited the State from adopting a rule which allowed
common requirements such as shelter and utilities to be
budgeted regardless of whether the child was charged rent
or otherwise shared in these expenses.  However, the
Agency maintained that, while section FA 422.3 generally
allows shelter and utility expenses incurred by the
family unit to be budgeted, it contains an exception
in the case of a child living with grandparents who do
not want to charge the child rent.  The Agency relied
specifically on the part of this section which states:

 In some circumstances, however, the specified
relative may not wish to be budgeted for common
requirements.  For example, a child may live with
grandparents who do not want to charge the child
rent.  In such cases the standards will not be
budgeted.

The Agency contended that this language required the
State to determine whether grandparents are actually
charging their grandchildren rent in order to budget a
grandchild for shelter and utilities, and that the State
was precluded from budgeting these requirements here in
view of the grandmother's statement that she did not
charge her grandson rent or use his AFDC check to make
mortgage or utility payments.  Moreover, the Agency
contended that the grandmother's statement rebutted any
presumption that the AFDC funds commingled in her bank
account were used to make such payments.

Discussion

In determining whether the State followed section FA
422.3 of its Manual in budgeting the standards for
shelter and utilities in this case, we are guided by
the principle that where the law of a state reasonably
encompasses the meaning the state attributes to it, the
state's interpretation is entitled to deference.  See
New York Dept. of Social Services, Departmental Appeals
Board Decision No. 1112 (1989), p. 19, n. 17, and cases
cited therein.  For the reasons explained below, we
conclude that the State's interpretation is entitled to
deference.

The language on which the Agency relied on its face
merely gives an example of a situation in which a
specified relative might not want common requirements
budgeted: a child may live with grandparents who do not
want to charge the child rent.  This language does not
expressly state that the standards will not be budgeted
if the specified relative does not charge the child rent.
 While the State did not clearly explain what was
actually intended by this language, we conclude that
section FA 433.2 as a whole and the manner in which the
State has implemented it support the State's
construction: a budget group living in a family unit
which has shelter and utility expenses is entitled to the
shelter and utility standards whether or not the budget
group (which in this case consisted of the child) is
charged rent or otherwise contributes to payment of these
expenses.  We look first at the structure of the whole
section and then discuss how the State's implementation
of this section is consistent with the interpretation
which it advances here.

The State's general rule regarding the budgeting of the
common requirements of shelter and utilities is stated
twice in section FA 422.3.  The first sentence of the
first paragraph of the section states that "[w]hen the
family unit . . . of which the budget group is a part
must meet the expenses for shelter or utilities or both,
the standards of need for shelter, or utilities or both,
will be included in the budget."  The first sentence of
the next paragraph similarly states that "common
requirements are budgeted when the family unit has an
expense."  Neither of these statements contain any
reference to the charging of rent.  Instead, both
statements require only that the family unit incur an
expense for shelter and utilities in order for the
standard of need for these common requirements to be
budgeted.

Moreover, while an exception to the general rule is
created by the language on which the Agency relied, this
exception is itself qualified by the next sentence, which
states:

 The worker must make it clear to the specified
relative that common requirements can be
budgeted for the child(ren) and should document
in the record that the explanation has been
provided.

This sentence clearly refers to the specified relative
who indicates that he or she does not wish to be budgeted
for common requirements.  In this context, the
requirement that the caseworker explain to him/her that
common requirements can be budgeted (where the family
unit has an expense) necessarily limits the circumstances
under which his/her wish may be honored.

Thus, under the structure of the State's AFDC program, a
grant may be calculated either with or without shelter or
utility expenses.  What section FA 422.3 does is to set
up a rebuttable presumption that where a budget group is
living in a family unit which has such expenses, the
grant should be calculated to include shelter and
utilities.  The presumption recognizes that a child
living with relatives who have shelter and utility
expenses benefits from the payment for such common
requirements.

This presumption is, however, subject to an exception.  
If, for whatever reason, the specified relative with
whom the budget group lives does not want the shelter
or utility allowance, then the specified relative is
entitled to decline to have it budgeted.  Nevertheless,
the State's presumption of the budget group's entitlement
to these expenses is so strong that section FA 422.3
requires the caseworker both to explain to the specified
relative that he/she is entitled to have the standards
budgeted on the basis of the specified relatives own
shelter/utility expense and to document that the worker
has provided the explanation.

Accordingly, based on the language of section FA 422.3 as
a whole, we conclude that the State's interpretation of
this section is reasonable.  To the extent that there is
any ambiguity in the language of this section, it is
clear from the manner in which the State implemented the
section that the interpretation which the State advanced
in this appeal is the interpretation which was originally

intended and used in administering its program. 
Specifically, the application form used by the
grandmother to apply for AFDC benefits asks a number of
questions about the living arrangements and the monthly
expenses for shelter and utilities of the applicant
(here, the grandmother), but does not contain any
questions concerning whether the child shares in these
expenses.  If the budgeting of shelter and utilities
was dependent on whether the child was charged rent or
otherwise shared in these expenses, a budget step for
obtaining this information would have to be built into
the State's application process.  It is also significant
that the section on basic budgetary allowances for
shelter and utilities in the State QC worksheet does not
include any question about whether the child shared in
these expenses.  Again, if the State viewed the specified
relatives charging of rent as the determinative factor
in whether shelter and utilities should be budgeted,
there would have been some provision for checking this
fact during the State QC review.

We further find that, under section FA 422.3 as
reasonably interpreted by the State, the standards for
shelter and utilities were properly budgeted in this
case.  The presumption referred to above applies since
the grandmother not only reported expenses for shelter
and utilities but also gave the State information to
verify her mortgage payments and documented her utility
expenses.  The exception does not apply:  none of these
expenses would have been reported and documented if the
grandmother was not agreeing that they would be
budgeted.   9/  Consequently, there is no necessity for a
showing that the worker explained the grandson's
entitlement to the standards for these expenses.  Thus,
even if the grandmother did not charge her grandson rent
or apply any of his AFDC check toward these expenses,
section FA 422.3 permits these expenses to be budgeted.

Conclusion

For the reasons discussed above, we conclude that the
standards for shelter and utilities were budgeted in
accordance with permissible State practice.  Accordingly,
we reverse the Agency's finding of an overpayment in the
case of N.S.

 

                                                    
                             Sara Anderson

 

                                                    
                             Andrea M. Selzer

 

                                                    
                             Carolyn Reines-Graubard


* * * Footnotes * * *

      1.    AFDC payments are made pursuant to the Aid to
Families with Dependent Children program established by
title IV-A of the Social Security Act.
      2.    We identify the child and his grandmother by
their initials in order to protect their privacy.  The
State quality control review number is 2122.
      3.    The telefax was transmitted on June 27, 1991,
the date of the Agency's decision.  The State's appeal
request was postmarked July 29, 1991.
      4.    This confirms the Quality Control Review
Panel's initial determination, upon receipt of the appeal
request, that it was filed within the requisite 28 days.
      5.    The State provided a copy of ACF Regional
Letter No. 14, dated September 10, 1991, which specifies
that the "receipt date" referred to in the QC Manual is
the date the reconsideration decision letter is
transmitted by telefax or received by certified mail. 
However, as the State pointed out, the Regional Letter
was issued after the time period in question here.
      6.    There are two notes, the first undated and
the second dated 5/8/91 (the day after the date of the
initial federal difference determination).
      7.    For the month ended 3/20/91, there was a
deposit of $185 rather than $184.  There is a handwritten
notation on the statement indicating that the amount
should be $184.
       8.    The State argued in the alternative that the
Agency could not properly rely on the grandmother's
statement to federal QC because it was inconsistent with
other information in the record.  Specifically, the State
asserted that since the grandmother deposited the AFDC
checks into the checking account from which she paid all
her bills, it was almost certain that some of the AFDC
funds were used for mortgage and utility payments and
could not in any event be established that this was not
the case.  The State also asserted that the grandmother's
statement was inconsistent with the State QC review
notes, which state that the grandmother "said they have a
mortgage expense" and that the grandmother "claimed"
certain utility expenses.  The State further argued that
the federal QC review was "procedurally defective"
because the Agency ignored these inconsistencies in
contravention of the requirement in section 3510 of the
QC Manual that QC reviewers evaluate, resolve and
document inconsistencies in information obtained during
the review.  We do not address these arguments in view of
our conclusion that the State reasonably interpreted
section FA 422.3 as requiring that shelter and utility
expenses be budgeted in this case.
       9.    We see no basis for reading the
grandmother's statement to federal QC that she did not
charge her grandson rent or use his AFDC check for
mortgage or utility payments as tantamount to a statement
that she did not wish to be budgeted for shelter and
utilities.   However, even assuming that this was the
import of the grandmother's statement, these expenses
were properly budgeted under section FA 422.3 because the
grandmother was not given an explanation by the
eligibility worker that she was entitled to be budgeted
for these expenses.
 

(..continued)