Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
IN THE MATTER OF THE DISAPPROVAL
PLAN AMENDMENTS,
TRANSMITTAL
Docket Nos. 91-114 OF OHIO'S AFDC 91-125 NOS. 90-9, 91-1
Decision No. 1451
RECOMMENDED FINDINGS AND PROPOSED DECISION
The Ohio Department of Human Services (Ohio) requested reconsideration
of decisions by the Regional Administrator of the Administration for
Children and Families (ACF) disapproving two proposed amendments to
Ohio's plan for implementing the Aid to Families with Dependent Children
(AFDC) program under Title IV-A of the Social Security Act (Act).
The AFDC program includes a program of aid for needy children deprived
of parental support due to the unemployment of a parent who had been the
principal wage earner (the AFDC-unemployed parent, or AFDC-UP program).
A parent may qualify as the principal wage earner either through
quarters of earned income or by quarters of participation in specific
work and training programs established under Title IV. According to
ACF's longstanding interpretation, since the work and training programs
in question were specifically intended for AFDC recipients, only AFDC
recipients may earn quarters of credit from these programs for the
AFDC-UP work history requirement.
With its two plan amendments, Ohio proposed to allow recipients of
State-funded General Assistance (GA) or Food Stamps to meet the AFDC-UP
work history requirement by their participation in work and training
programs designed to serve GA or Food Stamp recipients as well as AFDC
recipients. Although the substantive content of the work and training
program components for GA and Food Stamp recipients was identical to the
components for AFDC recipients, the population groups served by the
components differed, as did the source of funding, the legal
authorization, and the program oversight or control. ACF disapproved
the two plan amendments on the ground that the amendments were contrary
to applicable statutory and regulatory language, the legislative history
and a federal court decision.
Pursuant to 45 C.F.R. . 213.21, the Assistant Secretary for Children and
Families designated me as Presiding Officer for the purpose of providing
Ohio with a hearing, making recommended findings, and rendering a
proposed decision. The Assistant Secretary will issue the final
decision in this matter after her review of my proposed decision. 45
C.F.R. . 213.32(b).
ACF and Ohio agreed that there were no disputed issues of fact involved
in the requests for reconsideration, and that an in-person evidentiary
hearing was therefore not necessary. Accordingly, the parties requested
that the appeal be decided based on their joint stipulations of fact and
their written submissions on the legal issues, consisting of Ohio's
brief, ACF's brief, and Ohio's reply brief. A notice of the request for
reconsideration setting forth the issues and stating that an evidentiary
hearing would not be held was published in the Federal Register on
August 11, 1993. 58 Fed. Reg. 42,734. Pursuant to that notice, Ohio
State Legal Services Association (OSLSA) requested and was granted
permission to participate as an amicus curiae. OSLSA submitted an
amicus brief dated September 28, 1993 and ACF provided a reply to
OSLSA's brief.
Pursuant to 45 C.F.R. . 213.32, and based on the joint stipulations of
fact and my conclusions of law, I propose that the plan amendments be
disapproved. I conclude that ACF's longstanding interpretation that
only AFDC recipients may earn quarters of credit from the work and
training programs in question is consistent with the statutory and
regulatory language, the legislative history and the federal court
decision that has considered the issue. I also conclude that the
interpretation furthers a primary purpose behind the work history
requirement, which is to limit initial entry to the AFDC-UP program to
unemployed persons with a significant, prior connection to the work
force. Finally, I conclude that other constitutional and statutory
construction arguments raised by Ohio and OSLSA lack merit.
Statutory background
Title IV-A of the Social Security Act establishes a program of aid for
needy dependent children and the parents or relatives with whom they are
living. 1/ A "dependent child" is defined as a needy child who has
been
deprived of parental support by reason of the death, continued absence,
or incapacity of a parent. Section 406(a) of the Act. Federal payments
are available to states for the costs of AFDC programs operated pursuant
to an approved state plan which meets applicable federal requirements.
Sections 401, 402 of the Act.
The AFDC-UP program, at section 407 of the Act, is an exception to the
general AFDC requirement that parental deprivation be based on absence,
death, or incapacity. Under AFDC-UP, a child may also be considered to
be deprived of parental support, even though both parents are present in
the home, as a result of a parent's unemployment. When first enacted in
1961, the AFDC-UP program required only that deprivation of parental
support be caused by reason of the unemployment of a parent, as defined
by the state. However, when the AFDC-UP program was extended in 1968,
section 407 was revised to require that the unemployed parent (limited
at that time to the father) have six or more quarters of work in any
13-calendar-quarter period ending within one year prior to the
application for aid. A "quarter of work" was defined as including
(in
addition to the receipt of earned income) participation in one of the
work and training programs established under Title IV of the Act. Pub.
L. No. 90-248, . 203(a), 81 Stat. 821 (1968), reprinted in 1967
U.S.C.C.A.N. 923, 1000-1001.
The work and training programs at that time consisted of community work
and training programs established under section 409 of the Act (as well
as any other work and training programs subject to the limitations in
section 409), and the work incentive (WIN) program established under
Part C of Title IV. The WIN program was established in 1968 as a means
of providing employment experience to appropriate AFDC recipients. Pub.
L. No. 90-248, . 204, 81 Stat. 821 (1968), reprinted in 1967
U.S.C.C.A.N. 923, 1002-12. The community work and training programs
under section 409 had been in place since 1962 and were designed to
provide training and work skills to AFDC recipients. Pub. L. No.
87-543, . 105(a), 76 Stat. 172 (1962), reprinted in 1962 U.S.C.C.A.N.
215, 232-35. Section 409 was amended in 1981 to permit states to
require AFDC recipients to participate in these community work and
training programs, which were then referred to as community work
experience programs (CWEP). Pub. L. No. 97-35, . 2307, (1981) reprinted
in 1981 U.S.C.C.A.N. (95 Stat.) 357, 846.
CWEP and WIN were reflected in the specific definition of "quarter of
work" for the purpose of the AFDC-UP program at former section 407(d) of
the Act: 2/
For purposes of this section--
(1) the term "quarter of work" with respect to any individual
means a calendar quarter in which such individual received
earned income of not less that $50 . . . or in which such
individual participated in a community work experience program
under section 409, or the work incentive program established
under part C.
Section 407(d)(1)'s definition of "quarter of work" was implemented
at
45 C.F.R. . 233.100(a)(3)(iv). The regulation defines "quarter of work"
as "a period (of 3 consecutive calendar months ending on March 31, June
30, September 30, or December 31)" in which the parent "received earned
income of not less that $50 . . . or in which he or she participated in
a community work experience program under section 409 of the Act or the
work incentive program established under title IV-C of the Act."
The Family Support Act of 1988, Public Law No. 100-485, repealed WIN
effective October 1, 1990, and created a new comprehensive work and
training program, the Job Opportunities and Basic Skills Training (JOBS)
Program, at Part F of Title IV, section 481 of the Act et seq. The
purpose of JOBS is "to assure that needy families with children obtain
the education, training, and employment that will help them avoid
long-term welfare dependence." Section 481 of the Act. The Family
Support Act also incorporated CWEP as a component of JOBS, at section
482(f) of the Act, and revised the definition of."quarter of work"
at
section 407(d). In relevant portion, section 407(d)(1) currently reads
as follows:
For purposes of this section--
(1) the term "quarter of work" with respect to any individual
means (A) a calendar quarter in which such individual received
earned income of not less than $50 . . . or in which such
individual participated in a program under part F, (B) at the
option of the State, a calendar quarter in which such individual
attended, full-time, an elementary school, a secondary school,
or a vocational or technical training course (approved by the
Secretary) that is designed to prepare the individual for
gainful employment, or in which such individual participated in
an education or training program established under the Job
Training Partnership Act, and (C) a calendar quarter ending
before October 1990 in which such individual participated in a
community work experience program under section 409 (as in
effect for a State immediately before the effective date for
that State of the amendments made by title II of the Family
Support Act of 1988) or the work incentive program established
under part C (as in effect for a State immediately before such
effective date) . . . .
Ohio's work and training programs, and the proposed plan amendments
Prior to the creation of the JOBS program by the Family Support Act,
Ohio operated CWEP and WIN programs as components of what it called its
Fair Work program. The Fair Work program was operated from July 1983
through June 1989, after which Ohio began operating its JOBS program.
Stipulation of Parties (Stipulation) No. 4. Ohio's WIN program ceased
with the advent of JOBS. Stipulation Nos. 3, 5.
At times here pertinent, Ohio required certain employable recipients of
State-funded General Assistance (GA) to participate in the Fair Work
program and in JOBS. Currently, JOBS participation by GA recipients is
optional in Ohio. Ohio has also required certain employable recipients
of Food Stamps to participate in the Fair Work program and JOBS since
1987. Stipulation Nos. 7, 9. The parties agreed that participation by
GA recipients is not required by federal law, is not federally funded,
and is not subject to federal oversight and control. Stipulation No. 8.
The parties also agreed that participation in Ohio's JOBS and Fair Work
programs by Food Stamp recipients is not required or funded by the AFDC
program, and is not subject to federal oversight or control under the
AFDC program. Stipulation No. 10.
In October 1984, Ohio proposed to amend its AFDC State plan to permit
recipients of General Relief (presumably a form of GA) who were not
recipients of AFDC, to participate in CWEP under Title IV, and to count
such participation towards meeting the AFDC-UP work history requirement.
Transmittal No. 84-24, ACF Exhibit (Ex.) 2. In a decision to Ohio of
October 1985, the Associate Commissioner, Office of Family Assistance,
disapproved the proposed amendment, on the basis that CWEP, as
established under (former) section 409, provided work experience and
training only to AFDC recipients. Since General Relief recipients were
not receiving AFDC, the decision stated, they were not eligible to
participate in CWEP under section 409, and their participation in any
work program, even if called CWEP, could not be counted as quarters of
work. ACF Ex. 2. The decision reflected advice previously provided to
the Acting Regional Administrator in a memorandum dated March 12, 1985.
ACF Ex. 1. Ohio did not request reconsideration of that decision.
Ohio submitted the first of the two proposed plan amendments at issue
here, amendment 90-9, to the ACF Regional Administrator with transmittal
90-9 dated March 21, 1990. 3/ The amendment, with a proposed effective
date of April 1, 1990, provided:
In addition to the criteria for establishing the work history
requirement for ADCU as set forth in 45 CFR 233.100(a)(3)(iv), all
previous Community Work Experience Participation (CWEP) by General
Assistance recipients will satisfy the ADCU prior work experience
requirement. 4/
Ohio Ex. A.
ACF denied approval of proposed plan amendment 90-9 in a letter dated
June 24, 1990. ACF Ex. 3. 5/
Ohio subsequently submitted plan amendment 91-1 to ACF with transmittal
91-1 dated February 11, 1991 and a proposed effective date of January 1,
1991. The proposed amendment stated:
After October 1990, a quarter of work with respect to any
individual means a calendar quarter in which such individual
participated in the same activities as a participant in a program
under Section 402(a)(19) and under Part F, and before October 1990,
a quarter of work with respect to any individual means a calendar
quarter in which such individual participated in the same
activities as a participant in a community work experience program
(CWEP) under former Section 409 or the work incentive program (WIN)
established under former Part C.
Ohio Ex. A. 6/
ACF denied approval of proposed plan amendment 91-1 in a letter dated
May 3, 1991. ACF Ex. 4.
The effect of both amendments, taken together, is to allow recipients of
State-funded GA or Food Stamps, who are not recipients of AFDC, to earn
quarters of work towards meeting the AFDC-UP work history requirement by
participating in work and training program activities identical to those
that AFDC recipients participate in under Title IV of the Act; that is,
activities the same as CWEP and WIN prior to October 1, 1990, and JOBS
thereafter. 7/
The parties agreed that: (1) the CWEP component of Ohio's Fair Work
program and JOBS in which Ohio's GA and Food Stamp recipients
participate meets all federal requirements for such program, and is
substantively identical to CWEP and JOBS in which AFDC recipients
participate; (2) Ohio has chosen to make the substantive content of the
Fair Work program and JOBS in which AFDC, GA and Food Stamp recipients
participate identical; and, (3) the Secretary of Health and Human
Services (HHS) has no oversight over, and thus has not approved, the
Fair Work program and JOBS insofar as Ohio has chosen to apply these
work programs to any persons other than AFDC recipients. Stipulation
Nos. 11-13.
In denying the proposed plan amendments, ACF stated that CWEP, WIN, and
JOBS, as established under Title IV, were for recipients of AFDC. Since
neither the GA nor Food Stamp recipients in question were recipients of
AFDC, they were not eligible to participate in those programs, and thus
their participation in Ohio's work programs, even if called by the same
names as the AFDC work and training programs, could not could serve as
quarters of work for the purpose of meeting the AFDC-UP work history
requirement.
The issue raised by ACF's disapproval of the two plan amendments, as
identified in the Notice of Appeal, is whether participation by GA or
Food Stamp recipients, who are not recipients of AFDC, in the same
activities as JOBS (or in CWEP or WIN prior to October, 1990) may be
counted as quarters of work for the purpose of meeting the AFDC-UP work
history requirements. See 58 Fed. Reg. 42,735 (1993).
Ohio's arguments
Ohio argued that the language and the legislative history of laws
governing AFDC-UP and the AFDC work and training programs demonstrate
that CWEP, WIN, and JOBS were not intended to be restricted to AFDC
recipients only, and that its GA and Food Stamp recipients could thus
earn quarters of work by participating in them.
Ohio noted that the definition of "quarter of work" at section 407(d)(1)
of the Act has included participation in a CWEP program "under section
409" and WIN "under Part C" prior to October 1, 1990, or a JOBS
program
"under Part F" thereafter, and does not limit these programs to AFDC
recipients only. Ohio asserted that the programs its GA and Food Stamp
recipients participate in are CWEP and JOBS programs "under" section
409
and Part F because they are substantively identical to the ones operated
for AFDC recipients and meet all federal standards for JOBS and CWEP
programs. Therefore, Ohio argued, its GA and Food Stamp recipients
should be able to earn quarters of work and become eligible for AFDC-UP
by participating in them. Ohio further argued that it was permitted to
operate its CWEP program for GA and Food Stamp recipients by former
section 409(a)(3) of the Act, which provided that "(n)othing in this
part" shall be construed to prevent a state from operating a CWEP
program on its own terms and conditions "whether or not" consistent
with
section 402(a)(19) or Part C of Title IV.
Ohio further asserted that ACF, by refusing to let non-AFDC recipients
establish eligibility through participation in the same activities as
JOBS, CWEP, and WIN, was wrongfully requiring that AFDC-UP recipients
have a prior connection with the work force. Ohio argued that ACF was
thus reimposing a former requirement of the AFDC-UP program that
Congress specifically rejected when it amended the program in 1981.
Ohio also raised a constitutional argument against disapproval of the
plan amendments, and argued that ACF's position conflicted with a
statutory requirement that work and training programs for public
assistance recipients be coordinated.
In its amicus brief supporting Ohio's plan amendments, OSLSA argued that
Congress, by establishing a CWEP program for Food Stamp recipients and
requiring that it be coordinated in various ways with AFDC CWEP,
recognized that the two programs were inseparably linked. Thus, in
Ohio, where the two programs are the same, OSLSA asserted, participation
in the Food Stamp CWEP program should qualify as participation in CWEP
under Title IV for the purpose of meeting the work history requirement
at section 407(d)(1)(A) and (C) of the Act.
Analysis
Summary of my conclusions
I conclude that ACF's longstanding interpretation of section 407(d) of
the Act that only AFDC recipients may earn credit from the work and
training programs specified therein is fully consistent with the statute
and the regulations as well as the legislative history of the relevant
provisions. Specifically, I conclude as follows:
o The language of the Act and regulations relating to JOBS, CWEP,
and WIN demonstrate that these work and training programs were
specifically intended for recipients of AFDC. Since these programs were
intended for AFDC recipients, ACF properly interpreted section 407(d) of
the Act to permit only AFDC recipients to earn quarters of work by
participating in them. This longstanding interpretation is also
supported by the legislative history of the Title IV work and training
programs and has been upheld in federal district court.
o The legislative history of the AFDC-UP program establishes that
Congress, when it first imposed the quarters of work requirement, and
permitted participation in a work and training program to count as a
quarter of work, clearly intended that AFDC-UP be limited to those
unemployed persons who had a prior, significant connection with the work
force. Ohio's proposed plan amendments contravene this intent by
permitting GA recipients, who do not have this prior connection with the
work force, to become eligible for AFDC-UP by participating in the State
work and training programs. There has been no showing that Congress
ever removed the requirement of a prior connection with the work force,
as Ohio asserted.
Below, I provide a more detailed analysis of the two preceding points
and then go on to address the other specific arguments raised by Ohio
and OSLSA in their briefs.
1. The statutory and regulatory language shows that JOBS, CWEP, and
WIN were designed for AFDC recipients.
After a careful scrutiny of the statutory language establishing the work
and training programs in question, JOBS, CWEP, and WIN, I conclude that
the language both preceding and following the 1988 Family Support Act
supports the conclusion that these programs were designed specifically
for AFDC recipients. Consequently, I conclude that ACF properly
interpreted references to JOBS, CWEP, and WIN in the AFDC-UP work
history requirement as enabling only AFDC recipients to qualify for
AFDC-UP by participating in them.
A. Statutory language and regulations prior to the 1988 Family
Support Act
Prior to the 1988 amendments, the key term "quarter of work" was
defined
in section 407(d)(1) as:
. . . a calendar quarter in which such individual received earned
income of not less than $50 (or which is a quarter of coverage as
defined in section 213(a)(2)), or in which such individual
participated in a community work experience program under section
409, or the work incentive program established under part
C;
I conclude, as did ACF, that the critical provisions cited in section
407(d) that establish CWEP and WIN clearly demonstrate that these
programs were intended for AFDC recipients and not recipients of
state-funded assistance or other welfare benefits. The wording of these
provisions demonstrates that participation in CWEP and WIN by non-AFDC
recipients, such as Ohio's GA and Food Stamp recipients, was not
anticipated or addressed as a component of the AFDC program. Even if
non-AFDC recipients engage in the same activities, these activities are
not part of a program "under" section 409 of the Act or "under"
Part C
of Title IV.
The following provisions in particular support my conclusion:
o The Public Welfare Amendments of 1962, which established the
original community work and training programs at former section 409 of
the Act, described its purpose as assisting states in encouraging the
conservation and development of work skills for individuals receiving
AFDC. Pub. L. No. 87-543, . 105(a), 76 Stat. 172 (1962), reprinted
in 1962 U.S.C.C.A.N. 215, 232.
o After these community work and training programs were replaced
by CWEP, former section 409(b)(1) of the Act required participation in
CWEP of each "recipient of aid" who was registered under section
402(a)(19), and former section 409(b)(2) permitted states to refer to
CWEP anyone who would have been required to register under section
402(a)(19) but for a stated exception. Pub. L. No. 97-35, .
2307(a) (1981), reprinted in 1981 U.S.C.C.A.N. (95 Stat.) 357, 847.
Former section 402(a)(19) required registration for various training and
employment-related activities as a condition of eligibility for aid
under Title IV-A. The recipients of aid referenced are recipients of
AFDC. Similarly, the only persons who would be "required" to register
were recipients of AFDC.
o Former section 409(a)(1)(E) of the Act set the maximum number of
hours in a CWEP program "established under this section" as "the
amount
of aid [i.e., AFDC] payable with respect to the family of which such
individual is a member," divided by the applicable minimum wage. Unless
the participant was an AFDC recipient, there would be no way to
determine the number of hours that he or she would be required to
participate in CWEP.
o Former section 409(c) provided sanctions for those who failed to
participate in CWEP (or in WIN, pursuant to former section 402(a)(19)(F)
of the Act) in the form of reduced AFDC benefits. Obviously, these
sanctions would be meaningless for persons who are not recipients of
AFDC.
o Former section 430, which established the WIN program, stated
that individuals receiving AFDC would be furnished incentives,
opportunities, and necessary services for them to receive appropriate
employment training. Similarly, former section 432(a) required the
Secretary of Labor to establish WIN programs in each state with a
significant number of AFDC recipients.
In addition to these statutory provisions, the CWEP regulation stated
that the purpose of CWEP was to provide work experience "for AFDC
recipients." 45 C.F.R. . 238.01.
The legislative history pertaining to the establishment of CWEP further
supports my conclusion. The history of the Public Welfare Amendments of
1962, which established the original community work and training
programs, noted that while these programs would be used primarily for
unemployed fathers of children receiving AFDC, states could also make
the program available to mothers eligible under other provisions, such
as the death or absence from the home of a parent. S. Rep. No. 1589,
87th Cong., 2d Sess. 12 (1962), reprinted in 1962 U.S.C.C.A.N. 1954.
Thus, the population expected to participate in the work and training
programs was comprised entirely of AFDC recipients.
The history of the Social Security Amendments of 1967 described a
"community work and training program for all appropriate adults and
older children receiving AFDC . . . ." H.R. Conf. Rep. No. 1030,
90th Cong., 1st. Sess. 58 (1967), reprinted in 1967 U.S.C.C.A.N. 3204.
Similarly, the history of Public Law No. 97-35 states that it would
authorize states to establish community work experience programs "for
AFDC recipients." S. Rep. No. 139, 97th Cong., 1st Sess. 437 (1981),
reprinted in 1981 U.S.C.C.A.N. 703.
Moreover, the only court that has addressed the issue raised by this
appeal fully upheld ACF's position. Ellsworth v. Babcock, No.
87-CV-40339-FL (E.D. Mich. 1991). 8/ The Ellsworth decision, a class
action suit involving the state of Michigan, concerned the statutory
language and regulations prior to the 1988 Family Support Act. The
court concluded that the under federal law, and as shown by the
legislative history cited by HHS, the CWEP program under section 409 was
a program for recipients of AFDC, and not for recipients of Michigan's
State-funded General Assistance, and that only AFDC recipients could
earn AFDC-UP quarters of work by participating in CWEP. Conversely, the
court held that Michigan's GA recipients, even if they worked in the
CWEP program in the same manner as AFDC recipients, could not become
eligible to earn quarters of work. Ellsworth at 4-5, ACF Ex. 5.
B. Family Support Act amendments
With the enactment of the Family Support Act of 1988, section 407(d) of
the Act was amended to reflect the creation of the new JOBS program and
to expressly recognize that participation in that program enables a
parent to earn quarters of work for purposes of the AFDC-UP work history
requirement. (The current section 407(d)(1) is quoted in the statutory
background section.) However, the Family Support Act of 1988 did not
call for any change in the Secretary's basic policy regarding who may
earn quarters of work from participating in the work and training
programs authorized by Title IV. All relevant provisions relating to
the JOBS program expressly support the conclusion that it was intended
for AFDC recipients.
Thus, section 402(a)(19)(B) specifies that those persons who are
required to participate in JOBS are all "recipients of aid to families
with dependent children . . . ." The JOBS provisions at Part F
similarly state:
(1) The State agency must ensure that all applicants for and
recipients of aid to families with dependent children are
encouraged, assisted, and required to fulfill their
responsibilities to support their children by preparing for,
accepting, and retaining such employment as they are capable of
performing.
Section 482(c)(1) of the Act.
This language, as does section 402(a)(19)(B), makes explicit that only
persons applying for AFDC benefits, or already receiving AFDC benefits,
were intended to participate in the JOBS program. Persons receiving GA
or other welfare benefits and who are concededly not eligible for AFDC
in any form are nowhere mentioned as intended participants in JOBS.
I further note that the legislative history of the Family Support Act
describes the goal of JOBS under Title IV as assisting "long term or
potential long-term recipients" of AFDC to achieve self-sufficiency.
H.R. Conf. Rep. No. 998, 100th Cong., 2d Sess. 147 (1988), reprinted in
1988 U.S.C.C.A.N. 2935. Thus, under section 403(l)(2) of the Act,
federal funding will be reduced where 55 percent or more of JOBS
expenditures are not spent on persons receiving or expected to receive
AFDC for a significant period. Given this statutory emphasis, it makes
no sense to believe that Congress intended persons who are in no way
eligible to receive AFDC to participate in JOBS.
That JOBS is intended for AFDC recipients is also apparent from numerous
other statutory provisions. For example:
o Section 482(e) of the Act authorizes states, as part of JOBS, to
institute work supplementation programs. To fund such a program, the
state may reserve sums that would otherwise be payable as AFDC to the
participants in the program, and use the sums to provide and subsidize
jobs.
o CWEP, as a JOBS component under section 482(f) of the Act,
continues to provide that the maximum number of hours an individual may
be required to work shall be equal to the amount of AFDC payable to the
family divided by the applicable minimum wage. Section 482(f)(1)(B)(i)
of the Act. This provision, and the foregoing one describing the
amounts payable under the work supplementation component of JOBS,
clearly indicate that persons participating in JOBS are AFDC recipients.
Indeed, this crucial statutory language makes no sense when applied to
any other persons.
o Similarly, section 402(a)(19)(G) establishes sanctions for
wrongful refusal to participate in JOBS in the form of reduced AFDC
benefits.
o The scope of JOBS is additionally clear from the state
evaluation provisions in section 486 of the Act. That section
authorizes states to carry out an evaluation of the demographic
characteristics of "potential participants in the program under [part
F]" in order "to furnish an accurate picture on which to base estimates
of future demands for services" and to assure "that training for
recipients of aid under such program will be realistically geared to
labor market demands . . . ." Sections 486(a)(1), (2) of the
Act. "Potential participants" are in turn expressly defined to be
AFDC
recipients. Section 486(e) of the Act.
The Department's regulations also make clear that the work and training
programs under JOBS are for AFDC recipients. Thus, 45 C.F.R. .
250.30(a) describes persons required to participate in JOBS as
"recipients of AFDC" who are not otherwise exempted from participation.
The companion regulation for voluntary participation, at 45 C.F.R. .
250.31, describes "volunteers" for JOBS as being "applicants
for and
recipients of AFDC" who are otherwise exempted from mandatory
participation under 45 C.F.R. . 250.30.
The history of the Family Support Act of 1988 further confirms what is
already explicit in the language of the amendments, that it "will
establish a new employment, education and training program for
recipients of Aid to Families with Dependent Children (AFDC)." H.R.
Conf. Rep. No. 998, 100th Cong., 2d Sess. 108 (1988), reprinted in 1988
U.S.C.C.A.N. 2896.
2. Congress intended that initial entry into AFDC-UP be restricted
to unemployed persons with a prior connection with the work force.
ACF and Ohio referred extensively to the legislative history of the
AFDC-UP program and the AFDC work and training programs in support of
their positions. Both parties agreed, however, that when Congress added
the work history requirement to the AFDC-UP program as part of the
Social Security Amendments of 1967, it intended that the unemployed
parent (limited at that time to the father) have a significant, prior
connection with the work force in order to qualify for AFDC-UP. ACF Br.
at 9; Ohio Br. at 3, Ohio Reply Br. at 4.
Prior to the Social Security Amendments of 1967, section 407 of the Act
required only that deprivation of parental support be caused "by reason
of the unemployment (as defined by the State) of a parent . . . ." Pub.
L. No. 87-31, 75 Stat. 75 (1961), reprinted in 1961 U.S.C.C.A.N. 84.
Section 407 contained no requirement that the unemployed parent have a
prior connection with the work force. The Social Security Amendments of
1967, Public Law No. 90-248, revised section 407 to require that the
unemployed parent have six or more quarters of work in any
13-calendar-quarter period ending within one year prior to the
application for aid. Public Law No. 90-248 also created a definition of
"quarter of work" that is similar to that which remains in effect
today:
a quarter in which the parent had earned income of not less than $50, or
participated in a community work and training program under section 409;
in any other work and training program subject to the limitations in
section 409; or in the work incentive program established under Part C.
Pub. L. No. 90-248, . 203(a), 81 Stat. 821 (1968), reprinted in 1967
U.S.C.C.A.N. 923, 1000-1001. The report of the House Committee on Ways
and Means explained this change as follows:
Under the bill, Federal matching would be available only for the
children of unemployed fathers and the definition of unemployment
would be made by the Federal Government. In addition, the fathers
under these programs would be required to have had a substantial
connection with the work force. That is, they must have either
exhausted their unemployment compensation rights or have had a year
and a half of work during a 3-year period ending in the year before
assistance is granted. . . . In addition, each father would have
to be enrolled in a work and training program within 30 days after
coming on the assistance rolls.
H.R. Report No. 544, 90th Cong., 1st Sess. 17 (1967).
Moreover, it is the intent of your committee to exclude from the
program those fathers who have not been in the labor force, or
whose attachment to the labor force has been casual.
Id. at 108.
When the foregoing legislative history referred to the requirement for
AFDC-UP eligibility of a "substantial connection to the work force"
it
apparently referred to the requirement for quarters of earned income,
since participation in the work and training programs was then (and is
now) expressly available only to individuals who were already AFDC
recipients. 9/
Ohio contended that Congress removed the requirement that the unemployed
parent have a prior, significant connection with the work force when it
amended the definition of "dependent child" in 1981. Ohio argued that
ACF's denial of its proposed plan amendments thus contravened
Congressional intent by improperly reimposing the prior connection
requirement. In support of its contention, Ohio noted only that the
1981 amendment "makes no reference to the 1967 requirement of a
significant, prior connection with the work force." Ohio Br. at 14-15
(emphasis in original).
The mere absence in the amendment of a reference to the requirement of a
prior connection with the work force, however, does not demonstrate that
Congress intended that this requirement be eliminated. Rather, it
appears that the focus of the 1981 amendment was on replacing references
to "father" in section 407 with gender-neutral terms such as "principal
wage earner" and "parent." Pub. L. No. 97-35, . 2313 (1981),
reprinted
in 1981 U.S.C.C.A.N. (95 Stat.) 357, 853-54. This change followed the
Supreme Court's decision in Califano v. Westcott, 443 U.S. 76 (1979),
striking down the restriction of AFDC-UP to unemployed fathers only.
The House Committee on the Budget noted that the Westcott decision had
held the fathers-only restriction to be discriminatory, and that since
that decision either parent had been permitted to qualify as the
unemployed wage earner. H.R. Rep. No. 158, 97th Cong., 1st Sess., Vol.
III at 297 (1981). Ohio did not cite any statement in the language or
the history of Public Law No. 97-35, or of any other amendment to the
AFDC-UP program, showing intent by Congress to remove the requirement
that AFDC-UP recipients have a prior connection with the work force.
More significantly, the 1981 amendment made no substantive changes to
the AFDC-UP work history requirement (six or more quarters of work in
any 13-calendar-quarter period ending within one year prior to
application for aid) or to the definition of quarter of work imposed in
1967, when Congress clearly envisioned that recipients would have a
significant, prior connection with the work force. These two provisions
have remained substantively unchanged since that time. 10/
Ohio also argued that restricting entry into AFDC-UP to those with
quarters of earned income conflicts with the intent of the Family
Support Act amendments, cited by both parties, of assisting long term or
potential long term recipients of AFDC. H.R. Conf. Rep. No. 998, 100th
Cong., 2d Sess. 146 (1988), reprinted in 1988 U.S.C.C.A.N. 2934.
However, Ohio did not demonstrate that any such conflict exists. For
one thing, the JOBS goal of assisting long-term recipients of AFDC was
directed at recipients of all forms of AFDC, not just AFDC-UP. Those
AFDC recipients who do not receive AFDC-UP have no need to meet the
AFDC-UP work history requirement through quarters of earned income,
since parental deprivation is for them based on the death, absence, or
incapacity of a parent, and not on the unemployment of the parent who is
the principal wage earner. Section 406(a) of the Act. Limiting entry
into AFDC-UP to those with a prior connection with the work force
consequently does no harm to these long-term AFDC recipients and does
not prevent them from registering for and participating in JOBS
activities which will presumably enable them to secure employment and
leave the AFDC rolls. As for AFDC-UP recipients, they are required to
participate in JOBS which will hopefully enable them to re-enter the
work force.
In conclusion, when Congress enacted the AFDC-UP program, it intended
the program to be restricted to persons with a significant, prior
connection to the work force. Ohio's plan amendments would open the
program to persons who lacked this significant, prior connection.
Ohio's plan amendments would ultimately have the effect of shifting
financial responsibility for a portion of Ohio's population of
assistance recipients (GA recipients) from Ohio to the federal
government, by enabling persons already receiving GA to qualify for AFDC
instead. This result would be contrary to Congress's intent that
federal funds expended for AFDC-UP not be substituted for expenditures
already being made from state or local funds. S. Rep. No. 165, 87th
Cong., 1st. Sess. (1961), reprinted in 1961 U.S.C.C.A.N. 1717. .3.
Other arguments
a. Work and training program content
Ohio argued repeatedly that the proposed amendments complied with the
statutory requirements because the substantive content of its work and
training programs for GA and Food Stamp recipients was the same as for
AFDC recipients. See, e.g., Ohio Br. at 14. But this argument misses
the very points developed previously in this decision. When Congress
referred to work and training programs in the AFDC eligibility
requirement at issue, it was referring to programs that it had
explicitly recognized were designed for AFDC recipients. Ohio's GA and
Food Stamp programs serve a different and broader population group.
Recipients of these other programs who are ineligible for AFDC are by
definition unable to meet all of the eligibility requirements for AFDC.
Moreover, although the substantive content of the work and training
programs for GA and Food Stamp recipients may be the same as for AFDC
recipients, the source of the funding, the legal authorization, and the
oversight or control of the program components all differ. Stipulation
Nos. 8, 10-13. Therefore, I conclude that ACF may properly look beyond
the substantive content of the components of Ohio's work and training
programs in determining whether participation in the programs may
qualify as quarters of work for AFDC-UP eligibility.
b. The language of section 409
Ohio also cited former section 409(a)(3) of the Act as authority to
operate its CWEP for non-AFDC recipients. This section provided:
Nothing in this part or part C, or in any State plan approved under
this part, shall be construed to prevent a State from operating (on
such terms and conditions and in such cases as the State may find
to be necessary or appropriate, whether or not such terms,
conditions, and cases are consistent with section 402(a)(19) or
part C) a community work experience program in accordance with this
section. 11/
ACF argued that this language meant only that CWEP programs under
section 409 were to be governed solely by the requirements of section
409, and not by the requirements relating to other programs, such as the
WIN program under Part C, or by any of the other requirements in Title
IV-A.
I conclude that ACF's interpretation of section 409(a)(3) is reasonable.
On the other hand, Ohio's interpretation of section 409(a)(3) would
ultimately conflict with the language and legislative history of the
provisions of Title IV relating to establishment of the work and
training programs at issue. These provisions show that the programs
were intended for recipients of AFDC. It is not questioned that Ohio is
free to operate work and training programs, identical to AFDC programs,
for its GA and Food Stamp recipients. However, the freedom to operate
programs that may be substantively identical cannot be interpreted to
bootstrap into the AFDC-UP program persons outside of the specific
population designed to benefit from the work and training programs.
c. Coordination among federal programs
Ohio noted that Part F of Title IV, at section 483(a) of the Act,
requires that a state's JOBS program be coordinated with other programs
that the state operates under the Job Training and Partnership Act, and
with other relevant programs. Ohio asserted that it achieves such
coordination by operating one JOBS program for its AFDC, GA, and Food
Stamp recipients, and asserted that disapproval of its plan amendments
would "gut the coordination requirement." Ohio Br. at 18.
The amicus, OSLSA, made similar arguments with regard to the work and
training programs established for Food Stamp recipients in 1987 by 7
U.S.C. . 2029. OSLSA asserted that one component of the Food Stamp work
and training programs is CWEP, and described the AFDC and Food Stamp
CWEP programs as inseparably linked due to the many requirements for
coordination between the two programs. 12/
It is not disputed that Congress required that JOBS and CWEP activities
be coordinated with other work and training programs. However, neither
Ohio nor OSLSA cited any specific provision of the coordination
requirement that would require that GA and Food Stamp recipients be
entitled to earn quarters of work by participating in work and training
programs. As ACF suggested, it is likely that the coordination
requirement was intended to minimize duplication of effort in the
provision of work and training programs. Moreover, Ohio failed to
explain precisely how denial of its plan amendments would eviscerate the
requirement that work and training programs be coordinated.
If anything, Congress's requirement that work and training programs
operated under different statutes for various classes of assistance
recipients be coordinated is a recognition that the training programs
are separate and therefore different, regardless of how similar their
contents may be. For example, Food Stamp recipients who also receive
AFDC and thus participate in the AFDC work and training programs are
exempt from having to participate in the Food Stamp work and training
programs. 7 U.S.C. . 2029(b)(2); 7 C.F.R. . 273.7(b)(1). Conversely,
persons who receive only Food Stamps are required to participate in the
Food Stamp work and training programs under 7 U.S.C. . 2029, and are not
subject to the requirements of the AFDC work and training programs. The
clear implication of these provisions is that persons who receive Food
Stamps but not AFDC do not participate in AFDC work and training
programs.
I also note that the definition of quarter of work in section 407 of the
Act refers specifically to the AFDC work and training programs, and
makes no mention of the Food Stamp work and training programs
established under 7 U.S.C. . 2029. Similarly, as ACF pointed out, there
are separate sets of qualifications which must be met to establish
eligibility for AFDC and Food Stamps. Consequently, there is no support
for the notion that the receipt of Food Stamps and concomitant
participation in the Food Stamp work and training programs should give
rise to eligibility for AFDC.
Finally, there is nothing in ACF's denial of the plan amendments that
would prevent Ohio from continuing to operate work and training programs
for GA and Food Stamp recipients as a means of enabling these recipients
to gain employment opportunities, or from coordinating these programs
with the programs required by Title IV. I find that the coordination
requirements in the Family Support Act and the Food Stamp statute
neither bear directly on the issue here, nor override the clear language
of the laws and regulation showing that JOBS and CWEP were intended for
AFDC recipients. 13/
d. Equal protection
The constitutional arguments raised by Ohio also provide no basis for
overturning ACF's disapproval of the proposed plan amendments. Ohio
asserted that ACF raised equal protection problems under the Fifth and
Fourteenth Amendments by treating differently, without any reasonable
basis, three identically situated groups: GA, Food Stamp, and AFDC
recipients.
However, Ohio did not substantiate its claim that these three groups are
identically situated. Rather, AFDC recipients in Ohio who earn quarters
of work by participating in JOBS can only become initially eligible for
AFDC-UP by virtue of having prior quarters of earned income. In this
respect they are situated differently from the GA and Food Stamp
recipients for whom Ohio seeks to establish initial AFDC eligibility
through participation in JOBS. The GA and Food Stamp recipients also do
not meet the criteria for AFDC eligibility under other bases for
establishing parental deprivation.
Additionally, ACF provided a rational basis for treating AFDC recipients
differently by allowing them to count JOBS participation as quarters of
work for purposes of AFDC-UP eligibility: enabling AFDC recipients to
accept employment, and thus leave the rolls of AFDC, without the risk of
not being able to return to AFDC-UP in the event that the job does not
last long enough to provide the requisite quarters of work. In such a
case, the AFDC recipient's previous JOBS participation would count as
quarters of work for the purpose of reestablishing AFDC-UP eligibility.
Under the case cited by Ohio, Dandridge v. Williams, 397 U.S. 471
(1970), a statutory discrimination will not be set aside if any state of
facts reasonably may be conceived to justify it. I therefore find that
the constitutional arguments raised by Ohio are without substantial
merit. 14/
e. Applicability of JOBS provisions to AFDC applicants
Ohio also asserted that ACF's position, that only AFDC recipients may
earn quarters of work through JOBS, is erroneous because the AFDC-UP
provisions at sections 407(c)(1) and (d) of the Act apply to applicants
for AFDC, as well as to AFDC recipients. Those sections make no
references to applicants for AFDC; however, section 402(a)(19) of the
Act, which requires JOBS participation by recipients in areas where the
state guarantees child care, permits voluntary participation by
applicants and recipients of aid who are not so required to participate.
Also, section 482(c) requires provision of JOBS program information to
applicants for assistance, as well as to recipients.
Nevertheless, I conclude that these references to applicants do not
support Ohio's arguments in favor of its plan amendments. Ohio has not
asserted that its GA and Food Stamp recipients are "applicants" for
AFDC, and has not alleged that they meet applicable AFDC eligibility
requirements. Ohio also did not explain how GA and Food Stamp
recipients who apply for AFDC could maintain their status as applicants
long enough to permit the accumulation of quarters of work through JOBS.
I note that applicable regulations require that decisions on
applications for AFDC be made promptly, generally not in excess of 45
days. 45 C.F.R. . 206.10(a)(3)(i). Additionally, as ACF pointed out,
notice of the opportunity to participate in JOBS is generally given
following the determination of eligibility for AFDC. See section
482(c)(5) of the Act, 45 C.F.R. . 250.40(c)(1). Moreover, there is
nothing in these provisions to suggest that participation would be
permitted by an applicant whose application has been denied. These
references thus do not change my conclusion, discussed above, that the
ability to count participation in AFDC work and training programs as
quarters of work springs from the participants' status as AFDC
recipients at the time they participated in the work and training
programs.
Conclusion
Based on the foregoing analysis, I recommend that Ohio's AFDC plan
amendments be disapproved.
All parties having completed their submissions in this appeal, the
entire record, including the foregoing recommended findings and proposed
decision, is CERTIFIED to the Assistant Secretary for the Administration
for Children and Families, as directed in 45 C.F.R. .
213.32(b)(1).
Donald F. Garrett
Presiding Hearing
Officer
December 10, 1993
. APPENDIX A
Transmittal No. 90-9 proposed the following amendment to Attachment
2.4-A of Ohio's AFDC State Plan:
C. In addition to the criteria for establishing the work history
requirement for ADCU as set forth in 45 CFR 233.100(a)(3)(iv), all
previous Community Work Experience Participation (CWEP) by General
Assistance recipients will satisfy the ADCU prior work experience
requirement.
Transmittal No. 91-1 proposed the following amendment to Attachment 2.4
of Ohio's AFDC State Plan:
E.4. After October 1990, a quarter of work with respect to any
individual means a calendar quarter in which such individual
participated in the same activities as a participant in a program under
Section 402(a)(19) and under Part F, and before October 1990, a quarter
of work with respect to any individual means a calendar quarter in which
such individual participated in the same activities as a participant in
a community work experience program (CWEP) under former Section 409 or
the work incentive program (WIN) established under former Part C.
Ohio Ex. A.
JAS/Disk-Sacks15/12-13-93/ FINAL:dlf D1451
1. Title IV of the Act is codified at 42 U.S.C. . 601 et seq.
2. As used in this decision, "former" sections of the Act refer to
the
Social Security Act for times here relevant prior to its amendment,
effective October 1, 1990, by the Family Support Act of 1988, Public Law
No. 100-485.
3. The proposed plan amendments are attached as Appendix A to this
decision.
4. "ADCU" refers to Ohio's AFDC-UP program.
5. Ohio's State plan for the Fair Work program and JOBS has been
approved insofar as it applies to recipients of AFDC benefits.
Stipulation No. 12.
6. Former section 402(a)(19) of the Act required states to have
employment search and training programs in effect, and to make
participation in such programs a condition of eligibility for AFDC.
Current section 402(a)(19) requires that states have in effect a JOBS
program in which AFDC recipients must participate as a condition of
receiving assistance.
7. Ohio's descriptions of the proposed plan amendments in its brief
did not correspond precisely to copies of the plan amendments that Ohio
enclosed with its appeal file. Ohio's brief states that the effect of
amendment 90-9 was to allow GA and Food Stamp recipients who participate
in Ohio's JOBS program to count such time of participation as a quarter
of work in determining eligibility for AFDC-UP. Ohio Brief (Br.) at 1.
However, the portion of plan amendment 90-9 in Ohio's appeal file
referred to participation in CWEP, not JOBS, and to such participation
only by recipients of GA, not by recipients of Food Stamps. Ohio Ex. A.
Similarly, Ohio's brief stated that amendment 91-1 incorporated
amendment 90-9 and provided that GA and Food Stamp recipients could
count as quarters of work their participation in CWEP and WIN prior to
October 1, 1990, while the copy of the proposed plan amendment in the
appeal file does not specifically refer to either GA or Food Stamp
recipients. Ohio Br. at 1-2, Ohio Ex. A. These inconsistencies have no
bearing on my resolution of this dispute, since the plan amendments
would still present the same basic question raised by the parties:
whether persons receiving assistance other than AFDC may become eligible
for AFDC-UP by participating in programs with the same activities as
CWEP, WIN, and JOBS. In any event, in framing the issues here, I have
relied on the parties' characterizations of the nature and effect of the
proposed plan amendments.
8. The Secretary of this Department was a named defendant in the suit.
9. References to work and training programs in the definition of
quarter of work would thus appear to apply to individuals who need to
reestablish AFDC eligibility and who participated in work and training
programs during a prior period of eligibility, or individuals who need
to maintain AFDC eligibility following a change in circumstances.
Indeed, as Ohio has recognized, there may be anomalous situations where
a parent may qualify for AFDC-UP based on prior participation in work
and training programs while eligible for AFDC even though the parent
lacked any quarters of earned income. Nevertheless, the possibility
that an anomalous situation such as that cited by Ohio may arise does
not negate the fact that permitting only AFDC recipients to qualify for
quarters of work through JOBS, CWEP and WIN under Title IV generally
serves Congress' intent to restrict AFDC-UP to persons with a
significant, prior connection to the work force.
10. The definition of "quarter of work" was, however, revised to
reflect various changes in the types of qualifying work and training
programs, most significantly the changes made by the Family Support Act
of 1988.
11. The Family Support Act of 1988, which incorporated CWEP as a
component of JOBS, included similar language at section 482(f)(1)(D) of
the Act. Ohio did not refer specifically to this provision, but its
argument would presumably apply to it as well.
12. In addition to the coordination requirement at section 483(a) of
the Act cited by Ohio, OSLSA noted that:
o Regulations of the U.S. Department of Agriculture, which
administers the Food Stamp program, provide that states may
operate Food Stamp and Title IV work and training programs
jointly. 7 C.F.R. . 273.22(h).
o Food Stamp recipients exempt from work registration
requirements shall be subject to CWEP if their WIN participation
is less than 20 hour per week. 7 C.F.R. . 273.22(e)(1)(i).
o Former section 409(a)(3) of the Act authorized states to
establish CWEP programs for other assistance programs; and
current section 483(a)(1) encourages states to consolidate all
work programs under JOBS.
13. Consequently, I do not concur with OSLSA's argument that the
coordination requirements "minimized" the holding in Ellsworth.
14. I note that in any event, given that the purpose of a hearing on a
disapproval of a proposed AFDC state plan amendment is limited to
consideration of whether such amendment conforms to the requirements for
approval under the Act and pertinent federal requirements, there is a
serious question as to whether a presiding officer is empowered to
propose a decision based solely on the constitutional grounds advanced
by Ohio. 45 C.F.R. .