Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
SUBJECT: District of Columbia Department of Human Services
DATE: April 6, 1992
Docket No. A-92-98
Decision No. 1323
DECISION
The District of Columbia Department of Human Services (DC) filed a
notice
of appeal from a February 6, 1992 decision of the Administration
for Children
and Families (ACF) imposing a penalty disallowance under
section 403(h) of
the Social Security Act (Act). ACF determined that DC
had not complied
substantially with the requirements of Title IV-D of
the Act, the Child
Support Enforcement and Establishment of Paternity
Program, during calendar
year 1989. Specifically, ACF found that DC
failed to take any action
whatsoever to establish paternity in 27 of 40
sampled cases requiring this
service. See 45 C.F.R. .305.24(c). The
regulations at 45 C.F.R.
.305.20(a)(2) define substantial compliance as
taking action in 75 percent of
the sampled cases. Since this was the
second consecutive finding that
DC's program failed to achieve
substantial compliance for this criterion, 1/
ACF imposed a penalty
reducing by two percent federal financial participation
in DC's Aid to
Families with Dependent Children program for the period July
1, 1989 to
June 30, 1990. The undisputed amount of this penalty is
$1,162,539.
In its notice of appeal, rather than stating why the ACF decision is
wrong
(see 45 C.F.R. .16.7(a)), DC asserted that there were
"extenuating
circumstances that should be considered in offsetting the
penalty
cited," (Notice at 1), and asked that the Board "reconsider
the
imposition of the penalty." Notice at 3. On March 17, 1992,
the Board
issued to DC an order to show cause. The order stated that
since DC
apparently acknowledged that the disallowance leter was legally
and
factually correct, and .since the Board lack authority to waive
this
penalty, it might be appropriate to issue a decision summarily
upholding
the disallowance. DC was given five days from its receipt of
the order
to file a response.
The certified mail receipt for the order shows that DC received it
on
March 18, 1992, so that the response was due to be filed March 23,
1992.
We have not received any communication from DC either filing a
response
or seeking an extension of time to file a response.
Consequently, DC has left undisputed our preliminary analysis that
DC
admits the legal and factual accuracy of the disallowance.
The
unchallenged facts in the disallowance letter clearly support
imposition
of the penalty under the legal authorities cited in that
letter. While
DC's letter states a sympathetic case, none of the
extenuating
circumstances cited by DC -- its high out-of-wedlock birthrate,
its
depressed economy that complicates locating absent parents through
the
job market, its hiring freezes that have prevented filling
staff
positions, and its plans and expectations of improved performance
--
provides a legal basis for the Board to overturn this disallowance.
We
therefore conclude that the disallowance should be affirmed. 2/
_______________________________ Cecilia Sparks Ford
_______________________________ Donald F. Garrett
_______________________________ Norval D. (John)
Settle
Presiding Board Member
1. See District of Columbia Dept. of Human Services, DAB No.
1228
(1991).
2. As we stated in our order to show cause, ACF may wish to review
DC's
assertions to see if any relief is available or appropriate. We
express
no opinion on whether ACF has such options and, in any event, any
ACF
response lies solely within the discretion of that