Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
SUBJECT: Pennsylvania Department of Public Welfare
DATE: July 25, 1995
Docket Nos. A-94-99
A-94-155
A-95-41
A-95-82
Decision No. 1523
DECISION
The Pennsylvania Department of Public Welfare
(Pennsylvania) appealed four determinations by the
Administration for Children and Families (ACF)
disallowing a total of $114,291 in claims for federal
financial participation (FFP) under title IV-D (Child
Support and Establishment of Paternity) of the Social
Security Act (Act). 1/ ACF determined that court fees
collected by Pennsylvania in child support cases were
required to be treated as income resulting from services
under the child support enforcement program. Therefore,
ACF concluded that this income would have reduced
Pennsylvania's expenditures eligible for FFP by the
amount of the disallowances.
For the reasons stated below, we conclude that the Act
and the applicable regulations require Pennsylvania to
credit the court filing fees at issue here against its
IV-D program expenses. Further, as discussed below, we
reject Pennsylvania's arguments that an ACF policy
memorandum and other ACF statements support a conclusion
that these fees are not program income. Accordingly, we
uphold the disallowances.
Background
Title IV-D of the Social Security Act (42 U.S.C. 651-
669) was enacted for the purpose of locating absent
parents, enforcing their support obligations,
establishing paternity, obtaining child and spousal
support, and assuring that assistance in obtaining
support be available to all children for whom such
assistance is requested. See section 451 of the Act.
In order to receive grant funding in the form of FFP, a
state must operate its IV-D program in accordance with a
federally approved state plan and applicable federal
regulations. The state must designate a single and
separate organizational unit to administer the IV-D plan
(known as the "IV-D agency"). 45 C.F.R. 302.12(a).
Further, the state plan must provide for cooperative
agreements with appropriate courts and law enforcement
officials to assist the agency administering the plan.
Section 454(7) of the Act.
In Pennsylvania, all child support cases are IV-D cases.
The Department of Public Welfare is the IV-D agency and
administers its IV-D program in part through cooperative
agreements with the Domestic Relations Section (DRS) of
the Court of Common Pleas and County Commissioners.
Pennsylvania's judicial system is unified and is operated
under the supervision and control of Pennsylvania's
Supreme Court.
In the mid-1980s, the judicial computerization project
(JCP), a computerization of Pennsylvania's court system,
was initiated beginning with the local justices of the
peace and the appellate courts. At approximately the
same time, Congress enacted a law requiring states to
computerize their IV-D programs. Because of
Pennsylvania's inability to comply with federal
procurement regulations, the computerization of
Pennsylvania's title IV-D program case management system
was funded separately through a state appropriation.
In 1990, the Pennsylvania legislature enacted a law that
imposed a five dollar fee (the JCP fee) on all initial
court filings to provide a dedicated funding source for
Pennsylvania's computerization project. The JCP fees are
collected from parents by the DRS in some counties and by
the prothonotary, or clerk of the civil record, in other
counties. Pennsylvania stated that there are nine
counties where JCP fees are collected by non-title IV-D
prothonotaries. In other counties, the DRS either
collects the fee directly or is deputized to serve as a
satellite prothonotary. Pennsylvania brief (Br.) at 5,
note 1.
In 1992, ACF's Office of Child Support Enforcement
advised Pennsylvania that it would consider the JCP fee
program income to the IV-D program to the extent that the
fee was imposed on IV-D child support cases. During the
hearing in this case, Pennsylvania explained that
although all its child support cases were IV-D cases, and
that IV-D cases were not exempt from the JCP fee, the JCP
fee was not always actually collected. This was because
it was most often imposed on the absent parent and was
considered paid only after all support obligations were
satisfied. Thus, ACF based its disallowance amounts on
the amounts reported as collected by Pennsylvania.
Appeal History
These cases involve an issue that has previously been
before the Board. In Pennsylvania Dept. of Public
Welfare, DAB No. 1450 (1993), the Board upheld ACF's
determination that Pennsylvania should have reduced its
claim for FFP by the amount of the court fees collected
in child support cases. 2/ The Board stated:
[W]e conclude that the Act and the applicable
regulations require Pennsylvania to credit against
its IV-D program expenses the court filing fees at
issue here. We find that the language of the
statute is clear and unambiguous and requires
Pennsylvania to exclude from its expenditures
claimed for FFP any fees which resulted from
services provided under the IV-D state plan,
regardless of which state entity collected the fees
and how the collected funds are used. Moreover, we
find that the regulation at 45 C.F.R. 304.50(a)
simply restates the statute's requirement, and that
other regulations on which Pennsylvania relied are
not controlling here.
DAB No. 1450 at 2. Thereafter, Pennsylvania appealed DAB
No. 1450 and a summary Board decision to court. 3/ The
court in Commonwealth of Pennsylvania v. U.S. Dep't of
Health and Human Services, Civil Action No. 93-2148 (D.
Penn. October 20, 1994), adopting the Chief Magistrate
Judge's Report and Recommendation, found that the Board's
decisions were based on a "reasonable and permissible
interpretation of the governing statute." Report and
Recommendation at 7, ACF exhibit (Ex.) 11. 4/
In DAB Nos. 1450 and 1458, the Board rejected
Pennsylvania's argument that the JCP fees should not be
counted as program income because the title IV-D agency
was a mere collecting agency for the Pennsylvania Supreme
Court, which receives no title IV-D funding. However,
Pennsylvania maintained in its current appeals that the
Board should reconsider this argument in light of a
Policy Interpretation Question Memorandum (PIQ-88-5),
from the Associate Deputy Director, Office of Child
Support Enforcement (OCSE), to the OCSE Regional
Representative for Region IV, dated April 15, 1988.
PIQ-88-5 contained two questions raised by the Regional
Representative concerning interest accrued by county
courts in North Carolina and the Associate Deputy
Director's answers. At issue here is Question no. 1:
Since the county courts are not reimbursed by
Federal funds, must the State recover and report the
interest earned on child support collections made by
the county courts?
Answer, in relevant part:
Since the county courts are not under cooperative
agreement with the IV-D agency they are not subject
to Federal statutes or regulations governing State
IV-D programs and any interest earned by the county
courts does not have to be excluded from the State's
quarterly expenditure report.
Pennsylvania notice of appeal, Ex. B at 1. Pennsylvania
obtained PIQ-88-5 as the result of a Freedom of
Information Act request, after DAB Nos. 1450 and 1458
were issued. This matter was also before the court in
its review of those decisions. The court noted that PIQ-
88-5 had not been presented to the Board, but it refused
to remand the case to the Board to consider
Pennsylvania's argument regarding PIQ-88-5 because the
court determined that the facts in PIQ-88-5 were
distinguishable from the facts in Pennsylvania's
situation. The court therefore rejected Pennsylvania's
argument. Report and Recommendation at 7, note 6, ACF
Ex. 11. However, the court's summary dismissal of
Pennsylvania's argument was based upon a factual
statement in DAB No. 1450 that, Pennsylvania contended in
the present cases, was based on a misunderstanding of the
Board of the relevant facts. Consequently, the Board
permitted further briefing and factual development after
the court's decision.
Relevant Statutory and Regulatory Authority
Section 455(a) of the Act provides, in relevant part: 5/
In determining the amounts expended by any State
during a quarter, for purposes of this subsection,
there shall be excluded an amount equal to the total
of any fees collected or other income resulting from
services provided under the plan approved under this
part.
Section 304.50 of 45 C.F.R. (1992) provides, in relevant
part:
The IV-D agency must exclude from its quarterly
expenditure claims an amount equal to:
(a) All fees which are collected during the quarter
under the title IV-D State plan . . . .
Section 74.41(a) of 45 C.F.R. 6/ provides, in relevant
part:
Except as explained in . . . [paragraph] (c) of this
section, program income means gross income earned by
a recipient from activities part or all of the cost
of which is either borne as a direct cost by a grant
or counted as a direct cost towards meeting a cost
sharing or matching requirement of a grant. It
includes but is not limited to such income in the
form of fees for services performed during the grant
or subgrant period . . . .
Section 74.41(c) of 45 C.F.R. provides, in relevant part:
The following shall not be considered program
income:
(1) Revenues raised by a government recipient under
its governing powers, such as taxes, special
assessments, levies and fines. (However, the receipt
and expenditure of such revenues shall be recorded
as a part of grant or subgrant project transactions
when such revenues are specifically earmarked for
the project in accordance with the terms of the
grant or subgrant.)
Analysis
Pennsylvania maintained that, based on the fact that ACF
policy draws a distinction between income earned by title
IV-D entities and income earned by non-title IV-D
entities, the Board should find here that the JCP fee is
not program income and should not be deducted from its
claim for FFP, contrary to what the Board found in the
earlier appeals. Pennsylvania argued specifically: (1)
that in light of PIQ-88-5 and other ACF statements, the
Board must change its position on JCP fees collected by
the approximately nine prothonotary offices which are not
affiliated with the title IV-D program; and (2) that JCP
fees collected by the DRS (and affiliated prothonotaries)
should not be counted as program income because fees
collected by title IV-D entities "in trust" for non-title
IV-D entities are not program income. Pennsylvania also
made two other general arguments that the JCP fee could
be a "special assessment" under section 74.41(c), and
that its position that the JCP fee is not program income
is more consistent with section 304.50 than ACF's
position. ACF maintained that the Board's statutory
analysis in DAB No. 1450 was controlling here, and that
if PIQ-88-5 was inconsistent with that analysis it was
invalid.
As Pennsylvania pointed out, the Board has stated that it
is not strictly bound by its previous decisions, although
it may adopt the analysis from a prior decision where
applicable, after an appellant is provided an opportunity
to show why that prior analysis was wrong. Washington
Dept. of Social and Health Services, DAB No. 490 (1983).
Thus, the Board allowed full briefing of this case,
despite ACF's contention that the earlier decision, as
upheld by a district court, was controlling.
Pennsylvania had not sought discovery in the previous
case, but it did so in the present one. Upon request,
ACF provided documents, answered interrogatories, and
produced an agency official for deposition. The Board
held an evidentiary hearing and provided an opportunity
for oral argument. After careful consideration of the
extensive record produced in this case, the Board has
concluded that its previous analysis of the applicable
statute and regulations is still the correct one. We
discuss each of Pennsylvania's arguments below.
1. PIQ-88-5 does not require the Board to change its
position.
Pennsylvania asserted that, in light of PIQ-88-5, the
Board must change its position on JCP fees collected by
the approximately nine prothonotary offices which are not
affiliated with the title IV-D program. 7/ Pennsylvania
argued that where there is a conflict between a
"published PIQ" and the Board's "unpublished decisions,"
the PIQ must usually prevail. Pennsylvania Br. at 4.
Additionally, Pennsylvania contended that a PIQ has the
status of official policy which is intended to be relied
upon and followed by the states.
Pennsylvania maintained that, but for the fact that the
North Carolina situation addressed by the PIQ involved
interest and this case involves fees, the fact situation
for such prothonotary collections is almost identical to
the North Carolina fact situation and is thus controlled
by PIQ-88-5. Pennsylvania asserted here that under PIQ-
88-5, whether interest earned by North Carolina county
courts constituted program income depended on whether
they received title IV-D funding. Pennsylvania noted
that, like North Carolina's county courts, Pennsylvania's
Supreme Court receives no title IV-D funding. 8/
Pennsylvania concluded that since the Board's
interpretation of the statute and regulations in DAB Nos.
1450 and 1458 was contrary to the ACF policy allegedly
embodied in this PIQ, the Board should reverse the
disallowances at issue here notwithstanding its prior
decisions.
Pennsylvania maintained that there are only two arguments
which ACF could make to distinguish the situation in the
PIQ from that presented here. The first argument is that
"fees" should be treated differently from "interest."
However, Pennsylvania alleged that this argument is
negated by ACF's own declaration that fees collected by a
county clerk not under a cooperative agreement would not
be considered income to the title IV-D program.
Pennsylvania Ex. 4, August 26, 1994 Declaration of
Marianne Clifford Upton, Chief of the Policy Branch,
Division of Policy and Planning, OCSE, ACF, at 4.
Pennsylvania contended that this declaration showed that
ACF intended to apply the policy in PIQ-88-5 to fees as
well as interest. Pennsylvania asserted that the only
other argument that ACF could make is that, unlike the
North Carolina clerks, the prothonotaries are under
cooperative agreement with the IV-D agency. Pennsylvania
maintained that the prothonotary is not included within
the cooperative agreement. Further, Pennsylvania alleged
that the Board mistakenly decided in DAB No. 1450 that
the prothonotaries were under cooperative agreement. In
DAB No. 1450, the Board stated:
In Pennsylvania, the Department of Public Welfare is
the IV-D agency and administers its IV-D program in
part through cooperative agreements with each of
Pennsylvania's 60 judicial districts. Tr. at 14,
27.
DAB No. 1450 at 2. Further, the Board stated:
We see no rational basis for distinguishing JCP fees
collected in IV-D cases based solely on the
happenstance of what part of the judicial district
collects the fee -- which apparently varies
"depending on the present judge's procedure in each
judicial district." Tr. at 28. While a DRS may
have been more directly involved with the IV-D
program than a Prothonotary, the cooperative
agreements were with the judicial districts and both
DRS and the Prothonotary were part of the judicial
districts. Other fees collected by Prothonotaries
were treated by Pennsylvania as program income. Tr.
at 49.
DAB No. 1450 at 8. Pennsylvania submitted two
declarations to clarify the testimony of the Pennsylvania
title IV-D Director, on which the Board relied in making
these statements. 9/ Pennsylvania argued that the Board
may have misconstrued this testimony. See Pennsylvania
Exs. 6 and 7. Finally, Pennsylvania stated that, unless
a particular DRS chooses to affiliate itself with the
prothonotary, the cooperative agreement does not include
the prothonotary. Pennsylvania Br. at 6.
ACF disagreed that PIQ-88-5 was controlling. ACF stated
that while PIQs are used to provide information to states
about various subjects, a PIQ does not have the weight of
an action transmittal, regulation or statute. ACF June
3, 1994 Answers to Interrogatories at 1, 3. According
to ACF, PIQs generally address specific circumstances and
are not intended to be applied broadly. Id.
We agree with ACF that PIQ-88-5 is not dispositive here;
moreover, as we discuss below, the situation in the PIQ
is distinguishable from the situation here. The
determinative factors in these appeals, as in the prior
cases, are the governing statute and the implementing
regulations. The plain language of a statute has always
been paramount evidence of its meaning. As we noted in
DAB No. 1450, when the plain language of a statute is
clear, there is no reason to go beyond that plain
language:
The plain language of a statute is always the best
evidence of the meaning of a statute, and there is
no reason to go beyond that plain language to
examine other evidence of legislative intent unless
the language is unclear or ambiguous. Caminetti v.
United States, 242 U.S. 470 (1917); Chevron, U.S.A.
v. Natural Resources Defense Council, Inc., 467 U.S.
836 (1984).
DAB No. 1450 at 7, quoting Tennessee Dept. of Human
Services, DAB No. 1054 (1989) at 5.
Moreover, the Board is bound by all applicable
regulations. 45 C.F.R. 16.14. If an agency policy,
such as a PIQ, is contrary to an applicable regulation,
the Board must adhere to the applicable regulation.
Since, as discussed below, the statute and implementing
regulations clearly require that the fees in question
here be treated as program income, we need not look to
any policy interpretation.
Section 455(a) of the Act provides that an amount equal
to the total of any fees collected or other income
resulting from services provided under the plan must be
excluded from any claim for FFP. 10/ This clearly
requires that any fees which are generated from services
provided under the IV-D state plan be treated as program
income. Section 304.50(a) restates this requirement when
it provides that all fees which are collected under the
IV-D State plan must be excluded from a state's claim for
FFP. As we pointed out in DAB No. 1450, in order to be
collected under the plan, fees must necessarily be
collected from services provided under the plan. The JCP
fees clearly met this test, since they were charged to
parents in conjunction with IV-D child support cases.
Even if we were to consider PIQ-88-5, we would find that
North Carolina's situation is distinguishable from
Pennsylvania's situation. In Pennsylvania, the JCP fees
are paid by the parents of children receiving IV-D
services, whereas in North Carolina, the interest simply
accrued. Further, unlike North Carolina, Pennsylvania
had cooperative agreements in virtually all of its
counties. ACF stated that Pennsylvania's 1991 State Plan
submittal showed that 66 of 67 counties had cooperative
agreements during the period in question here, and that
ACF believes that cooperative agreements are now in
effect for all 67 counties. ACF Br. at 11. Thus, but
for the non-affiliated prothonotaries, there could be no
argument that the JCP fees did not constitute program
income under PIQ-88-5. Pennsylvania's reliance on the
fact that the non-affiliated prothonotary collects the
fees and forwards them to the Pennsylvania Supreme Court
in effect makes the prothonotary a "straw man" to avoid
the effect of the cooperative agreements on the treatment
of the fees. In our view, PIQ-88-5 contemplated that
fees like the ones in question here would be treated as
program income wherever there was a cooperative agreement
with the county. Thus, we conclude that, even if
PIQ-88-5 were binding, it would not exempt the JCP fees
from treatment as program income.
Similarly, the three other ACF statements Pennsylvania
identified do not override the plain language of the
statute and regulation and, in any event, are of dubious
reliability here. Pennsylvania contended that the
following statement in a regulatory preamble concerning
cooperative agreements demonstrated that ACF shared
Pennsylvania's view of the applicable law here --
Comment: One commenter wanted cooperative
arrangements to refer to Statewide application fees
and recovery of cost policy to avoid separate fees
and charges by counties.
Response: Federal law and regulations do not
prohibit States from charging fees other than those
authorized in regulations. Accordingly, we do not
have the authority to limit charging of fees to
those specified in Federal regulations if fees are
charged in all child support enforcement cases in
the State regardless of whether of whether or not
they are IV-D cases. Such fees must be reported as
program income if the charging entity is under
cooperative arrangement . . .
54 Fed. Reg. 30221 (July 19, 1989). Pennsylvania
maintained that since the "charging entity" in its case
is the Supreme Court, which is not a party to the
cooperative agreement, it must follow that the JCP fees
need not be reported as program income. However, as we
have already explained above, it is the situation that
the fees are assessed against all child support cases,
and all such cases are generated as a result of IV-D
activities that creates the necessary nexus, not whether
the particular State official that Pennsylvania chooses
to have collect the fees is a party to the cooperative
agreement. Furthermore, it is a logical fallacy to
assume, without other evidence, that the converse of a
statement like this one is automatically true.
The other two statements that Pennsylvania pointed to as
signifying ACF agreement with the State's view of the law
were two statements made by the Chief of the Policy
Branch, Division of Policy and Planning, Office of Child
Support Enforcement, ACF, in an August 26, 1994 written
declaration and a September 30, 1994 deposition during
which Pennsylvania's counsel asked questions about the
written declaration. See Pennsylvania Ex, 4, Declaration
of Marianne Clifford Upton; ACF Ex. 11, Deposition of
Marianne Clifford Upton. In the declaration at paragraph
5, the ACF official stated, "5. The primary basis for
determining whether fees collected and interest earned
are 'income' to the child support enforcement program,
which must be offset against program expenditures in
claiming FFP, is whether the entity collecting the fee or
earning interest on child support collections is
providing child support enforcement services and
receiving FFP under the approved Title IV-D State plan."
During the deposition, she reiterated that the "primary
basis" for determining whether a fee was program income
was whether the entity collecting the fee was doing so in
conjunction with providing IV-D services. Pennsylvania
is being selective in its citation of these two
statements; the ACF official also stated that --
there may be other bases that we may have to take
into consideration . . . such as the rules that are
promulgated by the Office of Management and Budget,
circulars, other items, departmental rules that we
would look at, statutes, regulations, in evaluating
a particular circumstance and how a particular item
ought to be treated by way of offsetting an
expenditure of the program by state."
ACF Ex. 11 at 24. Thus, these statements are consistent
with our determination and ACF's position that the
statute and regulation, and not Pennsylvania's particular
arrangement for collecting the fees, compels the result
in this case. Moreover, these statements were made by an
agency official in the context of litigation and
therefore are not official agency policy entitled to
deference.
2. JCP fees collected by the DRS (and affiliated
prothonotaries) must be counted as program income.
Pennsylvania argued that the JCP fees collected by the
DRS (and affiliated prothonotaries) should not be counted
as program income under the title IV-D program because
they were collected by title IV-D entities "in trust" for
non-title IV-D entities. Pennsylvania contended that if
its Supreme Court collected the JCP fee directly,
PIQ-88-5 would require that the JCP fee not be counted as
program income. Pennsylvania Br. at 7-8. Pennsylvania
argued, as it did in DAB No. 1450, that federal policy
permits federally funded entities to serve as collecting
agents for state governments without the collected fee
being designated as program income. Pennsylvania stated
that all federal programs collect income taxes, social
security taxes, state taxes and local taxes from state
employees' wages. Pennsylvania asserted, as it did in
DAB No. 1450, that the federal regulations at 45 C.F.R.
74.41(c) expressly recognize that federal programs can
collect such fees and taxes without such fees and taxes
becoming program income.
We do not find Pennsylvania's arguments persuasive.
Since PIQ-88-5 is not a basis for reversing ACF's
determination that fees collected by non-affiliated
prothonotaries are program income, it naturally follows
that PIQ-88-5 is not a basis for reversing ACF's
determination that fees collected by a title IV-D entity
are program income. Moreover, in DAB No. 1450, we
determined that the JCP fees were distinguishable from
fees such as car registration fees and utility bill taxes
because the JCP fees were directly generated by IV-D
services. Similarly, the taxes cited by Pennsylvania in
this case are not generated by services provided under
the IV-D state plan; thus, the fact that the taxes are
not treated as program income does not show that the JCP
fees were not properly treated as program income. 11/
3. Pennsylvania's other arguments do not convince
the Board to change its position.
Pennsylvania also contended that the JCP fee is a
"special assessment," which section 74.41(c) specifically
exempts from treatment as program income. While
Pennsylvania acknowledged that the Board rejected this
argument in DAB No. 1450, Pennsylvania maintained that
PIQ-88-5 should cause the Board to re-evaluate its
position. We disagree.
DAB No. 1450 held that the specific provisions of the
IV-D statute and its implementing regulations take
precedence over the general, Department-wide provisions
of Part 74. As discussed above, since the IV-D statute
and regulations clearly require that the JCP fees be
treated as program income, we need not look to PIQ-88-5
for further guidance on the interpretation of section
74.41(c).
Finally, Pennsylvania argued that its position that the
JCP fee is not program income is more consistent with the
plain language of the regulations at 45 C.F.R. 304.50
than ACF's position. Pennsylvania contended that while
the Board stated in DAB No. 1450 that a fee was collected
"under" the state plan within the meaning of section
304.50 if it was "collected from services provided under
the plan," this interpretation is not consistent with
PIQ-88-5. We disagree.
As noted previously, section 304.50 merely restates the
clear requirement of the IV-D statute that any fees which
result from services under the IV-D state plan be treated
as program income. Thus, as we found in DAB No. 1450,
Pennsylvania's interpretation is contrary to the plain
language of the regulation.
Conclusion
Based on the foregoing analysis, we uphold ACF's
determinations.
Cecilia Sparks Ford
Donald F. Garrett
M. Terry Johnson
Presiding Board Member
1. The disallowance amount for Docket No. A-94-99 is
$29,391 for the quarter ended December 31, 1993; the
disallowance amount for Docket No. A-94-155 is $25,411
for the quarter ended March 31, 1994; the disallowance
amount for Docket No. A-95-41 is $31,288 for the quarter
ended September 30, 1994; and the disallowance amount for
Docket No. A-95-82 is $28,201 for the quarter ended
December 31, 1994. The parties agreed to the
consolidation of these cases.
2. Pursuant to Pennsylvania's request in its letter
dated September 9, 1994, the following documents from the
record in DAB No. 1450 are incorporated into the record
in this case: (1) Nancy Sobolevitch's verification of
3/30/93 and attachments; (2) John Stuff's verified
statement of 5/10/93; (3) undated cooperative agreement;
(4) Supreme Court order of 6/29/90; (5) Sobolevitch memo
of 7/2/90; (6) Transcript of hearing of 9/21/93; (7)
State's corrections to transcript; and (8) Allie Page
Matthews letter of 3/27/92.
3. Following DAB No. 1450, a second disallowance for
a later quarter was appealed to the Board. Although
Pennsylvania disagreed with the Board's analysis in DAB
No. 1450, Pennsylvania requested in its appeal that the
Board issue a summary decision based on that decision.
The case was docketed as A-94-40 and culminated in DAB
No. 1458.
4. Pennsylvania has appealed the district court
decision to the Third Circuit (Appeal No. 94-3692).
5. Section 455(a) was added to the Social Security
Act by section 2333(c) of the Omnibus Reconciliation Act
of 1981 (Pub. L. No. 97-35).
6. The general provisions of 45 C.F.R. Part 74 are,
with certain exceptions not relevant here, made
applicable to this grant by 45 C.F.R. 304.10. Part 74
was revised effective August 25, 1994. 59 Fed. Reg.
43754. The provisions cited in the text were the ones in
effect prior to August 25, 1994.
7. Pennsylvania stated that the argument discussed in
this section refers to the non-affiliated prothonotaries,
who do not receive title IV-D funding. We discuss
Pennsylvania's argument concerning affiliated
prothonotaries in the next section.
8. Pennsylvania maintained that there were three
other ACF statements that supported its view that ACF
policy does not require the JCP fee to be treated as
program income. Since Pennsylvania concentrated its
efforts on PIQ-88-5, we will address these three
statements at the end of this section.
9.
While the Board made these statements in DAB No. 1450,
they were not used as a basis for the Board's holding in
that decision. The statements were in the context of
discussing another document (the Matthews letter), and
the Board ultimately determined that --
even if we could infer from the Matthews letter the
interpretation Pennsylvania advanced here, we would
not apply that interpretation since it could not
override the statutory and regulatory requirement.
DAB No. 1450 at 9.
10. The "plan" referred to in the Act is the IV-D
state plan, since this section is located under Title IV,
Part D of the Act.
11. At Pennsylvania's request, the Board held a
hearing in this case on March 21, 1995, in part to
address Pennsylvania's allegation that ACF treated
Pennsylvania differently from other states. During the
hearing, the Board allowed Pennsylvania to transmit to
ACF a list of fees from seven states that Pennsylvania
maintained might be relevant to show ACF's inconsistent
treatment. ACF was directed to search its files and
provide any information discovered as a result of that
search. Although ACF responded to the search, ACF stated
that it did not believe that its action or inaction with
regard to any other state had relevance to the Board's
decision whether to sustain the disallowances in question
here. We agree with ACF. Further, we find that
Pennsylvania did not provide any evidence to show that
the questioned fees were so similar in nature to
Pennsylvania's JCP fee as to be relevant to the issue
here.