SUBJECT: New Jersey Department of Human Services

RULING ON REQUEST FOR RECONSIDERATION

On January 22, 2001, the Board issued a final decision in the above-captioned case. New Jersey Dept. of Human Services, DAB No. 1761 (2001) (Final Decision). The New Jersey Department of Human Services (New Jersey, State) requested, in a letter dated March 2, 2001, that the Board reconsider its Final Decision, on the grounds that it contained three clear errors of fact or law. On the basis of the analysis below, we deny the request for reconsideration because New Jersey failed to demonstrate any error of law or fact.

The Board's regulations empower Board members to "reconsider a Board decision where a party promptly alleges a clear error of fact or law . . . ." 45 C.F.R. § 16.13. Where a requestor meets these minimum requirements of timeliness and allegation of clear error, the Board may then decide whether the allegations merit reconsideration. Here, we conclude that New Jersey's allegations lack any merit.

New Jersey's allegations of error

New Jersey based its reconsideration request on the following three allegations:

1. The Board based its decision on issues not properly before it rather than on the overarching issue presented to it. As a result, the State was disadvantaged because it did not adequately respond to what it considered to be tangential to the essence of the dispute.

2. The underlying assumption for the Board's decision that "the regulations concerning costs of activities performed by certain caseworkers were designed to limit cost-shifting to title IV-D" is incorrect. Thus, the Board erred in placing any reliance on this assumption in reaching its decision.

3. The Board's conclusion that the questioned activities constitute "IV-D intake" is contradicted by the Board's own decision.

N.J. Request for Reconsideration at 1.

We address each of New Jersey's allegations in the sections that follow. ⁽¹⁾ In summary, we conclude first that New Jersey had no right to a declaratory judgment in the abstract that would somehow constrain a regulation that, taken at face value, plainly prohibited what their proposed cost allocation plan (CAP) amendment did, in order to preserve a theoretical possibility that an allocable cost might later be identified. On the face of the regulations, we concluded (as we explained in our decision) that if none of the activities captured in the Random Moment Study (RMS) described in New Jersey's CAP amendment could legally be delegated to these non-IV-D caseworkers or charged to IV-D, then the amendment treating the IV-D program as benefitting jointly from the activities would not be approvable. Therefore, with this concern in mind, we issued questions to the parties prior to reaching our decision, in which we asked if New Jersey could identify any activities which would be captured by the RMS and which could legally be charged to IV-D. New Jersey was unable to do so. If no costs could legally be allocated under the CAP provision, it follows that the provision was properly disapproved. We also find no merit either in the claims that our conclusion was based on some misunderstanding of the role of the regulations or that our decision contained any self-contradiction as to the nature of intake activities.

1. The Board did not err in addressing the issues before it as necessary to resolve the dispute.

New Jersey alleged in its request that the dispute as presented in its notice of appeal hinged on a regulatory interpretation and that therefore it "wished to know exactly how they were interpreted by the Agency." Id. at 3. Specifically, New Jersey asserted that its notice of appeal asked the Board to ascertain from the federal agency, before allowing further briefing, whether the disapproval of New Jersey's amendment to its cost allocation plan (CAP) was based on reading regulations at 45 C.F.R. §§ 304.23(f) and 303.20(e) to mean that any methodology that allocates costs of any activity performed by non-IV-D caseworkers to the IV-D program is prohibited or whether the disapproval depended on whether the caseworkers performed specific functions under the title IV-D state plan which were non-delegable. The Board granted this request by instructing the federal agency to respond to the State's question. See Board Acknowledgment in Docket No. A-2000-53 (March 23, 2000). The agency responded plainly that "any activity" performed by caseworkers "renders the methodology unallowable." Letter from Assistant Regional Counsel David A. Rawson, dated April 26, 2000. New Jersey argued, among other contentions, that the regulations ought to be construed more narrowly to bar only allocating costs of such caseworkers when they are engaged in activities under the Title IV-D state plan. See N.J. Request for Reconsideration at 4-5.

New Jersey now complains that it believed that, finding the dispute in that posture, the Board was constrained to decide only a threshold question of whether charging costs of any and all activities performed by the relevant caseworkers to title IV-D automatically rendered the CAP unapprovable. Id. at 4. Only if the Board rejected this interpretation would the State move on "at some future date" to proving that the specific costs it was charging under the CAP were allocable and then only in the context of a disallowance specifying which IV-D state plan function was alleged to be improperly delegated. Id. at 5. Further, New Jersey asserts that the Board not only went beyond the proper issue, but also that the Board failed to resolve the one issue it should have addressed because the Final Decision did not conclusively adopt one of the competing interpretations of the scope of the bar on shifting of caseworker costs to title IV-D offered by the parties. Id.

First of all, we find no basis for New Jersey's premise that it was entitled to dictate a decision limited to the single legal question it now puts forward. At no time did New Jersey seek to bifurcate the proceedings before the Board in this matter. The dichotomy between an abstract pronouncement on the meaning of the regulations divorced from an assessment of whether the regulations as applied made the CAP unapprovable, that New Jersey claims to have expected, was never agreed to by the parties or sanctioned by the Board.

New Jersey further argues that the Board implied that it would uphold the State's position on the meaning of the regulations because the Final Decision stated that "more than one reasonable interpretation is possible." N.J. Request for Reconsideration at 5, quoting Final Decision at 13. However, to have prevailed in its position, New Jersey would have had to do more than offer an alternative reasonable interpretation. At a minimum, it would have to have shown that its regulatory interpretation would support approval of its CAP.

The difference between the two regulatory interpretations proffered lay in whether some activities of income maintenance caseworkers might benefit Title IV-D and yet not fall afoul of the bar against delegating to such caseworkers any activities falling under the Title IV-D state plan functions. The CAP could only be approvable if it would charge to Title IV-D only costs properly allocable to that program. The Board concluded that it need not make a declaratory judgment on (1) whether the regulations do permit some zone of allocable caseworker costs or bar every cost generated by income maintenance caseworker from assignment to IV-D or on (2) if the bar does extend only to delegation of activities under the IV-D state plan, what activities could theoretically fall in the permissible zone. Instead, the burden was on New Jersey to identify how the caseworker activities captured by the CAP as written could be seen as "benefitting" Title IV-D (so as to be potentially allocable) and yet not serve any function under the IV-D state plan (which would make them impermissible to allocate even under New Jersey's narrower regulatory meeting).

New Jersey was well aware that it bore this burden since the Board sent out questions to the parties in advance of its decision specifically focusing their attention on the decisive issues. Among those questions, the Board expressly asked New Jersey to explain (1) which tasks listed on the RMS might be claimed to benefit both title IV-D and another welfare program and (2) why any of those activities (which New Jersey identified as preliminary tasks, or generic activities, such as collecting client information, interviewing, explaining program requirements and entering information on a general application) would not constitute intake. Having failed to proffer a plausible explanation of how any of the identified activities benefitted Title IV-D outside of serving as part of the Title IV-D intake, delegation of which is clearly prohibited, New Jersey now simply wishes the Board would take this possibility for granted, approve its plan to allocate costs for all these activities to title IV-D proportionately, and force the agency to identify and disallow the individual cost items that would then be allocated.

We conclude that what was before us was not an abstract question of elucidating the regulation but a concrete question of whether the CAP illegally allocated costs to IV-D. We find no error in refusing to adopt New Jersey's preferred approach.

2. The Board did not err in explaining the function of the instant regulations to include avoidance of cost-shifting.

New Jersey suggests that the Board misunderstood the function of the regulations at issue, and that this resulted in the Board's mistaken reliance on the "underlying assumption" that the regulations functioned to limit cost-shifting from other welfare programs to title IV-D. N.J. Request for Reconsideration at 7-8. However, New Jersey offers nothing that contradicts the Board's discussion of the history and general effect of the regulations. Final Decision at 2-4.

New Jersey merely cites to the statutory requirement that any state plan under title IV-D must, among other things, "provide for the establishment or designation of a single and separate organizational unit, which meets such staffing and organizational requirements as the Secretary may be regulation prescribe, within the State to administer the plan." Section 454(3) of the Social Security Act. The regulations prohibiting delegation of any of the activities needed to administer the title IV-D program to caseworkers outside the distinct IV-D unit and thence the shifting of some of the costs of caseworkers of other units on to the title IV-D budget are entirely consistent with the statutory scheme, as we explained in the Final Decision.

In any case, the discussion of the general role of these regulatory provisions was explicitly provided to assist the reader's understanding, rather than an "underlying assumption" underpinning the Final Decision. The Final Decision rested on New Jersey's failure to identify any potentially allocable costs that would be captured by its proposed CAP methodology of charging certain costs of activities by caseworkers outside the IV-D unit to title IV-D. The CAP improperly charged costs to title IV-D and therefore was unapprovable. Final Decision at 17.

We conclude that New Jersey failed to show any clear error of law.

3. The Board did not contradict itself in identifying the claimed costs under the RMS as generated by intake activities not reimbursable by title IV-D.

Even New Jersey recognized that no activities serving functions under the IV-D state plan may be performed by caseworkers who also do income maintenance and social services activities, and hence such costs may not be charged to IV-D. Intake is one of the listed state plan functions. The Board agreed with DCA that the caseworker activities described by New Jersey as generic were aspects of intake. Final Decision at 17. New Jersey now asserts that this conclusion is contradicted by the statement on the following page that "intake reimbursable under title IV-D begins only when the IV-D agency staff begin intake for a new child support case . . . ."

We find no contradiction. The only intake activities which may be charged to title IV-D are those performed by IV-D agency staff. Intake activities performed by caseworkers who do income maintenance and social services may not be charged to title IV-D, even if those activities have ancillary benefits for title IV-D. All caseworker activities which would be charged to title IV-D under the RMS, based on New Jersey's explanations of their nature, are intake activities performed by income maintenance caseworkers and are therefore not "intake reimbursable under title IV-D."

Conclusion

We find no material error of law or fact in the Final decision among the allegations made by New Jersey. We therefore deny the request for reconsideration.

Donald F. Garrett

M. Terry Johnson

Marc R. Hillson
Presiding Board Member

1. Since we conclude that no reconsideration of our Final Decision is warranted, nothing set out here in summarizing or explaining that decision should be interpreted as modifying the decision as issued. The legal and factual background are set out in detail in the Final Decision and are referenced here only as relevant to resolve the allegations raised.