Appendix — Department of Human Resources v. Califano

Supreme Court brief1978

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APPENDIX C}

IN THE

MICHAEL RODAK, JR., CLERK

SUPREME COURT OF THE UNITED STATES

October Term, 1977

wo 2771181

Department of Human Resources

(formerly State Department of Public Welfare)

of the State of Texas,

Petitioner

=

Joseph A. Califano, Jr.,

Secretary of Health, Education and Welfare,

and

Michael Blumenthal,

Secretary of the Treasury,

Respondents

PETITION FOR A WRIT OF CERTIORARI TO

THE UNITED STATES COURT OF APPEALS

FOR THE FIFTH CIRCUIT

John L. Hill

.. Attorney General of Texas

David M. Kendall

First Assistant Attorney General

of Texas

Frank C. Cooksey

(Acting as Special Assistant

Attorney General)

Swift and Swift, P.C.

1444 American Bank Tower

Austin, Texas 78701

Attorneys for the Petitioner

APPENDIX C

§ 302. State old-age and medical assistance

plans—Contents

(a) A State plan for old-age assistance, or for

medical assistance for the aged, or for old-age assistance

and medical assistance for the aged must—

(1) provide that it shall be in effect in all political

subdivisions of the State, and, if administered by them,

be mandatory upon them;

(2) provide for financial participation by the State;

(3) either provide for the establishment or

designation of a single State agency to administer the

plan, or provide for the establishment or designation of a

single State agency to supervise the administration of

the plan;

(4) provide for granting an opportunity for a fair

hearing before the State agency to any individual whose

claim for assistance under the plan is denied or is not

acted upon with reasonable promptness;

(5) provide (A) such methods of administration

(including methods relating to the establishment and

maintenance of personnel standards on a merit basis,

except that the Secretary shall exercise no authority

with respect to the selection, tenure of office, and

compensation of any individual employed in accordance

with such methods) as are found by the Secretary to be

necessary for the proper and efficient operation of the

plan, and (B) for the training and effective use of paid

subprofessional staff, with particular emphasis on the

full-time or part-time employment of recipients and

other persons of low income, as community service

aides, in the administration of the plan and for the use of

nonpaid or partially paid volunteers in a social service

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volunteer program in providing services to applicants

and recipients and in assisting any advisory committees

established by the State agency;

(6) provide that the State agency will make such

reports, in such form and containing such information,

as the Secretary may from time to time require, and

comply with such provisions as the Secretary may from

time to time find necessary to assure the correctness and

verification of such reports;

(7) provide safeguards which restrict the use or

disclosure of information concerning applicants and

recipients to purposes directly connected with the

administration of the State plan;

(8) provide that all individuals wishing to make

application for assistance under the plan shall have

opportunity to do so, and that such assistance shall be

furnished with reasonable promptness to all eligible

individuals;

(9) provide, if the plan includes assistance for or on

behalf of individuals in private or public institutions, for

the establishment or designation of a State authority or

authorities which shall be responsible for establishing

and maintaining standards for such institutions;

(10) if the State plan includes old-age assistance—

(A) provide that the State agency shall, in

determining need for such assistance, take into

consideration any other income and resources of an

individual claiming old-age assistance, as well as

any expenses reasonably attributable to the earning

of any such income; except that, in making such

determination, (i) the State agency may disregard

not more than $7.50 per month of any income and

(ii) of the first $80 per month of additional income

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which is earned the State agency may disregard not

more than the first $20 thereof plus one-half of the

remainder;

(B) include reasonable standards, consistent

with the objectives of this subchapter, for

determining eligibility for and the extent of such

assistance; and

(C) provide a description of the services (if any)

which the State agency makes available to

applicants for and recipients of such assistance to

help them attain self-care including a description of

the steps taken to assure, in the provision of such

services, maximum utilization of other agencies

providing similar or related services;

(11) ifthe State plan includes medical assistance for

the aged—

(A) provide for inclusion of some institutional

and some noninstitutional care and services;

(B) provide that no enrollment fee, premium, or

similar charge will be imposed as a condition of any

individual’s eligibility for medical assistance for

the aged under the rlan;

(C) provide for inclusion, to the extent required

by regulations prescribed by the Secretary, of

provisions (conforming to such regulations) with

respect to the furnishing of such assistance to

individuals who are residents of the State but are

absent therefrom;

(D) include reasonable standards, consistent

with the objectives of this subchapter, for

determining eligibility for and the extent of such

assistance; and

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(E) provide that no lien may be imposed against

the property of any individual prior to his death on

account of medical assistance for the aged paid or to

be paid on his behalf under the plan (except

pursuant to the judgment of a court on account of

benefits incorrectly paid on behalf of such

individual), and that there shall be no adjustment or

recovery (except, after the death of such individual

and his surviving spouse, if any, from such

individual’s estate) of any medical assistance for the

aged correctly paid on behalf of such individual

under the plan;

(12) if the State plan includes assistance to or in

behalf of individuals who are patients in institutions for

mental diseases—

(A) provide for having in effect such agree-

ments or other arrangements with State authorities

concerned with mental diseases, and, where

appropriate, with such institutions, as may be

necessary for carrying out the State plan, including

arrangements for joint planning and for

development of alternate methods of care,

arrangements providing assurance of immediate

readmittance to institutions where needed for

individuals under alternate plans of care, and

arrangements providing for access to patients and

facilities, for furnishing information, and for

making reports;

(B) provide for an individual plan for each such

patient to assure that the institutional care

provided to him is in his best interests, including, to

that end, assurances that there will be initial and

periodic review of his medical and other needs, that

he will be given appropriate medical treatment

within the institution, and that there will be a

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perodic determination of his need for continued

treatment in the institution;

(C) provide for the development of alternate

plans of care, making maximum utilization of

available resources, for recipients who would

otherwise need care in such institutions, including

appropriate medical treatment and other

assistance; for services referred to in section 303(a)

(4) (A) (i) and (ii) of this title which are appropriate

for such recipients and for such patients; and for

methods of administration necessary to assure that

the responsibilities of the State agency under the

State plan with respect to such recipients and such

patients will be effectively carried out; and

(D) provide methods of determining the

reasonable cost of institutional care for such

patients; and

(13) if the State plan includes assistance to or in

behalf of patients in public institutions for mental

diseases, show that the State is making satisfactory

progress toward developing and implementing a

comprehensive mental health program, including

provision for utilization of community mental health

centers, nursing homes, and other alternatives to care in

public institutions for mental diseases.

Approval by Secretary

(b) The Secretary shall approve any plan which

fulfills the conditions specified in subsection (a) of this

section, except that he shall not approve any plan which

imposes, as a condition of eligibility for assistance under

the plan—

(1) an age requirement of more than sixty-five

years; or

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(2) any residence requirement which (A) in the

case of applicants for old-age assistance, excludes

any resident of the State who has resided therein

five years during the nine years immediate'v

preceding the application for old-age assistance and

has resided therein continuously for one year

immediately preceding the application, and (B) in

the case of applicants for medical assistance for the

aged, excludes any individual who resides in the

State; or

(3) any citizenship requirement which excludes

any citizen of the United States.

§ 303. Payments to States; computation of

amounts; quarterly expenditures to

exceed average of total expenditures for

each quarter of fiscal year ending June

30, 1965

(a) From the sums appropriated therefor, the

Secretary of the Treasury shall pay to each State which

has a plan approved under this subchapter, for each

quarter, beginning with the quarter commencing

October 1, 1960—

(1) in the case of any State other than Puerto Rico,

the Virgin Islands, and Guam, an amount equal to

the sum of the following proportions of the total

amounts expended during each month of such

quarter as old-age assistance under the State plan

(including expenditures for premiums under part

B of subchapter XVIII of this chapter for

individuals who are recipients of money payments

under such plan and other insurance premiums for

medical or any other type of remedial care or the

cost thereof)—

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(A) 31/37 of such expenditures, not

counting so much of any expenditure with

respect to such month as exceeds the product of

$37 multiplied by the total number of

recipients of old-age assistance for such month

(which total number, for purposes of this

subsection, means (i) the number of individuals

who received old-age assistance in the form of

money payments for such month, plus (ii) the

number of other individuals with respect to

whom expenditures were made in such month

as old-age assistance in the form of medical or

any other type of remedial care); plus

(3) the larger of the following:

(i) (1) the Federal percentage (as

defined in section 1301(a) (8) of this title) of

the amount by which such expenditures

exceed the amount which may be counted

under clause (A), not counting so much of

such excess with respect to such month as

exceeds the product of $38 multiplied by

the total number of recipients of old-age

assistance for such month, plus (II) 15 per

centum of the total expended during such

month as old-age assistance under the

State plan in the form of medical or any

other type of remedial care, not counting so

much of such expenditure with respect to

such month as exceeds the product of $15

multiplied by the total number of

recipients of old-age assistance for such

month, or

(ii) (I) the Federal medical percentage

(as defined in section 306(c) of this title) of

the amount by which such expenditures

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exceed the maximum which may be

counted under clause (A), not counting so

much of any expenditures with respect to

such month as exceeds (a) the product of

$52 multiplied by the total number of such

recipients of old-age assistance for such

month, or (b) if smaller, the total expended

as old-age assistance in the form of medical

or any other type of remedial care with

respect to such month plus the product of

$37 multiplied by such total number of

such recipients, plus (II) the Federal

percentage of the amount by which the

total expended during such month as old-

age assistance under the State plan

exceeds the amount which may be counted

under clause (A) and the preceding

provisions of this clause (B) (ii), not

counting so much of such excess with

respect to such month as exceeds the

product of $38 multiplied by the total

number of such recipients of old-age

assistance for such month;

(2) inthe case of Puerto Rico, the Virgin Islands,

and Guam, an amount equal to—

(A) one-half of the total of the sums

expended during such quarter as old-age assis-

tance under the State plan (including expendi-

tures for premiums under Part B of subchapter

XVIII of this chapter for individuals who are

recipients of money payments under such plan

and other insurance premiums for medical or

any other type of remedial care or the cost

thereof), not counting so much of any

expenditure with respect to any month as

exceeds $37.50 multiplied by the total number

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of recipients of old-age assistance for such

month; plus

(B) the larger of the following amounts: (i)

one-half of the amount by which such

expenditures exceed the maximum which may

be counted under clause (A), not counting so

much of any expenditure with respect to any

month as exceeds (I) the product of $45

multiplied by the total number of such

recipients of old-age assistance for such month,

or (II) if smaller, the total expended as old-age

assistance in the form of medical or any other

type of remedial care with respect to such

month plus the product of $37.50 multiplied by

the total number of such recipients, or (ii) 15

per centum of the total of the sums expended

during such quarter as old-age assistance

under the State plan in the form of medical or

any other type of remedial care, not counting so

much of any expenditure with respect to any

month as exceeds the product of $7.50

multiplied by the total number of such

recipients of old-age assistance for such month;

(3) in the case of any State, an amount equal to

the Federal medical percentage (as defined in

section 306(c) of this title) of the total amounts

expended during such quarter as medical

assistance for the aged under the State plan

(including expenditures for insurance premiums

for medical or any other type of remedial care or the

cost thereof); and

(4) in the case of any State whose State plan

approved under section 302 of this title meets the

requirements of subsection (c) (1) of this section, an

amount equal to the sum of the—following

proportions of the total amounts expended during

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(B) one-half of so much of such

expenditures (not included under

subparagraph (A) ) as are for services provided

such quarter as found necessary by the Secretary of

Health, Education, and Welfare for the proper and

efficient administration of the State plan—

(A) 75 per centum of so much of such

expenditures are for—

(i) services which are _ prescribed

pursuant to subsection (c) (1) of this section

and are provided (in accordance with the

next sentence) to applicants for or

recipients of assistance under the plan to

help them attain or retain capability for

self-care, or

(ii) other services, specified by the

Secretary as likely to prevent or reduce

dependency, so provided to such applicants

or recipients, or

(iii) any of the services prescribed

pursuant to subsection (c)(1) of this section,

and of the services specified as provided in

clause (ii), which the Secretary may specify

as appropriate for individuals who, within

such period or periods as the Secretary

may prescribe, have been or are likely to

become applicants for or recipients of

assistance under the plan, if such services

are requested by such individuals and are

provided to such individuals in accordance

with the next sentence, or

(iv) the training of personnel employed

or preparing for employment by the State

agency or by the local agency

administering the plan in the political

subdivision; plus

(in accordance with the next sentence) to

applicants for or recipients of assistance under

the plan, and to individuals requesting such

services who (within such period or periods as

the Secretary may prescribe) nave been or are

likely to become applicants for or recipients of

such assistance; plus

(C) one-half of the remainder of such

expenditures.

The services referred to in subparagraphs (A) and

(B) shall, except to the extent specified by the

Secretary, include only—

(D) services provided by the staff of the

State agency, or of the local agency

administering the State plan in the political

subdivision: Provided, That no funds

authorized under this subchapter shall be

available for services defined as vocational

rehabilitation services under the Vocational

Rehabilitation Act (i) which are available to

individuals in need of them under programs for

their rehabilitation carried on under a State

plan approved under such Act, or (ii) which the

State agency or agencies administering or

supervising the administration of the State

plan approved under such Act are able and

willing to provide if reimbursed for the cost

thereof pursuant to agreement under

subparagraph (E), if provided by such staff,

and

(E) subject to limitations prescribed by the

Secretary, services which in the judgment of

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he State agency cannot be as economically or

2 frre a provided by the staff of such State

or local agency and are not otherwise

reasonably available to individuals in need of

them, and which are provided, pursuant to

agreement with the State agency, by the State

health authority or the State agency or agencies

administering or supervising the

administration of the State plan for vocational

rehabilitation services approved under the

Vocational Rehabilitation Act or by any other

State agency which the Secretary may

determine to be appropriate (whether provided

by its staff or by contract with public (local) or

nonprofit private agencies);

except that services described in clause (it) of

subparagraph (D) hereof may be provided only

pursuant to agreement with such State agency or

agencies administering or supervising the

administration of the State plan for vocational

rehabilitation services so approved. The portion of

the amount expended for administration of the

State plan to which subparagraph (A) applies and

the portion thereof to which subparagraphs (B) and

(C) apply shall be determined in accordance with

such methods and procedures as may be permitted

by the Secretary; and

(5) in the case of any State whose State plan

approved under section 302 of this title does not

meet the requirements of subsection (c) (1) of this

section, an amount equal to one-half of the total of

the sums expended during such quarter as found

necessary by the Secretary for the proper and

efficient administration of the State plan, including

services referred to in paragraph (4) and provided

in accordance with the provisions of such

paragraph.

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(b) The method of computing and paying such

amounts shall be as follows:

(1) The Secretary of Health, Education, and

Welfare shall, prior to the beginning of each

quarter, estimate the amount to be paid to the State

for such quarter under the provisions of subsection

(a) of this section, such estimate to be based on (A) a

report filed by the State containing its estimate of

the total sum to be expended in such quarter in

accordance with the provisions of such subsection,

and stating the amount appropriated or made

available by the State and its political subdivisions

for such expenditures in such quarter, and if such

amount is less than the State’s proportionate share

of the total sum of such estimated expenditures, the

source or sources from which the difference is

expected to be derived, (B) records showing the

number of aged individuals in the State, and (C)

such other investigation as the Secretary may find

necessary.

(2) The Secretary of Health, Education, and

Welfare shall then certify to the Secretary of the

Treasury the amount so estimated by the Secretary

of Health, Education, and Welfare, (A) reduced or

increased, as the case may be, by any sum by which

it finds that its estimate for any prior quarter was

greater or less than the amount which should have

been paid to the State under subsection (a) of this

section for such quarter, and (B) reduced by asum

equivalent to the pro rata share to which the United

States is equitably entitled, as determined by the

Secretary of Health, Education, and Welfare, of the

net amount recovered during any prior quarter by

the State or any political subdivision thereof with

respect to assistance furnished under the State

plan; except that such increases or reductions shall

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not be made to the extent that such sums have been

applied to make the amount certified for any prior

quarter greater or less than the amount estimated

by the Secretary for such prior quarter: Provided,

That any part of the amount recovered from the

estate of a deceased recipient which is not in excess

of the amount expended by the State or any political

subdivision thereof for the funeral expenses of the

deceased shall not be considered as a basis for

reduction under clause (B) of this paragraph.

(3) The Secretary of the Treasury shall

thereupon, through the Fiscal Service of the

Treasury Department and prior to audit or

settlement by the General Accounting Office, pay to

the State, at the time or times fixed by the Secretary

of Health, Education, and Welfare, the amount so

certified.

(c) (1) In order for a State to qualify for payments

under paragraph (4) of subsection (a) of this section, its

State plan approved under section 302 of this title must

provide that the State agency shall make available to

applicants for or recipients of old-age assistance under

such State plan at least those services to help them

attain or retain capability for self-care which are

prescribed by the Secretary.

(2) Inthe case of any State whose State plan included

a provision meeting the requirements of paragraph (1),

but with respect to which the Secretary finds, after

reasonable notice and opportunity for hearing to the

State agency administering or supervising the

administration of such plan, that—

(A) the provision has been so changed that it no

longer complies with the requirements of

paragraph (1), or

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(B) in the administration of the plan there is a

failure to comply substantially with such provision,

the Secretary shall notify such State agency that further

payments will not be made to the State under paragraph

(4) of subsection (a) of this section until he is satisfied

that there will no longer be any such failure to comply.

Until the Secretary is so satisfied further payments

with respect to the administration of such State plan

shall not be made under paragraph (4) of subsection (a)

of this section but shall instead be made, subject to the

other provisions of this subchapter, under paragraph (5)

of such subsection.

(d) Notwithstanding the preceding provisions of this

section, the amount determined under such provisions

for any State for any quarter which is attributable to

expenditures with respect to patients in institutions for

mental diseases shall be paid only to the extent that the

State makes a showing satisfactory to the Secretary that

total expenditures in the State from Federal, State, and

local sources for mental health services (including

payments to or in behalf of individuals with mental

health problems) under State and local public health

and public welfare programs for such quarter exceed

the average of the total expenditures in the State from

such sources for such services under such programs for

each quarter of the fiscal year ending June 30, 1965. For

purposes of this subsection, expenditures for such

services for each quarter in the fiscal year ending June

30, 1965, in the case of any State shall be determined on

the basis of the latest data, satisfactory to the Secretary,

available to him at the time of the first determination by

him under this subsection for such State; and

expenditures for such services for any quarter

beginning after December 31, 1965, in the case of any

State shall be determined on the basis of the latest data,

satisfactory to the Secretary, available to him at the

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time of the determination under this subsection for such

State for such quarter; and determinations so made

shall be conclusive for purposes of this subsection.

§ 304. Stopping payment on deviation from

required provisions of plan or failure to

comply therewith

In the case of any State plan which has been approved

under this subchapter by the Secretary of Health,

Education, and Welfare, if the Secretary, after

reasonable notice and opportunity for hearing to the

State agency administering or supervising the

administration of such plan, finds—

(1) that the plan has been so changed as to

impose any age, residence, or citizenship

requirement prohibited by section 302 (b) of this

title, or that in the administration of the plan any

such prohibited requirement is imposed, with the

knowledge of such State agency, in a substantial

number of cases; or

(2) that in the administration ofthe plan there is

a failure to comply substantially with any provision

required by section 302 (a) of this title to be included

in the plan;

the Secretary of Health, Education, and Welfare shall

notify such State agency that further payments will not

be made to the State (or, in his discretion, that payments

will be limited to categories under or parts of the State

plan not affected by such failure) until the Secretary is

satisfied that such prohibited requirement is no longer

so imposed, and that there is no longer any such failure

to comply. Until he is so satisfied he shall make no fur-

ther payments to such State (or shall limit payments to

categories under or parts of the State plan not affected

by such failure).

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§ 1202. State plans for aid to blind

(a) A State plan for aid to the blind must (1) provide

that it shall be in effect in all political subdivisions of the

State, and, if administered by them, be mandatory upon

them; (2) provide for financal participation by the State;

(3) either provide for the establishment or designation of

a single State agency to administer the plan, or provide

for the establishment or designation of a single State

agency to supervise the administration of the plan; (4)

provide for granting an opportunity for a fair hearing

before the State agency to any individual whose claim

for aid to the blind is denied or is not acted upon with

reasonable promptness; (5) provide (A) such methods of

administration (including after January 1, 1940,

methods relating to the establishment and maintenance

of personnel standards on a merit basis, except that the

Secretary shall exercise no authority with respect to the

selection, tenure of office, and compensation of any

individual employed in accordance with such methods)

as are found by the Secretary to be necessary for the

proper and efficient operation of the plan, and (B) for the

training and effective use of paid sub-professional staff,

with particular emphasis on the full-time or part-time

employment of recipients and other persons of low-

income, as community service aids, in the

administration of the plan and for the use of nonpaid or

partially paid volunteers in a social service volunteer

program in providing services to applicants and

recipients and in assisting any advisory committees

established by the State agency; (6) provide that the

State agency will make such reports, in such form and

containing such information, as the Secretary may from

time to time require, and comply with such provisions as

the Secretary may from time to time find necessary to

assure the correctness and verification of such reports;

(7) provide that no aid will be furnished any individual

under the plan with respect to any period with respect to

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which he is receiving old-age assistance under the State

plan approved under section 302 of this title or aid to

families with dependent children under the State plan

approved under section 602 of this title; (8) provide that

the State agency shall, in determining need, take into

consideration any other income and resources of the

individual claiming aid to the blind, as well as any

expenses reasonably attributable to the earning of any

such income, except that, in making such

determination, the State agency (A) shall disregard the

first $85 per month of earned income, plus one-half of

earned income in excess of $85 per month, (B) shall, for a

period not in excess of twelve months, and may, for a

period not in excess of thirty-six months, disregard such

additional amounts of other income and resources, in the

case of an individual who has a plan for achieving self-

support approved by the State agency, as may be

necessary for the fulfillment of such plan, and (C) may,

before disregarding the amounts referred to in clauses

(A) and (B), disregard not more than $7.50 of any

income; (9) provide safeguards which restrict the use or

disclosure of information concerning applicants and

recipients to purposes directly connected with the

administration of aid to the blind; (10) provide that, in

determining whether an individual is blind, there shall

be an examination by a physician skilled in diseases of

the eye or by an optometrist, whichever the individual

may select; (11) effective July 1, 1951, provide that all

individuals wishing to make application for aid to the

blind shall have opportunity to do so, and that aid to the

blind shall be furnished with reasonable promptness to

all eligible individuals; (12) effective July 1, 1953,

provide, if the plan includes payments to individuals in

private or public institutions, for the establishment or

designation of a State authority or authorities which

shall be responsible for establishing and maintaining

standards for such institutions; and (13) provide a

description of the services (if any) which the State

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agency makes available to applicants for and recipients

of aid to the blind to help them attain self-support or self-

care, including a description of the steps taken to assure,

in the provision of such services, maximum utilization of

other agencies providing similar or related services.

(b) The Secretary shall approve any plan which

fulfills the conditions specified in subsection (a) of this

section, except that he shall not approve any plan which

imposes, as a condition of eligibility for aid to the blind

under the Plan---

(1) Any residence requirement which excludes

any resident of the State who has resided therein

five years during the nine years immediately

preceding the application for aid and has resided

therein continuously for one year immediately

preceding the application; or

(2) Any citizenship requirement which

excludes any citizen of the United States.

In the case of any State (other than Puerto Rico and the

Virgin Islands) which did not have on January 1, 1949, a

State plan for aid to the blind approved under this

subchapter, the Secretary shall approve a plan of such

State for aid to the blind for purposes of this subchapter,

even though it does not meet the requirements of clause

(8) of subsection (a) of this section, if it meets all other

requirements of this subchapter for an approved plan

for aid to the blind; but payments under section 1203 of

this title shall be made, in the case of any such plan, only

with respect to expenditures thereunder which would

be included as expenditures for the purposes of section

1203 of this title under a plan approved under this

section without regard to the provisions of this sentence.

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§ 1203. Payment to States; computation of

amounts

(a) From the sums appropriated therefor, the

Secretary of the Treasury shall pay to each State which

has an approved plan for aid to the blind, for each

quarter, beginning with the quarter commencing

October 1, 1958—

(1) in the case of any State other than Puerto

Rico, the Virgin Islands, and Guam, an amount

equal to the sum of the following proportions of the

total amounts expended during such quarter as aid

to the blind under the State plan (including

expenditures for premiums under part B of

subchapter XVIII of this chapter for individuals

who are recipients of money payments under such

plan and other insurance premiums for medical cr

any other type of remedial care or the cost

thereof)—

(A) 31/37 of such expenditures, not counting

so much of any expenditure with respect to any

month as exceeds the product of $37 multiplied

by the total number of recipients of aid to the

blind for such month (which total number, for

purposes of this subsection, means (i) the

number of individuals who received aid to the

blind in the form of money payments for such

month, plus (ii) the number of other individuals

with respect to whom expenditures were made

in such month as aid to the blind in the form of

medical or any other type or remedial care);

plus

(B) the Federal percentage of the amount

by which such expenditures exceed the

maximum which may be counted under clause

(A), not counting so much of any expenditure

- ORME He

C-21

with respect to any month as exceeds the

product of $75 multiplied by the total number

of such recipients of aid to the blind for such

month; and

(2) inthe caseof Puerto Rico, the Virgin Islands,

and Guam, an amount equal to one-half of the total

of the sums expended during such quarter as aid to

the blind under the State plan (including

expenditures for premiums under part B of

subchapter XVIII of this chapter for individuals

who are recipients of money payments under such

plan and other insurance premiums for medical or

any other type of remedial care or the cost thereof),

not counting so much of any expenditure with

respect to any month as exceeds $37.50 multiplied

by the total number of recipients of aid to the blind

for such month; and

(3) in the case of any State whose State plan

approved under section 1202 of this title meets the

requirements of subsection (c) (1) of this section, an

amount equal to the sum of the following

proportions of the total amounts expended during

such quarter as found necessary by the Secretary of

Health, Education, and Welfare for the proper and

efficient administration of the State plan—

(A) 75 per centum of so much of such

expenditures as are for—

(i) services which are prescribed pur-

suant to subsection (c) (1) of this section and

are provided (in accordance with the next

sentence) to applicants for or recipients of

aid to the blind to help them attain or retain

capability for self-support or self-care, or

(ii) other services, specified by the

Secretary as likely to prevent or reduce

C-22

dependency, so provided tosuch applicants

or recipients, or

(iii) any of the services prescribed

pursuant to subsection (c) (1) of this section,

and of the services specified as provided in

clause (ii), which the Secretary may specify

as appropriate for individuals who, within

such period or periods as the Secretary

may prescribe, have been or are likely to

become applicants for or recipients of aid

to the blind, if such services are requested

by such individuals and are provided to

such individuals in accordance with the

next sentence, or

(iv) the training of personnel employed

or preparing for employment by the State

agency or by the local agency

administering the plan in the political

subdivision; plus

(B) one-half of so much of such

expenditures (not included under

subparagraph (A) ) as are for services provided

(in accordance with the next sentence) to

applicants for or recipients of aid to the blind,

and to individuals requesting such services who

(within such period or periods as the Secretary

may prescribe) have been or are likely to

become applicants for or recipients of such aid;

plus

(C) one-half of the remainder of such

expenditures.

C-23

(D) services provided by the staff of the

State agency, or of the local agency

administering the State plan in the political

subdivision: Provided, That no funds

authorized under this subchapter shall be

available for services defined as vocational

rehabilitation services under the Vocational

Rehabilitation Act (i) which are available to

individuals in need of them under programs for

their rehabilitation carried on under a State

plan approved under such Act, or (ii) which the

State agency or agencies administering or

supervising the administration of the State

plan approved under such Act are able and

willing to provide if reimbursed for the cost

thereof pursuant to agreement under

subparagraph (E), if provided by such staff,

and

(E) subject to limitations prescribed by the

Secretary, services which in the judgment of

the State agency cannot be as economically or

as effectively provided by the staff of such State

or local agency and are not otherwise

reasonably available to individuals in need of

them, \jand which are provided, pursuant to

agreement with the State agency, by the State

health authority or the State agency or agencies

istering or supervising the

administration of the Siate plan for vocational

rehabilitation services approved under the

Vocational Rehabilitation Act or by any other

State agency which the Secreiary may

determine to be appropriate (whether provided

by its staff or by contract with public (local) or

The services referred to in subparagraphs (A) and nonprofit private agencies);

(B) shall, except to the extent specified by the ; se

Secretary, include only— except that services described in clause (ii) of

subparagraph (D) hereof may be provided only

C-24

pursuant to agreement with such State agency or

agencies administering or supervising the

administration of the State plan for vocational

rehabilitation services so approved. The portion of

the amount expended for administration of the

State plan to which subparagraph (A) applies and

the portion thereof to which subparagraphs (B) and

(C) apply shall be determined in accordance with

such methods and procedures as may be permitted

by the Secretary; and

(4) in the case of any State whose State plan

approved under section 1202 of this title does not

meet the requirements of subsection (c) (1) of this

section, an amount equal to one-half of the total of

the sums expended during such quarter as found

necessary by the Secretary for the proper and

efficient administration of the State plan, including

services referred to in paragraph (3) and provided

in accordance with the provisions of such

paragraph.

(b) The method of computing and paying such

amounts shall be as follows:

(1) The Secretary of Health, Education, and

Welfare shall, prior to the beginning of each

quarter, estimate the amount to be paid to the State

for such quarter under the provisions of subsection

(a) of this section, such estimate to be based on (A) a

report filed by the State containing its estimate of

the total sum to be expended in such quarter in

accordance with the provisions of such subsection,

and stating the amount appropriated or made

available by the State and its political subdivisions

for such expenditures in such quarter, and if such

amount is less than the State’s proportionate share

of the total sum of such estimated expenditures, the

source or sources from which the difference is

Tt te

C-25

expected to be derived, (B) records showing the

number of blind individuals in the State, and (C)

such other investigation as the Secretary may find

necessary.

(2) The Secretary of Health, Education, and

Welfare shall then certify to the Secretary of the

Treasury the amount so estimated by the Secretary

of Health, Education, and Welfare, (A) reduced or

increased, as the case may be, by any sum by which

he finds that his estimate for any prior quarter was

greater or less than the amount which should have

been paid to the State under subsection (a) of this

section for such quarter, and (B) reduced by a sum

equivalent to the pro rata share to which the United

States is equitably entitled, as determined by the

Secretary of Health, Education, and Welfare, of the

net amount recovered during a prior quarter by the

State or any political subdivision thereof with

respect to aid to the blind furnished under the State

plan; except that such increases or reductions shall

not be made to the extent that such sums have been

applied to make the amount certified for any prior

quarter greater or less than the amount estimated

by the Secretary of Health, Education, and Welfare

for such prior quarter: Provided, That any part of

the amount recovered from the estate of a deceased

recipient which is not in excess of the amount

expended by the State or any political subdivision

thereof for the funeral expenses of the deceased

shall not be considered as a basis for reduction

under clause (B) of this paragraph.

(3) The Secretary of the Treasury shall there-

upon, through the Fiscal Service of the Treasury

Department, and prior to audit or settlement by the

General Accounting Office, pay to the State, at the

time or times fixed by the Secretary of Health,

Education, and Welfare, the amount so certified.

C-26

(c) (1) In order for a State to qualify for payments

under paragraph (3) of subsection (a) of this section, its

State plan approved under section 1202 of this title must

provide that the State agency shall make available to

applicants for or recipients of aid to the blind at least

those services to help them attain or retain capability for

self-support or self-care which are prescribed by the

Secretary.

(2) Inthecaseofany State whose State plan included

a provision meeting the requirements of paragraph (1),

but with respect to which the Secretary finds, after

reasonable notice and opportunity for hearing to the

State agency administering or supervising the

administration of such plan, that—

(A) the provision has been so changed that it no

longer complies with the requirements of

paragraph (1), or

(B) in the administration of the plan there is a

failure to comply substantially with such provision,

the Secretary shall notify such State agency that further

payments will not be made to the State under paragraph

(3) of subsection (a) of this section until he is satisfied

that there will no longer be any such failure to comply.

Until the Secretary is so satisfied further payments

with respect to the administration of such State plan

shall not be made under paragraph (3) of subsection (a)

of this section but shall instead be made, subject to the

other provisions of this subchapier, under paragraph (4)

of such subsection.

§ 1204. Operation of State plans

In the case of any State plan for aid to the blind which

has been approved by the Secretary of Health,

Education, and Welfare, if the Secretary, after

reasonable notice and opportunity for hearing to the

C-27

State agency administering or supervising the

administration of such plan, finds—

(1) that the plan has been so changed as to

impose any residence or citizenship requirement

prohibited by section 1202 (b) of this title, or that in

the administration of the plan any such prohibited

requirement is imposed, with the knowledge of such

State agency, in a substantial number of cases; or

(2) that in the administration of the plan there is

a failure to comply substantially with any provision

required by section 1202 of this title to be included

in the plan;

the Secretary shall notify such State agency that further

payments will not be made to the State (or, in his

discretion, that payments will be limited to categories

under or parts of the State plan not affected by such

failure) until the Secretary is satisfied that such

prohibited requirement is no longer so imposed, and

that there is no longer any such failure to comply. Until

he is so satisfied he shall make no further payments to

such State (or shall limit payments to categories under

or parts of the State plan not affected by such failure.)

§ 1352. State plans for aid tothe permanently and

totally disabled

(a) A State plan for aid to the permanently and

totally disabled must (1) provide that it shall be in effect

in all political subdivisions of the State, and, if

administered by them, be mandatory upon them; (2)

provide for financial participation by the State; (3)

either provide for the establishment or designation of a

single State agency to administer the plan, or provide

for the establishment or designation of a single State

C-28

agency to supervise the administration of the plan; (4)

provide for granting an opportunity for a fair hearing

before the State agency to any individual whose claim

for aid to the permanently and totally disabled is denied

or is not acted upon with reasonable promptness; (5)

provide (A) such methods of administration (including

methods relating to the establishment and maintenance

of personnel standards on a merit basis except that the

Secretary shall exercise no authority with respect to the

selection, tenure of office, and compensation of any

individual employed in accordance with such methods)

as are found by the Secretary to be necessary for the

proper and efficient operation of the plan, and (B) for the

training and effective use of paid subprofessional staff,

with particular emphasis on the full-time or part-time

employment or recipients and other persons of low

income, aS community service aides, in the

administration of the plan and for the use of nonpaid or

partially paid volunteers in a social service volunteer

program in providing services to applicants and

recipients and in assisting any advisory committees

established by the State agency; (6) provide that the

State agency will make such reports, in such form and

containing such information, as the Secretary may from

time to time require, and comply with such provisions as

the Secretary may from time to time find necessary to

assure the correctness and verification of such reports;

(7) provide that no aid will be furnished any individual

under the plan with respect to any period with respect to

which he is receiving old-age assistance uncer the State

plan approved under section 302 of this title, aid to

families with dependent children under the State plan

approved under section 602 of this title, or aid to the

blind under the State plan approved under section 1202

of this title; (8) provide that the State agency shall, in

determining need, take into consideration any other

——

C-29

income and resources of an individual claiming aid to

the permanently and totally disabled, as well as any

expenses reasonably attributable to the earning of any

such income; except that, in making such

determination, (A) the State agency may disregard not

more than $7.50 of any income, (B) of the first $80 per

month of additional income which is earned the State

agency may disregard not more than the first $20

thereof plus one-half of the remainder, and (C) the State

agency may, for a period not in excess of 36 months,

disregard such additional amounts of other income and

resources, in the case of an individual who hasa plan for

achieving self-support approved by the State agency, as

may be necessary for the fulfillment of such plan, but

only with respect to the part or parts of such period

during substantially all of which he is actually

undergoing vocational rehabilitation; (9) provide

safeguards which restrict the use or disclosure of

information concerning applicants and recipients to

purposes directly connected with the administration of

aid to the permanently and totally disabled; (10) provide

that all individuals wishing to make application for aid

to the permanently and totaily disabled shall have

opportunity to doso, and that aid tothe permanently and

totally disabled shall be furnished with reasonable

promptness to all eligible individuals; (11) effective July

1, 1953, provide, if the plan includes payments to

individuals in private or public institutions, for the

establishment or designation of a State authority or

authorities which shall be responsible for establishing

and maintaining standards for such institutions; and

(12) provide a description of the services (if any) which

the State agency makes available to applicants for and

recipients of aid to the permanently and totally disabled

to help them attain self-support or self-care, including a

description of the steps taken to assure, in the provision

of such services, maximum utilization of other agencies

providing similar or related services.

C-30

(b) The Secretary shall approve any plan which

fulfills the conditions specified in subsection (a) of this

section, except that he shall not approve any plan which

imposes, as a condition of eligibility for aid to the

permanently and totally disabled under the plan—

(1) Any residence requirement which excludes

any resident of the State who has resided therein

five years during the nine years immediately

preceding the application for aid to the permanent-

ly and totally disabled and has resided therein

continuously for one year immediately preceding

the application;

(2) Any citizenship requirement which

excludes any citizen of the United States.

§ 1353. Payments to States; computation of

amounts

(a) From the sums appropriated therefor, the

Secretary of the Treasury shall pay to each State which

has an approved plan for aid to the permanently and

totaliy disabled, for each quarter, beginning with the

quarter commencing October 1, 1958—

(1) in the case of any State other than Puerto

Rico, the Virgin Islands, and Guam, an amount

equal to the sum of the following proportions of the

total amounts expended during such quarter as aid

to the permanently and totally disabled under the

State plan (including expenditures for premiums

under part B of subchapter XVIII of this chapter

for individuals who are recipients of money

payments under such plan and other insurance

premiums for medical or any other type of remedial

care or the cost thereof)—

(A) 31/37 of such expenditures, not

counting so much of any expenditure with

oO Geman pee

C-31

respect to any month as exceeds the product of

$37 multiplied by the total number of

recipients of aid to the permanently and totally

disabled for such month (which total number,

for purposes of this subsection, means (i) the

number of individuals who receive aid to the

permanently and totally disabled in the form of

money payments for such month, plus (ii) the

number of other individuals with respect to

whom expenditures were made in such month

as aid to the permanently and totally disabled

in the form of medical or any other type of

remedial care); plus

(B) the Federal percentage of the amount

by which such expenditures exceed the

maximum which may be counted under clause

(A), not counting so much of any expenditure

with respect to any month as exceeds the

product of $75 multiplied by the total number

of such recipients of aid tothe permanently and

totally disabled for such month; and

(2) inthe case of Puerto Rico, the Virgin Islands,

and Guam, an amount equal to one-half of the total

of the sums expended during such quarter as aid to

the permanently and totally disabled under the

State plan (including expenditures for premiums

under part B of subchapter XVIII of this chapter

for individuals who are recipients of money

payments under such plan and other insurance

premiums for medical or any other type of remedial

care or the cost thereof), not counting so much of any

expenditure with respect to any month as exceeds

$37.50 multiplied by the total number of recipients

of aid to the permanently and totally disabled for

such month; and

C-32

(3) in the case of any State whose State plan

approved under section 1352 of this title meets the

requirements of subsection (c) (1) of this section, an

amount equal to the sum of the following

proportions of the total amounts expended during

such quarter as found necessary by the Secretary of

Health, Education, and Welfare for the proper and

efficient administration of the State plan—

(A) 75 per centum of so much of such

expenditures as are for—

(i) services which are prescribed pur-

suant to subsection (c)(1) of this section and

are provided (in accordance with the next

sentence) to applicants for or recipients of

aid to the permanently and totally disabled

to help them attain or retain capability for

self-support or self-care, or

(ii) other services, specified by the

Secretary as likely to prevent or reduce

dependency, so provided to such applicants

or recipients, or

(iii) any of the services prescribed

pursuant to subsection (c) (1) of this section,

and of the services specified as provided in

clause (ii), which the Secretary may specify

as appropriate for individuals who, within

such period or periods as the Secretary

may prescribe, have been or are likely to

become applicants for or recipients of aid

to the permanently and totally disabled, if

such services are requested by such

individuals and are provided to such

individuals in accordance with the next

sentence, or

C-33

(iv) the training of personnel employed

or preparing for employment by the State

agency or by the local agency

administering the plan in the political

subdivision; plus

(B) one-half of so much of such

expenditures (not included under

subparagraph (A) ) as are for services provided

(in accordance with the next sentence) to

applicants for or recipients of aid to the

permanently and totally disabled, and to

individuals requesting such services who

(within such period or periods as the Secretary

may prescribe) have been or are likely to

become applicants for or recipients of such aid;

plus

(C) one-half of the remainder of such

expenditures.

The services referred to in subparagraphs (A) and

(B) shall, except to the extent specified by the

Secretary, include only—

(D) services provided by the staff of the

State agency, or of the local agency

administering the State plan in the political

subdivision: Provided, That no funds

authorized under this subchapter shall be

available for services defined as vocational

rehabilitation services under the Vocational

Rehabilitation Act (i) which are available to

individuals in need of them under programs for

their rehabilitation carried on under a State

plan approved under such Act, or (ii) which the

State agency or agencies administering or

supervising the administration of the State

plan approved under such Act are able and

C-34

willing to provide if reimbursed for the cost

therecf pursuant to agreement under

subparagraph (E), if provided by such staff,

and

(E) subject to limitations prescribed by the

Secretary, services which in the judgment of

the State agency cannot be as economically or

as effectively provided by the staff of such State

or local agency and are not otherwise

reasonably available to individuals in need of

them, and which are provided, pursuant to

agreement with the State agency, by the State

health authority or the State agency or agencies

administering or supervising the

administration of the State plan for vocational

rehabilitation services approved under the

Vocational Rehabilitation Act or by any other

State agency which the Secretary may

determine to be appropriate (whether provided

by its staff or by contract with public (local) or

nonprofit private agencies);

except that services described in clause (ii) of

subparagraph (D) hereof may be provided only

pursuant to agreement with swch State agency or

agencies administering or supervising the

administration of the State plan for vocational

rehabilitation services so approved. The portion of

the amount expended for administration of the

State plan to which subparagraph (A) applies and

the portion thereof to which subparagraphs (B) and

(C) apply shall be determined in accordance with

such methods and procedures as may be permitted

by the Secretary; and

(4) in the case of any State whose State plan

approved under section 1352 of this title does not

meet the requirements of subsection (c) (1) of this

C-35

section, an amount equal to one-half of the total of

the sums expended during such quarter as found

necessary by the Secretary for the proper and

efficient administration of the State plan, including

services referred to in paragraph (3) and provided

in accordance with the provisions of such

paragraph.

(b) The method of computing and paying such

amounts shall be as follows:

(1) The Secretary of Health, Education, and

Welfare shall, prior to the beginning of each

quarter, estimate the amount to be paid to the State

for such quarter under the provisions of subsection

(a) of this section, such estimate to be based on (A) a

report filed by the State containing its estimate of

the total sum to be expended in such quarter in

accordance with the provisions of subsection (a) of

this section, and stating the amount appropriated or

made available by the State and its political

subdivisions for such expenditures in such quarter,

and if such amount is less than the State’s

proportionate share of the total sum of such

estimated expenditures, the source or sources from

which the difference is expected to be derived, (B)

records showing the number of permanently and

totally disabled individuals in the State, and (C)

such other investigation as the Secretary may find

necessary.

(2) The Secretary of Health, Education, and

Welfare shall then certify to the Secretary of the

Treasury the amount so estimated by the Secretary

of Health, Education, and Welfare, (A) reduced or

increased, as the case may be, by any sum by which

he finds that his estimate for any prior quarter was

greater or less than the amount which should have

been paid to the State under subsection (a) of this

C-36

section for such quarter, and (B) reduced by a sum

equivalent to the pro rata share to which the United

States is equitably entitled as determined by the

Secretary of Health, Education, and Welfare, of the

net amount recovered during a prior quarter by the

State or any political subdivision thereof with

respect to aid to the permanently and totally

disabled furnished under the State plan; except

that such increases or reductions shall not be made

to the extent that such sums have been applied to

make the amount certified for any prior quarter

greater or less than the amount estimated by the

Secretary of Health, Education, and Welfare for

such prior quarter: Provided, That any part of the

amount recovered from the estate of a deceased

recipient which is not in excess of the amount

expended by the State or any political subdivision

thereof for the funeral expenses of the deceased

shall not be considered as a basis for reduction

under clause (B) of this paragraph.

(3) The Secretary of the Treasury shall

thereupon, through the Fiscal Service of the

Treasury Department, and prior to audit or

settlement by the General Accounting Office, pay to

the State, at the time or times fixed by the Secretary

of Health, Education, and Welfare, the amount so

certified.

(c) (1) In order for a State to qualify for payments

under paragraph (3) of subsection (a) of this section, its

State plan approved under section 1352 of this title must

provide that the State agency shall make available to

applicants for or recipients of aid to the permanently

and totally disabled at least those services to help them

attain or retain capability for self-support or self-care

which are prescribed by the Secretary.

. ta

C-37

(2) Inthecase ofjany State whose State plan included

a provision meeting\ the requirements of paragraph (1),

but with respect to which the Secretary finds, after

reasonable notice and opportunity for hearing to the

State agency administering or supervising the

administration of such plan, that—

(A) the provision has been so changed that it no

longer complies \ with the requirements of

paragraph (1), or \

(B) in the administration of the plan there is a

failure to comply substantially with such provision,

the Secretary shall notify such State agency that further

payments will not be made w the State under paragraph

(3) of subsection (a) of this section until he is satisfied

that there will no longer be any such failure to comply.

Until the Secretary is so satisfied further payments

with respect to the administration of such State plan

shall not be made under paragraph (3) of subsection (a)

of this section but shall instead be made, subject to the

other provisions of this subchapter, under paragraph (4)

of such subsection.

§ 1354. Operation of State plans

In the case of any State plan for aid to the permanently

and totally disabled which has been approved by the

Secretary of Health, Education, and Welfare, if the

Secretary after reasonable notice and opportunity for

hearing to the State agency administering or

supervising the administration of such plan, finds—

(1) that the plan has been so changed as to

impose any residence or citizenshin requirement

prohibited by section 1352(b) of this title, or that in

the administration of the plan any such prohibited

requirement is imposed, with the knowledge of such

State agency, in a substantial number of cases; or

C-38

(2) that in the administration of the plan there is

a failure to comply substantially with any provision

required by section 1352(a) of this title to be

included in the plan;

the Secretary shall notify such State agency that further

payments will not be made to the State (or, in his

discretion, that payments will be limited to categories

under or parts of the State plan not affected by such

failure) until he is satisfied that such prohibited

requirement is no longer so imposed, and that there is no

longer any such failure tocomply. Until he is so satisfied

he shall make no further payments to such State (or

shall limit payments to categories under or parts of the

State plan not affected by such failure).

§ 1355. Definitions

For the purposes of this subchapter, the term “aid to

permanently and totally disabled” means money

payments to, or (if provided in or after the third month

before the month in which the recipient makes

application for aid) medical care in behalf of, or any type

of remedial care recognized under State law in behalf

of, needy individuals eighteen years of age or older who

are permanently and totally disabled, but does not

include any such payments to or care in behalf of any

individual who is an inmate of a public institution

(except as a patient in a medical institution) or any

individual who is a patient in an institution for

tuberculosis or mente diseases. Such term also includes

payments which are not included within the meaning of

such term under the preceding sentence, but which

would be so included except that they are made on

behalf of such a needy individual to another individual

who (as determined in accordance with standards

prescribed by the Secretary) is interested in or

concerned with the welfare of such needy individual,

jut only with respect to a State whose State plan

ae we ei.

P ee mee

C-39

approved under section 1352 of this title includes

provision for—

(1) determination by the State agency that such

needy individual has, by reason of his physical or

mental condition, such inability to manage funds

that making payments to him would be contrary to

his welfare and, therefore, it is necessary to provide

such aid through payments described in this

sentence;

(2) making such payments only in cases in

which such payments will, under the rules

otherwise applicable under the State plan for

determining need and the amount of aid to the

permanently and totally disabled to be paid (and in

conjunction with other income and resources), meet

all the need of the individuals with respect to whom

such payments are made;

(3) undertaking and continuing special efforts

to protect the welfare of such individual and to

improve, to the extent possible, his capacity for self-

care and to manage funds;

(4) periodic review by such State agency of the

determination under paragraph (1) to ascertain

whether conditions justifying such determination

still exist, with provision for termination of such

payments if they do not and for seeking judicial

appointment of a guardian or other legal

representative, as described in section 1311 of this

title, if and when it appears that such action will

best serve the interests of such needy individual;

and

(5) opportunity for a fair hearing before the

State agency on the determination referred to in

paragraph (1) for any individual with respect to

whom it is made.

C-40

§ 1316. Administrative and judicial review of

public assistance determinations

(a) (1) Whenever a State plan is submitted to the

Secretary by a State for approval under subchapter I, X,

XIV, XVI, or XIX of this chapter, or part A of

subchapter IV of this chapter, he shall, not later than 90

days after the date the plan is submitted to him, make a

determination as to whether it conforms to the

requirements for approval under such subchapter. The

90-day period provided herein may be extended by

= agreement of the Secretary and the affected

tate.

(2) Any State dissatisfied with a determination of

the Secretary under paragraph (1) with respect to any

plan may, within 60 days after it has been notified of

such determination, file a petition with the Secretary

for reconsideration of the issue of whether such plan

conforms to the requirements for approval under such

subchapter. Within 30 days after receipt of such a

petition, the Secretary shall notify the State of the time

and place at which a hearing will be held for the purpose

of reconsidering such issue. Such hearing shall be held

not less than 20 days nor more than 60 days after the

date notice of such hearing is furnished to such State,

unless the Secretary and such State agree in writing to

holding the hearing at another time. The Secretary shall

affirm, modify, or reverse his original determination

within 60 days of the conclusion of the hearing.

(3) Any State which is dissatisfied with a final

determination made by the Secretary on such a

reconsideration or a final determination of the

Secretary under section 804, 604, 1204, 1354, 1384, or

1396c of this title may, within 60 days after it has been

notified of such determination, file with the United

States court of appeals for the circuit in which such

State is located a petition for review of such

(letermination. A copy of the petition shall be forthwith

ee gO EE

i ee a ee

C-41

transmitted by the clerk of the court to .4e Secretary.

The Secretary thereupon shall file in the court the

record of the proceedings on which he based his

determination as provided in section 2112 of Title 28.

(4) The findings of fact by the Secretary, if

supported by substantial evidence, shall be conclusive;

but the court, for good cause shown, may remand the

case to the Secretary to take further evidence, and the

Secretary may thereupon make new or modified

findings of fact and may modify his previous action, and

shall certify to the court the transcript and record of the

further proceedings. Such new or modified findings of

fact shall likewise be conclusive if supported by

substantial evidence.

4

(5) The court shall have jurisdiction to affirm the

action of the Secretary or to set it aside, in whole or in

part. The judgment of the court shall be subject to

review by the Supreme Court of the United States upon

certiorari or certification as provided in section 1254 of

Title 28.

(b) For the purposes of subsection (a) of this section,

any amendment of a State plan approved under

subchapter I, X, XIV, XVI, or XIX of this chapter, or

part A of subchapter IV of this chapter, may, at the

option of the State, be treated as the submission of a new

State plan.

(c) Action pursuant to an initial determination of the

Secretary described in subsection (a) of this section shall

not be stayed pending reconsideration, but in the even

that the Secretary subsequently determines that his

initial determination was incorrect he shall certify

restitution forthwith in a lump sum of any funds

incorrectly withheld or otherwise denied.

(d) Whenever the Secretary determines that any

item or class of items on account of which Federal

C-42

financial participation is claimed under subchapter I,

X, XIV, XVI, or XIX of this chapter, or part A of

subchapter IV of this chapter, shall be disallowed for

such participation, the State shall be entitled to and

upon request shall receive a reconsideration of the

disallowance.

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PART 201—GRANTS TO STATES FOR

PUBLIC ASSISTANCE PROGRAMS

Sec.

201.1 General,

Subpart A—Approval of State Plans and

Certification of Grants

201.2 General definitions.

201.8 Approval of State plans and amendments.

201.4 Administrative review of certain administra-

tive decisions.

201.5 Grants.

201.6 Withholding of payment; reduction of Federal

financial participation in the costs of social

services and training.

201.7 Judicial review.

Subpart B—Review and Audits

201.10 Review of State and local administration.

201.11 Personnel merit system review.

201.12 Public assistance audits.

201.18 Action on audit and review findings.

AUTHORITY: The provisions of this Part 201

issued under sec. 1102, 49 Stat. 647; 42 U.S.C, 1802.

SOURCE: The provisions of this Part 201 appear at

35 F.R. 12180, July 29, 1970, unless otherwise noted.

§ 201.1 General definitions.

When used in this chapter, unless the context

otherwise indicates:

(a) “Act” means the Social Security Act, and titles

referred to are titles of that Act;

(b) “Department” means the Department of Health,

Education, and Welfare;

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(c) “Administrator” means the Administrator, Social

and Rehabilitation Service;

(d) “Secretary” means the Secretary of Health,

Education, and Welfare;

(e) “Service” means the Social and Rehabilitation

Service in the Department;

(f) “Regional Commissioner” means the Regional

Commissioner of the Social and Rehabilitation Service;

(g) “State” means the several States, the District of

Columbia, the Commonwealth of Puerto Rico, the

Virgin Islands, and Guam,

(h) “State agency” means the State agency

administering or supervising the administration of the

State plan under title I, 1V-A, X, XIV, XVI, or XIX of

the Act;

(i) The terms “regional office” and “central office”

refer to the regional offices and the central office of the

Social and Rehabilitation Service, respectively.

Subpart A—Approval of State Plans

and Certification of Grants

§ 201.2 General.

The State plan is a comprehensive statement

submitted by the State agency describing the nature

and scope of its program and giving assurance that it

will be administered in conformity with the specific

requirements stipulated in the pertinent title of the Act,

the regulations in Subtitle A and this chapter of this

title, and other applicable official issuances of the

Department. The State plan contains all information

necessary for the Service to determine whether the plan

can be approved, as a basis for Federal financial

participation in the State program.

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§ 201.8 Approval of State plans and amendments.

The State plan consists of written documents

furnished by the State to cover each of its programs

under the Act: Old-age assistance (title I); aid and

services to needy families with children (part A of title

LV); aid to the blind (Title X); aid to the permanently and

totally disabled (title XIV); aid to the aged, blind or

disabled (title XVI); or medical assistance (title XIX).

The State may submit the common material on more

than one program as an integrated plan. However, it

must identify the provisions pertinent to each title since

a separate plan must be approved for each public

assistance title. A plan submitted under title XVI

encompasses, under a single plan, the programs

otherwise covered by three separate plans under titles I,

X, and XIV. After approval of the original plan by the

Service, all relevant changes, required by new statutes,

rules, regulations, interpretations, and court decisions,

are required to be submitted currently so that the

Service may determine whether the plan continues to

meet Federal requirements and policies.

(a) Submittal. State plans and revisions of the plans

are submitted first to the State governor or his designee

for review in accordance with § 204.1 of this chapter,

and then to the regional office. The States are

encouraged to obtain consultation of the regional staff

when a plan is in process of preparation or revision.

(b) Review, Staff in the regional offices are responsible

for review of State plans and amendments. They also

initiate discussion with the State agency on clarification

of significant aspects of the plan which come to their

attention in the course of this review. State plan

material on which the regional staff has questions

concerning the application of Federal policy is referred

with recommendations as required to the central office

for technical assistance. Comments and suggestions,

C-46

including those of consultants in specified areas, may be

prepared by the central office for use by the regional

staff in negotiations with the State agency.

(c) Action. The Regional Commissioner exercises

delegated authority to take affirmative action on State

plans and amendments thereto on the basis of policy

statements or precedents previously approved by the

Administrator. The Administrator retains authority for

determining that proposed plan material is not

approvable, or that a previously approved plan no

longer meets the requirements for approval, except that

a final determination of disapproval may not be made

without prior consultation and discussion by the

Administrator with the Secretary. The Regional

Commissioner or the Administrator formally notifies

the State agency of the actions taken on State plans or

revisions.

(d) Basis for approval, Determinations as to whether

State plans (including plan amendments and

administrative practice under the plans) originally

meet, or continue to meet, the requirements for

approval are based on relevant Federal statutes and

regulations. Guidelines are furnished to assist in the

interpretation of the regulations.

(e) Prompt approval of State plans. Pursuant to

section 1116 of the Act, the determination as to whether

a State plan submitted for approval conforms to the

requirements for approval under the Act and

regulations issued pursuant thereto shall be made

promptly and not later than the 90th day following the

date on which the plan submittal is received in the

regional office, unless the Regional Commissioner has

secured from the State agency a written agreement to

extend that period.

(f) Prompt approval of plan amendments. Any

amendment of an approved State plan may, at the option

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of the State, be considered as asubmission of a new State

plan. If the State requests that such amendment be so

considered, the determination as to its conformity with

the requirements for approval shall be made promptly

and not later than the 90th day following the date on

which such a request is received in the regional office

with respect to an amendment that has been received in

such office, unless the Regional Commissioner has

secured from the State agency a written agreement to

extend that period. In absence of request by a State that

an amendment of an approved State plan shall be

considered as a submission of a new State plan, the

procedures under § 201.6 (a) and (b) shall be applicable.

(g) Effective date. The effective date of a new plan may

not be earlier than the first day of the calendar quarter

in which an approvable plan is submitted, and, with

respect to expenditures for assistance under such plan,

may not be earlier than the first day on which the plan is

in operation on a statewide basis. The same applies with

respect to plan amendments that provide additional

assistance or services to persons eligible under the

approved plan or that make new groups eligible for

assistance or services provided under the approved

plan. For other plan amendments the effective date

shall be as specified in other sections of this chapter.

§ 201.4 Administrative review of certain

administrative decisions.

Pursuant to section 1116 of the Act, any State

dissatisfied with a determination of the Administrator

pursuant to § 201.3 (e) or (f) with respect to any plan or

amendment may, within 60 days after the date of receipt

of notification of such determination, file a petition with

the Regional Commissioner asking the Administrator

for reconsideration of the issue of whether such plan or

amendment conforms to the requirements for approval

under the Act and pertinent Federal requirements.

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Within 30 days after receipt of such a petition, the

Administrator shall notify the State of the time and

place at which the hearing for the purpose of re-

considering such issue will be held. Such hearing shall

be held not less than 30 days nor more than 60 days after

the date notice of such hearing is furnished to the State,

unless the Administrator and the State agree in writing

on another time. For hearing procedures, see Part2 13 of

this chapter. A determination affirming, modifying, or

reversing the Administrator’s original decision will be

made within 60 days of the conclusion of the hearing.

Action pursuant to an initial determination by the

Administrator described in such § 201.3 (e) or (f) thata

plan or amendment is not approvable shall not be stayed

pending the reconsideration, but in the event that the

Administrator subsequently determines that his

original decision was incorrect he shall certify

restitution forthwith in a lump sum of any funds

incorrectly withheld or otherwise denied.

§ 201.5 Grants.

To States with approved plans, grants are made each

quarter for expenditures under the plan for assistance,

services, training and administration. The

determination as to the amount of a grant to be made toa

State is based upon documents submitted by the State

agency containing information required under the Act

and such other pertinent facts as may be found

necessary.

(a) Form and manner of submittal. (1) Time and Place:

The estimates for public assistance grants for each

quarterly period must be forwarded to the regional

office 45 days prior to the period of the estimate. They

include a certification of State funds available and a

justification statement in support of the estimates. A

statement of quarterly expenditures and any necessary

supporting schedules must be forwarded to the

lod ee

a

PS er a Se Ee me OR TR

C-49

Department of Health, Education, and Welfare, Social

and Rehabilitation Service, Attention: Finance

Division, Washington, D.C. 20201, not later than 30 days

after the end of the quarter.

(2) Description of forms: “State Agency Expenditure

Projection—Quarterly Projection by Program”

represents the State agency’s estimate of the total

amount and the Federal share of expenditures for

assistance, services, training, and administration to be

made during the quarter for each of the public

assistance programs under the Act. From these

estimates the State and Federal shares of the total

expenditures are computed. The State’s computed share

of total estimated expenditures is the amount of State

and local funds necessary for the quarter. The Federal

share is the basis for the funds to be advanced for the

quarter. The State agency must also certify, on this

form or otherwise, the amount of State funds (exclusive

of any balance of advances received from the Federal

Government) actually on hand and available for

expenditure; this certification must be signed by the

executive officer of the State agency submitting the

estimate or a person officially designated by him, or by a

fiscal officer of the State if required by State law or

regulation. (A form “Certificate of Availability of State

Funds for Assistance and Administration during

Quarter” is available for submitting this information,

but its use is optional.) If the amount of State funds (or

State and local funds if localities participate in the

program), shown as available for expenditures is not

sufficient to cover the State’s proportionate share of the

amount estimated to be expended, the certification must

contain a statement showing the source from which the

amount of the deficiency is expected to be derived and

the time when this amount is expected to be made

available.

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(3) The State agency must also submit a quarterly

statement of expenditures for each of the public

assistance programs under the Act. This is an

accounting statement of the disposition of the Federal

funds granted for past periods and provides the basis for

making the adjustments necessary when the State’s

estimate for any prior quarter was greater or less than

the amount the State actually expended in that quarter.

The statement of expenditures also shows the share of

the Federal Government in any recoupment, from

whatever source, of expenditures claimed in any prior

period, and also in expenditures not properly subject to

Federal financial participation which are

acknowledged by the State agency or have been

revealed in the course of an audit.

(b) Review. The State’s estimates are analyzed by the

regional office staff and are forwarded with

recommendations as required to the central office. The

central office reviews the State’s estimate, other

relevant information, and any adjustments to be made

for prior periods, and computes the grant.

(c) Grant award. The grant award computation form

shows, by program, the amount of the estimate for the

ensuing quarter, and the amounts by which the estimate

is reduced or increased because of over—or under-

estimate for the prior quarter and for other

adjustments. This form is transmitted to the State

agency to draw the amount of the grant award, as

needed, to meet the Federal share of disbursements. The

draw is through a commercial bank and the Federal

Reserve system against a continuing letter of credit

certified to the Secretary of the Treasury in favor of the

State payee. A copy of the grant award notice is sent to

the State Central Information Reception Agency in

accord with section 201 of the Intergovernmental

Cooperation Act of 1968.

rt 80 er PT OT TTP ig OE pore a gt

CORP ONE re RR gE err

-

ie

C-51

(d) Letter of credit payment system. The letter of credit

system for payment of advances of Federal funds was

established pursuant to Treasury Department

regulations (Circular No. 1075), published in the

FEDERAL REGISTER on July 11, 1967 (32 F.R.

10201). The HEW “Instructions to Recipient

Organizations for Use of Letter of Credit” was

transmitted to all grantees by memorandum from the

Assistant Secretary-Comptroller on January 15, 1968.

§ 201.6 Withholding of payment; reduction of

Federal financial participation in the costs of

social services and training.

(a) When withheld. Further payments to a State are

withheld in whole or in part if the Administrator, after

reasonable notice and opportunity for hearing to the

State agency administering or supervising the

administration of an approved plan, finds:

(1) That the plan no longer complies with the

provisions of section 2, 402, 1002, 1402, 1602, or 1902 of

the Act; or

(2) That in the administration of the plan there is

failure to comply substantially with any such provision.

A question of noncompliance of a State plan may arise

from an unapprovable change in the approved State

plan, the failure of the State to change its approved plan

to conform toa new Federal requirement for approval of

State plans, or the failure of the State in practice to

comply with a Federal requirement, whether or not its

State plan has been amended to conform to such

requirement.

(b) When the rate of Federal financial participation is

reduced. Under title I, X, XIV, or XVI of the Act,

Federal financial participation in the costs of social

services and training approved at the rate of 75 per

C-52

centum is reduced to 50 per centum if the

Administrator, after reasonable notice and opportunity

for a hearing to the State agency, finds:

(1) That the plan provision under such title for

prescribed services no longer complies with the Federal

requirements with respect to such prescribed services;

or

(2) That in the administration of the plan there is a

failure to comply substantially with such plan provision.

(c) Information discussions. Hearings with respect to

matters under paragraph (a) or (b) of this section are

generally not called, however, until after reasonable

effort has been made by the Service to resolve the

questions involved by conference and discussion with

State officials. Formal notification of the date and place

of hearing does not foreclose further negotiations with

State officials.

(d) Conduct of hearings. For hearing procedures, see

Part 213 of this chapter.

(e) Notification of withholding. If the Administrator

makes a finding of noncompliance with respect to a

matter under paragraph (a) of this section, the State

agency is notified that further payments will not be

made to the State (or, in his discretion, that payments

will be limited to categories under or parts of the plan

not affected by such failure), until the Administrator is

satisfied that there will no longer be any such failure to

comply. Until he is so satisfied, no further payments will

be made to the State (or will be limited to categories

under or parts of the plan not affected by such failure).

(f) Notification of reduction in the rate of Federal

financial participation. If the Administrator makes a

finding of noncompliance with respect to a matter under

paragraph (b) of this section, the State agency is notified

ween

Te One gg OE IT FO Te ee ene a nRN eT er een

C-53

that further payments will be made to the State at the

rate of 50 per centum of the costs of services and

training, until the Administrator is satisfied that there

will no longer be any failure to comply.

§ 201.7 Judicial! review.

Any State dissatisfied with a final determination of

the Secretary pursuant to § 201.4 or § 201.6(a) may,

within 60 days after it has been notified of such

determination, file with the U.S. Court of Appeals for

the circuit in which such State is located a petition for

review of such determination. After a copy of the

petition is transmitted by the clerk of the court to the

Secretary, the Secretary thereupon shall file in the

court the record of proceedings upon which such

determination was based as provided in section 2112 of

title 28, United States Code. The court is bound by the

Secretary’s findings of fact, if supported by substantial

evidence. The court has jurisdiction to affirm the

Secretary’s decision, or set it aside in whole or in part,

or, for good cause, to remand the case for additional

evidence. If the case is remanded, the Secretary may

thereupon make new or modified findings of fact, and

may modify his previous determination. The Secretary

shall certify to the court the transcript and record of the

further proceedings. The judgment of the court is

subject to review by the Supreme Court of the United

States upon certiorari or certification as provided in 28

U.S.C. 1254.

Subpart B—Review and Audits

§ 201.10 Review of State and local administration.

(a) In order to provide a basis for determining that

State agencies are adhering to Federal requirements

and to the substantive legal and administrative

provisions of their approved plans, the Service conducts

a review of State and local public assistance

C-54

administration. This review includes analysis of

procedures and policies of State and local agencies and

examination of case records of individual recipients.

(b) Each State agency is required to carry out a

continuing quality control program primarily covering

determination of eligibility in statistically selected

samples of individual cases. The Service conducts a

continuing observation of these State systems.

(c) Adherence to other Federal requirements set forth

in the pertinent titles of the Act and the regulationa in

this title is evaluated through review of selected case

records and aspects of agency operations.

§ 201.11 Personnel merit system review.

A personnel merit system review is carried out by the

Office of State Merit Systems of the Office of the

Assistant Secretary for Administration of the

Department. The purpose of the review is to evaluate

the effectiveness of the State merit system relating to

the public assistance programs and to determine

whether there is compliance with Federal requirements

in the administration of the merit system plan. See Part

70 of this title.

§ 201.12 Public assisiance audits,

(a) Annually, or at such frequencies as are considered

necessary and appropriate, the operations of the State

agency are audited by representatives of the Audit

Agency of the Department. Such audits are made to

determine whether the State agency is being operated

in a manner that

(1) Encourages prudent use of program funds, and

(2) Provides a reasonable degree of assurance that

funds are being properly expended, and for the

purposes for which appropriated and provided for

eg -<eEE

C-55

under the related Act and State plan, including State

laws and regulations.

(b) Reports of these audits are released by the Audit

Agency simultaneously to program officials of the

Department, and to the cognizant State officials. These

audit reports relate the opinion of the Audit Agency on

the practices reviewed and the allowability of costs

audited at the State agency. Final determinations as to

actions required on all matters reported are made by

cognizant officials of the Department.

§ 201.13 Action on audit and review findings.

(a) If the audit results in no exceptions, the State

agency is advised by letter of this result. The general

course for the disposition of proposed exceptions

resulting from audits involves the submittal of details of

these exceptions to the State agency which then has an

upportunity to concur in the proposed exceptions or to

assemble and submit additional facts for purposes of

clearance. Provision is made for the State agency to

appeal proposed audit exceptions in which it has not

concurred and which have not been deleted on the basis

of clearance material. After consideration of a State

agency's eppeal by the Administrator, the Service

advises the State agency of any expenditures in which

the Federal Government may not participate and

requests it to include the amount as adjustments in a

subsequent statement of expenditures. Expenditures in

which it is found the Federal Government may not

participate and which are not properly adjusted

through the State’s claim will be deducted from

subsequent grants made to the State agency.

(b) If the Federal or State reviews reveal serious

problems with respect to compliance with any Federal

requirement, the State agency is required to correct its

practice so that there will be no recurrence of the

C-56

problem in the future, and the procedures under this

part relating thereto, in connection with reception and

temporary assistance under the Act.

PART 218—PRACTICE AND PROCEDURE FOR

HEARINGS TO STATES ON CONFORMITY

OF PUBLIC ASSISTANCE PLANS TO

FEDERAL REQUIREMENTS

Subpart A—General

Sec.

213.1 Scope of rules.

213.2 Records to be public.

218.3 Use of gender and number.

213.4 Suspension of rules.

213.5 Filing and service of papers.

Subpart B—Preliminary Matters—Notice and

Parties

213.11 Notice of hearing or opportunity for hearing.

213.12 Time of hearing.

213.18 Place.

213.14 Issues at hearing.

213.15 Request to participate in hearing.

Subpart C—Hearing Procedures

213.21 Who presides.

213.22 Authority of presiding officer.

213.28 Rights of parties.

213.24 Evidentiary purpose.

213.25 Evidence.

213.26 Exclusion from hearing for misconduct.

213.27 Unsponsored written material.

213.28 Official transcript.

213.29 Record for decision.

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Subpart D—Posthearing Procedures, Decisions

213.31 Posthearing briefs.

213.382 Decisions following hearing.

213.383 Effective date of Administrator's decision.

AUTHORITY: The provisions of this Part 213 issued

under sec. 1102, 49 Stat. 647; 42 U.S.C. 1802.

SOURCE: The provisions of this Part 213 appear at 36

F.R. 1454, Jan. 29, 1971, unless otherwise noted.

Subpart A—General

§ 213.1 Scope of rules.

(a) The rules of procedure in this part govern the

practice for hearings afforded by the Department to

States pursuant to § 201.4 or § 201.6(a) or (b) of this

chapter, and the practice relating to decisions upon such

hearings. These rules may also be applied to hearings

afforded by the Department to States in other Federal-

State programs for which Federal administrative

responsibility has been delegated to the Service.

(b) Nothing in this part is intended to preclude or limit

negotiations between the Department and the State,

whether before, during, or after the hearing, to resolve

the issues which are, or otherwise would be, considered

at the hearing. Such negotiations and resolution of

issues are not part of the hearing, and are not governed

~ the rules in this part, except as expressly provided

erein.

§ 213.2 Records to be public.

All pleadings, correspondence, exhibits, transcripts

of testimony, exceptions, briefs, decisions, and other

docum. nts filed in the docket in any proceeding may be

inspected and copied in the office of the SRS Hearing

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Clerk. Inquiries may be made at the Central

Information Center, Department of Health, Education,

and Welfare, 3300 Independence Avenue 5S.W.,

Washington, DC 20201,

§ 213.3 Use of gender and number.

As used in this part, words importing the singular

number may extend and be applied to several persons or

things, and vice versa. Words importing the masculine

gender may be applied to females or organizations.

§ 213.4 Suspension of rules.

Upon notice to all parties, the Administrator or the

presiding officer, with respect to matters pending

before him and within his jurisdiction, may modify or

waive any rule in this part upon determination that no

party will be unduly prejudiced and the ends of justice

will thereby be served.

§ 213.5 Filing and service of papers.

(a) All papers in the proceedings shall be filed with the

SRS Hearing Clerk, in an original and two copies.

Originals only of exhibits and transcripts of testimony

need be filed.

(b) All papers in the proceedings shall be served on all

parties by personal delivery or by mail. Service on the

party's designated attorney will be deemed service upon

the party.

Subpart B—Preliminary Matters—Notice and

Parties

§ 213.11 Notice of hearing or opportunity for

hearing.

Proceedings are commenced by mailing a notice of

hearing or opportunity for hearing from the

C-59

Administrator to the State. The notice shall state the

time and place for the hearing, and the issues which will

be considered, and shall be published inthe FEDERAL

REGISTER.

§ 213.12 Time of hearing.

The hearing shall be scheduled not less than 30 days

nor more than 60 days after the date notice of the

hearing is furnished to the State.

§ 213.13 Place.

The hearing shall be held in the city in which the

regional office of the Department is located or in such

other place as is fixed by the Administrator in light of

the circumstances of the case, with due regard for the

convenience and necessity of the parties or their

representatives.

§ 213.14 Issues at hearing.

(a) The Administrator may, prior toa hearing under §

201.6(a) or (b) of this chapter, notify the State in writing

of additional issues which will be considered at the

hearing, and such notice shall be published in the

FEDERAL REGISTER. If such notice is furnished to

the State lees than 20 days before the date of the hearing,

the State or any other party, at its request, shall be

granted a postponement of the hearing to a date 20 days

after such notice was furnished, or such later date as

may be agreed to by the Administrator.

(b) If, as a result of negotiations between the

Department and the State, the submittal of a plan

amendment, a change in the State program, or other

actions by the State, any issue is resolved in whole or in

part, but new or modified issues are presented, as

specified by the Administrator, the hearing shall

proceed on such new or modified issues.

C-60

eX 1) If at any time, whether prior to, during, or after

a snee fo the Administrator finds that the State has

come into compliance with Federal requirements on

any issue, in whole or in part, he shall remove such issue

from the proceedings in whole or in part, as may be

appropriate. If all issues are removed, he shall

terminate the hearing.

(2) Prior to the removal of any issue from the hearing,

in whole or in part, the Administrator shall provide all

parties other than the Department and the State (see §

213.15(b) ) with the statement of his intention, and the

ns therefor, and a copy of the proposed State plan

orovielen on which the State and he have settled, and the

parties shall have opportunity to submit in writing

within 15 days, for the Administrator's consideration

and for the record, their views as to, or any information

bearing upon, the merits of the proposed plan provision

and the merits of the Administrator’s reasons for

removing the issue from the hearing.

(d) The issues considered at the hearing shall be

limited to those issues of which the State is notified as

provided in § 213.11 and paragraph (a) of this

section, and new or modified issues described in para-

graph (b) of this section, and shall not include issues or

parts of issues removed from the proceedings pursuant

to paragraph (c) of this section.

§ 213.15 Request to participate in hearing.

(a) The Department and the State are parties to the

hearing without making a specific request to

participate.

(b) (1) Other individuals or groups may be recognized

as parties, if the issues to be considered at the hearing

have caused them injury and their interest is within the

zone of interests to be protected by the governing

Federal statute.

wet

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(2) Any individual or g’oup wishing to participate asa

party shall file a petition with the SRS Hearing Clerk

within 15 days after notice of the hearing has been

oublished in the FEDERAL REGISTER, and shall

serve a copy on each party of record at that time, in

accordance with § 213.5(b). Such petition shall concisely

state (i) petitioner’s interest in the proceedings, (ii) who

will appear for petitioner, (iii) the issues on which

petitioner wishes to participate, and (iv) whether

petitioner intends to present witnesses.

(3) Any party may, within 5 days of receipt of such

petition, file comments thereon.

(4) The presiding officer shall promptly determine

whether each petitioner has the requisite interest in the

proceedings and shall permit or deny participation

accordingly. Where petitions to participate as parties

are made by individuals or groups with common

interests, the presiding officer may request all such

petitioners to designate a single representative, or he

may recognize one or more of such petitioners to

represent all such petitioners. The presiding officer

shall give each petitioner written notice of the decision

on his petition, and if the petition is denied, he shall

briefly state the grounds for denial.

(c) (1) Any interested person or organization wishing

to participate as amicus curiae shall file a petition with

the SRS Hearing Clerk before the commencement of the

hearing. Such petition shall concisely state (i) the

petitioner’s interest in the hearing, (ii) who will

represent the petitioner, and (iii) the issues on which

petitioner intends to present argument. The presiding

officer may grant the petition if he finds that the

petitioner has a legitimate interest in the proceedings,

that such participation will not unduly delay the

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outcome and may contribute materially to the proper

disposition of the issues. An amicus curiae is not a party

but may participate as provided in the paragraph.

(2) An amicus curiae may present a brief oral

statement at the hearing, at the point in the proceedings

specified by the presiding officer. He may submit a

written statement of position to the presiding officer

prior to the beginning of a hearing, and shall serve a

copy on each party. He may also submit a brief or

written statement at such time as the parties submit

briefs, and shall serve a copy on each party.

Subpart C—Hearing Procedures

§ 213.21 Who presides.

(a) The presiding officer at the hearing shall be the

Administrator or, at his discretion a hearing examiner

assigned under 5 U.S.C. 3105 or 3344.

(b) The designation of the presiding officer shall be ir,

writing. A copy of the designation shall be served on all

parties.

§ 213.22 Authority of presiding officer.

(a) The presiding officer shall have the duty to conduct

a fair hearing, to avoid delay, maintain order, and make

a record of the proceedings. He shall have all powers

necessary to accomplish these ends, including, but not

limited to, the power to:

(1) Change the date, time, and place of the hearing,

upon due notice to the parties. This includes the power to

continue the hearing in whole or in part. In hearings

pursuant to section 1116(a) (2) of the Social Security Act

(see § 201.4 of this chapter), changes of time are subject

to the requirements of the statute.

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(2) Hold conferences to settle or simplify the issues in a

proceeding, or to consider other matters that may aid in

the expeditious disposition of the proceeding.

(3) Regulate participation of parties and amici curiae

and require parties and amici curiae to state their

position with respect to the various issues in the

proceeding.

(4) Administer oaths and affirmations.

(5) Rule on motions and other procedural items on

matters pending before him.

(6) Regulate the course of the hearing and conduct of

counsel therein.

(7) Examine witnesses.

(8) Receive, rule on, exclude or limit evidence.

(9) F ix the time for filing motions, petitions, briefs, or

other items in matters pending before him.

(10) If the presiding officer is the Administrator,

make a final decision.

(11) If the presiding officer is a hearing examiner,

certify the entire record including his recommended

findings and proposed decision to the Administrator.

(12) Take any action authorized by the rules in this

_S - conformance with the provisions of 5 U.S.C.

(b) The presiding officer does not have authority to

compel by subpoena the production of witnesses, papers,

or other evidence.

(c) If the presiding officer is a hearing examiner, his

authority pertains to the issues of compliance by a State

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with Federal requirements which are to be considered

at the hearing, and does not extend to the question of

whether, in case of any noncompliance, Federal

payments will not be made in respect to the entire State

plan or will be limited to categories under or parts of the

State plan affected by such noncompliance.

§ 213.23 Right of parties.

All parties may:

(a) Appear by counsel or other authorized

representative, in all hearing proceedings.

(b) Participate in any prehearing conference held by

the presiding officer.

(c) Agree to stipulations as to facts which will be made

a part of the record.

(d) Make opening statements at the hearing.

(e) Present relevant evidence on the issues at the

hearing.

(f) Present witnesses who then must be available for

cross-examination by all other parties.

(g) Present oral arguments at the hearing.

(h) Submit written briefs, proposed findings of fact,

and proposed conclusions of law, after the hearing.

§ 213.24 Evidentiary purpose.

The hearing is directed to receiving factual evidence

and expert opinion testimony related to the issues in the

proceeding. Argument will not be received in evidence;

rather it should be presented in statements,

memoranda, or briefs, as determined by the presiding

officer. Brief opening statements, which shall be limited

to statement of the party’s position and what he intends

to prove, may be made at hearings.

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§ 213.25 Evidence.

(a) Testimony. Testimony shall be given orally under

oath or affirmation by witnesses at the hearing.

Witnesses shall be available at the hearing for cross-

examination by all parties.

(b) Stipulations and exhibits. Two or more parties

may agree to stipulations of fact. Such stipulations, or

any exhibit proposed by any party, shall be exchanged

at the prehearing conference or otherwise prior to the

hearing if the presiding officer so requires.

(c) Rules of evidence. Technical rules of evidence shall

not apply to hearings conducted pursuant to this part,

but rules or principles designed to assure production of

the most credible evidence available and to subject

testimony to test by cross-examination shall be applied

where reasonably necessary by the presiding officer. A

witness may be cross-examined on any matter material

to the proceeding without regard to the scope of his

direct examiniation. The presiding officer may exclude

irrelevant, immatrial, or unduly repetitious evidence.

All documents and other evidence offered or taken for

the record shall be open to examination by the parties

and opportunity shall be given to refute facts and

arguments advanced on either side of the issues.

3 213.26 Exclusion from hearing for misconduct.

Disrespectful, disorderly, or contumacious language

or contemptuous conduct, refusal to comply with

directions, or continued use of dilatory tactics by any

person at the hearing before a presiding officer shall

constitute grounds for immediate exclusion of such

person from the hearing by the presiding officer.

§ 213.27 Unsponsored written material.

Letters expressing views or urging action and other

unsponsored written material regarding matters in

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issue in a hearing will be placed in the correspondence

section of the docket of the proceeding. These data are

not deemed part of the evidence or record in the hearing.

§ 213.28 Official transcript.

The Department will designate the official reporter

for all hearings. The official transcripts of testimony

taken, together with any stipulations, exhibits, briefs, or

memoranda of law filed therewith shall be filed with the

Department. Transcripts of testimony in hearings may

be obtained from the official reporter by the parties and

the public at rates not to exceed the maximum rates

fixed by the contract between the Department and the

reporter. Upon notice to all parties, the presiding officer

may authorize corrections to the transcript which

involve matters of substance.

§ 213.29 Record for decision.

The transcript of testimony, exhibits, and all papers

and requests filed in the proceedings, except the

correspondence section of the docket, including rulings

and any recommended or initial decision shall

constitute the exclusive record for decision.

Subpart D—Posthearing Procedures, Decisions

§ 213.31 Posthearing briefs.

The presiding officer shall fix the time for filing

posthearing briefs, which may contain proposed

findings of fact and conclusions of law, and, if

permitted, reply briefs.

§ 213.32 Decisions following hearing.

(a) If the Administrator is the presiding officer, he

shall, when the time for submission of posthearing

briefs has expired, issue his decision within 60 days.

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(b) (1) If a hearing examiner is the presiding officer,

he shall, when the time for submission of posthearing

briefs has expired, certify the entire record, including

his recommended findings and proposed decision, to the

Administrator. The Administrator shall serve a copy of

the recommended findings and proposed decision upon

all parties, and amici, if any.

(2) Any party may, within 20 days, file with the

Administrator exceptions to the recommended findings

and proposed decision and a supporting brief or

statement.

(3) The Administrator shall thereupon review the

recommended decision and, within 60 days of its

issuance, issue his own decision.

(c) If the Administrator concludes that a State plan

does not comply with Federal requirements, he shall

also, in the case of a hearing pursuant to § 201.6 (a) of this

chapter, specify whether further payments will not be

made to the State or whether, in the exercise of his

discretion, payments will be limited to categories under

or parts of the State plan not affected by such

noncompliance. The Administrator may ask the parties

for recommendations or briefs or may hold conferences

of the parties on this question.

(d) The decision of the Administrator under this

section shall be the final decision of the Secretary and

shall constitute “final agency action” within the

meaning of 5 U.S.C. 704 and a “final determination”

within the meaning of section 1116(a) (3) of the Act and

§ 201.7 of this chapter. The Administrator’s decision

shall be promptly served on all parties, and amici, if any.

[36 F.R. 1454, Jan. 29, 1971, as amended at 36 F

21520, Nov. 10, 1971] ”

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§ 213.33 Effective date of Administrator's

decision.

If, in the case of a hearing pursuant to § 201.6(a) of this

chapter, the Administrator concludes that a State plan

does not comply with Federal requirements, his

decision that further payments will not be made to the

State, or payments will be limited to categories under or

parts of the State plan not affected, shall specify the

effective date for the withholding of Federal funds. The

effective date shall not be earlier than the date of the

Administrator's decision and shall not be later than the

first day of the next calendar quarter. The provisions of

this section may not be waived pursuant to § 213.4.

PART 220—SERVICE PROGRAMS FOR

FAMILIES AND CHILDREN; TITLE IV

PARTS A AND B OF SOCIAL SECURITY

ACT

Subpart A—Mandatory Provisions

Sec.

220.1 General.

ORGANIZATION AND ADMINISTRATION

220.2 Single organizational unit.

220.3 Full-time staff for services.

220.4 Advisory committees.

220.5 Use of professional staff.

220.6 Use of subprofessional personnel.

220.7 Use of volunteers.

220.8 Relationship and use of other agencies.

220.9 Delivery and utilization of services.

220.10 Staff development.

220.11 Appeals, fair hearings and grievances.

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MANDATORY SERVICES APPLICABLE TO

TITLE IV, PART A

220.15 General.

220.16 Service plan.

220.17 Employment objectives.

220.18 Child care services.

220.19 Foster care services.

220.20 Prevention or reduction of births out-of-

wedlock.

220.21 Family planning services.

220.22 Services to meet particular needs of families

and children.

220.23 Protective services and cooperation with

courts,

220.24 Services related to health needs.

REQUIREMENTS APPLICABLE TO THE

WORK INCENTIVE PROGRAM UNDER TITLE

IV, PART A

220.35 State plan requirements.

220.36 Non-Federal contribution.

MANDATORY SERVICES APPLICABLE

TITLE IV, PART B ”

220.40 Child welfare services.

OTHER REQUIREMENTS APPLICABLE TO

TITLE IV, PARTS A AND B, AS INDICATED

220.45 — planning (applicable to IV-A and

220.46 Reports and evaluations (applicable to IV-A

and B),

220.47 Implementation; local agencies and service

; contractors (applicable to IV-A and B),

220.48 Establishing paternity and securing support

for children receivin id

VA. g aid (applicable to

a a ai i

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220.49 Other plan requirements for child welfare

services under title 1V-B (see also Subpart D

of this part).

Subpart B—Optional Provisions

Sec.

220.50 Goneral.

SERVICES IN AID TO FAMILIES WITH

220.76

220.77

220.78

220.79

220.80

220.81

220.82

220.83

220.84

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Custody and methods of disbursement.

Fiscal year to which expenditures chargeable.

Liquidation of obligations.

Interest and refunds.

Apportionment of costs.

Equipment and supplies.

Effect of payments.

Promulgation.

Reallotment of funds.

DEPENDENT CHILDREN

220.51 Range of optional services. .

220.52 Coverage of optional groups for services.

CHILD WELFARE SERVICES

220.55 Range of optional services and groups to be

220.56

served,

Day care services.

Subpart C—Federal Financial Participation

220.60

220.61

220.62

220.63

220.64

220.65

General.

Federal financial participation; AFDC,

Federal financial participation; CWS.

Relationship of costs under parts A and B of

title IV.

Provisions common to title IV-A and B.

Amount of Federal funding.

Subpart D—Other Provisions Governing Child

220.70

220.71

220.72

220.73

220.74

220.75

Welfare Service Program

Meaning of terms.

The State Plan; the annual budget; submission,

approval, duration, purpose, revision.

State and local funds.

Allotment of Federal funds.

Payments from allotments.

Records a™' audit.

AUTHORITY: The provisions of this Part 220 issued

under sec. 1102, 49 stat. 647; 42 U.S.C. 1802.

SOURCE: The provisions of this Part 220 appear at 34

F.R, 1354, Jan. 28, 1969, unless otherwise noted.

Subpart A—Mandatory Provisions

§ 220.1 General.

The State plans for AFDC and CWS pursuant to title

IV, parts A and B of the Social Security Act must, with

respect to the administration of the service programs

for families and children,

(a) Contain provisions committing the State to meet

the requirements in this subpart;

(b) Contain provisions committing the State to

progress in the extension and improvement of services:

(c) Indicate the steps to be taken to meet the

requirements; and

(d) Provide for the submission of such implementation

and progress reports as may be specified.

ORGANIZATION AND ADMINISTRATION

§ 220.2 Single organizational unit.

(a) There must be a single organizational unit, within

the single State agency, at the State level and also at the

a i a ee ee -_- =

—

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local level to provide or supervise all services to families

and children included in the State plan for title 1V, parts

A and B. Within the see Hy sgn ame = the —

subunits must be responsible for setting service policies

and furnishing services for both AFDC and CWS cases.

Specific services may be delegated within the agency

for services common to other groups (e.g., homemaker

service for the aged), provided that this does not tend to

create differences in the quality of services for AFDC

and CWS cases. (This requirement does not apply to

States where the AFDC and CWS programs were

administered by separate agencies on Jan. 2, 1968.)

(b) Such unit must, under the direction of its chief

officer (who, at the State level, is not the head of the

State agency), be responsible for:

(1) Development of policy and the maintenance of

policy control for all parts of the service program.

(2) Direct program supervision of the local agency or

otherwise be in a position to assure proper program

implementation.

(c) The State plan must also include the structure of

such unit and show its place in the overall welfare

agency and the distribution of responsibilities among

the major divisions within the unit.

§ 220.3 Full-time staff for services.

(a) The functions of arranging or providing services to

individuals should, to the maximum extent feasible, be

performed by persons other than those who determine

eligibility for financial and medical assistance and

provide financial assistance.

(b) There must be adequate numbers of full-time staff

assigned to service functions at all levels of agency

operations and, to this end, there must be progress

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toward the objective of relieving all staff of nonservice

functions. (This does not exclude service at intake, i.e.,

providing information, screening and referral within

the agency and community for all families and children

seeking agency help; and determining need for specific

services.)

§ 220.4 Advisory committees.

(a) An advisory committee on AFDC and CWS

programs must be established at the State level and at

local levels where the programs are locally

administered, except that in local jurisdictions with

small caseloads alternate procedures for securing

similar participation may be established. The State

plan must show that the advisory committee will:

(1) Advise the principal policy setting and

administrative officials of the agency and have

adequate opportunity for meaningful participation in

policy development and program administration, in-

cluding the furtherance of recipient participation in the

program of the agency.

(2) Include representatives of other State agencies

concerned with services, representatives of

professional, civic or other public or private

organizations, private citizens interested and

experienced in service programs, and recipients of

_ assistance or services or their representatives who shall

constitute at least one-third of the membership. Such

recipients or their representatives must be selected in a

manner that will assure the participation of the

recipients in the selection process and that they are

representative of recipients of assistance or services.

(3) Be provided such staff assistance from within the

agency and such independent technical assistance as are

needed to enable it to make effective recommendations.

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(4) Be provided with financial arrangements, where

necessary, to make possible the participation of

recipients in the work of the committee structure.

(b) An advisory committee on day care services must

be established at the State level, either as a separate

committee, or all or a part of the advisory committee on

AFDC and CWS programs may be assigned this

function. In either event, the committee must have at

least one-third of its memberhip drawn from recipients

or their representatives; and include representatives of

agencies and groups concerned with day care or related

services, i.e., other State agencies, professional or civic

or other public or nonprofit private agencies,

organizations or groups.

(c) The State plan must also show the structure and

functions of the State and local committees for AFDC

d CWS programs and for day care services; their

relationship to other boards and committees associated

with the State and local agencies; the — for

selecting recipients or their representatives, and assure

that the State committee for AFDC and CWS programs

will be established no later than 90 days after plan

approval.

§ 220.5 Use of professional staff.

(a) There must be adequate numbers and suitable

qualifications for personnel drawn from social work and

other appropriate disciplines to plan, develop and

supervise services and to provide specialized services to

families and children; and there must be an adequate

system of career development and progression for such

individuals.

(b) The State plan must also include:

(1) The staffing pattern for professional positions

carrying out the service functions.

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(2) An explanation of how the quantity and quality of

services will be maintained in instances where the

number of professional personnel performing eligibility

and service functions results in a caseload or workload

higher than that in effect during fiscal year 1968.

§ 220.6 Use of subprofessional personnel.

(a) No later than July 1, 1969 provision must be made

for the training and effective use of subprofessional staff

in the programs of services to families and children,

including part-time or full-time employment of

recipients and other persons of low income. (The term

“subprofessional,” as used here, means persons with less

than college education, a high school graduate or a

person with little or no formal education.)

(b) The State plan must also include:

(1) The methods of recruitment and selection, as will

offer opportunities for employment of such persons.

(2) A career service plan that permits such persons to

enter employment at the subprofessional level and

progress to positions of increasing responsibility and

remuneration.

(3) An organized training program, supervision and

supportive assistance for such staff.

(4) Annual progression in the utilization of increasing

numbers of such ste*f until there is optimal use of

subprofessional staff in achieving the service goals for

families and children.

§ 220.7 Use of volunteers.

(a) No later than July 1, 1969, provision must be made

for the training and effective use of nonpaid or partially

paid volunteers representing various age groups,

specifically including senior citizens and young persons,

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in the service programs for families and children and

assisting related advisory committees.

(b) The State plan must also include:

(1) The methods of recruitment and selection which

will assure participation of volunteers of all income

levels.

(2) A program for organized training and supervision

of such voiunteers.

(3) Assignment to a specific position in which rests

responsibility for the development, organization, and

administration of the volunteer program, and for

coordination of the program with related functions.

(4) Provision for meeting the costs incident to

volunteer service.

(5) Annual progression in the utilization of volunteers

until such use is sufficient for the achievement of the

service goals for families and children.

§ 220.8 Relationship and use of other agencies.

(a) There must be maximum utilization of and

coordination with other public and voluntary agencies,

including with respect to the latter their experience as

well as their facilities, providing services similar or

related to the services provided under the plan, where

such services are available without additional! cost.

(b) Consideration must be given to the appropriate use

of other public and voluntary agencies as sources for the

purchase of care and services and such use must be

based on a determination that required program

standards will be met, a comparison of the effectiveness

with which the services are likely to be rendered and the

anticipated costs thereof.

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(c) The State plan must show ways in which public

and voluntary agencies will be used. includi

services to be purchased. iinnciids caian

§ 220.9 Delivery and utilization of services.

(a) There must be pro i ievi

38 gress in achievin

organizational patterns and simplified administrative

procedures that assure effective delive ilizati

of services. ry and utilization

(b) The State plan must also provide for continued

assessment and necessary adaptations

me mr ae p to achieve this

§ 220.10 Staff development.

There must be staff development on a continuing

progressive and comprehensive basis for all staff

responsible for the development and provision of

services. Such staff development shall include

orientation, in-service training and educational leave

Provision shall be made for increasing each year the

number of educational leaves for professional training

to assure an adequate number of professi

these service programs. , stieinel

§ 220.11 Appeals, fair hearings and grievances.

(a) There must be provision for a fair hearing,

under which applicants and recipie

denial of or exclusion from a auidemiien teen “

take account of recipient choice of service or a determi-

nation that the individuals must participate in the

service program. The results of appeals must be formal-

ly recorded and made available to the State advisory

committee and all applicants and recipients must be

on ge Sa right to appeal and the procedures for

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(b) There must be a system through which recipients

may present grievances about the operation of the

service program.

(c) The State plan must also describe the system for

appeals and grievances and the methods of informing

recipients of their right to appeal.

MANDATORY SERVICES APPLICABLE TO

TITLE IV, PART A

§ 220.15 General.

The State plan:

(a) Must assure that responsibility is assumed for the

provision of services to all appropriate persons

receiving aid and others in the home whose needs were

considered in determining eligibility for such aid, as

called for under each of the requirements in §§ 220.16-

220.25; and

(b) Must be specific in its identification of the services

to be provided or purchased and the families and

children to whom they will be available.

§ 220.16 Service plan.

(a) A service plan must be developed and maintained

on a continuous basis for each family and child who

requires service to maintain and strengthen family life,

foster child development and achieve permanent and

adequately compensated employment.

(b) By January 1, 1970, a service plan must be

developed for each family and child in the current

caseload and, within 1 year following approval for

financial assistance for those added to the caseload after

March 31, 1969.

(c) Such plans must be developed in cooperation with

the family and must be responsive to the needs of each

C-79

individual within the family, while taking account of the

relation of individual needs to the functioning of the

family as a whole. Families shall have the right to accept

or reject such plans. (See sec. 220.35 of this part for

special provisions on refusal without good cause under

the WIN program and referral of Unemployed Fathers

to the WIN program.)

(d) Service plans must, as a minimum, include the

objectives and content of the service requirements in

sections 220.15-220.25.

(e) Each service plan must be reviewed as often as

necessary, but at least annually, to assure that it is

practically related to needs and is being effectively

implemented.

§ 220.17 Employment objectives.

(a) Services must be provided to assist all appropriate

persons to achieve employment and self sufficiency.

(b) Priority must be given to screening the entire

caseload, and new cases as added, to identify those

persons who are immediately referrable for training

and employment and developing service plans for them.

(c) With respect to employment objectives, there must

be as a minimum:

(1) Identification of individuals currently ready or

with potentials for employment or training.

(2) Determination of the individuals appropriate for

referral to programs offering training and employment

services and referral of such individuals. (See section

220.35 of this subpart for policies governing referrals to

the Work Incentive Program.)

(3) General and specialized diagnostic assessments

(e.g., vocational, rehabilitation, education, medical, and

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psychological) of health, learning, and other limitations

that prevent involvement in employment or training.

(4) Plans to insure that training and employment lead

to stability of employment in jobs which take full

advantage of the individual’s potential.

(5) Provision of services necessary to deal with

personal and family barriers which prevent or limit

individuals in their use of training and in their

achievement of stable employment.

(6) Provision for utilization of public and voluntary

agencies in the fields of vocational rehabilitation,

health, vocational, and other education, including

specie! attention to the capabilities of rehabilitation

centers and workshops, community action agencies,

neighborhood centers, and similar organizations.

§ 220.18 Child care services.

(a) Child care services, including in-home and out-of-

home services, must be available or provided to all

persons referred to and enrolled in the Work Incentive

Program and to other persons for whom the agency has

required training or employment. Such care must be

suitable for the individual child; and the caretaker

relatives must be involved in the selection of the child

care source to be used if there is more than one source

available. However, when there is only one source

available, the caretaker relatives must accept it unless

they can show that it is unsuitable for their child. The

child care services must be maintained until the

caretaker relatives are reasonably able to make other

satisfactory child care arrangements.

(b) Progr« ss must be made in developing varied child

care resources with the aim of affording parents a

choice in the care of their children.

(c) All child care services must meet the following

standards:

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- care. (i) Homemaker service under agency

ee = the standards established by the

State agency which must be reasonably in accord with

the recommended standards of related ——

standard setting organizations, such as the Chi -

Welfare League of America and the National Counci

for Homemaker Services.

ii) Child care provided by relatives, friends, or

> Fo must oho standards established by the oo

agency that, as a minimum, cover age, physical an

emotional health, capacity and time of the caretaker to

provide adequate care; hours of care; maximum

number of children to be cared for; feeding and health

care of the children.

Out-of-home care. Day care facilities, used for the

an of Sideen, must be licensed by the State or

approved as meeting the standards for such licensing

and day care facilities and services must comply with

the standards of the Federal Interagency Day Care

Requirements and the requirements of section 422(a)(1)

of the Social Security Act (see § 220.56).

(d) Both in-home and out-of-home child care provided

for persons referred to the WIN program must be a

service cost rather than an assistance cost.

(34 F.R. 1354, Jan. 28, 1969, as amended at 36 F.R. 5605,

Mar. 25, 1971]

§ 220.19 Foster care services.

Effective July 1, 1969, services must be provided for

children receiving aid in the form of foster care under

title [V—part A, to:

(a) Assure placement appropriate to the needs of each

child.

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(b) Assure that the child receives proper care in such

placement.

(c) Determine continued appropriateness of and need

for placement through periodic reviews, at least

annually.

(d) improve the conditions in the home from which the

cnild was removed, so that the child may be returned to

his own home, or otherwise plan for the placement of the

child in the home of other relatives, adoptive home or

continued foster care, as appropriate.

(e) Work with other public agencies that have

responsibility for the placement and care of any such

children to assure that these agencies carry out their

responsibilities in accordance with their agreement

with the State agency administering or supervising the

administration of AFDC.

§ 220.20 Prevention or reduction of births out-of-

wedlock.

There must be a program to prevent or reduce the

incidence of births out-of-wedlock and to otherwise

strengthen family life. Services to prevent and reduce

births out-of-wedlock must be extended progressively to

all appropriate adults and youths, with initial priority

for mothers who have had children born out-of-wedlock

within the 2 preceding years or who are currently

pregnant out-of-wedlock and for youths living in

conditions immediately conducive to births out-of-

wedlock. Services must be provided for fathers of such

children.

§ 220.21 Family planning services.

Family planning services must be offered and

provided to those individuals wishing such services,

specifically including medical contraceptive services

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(diagnosis, treatment, supplies, and followup), social

services and educational services. Such services must be

available without regard to marital status, age, or

parenthood. Individuals must be assured choice of

method and there must be arrangements with varied

medical resources so that individuals can be assured

choice of source of service. Acceptance of any services

must be voluntary on the part of the individual and may

not be a prerequisite or impediment to eligibility for the

receipt of any other service or aid under the plan.

Medical services must be provided in accordance with

the standards of other State programs providing

medical services for family planning (e.g., maternal and

child health services).

§ 220.22 Services to meet particular needs of

families and children.

Services must be provided to families and children as

follows:

(a) Assist children to obtain education in accordance

with their capacities.

(b) Improve family living through assisting parents to

overcome homemaking and housing problems.

(c) Assist in reuniting families.

(d) Assist parents in money management, including

consumer education.

(e) Assist parent in child rearing.

(f) Offer education for family living.

(g) Evaluate the need for, and in appropriate cases

provide for, protective and vendor payments and

related services.

i

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§ 220.23 Protective servi i i

nl ces and cooperation with

(a) Protective services musi be provided to children

receiving aid who are found to be in danger of or subject

to neglect, abuse or exploitation.

(b) There must be a specific plan whereby the State or

local agency will bring cases of child abuse, neglect or

exploitation to the attention of appropriate courts or law

enforcement agencies. The same criteria for referral to

courts or law enforcement agencies must be used as are

used by the State or local agency for all other parents

and children. There must be continued cooperation with

such courts ‘and officials to assist in planning for the

child to serve his best interests.

§ 220.24 Services related to health needs.

Services must be provided to families a

with health needs through identifying gy

preventive and remedial medical services; locating

organizations or individuals who are willing to provide

quality services on a dignified basis and helping to solve

weed at ene oo prevent them from obtaining

medical services and f

of the services available. anleaitseadn celal

REQUIREMENTS APPLICABLE TO THE

WORK INCENTIVE PRO )

TITLE IV, PART A ee ee

§ 220.35 State plan requirements.

A State plan under title IV-A of the Soci

Act must provide that: ignecainacied

(a) Within the single organizational uni i

( | units required b

§ 220.2, there will be separate administrative oats

which will, to the maximum extent feasible, perform

functions only in connection with the WIN program;

|

ee 0 re ee tte os ems

C-85

(b) These separate units will be responsible for:

(1) Developing jointly with the manpower agency a

statewide operational plan and approving such plan in

accordance with section 433(b) of the Act;

(2) Developing self-support services plans for

individuals registered pursuant to § 233.11 of this

chapter when requested by the manpower agency

pursuant to section 433(a) of the Act. Plans for

unemployed fathers must be developed so as to permit

certification within 30 days of receipt of assistance. Self-

support services under the WIN program are limited to:

(i) The following mandatory services, pursuant to title

IV-Aof the Act and the regulations in this part: Child

care, family planning, health-related services,

homemaker services, home management and other

functional educational services, housing improvement

services, and transportation as needed to make self-

support services accessible;

(ii) Selected vocational ,rehabilitation services, as

defined in the Vocational Rehabilitation Act, which

cannot. otherwise be funded by the vocational

rehabilitation agency; and

(iii) Employment-related medical and remedial care

and services not included under the State’s title XIX

plan nor otherwise available under any other federally

assisted program;

(3) Participating with the manpower agency in

development of individual employability plans;

(4) Providing such services as are approved or added

by the manpower agency in the self-sup, - services

plan, to enable the registered individual t » «. ‘cipate

in work or training activities under the WIN program.

Under this requirement:

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(i) Child care that is suitableto the child’s needs and

meets the standards specified in § 220.18(c) will be

provided if needed. When more than one kind of child

care is available, the mother or other caretaker relative

may choose the type, but may not refuse to accept child

care services if they are available; and

(ii) Self-support services as needed will be continued

during the individual’s participation in the WIN

program and after entry into employment until he has

completed the job entry period or has been terminated

from WIN by the manpower agency, according to

definitions established by the Department of Labor;

(5) Certifying in writing to the manpower agency that

the individual is ready for employment or training

under the WIN program, when the manpower agency

requests such certification and the supportive services,

if any, have been provided or arranged for. Unemployed

fathers must be certified within 30 days after receipt of

aid. Failure to certify 15 percent of the average number

of individuals in the State who are required to be

registered during any fiscal year after June 30, 1973,

will result in a proportionate reduction in Federal funds

for assistance payments (see § 233.10(b) (5) of this

chapter); and

(6) Providing counseling and other services, for a

period of 60 days, to individuals determined by the

Secretary of Labor to have refused training or

employment under the WIN program without good

cause, for the purpose of persuading them to accept

appropriate training or employment (see § 233.11(f) of

this chapter for sanctions). Under this requirement,

once a period of counseling and other services has been

provided to an individual, and he has again been found

by the Secretary of Labor to have refused training or

employment under WIN without good cause, the agency

shall not provide another period of counseling and other

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services, unless it is warranted by unusual

circumstances.

(c) The State agency will assure a non-Federal

contribution to the manpower agency for 10 percent of

the cost of operations of the WIN program, and, for this

purpose, will plan jointly with the manpower agency for

the development and use of in-kind resources. (See §

220.36.) The State agency must make the arrangements

for, but need not itself make, the contribution.

[37 F.R. 12200, June 20, 1972]

§ 220.36 Non-Federal contribution.

For purposes of § 220.35(c):

(a) Except as specifically authorized by Federal

statute, a non-Federal contribution may nut include

funds or expenditures which are used to meet the

Federal or State share of other programs receiving

Federal financial assistance.

(b) The non-Federal contribution may be in cash or in-

kind. A contribution in-kind may be made in the form of

the provision of services, staff, space, equipment, or any

other goods or services of value essential to the operation

of the work incentive program. Where such

contribution is in-kind, the amount thereof will be

determined on the basis of its reasonable value as

established by suitable documentation.

(c) The costs of operation of the work incentive

program which may be met by the non-Federal

contribution may include the costs of traning,

supervision, materials, administration, incentive

payments, transportation, and other items as are

authorized by the manpower agency, but may not

include any reimbursement for time spent by

participants in work, training, or other participation in

such program.

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(d) If the State agency fails to make arrangements for

the non-Federal contribution of 10 percent of the total

statewide work incentive program costs of operation,

the Secretary of Health, Education, and Welfare may

withhold under the conditions specified in the law the

equivalent of amounts to be paid from the grants to the

State agency for the public assistance titles.

[37 F.R. 12200, June 20, 1972]

MANDATORY SERVICES APPLICABLE TO

TITLE IV, PART B

§ 220.40 Child welfare services.

(a) The State plan must assure progressive extension

of child welfare services so that such services will be

available in all political subdivisions by J uly 1, 1975, for

all children in need of them; including annual progress

in one or more of the following dimensions:

(1) Covering additional political subdivisions;

(2) Reaching additional children in need of services;

(3) Expanding the range of services provided;

(4) Improving the quality of services through

additional trained child welfare personnel.

(b) The State plan must provide that:

(1) As a basis for giving priority in extending the

p-ovision of child welfare services to communities with

the greatest need for such services, there will be a

reasonable and objective method for assessing this need,

taking into consideration their relative financial need.

(2) Asa minimum, there will be child welfare services

to children in their own homes and the provision of

foster care of children.

C-89

; : ; , tic

There will be a case plan, including diagnos |

ee Bsa and plan for treatment, when a child is

accepted for child welfare services; and periodic review

of such plan.

Child welfare services will be available on the basis

of a for services and shall not be denied on the basis of

financial need, legal residence, social status or religion.

(5) Child welfare services will not be limited to AFDC

cases.

HER REQUIREMENTS APPLICABLE TO

TITLE IV, PARTS A AND B, AS INDICATED

§ 220.45 Community planning (applicable to IV-A

and B).

(a) There must be progress in developing State and

local agency leadership for participation in <oaeorga!

affairs which will result in the development )

community resources necessary to achieve program

objectives of title IV, parts A and B.

ken

b) The State plan must also show the steps to be ta

“anes this objective, including the staffing for this

function.

§ 220.46 Reports and evaluations (applicable to

IV-A and B).

Such reports and evaluations must be furnished to the

Secretary as he may specify, showing the socpe, results

and costs of services for families and children.

aa , d

220.47 Implementation; local agencies an

’ service contractors (applicable to IV-A and B).

(a) The State agency must have methods of assuring

that local agencies are meeting the plan requirements,

and where services are purchased, of monitoring local

C-90

agencies and service contractors to insure that the plan

requirements are being met and funds are being

appropriately and effectively used. See separate SRS

policy governing purchase of services.

(b) The State plan must also describe the methods to

be used to carry out this requirement.

§ 220.48 Establishing paternity and securing

support for children receiving aid (applicable to

IV-A).

(a) There must be a program for establishing

paternity for children born out-of-wedlock and for

securing financial support for them and for all other

children receiving AFDC who have been deserted by

their parents or other legally liable persons. Efforts

must be made to locate putative and absent parents and

there must be a determination of their potential to

provide financial support. There must be provision for

the utilization of reciprocal arrangements with other

States to obtain or enforce court orders for support.

There must be a single staff unit in the State agency and

in large local agencies to administer this program. (The

files of the Social Security Administration are available

to the State agencies when other efforts have failed to

provide the necessary information on the address of a

parent.)

(b) There must be a plan of cooperation with courts

and law enforcement officials and pertinent

information must be provided them when their

assistance is needed in locating putative or deserting

fathers, establishing paternity and security support.

(c) In developing plans for cooperation with courts

and law enforcement officials, there must be agreement

that the information provided by the State or local

agency will be used only for the purpose intended. There

must be provision for financial arrangement to

8 eee

C-91

reimburse courts and law enforcement officials when it

is found necessary for them to undertake services

beyond those usually provided in such cases.

(d) There must ve cooperation with other State

welfare agencies administering AFDC in locating

parents of an AFDC child against whom a support

petition has been filed in another State and in

attempting to secure compliance by a parent now

residing in the agency’s own State.

(e) Clearance procedures established with the

Internal Revenue Service will be used in respect to any

parents of AFDC children whose location is unknown

and who are failing to comply with existing court orders

for support payments or against whom petitions for

orders have been filed. (See separate issuance related to

these procedures.)

§ 220.49 Other plan requirements for child

welfare services under title IV-B (see also

Subpart D of this part).

(a) Single State agency. (1) (i) The State plan shall

designate a State agency as the single agency for the

administration of the plan or for supervision of the

administration of part of the plan by local agencies.

(ii) Effective July 1, 1969, the State plan must provide

’ that the State agency responsible for the State plan

approved under title IV-A will also administer or

supervise the administration of the plan under title IV-

B, except that

(a) if on January 2, 1968 the State agency admini-

stering the plan under title IV-B is different from the

State agency responsible for the State plan approved

under title IV-A, the requirement in this subdivision (ii)

shall not apply so long as such agencies are different;

C-92

(b) if on January 2, 1968 the local agency

administering the plan approved under title IV-B is

different from the local agency administering the plan

approved under title IV-A, the requirement in this

subdivision (ii) shall not apply with respect to such local

agencies so long as such agencies are different.

(2) The State plan shall set forth the authority of the

State agency under State law for the administration of

the program. Where there is administration by local

agencies, the plan shall set forth the legal basis for such

administration or for the supervision of such

administration by the State agency. Citations to all

directly pertinent laws and copies of all interpretations

of such laws by appropriate State officials, and citations

to all directly pertinent interpretations of laws by

courts, shall be furnished as part of the plan.

(b) Organization for administration. The State plan

shall describe the organization of the State agency for

the administration of the plan and of any local agencies

engaged in such administration. It shall also describe

the methods of administration utilized by the State

agency in the administration of the plan and by any local

agencies engaged in such administration. Where there

is administration by local agencies, the State plan shall

describe the nature and extent of the supervision

exercised by the State agency.

(c) Personnel standards. (1) There shall be, with

respect to the employees of the State agency and those of

local agencies, personnel administration on a merit

basis which shall be in accordance with current Federal

Standards for a Merit System of Personnel

Administration in 45 CFR Part 70. The State plan shall

contain necessary materials relating to personnel

administration to permit evaluation for compliance

with the said Standards for a Merit System of Personnel

Administration.

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(2) The State plan must provide that the State agency

will develop and implement an affirmative action plan

for equal employment opportunity in all aspects of

personnel administration as specified in § 70.4 of this

title. The affirmative action plan will provide for

specific action steps and timetables to assure such equal

opportunity. The plan shall be made available for

review upon request.

(d) Coordination with service under AFDC. There

shall be coordination between child welfare services and

services in AFDC with a view to provision of welfare

and related services which will best promote the welfare

of such children and their families.

(e) Reports. The State plan shall provide that the State

agency will make such reports with respect to any and

all phases of the State program of child welfare services

in such form and containing such information as the

Bureau may find necessary to assure the correctness

and verification of such reports.

(34 F.R. 1354, Jan. 28, 1969, as amended at 35 F.R. 315,

Jan. 8, 1970; 37 F.R. 14723, July 22, 1972]

Subpart B—Optional Provisions

§ 220.50 General.

If a State elects under title IV-A to provide services

for additional groups of families and children, i.e.,

current applicants or former or potential applicants and

recipients of public assistance, the State plan:

(a) Must identify such group or groups and specify the

services to be made available to such group;

(b) Contain provisions committing the State to meet

the requirements in this subpart;

(c) Indicate the steps to be taken to meet those

requirements; and

C-94

(d) Provide for the submission of such implementation

and progress reports as may be specified.

SERVICES IN AID TO FAMILIES WITH

DEPENDENT CHILDREN

§ 220.51 Range of optional services.

(a) The Social Security Act (sec. 406(d) ) defines the

full range of family services in AFDC as follows: “* * *

services to a family or any member thereof for the

purpose of preserving, rehabilitating, reuniting, or

strengthening the family, and such other services as wil]

assist members of a family to attain or retain capability

for the maximum self-support and _ personal

independence.” ‘

(b) The full range of or selected family services, and

child welfare services as defined in this subpart, may be

included except for those services excluded in § 220.61.

(c) Following are types of selected services:

(1) Child care services. Child care services provided to

families other than those required in § 220.15, must

meet the standards required in that section.

(2) Emergency assistance—services. Emergency

assistance in the form of services to needy families with

children, including migrants, may be provided. Such

services must be planned and staffed, so as to assure

immediate accessibility and prompt response, and

separate policy instructions relating to emergency

assistance must apply. (These separate policies do not

apply to use of title IV-B funds.)

(3) Educational and training services. Educational

and training services may be included where the Work

Incentive Program has not been initiated in a local

jurisdiction or is inadequate in scope or size to meet the

needs of recipients; or where the Work Incentive

oo eemmnigd

C-95

Program has been initiated and there is an agreement

with representatives of the Labor Department that

these services are not available to recipients. Full use

must be made of services available through the

Employment Service.

(4) Legal services. Legal services, in addition to those

required in §220.25, may be included for families

desiring the help of lawyers with their legal problems

(see separate policies governing the provision of such

services).

§ 220.52 Coverage of optional groups for services.

(a) The agency may elect to provide services to all or to

reasonably classified subgroups of the following:

(1) Families and children who are current applicants

for financial assistance.

(2) Families and children who are former applicants

or recipients of financial assistance.

(3) Families and children who are likely to become

applicants for or recipients of financial assistance, i.e.,

those who:

(i) Are eligible for medical assistance as medically

needy persons, under the States title XIX plan.

(ii) Would be eligible for financial assistance if the

earnings exemption granted to recipients applied to

them.

(iii) Are likely, within 5 years, to become recipients of

financial assistance.

(iv) are at or near dependency level, including those in

low-income neighborhoods and among other groups

that might otherwise include more AFDC cases, where

services are provided on a.group basis.

C-96

(4) All other families and children for information and

referral service only.

(b) All families and children in the above groups, or a

selected reasonable classification of families and

ehthdren with common problems or common service

ceeds, may be included.

CHILD WELFARE SERVICES

§ 220.55 Range of optional services and groups to

be served.

(a) The Social Security Act (sec. 425) defines the full

range of child welfare services as follows: “ * * * public

social services which supplement, or substitute for, (1)

parental care and supervision for the purpose of

pireventing or remedying, or assisting in the solution of

problems which may result in the neglect, abuse,

e:<ploitation, or delinquency of children, (2) protecting

anc caring for homeless, dependent, or neglected

chiidren, (3) protecting and promoting the welfare of

children of working mothers, and (4) otherwise

protecting and promoting the welfare of children,

including the strengthening of their own homes where

possible or, where needed, the provision of adequate

care of children away from their homes in foster family

hernes or day care or other child care facilities.”

§ 220.56 Day care services.

(a) If day care services are included under title IV-B,

they must meet the standards required in § 220.18(c)(2),

ard inaddition, the State plan must indicate compliance

with the following:

(1) Cooperative arrangements with State health and

ecucation agencies to assure maximum utilization of

such agencies in the provision of health and education

services for children in day care.

o nee we wes ee

C-97

(2) An Advisory committee on day care services as set

forth in § 220.4(b).

(3) A reasonable and objective method for

determining the priorities of need, as a basis for giving

priority, in determining the existance of need for day

care, to members of low-income or other groups in the

population and to geographical areas which have the

greatest relative need for the extension of day care.

(4) Specific criteria for determining the need of each

child for care and protection through day care services.

(5) Determination that day care is in the best interests

of the child and the family.

(6) Provision for determining, on an objective basis,

the ability of families to pay for part or all of the cost of

day care and for payment of reasonable fees by families

able to pay.

(7) Provision for the development and implementation

of arrangements for the more effective involvement of

the parent or parents in the appropriate care of the child

and the improvement of his health and development.

(8) Provision of day care only in facilities (including

private homes) which are licensed by the State or

approved as meeting the standards for such licensing.

Subpart C—Federal Financial Participation

§ 220.60 General.

The regulations in this subpart deal separately with

Federal financial participation in the costs of services

under the AFDC and Child Welfare Services programs

because these programs have different legal provisions

governing the extent of Federal funding. However, in

general there are no differences in the kinds of services

oS ates

C-98

or methods of providing services under these two

programs.

§ 220.61 Federal financial participation; AFDC.

(a) General. Federal financial participation is

available in expenditures, as found necessary by the

Secretary.

(1) For the proper and efficient administration of the

plan;

(2) For the costs of providing the services for the

groups of families and children;

(3) For carrying out the activities described in

subparts A and B of these regulations that are included

in the approved State plan. Such participation will be at

the rates prescribed in this subpart.

(b) Persons eligible for service. Federal financial

participation is available under this section only for

services provided to:

(1) A child or relative who is receiving aid under the

plan and to any essential person living in the same

household as such relative and child.

(2) The groups defined in § 220.52: Current applicants

for aid, former and potential applicants or recipients

and other individuals requesting information and

referral service only. In respect to any child or relative

who has formerly been an applicant for or recipient of

aid, counseling and casework services may be provided.

Other services may be provided only to those children or

relatives who have received aid within the previous 2

years and who qualify under the definition of potential

applicants or recipients.

~ ee teed ent ee

C-99

(c) Sources for furnishing services. Federal financial

participation is available under this section for services

furnished:

(1) By State or local agency staff, i.e., full- or part-time

employed staff; and volunteers, or

(2) By purchase, contract, or other cooperative

arrangements with public or private agencies or

individuals, provided that such services are not

available without cost from such sources.

(d) Provisions governing costs of certain services. (1)

Medical and assistance costs. Federal financial

participation under this section will not be available in

expenditures for subsistence and other assistance items

or for medical or remedial care or services, except

(i) For subsistence and medical care when they are

provided as essential components of a comprehensive

service program of a facility and their costs are not

separately identifiable, such as, in a rehabilitation

center, a day care facility or a maternity home;

(ii) For medical and remedial care and services as

part of family planning services;

(iii) For required medical examinations for persons

caring for children under agency auspices, when not

otherwise available or not included in purchase

arrangements;

(iv) For identifying medical problems of children in

child care facilities; or

(v) For medical d

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