The opinion of the court was delivered by: ROBINSON
AUBREY E. ROBINSON, Jr., District Judge.
1. This is an action for declaratory and injunctive relief brought by 13 states against the Secretary of the United States Department of Health, Education and Welfare (HEW) and the Administrator of HEW's Social and Rehabilitation Service (SRS). It challenges certain portions of a memorandum issued by the then Administrator of SRA, John D. Twiname, on December 20, 1972 (Twiname memorandum).
2. The Twiname memorandum sets forth criteria for determining the allowability of state claims for federal financial participation (FFP) in expenditures for social services under various titles of the Social Security Act. The criteria have been and are being used for this purpose. They are applicable to claims covering periods at least through September 30, 1975.
3. The Twiname memorandum is organized under seven "issues," each of which contain one or more questions and the answers thereto. The complaint advanced certain contentions applicable to the Twiname memorandum as a whole, some of which were dealt with in the Court's Order of July 31, 1975, on cross motions for summary judgment. The complaint also alleged that certain portions of the Twiname memorandum (under Issues 1, 4, 5, and 7) constituted changes from past law and practice made without compliance with applicable rule-making procedures. Defendants having conceded that the answer to Issue 7 and a portion of the answer to Issue 1 represented changes from the law and practice prior to the issuance of the Twiname memorandum, and that rule-making procedures were not followed in connection with the memorandum, the Court's Order of July 31, 1975, granted summary judgment to plaintiffs with respect to these changes. Concerning the balance of Issue 1 and Issues 4 and 5, the Court found that there were material questions of fact as to whether the answers constituted changes from prior law and policy and on that basis denied the motions for summary judgment.
4. As to the remaining portion of Issue 1 alleged by plaintiffs to constitute a change from past law and practice, there is no live dispute between the parties since plaintiffs have not identified any facilities that are necessarily excluded from the list of facilities contained in the Twiname memorandum.
STATUTORY AND RELATED BACKGROUND
5. Since 1935 the Social Security Act has provided for grants to the states for public assistance in the following categories: Dependent Children (Title IV);* Aged (Title I) and Blind (Title X). A Disabled category (Title XIV) was added in 1950. Title XVI, added in 1962, authorized (until January 1, 1974) a combined program of aid to the aged, blind and disabled. States desiring to participate in these programs submit Plans describing their programs which must comply with federal requirements and are subject to approval of the HEW Secretary.
6. In 1956 the Act was amended to provide for grants at the 50 percent matching rate for social services provided by the state welfare agency to persons in the above-described categories.
7. In 1962 the Act was amended to provide, inter alia, that:
(a) the Secretary of HEW prescribe "mandatory" services and specify "optional" services for which states would receive federal funds at the 75 percent matching rate provided that all mandatory services were provided. If all mandatory services were not provided, services could still be matched at the 50 percent rate;
(b) services could be provided, at the states' option, to persons who had been or were likely to become recipients of financial assistance (these will hereafter be referred to as the "former" and "potential" categories);
(c) states could enter into agreements with other public agencies (generally referred to as purchase of service arrangements) to provide social services pursuant to the state's State Plan for services;
(d) in the Title IV-A program, programs of service were to be undertaken for children in families receiving AFDC financial assistance.
8. In 1967 (by law signed on January 2, 1968) the Act was further amended as follows:
(a) in Title IV-A, the provision of mandatory services was made a condition to receiving any federal matching funds under Title IV-A, for financial assistance as well as social services;
(c) programs of service were to be undertaken for or on behalf of all members of AFDC families.
9. In 1972 the Act was further amended, effective January 1, 1974, to transfer all social services provisions applicable to the aged, blind and disabled categories to Title VI (coincident with establishment of the Supplemental Security Income program of financial assistance to these categories). In 1974, the Act was further amended, effective October 1, 1975, to eliminate the social services provisions from Titles IV-A and VI and replace them with a new and substantially revised Title XX.
10. On January 28, 1969, HEW published Part 220 of its regulations applicable to the Title IV service programs. Part 220 is divided into four subparts. The first three are relevant to this case and cover Mandatory Provisions (subpart A), Optional Provisions (subpart B), and Federal Financial Participation (subpart C).
11. Also on January 28, 1969, HEW issued Part 226 of the regulations, applicable to the Purchase of Services Under Public Assistance Programs.
12. On November 26, 1970, HEW issued Part 222 of the regulations, applicable to service programs for the adult categories. Part 222 is divided into five subparts: Mandatory Provisions for All Service Programs (subpart A); Additional Mandatory Provisions for Federal Financial Participation at 75 Percent (subpart B); Optional Provisions and Services (subpart C); Definitions (subpart D); Federal Financial Participation (subpart E).
13. The regulations in Parts 220, 222 and 226 generally remained in effect from their adoption until October 1, 1975.
HEW ORGANIZATION AND RESPONSIBILITIES
14. In 1967 SRS was established within HEW to be responsible for the administration of all public assistance programs under the Social Security Act. The first Administrator of SRS was Mary E. Switzer who served until 1970. She was succeeded by John D. Twiname who served until early 1973. In 1969 the Community Services Administration (CSA) was established within SRS to be responsible for administration of the services programs under the public assistance titles.
15. HEW has ten regional offices located throughout the country. Each office contains a Regional Commissioner whose responsibilities cover all programs administered by SRS. The Secretary of HEW has delegated to Regional Commissioners the authority to approve (but not disapprove) State Plans and amendments thereto under the public assistance titles upon finding that they satisfy the requirements of the statute and the implementing regulations. In discharging this function, the Regional Commissioners exercise the broad discretion committed to the Secretary under the Act to act on State Plan submissions.
ADMINISTRATION OF THE SERVICES PROGRAM, 1967-1972
16. The 1967 amendments to the Social Security Act enhanced the opportunity for states, with federal financial support, to strengthen and improve the extent, quality and variety of their service programs, particularly through more effective use of the resources of public and private agencies in addition to the welfare agency. They also afford the opportunity for experimentation and innovation in the methods of service delivery.
18. In response to the 1967 amendments to the Act, the subsequently issued regulations, and the encouragement of CSA officials, a number of states submitted amendments to their Plans to broaden their service programs, particularly through greater utilization of the services available from other agencies and the extension of services to the former and potential categories.
19. In the spring of 1971, it was decided within HEW to issue a policy statement enunciating the opportunities under the amended statute for expanding services programs through purchase of services from other agencies. A statement was issued under Mr. Simonds' signature dated June 17, 1971 (Simonds memorandum) to Regional Commissioners for use as a basis for negotiations with state agencies and evaluation of state plans and for other purposes.
20. James A. Bax succeeded Mr. Simonds as CSA Commissioner coincident with the issuance of the Simonds memorandum. Thereafter, acting pursuant to direction of the Secretary, Under Secretary, and Administrator, Mr. Bax actively encouraged states to expend their services programs, particularly by greater emphasis on new services and new providers.
21. In the several months following issuance of the Simonds memorandum, a number of additional states submitted Plan amendments to broaden their services programs, particularly through the use of services provided by other agencies and the extension of service to the former and potential categories. In a number of instances, several months or longer elapsed between the time of submission of the plan amendments and their approval by Regional Commissioners.
22. State claims for federal financial participation in social services expenditures increased following the 1967 amendments and the implementing regulations. In fiscal year 1970 total social services payments by the federal government were budgeted to be $551,620,000; for fiscal year 1973 the budgeted amount had increased to approximately $1.3 billion. Later estimates indicated that the federal share for 1973 and later years would be substantially greater.
23. Until 1972, there had been no dollar limit on the authorizations in the Social Security Act to match state expenditures for social services. In the State and Local Fiscal Assistance Act of 1972 (commonly known as the Revenue Sharing Act) enacted on October 20, 1972, the Social Security Act was amended to provide a $2.5 billion ceiling on federal expenditures for social services annually beginning July 1, 1972, with each state allotted a maximum share based on its population.
PROGRAM REQUIREMENTS PRIOR TO THE TWINAME MEMORANDUM
24. For many years the principal source of interpretation and guidance on the public assistance programs under the Social Security Act was the Handbook of Public Assistance Administration. This was a several volume collection of requirements, suggestions and discussions on various aspects of public assistance administration which was modified frequently. Beginning in 1969 HEW began codifying portions of the Handbook in the Code of Federal Regulations. The published regulations superseded the Handbook in areas in which there was overlap. The regulations for the services programs were codified in Parts 220, 222, 226 and 205.
25. The Handbook contained extensive discussion of the eligibility determinations process. Published regulations dealt in considerable detail with the eligibility determination process. Nothing in the Handbook, the published regulations or any other official source prior to the Twiname memorandum specified requirements as to the timing of the determination of eligibility for social services. Neither the Handbook nor the published regulations prohibited the use of sampling or other statistical techniques for determining eligibility for services.
27. Sampling is a widely accepted methodology used in various contexts in the public assistance programs. For example, it has long been an accepted method in developing cost allocation systems used in claims for federal participation in social service expenditures. It has been used in audits and in program reviews. It was used in connection with the "declaration" method for determining eligibility for financial assistance which, for several years, HEW required the states to employ. It is utilized in the quality control program in AFDC financial assistance.
28. In the Simonds memorandum issued June 17, 1971, the CSA Commissioner advised states and regional officials that sampling to determine eligibility was one approach to streamlining service delivery that was permissible under the federal program.
29. A memorandum was sent to regional Commissioners from the Acting Commissioner of CSA dated August 11, 1972, which for the first time advised that statistical procedures for determining eligibility for social services (such as sampling) was impermissible and that individual eligibility determinations were required in each case. This memorandum was withdrawn four days later by Michio Suzuki, Acting Assistant Commissioner for Program Management of CSA, acting on instructions from the office of the Secretary. In oral advice to all regional offices and by written confirming memorandum to a long list of HEW personnel, Mr. Suzuki advised that the memorandum of August 11 was not to be used in any form or fashion, that its contents were not to be shared with anyone, and that no directions, discussion or interpretations were to be based on the August 11 memorandum. The August 11 memorandum was withdrawn because HEW did not want at that time to impose any significant new restrictions on the states in the administration of their services programs.
30. On September 29, 1972, a memorandum was distributed to states in HEW Region I from the regional office setting forth the prohibition on the use of statistical procedures to determine eligibility in the same words as were contained in the withdrawn August 11 memorandum. No other region distributed a similar memorandum. The Region I memorandum conflicted with the withdrawal of the August 11 memorandum and was vigorously protested by states in Region I.
31. There was a service plan concept in the federal social services program for many years. No specific format or definition of a service plan was provided by HEW and state practices concerning service planning varied widely. The concept of a service plan involves the identification of a goal to be achieved by the provision of service to a person with a problem. There need be no single document or series of discrete documents establishing a service plan, although this is not precluded. There need be no social study, as had been commonly employed in the past and which some states continued to utilize for current AFDC cases. A service plan is often inferred from a course of dealings between the recipient and the service worker or provider. A service plan was to aid in identifying the services needed by a recipient and to facilitate the provision of those services. It is a technique for expanding service delivery.
32. The subject of service plans for recipients of social services is covered in the published regulations. Section 220.16 provides for the preparation of service plans for each family and child who requires service. For those in the financial assistance caseload on or before March 31, 1969, a plan was required to be developed by January 1, 1970, to be maintained on a continuous basis, and to be reviewed as often as necessary but at least annually. For those added to the financial assistance caseload after March 31, 1969, the plan was required within one year of approval for financial assistance.
33. Section 220.16 implements the requirement of section 402(a)(14) of the Social Security Act. It is among the regulations grouped under the heading "Mandatory Services Applicable to Title IV, Part A" which comes under Subpart A-Mandatory Provisions. It is applicable only to current recipients of financial assistance. There are no service plan provisions in the regulations applicable to service recipients in the former and potential categories. This understanding of the legal scope of the regulations was communicated to state officials through regional officials by the chief of the policy division within CSA responsible for the interpretation of Title IV-A program requirements.
34. Section 222.22 provides for the assessment of individuals' service needs and implementation of individual service plans in all cases where service is needed. These plans must be reviewed as often as necessary but at least annually. Each service plan and the services provided must be recorded. It is among the regulations which come under Subpart B-Additional Mandatory Provisions for Federal Financial Participation at 75 Percent. It need not be complied with in order for a state to receive federal financial participation ...