April 26, 2018
Petition for Review of a Final Order of the District of
Columbia Office of Administrative Hearings (DHS-371-15) (Hon.
Sharon E. Goodie, Administrative Law Judge)
Jennifer Mezey, with whom Jonathan H. Levy and David Carpman,
Legal Aid Society of the District of Columbia, were on the
brief, for the petitioner.
E. Pittman, with whom Karl A. Racine, Attorney General for
the District of Columbia, and Todd S. Kim and Loren L.
AliKhan, Solicitor General and Deputy Solicitor General at
the time the brief was filed, were on the brief, for the
Blackburne-Rigsby, Chief Judge, Easterly, Associate Judge,
and K ravitz, Associate Judge, Superior Court of the District
of Columbia [*]
KRAVITZ, ASSOCIATE JUDGE
Black seeks review of a decision of an administrative law
judge at the Office of Administrative Hearings denying her
request for retroactive benefits under the Program on Work,
Empowerment, and Responsibility. The program, known as POWER,
provides cash assistance to residents of the District of
Columbia who have minor children and meet the financial
eligibility standards of the Temporary Assistance for Needy
Families program (TANF) but are unable to comply with
TANF's work requirements because of a physical or mental
incapacity or a need to care for an incapacitated household
member. Ms. Black has received POWER benefits since October
2015 and was a TANF recipient for many years before then. She
contends that the Department of Human Services (DHS) was
required to screen her for POWER eligibility when she
recertified for TANF in February 2014 and that she was
eligible for POWER as a matter of law at that time because of
her daughter's receipt of Supplemental Security Income
(SSI) disability benefits.
Black's claim of automatic POWER eligibility due to her
daughter's SSI disability designation is foreclosed by
the plain language of the POWER statute. We nonetheless
reverse the decision of the Office of Administrative
Hearings, concluding that the administrative law judge
applied an erroneous legal standard in determining that Ms.
Black presented insufficient evidence of her daughter's
incapacity to establish eligibility for POWER benefits.
Because it also appears that DHS failed to comply with a
clear statutory mandate to screen for POWER eligibility when
Ms. Black recertified for TANF in February 2014, we remand to
DHS with instructions to screen Ms. Black for the POWER
program retroactive to that time.
Relevant Public Benefits Programs
overview of the relevant public assistance programs is
essential to a proper understanding of our analysis to
Temporary Assistance for Needy Families
a federally-funded program that provides cash assistance to
families with minor children and little or no income.
See 42 U.S.C. §§ 601-619 (2012). Congress
funds the program through block grants to the states
(including the District of Columbia), id. §
603, with a 60-month limit on the total time an adult may
receive TANF benefits funded by federal grants, id.
§ 608 (a)(7)(A). To promote self-sufficiency and reduce
dependence, federal law mandates that states impose work
requirements on benefits recipients. Id.
§§ 602 (a)(1)(A)(ii)-(iii), 607. District of
Columbia residents who receive TANF benefits thus must work
or participate in job search or job readiness activities to
avoid cuts in benefits or other sanctions. D.C. Code
§§ 4-205.19b to 4-205.19f (2012 Repl).
amount of money a District of Columbia family receives under
TANF is calculated by deducting the family's income (if
any) from a payment level set by statute for the family's
size. D.C. Code § 4-205.52 (a) (2017 Supp.). A
family's size is generally determined by counting the
dependent children under the age of 18 and their parents
living in the household, id. § 4-205.15 (a),
while excluding children over 18 and household members who
receive SSI benefits, id. § 4-205.15 (e)(1). As
examples, a family with four eligible recipients and no
income receives $463.00 in monthly TANF benefits under
current law; a family with ten eligible recipients and no
income receives $950.00. Id. § 4-205.52 (c).
law permits states to use their own funds to provide TANF
benefits beyond the 60-month limit on the use of federal
funds, 42 U.S.C. § 608 (a)(7)(F), and the District of
Columbia has long exercised this authority, see D.C.
Code § 4-205.11b (2012 Repl). Beginning in 2011,
however, District of Columbia law reduced the amount of TANF
benefits provided to families beyond the 60-month limit, with
payments to those long-term recipients subjected to
successive cuts in 2011, 2013, and 2014 and projected to be
reduced to zero in 2017 and beyond. Id. §§
4-205.11b; 4-205.52 (c-2)-(c-3) (2017 Supp.).
Program on Work, Empowerment, and Responsibility
is a locally-funded program in the District of Columbia that
provides cash assistance to residents who have minor children
and meet the financial eligibility criteria for TANF but are
unable to satisfy TANF's work requirements due to a
physical or mental incapacity. Initially, an "assistance
unit" (household) was eligible for POWER only if the
head of the assistance unit was physically or mentally
incapacitated. D.C. Code § 4-205.72 (b)(2) (2012 Repl.).
Effective October 1, 2013, however, the program was expanded
to include additional categories of eligible households,
including, as relevant here, families in which the head of
the household is "needed in the home, due to medical
necessity, to care for a household member who is physically
or mentally incapacitated." Id. §
4-205.72a (a)(1)(B) (2017 Supp.).
holds significant advantages over TANF for eligible
participants. Recipients of POWER benefits do not have to
work or take part in job search or job readiness activities.
See D.C. Code § 4-205.76 (2012 Repl.)
(requiring only classes and training opportunities). Cash
assistance payments under POWER are in the same amounts as
full TANF benefits, id. §§ 4-205.52,
4-205.78, and are provided (and always have been) without
time limits or reductions after 60 months, id.
§ 4-205.72 (e). And a month in which a person receives
POWER benefits does not count toward the person's
60-month TANF limit, see id. § 4-205.11a,
thereby preserving the person's ability to receive TANF
benefits at the full amount in the event the person loses his
or her eligibility for POWER and wishes to return to the TANF
light of these advantages, DHS, which administers both
programs, is required by law to screen for POWER eligibility
every time a person applies or recertifies for the TANF
program and whenever a TANF applicant or recipient raises an
issue of incapacity or disability. See 29 DCMR
§ 5829.1 ("The Director or his or her designee
shall screen TANF applicants and recipients at the point of
application, recertification, or when incapacity or
disability is raised by the applicant or recipient for the
Program on Work, Employment and Responsibility (POWER) to
determine if the head of the assistance unit has a physical
or mental incapacity."); D.C. Code § 4-205.19a (b)
(2017 Supp.) ("As part of the redetermination of
eligibility, a TANF recipient shall be provided information
about the POWER program and screened for POWER
through a screening or otherwise, it appears that a TANF
applicant or recipient may be eligible for POWER benefits
under D.C. Code § 4-205.72 due to the person's own
physical or mental incapacity, then DHS is required to
conduct a "medical review" to determine whether the
person is in fact incapacitated. Id. § 4-205.74
(a). If it appears that a TANF applicant or recipient may be
eligible for POWER benefits under D.C. Code § 4-205.72a
due to the need to care for a physically or mentally
incapacitated member of the person's household, then DHS
must conduct a "review" to determine whether the
household member is in fact incapacitated and, if so, whether
the head of household is needed in the home. Id.
§ 4-205.74 (a-1).
provisions defining "physical or mental incapacity"
and setting forth the permissible means of proof of
incapacity under TANF and POWER are discussed in detail in
Section III.C of this opinion.
Supplemental Security Income
a federal assistance program that provides cash benefits to
low-income persons who are older than 65 or blind or
disabled. See 42 U.S.C. §§ 1381-1385
(2012). A child under the age of 18 is "disabled"
for the purpose of establishing SSI eligibility if the child
"has a medically determinable physical or mental
impairment, which results in marked and severe functional
limitations, and which can be expected to result in death or
which has lasted or can be expected to last for a continuous
period of not less than 12 months." Id. §
Factual and Procedural Background
Black resides in the District of Columbia with her husband,
her nine children, and one grandchild. Seven of Ms.
Black's children were under the age of 18 at the time of
the administrative hearing, in October 2015. One of the seven
minor children, a 13-year-old girl, had been receiving SSI
benefits for many years due to learning and speech
disabilities that left her functioning academically at a
kindergarten level despite her enrollment in the eighth
grade. Two of the other minor children suffered from
disabilities as well - one with asthma, the other with
effects of lead poisoning - but their conditions were not
sufficiently severe to make them eligible for SSI.
Black was a long-time participant in the TANF program, having
received benefits for more than 200 months by the time of the
administrative hearing. DHS thus began reducing the amount of
Ms. Black's monthly TANF payments in 2011, as by then Ms.
Black was well past the 60-month limit. The first cut, on
April 1, 2011, reduced Ms. Black's payment to $718.00
from $897.00, the full amount at the time for a family with
eight eligible recipients. (Ms. Black, her husband, and the
six minor children not receiving SSI were deemed eligible
recipients.) Additional cuts on October 1, 2013 and October
1, 2014 reduced Ms. Black's monthly payments to $539.00
and then to $319.00.
pro se, Ms. Black made a timely request for a hearing before
the Office of Administrative Hearings (OAH) to challenge both
the October 2014 reduction in her TANF benefits and a further
adjustment made in June 2015 due to confusion over the death
of one child, the aging-out of another, and the birth of a
baby. At a pre-hearing administrative review at DHS on July
15, 2015, Ms. Black and DHS resolved their differences over
the June 2015 adjustment, with ...