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                 THE SUPREME COURT OF NEW HAMPSHIRE

                              ___________________________


Merrimack
No. 2015-0442


                               CARRIE HENDRICK & a.

                                          v.

    NEW HAMPSHIRE DEPARTMENT OF HEALTH AND HUMAN SERVICES

                           Argued: January 13, 2016
                         Opinion Issued: August 2, 2016

       New Hampshire Legal Assistance, of Concord and Portsmouth (Ruth D.
Heintz and Kay E. Drought on the brief, and Ms. Heintz orally), for the
plaintiffs.


       Joseph A. Foster, attorney general (MaryBeth L. Misluk, attorney, and
Lynmarie Cusack, assistant attorney general, on the brief, and Ms. Misluk
orally), for the defendant.


       United States Department of Justice, of Washington, D.C. (Jeffrey E.
Sandberg, attorney, on the brief), and United States Attorney’s Office, of
Concord (T. David Plourde, chief, civil division, on the brief), as amicus curiae.
      Disability Rights Center – NH, of Concord (C. Adrienne Mallinson on the
brief), for the Disability Rights Center – NH, the New Hampshire Association of
Special Education Administrators, and the National Disability Rights Network,
as amici curiae.

     DALIANIS, C.J. The plaintiffs, Carrie Hendrick and Jamie Birmingham,
appeal an order of the Superior Court (Smukler, J.) granting summary
judgment to the defendant, the New Hampshire Department of Health and
Human Services (DHHS). We reverse and remand.

I. Legal Framework

       The issue before us is the constitutionality of New Hampshire
Administrative Rules, He-W 654.04(c). The rule requires DHHS to include a
child’s federal Supplemental Security Income (SSI) in the calculation of a
family’s eligibility for benefits under the federal Temporary Assistance for Needy
Families program (TANF), as administered by the State’s Financial Assistance
to Needy Families program (FANF). We hold that the rule violates the
Supremacy Clause of the United States Constitution. See U.S. CONST. art. VI,
cl. 2. For context, we provide a brief overview of the applicable federal and
state statutes and regulations.

      A. Federal Law

            1. SSI

      The SSI program, codified as Title XVI of the Social Security Act, is a
needs-based federal assistance program that sets a “guaranteed minimum
income level” for individuals “who have attained age 65” or who “are blind or
disabled.” Sullivan v. Zebley, 493 U.S. 521, 524 (1990) (quotations omitted);
see 42 U.S.C. § 1381 (2012). SSI payments are funded by the federal
government and administered by the Social Security Administration (SSA). See
42 U.S.C. § 1383 (2012 & Supp. II 2014).

      For a child to be eligible for SSI payments, the child must be blind or
disabled and have limited income and resources. See 42 U.S.C. § 1382(a)(1)
(2012). A child is “disabled” if he or she has a “physical or mental impairment”
that results in “marked and severe functional limitations,” and which can be
expected either to result in death or to last continuously for at least one year.
42 U.S.C. § 1382c(a)(3)(C)(i) (2012). The requirement that the child have
limited income and resources is met when the child has less than a certain
amount in assets, 20 C.F.R. § 416.1205(a), (c) (2015), and “countable income”
below the federal financial benefit rate, 20 C.F.R. §§ 416.1110-416.1182
(2015).


                                        2
        For SSI beneficiaries who are unable to manage their own payments “due
to a mental or physical condition or due to their youth,” the beneficiary’s
payments are directed to a third-party “representative payee.” 20 C.F.R.
§ 416.601(b) (2015); see 42 U.S.C. § 1383(a)(2)(A)(ii)(I) (2012). The statute
directs the representative payee to use SSI funds “for the use and benefit” of
the child. 42 U.S.C. § 1383(a)(2)(A)(ii)(I). A representative payee who “converts
such payment, or any part thereof, to a use other than for the use and benefit
of” the child commits “misuse of benefits.” 42 U.S.C. § 1383(a)(2)(A)(iv) (2012).
A representative payee who commits “misuse of benefits” is subject to a range
of civil and criminal penalties. See, e.g., 42 U.S.C. § 1383a(a)(4) (2012) (fine
and/or imprisonment of up to 5 years); id. § 1383(a)(2)(H)(i) (2012) (restitution);
id. § 1383a(b) (2012) (same).

       The statute authorizes the SSA to implement regulations in
administering the SSI program, 42 U.S.C. § 405(a) (2012), including
prescribing “the meaning of the term ‘use and benefit’ for purposes” of
preventing misuse of benefits, id. § 1383(a)(2)(A)(iv) (2012). The SSA has
promulgated “[d]etailed regulations govern[ing] a representative payee’s use of
[SSI] benefits.” Washington State Dept. of Social and Health Servs. v.
Guardianship Estate of Keffeler, 537 U.S. 371, 376 (2003). A representative
payee who receives SSI funds on behalf of a disabled child must “[u]se the
benefits received on [the child’s] behalf only for [the child’s] use and benefit in a
manner and for the purposes [the representative payee] determines . . . to be in
[the child’s] best interests.” 20 C.F.R. § 416.635(a) (2015). SSI funds that “are
used for the [child’s] current maintenance” are considered to “have been used
for the use and benefit of the [child].” 20 C.F.R. § 416.640(a) (2015). “Current
maintenance includes costs incurred in obtaining food, shelter, clothing,
medical care and personal comfort items.” Id. In addition, the representative
payee must “[e]nsure that [the child is] receiving treatment to the extent
considered medically necessary and available for the condition that was the
basis for providing benefits if [the child is] under age 18.” 20 C.F.R.
§ 416.635(g) (2015) (citation omitted). Any funds not spent on the child’s
current maintenance must be “conserved or invested on behalf of the [child].”
20 C.F.R. § 416.645(a) (2015). Representative payees are required to submit
an annual accounting to the SSA informing the agency how much of the SSI
benefit was spent on the beneficiary’s care and support, and how much was
saved. 20 C.F.R. § 416.665 (2015).

             2. TANF

      The TANF program, codified as Title IV-A of the Social Security Act,
provides federal block-grant funding to states to create public assistance
programs that offer, among other things, cash assistance to needy families with
children. 42 U.S.C. §§ 601-629m (2012 & Supp. II 2014). Congress enacted
TANF in 1996 to replace the Aid to Families with Dependent Children program
(AFDC). See Personal Responsibility and Work Opportunity Reconciliation Act


                                         3
of 1996, Pub. L. No. 104-193, 110 Stat. 2105 (1996). “Unlike AFDC, TANF is
not an open-ended entitlement program.” Arizona v. Shalala, 121 F. Supp. 2d
40, 45 (D.D.C. 2000).

      Under TANF, each participating state designs its own public assistance
program. See 42 U.S.C. § 602 (2012). A state TANF program should advance
four goals: (1) providing assistance to needy families “so that children may be
cared for in their own homes”; (2) ending the dependence of needy parents on
government benefits “by promoting job preparation, work, and marriage”; (3)
preventing and reducing the number of out-of-wedlock pregnancies; and (4)
encouraging “the formation and maintenance of two-parent families.” Id.
§ 601(a)(1)-(4) (2012). A state may use its federal block-grant funds “in any
manner that is reasonably calculated to accomplish” those purposes. Id.
§ 604(a)(1) (2012). States are directed to “set forth objective criteria for the
delivery of benefits and the determination of eligibility and for fair and
equitable treatment.” Id. § 602(a)(1)(B)(iii) (2012).

      B. New Hampshire Law – FANF

      New Hampshire uses its federal TANF block grant to operate several
public assistance programs, including a program to provide cash assistance to
families with dependent children, through the State’s FANF program. See RSA
167:77-:93 (2014 & Supp. 2015); N.H. Admin. Rules, He-W 601.04(g).

      To determine eligibility for FANF assistance, DHHS first determines the
“assistance group,” which is the group of individuals who live together and who
are considered as a unit in making FANF eligibility determinations. See RSA
167:79, II (2014). The statute provides, in pertinent part:

             The following persons shall be included in the assistance
      group, unless such person receives foster care or adoption
      assistance, if living in the same household or temporarily absent
      from the household: any dependent child and all minor blood-
      related, step, or adoptive brothers and sisters, and all natural,
      step, or adoptive parents of such children, including cohabitating
      adults who share a minor child. In the case of a minor parent, the
      assistance unit may also include all natural, step, or adoptive
      parents of the minor parent and all minor blood-related, step or
      adoptive brothers and sisters.

Id. DHHS has issued rules that further define the “[a]ssistance group” as “the
individuals living together . . . whose needs, income and/or resources are
considered and combined together when determining eligibility or the amount
of benefits for financial or medical assistance.” N.H. Admin. Rules, He-W
601.01(u).



                                        4
      DHHS then calculates the assistance group’s available income and
resources in order to determine whether the group is eligible for FANF benefits.
The statute provides that “[e]ligibility for assistance shall be based in part on
the available countable earned and unearned income of the persons in the
assistance group.” RSA 167:80, I (2014). DHHS is required to include “[a]ll
forms of earned and unearned income” of any member of the assistance group,
unless that type of income is specifically excluded by statute. RSA 167:80, III;
see RSA 167:80, IV. Income that shall be excluded includes, among other
things, “Federal, state, and local means-tested assistance other than means-
tested assistance that is defined as included by . . . rules adopted [by DHHS].”
RSA 167:80, IV(h) (2014).

       The case before us is based upon changes in 2012 and 2013 to RSA
chapter 167 and its regulations. Prior to its amendment in 2012, RSA 167:79,
II expressly excluded persons receiving “state supplemental assistance or
supplemental security benefits under Title XVI of the Social Security Act” from
the assistance group. See RSA 167:79, II (Supp. 2011). Effective January
2012, RSA chapter 167 was amended to require that SSI recipients be included
in the FANF assistance group. See Laws 2011, ch. 272:2.

       Effective June 2013, DHHS promulgated Rule He-W 654.04(c) providing
that “[p]ursuant to RSA 167:80, IV(h), supplemental security income . . . shall
be counted as unearned income for FANF . . . when computing income
pursuant to He-W 652.02 and He-W 654.02.” N.H. Admin. Rules, He-W
654.04(c). Pursuant to this rule, DHHS includes the SSI income of SSI
recipients as countable income for purposes of determining the amount, if any,
of FANF assistance for a FANF assistance group.

II. Factual and Procedural Background

      The parties stipulated to the following facts. Hendrick is the mother of
six children, two of whom receive SSI benefits. Hendrick is the “representative
payee” for those two children’s SSI benefits. In February 2014, the Hendrick
assistance group received a monthly FANF benefit of $847.80, in addition to
the SSI benefits received by the two children. Beginning in March 2014, DHHS
included Hendrick and her six children in the FANF assistance group, and also
included the two children’s monthly, recurring SSI benefits of $654.00 as
unearned income. DHHS informed Hendrick by notice dated February 25,
2014, that beginning March 15, 2014, her FANF cash assistance would be
reduced to a monthly payment of $259.20. Thereafter, in April 2014, DHHS
determined that Hendrick was no longer eligible for FANF assistance because
her assistance group’s total income exceeded the income limit. In making this
determination, DHHS included the two children’s recurring SSI benefits as
countable unearned income. Hendrick, therefore, no longer receives FANF
assistance.



                                        5
       Birmingham is the mother of three children, one of whom receives SSI
benefits. Birmingham is the “representative payee” for her child’s SSI benefits.
The Birmingham family applied for FANF assistance in July 2014. In
determining Birmingham’s eligibility for FANF assistance, DHHS included her
child’s monthly, recurring SSI benefit as countable unearned income in its
FANF benefit calculation. Beginning August 15, 2014, the Birmingham
assistance group received monthly FANF cash assistance of $17.00.

       The plaintiffs brought this lawsuit on behalf of themselves and their
children, seeking a declaratory judgment that DHHS’s “inclusion of children’s
SSI in FANF assistance group income is unlawful and void” pursuant to
applicable federal law. In addition, the plaintiffs sought a declaratory judgment
that Rule He-W 654.04 “is invalid because it impairs [their] legal rights.” The
plaintiffs sought a permanent injunction enjoining DHHS from including
children’s SSI in FANF assistance group income and an award of attorney’s
fees “because this litigation will result in a substantial benefit to the public.”
We note that the plaintiffs “seek invalidation of [Rule] He-W 654.04(c) only with
respect to its inclusion of children’s SSI as income to the [FANF] assistance
group.” The plaintiffs do not seek to invalidate Rule He-W 654.04(c) insofar as
it counts an adult’s SSI as income to the FANF assistance group.

       The parties cross-moved for summary judgment. The plaintiffs argued
that under controlling federal law, children’s SSI must be used by a
representative payee only for the benefit of the child with disabilities, not for
the benefit of the FANF assistance group, and that state law to the contrary is
invalid pursuant to the Supremacy Clause of the United States Constitution.
See U.S. CONST. art. VI, cl. 2. DHHS asserted that the inclusion of the
children’s SSI in calculating FANF eligibility does not interfere with the federal
requirement that SSI benefits be expended for the use and benefit of the
beneficiary. The trial court concluded that DHHS’s inclusion of SSI benefits in
the calculation of FANF eligibility is lawful. The court reasoned that “[n]othing
in the statute or corresponding regulations deprive[s] the representative payee
of the ability to use the SSI funds for the beneficiary’s current maintenance”
and that the representative payee may use SSI for the beneficiary’s benefit
“even if that income is included in [DHHS’s] calculation of FANF benefits.”
Accordingly the trial court denied the plaintiffs’ motion for summary judgment
and granted the defendant’s cross-motion.

III. Standards of Review

       We review de novo the trial court’s application of the law to the facts in
its summary judgment ruling. EnergyNorth Natural Gas v. City of Concord,
164 N.H. 14, 15 (2012). We consider all of the evidence presented in the
record, and all inferences properly drawn therefrom, in the light most favorable
to the non-moving party. Id. at 15-16. If our review of that evidence discloses



                                        6
no genuine issue of material fact and if the moving party is entitled to
judgment as a matter of law, then we will affirm the grant of summary
judgment. Id. at 16.

       The issue before us raises a question of federal preemption; preemption
is essentially a matter of statutory interpretation and construction. Id.
Statutory interpretation is a question of law that we review de novo. Id. We
interpret federal law in accordance with federal policy and precedent. See
Dube v. N.H. Dep’t of Health & Human Servs., 166 N.H. 358, 364 (2014).
When interpreting a statute, we begin with the language of the statute itself,
and, if possible, construe that language according to its plain and ordinary
meaning. Id. When the language of the statute is clear on its face, its meaning
is not subject to modification. Id. We will neither consider what Congress
might have said, nor add words that it did not see fit to include. Id. at 364-65.
We interpret statutes in the context of the overall statutory scheme and not in
isolation. EnergyNorth, 164 N.H. at 16.

IV. Analysis

       On appeal, the plaintiffs argue that Rule He-W 654.04(c) is invalid
because under federal law a representative payee must use a child’s SSI only
for the child with disabilities, not for the FANF assistance group. They assert
that DHHS’s “policy of treating children’s SSI as FANF assistance group income
violates the Social Security Act’s purposes of: 1) ensuring a minimal level of
federal support for children with serious disabilities; and 2) mandating that the
representative payee spend the child’s SSI benefits only for the use and benefit,
and in the best interests, of the SSI recipient child.” (Citation omitted.) DHHS
argues that the inclusion of SSI benefits in FANF determinations does not
interfere with the federal requirement that SSI benefits be expended for “the
use and benefit” of the beneficiary. (Bolding and capitalization omitted.) It
asserts that the requirement that income be used for the benefit of a specific
child does not preclude its use for common expenses or its inclusion in a
welfare benefit calculation.

      After briefing and oral argument, we invited the Solicitor General of the
United States to file an amicus brief addressing two questions: (1) whether it is
unlawful for the State to terminate, reduce, or deny a household’s TANF
because a child with disabilities in the household receives SSI benefits; and (2)
whether inclusion of the child’s SSI as TANF assistance group income violates
the federal Social Security Act and regulations. The Solicitor General
submitted a brief on behalf of the United States asserting that “Rule He-W
654.04(c) conflicts with the federal Social Security Act and implementing
regulations.” The Solicitor General argues that federal law requires
representative payees to use SSI funds solely for the “use and benefit” of the
beneficiary, and that “by deeming SSI benefits available to the entire



                                        7
household, Rule He-W 654.04(c) conflicts with federal requirements” and is
therefore preempted. (Bolding and capitalization omitted.)

       The federal preemption doctrine is based upon the Supremacy Clause of
the United States Constitution, U.S. CONST. art. VI, cl. 2. See Arizona v.
United States, 132 S. Ct. 2492, 2500 (2012). Article VI provides that federal
law “shall be the supreme Law of the Land; and the Judges in every State shall
be bound thereby, any Thing in the Constitution or Laws of any State to the
Contrary notwithstanding.” U.S. CONST. art. VI, cl. 2. “There can be no
dispute that the Supremacy Clause invalidates all state laws that conflict or
interfere with an Act of Congress.” Rose v. Arkansas State Police, 479 U.S. 1, 3
(1986) (per curium); see Mutual Pharmaceutical Co., Inc. v. Bartlett, 133 S. Ct.
2466, 2473 (2013) (state laws that conflict with federal law are without effect).
In addition, “[t]he statutorily authorized regulations of a [federal] agency will
pre-empt any state or local law that conflicts with such regulations or
frustrates the purposes thereof.” City of New York v. FCC, 486 U.S. 57, 64
(1988); see Koor Communication v. City of Lebanon, 148 N.H. 618, 621 (2002)
(“Federal regulations have the same preemptive force as federal statutes.”
(quotation omitted)).

      “Pre-emption may be either expressed or implied.” Gade v. National Solid
Wastes Management Assn., 505 U.S. 88, 98 (1992) (plurality opinion). “Even
without an express provision for preemption, . . . state law must yield to a
congressional Act in at least two circumstances.” Crosby v. National Foreign
Trade Council, 530 U.S. 363, 372 (2000). “When Congress intends federal law
to occupy the field, state law in that area is preempted.” Id. (quotation
omitted). “And even if Congress has not occupied the field, state law is
naturally preempted to the extent of any conflict with a federal statute.” Id.
“An actual conflict exists when ‘it is impossible for a private party to comply
with both state and federal requirements or where state law stands as an
obstacle to the accomplishments and execution of the full purposes and
objectives of Congress.’” Wenners v. Great State Beverages, 140 N.H. 100, 104
(1995) (quoting English v. General Electric Co., 496 U.S. 72, 79 (1990)); see
Koor Communication, 148 N.H. at 621. “What is a sufficient obstacle is a
matter of judgment, to be informed by examining the federal statute as a whole
and identifying its purpose and intended effects . . . .” Crosby, 530 U.S. at
373.

      Relying primarily upon Sneed v. Saenz, 16 Cal. Rptr. 3d 563, 577-80 (Ct.
App. 2004), a case interpreting Title II of the Social Security Act, DHHS argues
that the requirement that SSI income be used for the benefit of a specific child
does not preclude its use for common expenses or its inclusion in a state
welfare benefit calculation. According to DHHS, Sneed supports a ruling that
Rule He-W 654.04(c) “does not violate the ‘use and benefit’ provision of
representative payee law because it only requires SSI to be included in
calculating FANF benefits, not to satisfy the needs of others in the household.”


                                       8
Sneed, however, is not controlling in these circumstances. Because we
determine that the federal regulations governing Social Security Disability
Income (SSDI) benefits under Title II of the Social Security Act are
substantively different from the federal regulations governing SSI benefits
under Title XVI of the Social Security Act, we reject DHHS’s underlying premise
that the “use and benefit” provisions with regard to SSDI and SSI “mirror one
another.” See In the Matter of Lister & Lister, 162 N.H. 48, 51 (2011)
(recognizing that SSDI benefits and SSI benefits have different purposes).

       Under Title II, SSDI “benefits are paid on behalf of a wage earner who
pays into the Social Security system.” Sneed, 16 Cal. Rptr. 3d at 577; see 42
U.S.C. §§ 401-499 (2012 & Supp. II 2014). “[SSDI] payments represent money
which an employee has earned during his or her employment and also that
which his or her employer has paid for the employee’s benefit into a common
trust fund under the Social Security Act.” Burns v. Edwards, 842 A.2d 186,
191 (N.J. Super. Ct. App. Div. 2004); see 42 U.S.C. § 401(b) (2012). “[SSDI]
payments are for the purpose of replacing income lost because of the
employee’s inability to work upon becoming disabled.” Burns, 842 A.2d at 191
(quotation omitted). “Stated another way, [SSDI] payments are a substitute for
earned income and are thereby non-means-tested benefits.” Id.

       Regulations promulgated by SSA that govern SSDI benefits provide that a
representative payee has a responsibility to “[u]se the benefits received [on the
beneficiary’s] behalf only for [the beneficiary’s] use and benefit in a manner and
for the purposes [the representative payee] determines . . . to be in [the
beneficiary’s] best interests.” 20 C.F.R. § 404.2035(a) (2015). The regulations
further specify that SSA “will consider that payments [it] certif[ies] to a
representative payee have been used for the use and benefit of the beneficiary if
they are used for the beneficiary’s current maintenance. Current maintenance
includes cost incurred in obtaining food, shelter, clothing, medical care, and
personal comfort items.” 20 C.F.R. § 404.2040(a)(1) (2015). Notably, the
regulations provide an exception to the current maintenance provision,
expressly stating that “[n]otwithstanding the provisions of paragraph (a)(1) of
this section, if a beneficiary is a member of a [TANF] assistance unit, we do not
consider it inappropriate for a representative payee to make the benefit
payments available to the [TANF] assistance unit.” 20 C.F.R. § 404.2040(a)(2)
(2015). Thus, federal SSDI regulations specifically provide that if a beneficiary
is a member of a TANF assistance unit, a representative payee may make the
SSDI benefit payments available to the entire TANF assistance unit.

      In contrast to SSDI payments, “SSI benefits are not a substitute for lost
income due to disability; rather, they are a supplement to the recipient’s
income.” Burns, 842 A.2d at 191. An SSI recipient’s benefits “are the amount
necessary to raise the recipient’s income to the prescribed minimum level,”
whereas “the amount of a [SSDI] recipient’s benefits is keyed to how much that
person has paid into the Social Security system over time.” Tennessee DHS ex


                                        9
rel. Young v. Young, 802 S.W.2d 594, 597 (Tenn. 1990). The SSI program is
intended “‘to assist those who cannot work because of age, blindness, or
disability’ by ‘setting a Federal guaranteed minimum income level for aged,
blind, and disabled persons.’ The SSI program provides a subsistence
allowance, under federal standards, to the Nation’s needy, aged, blind, and
disabled.” Lyon v. Bowen, 802 F.2d 794, 796 (5th Cir. 1986) (quoting
Schweiker v. Wilson, 450 U.S. 221, 223 (1981)) (brackets and ellipses omitted).

       Although there is some facial similarity between the “use and benefit”
provisions in the regulations for Title II (SSDI) and those for Title XVI (SSI), the
regulations expressly allow SSDI benefits to be used to support the
beneficiary’s assistance group, and the SSI regulations do not. Rather, under
the plain language of the regulations, a child’s SSI benefits may be spent only
on that child’s current maintenance, i.e., the child’s food, shelter, clothing,
medical care and personal comfort items, unlike SSDI benefits, which may be
used for the current maintenance of persons in the assistance unit other than,
or in addition to, the SSDI beneficiary. Accordingly, we disagree with DHHS
that there is a uniform rule in the various welfare benefit programs whereby “a
state may treat an entire family as the relevant unit for public assistance, and
that, in determining the amount of assistance for the family, a state may take
into account income received by any members of the family.” To the extent
DHHS relies upon Bowen v. Gilliard, 483 U.S. 587 (1987), to support this
proposition, we are not persuaded.

       Furthermore, Congress intended the SSI program to provide an
additional source of federal funds, separate from funds available to needy
families with children under the TANF program, to provide disabled children
with the minimum amount necessary to satisfy their basic needs. See Kyle v.
Kyle, 582 N.E.2d 842, 846 (Ind. Ct. App. 1991) (concluding that SSI benefits
received by a disabled child “are intended to supplement other income, not
substitute for it” because “Congress determined that disabled children
generally have greater needs than nondisabled children”); see also State, ex rel.
Child Support Enfor. v. Kost, 964 S.W.2d 528, 531 (Mo. Ct. App. 1998) (“SSI
benefits are granted to provide parents of disabled children additional funds to
offset the additional financial burden incumbent with children who are
disabled”).

      Indeed, as to the calculation of a disabled child’s SSI benefits, the
regulations specifically exclude any TANF payments the child’s parent receives
“and any income which was counted or excluded in figuring the amount of that
payment” and “[a]ny of the income of [the child’s] . . . parent that is used . . . to
determine the amount of [the TANF] program’s benefit to someone else.” 20
C.F.R. §§ 416.1161(a)(2), (3) (2015). In addition, if the child lives in a “public
assistance household in which every member receives some kind of public
income-maintenance payments” including TANF, SSA finds that the child “[is]



                                         10
not receiving in-kind support and maintenance from members of the
household.” 20 C.F.R. § 416.1142(a)(1), (b) (2015).

       The only other jurisdictions to address this issue have reached similar
conclusions. In V.R. v. Ohl, No. 3:98-CV-1176 (S.D. W. Va. Feb. 3, 1999), the
court concluded that a policy instituted under West Virginia’s TANF program
that counted a child’s SSI payments as household income in determining
eligibility for TANF benefits “presents an obstacle to fulfillment of Congress’s
requirement that representative payees use SSI benefits only for the use and
benefit of the child beneficiary.” Ohl, slip op. at 22. The court noted that in
replacing AFDC with TANF, “Congress did not repeal any of the statutory
provisions that make it clear that SSI benefits paid to representative payees are
to be used only for the benefit of the beneficiary nor explicitly alter the
fundamental purpose behind the SSI program – to assist families in meeting
additional disability-related costs.” Id. at n.17 (emphasis added). Likewise, in
Eneliko v. Dreyfus, No. C11-0312JLR (W.D. Wash. Feb. 28, 2011), the court
determined that a rule proposed by the Washington State Department of
Health and Human Services that would deem the SSI income of disabled
children available to non-disabled household members for purposes of deciding
the family’s eligibility under the state’s TANF program was “in direct conflict
with or obstruct[ed] the purposes of federal law.” Eneliko, slip op. at 5.

        Furthermore, according to the Solicitor General, “[o]f the 51 jurisdictions
(all States plus the District of Columbia) that participate in TANF, only two—
New Hampshire and Wisconsin—count a disabled child’s SSI benefits as if they
were income available to the entire TANF assistance group.” See Erika Huber
et al., The Urban Institute, Welfare Rules Databook: State TANF Policies as of
July 2014, Final Report 66-67 (Aug. 2015),
http://wrd.urban.org/wrd/data/databooks/2014%20Welfare%20Rules%20Da
tabook%20(FINAL).pdf.

      Although several states count SSI recipients as members of the
assistance group for TANF purposes, those states do not count such recipients’
SSI funds as income available to the assistance group. Id. at nn.3-4.

       We agree with the Solicitor General that the Supremacy Clause does not
permit the State to redirect federal benefits as required by Rule He-W
654.04(c). The rule, by counting a disabled child’s SSI benefits as income
available to the child’s “assistance group,” treats the child’s benefits as a
source of income for the entire household. The rule, thereby, reduces a
household’s TANF benefit by one dollar for every dollar in SSI that is received
by a disabled child in the household. Because the rule “stands as an obstacle
to the accomplishment and execution of the full purposes and objectives of
Congress,” we hold that Rule He-W 654.04(c) is preempted by federal law and,
thus, invalid to the extent that it requires inclusion of children’s SSI as income
to the TANF assistance group for the purpose of determining eligibility for TANF


                                        11
benefits. Arizona, 132 S. Ct. at 2501 (quotation omitted). Accordingly, we
reverse and remand for further proceedings consistent with this opinion,
including a review of the plaintiffs’ pending request for attorney’s fees.

                                                Reversed and remanded.

      HICKS, CONBOY, LYNN, and BASSETT, JJ., concurred.




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