CHRISTOPHER MACINNES & another [Note 1] vs. COMMISSIONER OF PUBLIC WELFARE.

LYNCH, J. The plaintiffs, Christopher MacInnes and Carla Vasquez, recipients of aid to families with dependent children (AFDC), appeal from a partial summary judgment entered in the Superior Court in favor of the Commissioner (commissioner) of the Department of Public Welfare (department). The plaintiffs sought injunctive and declaratory relief based on their claim that Section 58 of St. 1990, c. 150 (Section 58) and 106 Code Mass. Regs. Section 304.305 (B) (1990) (regulation), [Note 2] as amended by direction of Section 58, violate Federal law and the equal protection provisions of the Massachusetts

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and United States Constitutions. The plaintiffs challenge Section 58 and the regulation because they require the department to add AFDC children, residing with nonparent, AFDC caretaker relatives, to the "assistance unit" of such relatives thereby prohibiting such children from receiving an AFDC grant as an independent unit, unless to do so would cause a particular child to become homeless or to endure other undue hardship. [Note 3] We granted the plaintiffs' application for direct appellate review. We affirm.

1. Background. AFDC is a jointly funded Federal and State assistance program aimed at those who are needy. 42 U.S.C. Sections 601-615 (1988). See Shea v. Vialpando, 416 U.S. 251, 253 (1974); Massachusetts Coalition for the Homeless v. Secretary of Human Servs., 400 Mass. 806, 812 (1987); ABCD, Inc. v. Commissioner of Pub. Welfare, 378 Mass. 327, 331 (1979). States participate in the program voluntarily but in so doing must comply with Federal law. Massachusetts Coalition for the Homeless, supra at 812-813. The department is charged with administering the AFDC program in Massachusetts. G. L. c. 18, Section 2 (1990 ed.). Massachusetts Coalition for the Homeless, supra at 813. The Department of Health and Human Services (DHHS) [Note 4] is responsible for administering the Federal portion of the AFDC program and approving State plans. 42 U.S.C. Sections 601-604. King v. Smith, 392 U.S. 309, 316 (1968).

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The purpose of the AFDC program is to encourage "the care of dependent children in their own homes or in the homes of relatives by enabling each State to furnish financial assistance . . . to needy dependent children and the parents or relatives with whom they are living to help maintain and strengthen family life and to help such parents or relatives to attain or to retain capability for the maximum self-support and personal independence consistent with the maintenance of continuing parental care and protection." 42 U.S.C. Section 601. A dependent child is defined as "a needy child [under the age of eighteen, or under the age of nineteen and a student] . . . who has been deprived of parental support or care by reason of the death, continued absence from the home . . . or physical or mental incapacity of a parent, and who is living with" a specified, caretaker relative. Id. at Section 606(a)(1)(A)(B).

For the purpose of administering the program AFDC recipients are grouped into "assistance units," which include "all individuals whose needs, income, and resources are considered in determining eligibility for, and the amount of, an assistance payment for which Federal participation is claimed." 45 C.F.R. Section 205.40(a)(1) (1991). See 42 U.S.C. Section 602(a)(38) (1988). [Note 5] AFDC payments vary depending on the size of the assistance unit under economy of scale principles.

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Thus, grant amounts increase incrementally for each additional assistance unit member. Payments are made to the caretaker relative on behalf of the child. If the caretaker relative is the child's natural or adoptive parent, or stepparent with State support obligations, the caretaker relative and any siblings of the dependent child must be included in the assistance unit. Id.

The State agency "shall, in determining need [of a dependent child], take into consideration any other income and resources of any child or relative claiming [AFDC], or any other individual (living in the same home as such child and relative) whose needs the State determines should be considered in determining the need of the child or relative claiming such aid." 42 U.S.C. Section 602(a)(7)(A) (1988). See 45 C.F.R. Section 233.20(a)(3)(ii)(D) (1991); [Note 6] McCoog v. Hegstrom, 690 F.2d 1280, 1284 (9th Cir. 1982). The Federal regulations, however, limit the other resources a State may consider. "[T]he inclusion in the family, or the presence in the home, of a `substitute parent' or `man-in-the-house' or any individual other than [a parent, adoptive parent, or stepparent] is not an acceptable basis for a finding of ineligibility or for assuming the availability of income by the state." 45 C.F.R. Section 233.90(a)(1) (1991).

2. Facts. The plaintiffs' parents are unwilling or unable to care for them. Consequently, the plaintiffs reside with relatives who voluntarily provide for their care. These caretaker relatives receive benefits under the AFDC program for themselves (grantee relatives) and their own children as an assistance unit. Before October 1, 1990, and the passage of Section 58, the plaintiffs received their own AFDC grant as a separate assistance unit in an amount of $352 monthly. Under the new procedure the plaintiffs no longer receive their own grant as a separate assistance unit but are added to the caretaker

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relative's assistance unit which receives only an incremental increase in benefits on behalf of the child. This results in a $95 monthly increase to caretaker relatives' grant but an over-all reduction in the monthly income of approximately $257.

3. Rulings of law. The judge recognized that there are some Federal requirements for the composition of assistance units, but "`[o]utside of . . . [the Federal policy], it is up to the State to establish policy on the number of assistance units in the household, e.g., when an individual not related to a member of an assistance unit as a parent, brother or sister lives in the household and files for assistance.' Action Transmittal No. SSA-AT-86-1 of the U.S. Department of Health and Human Services dated January 13, 1986." He then determined that the grantee relative has an obligation under 42 U.S.C. Section 605 (1988), to use the entire AFDC grant of the assistance unit, and not just the increment attributable to the nonsibling child, for that child's benefit. Thus, "by implication, 42 U.S.C. Section 605 imposes on the grantee relative a federal law obligation to use all of the AFDC grant for the benefit of everyone in the assistance unit. This is a sufficient obligation to satisfy any requirement that the amount of assistance to a dependent child not be calculated by assuming that the child has income or resources available to it which are not actually available under law." The judge next concluded that "no assumption is being made about the availability of income to an AFDC recipient from a relative who has no legal obligation to support the AFDC recipient." He therefore ruled: "There is no violation of 42 U.S.C. Section 602(a)(7)(A), nor 45 C.F.R. Section 233.20(a)(3)(ii)(D) and Section 233.90(a)(1)." Additionally, he concluded that Section 58 does not violate "45 C.F.R. Section 233.20 (a) (2) (viii) which prohibits a state from reducing an AFDC payment because of the presence in the home of persons who have no legal obligation to support AFDC recipients . . . [nor does it] violate[e] 45 C.F.R. Sections 233.10(a)(1) and 233.10(a)(1)(iv) which require the defendant to establish the eligibility criteria for AFDC assistance in a manner that does not exclude individuals on

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an arbitrary basis or which results in inequitable treatment of individuals and requires defendant to apply eligibility criteria on a consistent and equitable basis . . . [nor do] the defendant's regulations violate 45 C.F.R. Section 233.20(a)(2)(iii)."

4. Federal preemption. The plaintiffs first argue that Section 58 and the regulation create an impermissible scheme of proration and impute the AFDC income of the "non-legally" responsible caretaker relative to the dependent child in determining the plaintiff children's grant amount in violation of 42 U.S.C. Section 602(a)(7)(A) (1988) and several Federal regulations. [Note 7] Therefore, according to the plaintiffs, Section 58 and the regulation are preempted by Federal law.

State legislation may be preempted by an express congressional statement, by an inference from the scheme of Federal legislation or regulations, or by an actual conflict with the Federal law. Attorney Gen. v. Brown, 400 Mass. 826, 828-829 (1987). Since the Federal AFDC statutory scheme envisions State participation in implementing the program, the persuasiveness of the plaintiffs' preemption argument is diminished. Id. at 828.

The plaintiffs have failed to inform us of any clear and unambiguous statement preempting Section 58. See Gregory v. Ashcroft, 111 S. Ct. 2395, 2401 (1991); Apkin v. Treasurer & Receiver Gen., 401 Mass. 427, 433-434 (1988). Neither can we discern any congressional intent prohibiting the State from consolidating assistance units in the manner established

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by Section 58. To the contrary, the DHHS, which is charged with interpreting Federal AFDC statutes and promulgating Federal AFDC regulations, instructed the States regarding the composition of an AFDC assistance unit. This instruction expressly states: "Outside of this policy [the Federal policy requiring that certain family members must be included in the assistance unit], it is up to the State to establish policy on the number of assistance units in the household, e.g., when an individual not related to a member of an assistance unit as a parent, brother or sister lives in the household and files for assistance." Action Transmittal No. SSA-AT-86-1 of the United States Department of Health and Human Services (Jan. 13, 1986). This unequivocal statement supports the defendant's contention that consolidating nonsiblings into the assistant unit of the grantee relative is permissible, even though the grantee relative has no State support obligations and is unrelated as a parent, a brother, or a sister. This Federal administrative interpretation is entitled to be given weight in any judicial proceeding. See ABCD, Inc. v. Commissioner of Pub. Welfare, 378 Mass. 327, 333-334 (1979).

To the extent that Beaton v. Thompson, 913 F.2d 701 (9th Cir. 1990), on which the plaintiffs rely, is to the contrary, we decline to follow it. In invalidating a State of Washington regulation which authorized only an incremental increase for any nonsibling child living with a single caretaker relative or a related married couple, the Beaton court opined that "the effect of the regulation is to presume that the non-legally responsible caretaker relative with whom the child lives is contributing to the support of the child without proof of any actual contribution." Id. at 704. This reasoning overlooks the position of the judge below that the obligation of the caretaker to provide support comes from the Federal law requirement that the caretaker use all of the grant for the benefit of everyone in the assistance unit. Since we agree with the judge that a legal obligation to support exists in these circumstances, we disagree with the Beaton court that the effect of such a regulation is to presume income from a "non-legally" responsible person.

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5. Equal protection. The plaintiffs argue that Section 58 and the regulation violate equal protection principles under the Fourteenth Amendment to the United States Constitution and arts. 1, 7, and 10 of the Massachusetts Declaration of Rights. They claim that the legislation creates two classifications, namely, dependent children who are cared for by relatives whose income source is AFDC and dependent children who are cared for by relatives who do not receive AFDC. Since the dependent children in the first class are included in their grantee relative's assistance unit, the unit receives only an incremental grant increase of $95 for that child, whereas the dependent children in the second class are their own assistance unit and receive their own one person grant of $352. According to the plaintiffs, this disparate treatment violates equal protection principles.

"For the purpose of equal protection analysis, our standard of review under the cognate provisions of the Massachusetts [Constitution] is the same as under the Fourteenth Amendment to the Federal Constitution." Dickerson v. Attorney Gen., 396 Mass. 740, 743 (1986). Since Section 58 and the regulation involve neither a suspect class nor a fundamental right, "[they] will be upheld as long as [they are] rationally related to the furtherance of a legitimate State interest." Id. at 740. See Opinion of the Justices, 408 Mass. 1215, 1224 (1990).

It is, of course, a legitimate legislative goal to decrease State spending and to distribute fairly benefits among competing needy families. The statute and regulation are rationally related to this goal. For example, prior to the statutory amendment a mother living with her two daughters would receive one grant of $579 monthly, whereas a mother living with a daughter and a niece would receive two grants: $486 for herself and her daughter and $392 for her niece, giving the second household $299 more a month to support the same number of people.

Finally, we determine there is no merit to the plaintiffs' claims of inequitable treatment as violating 45 C.F.R. Sections 233.10(a)(1) and 233.10(a)(1)(iv), 45 C.F.R. Section 233.20(a)(2)(iii), and G. L. c. 18, Section 2 (B) (d). The basic premise of

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these unequitable treatment arguments is faulty because, as explained above, the caretakers in each instance have a legal obligation to support the recipient. Furthermore, we have demonstrated that the State plan is consistent with Federal law and not unreasonable in its application.

We conclude that the summary judgment declaring that Section 58 and the regulation neither violate Federal law nor the equal protection provisions of the Federal and State Constitutions was properly granted.

Judgment affirmed.