NOTICE: This opinion is subject to motions for rehearing under Rule 22 as 

well as formal revision before publication in the New Hampshire Reports. 

Readers are requested to notify the Reporter, Supreme Court of New 

Hampshire, One Charles Doe Drive, Concord, New Hampshire 03301, of any 

editorial errors in order that corrections may be made before the opinion goes 

to press. Errors may be reported by E-mail at the following address: 

reporter@courts.state.nh.us. Opinions are available on the Internet by 9:00 

a.m. on the morning of their release. The direct address of the court's home 

page is: http://www.courts.state.nh.us/supreme.

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.
2

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).
3

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 
4

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 bloodrelated, 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).
5

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 meanstested 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.
6

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 
7

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 
8

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.” 
9

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 
10

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]
11

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 
12

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.