Stowell v. SHHS

                  UNITED STATES COURT OF APPEALS
                      FOR THE FIRST CIRCUIT

                                             

No. 93-1254

                    CHRISTINE STOWELL, ET AL.,
                     Plaintiffs, Appellants,

                                v.

             SECRETARY OF HEALTH AND HUMAN SERVICES,
                       Defendant, Appellee.

                                             

           APPEAL FROM THE UNITED STATES DISTRICT COURT
                    FOR THE DISTRICT OF MAINE

             [Hon. Gene Carter, U.S. District Judge]
                                                   

                                             

                              Before

              Selya, Cyr and Boudin, Circuit Judges.
                                                   

                                             

     Patrick  Ende, with  whom Jack  Comart  and Pine  Tree Legal
                                                                 
Assistance were on brief, for appellants.
          
     Robin   S.  Rosenbaum,   Attorney,   Civil  Division,   U.S.
                          
Department  of   Justice,  with  whom  Stuart   Schiffer,  Acting
                                                        
Assistant  Attorney  General,  Jay  P.  McCloskey,  United States
                                                 
Attorney,  and Barbara  C. Biddle,  Attorney, U.S.  Department of
                                 
Justice, were on brief, for appellee.
     Christopher C. Leighton, Deputy Attorney  General, with whom
                            
Michael  E. Carpenter,  Attorney General,  and Thomas  D. Warren,
                                                                
Deputy Attorney General, were on brief for State of Maine, amicus
curiae.

                                             

                        September 10, 1993

                                             

          SELYA, Circuit Judge.  Although this appeal presents an
          SELYA, Circuit Judge.
                              

issue  of first impression that requires us to navigate a complex

maze of  statutes and regulations,  its resolution  turns on  the

interpretation of two words in common usage.  We hold, as did the

court below, that the Secretary of Health and Human Services (the

Secretary) permissibly concluded  that the term  "payment levels"

as  used in  42 U.S.C.    1396a(c)(1)  (1988) refers  to baseline

payments  received  under  the  Aid to  Families  with  Dependent

Children (AFDC) program.  Consequently, we affirm.

I.  BACKGROUND

          AFDC  is a voluntary,  cooperative federal-state social

service  program paid  for  by both  sovereigns but  administered

largely by  the states.  See  42 U.S.C.    601-615  (1988 & Supp.
                            

III  1991); see also  Doucette v. Ives,  947 F.2d  21, 23-24 (1st
                                      

Cir. 1991)  (describing interactive nature of AFDC program).  For

heuristic  purposes, we  limit our  discussion of  this intricate

program  to  the  particular   problem  around  which  this  case

revolves.

          Through AFDC,  poor families receive  a monthly stipend

(the basic AFDC  grant).  The  amount of the stipend  varies from

state to  state and also varies  according to family size.   If a

family  unit has some other  income, say, child support payments,

most states deem this money to offset the guaranteed AFDC stipend

pro tanto.  Under such a  regime, a dollar is subtracted from the
         

family's basic AFDC grant for every dollar of supplemental income

received.   See, e.g., Hassan v. Bradley, 818 F. Supp. 1174, 1176
                                        

                                2

& n.4  (N.D. Ill.  1993) (describing methodology  and identifying

states which employ it).

          A   few  states,   Maine  among   them,  take   a  less

conventional approach  to supplemental  income.   Up to a  point,

Maine permits a family to receive such  income without offsetting

it  against the  basic  AFDC  grant.    Only  when  the  family's

aggregate  income reaches a designated level   a level that Maine

calls the  "standard of need"    does  Maine begin to  shrink the

basic  AFDC  grant  in  proportion  to  the  marginal  amount  of

supplemental income  received.   In the bureaucratic  idiom, this

phenomenon  is known as "gap filling" because no offsets are made

until the family's supplemental income has filled the gap between

the  stipendiary amount of the basic AFDC grant and the (somewhat

higher)  standard-of-need  amount.    Even then,  the  offset  is

limited to the excess  of familial receipts over the  standard of

need.  See Doucette, 947 F.2d at 23-24.
                   

          In 1991, Maine,  faced with burgeoning budgetary  woes,

narrowed  this   gap  by   upgrading  basic  AFDC   grants  while

simultaneously downgrading standards of need.  This revision took

effect  on April  1,  1992 (after  the  district court  lifted  a

temporary  stay).    As  a result,  AFDC-eligible  families  with

relatively  high amounts  of  supplemental  income receive  lower

payments than before and families with little  or no supplemental

income receive  higher payments than before.   More specifically,

because child support  payments are  collected by  the state  and

then transmitted  to AFDC recipients as  supplemental income, see
                                                                 

                                3

42 U.S.C.    602(a)(2) (1988), Maine's reduction  in the standard

of need  meant that certain AFDC-eligible  families would receive

lower overall  payments  from  the  state than  they  would  have
             

received  prior  to  May 1,  1988.1    After  the changes  became

effective, the Secretary continued to authorize Medicaid  funding

for Maine.

          Although the revisions did not ruffle federal feathers,

they  prompted  the  instant   suit.    Seeking  declaratory  and

injunctive  relief, 5  U.S.C.    702 (1988),  plaintiff-appellant

Christine   Stowell   accused  the   Secretary  of   violating  a

maintenance-of-effort   provision   contained  in   the  Medicare

Catastrophic Coverage Act of 1988, Pub. L. No. 100-360, 102 Stat.

683.2   That  provision,  codified at  42  U.S.C.     1396a(c)(1)

                    

     1A concrete example may help to illuminate the effect of the
revisions.   On May 1,  1988, a single  mother with two dependent
children would have received a basic AFDC grant of $416.  Had the
family  unit  also received  $157 in  child support  payments, it
would  have retained the entire  amount ($573 per  month).  While
Maine's revisions boosted  the same family's basic AFDC  grant to
$453 per month, the concomitant lowering of the standard of need,
given the assumptions in our hypothetical, would have required an
offset  of all supplemental income  over $100 per  month, or $57.
The net effect,  then, would have been to cap  the family's total
monthly  receipts at  $553 ($20  per month  less than  the family
would  have retained  under the  earlier regime).   On  the other
hand, if our hypothetical family had  no supplemental income, the
revisions would have increased its receipts by $37 per month (the
amount by which Maine hiked the basic AFDC grant).

      In  constructing   this  example,  we   have  excluded  any
reference  to  the $50  "pass-through"  payment  described in  42
U.S.C.   657(b)(1) (1988), which was unaffected by the  revisions
in question.

     2Stowell also attempted  to sue  the state.   That suit  has
gone  by  the  boards  as  a  result  of  our  holding  that  the
maintenance-of-effort  provision  imposed  a  duty  only  on  the
Secretary.  See Stowell v. Ives, 976 F.2d 65, 71 (1st Cir. 1992).
                               

                                4

(1988), directs the Secretary not to approve any state's Medicaid

plan if the state's AFDC program sets "payment levels" lower than

those in  effect  on May  1,  1988.   Refined  to  bare  essence,

Stowell's position has consistently been that the maintenance-of-

effort  provision prohibits  the  Secretary from  approving state

Medicaid  plans if the state's AFDC payment levels are lower than

those in  effect on May 1,  1988; that the total  amount of money

Stowell  and persons  similarly situated  currently receive  from

Maine is lower than the amount they would have received under the

earlier (pre-May 1, 1988) rules; that, nonetheless, the Secretary

did  not  refuse  to  fund   Maine's  Medicaid  plan;  and  that,

therefore,  the  Secretary  violated   the  maintenance-of-effort

provision.

          The case proceeded as a  class action3 and the  parties

submitted  it on a stipulated record.  The district court asked a

magistrate judge for a report and recommendation.  Reasoning that

Maine had not, in fact, reduced its payment levels below those in

                    

     3The plaintiff class comprises:

          All families in the  State of Maine who would
          be   eligible   for   AFDC  benefits   and/or
          supplemental  payments  under   42  U.S.C    
          602(a)(28)  [providing  for payment  of child
          support  collected  by the  state]  under the
          AFDC payment levels in effect in Maine on May
          1, 1988 and who would receive a smaller total
          AFDC plus supplemental    602(a)(28)  payment
          under the AFDC payment levels  proposed to be
          effective April  1, 1992 than they would have
          received   under  the  May  1,  1988  payment
          levels.

Stowell v. Sullivan, 812 F. Supp. 264, 266 n.3 (D. Me. 1993).
                   

                                5

effect  on May 1, 1988, the magistrate recommended that the court

enter judgment for the  Secretary.  See Stowell v.  Sullivan, 812
                                                            

F.  Supp. 264,  266-71  (D. Me.  1993) (reproducing  magistrate's

report).      On  de   novo   review,  the   court   adopted  the
                           

recommendation.  See id. at 265-66.  Plaintiffs appeal.
                        

II.  ANALYSIS

          The issue  is whether the Secretary's continued funding

of Maine's Medicaid  plan, despite the state's decision  to lower

its   standard  of   need,  violates   the  maintenance-of-effort

provision.4  We  have repeatedly  urged that, when  a nisi  prius
                                                                 

court  handles a  matter  appropriately and  articulates a  sound

basis for  its ruling, "a  reviewing tribunal should  hesitate to

wax  longiloquent simply to hear its own  words resonate."  In re
                                                                 

San  Juan Dupont Plaza  Hotel Fire Litig.,  989 F.2d  36, 38 (1st
                                         

Cir.  1993).   Because  we  are  in  substantial  agreement  with

Magistrate Judge Cohen's thoughtful  disquisition, see Stowell v.
                                                              

Sullivan,  812 F. Supp. at  266-71, we invoke  this principle and
        

confine ourselves to a few decurtate observations.

          First:   Whenever  a  court is  charged with  statutory
          First:
               

interpretation,  the text  of the  statute must  be its  starting

point.  See Estate of Cowart  v. Nicklos Drilling Co., 112 S. Ct.
                                                     

2589, 2594 (1992).   Here, however,  the statutory language  does

                    

     4The Secretary also argues  that, even if the term  "payment
levels" is  given the expansive reading  that appellants suggest,
the federal government's obligation  to intervene would not arise
unless  and until  Maine  sought approval  of  amendments to  its
Medicaid plan.    We  need  not  consider  this  contention  and,
consequently, take no view of it.

                                6

not directly answer the question posed.  It provides that:

          the Secretary  shall  not approve  any  State
          plan for medical assistance if  

               (1) The State has in  effect, under
               its  [AFDC  plan],  payment  levels
               that  are  less  than  the  payment
               levels in effect under such plan on
               May 1, 1988.

42 U.S.C.   1396a(c)(1).  The term "payment levels," which is not

defined elsewhere in the statute, could, as the Secretary claims,

refer to the stipendiary  amounts of basic AFDC grants;  it could

also,  as appellants claim, refer to total income, that is, grant

amounts plus  supplemental income  actually received.   Given two

plausible  alternatives, and  recognizing  that  the universe  of

interpretive possibilities  may extend beyond them,  we think the

statute contains an undeniable ambiguity.

          Appellants resist this conclusion.  Pointing  out that,

in certain  other contexts, Congress  referred to the  basic AFDC

grant  as the "payment standard," 42 U.S.C.   602(h) (1988), they

argue that the  term "payment levels"  must mean something  else.

This argument founders.  It is apodictic that Congress may choose

to  give a single phrase different meanings in different parts of

the  same statute.  See Atlantic Cleaners & Dyers, Inc. v. United
                                                                 

States,  286  U.S.  427,  433  (1932);  Greenwood  Trust  Co.  v.
                                                             

Massachusetts,  971 F.2d  818, 830  n.10 (1st  Cir. 1992),  cert.
                                                                 

denied, 113 S. Ct. 974 (1993).  It is a natural corollary of this
      

truism  that Congress, in its  wisdom, may choose  to express the

same idea in many different ways.   Cf., e.g., Cowart, 112 S. Ct.
                                                     

at 2596 (stating that Congress's eschewal  of a term of art  used

                                7

elsewhere in the  same statute,  in favor of  a more  descriptive

term, does not necessarily mean that the two terms bear different

meanings).   Any other interpretive rule  would defy human nature

and  ignore common  practice.   Courts should  go very  slowly in

assigning talismanic  importance to particular  words or  phrases

absent some cogent evidence of legislative intent.

          Second:  Appellants' attempt to score  a touchdown by a
          Second:
                

selective  perusal of legislative  history puts no  points on the

board.  The  centerpiece of this  effort is a passage  evincing a

congressional  purpose  "to   assure  that  the  resources   [for

Medicaid-related  coverage of certain  persons] are  not diverted

from the [AFDC] program."  House Conf. Rep. No. 661, 100th Cong.,

2d Sess. 145, 256, reprinted in 1988 U.S.C.C.A.N. 923, 1034.  But
                               

this language does not help  to resolve the statute's  linguistic

ambiguity in appellants' favor.

          For one  thing, the  passage, like the  statute itself,

leaves unaddressed  the  question whether  Congress's  underlying

concern  lay with all payments affecting the AFDC program or only

with  the stipendiary  amounts  of basic  AFDC  grants    and  an

ambiguous  statute cannot  be  demystified by  resort to  equally

ambiguous legislative history.  For another thing, to the extent,

if  at   all,  that   the  quoted   passage  indicates  a   broad

congressional  purpose to  provide AFDC  recipients with  a fixed
                                                                 

safety net,  we think it cuts against appellants' construction of

the  term  "payment  levels."   Because  supplemental  income  is

contingent  on  a  nearly  infinite  variety  of   circumstances,

                                8

appellants' definition would at  most guarantee AFDC recipients a

hypothetical  sum; the  Secretary's reading,  on the  other hand,

secures a fixed payment floor.

          The  sockdolager is  that the  quoted passage,  read in

context,  is  counteracted  by  other items  in  the  legislative

history, including those that  stress the importance of continued

flexibility.  Congress prized flexibility because it "allows each

state to  establish  its  own  need  and  payment  standards  for

assistance."   S. Rep.  No.  377, 100th  Cong., 2d  Sess. 1,  49,

reprinted  in  1988  U.S.C.C.A.N.  2776, 2826.    Certainly,  the
             

Secretary's rendition  of  "payment levels"  enhances  a  state's

flexibility  while appellants'  version  detracts from  it.   See
                                                                 

infra pp. 13-14.   This jousting between archival excerpts drives
     

home  the  point  that  "reviewing legislative  history  is  like

looking over the crowd at a party and picking out one's friends."

Patricia J. Wald,  Some Observations  on the  Use of  Legislative
                                                                 

History in  the 1981 Supreme Court Term, 68 Iowa L. Rev. 195, 214
                                       

(1983) (quoting  Leventhal, J.).   In  this instance,  both sides

have unearthed congenial acquaintances.  The net result, however,

is that  evidence gleaned from  the legislative history  does not

tell a straightforward tale and, therefore, does not  resolve the

ambiguity with which we are concerned.5

                    

     5By discussing  the House  Conference Report excerpt,  we do
not mean to imply that Maine has diverted resources from the AFDC
program to  the Medicaid program.   There is no such  evidence in
the  record.    Thus,  appellants'  reading  of  the  legislative
history,  even if  we were  to credit  it, would  not necessarily
carry the day.  See, e.g., Babbitt v. Michigan, 778 F. Supp. 941,
                                              
947 (W.D. Mich. 1991).

                                9

          Third:   When  a statute  is silent  with respect  to a
          Third:
               

specific  question,  courts  frequently  afford  deference  to  a

plausible  construction  offered  by  the   agency  charged  with

administering  it.  See National R.R. Passenger Corp. v. Boston &
                                                                 

Me. Corp., 112  S. Ct. 1394, 1401 (1992) (stating  that "[i]f the
         

agency interpretation  is not in conflict with the plain language

of the statute, deference is due"); Chevron U.S.A., Inc. v. NRDC,
                                                                 

Inc., 467 U.S. 837,  843 (1984); Massachusetts Dep't of  Educ. v.
                                                              

United States Dep't of Educ., 837 F.2d 536, 541 (1st  Cir. 1988).
                            

Here, the  agency that  the  Secretary heads,  the Department  of

Health and Human Services  (HHS), is entrusted with administering

both  the Medicaid and AFDC  statutes.  Since  HHS interprets the

maintenance-of-effort provision  to refer only to  the basic AFDC

grant,   Chevron  principles   pose  a   formidable   barrier  in
                

appellants' path.

          In  an  endeavor  to  skirt  this  barrier,  appellants

suggest that  deference would  be inappropriate here  because HHS

has  not maintained  a consistent  position.   The suggestion  is

factually unfounded and legally unpersuasive.

          We begin by examining the facts.  Although the agency's

position has shifted  in some respects over the years, it has not

waffled  with regard to the  meaning of "payment  levels."  HHS's

first  public  elucidation  of  the  point  appears   in  a  1989

publication  informing  state   officials  that   "if  you   make

adjustments  to your [AFDC] payment levels which do not result in

lower  payment amounts being  made to families  with no countable

                                10

income, you are  considered to meet  the Medicaid Maintenance  of

Effort Requirements."   State Medicaid Manual    3205 (May 1989).

In subsequent  commentaries, HHS  made plain that  this reference

was intended  to include  only those  families which received  no

income  over  and  above  the  basic  AFDC  grant.    We  see  no

inconsistency  between  this  original   interpretation,  roughly

contemporaneous with  the statute's  enactment, and the  agency's

current views.

          Appellants'  legal theory  rests  on  an equally  shaky

foundation.   Agencies "must  be  given ample  latitude to  adapt

[their]   rules  and   policies  to   the  demands   of  changing

circumstances."  Rust v.  Sullivan, 111 S. Ct. 1759,  1769 (1991)
                                  

(citations and  internal quotation marks omitted).   An important

corollary  of this rule is  that an agency's  position may evolve

over a period of time without automatically forfeiting all claims

to judicial  deference.  And, moreover,  an agency interpretation

that  represents a  modification of,  or  even a  sharp departure

from, a  prior interpretation does not  necessarily eliminate the

expertise-related  reasons  for  judicial  deference.    See id.;
                                                                

Chevron,  467 U.S. at 862-64.  Thus, an explained modification of
       

an agency  interpretation ordinarily  retains its entitlement  to

whatever  deference may  be due.   See Rust,  111 S.  Ct. at 1769
                                           

(collecting cases).  So it is here.6

                    

     6To  be  sure,  in this  case  the  agency  claims that  its
position  has  been consistent  throughout.   It  is too  much to
expect  that even bureaucrats   a species renowned for mastery of
the  fissilingual   can explicate the reasons underlying a change
that was never made.  Regardless, HHS has explained, cogently and

                                11

          Next, appellants  try to  skirt the Chevron  barrier by
                                                     

taking  a different path.  They asseverate that HHS's view merits

little  deference because  determining this  particular statute's

meaning    involves   primarily    judicial,   as    opposed   to

administrative, skills.  The attempted end run fails.

          The Chevron  doctrine often requires  different degrees
                     

of deference in different situations.  See Sierra Club v. Larson,
                                                                

    F.2d    ,     (1st  Cir. 1993) [No. 92-2227, slip op.  at 17-

18].  Although the need for deference diminishes as issues become

more law-bound and less  moored to administrative expertise, see,
                                                                

e.g., United States v.  29 Cartons of * *  * an Article of  Food,
                                                                

987 F.2d 33, 38 (1st Cir. 1993) (collecting cases), this case  is

not  removed  from   the  realm  of   specialized  administrative

knowledge.  When Congress commanded the Secretary  to ensure that

"payment levels"  were maintained, it  left open the  question of

how  that term  might  be defined  in a  manner  that would  best

promote efficient, fair administration of  two complicated social

service  programs.  The agency, in filling this lacuna, relied on

its lengthy  experience with  the  statutes involved.   See  AFDC
                                                           

Information  Memorandum  (August 5,  1992).    Courts should  not

cavalierly discount the value  of agency expertise  painstakingly

garnered  in  the  administration,  over  time,  of  programs  of

remarkable  intricacy.  See,  e.g., La Casa  Del Convaleciente v.
                                                              

                    

in  detail,  why it  believes its  current interpretation  of the
ambiguous phrase is  sound.  No more is exigible.   See Rust, 111
                                                            
S.  Ct. at  1769; Motor  Vehicle Mfrs. Ass'n  v. State  Farm Mut.
                                                                 
Auto. Ins. Co., 463 U.S. 29, 42 (1983).
              

                                12

Sullivan, 965 F.2d  1175, 1178 (1st  Cir. 1992) (suggesting  that
        

deference to agency expertise  is particularly appropriate in the

complex  field of Medicare); Wilcox v. Ives, 864 F.2d 915, 926-27
                                           

(1st  Cir.  1988)  (Breyer,  J.,  concurring)   (suggesting  that

deference is appropriate where an  agency has, through its  daily

experience  in   administering   a   statute,   gained   a   firm

understanding of the relation of a given provision to the statute

as a whole); see also  Friedman v. Berger, 547 F.2d 724,  727 n.7
                                         

(2d Cir. 1976)  (Friendly, J.) (stating that  the Social Security

Act,   of  which  AFDC  and  Medicaid  are  a  part,  is  "almost

unintelligible to  the uninitiated"), cert. denied,  430 U.S. 984
                                                  

(1977).

          Fourth:  Our last  point is, in actuality, a  subset of
          Fourth:
                

our third point.   In this instance, reading the  phrase "payment

levels"  as encompassing  only the  stipendiary amounts  of basic

AFDC grants  preserves the program's flexibility  and facilitates

its  administration.  Hence, the cardinal reason why deference is

due is because  the agency's interpretation of  the disputed term

is not only linguistically plausible but also eminently sensible.

See 29 Cartons, 987 F.2d at 38 (explaining that the  true measure
              

of  a court's  willingness  to defer  may  depend, in  the  final

analysis, on  the persuasiveness of the  agency's interpretation,

given all the attendant circumstances); Mass. Dep't of Educ., 837
                                                            

F.2d at 541 (similar).

          States have traditionally been afforded a broad measure

of discretion in implementing the AFDC program.  See Jefferson v.
                                                              

                                13

Hackney, 406 U.S.  535, 539-41 (1972).  The  murky language of 42
       

U.S.C.    1396a(c)(1) cannot readily  be interpreted as  a signal

that Congress meant to  scrap this tradition.  Cf.,  e.g., Rosado
                                                                 

v. Wyman, 397 U.S. 397, 414 n.17 (1970) ("An extensive alteration
        

in  the basic underlying  structure of an  established program is

not  to be inferred from ambiguous language that is not clarified

by legislative  history.").  Appellants' construction    that the

maintenance-of-effort provision is triggered whenever  any family

unit receives fewer total dollars in a given month than  it would

have  received that  month under the  set of  computational rules

that were in effect  on May 1, 1988    runs at cross purposes  to

this deep-seated  discretion by  inhibiting a state's  ability to

reorder  its priorities.  For  example, reading the term "payment

levels"  as  appellants  prefer   would  preclude  a  state  from

distributing AFDC  funds according to a new formula, although the

state maintained (or, perhaps, even increased) its aggregate AFDC

expenditures.7    In  contrast,  interpreting the  term  "payment

levels"  as referring only to basic AFDC grants, as the Secretary

urges,  provides all  recipients a  protective floor  while still

permitting  states  to implement  changes  that more  efficiently

allocate scarce resources.  There is every reason to believe that

this latter  route, which preserves the  discretion traditionally

                    

     7The case  at bar  illustrates the  point.   Although  Maine
reduced  the amount of outside income a person may receive before
AFDC payments will be offset partially to save money, it also had
another purpose:  increasing the benefits available to more needy
AFDC  recipients, i.e., those  who receive basic  AFDC grants but
                      
have little or no supplemental income.

                                14

available to  the states  in  implementing the  AFDC program  and

maximizes  state flexibility,  is a  far closer  approximation of

congressional intent.  See S. Rep. No. 377, 100th Cong., 2d Sess.
                          

49,  reprinted in 1988 U.S.C.C.A.N.  2776, 2826 (referring to the
                 

incidence  of  state  flexibility  in connection  with  need  and

payment standards).

          Nor is this the only straw  in the interpretive breeze.

We  can safely  assume that  Congress,  in enacting  the statute,

preferred  administrative  efficiency to  administrative clutter.

See Dion v. Commissioner, Me. Dep't of Human Servs., 933 F.2d 13,
                                                   

17  (1st  Cir. 1991)  (discussing  congressional  interest in  an

administratively   streamlined   procedure    for   food    stamp

recipients).  This, too, cuts in favor of the Secretary   for the

Secretary's interpretation is administratively more workable than

appellants' interpretation.   If the term  "payment levels" means

basic AFDC  grant amounts, both state  and federal administrators

can tell quite easily whether a proposed change in a state's plan

activates the maintenance-of-effort provision.   If, on the other

hand, the term means all payments made to all AFDC recipients, it

prescribes   a  much  more   complicated,  highly  individualized

calculation.   Because  the  Secretary's reading  of the  statute

ensures that a  significant portion of the finite funds available

for AFDC and  Medicaid go to needy recipients  rather than to the

costs of administrative implementation, it jibes more neatly with

Congress's likely intent.

III.  CONCLUSION

                                15

          We need  go no  further.8  When,  as now,  the case  is

debatable, the key  phrase in the statute  is patently ambiguous,

the legislative history is  unilluminating, the subject matter is

somewhat technical, and the  indications are that Congress wanted

to take advantage of agency expertise, a plausible interpretation

of  the  disputed  term, expressed  with  clarity  by  the agency

charged  with the  statute's administration,  necessarily carries

great  weight.  To clinch matters, the agency's interpretation of

the  phrase "payment levels" in the statute sub judice also helps
                                                      

to  maintain traditional  programmatic goals  and to  promote the

public  interest  in  efficient  implementation  of the  affected

programs.   We hold,  therefore, consistent with  the Secretary's

view,  that the allusion in  42 U.S.C.    1396a(c)(1) to "payment

levels" refers  only  to the  stipendiary amounts  of basic  AFDC

grants  and  not,  as appellants  have  argued,  to  total monies

actually received by each AFDC family.  Accordingly, the judgment

below will be

Affirmed.
        

                    

     8We   do   not  tarry   over   appellants'   assertion  that
administrative interpretations and  statutory provisions in other
fields treat certain  supplemental income in the same  fashion as
basic AFDC grants.   In the  first place, these  interpretations,
all of  which deal with program  administration, are analytically
distinct and,  therefore, inapposite.   See Stowell  v. Sullivan,
                                                                
812  F. Supp. at 270-71  (discussing identical proffer).   In the
second place, this is a zero-sum game; the Secretary has produced
a  counter-list  of  interpretations and  provisions  which treat
supplemental income and basic  AFDC grants differently.  Compare,
                                                                
e.g., 51 Fed. Reg.  29,223, 29,224 (1986) (declaring supplemental
    
payments to be AFDC expenditures for purposes of matching federal
funds) with, e.g.,  Winslow v. Commissioner,  Me. Dept. of  Human
                                                                 
Servs.,  795  F.  Supp.  47,   49-50  (D.  Me.  1992)  (upholding
      
Secretary's determination that supplemental payments are not AFDC
payments for purposes of computing Medicaid income levels).

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