GAB Decision 130
Docket No. 80-66-UT-HD
October 31, 1980
Utah Department of Social Services;
Coster, Clarence; Settle, Norval Przybylinski, Donald
The Uath Department of Social Services (State) requested
reconsideration of a decision of the Office of Human Development
Services (Agency) dated March 19, 1980, disallowing Federal financial
participation (FFP) in expenditures claimed as training costs under
Title XX of the Social Security Act (Act). The Agency determined that
$10,030 was not allowable because the State had charged travel and per
diem costs for training programs which lasted less than five full days
during the period from October 1, 1976 through September 30, 1977.
This decision is based on the State's application for review and the
parties' responses to an Order to Show Cause issued by the Board
Chairman. In addition, consistent with notice given to the Office of
General Counsel, this decision takes into account documents and briefs
regarding the issue of travel and per diem costs which were submitted to
the Board in those cases disposed of by DGAB Decision No. 119 (Montana
Department of Social and Rehabilitation Services, September 30, 1980),
as well as in DGAB Docket Nos. 80-59-AL-HD and 80-76-OR-HD. Further,
the pertinent findings and conclusions in Decision No. 119 are
incorporated by reference herein.
Background
Title XX of the Act provides at Section 2002(a)(1) that a state shall
be entitled to FFP for services provided to achieve the goals enumerated
in the enabling legislation. Services for which reimbursement is
available include expenditures for personnel training and
retraining.Section 2002(a)(2) of the Act further provides that no
payment may be made for expenditures, other than personnel training or
retraining, which exceed a state's pro rata share of the appropriations
authorized for Title XX expenditures during the fiscal year. Thus, the
question of whether an expenditure is an allowable training cost may
have a significant effect on the FFP available to a state.
The regulations governing expenditures for training and retraining,
45 CFR 228, Subpart H, were amended on January 31, 1977 (42 FR 5848).
The amendment resulted in changes in the organization and terminology of
45 CFR 228.84 - - "Activities and costs matchable as training
expenditures." The earlier version of the section had been published on
June 27, 1975 (40 FR 27354) and, as pertinent to this case, read as
follows:
Costs matchable as training expenditures include:
(c) Payment of travel, per diem and educational expenses of employees
while they are attending training programs for less than eight
consecutive work weeks;
(d) Payment of educational expenses (tuition, books, supplies) for
employees on part-time educational leave (part of the working week,
evenings, mornings).
As pertinent, the regulations were amended in 1977 as follows:
Costs matchable as training expenditures include:
(a) State agency employees.
(2) For State agency employees in full-time training programs of less
than eight consecutive work weeks: per diem, travel and educational
costs;
(3) For State agency employees in part-time training programs (part
of work week, evenings, mornings): Education costs.
The Agency relied upon 45 CFR 228.84(a)(3) (1977) in disallowing the
claim and stated, "This part has been interpreted to mean that for any
training lasting less than five full work days (including travel), only
educational costs are allowable."
The State protested the disallowance on the basis that the Agency was
not applying the regulations uniformly aong the states. The State,
which is in Region VIII, noted that the Agency's Region X disallowed FFP
which the State of Alaska claimed for travel and per diem costs only for
periods after a written interpretation of the regulations, Policy
Interpretation Question (PIQ) 77-88, was issued on September 14, 1977.
Region X stated that ". . . the policy on short-term training was not
absolutely clear until" that time, and concluded, ". . . we will not
hold you to this more restrictive interpretation for prior periods." The
State of Utah asked that it receive the same tratment as those states in
Region X.All of the costs disallowed in the instant case were incurred
before the issuance of PIQ 77-88.
The Agency argued in response to the Order to Show Cause that 45 CFR
228.84(a)(3) on its face clearly precludes FFP in travel and per diem
costs incurred for training programs lasting less than five full days.
It contended that the decision made by Region X in the case of Alaska
was an isolated one and does not provide any basis for a decision in the
State's favor in this case.
Discussion
In Decision No. 119, noted above, the Board relied specifically on
Information Memorandum HDS-IM-79-10 (Administration for Public Services)
which was issued on August 23, 1979 to all state agencies administering
social service programs under Title XX of the Act. The memorandum
transmitted a complete set of PIQs to the states and asserted, as
pertinent to this matter:
Since these interpretations have not been available on a routine or
uniform basis, states will not be held accountable for administering
their programs in accordance with PIQs issued up to and including
September 1, 1979 until receipt of them, unless they have previously
been given actual knowledge of the contents.
Upon consideration of this memorandum, the Board found in Decision
No. 119 that it was Agency policy not to hold a state accountable for
the policy interpretation contained in PIQ 77-88 until such time as the
state received actual notice of the interpretation. In the case now
before us, the State could not have received or had knowledge of the
contents of PIQ 77-88 prior to or during the State was otherwise
informed of the interpretation during the period in question. Thus, by
because PIQ 77-88 was not issued until after the costs in question were
incurred. There is no other evidence that the period in question.
Thus, by the terms of the Agency's own policy, the disallowance was
improperly taken.
The Board notes that Information Memorandum HDS-IM-79-10(APS) also
provides that, ". . . to the extent a PIQ merely states the ONLY
reasonable interpretation of a statutory or regulatory provision, States
would be bound to comply with that interpretation even in the absence of
a PIQ." This proviso, however is inapplicable to the facts of this case.
The Board also found in Decision No. 119 that regardless of the Agency's
official policy concerning Federal sharing in travel and per diem costs
for training programs which lasted less than five full days, the prior
practice of the Agency's field components was to allow FFP for training
programs of shorter duration.
Conclusion
The Board reverses the Agency's disallowance of travel and per diem
costs for the period from October 1, 1976 through September 30, 1977 and
finds that the State is entitled to $10,030 FFP claimed for that period.
OCTOBER 04, 1983