Missouri Department of Social Services, DAB No. 1304 (1992)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Appellate Division

SUBJECT:  Missouri Department of Social Services

DATE:  February 21, 1992
Docket No. 91-124
Decision No. 1304

DECISION

The Missouri Department of Social Services (Missouri) appealed a
decision by the Health Care Financing Administration (HCFA) disallowing
$557,168 in federal financial participation (FFP) claimed under Title
XIX (Medicaid) of the Social Security Act (Act) for the period April 1,
1985 through June 30, 1990.

Based on a financial review, HCFA determined that time studies used by
Missouri did not adequately document its claims for FFP at the Federal
Medical Assistance Percentage (FMAP) rate in expenditures for case
management services provided under its Home and Community Based Services
waiver. 1/  HCFA contended that Missouri was required to maintain
certain specific documentation about the services provided to each
recipient to support its claim for reimbursement at the FMAP rate, which
it did not do.  HCFA found, however, that FFP was available for these
expenditures at the 50% rate available generally for Medicaid
administrative costs.  Consequently, HCFA disallowed the difference
between the FMAP reimbursement rate claimed by Missouri and the 50% rate
which, HCFA contended, applied.

As explained more fully below, we reverse HCFA's disallowance for the
period April 1, 1985 through January 17, 1989.  We find that during this
period, Missouri's time studies provided documentation sufficient to
satisfy then-existing HCFA requirements.  HCFA cannot reasonably decline
to reimburse Missouri at the FMAP rate based on the failure to meet
specified documentation requirements, prior to the time Missouri had
adequate notice of those requirements.  For the period January 18, 1989
through June 30, 1990, we sustain the disallowance since we find that
Missouri had adequate notice during this time period that it did not
meet the documentation requirements applicable to case management
services claimed at the FMAP rate.  We remand the appeal to HCFA for
recalculation of the disallowance amount.  Should Missouri disagree with
the recalculation, it may return to the Board but only for the limited
purpose of appealing the recalculation.


Background

The Medicaid program provides federal funding to assist states in
providing medically necessary services to certain low income
individuals.  HCFA advances funding to participating states on a
quarterly basis equal to the federal share of estimated program costs.
Within 30 days of the close of each fiscal quarter, states are required
to submit to HCFA a report of actual costs incurred during that quarter
(Form HCFA-64).  HCFA examines the report to ensure the allowability of
costs claimed and then adjusts future Medicaid payments as necessary to
reflect any over- or underpayment which may have been made to the state
in a prior quarter.  See section 1903(d) of the Act; 42 C.F.R. . 430.30.

Section 1915(c) of the Act authorizes states to provide Home and
Community Based Services (HCBS) under a waiver of certain
otherwise-applicable Medicaid requirements.  These services are provided
to persons who would require institutionalization but for the
availability of such services.  See 42 C.F.R. . 441.300 et seq.  Each
state electing to provide HCBS waiver services must request a waiver and
have a written plan approved by HCFA.  42 C.F.R. . 441.301.  Case
management services may be provided by states under the HCBS waiver
program if they are approved as part of the waiver request.  42 C.F.R. .
440.180.

Effective October 1, 1983, Missouri had an approved HCBS waiver which
included case management services.  This waiver was subsequently
extended through the periods at issue in this disallowance.  HCFA's
Financial Management Report of October 31, 1991, on which the
disallowance is based, lists the amounts claimed for HCBS case
management services as program costs at the FMAP rate for the quarters
ending June 30, 1985 through June 30, 1990. 2/  HCFA Ex. 2, p. 8.  HCFA
disallowed the amounts claimed in excess of the 50% administrative rate
based on its determination that Missouri had not met the documentation
requirements in the State Medicaid Manual, Part 2, section 2500 . A.18
(issued December 1988, effective January 18, 1989).  HCFA Ex. 1.

By letter of September 3, 1985, HCFA had transmitted to Missouri the
instructions for a new Schedule I to be attached to the HCFA-64
beginning with the fourth quarter of FY 1985 (July 1, 1985 - September
30, 1985).  See Missouri Ex. A.  Schedule I encompassed expenditures
made under the HCBS waiver program.  The instructions relayed the
following directive from HCFA:

 Where the State proposes to provide services under a waiver
 (e.g. case management) by individuals employed by a component of
 the State, the cost of these services must be claimed as a
 program cost on the Form HCFA-64.9 and/or HCFA-64.p [sic], as
 appropriate.  (Case management not provided under a HCBS waiver
 but furnished by public employees is reportable as an
 administrative cost.)

See Missouri Ex. D, p. 2.  HCFA's instructions for Schedule I appeared
in the State Medicaid Manual as section 2500.6, which was issued in
November, 1985.

Missouri reported its actual expenditures for both HCBS waiver case
management services and for case management claimed as administration
based on time studies throughout the period at issue in the
disallowance.  Throughout the disallowance period, Missouri had cost
allocation plans (CAPs) approved by HCFA which permitted allocation of
case management costs based on time studies. 3/

Effective April 1, 1986 and in response to a request from HCFA, Missouri
revised its time study to calculate its expenditures for these services
using three time study codes:  services to recipients eligible for such
services under the HCBS waiver (MW); services to recipients eligible
under the Medicaid program but not under the waiver (MD); and services
to recipients eligible under both (MM).  Missouri then claimed all of
its MW and half of its MM costs as program costs at the FMAP rate; it
claimed all of its MD and the other half of its MM costs as
administrative costs at the 50% rate. 4/

HCFA issued a draft report of a review of Missouri's Forms HCFA-64 for
the period October 1, 1987 through September 30, 1988.  During that
period, the State had claimed $888,534 ($526,633 FFP) for case
management services under the HCBS waiver program.  In its draft report,
HCFA found that the $526,633 FFP was not supported by adequate
documentation and requested a return of all federal funding.  However,
based on the State's reply, HCFA determined that the services were
necessary for the efficient administration of the Medicaid program so
that Missouri's claims were allowable at the 50% rate available for
administrative costs.

In its final review report issued October 31, 1990, HCFA expanded the
time period encompassed by the review so that it covered the period
April 1, 1985 through June 30, 1990, but allowed for reimbursement of
Missouri's case management services at the administrative cost rate
throughout the entire period.  During these 17 quarters, Missouri had
claimed $5,510,823 ($3,312,579 FFP) at the higher FMAP rate.  At the 50%
administrative cost rate, Missouri would have been entitled to only
$2,755,411 FFP.  HCFA requested the return of the difference of $557,168
and Missouri brought this appeal.

Analysis

 A.      Missouri's time studies were sufficient support for its
 claims at the FMAP rate for the period April 1, 1985 through
 January 17, 1989.

Missouri used the time studies 5/ performed according to its approved
CAPs, which measured actual services provided, to determine the amounts
it claimed for both program costs, under the HCBS waiver program, and
administrative costs, for other case management programs. 6/

HCFA argued that accounting methods such as time studies and other
statistical sampling methods constitute unacceptable estimates. 7/  HCFA
did not argue that the time studies were not sufficient to ensure that
Missouri was claiming only for case management services properly
provided under the terms of the HCBS waiver to eligible individuals.
See generally HCFA pp. 6-8.  The State argued that time studies were
utilized in the past and that there was no notification by HCFA that
additional documentation was required under the policy requiring the
reporting of HCBS waiver case management services as program costs.  See
generally Missouri pp. 3-5.

  1.      Sources of law, regulation, and policy

Section 1903(a)(1) of the Act provides the basic standard for
reimbursement for expenditures for medical assistance under Medicaid:

 [T]he Secretary . . . shall pay to each State which has a plan
 approved under this title, for each quarter . . . an amount
 equal to the Federal medical assistance percentage [FMAP] . . .
 of the total amount expended during such quarter as medical
 assistance under the State plan . . . .

HCFA cited to 45 C.F.R. Part 201, which applied to state Medicaid
agencies prior to October, 1988.  Section 201.5(a)(3) provided that
state agencies must submit a quarterly statement of Medicaid
expenditures (Form HCFA-64), which is an accounting statement of the
disposition of federal funds granted for past periods.  HCFA also cited
to 45 C.F.R. . 74.61, applicable to state Medicaid agencies at all
periods relevant to this disallowance, which provides that state
grantees must provide accounting records which adequately identify the
source and application of funds for grant-supported activities.

In March, 1984, HCFA issued Transmittal No. 21 containing revisions to
the instructions for Form HCFA-64.  HCFA Ex. 4.  Transmittal No. 21,
which was incorporated into section 2500 of the State Medicaid Manual,
informed grantees that the amounts shown on HCFA-64 must represent
actual expenditures and that estimates were not acceptable.  Id.
Likewise, in April, 1986, HCFA issued Transmittal No. 40, which stated
slightly more specifically that Form HCFA-64 claims must contain only
actual expenditures supported by documentation.  It also stated that
claims developed through sampling or estimates are not allowable.  HCFA
Ex. 3.  This transmittal was also incorporated into section 2500 of the
State Medicaid Manual.  The prohibition on estimates in the quarterly
reporting of actual program costs later was incorporated into the
codified regulations.  See 42 C.F.R. . 430.30(c)(2) (effective October,
1988).  HCFA cited these sources in support of its argument that
Missouri had notice that time studies were insufficient to support
claims for reimbursement of HCBS waiver case management services as
program costs. 8/  Id.

None of these sources stated specifically that additional documentation
would be required when states claimed case management services under the
HCBS waiver as program costs.  Each stated the basic requirement that
states must report actual expenditures and not estimates on the
quarterly HCFA-64.  This was a long-standing requirement of the Medicaid
program and was well-known to state Medicaid grantees.  .At the same
time, HCFA was well aware that many states used time studies to document
their allocation of administrative expenses to Medicaid.  See, e.g.,
Missouri Exs. B and F.  The case management services at issue in the
disallowance were being provided by public employees who customarily
would be using time studies to measure their services and who normally
would be involved in providing services under multiple federal programs.
The circumstances here are distinguishable since medical assistance
services are typically rendered by outside providers and not by public
employees.  Moreover, it is obvious that states would have to engage in
a major restructuring of their documentation methods for these programs
if time studies were not permitted for case management services under
the waiver.  In the absence of explicit directions to restructure its
documentation system, Missouri reasonably relied on its approved time
study.  We find that none of the sources cited by HCFA provided
sufficiently clear instructions to states as to what documentation would
be required to claim HCBS waiver case management services as program
costs.

  2.      The Board's decision in New York State
  Department of Social Services

Both parties agreed that estimates are not acceptable for determining
actual Medicaid expenditures, whether the expenditures are for program
costs or administrative costs.  The disagreement is over whether the
expenditures for case management services as determined by the time
studies used by Missouri were prohibited estimates.

A February, 1990 decision of the Board, cited by both parties in their
briefs, addressed the issue of what constitutes an unacceptable
estimate.  New York State Dept. of Social Services, DAB No. 1134 (1990).
DAB No. 1134 involved a statistically valid sample of a universe of
actual expenditures, some of which qualified for federal funding.  The
Board found that the sample in question was not an estimate as
contemplated by the Act and subsequent regulations.

HCFA attempted to distinguish this case, alleging that DAB No. 1134 did
not address requirements that a state report actual expenditures after
the close of each quarter.  We believe that HCFA misread the case and
that Missouri correctly cited the case in support of its position.  Like
the statistical sampling method which was found to be adequate for
measuring costs in New York, time studies, if otherwise valid, are
methods accepted as reasonable for allocating actual expenditures among
benefitting programs.  Thus, we find that Missouri's valid time studies
used to determine the amount of its actual expenditures for waivered
case management services are not estimates that are per se prohibited by
Medicaid regulations and policies in reporting expenditures on Form
HCFA-64.  The fact that Missouri's expenditures were not also supported
by the more detailed recipient-specific data required by HCFA for later
time periods does not mean that the reported expenditures were not
actual.  We note that the requirements relied on by HCFA also applied to
Missouri's expenditures for administrative costs.  Time studies used in
accordance with an approved CAP, like those at issue here, distribute
actual expenditures among particular objectives in a manner which is
fully acceptable to meet requirements not to claim based on estimates.

  3.      Summary of analysis for period of April 1, 1985
  through January 17, 1989

We conclude that the State's method for claiming case management
services provided by Missouri state employees under the HCBS waiver for
the period April 1, 1985 through January 17, 1989 complied with
then-existing documentation requirements.  HCFA's reliance for this time
period on the general documentation requirements for federal grants
derived from 45 C.F.R. Part 74 and the prohibition on estimates is
misplaced.  HCFA did not cite any regulations which would indicate that
specific documentation requirements existed for either HCBS waiver case
management services or other FMAP claims which would have put Missouri
on notice that enumerated per-case documentation was necessary.  HCFA's
position was that the FMAP rate was available throughout this period so
long as documentation requirements were met.  In the absence of more
specific documentation requirements of which the State had actual
notice, the time studies were adequate support for the State's
expenditures for waiver case management services.  We find that the
expenditures for case management services provided by Missouri state
employees under the HCBS waiver are reimbursable at the FMAP rate for
the period April 1, 1985 through January 17, 1989.

 B.      Missouri's time studies were clearly insufficient to
 meet documentation requirements for its claims at the FMAP rate
 applicable as of January 18, 1989.

In January, 1988, HCFA sent to state Medicaid agencies Transmittal No.
30 containing implementing regulations for targeted case management
services.  The transmittal on its face implemented only optional
targeted case management provided for in a state plan in accordance with
section 1915(g) of the Act.  HCFA Ex. 5.  The transmittal listed certain
specific per-case documentation requirements which would be required in
order to claim case management services at the FMAP rate.  However,
while the transmittal points out other authorities for case management
services (including section 1915(c) HCBS waiver services), the specific
documentation requirements are in a section dealing with state plan
requirements for section 1915(g) and do not clearly apply to case
management services authorized under other sections.

On June 13, 1988, HCFA sent a letter to Missouri which stated that some
states were not complying with the January, 1988 transmittal.  Missouri
Ex. E.  The letter, while mentioning that the January transmittal had
provisions addressing both section 1915(g) and other case management
services, did not specifically state that the documentation requirements
of the January transmittal which were applicable to section 1915(g) were
now applicable to other case management services.

HCFA asserted that the January, 1988 Transmittal and June, 1988 letter
gave notice to Missouri that additional documentation was required for
HCBS waiver case management services.  However, we conclude that neither
of these communications was sufficiently clear to put Missouri on notice
of a requirement of specific per-case documentation for these services.

However, beginning in December, 1988, such specific notice was given.
In December, 1988, HCFA issued Transmittal No. 59 which, among other
changes, added section 2500, . A.18 of the State Medicaid Manual.  The
new section reiterated that case management could be claimed as a
Medicaid service only in four instances, one of which was under the HCBS
waiver program.  It then stated:

 When claiming case management as a Medicaid service in these
 instances, fully document your claim as you would for any other
 Medicaid service. . . . When you make [arrangements other than
 through a prepaid health plan or capitation plan] to provide the
 service, you must provide the following minimum documentation:

    Date of service, Name of recipient,
    Medicaid identification number, Name of
    provider agency and person providing the
    service, Nature, extent, or units of
    service, and The place of service.

 Time studies, random moment sampling, cost allocation plans, and
 other methods which you use to support Medicaid administrative
 expenditures are not sufficient to support a claim for a
 Medicaid service.

This revision had an effective date of January 18, 1989.  HCFA relied on
this State Medicaid Manual section as the basis for its disallowance of
claims at the FMAP level due to insufficient documentation.  HCFA Ex. 2,
p. 6 and Ex. 1, p. 1.

Missouri's time studies were clearly insufficient to meet the
documentation requirements for program costs set forth in the December,
1988 State Medicaid Manual revision.  We therefore find that case
management services provided under the HCBS waiver by Missouri state
employees beginning January 18, 1989 through the quarter ending June 30,
1990 should be reimbursed only at the administrative cost rate.  Had
Missouri complied with the more specific documentation requirements
enumerated in the December, 1988 transmittal, reimbursement at the FMAP
rate would have been available.

Conclusion

For the above reasons, we conclude that reimbursement for case
management services provided by Missouri state employees under the HCBS
waiver is allowable at the FMAP rate for the period April 1, 1985
through January 17, 1989.  We further conclude that reimbursement for
HCBS waiver case management services for January 18, 1989 through June
30, 1990 is allowable only at the 50% rate for administrative costs.
The case is remanded to HCFA to determine the amount disallowed
consistent with this decision.  If Missouri disagrees with
HCFA's.recalculation, Missouri may return to the Board for review of
this limited issue only.  Any further appeal must be filed within 30
days of receipt of HCFA's recalculation determination.

 


  _______________________________ Judith A. Ballard

 


  _______________________________ Donald F. Garrett

 


  _______________________________ Cecilia Sparks Ford
  Presiding Board Member


1.  Missouri's FMAP rate ranged between 59.18% and 61.40% for the
quarters in the disallowance period.

2.  Under Medicaid regulations, certain types of case management
services related to the review of a patient's need for
institutionalization are claimed as administrative expenses.  See State
Medicaid Manual, section 4302.2.F.3; Missouri Ex. E, p. 2-3.
Essentially, the effect of the waiver is to classify as program services
certain case management functions which would otherwise be
administrative.  Both parties' briefs noted that Missouri claimed HCBS
waiver case management services as administrative costs through the
quarter ending December 31, 1985.  Missouri p. 1; HCFA p. 5.  Neither
party explained how this was significant here; the federal review
clearly found amounts claimed at the FMAP rate from April 1, 1985.

3.  Medicaid regulations require that states have approved CAPs for the
apportionment of administrative costs incurred in support of all state
agency administered federal programs.  See 42 C.F.R. . 433.34; 45 C.F.R.
Part 95.

4.  Missouri stated that its CAP, including the original sampling plan
to identify HCBS waiver expenditures, had been approved effective July
1, 1984.  HCFA Ex. 6, p. 11.  The record does not show the method by
which the State was selecting out HCBS waivered from other case
management services prior to 1986 in order to claim them as program
costs.

5.  Missouri's administrative cost reimbursement had always been based
on time studies in accordance with its approved CAP, and HCFA had
knowledge of and had accepted these time studies for determining
administrative costs for all periods relevant to this disallowance.  The
appeal record lacks a detailed explanation of the particular time study
method(s) used.  We note that HCFA did not question the statistical
accuracy of the particular time study, but rather questions the use of
such method(s) for measuring program costs while at the same time
recognizing its accuracy in measuring administrative costs.  For
purposes of this decision, there is no basis to question whether the
time study was carried out in a valid and accurate manner.

6.  Missouri asserted that HCFA approved the State's CAPs for the
periods in question and that such approved plans contained time study
measuring provisions.  Missouri argued that HCFA should not be permitted
to disallow costs based on cost measuring methods that it has previously
approved for the applicable period.  Missouri pp. 4-5.  HCFA argued that
CAP provisions do not apply to case management services claimed as
medical assistance services provided under Medicaid.  HCFA asserted that
the definition of state agency administration costs, i.e., those costs
which are encompassed under cost allocation plans, specifically exclude
services provided directly to program recipients.  HCFA p. 11.

While CAPS are generally used to allocate administrative costs, there is
no basis to conclude that the approved CAP did not adequately measure
Missouri's expenditures for case management services.  Moreover, since
these are the types of costs ordinarily measured through CAPs, until
Missouri was explicitly instructed to the contrary, Missouri could have
reasonably thought its approved CAP method was appropriately used.

7.  HCFA further argued that the State's long-standing position that
case management services are administrative in nature should preclude it
from obtaining reimbursement at the FMAP rate.  However, the way
Missouri characterized these functions in its dealings with HCFA is not
relevant.  Here it is undisputed that so long as Missouri met the
applicable documentation requirements, it was entitled to receive the
FMAP rate for its expenditures for case management services under the
waiver.

8.  HCFA further argued that Missouri was on notice that it must provide
additional documentation to receive reimbursement at the FMAP rate based
on a general principle that grantees must provide adequate documentation
in support of enhanced funding requests.  While HCFA cited no cases in
support of this theory, we assume that it is based on previous Board
decisions holding that state Medicaid agencies must bear the burden of
providing documentation sufficient to demonstrate that administrative
costs qualify for enhanced funding under section 1903(a) of the Act.
E.g., New Jersey Dept. of Human Services, DAB No. 845 (1987); New Jersey
Dept. of Human Services, DAB No. 688 (1985).  These decisions involved
only at what rate administrative costs should be paid.  We can find
nothing in these cases which would support a conclusion that Missouri
should have known that what it was doing here was