Maryland Department of Health and Mental Hygiene, DAB No. 1375 (1992)

Department of Health and Human  Services

DEPARTMENTAL APPEALS BOARD

Appellate Division

SUBJECT:  Maryland Department of Health and Mental Hygiene

DATE:  December 10, 1992
Docket No. A-92-112
Audit Control No. A-03-89-00235
Decision No. 1375

DECISION

The Maryland Department of Health and Mental Hygiene (Maryland) appealed
the decision of the Health Care Financing Administration (HCFA) to
disallow $728,396 in federal financial participation (FFP) claimed by
Maryland for administrative costs under title XIX (Medicaid) of the
Social Security Act (Act) for the period July 1, 1987 through June 30,
1989.  The disallowance resulted from Maryland's failure to review the
continuing Medicaid eligibility of categorically eligible recipients
after they were terminated from the Aid to Families with Dependent
Children (AFDC) program under title IV-A of the Act.  As a consequence
of this failure, Maryland paid medical assistance and incurred
administrative costs for thousands of ineligible enrollees over several
years.  Under the formula in Maryland's Cost Allocation Plan (CAP),
administrative costs were apportioned to Medicaid on the basis of the
number of non-federally eligible enrollees in Maryland's Medical
Assistance Program (MAP).  HCFA determined that Maryland's claim for FFP
in administrative costs had been overstated because these ineligible
Medicaid recipients had been treated as federally eligible enrollees
under the CAP formula.  HCFA concluded that Maryland's claim should be
adjusted downward by including these ineligibles in the count of
non-federally eligible enrollees.

Background

Title XIX of the Act provides for the payment of federal monies to
states to aid them in financing state medical assistance programs for
low-income individuals.  HCFA participates in a state's costs for
medical assistance, i.e., payments for covered services provided to
eligible individuals, and in a state's costs for administering its
Medicaid program.  Section 1903(a).  The applicable cost principles in
Office of Management and Budget (OMB) Circular A-87 provide that costs
may be allocated to federal grant programs to the "extent of benefits
received" and that for joint costs an allocation plan is required.  OMB
Circular A-87, Attachment A, . C.2.  (This Circular is made applicable
to HHS grants to states by 45 C.F.R. . 74.171.)  The Board has said that
these provisions do not require any particular proportionate allocation
of joint costs so long as "costs are allocated in an equitable manner to
programs which actually benefit from the costs" and the state follows
its approved cost allocation methodology.  Oklahoma Dept. of Human
Services, DAB No. 963, at 4 (1988).  States that choose to fund a
Medicaid program are required to have a CAP which has been approved in
accordance with the requirements of Subpart E of 45 C.F.R. Part 95.  42
C.F.R. . 433.34.  A CAP sets forth the procedures a state will use to
identify, measure, and allocate costs to benefiting programs.  45 C.F.R.
. 95.507(a)(1).  When a state incurs administrative costs that benefit
both its Medicaid program and other programs, such costs are eligible
for federal reimbursement only to the extent they are allocated to
Medicaid pursuant to an approved CAP.  45 C.F.R. . 95.517.

During the time period covered by this disallowance, Maryland operated
its Medicaid program as the major component of MAP. 1/  MAP also
included non-federal health care programs funded entirely by Maryland.
The administrative costs of operating MAP were partially reimbursed by
HCFA as part of its participation in Medicaid costs.  Allocation of MAP
administrative costs to Medicaid was determined by Maryland's Medicaid
administrative CAP.

MAP was administered by the Maryland Department of Health and Mental
Hygiene (DHMH).  DHMH had an interagency agreement with the Maryland
Department of Human Resources (DHR) pursuant to which DHR reviewed
Medicaid eligibility determinations performed by local social service
departments.  DHR also administered other Social Security Act programs,
such as AFDC, for which local departments also performed eligibility
determinations.  If a local department determined that an applicant
qualified for AFDC, the applicant became categorically eligible for
Medicaid.  In this event, the local department notified DHMH and DHMH
issued a Medicaid card to the recipient.  Thereafter, DHMH automatically
renewed the recipient's Medicaid eligibility unless it was informed that
the recipient was ineligible.

DHR historically maintained its AFDC eligibility records on the
Automated Income Maintenance System (AIMS).  DHMH maintained its
Medicaid eligibility records on the Maryland Medicaid Information System
(MMIS).  For a number of years, including 1987, 1988, and 1989, these
two automated systems were not compatible.  Therefore, an AFDC case
closed by DHR in AIMS had to be manually reported to DHMH and DHMH had
to close that AFDC-linked Medicaid case in MMIS.

In 1988, DHMH became aware of discrepancies between the eligibility
files maintained in AIMS and those maintained in MMIS: former AFDC
recipients who were ineligible for AFDC in the AIMS continued to be
shown as eligible for Medicaid in the MMIS.  A joint DHR/DHMH work group
was convened to reconcile the discrepancies and implement a system to
prevent similar errors from occurring.  As a result of this AFDC
Reconciliation Project, Maryland found over 20,000 Medicaid recipients
who retained their Medicaid eligibility after being determined
ineligible for AFDC.  Eligibility redeterminations were then conducted
for these recipients.  The redeterminations established that 6,493
recipients in state fiscal year 1987 and 11,007 recipients in state
fiscal year 1988 were listed in DHMH's files as Medicaid eligible when
they had, in fact, lost their eligibility for Medicaid at the same time
they lost their AFDC eligibility.  Maryland Ex. 1 at 6.  These
individuals were then removed from the DHMH MAP rolls.

The Office of the Inspector General conducted an audit of Maryland's
Medicaid administrative costs for state fiscal years 1988 and 1989.
During those years, HCFA reimbursed Maryland $59 million FFP for
administrative costs.  The auditors found the vast majority of these
costs to be allowable and allocated in accordance with the CAP.
However, in the course of the audit, DHMH provided the auditors with the
data from its AFDC Reconciliation Project showing that substantial
numbers of enrollees had been retroactively determined to be ineligible
for Medicaid.  The auditors then recalculated MAP administrative costs
allocated to Medicaid by substituting corrected data in three elements
of the CAP formula used to distribute DHMH costs to Medicaid.  The
auditors included in the non-federal enrollee category the individuals
who were retroactively determined to be ineligible for Medicaid
(Maryland had treated these enrollees as federally eligible when
calculating its claims for FFP).  The auditors also used a lower total
number of MAP enrollees and a higher amount of MAP payments than
Maryland had used. 2/  On the basis of this recalculation, the auditors
determined that Maryland had improperly claimed federal funds in the
amount of $295,785 in 1988 and $432,611 in 1989.  Pursuant to the audit
recommendations, HCFA disallowed $728,396 FFP in Medicaid administrative
costs.  The majority of the costs disallowed resulted from reclassifying
enrollees found to have been ineligible for Medicaid to the category of
non-federal enrollees.

Discussion

Maryland argued that this disallowance should be overturned for two
reasons.  First, Maryland asserted that HCFA's application of the CAP
formula was based on the incorrect assumption that Maryland transferred
ineligible Medicaid recipients to the state-only medical program.
Second, Maryland argued that the disallowance was inequitable and
arbitrary and capricious.  For the following reasons, we reject these
arguments.

 1.  In allocating administrative costs associated with these
 non-Medicaid eligible enrollees to Maryland, HCFA applied the
 cost allocation formula appropriately.

The Maryland Medicaid administrative CAP sets forth a formula for the
allocation of DHMH administrative costs of MAP to Medicaid.  The formula
relies primarily on the proportion of non-federally eligible enrollees
in the MAP program to develop a percentage which is used to allocate
administrative costs to Medicaid.  That formula provides:


1.      Total Non-Federal Enrollees             =
Percentage of Non-Federal Total MAP Enrollees
 Enrollees to Total Enrollment


2.      Percentage of Non-Federal        X               Total MAP    =
MAP Payments Attributable Enrollees to Total Enrollment
 Payments             to Non-Federal Enrollees


3.      MAP Payments Attributable       +                       Pharmacy
Assistance Program  =   Total Payments to Non-Federal Enrollees
 Provider Payments                       Attributable to
 Non-Federal Enrollees


4.      Total Payments Attributable to Non-Federal Enrollees      =
Non-FFP Percentage Total MAP Payments


5.  100 Percent    -                    Non-FFP Percentage      =
FFP Percentage


6.      Gross Medicaid Administrative Costs   X  FFP Percentage   X
Federal Matching Rate   =

     Net Amount Claimed for Federal
     Reimbursement

 

In its comments on the results of the audit, Maryland had asserted both
that its state-only MAP program was insignificant and should not bear
additional administrative costs and that "little if any activity in
program payments resulted from these ineligible recipients".  Maryland
Ex. 1, April 8, 1991 letter of Nelson J. Sabatini at 2 and 3.  In
response, the auditors stated that the approved allocation method was
based on caseload and that Maryland was continuing to claim FFP for
administrative costs associated with these ineligible recipients.  The
auditors also refuted Maryland's assertion of "little activity" by
finding that during state fiscal year 1988 MAP medical assistance
payments of $2,393,306 ($1,202,060 FFP) were attributable to these
enrollees and that such payments continued in subsequent years.
Maryland Ex. 1, at 11.  Maryland did not renew these points on appeal.

During the Board's proceedings, Maryland argued that HCFA's application
of the CAP formula was based on the erroneous assumption that Maryland
transferred all the recipients who were determined to have been
ineligible for Medicaid to the state-only programs.  Maryland
represented that these enrollees were in fact removed from MAP entirely
and should not be counted as non-federal enrollees in the CAP formula.
3/

As a result of Maryland's administrative failure, thousands of
ineligible enrollees participated in MAP and were treated as Medicaid
eligible.  Their participation generated medical assistance costs and
related administrative costs.  Maryland presented no evidence to show
that administrative costs associated with these ineligibles were lower
than the administrative costs incurred for other enrollees in its
caseload.  Accordingly, the fact that Maryland removed these enrollees
retroactively from the MAP rolls does not change the fact that Maryland
incurred administrative costs associated with the medical assistance
provided to these enrollees.  Therefore, the retroactive removal of
these enrollees is irrelevant.

Given the facts of this case, we conclude that Maryland's application of
the CAP formula, treating these recipients as federally eligible,
resulted in a significant inequity to the Medicaid program by allocating
costs to Medicaid that did not benefit that program.

The CAP's description of the formula explains that it is based on
"determining the total MAP payments attributable to Non-Federally
eligible enrollees."  HCFA Ex. 1.  HCFA's application of the formula is
consistent with this description of how the formula operates.  The
enrollees at issue were found by the AFDC Reconciliation Project to have
been ineligible for Medicaid and yet they participated in the MAP
program.  They are non-federally eligible enrollees and appropriately
added to the category of non-federal enrollees in the formula.  Since
the object here is to allocate administrative costs to the Medicaid
program, it is irrelevant that only some of these recipients would have
been eligible for state-only programs had Maryland properly determined
their eligibility.  (Maryland indicated that approximately 10% would
have been eligible for the state-only programs.  Maryland Ex. 4,
Affidavit of John P. Stewart at 2.)  Maryland chose in its approved CAP
to use caseload data in the formula used to allocate administrative
costs.  Underlying Maryland's approved allocation method is the
assumption that it is equitable to allocate administrative costs to
Medicaid on the basis of the proportion of Medicaid recipients to other
recipients in the MAP caseload.  There is a general presumption that
approved allocation methods are valid.  New York State Dept. of Social
Services, DAB No. 1358, at 55 (1992).  Therefore, the burden was on
Maryland to submit evidence that this assumption was not validly applied
to those enrollees retroactively determined ineligible for Medicaid.
Absent evidence that Maryland did not incur administrative costs for
these ineligibles or that these costs were somehow different from other
administrative costs, it was reasonable for the auditors to use the
approved caseload allocation method to allocate associated
administrative costs away from Medicaid.  The auditors' calculation is
not, as Maryland argued, equivalent to a determination that these
administrative costs are necessarily associated with the state-only
programs but rather that these costs are not costs of the Medicaid
program.

The auditors used the formula in the approved CAP to recalculate
allocable administrative costs using corrected data, including the
adjusted count of non-federally eligible enrollees.  Maryland did not
argue that the terms of the CAP precluded the recalculation of
administrative costs using corrected enrollee data.  In DAB No. 1358, at
58 (1992), the Board said that where administrative costs were allocated
based on the caseload count of program eligibles, absent evidence that
the parties agreed that no subsequent adjustment for eligibility
determination errors would be made, it was reasonable to assume such
adjustments were not precluded.

Furthermore, in view of the facts of this case, we find that this
treatment of administrative costs associated with enrollees
retroactively determined ineligible for Medicaid is particularly
appropriate.  Maryland's entitlement to administrative costs in
accordance with its approved CAP is based on section 1903(a) of the Act.
Section 1903(a) authorizes federal participation in administrative costs
which are necessary for the proper and efficient administration of the
state plan.  Because of the high cost of achieving a hundred percent
eligibility accuracy, some level of administrative costs associated with
ineligible enrollees could be considered a necessary cost of
administering a Medicaid program.  However, that is not the situation
presented by this case.  Here Maryland failed to integrate its AFDC and
Medicaid computer systems and failed to institute a reliable method by
which the Medicaid system processed recipients who lost their AFDC
eligibility.  This failure went on for years and caused thousands of
ineligible enrollees to be treated as if they were eligible for
Medicaid.  Therefore, the administrative costs associated with these
ineligibles cannot be considered necessary for the proper and efficient
administration of the state plan and should not be allocated to
Medicaid.


   2.  The disallowance is not inequitable or arbitrary and
   capricious.

Maryland argued that "even if the re-calculation of the administrative
costs were correct," the disallowance is inequitable and arbitrary and
capricious.  Maryland Brief at 8.  It pointed out that the auditors'
recalculation of the number of non-federal enrollees was based on the
work product of the AFDC Reconciliation Project and, by the time HCFA
made its findings, Maryland had corrected the problem.  It also argued
that the Medicaid quality control (QC) system precluded recovery of
these costs.  As discussed below, Maryland's arguments have no merit.

As a general rule, a state must claim costs only in accordance with its
approved CAP.  45 C.F.R. . 95.517.  However, the Board has concluded
that it would not uphold an allocation method which was clearly
inequitable, which had been approved based on incorrect, inconsistent or
incomplete data, or which was prohibited by statute or regulation.  DAB
No. 963, at 6 (1988).  We conclude that none of these factors apply to
this case.

The following facts of this case are undisputed.  This disallowance
resulted from Maryland's failure to integrate, or to compensate for the
lack of integration of, its two major public assistance computer systems
which tracked AFDC/Medicaid recipient eligibility.  Maryland's
administrative failure caused thousands of ineligible enrollees to be
treated as if they were eligible for Medicaid.  Maryland's
administrative failure persisted for years:  the auditors found that
some ineligible enrollees had been treated as eligible since 1984.
Maryland Ex. 2 at 8.  Under these circumstances, it is entirely
equitable for the associated administrative costs to be allocated to
Maryland rather than to Medicaid.

Maryland had control of and the responsibility for administration of its
Medicaid program.  In cases involving other types of Medicaid
disallowances, the Board and reviewing courts have concluded that it is
equitable to place the risk of loss on the party who has the ability to
prevent or minimize that loss.  See Massachusetts Dept. of Public
Welfare, DAB No. 262 (1982); aff'd Massachusetts v. Secretary, 749 F.2d
89 (1984).  That principle is appropriately applied here:  Maryland had
control over its eligibility determination process and automated systems
which recorded those determinations; Maryland was the party best able to
minimize eligibility determination errors; HCFA had no ability to reduce
those errors.  Therefore, it is not inequitable to place the burden of
paying the administrative costs associated with enrollees later
determined ineligible for medical assistance on Maryland.

Further, the fact that Maryland identified the problem and worked to
correct it does not make the disallowance inequitable.  States, as the
administrators of their Medicaid programs, have a responsibility to
review their management of those programs.  We note that the
reconciliation project which Maryland conducted was also in Maryland's
interest because these ineligible Medicaid recipients were draining
state dollars in addition to federal dollars.  For example, DHMH told
its legislature it expected removal of ineligible enrollees from
Medicaid rolls to save over 4.2 million dollars in fiscal year 1990.
Maryland Ex. 1 at 11.

Maryland argued that, because of the Medicaid QC system, HCFA is not
entitled to disallow the erroneous medical assistance payments made on
behalf of these ineligible enrollees or the related administrative
expenses.  It is unclear whether Maryland meant (1) that administrative
costs are part of the QC system and therefore cannot be disallowed
except through that process, or (2) that, since HCFA must use the QC
process to recover medical assistance payments made on behalf of these
ineligible enrollees, it is inequitable for HCFA to disallow these
administrative costs. 4/  In either case, Maryland has misunderstood the
scope and effect of Medicaid QC.

The Medicaid QC system is authorized by section 1903(u) of the Act.
Section 1903(u)(1)(A) provides that  "[n]otwithstanding subsection
(a)(1), if the ratio of a State's erroneous excess payments for medical
assistance . . . exceeds 0.03 . . . for any full fiscal year" the
 Secretary is to impose certain reductions in payments.  (Emphasis
 added.)  Section 1903(a)(1) authorizes Medicaid reimbursement for
 amounts expended by a state for medical assistance.  Section 1905(a)
 defines the term "medical assistance" as the cost of certain types of
 care and services.  Therefore, the QC process reaches only erroneous
 excess payments for medical assistance as defined by section 1903(a)(1)
 and 1905(a).  This disallowance concerns administrative costs to which
 Maryland was entitled by virtue of section 1903(a)(2)-(7).  The QC
 process set forth in section 1903(u) is not applicable to these
 administrative costs. 5/

Maryland did not offer any authority or reasoning in support of its
statement that the QC system made it inequitable for HCFA "to reclaim a
fictitious, ephemeral portion of MAP's administrative costs
theoretically attached to these erroneous payments."  Maryland Brief at
8.  We see no basis for Maryland's position.  First, the QC system is
unrelated to the recovery of administrative costs.  Second, these are
not "fictitious" or "ephemeral" costs:  Maryland incurred them and
claimed them from HCFA.  Third, HCFA has not "theoretically attached"
these administrative costs to the erroneous medical assistance payments
made on behalf of these enrollees.  Rather, HCFA applied Maryland's CAP
formula to determine the allocability of shared administrative costs.
Under that formula, these costs should not be allocated to Medicaid.

Conclusion

For the foregoing reasons, we uphold HCFA's disallowance of $728,396 FFP
claimed by Maryland for the administration of its Medicaid program.

 


       _____________________________ Judith A.
       Ballard

 


       _____________________________ M. Terry
       Johnson

 


       _____________________________ Cecilia Sparks
       Ford Presiding Board Member


1.  The facts stated in this section of the decision are undisputed and
are set out in "Review of Medicaid Administrative Costs Claimed by the
Maryland Department of Health and Mental Hygiene for the Period July 1,
1987 through June 30, 1989," submitted as Maryland Exhibit (Ex.) 1, or
"Review of the Department of Health and Mental Hygiene's Efforts to
Reduce Medicaid Payments for Ineligible Recipients," submitted as
Maryland Ex. 2.

2.  In the record there are indications that Maryland administrators did
not agree with or did not understand some of the figures and
methodologies used by the auditors.  See Maryland Ex. 1, April 8, 1991
letter of Nelson J. Sabatini, and Maryland Ex. 4, Affidavit of John P.
Stewart.  However, except for the issue of transferring ineligible
enrollees to the non-federally eligible category, Maryland abandoned
these concerns on appeal, neither raising them in its briefing nor
presenting alternative figures or methodologies.

3.  Maryland's position before the Board appeared to be different from
the position it took when commenting on the audit results.  In its audit
response, Maryland asserted that "[t]hese individuals were in fact
federally eligible and they are not nor have they been `State only'
recipients."  Maryland Ex. 1, April 8, 1991 letter of Nelson J. Sabatini
at 3.  This would seem to indicate that Maryland believed the ineligible
people should remain in the pool of federally eligible enrollees.
However, in its brief before the Board, the State asserted that "[t]he
persons determined to be ineligible by the AFDC Reconciliation Project
were ineligible for any MAP assistance; they were removed from MAP
rolls."  Maryland Brief at 6 and 7.  This would seem to indicate that
Maryland believed these ineligible people should be removed from the
formula calculation entirely.

4.  HCFA disputed Maryland's representation that the recovery of medical
assistance payments made on behalf of these ineligible people was
governed by the QC process.  HCFA represented that Maryland's
AFDC-linked Medicaid QC review is based on samples drawn from open cases
in the AIMS system.  According to HCFA, since these cases were closed in
AIMS, they would not show up in a Medicaid QC review.  We make no
finding as to the effect of the QC system on recovery of erroneous
medical assistance payments associated with these ineligibles.

5.  We note that Maryland did not respond to HCFA's extensive discussion
of the QC process and why it is unrelated to the disallowance of
administrative costs.  Specifically, Maryland did not dispute HCFA's
representation that HCFA calculates Maryland's QC disallowances solely
on the basis of its medical assistance