GAB Decision 541
Docket Nos. 83-144, 84-83
June 7, 1984
Pennsylvania Department of Public Welfare;
Ford, Cecilia Sparks; Settle, Norval Teitz, Alexander
On March 28, 1984, the United States Court of Appeals for the Third
Circuit in Commonwealth of Pennsylvania, Department of Public Welfare v.
Heckler, Nos. 83-3190 and 83-3280, affirmed Board Decisions No. 398 and
No. 424. In summary, those decisions concluded that the costs incurred
by the Philadelphia District Attorney to prosecute fraud in the Aid to
Families with Dependent Children program were unreimbursable as
prosecution costs under Action Transmittal 78-8 and as general
government expenses under OMB Circular A-87.
In the two present appeals, the State has asked that the Board
summarily reverse both Agency determinations and remand the cases to the
Commissioner of Social Security for a plan conformity hearing.
We conclude that it would be unreasonable for the Board to do so, for
the following reasons:
1. The court upheld the Board's substantive determination in
Decisions No. 398 and No. 424. The Board has no authority to contravene
the court's determination, and non reason to reverse our own.
2. The issues in Docket Nos. 83-144 and 84-83 are identical to the
substantive issues upheld by the court in Decisions No. 398 and No.
424.
3. There appears to be no reasonable basis for anticipating any
possibility that the Commissioner of Social Security, through the means
of a plan conformity hearing, would reach any other substantive result
than that already reached by this Board and the court; in any event,
the Board believes it is compelled to follow its own determinations as
affirmed by the court.
4. During the conference call to allow the parties to respond to the
Board's draft decision, the State argued that it needed a plan
conformity hearing to "convince a policymaking official . . . that the
policy is wrong and should be changed." Agency counsel has indicated
that a plan conformity hearing would not assist the State to attain its
stated objective which is to change Agency policy. (2) The State has
pointed to no authority for its view that the plan conformity process is
the appropriate vehicle to argue for a change in Agency policy. In any
event, we would regard the State's legislative and political avenues of
access to the Department's policymaking officials better suited to the
State's purposes. It would seem that efforts by State officials through
contacts with Department officials and through discussions with their
legislators in order to set forth the State's policy views would
ultimately be more productive.
5. Given the court's decision on the substantive issue, the question
of whether the contested determinations should be labelled
"disallowances" or something else is essentially a moot question.
Furthermore, once the court decided the substantive issue, it would be
absurd to require the Department to give the State a conformity hearing
on every quarterly determination that the costs were not reimbursable.
Therefore, this Board would simply be wasting the time and resources
of the United States and the Commonwealth of Pennsylvania if this Board
did anything in these cases other than affirming the substantive
determination in our earlier decisions.
Accordingly, based on the Board's prior decisions, we sustain the
disallowances.
NOVEMBER 14, 1984