Massachusetts Department of Public Welfare, DAB No. 796 (1986)

DEPARTMENTAL GRANT APPEALS BOARD

Department of Health and Human Services

SUBJECT:  Massachusetts Department of Public Welfare

Docket No. 86-88
Decision No. 796

DATE:  October 6, 1986

DECISION

The Massachusetts Department of Public Welfare (State) appealed a
disallowance by the Health Care Financing Administration (HCFA) of
$1,040,744 in federal financial participation (FFP) claimed under Title
XIX (Medicaid) of the Social Security Act (Act).  HCFA disallowed State
claims filed on August 27, 1985 for the costs of services in State-owned
intermediate care facilities for the mentally retarded (ICFs/MR) for the
quarters ending September 30 and December 31, 1982.  HCFA determined
that the State had failed to comply with the requirements for timely
claims submission.

The issue presented is whether the disallowed claims were either
adjustments to prior year costs or resulted from an audit exception and
thus were excepted from the two-year filing limitation in 45 CFR 95.7.
For the reasons discussed below, we find that these claims were not
within the exceptions.  Accordingly, we sustain the disallowance.

Applicable regulations Section 95.7 of 45 CFR implements section 1132 of
the Act and provides that: 1/

     . . . we will pay a State for a State agency expenditure made after
     September 30, 1979, only if the State files a claim with us for
     that expenditure within 2 years after the calendar quarter in which
     the State agency made the expenditure. . . .

 


1/   45 CFR Part 95, Subpart A, Time Limits for States to File Claims,
was published in 46 Fed. Reg. 3529 (January 15, 1981)..- 2 -

Section 95.19 of 45 CFR provides exceptions to the time limitation in
section 95.7.  The exceptions relevant here are:

     (a) Any claim for an adjustment to prior year costs.

 (b) Any claim resulting from an audit exception.

Factual Background

The State filed Quarterly Statement of Expenditure Reports (QERs) for
the quarters ending September 30, 1982 and December 31, 1982 claiming
FFP for services provided by State-owned ICFs/MR operated by the
Massachusetts Department of Mental Health (DMH).  (The QERs were timely
filed on October 29, 1982 and January 31, 1983, respectively.) On April
26, 1985 DMH submitted to the State reprocessed claims for these two
quarters.  DMH had reconciled the earlier claims with the State's Master
Eligibility File by reprocessing the claims through the State's
computerized vendor payment system.  DMH learned that the State had
previously claimed for some ineligible patients as well as not claimed
for some eligible patients.

On August 27, 1985, in the QER for the quarter ending June 30, 1985, the
State submitted these reprocessed claims to HCFA.  For the quarter
ending September 30, 1982, the reprocessed claim increased FFP by
$826,379 and decreased it by $1,235,004.  For the quarter ended December
31, 1982, the reprocessed claim increased FFP by $214,365 and decreased
it by $1,646,162.

HCFA initially deferred action on the State's claims, noting that DMH's
reconciliation of its ICF/MR claims identified 9,801 patient days not
previously reported with total charges of $1,040,744 FFP.  The deferral
notice requested the State to make available all related documents and
material necessary to determine the allowability of the State's claims.

On April 10, 1986 HCFA disallowed the State's claim of $1,040,744 FFP
based on the two-year time limitation in 45 CFR 95.7.  HCFA rejected the
State's assertion that the claim resulted from an audit exception and
concluded that claims for these expenditures should have been filed by
September 30, 1984 and December 31, 1984, respectively.

Analysis

Section 95.7 of 45 CFR provides that HCFA will pay FFP for an
expenditure only if the State files a claim for that expenditure within
two years after the quarter in which the - 3 -

expenditure was made. 2/ Here the State did not file a claim for 9801
patient days from the quarters ending September 30, 1982 and December
31, 1982 until August 27, 1985.  The State did not argue that its
billing system for ICFs/MR caused it to make the expenditures in
question at some point after the quarters ending September 30 and
December 31, 1982.  The State submitted no rebuttal to the conclusion
reached by HCFA in its disallowance that, under the two-year limitation,
the State was required to file a claim for these patient days by
September 30 and December 31 of 1984, respectively.  In fact, HCFA's
deferral letter cited correspondence from DMH to an official of the
State Medicaid Agency acknowledging that the State had exceeded the two
year limitation but stating that "the Department [DMH] feels justified
in filing this claim based on an audit by HEW . . . ." 3/ HCFA Ex. A.
In effect, the State has conceded that these claims are barred by
section 95.7 unless the State can show that one of the exceptions set
forth in 45 CFR 95.19 applies.

HCFA determined in its disallowance letter that the claims did not
result from an audit exception.  In the Board proceedings, the State
relied on the exception for adjustments to prior year costs and argued
that its claim should be determined by netting the overstated and
understated costs.  We will therefore examine whether either of the two
exceptions relied on by the State applies.

I.  Is the State's claim an adjustment to prior year costs?

The State argued that the claims at issue constitute an adjustment to
previously filed claims, and are, therefore, not barred by the.time
limitation in 45 CFR 95.7.  The State explained that the claims at issue
arose when DMH, in April 1985, reprocessed the previously filed claims
through the

 


2/      "Claim means a request for Federal financial participation in
     the manner and format required by our program regulations and
     instructions or directives issued thereunder." 45 CFR 95.4.

3/      The notice of deferral also stated that the reconciliation data
     for the claims were available in December 1983, but noted that DMH
     had not submitted the reprocessed claims to the State until April
     1985.  The State has not provided any information to rebut this
     finding.  Consequently, the record shows that the State had more
     than ample time to submit the claims in a timely fashion.

       - 4 -

State's computerized vendor payment system in conformity with
recommendations from federal auditors. 4/

Rather than being new claims, the State maintained, the claims were
merely the result of matching the patients from the original claim with
the Master Eligibility File, as was recommended by the federal auditors.
The State cited Maryland Department of Human Resources, Decision No.
483, November 30, 1983, both for the general proposition that an
adjustment to a previous claim is not barred by timely claims
limitations and as support for its argument that FFP should be
calculated by netting its overstated and understated costs.

HCFA responded that the claims at issue were not an adjustment, but were
new claims for ICF/MR patient days not previously reported.  HCFA argued
that the newly added eligible patient days discovered through use of the
State's computerized vendor payment system did not constitute part of
the State's original claim and therefore were not timely filed.

For purposes of the 45 CFR 95.19(a) exception, "adjustment to prior year
costs" is defined as "an adjustment in the amount of a particular cost
item that was previously claimed under an interim rate concept and for
which it is later determined that the cost is greater or less than that
originally claimed." 45 CFR 95.4.  The State's claim was not based on a
change to an interim rate for ICF/MR services.


4/   Between November 1980 and April 1981, the Office of Inspector
General, DHHS, conducted a field audit to review Medicaid payments to
State-owned ICFs/MR for the period July 1, 1978 to December 21, 1980.
Audit Control No. 01-20201, issued March 5, 1982, State Ex. C.  The
audit report found that DMH had claimed reimbursement for services
rendered to patients ineligible for Medicaid because DMH's ICF/MR
billings were not processed through the State's computerized vendor
payment system, which would automatically test to the State's current
Master Eligibility File.  Among the audit report recommendations were
that the State integrate ICF/MR billings into the computerized vendor
payment system in order to prevent future Medicaid payments for
ineligible patients and that the State reprocess its billings for ICF/MR
services from June 1, 1980 through June 30, 1981 to identify ineligible
patients.  The State had advised the auditors that it expected to add
ICF/MR payments to the computerized system during the first quarter of
the 1982 federal fiscal year.  Audit Report, pp. 22-26.  - 5 -

What we are dealing with here, additional patient days, does not fall
within this definition.  The State did not increase the amount
reimbursed for each patient day of service provided and previously
claimed.  The State's claims at issue here are related to its earlier
claims for the same quarters only in that all the claims are for ICF/MR
patient days.  This alone will not qualify the latter claims as
adjustments to prior year costs.  The State has simply claimed costs for
patient days not previously reflected on the State's QERs.  As such,
these claims are not adjustments to prior year costs, but are wholly
independent of previous claims.

Additionally, we find the Maryland case cited by the State not relevant
to the facts of this appeal.  The issues before the Board in Maryland
did not involve the two-year limitation at 45 CFR 95.7 and the
exceptions at 45 CFR 95.19.  Maryland involved a claim for a $2,344 net
credit resulting from an audit finding that claims for co-operative
agreement costs under Title IV-D of the Act contained clerical errors
both understating and overstating costs.  (Title IV-D is entitled Child
Support and Establishment of Paternity.) The Agency found that
Maryland's claim resulted from an audit exception under 45 CFR 95.19(b)
but was nevertheless barred by congressional funding restrictions in
certain fiscal year appropriations statutes.  The Board reversed the
disallowance on grounds that the funding restrictions were not a bar to
payment of the credit since it "was merely an adjustment to the total
amount of FFP allowable for specific cost items for which the State had
previously [timely] claimed FFP." Maryland, p. 3 (emphasis in original).

Here, the State's reprocessed claims decreased its FFP for the two
quarters at issue by $2,881,166, while increasing it by $1,040,744.  The
State argued that HCFA should have reconciled these claims by
subtracting the understated costs from the overstated costs, resulting
in a net decrease of $1,840,422 in the FFP previously claimed.  The
State relied on Maryland as support for this.

We agree with HCFA that the previously unclaimed patient days do not
represent previously understated cost items but rather are separate cost
items.  We regard it as merely fortuitous that the State's earlier,
timely claims for the quarters in question included unallowable costs
which exceeded the amount of the claims at issue here.  There is no
basis in the regulation excepting "adjustments to prior year costs" or
in Maryland to require HCFA to calculate FFP as the State has proposed.
To find that this is proper would in essence require HCFA to pay for
unallowable claims which were timely submitted simply because the State
later discovered, after the time for filing had run, that it had not
claimed for at least as many eligible patient days.  - 6 -

We therefore find that the exception for adjustments to prior year costs
does not apply to the State's claims for patient days not previously
reported.

II.  Is the State's claim the result of an audit exception?

Although the State did not restate this argument in its briefing, the
DMH/State Medicaid Agency correspondence cited in the notice of deferral
took the position that the claim was justified based on a federal audit
and the State's subsequent actions to follow the auditor's
recommendations and reprocess its ICF/MR claims.  The disallowance
decision addressed the State's assertion and concluded that these claims
did not result from an audit exception under 45 CFR 95.19(b).

Since the State initially relied on the audit exception, we will briefly
discuss that exception.  We also find no support for applying this
exception here.  Section 95.4 of 45 CFR defines audit exception as "a
proposed adjustment by the responsible Federal agency to any expenditure
claimed by a State by virtue of an audit." The only audit mentioned in
the record is the audit covering the State's ICF/MR claims for the
period July 1, 1978 to December 31, 1980, years before the claims at
issue arose.  The only relationship that audit has to the claims at
issue was its recommendation that the State's ICF/MR billings be
incorporated into its computerized vendor payment system in order to
identify prior payments to ineligible patients.  The auditors also
recommended in the alternative that the State "manually screen" its
ICF/MR billings to avoid claims for ineligibles.  While the State could
presumably have avoided the late claim submission here had it followed
the auditors' recommendations, we find it unreasonable for the State to
try to stretch those recommendations into an "audit exception" covering
the claims at issue here.

III.  Availability of the exceptions in general.

In New York State Department of Social Services, Decision No. 521, March
6, 1984, the Board considered the exceptions discussed here.  The Board
stated:

     . . . The purpose of this legislation [section 1132 of the Act] was
     not on its face to save federal money by depriving the states of
     FFP in valid claims for expenditures.  The purpose was to prevent
     the states from coming in many years after expenditures were made
     and claiming FFP, or transferring claims for FFP from one program
     to another, without any time limit.  Such delayed claiming made it
     difficult for the Department of Health and Human Services to plan
     its budget; claims - 7 -

     for millions of dollars for expenditures in years long gone by
     could turn up at any time.

     *   *   *

     The exceptions . . . to the time limitations were intended to cover
     only extreme situations.  They were not intended to cover a routine
     situation where a state simply did not get around to getting its
     data together in time to file a claim within the statutory
     requirements.  The exceptions are to take care of those cases where
     it would be patently unfair to a state to outlaw its claim merely
     because of the passage of time.

        New
        York, p.
        8.

The points made by the Board concerning the design of the exceptions "to
prevent manifest injustice" are equally germane here.  New York, p. 9.
This record shows that the systems necessary to accurately and timely
file claims for ICF/MR services were within the sole control of the
State.  There is no apparent reason for delaying until August of 1985 to
file the claims at issue.  It is this type of casual approach to the
submission of claims for FFP that section 1132 and the implementing
regulations were designed to prevent.

Conclusion

For the reasons stated above, we sustain the disallowance of $1,040,744.


 ________________________________ Judith A. Ballard

 ________________________________ Alexander G. Teitz

 ________________________________ Cecilia Sparks Ford Presiding
 Board