DEPARTMENTAL GRANT APPEALS BOARD
Department of Health and Human Services
SUBJECT: Pennsylvania Department of
Public Welfare
Docket Nos. 86-109 and 86-219
Decision No. 834
DATE: February 6, 1987
DECISION
The Pennsylvania Department of Public Welfare (State) appealed
two
disallowances by the Health Care Financing Administration (Agency)
for
claims for federal financial participation (FFP) under Title
XIX
(Medicaid) of the Social Security Act (Act). The disputed claims
were
for certain personnel costs based on the availability of an enhanced
FFP
rate of 75% for compensation and training of skilled
professional
medical personnel (SPMP) and support staff. The Agency
disallowed the
portion of the State's claims which exceeded the 50% rate
generally
applicable to administrative costs for the Medicaid program for
the
periods July 1, 1985 through September 30, 1985 (Docket No. 86-109)
and
October 1, 1985 through March 31, 1986 (Docket No. 86-219) for totals
of
$42,785 and $75,057, respectively. The disallowed claims were for
six
individuals working in various administrative divisions of the
State's
Medicaid Office, and for 27 human service aides working in the
Early
Periodic Screening Diagnostic and Treatment Program (EPSDT). 1/
During the course of the appeals, the Agency agreed that two
positions
were SPMP positions. This reduced the disallowance by $7,328
in Docket
No. 86-109 and $3,664 in Docket No. 86-219.
We have previously emphasized that the State has the burden to
provide
documentation sufficient to show that its claim for 75% FFP for
the
costs of personnel was proper. Illinois Department of Public
Aid,
Decision No. 376, January 27, 1983. In the
present case, the State
has not met its burden and we therefore uphold the
disallowance.
Applicable Law, Regulations, and Guidelines
Section 1903(a) of the Social Security Act provides for payment of:
(2) . . . 75 per centum of so much of
the sums expended . . . (as
found
necessary by the Secretary for the proper and
efficient
administration of the State
plan) as are attributable to
compensation or training of skilled professional
medical
personnel, and staff supporting
such personnel, . . .
* * * *
(7) . . . 50 per centum of the remainder
of the amounts expended
. . . as found
necessary by the Secretary for the proper
and
efficient administration of the
State plan. 2/
Agency implementing regulations, 42 CFR 432.50(b)(1) and
433.15(b)(5),
provide 75% FFP for skilled professional medical personnel
and
supporting staff. Sections 432.50(b)(6) and 433.15(b)(7) implement
the
50% matching provision generally applicable to FFP claims for costs
of
administration.
The term "skilled professional medical personnel" is not defined in
Title
XIX. Agency regulations contain the following definition at 42
CFR
432.2:
"Skilled professional medical personnel"
means physicians,
dentists, and other
health practitioners; nurses; medical
and
psychiatric social workers; medical,
hospital, and public health
administrators, and licensed nursing home administrators;
and
other specialized personnel in the
field of medical care.
The regulations are supplemented by Part 2-41-20 of the Medical
Assistance
Manual (Manual). This Part was issued in an Action
Transmittal by the
Social and Rehabilitation Service (predecessor agency
to HCFA) in July
1975, SRS-AT-75-50. The Manual
contains the
following "principles" which are used to assess claims for 75%
FFP:
B. Principles
1. General
* * * *
a. The function of a
"skilled
professional
medical" position whether at the State or
local
level, is the principal basis for
determining
eligibility for increased Federal matching.
The
title of a position or its organizational
placement
in the Medical Assistance Unit administering
title
XIX will be used as subsidiary evidence to
confirm
that a staff function is eligible for 75
percent
matching.
* * * *
b. Staffing will normally include some employees
engaged
in functions which are neither skilled
professional
medical functions nor supportive of such functions.
Therefore, salaries and related costs of the
total
cadre of personnel involved in the administration
of
the title XIX program are not reimbursable at the
75
percent rate.
* * * *
2. Specific
a. The function, rather than the title, of a position
is
the significant factor. Staff classified as
skilled
professional medical personnel must be in
functions
at a professional level of responsibility in
the
adminstration of the title XIX medical
assistance
program requiring medical subject area expertise.
"Professional" and "medical" functions are defined
as
follows:
Professional -- the function is at a level
which
requires college education or equivalent and
it
relates directly to non- routine aspects of
the
program requiring the exercise of judgment.
Medical -- the function is peculiar to
medical
programs and requires expertise in medical
services
care delivered, studying and evaluating the
economics
of medical care, planning the program's scope,
or
maintaining liaison on the medical aspects of
the
program with providers of service and other
agencies
which provide health care.
As a class, these functions require knowledge
and
skills gained from professional training in a
health
science or allied scientific field. They
involve
overseeing the delivery of medical care and services.
Staff positions in which the primary function is
the
application of administrative practices
and
procedures unrelated to the specialized field
of
medical care management are eligible for 50
percent
matching. For example, a physician in charge of
an
accounting operation would be eligible for
staff
reimbursement only at 50 percent FFP.
* * * *
C. Examples of Organizational Functions
Following are
examples of functions needed to operate
State
title XIX
programs and the expected level of
Federal
matching. . . .
3. Fiscal Section Staff - 50 percent FFP.
Staff prepares
financial statements of expenditures
and
formulates
budget. The operation is non- medically
oriented
and
uses personnel with non- medical titles and occupations.
4. Contracting Section Staff - 50 percent FFP.
Staff
administers bids and contracts with
fiscal
intermediaries and providers. The operation is
non-
medically
oriented and uses personnel with technical
business
experience.
* * * *
The applicable Manual requirements for 75% funding of EPSDT
support
personnel are found in an October 30, 1979 HCFA Action
Transmittal,
HCFA-AT-79-101. Those provisions require that the
following conditions
be met: 3/
1. Skilled Professional Medical Personnel
Skilled medical professionals include:
physicians,
dentists, other health practitioners, nurses,
medical
social workers, health educators and other
specialized
personnel in the field of medical care including
medical
administrators, hospital or public health
administrators,
and licensed nursing home administrators.
a. The skilled medical professional must be an
employee
of the public agency at the State or local level.
b. The skilled medical professional must be
identified
by interagency or intragency agreement to provide:
(1) direct assistance to the skilled
medical
professional employed by the title XIX agency
OR
(2) direct assistance to the title XIX agency in
the
administration of health related services
in
support of EPSDT.
c. The skilled medical professional must
perform,
supervise, or be ultimately responsible
for
health-related administrative services in support
of
EPSDT.
d. The skilled medical professional who supervises or
is
ultimately responsible for functions performed
by
non-professional supporting staff must:
(1) define their positions and functions to
be
performed (2) provide for their training
(3)
monitor and evaluate their activities.
2. Staff Supporting Skilled Professional Medical Personnel
a. The staff must be employed by the public agency
at
the State or local level.
b. the staff must be identified by interagency
or
intra-agency agreement to provide:
(1) direct assistance to the skilled
medical
professional employed in the public agency
OR
(2) direct assistance to the skilled
medical
professional employed in the title XIX
agency,
in which case no skilled medical professional
is
required in the public agency.
c. The staff must perform health-related
administrative
services in support of EPSDT.
d. The staff must be supervised or under the
ultimate
responsibility of a skilled medical
professional,
employed either by the public agency or the title
XIX
agency.
Section 2-41-20(B)(2)(b) of the Manual provides that the official
position
descriptions are the "basic substantiation for a position's
professional
medical status." This section also provides for
consideration of "[j]ob
announcements emphasizing requirements at or
above the college level in
medical care and medical care
administration."
The Disallowance
The Agency has continued to contest 75% FFP status for three positions
in
the Deputy Secretary's (DS) office, one position in the Bureau of
Utilization
Review (BUR), and 27 EPSDT employees. Two positions
on
the DS staff--designated as one administrative assistant II position
and
one administrative officer II position--are claimed by the State
as
support staff positions while the third DS staffer--denominated
an
administrative officer IV slot--is claimed as an SPMP. The BUR
support
position is also called an administrative officer II. The
Agency
contended that all of the claimed support positions are performed at
a
professional level since all of the incumbents are college graduates
and
the positions' functions involve administrative duties dealing
with
personnel matters, departmental budgets, and procurement systems.
Since
these positions are not subprofessional, the Agency argued that
they
cannot be support positions under the regulations. As for the
position
claimed as SPMP, the Agency maintained that the job does not
require
professional medical expertise in the performance of its
functions.
Finally, with respect to the EPSDT positions, the Agency contended
that
none of the employees involved provide direct support to SPMPs
who
administer the program.
The State maintained in its briefs that all of the disputed positions
were
properly claimed for 75% FFP under the principles espoused in
Oregon
Department of Human Resources, Decision No. 729, March 20, 1986,
and
the principles set forth in the applicable sections of the
Medicaid
Manual. In support of its claim for enhanced funding, the
State
furnished job descriptions for the four individuals in the DS and
BUR
offices and argued that the functions of the three alleged
support
positions were similar to those found to qualify for enhanced funding
in
Oregon. The State argued that the employee claimed as SPMP
performed
functions involving highly responsible administrative and analytic
work
necessary to the administration of the Medicaid program. Finally,
the
State contended that the EPSDT workers qualified for enhanced funding
as
support personnel under HCFA Transmittal HCFA-AT-79-101 because they
are
under the ultimate responsibility of an SPMP, the Deputy Secretary
for
Income Maintenance, and provide health-related administrative
services
in support of the EPSDT.
We have examined the materials and arguments submitted by the State
in
support of its claim and have concluded that it has failed to show
that
the enhanced rate of funding was appropriate for any of the
disputed
positions. We discuss first the four specific positions
claimed and
then the general claim for the positions in the EPSDT
division.
Analysis
1. Administrative Support Positions
Two of the alleged support positions were located in the DS's
office.
According to their job descriptions, one acted as the budget
and
contract officer and the other as the personnel officer for the
overall
State Medicaid agency. Both were subject to the supervision of
the
executive assistant to the DS who, as we determine below in section
two,
is not an SPMP. The third contested support position performed
budget,
procurement, personnel, and clerical supervision functions under
the
supervision of the BUR Director, whose status as an SPMP is
apparently
undisputed. The State contended that under the principles of
the Oregon
decision, the presence of a college graduate in any particular
position
does not disqualify that position as a support position, since it is
the
function of any particular position that is dispositive. The
State
argued that the functions performed by the three disputed
positions
paralleled those of the Office Manager and Word Processing
Supervisor
described at page 31 of the Oregon decision.
The Agency maintained that none of these positions are properly claimed
as
support positions because they are performed at a professional level
by
college graduates. In support of its position, the Agency cited 42
CFR
432.2, which provides:
"Supporting
staff" means secretarial, stenographic,
clerical,
and
other subprofessional staff whose activities are
directly
necessary to the carrying out of the functions which are
the
responsibility of skilled professional medical personnel,
as
defined in
this section.
The Agency contended that this section made it clear that only
functions
performed at a subprofessional level are eligible for enhanced
funding
as support for SPMP functions. The Agency maintained that,
although the
Oregon decision does not specifically state that the Office
Manager was
a subprofessional, that position's duties must have been those of
a
subprofessional for the Board to have concluded that it was a
support
position.
We have examined the job descriptions submitted by the State for
these
three positions and conclude that the functions described therein
are
clearly performed at a professional level. The DS
administrative
assistant II has primary responsibility for the overall
preparation of a
budget exceeding $34 millon and for the processing of $18
million worth
of contracts for the State Medicaid office. State Ex.
6. The DS
administrative officer II position acts as the overall
personnel officer
for the entire Medicaid agency, which apparently employs as
many as 575
persons. State Ex. 7. The BUR administrative officer, among
other
duties, handles budget and procurement duties for the division,
prepares
reports and statistics on the Utilization Review Program and
writes
policy memorandums. State Ex. 11. All three of these
positions clearly
function at a professional level, performing complex tasks
requiring the
exercise of judgment, such as oversight of a multimillion
dollar budget
or administration of personnel policies for hundreds of
employees. The
fiscal and contracting functions performed by these
positions are the
types of administrative functions specifically described at
sections
21-41-20(c)(3) and (4) of the Manual as professional and
reimbursable
only at 50 percent. All three positions also are held by
college
graduates which, according to the Manual's definition of
"professional,"
indicates that these are professional, rather than
subprofessional,
jobs.
The State has not offered any argument or evidence to refute the
Agency's
finding that these three alleged support positions are
professional jobs,
although a position which is a professional one that
does not qualify as an
SPMP position clearly cannot qualify as a support
position. Oregon at
28. Instead, the State argued that these positions
were similar to that
of the Office Manager and Word Processing
Supervisor in Oregon. While
review of the position description does not
reveal whether the incumbent of
the Oregon Office Manager slot was a
college graduate, it is clear that the
functions of that position were
those of a subprofessional support
staffer. The Oregon position's
responsibilities were more ministerial
than the challenged positions in
the present case, i.e, the independent
exercise of judgment was not
required to carry out the functions of the
position. In addition, in
the case of the BUR administrative officer,
his duties apparently
include assisting a Clerical Supervisor who seems to be
a closer analog
to the Oregon Office Manager and Processing Supervisor than
he is.
As noted above, the State bears the burden of establishing that
a
particular position is eligible for enhanced funding. It has
failed
here to show that these are subprofessional positions which support
an
SPMP. Consequently, we uphold the disallowance for the amount
claimed
above the standard 50% FFP for administration.
2. SPMP Position in the DS Office
According to the position description supplied by the State,
the
administrative officer IV position functions as the executive
assistant
to the DS, who heads the State Medicaid agency. The Agency
initially
understood the State to be claiming this position as a support
position
for the DS. In its Appeal the State contended that this
position is an
SPMP position because its functions "involve highly
responsible
administrative and analytic work necessary to the functioning of
the
Medicaid program." State appeal brief at 3. The State cited
the old
State Medicaid Manual section 2-41-20(6), which included as
SPMP
functions medical services program development and liaison duties,
in
support of its claim that this position qualifies as an SPMP.
The Agency contended that the administrative officer IV position was
not
an SPMP because, even assuming that the incumbent performs some
medical
services program development, the overall job must require
professional
medical expertise to qualify as SPMP. The Agency stated
there was
nothing in the record to indicate that the incumbent had any
medical
training or experience.
Under the Manual provisions it is the function of a position
that
determines whether 75% matching is proper. Manual sections
2-41-
20(B)(1)(a) and (B)(2)(a). The official position
description,
organizational placement, job announcement, and a listing in a
handbook
of occupational titles under a medical classification are the basis
for
a determination that a position's function is in fact a
skilled
professional medical function. Manual sections 2-41-20(B)(1)(a)
and
(B)(2)(b). Only "professional" positions requiring "medical
subject
area expertise" are matched at the 75% rate. The Manual defines
both
"professional" and "medical." To be "professional" a position must
be
non-routine and require a college education or its
equivalent.
"Medical" functions are "peculiar to medical programs."
Manual section
2-41-20(B)(2)(a). The Manual specifically provides, however,
that not
all administrative personnel will be eligible for 75% matching.
Manual
section
2-41-20(B)(1)(b). The Manual further provides that
these functions as a
class require "professional training in a health
science or allied field."
Manual section 2-41-20(B)(2)(a).
The adjective "medical" does not appear anywhere in the list of
job
functions within this position's job description, which is the
only
document offered by the State in support of its claim that this
position
is an SPMP position. The functions identified by the State
as
specifically qualifying this position for SPMP treatment under
Manual
section 2-41-20(6) were "medical services program development"
and
"liaison." The State evidently contended that the entry
"[P]articipates
in planning and developing policies and standards in
accordance with
state and federal regulations" is the equivalent of "medical
services
program development," and that this job requires "an understanding
of
medical services program development." Reply, p. 2. When read
in the
context of the overall job description, however, which emphasizes
this
position's responsibility for the day-to-day oversight of
the
administrative details of the Medicaid agency, such as
procurement,
personnel, and official correspondence, it appears that the
policies and
standards which are to be developed could easily concern those
types of
matters, not medical ones. In addition, while the manual
specifies
"providing liaison on professional medical matters" as another
SPMP
function, we do not agree with the State's apparent assertion that:
assignments as
liaison between the Deputy Secretary and
other
program
Offices, community groups, agencies, and
elected
officials; . . . [M]aintains liaison with Central and
field
OMA staff
in communicating policy and procedures necessary
in
administrative processing of documents and in
receiving
feedback on problems with the system and proposals for
their
resolution. . .
is a function that is performed by a professional with
medical
expertise. There is nothing in the record to indicate that
the
functions of this position are medical, as defined in the manual.
The
professional functions listed in the Manual as being those of an
SPMP
must be read in the context with the specific criteria that a
position
must require medical expertise. Illinois, p. 8; see also New
York State
Department of Social Services, Decision No. 307 (May 28,
1982). The
State's unsupported statement that the position requires
an
understanding of medical program development is insufficient
to
establish that this position's functions require medical expertise
or
training. Without some indication that a position's
functions
necessitate medical training or expertise, the state is entitled
only to
the general 50% FFP rate for administration. We therefore
uphold the
disallowance with respect to this position.
3. EPSDT Workers
The State alleged in its appeal brief that the EPSDT workers at issue
here
administer the EPSDT program by screening recipients, referring
them to
service providers, and monitoring the services provided. The
State
maintained that these workers qualified for enhanced funding as
supporting
staff under Manual section 2-41- 20(G)(2) as amended. The
State did not
explain how the EPSDT program was administered or where
these workers fit
into its overall administrative agency; it instead
stated that "[I]n this
case the workers are under the ultimate
responsibility of the Deputy
Secretary for Income Maintenance who is a
co-Director of the State's Medicaid
program and hence expressly listed
as eligible for enhanced funding.
SMM 2-41-20(G)(2)(c)." State Appeal
brief, p. 5. Unlike the
instances of the other challenged positions,
the State did not provide job
descriptions for any of the disputed EPSDT
positions.
The Agency contended that the EPSDT workers did not support
medical
professionals involved with the administrative activities of
the
Medicaid program. The Agency argued that, to the extent that
these
workers supported any medical professional, the supported
positions
would be those of professionals providing direct medical services,
which
costs would be claimed as medical assistance payments rather
than
administrative costs. Finally, the Agency dismissed the
State's
argument that these workers qualify as support staff under the
ultimate
responsibility of the Deputy Secretary for Income Maintenance
because
"it could be used to include anyone no matter how far down the chain
of
command." Agency Response, p. 3. According to the Agency, in order
for
these county workers to qualify as support staff, there must be an
SPMP
in each county office.
We find that the State has not established that the EPSDT
workers
qualified for enhanced funding. While the Manual does state
that 75%
FFP is available for individuals performing EPSDT "outreach"
activities,
there is nothing in the record, such as position descriptions or
even a
recitation by the State of the duties of these employees (indeed,
the
State merely repeats the disallowance letter's summary description
of
their duties), to support the State's claim for enhanced funding
for
these positions. The State argued in its reply brief that because
the
activities listed under the category of "staff requirements" at
section
2-41-20(G)(3)(a)(2) are not ones which in its opinion would
ordinarily
qualify a position for support staff status, the Agency could not
have
intended the kind of direct support relationship for an SPMP
normally
needed, notwithstanding the Agency's statement that these staff had
to
directly support an SPMP. The State also argued that the
requirements
of section 2- 41-20(G)(2)(b) that support staff must be
identified by
interagency or intra-agency agreement to provide direct
assistance
either to an SPMP employed in the non-Title XIX agency or to one
within
the Title XIX agency was inapplicable because this section relates
"to
staff employed by other public agencies." Appeal brief at 5.
We do not agree with the State that the requirements of
section
2-41-20(G)(2)(b) are inapplicable here; by their unambiguous terms
they
are directly applicable to a situation such as the present one
where
EPSDT functions are performed by the state Medicaid
Agency.
Consequently, it is significant that the State has not provided a
copy
of the required intra-agency identifying agreement nor identified
any
SPMP in the EPSDT program for whom these 27 workers supply
direct
support. Even more significantly, the State did not address at
any time
the EPSDT sections of the Manual which expressly provide
specific
requirements for the relationship between an SPMP and support staff
in
the EPSDT division. Specifically, the Manual provides that the SPMP
who
supervises or is ultimately responsible for functions performed
by
support staff must: (1) define their positions and functions to
be
performed; (2) provide for their training; and (3) monitor and
evaluate
their activities. Manual section 2-41-20(G)(d). As noted
above, the
State has been extremely uncommunicative about the supervision of
the
disputed EPSDT employees, stating only that they were under
the
"ultimate responsibility" of the Deputy Secretary for
Income
Maintenance. The State has not detailed what the lines of
authority
between these county workers and this Deputy Secretary, who
is
presumably located in the State capital, are. The State's assertion
is
insufficient, given the specificity of the Manual provisions
cited
above, to support its claim for enhanced funding. We therefore
uphold
this portion of the disallowance in full. Conclusion
Based upon the discussion above, we uphold the Agency's disallowances
in
full.
_________________________ Norval D.
(John)
Settle
_________________________ Alexander G. Teitz
_________________________ Cecilia
Sparks
Ford Presiding Board Member
1. Both disallowances were based on a June 18, 1985
report
concerning the State's claims for 75% FFP for these positions during
the
period July 1, 1983 through June 30, 1984. The $496,112
disallowance
for this period was not appealed by the State, apparently due to
State
error. Appeal brief, p. 1.
2. In paragraphs (1), (3), (4), (5) and (6), section
1903(a) sets
the rate of FFP for other types of expenditures for the
Medicaid
program.
3. Although this section is captioned "Staff of Other
Public
Agencies - EPSDT," the memorandum accompanying this action
transmittal
states that it is also applicable to state
Medicaid