Washington State Department of Social and Health Services, DAB No. 924 (1987)

DEPARTMENTAL GRANT APPEALS BOARD

Department of Health and Human Services

SUBJECT:  Washington State Department of Social and Health Services

Docket No. 87-131
Decision No. 924

DATE:  December 11, 1987

DECISION

The Washington State Department of Social and Health Services (State)
appealed a determination by the Health Care Financing Administration
(HCFA) disallowing $4,259,991 claimed by the State as federal financial
participation (FFP) under Medicaid (Title XIX) of the Social Security
Act (Act).  The claim was for FFP in the cost of administering Medicaid
eligibility determinations during the period October 1, 1983 through
December 31, 1985.

HCFA determined that the State's claim was not properly documented in
accordance with the State's approved cost allocation plan (CAP) in
effect during the period and, in addition, that $351,770 of the amount
claimed was untimely filed. Based on our analysis below, we uphold the
entire disallowance.

Factual Background

The $4,259,991 disallowed by HCFA includes two separate sets of claims.
One set, totalling $4,153,147, involves retroactive cost adjustments
resulting from changes in the State's CAP with respect to allocating
administrative costs among income maintenance programs.  A second set,
totalling $106,844, involves retroactive cost adjustments resulting from
the application of the new CAP methodology to allocate administrative
costs among the social service block grant program (Title XX of the
Act), the Aid to Families with Dependent Children program (Title IV-A of
the Act), and the Medicaid program.  The $106,844 is the amount of
adjusted costs attributable to Medicaid.

1.  The $4,153,147 set of claims

The Food Stamp Act of 1977 required the U.S. Department of Agriculture
(USDA) to begin paying the costs of determining eligibility for food
stamps which had previously been paid by the Aid to Families with
Dependent Children (AFDC) program.  An Action Transmittal of the Office
of Family Assistance (OFA) required states to amend their CAPs effective
October 1, 1983, to differentiate between the costs of food stamp and
AFDC eligibility determinations. 1/  SSA-AT-83-14; HCFA Brief,
Attachment B.  There was no reference in the Action Transmittal to
allocating costs of determining Medicaid eligibility. However, when the
State first amended its CAP, it changed a form used to report income
maintenance worker contacts with Medicaid recipients, in addition to
persons assisted by the other programs.  Appeal File (AF) Exhibit (Ex.)
3.  During the period from 1983-1985 the State was paid $39,351,412 FFP
for Medicaid administrative costs calculated using the allocation
methodology in the State's Octobr 1, 1983 approved CAP.

Despite the CAP amendment, costs which should have been charged to the
Food Stamp Program continued to be charged to AFDC after October 1,
1983.  After an unspecified number of unsuccessful attempts to implement
the Action Transmittal, the State finally formulated a new allocation
methodology.  This was submitted to the Regional Director of the
Division of Cost Allocation (DCA) in October 1985.  He approved the
amended CAP with the new methodology, as of the effective date requested
by the State, namely, November 1, 1985.  AF Ex. 7.

Although there was no mention of any retroactive application in the CAP
amendment, OFA and USDA and the State worked out an arrangement to use
the new allocation methodology using a sample base of November 1985
through February 1986.  This was then applied retroactively to
reallocate costs for the months of October 1983 through December 1985.

HCFA refused to participate in the retroactive allocation of costs.  The
State then asked the DCA Director to resolve the differing positions.
He refused to do so for the reasons that an approved CAP was in place
from 1983-1985 and multiple program changes had occurred during that
period.  He recognized that OFA and USDA could agree to use post period
data to apportion costs between themselves, if they thought this would
satisfy the intent of the Action Transmittal.  However, he did not agree
that the retroactive application was a more valid measure of benefit to
any program not affected by that transmittal, i.e., Medicaid.

The State nevertheless continued to file claims for increasing
adjustments to prior quarter claims for Medicaid administrative costs.
The State computed these by applying the revised CAP methodology to post
period data and the percentage thus calculated retroactively to the
period covered by the disallowance.

The $351,770 which HCFA contended was untimely filed was part of this
set of claims.  By statute and regulation (discussed later in this
Decision), there is a two year limit on filing claims. The $351,770 was
in a claim dated December 19, 1986, as a revision to the report for the
quarter ending September 30, 1986. The revised claim was for costs
expended during the fiscal year which ended September 30, 1984.

2.  The $106,844 set of claims

This dispute stems from the alleged discovery by the State in 1985 that
it had been incorrectly attributing to the social service block grant
program administrative costs which it contended should have been charged
to AFDC and Medicaid.  The adjusted claims were based on a revised
allocation methodology implemented January 1, 1986, using data collected
from April 1986 through March 1987.  AF Ex. 14, 15.

Analysis

Although there are slightly different circumstances underlying the two
sets of claims, the issues mostly were similar and the parties made the
same arguments for both sets. 2/  As noted above, the timely claims
issue is present only in the $4,153,147 set.

1.    HCFA did not err in refusing to accept the results of the
      retroactive application of an amended allocation methodology.

The regulations provide that a state must claim FFP associated with a
program only in accordance with its approved CAP.  45 C.F.R. 95.517(a).
If costs under a public assistance program (including Medicaid) are not
claimed in accordance with an approved CAP, the costs improperly claimed
may be disallowed.  45 C.F.R. 95.519.

The State, however, contended that retroactive application of a CAP or
plan amendment is permissible under 45 C.F.R. 95.515(a) and the
decisions of this Board.  The State argued that retroactive application
was necessary here to avoid a significant inequity to the State, USDA,
and OFA.  The State alleged that the Regional Division of Cost
Allocation had approved, and USDA and OFA had agreed to, the retroactive
application of the amended CAP as requested here, and that pursuant to
that agreement USDA had transferred (through the State) to OFA
$13,478,996, which represented adjusted administrative costs for the
food stamp program.  AF Ex. 8, 10, 11, 16.  The State contended that as
a result of HCFA's not paying its share of the adjusted costs, OFA was
seeking to disallow an additional $1,230,220 from the State.  3/  The
$1.2 million represents the balance of reimbursement allegedly due OFA
of its share of the adjusted costs previously improperly attributed to
AFDC under the old CAP.

HCFA contended that the State had not properly documented its amended
claims.  HCFA argued that the use of documentation based on estimates
was expressly prohibited by a HCFA Action Transmittal and the State
Medicaid Manual.  The allocation methodology used by the State in
documenting $11,380,266 of the $39,351,412 previously paid the State by
HCFA, as well as the $4,259,991 at issue here, is a time study sampling
procedure, known as Random Moment Time Study (RMTS).  This consists of
choosing, at random, a series of moments within a specific time frame
and at each of the moments checking the activity of randomly selected
staff.  The number of times the staff person is engaged in the defined
activity of interest is counted, and the count, divided by the number of
moments, is taken as an estimate of the proportion of the time that the
sampled class of employees was engaged in the defined activity during
the specified period.

Inasmuch as it had accepted earlier claims by the State for Medicaid
administrative costs calculated by use of an RMTS methodology, HCFA's
contention that sampling-based estimates were not proper documentation
did not preclude the use of RMTS per se.  4/  Rather, HCFA argued that
the use of RMTS methodology to support the claims at issue here was
flawed because significant changes had taken place in the Medicaid
program and thus the program and activities for the sampled period
(subsequent to November 30, 1985) were not identical to those of the
period represented by the claims (October 1983 - December 1985).  HCFA
contended that in order for the State to appropriately utilize the
results of the current RMTS (effective November 1, 1985) to allocate
costs during the prior period, the conditions in the sampled period must
be similar to the claim period.  In support of its allegation that
significant changes had occurred, HCFA submitted an excerpt from one of
the State's reports showing that medical assistance payments were 37.2
percent greater in the quarter ended December 1985 ($80,608,471) than
they were in the quarter ended December 1983 ($58,749,010) and that
Medicaid administrative expenses were 34.6 percent greater ($4,662,386
v.  $3,464,712).  Affidavit of Jack T. Covello (attached to HCFA's
brief), p. 3.

HCFA argued that the two periods were dissimilar also because the RMTS
methodology itself was different.  On November 1, 1985, the RMTS
methodology changed from identifying the "random moment" by the type of
case worked, the "primary program," or "common activity," to identifying
it instead by the specific activity being worked, the "benefitting
program," or "individual activity."  State Brief, p. 2; AF Ex. 7, 16;
Covello Affidavit, p. 2.  AFDC is the program for which
eligibility/non-eligibility is first determined, and thus the "primary
program" methodology resulted in a disproportionate and incorrect share
of administrative costs being attributed to AFDC.  AF Ex. 16.  The RMTS
methodology which corrected this problem reallocated to USDA most of the
costs previously incorrectly attributed to AFDC, but also resulted in an
increase (14.69 percent v. 9.1 percent) in costs attributed to Medicaid.
Covello Affidavit, p. 4. 5/  There was a 4.5 percent decrease in costs
attributed to the State.  Id.

The record does not show why the allocation of costs changed to increase
the federal share of Medicaid and to decrease the State's share.  As
noted above (n. 5), the parties' explanations were not definitive.  It
is not disputed that there was a substantial shift in the allocation of
administrative costs. There is some indication that another $1.2 million
apparently incorrectly previously attributed to the cost of
administering the AFDC program should perhaps have been attributed to
Medicaid, but neither HCFA nor the Board has been given any basis (other
than the revised RMTS calculations) for the balance of approximately $3
million which apparently would be retained by the State if HCFA paid the
State's claims.  We agree with HCFA that the State was required to prove
that the Medicaid program "has remained so constant that there are no
significant differences between the data" for the 1983-85 period and the
post-November 1985 sampled periods.  Ohio Dept. of Human Services, DGAB
No. 900 (1987), p. 11.  As noted above, the State's own figures indicate
that Medicaid payments increased by over one-third between 1983 and
1985, pointing to the likelihood of significant changes in the data for
the two periods.  The State did not dispel this likelihood, nor did it
show that the program had remained constant.  It was not enough for the
State to attempt to rebut HCFA's examples of significant changes; it was
obliged to affirmatively show why its calculations were acceptable.  It
did not do this and thus failed to properly document its claims.

The State relied, mistakenly we think, on Iowa Dept. of Human Services,
DGAB No. 624 (1985) and a footnote in Pennsylvania Dept. of Public
Welfare, DGAB No. 293 (1982).  In Iowa, we concluded that Iowa could
include allowable central services costs in calculating reimbursement
rates for State institutions participating in the Medicaid program, and
could retroactively apply a CAP methodology, where Iowa was "attempting
to merely fill an alleged gap in the existing CAPs."  Iowa, p. 10.
Unlike here, we were "not faced with a situation in which Iowa was
allocating costs by employing a methodology different from, or
inconsistent with, that specified in a CAP."  Id.  Thus, Iowa does not
support retroactive application of a different RMTS methodology where,
as here, the State has not shown the sample period data base to be
similar to that of the claim period.  In Pennsylvania (p. 5), we upheld
a disallowance where the claimed administrative costs had been
overlooked by Pennsylvania when it submitted its CAP.  Neither our
holding nor the cited footnote supports the State's position here, where
the State claimed and was paid its Medicaid administrative costs under
an approved 1983 CAP. 6/

2.    The cost principle that all federally assisted programs bear their
      fair share of costs has not been shown to be violated by the
      result here.

Both parties argued that their position honored the cost principle that
all federally assisted programs bear their fair share of costs, and that
a decision in favor of the other party gave that party an unmerited
windfall.  The cost principle is set out in Office of Management and
Budget (OMB) Circular A-87, Attachment A, Par. A 1. 46 Fed. Reg. 9548
(January 28, 1981).

The State also relied on a statement from the OMB Circular that the cost
principles "are designed to provide a basis for a uniform approach to
the problem of determining costs and to promote efficiency and better
relations between grantees and the federal government."  46 Fed. Reg.
9548.  The State alleged that USDA and OFA had approved the retroactive
application of the revised RMTS methodology to a post period data base,
and that USDA had paid $13 million in adjusted claims on that basis.
The State contended that HCFA's refusal to approve use of the revised
RMTS methodology in this manner deprived the State, and the other
federal agencies involved, of HCFA's fair share and thus gave HCFA a
windfall to which it was not entitled.

HCFA argued that it had met the "fair share" principle when it
previously reimbursed the State $39,351,412 for the 1983-85 period.
HCFA contended that the State's Medicaid administrative costs were not
increased, nor was the Medicaid program affected, by the discovery that
USDA was not paying its fair share of administrative costs and by the
transfer of funds between USDA and OFA to correct that problem.  Thus,
HCFA concluded, the State is not entitled to "profit" by claiming more
funds from Medicaid.

The State elected to make its CAP revising its RMTS methodology
effective November 1, 1985, not October 1, 1983.  USDA and OFA, the
federal agencies directly involved in the 1983 Action Transmittal which
prompted the revision, agreed to retroactive application of the CAP to
post period data.  HCFA did not.  The State turned to the Regional
Division of Cost Allocation to resolve the State's dispute with HCFA,
but DCA told the State that DCA could not support the State's proposal
to use post period statistical sampling to retroactively amend claims
for FFP, although DCA declared "it may be appropriate" to use post
period data to apportion costs between USDA and AFDC if those agencies
agree.  AF Ex. 11.

The State has not proved that HCFA is not bearing its fair share of
administrative costs where the State did not show that similar
conditions existed in the claim period and the sample periods. The
agreement between USDA and OFA  does not necessarily establish that
conditions were similar, but only that these agencies found that the
result satisfied "the intent of SSA-AT- 83-14."  AF Ex. 11.  Thus, on
this record, the cost principles have not been shown to be violated.
Even if they had been, the State did not demonstrate that we have the
authority to require HCFA to accept amended claims based on a CAP
methodology applied retroactively to post period data.

3.    $351,770 of the amount disallowed was not timely filed.

HCFA argued that $351,770 of the amount claimed should be disallowed
also because it was not timely filed.  The claim in question was for the
fiscal year which ended September 30, 1984. The claim was dated December
19, 1986.

The State contended that it preserved the claim in question from the
two-year limitation by filing claims for the period ending December 31,
1983 starting in the report for the quarter ending December 31, 1985 and
every subsequent quarter (through December 31, 1986).  The State argued
that these claims merely supplemented earlier claims which were filed
within the two year limitation and that those earlier claims were still
unresolved when the supplements were filed.

In the preceding discussion, we concluded that HCFA did not err in
disallowing the State's entire claim at issue.  Thus, we do not need to
reach the timely filing issue, which involves only part of that claim.
We discuss it here because we conclude that the claim for $351,770 was
not timely filed, reinforcing our decision to uphold the disallowance.

Section 1132(a) of the Social Security Act requires claims by states for
expenditures during a calendar quarter under the various public
assistance programs to be filed "within the two year period which begins
on the first day of the calendar quarter immediately following such
calendar quarter," or payment will not be made.  It further provides
that this requirement is not to be applied "so as to deny payment with
respect to any expenditure involving court-ordered retroactive payments
or audit exceptions, or adjustments to prior year costs."  (Emphasis
added).

These statutory provisions are implemented by 45 CFR Part 95. The
regulatory provisions on time limits in general track the statutory
requirements; the exceptions in the statute are restated in 45 C.F.R.
95.19.  The term "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. . . ." 45 C.F.R. 95.4.  The
claims at issue were not adjustments of administrative costs previously
claimed under an interim rate concept; only in retrospect could the
previous claims or RMTS methodology be considered "interim," and that is
not what the definition covers. Thus, the claim at issue ($351,770) does
not come within this statutory exception.

The State filed all of the other "supplemental" claims at issue within
the time limit.  The record indicates that, long before the two-year
cutoff, the timing of the claims at issue was within the sole control of
the State and the State did not supply any reason for delaying until
December of 1986 to file the $351,770 claim.  The exceptions to the
two-year limit were intended 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 State Dept. of Social Services, DGAB No.
521 (1984), p. 8; see also Massachusetts Dept. of Public Welfare, DGAB
No. 796 (1986), p. 7.  The State did not show that the circumstances
here fit within either the design or intent of the exceptions, and thus
the State should be bound by the two-year limit.  If a State could
merely file a claim for any amount within the limitation period and then
"supplement" that claim after the two-year period had run, then the main
purpose of the limitation to provide certainty in budgeting would be
defeated.  Thus, in Massachusetts, we upheld a disallowance where the
State submitted "reprocessed" claims after the filing deadline and
argued that they should be considered as filed when the original claims
were submitted.

Conclusion

For the reasons stated above, we uphold the disallowance in full.

 

                          ________________________________ Cecilia
                          Sparks Ford

                          ________________________________ Norval D.
                          (John) Settle

                          ________________________________ Alexander G.
                          Teitz Presiding Board Member

 

1.     OFA administers the AFDC program.

2.     The record does not show whether the CAP methodology used to
calculate the claims totalling $106,844 was the same as the revised CAP
methodology which was the basis for the claims totalling $4,153,147.
The parties treated the two methodologies as one in their arguments.

3.     OFA requested that DCA commence such a disallowance action, but
our record does not indicate that DCA has yet acted on OFA's request.
The Board's docket does not reflect an appeal filed from such a
disallowance.

4.     HCFA attached to its brief the affidavit of one of its auditors,
who characterized the RMTS in use prior to November 1, 1985 as an
"approved statistical tool" which had been used to document and
calculate administrative costs.  Affidavit of Jack T. Covello, p. 4.
The disallowance letter also acknowledged the use of RMTS to allocate
Medicaid administrative costs.

5.     The parties' attempts to explain these differences were largely
inconclusive.  The HCFA auditor alleged that the increase in Medicaid
costs occurred because the revised (post-November 1, 1985) RMTS form
listed 14 primary activities, of which three were Medicaid related,
whereas the prior RMTS form listed 18 primary activities, of which only
one was Medicaid related.  The State indicated in its reply brief that
the revised RMTS form had one medical section listing the three medical
programs which had been set out separately in the prior RMTS form. Thus,
contended the State, the difference is one of format and would not, in
itself, cause an increase in activity attributed to Medicaid.  HCFA also
had alleged that the State had submitted 28 amendments to its CAP in the
process of revising the RMTS "because of the numerous administrative
changes, Medicaid program changes and departmental reorganizations."
HCFA Brief, p. 12.  The State countered by alleging that only three of
the 28 amendments involved Medicaid, and the impact on the RMTS results
was "very limited."  State Reply Brief, p. 1.

6.     The cited footnote (p. 5, n. 3) states:

     Although the cost allocation regulations do not explicitly preclude
     retroactive revision of an approved CAP in cases where a state
     might have amended the CAP but did not, it is possible the
     regulations as a whole would require that result.  In any event,
     the State did not submit a proposed retroactive revision for Agency
     consideration, and this issue is not raised by this appeal. . .