Kentucky Cabinet for Human Resources, DAB No. 931 (1988)

DEPARTMENTAL GRANT APPEALS BOARD

Department of Health and Human Services

SUBJECT:  Kentucky Cabinet for Human Resources

Docket Nos. 87-91 87-111 87-147 87-205
Decision  No. 931

DATE:  January 8, 1988

DECISION

The Kentucky Cabinet for Human Resources (State, Kentucky) appealed a
determination by the Office of Child Support Enforcement (Agency) to
disallow costs totaling $57,348 in federal financial participation (FFP)
claimed under the Child Support Enforcement Program, Title IV-D of the
Social Security Act (Act). 1/  The disputed costs represented the costs
of court-appointed guardians ad litem for minor defendants in child
support enforcement cases.

As discussed below, we uphold the Agency's disallowance in full.

Applicable Authority

Each state that participates in the Title IV-D program is required by
section 454(4)(A) of the Act to take action to establish the paternity
of children born out of wedlock.  The Act's implementing regulations are
found at 45 C.F.R. Part 304 (1986).  Specifically, section 304.20
provides, in part:

            (a)  Federal financial participation at the applicable
            matching rate is available for: (1) Necessary expenditures
                 under the State title IV-D plan for the support
                 enforcement services and activities specified in this
                 section ...

The Cost Principles for State and Local Governments, Office of
Management and Budget (OMB) Circular A-87, Attachment A, Section C.1.a,
made applicable here by 45 C.F.R. 74.171, provide that allowable costs
must be --

            necessary and reasonable for proper and efficient
            administration of the grant programs, be allocable thereto
            under these principles, and except as specifically provided
            herein, not be a general expense required to carry out the
            overall responsibilities of state or local . . .
            governments.

Discussion

An integral part of the administration of the State's Title IV-D program
is the filing of civil court actions for adjudication of paternity.

Rule 17.03 of the Kentucky Rules of Civil Procedure provides that the
court shall appoint a guardian ad litem for an infant not otherwise
represented in an action or shall make such other order as it deems
proper for the protection of the infant. 2/  It is uncontested in this
case that reasonable costs of counsel for mothers, regardless of their
age, and their dependent children (on whose behalf litigation is
instituted) are allowable costs of the Title IV-D program.  In some
instances, the putative fathers (the defendants) are below the age of
majority (minors) and, for legal purposes, are considered infants who
require the appointment of guardians ad litem.  In 1985, the Agency
learned that the State's claims for FFP had included the costs of
guardians ad litem who were appointed to represent these minor putative
fathers in child support cases under the Title IV-D program in cases
where the federal government would share in any funds collected. 3/

In disallowing these costs, the Agency concluded that, while
appointments of guardians ad litem are required by state law, guardians
ad litem are neither dependent upon nor confined to the Title IV-D
program.  The Agency maintained that under Kentucky law, guardians ad
litem appointed to represent minor defendants function in all salient
respects as defense attorneys, indistinguishable from appointed defense
counsel in all other types of cases.  The Agency concluded that, since
guardians must be appointed in all cases brought by the State or any
other plaintiff against unmarried infants or persons of unsound mind,
costs incurred as a result of such actions are a general expense of
state government, so that charging them to the Title IV-D program
violated the cost principles found in OMB Circular A-87, Attachment A.
The Agency also argued that it has had a long- standing position that
the cost of providing an "attorney" to represent indigent defendants in
child support actions is not a reasonable and necessary cost of
establishing paternity and enforcing child support obligations.  Agency
brief, p. 4.

The State made several arguments to support its position that it is
entitled to claim FFP for costs of guardians ad litem for minor putative
fathers, the main focus of which centered on the role of the guardian ad
litem in general.  The State argued that in Kentucky, as in other state
and federal actions involving minors, the burden of protecting a minor's
interest is assumed by the court through appointment of a guardian to
inform the minor of legal matters or of the legal consequences of a
certain course of action.  The State maintained that it must appoint
guardians ad litem to defend actions against minors, and that judgments
against those for whom guardians are required may not be obtained until
either a defense is made or a report filed.  However, the State also
argued that the guardian ad litem does not only defend a putative father
but serves a hybrid role, advising one or more parties as well as the
court.  The State argued that, while a guardian ad litem may sue in
behalf of the minor or defend the minor, every step of the court action
is undertaken under the aegis of the court.  State brief, p. 4.  The
State therefore maintained that it should be permitted to charge these
costs to the Title IV-D program.

We conclude that the costs at issue in this case were not necessary and
reasonable for the administration of the Title IV-D program and that
they are properly categorized as general expenses of state government.
Therefore, we find that the State is not entitled to claim FFP for the
costs under the Title IV-D program.

The focus of the State's argument--that the guardian costs are allowable
because the costs are required by law--is misplaced. Whether guardians
ad litem are required by state law has never been an issue and, indeed,
the Agency has not argued that the State has no obligation to provide
the guardians ad litem. Rather, the Agency's position is that the costs
of these guardians are not necessary and reasonable for the Title IV-D
program and, therefore, could not be properly claimed under the program.
That is the Agency's applicable standard, which the State has never
addressed, other than to argue in a conclusory fashion that these costs
are necessary.

FFP is available in "services and activities . . . pursuant to the
approved IV-D State plan which are determined by the Secretary to be
necessary expenditures properly attributable to the child support
enforcement program."  45 C.F.R. 304.20(b) (emphasis added).  As the
State pointed out, FFP is available for the costs of establishing
paternity and establishing and enforcing support obligations.  45 C.F.R.
304.20(b)(2) and (3). In this regard, the specific activities enumerated
in the regulations for which FFP is available do not include costs
associated with guardians ad litem or any analogous defendant- related
activities.  See 45 C.F.R. 304.21.  Moreover, the State pointed to no
Agency policy concerning activities determined necessary for the IV-D
program which would include these costs. Indeed, the Agency referenced a
long-standing policy against the payment of FFP in such costs, which the
State did not dispute. The State argued, in essence, that these costs
ought to be regarded as necessary since the guardians must be provided.
However, there is no authority in this record supporting a conclusion
that all costs somehow connected with IV-D activities must be deemed
necessary expenditures.  See 45 C.F.R. 304.21 and 304.23 which list
other costs not eligible for FFP. 4/  In implementing the IV-D program,
the Secretary may, in his discretion, determine those costs for which
FFP is available. The State has provided no basis here for us to
conclude that the Secretary's exercise of discretion is unreasonable.
We conclude that the Secretary may properly determine that the costs
associated with the obligation of the court to provide guardians to
protect the interests of minor indigent defendants are not sufficiently
connected to the purposes and activities of the federal program to be
necessary expenditures.

Also, a "necessary and reasonable" standard has historically been
applied, through the cost principles, to costs claimed under a variety
of grant programs; grantees have had notice of the standard for
sometime.  See Texas Dept. of Human Resources and Harris County, Texas,
DGAB No. 473 (1983), p. 4 at n. 3.  This standard must be considered in
light of the Secretary's discretion here to determine those costs
necessary for the IV-D program.  In State of Oregon Mass Transit
Assessment, DGAB No. 402, Supplementary Decision (1983), at page 9, the
Board stated:

       [T]he principles at issue here were designed to cover a broad
       range of costs under widely differing grant programs.  The terms
       are specific enough to set common sense limits on what is
       allowable.  It would be virtually impossible to provide detailed
       guidelines as to what is "necessary and reasonable" for every
       aspect of the programs affected.

The State provided no evidence to show how the guardian ad litem costs
at issue here would be necessary and reasonable for the Title IV-D
program or how those costs are related to the operation of the State
plan.

The State argued that guardians ad litem are not defense attorneys, but
rather have a hybrid role which furthers the IV-D activities.  We find,
however, that, although they may provide other services to the court,
their primary purpose is to provide legal defense, an activity for which
FFP is not available. 5/

The Board reached a similar conclusion in Pennsylvania Dept. of Public
Welfare, DGAB No. 398 (1983), which was upheld in court. Pennsylvania v.
Heckler, 730 F. 2d 923 (3rd Cir. 1984).  In Pennsylvania, the Board
found that costs that incidentally benefited a federal program were not
necessarily allowable as "necessary and reasonable" to that federal
program.  In that case, the Pennsylvania Department of Public Welfare
(DPW) had entered into a cooperative agreement with the Philadelphia
District Attorney (D.A.) for the reimbursement of prosecution costs
associated with welfare fraud cases referred to the D.A. by DPW.
Because of Philadelphia's large size and attendant large volume of
criminal cases, welfare fraud cases did not rank high on the scale of
priorities for prosecution in the D.A.'s office. One of DPW's arguments,
pertinent to the issue in this case, was that, absent the agreement,
certain expenses would not have been incurred by the D.A.  According to
DPW, the costs of the agreement were not "required to carry out the
overall responsibilities" of Philadelphia and were, therefore, not
general government expenses.  In disallowing DPW's claim for FFP for
these costs, the Agency argued that, while DPW's argument may be true
that the D.A. absent the agreement would not have incurred certain
expenses, welfare fraud prosecution was still a part of the overall
responsibility of the D.A. and Pennsylvania. A close analogy can be
drawn between the situation in Pennsylvania and the case at issue.
Here, the State is obligated by law to provide guardians for minors in
all cases, just as in Pennsylvania the D.A. was obligated generally to
prosecute welfare fraud cases even absent the cooperative agreement.  In
both cases, the underlying obligations would continue to exist absent
any federal program requirement, and as such are a general expense of
the state or local government.

Conclusion

Based on the foregoing, we uphold the Agency's disallowance of $57,348.

 

 


                            ________________________________ Cecilia
                            Sparks Ford

 

                            ________________________________ Alexander
                            G. Teitz

 

                            ________________________________ Norval D.
                            (John) Settle Presiding Board Member

 


1.     Four separate disallowances are involved in this decision. At the
request of the parties, the Board consolidated these cases for purposes
of briefing and decision because the cases involved the same issue.  The
total amount is $57,348:  $49,531 for expenditures incurred by the State
between July 1978 and December 1986 in Board Docket No. 87-91; $4,018
for the quarter ending March 31, 1987 in Board Docket No. 87-111; $2,570
for the quarter ending June 30, 1987 in Board Docket No. 87-147; and
$1,229 for the quarter ending September 30, 1987 in Board Docket No.
87-205.

2.     The State also argued that its rule on guardians ad litem was the
same as in the federal rules.  See Rule 17(c) of the Federal Rules of
Civil Procedure.  Since the costs involved here are costs in State court
actions, however, the federal rule has no direct relevance.

3.     By telephone conference call on November 13, 1987, both parties
agreed that the disallowances concerned only the costs of guardians ad
litem for minor putative fathers who were defendants in paternity cases.
The costs for guardians ad litem generally are not at issue.

4.     Given the inherent difficulty in identifying every possible cost
a state may claim, those activities actually identified cannot be
regarded as an exhaustive listing. Activities actually enumerated by the
Secretary will then guide a determination as to whether or not FFP is
available.

5.     Indeed, the generally accepted purpose of a guardian ad litem is
to provide legal counsel.  Black's Law Dictionary, 5th ed., 1979, at
page 635, provides that a guardian ad litem is "a special guardian
appointed by the court to prosecute or defend, on behalf of an infant or
incompetent, a suit to which he is a party, and such guardian is
considered an officer of the court to represent the interests of the
infant or incompetent in the litigation."  (emphasis