California Department of Health Services, DAB No. 1256 (1991)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Appellate Division

SUBJECT:        California Department  of Health Services

DATE:  June 12, 1991
Docket No. 90-49
Decision No. 1256

DECISION

The California Department of Health Services (State) appealed a
determination by the Health Care Financing Administration (HCFA) to
disallow federal financial participation (FFP) in the amount of $321,168
claimed under Title XIX of the Social Security Act (Medicaid).

The amount disallowed was for county administrative expenditures for the
California Child Health and Disability Prevention Program for the period
July 1, 1984 through June 30, 1987.  HCFA disallowed $246,788 for
workers in early and periodic screening, diagnostic, and treatment
(EPSDT) units based in welfare departments in ten counties.  The amount
disallowed represented the difference between the enhanced FFP rate of
75% applicable to certain costs attributable to skilled professional
medical personnel (SPMP), which the State claimed, and the 50% rate
generally applicable to administrative costs under the Medicaid program.

Additionally, HCFA disallowed $74,380 in federal funding claimed at the
50% rate for local agency departmental overhead costs in five counties.
HCFA determined that the State's claims for those costs were not based
on required indirect cost proposals.

For the reasons explained more fully below, we conclude that the State
was entitled to FFP at the enhanced rate of 75% for its EPSDT worker
costs under the standards that applied during the disallowance period.
While HCFA cited the proper standards, its determination improperly
reflected the requirements of later revised regulations which require
closer scrutiny of each position claimed for enhanced funding.
Accordingly, we reverse the $246,788 disallowance, subject to any
adjustment .necessary to reflect costs other than those authorized by
statute for the enhanced rate. 1/  We also conclude that the State's
claim for indirect costs for one county health department was based on
the required indirect cost proposal; we therefore reverse the
disallowance of $56,350 for that county.  However, we conclude that four
of the counties at issue did not have the required indirect cost
proposals to support claims for local health department overhead costs,
and we therefore uphold $18,030 of the disallowance.


       I.  EPSDT Staff

Background

Section 1903(a) of the Act provides for variable federal matching rates
to states for administrative functions under Medicaid.  The majority of
activities that are necessary for the proper and efficient operation of
a state Medicaid plan, including compensation and training for most of
the agency's staff, are financed at the FFP rate of 50%.

However, section 1903(a)(2) of the Act provides for federal matching at
75% for compensation and training of SPMP and supporting staff.  It also
provides for 75% FFP for SPMP and supporting staff of other public
agencies with which the Medicaid agency contracts for administration of
the medical phases of the Medicaid program.  HCFA's implementing
regulations, 42 C.F.R. Part 432, also provide 75% FFP for skilled
professional medical personnel and supporting staff.  See 42 C.F.R.
432.50(b)(1) (1985).

.In 1967, Congress enacted section 1905(a)(4)(B) of the Act requiring
each state to provide "early and periodic screening and diagnosis" to
persons under the age of 21 and eligible for Medicaid, to ascertain any
physical or mental defects.  The law also required each state Medicaid
plan to provide a means for informing all persons under 21, who were
eligible for Medicaid, of the "availability of early and periodic
screening, diagnostic, and treatment" services.  See section 1902(a)(43)
of the Act.  The implementing regulations on EPSDT are at 42 C.F.R. Part
441, subpart B.

The regulations on SPMP and EPSDT were supplemented by the Medical
Assistance Manual (Manual).  Part 2-41-20 of the Manual was issued in an
Action Transmittal by the Social and Rehabilitation Service (predecessor
agency to HCFA) in July 1975, as SRS-AT-75-50, and contains principles
to be used to assess the validity of claims for SPMP staffing at 75%
matching.  A later Action Transmittal, HCFA-AT-79-101 (October 30,
1979), contained clarification of the circumstances under which 75% FFP
was available for salary and other costs of SPMP and staff of public
agencies providing direct support to the Medicaid agency in the
administration of the EPSDT program. 2/

In California, the EPSDT program is administered under the Child Health
and Disability Prevention (CHDP) Program by the Department of Health
Services (Health Services).  County health departments implement these
programs and are responsible for informing, screening, diagnosing, and
treating children eligible for the EPSDT program.  See 42 C.F.R. 441.56.
Some county health departments had interagency agreements with county
welfare departments to perform outreach activities, and to inform and
refer eligible recipients to the county health departments' EPSDT
programs.  See State's Opening Brief (Br.), pp. 5-6; 42 C.F.R.
441.56(a)(1); Manual, section 2-41-20(G)(3); State's Exs. 3-12.  HCFA
disallowed .reimbursement at the enhanced 75% rate for EPSDT workers who
performed outreach activities in ten county welfare departments, on the
basis that these workers did not meet the criteria for SPMP or direct
support staff.

The State asserted that HCFA was retroactively applying regulations
effective in 1986.  The State asserted that HCFA's policy during the
disallowance period emphasized the function of a position as the
principal basis for determining eligibility for enhanced FFP.  See
Manual, section 2-41-20(B)(1)(a); State's Reply Br., p. 3.

The State argued that:  (1) section 2-41-20(G)(3) of the Manual
recognized that support staff in a public agency could perform outreach
activities; (2) each of the interagency agreements for the ten counties
complied with section 2-41-20(G)(3)(a)(1), which provided requirements
for informing, referring, and monitoring an individual's participation
in the EPSDT program; and (3) the EPSDT workers here qualified for
enhanced funding as supporting staff under section 2-41-20(G)(2).

The State also maintained that HCFA's predecessor federal agency had
contracted with Community Health Foundation (Community) to provide
technical assistance to Health Services for administering the EPSDT
program, and that the State had relied on recommendations by Community
in placing EPSDT workers in county welfare departments.  State's Reply
Br., p. 6.  In support of its position, the State submitted a copy of
Community's "California County EPSDT Functional Design" for qualifying
EPSDT workers for enhanced FFP.  See State's Ex. 30.

Applicable law

It is undisputed that "over the years, there has been diversity in
interpreting and applying the criteria used to determine what types of
personnel and job functions qualify for 75% FFP . . . ."  49 Fed. Reg.
23080 (1984).  There is no question that later revisions of the
regulations substantially narrowed the standards used to evaluate a
position's status as SPMP or supporting staff.  See Oregon Dept. of
Human Resources, DAB No. 729 (1986).  However, HCFA specifically denied
that later revised regulations or policies were used as a basis for the
disallowance here.  Moreover, HCFA acknowledged that the provisions
contained in both SRS-AT-75-50 (1975) and HCFA-AT-79-101 (1979) were
applicable in assessing the State's claims for enhanced funding.  HCFA's
Br., pp. 4-6.

SRS-AT-75-50 (1975) added section 2-41-00 to the Manual and provided
principles to be used to assess the validity of claims for staffing at
75% matching.  It also contained examples of organizational functions
needed to operate Title XIX programs and the expected level of federal
matching.

Section 2-41-20(C)(7)(a) was directed at services under EPSDT and
provided that where individuals performing EPSDT outreach activities
meet the qualifications for SPMP or personnel directly supporting such
SPMP, their salaries could be matched at 75%, if:

 the health-related administrative services in support of EPSDT
 are those that assist in effective utilization of health care
 available under EPSDT or arrange for the availability and
 accessibility of EPSDT services.

Section 2-41-20(B)(2)(c) stated that "support positions claimed at 75
percent matching must directly support skilled professional medical
personnel functions" and that "support staff must be in work assignments
related in an immediate way to the direct completion of the work of such
professional medical personnel."  However, a later action transmittal,
SRS-AT-76-66 (1976), provided additional explanation of circumstances
under which 75% FFP would be available for salary and other costs of
staff providing direct support to SPMP in the administration of Title
XIX programs.  It provided that:

     A supervisory relationship on a day-to-day basis between the
     skilled medical professional and support staff is not necessary and
     not always relevant.  The critical factor determining direct
     support is that the non-professional staff be responsible for
     performing functions directly necessary for the carrying out of the
     professional's duties . . . .

     When support staff/and or skilled professional medical personnel
     for whom the increased match is being claimed are employed by a
     public agency other than the Title XIX agency, an interagency . . .
     agreement would be necessary . . . .  Such an agreement must
     specifically demonstrate that the non-Title XIX staff (whether the
     professional, the support staff or both) are directly assisting the
     skilled .medical professional employed by Title XIX or that both
     the professional and support staff are directly assisting the Title
     XIX agency in the administration of the functions matched under
     Title XIX at the 75 percent rate . . . .

A later action transmittal, HCFA-AT-79-101 (1979), added section
2-41-20(G), entitled "Staff of Other Public Agencies - EPSDT," to the
Manual.  The definition of SPMP contained in section 2-41-20(G) included
physicians, other health practitioners, medical social workers, and
other specialized personnel in the field of medical care, including
medical administrators.

Section 2-41-20(G) also provided that the SPMP must be employed by the
public agency at the state or local level and be identified by either an
interagency or intra-agency 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.

The SPMP also had to perform, supervise, or be ultimately responsible
for health-related administrative services in support of EPSDT, and the
SPMP who supervised or was ultimately responsible for functions
performed by nonprofessional supporting staff had to:  (1) define their
positions and functions to be performed; (2) provide for their training;
and (3) monitor and evaluate their activities.

With respect to supporting staff, section 2-41-20(G) provided that the
staff had to be employed by the public agency at the state or local
level, perform health-related administrative services in support of
EPSDT, and be supervised or under the ultimate responsibility of a SPMP
employed either by the public agency or the Title XIX agency.  The
support staff also had to be identified by interagency or intra-agency
agreement to provide:  (1) direct assistance to the SPMP employed in the
public agency; or (2) direct assistance to the SPMP employed in the
Title XIX agency, in which case no SPMP was required in the public
agency.

Section 2-41-20(G) also provided that the SPMP and supporting staff had
to perform or supervise health- related administrative services in
support of EPSDT, but that the specific services could be determined by
each State based on its administrative structure, capacity for program
operation, and available resources.

Outreach activities were specifically included as health-related
administrative services and defined as:

     Actions taken by a public agency at the State or local level to
     assure that families are informed about the EPSDT program, are
     helped to understand its importance, and are encouraged and
     assisted to seek EPSDT services from available health care.

Manual, section 2-41-20(G)(3)(a).


EPSDT Functional Design

The "California County EPSDT Functional Design" (design) was a 42-page
document which included outlines and flow charts, tracked the Manual
provisions, and explained how the State's EPSDT program should be
structured in order to comply with applicable regulatory and Manual
provisions for enhanced reimbursement.  See State's Ex. 30.

Two concepts were introduced in the design:  that of unit as indicating
"a set of identifiable functions rather than the arrangement of or
location of workers responsible for the functions" and EPSDT workers as
a "general term used to identify those workers in county health and
welfare departments who will be assigned to the activities described in
the functional design that will qualify for the increased federal
matching funds."  State's Ex. 30, pp. 3-4.

Fact sheets for EPSDT unit functions such as informing, screening,
follow-up, outreach, and resource development, with short narratives for
each function, were also contained in the design, along with a flow
diagram narrative with a step-by-step explanation, recommendations for
procedures, and a diagram which illustrated the relationship among all
the activities.


Discussion

The State submitted interagency agreements for each of the ten counties
at issue. 3/  After a review of these agreements, we conclude that they
were substantially the same and consistent with the State's design for
EPSDT services.  Thus, rather than address each agreement specifically,
we will refer to them generally in our discussion below.

First, we find that these agreements met the requirements for
interagency agreements specified in section 2-41-20(G) of the Manual.
The interagency agreements generally provided for:  (1) the mutual
objectives and responsibilities of each party; (2) services to be
provided by each party; (3) methods for early identification of
individuals under 21 in need of medical and remedial services; (4)
procedures to link families requesting EPSDT services to the Title XIX
agency or appropriate referral of service delivery system; and (5)
procedures for recording and reporting requests and documentation to the
SPMP, and exchanges of reports.  See Manual, section
2-41-20(G)(3)(a)(1).

The agreements also provided for EPSDT units within the county welfare
departments to carry out the county health departments' responsibilities
with respect to outreach activities for the EPSDT program.  They
identified and set forth in detail the functions of the EPSDT workers,
and contained flow charts which illustrated:  (1) the relationship
between the health department and welfare departments; (2) lines of
supervision between the health department and EPSDT units; and (3) the
steps taken by EPSDT workers in performing outreach activities.  See
State's Ex. 7.

One of the flow charts in the agreements indicated that the EPSDT units
reported to the CHDP program director, and that this director was
ultimately responsible for EPSDT services under the CHDP program.  See
State's .Ex. 7, pp. 1-3.  Since this director was required to be a
physician under State law (see State's Reply Br., 5), it was undisputed
that he qualified as a SPMP under the applicable regulatory and Manual
provisions.

Moreover, we find that under the State's CHDP program structure, the
EPSDT workers performed functions which directly assisted the CHDP
director's duties and responsibilities with respect to EPSDT services,
and that this director was ultimately responsible for the work performed
by the EPSDT workers.  Therefore, we conclude that the State
demonstrated the necessary connection to SPMP functions as required by
the applicable regulatory and Manual provisions to support enhanced
reimbursement.  Manual, section 2-41-20(G)(1) and (2).

We also conclude that since the Manual provisions defined outreach
activities as health-related administrative services, the State was
reasonable in determining that EPSDT workers who were performing
outreach activities, whether SPMP, supporting paraprofessional, or
clerical personnel, and whose functions and lines of supervision were
detailed in these agreements, met the requirements for enhanced funding
for the portion of the time they performed these activities.  See Manual
section 2-41-20(G)(1) and (2).

Although HCFA admitted that some of the EPSDT workers were social
workers and may have qualified as SPMP, HCFA argued they could not be
considered supporting staff. 4/  HCFA also argued that the State had
failed to show that other EPSDT workers met the criteria for supporting
staff.  See HCFA Br., pp. 17-20.

In this proceeding, HCFA defended its determination using the
regulations and Manual provisions which were properly applied to
evaluate SPMP or support positions during the .disallowance period.
Nevertheless, this does not dispose of the question presented.  HCFA's
arguments reflect a philosophical bias derived from the revised SPMP
regulations which require closer scrutiny of each position claimed at
the enhanced rate.  The regulations and Manual provisions applicable to
this time period do not support HCFA's position.  Consequently, we find
that the State's EPSDT unit workers, who were directly assisting in the
administration of Title XIX in accordance with the interagency
agreements, clearly qualified for enhanced funding based on the
applicable program standards. 5/

In light of the definition of SPMP set forth at 42 C.F.R. 432.2, which
specifically included medical social workers, the evidence here was
adequate to support the conclusion that social workers performing
health-related administrative outreach services were SPMP in their own
right and were, moreover, providing direct assistance to the Title XIX
agency in the administration of health-related services in support of
EPSDT.  See Manual, section 2-41-20(G)(2).

.Moreover, whether an individual qualified as direct support staff under
the revised regulations is irrelevant here.  As discussed above, the
title of a position was not the decisive criterion under the earlier
provisions.  If a unit worker performed EPSDT outreach activities in the
context of an interagency agreement meeting the requirements spelled out
in the Manual, then the State was entitled to claim enhanced funding for
the portion of time spent performing these activities.  The State did,
of course, have to document the percentage of time each worker spent
performing these activities and did so satisfactorily here. 6/

Accordingly, we reverse the disallowance of administrative costs for
county welfare department ESDPT unit workers performing Title XIX
outreach services under interagency agreements, except to the extent the
State's claim included expenditures other than "salary or other
compensation, fringe benefits, travel, per diem, and training" for EPSDT
workers.  See 42 C.F.R. 432.50(a).

       II.  Indirect Cost Proposals

Background

HCFA determined that $74,380 in federal funding was unallowable for
"internal local agency departmental overhead costs in five counties,
because the claims for those costs were based on informal or unapproved
cost allocation plans."  The amount disallowed represented indirect
costs claimed for CHDP programs by the health departments in five
counties:  Fresno, Merced, Madera, El Dorado, and Yuba.  State's Ex. 1,
pp. 1-2, and Ex 2, pp. 13-14. 7/

The disallowance was based on a HCFA review report finding that these
five counties did not have cost allocation plans "either available for
review or approved by a cognizant Federal agency" for the period July 1,
1984 through June 30, 1987 (fiscal years (FYs) 1985 through 1987).  The
reviewers found that while Fresno County utilized a cost allocation
plan, its plan had not been reviewed or approved by a cognizant federal
agency.  In contrast to the findings for Fresno County, the HCFA
reviewers did not find that the other four counties used a cost
allocation plan.  The review report stated that -- (1) Merced County
used an "informal cost allocation methodology"; (2) Madera County
"charged general county overhead costs . . . based on estimates"; (3) El
Dorado County "estimated internal overhead costs at . . . 5.5%"; and (4)
Yuba County distributed indirect costs based on the number of "CHDP
employees to the total health department employees".  State's Ex. 2, pp.
13-14.

During the Board proceedings, HCFA conceded that, to support its
indirect cost claim, a local government agency was required only to
develop a cost allocation plan and retain that plan for audit, not to
submit its plan for approval by a cognizant agency.  HCFA's Br., p. 47.
Despite the HCFA reviewers' misapplication of the federal requirements,
the Agency maintained that the disallowance was appropriate on the basis
that "none of the five counties produced such an indirect cost proposal
for review."  HCFA's Br., p. 48.

Indirect Cost Proposal Requirements

The allocability of indirect costs to Medicaid is governed by the cost
principles set forth in Office of Management and Budget (OMB) Circular
A-87, made applicable by 45 C.F.R. 74.171 (1984).  OMB A-87 provides
that a plan for allocation of costs is required to support the
distribution of any joint costs, and that:

     the allocation plan of the grantee department should cover all
     joint costs of the department as well as costs to be allocated
     under plans of other agencies or organizational units which are to
     be included in the costs of federally-sponsored programs . . . .

OMB A-87, Attachment A, section J.2.  Cost allocation plan is defined as
"the documentation identifying, accumulating, and distributing allocable
costs . . . together with the allocation methods used."  OMB A-87,
Attachment A, section B.2.

The procedures for establishing cost allocation plans to support costs
claimed under grants with the federal government are contained in
OASC-10, A Guide for State and Local Government Agencies (1976).
OASC-10 states that costs incurred by a state or local government in
connection with programs sponsored by the federal government are
categorized in two ways:  (1) by organization level, those incurred by
the department performing the grant and those incurred by one or more
central support organizations serving the department; and (2) by type,
direct and indirect.  OASC-10, p. 2.

OASC-10 provides that cost allocation plans are "the means by which
[joint] costs are identified in a logical and systematic manner for
reimbursement under Federal grants and contracts" (page 3).  OASC-10
describes two types of plans.  The central service cost allocation plan
is a state-wide or county-wide plan which identifies and distributes the
costs of services provided by support organizations to the departments
or units performing federal grants.  The second type of plan is termed
an "indirect cost proposal."  An indirect cost proposal distributes to
all work performed by a department both the administrative or joint
costs incurred within that department and the costs of services
allocated to it under the central service cost allocation plan.
OASC-10, pp. 2-3.

OASC-10 explicitly requires that cost allocation plans be prepared
annually (page 3).  It further specifies that a performing department's
indirect costs include both overhead costs originating in that
department as well as allocated central service costs.  Indirect costs
are normally charged by means of a rate that represents the percentage
relationship of indirect costs to a direct cost base such as total
direct cost.  An indirect cost proposal is the computation of a rate
supported by workpapers and other documentation as specified in OASC-10.
A county department that wishes to claim indirect costs for federal
reimbursement may do so only in accordance with its indirect cost
proposal.  There must be a separate proposal for each fiscal year which
must be available as substantiation at the time the claim is made.
While local county departments need not submit indirect cost proposals
for federal approval, they must retain an indirect cost proposal for
federal review.  OASC-10 provides in part that:

     Indirect cost proposals that must be prepared and retained, but
     which do not have to be submitted, are subject to review by the
     Federal Government to determine [among other things] that, (1) the
     distribution of indirect costs is based on a method which is
     reasonably indicative of the amount of services provided to
     Federally supported activities and all other activities of the
     department or unit . . . .

OASC-10, p. 11.

Discussion

The State initially argued that the indirect costs of the five county
health departments had been claimed in accordance with Health Services'
cost allocation plans which had been approved by the State Controller 8/
for fiscal years 1983 through 1987 and which provided for an indirect
cost rate.  Thus, the State argued that it had complied with 45 C.F.R.
95.517(a). 9/

In support of its position, the State submitted cost allocation plans
for each of the five counties.  See State's Exs. 24-28.  However, during
the proceedings it became apparent that the State's submissions were
negotiation agreements for central service cost allocation plans, i.e.,
county-wide cost allocation plans, rather than indirect cost proposals
for the individual health departments. 10/  See Telephone Conference
tape of March 14, 1991.  These plans, although approved by the State
Controller, did not satisfy the requirement that the county health
departments allocate central service costs as well as internal overhead
costs by means of an indirect cost proposal.  See State's Exs.
23(a)-23(c); OASC-10, p. 7; HCFA's Ex. 2.

.The State asserted that approval of the central service plans was
approval of the county health departments' indirect costs under 45
C.F.R. 74.177(a).  The State also submitted documentation which it
asserted constituted indirect cost proposals.  With respect to this
documentation, the State argued that if the Board decides that "the rate
used to calculate internal overhead costs required documentation
different from that for external overhead costs" the Board should
determine the "reasonableness and necessity of the costs," citing 45
C.F.R. 74.177(c) and OMB Circular A-87 [Attachment A, section C.1.a.].
State's Opening Br., p. 17.  The State asserted that we should reverse
the disallowance since the State had approved central service plans to
support the external overhead costs and its methods for claiming
internal costs met the applicable reasonableness and necessity
standards.

At the outset, we note that the regulations at 45 C.F.R. 74.177 apply
not to costs in general, but only to types of costs that in accordance
with the cost principles require specific prior approval for
allowability because of their nature or amount.  As provided for in 45
C.F.R. 74.177(a), approval of a cost allocation plan including such
costs satisfies the requirement for prior approval.  Moreover, 45 C.F.R.
74.177(c) provides that the grantor agency may waive a prior approval
requirement but that such a waiver does not affect other requirements
for allowability such as reasonableness and necessity (i.e., even if a
grantee by means of a waiver is permitted to incur a type of cost
without the prior approval that would otherwise be required, that cost
must still meet other requirements for allowability).

The question here is whether the counties developed and retained
documentation of allocation methods consistent with federal
requirements.  Since we are not concerned with whether specific cost
items were allowable types of costs, we fail to see the relevance of 45
C.F.R. 74.177.  Prior approval of types of costs claimed as indirect by
the county health departments was not an issue and the approved
county-wide plans did not fulfill the requirement for plans to support
the health departments' indirect cost claims.

We now examine the record with regard to whether any of the five
counties met the applicable indirect cost proposal requirements.

        Fresno County

The record shows conclusively that Fresno County prepared and retained
an indirect cost proposal for the FYs in question.  Not only did the
reviewers find that Fresno utilized a cost allocation plan, but the
State also asserted in response to the HCFA report that the State
disagreed with the review findings for Fresno County since it had a plan
based on OASC-10 and OASC-10 required only that such plans be retained
for review. 11/  See State's August 26, 1988 response to the draft
review report, Attachment A to State's Ex. 2.  Moreover, letters from
the Fresno County Department of Health and from the Fresno County
Auditor-Controller/Treasurer (who approved the health department's
proposal within the county) confirm that the County followed the
applicable requirements from OMB A-87 and OASC-10 and had its plans
available for review for the FYs in question.  State's Exs. 34a and 39.
HCFA presented no evidence which directly contravened the statements
made in these letters; it relied only on its arguments concerning the
counties' failure in general to have the required plans.  The record
also contains some contemporaneous documentation concerning the rate
calculations for these years.  State's Ex. 34b.  Accordingly, in light
of the limited finding made by the HCFA reviewers, that Fresno County
was operating under an unapproved plan, we reverse the disallowance for
Fresno County since there was no requirement for approval.  Moreover,
while HCFA briefed issues concerning the implementation of the indirect
cost proposal by Fresno County, the record before us is not adequate
either to raise or to resolve those issues. 12/  The HCFA review report
contained no finding impugning either the adequacy of the County's plan
or its implementation.  Moreover, the HHS Grants Administration Manual
(GAM) provides that:

     Where an audit of a local government agency's indirect cost
     computation results in a disagreement between the agency and the
     auditor, the disagreement will be resolved by the cognizant Federal
     negotiation agency.

GAM 6-100-50 A.5.  There is no indication that there has been a
determination by the cognizant federal agency that the County's indirect
cost claims did not comport with its plan or were otherwise unallowable.
While HCFA is certainly free to further examine Fresno County's claims
for indirect costs and issue an additional determination, there is no
basis on this record to uphold the disallowance of all claimed indirect
costs. 13/

      Merced, Madera, El Dorado, and Yuba Counties

For Merced, Madera, El Dorado, and Yuba counties, the HCFA reviewers
simply described the methods used to calculate claims for indirect
costs.  For these counties, there is no reason based on the record here
to question the reviewers' finding that indirect cost claims were
unallowable because based on informal methods.  The State's
documentation for these four counties consisted not of indirect cost
proposals, but rather, of letters which recited how the indirect cost
rates had been determined.  See State's Exs. 35-38.  The State asserted
only that the disallowance should be reversed because the actual claims
were for reasonable and necessary costs.

The State's documentation consisted of letters dated from November and
December 1988 which were obviously prepared in response to the review
report, not at the time the State allocated these indirect costs.  These
letters included documentation, some of which was contemporaneous, which
explained the counties' methods for calculating indirect costs and/or
gave the calculation.

The counties were required to claim indirect costs based on proposals
which identified, accumulated, and distributed allocable costs in
accordance with a specified allocation method.  See OMB A-87, Attachment
A, section J.2.  As we noted above, although indirect cost proposals may
not have to be approved, they must be prepared, retained, and be
available as of the time a claim is made.  Moreover, they are subject to
review to determine that the distribution of indirect costs is based on
a method which reasonably indicates the amount of services provided to
federally supported activities and all other activities of the
department or unit.  See OASC-10, p. 11.

Since the State failed to produce evidence, either during the HCFA
review process or during these appeal proceedings, that these four
counties had and retained the required indirect cost proposals, the
State has failed to support its claims for federal funding for county
health department overhead costs.  We need not consider, as the State
urged, whether the methods used appeared reasonable notwithstanding the
counties' failure to have indirect cost proposals.  The OASC-10
guidelines expressly condition indirect cost reimbursement on the
existence of a plan which meets certain requirements.  OASC-10, pp. 2-3
and 10-11.  This is not merely a technical requirement which can be
overcome simply with .evidence of the reasonableness or necessity of
certain costs.  Cost allocation plans are required to establish
consistency of treatment of costs and the correctness of claims made for
federal reimbursement.  Accordingly, we uphold the disallowance for
these counties.

Conclusion

For the reasons stated above (1) we reverse the disallowance of $246,788
for county welfare department EPSDT costs, subject to any necessary
adjustment as explained above on pp. 1-2 and 11; (2) we reverse the
disallowance of $56,350 for county health department overhead costs for
Fresno County, noting HCFA's further opportunity for review, as
explained above on p. 17; and (3) we uphold the disallowance of $18,030
for county health department overhead costs for Merced, Madera, El
Dorado, and Yuba Counties.

 


      ___________________________
      Judith A. Ballard

 


      ___________________________
      Norval D. (John) Settle

 


      ___________________________
      Cecilia Sparks Ford
      Presiding Board Member


1.  Although HCFA's review report stated that the State claimed 75% FFP
in county welfare department administrative expenditures that included
"other general administrative costs such as supplies, equipment, travel,
utilities, etc." (State's Exhibit (Ex.) 2, p. 9), this point was not
addressed in the parties' submissions.  Since section 1903(a) of the
Social Security Act (Act) and implementing regulations authorize
enhanced funding only for salary or other compensation, fringe benefits,
travel, per diem, and training costs, an adjustment may be necessary so
that other types of costs would be reimbursed only at the 50% rate.


2.  HCFA subsequently amended its regulations governing the requirements
for enhanced funding for SPMP. The amended regulations were effective
July 1, 1986, and were therefore applicable from July 1, 1986 through
June 30, 1987.  However, the State voluntarily conceded that under the
revised regulations it could not claim enhanced FFP in the compensation
and related costs of its county EPSDT workers.  Thus, the amount in
issue does not include any costs for that period of time.

3.  Although in its brief HCFA argued that the State had not submitted
interagency agreements for all of the time periods, there was nothing in
HCFA's Review Report to suggest that the State did not have agreements
for each of the fiscal years in issue.  Page 11 of the report notes the
State's assertion that "an interagency agreement is in place between
each local health department and welfare department."  HCFA's rebuttal
did not dispute this fact, but instead, reiterated the auditors' doubts
as to the qualifications of the State's personnel with respect to SPMP
criteria.  See Review Report at State's Ex. 2, pp. 11-12.  We therefore
conclude that the State's documentation was sufficient evidence to show
that it had interagency agreements in place during the time periods in
issue.  See Manual, section 2-41-20(G).

4.  Citing Oregon Dept. of Human Resources, DAB No. 729 (1986), HCFA
argued that the State had abandoned its right to claim any of these
positions as SPMP since it argued generally that all EPSDT workers were
supporting staff.  See HCFA Br., p. 19.  HCFA has misconstrued the point
made in DAB No. 729 that a position will qualify either as SPMP or
support dependent upon the actual personnel status of the position.  A
professional position which does not qualify as SPMP is not then
considered for support status as an alternative.  Here, the State is not
precluded from receiving enhanced reimbursement simply by the wording of
its argument.

5.  As pointed out in HCFA's Financial Management Review Guide for
Skilled Medical Personnel, at page 3 (June 1986), several significant
changes were made in the new regulations.  The definition of SPMP was:
(1) clarified to specify that such personnel include only professionals
in the field of medical care; and (2) revised to remove most references
to specific job titles.  The definition of "directly supporting staff"
was clarified to indicate that such staff include only secretarial,
stenographic, copying personnel, and file and records clerks that
provide clerical services that are directly necessary for the completion
of the responsibilities and functions of the SPMP.  42 C.F.R. 432.2.
The new regulations also explicitly provided that "directly supporting"
meant that the SPMP must directly supervise the supporting staff and the
performance of the supporting staff's work.  42 C.F.R. 432.50(d)(1)(v).

More importantly here, the Guide noted that "the [revised] regulations
no longer allow any personnel to automatically qualify (e.g., Medicaid
Director, EPSDT staff) as SPMP."  The Guide explained that under the new
regulations "personnel must meet all the applicable criteria."

6.  Here, it appears that quarterly time studies were derived from EPSDT
workers' time sheets.  See State's Exs. 14a-22b.  These time sheets were
then used to develop quarterly time studies and ratios.  HCFA initially
and erroneously determined that the State's claims were based on
estimates and should be disallowed on that basis.  However, HCFA later
advised the Board that it would not pursue this argument on appeal.  See
Telephone conference tape of March 14, 1991.

7.  The State gave the disallowed amounts for each county as:  Fresno --
$56,350.05; Merced -- $5,179.50; Madera -- $5,198.25; El Dorado --
$5,094.14; and Yuba -- $2,558.50.  State's Opening Br., p. 17.

8.  The State Controller was given the authority under a delegation from
the Secretary of Health and Human Services to approve county-wide cost
allocation plans.  See HCFA's Ex. 2.

9.  The regulations at 45 C.F.R. 95.517 provide that a state must claim
FFP for costs associated with a public assistance program only in
accordance with its approved cost allocation plan for such programs.

10.  It is interesting to note that these agreements refer to
departmental indirect cost proposals and state that they should "clearly
identify those costs that have been distributed through Sections I and
II of this agreement . . . ."  See State's Ex. 24, p. 1.

11.  The State in response to the review also made this assertion for
Merced County.  The State did not pursue this point before the Board.
The reviewers had found that Merced County used an "informal cost
allocation methodology" and there is nothing in the record before the
Board to show that Merced in fact had the required indirect cost
proposal to support its claims.

12.  See HCFA's Ex. 3; State's Flanigan declaration submitted with Ex.
34b of Appellant's Supplemental Reply Brief; and HCFA Response to the
Supplemental Reply.  For example, HCFA asserted that while Fresno County
developed provisional rates these rates were never finalized.  HCFA
asserted that Fresno's claims were therefore unallowable estimates.  See
HCFA's Br., p. 52, and HCFA's Response to State's Supplemental Reply, p.
4.  We note that, even if HCFA is correct about the use of provisional
rates, the county's claims are not unallowable estimates.  The
allocation process itself is an estimation of those costs allocable to
certain objectives that has been agreed to because the cost and effort
of determining the actual cost is unwarranted.  While there are various
types of indirect cost rates -- among them predetermined rates whereby a
prior year's indirect cost experience is used to fix a later year's
recovery and provisional rates which are later adjusted to finalize a
particular year's recovery -- claims based on a provisional rate are not
in toto unallowable as estimates even though once finalized the actual
claims may need adjustment either upward or downward.

13.  While the rationale stated in a notice of disallowance need not
state or even anticipate every argument that may be properly made to
support that disallowance, it is appropriate to limit the issues
considered here for Fresno County in light of the limited nature of the
HCFA review.  This is a complex area.  The arguments made by the Agency
concerning the implementation by Fresno of its indirect cost proposal go
beyond the scope of the HCFA review findings and are based on a record
which appears incomplete in light of Fresno County's statement that
further detail was on file concerning the contemporaneous documentation
submitted to Agency in response to the review report.  See State's Ex.