Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
SUBJECT: Kansas Department of Social and Rehabilitation Services
DATE: July 30, 1992
Docket No. 91-26
Decision No. 1349
DECISION
The Kansas Department of Social and Rehabilitation Services
(Kansas,
State) appealed a disallowance by the Administration for Children
and
Families (ACF) of $6,132,973 in federal financial participation
(FFP)
claimed for the period April 1, 1988 through June 30, 1989. This
amount
reflects the difference between Title IV-E administrative costs
as
calculated under the cost allocation plan (CAP) in effect during
that
period and the costs as calculated using a method based on a
CAP
amendment that was approved by the Division of Cost Allocation
(DCA)
with an effective date of July 1, 1989.
At the request of ACF, the Board bifurcated this case. In stage one,
we
agreed to address the State's argument that the CAP amendment could
be
applied retroactively. For purposes of this part of the proceeding,
the
Board assumed the reliability of Kansas' calculations of the amount
of
its claim. If Kansas prevailed in the first stage, stage two
would
concern the reliability of the State's calculation of its claim for
the
retroactive period, which was based on data obtained during the
first
nine months following approval of its CAP amendment.
As we explain more fully below, we conclude that the methodology
Kansas
used to calculate its claim was not an approved method as required
by
the applicable regulations, and that the State did not show that
the
method should be approved with retroactive effect. We therefore
uphold
the disallowance in full. Consequently, we need not address
Kansas'
calculation of the retroactive claim. .Background
Title IV-E of the Social Security Act (Act) provides for a program
of
federal foster care and adoption assistance for children who
meet
specified eligibility standards. Section 474(a) of the Act
entitles
states with such programs to claim administrative and training
costs.
In the case of a state such as Kansas, whose administrative
personnel
provide services to a variety of state and federal programs in
addition
to the Title IV-E program, a state must claim in accordance with
an
approved cost allocation plan allocating an appropriate share
of
administrative and training costs to each benefitting program. 1/
See
45 C.F.R. . 1356.60(c).
The submission, approval, and amendment of CAPs are governed by 45
C.F.R.
Part 95, Subpart E. A CAP is defined as "a narrative description
of the
procedures that the State agency will use in identifying,
measuring, and
allocating all State agency costs incurred in support of
all programs
administered or supervised by the State agency." 45 C.F.R.
.
95.505. If a state has not submitted a plan or plan amendment during
a
given state fiscal year, the state must submit an annual statement to
DCA
certifying that its approved cost allocation plan is not outdated.
45 C.F.R.
. 95.509(b). Section 95.509(a) provides that a state --
shall promptly amend the cost allocation plan and submit
the
amended plan to the Director, DCA if any of the following
events
occur:
(1) The procedures shown in the existing cost allocation
plan
become outdated because of organizational changes, changes
in
Federal law or regulations, or significant changes in
program
levels, affecting the validity of the approved cost
allocation
procedures.
(2) A material defect is discovered in the cost
allocation
plan by the Director, DCA or the State.
* * *
The effective date of a CAP amendment is covered by 45 C.F.R. .
95.515
--
As a general rule, the effective date of a cost allocation
plan
amendment shall be the first day of the calendar
quarter
following the date of the event that required the amendment
(See
. 95.509). However, the effective date of the amendment may
be
earlier or later under the following conditions:
(a) An earlier date is needed to avoid a significant
inequity
to either the State or the Federal Government.
(b) The information provided by the State which was used
to
approve a previous plan or plan amendment is later found to
be
materially incomplete or inaccurate, or the
previously
approved plan is later found to violate a Federal
statute or
regulation. In either situation, the effective
date of any
required modification to the plan will be the same
as the
effective date of the plan or plan amendment that
contained
the defect.
* * *
A state may appeal the DCA's disapproval of a proposed CAP amendment
by
filing, within 30 days after receipt of that determination, a
request
for reconsideration by the appropriate Regional Director. See
45 C.F.R.
.. 95.513 and 75.5. If the Regional Director's decision is
adverse to
the state, it may appeal to the Board within 30 days of receipt of
that
decision. See 45 C.F.R. .. 75.6(c) and 16.7(a).
If costs are not claimed in accordance with the approved CAP or if
the
state failed to submit an amended CAP as required by . 95.509,
the
improperly claimed costs will be disallowed. 45 C.F.R. .
95.519. If,
as in the case before us, the issue affects the program of
only one
operating division (ACF), that division determines the amount of
the
disallowance. That disallowance is appealable to the Board.
See 45
C.F.R. . 95.519(a)(2) and 45 C.F.R. Part 16, Appendix A, . B(1).
During the period at issue here (April 1, 1988 through June 30,
1989),
Kansas' CAP used a case count system to allocate administrative
costs
associated with the state social workers who operated the foster
care
and other programs. Under this system, if 10 percent of the
total
social worker caseload participated in the Title IV-E program, then
10
percent of the total social worker administrative costs would be
charged
to the IV-E program. Kansas Br. at 10; Bame Affidavit (Aff.)
(State
Exhibit (Ex.) A) at . 4.
ACF regulations, proposed in 1980 and adopted without substantive
change
in 1982, set out the types of activities generating
allowable
administrative costs under Title IV-E. 45 C.F.R. .
1356.60(c). In
1985, ACF issued an interpretation limiting allowability
of certain
pre-placement activities to children ultimately found eligible for
Title
IV-E maintenance payments for adoption assistance. PA-ACYF-85-01
(State
Ex. 2). In 1987, the Board ruled in Missouri Dept. of Human
Services,
DAB No. 844 (1987), that ACF's interpretation was inconsistent with
the
regulations and the Act and that FFP was available for the costs of
case
plan development, preparation for and participation in
judicial
determinations, and referral to services for IV-E eligible foster
care
candidates who were ultimately not placed in foster care homes.
ACF
subsequently revised its interpretation in an issuance dated October
22,
1987 to reflect the Board's decision. ACYF-PA-87-05 (State Ex.
3).
Kansas alleged that this was a policy change which rendered its case
count
methodology inadequate, since cases in which a child received
services short
of placement in a foster home were not counted.
Consequently, the State began
developing a new allocation methodology
with a consultant firm specializing
in the use of random moment study
(RMS) systems. 2/
Kansas implemented a pilot program in 1989 and, on March 24, 1989,
its
consultant wrote a letter to DCA stating, among other things, that
the
State intended to seek a retroactive effective date for claims
filed
subsequent to January 1, 1989, the first day of the pilot
program.
State Ex. 9. DCA wrote back to comment on the RMS proposal and
told the
State that "the key to an approvable effective date is the date the
RMS
becomes operational [predicted by Kansas as July 1, 1989]." State
Ex.
10.
The actual CAP amendment was formally submitted on June 28, 1989.
State
Ex. 11. In that document, Kansas requested an effective date of
July 1,
1989, which was the first day of state-wide implementation for
its
approved new RMS system. On October 6, 1989 DCA approved the
amendment
with that effective date. State Ex. 13.
On June 28 and July 27, 1990, Kansas submitted for the 18-month
period
preceding the approved effective date for its CAP amendment
adjusted
claims based on the first nine months of its state-wide RMS
system. On
February 1, 1991, after some give-and-take between ACF and
Kansas about
the basis for these claims, ACF disallowed them on the grounds
that they
were not based on the CAP in effect for the period and that the
claims
for the first two quarters were also untimely. 3/ State Ex.
1. This
appeal followed.
The State's arguments
Kansas contended that its retroactive claim is authorized by
section
95.909 of the CAP regulations which provides the general rule that
CAP
amendments become effective in the first quarter after the event
that
necessitates the amendment. Kansas maintained that in this case,
ACF's
revocation of its more restrictive administrative costs policy
in
October 1987 was the operative event, so that the State's
amendment
could have been made effective January 1, 1988. Kansas also
argued in
the alternative that, even if ACF's view were correct that the
usual
effective date for a CAP amendment is the first quarter following
its
submission, section 95.515(a) and (b) allow for earlier effective
dates
under certain circumstances. The State contended that those
two
exceptions -- prevention of a significant inequity to the state
and
correction of a previous CAP that was based on materially incomplete
or
inaccurate information -- both apply here. The substantial increase
in
amount of the Title IV-E claim allegedly allocated under the new CAP
was
cited by Kansas as evidence of the significance of the inequity,
and
ACF's previous restrictive administrative costs policy was alleged to
be
the inaccurate information giving rise to the exception.
After ACF successfully moved to focus discussion on what, in ACF's
view,
was the dispositive issue -- whether the CAP amendment could be
applied
retroactively when Kansas had never sought nor had approved
a
retroactive effective date for its CAP amendment -- the State
developed
another set of alternative contentions. Kansas argued that
its notice
to DCA that it intended to seek an earlier effective date, and
DCA's
response that, in its opinion, a prospective date was
appropriate,
constituted an effective request and denial of a retroactive
effective
date. Kansas also argued that, even if it was not deemed to
have made a
request, there was no deadline in the regulations to prevent it
from
making such a request now (although the State conceded that this
would
likely be futile). Kansas additionally argued that ACF was
abusing its
discretion by refusing to grant a retroactive effective date in
this
case, since the State had moved as quickly as possible after the
policy
change to amend its CAP.
ANALYSIS
A CAP is a negotiated agreement between a state and the Department
of
Health and Human Services (HHS) concerning how common costs will
be
shared. Kansas was on notice that it could claim Title IV-E funding
for
administrative costs only if they were identified in and
allocated
according to a CAP approved by DCA. The State nonetheless
attempted to
circumvent the regulatory CAP process by submitting to ACF a
claim based
on an allocation method which has never been submitted to or
approved by
DCA.
Lack of DCA approval of Kansas' proposed allocation method for
the
disallowance period is more than merely a technical requirement that
ACF
may ignore. Department regulations create a rebuttable presumption
that
any allocation method will apply only prospectively; a state has
a
burden of establishing why a method should be approved with
retroactive
effect and should do so in the proper forum. DCA scrutiny
serves many
important purposes, particularly in this case where the State
is
proposing to use an RMS system, which is by its nature prospective,
to
"backcast" results from the period in which time was measured
into
earlier periods.
Finally, we find that there are no substantial bases for finding that
the
regulations provide for implementation of an earlier effective date.
The
State's argument that ACF had a policy change requiring a change in
the
allocation method has no merit. ACF did for a time between 1985
and
1987 misinterpret its own regulations on the types of costs which
could
be allocated to Title IV-E, but an RMS allocation method has always
been
acceptable. Kansas has admitted that it had long known that its
case
count CAP underclaimed; that it experimented with an RMS earlier but
had
decided not to change because it was too complicated; and that
until
personal computers became readily available, the State lacked
the
computer hardware to adopt an RMS. In any event, the mere fact
(assumed
for purposes of this case) that the State's Title IV-E claim
was
increased by application of a different methodology does not
establish
that the case count method resulted in a substantial
inequity. An
underclaim does not by itself establish a significant
inequity.
Moreover, reallocation of the costs to Title IV-E would lessen
the
amount allocated to other programs and may require decreases in
claims
for federal funds for other purposes.
I. The allocation method Kansas seeks to apply has never been
reviewed
by or approved by DCA.
Title IV-E regulations specifically require that a state's CAP
identify
which administrative costs are allocated and claimed under Title
IV-E.
45 C.F.R. . 1356.60(c). The regulations also specifically
make
applicable to Title IV-E the CAP regulations at 45 C.F.R. Part
95,
Subpart E, providing for DCA approval. 45 C.F.R. .
1355.30(c). Thus,
the State had notice that its Title IV-E claims
should be calculated in
accordance with a CAP approved by DCA under the Part
95 process (or
under a pending amendment under review by DCA).
Kansas submitted its CAP amendment in June 1989. This formal
request
for approval of a CAP amendment specified a prospective effective
date
of July 1, 1989; Kansas did not ask for a retroactive effective
date
even though it previously stated an intention to do so. 4/ DCA
approved
the CAP with the State's requested effective date, which was the
first
day that the RMS was implemented on a state-wide basis. DCA's
approval
of a new CAP did not invalidate the previous CAP. In fact, DCA
had
previously notified Kansas that the State's pilot RMS project,
which
preceded statewide RMS implementation, did not constitute an event
that
invalidated its currently approved CAP. Kansas Ex. 10 at 1.
The allocation method used by Kansas to compute the claims at issue
here
is neither the case count method, nor the RMS method approved by DCA
for
prospective use. An RMS system is inherently a system which
measures
time on an ongoing basis during the period for which costs are
being
allocated. Instead of using current observations of social
worker
functions to allocate administrative costs for the claim
period,
however, Kansas' proposed method would use data from a period in
which
such observations were made to estimate claims for earlier
periods.
Lack of DCA approval for this "backcasting" method is more than
merely a
technical requirement which ACF may ignore. The CAP
regulations
emphasize that DCA is the expert body entrusted with approving
CAPs on
behalf of all of the HHS public assistance programs. 45 C.F.R.
.
95.503. DCA scrutiny of a proposed allocation method is important
for
many reasons:
o DCA's overview position prevents duplicate claiming under more
than
one program and ensures consistency between a state's public
assistance
CAP and its other CAPs (for example, its statewide CAP allocating
costs
of central support services such as those provided by a
central
accounting office). The record here indicates that many state
programs
were affected by the switch to RMS (State Ex. 6), and that RMS
results
were to be redistributed across various federal cost
objectives. State
Ex. 8. A change in allocation methodology
distributing more costs to
Title IV-E would necessarily affect allocation of
costs to other
programs. DCA's involvement is essential to ensure that
appropriate
adjustments are made.
o DCA has the responsibility for monitoring state CAPs to
evaluate
whether an allocation method accurately reflects a state's
current
organizational structure and operation so as to allocate
costs
appropriately. Where backcasting is involved, DCA must
determine
whether a state's organization, functions, policies, or caseload
for the
backcast period are substantially the same as for the measurement
period
the state seeks to use. 5/
o The evaluation of allocation methodologies requires the
particular
type of expertise that DCA was designed to supply. For
example, Kansas'
proposed methodology for the backcasting period involved a
four-step
process using an average percentage distribution calculated from
the
first nine months of RMS operation. Bame Aff. (State Ex. A) at .
33.
DCA has the requisite expertise to determine whether a proposed
method
is valid.
The rebuttable presumption in the CAP regulations that any change
in
allocation methods will apply only prospectively better enables DCA
to
fulfill its function. (It also encourages states to
constantly
scrutinize their CAPs to keep them current, as the court observed
in
Colvin v. Sullivan, 939 F.2d 153, 156 (4th Cir. 1991). Thus, a
state
has a burden of establishing why a method should be approved
with
retroactive effect, and should do so in the proper forum. In
the
present case, Kansas never submitted to DCA the method it used
in
preparing its claim; instead, it filed an amendment specifying
a
prospective date for a prospective system. Thus, the State has not
met
its burden or even attempted to meet its burden. 6/ Given that
the
regulations do not provide for Board involvement until both DCA and
the
Regional Director have reviewed the State's contentions (see 45
C.F.R.
.. 95.513 and 75.6), it might be procedurally correct to dismiss
Kansas'
appeal summarily. We will not do so, however, since ultimately
the
issue could return to us on appeal, and we do not wish to add to
the
already long delay in resolving these contentions. (This delay
was
caused by Kansas' failure to follow proper CAP procedures and by
the
parties' agreement to stay this appeal pending the outcome of the
Colvin
appeal.) 7/ Furthermore, Kansas' contentions that these
exceptions
apply are similar to arguments of other states which have been
rejected
by the Board and by a reviewing court.
II. The regulations do not provide for implementation of an
earlier
effective date under the circumstances here.
Kansas contended that its retroactive claim is authorized by
section
95.515 of the CAP regulations, which provides the general rule that
CAP
amendments become effective in the first quarter after the event
that
necessitates the amendment. Kansas maintained that in this case,
ACF's
revocation of its more restrictive administrative costs policy
in
October 1987 was the operative event, so that the State's
amendment
should be made effective January 1, 1988. (As noted above,
Kansas
recognized that its revised claim for the first quarter of 1988
was
submitted too late to be approved.) Kansas also argued in
the
alternative that, even if ACF's view was correct that the
usual
effective date for a CAP amendment is the first quarter following
its
submission, section 95.515(a) and (b) allows for earlier effective
dates
under certain circumstances. The State contended that those
conditions
-- prevention of a significant inequity to the state, and
correction of
a previous CAP that was based on materially incomplete or
inaccurate
information -- both apply here. Kansas pointed to the
substantial
increase in amount of claims allocated under the new CAP as
a
significant inequity, and asserted that ACF's previous
restrictive
administrative costs policy constituted inaccurate information
within
the meaning of the exception.
We do not agree with Kansas that there was a change in ACF policy
which,
under section 95.515, constituted an event rendering the prior
plan
invalid. The triggering event for the amendment was the change to
an
RMS method, and the case count method was valid under
either
interpretation of ACF's regulations.
DCA clearly told Kansas that in its view the operative event
was
implementation of the new RMS methodology. If Kansas disagreed
with
this interpretation, it should have raised it in an appeal of
the
amendment approval, not now. In any event, we have previously
stated
that a state's realization that it could be claiming more FFP is not
an
event necessitating a CAP amendment. Missouri Dept. of Social
Services,
DAB No. 1021 (1989) (Missouri); Maryland Dept. of Human Resources,
DAB
No. 1020 (1989), aff'd, 939 F.2d 153 (4th Cir. 1991). The states
have
considerable discretion in how they fashion their CAPs. Missouri
at 8.
Kansas acknowledged that it knew that its case count methodology
was
faulty in that it did not account for adult services provided by
its
social workers. Bame Aff. (State Ex. A) . 6. Moreover, as we
discuss
below, Kansas has admitted that there were several additional
factors
that had influenced its decision not to change its CAP. Thus,
we agree
with DCA that the event giving rise to the need for amendment is
Kansas'
discretionary decision to adopt the RMS methodology.
Consequently, if
an earlier date is to be applied it must be due to the
operation of the
exceptions to the general rule.
There is no inequity in holding Kansas to the effective date it
requested
and had approved. As noted above, the CAP regulations stress
that it is
the state's responsibility to keep its CAP current by
requiring: (1)
that all claims be based on a currently effective CAP
(section 95.517); (2)
that each state review its CAP and make annual
assurances that it is not
outdated (section 95.509); (3) that states
propose changes promptly when they
are needed (section 95.509); (4) that
changes are generally implemented
prospectively (section 95.515) (which
provides an incentive to make needed
changes promptly, according to the
Colvin court, 939 F.2d 153, 156).
These provisions imposed a duty on
Kansas to make its effective date
contentions known promptly. Kansas
never properly submitted the issue
to DCA, however, because it knew DCA
was not favorably disposed to its
position. Kansas' attempt to
circumvent the regulations by filing a
claim with ACF that it knew was
not based on an approved CAP certainly does
not enhance Kansas'
equitable position. To condone this attempt by
retroactively approving
the State's method would undercut the Department's
CAP approval process
and increase the possiblity that costs would be
allocated inconsistently
for different programs.
More importantly, the mere fact (assumed for purposes of this case)
that
the State's claim for the disallowance period was roughly $6
million
less than the amount which Kansas could have claimed does not
establish
that the case count method resulted in a substantial
inequity. We have
previously discussed the application of section
95.515(a) where a state
claimed, as Kansas does, that a substantial increase
in costs allocated
under a revised CAP indicates that the State will suffer a
significant
iniquity if an earlier effective date is not approved. In
Missouri, we
stated:
Under such an interpretation, the exceptions to the general
rule
of section 95.515 would engulf the rule itself,
since
practically every change in methodology would cause some
change
in the amount of costs allocated to particular programs
and
would affect the amount of FFP the State received.
Moreover,
since the State's existing methodology, just as its
proposed
methodology, is a permissible methodology within the statute
and
regulations, we find no basis to conclude that its
continued
application at least until a new methodology has been
proposed
would be an inequity. Aside from noting the possible
failure of
the existing CAP to claim all IV-E administrative and
training
costs incurred by the State, the State has not challenged
the
Agency's assertion that the original CAP was fully in
accord
with the Act and applicable regulations.
Missouri at 8. Moreover, since reallocation of costs to Title
IV-E
would lessen the amount allocated to other programs and may
require
decreases in claims for federal funds for other programs, the
ultimate
amount of this alleged underclaim is uncertain, and a
significant
inequity may inure to the federal government in the form of
duplicate
claims for the same costs.
Kansas' citation of section 95.515(b) similarly rests on a faulty
premise,
that the previous CAP was based on a materially incomplete or
inaccurate
information. The case count allocation method in effect
during the
period at issue was (at the time the State adopted it) and
continues to be a
valid allocation method for social worker costs under
ACF policy. While
a rough measure, the case count method has the
advantage of being simple and
inexpensive to administer. Many of the
types of administrative costs
allocated by such a method benefit several
programs that may fund them.
Since a state has some option about
whether to allocate these costs to Title
IV-E, the regulations
reasonably provide that the allocation method must be
specified in an
approved CAP. See 45 C.F.R. . 1356.60(c).
While Kansas correctly asserted that ACF misinterpreted its
own
regulations for a time between 1985 and 1987 as to the types of
costs
which could be allocated to Title IV-E, the State did not dispute
ACF's
assertion that the State's case count methodology was in place prior
to
ACF's misadventure. Allowable Title IV-E activities were outlined
in
proposed regulations as early as December 1980, so that Kansas knew
or
should have known what IV-E activities should have been included when
it
submitted its original CAP. The RMS allocation method has always
been
acceptable. In fact, Kansas admitted that it knew as early as 1986
that
its administrative cost claims were far lower than those of Missouri,
a
state which used an RMS methodology. Hafenstein Aff. (State Ex. C) .
9
and attachment 2.
Moreover, although Kansas stated that it was ACF's 1985 policy that
caused
the State to retain its existing CAP, the record discloses that
this was only
one of several factors. The State noted that it had
previously
experimented with a RMS methodology and discarded it as
too
complicated. Hafenstein Aff. (State Ex. C) . 7; State Ex. 5.
Kansas
also noted that it considered Missouri's RMS system too
time-consuming
because it was an all-day time study, similar to one already
used by
Kansas income maintenance workers and considered
problematic.
Hafenstein Aff. (State Ex. C) . 11. Kansas also conceded
that it did
not have adequate computer hardware to attempt this new system
until
about the time it proposed it. Steele Aff. (State Ex. D) .
7;
Hafenstein Aff. (State Ex. C) . 7.
Based on the foregoing, we conclude that Kansas has not shown that
an
earlier date is needed to avoid a significant inequity or
that
information provided by the State which was used to approve the
prior
plan was materially incomplete or inaccurate. Consequently,
Kansas has
not met its burden of establishing why its proposed method used
to
generate its claim should be approved with retroactive
effect.
.CONCLUSION
Kansas' adjusted claims were properly rejected by ACF because they
were
based on a CAP amendment that was not in effect during the
applicable
period. We have examined and rejected all of Kansas'
contentions that a
retroactive effective date is either applicable or ought
to be
applicable. Consequently, we affirm the disallowance.
__________________________
Judith
A.
Ballard
__________________________
Cecilia
Sparks
Ford
__________________________
Norval
D.
(John)
Settle
Presiding
Board
Member
1. The original disallowance was made up of about 97
percent
administrative costs and 3 percent for training costs. Since
the
parties emphasized the administrative costs aspect of the
recalculated
cost claims, we will use that term to describe all of the costs
at issue
in this decision.
2. Under a random moment sample system, randomly selected
social
workers are queried at randomly selected times as to what activity
the
social worker is performing at the moment selected. Such a system
often
has a set of codes for identifying activities allocable to
particular
programs. The costs can be entered into a computer database
and used to
develop percentages for allocating social worker costs
among
benefitting programs.
3. Kansas withdrew its retroactive claim for the quarter
beginning
January 1, 1988 during this appeal proceeding, since it admitted
that it
filed that claim in June 1990, well after the expiration of the
two-year
time limit for such claims. See section 1132(a) of the Act;
Kansas
November 15, 1991 brief (br.) at 35, n. 83. During this appeal,
ACF
dropped its contention that the second quarter 1988 claim was
untimely.
ACF March 23, 1992 br. at 2, n.4. Thus, this appeal involves
only the
issue of whether the CAP amendment may be applied to claims for
the
period April 1, 1988 through June 30, 1989.
4. Kansas asserted that a presubmission letter stating an intention
to
seek a retroactive effective date (State Ex. 9) constituted a
request
for a retroactive date that was denied by DCA in an answering
letter
(State Ex. 10). Since we affirm below DCA's ad hoc determination
that a
retroactive date was not required, we need not discuss this
issue
further.
5. Kansas' failure to present this issue to DCA in a timely
fashion
significantly increased the difficulty of making such an
assessment.
6. Kansas stated that it failed to specify an earlier date in
its
proposed CAP amendment because it did not want to delay
implementation
of the amendment. The regulations would have permitted
Kansas to claim
costs based on its proposed CAP amendment, however, once it
was
submitted (see 45 C.F.R. . 95.517); thus, prospective claims
(i.e.,
claims subsequent to July 1, 1989) would not have been delayed even
if
DCA's approval was delayed by its review of the retroactive
effective
date issue in the proposed amendment. Furthermore, Kansas'
alleged fear
of delay is not a good reason for having failed to raise this
issue once
DCA had approved the CAP amendment. Kansas acknowledged
this
possibility in its brief (November 15, 1991 br. at 31), but stated
that
it had believed it would be pointless to do so, given DCA's
earlier
negative reaction. This belief is an inadequate justification
for
ignoring the CAP regulations -- rather than being a pointless
exercise,
filing such a request would have resolved this dispute through
the
proper channels years ago.
7. Our decision to review Kansas' contentions is based on the
factors
stated above. Having decided that, we need not discuss the
State's
contention that it could submit a request to DCA at this
late