GAB Decision 753
May 19, 1986
New York State Department of Social Services;
Docket No.86-44
Ballard, Judith A; Garrett, Donald F. Teitz, Alexander F.
The New York State Department of Social Services (State) appealed the
disallowance by the Health Care Financing Administration (Agency) of
$597,025 in federal financial participation claimed by the State under
the Medicaid program. The amount disallowed was claimed on Quarterly
Statements of Expenditures for the periods October 1, 1984 to June 30,
1985.
The disallowance letter stated that the expenditure reports (QER,
HCFA-64)
included Medical Assistance claims for public providers which
related to
periods which were beyond the two year limit for filing of
the applicable
QER. The disallowance went on to say that these claims
"relate to the
period October 1, 1979 and forward." The letter gave as
the reason for the
disallowance that claims for periods beginning with
fiscal year 1980 and
forward had to be filed within two years after the
calendar quarter in which
the expenditures were made, as required by
section 1132 of the Social
Security Act and implementing regulations at
45 CFR 95.7.
The State in its Notice of Appeal repeated the arguments pertaining to
the
applicability of the relevant filing requirements which it had put
forward in
Board Docket Nos. 83-170 and 83-180, decided in New York
State Department of
Social Services, Decision No. 521, March 6, 1984.
The State admitted that
this appeal does not present any material issues
of fact which distinguish it
from Board Docket Nos. 83-170 and 83-180,
and requested the Board to issue a
summary decision based upon our
holding in Decision No. 521. In its
Notice of Appeal the State
submitted no new argument why Decision No. 521 was
wrong.
The Board, however, raised a question about the disallowance letter
sua
sponte. The letter stated as a conclusion that the claims in
question
"relate to periods which are beyond the two year limit for filing of
the
applicable HCFA-64." The disallowance identified the time period
covered
by the claims only as "the period October 1, 1979 and forward." In
a
telephone conference the Board pointed out that this identification
did
not necessarily limit claims for this period to claims which
were
untimely because they were beyond the two year filing limitation.
(See
Summary of Telephone Conference dated March 28, 1986.)(2)
The Agency then furnished the following breakdown of the claims on the
QER
forms, with the dates of the various expenditures:
(1) The QER filed July 30, 1985 included $95,215 FFP in claims
for
expenditures made in March through June 1983.
(2) The QER filed May 2, 1985 included $46,200 FFP in claims
for
expenditures made in January through March 1983.
(3) The QER filed February 28, 1985 included $455,610 FFP in claims
for
expenditures made in September through December 1982.
The Agency included in its submission the chart below, giving for
each
month in which expenditures were made, what it considered the
last
possible day for timely filing, and the dates the claims were
actually
filed.
Date Expenditures Last
Possible Date Actually Made
Date
for Claiming Claimed June 1983 June
30, 1985
July
30, 1985 May 1983 June 30,
1985 July 30, 1985
April
1983 June 30,
1985 July 30, 1985 March
1983 March
31,
1985 July 30, 1985 and
May 2, 1985 Feb. 1983 March
31,
1985 May 2,
1985 Jan. 1983 March 31, 1985
May
2, 1985 Dec. 1982 Dec. 31,
1984 Feb. 28,
1985
Nov. 1982 Dec. 31,
1984 Feb. 28, 1985 Oct.
1982
Dec. 31,
1984 Feb. 28, 1985 Sept.
1982 Sept. 30, 1984
Feb. 28, 1985
% The Board then informed the State that on its face the listing
furnished
by the Agency indicated that all the claims were filed more
than two years
after the calendar quarter in which the various
expenditures were made, and
were therefore untimely. The State was given
the opportunity "to question or
comment on this submission or the
accuracy of the facts therein stated." (See
Board letter to New York's
counsel, April 8, 1986.)
The Timely Filing Period
The State's reply did not question either the form of the
Agency's
submission or the accuracy of the listing of the dates of
the
expenditures or the dates of claiming. The State did object to
the
Agency's listing of the last possible dates for filing, saying
they(3)
were "short by twenty-four hours." (Letter, New York's counsel,
to
Board, April 18, 1986.)
This argument was based on the State's interpretation of the
statutory
language that claims must be filed "within the two-year period
which
begins on the first day of the calendar quarter immediately
following"
the calendar quarter in which the expenditure was made. For
example, in
the Agency chart where the expenditure was made in June 1983,
the
State's position was that the last day for filing should be July 1,
1985
and not June 30, 1985. *
We find it unnecessary in any event to reach the State's argument,
since
in none of the instances before us was the claim filed within one day
of
the two-year period provided for by the statute. In fact, the
closest
the State came to the two years permitted for filing was 30
days,
according to the Agency's interpretation of the statute. At best,
then,
the State's interpretation would make that claim only 29 days late.
Substantial Compliance
The State also argued that it substantially complied with section 1132
of
the Social Security Act, since the claims were actually submitted "no
more
than a few weeks beyond the statutory period." (April 18, 1986
letter).
This is not accurate, since an examination of the chart above
shows that
(even allowing the 24 hours claimed by the State) the claims
were filed
between 29 and 150 days late.
However, even if they were only a "few weeks" late, there is no basis
for
allowing "substantial compliance" with the statutory limitation
involved
here. A claim is either filed timely, or it is late, even if
it is only
one day late. Even if one were to speculate that a
"substantial
compliance" approach need not be(4) incompatible with the
purpose of the
statute to permit prompt fiscal planning of the budget,
that could not change
the clear language of the statute, that payment
shall not be made "if claim
therefor is not made within such two-year
period."
CONCLUSION
We find no merit in the arguments made by the State in addition to
the
repetition of its arguments in Docket Nos. 83-170 and 83-180.
We
conclude that the claims here are barred by statutory and
regulatory
filing requirements and sustain the disallowance of $597,025,
based on
Decision No. 521, which we incorporate herein, and our analysis
above of
the State's additional arguments. * The State's position was
that if
the expenditure was made in June 1983, then the first date of
the
calendar quarter subsequent to the quarter in which the expenditure
was
made was July 1, 1983. That is correct, but it does not
follow
necessarily that the last day for filing is two years later, or July
1,
1985. The statute says the claim must be filed "within the two
year
period" which begins on July 1, 1983. It is certainly a
reasonable
interpretation of the statute that the two year period which
begins on
July 1, 1983 ends on June 30, 1985, not on July 1, 1985.
MARCH 28, 1987