Oklahoma Department of Human Services, DAB No. 809 (1986)

DEPARTMENTAL GRANT APPEALS BOARD

Department of Health and Human Services

SUBJECT: Oklahoma Department of Human Services

Docket No. 86-100
Decision No. 809

DATE: November 18, 1986

DECISION

The Oklahoma Department of Human Services (State) appealed a
determination by the Office of Family Assistance (Agency) disallowing
$67,495 in federal financial participation (FFP) claimed by the State
under Title IV-A of the Social Security Act (Act) on its Quarterly
Statement of Expenditures filed August 2, 1983, for expenditures made in
its Aid to Families with Dependent Children (AFDC) program for the
period October 1, 1980 through June 30, 1981. The Agency disallowed the
costs on the basis that the claim was filed later than the two-year time
limit provided in federal statute and regulations. The State maintained
that the two-year time limit was not applicable because its claim fell
within the statutory exception to that time limit for claims resulting
from an audit exception or as an adjustment to prior year costs.

Based on our analysis below, we reverse the disallowance on the ground
that the State's claim did result from an audit exception, and is
therefore not subject to the two-year claiming deadline.

Factual Background

The Health Care Financing Administration's (HCFA) Division of Financial
Operations performed a review of the Administrative and Training (A&T)
expenditures claimed at the 75 percent FFP rate for Skilled Professional
Medical Personnel (SPMP) under Title XlX of the Act. 1/ State's Appeal
File, Exhibit J. The State conceded that claims included for certain
consultant services were erroneously charged at 75 percent. The review
also resulted in a determination that the State was not allocating
certain administrative expenditures in accordance with the State's Cost
Allocation Plan (CAP).

1/ Expenditures qualifying for the SPMP rate receive FFP at 75
percent; administrative costs generally, under both Medicaid and AFDC,
are entitled to FFP at only the 50 percent rate.


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The review involved, among other things, an examination of the State's
financial records which traced the allocations of the costs or SPMP to
the various programs under which they had been claimed. One program was
the Early Preventive, Screening, Diagnostic and Treatment (EPSDT)
program under Title XIX. As a result of the review of SPMP costs
charged to the EPSDT program, HCFA also challenged the allocation of
certain administrative costs charged to the Division of Services to
Adults and Families (DSAF), a portion of whose costs were passed on to
EPSDT. State's Appeal File, Exhibit J.

Specifically, HCFA challenged two of the three payroll locations
included in the calculation of DSAF administrative costs. Before the
review, three payroll locations were being combined to determine the
total DSAF costs to be allocated to various public assistance programs,
including EPSDT. These were payroll location 62C, which included
salaries and benefits for workers within DSAF; payroll location 77G,
which is not involved in this appeal; and payroll location 33A, which
included salaries and benefits for workers in the Services and
Eligibility Unit (SEU).

The review interpreted the State's approved CAP in effect beginning
March 1982 to permit only payroll location 62C to be included in the
DSAF cost pool. See State's Appeal File, Exhibit R. Further, HCFA also
challenged the combination of payroll locations 77G and 33A with payroll
location 62C from October 1980 through February 1982. 2/

After the State's own review, the State agreed that it was necessary to
remove payroll locations 77G and 33A from DSAF and reallocate them in
order to comply with HCFA's instructions and the State's approved CAP.
In addition to DSAF, the reallocation affected the SEU and Division of
Assistance Payments (DAP) cost pools. The adjustment in the amounts
properly allocated to these cost pools would in turn affect the share of
administrative costs properly charged to specific public assistance
programs.

2/ HCFA did, however, acknowledge that the CAP in effect prior to
March 1982 was silent with regard to which payroll locations should be
combined to form the DSAF cost pool, and, In fact, payroll location 33A
had been removed from the DSAF cost pool beginning in July 1981.
State's Appeal File, Taylor Affidavit. For the purposes of this case,
we are concerned only with the October 1, 1980 through June 30, 1981
period.

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Under the State's approved CAP for the period at issue, joint charges,
those not solely identifiable and directly chargeable to a single
program, were allocated among programs "on the basis of factors
reflecting the distribution of work among programs." State's Appeal
File, Exhibit Q. Joint charges from DAP and DSAF were apportioned among
the relevant assistance programs according to the percentage of county
costs charged to each program. However, joint charges from SEU were not
apportioned immediately among programs because SEU did not have direct
administrative responsibility for any federal/state assistance or
services program. Instead, SEU was responsible for establishing
policies and procedures affecting the service and financial assistance
programs under the supervision of DSAF and DAP. Therefore, SEU's joint
charges were divided between and charged to DAP and DSAF on the basis of
the ratio of total costs of the respective payrolls of those two
divisions, before being passed on to particular programs. Thus, any
change to DSAF affected both SEU and DAP.

Payroll location 33A, which had been incorrectly charged entirely to
DSAF, was removed and charged to SEU. The increased SEU total then had
to be reallocated between DSAF and DAP according to the ratio of their
respective total payrolls, as required by the CAP. 3/ Removal of payroll
locations 33A and 77G from DSAF also altered the payroll ratio between
DSAF and DAP, giving DAP a larger share of the divided SEU costs. This
increase in the total allocation to DAP increased the total DAP
administrative expenditures that were properly charged to the AFDC
program. State's Appeal File, Exhibit H. This also increased the total
indirect costs charged to AFDC because those costs were calculated on
the basis of the ratio that State and local salaries for each program
bore to the total State and local salaries in the Department of Human
Services. State's Appeal File, Exhibit Q.

The State made adjustments to its prior period claims in its expenditure
reports for the quarter next following the review. Although no new
amounts of FFP were claimed, a redistribution of costs, some up and some
down, was necessary among various Social Security Act programs. See
State's Appeal file, Exhibit H.


3/ Payroll 77G was removed from DSAF and charged directly to the cost
pool for the Teaching Hospital Medical Eligibility Unit. The effect on
the cost pool for this unit is not at issue in this appeal. - 4 -

On August 2, 1983, the State filed prior period adjustments in the AFDC
program for the period October 1, 1980 through June 30, 1981. State's
Appeal File, Exhibit B. 4/ The Agency disallowed the State's claim for
FFP in the AFDC program based on the State's failure to comply with the
timely filing regulations promulgated at 45 CFR 95.7.

Statutory and Regulatory Background

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

These statutory provisions are implemented by 45 CFR Part 95, Subpart A
(1981). The regulatory provisions on time limits in general track the
statutory requirements; the exceptions in the statute are restated in 45
CFR 95.19.


4/ The State also filed at the same time the following claims based on
the reallocation:

(1) a prior period net increasing adjustment claim with HCFA for
$45,389 ($8,973 in FFP) for the period October 1, 1980 through June
30, 1981, in State administrative costs under Title XIX Medicaid;

(2) a claim with the Office of Child Support Enforcement for an
increasing adjustment of $1,199 ($899 in FFP) in State
administrative expenses for the child support enforcement program
during the same period; and

(3) a claim with the Children's Bureau of DHHS for a prior period
adjustment in State administrative costs for the Title IV Foster
Care program. The reallocation of payroll locations for the period
October 1, 1980 through June 30, 1981, caused a net increase in
those costs of $3,738 ($1,869 in FFP).

All of the above claims were paid without a timely filing
objection.

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The pertinent section for this appeal is 95.4, Definitions. It includes
the following:

Adjustment to prior year costs means an adjustment in the amount of
a particular cost item that was previously claimed under an interim
rate concept and for which it is later determined that the cost is
greater or less than that originally claimed.

Audit exception means a proposed adjustment by the responsible
Federal agency to any expenditure claimed by a State by virtue of
an audit.

Analysis

A. THE REVIEW PERFORMED BY THE DIVISION OF FINANCIAL
OPERATIONS WAS AN AUDIT.

The State argued that the statutory time limit does not apply because
the adjustments at issue were made as the result of an audit. The State
argued that although the review was not officially labeled an "audit,"
it bore all the relevant characteristics of one. Most importantly, the
State contended, the effect on the State was identical to the effect of
a formal audit, and, therefore, the State is entitled to make its
adjustment regardless of the filing deadline.

Further, the State argued that audits are reviews of State agency
operations conducted to ensure that funds are being "properly expended,"
45 CFR 201.12(a)(2), and to determine "the allowability of costs," 45
CFR 201.12(b). In contrast, the State maintained that program reviews
involve examinations of program administration, the emphasis of which is
on examination of case records and quality control systems monitoring
recipient eligibility. 45 CFR 201.10. The State asserted that the
review of SPMP charges had nothing to do with case records or
eligibility quality control. See State's Appeal File, Exhibits I and J.

Moreover, the State maintained that during the "program review," the
Agency reviewed financial and payroll records in order to trace charges
made for SPMP at the enhanced 75 percent matching rate. The State
asserted that these activities bear a closer resemblance to the
regulations' description of an audit than to a program review.
Moreover, the State cited previous Board decisions for its position that
the review performed here comports with all the characteristics of an
audit that the Board has identified in past decisions. See State's
brief, p. 14.


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Finally, the State argued that the fact that the regulations at 45 CFR
201.12 describe only audits performed by the Audit Agency of the
Department of Health and Human Services does not preclude the Board from
recognizing that de facto audits are performed by other federal offices.

The Agency did not address the question whether the review was an audit.
In maintaining that the disallowance should be upheld, the Agency made
its arguments on the assumption ("arguendo") that the review was an
audit.

We are persuaded by the State's argument on this issue and find that the
review, for all practical purposes, was an audit. Neither the statute
nor the regulation providing for the audit exception define the term
"audit." However, an audit is commonly understood to involve the formal
inspection of accounting or financial records. See definition of
"audit" in Black's Law Dictionary, Fifth Edition; Webster's New World
Dictionary, Second College Edition, cited in Illinois Department of
Public Aid, Decision No. 715, January 6, 1986. In this case, the review
examined the same financial and accounting records that would have been
inspected during an audit by the HHS audit agency. Moreover, to find
that this review was not an audit because it was not conducted by the
HHS Audit Agency would ignore the facts of this case and set a standard
that is unduly restrictive.

B. THE STATE'S CLAIM WAS AN AUDIT EXCEPTION.

The Agency maintained that the Board should uphold the disallowance
because the review did not question the State's cost allocation system
but, rather, sought to determine the appropriate FFP rate to match
Medicaid costs allocated to a specific function. Therefore, the Agency
maintained that the claim at issue does not fall within the "audit
exception" of 45 CFR 95.19.

The Agency argued that the review had only the effect of causing
appellant to remove certain non-qualifying costs from its claim for 75
percent Medicaid FFP and to properly claim them elsewhere within the
Medicaid program at the proper 50 percent FFP rate. The reviewers did
not look at or in any way concern themselves with the State's claims for
FFP under the Title IV-A AFDC program. The Agency argued, therefore,
that no audit exception is available for claims under the State's Title
IV-A AFDC program.

Further, the Agency argued that a federal review of expenditures
resulting in an "audit" exception in one federal program does not waive
the timely filing requirement for expenditures under a different federal
program. Illinois Department of Public Aid, supra.

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The State argued that, unlike the situation in Illinois, supra, there
was a direct cause and effect relationship between the audit exception
and the claim. In this case, the State argued it did not choose
unilaterally to shift claims from one program category to another after
claims under one program category were denied. Moreover, the State
reasoned that it could not refuse to remove the challenged payroll
costs. If it had not done so, HCFA would have disallowed them. Nor
could the State refuse to reallocate the removed costs because that
would have put it in violation of its CAP, which in turn would have
invited a disallowance of other administrative costs by the Division of
Cost Allocation.

Although the review was initially instituted to examine expenditures
claimed under the enhanced SPMP FFP rate, the audit directly impacted on
the AFDC-related costs. In Illinois. supra, we said that the
"regulatory language 'any claim resulting from an audit exception'
implies a direct cause and effect relationship between the audit
exception and the claim." However, this does not stand for the
proposition that the costs must always be within the same program to
have such a relationship. The specifics of each case must be examined
and judged on its own merits. In the present case, we find a direct
cause and effect relationship between the audited costs and the costs at
issue. When the Agency directed the State to remove two payroll
locations from DSAF, it was clearly foreseeable that, if DSAF costs were
interrelated with costs of other units, as is the case here, those costs
would be reallocated to other units to reflect the ordered change.

C. THE STATE'S CLAIM WAS NOT AN ADJUSTMENT TO PRIOR
YEAR COSTS.

Additionally, the State argued that the adjustment at issue here is
analogous to the claim at issue in Maryland Department of Human
Resources, Decision No. 483, November 30, 1983. 5/ The State maintained
that the specific cost items at issue in this case are those
administrative costs incurred by the Oklahoma Division of Assistance
Payments and properly charged to the AFDC program under the State's
approved CAP. The State maintained that it had

5/ The Board found that restrictions in the appropriations act did not
bar Maryland's $2,344 claim resulting from clerical errors that caused
its initial timely claims for the same expenditures to be either over or
understated. The Maryland case did not deal with the claiming
restrictions of section 1132, as in this case.


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previously claimed, and been reimbursed, $215,629 in FFP for
AFDC-related administrative costs in DAP for the period October 1, 1980
through June 30, 1981. State's Appeal File, Exhibit H.

The Agency contended that the claim at issue was not an adjustment to
prior year costs. The Agency asserted that an "adjustment to prior Year
costs means an adjustment in the amount of a particular cost item that
was previously claimed under an interim rate concept and for which it is
later determined that the cost is greater or less than that originally
claimed." Agency brief, p. 6. The Agency argued that the Title IV-A
AFDC program does not utilize interim rates; therefore, the exception
for adjustment to prior year costs is simply not applicable to the facts
of this appeal.

Although the State primarily argued that it was entitled to an audit
exception, it also argued, in the alternative, that it was entitled to
claim the costs at issue as an adjustment to prior year costs. We
cannot accept the State's position. The regulation at 45 CFR 95.4
defines an adjustment to prior year costs as an adjustment in the amount
of a particular cost item that was previously claimed under an interim
rate concept. The costs at issue were not originally claimed based on
an interim rate and later adjusted. Therefore, as advanced by the
Agency, the adjustment to prior year costs exception does not apply in
this case. However, since we find for the State on other grounds,
further discussion of this issue is not necessary.

D. THE DECISION IN OKLAHOMA DEPARTMENT OF HUMAN
SERVICES, DECISION NO. 484, IS NOT APPLICABLE TO THIS
APPEAL.

The Agency maintained that the decision in Oklahoma Department of Human
Services, Decision No. 484, November 30, 1983, is directly applicable to
this case. The Agency argued that in the former Oklahoma case, as here,
the State claimed certain costs in other programs and sought to transfer
and reclaim those costs in the Title XX program after two years from the
incurrence of the costs. Further, in the present appeal, as in the
former, the Agency maintained that the subject costs were eligible to be
filed in either program but were transferred between programs after the
filing limitation had run.

The State argued that the Board's ruling in Oklahoma, Decision No. 484,
supra, does not support the disallowance in the present case. The State
maintained that Decision No. 484 involved a series of purely voluntary
State adjustments in which the State first inadvertently caused a
shortfall of valid claims under the Title XX social services program and
then attempted to

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cover that shortfall by submitting entirely new categories of claims
transferred from non-Title XX programs. The state argued that the
critical difference between the cases is that a State may control the
distribution of service costs among programs with overlapping purposes
but it has no control over the exact distribution of administrative
costs governed by an approved CAP, so long as that particular plan is in
effect.

Although Decision No. 484 briefly discussed adjustments to prior year
costs, the main focus of the decision involved audit exceptions and
claims. ln Decision No. 484, the State attempted to transfer claims for
expenditures from two separate programs to its Title XX program after
the filing deadline. Further, in that case, the Board found that no
audit had occurred, and that the State had no basis on which to pursue
its claim for an exception after the filing deadline. In the present
case, as discussed above, we have found that the Agency's review
constituted an audit, and, as a result of the audit, the State is
entitled to an audit exception for the costs at issue here. Our
Decision Nc. 484 does not preclude the State's claim for an audit
exception as an exception to the timely-filing limitation.


E. OTHER AGENCY ARGUMENTS.

Finally, the Agency maintained that "while a state must claim allocated
costs according to its approved CAP, the existence of an approved CAP
does not: (1) require a state to claim a cost which it may properly
allocate under its approved cost allocation plan, or (2) obviate the
requirement that the allocated cost be otherwise allowable under program
requirements." Agency brief, p. 9.

Of course the State was not required to claim the increased AFDC
administrative costs resulting from the HCFA review. A state is never
under compulsion to claim FFP for costs it has incurred. However, that
is no reason why it should not be entitled to FFP in costs it properly
elects to claim.

So, also, the allocated costs claimed must be "otherwise allowable"
under program requirements. The Agency, however, seems somewhat
circular in its argument that the allocated costs were not eligible to
be claimed in the AFDC program because they were not timely filed in
that program. If the costs come under the audit exception to the timely
filing requirements, there is no time limit on their filing in any
program.


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Conclusion

Based on the foregoing reasons, we reverse the Agency's disallowance of
$67,495.


________________________________ Cecilia Sparks Ford

________________________________ Norval D. (John) Settle

________________________________ Alexander G. Teitz Presiding
Board