Pennsylvania Department of Public Welfare, DAB No. 834 (1987)

DEPARTMENTAL GRANT APPEALS BOARD

Department of Health and Human Services

SUBJECT: Pennsylvania Department of
Public Welfare

Docket Nos. 86-109 and 86-219
Decision No. 834

DATE: February 6, 1987

DECISION

The Pennsylvania Department of Public Welfare (State) appealed two
disallowances by the Health Care Financing Administration (Agency) for
claims for federal financial participation (FFP) under Title XIX
(Medicaid) of the Social Security Act (Act). The disputed claims were
for certain personnel costs based on the availability of an enhanced FFP
rate of 75% for compensation and training of skilled professional
medical personnel (SPMP) and support staff. The Agency disallowed the
portion of the State's claims which exceeded the 50% rate generally
applicable to administrative costs for the Medicaid program for the
periods July 1, 1985 through September 30, 1985 (Docket No. 86-109) and
October 1, 1985 through March 31, 1986 (Docket No. 86-219) for totals of
$42,785 and $75,057, respectively. The disallowed claims were for six
individuals working in various administrative divisions of the State's
Medicaid Office, and for 27 human service aides working in the Early
Periodic Screening Diagnostic and Treatment Program (EPSDT). 1/

During the course of the appeals, the Agency agreed that two positions
were SPMP positions. This reduced the disallowance by $7,328 in Docket
No. 86-109 and $3,664 in Docket No. 86-219.

We have previously emphasized that the State has the burden to provide
documentation sufficient to show that its claim for 75% FFP for the
costs of personnel was proper. Illinois Department of Public Aid,
Decision No. 376, January 27, 1983. In the present case, the State
has not met its burden and we therefore uphold the disallowance.

Applicable Law, Regulations, and Guidelines

Section 1903(a) of the Social Security Act provides for payment of:

(2) . . . 75 per centum of so much of the sums expended . . . (as
found necessary by the Secretary for the proper and efficient
administration of the State plan) as are attributable to
compensation or training of skilled professional medical
personnel, and staff supporting such personnel, . . .

* * * *

(7) . . . 50 per centum of the remainder of the amounts expended
. . . as found necessary by the Secretary for the proper and
efficient administration of the State plan. 2/

Agency implementing regulations, 42 CFR 432.50(b)(1) and 433.15(b)(5),
provide 75% FFP for skilled professional medical personnel and
supporting staff. Sections 432.50(b)(6) and 433.15(b)(7) implement the
50% matching provision generally applicable to FFP claims for costs of
administration.

The term "skilled professional medical personnel" is not defined in
Title XIX. Agency regulations contain the following definition at 42
CFR 432.2:

"Skilled professional medical personnel" means physicians,
dentists, and other health practitioners; nurses; medical and
psychiatric social workers; medical, hospital, and public health
administrators, and licensed nursing home administrators; and
other specialized personnel in the field of medical care.

The regulations are supplemented by Part 2-41-20 of the Medical
Assistance Manual (Manual). This Part was issued in an Action
Transmittal by the Social and Rehabilitation Service (predecessor agency
to HCFA) in July 1975, SRS-AT-75-50. The Manual contains the
following "principles" which are used to assess claims for 75% FFP:

B. Principles

1. General

* * * *

a. The function of a "skilled professional
medical" position whether at the State or local
level, is the principal basis for determining
eligibility for increased Federal matching. The
title of a position or its organizational placement
in the Medical Assistance Unit administering title
XIX will be used as subsidiary evidence to confirm
that a staff function is eligible for 75 percent
matching.

* * * *

b. Staffing will normally include some employees engaged
in functions which are neither skilled professional
medical functions nor supportive of such functions.

Therefore, salaries and related costs of the total
cadre of personnel involved in the administration of
the title XIX program are not reimbursable at the 75
percent rate.

* * * *

2. Specific

a. The function, rather than the title, of a position is
the significant factor. Staff classified as skilled
professional medical personnel must be in functions
at a professional level of responsibility in the
adminstration of the title XIX medical assistance
program requiring medical subject area expertise.

"Professional" and "medical" functions are defined as
follows:

Professional -- the function is at a level which
requires college education or equivalent and it
relates directly to non- routine aspects of the
program requiring the exercise of judgment.

Medical -- the function is peculiar to medical
programs and requires expertise in medical services
care delivered, studying and evaluating the economics
of medical care, planning the program's scope, or
maintaining liaison on the medical aspects of the
program with providers of service and other agencies
which provide health care.

As a class, these functions require knowledge and
skills gained from professional training in a health
science or allied scientific field. They involve
overseeing the delivery of medical care and services.

Staff positions in which the primary function is the
application of administrative practices and
procedures unrelated to the specialized field of
medical care management are eligible for 50 percent
matching. For example, a physician in charge of an
accounting operation would be eligible for staff
reimbursement only at 50 percent FFP.

* * * *

C. Examples of Organizational Functions

Following are examples of functions needed to operate State
title XIX programs and the expected level of Federal
matching. . . .

3. Fiscal Section Staff - 50 percent FFP.

Staff prepares financial statements of expenditures and
formulates budget. The operation is non- medically oriented
and uses personnel with non- medical titles and occupations.

4. Contracting Section Staff - 50 percent FFP.

Staff administers bids and contracts with fiscal
intermediaries and providers. The operation is non-
medically oriented and uses personnel with technical business
experience.

* * * *

The applicable Manual requirements for 75% funding of EPSDT support
personnel are found in an October 30, 1979 HCFA Action Transmittal,
HCFA-AT-79-101. Those provisions require that the following conditions
be met: 3/

1. Skilled Professional Medical Personnel

Skilled medical professionals include: physicians,
dentists, other health practitioners, nurses, medical
social workers, health educators and other specialized
personnel in the field of medical care including medical
administrators, hospital or public health administrators,
and licensed nursing home administrators.

a. The skilled medical professional must be an employee
of the public agency at the State or local level.

b. The skilled medical professional must be identified
by interagency or intragency 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.

c. The skilled medical professional must perform,
supervise, or be ultimately responsible for
health-related administrative services in support of
EPSDT.

d. The skilled medical professional who supervises or is
ultimately responsible for functions performed by
non-professional supporting staff must:

(1) define their positions and functions to be
performed (2) provide for their training (3)
monitor and evaluate their activities.

2. Staff Supporting Skilled Professional Medical Personnel

a. The staff must be employed by the public agency at
the State or local level.

b. the staff must be identified by interagency or
intra-agency agreement to provide:

(1) direct assistance to the skilled medical
professional employed in the public agency OR
(2) direct assistance to the skilled medical
professional employed in the title XIX agency,
in which case no skilled medical professional is
required in the public agency.

c. The staff must perform health-related administrative
services in support of EPSDT.

d. The staff must be supervised or under the ultimate
responsibility of a skilled medical professional,
employed either by the public agency or the title XIX
agency.

Section 2-41-20(B)(2)(b) of the Manual provides that the official
position descriptions are the "basic substantiation for a position's
professional medical status." This section also provides for
consideration of "[j]ob announcements emphasizing requirements at or
above the college level in medical care and medical care
administration."

The Disallowance

The Agency has continued to contest 75% FFP status for three positions
in the Deputy Secretary's (DS) office, one position in the Bureau of
Utilization Review (BUR), and 27 EPSDT employees. Two positions on
the DS staff--designated as one administrative assistant II position and
one administrative officer II position--are claimed by the State as
support staff positions while the third DS staffer--denominated an
administrative officer IV slot--is claimed as an SPMP. The BUR support
position is also called an administrative officer II. The Agency
contended that all of the claimed support positions are performed at a
professional level since all of the incumbents are college graduates and
the positions' functions involve administrative duties dealing with
personnel matters, departmental budgets, and procurement systems. Since
these positions are not subprofessional, the Agency argued that they
cannot be support positions under the regulations. As for the position
claimed as SPMP, the Agency maintained that the job does not require
professional medical expertise in the performance of its functions.
Finally, with respect to the EPSDT positions, the Agency contended that
none of the employees involved provide direct support to SPMPs who
administer the program.

The State maintained in its briefs that all of the disputed positions
were properly claimed for 75% FFP under the principles espoused in
Oregon Department of Human Resources, Decision No. 729, March 20, 1986,
and the principles set forth in the applicable sections of the Medicaid
Manual. In support of its claim for enhanced funding, the State
furnished job descriptions for the four individuals in the DS and BUR
offices and argued that the functions of the three alleged support
positions were similar to those found to qualify for enhanced funding in
Oregon. The State argued that the employee claimed as SPMP performed
functions involving highly responsible administrative and analytic work
necessary to the administration of the Medicaid program. Finally, the
State contended that the EPSDT workers qualified for enhanced funding as
support personnel under HCFA Transmittal HCFA-AT-79-101 because they are
under the ultimate responsibility of an SPMP, the Deputy Secretary for
Income Maintenance, and provide health-related administrative services
in support of the EPSDT.

We have examined the materials and arguments submitted by the State in
support of its claim and have concluded that it has failed to show that
the enhanced rate of funding was appropriate for any of the disputed
positions. We discuss first the four specific positions claimed and
then the general claim for the positions in the EPSDT division.

Analysis

1. Administrative Support Positions

Two of the alleged support positions were located in the DS's office.
According to their job descriptions, one acted as the budget and
contract officer and the other as the personnel officer for the overall
State Medicaid agency. Both were subject to the supervision of the
executive assistant to the DS who, as we determine below in section two,
is not an SPMP. The third contested support position performed budget,
procurement, personnel, and clerical supervision functions under the
supervision of the BUR Director, whose status as an SPMP is apparently
undisputed. The State contended that under the principles of the Oregon
decision, the presence of a college graduate in any particular position
does not disqualify that position as a support position, since it is the
function of any particular position that is dispositive. The State
argued that the functions performed by the three disputed positions
paralleled those of the Office Manager and Word Processing Supervisor
described at page 31 of the Oregon decision.

The Agency maintained that none of these positions are properly claimed
as support positions because they are performed at a professional level
by college graduates. In support of its position, the Agency cited 42
CFR 432.2, which provides:

"Supporting staff" means secretarial, stenographic, clerical,
and other subprofessional staff whose activities are directly
necessary to the carrying out of the functions which are the
responsibility of skilled professional medical personnel, as
defined in this section.

The Agency contended that this section made it clear that only functions
performed at a subprofessional level are eligible for enhanced funding
as support for SPMP functions. The Agency maintained that, although the
Oregon decision does not specifically state that the Office Manager was
a subprofessional, that position's duties must have been those of a
subprofessional for the Board to have concluded that it was a support
position.

We have examined the job descriptions submitted by the State for these
three positions and conclude that the functions described therein are
clearly performed at a professional level. The DS administrative
assistant II has primary responsibility for the overall preparation of a
budget exceeding $34 millon and for the processing of $18 million worth
of contracts for the State Medicaid office. State Ex. 6. The DS
administrative officer II position acts as the overall personnel officer
for the entire Medicaid agency, which apparently employs as many as 575
persons. State Ex. 7. The BUR administrative officer, among other
duties, handles budget and procurement duties for the division, prepares
reports and statistics on the Utilization Review Program and writes
policy memorandums. State Ex. 11. All three of these positions clearly
function at a professional level, performing complex tasks requiring the
exercise of judgment, such as oversight of a multimillion dollar budget
or administration of personnel policies for hundreds of employees. The
fiscal and contracting functions performed by these positions are the
types of administrative functions specifically described at sections
21-41-20(c)(3) and (4) of the Manual as professional and reimbursable
only at 50 percent. All three positions also are held by college
graduates which, according to the Manual's definition of "professional,"
indicates that these are professional, rather than subprofessional,
jobs.

The State has not offered any argument or evidence to refute the
Agency's finding that these three alleged support positions are
professional jobs, although a position which is a professional one that
does not qualify as an SPMP position clearly cannot qualify as a support
position. Oregon at 28. Instead, the State argued that these positions
were similar to that of the Office Manager and Word Processing
Supervisor in Oregon. While review of the position description does not
reveal whether the incumbent of the Oregon Office Manager slot was a
college graduate, it is clear that the functions of that position were
those of a subprofessional support staffer. The Oregon position's
responsibilities were more ministerial than the challenged positions in
the present case, i.e, the independent exercise of judgment was not
required to carry out the functions of the position. In addition, in
the case of the BUR administrative officer, his duties apparently
include assisting a Clerical Supervisor who seems to be a closer analog
to the Oregon Office Manager and Processing Supervisor than he is.

As noted above, the State bears the burden of establishing that a
particular position is eligible for enhanced funding. It has failed
here to show that these are subprofessional positions which support an
SPMP. Consequently, we uphold the disallowance for the amount claimed
above the standard 50% FFP for administration.

2. SPMP Position in the DS Office

According to the position description supplied by the State, the
administrative officer IV position functions as the executive assistant
to the DS, who heads the State Medicaid agency. The Agency initially
understood the State to be claiming this position as a support position
for the DS. In its Appeal the State contended that this position is an
SPMP position because its functions "involve highly responsible
administrative and analytic work necessary to the functioning of the
Medicaid program." State appeal brief at 3. The State cited the old
State Medicaid Manual section 2-41-20(6), which included as SPMP
functions medical services program development and liaison duties, in
support of its claim that this position qualifies as an SPMP.

The Agency contended that the administrative officer IV position was not
an SPMP because, even assuming that the incumbent performs some medical
services program development, the overall job must require professional
medical expertise to qualify as SPMP. The Agency stated there was
nothing in the record to indicate that the incumbent had any medical
training or experience.

Under the Manual provisions it is the function of a position that
determines whether 75% matching is proper. Manual sections 2-41-
20(B)(1)(a) and (B)(2)(a). The official position description,
organizational placement, job announcement, and a listing in a handbook
of occupational titles under a medical classification are the basis for
a determination that a position's function is in fact a skilled
professional medical function. Manual sections 2-41-20(B)(1)(a) and
(B)(2)(b). Only "professional" positions requiring "medical subject
area expertise" are matched at the 75% rate. The Manual defines both
"professional" and "medical." To be "professional" a position must be
non-routine and require a college education or its equivalent.
"Medical" functions are "peculiar to medical programs." Manual section
2-41-20(B)(2)(a). The Manual specifically provides, however, that not
all administrative personnel will be eligible for 75% matching. Manual
section 2-41-20(B)(1)(b). The Manual further provides that
these functions as a class require "professional training in a health
science or allied field." Manual section 2-41-20(B)(2)(a).

The adjective "medical" does not appear anywhere in the list of job
functions within this position's job description, which is the only
document offered by the State in support of its claim that this position
is an SPMP position. The functions identified by the State as
specifically qualifying this position for SPMP treatment under Manual
section 2-41-20(6) were "medical services program development" and
"liaison." The State evidently contended that the entry "[P]articipates
in planning and developing policies and standards in accordance with
state and federal regulations" is the equivalent of "medical services
program development," and that this job requires "an understanding of
medical services program development." Reply, p. 2. When read in the
context of the overall job description, however, which emphasizes this
position's responsibility for the day-to-day oversight of the
administrative details of the Medicaid agency, such as procurement,
personnel, and official correspondence, it appears that the policies and
standards which are to be developed could easily concern those types of
matters, not medical ones. In addition, while the manual specifies
"providing liaison on professional medical matters" as another SPMP
function, we do not agree with the State's apparent assertion that:

assignments as liaison between the Deputy Secretary and other
program Offices, community groups, agencies, and elected
officials; . . . [M]aintains liaison with Central and field
OMA staff in communicating policy and procedures necessary in
administrative processing of documents and in receiving
feedback on problems with the system and proposals for their
resolution. . .

is a function that is performed by a professional with medical
expertise. There is nothing in the record to indicate that the
functions of this position are medical, as defined in the manual. The
professional functions listed in the Manual as being those of an SPMP
must be read in the context with the specific criteria that a position
must require medical expertise. Illinois, p. 8; see also New York State
Department of Social Services, Decision No. 307 (May 28, 1982). The
State's unsupported statement that the position requires an
understanding of medical program development is insufficient to
establish that this position's functions require medical expertise or
training. Without some indication that a position's functions
necessitate medical training or expertise, the state is entitled only to
the general 50% FFP rate for administration. We therefore uphold the
disallowance with respect to this position.

3. EPSDT Workers

The State alleged in its appeal brief that the EPSDT workers at issue
here administer the EPSDT program by screening recipients, referring
them to service providers, and monitoring the services provided. The
State maintained that these workers qualified for enhanced funding as
supporting staff under Manual section 2-41- 20(G)(2) as amended. The
State did not explain how the EPSDT program was administered or where
these workers fit into its overall administrative agency; it instead
stated that "[I]n this case the workers are under the ultimate
responsibility of the Deputy Secretary for Income Maintenance who is a
co-Director of the State's Medicaid program and hence expressly listed
as eligible for enhanced funding. SMM 2-41-20(G)(2)(c)." State Appeal
brief, p. 5. Unlike the instances of the other challenged positions,
the State did not provide job descriptions for any of the disputed EPSDT
positions.

The Agency contended that the EPSDT workers did not support medical
professionals involved with the administrative activities of the
Medicaid program. The Agency argued that, to the extent that these
workers supported any medical professional, the supported positions
would be those of professionals providing direct medical services, which
costs would be claimed as medical assistance payments rather than
administrative costs. Finally, the Agency dismissed the State's
argument that these workers qualify as support staff under the ultimate
responsibility of the Deputy Secretary for Income Maintenance because
"it could be used to include anyone no matter how far down the chain of
command." Agency Response, p. 3. According to the Agency, in order for
these county workers to qualify as support staff, there must be an SPMP
in each county office.

We find that the State has not established that the EPSDT workers
qualified for enhanced funding. While the Manual does state that 75%
FFP is available for individuals performing EPSDT "outreach" activities,
there is nothing in the record, such as position descriptions or even a
recitation by the State of the duties of these employees (indeed, the
State merely repeats the disallowance letter's summary description of
their duties), to support the State's claim for enhanced funding for
these positions. The State argued in its reply brief that because the
activities listed under the category of "staff requirements" at section
2-41-20(G)(3)(a)(2) are not ones which in its opinion would ordinarily
qualify a position for support staff status, the Agency could not have
intended the kind of direct support relationship for an SPMP normally
needed, notwithstanding the Agency's statement that these staff had to
directly support an SPMP. The State also argued that the requirements
of section 2- 41-20(G)(2)(b) that support staff must be identified by
interagency or intra-agency agreement to provide direct assistance
either to an SPMP employed in the non-Title XIX agency or to one within
the Title XIX agency was inapplicable because this section relates "to
staff employed by other public agencies." Appeal brief at 5.

We do not agree with the State that the requirements of section
2-41-20(G)(2)(b) are inapplicable here; by their unambiguous terms they
are directly applicable to a situation such as the present one where
EPSDT functions are performed by the state Medicaid Agency.
Consequently, it is significant that the State has not provided a copy
of the required intra-agency identifying agreement nor identified any
SPMP in the EPSDT program for whom these 27 workers supply direct
support. Even more significantly, the State did not address at any time
the EPSDT sections of the Manual which expressly provide specific
requirements for the relationship between an SPMP and support staff in
the EPSDT division. Specifically, the Manual provides that the SPMP who
supervises or is ultimately responsible for functions performed by
support staff must: (1) define their positions and functions to be
performed; (2) provide for their training; and (3) monitor and evaluate
their activities. Manual section 2-41-20(G)(d). As noted above, the
State has been extremely uncommunicative about the supervision of the
disputed EPSDT employees, stating only that they were under the
"ultimate responsibility" of the Deputy Secretary for Income
Maintenance. The State has not detailed what the lines of authority
between these county workers and this Deputy Secretary, who is
presumably located in the State capital, are. The State's assertion is
insufficient, given the specificity of the Manual provisions cited
above, to support its claim for enhanced funding. We therefore uphold
this portion of the disallowance in full. Conclusion

Based upon the discussion above, we uphold the Agency's disallowances in
full.

_________________________ Norval D. (John)
Settle

_________________________ Alexander G. Teitz

_________________________ Cecilia Sparks
Ford Presiding Board Member

1. Both disallowances were based on a June 18, 1985 report
concerning the State's claims for 75% FFP for these positions during the
period July 1, 1983 through June 30, 1984. The $496,112 disallowance
for this period was not appealed by the State, apparently due to State
error. Appeal brief, p. 1.

2. In paragraphs (1), (3), (4), (5) and (6), section 1903(a) sets
the rate of FFP for other types of expenditures for the Medicaid
program.

3. Although this section is captioned "Staff of Other Public
Agencies - EPSDT," the memorandum accompanying this action transmittal
states that it is also applicable to state Medicaid