DEPARTMENTAL GRANT APPEALS BOARD
Department of Health and Human Services
SUBJECT: Alabama Medicaid Agency
Docket No. 86-161
Decision No. 880
DATE: July 6, 1987
DECISION
The Alabama Medicaid Agency (Alabama/State) appealed two determinations
by
the Health Care Financing Administration (HCFA/Agency) disallowing a
total of
$213,397 in federal financial participation (FFP) claimed by
the State for
the fiscal quarters ending March 31 and June 30, 1986.
The disallowance
represented a reduction of enhanced funding (from 75%
to 70% FFP) provided
for operational costs of Alabama's Medicaid
Management Information System
(MMIS). HCFA based the disallowance on
its disapproval of the State's
MMIS. HCFA disapproved the MMIS because
Alabama failed to meet a
standard for orderly and timely claims
processing in the System Performance
Review (SPR) for fiscal year (FY)
1985. Essentially, HCFA alleged that
Alabama had not paid a significant
number of Medicaid claims within the
deadline established for its MMIS.
The State challenged the disallowance on the ground that it had
been
denied administrative review for what it contended was a state
plan
compliance issue. Additionally, Alabama alleged that HCFA
acted
improperly by changing the original MMIS performance standards
without
publishing those changes in the Federal Register. Alabama also
asserted
that the timeliness of claims payment was an invalid standard by
which
to assess its MMIS since the MMIS was not responsible for
actually
paying claims.
For the reasons set out below, we sustain this disallowance. We
find
that there is no compliance issue; that HCFA met all requirements
for
publishing any changes in the performance standards; and that
timeliness
of claims payment was properly considered in determining whether
the
State should receive 75% FFP for operation of its MMIS system.
1/
Background
1. Law
Prior to 1980, a state participating in the Medicaid program under
Title
XIX of the Social Security Act (Act) had the option to employ an MMIS
to
process Medicaid claims and to develop data and information
regarding
recipients and services. FFP was available in varying amounts
for the
design, development, and operation of these systems. See
section
1903(a)(3) of the Act (1978).
In 1980, Congress amended the Act to provide that, in order to receive
75%
FFP for the compensation or training of skilled professional
personnel under
section 1903(a)(2) and 50% FFP for the remainder of
costs found necessary for
the proper and efficient administration of the
State plan under section
1903(a)(7), participating states must provide
mechanized claims processing
and information retrieval systems. See
section 1903(r)(2)(A) of the
Act. The 1980 amendment established
guidelines for initial approval of
these systems and procedures for
their annual review, or SPR. An MMIS
is subject to an SPR to ensure
compliance with systems requirements
(technical specifi- cations) and
performance standards, which are the
criteria a system must meet in
terms of accuracy, timeliness, and cost.
The Secretary must notify all
states of proposed procedures, standards, and
other requirements at
least one quarter prior to the fiscal year in which
those procedures,
standards, or other requirements will be used for
conducting reviews for
systems reapproval. Section 1903(r)(6)(E) of the
Act. States whose
systems fail their SPR are subject to reductions in
FFP as set out at
section 1903(r)(4)(B) of the Act.
2. Facts
Alabama's MMIS has been in operation since 1978. In 1981 the
Secretary
published a series of MMIS performance standards including Standard
3,
which is currently at issue and which provides --
Claims must be processed in an orderly
and timely manner from
initial receipt
through issuance of claims determinations.
46 Fed. Reg. 33654 (June 30, 1981). .Accompanying each
published
standard were (1) elements by which the Secretary would assess
adherence
to the standards and (2) examples of specific measurable factors
derived
from each element and designed to permit objective and
equitable
application of the elements to a state's MMIS performance.
The Federal
Register notice specifically provided --
The factors shown below are for
illustrative purposes only.
While only
two examples of possible factors are given for
each
element, no limitations on the
number of factors per element have
as
yet been finally established.
Id.
The factors published with Standard 3, Element F provided --
Claims must be processed on a timely
basis. (Illustrative
Factors: (1)
90 percent of clean practitioner claims must
be
paid or denied as appropriate within
30 days of receipt, and (2)
all claims
must be paid or denied within 12 months of receipt).
Id. at 33655.
The disallowance is based upon Alabama's failure to satisfy Standard 3
in
terms of a factor not published in the June 30, 1981 Federal
Register.
That factor (Factor 3F3) provides --
Non-practitioner claims must be paid or
denied as appropriate
within 30 days as
provided in the State Medicaid Manual.
HCFA Ex. VII (System Performance Review Fiscal Year 1982, p. 38).
3. The Terms
Generally, a "practitioner" is a health care professional, such as
a
physician, who bills on a fee-for-service basis. The
term
"practitioner" does not include providers (such as nursing homes
or
hospitals), health maintenance organizations, hospital
cooperative
shared services organizations, and any public entities. 42
CFR
447.45(b)(4). 2/ A "clean claim" is one that can be processed
without
obtaining additional information from the provider of the service or
a
third party. 42 CFR 447.45(b). Claims other than clean
practitioner
claims, generally referred to by the parties as non-practitioner
claims,
may include claims by non-practitioners, such as nursing homes, as
well
as those from practitioners whose original claims were not clean.
See
Tr., pp. 22-23. The type of claims at issue in this case
are
non-practitioner claims which, HCFA alleged, Alabama did not pay
within
30 days as required under Factor 3F3.
Issues
The State maintained that the disallowance was inappropriate at this
time
because it had been denied administrative review of a compliance
issue under
45 CFR Parts 201 and 213. Additionally, Alabama argued that
HCFA's
implementation of Factor 3F3 was improper because that Factor was
not
published in the Federal Register. Alabama did not deny that it
had
notice of the Factor, but insisted that the Factor so altered
the
corresponding Standard as to require publication. Alabama also
asserted
that, by requiring payment of non-practitioner claims within 30
days,
the scope of the Factor exceeded the Agency's authority in that
it
addressed an area of claims payment which Congress specifically chose
to
ignore. Further, Alabama indicated that its failure to pay the
claims
in a timely fashion was due to a fiscal problem within the State, not
a
shortcoming in its MMIS. Thus, Alabama contended, the Agency did
not
have the authority .to impose a timely claims requirement through an
SPR
since the MMIS was not responsible for claims payment. 3/
Analysis
1. There is no compliance issue.
Alabama's notice of appeal stated that the disallowance notice "raises
a
question of state plan compliance which should be considered under
the
administrative review provisions of 45 CFR Parts 201 and 213,"
which
provide for prior notice and a formal hearing before federal funds
can
be withheld from a state for substantial noncompliance with its
own
state plan.
The notice of appeal goes on to say that Alabama "is
therefore
concurrently appealing this matter under those regulatory
provisions as
an issue of state plan compliance." This ambiguous
statement could mean
that at the same time the State was appealing the
disallowance to this
Board it was also filing a separate appeal elsewhere
requesting a formal
hearing under 45 CFR Part 213. It appeared from the
discussions at the
conference, however, that the State was definitely
asserting that a
compliance issue was before this Board in this appeal.
Tr., pp. 14-15.
.The State gave as a ground for appeal that the
Secretary's
determination that Alabama failed the SPR was based upon "an
alleged
violation of the requirements contained in 42 U.S.C.
Section
1396(a)(37) [section 1902(a)(37) of the Act] and 42 CFR Section
447.45."
Alabama first claimed that it had not violated any of these
provisions
(relating to timely payment of claims). Even if it had, the
State
argued, the Secretary could not penalize the violation through
reduction
of FFP under an SPR. Furthermore, claimed the State, under 42
U.S.C.
1396(c) (section 1904 of the Act), "no penalty can be imposed for
an
alleged violation of a state plan requirement" without prior notice
and
hearing.
This last statement is clearly overbroad. The ordinary variety
of
disallowance before us is generally based on a violation of a
discrete
provision of a state plan for a discrete period of time.
Section 1904
provides that if in the administration of the state plan "there
is a
failure to comply substantially" with the plan, the Secretary may
cut
off further payments to the state until he is satisfied that there
will
no longer be any such failure to comply. Only where the Secretary
has
determined that there is ongoing "substantial noncompliance" with
a
state plan do the prior notice and hearing requirements of section
1904
come into play.
In other cases before us involving whether a compliance hearing
was
required, the question was generally whether there had been a finding
by
the Secretary that a state had failed to comply "substantially" with
the
state plan. See, e.g., California Department of Health
Services,
Decision No. 734, March 28, 1986, pp. 8-9.
The statute and regulation referred to by the State, namely, 42
U.S.C.
1396(a)(37) [section 1902(a)(37) of the Act] and 42 CFR 447.45, are
the
provisions for timely claims payment required to be in a state
plan.
Both predate the provisions in the 1980 statute. They are
the
requirements with which a state must comply to receive the normal
50%
FFP for administrative costs in the Medicaid program.
The disallowance does not mention either the timely claims statute
or
regulation. The disallowance is based on the State's failure to meet
a
requirement of the 1985 .SPR. Consequently, for two calendar
quarters,
the State's request for the full 75% enhanced funding normally
available
for operational costs was reduced to 70%. The only authority
cited in
the disallowance notice is section 1903(r)(4)(B) of the Act,
providing
for the reduction in enhanced FFP when a state's MMIS system
is
disapproved. There is nowhere in the notice any mention of a
violation
of any state plan requirement.
Since the disallowance notice here charges no violation of any state
plan
requirement, we find that there is no issue of "substantial"
noncompliance
with a state plan requiring notice and hearing under 45
CFR Part 213.
2. Publication of Factor 3F3 in the Federal Register was
not
required.
The State argued that imposition of Factor 3F3 was invalid because
this
"new factor was never published in the Federal Register, or
otherwise
subjected to the notice requirements of 42 CFR 433.123."
Notice of
Appeal, p. 2. The State did not contend that the standard and
element
were not properly published. The only dispute is as to Factor
3F3,
which requires that claims other than clean practitioner claims must
be
paid or denied within 30 days.
A. Actual notice.
The State admitted that it had actual notice of the particular factor
it
failed in its 1985 SPR. Tr., pp. 21, 31. Not only did the
State have
actual notice of Factor 3F3 as an SPR requirement, it had that
notice
for several years. The Agency submitted extracts from the
SPR
requirements for FY 1982 (dated June 1981), through FY 1985; the
Factor
has remained substantially the same throughout this period. HCFA
Ex.
VII.
B. The statute.
The particular statute on which the disallowance before us is based
does
not require any publication; it does require notice to the states,
which
was given.
Section 1903(r)(6) of the Act pertains to the develop- ment by
the
Secretary of "performance standards, system require- ments, and
other
conditions" for initial approval .and reapproval of MMIS systems.
The
only notice requirement is in 1903(r)(6)(E), which provides that
the
Secretary shall --
[N]otify all States of proposed
procedures, standards, and other
requirements at least one quarter prior to the fiscal year
in
which such procedures, standards, and
other requirements will be
used for
conducting reviews for reapproval.
As pointed out above, the record shows that the State admitted
actual
notice of the requirement, and this actual notice was received
years
before the SPR failed by the State, rather than only one quarter
in
advance as required by the statute.
C. The regulation.
The regulation pertaining to notice of changed system require- ments
in
effect for this review was 42 CFR 433.115 (1980). This
regulation
required publication in the Federal Register and a comment period
only
when the requirements for original approval of an MMIS were
changed.
Contrary to the State's argument, it was not until 1985 that
the
regulation was amended to require publication in the Federal
Register
for a change in the condi- tions for reapproval. A comparison
of the
heading and opening language of the two regulations makes this
apparent.
Section 433.115 (1980) is entitled "Additional system require- ments"
and
begins as follows:
Whenever the Administrator modifies
requirements for approval of
systems . .
. he will [publish a notice]. . . . (emphasis added)
Section 433.123 (of 42 CFR) is the section relied on by the State for
a
publication requirement. It is actually section 433.115
redesignated
and amended in 1985. It is entitled "Notification of
changes in system
requirements, performance standards or other conditions for
approval or
reapproval." It begins as follows:
(a) Whenever HCFA modifies system
requirements or
other
conditions for approval . . . , or per- formance
standards
or other conditions of reapproval . . . , HCFA will
[publish
a
notice]. . . . (emphasis added) .This regulation
providing for
publication for changes in perfor- mance standards or
other conditions of
reapproval was not in effect for the 1985 Alabama
SPR. 4/
D. The Administrative Procedure Act.
At the conference, the Board suggested that if there were in fact a
change
in a performance standard, publication might be required in the
Federal
Register under the Administrative Procedure Act (5 U.S.C. 551 et
seq.),
whether or not a separate statute or regula- tion required it.
If this were a
legislative (or substantive) rule, then notice and
comment might be required
before any change.
We have concluded, however, that the factor here is not one which
would
require notice and comment rule-making under 5 U.S.C. 553(b)
since it
is clearly an "interpretative" rule, excluded from the
publication
requirements. The factor is an interpretative rule because
it
interprets or explains the performance standard which requires
orderly
and timely claims processing. As the 1981 notice points out,
the
factors listed are for illustrative purposes only. It would
be
impractical for the Agency to have notice and comment rule-making
every
time it made any change in a particular factor.
Publication was certainly not required under the Freedom of
Information
Act provisions of the Administrative Procedure Act in 5 U.S.C.
552.
That section provides that a person may not be adversely affected by
a
matter not published in the Federal Register when required to be,
but
has a specific exception for anyone "who has actual and timely notice
of
the terms thereof." There is no dispute that Alabama had actual
and
timely notice of Factor 3F3. .
E. The 1981 Federal Register
notice.
On June 30, 1981 HCFA published a notice, with a comment period, in
the
Federal Register listing performance standards for an MMIS. 46
Fed.
Reg. 33654. Standard 3 (with Element F) was published in this
notice;
Factor 3F3 was not, but two other factors under Standard 3
were. The
State contended in substance that whether or not HCFA was
otherwise
legally required to publish each factor, once it published any
factors
it took upon itself the obligation to publish any other factors
it
intended to use in an SPR.
An examination of the notice itself discloses the fallacy in the
State's
argument. The Agency bound itself to publish only new
standards, not
new factors. Thus, under "Performance Standards," there
is the
following:
It should be noted that the standards
themselves tell only what
we will
measure in assessing systems. After the first set
of
standards is published, we will issue
detailed instructions in
the MAM
[Medical Assistance Manual] concerning the application
of
the standards in our yearly system
reviews. . . .
46 Fed. Reg. 33654.
The State never disputed that Factor 3F3 was published in the MAM
long
before the 1985 SPR. 5/ .In reference to not publishing each and
every
factor, the notice was even more definite:
Set forth below are our initial
performance standards for
evaluating
MMIS operations and the elements by which we
will
assess adherence to the
standards. Also included are examples
of
specific measurable factors derived
from each element which will
permit the
objective and equitable application of the elements
to
State MMIS performance. The
factors shown below are for
illustrative
purposes only. . . .
Id.
The notice then specifically pointed out that there could well be
more
factors than those published in this notice:
While only two examples of possible
factors are given for each
element, no
limitations on the number of factors per element
have
as yet been finally
established. As indicated above, we
will
publish the actual review factors
to be used in applying review
elements
in the MAM. . . .
Id.
The State was told in the clearest manner that there might be more
than
the two illustrative factors. If there were others, they would
be
published in the MAM. Factor 3F3 was so published, and was therefore
a
valid factor to be used in the SPRs.
Alabama's argument ignores the fact that the published standard did
not
change; that HCFA followed the criteria it had published for
using
factors in addition to those published in the Federal Register; and
that
the State's MMIS successfully passed several SPRs before the
State
challenged the particular factor.
F. The comment to the 1981 notice.
On May 31, 1983 HCFA published in the Federal Register a "general
notice"
to respond to the comments received on the MMIS Performance
Standards
published on June 30, 1981. 48 Fed. Reg. 24204, Alabama Ex. F,
attachment
9. The State argued that HCFA's response to a comment on
Standard 3 was
inconsistent with Factor 3F3, and limited its
application.
A commenter stated that he believed that Element F of Standard 3
should
use the word "provider" rather than "practitioner." HCFA's response
was
--
We do not agree. In this instance
we have made the SPR
consistent with the
regulations at 42 CFR 447.45. The
regulations explain the use of the word "practitioner"
and
specifically exclude . . .
providers. . . .
48 Fed. Reg. 24205.
The State argued that the Agency was applying this factor to
provider
claims (both clean and non-clean), as well as to non-clean
practitioner
claims. The State would have us interpret the Agency
response to the
comment as estab- lishing a policy limiting Factor 3F3 to
non-clean
practitioner claims and excluding all provider claims. At
the
conference, the Agency's answer was that the language of the
Agency's
response to the comment was "perhaps unfortunate," but was very
clearly
contradicted by the facts. Tr., p. 48.
A closer examination of the comment indicates that the response to it
was
reasonable and consistent. In the first place the commenter had to
be
referring to Factor 1 of Standard 3 as published, rather than Element
F,
since Element F itself did not use the word "practitioner." The only
use of
"practitioner" was in Illustrative Factor 1, which stated that
"90 percent of
clean practitioner claims must be paid or denied" within
30 days. This
factor was copied from 447.45(d)(2). The response that
"practitioner" should
not be changed to "provider," but should follow
the regulation, was
responsive to the comment since it applied only to
what had been published in
June 1981. The response did not apply at all
to Factor 3F3, which did
have a requirement for timely processing of
provider claims, since this
factor was not published in the June 1981
notice.
3. The Agency had authority to include payment of claims in
reviews
of the State's MMIS.
The State argued that the Secretary exceeded his authority to
develop
standards for an MMIS by imposing a timely claims payment
requirement
which was unrelated to and beyond the scope and capability of an
MMIS.
The State .contended that the State's fiscal problems, which caused
late
payment of the claims in issue, were unrelated to the MMIS
performance
and beyond the SPR measurement capabilities. Alabama argued that
the
"payment requirement" in the standard was odd in that Congress
had
already addressed timely claims payments at 42 U.S.C.
1396(a)(37)
[1902(a)(37) of the Act] and 42 CFR 447.45. Alabama Ex. 5,
p. 5.
The State would normally receive FFP at a 75% rate for operation of
its
MMIS. Otherwise, the State routinely receives FFP at a 50% rate for
the
amounts "found necessary by the Secretary for the proper and
efficient
administration of the State plan." See section 1903(a)(7) of
the Act;
see also Tr., pp. 53-54. Thus, for operation of an approved
MMIS,
Alabama is entitled to an additional 50% over its normal rate of
FFP.
As we noted in Part 1 of our analysis, the statute and regulation
relied
on by the State for its timely claims argument refer to
payment
provisions which must be in a state plan and which must be complied
with
in order for a state to receive its normal 50% FFP for
Medicaid
administrative costs. Here, we are concerned with a specific
statutory
provision which provides enhanced funding for an MMIS.
In considering the State's contention that timeliness of payment
is
outside the scope of an MMIS, we first look at the statute.
Section
1903(a)(3)(B) of the Act provides 75% FFP for the sums
expended
attributable --
to the operation of systems . . . which
include provision for
prompt written
notice to each individual who is
furnished
services . . . the name of the
person or person furnishing the
services, the date or dates on which the services were
furnished,
and the amount of the payment
or payments made under the plan on
account of the services;
Prompt written notice to a person receiving medical services, with
the
amount of payment made on account of the services, obviously cannot
be
given unless payment for the services has been made.
The regulations clearly provide that operation of an MMIS system
includes
not only claims adjudication, as the .State contended, but also
claims
payment. 6/ Subpart C of 42 CFR Part 433 (1980) is
titled
"Mechanized Claims Processing and Information Retrieval
Systems."
Section 433.113 of Subpart C provides 75% FFP in expenditures
for
"operation of a mechanized claims processing and information
retrieval
system approved" by HCFA. "Operation" is defined as follows
in section
433.111:
"Operation" means the automated
processing of claims, payments,
and
reports. . . . (emphasis added)
The definition continues:
"Operation" includes the use of
supplies, software, hardware, and
personnel directly associated with the functioning of
the
mechanized system. (emphasis
added)
At the conference the Agency stated (and the State did not dispute)
that
Alabama had a contract with Electronic Data Systems (EDS) in Dallas
to
"do all the work for this MMIS," and HCFA paid 75% of the salaries
of
the EDS employees in the mailroom, who sent out the payments, after
the
checks were generated electronically. Tr., p. 38; see also
affidavit of
Gene Grasser, HCFA Ex. II.
Although neither the mechanized system nor these personnel
actually
controlled the availability of funds to pay the checks (which
apparently
caused the delays here), the State was responsible and certainly
knew
that failure to make the funds available in a timely manner
would
subvert the efficient functioning of the system.
Under 1903(a)(3)(A)(i) an MMIS system must be "likely to provide
more
efficient, economical, and effective administration of the plan. . .
."
It is for such .systems that "enhanced" FFP is available: 90%
for
design, development, and installation, and 75% for operation. If
the
State is to receive 75% FFP for operation of the MMIS, as it
claimed,
its MMIS must meet standards for payment, as stated in the
regulations,
as well as processing of claims. The Secretary has the
authority to
demand more than routine processing and payment of claims when
the
states are paid more than the ordinary 50% FFP for administrative
costs.
Alabama argued that referring to the 75% rate of FFP by the term
"enhanced
funding" was a misnomer, claiming instead that the State was
receiving what
it termed "directed funding." Alabama indicated that
this funding was
directed toward instituting the MMIS for a specific
purpose and that
Alabama's system has satisfied that purpose. Tr., p.
54. However,
in the preamble to the initial publication of the
performance standards the
Secretary indicated that, by establishing
these standards, the Agency was
looking to have states achieve more than
"technical adherence to a system
design." Rather, the program
emphasized systems performance as
justification for the right to receive
enhanced funding. See 46 Fed.
Reg. 33654.
In view of the clear statutory and regulatory direction, as well as
the
availability of a substantially enhanced rate of FFP, the Secretary
is
well within his authority in developing performance standards
which
address claims payment. Since the State failed to pay claims in a
timely
manner as prescribed by the Secretary, the State has not met
the
standard for enhanced funding for operational costs of its MMIS.
CONCLUSION
For the reasons set out above, we sustain the disallowance in full.
________________________________ Judith A. Ballard
________________________________ Norval D. (John) Settle
________________________________ Alexander G. Teitz Presiding
Board
Member
1. The record in this appeal consists of the
submissions of the
parties, as well as the transcript of a conference held on
May 1, 1987.
Citation to the conference transcript will be in the following
manner:
Tr., p. __.
2. The parties cited no definition of "practitioner,"
and we were
unable to locate any in the regulations. Section 447.45(d) refers
to
claims from practitioners, "who are in individual or group practice
or
who practice in shared health facilities." There is an
extensive
definition of "shared health facility" in 447.45(b) but none
of
practitioner. A "provider" is defined as an individual or
entity
furnishing Medicaid services under a provider agreement with
the
Medicaid agency. 42 CFR 400.203.
3. The State originally challenged this
disallowance in an action in
U.S. District Court. This suit was
dismissed without prejudice for
failure to exhaust administrative
remedies. It appears that the major
issue raised by the State in this
action was whether the date a check
was drawn, or when it was actually mailed
out, should be used in
determining the length of time it took the State to
process a claim.
HCFA Ex. III. The State withdrew any argument on this
issue before us.
It stated at the conference that it was not pressing before
this Board
"the question of the date of payment, the date on the check,
the
difference between when the check is dated and mailed." Tr., p.
21.
The record indicates that, in any event, the SPR reviewers did not
use
the mailing date (since it was undocumented); instead, they used
the
date on the "warrant" (i.e., the notice by the State to the fiscal
agent
that funds had been deposited), which was issued before the fiscal
agent
would do the monthly computer run of checks. HCFA Ex. I, p.
2.
4. Section 433.123 was effective on August 29, 1985.
The SPR failed
by the State was for FY 1985, which ran from October 1, 1984
through
September 30, 1985. The standards for the FY 1985 SPR were
issued with
a date of June 1984. Alabama Ex. F, Attachment 10. No
contention was
made that any changes in the SPR requirements were made during
the
review period.
5. The Agency was unable to furnish a copy of the MAM
as it existed
in 1981, because of HCFA's policy of updating "by removing old
pages and
inserting new ones." HCFA Brief, p. 21, n.11. However, HCFA
went on to
state that it had attached "relevant correspondence with the
state
showing the use of factor 3F3 in Alabama's SPR since 1981."
This
reference is to the SPR requirements for FY 1982, dated June 1981,
and
requirements for the FY 1983 SPR, dated June 1982. HCFA Ex.
VII.
6. We have not given weight to any contrary testimony
of an Agency
witness given in a deposition taken in the U.S. District Court
case
challenging this disallowance. See Alabama Ex. G, and n.3 above.
We
disregarded so much of his testimony as was contrary to statutes
and
regulations cited by us. In addition, his testimony was
inconsistent
throughout. The parties themselves indicated that his
testimony could
be read, in different parts, as supporting both
parties. Tr., pp.
27-28; 40-41; and 49- 52. We find that his
testimony, taken as a whole,
does not definitively support
either