Illinois Department of Public Aid, DAB No. 973 (1988)

DEPARTMENTAL GRANT APPEALS BOARD

Department of Health and Human Services

SUBJECT:  Illinois Department of Public Aid

Docket Nos. 87-206, 88-13, and 88-56
Decision No. 973

DATE:  August 3, 1988

DECISION

The Illinois Department of Public Aid (Illinois or State) appealed three
disallowances by the Family Support Administration (Agency or FSA)
totaling $623,423 in federal financial participation (FFP) claimed under
Title IV-A of the Social Security Act.  The disallowed claims
represented the federal share of costs for services provided by a
private contractor from October 1, 1986 through December 31, 1987 to
augment the identification of overpayments in the State's public
assistance programs.  As these appeals have developed, the central issue
before us has become whether the contract costs were allocated among the
participating federal programs in accord with federal cost principles
and the State's cost allocation plan (CAP).  For the reasons discussed
below, we find that the Agency reasonably determined that the contract
costs were not so allocated, and we uphold the disallowance in
principle.  As discussed below and consistent with the Agency's
suggestion, our ruling allows the State an opportunity to submit
documentation to the Agency supporting alternate methods of allocating
the costs among the federal programs (or to submit an amendment to its
CAP).

Factual Background

In October 1985 the State executed a contract with Data Management
Associates (DMA) to provide services to augment the identification of
overpayments made in the State's Aid to Families with Dependent Children
(AFDC), Medicaid and Food Stamp programs.  For each of the three
programs the State receives FFP at a rate of 50 percent for
administrative costs, i.e., the State and the responsible federal agency
share the administrative costs of each program on an equal basis.  FSA
is the responsible federal agency for the AFDC program under Title IV-A
of the Social Security Act.

Under the terms of the contract, DMA was to be reimbursed on a
contingent basis, being paid on the estimated amount of program dollars
identified as collectible overpayments.  State Ex. C, pp. 14-15.  The
State determined that DMA should primarily focus its efforts on the AFDC
and Food Stamp programs.  As a result of the reimbursement methodology
and the overpayment cases identified, the State allocated to AFDC a much
higher percentage of the contract costs than to the Food Stamp program.

Discussion

The parties' dispute here concerns how the costs associated with the DMA
contract were allocated.  The Agency never claimed that the purpose of
the contract was improper or that the State's total amount of payment to
DMA was unreasonable.  The Agency nevertheless argued that the contract
allocated the federal share of the contract costs on an unreasonable
basis, with the amounts assigned to the AFDC program disproportionate to
the benefits AFDC received from the contract's performance.  The Agency
contended that in order for the costs to be allocated properly, the
State either had to change that methodology to conform with federal cost
principles or else obtain approval of the contract's reimbursement
methodology through amendment of the State's cost allocation plan.
Because the State has done neither, FSA disallowed all of the federal
share of the contract costs allocated to the AFDC program, even though
it was uncontested that the AFDC program had benefited from the services
performed under the contract through the identification of AFDC
overpayments.

The State's position was that the contract's reimbursement methodology
was permissible under its cost allocation plan, and that it has already
paid its share of the contract costs.  According to the State,
therefore, if it should be found that AFDC's allocation of the costs
were too high, the other participating federal program should assume
greater costs, and not the State.

I.  The contract's reimbursement methodology.

The Agency stated that the contract's reimbursement methodology violated
the cost principles set forth in Office of Management and Budget (OMB)
Circular A-87.  The principles of OMB A-87, made applicable to AFDC
costs by 45 C.F.R. 74.171, provide that in order for a cost to be
allowable it must "[B]e necessary and reasonable for proper and
efficient administration of the grant programs [and] be allocable
thereto under these principles . . ."  Attachment A, Paragraph C.1.a.

The principles further provide that:

a.  A cost is allocable to a particular cost objective to the extent of
benefits received by such objective.

b.  Any cost allocable to a particular grant or cost objective under the
principles provided for in this Circular may not be shifted to other
Federal grant programs to overcome fund deficiencies, avoid restrictions
imposed by law or grant agreements, or for other reasons.

 Attachment A, Paragraph C.2.a. and b.

The Agency stated that the contract's reimbursement rate violated these
principles because DMA was reimbursed at a higher rate for the AFDC
overpayments identified than it was for the Food Stamp overpayments
identified.  According to the Agency, reimbursement at unequal rates
when each program receives essentially the same services results in a
violation of OMB A-87 cost principles.

The Agency contended that the contract's reimbursement rate was tied to
the estimated amount of program dollars identified as collectible
overpayments, rather than the actual cost of the effort to identify the
overpayments.  This contingent arrangement resulted, according to FSA,
in a wide disparity in the allocation of costs to the AFDC and Food
Stamp programs.  As an example of this disparity, the Agency pointed to
one document (Agency Ex. L) which showed DMA was reimbursed by AFDC at a
rate of 59.4% of the contract costs for the amount of AFDC overpayments
identified, because the amount of the identified AFDC overpayments in
this particular instance equaled 59.4% of the total amount of identified
overpayments; DMA, however, was reimbursed at a rate of 21.4% for the
identification of Food Stamp overpayments because the amount of those
overpayments equaled only 21.4% of the total identified.  Nowhere,
according to the Agency, is there any indication that it is more costly
per se to identify an AFDC overpayment than a Food Stamp overpayment.
This example, the Agency continued, showed that basing DMA's
reimbursement rate on the amount of overpayment identified, rather than
on the actual costs of identifying individual cases of overpayment,
resulted in the AFDC program being charged with a disproportionate
amount of the contract costs.

As the contract's methodology based DMA'S reimbursement on a percentage
of the amounts of overpayments identified, we find that the Agency was
reasonable in determining that such an arrangement violated the
provisions of OMB A-87.  The provisions of OMB A-87 explicitly prohibit
the shifting of costs allocable to a particular program to another
federal grant program.  In allocating the costs between AFDC and the
Food Stamp program, there is no correlation between the time and effort
expended in identifying each case of an overpayment and the costs
charged under the contract.  Costs more accurately attributable to the
Food Stamp program are shifted to AFDC if the basis for allocating costs
is the potential amount of overpayments.

The State argued that the methodology in the contract does allocate
costs on the basis of benefits received by each program.  This is based
on the theory that the more overpayment dollars each program has
identified, the more dollars it will be able to collect.  However, this
is highly speculative.  For example, there is an AFDC regulation which
sharply limits a state in the amount of overpayments it can recover from
current AFDC recipients.  See 45 C.F.R. 233.20(a)(13).  The amount of
the identified overpayments therefore is not necessarily directly
related to the amount of overpayments immediately collectible.  In any
event, at the very beginning of OMB A-87, there is stated under
"Objectives", that the principles "are designed to provide that
federally-assisted programs bear their fair share of costs recognized
under these principles."  (Emphasis added)  The record supports the
reasonableness of the Agency's view that the allocation by the State has
the AFDC program bearing far more than its fair share of the costs.

Under these facts, therefore, we find that the Agency was not
unreasonable in determining that the contract's methodology violated the
cost principles of OMB A-87.

II.  Alternatives to a complete disallowance.

In the course of these appeals the Agency modified its position as to
what type of reimbursement methodology it would accept for the DMA
contract.  The Agency suggested an alternative to a disallowance of the
entire amount claimed for the DMA contract costs.  The Agency stated
this suggestion as follows:

    (T)he reimbursement rate for the DMA identification function should
    be related to the actual cost of identifying the individual cases,
    rather than on the basis of the ability of the program with more
    identified collectible dollars to pay.

 Agency Brief, p. 15.

This alternative, that each program bear an equitable proportion of the
State's actual cost, seems reasonable.

If the State is interested in this alternative, then it should contact
the Agency as soon as possible to discuss the actual details of arriving
at a solution.  The Director of Cost Allocation should also be involved,
since any solution involves not only FSA but the Food Stamp program.
See OMB A-87, Attachment A, par. J., and 45 C.F.R. 95.519(b)(1).

Conclusion

For the reasons given above, we find that, under the principles in OMB
A-87, the Agency had a reasonable basis, in the facts of this case, for
refusing to accept the payment methodology in the DMA contract.  We
accordingly sustain the disallowance in principle.  We sustain the full
amount of the disallowance provisionally, subject to an opportunity for
the State to present evidence in support of a reduction of the amount,
as discussed below.  The State may proceed in either or both of these
ways:

(a)  If the State elects to develop an alternative method of
reallocating the costs of the contract as discussed in the body of this
decision, the State must initiate discussions with the Agency within
twenty days after receiving this decision, and must submit whatever
documentation the Agency reasonably requires within 45 days after
receiving this decision (or such longer period as the Agency allows).
If the State can not agree with the Agency on what documentation is
required, then the State may return to the Board on that issue alone,
within 30 days after the Agency's final response to the State's
submission.

(b)  Alternatively, the State may within 45 days after receiving this
decision (or such longer period as the Agency allows) submit an amended
CAP to DCA which will fairly allocate the costs of the DMA contract
between AFDC and the Food Stamp program in compliance with the cost
principles.  If DCA refuses to approve such an amendment, or refuses to
give it retroactive effect, then any appeal by the State shall follow
the normal procedure prescribed by regulation.

If the State takes either (or both) of the actions described above
within the time period provided, the implementation of this decision
shall be stayed pending final disposition of the alternative(s) elected
by the State.  If the State fails to meet the applicable deadline.in (a)
or (b), then the disallowance is upheld in the full amount of $623,423.

 


 ________________________________ Donald F. Garrett


 ________________________________ Norval D. (John) Settle


 ________________________________ Alexander G. Teitz Presiding
 Board