Arkansas Department of Human Services, DAB No. 998 (1988)

DEPARTMENTAL APPEALS BOARD

Department of Health and Human Services

SUBJECT:  Arkansas Department of Human
Services Docket No. 87-125
Decision No. 998
Audit Control No. CIN-A-06-86-60154

DATE: December 6, 1988

DECISION

The Arkansas Department of Human Services (State) appealed a
determination by the Health Care Financing Administration (HCFA or
Agency) disallowing $2,645,491 in federal financial participation (FFP)
claimed under the  Medicaid program for payments to the Benton Services
Center (Benton), which included a nursing home certified as both an
intermediate care facility (ICF) and a skilled nursing facility (SNF).
HCFA disallowed the payments for services provided between July 1, 1981
and December 31, 1985.  The disallowance was based on audit findings in
five areas: the costs of housing state prison inmates in exchange for
labor, the costs of operating a School of Psychiatric Technician Nursing
at Benton, the costs of providing fringe benefits in the form of staff
housing and meals to certain employees, the costs of services provided
by barber and beauty shops at Benton, and costs associated with two cost
allocation concerns.

Based on a series of written briefs and supporting documents submitted
by the parties, we uphold in full the Agency's disallowance of the costs
of housing state prison inmates, the costs of providing fringe benefits,
the costs of barber and beauty shops, and costs relating to the
overallocation of two items.  We remand the portion of the disallowance
for the nursing school costs for calculation of the value of services
performed by student nurses at the nursing home.  We explore each of
these five issues in turn below.

The Housing of Prison Inmates in Exchange for Labor

Under an interagency agreement between the State Department of Human
Services and the State Department of Corrections, the Benton facility
provided room and board to State prison inmates in exchange for labor
services to the facility, such as dietary services, maintenance, and
housekeeping.  Neither the Department of Corrections nor the inmates
received any actual compensation for the work of the inmates.  Instead,
the State allocated part of the costs associated with housing the
inmates to the Medicaid program.  HCFA disallowed $920,622 in FFP which
the State claimed on this basis.

As explained below, we uphold the disallowance of the costs of housing
state prison inmates.  While the State's Medicaid program may have
received some benefit from the services performed by the inmates, the
State Medicaid plan did not provide for the allowability of these costs
and, moreover, HCFA reasonably determined that their housing was a
general expense required to carry out an overall responsibility of the
State government.  Such costs are generally unallowable under the cost
principles in Office of Management and Budget (OMB) Circular A-87.

The State argued in effect that the services provided by the inmates
were necessary for the care of patients and thus that the Medicaid
program received a benefit from the arrangement for which the federal
government should provide a matching share.  State's Opening Brief, p.
2.  The State also maintained that, unless the Agency were to reimburse
for the costs of housing the inmates, the Agency would be "unjustly
enriched" by the labor services. State's "Final Statement," pp. 2, 5.

Initially, the State made no attempt to measure the imputed benefit to
the Medicaid program from the use of the inmate labor, but instead
continued to rely on the alleged responsibility of the Medicaid program
to bear some undefined part of the cost to the facility from providing
room and board.  State's Opening Brief, p. 3.  As the appeal developed,
the State apparently realized that such an approach was deficient from
an accounting standpoint since it depended on the unsubstantiated
assertion that the cost of providing room and board was somehow
equivalent to the value of services provided by the inmates.  In its
final brief to the Board, the State made a rough attempt to calculate
the imputed benefit of the inmate labor by comparing the total costs
which the State charged to the Medicaid program (including both the
State and federal share) with the number of hours of labor provided to
the facility by the inmates.  Dividing the total disallowed amount of
$1,360,498 by 442,520 hours, the State arrived at an hourly rate of
$3.0744.  State's Final Statement, p. 5.  The State noted that this wage
is below a typical "minimum wage of compensation."  Id.

In reply, the Agency made no effort to dispute this calculation, but
instead continued to maintain its general argument that such costs in
principle were unallowable, since they were not reasonable and necessary
to the Medicaid program and constituted a general expense necessary to
carry out an overall State government responsibility.  Whether or not
the State's calculation of an imputed benefit is correct, the Agency
maintains that such costs are unallowable.

The Agency relied for its position upon the following prohibition in OMB
Circular A-87, the cost principles applicable to grants with State and
local governments:

     To be allowable under a grant program, costs must . . . be
     necessary and reasonable for proper and efficient administration of
     the grant programs, be allocable thereto under these principles,
     and except as provided herein, not be a general expense required to
     carry out the overall responsibilities of State . . . governments."

OMB Circular A-87, Att. A, section C.1.a. (emphasis added).  See
Agency's Opening Brief, pp. 3-5..The State, by roughly calculating the
imputed wages "earned" by the inmates for their services, apparently
sought to address the Agency's argument that the State had not
demonstrated that the costs claimed were "necessary and reasonable."
However, this does not address the separate concern that these costs
were a general expense required to carry out an overall responsibility
of the State government, i.e., housing its prison population.  On a
government-wide basis, the cited OMB rule effectively precludes payment
of what might well be allowable costs, if those costs otherwise would be
borne generally by the state in the absence of the Medicaid (or other
unrelated federal) program.  This is a common-sense policy which avoids
subsidization of regular state obligations with federal dollars when a
state program coincidentally overlaps a specific federal program.  A
state's penal system appears to be a fine example for application of the
OMB rule:  while using prisoners in nursing homes may be a good thing to
do, the practice cannot result in Medicaid subsidization of state penal
system costs.

Even if there was a benefit to the Medicaid program, the point remains
that the State would need to have borne the cost of housing the inmates
whether or not the prisoners were used to provide services to the
nursing home.  By effectively charging the federal government for part
of these costs, the State would be passing on to the Medicaid program
the costs of the State's penal system--just the kind of approach
Circular A-87 prohibits.

The State was unable to dispute the fact that the claimed costs were
part of the general expense of incarcerating prisoners, nor did the
State allege that the allowability of these costs was supported by any
provision of its State plan.  Nonetheless, the State continued to
maintain that:

     [i]t is true that if [Benton] had not provided room and board, the
     Department of Corrections would have had to [have] obtained that
     service elsewhere, but it is equally true that if the Department of
     Corrections had not provided inmate labor for use at [Benton], the
     [nursing home] would have had to [have] obtained the labor
     elsewhere.

State's Opening Brief, p. 4.  The obvious response to this observation
by the State is that it does not address the clear prohibition in
Circular A-87 against reimbursing costs which are a general expense
necessary to carry out overall State responsibilities.  While the State
apparently meant that the present case should constitute an exception to
the general preclusion of the allowability of general government
expenses, the State provided no basis for such an exception.  Whether it
might be true that the State would need to have "obtained the labor
elsewhere" (which the State never in fact established), the State's
charging the federal government for the unavoidable and basic local
expense of housing its prison inmates would be a windfall to the State's
penal system and is a cost which the federal government clearly should
not have to bear.  To adopt the State's approach arguably would render
the prohibition in Circular A-87 a nullity, which we cannot do, and, in
any event, the State plan apparently did not provide for this particular
reimbursement scheme.

The Board has previously upheld Agency disallowances of costs which it
found were general expenses of the State government.  For instance, in
Pennsylvania Department of Public Welfare, DAB No. 398 (1983), the Board
found that welfare fraud prosecution costs incurred by local district
attorneys were unallowable costs to the Title IV-A (Aid to Families with
Dependent Children) program, since they were general government expenses
that were a basic responsibility of the district attorney, even if the
federal program may have incurred some incidental benefit from the
district attorney's exercise of his duties.

In the one appeal in which the Board upheld the State's argument that
certain claimed costs were not prohibited by the cost principle
concerning general government expenses, there were two factors
identified by the Board which distinguished the situation of that case.
In Oregon Department of Human Resources, DAB No. 493 (1983), Request for
Reconsideration denied (1984), the Board found that the State could
charge to the child support enforcement program (funded under Title IV-D
of the Social Security Act) the costs of jailing prisoners found to be
in contempt of court for disobeying child support orders.

The Board noted two important factors in the Oregon appeal which are not
present in this appeal by Arkansas:  the costs in question would not
have been incurred "but for" the existence of the child support
enforcement program, and a federal regulation specifically authorized
the payment of FFP in the circumstances of that case.  Oregon, pp. 9, 2.
In the present appeal, by contrast, the State relied upon no regulation
or other written directive that might have authorized the charging to
the federal program for the costs of housing prison inmates, nor do the
circumstances here provide any indication that the housing costs were in
any way additional costs that were specifically incurred because of the
existence of the federal program.

On the basis of the foregoing, we conclude that HCFA reasonably
determined that the costs of housing State prison inmates were
unallowable.

Costs of Operating the School of Psychiatric Technician Nursing

The State operated a nursing school at the Benton facility, the "School
of Psychiatric Technician Nursing,"  which provided students a clinical
experience at the nursing home.  The audit report noted that the
school's course curriculum required that there be two hours of
laboratory practice, including patient care, to each hour of classroom
time for major courses.  Audit report, p. 6.  During the audit period, a
part of the operating costs of the school were charged to the Medicaid
program, including stipends to the student nurses, instructor salaries,
and general administration costs, such as depreciation, fire and
security, plant operation, and housekeeping.  Id.  Although the
disallowance covered the entire audit period of July 1, 1981 through
December 31, 1985, the State increased the allocation of costs to the
school and to the Medicaid program after July 1, 1984 by allowing for
the reimbursement of classroom time which had previously not been
allocated to Medicaid.  The Agency disallowed $700,778 FFP for costs
charged to Medicaid before the closing of the school on July 26, 1985.

As explained below, we have determined to remand this part of the
disallowance for the parties to determine the amount which is equivalent
to the value of the patient care services provided by the student
nurses.  We do so because, unlike the case of penal system costs
discussed above, here the record does not show that the costs involved
were reasonably subject to the prohibition on general governmental
expenditures.  On the other hand, the record as it presently stands also
does not justify finding that the State is entitled to the amount
claimed.

The State's rationale for allowing the nursing school costs was that the
care provided by the nursing students as part of their training was
"essential" to patients, and that if the services had instead been
provided by "any other personnel," their costs would not have been
questioned.  State's Opening Brief, p. 5.  The State argued that its
State plan supported the claiming of these costs, since the plan
provided that "allowable and reasonable nursing staff costs will be
included as allowable cost."  State's Ex. C.  According to the audit
report, each student was initially assigned one or two patients "for
total care including bathing, feeding, dressing, etc."  The report noted
that, if students progressed satisfactorily, they gave medications to
patients or performed catheterization.  Audit report, p. 6.

The Agency disallowed the nursing school costs charged to Medicaid on a
similar basis as the disallowance of the costs of housing state prison
inmates, i.e., that they were neither necessary nor reasonable and were
a general expense required to carry out the overall responsibilities of
state government, citing OMB Circular A-87, Attachment A, section C.1.a.

We conclude that the Agency's argument that the nursing school costs
were a general expense required to carry out an overall State government
responsibility is not supported by the record here and, in the facts of
this case, is an unreasonable reading of the OMB Circular.  The audit
report itself did not cite this prohibition as a basis for the
disallowance.  Audit report, pp. 6-7.  The Agency in its briefing merely
made the conclusory remark that the training of student nurses "at a
State-owned and operated school of nursing is a responsibility the State
has undertaken and, once undertaken, is a 'general expense required to
carry out the overall responsibilities of State . . . government.'"
Agency's Reply Brief, p. 5.  However, merely because an activity was
being performed by the State clearly does not per se make it an overall
responsibility of state government.  The Agency did not allege or
present evidence to the effect that nurses in Arkansas or elsewhere
generally are trained only at publicly funded schools, or that such
State-level training is required to carry out overall state government.

The Agency's approach would render unallowable any activity merely
because it coincidently arose from some state source, obviously an
overbroad reading of the OMB Circular provision.  The Circular prohibits
general expenses required to carry out the overall responsibilities of
state government.  Penal system costs fall clearly within this
prohibition, but -- absent an agency rule so specifying -- otherwise
allowable costs associated with student nurses who just happen to be in
a public, rather than private, school do not.

However, as to the reasonableness of the amount of costs claimed, we
agree with the Agency that the full amount initially claimed by the
State was not supported by the record.  The Agency calculated that,
while 18 percent of the students' time was devoted to patient care, as
much as 65 percent of nursing school costs were allocated to the nursing
home.  Audit report, p. 8.  Indeed, the State itself initially appeared
to have no response to the Agency's position that the State had failed
to demonstrate the reasonableness of the costs being charged to the
program.  As the appeal progressed, the State seemed to acknowledge the
Agency's argument concerning the reasonableness of the full amount of
claimed costs, by abandoning its initial position and instead
maintaining that it was entitled to some "setoff" of the amount of the
disallowance to reflect the value of the services which the student
nurses performed.  State's "Final Statement," pp. 6, 12.

The State proposed a rough methodology for calculating such a setoff,
noting that the patient care provided by the student nurses was
equivalent to the care provided by a "Mental Health Worker," compensated
at a grade 7, step 5 (apparently under some applicable standardized pay
scale), and that an estimate of the total time provided from the student
clinical experience at the nursing facility was 90,561 hours.  State's
Final Statement, p. 6.  The State requested that the Board remand the
matter to the Agency to calculate some reasonable reduction in the
disallowance on this basis.  Id., p. 12.

Without commenting on whether this specific proposal by the State for
calculating a reduction in the disallowance was reasonable, we agree
that the $700,778 disallowance should be reexamined to determine the
value of Medicaid-related services actually performed by the student
nurses.  The Agency never disputed that the students provided a real
service to the patients in the nursing home, whose value would seem to
be easily calculated on some equivalence basis.

The Agency submitted two reasons for rejecting the State's proposal to
reduce the disallowance on this basis.  First, the Agency argued that
the State had not demonstrated that it was less costly to use the
student nurses to supply care than to use nurses on the "open market."
Second, the Agency argued that the State did not demonstrate that the
number of hours devoted to patient care by the students was at all based
on need, but that it was instead rigidly established by the nursing
school curriculum.  Agency's Reply Brief, p. 7.

As to the Agency's first argument, we agree, and the record does not
indicate that the State contended that a reduction of the disallowance
should be calculated by regarding the student nurses as being worth the
free market value of a professional nurse's services.  The appropriate
equivalent that should be used in calculating an imputed wage for the
nurses would a matter for further discussion between the parties, but
would presumably be based on what student nurses typically earn in the
industry.

As to the Agency's reasonable concern that the hours devoted by the
student nurses were not specifically based on patient need, this is
another factor that should be addressed in calculating a reasonable
reduction.  We note that the auditors themselves reported that the
student nurses were assigned one or two patients for "total care" and
that they might eventually dispense medicine and perform
catheterizations.  Audit report, p. 6.  The Agency did not contend that
it was at all unusual or improper for a health care facility to make use
of student interns in providing patient care.

The Agency's audit report also made the point that the Benton facility
met the State's program certification standards regarding the amount of
nursing staff without considering the activities of the student nurses.
Audit report, p. 7.  However, we agree with the State that nothing in
the record here precludes the facility from receiving Medicaid
reimbursement for the use of more than only minimum staffing levels.
Audit report, p. 5.  The State explained that the availability of the
student nurses increased the quality of care and allowed Benton to "be
flexible in its staffing to provide a greater than.bare minimum nursing
personnel to provide services and attention to the patients."  State's
Opening Brief, p. 5.  Thus, we conclude that the full amount of the
disallowance should be examined to establish the value of
Medicaid-related services provided at the nursing home by student nurses
trained at the School of Psychiatric Technician Nursing.

The State will have 30 days from the date of receipt of this decision
(or such longer time as HCFA allows) to submit further information, if
any, that it wishes to submit solely related to the calculation of the
value of the nursing services in question.  HCFA should respond in
writing as promptly as reasonably possible, specifying its response to
the State's submissions and the amount of the disallowance HCFA
continues to maintain is owed.  If Arkansas disputes the redetermined
amount, it may return to the Board on that issue alone, within 30 days
after receiving HCFA's determination.  We suggest that the parties try
to resolve this by cooperation and mutual agreement if possible.

Fringe Benefit Costs

The Benton facility provided two types of fringe benefits to employees
which were disallowed by the Agency as violating the terms of the
Arkansas State plan.  The facility provided one free meal per day to
dietary employees and provided on-site housing to selected
"management-level" employees.  The Agency disallowed $469,955 FFP for
the meal costs and $119,739 FFP for the housing costs, for a total
disallowance of $589,694 FFP.  Based on our analysis below, we uphold
the disallowance of both these categories of fringe benefit costs.

The State plan provided for the period in question:

     Discriminatory fringe benefits are those fringe benefits offered to
     only certain employees of the facility, and are normally not
     allowable.

     To be allowable, fringe benefits must be offered to all full-time,
     non-probationary employees on a universal basis in accordance with
     an employee benefit policy established in writing.  Facilities
     desiring to offer select employees additional benefits due to
     special circumstances should obtain prior written approval from the
     Director, Office of Long Term Care.

Attachment 4.19-D of State Plan at p. 4-6, Agency's Ex. C.

The parties presented argument concerning whether the fringe benefits in
question were "discriminatory" under the meaning of this State plan
provision.  The Agency argued that the circumstances here met the plan's
definition of discriminatory fringe benefits because they were extended
to only a select group of employees and not on a "universal basis."
Agency's Opening Brief, pp. 10-11.

The State, on the other hand, defended the practice of providing both
types of fringe benefits as a "legitimate business decision" which, the
State argued, the State plan intended to permit.  State's Opening Brief,
p. 6.  As to the dietary employees,the State explained that these
employees were "on call during their meal time and were allowed only 20
minutes to eat."  The State further explained that the city of Benton is
ten minutes driving time from the nursing home, making it impossible for
the employees to eat and still be on call during meal time.  Id., pp.
6-7.  As to the employee housing, the State noted that the Benton
nursing home is located in a rural area and that, in order to have staff
available and on call, the facility decided it was necessary to provide
on-campus housing to administrative and medical employees, as well as
some maintenance, fire, and security employees.  See audit report, p.
11.  The State maintained that the employees who were provided the
housing were all "critical employees" who might be needed at any hour of
the day.  State's Opening Brief, p. 7..Regardless of whether there may
have been a legitimate "business" need for providing both of the types
of fringe benefits, the existence of such a need would not satisfy the
clear prohibition of the State plan against allowing these expenses
except where prior, written approval was obtained.  The State did not
dispute that the meals in question were provided to "only certain
employees of the facility" and not to "all full-time, non-probationary
employees on a universal basis."  Likewise, the State did not dispute
that the housing benefit in question here was provided only to a
discrete group of employees.  The State plan therefore compels the
conclusion that the meals and housing were "discriminatory" fringe
benefits, and, under the terms of the plan, such fringe benefits would
be allowable only if prior written approval is obtained from the
Director of the Office of Long Term Care.  The State did not argue nor
does the record indicate that the facility here made any effort to
obtain this approval.     A basic principle of Medicaid reimbursement is
that a state's claim for FFP must be in accordance with the terms of its
approved State plan.  Sections 1902(a)(13) and 1903(a) of the Act;
Tennessee Department of Health and Environment, DAB No. 950 (1988).
While generally we defer to a state's interpretation of the provisions
of its own state plan, in this case there is no ambiguity to interpret,
since the State plan itself has specifically defined what it means to be
a prohibited "discriminatory fringe benefit," and that definition
clearly encompasses the present situation.  The State argued that the
purpose of the State plan prohibition was to "preclude arbitrary
assignment of free meals and housing," apparently meaning that fringe
benefits to selected employees were not "discriminatory" if there were
some logical basis for awarding the benefits to certain employees.
State's Opening Brief, p. 6.  Nevertheless, however sensible such a
definition might seem in the abstract, the State presented absolutely no
authority for such an interpretation, which contradicts the express
terms of the plan itself.  The Agency in issuing the disallowance here
is not imposing its own definition of the word "discriminatory," nor
relying upon some more general definition of the term, but is merely
applying the definition as provided specifically in the State plan.

For these reasons, we uphold in full the Agency's disallowance of fringe
benefit costs provided to a select group of employees.

Barber and Beauty Shop Services

The Agency also disallowed $307,373 FFP for the operation of a barber
and beauty shop at Benton.  The basis for the disallowance was another
provision of the Arkansas State plan, which prohibited the allowability
of "services performed by licensed barbers or beauticians." The section
of the State plan concerning the provision of "routine services" reads,
under a column designated "Allowable Cost Items":

     Personal Services-Laundry (does not include dry cleaning).
     Shampoos, daily hair groom-shaving when performed by a Facility
     Staff Member.  (Does not include services performed by licensed
     barbers or beauticians). . . .

State plan, p. B-2, State's Ex. E.  Also, according to the audit report,
the State plan, in its listing of various non-allowable costs, included
as one entry "costs directly related to the provision of beauty and
barber services to patients." State plan, Appendix C, p. 15, cited in
audit report, p. 14.

We uphold the disallowance of barber and beauty shop costs.  While the
Agency apparently would not have questioned the allowability of the
incidental costs of haircuts performed by staff at the nursing home
(which the State plan provides to be allowable), the Agency here found
that the State operated a "barber and beauty shop" by licensed barbers
and beauticians some distance from the actual nursing home, which served
parts of the Benton facility other than only the nursing home.  We find
that the State's operation was in specific violation of the State plan's
prohibition on the allowability of costs of licensed barbers and
beauticians.  Moreover, we agree with the Agency that the services
performed at the barber and beauty shop were "over and above the
personal grooming services" normally performed by the Benton nursing
staff and that, under the State plan, their general costs were not
chargeable to the Medicaid program.  Audit report, p. 13.

At the time of the audit, there were two barbers and three beauticians
employed.  Audit report, p. 12.  According to the audit report, "The
types of services provided included haircuts, shampoos, sets, color
rinses, permanents, and other miscellaneous services." Id.  The audit
report also noted that the barber and beauty shops in question were
"located in a building several blocks away from the main buildings
housing ICF and SNF [nursing home] patients." Id.  The facility charged
to the Medicaid program the operating costs of the barber and beauty
shops, which, in addition to salaries, included depreciation of
buildings, the cost of movable equipment, and a portion of certain
administrative and general expenses.  Audit report, p. 13.

The State argued that the barber and beauty shop costs were allowable
because all the barbers and beauticians were on Benton's payroll and
thus were "facility staff members." State's Opening Brief, p. 8.  The
audit report confirmed that "no revenues were collected from patients
for services rendered." Audit report, p. 12.  The State also emphasized
in its brief that the barbers and beauticians "provide services only to
the residents of the Center."  State's Opening Brief, p. 12.

Nevertheless, the State did not dispute the Agency's explanation that
the "facility" and "Center" to which the State referred concerned more
than the nursing home itself, the only program which was apparently
eligible for Medicaid reimbursement.  The audit report noted that, while
most of the services provided by the barbers and beauticians were
provided to the nursing home, some were provided to the other programs
located on the grounds of the Benton facility, such as State programs
for the Chronic Mentally Ill and for Alcohol and Drug Abuse.  Audit
report, p. 12.

The State further maintained that the policy of using licensed barbers
and beauticians had a "business justification" which "includes such
factors as the size of the facility, the locale, the nature and degree
of services required by the patients at the Center, the security and
safety of the patients, and the continuing obligation of the Center to
adequately meet the personal needs of its patients." State's Opening
Brief, p. 8.  We do not find this rationale persuasive because none of
these factors relate to the Agency's finding that the State plan
provision in question specifically prohibited the type of costs claimed
here, where the facility was operating a full-scale barber and beauty
shop run by licensed beauticians which served customers other than only
at the Medicaid-funded nursing home.

The State also argued that its policy of providing Medicaid
reimbursement for the barber and beauty shops at Benton is supported by
a 1983 Pennsylvania trial court opinion.  The opinion held that costs of
haircutting services at a Medicaid SNF [skilled nursing facility] were
reimbursable, notwithstanding state Medicaid rules which, according to
Pennsylvania's interpretation, required that patients at SNF's pay for
all haircutting services.  In rejecting Pennsylvania's position that the
costs were not reimbursable under Medicaid, the court relied on its
finding that one condition for federal certification for SNF's is that
patients be "well groomed."  Montgomery County Geriatric and
Rehabilitation Center v. Commonwealth of Pennsylvania Department of
Public Welfare, Medicare and Medicaid Guide (CCH) para. 32,963 (Penn.
Commonwealth Court, No. 2962 C.D. 1981, June 27, 1983)  The Benton
facility was eligible to provide SNF services after March 1, 1984,
although it operated an ICF for the entire audit period of July 1, 1981
through December 31, 1985.  Audit report, p. 2.

We do not find the Montgomery County decision to be controlling here,
even for the lO-month period when Benton  operated an SNF and when the
decision might arguably  apply.  First, a local trial court opinion
(from another  jurisdiction) would not be controlling on this Board.
Moreover, the facts of that case were clearly  distinguishable from the
situation here.  In Montgomery County, the Commonwealth rule in question
contained no prohibition on the use of "licensed barbers and
beauticians," but instead  prohibited billing "patients" for "excessive
personal services" including haircuts and hair styling (which the
Commonwealth apparently argued prohibited the billing of  the Medicaid
program as well for the services).

In the present case, by contrast, the federal Agency disallowed the
costs of barber and beauty shop services based on a specific prohibition
in the State plan on the costs of "licensed barbers and beauticians."
Without this specific prohibition, the Agency might have allowed some of
the costs here.  Unlike the Pennsylvania case, the  Agency in this case
apparently objected to the excessive  cost of providing a licensed
barber and beauty shop when  the State plan prohibited reimbursement for
such a service.

In sum, we uphold the disallowance of the costs of using licensed
barbers and beauticians because of the State plan prohibition on such
costs.

Excessive Allocation of Costs

The Agency disallowed $127,024 FFP because of the State's alleged
overallocation of two types of costs to the Medicaid program for
activities at the Benton facility.  The State presented no argument why
these disallowances were improper, other than to note in its response to
the audit report that "a general review of the allocation procedures is
being conducted, and [the State agency] is not in a position to agree or
disagree with the audit  findings." Audit report, p. 16.  We therefore
uphold without further discussion the Agency's disallowance for the
overallocation of these costs.

Conclusion

Based on the foregoing, we uphold in full the Agency's disallowance of
$1,994,713 FFP for the costs of housing state prison inmates, the costs
of providing fringe benefits to certain employees, the costs of barber
and beauty shops, and costs associated with the two cost allocation
issues.  We remand the $700,778 disallowance of nursing school costs, in
accordance with the schedule and procedures on page 10 above.

 

     Judith A. Ballard


     Donald F. Garrett


     Norval D. (John) Settle
     Presiding Board