GAB Decision 372
December 30, 1982 West Virginia Department of Welfare; Docket Nos.
82-75-WV-HC; 82-150, 82-185 85-207 Garrett, Donald; Settle, Norval
Ford, Cecilia
The West Virginia Department of Welfare (State) appealed four
disallowances by the Health Care Financing Administration (Agency) for
claims for 75% federal financial participation (FFP) in salary costs for
certain social workers who the State contended were skilled professional
medical personnel (SPMP). The Agency disallowed the difference between
the personnel costs claimed at the rate of 75% FFP allowable for SPMP
and the 50% rate generally allowable for administrative expenditures
under Title XIX of the Social Security Act. All four disallowances
involve the same substantive issues but are for different quarters:
Docket No. 82-75 involves $288,820 for the second, third, and fourth
quarters of FY 1981; Docket No. 82-150 involves $77,595 for the first
quarter of FY 1982; Docket No. 82-185 involves $87,124 for the second
quarter of FY 1982; and Docket No. 82-207 involves $85,564 for the
third quarter of FY 1982.
Based on the records in these appeals, which include the transcript
of a telephone conference, we overturn the disallowances. In reaching
this conclusion, we considered the Agency's arguments as to (1) whether
the functions performed by the social service workers are skilled
medical functions and (2) whether the workers are qualified as SPMP.
The regulations and policy guidances classify medical social workers as
SPMP. The facts show that the personnel in question were either medical
social workers or SPMP supporting staff which are eligible for 75% FFP.
The Agency was unable to substantially rebut the clear evidence by the
State that the personnel qualified for the higher funding level.
Applicable Law, Regulations, and Guidelines
Section 1903(a) of the Social Security Act provides for payment of:
(2) . . . 75 per centum 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 . . . . (2) (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. /1/
Agency implementing regulations, 42 CFR 432.50(b)(1) and 433.15(b)(
5) (1980), provide 75% of FFP for skilled professional medical personnel
and supporting staff. Sections 432.50(b)(6) and 433.15(b)(6) implement
the 50% matching provision generally applicable to FFP claims for costs
of administration. Section 432.50(c)(1) provides that rates of FFP
higher than 50% "are applicable only to those portions of the
individual's working time that are devoted to the kinds of positions or
duties that qualify for those rates."
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.
(emphasis added)
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 Action Transmittal describes
Part 2-41-20 as an "(implementation) and interpretation of the
regulation on Federal financial participation in State expenditures for
staffing of the medical assistance program." 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 (3) 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 administration 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. (4) As a
class, these functions require knowledge and skills gained from
professional training in a health service 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. . . .
6. Other Skilled Professional Medical Personnel - 75 percent FFP.
Staff includes personnel such as physicians, dentists, pharmacists,
hospital administrators, medical economists, medical and psychiatric
social workers, and registered nurses who are responsible for activities
such as: providing liaison on professional medical matters, medical
services program development, medical care assessments, and research and
evaluation concerning all aspects of the delivery and economics of
medical services. Included would be members of medical review and
independent professional review teams.
(emphasis added)
Section 2-41-20(B)(2)(b) of the Manual provides that the official
position descriptions are the "basis substantiation for a position's
professional medical status." This section also provides for
consideration (5) of "(job) announcements emphasizing requirements at or
above the college level in medical care and medical care
administration." Further, its listing in an "appropriate medical
classification" in a dictionary or handbook of occupational titles is a
secondary indicator that a position is a skilled medical position.
Functions of Personnel
The State claimed FFP at 75% for social service workers in Department
of Welfare area offices. Under West Virginia Civil Services Commission
position descriptions, these people were classified as Social Service
Workers I-IV. The position descriptions, which were used statewide for
all social service workers, include typical social work casework
functions, with responsibilities increasing as the positions move from I
through IV. (Appeal File, Document 4) The position descriptions are
vary broad and general, and while SPMP might be subsumed under these
categories, the descriptions alone do not show that the people in
question were SPMP, as the State agreed. (Appeal brief, p. 3)
All social service personnel in the State were required to submit a
Report on Service Activity (ROSA) (a document made part of the State's
Cost Allocation Plan) breaking down the time spent every working day by
client, funding category, type of service, and time involved in
providing the service. There is no dispute that all the costs in issue
here were properly charged to Title XIX and were related to ROSA
categories 80 and 81 /2,/, which state:
80 Long Term Care Medical Services
Health-related services to Medicaid patients in long term care
facilities, including Skilled Nursing Facilities, Intermediate Care
Facilities, Home Health Care, and Medical Model Day Care.
(1) Through preadmission assessment to include activities related to
obtaining information required to determine the client's need for long
term care;
(2) Identification of health care related problems;
(3) Social worker activity related to establishing and updating a
plan of care for the patient during his stay in a long term care
facility; and (6) (4) Participation in independent professional
reviews, medical reviews and utilization reviews.
81 Medical Related Services
These are activities which assist Medicaid eligible individuals to
attain and maintain a favorable condition of health by assisting them in
identifying and understanding their health needs and securing and
utilizing necessary treatment and maintenance services. This service
includes securing necessary health services and integral transportation,
planning with the family for carrying out medical recommendations,
maintaining liaison with health providers, assisting AFDC children in
the utilization of Medicaid services and the EPSDT Program, assistance
in obtaining WIN medical examinations, WIN remedial Medical or Dental
services and preparation of special medical requests.
(Appeal File, Document 2, p. 10)
In the telephone conference (Transcript, pp. 10-16) and subsequent
documents the State elaborated on these descriptions. As part of their
80 functions, the workers fill in "Initial Social Evaluation" forms,
which assess the clients' "functional capacity" (ambulation, mental
condition, eating, bowel/bladder control, medication), daily living
functioning, individual characteristics, personal habits, special
disabilities (e.g., deafness, speech impairment, deformities), and
informal support systems. The worker makes an overall "diagnosis"
and
assesses the type of care and services needed, recommends an appropriate
"social service plan," and states why. The reports are sent to the
State Long Term Care Unit where they must be approved by the appropriate
physician or nurse in that unit. /3/ The State has asserted that the
State office always accepts the evaluations submitted by the social
workers. "No one but the social worker is able to assess the home and
community environment; the state office never second-guesses these
sorts of professional judgments." (State's November 1, 1982 letter, p.
1)
The personnel in question also participate in on-site reviews of
facilities to aid in the evaluation of activity plans and social service
activities.
(7) As part of their 81 functions, the social workers identify and
refer Medicaid recipients who are in need of remedial and rehabilitative
services such as braces, hearing aids, dental care, and special drug
needs. The workers gather and evaluate medical information and sent it
to the central office for approval. The workers also locate appropriate
providers. According to the Director of the Division of Medical Care,
"they do the leg work basically out in the area for our central office
staff." (Transcript, p. 15) The Director emphasized that in these
situations, the social service workers do not make any medical
judgments; they gather information with supervision on a case-by-case
basis by the nursing staff in the central office. (Transcript, p. 16)
The State has also provided copies of more informal "social
summaries" and memoranda prepared by social service workers which also
describe and analyze patients' current medical condition in light of the
social environment, discuss and evaluate care alternatives, and make
recommendations.(Attachments to the State's October 1, 1982 letter)
It appears that, depending on the area office to which a social
service worker was assigned, that worker's caseload could be made up
primarily of 80 and 81 work or virtually no 80 and 81 work.
(Transcript, pp. 4, 8). Indeed, in 1982, only 9.53% of social service
workers' time was spent on 80 and 81 functions. (Transcript, p. 8)
It has been the Agency's position throughout the appeals that while
the 80 and 81 functions might in certain circumstances be judged skilled
medical activities, the functions as actually performed are merely
administrative, because, based on guidelines sent from the central
office, the social service workers merely gathered raw data to be sent
on to the medical professionals in the central office who made the
medical judgments. (See, e.g., Transcript, p. 17)
During the appeal, the Board raised the question of whether these
workers, when they perform 80 and 81 functions, could be considered to
be medical social workers, a category which is specifically included in
the definition of SPMP at 42 CFR 432.2. The Agency asserted that under
its definition of a medical social worker (devised by the Agency's
attorney and a program official for the purpose of responding to a Board
question during the telephone conference (Transcript, p. 25)), these
people are not medical social workers because they perform
administrative tasks. The definition propounded by the Agency's
attorney is:
A medical social worker is a person who has specific professional
training in the health or allied . . . scientific field as defined in
the . . . Manual, (8) and it would be a person who's involved with
assessing the needs of individuals for specific medical care. Such an
individual in view of their medical training would be capable of and
would make medical judgments.
(Transcript, p. 19)
The Agency's main contention was that in order to be a SPMP the
social service worker had to render medical judgments as to the need for
medical care (see, e.g., Transcript, p. 24). As the State noted,
however, in certain instances, such a medical judgment would be
impossible for a social service worker to render. For example, a social
service worker could not diagnose a medical problem and decide that an
injection of some sort or medication of some type should be
administered. Such actions would constitute the unlicensed practice of
medicine and would be illegal. Since this definition contains a
seemingly impossible requirement for a medical social worker to meet, we
decline to adopt it.
Another "definition" of medical social worker put forth by the Agency
program official (Transcript, p. 25) describes exactly what the social
service workers actually do:
. . .We have simply concluded that a medical social worker is one who
had social work background as far as education is concerned. But also
would have some knowledge or education in the area of assessing need and
making final decisions as to what's available and providing those
services to a recipient.
The social service workers in the State evaluate what assistance is
available, both inside and outside the home, and then assist in making
it available to the patient where appropriate. In addition, they make
professional judgments as to the appropriateness of these services,
based upon the physical, mental, and emotional condition of both the
patient and family. /4/
Neither the regulations nor the Medical Assistance Manual defines the
term "medical social worker" even though they specifically mention
a
medical social worker as a SPMP. Medical social workers are included in
the Medical Assistance Manual at section 2-41-20 C.6 as "other" SPMP.
In addition, medical care assessments and membership on medical and
professional review teams, which are duties of these social service
workers, are specifically included in this section as illustrative of
the activities of "other" SPMP.
(9) The Medical Assistance Manual also mentions dictionaries of
occupational titles as something to be reviewed in determining whether
or not a particular job is a skilled professional medical function. The
Agency has provided such an expert from the Dictionary of Occupational
Titles. Section 195.107-30 of a portion of the Dictionary entitled
"Occupations in Social and Welfare Work" (Attachment to Agency's October
27, 1982 letter) contains this definition of medical social worker:
* Aids patients and their families with personal and enviromental
difficulties which predispose illness or interfere with obtaining
maximum benefits from medical care. Works in close collaboration with
medical doctor and other members of health team to further their
understanding of significant social and emotional factors underlying
patient's health problem. Helps patient and family through individual
or group conference, to understand, accept, and follow medical
recommendations and provides service planned to restore patient to
optimum social and health adjustment within patient's capacity.
Utilizes resources, such as family and community agencies to assist
patient to resume life in community or to learn to live within patient's
disability. Participates in planning for improving health services by
interpreting social factors pertinent to development of program.
Provides general direction and supervision to workers engaged in clinic
home service program activities. Employed in general hospitals,
clinics, rehabilitation centers, or related health programs. May be
employed as consultant in other agencies. Usually required to have
knowledge and skill in casework methods acquired through degree program
at school of social work.
This description of a medical social worker's duties fits almost
exactly the work done by the individuals in question, including
collaboration with doctors and other members of a health team. The
Agency argued that the Dictionary's description was not applicable since
the statement about where the workers are employed does not conform to
the State's social service worker placement. This distinction is
insignificant and has no bearing on a determination that the functions
performed are those of a SPMP.
According to the Medical Assistance Manual (see p. 2 of this
decision), the function of a position is the principal basis for
determining eligibility for 75% FFP. In addition, as the State pointed
out in its November 1, 1982 letter (p. 2), given that the regulations
and the Medical Assistance Manual specifically mention a medical social
worker as a SPMP, the placement distinction becomes irrelevant in light
of Medical Assistance Manual Section (10)2-41-20(g)(1)(a), which says
that a SPMP "must be an employee of the public agency at the State or
local level," in this case an employee of the State's Department of
Welfare.
For the reasons stated above, we conclude that the functions here are
those of SPMP.
Qualifications of Personnel
There are two aspects of the issue of SPMP qualifications; and
whether positions in the abstract require the "correct" qualifications;
and whether the people actually filling the positions are suitably
qualified.
The Agency's position as to whether the positions require the
necessary training and whether the social service workers'
qualifications are insufficient for them to be categorized as SPMP has
never been fully articulated and has changed during the course of the
appeal.
A. Social Service Worker I Positions
In the telephone conference, the Agency asserted that the Social
Worker I through IV positions were professional positions. (Transcript,
p. 19) Yet in its final submission, the Agency asserted that since the
Social Service Worker I position does not require a four-year college
degree, the workers in that category are not professionals. /5/ As
discussed below, we find that the Agency's own analysis leads to the
conclusion that the Social Service Worker I position would qualify for
75% FFP as supporting staff for SPMP9
Both 42 CFR 432.50(b)(1) and 433.15(b)(5) provide for 75% FFP for the
supporting staff for SPMP. "Supporting staff" is defined in section
432.2 as "secretarial, stenographic, clerical, and other subprofessional
staff whose activities are directly necessary to the carrying out of
functions which are the responsibility of (SPMP)." "subprofessional
staff" is defined in that same section as "persons performing tasks
that
demand little or no formal education; a high school diploma; or less
than 4 years of college." (11) The job description for Social Service
Worker I states that the required training is "completion of two years
work (60 semester hours) in an accredited college or university" or the
substitution of certain casework experience on a year-for-year basis for
the required college training.
While the definition of "Professional" in the Medical Assistance
Manual (see p. 3 of the decision) does not necessarily preclude
consideration of the Social Service Worker I position as a professional
one (in that it merely says "college education or equivalent"), even
the
agency's own analysis leads to a conclusion in favor of the State.
In its October 27, 1982 submission, the Agency asserted (In
"Attachment 2") that the Social Service Worker I position is not a
professiona one. In its discussion in "Attachment 4," the Agency
asserted that all of the social service workers were supporting staff
(they work closely with the physicians and nurses in the central office
who the Agency agrees are SPMP). Thus, argued the Agency, in order to
qualify for 75% FFP, they would have to be subprofessionals. Therefore,
under the Agency's own analysis, 75% FFP would be appropriate for these
Social Service Worker I positions even if they are subprofessionals
because then they would qualify as supporting staff. We do not find it
necessary to specifically determine here whether these Social Service
Worker I positions are professional or subprofessional positions
supporting SPMP since in either case 75% reimbursement is appropriate.
B. Social Service Workers' Actual Training
In its final statements in the telephone conference, the Agency
argued conclusorily that there was no "evidence in this case that these
professionals have the necessary educational and professional training
that would permit them to be reimbursed as (SPMP)." (Transcript, p. 32)
The Agency has not discussed this issue in any detail.
In the telephone conference, the State indicated that the personnel
in question would not necessarily have a medical background when first
being employed by the State, but the requisite training to provide
needed services in a satisfactory manner would be furnished by the
State.
The State has also provided information as to the hiring process in
the State as it would account for a potential employee's qualifications:
First, under the West Virginia Civil Service System, job applicants
take an examination, and are ranked according to scores. Additionally,
applicants indicate the type of (12) positions in which they are
interested. When the Department of Welfare wishes to fill a position,
it is given the names of the top five applicants for such a position in
the area of the state where the job will be. The position is filled by
one of these persons following interviews of all five. If one of the
applicants possesses an educational background or work experience
applicable to the particular position, this will undoubtedly be the
person hired. However, if none possesses this, then the interviewer
selects the one felt to be the most qualified by temperament, and
training following employment is utilized to prepare this person for the
work he or she will be performing.
(State's November 1, 1982 letter, p. 1)
There is no detailed guidance on the training necessary to qualify as
SPMP. The Medical Assistance Manual only states that "as a class"
SPMP
functions require "knowledge and skills gained from professional
training in a health science or allied scientific field." There has been
no discussion by the Agency of the meaning of this section, e.g.,
whether every person must have such training; the definition of a
health science or allied field; and whether on-the-job or
pre-employment training would be sufficient to qualify an individual to
perform a skilled professional medical function.
The record does not snow and, indeed, the Agency did not allege that
these individual workers were improperly hired or incompetent to work as
medical social workers. Based on the Agency's lack of specificity and
our finding that the functions performed by the personnel in question
are skilled medical functions, we need not explore further the issue
whether the social service workers were not qualified.
Conclusions
We conclude that (1) the position of medical social worker is
included in the definition of SPMP in the regulations; (2) the position
of medical social worker is included in the Medical Assistance Manual as
SPMP; (3) the actual duties performed by the workers in these appeal
conform both to one definition given by an Agency official and one in
the Dictionary of Occupational Titles of a medical social worker; (4)
another definition given by the Agency (and not found in the regulations
or the Manual) would seem to contain an impossible requirement for a
medical social worker (13) to meet; and (5) that there is no dispute
that the personnel in question were actually performing the tasks
described in 80 and 81 of ROSA. We therefore overturn the disallowances
involved in these appeals totalling $539,103. /1/ 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. /2/ As a
shorthand device, we will refer throughout the rest of this decision to
the social service workers carrying out "80 and 81 functions."
/3/ The Agency informed us that the costs of the doctors and nurses in
the Division in which the Long Term Care Unit is located were properly
reimbursed at 75% for SPMP (Transcript, pp. 18 - 19). /4/ For a
discussion of the issue of required "knowledge or education," see
pages
10-12 of this decision. /5/ In the State, the qualifications necessary
for each of the positions increase, from the completion of two
years in a college or equivalent casework, experience (Social Service
Worker I) to a masters degree in a specified field or certain specified
employment experience (Social Service Worker IV). According to the
State (Transcript, p. 7), there are more Social Service Worker II
positions in the Department of Welfare than any of the others. This
position requires graduation from college or eight years of casework
experience.
OCTOBER 22, 1983