New York State Department of Social Services, DAB No. 854 (1987)

DEPARTMENTAL GRANT APPEALS BOARD

Department of Health and Human Services

SUBJECT:  New York State Department  of Social Services

Docket No. 85-105
Decision No. 854

DATE:  March 31, 1987

DECISION

The New York State Department of Social Services (State) appealed the
disallowance by the Health Care Financing Administration (HCFA, Agency)
of $162,990,954 in federal financial participation (FFP) claimed under
title XIX (Medicaid) of the Social Security Act (Act).  The costs
claimed represented, for the most part, amounts originally paid under
the State-funded medical assistance program to individuals whom the
State later determined were eligible for Medicaid on the basis of
disability.  The costs were disallowed on the ground that, at the time
the claims were filed, there were no disability determinations for the
individuals involved.  The State subsequently made individual disability
determinations in some cases and provided the relevant documentation to
the Agency, reducing its claims for FFP to the extent that the
documentation supported a lower amount of allowable costs than had been
claimed.  The State also continued to claim FFP in expenditures in cases
for which no disability determinations were made, based on a projection
from a sample of cases for which such determinations were made.  This
also resulted in a reduction of the amount claimed since some of the
individuals in the sample were determined not to be disabled. 1/ In
disallowing the claims, however, the Agency stated that no disability
determinations made after the claims were filed were properly
considered.

As discussed in detail below, we uphold the disallowance, except to the
extent indicated on pp. 16-17 of the decision, on the ground that the
claims as originally filed were not supported by adequate documentation
and that the State's later attempts to document the claims were untimely
under section 1132 of the Act. We do not adopt our tentative finding, in
a draft decision sent to the parties, that the claims were adequately
documented, in light of facts disclosed in the parties' responses (in
written briefing and in a telephone conference call) to the draft
decision (see, in particular, pp. 7-12 below.)

Background--Requirement for Disability Determination

Under the Social Security Act and implementing regulations, a state has
a number of options with respect to classes of individuals it may cover
under its title XIX Medicaid program. In New York, pursuant to 42 CFR
435.120, recipients of Supplemental Security Income (SSI) benefits under
title XVI of the Act--available to disabled individuals with limited
income and resources--are automatically eligible for Medicaid.
Individuals who are eligible for but not in receipt of SSI are eligible
for Medicaid as well under 42 CFR 435.210.  In addition, individuals who
are determined to be disabled and who meet certain income and resource
requirements (less stringent than the SSI requirements) are eligible for
Medicaid under 42 CFR 435.324.  2/  Section 435.540 requires that in
determining whether an individual applying only for Medicaid is
disabled, "[t]he agency must use the same definition of disability as
used under SSI. . .  ."  Disability in the SSI program is defined at 20
CFR 416.905 as:

       inability to do any substantial gainful activity by reason of any
       medically determinable physical or mental impairment which can be
       expected to result in death or which has lasted or can be
       expected to last for a continuous period of not less than 12
       months.

A determination of disability for a Medicaid-only applicant must be made
by a state or local disability review team in accordance with 42 CFR
435.541.  This regulation provides in pertinent part:

            (a) . . . [T]he [Medicaid] agency must obtain a medical
       report and a social history for individuals applying for Medicaid
       on the basis of disability.  The medical report must include a
       diagnosis based on medical evidence.  The social history must
       contain enough information to enable the agency to determine
       disability.

            (b)  A physician and a social worker, qualified by
       professional training and experience, must review the medical
       report and social history and determine on behalf of the agency
       whether the individual meets the definition of disability.

                          *   *   *   *

Facts

The costs claimed in this case were incurred by the State from 1980
through 1983 and were claimed by the State as increasing adjustments on
ten separate quarterly expenditure reports (QERs). The claims for
expenditures incurred from October 1980 through September 1981
(appearing on QERs for the periods August- September 1982,
October-December 1982, January-March 1983 and April-June 1983) were
based on a State audit which sampled State public assistance recipients
who had been denied SSI benefits. The New York City Disability Review
Team found that 60% of the individuals in the sample (which consisted of
60 public assistance recipients from one New York City welfare office
who had been denied SSI in November and December 1981) were disabled.
The State assumed that the disabled public assistance recipients in the
sample would have been eligible for Medicaid since the financial
eligibility requirements for the State's public assistance program were
similar to those of the SSI program.  It then applied the 60% figure to
its medical expenditures for public assistance cases during fiscal year
1981 to calculate the disputed Medicaid claims for that year.

A second audit conducted by the State was the basis for claims for
expenditures incurred from October 1981 through March 1983 (appearing on
QERs for July-September 1983, October-December 1983, January-March 1984,
April-June 1984, July-September 1984 and October-December 1984).  That
audit sampled New York City public assistance recipients during the
years 1974-1978 who had large non-federally funded medical expenditures.
The New York City Disability Review Team found a certain percentage of
individuals at each of various expenditure levels to be disabled. The
results were used to calculate the disputed Medicaid claims for the
period beginning October 1981.

Following the submission of the claims, the State made individual
disability determinations for 5,973 individuals covered by the claims
and withdrew its claims to the extent that this documentation supported
a lesser amount than originally claimed. The State also made disability
determinations in an additional 283 cases in which expenditures less
than a certain amount were incurred during the period covered by the
last six claims and projected the results of its sample to support those
claims in part.  These disability determinations were submitted to the
Agency beginning in early 1985 and ending sometime during the pendency
of this appeal before the Board.  The disability determinations were
both made and submitted after the two-year filing deadline applicable to
the claims to which they related had passed.

The State did not explain its failure to make disability determinations
in the ordinary course of administering its program except to note that
the Social Security Administration (SSA) was responsible for making
disability determinations for SSI applicants.  The State did not
indicate the extent to which, if any, the claims in question here
included SSI applicants.  In any event, the Agency indicated that it
would be willing to reverse the disallowance to the extent that SSA was
responsible for the State's failure to document its claims with timely
disability determinations.  (See note 9 herein.)

The State originally represented that the disability determinations were
based on case records in the local social services districts for the
individuals in question which existed at the time that medical services
were rendered to them. However, in response to the draft decision issued
in this case dated November 4, 1986, which relied on this
representation, 3/ the Agency asserted that the documents on which the
disability determinations were based were not in the case records.  The
State conceded that not all such documents were in the case records and
that, after the claims were filed, State auditors obtained additional
documents from hospitals and other providers of medical services which
were necessary to make the disability determinations.  The review team
made the disability determinations based on documents selected by the
State auditors, which were accompanied by summaries prepared by the
auditors. (The State alleged that the auditors prepared the summaries in
conjunction with State social workers, but the Agency disputed this.) 4/
For purposes of this decision, the salient fact is that none of the case
records contained all of the documents necessary to the disability
determination when the claims were filed.  We need not determine whether
the case records were altogether lacking in such documents as alleged by
the Agency.

Basis for Disallowance

The Agency agreed that all Medicaid eligibility requirements were met
for the individuals covered by the claims with the exception of the
requirement that they be determined disabled.  Citing regulations
providing that FFP is available only in expenditures for eligible
individuals, the Agency argued that the State's original claims for
Medicaid expenditures based on disability determinations made in the two
audit projects described above were unallowable because the individuals
covered by the claims had not been determined to be disabled, and thus
eligible for Medicaid.  It further contended that disability
determinations made after the claims were submitted were not properly
considered because of limits established by the claiming process,
including section 1132 of the Act.  The Agency also argued that the
methodology used by the State to calculate the original claims was
statistically unreliable.

Issue Presented

Although multiple issues were raised by the disallowance, the parties
initially agreed that the preliminary issue before the Board was a
limited one:  whether the disability determination for an individual
must exist at the time that a claim for Medicaid services rendered to
that individual under title XIX is filed or may be made subsequent to
the filing of the claim.  The State later stated that the question
whether the State could properly file estimated claims was also
presently before the Board.  The simple answer to the question posed by
the parties is that there is no requirement regarding the timing of
disability determinations in the applicable statute, regulations or
guidelines.  To say that is not to resolve the case, however, since the
interplay of other applicable requirements may have the effect in this
case of precluding the consideration of disability determinations not in
existence when the claims were filed.  The Board has found in prior
decisions, discussed later, that section 1903(a)(1) of the Act, together
with certain regulatory requirements for fiscal record-keeping, requires
that fully supportive documentation exist at the time that a claim is
filed. (These authorities were also cited in the Agency's disallowance
letter in this case.)  If whatever documentation was required in the
context of this case did not exist when the State filed its claims, the
claims as originally filed would have been invalid. The next inquiry is
whether the State's later submission of disability determinations cured
its original failing or whether the submission of this documentation
more than two years after the expenditures were made was precluded by
section 1132 of the Act.  The net effect may be to bar the consideration
of disability determinations not in existence when the claims were
filed.  In our view, however, the fundamental question in this case is
whether the claims when filed were properly documented. Since we
conclude that the claims as originally filed were not properly
documented and that the disability determinations came too late under
section 1132, it is not necessary to decide whether or not the claims
were prohibited as estimates. 5/

The State argued that consideration of the nature of the documentation
which existed when the claims were filed would violate the parties'
agreement limiting the scope of the proceedings.  However, as indicated
above, we cannot give a meaningful answer to the issue as presented by
the parties without considering the nature of that documentation.
Moreover, the documentation issue was directly raised in the Board's
draft decision and in subsequent briefing and oral presentations by the
parties.

Whether the Claims Were Properly Documented

The principal argument advanced by the State on appeal was that as long
as facts which would support a disability determination existed in the
case records of the individuals covered by its claims, the disability
determinations themselves could be made at any time.  The State cited in
support of its position 42 CFR 435.913, which requires in pertinent part
that:

       [t]he [Medicaid] agency must include in the applicant's case
       record facts to support the agency's decision on his application.

It asserted that, in accordance with this provision, the disability
determinations submitted to the Agency were made based on facts in the
case records at the time the medical services were rendered, and argued
that the making of disability determinations pursuant to 42 CFR 435.541
was merely an "administrative task" which could be deferred until after
a claim was made.  (State's brief dated September 13, 1985, p. 21)

In the draft decision in this appeal issued on November 4, 1986, we
agreed with the State's position that its claims as originally filed
were adequately documented, 6/ finding that the absence of the
disability determinations was not critical since all the review teams
did in making the disability determinations "was look at--and
evaluate--these documents which were already in each case record."
(Draft decision, p. 8)  As indicated previously, however, the State
later conceded that the local social services offices did not have
sufficient information to make disability determinations at the time the
claims were filed.

On these facts, we now conclude that the claims as originally filed were
not properly documented and hence unallowable.  The authorities for this
conclusion include the general grant regulation for "Financial
Management Standards," 45 CFR 74.61, which requires proper accounting
records in subsection (b) and source documentation in (g).  General
provisions regarding maintenance and retention of records are also found
in the Medicaid regulations at 42 CFR 431.17 and 42 CFR 433.32.  In
addition, 42 CFR 435.541, quoted earlier, deals specifically with the
documentation which must support disability determinations when
disability is the basis for Medicaid eligibility.  Finally, section 1903
(a)(1) of the Act authorizes payments to reimburse states for a portion
of amounts expended "as medical assistance under the State
plan. . . ."  The Board has previously held that the general
requirements for fiscal record-keeping noted above, together with
section 1903(a)(1) of the Act, support the principle that:

       Only actual expenditures which are supported by fiscal records
       adequate to assure that claims for FFP are in accord with
       applicable Federal requirements, may be reported on the quarterly
       statement of expenditures.

New York State Department of Social Services, Decision No. 537, May 30,
1984, p. 20.  Following this principle, the Board then addressed the
issue of what documentation is needed to support a claim, noting that
the regulations require fully supportive documentation, although they
"do not require an instantly available, final compilation of the
required documentation." (Decision No. 537, p. 20)  In New York State
Department of Social Services, Decision No. 542, June 4, 1984, the Board
further stated:

       We do not mean that once the State places a figure on the QER it
       must have assembled in one location every piece of paper, every
       receipt, that supports the claim.  On the other hand, the State
       must at least know where the original documentation for the claim
       is. . . .  (p. 12, emphasis in original)

The Board reaffirms this language.  Documentation has to exist when a
claim is filed.  Clearly a state cannot file its claim at the last
possible minute, in order to be timely, and then go out and develop the
documentation constituting the very heart of the claim.  Here, the State
did just that.  After the claims were filed, the State not only made the
disability determinations but also assembled the medical reports and
social histories on which these determinations were required to be
based.  The mere existence somewhere of the documents which ultimately
would make up the medical report and social history is not in our view
sufficient.  This is so because the State did not, as Decision No. 542
requires, "know where the original documentation for the claim" was.
This is not a subjective standard; the point is that a state must have a
record-keeping system which assures that documentation supporting a
claim is regularly maintained and can be easily (although not
necessarily instantly) retrieved.  That standard was not met here.

The State acknowledged that its auditors had to sort through the records
maintained by the providers for the individuals in question to gather
the information to support the disability determinations.  There was no
medical report or social history which the auditors had merely to
retrieve; instead, they had to piece together this required
documentation from the assorted documents maintained by the providers.
Thus, at the time it filed the claims, the State likely had no idea
whether the records contained adequate information for a medical report
and social history.  In other words, there was no assurance at the time
of filing that the documentation which serves as a basis for a
disability determination even existed.  It is irrelevant whether, as the
State contended, the documents were maintained under the supervision of
the State agency as required by 42 CFR 431.17(b) although physically
located elsewhere.  Having technical control of whatever documents the
providers happened to maintain would not assure that adequate
documentation to make disability determinations existed.  Accordingly,
the claims as originally filed were unallowable.  (Those claims with
respect to which the State never made disability determinations were on
the same footing at the time of filing as the claims which were later
documented, and were thus also unallowable.)

We note, moreover, that the State auditors prepared summaries of the
documents which they selected.  These summaries were also provided to
the review team.  According to the Agency, the summaries constituted the
required social histories; the State implied that the social histories
were composed of already existing documents and that the summaries were
merely a guide to these documents.  If the review team relied on the
summaries, however, then documentation in support of the disability
determinations was impermissibly created after the claims were filed.

Effect of Section 1132 of the Act

Since the claims as originally filed were invalid consideration of the
disability determinations made after submission of the State's claims is
precluded by section 1132 of the Act.  That section prohibits payment of
a Medicaid claim not filed "within the two-year period which begins on
the first day of the calendar quarter immediately following" the
calendar quarter in which the expenditure was made unless certain
exceptions not at issue here are applicable. 7/  The claims in question
were filed by the statutory deadline, but the disability determinations
were made later.  Consideration of these later disability determinations
would render the two-year filing deadline meaningless since the State
would have more than two years to prepare and submit a valid claim.  In
this case, there was a four to five year gap between the time the
expenditures were incurred and the time the disability determinations
were made.  The State took the position that there was no limit at all
on the time it had to make disability determinations in support of its
claims.  To permit consideration of the later disability determinations
would thus indefinitely delay the resolution of the claims.  This would
be contrary to the underlying purpose of section 1132 to make it less
difficult for HSS "to plan and administer the budget for the various
Social Security Act programs. . . ."  Connecticut v.  Schweiker, 684
F.2d 979, 982 (D.C. Cir. 1982), cert. denied, 459 U.S. 1207 (1983).

This is not a decision that section 1132 requires timely documentation
of claims as well as timely filing.  Instead, we find that, by virtue of
an independent requirement for documentation, the claims as originally
filed were unallowable. Section 1132 comes into play not with respect to
the original claims, but to bar what were in effect the new claims for
the same expenditures which were made when the State furnished
disability determinations in support of the original claims. Thus, this
decision stands for the proposition that a claim which is so
inadequately documented as to be invalid when filed cannot be
resurrected after the statutory deadline has passed through creation and
assembly of necessary documentation.

Other State Arguments

                  Relationship with SSI Program

The State argued that it properly obtained records from the providers
since this is done by the Social Security Administration (SSA) in making
disability determinations for purposes of the SSI program.  However, the
question here is not whether records maintained by third parties may be
used in making a disability determination--a procedure which the Agency
acknowledged was permissible--but whether the claims were adequately
documented in view of the fact that the State acquired the documents
after the claims were filed. 8/

The State also argued more generally that since later disability
determinations are accepted where eligibility for Medicaid is based on
SSI eligibility, they should be accepted in all cases. Specifically, the
State noted that where an individual applies for Medicaid based on SSI
eligibility, the case has to be referred to SSA to make the disability
determination.  The State asserted that the regulations nevertheless
provide that FFP is available under title XIX for expenditures incurred
prior to the time the disability determination is made.  The question
here, however, is whether the disability determinations had to be made
before the claims were filed, not before the expenditures were incurred.
Moreover, the Agency indicated that in cases where disability
determinations are not made by SSA in time for a state to meet the
statutory claiming deadline, there is a basis for a good cause waiver of
the deadline. 9/  Thus, the wholesale acceptance of disability
determinations made after the State's claims were filed is not necessary
to ensure fair treatment of those cases where SSA has responsibility for
making disability determinations.

             Precedential Value of Decision No. 585

The State also argued that this case was governed by the Board's holding
in New York State Department of Social Services, Decision No. 585,
November 16, 1984.  The Board there held that the State's retroactive
claim for FFP in payments to public assistance recipients whom the State
later determined were eligible for AFDC did not violate the requirement
that there be a determination at the time of payment that the individual
to whom the payments are made meets the eligibility requirements for
AFDC.  The State relied on a statement in Decision No. 585 that a
determination of "deprivation," an essential element of AFDC
eligibility, made after payment could be considered in conjunction with
an earlier determination that the individual met all other eligibility
requirements to constitute a timely determination that the individual
was eligible for AFDC.  The State argued that, similarly, in the instant
case, the later determination of disability could be considered together
with the earlier determination that other eligibility requirements for
Medicaid were satisfied to render the claims in question allowable.

The State's reliance on Decision No. 585 is misplaced.  That decision
dealt with the issue of what determinations with respect to the
individual's eligibility must be made before the issuance of payments to
the individual in order for FFP in such payments to be allowable.  It
did not present the issue of whether FFP would be allowable absent a
determination at the time that a claim was made that all requirements
for eligibility had been satisfied.  Thus, that decision is not relevant
here.

Inconsistent Treatment of Other States

The State also asserted that the Agency had paid estimated claims for
Medicaid expenditures to the State of California and that the
disallowance in this case was therefore arbitrary and capricious.
Specifically, the State contended that Medicaid claims filed by
California for which no supporting documentation existed were paid based
on disability determinations made after the claims were filed and the
two-year filing deadline had passed.  The Agency denied that the
disability determination used to support the California claims were made
after the filing deadline had passed, asserting that they were already
existing disability determinations located by the State after the filing
deadline.

The State also contended that even if the disability determinations were
actually made by California before it filed its claims, California did
not have any record of the disability determinations when it filed the
claims, so that there was no practical difference between that situation
and the situation in New York, where no disability determinations had
been made.  The State also contended that its overall estimate of
expenditures was in fact better than California's, asserting that it was
closer to the amount ultimately claimed than was California's. In
effect, the State questioned whether it serves any purpose to prohibit
the filing of estimates without requiring that the documentation
supporting a claim be immediately available.

We conclude that there is insufficient evidence to support the State's
assertion that no documentation existed for the claims as originally
filed by California.  In response to the Board's request that the State
identify those California cases which the Agency accepted without
requiring disability determinations made before California claimed FFP
in the expenditures, the State identified only 14 cases out of a total
of 980 sampled by the Agency.  Even assuming that the Agency did not
question those 14 cases on the ground that they lacked disability
determinations, they are so few in number that it is more logical to
attribute this to oversight by the Agency than to a federal policy to
accept such claims.  Accordingly, we reject the State's argument that
the Agency's action in this case was arbitrary and capricious. 10/
                      Effect of HB-IV-5521

The State also argued that special procedures issued in 1954 for
transferring certain disabled individuals from state assistance to a new
program under title XIV of the Act made it clear that there was no
requirement for a disability determination prior to the filing of a
claim.  These procedures, set forth at section 5521 of Part IV of the
Handbook of Public Assistance Administration (HB-IV-5521), permitted
such individuals to be transferred to the rolls of the new title XIV
program based on medical evidence in the case record without the review
of the record normally required to determine eligibility under title
XIV.  However, here the State admitted that the case record did not
contain all the information on which the disability determination was
required to be based.  Moreover, our conclusion here regarding the
allowability of the claims is ultimately based on the two-year filing
deadline in section 1132 of the Act. Since this provision was not
enacted until 1980 (Pub. L. 96-272), the procedure described in
HB-IV-5521, which would have been effective only when title XIV was
first implemented, does not reflect the impact of section 1132, and
accordingly, has no bearing on this case.

           Compliance with Other Medicaid Requirements

The State argued that the disability determination itself was not
important since, under 42 CFR 435.1002(b), Medicaid covers expenditures
incurred from the date of the onset of the disability, not from when the
disability determination is made. This does not diminish the
significance of the disability determination, however.  The availability
of Medicaid coverage from the date of onset does not mean that Medicaid
payments must begin when an individual becomes disabled but rather that
expenditures incurred from that time on must be paid on a retroactive
basis once a disability determination is made.

The State also argued that it should be free to reclassify cases as
eligible for Medicaid based on its own disability determinations
whenever made since it complied with 42 CFR 435.911 in granting
assistance under its own program to the individuals included in the
claims.  That regulation requires that the Medicaid agency determine
eligibility within sixty days of the date of an application for Medicaid
on the basis of disability unless there are "unusual circumstances."
However, even if the State complied with this provision, that does not
render moot the objection to the claims as improperly documented.

Claims Not Covered by the Disallowance

The State alleged that some of its claims, primarily claims which it
described as based on the United Harlem Drug Fighter's (UHDF) Audit,
were related to individuals eligible for Medicaid on some basis other
than disability.  It withdrew from appeal the amount claimed based on
the UHDF Audit.  (State's letter dated June 13, 1986, p. 1)  It
maintained its appeal with respect to a small portion of the last six of
ten quarterly claims covered by the disallowance, which it contended
involved individuals whom it had identified during a different audit as
eligible for Medicaid based on their receipt of title IV-A (AFDC)
payments.  The Agency asserted, however, that the audit on which the
State's claims were based was intended to identify only individuals
eligible for Medicaid based on disability.  It contended that
documentation involving individuals eligible for Medicaid based on their
receipt of AFDC payments thus did not relate to the claims as originally
filed and could not be used to support the claims.

We agree with the Agency.  As indicated earlier in this decision, the
amount claimed by the State was based on a projection of the percentage
of disabled individuals in a sample of public assistance recipients.
Thus, the claims could not logically have covered other than disabled
individuals, although the State may also have identified individuals
within the population sampled who were eligible for Medicaid on other
bases, such as their receipt of AFDC payments.  Accordingly, the
documentation in question may not be used to support the claims.

However, the State's claims may have included expenditures for a small
number of individuals who were determined to be disabled before the
claims were filed.  Specifically, it is possible that some or all of the
36 (60% of 60) individuals sampled in the State's first audit who were
determined to be disabled may have received payments included in the
claims considered here, since the claims based on this audit covered
expenditures incurred from October 1981 through March 1983 and the
individuals in question were denied SSI in November and December 1981.
If this is the case, the disallowance should be reduced by the amount of
expenditures claimed for these individuals.  11/ Therefore, as regards
this issue only, New York may, within thirty days after it receives this
decision (or within such longer period as the Agency allows) submit
evidence or argument in support of a reduction of the disallowance.  If
the State makes no such submission, this portion of the disallowance
shall be deemed upheld as well.  If the State disputes the Agency's
determination on this issue, it may return to the Board within 30 days
after receiving the Agency's determination.

Conclusion

For the foregoing reasons, we conclude that the State's claims as
originally filed were unallowable since, when the claims were filed,
there was no assurance that adequate documentation existed to make the
disability determinations required by 42 CFR 435.541. We further
conclude that consideration of the disability determinations made by the
State after the claims were filed was precluded by section 1132 of the
Act.

Accordingly, we sustain the Agency's disallowance (except as discussed
above for individuals for whom disability determinations were made on
time).  In view of our conclusion, no further proceedings are necessary
to address the issue whether the methodology used to develop the claims
was statistically reliable, a substantial issue which awaited
development had we determined that documentation was adequate and
timely.  It is also unnecessary to determine whether the individual
disability determinations submitted after the claims were filed were
made in accordance with the requirements of 42 CFR 435.541.


                            _____________________________ Donald F.
                            Garrett


                            _____________________________ Alexander G.
                            Teitz


                            _____________________________ Norval D.
                            (John) Settle Presiding Board Member


1.     The Agency alleged that the State had not submitted documentation
fully representing the reduced amounts claimed by the State.  However,
it is not necessary to resolve this matter for purposes of this decision
since we hold that the State did not submit a valid claim and that
documentation submitted after the claim was not properly considered.

2.     A state is also required to provide Medicaid to individuals
receiving AFDC.  42 CFR 435.110.  This requirement is pertinent to the
discussion in the section headed "Claims Not Covered by the
Disallowance."

3.     The Board relied on the following language in the State's
discussion of the requirements for case documentation of 42 CFR 435.913,
on pages 20-21 of its opening brief:

     This regulation requires case documentation to include facts to
     support a disability decision, not the total eligibility decision
     of whether to grant benefits.  It is not a requirement that
     disability determinations (which are conclusions drawn from facts)
     be part of the individual case record.  In the instant case the
     recipients case record contained the required facts at the time the
     State expenditure of funds occurred.  However the administrative
     task of reviewing those facts and drawing conclusions was done
     subsequent to the submission of the claim. . . . (emphasis in
     original)

4.     The Agency alleged that the documents thus assembled were not
reviewed by a team which included a social worker, as required by 42 CFR
435.541(b).  This goes to the adequacy of the disability determinations,
an issue which need not be resolved in view of our conclusion that the
disability determinations may not be used to support the claims.

5.     As indicated in the discussion of the basis for the disallowance,
the Agency believed that payment of the claims would violate the
regulation providing that FFP was available only in "expenditures for
services provided to recipients who were eligible for Medicaid."  42 CFR
435.1002(b).  Since we find that the claims were properly disallowed on
other grounds, we need not reach this issue.

6.     This is not to say that we agreed then or agree now with the
State's characterization of the making of a disability determination as
an administrative task.  Section 435.541 requires that both a medical
report and a social history be reviewed by a physician and a social
worker to determine whether an individual meets the definition of
disability.  A process requiring the judgment of professionals in two
fields is not properly characterized as a mere administrative task.  The
State's view of the disability determination process is also
inconsistent with how that process has been viewed by the courts. In
Featherston v. Stanton, 626 F.2d 591 (7th Cir. 1980), the Seventh
Circuit characterized the physician and social worker responsible for
making of disability determinations pursuant to section 435.541 as
"adjudicators."  (Id., at 594)  In Rousseau v.  Bordeleau, 624 F. Supp.
355 (D. R.I. 1985), the District Court noted the parties' agreement that
"due to the complexity of the matters involved and the subjective
element involved in resolving close questions, two different agencies
applying the same standards [for determining disability] may reach
different results."  (Id., at 357)  The courts have thus recognized that
the disability determination process involves the making of a
substantive decision.

Accordingly, it is arguable that, absent the disability determinations,
the claims were unallowable because such determinations do not merely
reflect facts in the case record but are themselves primary
documentation of Medicaid eligibility.  We need not decide this,
however, since the State not only made the disability determinations
after the claims were filed, but also created at a later date parts of
the case record on which the disability determination for each
individual covered by the claims was required to be based.

7.     During the proceedings before the Board in this appeal, the State
submitted a written request to the Agency for a waiver pursuant to 45
CFR 95.19(d).  That provision states that the Secretary may waive the
two-year time limit for filing claims for expenditures where the
Secretary decides that there was good cause for the state's not filing a
claim within the time limit. The Board denied the State's request that
proceedings before the Board be stayed until the Agency ruled on the
State's request for a waiver.  (Ruling on Request to Stay Proceedings,
dated April 28, 1986)  As of this date, the waiver request is pending.

8.     A related argument made by the State was that since the Agency
may disallow a claim based on third-party records, it was appropriate
for the State to use such records to support its claims.  As noted
above, however, the Agency did not challenge the appropriateness of
using such records but only the timing.

9.     The State also noted that FFP was available in those cases where
it was determined pursuant to an administrative appeal or in court that
SSA had erroneously found an individual not disabled or no longer
disabled too late to permit a state to file a timely claim.  The Agency
indicated that a waiver of the filing deadline would be warranted under
45 CFR 95.19 in such cases as well.

10.     Even if substantially different treatment of the California
claims had been proven, the result in this case could well be the same.
The issue then would relate to whether a disallowance should be
overturned in one HHS region because of an approach used in another
region which arguably was inconsistent with law or regulation. This
Board has previously held that where there is a violation of a
requirement which is unambiguous on the facts of the case, any failure
by the Agency to enforce this requirement in another case is irrelevant.
Vermont Department of Social and Rehabilitation Services, Decision No.
546, June 27, 1984.

11.     However, because the Agency never reviewed the adequacy of the
disability determinations, the Agency would not be precluded from taking
a new disallowance if it subsequently determined that the disability
determinations were not made in accordance with 42 CFR 435.541.