District of Columbia Department of Human Resources, DAB No. 914 (1987)

DEPARTMENTAL GRANT APPEALS BOARD

Department of Health and Human Services

SUBJECT:  District of Columbia
Department of Human Resources

Docket No. 87-97
Decision No. 914

DATE:  October 26, 1987

DECISION

The District of Columbia Department of Human Services (District)
appealed a determination by the Administration for Children, Youth and
Families (Agency), to disallow $507,848 of federal financial
participation (FFP) claimed under foster care provisions of Title IV-A
(AFDC-FC) of the Social Security Act (Act) in payments made during the
period July 1979 through September 1980.  During Board proceedings, the
District limited its appeal to $421,599 which the Agency disallowed on
the basis that applications for foster care benefits had not been
received "until after the claim period began."  The Agency relied on 45
CFR 234.120(d), which authorizes FFP in AFDC-FC for periods "beginning
with the month in which they [any family or individual] meet all
eligibility conditions under the [state] plan and in which an
application has been received by the [state] agency."

The amount of the disallowance was determined by extrapolating from a
sample of 304 randomly selected individual cases.  Of this sample, the
Agency found that erroneous payments had been made in 157 individual
cases totaling $108,566 in FFP.  The Agency projected from the sample to
the entire number of cases included in the District's claim.  The Agency
determined that the District had submitted a total of $421,599 in
unallowable claims for FFP in benefits paid prior to receipt of an
application.

There are two issues in this case: whether the District is entitled to
FFP in payments for periods before an application was received, and
whether the Agency, in this case, may extrapolate from a sample to
disallow funds in excess of individually identified sample errors.  For
the.reasons described below, we uphold the disallowance in full.

Case Background

During the disallowance period, section 408 of Title IV-A provided for
FFP in payments to eligible children who had been removed from the home
of a relative by judicial determination and placed in foster care.
These AFDC-FC payments were made under the auspices of the District's
agency which administered the Title IV-A program.  (Public Law 96-272,
enacted June 17, 1980, repealed section 408 and implemented a separate
foster care program, but this change did not affect the claim at issue.)

The disputed claims are for payments for which the District did not
originally claim FFP under the AFDC-FC program established by section
408.  In 1981, in response to an audit report recommending certain
changes in administration of the District's foster care program, the
District reviewed its records to determine the eligibility for AFDC-FC
of children then in foster care.  As a result of that review, the
District filed the disputed claims for 1979 and 1980.

An audit report submitted in a previous appeal concerning these claims,
provided an explanation of the procedures which the District used to
determine eligibility for AFDCFC:

     The State Agency's procedures stated that there are two conditions
     necessary for the approval of AFDC-FC: the determination of basic
     eligibility for AFDC, and the submittal of a report within a
     specified period of time to petition commitment by a juvenile
     court.  In addition, the procedures also stated that in order to
     identify funding for the child's care in the interim period, a
     presumption of eligibility must be made as soon as it is known that
     basic eligibility is approved by the Income Maintenance
     Administration (IMA) and the child has been placed in a foster
     home.

     In order to determine AFDC basic eligibility and AFDC-FC
     presumptive eligibility, the State Agency utilized a form entitled
     "AFDC-Foster Care Eligibility Information" (PW-CW-PA-154).[]  The
     Family Services Administration (FSA) was supposed to complete this
     form and forward it to the IMA for AFDC eligibility determination.
     The IMA worker used the 154 form information to determine AFDC
     eligibility, and returned a copy of it to FSA, which then processed
     the Case Charge Authorization to set up presumptive eligibility.
     Approval of AFDC-FC eligibility took effect on the date that
     presumptive eligibility was established.  FSA provided the IMA
     worker with a follow up copy of the 154 form showing the effective
     date of approval for AFDC-FC.

Audit Report Control No. 03-40551, p. 5 (footnote added).

In this case, the Agency examined 304 randomly selected cases and found
that in 157 of those cases the procedures described above were not
followed.  In those cases, the Agency found, the DHR-154-2 form was not
completed by the FSA and forwarded to the IMA for an AFDC eligibility
determination prior to the time the District paid the .benefits in which
it claimed FFP.  The Agency determined that the DHR-154-2 form
constituted the required application for foster care children and
concluded that FFP was not available because the DHR-154-2 application
form had not been received before the benefits had been paid.  From
these sample cases, comprising 21.3% of the total number of cases in the
District's claim, the Agency projected to the total number of cases in
the claim to determine the amount of the disallowance.

The District did not contest, in its briefing here, the validity of the
particular sampling or calculation techniques used, or the individual
findings of error.  The District argued that the Agency was precluded
from extrapolating from a sample to disallow amounts in excess of
individually identified errors, in light of the existence of a quality
control system and the Agency's own policies.

Although the District initially limited its arguments to the question of
whether sampling was appropriate in this instance, the District's reply
brief raised an issue regarding the application requirement.  The
District replied to the Agency's contention that an application was not
a condition of eligibility by arguing that, if this was correct, then an
application was not necessary for FFP since the beneficiary was eligible
and the payment proper.  Since this issue goes to the substantive basis
for the disallowance, we consider the application issue first.

Application Issue

In the disallowance letter, the Agency alleged that FFP was not
allowable in 157 sample cases, amounting to $108,566, because the
District did not receive individual.applications until after the claim
period began.  This allegation was apparently based on the Agency's
finding that DHR-154-2 forms had not been forwarded from the District
FSA office to the IMA office.   The Agency cited the regulatory
provision at 45 CFR 234.120, which makes FFP available in AFDC-FC
payments to families or individuals "for periods beginning with the
month in which they meet all eligibility conditions . . . and in which
an application has been received. . . " (emphasis added).

The District argued that FFP should still be available if the
application requirement is not met, but presented no statutory or
regulatory support for this argument.  The District cited two Board
cases, Louisiana Department of Social Services, Decision No. 647,
October 22, 1984 and New York Department of Social Services, Decision
No. 585, May 9, 1985, but these cases do not support the District's
argument.  The Board did not find, in either of these cases, that an
application was not necessary for FFP.

In light of the language of 45 CFR 234.120, we must conclude, based on
the record before us, that the receipt of an application is a condition
for FFP.

We further find that the District has not shown that this condition was
met here.  In acknowledging the notice of appeal, the Board specifically
instructed the District that the Board would decide both issues of law
and of fact, and that the District should submit any documentation in
dispute.  The District did not, however, pursue any factual issues
during Board proceedings.  The.District did not dispute the
characterization of the DHR-154-2 form as an application, and did not
deny that it had not timely completed that form for the payments at
issue.  The District did not introduce evidence that it had other
documentation, which could be deemed an application, in the case files.

Thus, we uphold the Agency's conclusions that FFP is unallowable in
payments made prior to the month in which a DHR-154-2 form was received,
and that the payments in the 157 sample cases were unallowable on this
basis.

2.  The Extrapolation/Quality Control Issue

The Agency determined the disallowance amount by extrapolating from the
individually identified errors in the cases missing applications
(discussed above) to the entire claim submitted by the District.  Both
parties agreed that extrapolation from a sample would not be appropriate
if the errors were within the scope of the AFDC quality control system,
since the Agency's policy during the relevant time period had been to
disallow only for individually identified erroneous payments of this
type.  As the Board has discussed in several previous decisions, the
Agency had a policy, prior to and during the time period of the disputed
claims, which assured states that, pending the promulgation of new AFDC
quality control regulations, only individually identified errors would
be disallowed for those errors within the scope of the then-existing
AFDC quality control system.  The Board has held that, for these errors,
the Agency may not retroactively apply statistical sampling techniques
to AFDC-FC claims during that time period to disallow amounts in excess
of individually identified errors.  See, e.g., Louisiana Department of
Health and Human Resources, Decision No. 580, October 22, 1984;
California Department of Social Services, Decision No. 319, June 30,
1982, reconsideration denied, December 31, 1982.

The Agency argued that payment of benefits prior to receipt of an
application was not an eligibility error within the quality control
system, but was an administrative error.  The District contended that
the errors were within the scope of the AFDC quality control system
because case errors under the quality control system were broadly
defined to include all eligibility determination errors which were not
systemic administrative problems.  See Reconsideration of Decision No.
319, December 31, 1981, p. 7.  The District asserted that the
application forms were part of the eligibility determination process.

The quality control system regulations at 45 CFR 205.40(a)(2) limit
"case errors" under the quality control system to "an overpayment,
underpayment or payment to ineligibles" for active cases, and, for
negative (denied) cases, to those in which the "reason given . . . for
that action was incorrect."

The District did not offer any evidence of how the lack of an
application would be recognized by the quality control system under the
circumstances here.  The application requirement in the foster care
program appears to be, at least in part, a documentation requirement
imposed upon states (although it may have other purposes, as the Agency
noted).  In light of this, there is support for the Agency's position
that the quality control system would not recognize these errors.  Under
the regulatory definition, "case errors" include only those cases in
which the beneficiary's actual eligibility status differs from a State's
eligibility determinations.  Here, the parties do not contest that the
beneficiaries were, in fact, eligible.  The error the Agency alleged was
the District's own administrative failure to develop in a timely manner
the documentation to support claims for FFP.

But, more to the point, the lack of an application and any determination
of eligibility would probably have ensured that the payments would not
have been considered within the quality control system.  Logically, the
District's AFDC-FC caseload would have included only cases which the
District itself categorized as AFDC-FC on an ongoing basis, or in which
the District made a negative case determination in considering an
application.  Thus, absent a showing by the District to the contrary, we
must conclude that these cases would not have been included had there
been any AFDC-FC quality control sample.  See 45 CFR 205.40.

The District provided no support from the Act, the regulations, policy
issuances, or Board cases for its contention that cases lacking
applications literally would have been included within the definition of
"case error," and that the quality control system would have reached
those cases.  The District cited statements by counsel to the Agency in
a conference held in Docket No. 84-37 (consolidated with other cases
involving a related issue), in which the District alleged that the
Agency conceded that case errors included any erroneous claim for FFP.

Appellant's Exhibit (Ex.) D, p. 46.  Our reading of those statements is
different; the Agency counsel corrected his statement and clarified that
"case error" was dependent on incorrect determinations of the
eligibility of recipients or beneficiaries.  The District also alleged
that the Agency had conceded that it could disallow only individually
identified errors in factually identical cases involving the
Pennsylvania Department of Public Welfare, Board Docket Nos. 84-39,
84-43 and 84-44.  In those cases, however, the Agency made no such
concession in the record before the Board.  In proceedings before the
Board, the Agency argued that extrapolation from a sample was
appropriate.  Although the Pennsylvania record shows that the Agency
ultimately agreed to settle for the amount of individually identified
errors, there is no indication that the settlement reflected any binding
concession on the legal point.

While the District may be correct that the DHR-154-2 form should have
been completed as part of the eligibility determination process, that is
beside the point.  The District presented no basis to find that the
quality control system would cover this type of error.  It is true that
some errors which could be considered technical or administrative were
included in the quality control system, such as the lack of a social
security number.  But these errors were explicit statutory conditions of
eligibility for beneficiaries and, thus, directly affected eligibility.
See, e.g., discussion in Preamble to 1980 Quality Control Regulations,
45 Fed. Reg. 6330 (January 25, 1980); 45 CFR 232.10.

This case is distinguishable from prior Board cases, cited by the
District, because in those cases the Agency did not contend that the
errors involved were not eligibility determination errors.  In one case,
the Board addressed whether a lack of documentation of
eligibility.redetermination was an error, but the parties did not raise
the issue of whether it was an error within the scope of the quality
control system.  Louisiana Department of Health and Human Resources,
Decision No. 580, October 22, 1984.  In another, the Agency counsel
familiar with the facts stated that sample cases of inadequate
documentation were not counted as errors and that only "cases that could
be determined as ineligible on the face of the documents were used in
projecting. . ." the disallowance there.  Docket No. 83-286, Transcript,
p. 52.  Thus, the Board concluded that the cases were within the quality
control system and found that the Agency could not disallow in excess of
individually identified errors.  Montana Department of Social and
Rehabilitation Services, Decision No. 581, October 24, 1984.

Furthermore, the prior Board cases involved program-wide disallowances,
while in this case the disallowance would extend only over a retroactive
claim for FFP submitted, in some instances, over a year after the
payments were made.  As we noted above, it is unclear that the quality
control system would have covered such a claim in any event.

In sum, we find that the District has not met its burden of persuasion
in this case.  The District did not rebut the Agency's contentions with
any factual evidence or legal authorities which could provide the Board
with any basis to reverse this disallowance.  We note that the record
was very poorly developed, particularly for a dispute which has been
before the Board for such an extended period of time and in which the
parties have had numerous opportunities to raise and develop factual and
legal issues.

Thus, we conclude that the Agency could permissibly extrapolate the
disallowance amount from the sample claims it examined.

Conclusion

For the reasons stated above, we uphold the disallowance in the full
amount of $507,848.


 ________________________________ Cecilia Sparks Ford


 ________________________________ Donald F. Garrett


 ________________________________ Judith A. Ballard Presiding
 Board