DEPARTMENTAL APPEALS BOARD
Department of Health and Human Services
SUBJECT: Utah Department of Health DATE: April 4, 1989 Docket No.
88-90 Decision No. 1032
DECISION
The Utah Department of Health (State, Utah) appealed a determination by
the Health Care Financing Administration (HCFA, Agency) disallowing
$134,499 in federal financial participation claimed by the State under
Title XIX of the Social Security Act (Medicaid) for the period July 1,
1986 through December 31, 1987. The State claimed federal financial
participation (FFP) for salaries of 27 State employees at the enhanced
FFP rate of 75% available for compensation of skilled professional
medical personnel (SPMP) or direct support personnel for SPMP. The
Agency disallowed the portion of the State's claim which exceeded the
50% rate generally applicable to administrative costs for the Medicaid
program. The Agency determined that individuals claimed by the State as
SPMP did not have "professional education and training in the field of
medical care or appropriate medical practice" and that the support staff
claimed at the 75% rate did not qualify as "directly supporting staff"
because they were not supervised by SPMP.
This decision concerns the educational and functional limitations, set
forth at 42 C.F.R. 432.50(d)(1)(ii) and (iii) (1986). These limitations
specify that SPMP have "professional education and training in the field
of medical care or appropriate medical practice" and that SPMP have
"duties and responsibilities that require those professional medical
knowledge and skills." This decision also concerns the support staff
limitation, set forth at 42 C.F.R. 432.50 (d)(1)(v). This limitation
specifies that "directly supporting staff . . . provide clerical
services that are directly necessary for the completion of the
professional medical responsibilities and functions of the skilled
professional medical staff" and "[t]he skilled professional medical
staff must directly supervise the supporting staff and the performance
of the supporting staff's work." The regulation provides that all
applicable limitations must be met for 75% FFP to be available.
For the reasons discussed below, our determinations on the SPMP and
directly supporting staff positions are, as follows:
o We sustain the disallowance for six employees who do
not qualify as SPMP (three of whom the State conceded did not
qualify);
o We sustain the disallowance for three employees who
the State conceded were not direct supporting staff;
o We reverse the disallowance for seven employees (one
of whom the Agency conceded qualifies) who qualify as direct
supporting staff;
o We reverse the disallowance for two direct support
employees for the amount of time those employees directly
support the work of SPMPs;
o We remand the disallowance for seven employees, who
met the functional limitation, for further consideration of
whether these employees qualify as SPMP under the educational
limitation;
o We remand the disallowance for one employee who
apparently meets the educational limitation for further
consideration of whether she also meets the functional
limitation;
o and we remand the disallowance for one direct support
staff employee for further consideration dependent on whether
the Agency determines on remand that this employee's supervisor
meets the educational limitation.
I. Applicable law, regulations, and guidelines
Section 1903(a)(2) of the Social Security Act provides for FFP at the
increased rate of 75% for states' Medicaid costs which are properly
attributable to the compensation of SPMP. Costs for state personnel who
do not qualify for enhanced reimbursement are reimbursable at the 50%
rate generally applicable to costs of administration. Section
1903(a)(7).
Agency implementing regulations, 42 C.F.R. 432.50(b)(1) (1986), provide
75% FFP for skilled professional medical personnel. Section
432.50(b)(6) implements the 50% matching provision generally applicable
to FFP claims for costs of administration.
The term "skilled professional medical personnel," which is not defined
in the Act, is defined at 42 C.F.R. 432.2 as:
physicians, dentists, nurses, and other specialized medical
personnel who have professional education and training in the field
of medical care or appropriate medical practice and who are in an
employer-employee relationship with the Medicaid agency. It does
not include other nonmedical health professionals such as public
administrators, medical analysts, lobbyists, senior managers or
administrators of public assistance programs or the Medicaid
program.
"Directly supporting staff" is defined also at 42 C.F.R. 432.2 as:
secretarial, stenographic, and copying personnel and file and
records clerks who provide clerical services that directly support
the responsibilities of skilled professional medical personnel, who
are directly supervised by the skilled professional medical
personnel, and who are in an employer-employee relationship with
the Medicaid agency.
Section 432.50(d) of 42 C.F.R. states the following limitations on the
availability of 75% FFP:
(1) Medicaid agency personnel and staff. The rate of 75 percent
FFP is available for skilled professional medical personnel and
directly supporting staff of the Medicaid agency if the following
criteria, as applicable, are met:
* * * *
(ii) The skilled professional medical personnel have professional
education and training in the field of medical care or appropriate
medical practice. "Professional education and training" means the
completion of a 2-year or longer program leading to an academic
degree or certificate in a medically related profession. This is
demonstrated by possession of a medical license, certificate, or
other document issued by a recognized National or State medical
licensure or certifying organization or a degree in a medical field
issued by a college or university certified by a professional
medical organization. Experience in the administration, direction,
or implementation of the Medicaid program is not considered the
equivalent of professional training in a field of medical care;
(iii) The skilled professional medical personnel are in positions
that have duties and responsibilities that require those
professional medical knowledge and skills. * * * *
(v) The directly supporting staff are secretarial, stenographic,
and copying personnel and file and records clerks who provide
clerical services that are directly necessary for the completion of
the professional medical responsibilities and functions of the
skilled professional medical staff. The skilled professional
medical staff must directly supervise the supporting staff and the
performance of the supporting staff's work.
The preamble to the final regulation provides further explanation
concerning the Agency's definition of SPMP. The preamble states that:
The law [section 1903(a)(2) of the Act] did not intend to provide
75 percent FFP merely to any staff person who has qualifying
medical education and training and experience, without regard to
his actual responsibilities. Rather, the function performed by the
skilled professional medical personnel must be one that requires
that level of medical expertise in order to be performed
effectively. Consequently, 75 percent FFP is only available for
those positions that require professional medical knowledge and
skills, as evidenced by position descriptions, job announcements,
or job classifications.
50 Fed. Reg. 46652, at 46656 (November 12, 1985).
The preamble specifies examples of the functions that would meet the
basic criteria referred to as follows:
o Acting as a liaison on the medical aspects of the program with
providers of services and other agencies that provide medical care.
o Furnishing expert medical opinions for the adjudication of
administrative appeals.
o Reviewing complex physician billings.
o Providing technical assistance and drug abuse screening on
pharmacy billings.
o Participating in medical review or independent professional
review team activities.
o Assessing the necessity for and the adequacy of medical care
and services provided, as in utilization review.
o Assessing, through case management activities, the necessity
for and adequacy of medical care and services required by
individual recipients.
50 Fed. Reg. at 46656.
The preamble also contained some discussion concerning the meaning of
SPMP direct support staff. The preamble stated:
The legislative history and the statute consistently indicated
that a direct relationship must exist between the supporting
staff and the skilled professional medical personnel in order
for FFP to be allowable at 75 percent. This direct
relationship is best evidenced by the supporting staff being
directly supervised (immediate first-level supervision) by the
skilled professional medical personnel. We note that this is
the same interpretation we have been applying under the
current regulations.
* * * *
In order to ensure that there will be no misinterpretation, we
have specified in this preamble that "directly supervise"
means "immediate first-level supervision," and we have
clarified in the regulation that the skilled professional
medical personnel must directly supervise the supporting staff
and the performance of the supporting staff's work.
50 Fed. Reg. at 46660.
II. Background
In its disallowance letter, HCFA notified Utah that 14 employees did not
qualify as SPMP because they did not meet the educational requirement of
42 C.F.R. 432.50(d)(1)(ii). The Agency indicated that, with the
exception of one employee, all of the employees had professional
education in non-medical areas. While some of these employees also were
licensed or certified as a health facility administrator or nursing home
administrator, the Agency indicated that these individuals did not
receive these licenses or certificates because they completed a two-year
or longer program in a medically-related field. HCFA determined that
while one employee, a dental assistant, had education and training in a
medically related field, she still did not qualify under the education
requirement because her professional education and training was only for
a period of one year rather than the two years required by the
regulation. Therefore, HCFA concluded that this employee also did not
meet the educational requirement.
HCFA also determined that 13 clerical employees were improperly claimed
for FFP at 75% as directly supporting staff since these employees'
direct supervisors were not SPMPs, meaning that the supervisors did not
meet the education and training requirements for SPMP status.
III. Skilled Professional Medical Personnel
Before Utah addressed the specific positions in dispute, it raised some
general arguments concerning the validity of the revised regulations.
The State noted its understanding that the Board does not have authority
to invalidate a regulation and stated that it would simply highlight
some of the problems it found with the revised regulations, reserving
the right to challenge the validity of the regulation on appeal, if
necessary.
The State was concerned with what it characterized as "a very rigid and
narrow construction" of the regulations by Agency officials. Utah's
Brief, p. 3. Utah stated that all 14 of the employees disallowed as
SPMP had previously qualified as SPMP and that most should still qualify
under a proper application of the new regulation. The State contended
that the education and training limitation's requirement that SPMP
complete "a two-year or longer program in a medically related
profession" was invalid and unenforceable. The State asserted that this
requirement was not part of the proposed regulation and resulted in the
arbitrary preclusion from SPMP status of individuals having medical
expertise acquired through training or equivalent experience.
The State is not contesting the disallowance of employees HC4W, HA37,
and HC4J. Thus, only 11 positions are disputed. Below, we examine the
specific positions in dispute, addressing to the extent necessary the
State's objections to the Agency's construction of the regulation.
A. Medical Social Workers
The State argued that seven employees (HD8Y, HD4Q, HD46, HC4R, HC4T,
HC4U and HC4V) functioned as medical social workers. Utah's Brief, p.
7. Of these, HD8Y and HD46 and, for part of the period in dispute,
HD4Q, performed utilization control, utilization review and inspection
of care (IOC) activities. The other employees, including HD4Q for the
other part of the period in dispute, split their time between survey and
certification activities and IOC activities. All of these employees had
a Masters degree in social work (MSW). The State contended that the
functions performed by these employees are the kinds of functions the
Agency considered under the previous regulations to be SPMP functions.
Utah's Brief, p. 8. The State further argued that HCFA's denial of SPMP
status for these workers solely on the basis that a Masters degree in
social work and a state license as a certified social worker does not
meet the educational requirement of 42 C.F.R. 432.50(d)(1)(ii) of
"professional education and training" in a "medically related
profession" was insupportable. Utah's Brief, pp. 9-11.
The Agency never fully addressed the State's arguments that the
functions performed by these employees qualified for SPMP status. The
Agency instead argued that the first step in determining whether an
employee qualifies for SPMP status is whether that employee has the
required "professional education and training." HCFA's Brief, p. 14.
The Agency contended that the State's arguments based on the functions
that these employees perform was irrelevant to this appeal as none of
these employees had the requisite education and training in a medically
related field. The Agency, however, agreed that someone with the
requisite education and training (education and training in a field
other than social work) who performs medical social worker functions
could qualify as an SPMP.
We note that before the promulgation of the revised regulations, all
these employees were considered SPMP. All of the employees in question
here were involved in functions which the preamble to the revised
regulations indicated were SPMP functions. Both participation in
medical review or independent professional review team activities (as in
the conduct of inspections of care) as well as assessment of the
necessity for and adequacy of medical care and services (as in
utilization reviews) are expressly recognized as SPMP functions. These
are the functions which these employees were performing. See Affidavits
of Allan D. Elkins and Affidavit of Rod Betit. Therefore, we conclude
that these seven employees met the functional limitation necessary to
qualify for SPMP status.
In Montana Dept. of Social and Rehabilitation Services, DAB No. 1024
(1989), the Board examined the functions of a medical social worker
under the revised regulations. In that appeal, the Agency argued that
the revised regulations were not inconsistent with the legislative
history of the statute, which expressly mentions medical social workers,
because a medical social worker is not precluded from being an SPMP.
The Agency conceded there that the functions of a medical social worker
as that position is defined in the Dictionary of Occupational Titles are
properly considered as functions of an SPMP. The Agency, however,
contended that a degree in social work could not meet the educational
requirement of the revised regulations because it was not education in a
medically related field.
As we discussed in Montana, medical social work is considered an
integral part of the health care delivery system in this country so that
social work in the health care context is a medically related
profession. Montana, supra, p. 3 and 4. In Montana, the Board
determined that the Agency cannot both agree that the functional
definition of a "medical social worker," as that position is defined
in
the Dictionary of Occupational Titles, is appropriately considered to
state the functions of an SPMP and deny, across the board, SPMP status
to those individuals whose education and training is in that field.
Therefore, the Board concluded that an individual with a Masters degree
in social work from an accredited two-year graduate program whose
education (including training received as part of academic work) has
specifically included health care and/or medical applications of social
work meets the requirements of 42 C.F.R. 432.50(d)(1)(ii) of
"professional education and training" in a medically related field.
Montana, supra, p. 17-18.
In light of our conclusion in Montana, we find that the seven medical
social worker employees in dispute here may have met the educational
requirement for SPMP status. Therefore, we remand this aspect of the
case for the Agency's further consideration as to whether these
individuals qualify as SPMP because their education and training for
their Masters degree included health care and/or medical applications of
social work.
Therefore, if the Agency on remand determines that these seven employees
met the educational limitation, these employees qualify as SPMP and the
State is entitled to claim them at the 75% rate of reimbursement.
B. Health Program Specialist
The State argued that employee HC4E functioned as a medical social
worker. The State explained that this employee supervised the Client
Restriction Program and used her expertise in analyzing medical
profiles, developing criteria by which Medicaid abusers may be
identified, reviewing cases and working with recipients who have abused
the Medicaid system. Utah's Brief, pp. 11-12; Affidavit of Edward V.
Furia. This employee also was a liaison on a daily basis with
physicians and pharmacists. The employee has a Masters degree in social
work, is licensed by the State as a certified social worker, has a Ph.D
level certificate for completion of a two-year program in Alcohol and
Drug Abuse from the University of Utah Department of Social Work, and
has a Ph.D degree in psychiatric sociology. Utah's Brief, p. 12.
The Agency argued again that while this employee's education was
extensive, it was primarily in the area of social work and sociology
which are not medically related fields. The Agency concluded that as a
result, this employee did not satisfy the educational requirement of the
regulation. The Agency did not pursue whether the functions performed
by this employee qualified for SPMP status.
As we concluded in Montana, an individual with a Masters degree in
social work from an accredited program whose education and training
specifically included health care and/or medical applications of social
work meets the education limitation. This employee not only has a
Masters degree in social work, but also completed a two-year program on
Alcohol and Drug Abuse from the University of Utah Department of Social
Work which led to a Ph.D. level certificate and received a Ph.D. in
psychiatric sociology. Therefore, it appears that this employee met the
requirements of 42 C.F.R. 432.50(d)(1)(ii), as interpreted in Montana.
Since we also find, however, that a remand is necessary to examine
whether the functions performed by this employee were qualifying
functions, our decision does not preclude the Agency from further
examining whether the Montana standard was met.
The Agency presented no arguments here concerning whether the functions
performed by this employee are SPMP functions. While we note that
providing technical assistance and drug abuse screening as well as
acting as a liaison on the medical aspects of the program with providers
of services and other agencies that provide medical care are functions
which the Agency indicated in the preamble to the revised regulations as
being SPMP functions, there is no documentation in the record which
supports the statements in the State's brief that the employee actually
performed these functions. See Affidavit of Edward V. Furia and
attached class specification for this position. Therefore, we are
unable to determine conclusively whether this employee qualifies
functionally as an SPMP. (Apparently, this employee was claimed as SPMP
under the previous regulations.) Thus, we remand this position for
further Agency consideration of whether this employee's position duties
and responsibilities are in fact as stated in the brief.
C. Dental Assistant
The State argued that employee HH78 should be considered an SPMP. This
employee's duties included making dental assessments and determinations
about whether approval should be granted for dental services that
require prior approval. Utah's Brief, p. 12 and Affidavit of Edward V.
Furia. The employee's education and training was one year of college
and a six month course at Salt Lake College of Medical and Dental
Assistants which led to a certificate. The State then maintained that
this employee worked as a dental assistant for four years, followed by
almost four years employment for an insurance company where the
employee's duties involved evaluation and approval of claims. Utah's
Brief, p. 12. The State argued that HCFA's construction of the two-year
program of education requirement as referring only to formal education
and training is too narrow and rigid. The State argued that training
and experience gained outside the Medicaid agency before becoming
employed by the agency should be counted as the equivalent to
professional training.
HCFA explained that while dental assisting is considered a medically
related field, the regulations expressly define professional education
and training as the completion of a two-year or longer program leading
to an academic degree or certificate in a medically related profession.
This employee's certificate was only from a six month course.
We agree with the Agency that under the provisions of the revised
regulations this employee did not meet the educational requirement. The
regulation clearly states that "'professional education and training'
means the completion of a two-year or longer program leading to an
academic degree or certificate . . . ." Moreover, the preamble states
the Agency's general expectation that on the job training or work
experience would not be sufficient to qualify an individual as SPMP. 50
Fed. Reg. at 46660. This employee does not meet the basic requirement
for completion of a two-year program. Also, this employee's previous
job experience was not related to a two-year degree or certificate
program. Accordingly, under the revised regulations, this employee can
not qualify as an SPMP on the basis of previous job experience,
notwithstanding the level of expertise acquired, since job experience
can not be substituted for or regarded as equivalent to a formal
two-year program. Thus, we conclude that this employee did not meet the
educational requirement and therefore does not qualify as an SPMP.
D. Director of Policy and Planning
The State explained that the Director of Policy and Planning, employee
HA48, had a B.A. degree in finance, a M.B.A. degree, and is a licensed
nursing home administrator. The State indicated that previously this
employee worked as an economist in the Department of Labor and has had
nine years of medically related training in the Medicaid program. The
State argued that prior to the enactment of the revised regulations,
this employee qualified for SPMP status. The State, however, recognized
that the new regulations do not consider experience in the Medicaid
program in determining SPMP status. The State acknowledged that the
Board is bound by all applicable laws and regulations. However, the
State asked the Board to apply the regulatory provision narrowly, and
determine, for example, that only the first couple of years experience
in the Medicaid program do not count in determining SPMP status but any
remaining experience could count as medically related training.
The State here did not dispute that this employee does not meet the
requirement for "professional education and training." The State
instead asked that the expertise that this employee gained through his
experience should be taken into account. The provisions of the
regulation are clear--"experience in the administration, direction, or
implementation of the Medicaid program is not considered the equivalent
of professional training in a field of medical care"--and the Board is
bound by the regulation. While the Board has broad authority to resolve
disputes, under 45 C.F.R. 16.14 the Board cannot ignore applicable
regulations. Moreover, while the State asked that we carve out an
exception to the regulatory provision, the Board will not substitute its
judgment for that of the Agency. The Agency could reasonably limit the
availability of enhanced funding as it did in the revised regulations.
The Agency explained in the preamble its belief that the intent of the
legislation was to encourage the states to hire persons with medical
expertise who would then use that expertise in the development and
administration of the Medicaid program. The Agency further said it
found no authority for an intent to encourage the hiring of those with
various backgrounds who would on-the-job, either in Medicaid or
elsewhere, gain medical expertise and "become" SPMP. 50 Fed. Reg.
at
46660. As we said previously, skill in administering the Medicaid
program is not the same as medical skill. New Jersey Dept. of Human
Services, DAB No. 845 (1987) at p. 8 and cases cited therein.
Therefore, we conclude that this employee does not meet the educational
requirement of 42 C.F.R. 432.50(d)(1)(ii) and, thus, does not qualify
for SPMP status.
E. Medicaid Reimbursement Specialist
The State argued that employee HA44, the Medicaid Reimbursement
Specialist for the Division of Health Care Financing, should be
considered an SPMP even though he does not have formal education in a
medically related field. This employee has a bachelor's degree in
accounting as well as considerable on-the-job experience both outside
the Medicaid program and within the Medicaid program. The State argued
that this employee's job requires a knowledge of medical terminology and
procedures derived from many years of experience in the area of health
care economics. The State pointed out that under the previous
regulations, medical economists qualified as SPMP. The State contended
that the functions performed by this employee closely parallel those of
a medical economist. The State also argued that the employee's past
experience helped him to pass the test to qualify for his "nursing home
license certificate." Utah's Brief, p.16.
Again, the State here did not deny that this employee did not have the
"professional education and training" in a medically related field
as
required by the regulation. Moreover, as we indicated, the regulation
specifically excludes previous work experience in the administration of
the Medicaid program as being considered the equivalent of "professional
education and training." In addition, while the State argued that this
employee's experience aided him in passing the nursing home licensing
exam, we agree with the Agency that the State has not demonstrated that
this employee completed a two-year or longer program of professional
education and training for this license, as the regulation requires.
Therefore, we conclude that this employee has not met the educational
requirement of 42 C.F.R.432.50(d)(1)(ii) and thus, does not qualify for
SPMP status.
F. Conclusion Regarding Skilled Professional Medical Personnel
Out of the 14 employees disallowed as SPMP, the State did not contest
three employees, and the Board determined that three employees did not
meet the educational limitation. Thus, we uphold the disallowance for
these six employees, Position Nos. HH78, HA48, HA44, HC4W, HA37, and
HC4J. We have determined to remand the disallowance for eight employees
for further consideration by the Agency. There are seven employees who
met the functional limitation and may meet the educational limitation
(Position Nos. HD8Y, HD4Q, HD46, HC4R, HC4T, HC4U and HC4V). For these
employees, the State must show that the employees' education and
training in social work specifically included health care and/or medical
applications. We also remand one employee, Position No. HC4E, who
apparently meets the educational limitation and who may meet the
functional limitation. Within 30 days of the receipt of this decision,
or such longer time as the Agency may allow, the State should submit
information, as necessary, relating to the educational and/or functional
limitation for the eight employees included in the remand. If the State
disagrees with the Agency's subsequent determinations for these eight
employees, the State, within 30 days of the receipt of the Agency's
determination, may return to the Board.
IV. Directly Supporting Staff
A. Facility Survey/Inspection of Care Clerical Employees
The State argued that clerical employees, HQ87, HR3C, HQ63, HR2Y, and
HQ77, are each assigned on a full time basis to a separate survey/IOC
team. Utah's Brief, pp. 18-19. The State pointed out that HCFA
admitted in its Financial Management Review that these clerical
employees were performing functions that are directly necessary to the
completion of the professional medical responsibilities and functions of
certain SPMP. The State argued that despite this finding, HCFA denied
SPMP support personnel status to these employees because HCFA believed
the clericals were supervised by a lead clerical employee who was not an
SPMP. The State contended that HCFA's misunderstanding probably arose
from an inaccurate organizational chart that listed the lead secretary
as a clerical supervisor and appeared to indicate that these five
clericals came under her supervision. The State explained that while
the lead clerical does have the responsibility to make sure that the
work of the clerical staff is done timely so that deadlines are not
missed, the lead secretary does not generate work of her own, but is
also a clerical support worker for an SPMP in the survey/inspection of
care section. The State argued that these clericals report to SPMPs,
receive their assignments from SPMPs, and are reviewed by SPMPs. Their
work consists of typing, copying, and filing in support of the SPMP
functions. See also Utah's Reply Brief, Ex. A.
The Agency argued that the only question relevant here is whether these
employees are directly supervised by SPMP as required by 42 C.F.R.
432.50(d)(1)(v). The Agency argued that both the Agency's Financial
Review Guide as well as the preamble to the revised regulations specify
that "directly supervised" means "immediate first-level supervision."
HCFA's Brief, p. 8, citing HCFA's Appeal File, Ex. 1, para. III.C.5, and
Ex. B to HCFA's Appeal File, Ex. 1. The Agency argued that the position
descriptions for all but employee HR3C indicate that the supervisor is
the clerical supervisor. HCFA's Appeal File, Exs. 2, 3, 4, 5, and 6.
The Agency claimed that the position description for employee HR3C
(which the Agency submitted as Exhibit 7) indicated someone other than
the lead secretary was this employee's supervisor. The Agency said it
had no information concerning the supervisor in its files and this
supervisor's name does not appear on the organizational charts for this
unit. The Agency also argued that it based its determinations here upon
the position descriptions and performance evaluations of these employees
and not the outdated organizational chart.
It is uncontested that the clerical services provided here are directly
necessary for carrying out the professional medical responsibilities and
functions of the skilled professional medical personnel and that the
services are provided for and under the direction of qualifying SPMP.
The dispute here revolves around what is meant by "directly supervise."
The regulation does not define the term. The Agency, however, contended
that this term is interpreted to mean immediate first-level supervision
in the preamble. The preamble states that:
The legislative history and the statute consistently indicated that
a "direct" relationship must exist between the supporting staff and
the skilled professional medical personnel in order for FFP to be
allowable at 75 percent. This direct relationship is best evidenced
by the supporting staff being directly supervised (immediate
first-level supervision) by the skilled professional medical
personnel. We note that is the same interpretation we have been
applying under the current regulations.
50 Fed. Reg. at 46660 (November 12, 1985).
The preamble then provides a specific example of the situation the
requirement for direct supervision was meant to prevent:
where a skilled professional medical personnel position headed the
Medicaid agency and the entire supporting staff in that agency were
claimed at 75 percent FFP. There is no indication that Congress
intended to reimburse the entire cadre of supporting staff in the
Medicaid agency at 75 percent FFP.
Id. (emphasis added).
These five clericals work for the Bureau of Facility Review, the whole
purpose and function of which (in addition to the certification and
survey function) is to insure that recipients of long term care in the
Medicaid program receive adequate, quality care at the appropriate level
of care. HCFA has admitted that the clericals' work here is directly
necessary to the completion of the SPMP functions. The clericals were
each assigned to a team and all of the work assignments for the
clericals were generated by the review teams in direct support of their
functions, were done for and delivered to the team members, and were
performed under the direct supervision of the team leaders, all of whom
HCFA has accepted as SPMP. Utah's Reply Brief, Ex. A. The clericals
also do some secretarial work for the Section Manager in support of his
SPMP duties. Id.
Moreover, because the survey/IOC teams must spend so much time on-site
in long term care facilities, it was necessary to assign the section's
lead secretary the task of monitoring both the clericals' office
attendance as well as whether the clericals are performing the work
assigned by the team leaders when the team leaders were not in the
office. Utah's Reply Brief, Ex. A. While the record shows that the
lead secretary performed some supervisory tasks for these employees,
this does not mean that these clericals were not supervised
substantively and at the "first-level" by the SPMP team leaders.
Clearly, the situation here was not the kind of situation the Agency
indicated in the preamble it intended to prevent by the inclusion in the
regulation of "directly supervised." The preamble indicates that
immediate first-level supervision is the "best evidence" of the required
direct relationship. However, the preamble does not state any
explanation of the meaning of that term that would prevent the weighing
of all relevant evidence about how a position is supervised to determine
whether the requirement of the regulation is met.
In light of all the evidence here, not just the position descriptions
and performance evaluations presented by the Agency, we do not read
"directly supervise" to mean that these clericals cannot be direct
supporting staff merely because they receive some minimal oversight or
are supervised in a personnel reporting sense, in part, by a non-SPMP.
To rely only on indicia of personnel reporting relationships in
determining who is directly supporting staff is not required by the
regulation. This risks inconsistent determinations among the states as
to which positions qualify for enhanced reimbursement--what the Agency
stated in the preamble it wanted to avoid by these regulations. 50 Fed.
Reg. at 46655.
In addition, the Agency stated in the preamble that it intended to
retain the approach it had adopted under its prior regulations with
regard to the supervision requirements for support staff. Our
application here of the term "directly supervise" is consistent with
the
Board's previous findings in New Jersey Dept. of Human Services, DAB No.
845 (1987). In that decision, the Board stated:
[While] many of the clerical positions are supervised by . . . a
support position, as well as by SPMPs, that fact does not disqualify
these positions as SPMP support staff . . .[A] support person may be
supervised in a personnel reporting sense by someone other than a
SPMP and still perform work under the substantive direction of a
SPMP which directly supports SPMP functions.
Therefore, we conclude that these clerical employees are directly
supporting staff within the meaning of the regulations. Thus, we
reverse the Agency's disallowance for these five employees.
B. Patient Assessment/Utilization Management Clericals
Of the two employees who perform functions for this division, the Agency
conceded that employee HS41 qualifies for SPMP support staff status.
HCFA's Brief, p. 10. The Agency argued that employee HQ48, however,
does not. The State argued that this employee was a secretary in the
Utilization Management Unit of the Bureau of Managed Health Care, which
gives prior approval for surgery, dental work, and other Medicaid funded
medical procedures. The State provided evidence that this employee's
supervisor during the period in dispute was not employee HC4W, as the
Agency found, but rather a registered nurse who qualified as an SPMP.
Utah's Reply Brief, p. 9, and Ex. B, paragraph 7.b. The secretary's
duties included typing, filing, and other clerical tasks performed under
the direction of her SPMP supervisor. Utah's Reply Brief, p. 9; Utah's
Brief, p. 20.
The Agency argued that according to the position description for this
employee (which was two years out of date) this position was under the
supervision of employee HC4W, who was not an SPMP. HCFA's Appeal File,
Ex. 8. Therefore, the Agency argued that employee HQ48 cannot qualify
as SPMP support staff.
The only evidence in the record here to suggest that this employee might
have been supervised by HC4W is a position description dated almost two
years before the period covered by the audit. Here, the State presented
affidavits indicating that during the period of the audit this employee
was in fact supervised by an SPMP and not HC4W. Affidavit of Edward V.
Furia regarding employee HQ48 and Utah's Reply Brief, Ex. B. The
evidence shows that during the period in dispute, this employee was in
fact supervised by a registered nurse whom the Agency had accepted as an
SPMP. As a result, we conclude that this employee was qualified as
directly supporting staff claimable at 75% FFP. Thus, in light of the
Agency's concession regarding employee HS41 and our findings regarding
employee HQ48, we reverse the Agency's disallowance for these two
employees.
C. Policy and Planning Clericals
Two clerical employees in dispute, employees HR88 and HQ83, work for the
Bureau of Policy and Planning. The State indicated that employee HR88
spent 50% of her time working under the direction of employees HA52, a
registered nurse, and HC4M, a pharmacist, who were and are classified
SPMP for all of their job responsibilities. Utah's Brief, p. 20. The
State explained that as their support clerical, employee HR88 typed,
filed, copied, maintained records, and handled correspondence. The
State also indicated that HR88 spends 25% of her time performing
clerical duties for the director of the Bureau, employee HA48, who we
determined above did not meet the educational requirement for SPMP
status. The State indicated that the remaining time of this employee as
spent in general office duties which were not related to SPMP functions;
the State agreed not to claim the 75% SPMP rate for 25% of employee
HR88's time. The State indicated further that the duties of employee
HQ83 closely paralleled those of employee HR88 except that 65% of HQ83's
time is spent under the direction of the nurse and pharmacist performing
work directly necessary for completion of their SPMP duties, 15% of the
employee's time is spent working for the director, and 20% of her time
is spent in activities that do not qualify for the SPMP rate. Utah's
Brief, p. 21.
The Agency argued that these two employees do not qualify as directly
supporting staff because the workpapers for the Agency's review
indicated that the first-level supervisor for these two employees was
employee HA48, a non-SPMP. The Agency then indicated, however, that it
has not been able to locate the position descriptions and/or performance
evaluations that support this finding. Nevertheless, the Agency
contended that the State has not shown that the first-level supervisor
of these employees is an employee who qualifies as an SPMP. HCFA's
Brief, p. 11.
As the State aptly pointed out, the Agency's position here ignores the
realities of the working place where it is often necessary for employees
to share the services of a clerical employee. As the State indicated,
in such a situation each of the professional employees directly
supervise the work that the secretary does for him/her. The State
presented evidence here to show that both of these employees perform
clerical work directly for the nurse, the pharmacist, and the bureau
director. The record also shows that each supervises the performance of
the work these clericals do for him/her. Utah's Reply Brief, p. 10, Ex.
C; and Utah's Appeal File, Affidavit of F. Blake Anderson regarding
employees HQ83 and HR88. The State also indicated that when it is time
to fill out the performance evaluation for these secretaries, the nurse
and the pharmacist meet with the bureau director to give their input on
the evaluation which the director then fills out and signs. Utah's
Reply Brief, p. 10. This factor, which the Agency believes should be
the primary indicator of who supervises an employee, is not, in and of
itself, sufficient to convince us that these employees are not also
being directly supervised by the nurse and pharmacist. Moreover, the
Agency has not even been able to locate the evidence on which it based
its findings. In the absence of any proof presented to the contrary
disputing the affidavits submitted by the State, we conclude that these
employees were "directly supervised" by three different employees.
Therefore, to the extent of the clericals' time is spent in the
performance of the nurse and pharmacist's work, these clericals were
direct supporting staff. Thus, we conclude that 50% of employee HR88's
time and 65% of employee HQ83's time was spent as direct support staff
entitled to 75% reimbursement.
D. I.P.R./Screening Clericals
Clericals HH2P and HQ84 were disallowed SPMP status because they were
supervised by employee HC4E. The State agreed not to contest the
disallowance for employee HH2P because on closer scrutiny it found her
functions probably do not qualify as SPMP support functions. The
parties agreed that since the basis of the disallowance for HQ84 is
because the SPMP status of this employee's supervisor is in dispute, if
the supervisor is found to be an SPMP then this employee would qualify
as direct supporting staff. We determined above that the Agency should
examine on remand whether employee HC4E, who apparently meets the
educational limitation, also meets the functional limitation and, thus,
qualified as an SPMP. Therefore, should the Agency determine that
employee HC4E is an SPMP then employee HQ84 would qualify as direct
support staff. We remand the determination for employee HQ84 also.
Within 30 days of the receipt of this decision, or such longer time as
the Agency may allow, the State should submit information demonstrating
the SPMP support status of the remanded clerical employee. If the State
disagrees with the Agency's determination, it may return to the Board
within 30 days of the receipt of such determination. E. Clerical to
the Director of the Medicaid Program
The State did not contest the disallowance of employees HR85 and HR20.
V. Conclusion
As explained above, with regard to the SPMP positions (see section
III.F. above), we sustain the Agency's disallowance regarding six
employees who do not qualify as SPMP, remand for the Agency's further
consideration the disallowance for seven employees who may qualify as
SPMP, and the disallowance for one employee who apparently meets the
educational limitation and may meet the functional limitation.
For the directly supporting staff positions, we sustain the disallowance
regarding three employees (Position Nos. HH2P, HR85, and HR20) who the
State conceded were not directly supporting staff, reverse the
disallowance regarding seven employees (Position Nos. HQ87, HR3C, HQ63,
HR26, HQ77, HS41 and HQ48) who qualify as directly supporting staff,
reverse the disallowance for two employees (Position Nos. HR88 and HQ83)
relating to the amount of time those employees work for SPMPs, and
remand for further consideration the disallowance for one direct support
employee (Position No. HQ84).
________________________________ Judith A. Ballard
________________________________ Alexander G. Teitz
________________________________ Cecilia Sparks Ford Presiding
Board