DEPARTMENTAL APPEALS BOARD
Department of Health and Human Services
SUBJECT: West Virginia Department DATE: December 27, 1989 of Human
Services Request for Reconsideration of Decision No.
1107
RULING ON REQUEST FOR RECONSIDERATION
The West Virginia Department of Human Services (West Virginia, State)
requested that the Board reconsider its decision to uphold in principle
a disallowance of claims for an enhanced rate of federal funding for
area welfare worker costs charged to Title XIX (Medicaid) of the Social
Security Act. West Virginia Dept. of Human Services, DAB No. 1107
(1989). The Health Care Financing Administration (HCFA) found that the
disputed workers were not skilled professional medical personnel (SPMP)
and, accordingly, disallowed the enhanced rate (75 percent federal
financial participation (FFP)) which is available only for certain costs
of SPMP. In the course of the appeal, the State declined to submit
evidence in support of its claim, relying only on arguments that the
initial disallowance action was deficient. In its decision, the Board
found that there was "sufficient support for the disallowance to oblige
the State to come forward with evidence that the disputed workers met
SPMP standards." DAB No. 1107, p. 2. While the Board upheld the
disallowance in principle, it permitted the State an opportunity to
submit evidence that particular disputed workers met the SPMP standards
set out in applicable regulations.
What we decided in DAB No. 1107 was, in essence, that a summary decision
in the State's favor was not warranted based only on the State's
critique of the disallowance action when (1) the State had a basic
obligation to support its classification of the disputed positions as
SPMP, (2) the record as a whole raised a substantial question about
whether the State's classification was correct, (3) the ultimate issue
presented was clear, and (4) the standards to be met were in published
regulations.
The Board's regulations at 45 C.F.R. 16.13 state that the Board may
reconsider a decision when a party promptly alleges a clear error of
fact or law. As we discuss below, we find no basis for reconsidering
our decision. After examining the reasons advanced here in support of
the request, we are convinced that our decision was sound and decline to
adopt the State's view that the alleged flaws in the Agency's initial
disallowance action support reversal of that action. Thus, we deny the
request for reconsideration and affirm our conclusion that, in light of
the State's overall burden to document its claims for enhanced
reimbursement, evidence which cast doubt on the legitimacy of the
State's claims provided a sufficient basis for the Board to uphold the
disallowance when the State refused to present any affirmative evidence
supporting its claim.
Furthermore, we note that the State has had numerous opportunities to
present information on the obvious substantive issue, individual
personnel qualifications meeting the limitation on SPMP status
established by 42 C.F.R. 432.50 (d)(1)(ii). In its appeal, however, the
State chose to rely only on alleged deficiencies in the Agency's
determination. The disputed decision permitted the State an additional
opportunity to present information on whether these personnel qualified
as SPMP. The State, however, continues to avoid the substantive issue.
This reconsideration request thus fits into the pattern which we
identified in Decision No. 1107: the State is seeking to use a
procedural ploy to delay or avoid providing information on the
substantive issue.
Discussion
1. The context of West Virginia Department of Human Services, DAB
No. 1107 (1989)
The Agency's disallowance was premised on an assumption that social work
personnel per se would not qualify as SPMP under the current regulatory
standards at 42 C.F.R. 432.2 and 432.50, as amended in 1985. That
premise was unsound under Montana Dept. of Social and Rehabilitation
Services, DAB No. 1024 (1989), issued while this case was pending. In
DAB No. 1024, the appellant had argued for the general proposition that
all social workers qualified as SPMP and the federal agency had argued
no social worker met the standards to be SPMP. The Board held that,
under the revised SPMP regulations, medical social workers were
distinguishable as a job category and that those positions were eligible
for the enhanced SPMP rate if filled by a qualified individual. That
case also concerned the limiting criterion of 42 C.F.R. 432.50
(d)(1)(ii). That regulation specifies the requirement for "professional
education and training in the field of medical care or appropriate
medical practice" necessary for an individual to qualify for SPMP
status.
As the Board explained in DAB No. 1107, the earlier standards used to
evaluate SPMP status were much broader. The prior regulations included
no specific academic qualifications and included a wider scope of
functions within the regulatory definition of SPMP. DAB No. 1107, at p.
3.
As a result of the Board's decision in DAB No. 1024, a review of the
personal qualifications of individual social workers is a necessary
element of documenting that a social worker is an SPMP. The record here
contained no evidence that West Virginia had conducted any such review.
The following factors derive from the context in which DAB No. 1107 was
issued and provide strong support for the Board's conclusion that on the
face of the position descriptions alone there was a sufficient basis in
the record to obligate West Virginia to present evidence on the
substantive issue of whether or not these personnel qualified under the
new regulations as SPMP: (1) the applicable regulations had changed,
substantially narrowing the scope of SPMP status; (2) the Board had
found that West Virginia's area office social service workers qualified
for 75 percent FFP as SPMP or support staff under the broader prior
standards (See West Virginia Dept. of Welfare, DAB No. 372 (1982)). The
State recognized that the current case represented the same category of
costs as that earlier case on page 17 of its appeal brief; and (3) West
Virginia did not even allege, much less present any evidence, that it
had evaluated the status of these positions, and in turn the correctness
of its claims at 75 percent, under the new regulations.
2. The sufficiency of the evidence to support this disallowance
The State asserted that the Board upheld the disallowance in error
because the State had presented evidence and argument which had
"completely undermined . . . each one of the stated bases for HCFA's
disallowance." Request, p. 3. The State also argued that the Board had
"overlooked its own precedents" in upholding the disallowance in the
absence of firm proof that HCFA's position was justified for each of the
approximately 218 area service workers in dispute. Request, p. 4.
Essentially, the State argued that HCFA should have the burden of
proving that the disputed workers were not SPMP. In applying this
burden to the underlying facts, the State reiterated its arguments that
the generic position descriptions HCFA relied on did not necessarily
prove that any particular disputed workers did not meet SPMP standards,
because these workers could have had qualifications above the minimum
requirements for their positions. See West Virginia Appeal Brief, pp.
18-19. The State also repeated its arguments that interviews with State
employees, on which HCFA had relied, were flawed. See West Virginia
Appeal Brief, p. 19, n.9, and Exhibit 4.
The State's line of argument is founded on an erroneous view of the
burden of proof applicable here. The State cannot prevail simply by
pointing out that the Agency has not shown that each worker did not meet
the standards when it has done nothing to demonstrate that it had a
reasonable basis for making its claim in the first place. DAB No. 1107
characterized this dispute as related to "who has the burden to present
evidence relating to the SPMP status of the positions." That statement
of the issue recognized that the case had developed beyond the initial
disallowance and that the ultimate issue of whether or not these
personnel qualified as SPMP was appropriately addressed without delay.
The Board could not properly find for the State simply based on its
critique of the Agency's disallowance where the record as a whole showed
that there was a substantial question raised as to the legitimacy of the
State's claim. This disallowance was not frivolous, unwarranted on its
face, or one to which West Virginia could not respond. Thus, there was
no basis presented for a decision in the State's favor. The
circumstances here are in marked contrast to those in Board Docket No.
89-23 where the Board dismissed the Agency's disallowance concluding, in
essence, that there was not sufficient justification for the amount
disallowed to permit the Massachusetts Department of Public Welfare to
respond. See August 21, 1989 ruling (attached).
To support its argument that the Board was ignoring its established
precedents, the State cited a line of Board decisions which, it
asserted, stood for the proposition that "disallowances based on other
than specific evidence of each transaction must be by extrapolation
through valid statistical sampling methodologies." State's Brief, p.
22. See Request, p. 4. In fact, as we explain below, the Board's
holdings in these cases were much narrower. While these two methods of
developing evidence can produce a sound basis for a disallowance, the
Board has never held that these methods are the only way the Agency may
reasonably challenge a State's claim for FFP.
Although in several decisions, the Board has found that evidence
developed through statistical sampling is undercut if the sampling
methodology was not sound (See, e.g., Delaware Dept. of Services for
Children, Youth and Their Families, DAB No. 699 (1985)), the Board has
not required the federal agency to review individual claims or use a
statistical sampling methodology to support all disallowances.
Certainly, these methods can provide persuasive evidence for determining
or quantifying erroneous claims, and may be the most appropriate
technique when the federal agency is examining the propriety of a large
number of individual claims or determinations or when the claims or
determinations were made following procedures which would lend at least
facial legitimacy to a state's claims.
Furthermore, in the decisions cited by the State, the Board did not
shift the underlying burden of proof and eliminate the grantee's burden
to document its claims. Moreover, we stated in DAB No. 1107, at page 6,
the Board has consistently held that grantees bear the ultimate
responsibility to identify and document claims for enhanced
reimbursement. See 45 C.F.R. 74.61 and 92.20. In so holding the Board
has relied, in part, on the narrow limitations on authorizations for
enhanced funding under the Social Security Act and specific Medicaid
documentation requirements. It is well established that states bear a
particular burden in establishing that a claim meets the criteria for an
enhanced rate of federal funding. See, e.g., New York Dept. of Social
Services, DAB No. 204 (1981); Illinois Dept. of Public Aid, DAB No. 376
(1983).
In this case, while HCFA did not use these methods, the evidence it
presented was sufficient to place in doubt the State's claims for an
enhanced rate of federal funding and to raise the question of whether
the State could meet its documentation burden. Also, there is no basis
in this record to conclude that this case was in fact suitable for some
sort of statistical sampling methodology. In fact, it would appear
unsuited since the limitation is personal to each of the individuals
filling the approximately 218 disputed positions, and the State would
need to establish that each individual claimed as SPMP met the
requirements. In any event, while the evidence that HCFA presented does
not have the strength of data developed through individual review of the
disputed workers or a valid statistical sample, this does not mean that
the resulting findings were automatically invalid or unreasonable;
rather, it means that the findings could be rebutted with only a small
amount of evidence to the contrary. The State provided no such
evidence, not even one example of a disputed worker who had been
properly classified as SPMP. Nor do we even have evidence that the
State developed its claim using a process which was likely to arrive at
a correct result.
In sum, the evidence raised a reasonable doubt as to the propriety of
every claim at 75 percent FFP for the area service workers, and the
burden was on the State to show that not all of the claims were
improper. See New Jersey Dept. of Human Services, DAB No. 416, p. 6
(1983). Even if we accepted the State's contention that it fully
rebutted HCFA's evidence that the disputed workers were not SPMP, we
would still be left without a scintilla of evidence that the disputed
workers were SPMP. Since it is the State's burden to document its
claim, without such evidence, we must therefore affirm our decision to
uphold the disallowance, allowing for a downward adjustment to the
extent the State demonstrates that the SPMP classification is correct.
Moreover, we found that the State did not fully rebut HCFA's evidence in
support of the disallowance. As we stated in our decision, while this
case was pending before the Board, the Board held that, under the
revised regulations in effect, a medical social worker with the
requisite personal qualifications would qualify for SPMP status. DAB
No. 1024. Here, the education and training requirements contained in
the position descriptions which HCFA examined do not assure that
incumbents would either hold a Masters of Social Work degree which
reflected education in the health care or medical applications of social
work or otherwise qualify for SPMP status under 42 C.F.R.
432.50(d)(1)(ii). While this does not prove that the disputed employees
were not medical social workers within the scope of SPMP, it draws the
State's claim into doubt. In that circumstance, the State bears the
burden of providing documentation in support of its claim. DAB No.
1107, p. 8.
In DAB No. 1107, it was not necessary to reach the question of the
reliability of HCFA's interviews with State employees because we found
that the position descriptions had raised the issue of personal
qualifications and the State had not provided any documentation in
support of its claim on that issue.
Had we considered the interviews, however, we would have reached the
same conclusion. The State provided evidence that the persons
interviewed may not have had sufficient knowledge to establish that the
disputed workers were not SPMP. While this discredited the evidence to
some degree, the State presented no affirmative evidence which responded
to the allegations raised by the interviews. Even though weak, the
interviews do draw the State's claim into doubt and trigger the State's
burden to provide further documentation in support of its claim. The
State did not meet this burden with affirmative evidence of the personal
qualifications of the disputed workers.
These findings are consistent with the Board's past decisions. As we
explained in DAB No. 1107, on page 6, the key requirement for a
disallowance is that "the federal agency must articulate a reasonable
basis for the disallowance with sufficient detail so that the grantee
may respond." Here, the substantive issue in this case--the personal
qualifications of the disputed workers--had been raised by the review
report. During the course of the appeal, DAB No. 1024 clarified the
significance of this issue. Since the basis for the disallowance was
clear and the State could have responded, we concluded that the
disallowance action was sufficient to withstand the State's relatively
superficial challenge. Under the circumstances here, where the Board
was called upon to issue a decision on a limited record, we determined
that the only reasonable action was to uphold the disallowance subject
to a later reduction.
3. The requirements of 45 C.F.R. 74.304
The State argued that the Board should have remanded the disallowance
for further consideration by HCFA since the Board, in relying on the
position descriptions alone, was making its determination on a different
basis than HCFA's original basis. The State asserted that the Board's
authority is limited to reviewing decisions already made under 45 C.F.R.
74.304 by a constituent agency of this Department. The State argued
that the Board must remand any disallowance when it does not adopt in
full the original basis for the decision of the constituent agency
issued under 45 C.F.R. 74.304.
We reject this argument for several reasons. First, as we noted above,
we relied on the position descriptions alone for the simple reason that
it was not necessary to reach the additional disputed evidence. Had it
been necessary to reach the interview evidence, we would have found that
it supported the same result. Second, even if we had explicitly
rejected the interview evidence, the basis for the Board's conclusion
would not be different from the original disallowance; the original
disallowance was based on both the position descriptions and the
interviews as independent factors. Third, 45 C.F.R. 74.304 does not
operate as a limit on the scope of Board review (although the Board's
regulations at 45 C.F.R. 16.3 provide that a final written determination
is a jurisdictional prerequisite for Board review). While the provision
sets forth standards for final written determinations by constituent
agencies, including the requirement that the constituent agency set
forth its basis for the action taken, the Board decides whether a
disputed determination is justified on the basis of the record as a
whole, which may include more information than originally available to
the constituent agency. The Board may also, on the basis of the factual
record, reach different legal conclusions than those reached by the
constituent agency and may reverse or modify the basis for disallowance.
The key factor present here, which the State's arguments do not account
for, is that the Board's procedures are sufficiently flexible to permit
the State a full opportunity to respond to any further development of
the record or of the basis for disallowance that may occur during the
Board's process. See 45 C.F.R. 16.1, 16.9, 16.13, 16.15, and 16.21.
Moreover, the State was accorded this opportunity here, but chose not to
join on the substantive issue presented, choosing instead to rely only
on the flaws it asserted in the Agency's disallowance. The State would
have us find, in essence, that the matter is frozen in time as of the
initial disallowance action, an approach which we find unacceptably
limiting to both the parties and the Board.
4. Opportunity for further factual development to reduce or
eliminate the disallowance
The State alleged generally that the disallowance was wrong because
HCFA's evidence, particularly the position descriptions, did not
establish that none of the employees were properly classified as SPMP.
In the decision, however, the Board provided the State an opportunity to
submit further affirmative evidence in support of its claim. HCFA had
agreed to review or withdraw the disallowance to the extent appropriate.
Thus, even if some of the area service worker personnel in fact would
meet the SPMP limiting criterion at 42 C.F.R. 432.50(d)(1)(ii), the
Board's decision was not "wrong"--both because the Board had no concrete
information upon which to base a determination that the contested
personnel did in fact qualify and because the decision established the
opportunity for further factual development. Therefore, to the extent
that the disallowance may have been "wrong" with respect to particular
employees, or even with respect to all disputed employees, the Board set
a procedure to address this.
Conclusion
For the reasons stated above, we conclude that the arguments presented
are not sufficient to allege the existence of a clear error of fact or
law in DAB No. 1107 and that the State is attempting to reargue issues
already resolved. Accordingly, we deny the request for reconsideration
and affirm Decision No. 1107. We note, however, that this ruling does
not preclude the Agency from providing West Virginia a further
opportunity to present information on the SPMP status of the area
service workers as discussed in DAB No. 1107.
Donald F. Garrett
Norval D. (John) Settle
Cecilia Sparks Ford Presiding Board Member DEPARTMENTAL APPEALS
BOARD
Department of Health and Human Services
SUBJECT: West Virginia DATE: September 29, 1989
Department of Human Services Docket Nos. 88-230 89-69
89-141 Decision No. 1107
DECISION
The West Virginia Department of Human Services (State) appealed
determinations by the Health Care Financing Administration (HCFA)
disallowing a total of $969,592 in federal financial participation (FFP)
the State claimed under Title XIX (Medicaid) of the Social Security Act
for the period July 1, 1986 through September 30, 1988. HCFA disallowed
the difference between the enhanced FFP rate of 75% applicable to
certain costs of skilled professional medical personnel (SPMP), which
the State claimed, and the 50% rate generally applicable to
administrative costs under the Medicaid program, because it found that
the enhanced SPMP rate was not available under the current regulations.
During the course of this appeal, as we discuss further below, HCFA
reduced the disallowance by $39,887 based on its review of support staff
costs in light of the Board's decision in Utah Dept. of Health, DAB No.
1032 (1989). HCFA also withdrew the amount of $164,963 related to
contractual agreements for survey and inspection personnel, so that it
could develop issues related to these agreements in a separate
disallowance. The remaining amount in dispute is $764,742.
The remaining dispute has two separate issues. The first issue is
whether the current regulatory standards at 42 C.F.R. 432.2 and 432.50,
as amended in 1986, which HCFA applied to central office personnel, are
valid. As the parties requested, we uphold the disallowance on this
issue summarily in light of limitations on the Board's authority to
consider the validity of regulations. The second issue is whether the
disallowance was deficient because HCFA did not state a rational basis
for its determination that the 218 social workers from area (local)
welfare offices were not SPMP under the regulatory standards for
academic credentials. We find that there is sufficient support for the
disallowance and to oblige the State to come forward with evidence that
the disputed social workers met SPMP standards. Therefore, we uphold
the disallowance on this issue in principle, but we permit the State 30
days after receiving this decision (or such longer period as HCFA may
permit) to submit evidence showing that particular social workers met
the SPMP standards.
Background
Under Title XIX of the Act, FFP is generally available at the rate of 50
percent for administrative costs of state Medicaid programs. Section
1903(a)(7) of the Act. An enhanced rate of 75 percent is authorized in
"sums expended . . . (as found necessary by the Secretary for the proper
and efficient administration of the State plan) as are attributable to
compensation or training of skilled professional medical personnel . . .
." Section 1903(a)(2).
The current implementing regulations define SPMP as:
physicians, dentists, nurses, and other specialized personnel who
have professional education and training in the field of medical
care or appropriate medical practice . . . . It does not include
other non-medical professionals such as public administrators,
medical analysts, lobbyists, senior managers or administrators of
public assistance programs or the Medicaid program.
42 C.F.R. 432.2. These regulations further state that SPMP must have
"professional education and training in the field of medical care or
appropriate medical practice." 42 C.F.R. 432.50(d)(1)(ii). This is
defined as:
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.
Id.
Prior to the revised regulations, effective February 10, 1986, the
standards used to evaluate whether personnel could be classified as SPMP
were much broader. See Oregon Dept. of Human Resources, DAB No. 729
(1986). The prior regulations included no specific academic
qualifications for SPMP and also included a wider scope of functions
within the regulatory definition: "physicians, dentists, and other
health practitioners; nurses; medical, hospital and public health
administrators; and other specialized personnel in the field of medical
care." 42 C.F.R. 432.2 (1984). These regulations were supplemented by
provisions in Part 2-41-20 of the Medical Assistance Manual.
Case Background
This case involves three different factual components, one of which was
withdrawn during the course of these proceedings. The first component
related to central office employees whom HCFA found lacked the academic
credentials and support staff associated with those employees. During
the course of this appeal, the Board issued Decision No. 1032, in which
the Board found that personnel were SPMP support staff if directed by
SPMP, even if nominally supervised by non-SPMP such as a lead clerical
employee. After reviewing that decision, HCFA reduced the number of
support staff included in the disallowance to one full position and half
of one position, finding that the other contested positions received
substantive direction from an SPMP. By letter dated August 21, 1989,
HCFA reduced the disallowance by $39,887.
The second component related to costs of contractual agreements with
other State agencies to provide certification and inspection personnel.
HCFA originally determined only that certification and inspection
personnel could not be claimed at the SPMP rate. During the course of
the appeal, HCFA challenged whether the costs could be claimed under
Medicaid at all, even at the general 50 percent rate. In light of this
change in its position, HCFA agreed that it would withdraw this part of
the disallowance in order to raise this issue as part of a separate
proceeding. In a letter dated August 31, 1989, HCFA formally withdrew
the disallowance related to these contracts, a total of $164,963, in
anticipation of the reissuance of the disallowance.
The third component related to the costs of approximately 218 service
workers in area welfare offices performing social work functions. HCFA
argued that the workers were not SPMP because their positions did not
involve SPMP functions and because there was no evidence that the
service workers met the personal qualifications for SPMP.
Discussion
I. Validity of the current regulations
In response to HCFA's assertion that certain central office staff did
not have the requisite academic qualifications under the current
regulations at 42 C.F.R. 432.50(D)(1)(ii), the State conceded that the
disputed personnel did not meet those qualifications but challenged the
validity of the current regulations as an unlawful interpretation of the
statutory provisions concerning SPMP. The State conceded that the
current regulations were "applicable" in the sense that they cover
the
subject matter of the dispute and were duly promulgated in accordance
with notice and comment rulemaking requirements. Before presenting its
full arguments and evidence, the State requested a ruling as to whether
the Board had authority to consider its challenge to the regulations in
light of the requirement in 45 C.F.R. 16.14 that "[t]he Board shall be
bound by all applicable laws and regulations."
HCFA also took the position that the Board's authority to review
challenges to regulations is limited. HCFA further asserted that it
would be more efficient to defer the factual questions associated with
the State's challenge to the regulations until the conclusion of any
judicial challenge on the validity of the regulation. HCFA argued that
to preserve the legal questions for judicial review the State did not
have to present evidence and argument to the Board on the issue of the
status of these positions under the prior regulations, which the Stat
argued are controlling, HCFA Brief, pp. 7-8. The State subsequently
withdrew its request for a preliminary ruling, assuming that the Board's
decision would reflect the parties agreement that the Board lacked the
authority to invalidate the regulations. Conference Calls, May 18 and
30, 1989.
Accordingly, we uphold the part of the disallowance related to central
office employees (7 professional staff and 1.5 supporting staff
positions) because West Virginia conceded that the employees did not
qualify for 75% FFP under the current regulations and raised no issues
other than the validity of the applicable regulations.
II. Sufficiency of the disallowance of area welfare office personnel
HCFA disallowed the enhanced rate for approximately 218 local area
welfare office service workers based on a review finding that these
individuals were not SPMP. The dispute related to these workers
revolves around the question of who has the burden to present evidence
relating to the SPMP status of these positions. West Virginia argued
that the disallowance action was inadequate because HCFA had not
reviewed each individual or done a statistically valid sample prior to
its determination that the education and training standards for SPMP
status had not been met. The State alleged, and HCFA did not contest,
that HCFA based the disallowance on two generic position descriptions
and interviews with three state employees who were not service workers
in dispute. West Virginia argued that this was not sufficient evidence
to bring into dispute its claims for the enhanced rate of FFP. Relying
on its argument that the disallowance was deficient, the State did not
present any evidence related to the disputed workers.
As the Board has discussed in past cases, grantees bear the ultimate
responsibility to identify and document claims. See, e.g., New York
Dept. of Social Services, DAB No. 204 (1981). On the other hand, in
challenging claimed costs, the Board has found that the federal agency
must articulate a reasonable basis for the disallowance with sufficient
detail so that the grantee may respond. See, e.g., Arkansas Dept. of
Human Services, DAB No. 671 (1985).
We find that HCFA here has provided a sufficient basis to draw the claim
for the enhanced rate into question and to provide the State with a
basis to respond. As the audit report indicates, HCFA based the
disallowance primarily on the theory that positions with social worker
positions could not qualify as SPMP because such positions were not
medical in nature. In its response to the State's comments on the
audit, HCFA also raised the issue of the personal qualifications of the
individuals claimed as SPMP, thus providing a basis for the State to
respond to this issue. See State Ex. 1, unnumbered p. 19 (section F.3).
HCFA reiterated this issue in its response brief.
If HCFA had contended only that social workers could never be SPMP,
these might indeed be reason to reverse this part of the disallowance.
In the recent case of Montana Dept. of Social and Rehabilitation
Services, DAB No. 1024 (1989), the Board rejected this argument, finding
that medical social workers could be distinguished as a job category and
that those positions were eligible for the enhanced SPMP rate if filled
by a qualified individual. HCFA did not raise any new arguments here,
but questioned, based on the content of the position descriptions,
whether the positions required that the incumbents meet the
qualification for SPMP status.
The central issue HCFA raised here is whether the individuals actually
in the positions had the requisite personal qualifications to be claimed
as SPMP. In Montana, on the basis of a more detailed record than the
one before us here, the Board concluded that a degree in social work
alone was not sufficient to meet the qualifications of an SPMP under the
current regulations. Montana, pp. 15-19. The Board found that a
Masters of Social Work degree from a 2-year graduate program at an
accredited college or university would meet the basic academic standards
for an SPMP only if the educational program specifically included study
of the health care and/or medical applications of the social work field.
In this case, we find that the position descriptions provided sufficient
support for HCFA's finding that the incumbents did not meet the
requisite personal qualifications, so that the burden shifts to the
State to respond with evidence of such qualifications. The position
descriptions do not require, by their terms, that incumbents hold
graduate social work degrees or be within the definition of a medical
social worker. State's Ex. 3. Thus, the position descriptions do not
alone demonstrate that all of the disputed position incumbents were
medical social workers with the requisite educational qualifications.
While HCFA admitted that it had not reviewed the educational background
of any of the individuals involved, HCFA had a basis in the position
descriptions to doubt that the individuals had the qualifications to be
considered SPMP. Telephone Conference, May 30, 1989. Furthermore, the
State had sufficient information to be able to defend its claims; it
knew which individuals were disputed and had the personnel information
necessary to present evidence on this issue.
We find that it is consistent with regulations, Board precedent and
logic to place the burden here on the State. The regulations at 45
C.F.R. 74.61 and 92.20 clearly place the burden of documenting claims on
the grantee, and includes the duty to provide source documentation. In
prior cases the Board has specifically found that, since the SPMP
enhanced rate is not generally available, states bear the burden of
showing how a position qualifies for the higher rate. See Illinois
Dept. of Public Aid, DAB No. 376 (1983). Additionally, this result is
supported by logic since the information about the employees was in the
State's control.
Although we thus find the disallowance was sufficient and, in essence,
uncontested on this issue, HCFA has offered to review any further
information West Virginia provides in support of its claim. Therefore,
we uphold the disallowance on this issue subject to HCFA's review of any
information the State may submit to HCFA in support of its assertion
that any of the disputed individuals had the requisite personal
qualifications of SPMP. The State should submit this information within
30 days after receiving this decision (or such longer period as HCFA may
permit). If the parties cannot read an agreement based on this
additional information, the State may return to the Board on this
limited issue.
Conclusion
For the reasons we discuss above, we summarily uphold the part of the
disallowance related to central office employees. We also uphold,
subject to adjustment, the part of the disallowance related to area
welfare offices.
Donald F. Garrett
Norval D. (John) Settle
Cecilia Sparks Ford Presiding Board