Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
SUBJECT: California Department of
DATE: July 27, 1990
Health Services Docket No. 89-239
Decision No. 1178
DECISION
The California Department of Health Services (State) appealed a
determination by the Health Care Financing Administration (HCFA, Agency)
disallowing $4,971,732 in federal financial participation (FFP) claimed
under Title XIX of the Social Security Act (Medicaid) for the period
July 1, 1983 through June 30, 1986. 1/ HCFA's disallowance was based on
a review of administrative expenditures for skilled professional medical
personnel (SPMP). The dispute concerns whether expenditures for certain
employees were properly claimed at the enhanced FFP rate of 75 percent
available for compensation and training of SPMP and supporting staff, or
at the 50 percent rate available generally for administrative costs.
The Agency disallowed the portion of the State's claims for the
contested employees which exceeded the 50 percent rate.
For the reasons explained more fully below, we uphold the disallowance
of the enhanced rate for the positions in dispute except for the Nurse
Evaluator I and II positions in the Performance Monitoring Section which
we determine to be SPMP positions. Applicable law, regulations, and
guidelines
Section 1903(a) of the Act provides for payment of:
(2) . . . 75 per centum of so much of the sums expended . . . (as
found necessary by the Secretary for the proper and efficient
administration of the State plan) as are attributable to
compensation or training of skilled professional medical personnel,
and staff directly supporting such personnel, of the State agency
or any other public agency; plus
* * * *
(7) . . . 50 per centum of the remainder of the amounts expended .
. . as found necessary by the Secretary for the proper and
efficient administration of the State plan. 2/
HCFA's implementing regulations, 42 C.F.R. 432.50(b)(1) and
433.15(b)(5), provide 75 percent FFP for SPMP and support staff.
Sections 432.50(b)(6) and 433.15(b)(7) implement the 50 percent matching
provision generally applicable to FFP claims for costs of program
administration. 3/
The terms "skilled professional medical personnel" and "staff
directly
supporting such personnel" are not defined in the Act. HCFA regulations
in effect during the disallowance period contain the following
definitions at 42 C.F.R. 432.2:
"Skilled professional medical personnel" means physicians,
dentists, and other health practitioners; nurses; medical and
psychiatric social workers; medical, hospital, and public health
administrators, and licensed nursing home administrators; and other
specialized personnel in the field of medical care.
* * * *
"Supporting staff" means secretarial, stenographic, clerical, and
other subprofessional staff whose activities are directly necessary
to the carrying out of the functions which are the responsibility
of skilled professional medical personnel . . . .
The regulations are supplemented by Part 2-41-20 of the Medical
Assistance Manual (Manual), which was issued to state Medicaid agencies
in an Action Transmittal by the Social and Rehabilitation Service
(predecessor agency to HCFA) in July 1975, SRS-AT-75-50. Further
guidance concerning support staff was provided in an April 1976 Action
Transmittal, SRS-AT-76-66.
The Manual contains at section 2-41-20(B) and (C) the following
"principles" which are used to assess claims for 75% FFP:
1. General
* * * *
a. The function of a "skilled professional medical" position
whether at the State or local level, is the principal basis for
determining eligibility for increased Federal matching. The title
of a position or its organizational placement in the Medical
Assistance Unit administering title XIX will be used as subsidiary
evidence to confirm that a staff function is eligible for 75
percent matching.
Support positions derive their eligibility for increased Federal
matching from their direct association with and supervision by
skilled professional medical personnel whether at the State or
local level.
b. Staffing will normally include some employees engaged in
functions which are neither skilled professional medical functions
nor supportive of such functions.
Therefore, salaries and related costs of the total cadre of
personnel involved in the administration of the title XIX program
are not reimbursable at the 75 percent rate.
* * * *
2. Specific
a. The function, rather than the title, of a position is the
significant factor. Staff classified as skilled professional
medical personnel must be in functions at a professional level of
responsibility in the administration of the title XIX medical
assistance program requiring medical subject area expertise.
"Professional" and "medical" functions are defined as follows:
Professional -- the function is at a level which requires college
education or equivalent and it relates directly to non-routine
aspects of the program requiring the exercise of judgment.
Medical -- the function is peculiar to medical programs and
requires expertise in medical services care delivered, studying and
evaluating the economics of medical care, planning the program's
scope, or maintaining liaison on the medical aspects of the program
with providers of service and other agencies which provide health
care.
As a class, these functions require knowledge and skills gained
from professional training in a health science or allied scientific
field. They involve overseeing the delivery of medical care and
services.
Staff positions in which the primary function is the application of
administrative practices and procedures unrelated to the
specialized field of medical care management are eligible for 50
percent matching. For example, a physician in charge of an
accounting operation would be eligible for staff reimbursement only
at 50 percent FFP.
* * * *
c. Support positions claimed at 75 percent matching must directly
support skilled professional medical personnel functions.
Support staff must be in work assignments related in an immediate
way to the direct completion of the work of such professional
medical personnel (e.g., secretaries, statistical clerks,
administrative assistants).
To be eligible for 75 percent matching all such support personnel
must report directly to the skilled professional medical staff and
be supervised by such skilled staff members. Support functions not
related in such direct manner to skilled medical functions are
eligible only for 50 percent matching.
Functional flow charts can provide documentation that support
positions claimed at 75 percent matching are in direct support of
skilled professional medical staff.
d. Where staff time is split among functions at different levels
of Federal matching, the portion of time in each function must be
documented.
C. Examples of Organizational Functions
Following are examples of functions needed to operate State title
XIX programs and the expected level of Federal Matching. . . .
* * * * 5. Audit Staff- 50 or 75 percent FFP
Personnel engaged in routine claims review, such as auditing
whether the codes correctly coincide with billed charges, are
matched at 50 percent. Matching at 75 percent would apply to those
skilled professional medical personnel (and directly supporting
staff) whose function involves assessing the necessity for and
adequacy of the medical care and services provided, as in
utilization review.
6. Other Skilled Professional Medical Personnel - 75 percent FFP
Staff includes personnel such as physicians, dentists, pharmacists,
hospital administrators, medical economists, medical and
psychiatric social workers, and registered nurses who are
responsible for activities such as: providing liaison on
professional medical matters, medical services program development,
medical care assessments, and research and evaluation concerning
all aspects of the delivery and economics of medical services.
Included would be members of medical review and independent
professional review teams.
* * * *
Section 2-41-20(B)(2)(b) of the Manual provides that the official
position descriptions are the "basic substantiation" for a position's
professional medical status. This section also provides for
consideration of "[j]ob announcements emphasizing requirements at or
above the college level in medical care and medical care
administration." Further, its listing under an "appropriate medical
classification" in a dictionary or handbook of occupational titles is a
secondary indicator that a position is a skilled medical position.
The determination of whether a position is a skilled professional
medical one or support staff is not an exact science. Rather, the
determination is based upon the examination of information about the
actual tasks performed by questioned personnel and a reasonable
application of the guidelines set out in the Manual, implementing the
statute and regulations.
Background
In a final review report issued in June 1989, HCFA determined that the
State had improperly claimed FFP at the 75 percent rate for employees
identified generically as SPMP in the State's Cost Allocation Plan (CAP)
and at the 50 percent rate for expenditures not related to Medicaid
administration. State Exhibit (Ex.) 4. The HCFA reviewers examined
certain units covered by the Department of Health Services CAP. The
scope of the review included an examination of the expenditures claimed
by the State as well as an examination of the CAPs for the fiscal years
in question in order to identify the employees or the positions claimed
for 75 percent FFP as SPMP or direct supporting staff which did not
appear to meet appropriate criteria. HCFA examined position
descriptions and/or California State Personnel Board specifications for
each of the employees. HCFA's major review finding was that the State
claimed 75 percent FFP for personal services, travel, and training costs
for certain employees based on generic statements in the CAP of SPMP
status, which HCFA could not substantiate based on the available
documentation. HCFA provided the State with a listing of the questioned
employees, including the position classification codes and amount of
questioned expenditures.
HCFA found: (1) that the functions of some employees did not require the
knowledge or application of medical subject area expertise; (2) that
employees claimed as direct support staff did not work in direct support
of SPMP; (3) that the documentation provided by the State was not
adequate to support a conclusion that the employees in question met the
requisite criteria for SPMP or direct support staff status; and (4) that
for employees whose time was split between SPMP or supporting staff
functions and other functions not eligible for enhanced FFP, the State
did not provide documentation showing the percent of time the employees
were actually involved in performing activities at each level of FFP.
Based on the review findings, HCFA disallowed $5,118,443. This amount is
broken out as follows: (1) $5,032,720 FFP -- the difference between the
State's claim at 75 percent and the 50 percent found allowable; and (2)
$85,723 FFP -- an amount claimed at 50 percent for expenditures
unrelated to Medicaid administration (this part of the disallowance was
not appealed).
The State appealed the disallowance of $2,906,692 claimed for SPMP or
support staff positions in the following units:
o Office of the Deputy Director -- the Associate Governmental Program
Analyst (AGPA) position ($25,912 FFP); 4/
o Field Services Branch -- certain of the disallowed positions in the
Performance Monitoring Section and all disallowed positions in the
Field Office Operations Section ($1,602,037 FFP);
o Benefits Branch -- all disallowed positions ($1,005,529 FFP); and
o Audits and Investigations -- 11 positions ($273,214 FFP).
Analysis
As the Board has noted in prior SPMP cases, whether federal funding is
available at all is not an issue. Rather, the question presented is
whether federal matching is available at the 75 percent rate as opposed
to the 50 percent rate generally available for expenditures necessary
for administration under section 1903(a)(7) of the Act. The Act
provides for enhanced FFP only for expenditures for compensation,
travel, and training for SPMP. As a result, where the record does not
show that the Manual provisions clearly include a disputed position's
functions as SPMP, they are excluded and appropriately matched only at
50 percent. Moreover, the Board has held in analogous circumstances
that where a State is claiming reimbursement of costs at a rate higher
than 50 percent, the State has the burden to show that the costs claimed
are entitled to the higher rate of reimbursement. See New Jersey Dept.
of Human Services, DAB No. 845, p. 7 and cases cited therein. Below, we
discuss the disputed positions and examine whether they meet the
requirements for enhanced FFP.
I. Office of the Deputy Director
A. AGPAs are not directly supporting staff.
The State argued that the AGPA (Position No. 5393) served as an
administrative assistant and thus qualified for enhanced reimbursement
as support staff for the Deputy Director, Medical Care Services, a SPMP.
5/ The State argued that support staff perform work assignments
immediately related to the direct completion of the SPMP's work. The
State contended that the AGPA position assisted the Deputy Director in
(1) legislation, budget, and contract activities, (2) the administration
of the four Medi-Cal divisions, (3) as project leader for various
Medi-Cal program issues, and (4) in the evaluation, planning,
implementation, and prioritization of the Medi-Cal program. The State
therefore argued that the AGPA should be classified as support staff to
the Deputy Director, claimable at 75 percent FFP.
The Act and the regulations provide 75 percent FFP for SPMP and staff
directly supporting SPMP. The applicable regulation defines staff
directly supporting SPMP, as follows:
"Supporting staff" means secretarial, stenographic, clerical, and
other subprofessional staff whose activities are directly necessary
to the carrying out of the functions which are the responsibility
of skilled professional medical personnel . . . .
"Subprofessional staff" means persons performing tasks that demand
little or no formal education; a high school diploma; or less than
4 years of college.
42 C.F.R. 432.2. The California State Personnel Board specification for
this position requires at least a college education (or experience which
is the equivalent) as well as certain work experience involving areas
such as management analysis or policy analysis. The specification
further provides for substituting "graduate work in public or business
administration, industrial relations, psychology, law, political science
or a related field" for the nonsupervisory experience requirements.
State Ex. 12, pp. 2 and 3. This position requires the performance of
consultative and analytical assignments, such as program evaluation and
planning; policy analysis and formulation; systems development; and
budgeting, planning, management, and personnel analysis. The
specification also states that incumbents may work on "complex and
controversial intergovernmental negotiations," as well as "conduct
and
review analytical studies and surveys; formulate procedures, policies
and program alternatives; [and] make recommendations on . . .
administrative and program related problems." State Ex. 12, p. 1. The
Duty Statement specific to this position in the Office of the Deputy
Director provides that the incumbent "performs the more responsible,
varied, and complex technical analytical staff services work" and
"produces written and verbal reports identifying problems or potential
problems, and presents recommended solutions or alternatives to the
Deputy Director." State Ex. 5.
While the AGPA position in this office is described as an administrative
assistant to the Deputy Director, the function of a position, and not
the title of the position, is the significant factor. Manual section 2-
41-20(B)(2)(a). The AGPA position requires formal education and
significant experience; the tasks described above require the incumbent
to work independently on other than routine clerical and office tasks
supporting the Deputy Director. Consequently, while the AGPA position
may "support" the work of the Deputy Director, the job functions of
this
position simply do not fit within the definition of "supporting staff"
and "subprofessional staff." While the Manual refers to "administrative
assistants" as supporting staff, in the context of the Manual provisions
and the regulations, that reference cannot reasonably be read to
encompass a professional position such as the AGPA. See Manual section
2-41-20(B)(2)(c).
Furthermore, as the Agency indicated, the State cannot claim the AGPA
position in one office to be a subprofessional staff position, yet argue
it is a professional position entitled to SPMP status in another, as the
State did here. HCFA Brief, p. 9; State Brief, pp. 7 and 12. Either a
position is professional or it is support staff; the State cannot have
it both ways. If a position is professional, that position is per se
precluded from being categorized as a SPMP support position. See Oregon
Dept. of Human Resources, DAB No. 729 (1986).
Accordingly, we conclude that the AGPA position in the Office of the
Deputy Director does not qualify for enhanced reimbursement as
supporting staff.
B. The AGPA position is not SPMP.
Although the State only argued that the AGPA position in the Deputy
Director's office qualified for enhanced funding as a support position,
the Agency addressed the question of whether the position was SPMP, in
light of the State's assertion that other AGPA positions qualified for
SPMP status.
As we concluded above, there is no question that the AGPA is
professional. The question then is whether the AGPA position requires
"Medical" functions as defined in the Manual.
None of the duties of this position (as described above and in State Ex.
12), however, require "knowledge and skills gained from professional
training in a health science or allied field," as specified in the
Manual. SPMP positions require "medical subject area expertise" to
be
used in the administration of the medical aspects of the program. See
Manual section 2-41-20(B)(2)(a). The State submitted no evidence to show
that the AGPA position required medical subject area expertise or that
the position incumbent had and used such expertise in the performance of
that job. Indeed, the California State Personnel Board specification
described the three classes of positions that make up the Government
Program Analyst series as "subject-matter generalists." The Manual
specifically states that enhanced funding is not available for the
"total cadre of personnel involved in the administration of the Medicaid
program." See Manual section 2-41-20(B)(1)(b). While there is no
question that this position has a role at a high level in program
administration, that is not enough to qualify for SPMP status. The
types of duties described are not "peculiar to medical programs,"
but
rather are the types of duties common to government programs in general,
concerning legislative and public relations as well as budget and
personnel matters. Accordingly, we conclude that the AGPA position is
not SPMP. Thus, this position is properly matched at 50 percent as
opposed to 75 percent FFP.
II. Performance Monitoring Section -- Field Services Branch, Division of
Medi-Cal Operations
Based on its CAP, the State claimed all the positions in this section at
the enhanced rate for the period in question. HCFA determined that,
while there were functions and activities of the Performance Monitoring
Section which appeared to involve SPMP and direct supporting staff, some
employees were not SPMP or direct supporting staff based on their
qualifications and the functions and activities of their positions.
The State argued that the activities of the Performance Monitoring
Section included developing utilization review plans and monitoring the
relative effectiveness of each of the utilization review systems for
programs in which a federal waiver was obtained. Specific activities of
this unit include monitoring and auditing Medi-Cal authorizations and
billings from state hospitals; monitoring utilization review efforts by
the Department of Health; monitoring of utilization review requirements
as established by interagency agreements for home and community-based
care waivers; and monitoring utilization of in-home medical care. The
particular positions in dispute are: Health Care Services Nurse (HCSN)/
Nurse Evaluator (NE) I and II; AGPA; and Staff Services Analyst (SSA).
6/
A. Health Care Services Nurse (now the Nurse Evaluator I and II)
are SPMP.
The State indicated that the HCSNs, now called the NE I and II
(Positions 8144 and 8145), are responsible for determining the quality
of care received by Medi-Cal beneficiaries in health facilities. The
California State Personnel Board specification indicates that these
positions --
perform onsite evaluation of services and quality assurance reviews
of facilities, detect and develop cases where fraud and abuse is
suspected, monitor service provider claims, and conduct site
reviews and audits. Nurse evaluators . . . are responsible for
determining quality of care being received by program beneficiaries
in health facilities and identifying levels of care to meet each
beneficiary's health care needs; for monitoring medical services of
providers; evaluating prior authorization requests for a variety of
medical services; for training and supervising other staff in
regulations and implementation of the Medi-Cal or other health care
programs.
State Ex. 8. 7/
The Agency argued that while some of these duties qualify as SPMP
functions, others clearly do not. The Agency did not cite any examples
of alleged non-qualifying functions other than the function of training
and supervising other staff in regulations and implementation of
Medi-Cal or other health care programs. The Agency, however, argued
that since the position required both SPMP and non-SPMP functions, the
State was required to provide documentation and information to establish
how much of the NE's time was spent on SPMP activities and how much on
non-SPMP functions.
The Manual provides that functions involving assessing the necessity for
and adequacy of medical care and services provided are SPMP functions,
and gives as an example "utilization review." Manual section 2-41-
20(C)(5) and (6). In Oregon, the Board determined that "utilization
review" as described in the Manual encompasses a function broader than
just medical professionals inspecting records and patients at long term
care facilities. The Board found that positions that involved the
analysis of provider and recipient profiles, making judgments about the
necessity and adequacy of care provided or received, and making
decisions about corrective actions indeed qualified as SPMP. Oregon,
supra, p. 40.
Moreover, the Manual further states that SPMP include --
. . . registered nurses who are responsible for activities such
as: providing liaison on professional medical matters, medical
services program development, medical care assessments, and
research and evaluation concerning all aspects of the delivery and
economics of medical services. Included would be members of medical
review and independent professional review teams.
Manual, section 2-41-20(C)(6).
The Duty Statement for these positions clearly describes functions
related to the medical review and utilization review process. While the
Agency cited a training function as a non-qualifying SPMP function, our
review of the record indicates that while the State's job specification
indicated that a NE might be required to provide training and
supervision of staff in regulation and implementation of the program,
the specific Duty Statement for the NE I and II position in the
Performance Monitoring Section does not specify this as a function of
these positions. 8/ Therefore, the record does not support a finding
that the NE I and II positions performed this function.
However, even if these positions were required to train new staff, we do
not agree with the Agency that such a function is necessarily always a
non-SPMP function. The Agency cited the Board's decision in Oregon as
finding that training is not a SPMP function. The Agency has construed
this decision too broadly. In Oregon, the Board determined that a
Training Coordinator position, the only function of which was to
develop, manage and deliver training to the Medicaid program office and
to other State offices, did not qualify as SPMP. This finding, however,
does not mean that training cannot be a SPMP function in certain
instances. If all the functions of a given position are clearly SPMP
functions and training new staff is also a function, then the training
function must be considered in context with the other functions
performed. Consequently, if a position is only involved with medical
reviews and onsite surveys, yet training is also a position function, it
is logical to assume that the training is within the same context
relative to the medical review area. In that instance, training is
correctly considered a SPMP function. In any event, our review of the
Duty Statement for the NE I and II positions does not reveal any
non-qualifying SPMP functions; the record indicates that all of the NE's
(NE I and II) time is spent on SPMP functions. Therefore, we reverse the
disallowance for these two positions.
B. The AGPA position for this section is not SPMP.
As we indicated previously, the AGPA position is clearly professional.
The question here is whether the functions of the position are "Medical"
as required by the Manual and require the knowledge and skills gained
from professional training in a health science or allied scientific
field. Manual section 2-41-20(B)(2)(a). The California State Personnel
Board specification indicates that the incumbents in these positions are
"typically subject-matter generalists." While the incumbents may
perform functions at a professional level of responsibility in the
administration of the Medicaid program, there is no evidence showing
that the performance of these functions require medical subject area
expertise. 9/ The only evidence presented by the State specific to this
position within the Performance Monitoring Section is the Organization
Chart included in the State's CAP. State Ex. 9. The Chart shows only
that there are positions which are SPMP in the same section. The State
explained that --
an AGPA might make an assessment regarding the accessibility, i.e.,
availability of providers, and perhaps an assessment regarding the
timeliness of the care that is provided. These assessments, with
consultation from a medical specialist, also relate to the quality
of care . . . .
State Brief, P.11. The State asserted, therefore, that these AGPA
positions were functionally SPMP. Nevertheless, this is insufficient to
show the particular functions of the position include the kind of
functions for which enhanced reimbursement is allowed. Thus, this
position is properly matched at 50 percent as opposed to 75 percent.
C. The SSA position is not SPMP.
While the State argued that the SSA positions in the Performance
Monitoring Section qualified for enhanced reimbursement as SPMP, the
State's evidence failed to support such a claim. The State did not
submit a duty statement for this position; the only evidence presented
was the California State Personnel Board specification and the
Organization Chart from the CAP. State Exs. 12 and 9. The State
specification stated:
This . . . specification describes a recruiting and developmental
class for persons qualified to perform analytical work in one or
more areas of a broad range of governmental and managerial
problems. Incumbents . . . perform work of average difficulty in a
wide variety of consultative and analytical staff services
assignments such as program evaluation and planning; systems
development; budgeting, planning, training, management and
personnel analysis . . . .
As the Agency pointed out, the State specification required, as the
minimum educational qualifications, the "equivalent to graduation from
college with any major, but preferably with specialization in public or
business administration, accounting, economics, political or social
science, or law." State Ex. 12. While this position is a professional
one (it requires a college education or its equivalent and is
non-routine), there is no indication from the record that the position
functions are peculiar to medical programs or that performance of the
functions required knowledge and skills gained from professional
training in a health science or allied scientific field. As the quoted
language from the job specification clearly indicates, no such expertise
is required for this position. Moreover, this position is intended as
the entry level position to the AGPA position. See State Ex. 12, AGPA
Specification, p. 1. Consequently, if the AGPA position is not SPMP,
neither is the entry level position of the SSA.
As the Manual makes clear, enhanced funding is not available for all
Medicaid administrative personnel. These positions do not have SPMP
status simply because they are in a section with SPMP. The burden was
on the State to demonstrate that these positions had the requisite
functions to qualify as SPMP. The general analytical functions
described in the specification do not meet this burden. Therefore, we
conclude that the SSA position is not a SPMP position. Thus, this
position is properly claimable only at 50 percent FFP.
III. Field Office Operations Section -- Field Services Branch, Medi-Cal
Operations Division
According to the State's CAP, the Field Office Operations Section
monitors twelve statewide field offices. The major function of the
field offices is utilization control of Medi-Cal benefits by
beneficiaries and providers. This encompasses the review of prior
authorizations for benefits requested either by a written or phone
Treatment Authorization Request, the performance of onsite evaluations
to evaluate beneficiary needs, the appropriate placement in health care
facilities, and the conduct of prolonged care onsite evaluations of
Treatment Authorization Requests for skilled nursing and intermediate
care. State Ex. 10. The State indicated that typically a field office
is headed by a Health Care Services Nurse III or by a Staff Services
Manager and staffed by Medical Consultants, Health Care Services Nurses
(Nurse Evaluators), and appropriate clerical support personnel. State
Brief, p. 15. 10/
HCFA's final review report found that "many of the employees in these
units did not appear to meet the Federal criteria for SPMP or direct
support staff." State Ex, 4, p. 23.
The State appealed all disallowed positions in this section. However,
it is unclear from the State's brief which positions were disallowed.
From our review of the record, we concluded that the following positions
are disputed: all clerical personnel, Staff Services Managers, and
AGPAs. (The notice of disallowance specifically stated that FFP was
available for the Social Service Consultant I and II positions, which
had been initially questioned by the reviewers, so these positions are
not in issue before us.)
As this Board has stated repeatedly, where a State is claiming
reimbursement of costs at a rate higher than 50 percent, the State has
the burden to show that the costs claimed are entitled to the higher
rate of reimbursement. See New Jersey Dept. of Human Services, DAB No.
845 (1987). Thus, to the extent there might be positions in the Field
Office Operations Section which were questioned by HCFA, but for which
the State presented no argument or evidence, we uphold the disallowance
without further discussion. We now discuss the positions for which
evidence and argument were submitted.
A. Staff Services Managers are not SPMP.
The State argued that Staff Services Managers (SSMs) should be
considered SPMP because the function of the SSM is to supervise the
field office whose sole function is to conduct Treatment Authorization
Request approvals, do onsite hospital evaluations, and review for
appropriate placements. The State contended essentially that the work
of the field office involves solely SPMP functions.
The Agency argued that the SSM position was not SPMP because its
functions are administrative rather than medical. The Agency also
contended that nothing in the evidence presented indicates that the
position required medical training or medical expertise.
We agree. The California State Personnel Board specification for this
position states:
. . . Incumbents in this series are typically subject-matter
generalists who have demonstrated possession of the strong
analytical skills, managerial abilities, and personal
qualifications to succeed in a broad range of fiscal, management,
staff services and related settings. Incumbents in this series are
responsible for the effective resolution of a broad range of
governmental and managerial problems. They conduct and/or review
analytical studies and surveys: formulate procedures, policies and
program alternatives; make recommendations on a broad spectrum of
administrative and program-related problems; review and analyze
proposed legislation and advise management on its impact or
potential impact; represent the State or a given department as
assigned; and do other work as required.
State Ex. 12. While the SSM supervises an office in which SPMP work and
which appears to be devoted to performing SPMP functions, that does not
mean that the SSM performs SPMP functions. The job specification states
functions which are not "Medical," which indicates that the SSM position
does not require medical expertise. Furthermore, the State has failed to
show that the SSM was making specific medical judgments, as opposed to
directing administrative practices and procedures unrelated to the
specialized field of medical care management. The day-to-day
supervision of SPMP in the field office and administration of the office
does not require medical expertise.
Therefore, we conclude that this position is not a SPMP position; the
State has not shown its entitlement to the enhanced rate of funding.
Thus, we uphold the disallowance with respect to this position.
B. The AGPA position is not SPMP.
The State did not provide any further argument or evidence on the AGPA
position. As we indicated above, while the incumbents may perform
functions at a professional level of responsibility in the
administration of the Medicaid program, there is no evidence showing
that these functions were "Medical" or required medical subject area
expertise. Therefore, we conclude that the AGPA position is not SPMP.
Thus, this position is properly matched at 50 percent as opposed to 75
percent.
C. The State has not shown that the clerical personnel are
directly supporting staff of SPMP.
The State argued that all of the clerical staff in the twelve field
offices qualified as directly supporting staff of SPMP, and, therefore,
the State is entitled to enhanced reimbursement for their salaries,
fringe benefits, travel, per diem, and training. The State contended
that the positions in issue, Medi-Cal Technician, Office Assistant, and
Medical Transcriber, perform duties exclusively in support of the SPMP
functions. 11/ The State further argued that "inasmuch as the entire
mission of the Field Office is to evaluate and respond to issues
regarding medical treatment . . . requiring the use of medical skills
to oversee the delivery of medical care and services, the clerical staff
supporting that mission qualify for 75 percent reimbursement." State
Brief, p. 17. The State provided the Organization Charts and an
affidavit from the Field Services Branch Chief to support its
contention. State Appeal File, Exs. 10 and 10A. The State requested
that the Board apply the finding in its decision in Utah Dept. of
Health, DAB No. 1032 (1989), that supervision in a personnel reporting
sense, in part, by a non-SPMP does not necessarily disqualify clerical
staff as support staff.
We have previously cautioned the State that a blanket claim that all
clerical staff in an office are "directly supporting staff" is subject
to close scrutiny. See California Dept. of Health Services, DAB No.
1149 (1990); and California Dept. of Health Services, DAB No. 646
(1985); see also Manual section 2-41-20(B)(1)(b). Entitlement to
enhanced reimbursement for supporting staff depends on a direct nexus
with SPMP functions. The regulations define "supporting staff" as
staff
"whose activities are directly necessary to the carrying out of the
functions" of SPMP. 42 C.F.F. 432.2. The Manual states that such staff
are in positions whose work assignments are related in an immediate way
to the direct completion of SPMP work. Manual section 2-41-
20(B)(2)(c). In that regard, supporting staff positions report to and
are supervised directly by SPMP. While supporting staff can be
supervised in a personnel reporting sense by someone other than an SPMP,
supporting staff must nevertheless perform work, under the substantive
direction of SPMP, which directly supports SPMP functions. See New
Jersey Dept. of Human Services, DAB No. 845 (1987).
This is not the first SPMP case the State has had before the Board and,
considering the previous cases, the State knows that it has the burden
to establish that the disputed positions qualified for enhanced
reimbursement. See California, DAB Nos. 1149, 1155, and 646. The
State's superficial arguments and the affidavit are inadequate to meet
this burden. The State has not documented that all of the professionals
in the field offices were SPMP. While the affidavit states that the
clerical positions in the field offices worked exclusively in support of
processing the Treatment Authorization Requests by the medical
professionals, the Office Assistant II (OA II) Position Statement (HCFA
Ex. 5) shows that the OA II had duties other than just processing
Treatment Authorization Requests. The evidence in the record is
insufficient to determine what proportion of the clericals' time was
spent on duties with the immediate direct nexus with SPMP functions.
The Organization Charts indicated that typically the clerical staff is
organized separately under a clerical unit under the supervision of a
clerical supervisor. State Ex. 10. Supervision by a clerk supervisor
does not necessarily deprive a clerical employee from directly
supporting staff status. However, under the Board's previous decisions,
a State must show that the duties performed were directly related to the
completion of specific SPMP duties. In DAB No. 1155, the Board even
described the kind of documentary evidence necessary to meet this
burden.
The record here contains no information about specific work assignments
initiated by SPMP in an SPMP role the completion of which SPMP directly
supervised, the standard which must be met. In New Jersey, the State
submitted evaluations and performance reports that described the tasks,
actions, and responsibilities of each of the positions at issue and
listed the specific SPMP for whom the clerical position performed the
tasks. Here, we can only speculate that the SPMP in the field office
(although not all professionals in the field office were SPMP) might
require some supporting staff functions. The State simply has not
provided a basis in this record for a finding about the extent to which
clerical costs might be allocable to any support staff functions with
the "immediate" and "direct" nexus that is required for
75 percent FFP.
Thus, we uphold the disallowance of FFP at the 75 percent rate for the
clerical personnel in the field offices.
IV. Benefits Branch -- Medi-Cal Policy Division
The State described the Benefits Branch as composed of a Clerical
Support Unit supporting the entire branch and two functional sections,
the Benefits Analysis Section and the Medical Services section. The
State argued that, based on the functions performed in this branch, all
personnel qualified as either SPMP or support staff. The State appealed
all positions included in the disallowance. However, it is unclear from
the record which of the positions in this branch were included in the
disallowance. Therefore, we will address only the positions briefed by
the State, upholding summarily the disallowance for any positions for
which the State did not submit evidence and argument.
The State's CAP provides that this office "develop[s] and recommend[s]
policy relating to the scope and provisions for health care services
under the Medi-Cal program . . . . " State Ex. 11. A. The
Benefits Analysis Section
The Organization Chart submitted by the State indicates that this
section is comprised of the following positions: SSM, AGPA, SSA, and
Nurse Consultant. 12/ The State described the personnel in this section
as involved in -- planning, developing, and recommending appropriate
changes to state laws and regulations, interpreting and developing
Medi-Cal regulations as to the scope, quality, and methods of
provision for services covered under the Medi-Cal program and doing
provider/beneficiary consultations, and liaison with professional
organizations.
State Brief, p. 22.
1. SSM, AGPA, SSA are not SPMP.
Simply providing the CAP description of this section and its functions
along with the Organization Chart is not sufficient to establish that
these positions are SPMP. The meager, conclusory description given by
the State does not constitute evidence of SPMP status. Moreover, we
have previously determined above that the SSM, AGPA, and SSA positions
do not qualify as SPMP based on the California State Personnel Board
specifications. The State has provided no evidence to indicate if these
positions have different functions or require different qualifications
to perform the functions required of this section as opposed to the
functions performed in the other offices previously discussed.
Consequently, for the reasons given above concerning these positions, we
conclude that these positions are not SPMP. As we indicated above,
while the incumbents may perform functions at a professional level of
responsibility in the administration of the Medicaid program, there is
no evidence showing that the performance of these functions require
medical subject area expertise. Accordingly, we conclude that the SSM,
AGPA, and SSA positions in the Benefits Analysis Section are not SPMP.
Thus, these positions are properly matched at 50 percent as opposed to
75 percent.
2. The State has not shown that the Nurse Consultant
qualifies as SPMP.
While there is no doubt that a registered nurse has knowledge and
training in a field of medical care, the Manual provides that a SPMP
must perform professional functions that require the use of that medical
expertise. Consequently, as illustrated in the Manual, a physician in
charge of an accounting operation does not qualify as SPMP. Here, the
fact that there is a registered nurse in a position in the office is not
sufficient in and of itself to establish that position as a SPMP. The
State here has not indicated what the specific functions of the Nurse
Consultant are in this office. The only evidence is the general
description of the section's functions, listed above, set forth in the
State's CAP. State Ex. 11. We conclude then that the State has not
adequately documented it claim. Therefore, we uphold the disallowance
for this position as the State has not shown that it is entitled to
enhanced FFP.
B. The Medical Services Section
The State described the functions of this section as including --
1. Interpreting the impact of federal laws and regulations. 2.
Planning, developing, and recommending appropriate changes to State
laws and regulations. 3. Interpreting and developing Medi-Cal
regulations as to the scope, quality, and methods of provision for
services covered by the Medi-Cal program. 4. Interfacing with
the Medi-Cal claims processing entity. 5. Bill analysis. 6.
Fair hearings and appeals. 7. Maintenance of the Medi-Cal Drug
Formulary. 8. Utilization review waiver. 9. Criteria Manual
Revisions. 10. Prepaid health plan emergency case review. 11.
Provider/beneficiary consultations. 12. Liaison with professional
organizations. 13. Develop, implement, and monitor home and
community-based waivers.
The personnel in this section which consist of Pharmacy Consultants,
Consultant Opticians, Medical Consultants, and Nurse Consultant, would
appear by professional training to have the necessary qualifications to
be SPMP. 13/ However, in order to qualify the positions as SPMP, the
State must show that the functions of the position require that
personnel use their specific medical training in the performance of
their work. The State here, however, did not meet this burden. The
State did not present any documentation for any but the Medical
Consultant positions, which were not disallowed. Therefore, the State
did not document that the positions appealed had the requisite "Medical"
functions or required the incumbents to use their professional medical
expertise. We find that the State has not shown that these positions
qualify for SPMP status and enhanced reimbursement.
C. The State has not shown that the clerical personnel are
directly supporting staff of SPMP.
The Organization Chart for the Benefits Branch shows that the clerical
personnel of the branch are organized into a "clerical support unit"
under the supervision of an Office Services Supervisor. State Ex. 11.
The State did not provide job specifications describing the functions of
any of the clerical support staff in this branch; there is no evidence
documenting the specific functions of these positions; and there is no
evidence establishing a direct link between the specific clerical
functions performed and the SPMP for whom the functions are allegedly
performed. Consequently, in the absence of such a linkage, we find, as
we did above with regard to the field offices clerical personnel, that
the State simply has not adequately documented its claim. There is no
basis in this record for a finding about the extent to which clerical
costs might be attributable to any support staff functions with the
"immediate" and "direct" nexus that is required for 75 percent
FFP.
Thus, we conclude that there is no basis for FFP at the 75 percent rate
for the clerical personnel in the Benefit Branch. V. The Audits and
Investigation Division
At issue here are 11 AGPA and clerical positions within the Northern and
Southern California Regional Field Offices Section of the Surveillance
and Utilization Branch of the Audits and Investigation Division. State
Ex. 13. The Agency disallowed enhanced funding for these personnel for
fiscal year 1983-84, yet allowed enhanced reimbursement for later fiscal
years. One position was disallowed for fiscal year 1983-84 and for
fiscal year 1985-86, but not for fiscal year 1984-85. The Agency
subsequently adjusted the disallowed amount upward to include enhanced
funding for all these personnel for fiscal years 1984-85 and 1985-86.
Respondent Ex. 1. The State did not contest this adjustment. 14/
A. The AGPA positions are not directly supporting staff of SPMP.
The State argued that the AGPA and clerical positions qualified as
support staff to SPMP. As we previously indicated above, the AGPA
position is a professional position and as such, cannot qualify as
"directly supporting staff." Furthermore, since the State has presented
no new evidence regarding this position, for the reasons already
discussed above, we conclude that this position does not qualify as
SPMP. The State argued here that it was entitled to enhanced funding
for the period actually disallowed since the Agency had allowed enhanced
funding for part of the fiscal years in question. Apparently there were
some organizational changes within the State that may have contributed
to the Agency's initial, more limited disallowance. In any event, the
failure to disallow for the entire period did not create a presumption
that the disallowance was unsound. Since the State presented no
substantive challenge, we uphold the Agency's disallowance for the AGPA
positions for the years 1983 through 1986.
B. The clerical positions are not directly supporting staff at
SPMP.
Similarly, the State presented no evidence to support a finding that the
clerical positions in dispute were "directly supporting staff" of
SPMP.
The State's Exhibit 13, the organizational chart, fails to provide
evidence linking these specific positions and their functions to SPMP
positions and their functions. The absence of any evidence of this kind
precludes us from finding that the clerical personnel were "directly
supporting staff." Thus, we uphold the Agency's disallowance for these
positions as well.
Conclusion
Based on the analysis above, we uphold the disallowance of the enhanced
rate for the AGPA position in the Office of the Deputy Director; the
AGPA and SSA positions in the Performance Monitoring Section; the SSM,
AGPA and clerical positions in the Field Office Operations Section; the
Clerical Support Unit positions, the SSM, AGPA, SSA, and Nurse
Consultant positions in the Benefits Analysis Section of the Benefits
Branch; the personnel in dispute in the Medical Services Section of the
Benefits Branch; and the AGPA and clerical positions in the Audits and
Investigation Division. We reverse the disallowance with respect to the
Nurse Evaluator I and Nurse Evaluator II positions in the Performance
Monitoring Section.
_____________________________ Judith A. Ballard
_____________________________ Norval D. (John)
Settle
_____________________________ Cecilia Sparks Ford
Presiding Board Member
1. The disallowance was amended during the appeal, as follows:
Amount of original disallowance$ 4,971,732 Amount
withdrawn by the Agency$ (35,336) Amount of Agency
adjustment$ 182,047 Amount of adjusted
disallowance$ 5,118,443
Amount not contested by State$ 2,211,751 Amount of
disallowance at issue$ 2,906,692
2. In paragraphs (1), (3), (4), (5) and (6), section 1903(a) sets the
rate of FFP for other types of expenditures for the Medicaid program.
3. Final regulations amending the requirements for SPMP at the 75
percent rate were published at 50 Fed. Reg. 46652 (1985) and effective
on February 10, 1986. The amendments substantially narrowed the
availability of FFP for SPMP positions. See Montana Dept. of Social and
Rehabilitation Services, DAB No. 1024 (1989) at 12; Oregon Dept. of
Human Resources, DAB No. 729 (1986) at 9-10. HCFA chose to deem these
amended requirements effective as of July 1, 1986. The prior
regulations and implementing Manual provisions cited in this decision
thus apply to govern the FFP rate properly paid for the expenditures at
issue.
4. The State calculated the amount of FFP at issue for this position
as $25,522.82. State Brief, P. 6. The State did not contest the later
submitted, and slightly higher, HCFA figure which we adopt here. HCFA
Ex. 1.
5. The Deputy Director, Medical Care Services, of the California
Department of Health Services is the Director of the State Medicaid
Program. As such, the Deputy Director qualified for 75 percent FFP as a
SPMP. The Deputy Director managed four divisions, Medi-Cal Operations,
Medi-Cal Policy, Capitated Health Systems, and Fiscal Intermediary
Management. In addition to the AGPA position discussed in this section,
the disallowance included positions in two of these divisions, Medi-Cal
Operations and Medi-Cal Policy.
6. The State specifically contested these positions. It is unclear
from our record whether other positions were included in the
disallowance. Accordingly, to the extent the Agency may have disallowed
positions other than those specifically contested here by the State, we
uphold the disallowance for those positions without further discussion.
7. The California State Personnel Board specification describes four
professional nurse classifications used by the Department of Health
Services and other State agencies. State Ex. 8. While the
specification indicates generally the functions of the positions, it is
not specific with regard to the particular functions that may be
required by the Department using these positions. Consequently, some
functions may be indicated on the specification which may not be
included as a function on the duty statement for the position in a
particular office. See Duty Statement, State Ex. 8.
8. The Nurse Evaluator III duty statement does indicate a training
function as part (about 2%) of the overall functions of the position.
9. The State did not provide the Duty Statement for this position
within the Performance Monitoring Section. Therefore, we assume that the
functions for the AGPA in this section can be evaluated based only on
the State specification, which we discussed at length above.
10. The State's Exhibit 10 consists of the Organization Charts for
the twelve field offices. Besides the positions mentioned specifically
by the State in its brief, the Organization Charts also indicate that
Social Service Consultants I and II and AGPAs are employed in some of
the field offices.
11. The State did not present the California State Personnel Board
specifications for these positions or any evidence describing the
functions and duties of these positions other than the affidavit of the
Field Offices Section Chief.
12. The Organization Chart shows an additional position, "HPM", the
supervisor of the professional services unit of this section. The
State did not present any evidence or argument about this position. The
Agency's brief referred to a Health Planning Manager position. It
appears that this is the position referred to in the chart. However, it
is unclear from the disallowance and the record before us whether this
position was disallowed. In any event, the State did not present any
argument or evidence regarding this position. Therefore, if the Agency
disallowed this position as SPMP, we uphold the disallowance without
further discussion.
13. The Medical Consultant positions are not at issue here.
14. Board procedures provide for submission of a brief and appeal
file by the State, followed by a response by the Agency, and a reply
opportunity by the State. The State submitted its initial brief, but
chose not to file a reply brief. The State indicated in a telephone
call to the Board on July 19, 1990, that it had reviewed the HCFA
response and had determined to rely entirely upon its opening brief.
See also Letter from State counsel to Board dated July 17,