Alabama Department of Human Resources, DAB No. 1220 (1991)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Appellate Division

SUBJECT: Alabama Department of Human Resources
Docket No. 90-184
Decision No. 1220

DATE:  January 25, 1991

DECISION

The Alabama Department of Human Resources (Alabama or State) appealed a
determination of the Office of Child Support Enforcement (OCSE or
Agency) to disallow federal financial participation in the amount of
$67,543 claimed under title IV-D of the Social Security Act (Act).  The
State's claim was for county indirect costs for fiscal years 1984
through 1987.  The claim was disallowed because it was not filed within
the two-year period required by statute and regulations.

We agree with the Agency that the claim was untimely, and we therefore
uphold the disallowance in the amount of $67,543.


Background

The record reflects that since 1976, the State had entered into
cooperative agreements with Mobile County to provide title IV-D child
support enforcement services. Beginning in October 1985, Mobile County
sought reimbursement from the State for indirect costs (salaries and
wages) charged to Mobile County's child support enforcement program.
State's Brief (Br.), p. 2; State's Exhibit (Ex.) 1, p. 1.

However, because of a dispute over the allocation of costs between title
IV-D and non-title IV-D activities within Mobile County's program, the
State refused until 1989 to reimburse Mobile County for any of its
indirect costs.  State's Br., p. 3; State's Ex. 1, p. 1.  Moreover, the
State did not seek federal funding for any of these indirect costs
during this period of time.  State's Br., pp. 2-4.

In November 1989, after resolving the dispute, the State issued payment
to Mobile County for its title IV-D indirect costs incurred from fiscal
year 1984 through fiscal year 1987.  Thereafter, the State sought
federal participation in these costs by claiming them as prior quarter
expenditure adjustments on its Quarterly Report of Expenditures and
Estimates filed on February 15, 1990, and later revised March 1, 1990.
State's Exs. 6, 7.  The State's claim in the amount of $67,543 was
disallowed by the Regional Administrator of the Family Support
Administration (FSA), because it was untimely under 45 C.F.R. 95.7.
This disallowance was affirmed by the Director of OCSE.  See FSA
Regional Administrator's Letter dated March 5, 1990; OCSE Director's
Letter dated August 8, 1990.


Applicable Statutory and Regulatory Provisions

Section 1132(a) of the Act prohibits the payment of federal funding for
any expenditure that has not been claimed within two years after the
calendar quarter in which the State made the expenditure, except that
this subsection is not to be applied "so as to deny payment with respect
to any expenditure involving court-ordered retroactive payments or audit
exceptions, or adjustments to prior year costs."

The implementing regulations, found at 45 C.F.R. Part 95, Subpart A
(1984), repeat the two-year limitation period in which states must file
their claims, and list the exceptions to the time limits, including "any
claim for an adjustment to prior year costs."  45 C.F.R. 95.19(a). An
"adjustment to prior years costs" is defined as "an adjustment in the
amount of a particular cost item that was previously claimed under an
interim rate concept and for which it is later determined that the cost
is greater or less than that originally claimed."  45 C.F.R. 95.4.

The regulations also define in which quarter an expenditure is
considered to have been made.  See 45 C.F.R. 95.7; 95.13.  For a state's
expenditures for services under title IV-D, the regulations provide that
such expenditures are considered "to have been made in the quarter in
which any State agency made a payment to the service provider."  45
C.F.R. 95.13(b).

For purposes of expenditures for support enforcement services under
title IV-D, a "state agency," is defined as "any agency or organization
of the State or local government which is authorized to incur matchable
expenses."  See 45 C.F.R. 95.4.

Also applicable are the regulatory provisions at 45 C.F.R. Part 304,
which set forth the requirements for federal financial participation for
title IV-D services. Specifically, 304.25(a) provides in part that:

 Expenditures are considered to be made on the date on which the
 cash disbursements occur or the date to which allocated in
 accordance with Part 74 of this title.  In the case of local
 administration, the date of disbursements by the local agency
 governs. In the case of purchase of services from another public
 agency, the date of disbursements by such other public agency
 governs.

(Emphasis added.)


Analysis

The State argued that its claim was filed within two years of the
quarter in which the State made the expenditures and, therefore, was not
barred by 45 C.F.R. 95.7.  State's Br., p. 7.  The State's position was
that Mobile County was the "service provider" within the meaning of 45
C.F.R. 95.13(b).  Thus, according to the State, the claimed expenditures
were not made and the two-year time period for filing its claims did not
begin to run until November 1989, when Alabama reimbursed Mobile County
for its costs.  The State also cited New Jersey Dept. of Human Services,
DAB No. 1016 (1989), in arguing that the expenditures were not made by
the State until the accounting transactions determining the amounts of
the expenditures were entered.  State's Br., p. 13.

The regulatory provision at 45 C.F.R. 95.13 does not support the State's
position.  A "state agency" for purposes of expenditures for support
enforcement services under title IV-D means:

 any agency or organization of the State or local government
 which is authorized to incur matchable expenses;

Thus, Mobile County is a "state agency" as defined in 45 C.F.R. 95.4.
The regulation at 45 C.F.R. 95.13(b) would apply only if these payments
had been made by Mobile County (a state agency) to a service provider.
It does not apply to payments made by the State to Mobile County.

The State's reliance on New Jersey is also misplaced.  Although New
Jersey involved a determination of when an expenditure is made, the
claims at issue were for Medicaid services provided by public
residential treatment centers.  The Board held that the expenditures
were not "made" within the meaning of 45 C.F.R. 95.13(b), when the
treatment centers paid their employees.  The Board reasoned that under
Medicaid, a state does not file for each item of cost incurred by each
facility.  Rather, the claim a state makes is an amount equal to the
federal medical assistance percentage of the total amount expended by
the State as medical assistance under the state plan, i.e., expended for
the care and treatment of patients (Medicaid services).  This is not the
same as claiming the actual costs of each item used by the facility.  In
fact, as the Board noted, "many of the costs may not be allowable costs
under the state Medicaid plan method for determining the reimbursement
rate eligible for federal participation."  New Jersey, p. 4.

Since the states provide for payment for services under Medicaid through
the use of reimbursement rates determined in accordance with methods and
standards developed by the states, the Board determined that a rate of
reimbursement must be set before a state can submit a claim for federal
funding for Medicaid services under title XIX.  New Jersey, pp. 5-6.

Unlike New Jersey, Alabama's claim was for the actual costs of wages and
salaries incurred by the Mobile County title IV-D program for fiscal
years 1984 through 1987. The regulation at 45 C.F.R. 304.25(a)
specifically states that such expenditures are considered to have been
made on the "date of disbursement."  Since these expenditures were made
from fiscal years 1984 through 1987 (dates of disbursement), yet not
claimed by the State until February 1990, the State's claim was not made
within the two-year filing period mandated by section 1132 of the Act
and was, therefore, untimely.

Alabama argued, in the alternative, that its claim falls within the
exception contained at 45 C.F.R. 95.19(a). This regulation implements
one of the exceptions contained in section 1132 of the Act and provides
that the time limit in 45 C.F.R. 95.7 does not apply to any claim for an
"adjustment to prior year costs."

However, this is not a case where the State submitted earlier claims for
indirect costs and then adjusted the amount.  Nor is it a case in which
the State simply overlooked these costs; rather, Alabama chose not to
include these costs until it resolved its dispute with Mobile County.
See South Carolina State Health and Human Services Finance Commission,
DAB No. 943 (1988), aff'd, No. 88-1313-16 (D.S.C. July 17, 1989), aff'd,
915 F.2d 129 (4th Cir. 1990).  As already noted, the State's claim was
for costs which had not been previously claimed on any basis.  State's
Br., p. 15.  The State's claim, therefore, cannot be considered as an
adjustment to prior year costs, since this term is defined as "an
adjustment in the amount of a particular cost item that was previously
claimed . . . . . "  45 C.F.R. 95.4.

Finally, the State argued that the Agency's disallowance was "imposed on
technical grounds rather than grounds of substance."   State's Br., p.
18.  The State cited a number of Board decisions in arguing that we
should reverse this disallowance.

The cases cited by Alabama do not support its position. Two of these
cases were under Medicaid and involved an interpretation of a state
plan. 1/  The third case,  Alabama Dept. of Human Resources, DAB No. 939
(1988), involved an issue of prior Agency approval for costs under title
IV-A.  The Board upheld the disallowance in Alabama, but stayed the
effect of its decision to allow the parties an opportunity to consider
whether retroactive approval of the disputed costs was warranted.

Here, we are not dealing with the interpretation of a state plan
provision, but instead, determining the applicability of a federal
statute and implementing regulations.  The timely claims provision of
section 1132 of the Act is not a mere technicality, it is a
congressional mandate.  The Board has no authority to ignore that
mandate, nor reverse a disallowance on general equitable grounds.  New
Jersey Dept. of Human Services, DAB No. 1142 (1990).

The purpose of the timely claims limitation is to prevent the states
from coming in many years after expenditures are made, because such
delayed claiming makes it difficult for the Department of Health and
Human Services to plan its budget.  The exceptions to the time
limitations were intended to cover only extreme situations, where it
would be patently unfair to a state to outlaw its claim merely because
of the passage of time.  New York State Dept. of Social Services, DAB
No. 521 (1984).  That is certainly not true in the present case; the
State here was well aware of the county's claims throughout the timely
claims period.


Conclusion

Accordingly, we uphold the disallowance in the amount of $67,543.

 


     ___________________________
       Judith A. Ballard

 


     ___________________________
     Norval D. (John) Settle

 


     ___________________________
     Alexander G. Teitz Presiding
     Board Member .1.    Alabama
cited two cases under Medicaid, Kansas Dept. of Social and
Rehabilitation Services, DAB No. 1026 (1989), and New Jersey Dept. of
Human Resources, DAB No. 1090