Department of Health and
Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
SUBJECT: New Jersey Department DATE: August
18, 1993 of
Human
Services Docket Nos. A-92-211 A-93-47 A-93-48 Decision
No.
1434
DECISION
The New Jersey Department of Human Services (New Jersey) appealed
three
determinations by the Health Care Financing Administration
(HCFA)
disallowing a total of $2,049,315 in federal financial
participation
(FFP) claimed by New Jersey under Title XIX of the Social
Security Act
(Medicaid). 1/ New Jersey claimed FFP for compensation for
certain
medical social workers at the enhanced FFP rate of 75% available
for
compensation of skilled professional medical personnel (SPMP).
HCFA
disallowed the portion of New Jersey's claims that exceeded the 50%
rate
generally applicable to administrative costs for the Medicaid
program.
As discussed more fully below, we find that New Jersey
reasonably
interpreted the Act and the regulations to include medical
social
workers as professionals who could qualify as SPMP, since
the
legislative history of the Act includes medical social workers and
the
regulations (including the preamble) do not exclude them. On the
other
hand, since the regulations during the relevant time required that
a
state demonstrate that personnel claimed as SPMP have
"professional
education and training in the field of medical care or
appropriate
medical practice" (42 C.F.R. . 432.50(d)(1)(ii)), it was not
reasonable
for New Jersey to claim, as SPMP, personnel who held Bachelor's
or
Master's degrees in social work without providing evidence that
those
personnel had professional education and training in the field
of
medical social work. HCFA could not rely on its most
recent
interpretation of the regulations, Medicaid State Operations
Letter
#92-1, as dispositive on the issue of whether New Jersey had
provided
adequate evidence that personnel claimed as SPMP had the
requisite
education and training, because that interpretation was issued
well
after the disallowance periods. Consequently, after concluding
that
certain positions had functions requiring the professional knowledge
and
skills of a medical social worker, we examined New Jersey's
evidence
concerning each incumbent's education and training in the field
of
medical care or appropriate medical practice in light of the
applicable
regulations. As a result of our review, we upheld some of
HCFA's
determinations, and we reversed those where we found that New
Jersey
provided adequate evidence to show that the incumbent satisfied
the
regulatory standard.
I. Applicable Authority
Section 1903(a)(2) of the Social Security Act (Act) provides for FFP
at
the enhanced rate of 75% for states' Medicaid costs that are
properly
attributable to the compensation and training of SPMP. Costs
for state
personnel who do not meet the SPMP requirements are reimbursed at
the
50% rate generally applicable to FFP claims for costs of
administration.
Section 1903(a)(7).
HCFA implementing regulations, 42 C.F.R. . 432.50(b)(1) (1986),
provide
75% FFP for SPMP costs. 2/ Section 432.50(b)(6) implements the
50%
matching provision generally applicable to FFP claims for costs
of
administration.
The term "skilled professional medical personnel," which is not defined
in
the Act, is defined at 42 C.F.R. . 432.2 as:
[P]hysicians, dentists, nurses, and other
specialized personnel who
have professional
education and training in the field of medical
care
or appropriate medical practice and who are in an
employer-employee relationship with the Medicaid agency. It
does
not include other nonmedical health
professionals such as public
administrators, medical
analysts, lobbyists, senior managers or
administrators of public assistance programs or the
Medicaid
program.
Section 432.50(d) of 42 C.F.R. states the following limitations on
the
availability of 75% FFP: 3/
(1) Medicaid agency personnel and staff.
The rate of 75 percent
FFP is available for skilled
professional medical personnel and
directly
supporting staff of the Medicaid agency if the
following
criteria, as applicable, are met:
* * *
(ii) The skilled professional medical
personnel have professional
education and training
in the field of medical care or appropriate
medical
practice. "Professional education and training" means
the
completion of a 2-year or longer program leading
to an academic
degree or certificate in a medically
related profession. This is
demonstrated by
possession of a medical license, certificate, or
other document issued by a recognized National or State
medical
licensure or certifying organization or a
degree in a medical field
issued by a college or
university certified by a professional
medical
organization. Experience in the administration,
direction,
or implementation of the Medicaid program
is not considered the
equivalent of professional
training in a field of medical care;
[and]
(iii) The skilled professional medical
personnel are in positions
that have duties and
responsibilities that require those
professional
medical knowledge and skills.
* * *
The preamble to the final regulation provides further
explanation
concerning HCFA's definition of SPMP. The preamble states
that:
the law [section 1903(a)(2) of the Act] did not
intend to provide
75 percent FFP merely to any staff
person who has qualifying
medical education and
training and experience, without regard to
his
actual responsibilities. Rather, the function performed by
the
skilled professional medical personnel must be
one that requires
that level of medical expertise in
order to be performed
effectively.
Consequently, 75 percent FFP is only available for
those positions that require professional medical knowledge
and
skills, as evidenced by position descriptions,
job announcements,
or job classifications.
50 Fed. Reg. 46,652, at 46,656 (November 12, 1985).
II. Background
This decision covers disallowances which were previously before the
Board
but were withdrawn by HCFA without prejudice in light of two Board
decisions
dealing with SPMP costs, Montana Dept. of Social and
Rehabilitation Services,
DAB No. 1024 (1989), and Utah Dept. of Health,
DAB No. 1032 (1989). In
Montana, the Board determined that the
regulations at 42 C.F.R. .
432.50(d)(1)(ii) and (iii) set certain
educational and functional limitations
on the availability of 75% FFP
for SPMP. In particular, in Montana at
3-4, the Board stated:
A two-year graduate degree in social work from an
accredited
college or university is the accepted
education and training for
medical social work. . .
. Having decided that a graduate social
work
degree accompanied by academic work in medical
subjects
qualifies under the Agency's regulations,
we emphasize that we are
not deciding here what
combinations of academic degrees and
clinical work
qualify or do not qualify. This decision does
not
limit HCFA's discretion to deal flexibly with
the varied
circumstances which may exist.
The Board reiterated its position in Utah. Subsequently, HCFA
withdrew
the pending New Jersey disallowances.
On January 7, 1992, HCFA issued Medicaid State Operations Letter
#92-1
(New Jersey exhibit (ex.) 2) to state Medicaid agencies as a
statement
of HCFA's policy regarding the professional education requirements
for
social workers to qualify for enhanced funding as SPMP. Thereafter,
in
June and November 1992, HCFA reissued the three disallowances at
issue
here. HCFA found that either the functions of the positions did
not
qualify for SPMP enhanced funding or the employees in those
positions
did not have the requisite education and training to qualify for
such
funding. The three disallowances involved four categories of
medical
social workers:
o PD#60055 - Medical Social Care Specialist I o
PD#60054 - Medical
Social Care Specialist II o
PD#60176 - Medical Social Work
Consultant I o
PD#60174 - Medical Social Work Consultant II 4/
First, we discuss New Jersey's arguments that the disallowances should
be
overturned due to defects in the process, including HCFA's reliance
on Letter
#92-1. Next, we discuss whether the functions of the Medical
Social Care
Specialist I and II positions qualify for enhanced funding
even though the
minimum education required is a Bachelor's degree.
(HCFA conceded that the
Medical Social Work Consultant I and II
positions met the functional
requirement.) Next, we address New
Jersey's contention that all persons
holding Bachelor's or Master's
degrees in social work should automatically be
considered SPMP. We then
consider whether the position incumbents have
the necessary education
and training to qualify for SPMP status under the
applicable
regulations.
III. Analysis
A. Procedural Objections
New Jersey raised a number of objections to the current
disallowances,
each of which, if successful, could result in our overturning
those
determinations without reaching the merits. Thus, we consider
these
objections first.
1. Letter #92-1 is inapplicable to the dispute here.
New Jersey argued that it was patently unfair for HCFA to rely on
Letter
#92-1 because that letter was not issued until the earlier
disallowances
(on which this present action is based) were dismissed
without
prejudice. According to New Jersey, HCFA was using Letter #92-1
only to
cover its continued belief that medical social workers are not
generally
eligible for SPMP funding. New Jersey strongly objected to
HCFA's
retroactive application of this 1992 policy to its earlier claims;
it
argued that New Jersey cannot be expected to comply with this
policy
when it did not know what HCFA expected until 1992. New Jersey
also
contended that Letter #92-1 was an agency pronouncement that
was
required to be published in the Federal Register by
section
552(a)(1)(D)-(E) of the Administrative Procedure Act before it may
be
applied to New Jersey's detriment. Moreover, New Jersey contended
that
it has been further prejudiced by HCFA's attempt at imposing
new
requirements on determining SPMP status because many of the employees
at
issue no longer work for the State and obtaining the
requisite
information required now by HCFA is in some instances impossible.
New
Jersey alleged that if HCFA wanted more information on the
disputed
employees' education and training, then HCFA should have taken
steps
other than issuing Letter #92-1 to let New Jersey know
what
documentation is required.
In Montana, the Board held--
the Agency is obliged under its regulations to
recognize at least
individuals with those
qualifications [a Master's in Social Work
degree
together with evidence of academic work specifically
including the health care and/or medical applications of the
social
work field] as having the requisite education
and training to be
SPMP.
Montana at 4; see also Montana at 17.
HCFA issued Letter #92-1 as guidance to its reviewers in
applying
Montana. In relevant part, Letter #92-1 stated:
State agencies must show that social workers'
education and
training in social work specifically
includes health care and/or
medical applications.
States should use graduate level
concentrations, or
specializations or tracks, as defined by the
various
master's in social work (MSW) programs, to identify
those
social workers who would be eligible for
payment at the enhanced
SPMP rate. There must
be a clear distinction between the master's
degree,
which need not have any medical focus, and the MSW
degree
plus medical course work which would satisfy
the language of the
regulation. . . .
* * *
In order to meet the education threshold, State
agencies must show
that each social worker claimed
as SPMP has an MSW degree and, as
part of the course
work for the master's degree, a specialization
(track or concentration) in clinical practice, health
care
practice, other medical application, or its
equivalent (emphasis
added).
Letter #92-1 at 1-2.
Although HCFA argued that the Board should strictly apply the terms
of
Letter #92-1 in the present case, it does not appear that
HCFA's
reviewers did so. Of the three disallowances at issue here, only
the
June 17, 1992 disallowance even mentions Letter #92-1. The other
two
disallowance letters state that they are based on reviews that
were
dated prior to 1992. Moreover, in discussing whether certain
position
incumbents had adequate medical or health care training to be
considered
SPMP, HCFA did not always refer to specialization or its
equivalent. On
the other hand, all three disallowances relied on the
regulations in
effect during the relevant time period and referred to the
Montana
decision as the Board's interpretation of the applicable
regulations.
Consequently, we conclude that we do not have to reach New
Jersey's
objections regarding Letter #92-1 in this decision, since we apply
the
regulations as interpreted in Montana and Utah, directly to the
issues
in these appeals.
We recognize that the passage of time has complicated New Jersey's
efforts
to provide documentation supporting its claim for SPMP status
for its
employees. For that reason we have given greater weight to
the
supplemental documentation provided in this proceeding than would be
the
case if particular contemporaneous documentation was
specifically
required to be maintained. However, the applicable
regulations, revised
in 1986 through notice and comment rulemaking, limit
SPMP status to
"specialized personnel who have professional education and
training in
the field of medical care or appropriate medical practice . . ."
(42
C.F.R. . 432.2), and define "professional education and training"
as
"the completion of a 2-year or longer program leading to an
academic
degree or certificate in a medically related profession" (42
C.F.R. .
432.50(d)(1)(ii). With the publication of these
regulations, New Jersey
was put on notice that it would need documentation
showing that its
medical social workers possessed training and education
adequate to meet
more stringent regulatory requirements. New Jersey was
at all times
required by 45 C.F.R. . 74.21, as applied to Medicaid through 42
C.F.R.
. 430.2, to retain its records for a three-year period or longer, if
any
action involving the record was started before the expiration of
the
three-year period. At the time HCFA withdrew the earlier
disallowances,
New Jersey had no reason to believe that its claim of SPMP
status was
resolved, and therefore it was required to retain its records.
Finally,
New Jersey was aware from previous proceedings before us that
claiming
enhanced funding entails the burden of providing adequate
documentation
that the claims meet applicable regulatory requirements.
See New Jersey
Dept. of Human Services, DAB No. 845 (1987), and DAB No. 941
(1988).
2. New Jersey had adequate notice of the applicable standard.
New Jersey objected that HCFA has not promulgated any guidelines
for
determining what medically related course work or medical training
will
suffice. New Jersey contended that HCFA has therefore violated
the
Administrative Procedure Act, 5 U.S.C. . 552(a)(1). New Jersey's
brief
(br.) at 10.
Section 552(a)(1) requires publication in the Federal Register of
an
agency's substantive rules of general applicability adopted
as
authorized by law, and statements of general policy or
interpretations
of general applicability formulated by the agency before a
party is
subjected to, or adversely affected by, the rule or
interpretation. As
noted above, New Jersey was given adequate notice of
the regulatory
requirements through properly promulgated regulations.
Those
regulations clearly required that a state demonstrate that
personnel
claimed as SPMP have professional education and training in the
field of
medical care or appropriate medical practice. 42 C.F.R. .
432.2. Since
the field claimed for the personnel at issue in this case
is medical
social work, New Jersey was on notice that it had to demonstrate
that
its claims were for specialized personnel with education and training
in
that field. Moreover, in Montana we found that the term "medical
social
worker" encompassed a recognized specialty in social work
practice.
Finally, despite New Jersey's protest that it lacked information on
what
the standard was, we find below that New Jersey provided ample
evidence
to support its claim of SPMP status for some of its medical
social
workers.
We therefore reject New Jersey's argument that the disallowance must
be
reversed because HCFA had not published guidelines more specific
than
the regulations about what medically related course work or training
was
required for SPMP status.
3. HCFA was not required to change the basis for its disallowance.
Finally, New Jersey cited Mississippi Dept. of Public Welfare, DAB No.
700
(1985), for the proposition that it is necessary for the federal
government
to change the basis for a disallowance which is reinstituted
after having
been withdrawn without prejudice. Thus, New Jersey argued
that the
disallowance here must be reversed because HCFA failed to
present new grounds
for the disallowance. New Jersey's br. at 11. New
Jersey also
maintained that this disallowance is, in reality, similar to
the previously
withdrawn disallowance and should be dismissed because it
is similarly
unjustified.
New Jersey's argument regarding Mississippi is without merit. The
Board
ruled in that case that the federal government could withdraw
a
disallowance without prejudice and subsequently change the basis for
the
disallowance. However, that does not mean that the basis for
the
disallowance must change. The fact that a disallowance is
withdrawn
without prejudice allows for the possibility of the disallowance
being
reissued for the same, different or additional reasons.
Consequently,
we will examine the reissued disallowances on their own
merits.
B. Whether Medical Social Care Specialist I
and II positions meet
the functional requirement for
SPMP status
1. HCFA may not disqualify positions for SPMP status solely because
a
Master's degree in social work is not listed as a requirement for
the
position.
For both the Medical Social Care Specialist I and II positions HCFA
argued
that regardless of whether the incumbents in the positions had
qualifying
education and training under the regulation, the positions
would not qualify
for SPMP status because they required only graduation
from an accredited
college and a Bachelor's degree in social work or a
related field.
The position description for a Medical Social Care Specialist I
provided
the education and experience requirements, in relevant part:
Education
Graduation from an accredited college with a
Bachelor's degree in
social work or related
field.
Experience
Three (3) years of post-degree professional
experience in social
work; two (2) years experience
should have been in the field of
gerontology, health
care, mental health/developmentally disabled or
a
combination thereof.
A supervised and accredited field placement of three
hundred (300)
hours performed in a social service
agency, or a Master's degree in
social work,
psychology, guidance and counseling, divinity or
other
related behavioral [science].
New Jersey ex. 11 at 3. The position description for Medical
Social
Care Specialist II provided the same requirement for education,
but
provided, in relevant part, for less experience:
Two (2) years of post-degree professional experience
in social
work; one (1) year's experience should
have been in a field of
gerontology, health care,
mental health/developmentally disabled or
a
combination thereof.
A supervised and accredited field placement of three
hundred (300)
hours performed in a social service
agency, or a Master's degree in
psychology, guidance
and counseling, divinity or other related
behavioral
science may be substituted for one (1) year of
experience.
New Jersey ex. 12 at 3.
In Montana, HCFA urged us to find a link between the functional
limitation
and the educational limitation. We did not accept HCFA's
contentions
that just because a position incumbent did not qualify as
SPMP under the
regulatory limitation for education or training in a
medically related field,
it could be inferred that medical expertise was
not necessary to perform the
functions of that position. We further
stated in Washington State Dept.
of Social and Health Services, DAB No.
1033 (1989), that while the revised
regulations substantially narrow the
scope of the positions that may properly
carry the label "SPMP," that
did not mean that administrative functions that
are medical in nature
suddenly lose that status, even if performed by those
who cannot qualify
personally as SPMP under the new regulation. In
addition, we indicated
that HCFA could treat any one of the limitations on
SPMP status as a
threshold requirement (the education and training limitation
or the
functional limitation), since each must be met, but the failure to
meet
one limitation is not necessarily dispositive of the status of
a
position under the other limitation. Washington at 11 and 12.
We have examined the position descriptions in question here and
conclude
that HCFA erred in focusing solely on the educational requirements
for
the positions. As indicated in the parts quoted above, the
position
descriptions require two or three years of post-degree
professional
experience in social work (with one or two years in the field
of
gerontology, health care, mental health/developmentally disabled or
a
combination thereof), or a Master's degree in social work,
psychology,
or other specified fields. New Jersey exs. 11,
12. While we agreed
with HCFA in Montana that the current SPMP
provision requires that
employees must meet the educational criteria (and may
exclude employees
who once qualified as medical personnel based on on-the-job
experience
or training), see Montana at 19, the fact that an employee may
qualify
for a position either by experience or by possession of a
Master's
degree does not conclusively establish that the function of the
position
is not medical. Consequently, while we agree that an employee
who
qualified for either position based on a Bachelor's degree and
the
requisite experience might not meet the requirement for enhanced FFP,
we
must still examine the functions of the positions to determine
whether
there are duties and responsibilities that require professional
medical
knowledge and skills.
2. Functions of Medical Social Care Specialists I and II are
SPMP
Functions.
The preamble to 42 C.F.R. Part 432, at 50 Fed. Reg. 46,656,
specifies
examples of the functions that would meet the criteria for SPMP
enhanced
FFP. The functions include:
o Reviewing complex physician billings.
o Participating in medical review or
independent professional
review team activities.
o Assessing, through case management
activities, the necessity for
and adequacy of
medical care and services required by individual
recipients.
o Acting as a liaison on the medical aspects
of the program with
providers of services and other
agencies that provide medical care.
In addition to the regulatory definition of SPMP, we have referred to
the
definition of "medical social worker" in the Dictionary of
Occupational
Titles, section 195.107- 030:
Aids patients and their families with personal and
environmental
difficulties which predispose illness
or interfere with obtaining
maximum benefits from
medical care. Works in close collaboration
with medical doctor and other members of health team to
further
their understanding of significant social
and emotional factors
underlying patient's health
problem. Helps patient and family
through
individual or group conference, to understand, accept,
and
follow medical recommendations and provides
service planned to
restore patient to optimum social
and health adjustment within
patient's
capacity. Utilizes resources, such as family
and
community agencies, to assist patient to resume
life in community
or to learn to live within
patient's disability. Participates in
planning
for improving health services by interpreting social
factors pertinent to development of program. Provides
general
direction and supervision to workers engaged
in clinic home service
program activities.
Employed in general hospitals, clinics,
rehabilitation centers, or related health programs. May be
employed
as consultant in other agencies. Usually
required to have knowledge
and skill in casework
methods acquired through degree program at
school of
social work.
New Jersey provided adequate evidence to show that the function of
the
Medical Social Care Specialist I position qualifies for SPMP
status. In
particular, the position description gives the following
examples of the
work performed by an individual in this position:
Evaluates the quality of health facility social
service staff,
programs, therapies and
documentation. Conducts interviews with
residents, families, and facility staff; reviews medical charts
and
patient accounts. Determines the quality
of the interdisciplinary
team process and makes
recommendation for improvement.
New Jersey ex. 11 at 1.
The position description for the Medical Social Care Specialist
II
describes the following position functions:
Maximizes the use of community resources according
to client needs;
. . .
Interviews the client, family, relatives, neighbors,
and others to
assess need for and arrange services;
. . .
Initiates the analysis, evaluation, planning, goal
setting and
decision making in individual case
situations with respect to cost
effectiveness; . .
.
Organizes care plans for client; . . .
Develops and maintain liaison with appropriate agencies; . . .
Develops and evaluates the psycho-social data in the
(MET) medical
evaluation team conference;
conferences with providers, contributes
psycho-
social data, recommends and approves level of care
and
services pertinent to client's welfare.
New Jersey ex. 12 at 1 and 2.
We compared the functions of these positions against the
functions
described in the preamble and the definition of "medical social
worker"
in the Dictionary of Occupational Titles. We concluded from
this
analysis that the position descriptions described functions that
were
consistent with the functions described for medical social workers.
Moreover, we note that HCFA's position was contradictory here.
While
HCFA argued that the disallowance of costs relating to
position
incumbents was proper because the position description for
these
positions indicated that only a Bachelor's degree was required, HCFA
at
the same time reversed its disallowance for one incumbent who held
such
a position, finding that the incumbent met the educational and
training
limitation. HCFA's br. at 12. HCFA therefore recognized for
this
employee that the functions of the positions were
appropriately
considered the kinds of functions performed by SPMP.
Thus, we conclude that the function of these positions qualify for
SPMP
status and enhanced FFP, provided the individuals in the positions
meet
the education and training limitation of the regulation.
C. Whether New Jersey showed that personnel
claimed as SPMP met
the educational and training
limitation
We must now determine if the position incumbents also satisfied
the
educational and training limitation in the regulation.
1. New Jersey must show more than that an incumbent had a Bachelor's
or
Master's degree in social work.
New Jersey cited 42 C.F.R. . 432.50(d)(ii) and asserted that a Bachelor
of
Social Work degree, which requires four years of education, exceeds
the
requirement in this regulation for "the completion of a 2-year or
longer
program leading to an academic degree or certificate in a
medically related
profession."
Further, New Jersey submitted a certification from Dr. Miriam
Dinerman,
a professor at the Rutgers University School of Social Work and a
member
of the Council on Social Work Education, to support its
position. Dr.
Dinerman's certification outlined several factors,
including course
work, research, and internships, which Dr. Dinerman used to
conclude
that--
all persons with Bachelor's and Master's Degrees in
Social Work
from accredited institutions have the
necessary training and
education to meet the federal
Medicaid standards for skilled
professional medical
personnel.
New Jersey ex. 45, .14 at 7. Moreover, New Jersey argued that
HCFA's
own regulations relating to social workers in other situations
provided
support for its position that a Bachelor's degree is sufficient
to
qualify medical social workers as SPMP.
New Jersey also noted that its state legislature recently
authorized
licensure of social workers. New Jersey asserted that its
licensed
social workers should automatically be deemed to meet SPMP
criteria.
Finally, New Jersey asserted that the Dictionary of Occupational
Titles
defined a "medical social worker" simply as one who is usually
required
to have knowledge and skill in casework methods acquired through
a
"degree program" at a school of social work. New Jersey's br. at
15.
We conclude that Dr. Dinerman's declaration and the related exhibits
are
not sufficient to demonstrate that the Board erred in concluding
in
Montana that a Master's of Social Work degree was generally regarded
as
a prerequisite for "medical social work" positions and that
the
limitation in the regulations required evidence of medically
related
education and training. Therefore, there is no basis for
recognizing a
Bachelor's or Master's degree alone as qualifying an individual
for work
in a medically related profession. In Montana we distinguished
between
medical social work as a medically related profession and social
work
generally which is not. We found that the regulation, which
provides
that SPMP must have professional education and training in a field
of
medical care or appropriate medical practice, requires that a
state
provide evidence that its claimed SPMP have education and training
in
the field of medical social work. Accordingly, in order to meet
this
requirement, we concluded that a state must provide evidence of
the
medical or health care content of the professional education
and
training of claimed incumbents.
While we have considered Dr. Dinerman's affidavit and the information
in
the record presented to support her conclusions, this evidence
falls
short of demonstrating that a Bachelor's degree in Social Work and
the
Master's of Social Work curricula generally would necessarily
include
course content and clinical training sufficient to
constitute
specialized professional education and training in the field of
medical
care or appropriate medical practice. We reviewed Dr.
Dinerman's
certificate and conclude that paragraphs 3 through 13, which
essentially
state that anyone with social work training would qualify as an
SPMP,
state no more than that anyone with case work skills could learn to
work
in a health care setting. This is not sufficient to meet the
regulatory
requirement for specific health care-related education and
training. We
recognized this in Montana when we said:
Current standards apparently permit even an
individual with an
undergraduate degree in social
work to provide social work services
in a health
care setting under the direction of a medical social
worker having a graduate degree. An undergraduate degree,
however,
is not alone regarded typically as a
qualification for medical
social work and would not
meet the employment requirements, for
example, of
the Veterans Administration.
Montana at note 14. 5/
Dr. Dinerman's certificate does not take into account the fact that
SPMP
is a term of art in the Medicaid program and that a state
must
demonstrate that each limitation on enhanced funding is met.
Her
certificate does not address the particular language and content of
the
limitations. While it is clear that social workers in a health
care
context generally are skilled professional Medicaid personnel, that
does
not mean that these workers are skilled professional medical
personnel
within the meaning of the statutory and regulatory provisions at
issue.
These terms are not synonymous, although Dr. Dinerman
apparently
believes that they are. For example, Dr. Dinerman stated in
her
certificate that a third component of any social work degree
is
examining the social welfare programs and policies in this
country,
including the major programs that affect health care and its
delivery
such as Medicaid and Medicare. This statement, therefore,
suggests that
she in fact considers this training to cover the health care
and medical
applications of the social work field; it definitely does
not. If
anything, Dr. Dinerman's statement is more illustrative of
skilled
professional Medicaid personnel than SPMP. 6/
Moreover, Dr. Dinerman's certification states that all social
work
students are prepared through program content that emphasizes
a
biological-psychological-social approach. However, her citations
from
the policies of the Council on Social Work Education provide that
"apart
from the stipulation that each student's background include
instruction
in the social, biological, and behavioral sciences," students
must still
attain "liberal art objectives" and that social work education at
the
master's level is built on "the liberal arts perspective." New
Jersey
ex. 45 (Dr. Dinerman's certification) at .4 (a) and (b). We do
not
consider these statements to support a conclusion that all persons
with
Bachelor's or Master's degrees in social work meet the
applicable
limitations and thereby qualify for SPMP status, without evidence
of
particular academic work or clinical training in health care
and/or
medical application of the social work field.
In addition, New Jersey's reference to the definition of a "medical
social
worker" provides no support for its position that all employees
with
Bachelor's degrees in social work meet the regulatory requirement
for
education and training. That definition defines the functions of
a
position which qualifies as SPMP; it simply does not address
the
requirement for education and training which also must be met.
Further,
even assuming that a Bachelor's degree in social work alone
is
sufficient education and training for a social worker outside the
SPMP
context, that is not dispositive of the issue here.
Section
432.50(d)(1)(ii) of 42 C.F.R. specifically requires that SPMP
have
professional education and training in a field of "medical care
or
appropriate medical practice." Similarly, New Jersey's licensure
of
social workers, which makes no reference to medical or health
care
practice, is insufficient to satisfy the regulatory requirement for
SPMP
status.
We have also reviewed the regulations cited by New Jersey for
social
workers and find that they do not provide authority for SPMP
enhanced
funding for medical social workers without professional medical
or
health care education and training. Specifically, in its brief at
14,
New Jersey noted the following regulatory requirements relating
to
social workers outside the SPMP context:
See, e.g., 42 C.F.R. ..405.1101(s) (it is sufficient
if social
worker is licensed by the State and is a
graduate of an approved
school of social work);
.405.1226 (qualified social worker is
sufficient
staffing for medical social services; no requirement
of
graduate degree); .442.344 (Master's degree not
necessarily
required for an ICF staff member to
provide services); .482.62(f)
(Director of social
work department at psychiatric hospital must
have a
master's degree, but no requirement that it be in a
field
with a medical content); .483.430(b)(5)(vi)
(social worker at
ICF/MR need only have a graduate
degree from accredited school of
social work or hold
a Bachelor of Social Work degree from an
accredited
college); .485.70(1) (a social worker at a
comprehensive
outpatient clinic needs only a
bachelor's degree and one year's
experience in a
health care setting).
New Jersey also argued that when a Master's degree is required by
these
regulations, there is no requirement of medical content. 7/
The regulations cited by New Jersey all pertain to the qualifications
for
social workers who are providing services in an institutional
setting, not to
Medicaid program administrators. They are not relevant
to a
determination of whether an employee has the education and training
required
by the specific educational and training limitation to qualify
for enhanced
FFP.
Thus, we conclude that either a Bachelor's degree in Social Work or
a
Master's degree of Social Work alone would not be sufficient to meet
the
educational and training limitation. The question remains,
however,
whether an incumbent with a Bachelor's degree in social work who
may
also hold a degree in another field of medical care or
appropriate
practice or who has significant medical training in addition to
the
Bachelor's degree might satisfy the requirements. Montana expressly
left
this possibility open by emphasizing that we did not decide there
"what
combinations of academic degrees and clinical work would
qualify."
Montana at 4. 8/
We said in Montana that, having determined that medical social work was
a
medically related profession, HCFA could not reasonably apply the
education
and training limitation to require qualified medical social
workers to also
have a degree or education in a field other than social
work. HCFA
would accept as SPMP incumbents with a Bachelor's degree in
social work who
also had, for example, a certificate as a dental
assistant, provided the
certificate was attained in a two-year or longer
program. Utah Dept. of
Health, DAB No. 1032 (1989) at 12.
Consequently, consistent with our determination in Montana, we
must
examine whether those incumbents with Master's of Social Work
degrees
have course work in health care and/or medical applications of
social
work sufficient to meet the regulatory limitation. Montana, at
17-18.
We also consider whether employees with Bachelor's degrees may
have
other relevant professional training that would meet the
educational
requirement.
2. Our examination of the
education and training of the
incumbents in the Medical Social Care
Specialist I positions shows that
New Jersey met the standard for a limited
number of incumbents.
In the disallowance for the first period, HCFA found that 28
Medical
Social Care Specialist I incumbents did not qualify as SPMP.
New Jersey
ex. 1. Only Bachelor's degrees were noted for ten of the
employees.
New Jersey did not provide any information on the other 18
employees.
In the second disallowance period, HCFA determined that 24
employees did
not qualify as SPMP. New Jersey ex. D. In the third
disallowance, HCFA
found that 22 employees did not qualify as SPMP. New
Jersey ex. E.
In considering whether the information provided by New Jersey about
these
employees demonstrated that they met the educational and training
limitation,
we relied extensively on the Dinerman certificate. HCFA did
not deny
that Dr. Dinerman is an expert concerning the medical or health
care content
of particular courses, and it happens that several of the
employees'
transcripts were from Rutgers, where Dr. Dinerman teaches.
In addition, where
HCFA disputed whether a particular course (e.g.,
Introduction to Gerontology)
had a medical or health care-related
content, HCFA did so in its arguments
presented by counsel, rather than
by an opposing affidavit from an
expert. New Jersey pointed this out in
its reply and offered to make
Dr. Dinerman available for
cross-examination, but HCFA did not respond to New
Jersey's offer.
Consequently, we have relied on Dr. Dinerman's
expertise in assessing
which courses and clinical experiences reported in
employees' records
possess the requisite medical or health care-related
content.
In addition, we have given considerably more weight to
employees'
fieldwork assignments than did the HCFA reviewers. Our
review of the
transcripts and of the school brochures in the record revealed
that a
Master's of Social Work degree candidate's fieldwork represented
a
substantial portion of the credit hours earned in pursuit of the
degree
and was a mandatory requirement for several programs providing a
major
or concentration in health care. HCFA exs. R-1 at 2, R-2 at 3,
R-3 at
4. This fieldwork can be distinguished from on-the-job training
because
it is part of a two-year program that leads to a certificate in
a
medically-related profession.
With respect to the particular employees at issue for this category,
our
review of the record found that New Jersey did not present
any
information for the following employees (we have indicated in
the
parentheses following each of these employees what the original
HCFA
determination with regard to the education and training
requirement
was): Frank B. (MSW but no data presented); Ernestine C.
(no
information); Phyllis D. (no information); Helen E. (no
information);
Candi F. (no information); Thomas G. (no information); Gregory
K. (no
information); George K. (no information); Mary K. (no
information);
Sharon K. (no information); Debbie K. (MSW but no data); Tony
L. (MSW
but no data); Greg P. (BSW but no data); Loretta R. (no
information);
Rich S. (BSW but no data); Carolyn S. (MSW but no data); Olive
T. (no
information); and Elaine T. (no information). Consequently, New
Jersey
did not show that these employees had the requisite education
and
training under the regulation to qualify as SPMP. The Board
has
consistently held that where a state is claiming FFP at a rate
higher
than the rate of 50% which is generally available for
administrative
costs, 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), and DAB No. 941 (1988). Thus,
New
Jersey had the burden to present evidence here that the employees
for
whom it is claiming enhanced FFP as SPMP meet the requirements for
SPMP
status. In the absence of such evidence, New Jersey has failed
to
support its claim with regard to these employees.
New Jersey presented evidence on the following employees who had either
a
Bachelor of Science degree in social work or a Bachelor's degree in
some
other area. They are: Marlene C.; Jan F.; Diane G.; Ruth G.;
and
Doug R. As we concluded above, a Bachelor's degree alone
without
evidence of the completion of some other training or education in
a
2-year or longer program that leads to an academic degree or
certificate
in a medically related profession is not sufficient to meet
the
educational and training limitation. Consequently, based on
our
analysis above, we conclude that New Jersey did not show that
these
employees satisfied the education and training requirement for
SPMP
status. Thus, we uphold the disallowance for these employees.
New Jersey presented evidence that the following employees had
Master's
degrees: Howard A.; Nancy B.; Janice F.; Carolyn K.; Lucretia
L.;
Edward R.; Fredric S.; Patricia S.; Mary S.; Gloria T.; and Don W.
With
the exception of Employees Howard A. and Don W., who had Master's
of
Arts degrees, all employees had Master's of Social Work degrees.
During the course of these proceedings, HCFA withdrew the disallowance
for
Employee Lucretia L., finding that this employee was documented as
majoring
in Health Care, had enough credits with medical content (about
9), and had
field work documented as medical training. HCFA's br. at
12, n. 3.
We have reviewed the documentation presented for the remaining
employees
with Master's degrees and, consistent with our analysis above, make
the
following determinations:
o Employee Howard A. has a Master's of Arts
degree and there was
no indication from the evidence presented that he had
any course work in
health related and/or medical applications of social
work. New Jersey
ex. 29. Thus, the disallowance for this employee was
correct.
o Employee Nancy B. qualifies as an SPMP and
the disallowance for
this employee should be reversed. HCFA had
indicated that this employee
met the educational and training limitation; she
had 13 credits in
relevant courses and 24 credits for field work at a
veterans' hospital.
Nevertheless, HCFA had concluded she was not properly
claimed because
she was in a position that required, as a minimum
qualification, a
Bachelor's degree. New Jersey ex. B, Appendix 7 at 2;
see also New
Jersey ex. 30. We concluded above that the fact that an
employee may
qualify for a position either by experience or by possession of
a
Master's degree in social work does not mean that the function of
the
position is not medical. Moreover, we examined the functions of
the
position in question and determined that it qualifies for SPMP
status.
Therefore, this employee qualifies as an SPMP under the
applicable
regulations.
o Employee Janice F. satisfies the education
and training
requirement for SPMP status. The evidence presented
indicates that this
employee has over 11 credit hours in medically related
course work:
group psychology theory and practice; death and terminal
illness;
personal development and human behavior; and deviant behavior; as
well
as field placement/internship in a nursing home and additional
field
work in a community mental health center. New Jersey ex.
33. These
qualifications exceed those of Employee Lucretia L., whom
HCFA found met
the criteria. On the basis of this evidence, we conclude
that New
Jersey established that this employee's education specifically
included
health care and/or medical applications for the social work
field.
o While a listing of courses was presented in
lieu of a transcript
for Employee Carolyn K., a copy of her Master of Social
Work degree from
Rutgers University was presented along with a certificate
from Rutgers
for the successful completion of studies in the minor of
Gerontology.
New Jersey ex. 36. The list shows five courses with a
medical or health
care content. It also indicates that part of her
required field work
was done at a United Way Agency planning an adult day
care center. Based
on our findings in Montana, we conclude that this course
work in
Gerontology is education that includes the health care and/or
medical
applications of the social work field. Thus, we conclude that
this
employee met the education and training limitation for SPMP status.
o Employee Edward R. has a Bachelor of Science
degree in
Rehabilitation and a Master's of Social Work degree. However,
the only
evidence presented by New Jersey for this employee was his
resume. New
Jersey ex. 39. Without any transcripts to
indicate the content of his
academic course work, it is impossible to
determine if this employee's
education and training qualified him as a
medical social worker for
purposes of enhanced funding. Moreover, while
a Bachelor's degree in
rehabilitation might be considered sufficient in and
of itself to
establish the requisite education and training requirement,
there is no
evidence in the record to describe the content of his academic
course
work in that area. Consequently, New Jersey did not establish
SPMP
status for this employee and the disallowance for this employee
is
sustained.
o Employee Fredric S. has a Bachelor's degree
in Sociology and
Psychology, a Master's of Arts degree in Sociology and
Psychology, and a
Master's of Social Work degree. New Jersey ex.
40. He also served as
neuropsychiatric specialist and a social
work/psychology specialist in
the U.S. Army for one year after he received
his Bachelor's degree.
This employee had significant prior training,
particularly his work in
the U.S. Army, and a Master's degree in Psychology,
which we conclude is
an academic degree in a medically related
profession. Thus, we conclude
that the disallowance for this employee
should be overturned.
o Employee Patricia S. has a Master's of
Social Work degree. Her
transcript indicates she had at least two
courses with health care
and/or medical applications of social work (mental
health community and
deviant behavior) as well as 18 credits in field
instruction which was
done at the University of Medicine and Dentistry of New
Jersey Rutgers
Community Mental Health Center. New Jersey ex. 41.
Thus, since her
relevant credits equal 23, we conclude that this employee
satisfies the
educational and training limitation and the disallowance for
this
employee is reversed.
o Employee Mary S. has a Master's of Social
Work degree. Her
transcript indicates at least four classes equalling
11 credits in
courses in health care and/or medical applications of social
work:
death and terminal illness, introduction to gerontology,
human
development life cycle, and social work practice in
developmental
disability. New Jersey ex. 42. On the basis of this
evidence, we
conclude this employee satisfies the education and training
requirements
for SPMP status and the disallowance for this employee is
reversed.
o Employee Gloria T. has a Master's of Social
Work degree and a
certificate from Rutgers for the successful completion of
studies in the
minor of Gerontology. New Jersey ex. 43. Her
resume indicates her
fieldwork was at a Psychiatric Rehabilitation Center and
at a Veteran's
Administration Medical Center where she worked with geriatric
patients.
Thus, we conclude that she met the education and training
requirements
of the regulation for SPMP status. Accordingly, the
disallowance for
this employee is reversed.
o Employee Don W. has a Master's of Arts
degree and his transcript
did not indicate academic course work in health
care and/or medical
applications of social work. New Jersey ex. 44.
Thus, HCFA correctly
disallowed enhanced FFP for this employee.
3. Our examination of the
education and training of the
incumbents in the Medical Social Care
Specialist II position shows that
New Jersey met the standard for a limited
number of incumbents.
In the disallowance for the first period, HCFA found that 28
Medical
Social Care II incumbents did not qualify as SPMP. New Jersey
ex. 1.
In the second disallowance period, HCFA determined that 33
incumbents
did not qualify as SPMP. New Jersey ex. D. In the
third disallowance,
HCFA found that 28 employees did not qualify as
SPMP. New Jersey ex. E.
New Jersey provided information on only employees Vera A.; Ernestine
C.;
Elizabeth D.; Ada D.; Helen E.; Patricia G.; Greg K.; Teresa L.;
Nancy
M.; Barbara N.; Joanne C. S.; Mark T.; Jayne T.; and Cynthia W.
With
the exception of Teresa L. and Joanne C. S., the evidence for
these
employees is of only a Bachelor's in social work alone and
is
insufficient under the above analysis for SPMP status. However,
Teresa
L. and Joanne C. S., in addition to their Bachelor's degrees in
social
work, have two-year associate degrees in social and
rehabilitation
services. Teresa L.'s transcript (ex. 22) shows applied
medical courses
such as: human anatomy and physiology, radiology, another
anatomy
course, pre oral health service, principles of rehabilitation,
human
anatomy II, principles of rehabilitation II, practical rehabilitation
I
and II. Joanne C. S.'s transcript (ex. 25) shows the same number
and
type of classes. Consequently, under the regulatory limitation
these
two employees would qualify for SPMP status since they have
two-year
academic degrees in a medically-related profession, and the
disallowance
for these two incumbents is reversed. The disallowances
for the other
incumbents for whom New Jersey provided information and for
those for
whom it provided no information are sustained.
4. Our examination of the education and
training of the incumbents
in the Medical Social Work Consultant I and II
positions shows that New
Jersey met the standard for some incumbents.
HCFA disallowed SPMP enhanced FFP for four employees in these
positions.
HCFA found with respect to the two employees in the Medical Social
Work
Consultant I position that only a partial transcript was supplied
for
Employee Judy J. and no transcript was supplied for Employee Arthur
M.
With regard to the two employees in the Medical Social Work
Consultant
II position, employees Michelle G. and Margery P., HCFA found that
New
Jersey was unable to demonstrate that there was sufficient
medical
content in their course work.
New Jersey maintained that none of HCFA's findings withstand scrutiny.
New
Jersey pointed out that Employees Judy J., Michelle G., and Margery
P., held
Master's degrees and that complete transcripts were submitted
for these
employees. See New Jersey exs. 7, 8, and 9. New Jersey did
not
specifically address HCFA's assertion that no information was
submitted for
Employee Arthur M. Since there is no evidence whatsoever
about Arthur
M.'s background, in spite of New Jersey's obligation to
document its claim
that he was an SPMP, we uphold HCFA's disallowance.
For incumbent Judy J. the record shows the following course work
with
health care and/or medical applications: individual growth behavior
(6
credits), and human development (4 credits). Her fieldwork was
at
Montclair Child Guidance Center (10 credits) under the
direct
supervision of a psychiatrist. This amounts to 20 of the 58
credits she
earned to get her Master's degree, and clearly evidences
adequate
education and training in the health care or medical applications
of
social work to merit SPMP status.
Incumbent Michelle G.'s record shows course work in survey of health
care,
and social work intervention with the elderly for a total of 6
credits.
Unlike Judy J., New Jersey has provided no supplemental
evidence that this
incumbent had fieldwork or other clinical experience.
With only two courses
and no indication of fieldwork, we find that there
is not sufficient evidence
of the requisite education and training to
qualify for SPMP status.
Consequently, we uphold HCFA's disallowance of
enhanced funding for this
incumbent. 9/
For incumbent Margery P., New Jersey submitted a transcript showing
course
work in personality theory, family therapy, advanced
psychoanalytic theory,
group therapy, and psychopathology. Her
fieldwork was performed at
Thomas Jefferson Hospital and St.
Christopher's Hospital for Children.
This combination of course work
and fieldwork exceeds the qualifications of
Lucretia L., the incumbent
whom HCFA found met the educational and training
limitation.
Consequently, we reverse HCFA's finding for Margery P.
V. Conclusion
Based on the foregoing, we uphold HCFA's disallowances in part.
We
reverse those parts of HCFA's disallowances where we found that
New
Jersey provided adequate evidence to support its claims. A
complete
chart of our findings with regard to all the incumbents at issue
in
these appeals is attached as an appendix to this decision.
Judith A. Ballard
Cecilia Sparks Ford
M. Terry Johnson Presiding Board
Member.
APPENDIX
I. Medical Social Care Specialist I
Incumbent Names HCFA Reversed HCFA Upheld
Lucretia L. HCFA withdrew
Nancy B.
Reversed
Janice
F.
Reversed Carolyn K.
Reversed Fredric S.
Reversed Patricia
S. Reversed Mary
S.
Reversed
Gloria
T. Reversed
Howard A.
Upheld Frank
B.
Upheld Ernestine C.
Upheld Marlene
C.
Upheld Phyllis D.
Upheld Helen
E.
Upheld Candi F.
Upheld Jan
F.
Upheld Diane G.
Upheld Ruth
G.
Upheld Thomas G.
Upheld Gregory
K.
Upheld George K.
Upheld Mary
K.
Upheld Sharon K.
Upheld Debbie
K.
Upheld Tony L.
Upheld Greg
P.
Upheld Doug R.
Upheld Edward
R.
Upheld Loretta R.
Upheld Rich
S.
Upheld Carolyn S.
Upheld Olive
T.
Upheld Elaine T.
Upheld Don
W.
Upheld
II. Medical Social Care Specialist II
Incumbent Names HCFA Reversed HCFA Upheld
Theresa L. (K.) Reversed Joanne
C.S. Reversed Vera
A.
Upheld Sharon
B.
Upheld Eileen C.
Upheld Steve
C.
Upheld Charles C.
Upheld Ernestine
C.
Upheld Karon C.
Upheld Elizabeth
D.
Upheld Joanne D.
Upheld Ada
D.
Upheld Helen E.
Upheld Jean
F.
Upheld Malkeh G.
Upheld Patricia
G.
Upheld Nancy H.
Upheld Virginia
J.
Upheld Gregory K.
Upheld Rosalind
K.
Upheld Sharon K.
Upheld Beth
K.
Upheld Mindy M.
Upheld Nancy
M.
Upheld Barbara N.
Upheld Janice P.
S.
Upheld Wanda R.
Upheld Iris
R.
Upheld Mary S.
Upheld Sharon
S.
Upheld Edward T.
Upheld Mark
T.
Upheld Jayne T.
Upheld Rita
W.
Upheld Cynthia W.
Upheld Diana
W.
Upheld
III. Medical Social Work Consultant I
Incumbent Names HCFA Reversed HCFA Upheld
Judy
J.
Reversed Arthur M.
Upheld
IV. Medical Social Work Consultant II
Incumbent Names HCFA Reversed HCFA Upheld
Margery P.
Reversed Michelle G.
Upheld
1. Initially, HCFA disallowed $611,973 for the period
July 1, 1986
through December 31, 1987. A second disallowance of
$888,090 was issued
for the period January 1, 1988 through September 30,
1989, and a third
disallowance of $549,252 was issued for the period October
1, 1989
through September 30, 1990.
2. Final regulations amending the requirements for
enhanced funding
for SPMP were effective February 10, 1986, and thus apply to
the entire
period at issue here. 50 Fed. Reg. 46652, at 46663 (November 12,
1985).
3. The regulation also imposes other
limitations not at issue here.
See 42 C.F.R. 432.50(d)(1)(i),(iv), and
(v).
4. These disallowances involved approximately 60
employees in these
categories.
5. New Jersey objected to the Board's use of Veterans
Administration
criteria for medical social workers. However, we pointed out
in Montana
that the Veterans Administration was the largest single employer
of
medical social workers, so that the reference to the
Veterans
Administration standards in this situation was appropriate.
6. We recognized in our previous decisions that
implementing these
limitations was in part a cost cutting measure and that
many
administrative positions in the Medicaid program would no longer
qualify
as SPMP (nursing home administrators, public administrators,
medical
analysts, senior managers or administrators of public
assistance
programs or the Medicaid program). See Montana at 12; Oregon
Dept. of
Human Resources, DAB No. 729 (1986) at 9-10. The
determination that a
particular person does not meet the regulatory
definition for SPMP in no
way implies that that person is unqualified for the
job he or she holds.
7. While not relevant to the decision here, we note
that ..
405.1101(s) and 442.344 have been deleted from the Code of
Federal
Regulations, and . 405.1226 was redesignated as . 484.34.
8. We also noted in Montana that an MSW degree
combined with
clinical experience in health care could qualify an individual
as SPMP
without specific evidence of the specific MSW curriculum
content.
Montana at 19- 20.
9. We recognize that this incumbent is clearly one of
the top social
work personnel for New Jersey. By finding the particular
limitation at
issue was not met we in no way disparage her general
qualifications to
perform her