DEPARTMENTAL GRANT APPEALS BOARD
Department of Health and Human Services
SUBJECT: New Jersey Department of Human Services
Docket Nos. 85-232 86-67 86-113 86-155
Decision No. 845
DATE: March 2, 1987
DECISION
The New Jersey Department of Human Services (State) appealed
four
disallowances by the Health Care Financing Administration
(HCFA,
Agency). The State claimed federal financial participation (FFP)
under
Title XIX (Medicaid) of the Social Security Act (the Act) for
certain
personnel costs based on the availability of an enhanced FFP rate of
75%
for compensation and training of skilled professional medical
personnel
(SPMP) and support staff. The Agency disallowed the portion
of the
State's claims which exceeded the 50% rate generally applicable
to
administrative costs for the Medicaid program.
Described below in tabular form are the four disallowances taken by
HCFA
and the adjustments resulting in the amounts presently in
controversy.
1/
Amount Board
Amount
Amount Amount not
Presently
Docket
of
Disal- Conceded
Appealed in Con- Number Period
lowances
to State by
State troversy
85-232 7/1/83- $3,374,458
$2,172,998 $715,240
$486,220
3/31/85 86-67
4/1/85- 536,201
342,170 51,513
142,518 6/30/85
86-113 7/1/85-
476,250 298,657
52,264
125,329 9/30/85 86-155 10/1/85-
536,922 350,237
40,265
146,420 2/ 12/31/85
Totals
$4,923,831 $3,164,062
$859,282 $900,487
__________ __________ ________
_________
As explained more fully below, we have concluded that the positions
of
District Office Director and Regional Director are not SPMP
positions
and are therefore reimbursable only at the 50% rate, but that
the
clerical staff employed in the district offices perform some
functions
which are directly necessary to the carrying out of SPMP functions
and
thus reimbursable at the 75% rate. On remand the State will have
the
opportunity to identify the clerical duties having the required
direct
nexus with SPMP functions and the proportion of each clerical
staff
members' time spent on such duties. If the parties can not agree
on
what portion of the Medicaid district office clerical positions'
work
effort is entitled to 75% FFP, the State may return to the Board.
Applicable law, regulations, and guidelines.
Section 1903(a) of the Act provides for payment of:
(2) . . . 75 per centum 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. . . .
* * * *
(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. 3/
Agency implementing regulations, 42 CFR 432.50(b)(1) and
433.15(b)(5),
provide 75% FFP for skilled professional medical personnel and
support
staff.
Sections
432.50(b)(6) and 433.15(b)(7) implement the
50% matching provision generally
applicable to FFP claims for costs of
administration. Section
432.50(c)(1) provides that rates of FFP higher
than 50% "are applicable only
to those portions of the individual's
working
time that are devoted to the kinds of positions or duties that
qualify for
those rates."
The terms "skilled professional medical personnel" and "staff
directly
supporting such personnel" are not defined in the Act.
Agency
regulations contain the following definitions at 42 CFR 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. . . .
"Subprofessional staff" means persons performing
tasks that demand
little or no formal education; a
high school diploma; or less than
4 years of
college.
The regulations are supplemented by Part 2-41-20 of the Medical
Assistance
Manual (Manual), issued in an Action Transmittal by the
Social and
Rehabilitation Service (predecessor agency to HCFA) in July
1975,
SRS-AT-75-50.
The Manual contains the following "principles" which are used to
assess
claims for 75% FFP:
B. Principles
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.
Section 2-41-20(B)(2)(b) of the Manual provides that the official
position
descriptions are the "basic substan- tiation" 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 in
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.
Positions at Issue
Since the submission of the State's initial brief and appeal file,
HCFA
withdrew its disallowance of 75% FFP for the majority of
positions
originally denied SPMP status. The positions which remain in
dispute are
the District Office Director and Regional Director positions for
the
quarters ended June 30, 1985, September 30, 1985 and December 31,
1985.
Additionally, the following clerical staff of the Medicaid
district
offices for which the Agency denied 75% FFP as SPMP support
positions
for the period of July 1, 1983 to December 31, 1985 are still
in
dispute: Senior Clerk, Clerk Transcriber, Principal Clerk
Transcriber,
Senior Clerk Transcriber, Principal Clerk Typist, Clerk Typist,
and
Senior Clerk Stenographer.
Analysis
1. District Office Director
The District Office Director is responsible for the operation
and
supervision of a Medicaid district office in the State. The
State
argued that this position is entitled to SPMP status. 4/ There
are 16
district offices in the State. This position requires a
Bachelor's
degree or the equivalent in experience as an administrator in a
public
health services program plus additional experience. State's Appeal
File,
Ex. O.
The State argued that because the function of District Office Director
is
to administer the Medicaid program at the district level and because
the
Director supervises physicians and nurses who are SPMP, these
functions alone
would qualify this position as SPMP.
The Agency contended that the District Office Director position was not
a
SPMP position because the functions of this position involve
general
administrative rather than medical functions. The Agency also
indicated
that there was nothing in the record to indicate that the
position
required medical training or medical expertise.
Whether federal funding is available at all is not an issue here.
Rather
the question is whether federal matching is available at the 75%
rate as
opposed to the 50% rate generally available for expenditures
necessary for
administration under Section 1903(a)(7) of the Act. Where
the record does not
show that the Manual provisions clearly include a
disputed position's
functions, they are excluded and appropriately
matched only at 50%. The
Board has held in analogous circumstances that
where a State is claiming
reimbursement of costs at a rate higher than
50%, the State has the burden to
show that the costs claimed are
entitled to the higher rate of
reimbursement. See Missouri Department
of Social Services, Decision No.
395, February 28, 1983, p. 6 and cases
cited therein. Here, the State
has the burden to show why the District
Director positon should be considered
an SPMP position reimbursable at
75%.
Under the Manual provisions, it is the function of a position
that
determines whether 75% matching is proper. Manual
sections
2-41-20(B)(1)(a) and (B)(2)(a). Only
"professional" positions requiring "medical subject area expertise"
are
matched at the 75% rate. The Manual defines both "professional"
and
"medical." To be "professional" a position must be non-routine
and
require a college education or its equivalent. "Medical" functions
are
"peculiar to medical programs." Manual section
2-41-20(B)(2)(a). The
Manual specifically provides, however, that not
all administrative
personnel will be eligible for 75% matching. Manual
section
2-41-20(B)(1)(b). The Manual further provides that these
functions as a
class require "professional training in a health science or
allied
field." Manual section 2-41-20(B)(2)(a).
The functions identified by the State as specifically qualifying
this
position for SPMP treatment were supervising doctors,
nurses,
pharmacists, medical social workers, and clerical staff in a
district
office, allocating professional resources within the
office,
coordinating and overseeing all Medicaid-related services provided
by
the county; maintaining liaisons with other agencies and providers;
and
planning periodic inspections of institutional facilities. While
these
duties appear similar, at first glance, to some of the SPMP
functions
listed in the Manual, the position description alone does not show
that
the performance of these functions by the District Director
requires
that the incumbent exercise medical judgment. For example, the
position
description indicates that the incumbent maintains liaison with
health
agencies and providers. The Manual provision, however, is more
explicit
in that it requires "maintaining liaison on the medical aspects of
the
program with providers." Manual 2-41-20(B)(2)(a) (emphasis
added).
Moreover, the State did not provide any evidence to demonstrate that
the
kind of judgment needed by the incumbent of this position would
require
medical expertise. There is no doubt that the District Director
must
know what decisions are made for the State Medicaid program, but
the
State has not shown that the District Director makes the medical
policy
or policy judgments resulting in those decisions. Moreover, the
District
offices were staffed with SPMP to whom medical/administrative tasks
were
assigned. In the absence of any evidence to the contrary, we
conclude
that the District Director was directing administrative practices
and
procedures unrelated to the specialized field of medical care
management
rather than making specific medical judgments. The
professional
functions listed in the Manual as being those of an SPMP must be
read in
context with the specific criteria that a position must require
medical
expertise. Illinois Department of Public Aid, Decision No. 376,
January
27, 1983; see also New York State Department of Social
Services,
Decision No. 307, May 28, 1982. Moreover, the
day-to-day supervision
of SPMP in matters such as office assignments and task
assignments,
while important for proper administration, does not necessarily
require
medical expertise.
We conclude then that the record is not sufficient to show that
this
position is a SPMP position. As a result, the State has not shown
its
entitlement to the enhanced rate of funding. Therefore, the State
is
entitled only to the general 50% FFP rate for administration. Thus,
we
uphold the disallowance with respect to this position. 5/
2. Regional Director.
There are four Regional Director positions in the State. The
Regional
Director supervises the work of the District Office Directors and
the
district offices. The State argued that the functions of this
position
in most instances are more closely associated with those of the
Director
and Assistant Director of the State Medicaid Agency than with
the
District Office Director, with the difference being that the
Director
and Assistant Director administer the Medicaid program
State-wide
whereas the Regional Director administers the program for one of
four
regions which divide the State.
The Agency, on the other hand, argued that this position is similar to
the
District Office Director in that the function of this position is
to
supervise the District Office Directors and the work of their
offices.
The Agency contended that both the functions of the position and
the
background requirements for this position do not demonstrate
that
medical expertise is necessary or required.
The function identified by the State as specifically qualifying
this
position for SPMP treatment was that the Regional
Director
"[p]articipates as a member of the Division Director's
Executive
Committee, which meets weekly to formulate Division policy."
While the
Manual provides that a medical function involves expertise in
medical
services care delivery and planning the program's scope, the State
has
not shown that by the Regional Director's participation in the
Executive
Committee, the incumbent of this position exercises medical
judgment to
formulate Division policy. Other than the position
description, the
State has not provided any further evidence to demonstrate
that the kind
of judgment needed for this position requires medical
expertise. As we
stated above, the professional functions listed in the
Manual as being
those of an SPMP must be read in context with the specific
criteria that
a position must require medical expertise.
We have examined the position description submitted by the State and
find
that document does not establish that medical expertise is required
to
perform the functions of this position. As a result, the State has
not
shown its entitlement to the enhanced rate of funding. Therefore,
the
State is entitled only to the general 50% FFP rate for
administration and we
uphold the disallowance with respect to this
position.
3. Clerical Staff
The State explained that each of the 16 district offices employs
clerical
staff to screen telephone calls, process forms, maintain files,
type, and
generally attend to clerical duties. The State reasoned that
since the
professional staff of the district offices consists of several
SPMP, the
clerical work is support work for those positions. The State
contended
that all the clerical staff qualified for 75% reimbursement as
SPMP support
staff. The specific positions in question are: Senior
Clerk,
Clerk Transcriber, Principal Clerk Transcriber, Senior Clerk
Transcriber,
Principal Clerk Typist, Clerk Typist and Senior Clerk
Stenographer.
The Agency here emphasized the fact that the State claimed all
its
clerical staff in the district offices as SPMP support staff.
The
Agency claimed that based on the Manual principles and the
Board's
decision in California Department of Human Services, Decision No.
646,
May 7, 1985, a State's classification of an entire unit as support
staff
would be subject to close scrutiny. Section 2-41-20(B)(1)(b),
(c), and
(d) of the Manual. Again citing the Manual, the Agency argued
that in
order for support staff to be eligible for 75% matching, the
support
staff must report directly to and be supervised by the SPMP.
In
addition, the Agency contended that the clerical positions at issue
here
did not qualify as SPMP support staff because the State failed to
show
which support staff directly supported the SPMP in the district
offices.
In response to the Agency's argument, the State submitted documentation
to
show that the support staff are necessary to the performance of the
SPMP
tasks. State's Supplemen- tal Appeal File, Exs. AA-HH.
These
exhibits, which are evaluation and performance reports, describe
the
tasks, actions, and responsibilities of each of the positions at
issue.
In addition, these evaluation reports also list the specific SPMP
for
whom that particular clerical person performs tasks and who evaluate
the
clerical's work.
A review of these reports for each of the clerical positions in
dispute
shows that the positions require performing some functions which
are
apparently directly necessary for carrying out the SPMPs' work.
For
example, the following duties and standards are among those listed
for
the Principal Clerk Transcriber Position:
* * * *
Completes clerical end of Authorizations are
reviewed authorization
to providers thoroughly
(Medical this includes NH
providers
Consultant's signature, Med. #, date, etc.)
Copies are
distributed
to appropriate parties.
Completions
made are accurate. Statistics
are
recorded appropriately. Cards
are
prepared for all new nursing home
cases,
and new folders are also prepared.
Types correspondence for Reviews
assignment with Local Medical
Consultant
staff member for content, structure and date
of
completion. Types assignment
accurately,
neatly and legibly. Obtain signature
and
make appropriate copies. Distribute
and
mail copies.
Types correspondence for Reviews
assignment with Regional
Supervising Nurse nurse
supervisor for content, structure and
date
of completion. Types
assignment
accurately, neatly and legibly.
Obtain
signature and make appropriate copies.
State Supplemental Appeal File, Ex. CC.
On the face of the evaluation report, these duties appear to have
the
requisite direct nexus with SPMP functions to qualify for 75% FFP
as
support staff functions. Other more general office duties of
the
Principal Clerk Transcriber, such as answering the phone and
filing,
would not have a sufficient nexus with SPMP functions unless
performed
for a SPMP directly in connection with specific SPMP functions.
While many of the clerical positions are supervised in part by
the
Principal Clerk Typist, a support position, as well as by SPMPs,
that
fact does not disqualify these positions as SPMP support staff.
In
prior Board cases, we cited Action Transmittal SRS-AT-76-66 (April
20,
1976), which states:
A supervisory relationship on a day-to-day basis
between the
skilled medical professional and support
staff is not necessary and
not always
relevant. The critical factor determining
direct
support is that the non-professional be
responsible for performing
functions directly
necessary for the carrying out of the
professional's
duties.
The import of this provision is that a support person may be supervised
in
a personnel reporting sense by someone other than a SPMP and still
perform
work under the substantive direction of a SPMP which directly
supports SPMP
functions. As noted above, in determining whether a
position qualifies
as SPMP support, we examine the function for a direct
nexus with SPMP
functions. See Oregon Department of Human Resources,
Decision No. 729,
March 20, 1986. Leaving aside the Principal Clerk
Typist, we find based
on the evidence submitted, that the posi- tions in
question do perform work
which is necessary for carrying out the SPMPs'
duties; these people type,
file, and perform clerical duties necessary
for the SPMPs' functions.
The question, however, remains of what
proportion of the clerical's work time
is spent in work assignments
directly related to the functions of the SPMP
listed on these evaluation
reports. Thus, on remand the State will have
the opportunity to
identify the particular clerical duties having the
requisite direct
nexus with SPMP functions and document the portion of the
staff members'
time spent on such duties. See Oregon, supra, p. 32.
6/
As we indicated above, the Principal Clerk Typist supervises the
other
clerical personnel, but the position is subprofessional and supports
the
professionals in the office. Among other things, this position
is
responsible for general office management. The evaluation
report
indicates that this position performs some work that is directly
in
support of SPMP, and lists specific SPMP. The evaluation report
also
indicates that this position performs functions in support of
the
District Director (called the Local Administrator prior to April
1,
1985). To the extent that this position performs work in support of
the
District Director and for other general administra- tive purposes,
this
position is not an SPMP support position. Thus, on remand the
State
should provide the same information for this position as for the
other
disputed clerical positions.
Conclusion
For the reasons indicated above, we uphold the Agency's disallowance
for
the District Office Director and Regional Director positions and
remand
the disallowance for the clerical staff to allow the State to
identify
the clerical duties which directly support SPMP functions and
the
proportion of each staff member's time spent on these duties. If
the
parties cannot agree either on which clerical tasks qualify for
75%
reimbursement as support or on the time spent on such duties, the
State
may return to the Board.
_________________________ Judith A. Ballard
_________________________ Donald F. Garrett
_________________________ Cecilia
Sparks
Ford
Presiding Board Member
1. By letter dated November 7, 1986, HCFA
communicated revised
disallowance amounts to the Board and the State.
Although the State did
not dispute the correctness of the figures, during our
review, we found
an apparent $75 error for the quarter ending September 30,
1985. The
amount not appealed by the State was overstated and should be
$52,264,
and the amount conceded by HCFA to the State was understated and
should
be $298,657. See State letter dated October 29, 1986.
Also, HCFA
indicated in its response dated November 26, 1986 that since it
has
decided to allow the Assistant Director of the State Agency as an
SPMP,
the disallowances here would be adjusted downward. Accordingly,
the
parties should review the accuracy of these figures.
2.
Although the Agency indicated the amount
in
controversy is $147,420, our
calculations
resulted in a figure of $146,420.
3. 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.
4. The District Office Director position is listed in
the job
description as District Office Director I, II, and III. The
job
functions of the positions are identical; however, the amount
of
experience and the size of the district office being directed varies
and
determines which title the incumbent will hold.
5. The State also argued that, under 2-41-20(C)(1) of
the Manual,
"Director" position is cited as an example of a position to be
funded at
the 75% rate. The State reasoned that by analogy the District
Office
Director and Regional Director also should be funded at the 75%
rate.
That provision, however, refers only to the Director and Deputy
Director
of the State's entire Medicaid program, not to administrative
positions
elsewhere in the organizational structure of the State's program,
such
as the Directors responsible for local Medicaid offices. See
Oregon,
supra, p. 29.
6. The State claimed 75% reimbursement for the
clerical positions
for the period July 1, 1983 through December 31,
1985. The State,
however, did not submit evaluation and performance
reports for each
position which spanned the complete time period in question
here. Four
reports covered 1983-84 (State's Supplemental Appeal File,
Exs. AA, EE,
FF, and GG), others covered 1984-85 (Exs. BB, CC, DD). One
report was
not clear as to what period it applied.
Ex.