New York State Department of Social Services, DAB No. 918 (1987)

DEPARTMENTAL GRANT APPEALS BOARD

Department of Health and Human Services

SUBJECT:  New York State Department of Social Services

Docket Nos. 87-71 87-93 87-140
Decision   No. 918

DATE:  November 4, 1987

DECISION

The New York State Department of Social Services (State) appealed a
determination by the Health Care Financing Administration (Agency) to
disallow costs totaling $24,837 in federal financial participation (FFP)
claimed under Title XIX of the Social Security Act (Act). 1/

As discussed below, we uphold the Agency's disallowance in full, without
prejudice to the State's opportunity to resubmit a claim as discussed
below.

Background

The facts leading up to the disallowance are uncontested.  In November
1985, the State submitted to the Agency for approval an Advance Planning
Document (APD) for the development, design, and implementation of the
Client Notices Subsystem (CNS) of the Welfare Management System (WMS).
The WMS is a computer system used by the State in its administration of
the Medicaid program. The automatic data processing (ADP) regulations
for claiming costs of equipment and services are applicable to the WMS
and its subsystems.  See 45 CFR Part 95, Subpart F.  The applicable
regulations, which are not at issue, generally provide the terms and
conditions under which the Agency will approve FFP for automatic data
processing equipment and services.  Specifically, a state must obtain
written approval of its APD prior to entering into contractual
agreements or making any other commitment for acquisition of ADP
equipment or ADP services.  Therefore, a state should not make claims
for ADP services until its APD has been approved.  The Agency has not
yet decided whether or not to approve the APD for the CNS.  See Agency
appeal file, Ex. B.  The State, however, claimed 75% reimbursement for
CNS development by allocation of CNS costs to the Medicaid Management
Information System (MMIS) operations.  See Agency appeal file, Ex. C.
The Agency disallowed the claims because the APD for the CNS, and thus
the CNS itself, has not been approved.

The State does not contest the Agency's disallowance as applied to its
original claims.  Instead, for the first time, the State has argued that
the disallowed costs were mislabeled as a result of a clerical error and
should have been denoted as feasibility studies.  Further, the State
maintained that feasibility studies are not subject to any prior
approval requirement and are reimbursable at a 50% FFP rate. 2/
Moreover, the State maintained that since the APD, which would include
the approval of the feasibility studies, is not yet approved, the
disallowance is premature and should, therefore, be reversed.  Finally,
the State maintained that since it submitted its APD in November 1985,
it would be eligible to receive a waiver of any prior approval
requirement that may exist.

The Agency agreed that absent notice to the State, prior approval is not
required for feasibility studies (although feasibility studies must be
claimed within an approved APD), and that the Agency did not give the
State such notice in this case.  However, the Agency maintained that it
could not view the State's appeal in this case as an appeal of a
disallowance for costs incurred in conducting a feasibility study.  The
Agency argued that the State submitted cost reports claiming
reimbursement for CNS development/operations and these were the claims
which were disallowed.  The Agency maintained that the State cannot in
the course of the appeal before the Board        re-state the claims
made on the cost reports.  Instead, the Agency maintained that the Board
should uphold the current disallowance for the claimed costs.  Further,
the Agency maintained that the proper procedure for the State to follow
is to await the Agency's determination on the request for approval of
the APD. 3/  If the APD, and by it the overall project, is approved, the
State may seek a waiver for costs incurred prior to the approval of the
APD since the APD was submitted to the Agency before December 1, 1985.
See 45 CFR 95.623.  If the waiver is granted, the State could, at that
time, submit documentation showing that the costs claimed were incurred
in conducting a study of the feasibility of CNS.  Thus, the Agency
maintained that the documents filed in the State's appeal file were
inappropriately submitted.  See State's appeal file, Exs. 1-3.

In light of the State's own admission that the Agency's disallowance of
the costs as originally claimed was correct, because the claims were
made as part of the MMIS operations of the unapproved CNS, we find that
the total disallowance should be upheld.  Further, we find that the
procedure outlined by the Agency for consideration of the revised claim
is a reasonable one and appropriate under the circumstances.  Moreover,
although the Agency has represented that the CNS project is approved in
concept, if the Agency should ultimately reject the project, the State
will have an opportunity to appeal that decision. Likewise, the State
will have an opportunity to appeal the Agency's decision if the Agency
ultimately rejects the State's claim for these costs as the costs of
feasibility studies.

Conclusion

For the reasons stated above, we uphold the Agency's disallowance on the
basis stated.  This is, however, without prejudice to the State to
refile its claim for the same costs but claiming them as costs of a
feasibility study.

 

                            ________________________________ Cecilia
                            Sparks Ford


                            ________________________________ Alexander
                            G. Teitz


                            ________________________________ Norval D.
                            (John) Settle Presiding Board Member .

                DEPARTMENTAL GRANT APPEALS BOARD

             Department of Health and Human Services


                      REVISION OF DECISION

SUBJECT:  New York State Department    DATE:  February 8, 1988 of Social
            Services Docket Nos. 87-71 87-93 87-140 Decision No. 918


A letter from counsel for the Health Care Financing Administration,
dated February 1, 1988, which has been added to the consolidated record
of these cases, noted an error in Board Decision No. 918 concerning the
remaining amount of the disallowances.  The letter stated that the
appellant concurred in the respondent's request for correction of the
amount.  Therefore, the decision is amended to specify the following
disallowance amounts subject to the decision:  $8,345 in Docket No.
87-71; $6,839 in Docket No. 87-93; and $24,837 in Docket No.  87-140
(total:  $40,021).

 


                          _____________________________ Cecilia Sparks
                          Ford

 


                          _____________________________ Alexander G.
                          Teitz

 


                          _____________________________ Norval D. (John)
                          Settle Presiding Board Member

 


1.     By stipulation, dated October 14, 1987, the parties agreed that
the total amount at issue in this proceeding is $24,837, as follows:
$9,583 for October 1, 1985 through December 31, 1985; $7,081 for January
1, 1986 through March 31, 1986; and $8,173 for October 1, 1986 through
December 31, 1986.

Originally, as with most disallowances under $25,000, the Board
designated Docket No. 87-71 for adjudication through the Board's
expedited process.  See 45 CFR 16.12(a). However, when it appeared that
this issue would cause continuing disallowances in other quarters, the
Board determined that the most appropriate action would be to remove
these cases from the expedited process.  See 45 CFR 16.12(b).

2.     In addition to the clerical error in labeling the claim that it
allegedly made, the State acknowledges that the correct FFP rate is 50%
instead of the 75% percent that it originally claimed.

3.     The Agency noted that it has approved the CNS project in concept;
however, funding for the project is contingent upon receipt of certain
information relating to CNS.  Agency supplemental reply brief, n.

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