Colorado Department of Social Services, DAB No. 1239 (1991)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Appellate Division

SUBJECT:  Colorado Department of Social Services

DATE: April 3, 1991
Docket No. 90-110
Decision No. 1239

DECISION

The Colorado Department of Social Services (Colorado, State) appealed a
determination by the Administration for Children, Youth and Families
(ACYF) disallowing federal funding claimed under title IV-E of the
Social Security Act (Act).  At issue are increasing retroactive
adjustments of $3,327,162 claimed for administrative costs for the
period October 1, 1985 through March 31, 1987, as well as $594,019
claimed on a current basis for the quarter ended June 30, 1987.  ACYF
disallowed these claims on the ground that they were not made in
accordance with Colorado's approved cost allocation plan (CAP). 1/

For the reasons described below, we uphold the disallowance of the
$3,327,162 in retroactive claims.  Colorado based these claims on a
methodology different from the methodology in the CAP approved for the
period covered by the claims and from the CAP amendment later approved
by the DHHS Division of Cost Allocation (DCA) for subsequent time
periods.  In addition, this methodology was seriously flawed and could
not reasonably be viewed as replicating claims that would have been
produced by the CAP amendment that was later approved.  However, we
remand the claim of $594,019 for the quarter ended June 30, 1987 to ACYF
for further consideration in consultation with DCA.  The claim for this
quarter was consistent with the methodology in the CAP amendment
approved by DCA effective July 1, 1987.  Notwithstanding the effective
date set by DCA, the record indicates that DCA still regards as open the
issue of an earlier effective date to cover the quarter ended June 30,
1987.  If DCA modifies the effective date to cover this quarter, the
claim for this quarter would be allowable.

The record for this decision consists of written briefs and exhibits
submitted by the parties, as well as the transcript of a hearing held on
December 11-13, 1990.  In addition, at Colorado's request, the State's
brief and appeal file in Board Docket No. 89-80 were incorporated in the
record for this decision. 2/

Summary of Decision

Below, we first discuss the applicable law.  We then provide the history
leading to the changes in Colorado's Time Analysis Reporting System
(TARS), a part of its CAP, since the timing and content of these changes
are highly relevant to our analysis.   We then discuss the following
issues:

     o  whether the changes in the TARS constitute an amendment to the
     CAP method for allocating the time of county employees in
     Colorado's public assistance programs;

     o  whether DCA should have approved an earlier effective date for
     these changes;

     o  whether the claim for the quarter ended June 30, 1987 should be
     remanded;


     o  whether the retroactive claims (for the period October 1, 1985
     through March 31, 1987) were made in accordance with the CAP
     amendment as ultimately approved; and

     o  whether the methodology Colorado used to calculate the
     retroactive claims was flawed.

Applicable Law

Title IV-E provides funding for payments for children who would have
been eligible for AFDC payments under title IV-A but for their removal
from their homes.  Under section 474(a), states are entitled to federal
financial participation in foster care maintenance payments, adoption
assistance payments, and expenditures "found necessary by the Secretary
for the proper and efficient administration of the State plan . . . ."
Since administrative costs are often commonly incurred and benefit more
than one program, states must have a CAP, approved under the procedures
in 45 C.F.R. Part 95, Subpart E, to identify the administrative costs
allocable to title IV-E.  See 45 C.F.R. 205.150, made applicable to the
IV-E program by 45 C.F.R. 1355.30(o).

Section 95.505 of 45 C.F.R. defines a CAP as --

 a narrative description of the procedures that the State agency
 will use in identifying, measuring, and allocating all State
 agency costs incurred in support of all programs administered or
 supervised by the State agency.

A CAP must be submitted to the Director, DCA, in the appropriate DHHS
regional office (45 C.F.R. 95.507(a)),    and the Director advises the
state whether a proposed plan or plan amendment is approved or
disapproved (45 C.F.R. 95.511(a)).  A state may request reconsideration
of DCA's determination under 45 C.F.R. Part 75 within 30 days after
receipt of the determination letter.  45 C.F.R. 95.513.

A state is required to promptly amend its CAP if any event occurs which
affects the validity of the approved cost allocation procedures.  45
C.F.R. 95.509(a).  Section 95.515 provides that generally, the effective
date of a CAP amendment is "the first day of the calendar quarter
following the date of the event that required the amendment . . . ."  It
also provides that the effective date may be earlier or later when:

 (a) An earlier date is needed to avoid a significant inequity to
 either the State or the Federal Government.

 (b) The information provided by the State which was used to
 approve a previous plan or plan amendment is later found to be
 materially incomplete or inaccurate, or the previously approved
 plan is later found to violate a Federal statute or regulation.
 In either situation, the effective date of any required
 modification to the plan will be the same as the effective date
 of the plan or plan amendment that contained the defect.

Section 95.517, captioned "Claims for Federal financial participation,"
provides that --

 A State must claim FFP for costs associated with a program only
 in accordance with its approved cost allocation plan.  However,
 if a State has submitted a plan or plan amendment for a State
 agency, it may, at its option claim FFP based on the proposed
 plan or plan amendment, unless otherwise advised by the DCA.
 However, where a State has claimed costs based on a proposed
 plan or plan amendment the State, if necessary, shall
 retroactively adjust its claims in accordance with the plan or
 amendment as subsequently approved by the Director, DCA. . . .

Factual Background

Colorado's practice is to submit its CAP, together with an indirect cost
rate proposal, on an annual basis, requesting approval and negotiation
of rates.  All of the CAPs submitted by Colorado since 1980 have
provided for a Time Analysis Reporting System (TARS) which collects data
on each county employee's activity over a randomly selected three-day
period in each quarter.  This methodology is known as "cluster
sampling."  Colorado brief dated 2/22/91, p. 3.  Colorado's CAP
specifically provided that the data collected in one quarter was to be
used to claim funds for the subsequent quarter.  Colorado ex. B, p. 20.

On April 30, 1986, Colorado requested approval of its CAP for the period
July 1, 1986 through June 30, 1987.  Colorado ex. J.  On June 16, 1986,
before this CAP was approved, Colorado submitted a request to DCA for
approval of changes in the TARS, stating that Colorado planned to
implement the changes on October 1, 1986.  Colorado ex. D.  The changes
included several modifications in the codes used by county employees to
report their time.  Among other changes, some codes in the social
services (title XX) area were eliminated.  Compare Colorado ex. C, p.
24, and ex. D, last page.

In addition to requesting these code changes, none of which directly
involved title IV-E, Colorado revised the procedures handbook for county
employees, which explained how to complete the time reporting form.  The
earlier version of the handbook included a definition of "Foster Care,"
which was coded as "1L."  County employees had to combine this code with
one of a number of other codes to indicate the type of foster care
activity in which they were engaged at any given time.  The revised
handbook described "1L" as "Child Foster Care," thus excluding adult
foster care, which is not reimbursable under title IV-E.

In addition, the revised handbook separately defined the particular
foster care activities covered by each code combination.  The definition
for code 1L02 -- the primary code used for title IV-E activities --
followed the description of covered activities in title IV-E regulations
at 45 C.F.R. 1356.60(c) more closely than the old definition of "Foster
Care."  Compare Colorado ex. C, p. 32, and Colorado ex. M, p. 33.
Finally, Colorado condensed the reporting form for county employees from
three pages to one.  Although no substantive change in the reporting
form was intended, Colorado inadvertently omitted code 1L02 from the
revised form, including instead code 1L01, a code not described in the
procedures manual.  Transcript of hearing (Tr) 54, 63.

On August 22, 1986, DCA approved the CAP for the period July 1, 1986
through June 30, 1987.  Colorado ex. A.  This CAP, submitted April 30,
1986, did not include any of the proposed changes in the TARS.  DCA's
letter did not mention Colorado's June 16 letter concerning these
changes.  Colorado nevertheless proceeded with its plans to implement
the changes and began collecting data under its revised TARS during the
quarter ended March 31, 1987.  Colorado ex. E.  During that quarter,
Colorado also provided training for county employees in the ten largest
counties just before the three days for which each county was scheduled
to report its time.  Tr 71.  The training included a general explanation
of time analysis and its purpose as well as an explanation of how to use
the revised reporting form and procedures handbook.  Tr 72.  On several
occasions after the period in question here, Colorado sent "agency
letters" to the counties emphasizing the importance to the title IV-E
program of proper time analysis coding.  Colorado ex. U.  The first
claim submitted using data from the revised TARS was the claim for the
quarter ended June 30, 1987.

On May 13, 1987, Colorado submitted its CAP for the period July 1, 1987
through June 30, 1988.  Colorado ex. K.  This CAP incorporated the TARS
changes proposed on June 16, 1986.  On June 13, 1988, DCA wrote to
Colorado advising it that it was approving Colorado's "Cost Allocation
Plan dated June 23, 1986 and subsequent revisions" effective for the
period July 1, 1987 through June 30, 1988.  Colorado ex. F.  (ACYF later
stated that the June 23, 1986 date referred to in this letter was
incorrect and should have been June 16, 1986, the date of the submission
of the proposed changes in the TARS.  ACYF brief dated 2/19/91, p. 7, n.
4.)  In accordance with DCA's request, Colorado returned to DCA an
"acceptance" of the June 13, 1988 letter signed by the Controller of the
Department of Social Services.

On March 7, 1988, Colorado submitted claims for the period October 1,
1985 through March 31, 1987 using data from the revised TARS.  These
claims were shown as increasing adjustments on Colorado's Quarterly
Statement of Expenditures for the quarter ended December 31, 1987.
Using data from the three quarters from January 1, 1987 through
September 30, 1987, Colorado reallocated to title IV-E a proportion of
the costs previously allocated to title XX, based on the assumption that
county employees had been accounting for time spent on title IV-E
activities using title XX codes. 3/  4/  The resulting amounts were
multiplied by 50% to compute the total amount of FFP due.  The amounts
previously claimed for title IV-E under the original TARS were then
deducted to arrive at the amount of the increasing adjustments.  Tr
77-80; Colorado ex. R; Colorado ex. T.

ACYF subsequently disallowed both the increasing adjustments claimed for
the period October 1, 1985 through March 31, 1987 and the current claim
for the quarter ended June 30, 1987.  The amounts originally claimed for
the period October 1, 1985 through March 31, 1987 based on the original
TARS were paid.

The Changes in the TARS Constituted a Plan Amendment.

Colorado took the position that claims based on the revised TARS were
allowable regardless of the effective date set by DCA because the
changes in the TARS did not constitute a plan amendment requiring DCA
approval.  In support of its position, Colorado noted that the overall
methodology used by the TARS -- cluster sampling -- was not changed.
Colorado pointed out that, in a notice to the counties regarding the
TARS changes, it specifically stated that "the method is the same as
used previously."  Colorado ex. L.  Colorado also argued that even if
changes in the codes constituted a plan amendment, all code changes
involved titles other than IV-E, so that the failure to obtain approval
of the changes should not result in the disallowance of its title IV-E
claims.

ACYF took the position that an amendment was involved because the
changes made by Colorado resulted in a change in the distribution of
services and costs.  ACYF cited in support of its position the testimony
of the Controller for the Department of Social Services that the State
made coding changes in order "to allocate the [administrative] costs
differently. . . ."  Tr 256-257.  ACYF also argued that, in signing the
"acceptance" of the DCA Director's decision approving the proposed
changes as a CAP amendment, the Controller showed that he viewed the
changes as a CAP amendment. 5/

Colorado responded that the Controller's "acceptance" of DCA's June 13,
1988 letter had little significance since the letter did not clearly
state that DCA was disapproving the proposed changes for the period
prior to July 1, 1987.

We conclude that a CAP amendment was involved.  As noted above, the
regulations define a CAP as a "description of the procedures that the
State agency will use in identifying, measuring, and allocating all
State agency costs incurred in support of all programs administered or
supervised by the State agency."  45 C.F.R. 95.505.  The TARS codes were
used to identify time spent on particular programs, providing a basis
for the allocation of costs.  While the title IV-E code combinations
themselves were not changed, the revised procedures handbook added
definitions for each of the code combinations.  These definitions
effectively changed the procedures referred to in section 95.505 since
they facilitated reporting and allocation of costs to specific programs.
Contrary to Colorado's suggestion, moreover, the coding changes for
programs other than title IV-E potentially affected title IV-E.
Assuming that the total costs distributed through the CAP remained the
same, a change in the amount of costs distributed to other programs
administered by the State agency might well have had an impact on the
amount of title IV-E costs.  Cf. Washington State Dept. of Social and
Health Services, DAB No. 1214 (1990) at p. 16 (changes in title IV-E
costs held to affect amounts distributed to other programs covered by
CAP).  Here specifically, the deletion of several codes relating to
title XX activities might reasonably cause an increase by county
employees in the use of codes for title IV-E activities.

Our conclusion that a CAP amendment was involved is also supported by
the fact that the Controller of the State agency submitted "proposed"
TARS changes to DCA for its "review and approval" in advance of the
planned implementation date.  Colorado ex. D.  There would have been no
reason for him to make this submission unless he believed that the TARS
changes constituted a CAP amendment.

The Effective Date of the CAP Amendment

In the proceedings before the Board, both parties addressed the issue
whether an effective date earlier than the July 1, 1987 date set by DCA
was justified in the event that the Board found that a CAP amendment was
involved.  However, we conclude that we need not reach this issue.  As
we discuss in the two sections which follow, even if DCA had approved
the TARS amendment with an earlier effective date, the claims for any
quarters prior to April 1, 1987 would not have been allowable because
the claims were not based on the methodology in the amendment and
because the methodology actually used was seriously flawed. 6/  This
rationale does not apply to the claim for the quarter ended June 30,
1987; nevertheless, we do not consider whether an earlier effective date
to cover this quarter was justified.  A witness of DCA represented that
an April 1, 1987 effective date was still under consideration within
DCA.  Tr 393 - 397.  If DCA modifies the effective date of the TARS
amendment to cover this quarter, then there is no basis for disallowing
the claim for this quarter.  Accordingly, we remand this portion of this
appeal to ACYF to determine in consultation with DCA whether this claim
was allowable. 7/  See the provisions of 45 C.F.R. Part 75.

The Claims for the Quarters Prior to April 1, 1987 Were Not Made in
Accordance with the CAP Amendment As Ultimately Approved.

As noted previously, the TARS -- both before and after its amendment --
used time reports from county employees from one quarter as the basis
for claiming funds for costs incurred during the following quarter.
However, county employees did not report their time using the codes in
the amended TARS until the quarter ended March 31, 1987.  While Colorado
wished to make claims for the period October 1, 1985 to March 31, 1987
which reflected what it regarded as improvements in its TARS, time
reports using the amended TARS were never made for this period and
obviously could not be created retroactively.  Colorado therefore used
time reported for the three quarters beginning January 1, 1987 as the
basis for determining the costs allocable to title IV-E for the quarters
prior to April 1, 1987.  (In contrast, the claim for the quarter ended
June 30, 1987 was based directly on the number of title IV-E hours
reported for the quarter ended March 31, 1987.)   Colorado's retroactive
claims were thus neither fish nor fowl:  they departed from the approved
TARS in effect during the period covered by the claims while failing to
comply in critical respects with the TARS amendment as approved for a
later period.

Colorado, nevertheless, argued that the retroactive claims for the
quarters prior to April 1, 1987 would have been allowable under section
95.517, which permits claims only in accord with an approved CAP,
because the methodology used in developing the claim replicated the
results that would have been achieved through the TARS amendment.  As
discussed below, we find that the methodology was seriously flawed and
could not reasonably be viewed as replicating the TARS amendment.

The Methodology Used by Colorado to Calculate the Claims for the
Quarters Prior to April 1, 1987 Was Seriously Flawed.

As already indicated, Colorado's methodology for its retroactive claims
involved the use of data from three subsequent quarters to determine
title IV-E costs for the period October 1, 1985 through March 31, 1987.
The Board has previously addressed the question of whether sample
results from one time period may be used as the basis for claiming costs
for an earlier time period.  Summarizing prior decisions, the Board
stated in Missouri --

 The Board's analysis therefore permits sample results from one
 period to be used to support claims from contiguous periods when
 no better documentation is available, provided that it can be
 shown that there are no significant differences between the
 periods. . . .  The party asserting the use of data for
 unsampled periods has the burden of showing that circumstances
 relating to the sampled and unsampled periods are such that the
 data can be used for the unsampled period.  We are not prepared
 to state what degree of similarity in circumstances is necessary
 to support the retroactive application of sampling results or
 other data; each case must be judged by its particular
 circumstances.  The uncontested soundness of the data provided
 during the sample period is not sufficient in itself to support
 the application of the data as support for expenditures made in
 earlier periods; the conditions surrounding the expenditures
 must closely approach those in the sampled period.

Missouri, supra, p. 15.

Thus, in order to support its retroactive claims, Colorado has the
burden of showing both that the data for the sample period -- January 1,
1987 through September 30, 1987 -- was reliable and that its title IV-E
program remained essentially the same in the sample period as it was
during the earlier period to which the State seeks to apply sample data.
(There was some overlap between these periods as the average of the
title IV-E hours for the sample period -- which included the quarter
ended March 31, 1985 -- was used to calculate the claim for that
quarter.)  We find that Colorado has not met that burden.  In addition,
we find that there were other flaws in the methodology used to calculate
the retroactive claims.

The record shows that the number of title IV-E hours reported using the
amended TARS for the quarters ending March 31, 1987, June 30, 1987 and
September 30, 1987 were 1,748, 1,143 and 1,007, respectively.  Colorado
ex. U.  Colorado acknowledged that the large variation from quarter to
quarter indicated that there was some problem with the data.  According
to Colorado's statistician, the variation from quarter to quarter was
due to "non-sampling error," i.e., errors in reporting (such as when the
respondent does not have accurate knowledge to give a better
measurement) as well as errors in editing, recording and databasing.
Colorado ex. W, p. 2.  One State witness testified that the variation
could be explained by the fact that the reporting of title IV-E hours
became less accurate as the effects of the training provided for the
quarter ended March 31, 1987 faded.  Tr 83-86.  ACYF agreed that the
training might have had an impact on the hours reported, although it
suggested that the emphasis in the training on increasing title IV-E
claims might have resulted instead in the initial over-reporting of
title IV-E hours.  Tr 162; ACYF brief dated 2/19/91, p. 16.  Thus, the
record clearly establishes that the data was not reliable as a basis for
determining time allocation for earlier periods.

Colorado nevertheless contended that the average of the hours reported
for the first three quarters in which the revised TARS was used was a
sound basis for calculating the prior quarter claims since the
three-quarter average was close to the average for the thirteen quarters
ended March 1990, computed by the statistician after the retroactive
claims had been filed.  (The three-quarter average was 1,299, while the
thirteen-quarter average was 1,381.)  Colorado ex. W, p. 3; Tr 286.
However, the data for the additional ten quarters also shows a marked
variation in the time reported.  Colorado never persuasively
demonstrated the cause for the continuing fluctuation.  While it may be
attributable in part to the issuance of the agency letters, it may also
be attributable to any number of other factors.  Thus, the fact that the
averages were similar is not in itself significant.

As noted above, Colorado also contended that title IV-E hours for the
second and third quarters were under-reported as the effects of training
wore off.  Colorado argued that the three-quarter average was therefore
a conservative estimate which resulted in lower retroactive claims than
were actually justified.  Colorado brief dated  2/22/91, p. 9.  However,
Colorado provided no evidence to support its view that title IV-E time
was reported most accurately immediately after training was provided.

Even if the data for the sample period had not shown marked
fluctuations, moreover, we are not persuaded that Colorado's title IV-E
program remained the same throughout the period in question, a necessary
condition for applying data from later periods to earlier ones.  As
previously noted, the party seeking to do this has the burden of proof
on this issue.  Colorado did not meet its burden here.

Colorado relied primarily on evidence that the amount of title IV-E
payments to providers (i.e., program costs) during each quarter from
July 1, 1985 through June 30, 1987 remained relatively constant, as did
the amount of payments to providers under title XX.  Colorado ex. H
(corrected version submitted 1/11/91).  However, ACYF showed that when
the title IV-E payments were broken down by category (i.e.,
non-voluntary foster care, voluntary foster care and adoption
assistance), the amount varied from quarter to quarter.  ACYF ex. 20;
ACYF ex. 22.  (ACYF also included figures for the quarter ended
September 30, 1987, which was omitted from Colorado ex. H.)

A witness for Colorado also testified that she "didn't have any
knowledge of any changes . . . in regard to IV-E eligibility."  Tr
276-277.  However, this testimony was based on the witness' experience
with the title IV-E program during the period of her employment with a
local department of social services, which began in September 1986.
Thus, the testimony does not rule out program changes prior to that
date.  Moreover, the testimony does not rule out changes in state or
county organization or other changes which could affect how county
employees spent their time.

Accordingly, data from the sample period was not appropriately used to
calculate claims for the earlier period under the standards articulated
in Missouri.

The record shows that there were other flaws in the way the retroactive
claims were calculated as well.  As noted previously, Colorado
determined what percentage of title IV-E and title XX time for the three
quarters ended September 30, 1987 was spent on title IV-E activities
alone.  This percentage was applied to title XX costs for each of the
quarters covered by the retroactive claims, and the resulting amount was
reallocated to title IV-E.  This calculation rested on the assumption
that prior to the TARS amendment, county employees had been accounting
for time spent on title IV-E activities using title XX codes.  This
assumption was in turn based on the results of a test of the amended
TARS in Fremont County conducted from March 10 - 12, 1986.  The test
showed a decrease in time reported spent on title XX activities which
corresponded to an increase in time reported spent on title IV-E
activities.  Tr 88-89; Colorado brief dated 2/22/91  p. 7.

However, we conclude that it was unreasonable for Colorado to rely on
one quarter's experience in one county to make the assumption on which
the entire methodology for calculating the retroactive claims was based.
For example, contrary to the results in one county, it seems likely
that, even if title XX time was previously overstated on a statewide
basis, time actually spent on programs other than title IV-E might also
have been incorrectly reported as title XX time.  If some title XX costs
were reallocated to these programs, this could result in a smaller
allocation to title IV-E.

There is also evidence in the record which raises questions about the
accuracy of the retroactive claims although it does not point to
specific flaws in Colorado's methodology.  Documentation provided by
ACYF shows that Colorado's retroactively adjusted claim for each quarter
beginning October 1, 1985 and ending June 30, 1987 was larger than the
claim submitted for any of the five succeeding quarters.  ACYF ex. 22.
ACYF also documented that the average number of title IV-E children in
each category except voluntary foster care increased annually from
fiscal year 1986 to fiscal year 1988, as did the amount of program costs
in all categories.  Id. and ACYF ex. 20.    In ACYF's view, this
indicated that the retroactive claims were inflated because the logical
assumption would be that, as the number of title IV-E children and title
IV-E program costs increased, administrative costs for title IV-E would
also have increased, not decreased as was the case here.  ACYF also
documented that Colorado's title IV-E administrative claims for the
retroactive period were larger than its maintenance claims for the same
period.  It pointed to this as further evidence that the retroactive
claims were inflated, contending that administrative costs would
normally be substantially smaller than program costs.  Tr 449; ACYF ex.
32 and ex. 33.

In response, Colorado did not challenge ACYF's position that title IV-E
administrative costs should have increased as the number of title IV-E
children and title IV-E program costs increased.  Nevertheless, Colorado
pointed out that the retroactive claims were comparable in amount to
Colorado's title IV-E administrative claims beginning October 1, 1988.
Colorado contended that this was a more valid comparison since reporting
under the amended TARS had become more accurate by that time.  Tr
513-514.  This merely confirms that the retroactive claims were
overstated, however, since the retroactive claims should have been lower
than the later claims, not at the same level, given the undisputed
increase over time in the number of title IV-E children and in title
IV-E program costs.

In summary, since the methodology used to calculate the claims for the
period October 1, 1975 through March 31, 1987 was seriously flawed,
these claims are not allowable.

Conclusion

For the reasons stated above, we uphold the disallowance with respect to
the period October 1, 1985 through March 31, 1987.  As discussed on page
9, we remand the disallowance for the quarter ended June 30, 1987 to
ACYF for further consideration in consultation with DCA.  Colorado may
appeal any CAP determination by DCA for that quarter pursuant to 45
C.F.R. Part 75.  In the event ACYF .reinstates any portion of the
disallowance for that quarter, Colorado may appeal the disallowance to
this Board within 30 days of receiving notice.

 


 _____________________________ Judith A. Ballard

 


 _____________________________ Cecilia Sparks Ford

 


 _____________________________ Donald F. Garrett Presiding Board
 Member

1.     An additional basis for the disallowance of the claim for the
quarter ended December 31, 1985 was that it was not filed within two
years of the end of the calendar quarter in which the expenditures were
incurred, as required by section 1132 of the Act.  Colorado contended
that the claim was excepted from the two-year filing requirement because
it involved an adjustment to prior year costs within the meaning of 45
C.F.R. 95.19.  However, this exception refers specifically to
adjustments in the amount of a particular cost item previously claimed
under an interim rate concept.  45 C.F.R. 95.4;  Washington State Dept.
of Health Services, DAB No. 924 (1987).  Colorado did not provide any
rationale for considering the amounts previously claimed under its
existing approved CAP as "interim rates," and we know of none.  Thus,
there is an independent basis for disallowing Colorado's claim for the
first quarter in question.

2.     Docket No. 89-80 involved the appeal of an earlier disallowance
of the $3,327,162 claimed for the period October 1, 1985 through March
31, 1987.  ACYF withdrew the disallowance in that case, stating that it
would be issuing a corrected disallowance.  The corrected disallowance
led to the current appeal.

3.     To calculate these claims, Colorado first took the average (mean)
of the title IV-E hours reported under its revised TARS for the three
quarters from January 1, 1987 through September 30, 1987.  Colorado then
determined what percentage this represented of the sum of the average
for the three quarters of title IV-E hours and title XX hours.  Next,
Colorado applied this percentage, weighted by the salaries of the
persons reporting, to the costs allocated to each of several title XX
codes for each of the six quarters for which claims were submitted.

4.     This did not result in a reduction of title XX claims since title
XX funding is subject to a cap and Colorado had exceeded its cap on
title XX claims by more than the amount reallocated to title IV-E.  Tr
115.


5.     ACYF also cited Missouri Dept. of Social Services, DAB No. 844
(1987), in support of its position.  However, that decision merely
indicates that Missouri itself treated a change in coding as a plan
amendment.


6.      It should be noted in any event that Colorado did not request a
retroactive effective date for the TARS amendment at the time the
amendment was submitted for approval.  Moreover, Colorado did not allege
that it was prevented by any factor (other than its own lack of
diligence) from proposing and implementing the TARS changes
contemporaneously with the beginning date of its claim, October 1, 1985.
In addition, both parties agreed that the increased claims for the
quarters prior to April 1, 1987 were largely the result of the training
provided in conjunction with the implementation of the TARS changes.
Colorado brief dated 2/22/91, p. 8; Tr 162.  To the extent that the
training merely clarified the reporting instructions in the procedures
handbook, Colorado could presumably have increased its title IV-E claims
sooner simply by providing training.

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