New York State Department of Social Services, DAB No. 891 (1987)

DEPARTMENTAL GRANT APPEALS BOARD

Department of Health and Human Services

SUBJECT:  New York State Department of Social Services

Docket No. 87-129
Decision No. 891

DATE:  August 24, 1987

DECISION

The New York State Department of Social Services (State) appealed the
decision by the Health Care Financing Administration (HCFA) disallowing
$46,990 in federal financial participation under Title XIX (Medicaid) of
the Social Security Act.  The disallowance represented the federal share
of the amount of interest income earned by the State, during the period
October 1, 1986 through December 31, 1986, on Medicaid funds withheld
from providers or collected "from providers, from third party health
insurers, and from windfall activities."  HCFA determined that the
federal government is entitled to share in such interest.

In New York State Department of Social Services, Board Decision No. 588
(1984), the Board determined that such interest constituted an
applicable credit which should have been used to reduce the State's
claim for Medicaid expenditures and therefore upheld a similar
disallowance. In New York State Department of Social Services, Decision
No. 721, (1986), the Board rejected the State's contention that a
federal court decision concerning the Food Stamp Program, Perales v.
U.S., 598 F. Supp. 19 (S.D. N.Y.  1984), aff'd, 751 F.2d 95 (2d Cir.
1984), required reversal of Decision No. 588.

The State first requested that the disallowance here be reversed solely
on the procedural ground that HCFA did not formally defer the amount
claimed, as allegedly required by 45 C.F.R. 201.15, but simply processed
a reduction in the grant award to the State.  The State argued that
HCFA's failure to issue a formal deferral notice here demonstrates
HCFA's continuing failure to comply with the deferral regulations.  The
State contended that HCFA's "repeated failure to send deferral notices
necessitates .that this Board take affirmative action to halt this
illegal [HCFA] practice."  Notice of Appeal, p. 2.

In an Order to Show Cause, the Board noted that the State had not argued
that it was prejudiced by not having gone through the deferral process.
Moreover, the Board cited two prior Board decisions involving the State
(Board Decision Nos. 807 and 815) which indicated that a failure to
follow the deferral procedures does not necessarily affect the validity
of a disallowance.  The Board stated that it did not appear that the
deferral process (which provides an opportunity for a state to submit
documenta- tion supporting a claim) would serve any useful purpose here,
as the State was not contesting the amount of the interest but only
challenging HCFA's legal right to a share of the interest.

As to the substantive issue, the State admitted in its notice of appeal
that this appeal did not present any material issues of fact which
distinguished it from those issues considered by the Board in Decision
Nos. 588 and 721.  The State accordingly requested that, if the Board
should not reverse the disallowance on procedural grounds, the Board
issue a summary decision in this appeal based upon those two decisions
and their records.  State's letter to the Board dated July 21, 1987.
HCFA raised no objection to the issuance of a summary decision.  HCFA's
letter to the Board dated August 12, 1987.

The Board directed the State to show cause why the Board should not then
issue a summary decision based on the analysis in the Order and in Board
Decision Nos. 807 and 815 on the procedural issue, and on Board Decision
Nos. 588 and 721 and their records on the substantive issues.

While repeating its objections to HCFA's actions, the State conceded
that it is appropriate for the Board to issue a summary decision in this
appeal.  The State presented no reason why the analysis in the Order was
incorrect.  State's letter to the Board dated August 13, 1987.

We therefore sustain the disallowance of $46,990, based on the analysis
contained in:  (1) the Order to Show Cause; .(2) Decision Nos. 807 and
721; and (3) Decision Nos. 588 and 721, all of which we incorporate by
reference here. 1/

 


________________________________ Norval D. (John) Settle

 


________________________________ Alexander G. Teitz

 


________________________________ Judith A. Ballard Presiding Board
Member

 


1.     While we sustain the disallowance, we note that HCFA's statement
as to the procedure it was following here is confusing.  The footnotes
to the attachments to the supplemental grant award dated May 21, 1987
include paragraph H, which states that $46,990 represents a "claim for
interest due HCFA that is being recovered through the deferral process."
The definition of "Deferral Action" in 45 C.F.R. 201.15 is the "process
of suspending payment" of a claim "pending receipt and analysis of
further informa- tion relating to the allowability of the claim"; there
is no reference to recovering funds claimed to be due HCFA.

 

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