Montana Department of Social and Rehabilitation Services, DAB No. 581 (1984) GAB Decision 581 October 24, 1984 Montana Department of Social and Rehabilitation Services; Docket No. 83-286 Ford, Cecilia; Garrett, Donald Ballard, Judith The Montana Department of Social and Rehabilitation Services (Montana, State) appealed a disallowance of $35,841 federal financial participation in the cost of maintenance assistance payments made during fiscal year 1978 (October 1, 1977 through September 30, 1978) and claimed by the State under Title IV-A of the Social Security Act. /1/ Title IV-A authorized federal assistance for foster care (FC) as part of the program of Aid to Families with Dependent Children (AFDC). /2/ The Office of Human Development Services (OHDS, Agency) estimated that $35,841 on appeal by extrapolating from a sample of AFDC-FC cases. The Agency sampled 164 payments in a universe of 382 taken from 10 counties. It found payments for 24 children to be unallowable. The State argued that the Agency's use of extrapolation to estimate the disallowance was inconsistent with Agency policy, citing California Department of Social Services, Decision No. 319, June 30, 1982 and its Reconsideration, December 31, 1982. The Agency contended that its policy did permit extrapolation, citing Action Transmittal (AT) 82-33, issued December 13, 1982, by the Social Security Administration, and Policy Announcement 83-03, issued by OHDS May 4, 1983, adopting the policy in AT 82-33. In the alternative, the Agency argued that the policy set forth in AT-82-33 should be applied retroactively. (2) We find that Agency policy applicable to the time period when the State made the assistance payments was to disallow only for individually identified errors. Accordingly, we reverse the disallowance to the extent based on extrapolation from a sample. We uphold the disallowance for the 24 sample cases. The reasons for our decision are the same as those set forth in Louisiana Department of Health and Human Resources, Decision No. 580, October 22, 1984. Montana's appeal was argued jointly with Louisiana and cases from several other states and the District of Columbia at a conference on July 11, 1984. As summarized at page 2 of the Louisiana decision, we hold: (1) that as a culmination of historical developments, including a failed rulemaking on error tolerance and a court decision, the Agency, perhaps in part inadvertently, ended up with a policy stance which assured states that only individually identified errors would be held against them; (2) that for the periods in question here, a contrary policy was never clearly articulated; and (3) that the states have made a persuasive showing that the retroactive imposition of a changed policy would be unfair, primarily because the states had no opportunity to decide whether to shift resources to reduce on error rate which the Agency had, in effect, agreed to tolerate. In the July 11 conference, the Agency was asked whether the errors in the cases addressed there were distinguishable from California. The Agency did not argue that they were distinguishable, but, rather, indicated that the definition of "case error" for the AFDC program was broad enough to cover all of the errors in question. Tr., 44-47. Thus, we see no reason for a different outcome here than in Louisiana. (3) Conclusion Accordingly, for the reasons stated above and explained in Louisiana, we uphold the disallowance in part and reverse in part. /1/ The State originally indicated it was appealing $69,356. In its brief and in a subsequent telephone conference, the State affirmed that it was appealing only $35,841. The State also did not dispute the Agency's individual case findings. /2/ The Child Welfare and Adoption Assistance Act of 1980, Public Law 96-272, established a new Foster Care Program under Title IV-E of the Act. MARCH 19, 1985