Decision No. CR649 |
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IN THE CASE OF | ||||||
The Recovery Place, Inc., |
DATE: Feb. 23, 2000 | |||||
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Health Care Financing Administration. | Docket No.C-99-488 | |||||
DECISION | ||||||
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I enter summary disposition sustaining
the determination of the Health Care Financing Administration (HCFA) to
deny certification to Petitioner, The Recovery Place, Inc., to participate
in the Medicare program as a community mental health center (CMHC) providing
partial hospitalization services. I do so because Petitioner has not shown
that it may provide screening for patients being considered for admission
to State mental health facilities to determine the appropriateness of
such admissions, consistent with the requirements of federal and applicable
Florida State law. I. Background
Petitioner is a corporation located
in Bowling Green, Florida. Petitioner applied for certification to participate
in the Medicare program as a CMHC which provides partial hospitalization
services. On September 1, 1998, HCFA denied Petitioner's application.
On September 17, 1998, Petitioner applied to HCFA for reconsideration.
On December 8, 1998, HCFA informed Petitioner that it had concluded that
its original determination was correct. Petitioner requested a hearing
and the case was assigned to me for a hearing and a decision.
HCFA has moved for summary disposition.
It asserts that there are no material facts in dispute in this case. Petitioner
opposes the motion. Petitioner asserts that there are disputed issues
of material fact and that, furthermore, HCFA's asserted interpretation
and application of law is incorrect. HCFA offered 18 proposed exhibits
(HCFA Exs. 1 - 18) in support of its motion for summary disposition. Petitioner
offered one proposed exhibit (P. Ex. 1) in opposition to HCFA's motion.
Neither party objected to these exhibits. I hereby receive into evidence
HCFA Exs. 1 - 18 Governing Law
A. Federal law
"Partial hospitalization services"
are services which are defined at section 1861(ff) of the Social Security
Act (Act) and reimbursed by the Medicare program. "Partial hospitalization
services" consist of services that are prescribed by a physician and provided
pursuant to specified statutory criteria, and which include: individual
and group therapy with physicians and psychologists; occupational therapy
requiring the skills of a qualified occupational therapist; services of
social workers, trained psychiatric nurses, and other staff trained to
work with psychiatric patients; drugs and biologicals furnished for therapeutic
purposes; individualized activity therapies; family counseling; patient
training and education; diagnostic services; and such other services as
the Secretary of this Department may determine to be reasonable and necessary.
Sections 1861(ff)(1) and 1861(ff)(2)(A) - (I) of the Act.
The Medicare program will reimburse for partial hospitalization services that are provided by either a certified hospital or by a CMHC. See section 1861(ff)(3)(A) of the Act. A "community mental health center" is defined by the Act to mean an entity:
Additionally, the Secretary of this Department has issued a regulation which defines the term "community mental health center." There, a CMHC is defined as an entity that:
42 C.F.R. � 410.2. HCFA has published policy guidelines
which describe a CMHC's obligations under section 1913(c)(1) of the Public
Health Services Act and the above-cited regulation. In a document that
is entitled "All States Letter 76-95" (All States Letter), HCFA states
that a CMHC must provide all of the services that are listed in the Public
Health Service Act, either directly or under arrangements with others.
HCFA Ex. 2. The term "under arrangements" is defined in the All States
Letter to mean that a CMHC may arrange for those services described at
section 1913(c)(1) of the Public Health Services Act and partial hospitalization
services:
Id. at 3 (emphasis added).
HCFA has explained its understanding of what is meant by overall management
responsibility in its Medicare Intermediaries Manual (MIM). The MIM provides,
at section 3007 that, in permitting a provider to furnish services under
an arrangement with another entity, the provider may not serve merely
as a billing mechanism for that entity. MIM, � 3007; HCFA Ex. 3 at 1 -
2. A provider's professional supervision over arranged-for services requires
the provider to utilize many of the same quality controls that the provider
would apply to services that are provided by its own employees. Id.
These controls include: acceptance of the patient for admission in accord
with the provider's own admission policies; and, maintaining a complete
and timely clinical record of each patient, which includes diagnoses,
the patient's medical history, any physician's orders and progress notes.
Id. The provider must maintain liaison with the patient's attending
physician regarding the progress of the patient and the need for revised
patient orders. Id. HCFA has elected to defer to the laws of the States in order to determine what constitutes adequate screening for patients being considered for admission to a State mental health facility pursuant to section 1913(c)(1)(iv) of the Public Health Services Act. In a memorandum dated August 21, 1998, HCFA stated that "screening":
B. Florida State law Florida State law defines the entities that are authorized to perform the procedures which are necessary prerequisites to admission of individuals for treatment at a Florida State mental health facility. Under the Florida Mental Health Act (Florida State Act), F.S.A. � 394.451, et seq., only certain types of entities are authorized to perform the necessary procedures. Specifically, these entities are limited to entities which are authorized to perform "transfer evaluations." F.S.A. � 394.461(2). A "transfer evaluation" is defined under Florida State law as being:
F.S.A. � 394.455(29).
Under Florida State law, a "community
mental health center or clinic" is a: publicly-funded,
not-for-profit center which contracts with . . . F.S.A. � 394.455(6). | ||||||
ISSUE, FINDINGS OF FACT AND CONCLUSIONS OF LAW | ||||||
A. Issue
The issue in this case is whether
HCFA properly determined not to certify Petitioner to participate in Medicare
as a CMHC providing partial hospitalization services.
B. Findings of fact and
conclusions of law I make findings of fact and conclusions
of law (Findings) to support my decision in this case. I set forth each
Finding below as a separately numbered heading. I discuss each Finding
in detail. 1.
Summary disposition is appropriate in this case.
A threshold question in this case
is whether summary disposition is appropriate. Petitioner argues that
there are disputed issues of material fact which cannot be resolved without
the taking of additional evidence. Summary disposition is appropriate
either where: there are no disputed issues of material fact and the only
question that must be decided is application of the law to the undisputed
facts; or, where the moving party must prevail as a matter of law even
if all disputed facts are resolved in favor of the party against whom
the motion is made. I have looked closely at Petitioner's arguments in
order to decide whether there exist any genuinely disputed issues of material
fact. I am assuming the facts that Petitioner
asserts in P. Ex. 1 to be true for purposes of deciding HCFA's motion
for summary disposition. I conclude that summary disposition is appropriate
in this case notwithstanding my decision to accept as true the facts alleged
by Petitioner in P. Ex. 1. As I explain in detail in the Findings which
follow, Petitioner has failed to make a showing that it qualifies to participate
in Medicare as a CMHC providing partial hospitalization services even
accepting as true the facts which Petitioner alleges.
2.
Petitioner did not satisfy participation criteria for a CMHC providing
partial As I discuss above, at Part II.A. of this decision, in order to be certified to provide partial hospitalization services - indeed to fall within the statutory definition of a CMHC contained at section 1913(c)(1) of the Public Health Service Act - an entity must meet criteria which, among other things, include the following:
In order to be able to perform
directly the screening services that are required under section 1861(ff)(3)(A)
of the Act and section 1913(c)(1)(iv) of the Public Health Service Act,
Petitioner must be authorized to perform transfer evaluations pursuant
to Florida State law. Screening and transfer evaluations are essentially
identical processes. HCFA has defined screening to constitute the clinical
evaluation of a patient to determine his or her suitability for transfer
to a State mental health facility. HCFA Ex. 4 at 1. Under Florida State
law a transfer evaluation also is a clinical evaluation of a patient to
determine his or her suitability for transfer to a State mental health
facility. F.S.A. Petitioner cannot qualify to perform
screening directly because it cannot qualify pursuant to Florida State
law to perform transfer evaluations. Florida State law provides that the
only type of entity which may perform a transfer evaluation is
a not-for-profit publicly funded entity. F.S.A. � 394.455(6). Petitioner
has not made any showing that it is a nonprofit entity that is certified
to perform transfer evaluations under Florida State law.
Petitioner concedes that, in order
to qualify to participate in Medicare, it must meet applicable State licensing
and certification requirements. Petitioner Brief (Br.) at 11. Moreover,
Petitioner admits that, under Florida State law, a for-profit entity may
not lawfully perform transfer evaluations. Id. at 12. Petitioner
seems to assert however, that under federal law screening is not the same
thing as is a transfer evaluation under Florida State law. Id.
Petitioner therefore appears to argue that its disqualification under
Florida State law from performing transfer evaluations is irrelevant to
deciding the question of whether it may be certified to perform screening
directly. Petitioner attempts to support
its argument by asserting that, prior to November 1997, HCFA certified
for-profit entities in Florida to participate in Medicare as CMHCs. Petitioner
contends that HCFA's alleged prior interpretation of the law, in which
HCFA allegedly certified for-profit entities as CMHCs, is dispositive
of the question of whether Petitioner may perform screening directly.
I am not persuaded by Petitioner's
argument. First, Petitioner has not offered anything to explain why HCFA's
present interpretation of the law is unreasonable. And, on its face, the
interpretation is reasonable. It is entirely reasonable for HCFA to conclude
that a for-profit facility in Florida may not perform screening directly
if that facility cannot, under Florida State law, lawfully perform a transfer
evaluation. As I discuss above, a transfer evaluation under Florida State
law essentially duplicates what federal law describes as screening. HCFA
Ex. 4 at 1; F.S.A. � 394.455(29). Petitioner has offered nothing to show
how screening differs from a transfer evaluation.
Second, the fact that HCFA may
have in the past certified for-profit Florida entities to participate
as CMHCs does not mean that it presently misinterpreting or misapplying
the law. What HCFA may have done in the past provides no precedent for
its present determinations. Arguably, HCFA may have applied the law incorrectly
in the past. b.
Petitioner does not qualify under federal participation requirements In order to comply with federal
participation criteria an arrangement between a CMHC and another entity
must provide that the CMHC retains overall supervision over the screening
process. All States Letter. It is not sufficient for the CMHC merely to
refer a patient to another entity for screening. The CMHC must directly
supervise the basic functions which the other entity performs that comprise
screening. MIM � 3007; HCFA Ex. 3 at 1 - 2. Petitioner does not comply with
federal participation requirements which govern screening through an arrangement
with others. The evidence in this case does not show that Petitioner has
a screening arrangement with another entity which complies with federal
requirements. Petitioner has a contract with University Behavioral Center
in which University Behavioral Center agrees to service Petitioner's clients
in emergency situations which require stabilization. HCFA Ex. 8 at 2.
However, the agreement does not provide for the supervision that is required
by federal participation requirements. Indeed, it is unclear from the
face of the agreement whether the emergency services that University Behavioral
Center is providing includes screening as is defined under federal law.
Id. Petitioner has not averred that
it has an acceptable arrangement with others to perform screening. Instead,
Petitioner argues that HCFA's statements of the requirements governing
screening are "invalid exercises of delegated authority" by HCFA. Petitioner
Br. at 4. On close examination of Petitioner's
arguments, it does not appear that Petitioner actually takes issue with
HCFA's assertion that a CMHC must closely supervise screening services
that are performed through an arrangement with another entity. Petitioner
devotes its arguments to a different question: that being whether a CMHC
must actually be referring patients to another entity to in order
to be in compliance with the provisions which govern screening through
an arrangement with another entity. Petitioner Br. at 4 - 9.
It is not necessary for me to resolve
the question that Petitioner raises in its brief in order to decide this
case. Whether Petitioner actually is referring patients for screening
is irrelevant to my decision. That is because I find that Petitioner has
not shown that it has an acceptable arrangement. Even if Petitioner
were referring patients to some other entity for screening, the fact that
Petitioner did so would be of no avail to Petitioner in the absence of
proof that the arrangement to refer patients met HCFA's criteria.
Furthermore, I am not persuaded that HCFA's statement of the criteria governing the terms of a screening arrangement exceeds the scope of HCFA's authority. It is true that neither the Public Health Service Act nor regulations specifically provide how screening may be accomplished by a CMHC. Public Health Service Act, section 1913(c)(1); 42 C.F.R. � 410.2. Having said that, however, there is nothing in the All States Letter or MIM � 3007 that is inconsistent with the requirements of either the Public Health Services Act or with the regulation. As is pointed out in MIM � 3007: In permitting providers
to furnish services under arrangements, it was not intended that the HCFA Ex. 3 at 1 - 2. Petitioner has not made any showing why this is an unreasonable application of the law. 3.
Petitioner has not offered facts that are relevant to the issue I have examined closely the documents
which Petitioner provided as P. Ex. 1. The exhibit consists of the declaration
of Thomas Sledd, Petitioner's vice president, along with excerpts from
patient treatment records. In his declaration, Mr. Sledd discusses at
some length the arrangements that Petitioner made with University Behavioral
Center. Mr. Sledd avers that referrals from Petitioner to University Behavioral
Center typically were for patient stabilization. He asserts that Petitioner
and University Behavioral Center prepared and maintained separate clinical
records relative to the services that they provided. However, University
Behavioral Center consulted with Petitioner and obtained copies of the
record of treatment provided by Petitioner. Mr. Sledd avers further that Petitioner
actually performed psychosocial evaluations. According to Mr. Sledd, such
evaluations are the "same tools used in the state of Florida in determinations
of the appropriateness of patients who are being considered for admission
to state mental facilities." P. Ex. 1 at 22. As I discuss above at Finding 1,
I am assuming for purposes of this decision that Mr. Sledd's declaration
and the accompanying records are entirely true. However, neither the declaration
nor the records relate to the issue of whether Petitioner met certification
criteria for screening services. The fact that Petitioner may have done
screening which involved the same tools or methodology used by State-certified
CMHCs does not establish that Petitioner met federal criteria for providing
screening directly. As a matter of law Petitioner does not qualify to
provide screening directly, no matter how closely its screening methodology
may emulate that which is used by State-certified CMHCs, because Petitioner
does not satisfy the requirement under Florida State law that it be a
not-for-profit entity. Petitioner has not shown how its
relationship with University Behavioral Center satisfied federal criteria
for screening arrangements with third parties. For example, Petitioner
has not offered any evidence to show that it closely supervised the activities
of University Behavioral Center. Mr. Sledd's declaration shows, at most,
that Petitioner and University Behavioral Center cooperated with each
other. Cooperation is not equivalent to supervision. |
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JUDGE | ||||||
Steven T. Kessel |
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