Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Life Directions Mental Health PHP, Inc., |
DATE: March 9, 2001 |
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Health Care Financing Administration
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Docket No.C-99-470 Decision No. CR750 |
DECISION | |
I enter summary disposition sustaining the
determination of the Health Care Financing Administration (HCFA) not to
grant certification to Life Directions Mental Health PHP, Inc. (Petitioner)
to participate in the Medicare program as a community mental health center
(CMHC) providing partial hospitalization services. I do so because Petitioner
failed to present evidence in support of the contention that it provided
screening services which complied with federal and Florida law. I. Background Petitioner is an organization located in Pembroke Park,
Florida. Petitioner applied for certification to participate in the Medicare
program as a CMHC which provided partial hospitalization services. By
letter dated August 28, 1998, Petitioner was advised by HCFA that its
application for Medicare certification had been denied due to Petitioner's
failure to comply with the statutory requirements of section 1861(ff)(3)(B)
of the Social Security Act (Act). Specifically, Petitioner did not provide
screening for patients being considered for admission to state mental
health facilities to determine the appropriateness of such an admission.
HCFA Ex. 5. Additionally, HCFA noted that Petitioner was a for-profit
corporation that did not contract with the Florida Department of Children
and Families (DCF) for the provision of inpatient, outpatient, day treatment,
or emergency services and, therefore, could not perform transfer evaluations
in accordance with Florida law. On October 27, 1998, Petitioner submitted
to HCFA a request for reconsideration of HCFA's
initial determination. By letter dated December 21, 1998, HCFA informed
Petitioner that the initial denial of its request for certification was
a correct determination. On February 19, 1999, Petitioner forwarded to the Civil
Remedies Division (CRD) of the Departmental Appeals Board (DAB) a request
for hearing before an administrative law judge. The matter was initially
assigned to Administrative Law Judge Mimi Hwang Leahy for hearing and
a decision. The case was subsequently reassigned to me on February 3,
2000. HCFA filed a motion for summary disposition on October
1, 1999. HCFA submitted six exhibits (HCFA Exs. 1-6) in support of its
motion. Petitioner opposed HCFA's motion and submitted its response brief
on November 2, 1999. Attached to Petitioner's response were five exhibits
(P. Exs. 1-5). HCFA filed a reply to Petitioner's response on November
16, 1999 and submitted two additional exhibits (HCFA Exs. 7 and 8). I
am receiving into evidence HCFA Exs. 1-8 and P. Exs. 1-5. II. Applicable Law
"Partial hospitalization services" are services which
are described at section 1861(ff) of the Act and which are reimbursed
by the Medicare program. "Partial hospitalization services" consist of
services that are prescribed by and provided under the supervision of
a physician, 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. Act, sections 1861(ff)(1) and 1861(ff)(2)(A)-(I). The Medicare program will reimburse for partial hospitalization services that are provided by either a certified hospital or a CMHC. See Act, section 1861(ff)(3)(A). A "community mental health center" is defined by the Act to mean an entity:
Act, section 1861(ff)(3)(B)(i), (ii). Although the Act refers to section 1916 of the Public Health Service Act, that particular provision was recodified as section 1913(c)(1) of the Public Health Service Act. Under this section, the services that a CMHC must provide include the following:
Additionally, the Secretary of the Department of Health and Human Services (DHHS) has issued a regulation which defines the term "community mental health center." A CMHC is defined by the regulation to be an entity that:
42 C.F.R. � 410.2 (2000). HCFA has published policy guidelines which describe a CMHC's obligations under section 1913(c)(1) of the Public Health Service Act and the above-cited regulation. In a document 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 elected to defer to the laws of the States in order to determine what constitutes adequate screening for patients being considered for admission to State mental health facilities pursuant to section 1913(c)(1) of the Public Health Service Act. In a memorandum dated August 21, 1998, HCFA stated that "screening":
HCFA Ex. 3 at 1 (emphasis in original).
Florida 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, Fla. Stat. Ann. � 394.451, et. seq., only certain types of entities are authorized to perform the necessary procedures. Specifically, these entities are limited to those entities which are authorized to perform "transfer evaluations." Fla. Stat. Ann. � 394.461(2). A "transfer evaluation" is defined under Florida law as being:
Fla. Stat. Ann. � 394.455(29). Under Florida law, a "community mental health center or clinic" is a:
Fla. Stat. Ann. � 394.455(6). III. Issues, Findings of Fact and Conclusions of Law
This case is one in a series of cases that has been recently
heard and decided by the Civil Remedies Division involving the general
issue of whether a CMHC meets certification requirements for participation
in the Medicare program. Many of these cases involve CMHCs that are located
in the State of Florida. Recent decisions which address the participation
status of Florida CMHCs include: New Millennium CMHC, Inc., DAB
CR672 (2000); The Recovery Place, Inc., DAB CR649 (2000); Long
Life Wellness Center, DAB CR657 (2000); Lauderhill Community Mental
Health Center, DAB CR652 (2000); Charity Behavioral Services, Inc.,
DAB CR635 (1999); Psychstar of America, DAB CR645 (2000); and T.L.C.
Mental Health Center, DAB CR636 (1999). These cases do not involve identical questions of law
and fact, but the issues raised by them are very closely related. As I
discuss above at Part II of this decision, qualification to participate
in Medicare as a CMHC depends upon application of both federal and state
laws. In order to qualify for participation, a CMHC must meet both federal
and applicable state requirements. What lies at the heart of this case
is that Petitioner is a "for-profit" entity which seeks to operate under
state laws which do not recognize for-profit entities as CMHCs. The specific issues in this case are whether:
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.
A threshold question in this case is whether summary disposition
is appropriate. Summary disposition is appropriate where either: there
are no disputed issues of material fact and the only questions that must
be decided involve application of 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 its brief 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. 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.
As I discuss above, at Part II.A of this decision, in order to be certified to provide partial hospitalization services - and to satisfy the statutory definition of a CMHC contained at section 1913(c)(1) of the Public Health Services Act - an entity must meet criteria which, among other things, include the following:
HCFA asserts that Petitioner fails to meet these criteria because Petitioner may not offer screening directly consistent with the requirements of Florida law, nor has Petitioner demonstrated that it has entered into an acceptable arrangement with a third party for the performance of screening.
In order to be able to perform directly the screening
services that are required under section 1861(ff)(3) of the Act and section
1913(c)(1) of the Public Health Service Act, Petitioner must be authorized
to perform transfer evaluations pursuant to Florida law. Federal law requires
a CMHC to comply with applicable state requirements in order to participate
in Medicare. 42 C.F.R. � 410.2. Florida's law governing a transfer evaluation
by a CMHC is plainly applicable state law inasmuch as a transfer evaluation
is a process that is identical to screening. Under federal law, screening
is the clinical evaluation of a patient to determine his or her suitability
for hospitalization in a state mental health facility. Under Florida 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.
Fla. Stat. Ann. � 394.455(29). Petitioner cannot qualify to perform screening directly
because it cannot qualify pursuant to Florida law to perform transfer
evaluations. Florida law provides that a CMHC may perform a transfer evaluation
only if it is a "not-for-profit," publicly-funded entity. Fla. Stat. Ann.
� 394.455(6). Petitioner is a private, for-profit facility which has not
contracted with the DCF to provide inpatient, outpatient, day treatment,
or emergency services. See HCFA Ex. 5 at 3. Petitioner does not
dispute HCFA's findings that it is a "for-profit," private entity which
cannot perform transfer evaluations. See P. Hearing Request at
1. However, Petitioner argues that Florida law permits Petitioner
to qualify under participation requirements. Petitioner contends that
even though it is not capable of conducting transfer evaluations, under
Fla. Stat. Ann. � 394.455(26), a for-profit CMHC may involuntarily commit
an individual to a receiving facility where a transfer evaluation may
be conducted to determine admission or non-admission to a state mental
health facility. Thus, Petitioner argues it would be in compliance with
the requirements of the law. P. Response at 4-5. Additionally, Petitioner
infers in its response that it employs mental health professionals capable
of executing a professional certificate authorizing the involuntary commitment
of an individual to a receiving facility. Id. at 5. In its reply, HCFA asserts that the August 21, 1998 memorandum, which interprets the screening requirements, is quite explicit as to the standards the facility must meet. The memorandum provides that:
HCFA Reply at 2-3 (citing HCFA Ex. 3 at 1). HCFA also argues that, while Petitioner may employ professionals
that can perform evaluations for involuntary transfer, this does not obviate
the fact that Petitioner is not authorized under Florida law to perform
transfer evaluations. Id. at 3-4. I find HCFA's analysis on both issues to be convincing. Fla. Stat. Ann. � 394.455(29) is concise as to what constitutes a "transfer evaluation." Clearly, Petitioner does not meet this standard. Furthermore, Petitioner itself must be authorized to perform transfer evaluations. If Petitioner is not certified to perform such tasks, it is irrelevant whether every one of Petitioner's employees is certified or qualified to carry out such services. Petitioner's argument to the contrary is unconvincing.
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. HCFA Ex.
2 at 3-4. It is not sufficient for the CMHC to merely refer a patient
to another entity for screening. The CMHC must directly supervise the
basic functions which the other entity performs that comprise screening.
Id. at 3. I have evaluated Petitioner's arguments that it has established
a satisfactory arrangement with another entity for performing screening.
I find them to be unpersuasive. The evidence in this case does not show
that Petitioner has a screening arrangement with another entity which
complies with federal requirements. Petitioner asserts that it contracted with mental health
professionals capable of executing a professional certificate under Florida
law. Primarily, Petitioner contends that it had an arrangement with Fort
Lauderdale Hospital (Fort Lauderdale) to provide screening and that the
arrangement conformed with all applicable law. P. Response at 6-7; See
P. Ex. 4. HCFA's counter-argument propounds that Petitioner's agreement
with Fort Lauderdale fails to satisfy the criteria for performing screening
through another entity, and therefore the Fort Lauderdale agreement is
not an arrangement authorized to perform all of the requisite steps in
the process where individuals are clinically assessed for appropriateness
of admission to a state mental health facility, as required by the August
21, 1998 memorandum. Petitioner, HCFA contends, is unable to demonstrate
that it provides screening services "under arrangements." HCFA Reply at
6. I agree. The agreement cited by Petitioner does not address or describe
the specific evaluations that are the subject of the regulations. I am
not convinced that this agreement satisfies the requirement associated
with the provision of the services "under arrangement" as provided by
law. The terms of Petitioner's arrangement do not disclose the types of
services to be provided by the hospital, and it clearly indicates that
Petitioner's management and control over Fort Lauderdale is limited in
nature. The agreement specifically stipulates that, among other things,
integration of Petitioner's staff into the hospital facility would be
on an "as needed" or "where appropriate" basis. P. Ex. 4 at 2. I also concur with HCFA's argument that, because Petitioner is prohibited under Florida law from supervising, being responsible for, or otherwise controlling the manner in which Fort Lauderdale conducted a transfer evaluation, Petitioner could not exercise the supervision and control necessary to satisfy the criteria for the provision of services "under arrangements" discussed above.
Petitioner also asserts the following additional arguments:
I do not have authority to hear and decide these arguments.
My authority in cases involving HCFA is limited to hearing and deciding
those issues which the Secretary of the Department of Health and Human
Services (the Secretary) has delegated authority for me to hear and decide.
That authority is specified in 42 C.F.R. �� 498.3 and 498.5. The regulations
authorize me to hear and decide only cases involving specified initial
determinations by HCFA. The regulations give me the authority to hear and decide
whether HCFA's determination that an entity fails to qualify as a provider
was made correctly. 42 C.F.R. �� 498.3(b)(1) and 498.5(a)(2). In such
a case, I may decide whether HCFA applied correctly to the facts of a
case applicable regulations and interpretations of the law. I may also
decide whether HCFA's interpretation of a regulation is correct or incorrect.
However, I lack the authority to decide whether
HCFA or the Secretary published an interpretation of law in violation
of the APA. Nor do I have the authority to hear claims of estoppel against HCFA or the Secretary. It is well-established that I and other Administrative Law Judges on this Board lack the authority to hear and decide estoppel arguments involving alleged dilatory processing of applications for provider or supplier certification. GranCare Home Health Service & Hospice, DAB CR464 (1997); The Rivers HealthCare Resources, Inc., DAB CR446(1996); SRA, Inc. D/B/A St. Mary Parish Dialysis Center, DAB CR341 (1994). Petitioner in the instant matter has not offered any argument which would give me reason to revisit the holdings in these decisions. |
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JUDGE | |
Alfonso J. Montano Administrative Law Judge
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