Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Vermillion Behavioral Health Center, |
DATE: March 12, 2001 |
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Health Care Financing Administration
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Docket No.C-00-057
Decision No. CR751 |
DECISION | |
I decide that the Health Care Financing Administration
(HCFA) correctly determined to certify Petitioner, Vermillion Behavioral
Health Center, to participate in the partial hospitalization program as
a community mental health center (CMHC), effective March 10, 1999. I. Background By letter dated March 11, 1999, HCFA certified Petitioner
to participate in the partial hospitalization program as a CMHC, effective
March 10, 1999. Petitioner disagreed with HCFA's determination, contending
that certification should have been granted at an earlier date and requested
a hearing. This case was assigned to me for a hearing and decision. HCFA submitted a motion for summary judgment with five
accompanying exhibits (HCFA Exs. 1 - 5). Petitioner submitted a motion
for summary judgment accompanied by five exhibits (P. Exs. 1 - 5). HCFA
submitted a brief in response accompanied by four exhibits, marked as
HCFA Exs. 1 - 4. I have remarked these additional exhibits as HCFA Exs.
6 - 9, to comply with Civil Remedies Procedures. Petitioner submitted
a brief in response accompanied by two exhibits, marked as P. Exs. 1 -
2. I have remarked these additional two exhibits as P. Exs. 6 and 7, to
comply with Civil Remedies Procedures. HCFA submitted a statement in reply
to Petitioner's response. Neither party objected to any of the exhibits
submitted. I admit into evidence HCFA Exs. 1 - 9 and P. Exs. 1 - 7. I
base my decision in this case on the law and the parties' submissions. II. Applicable law and regulations "Partial hospitalization services" are services which
are described at section 1861(ff) of the Social Security Act (Act) and
which are 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.
Act, sections 1861(ff)(1); 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). In order to be certified to participate in Medicare, a CMHC must apply to participate in Medicare. The CMHC must be inspected by or on behalf of HCFA and HCFA must certify that the CMHC satisfies applicable participation requirements. The relevant regulation governing the effective date of participation of a CMHC is codified as 42 C.F.R. � 489.13(a)(2)(i). This regulation specifies that the effective date of a participation agreement with a CMHC:
42 C.F.R. � 489.13(a)(2)(i). III. Issue, findings of fact and conclusions of law
The issue in this case is whether HCFA properly determined
to certify Petitioner's participation as a CMHC, effective March 10, 1999.
I make findings of fact and conclusions of law (Findings) to support my decision. I set forth each Finding below, as a separate 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 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 the parties' arguments to decide whether there are disputed issues of material fact. There are no disputed material facts in this case. Essentially, the parties are relying on the same facts and are making legal arguments based on those facts.
Petitioner makes two affirmative arguments as a basis
for its Motion for Summary Judgment. These are that: (1) the regulation
at section 489.13(a)(2)(i) is invalid because it was not published via
a notice and comment rulemaking consistent with the requirements of the
Administrative Procedure Act; and (2) HCFA is estopped from denying certification
to Petitioner because Petitioner believed that certification would be
approved based on the date the attestation statement was signed.(1) I do not have the 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 this Department has delegated authority to me to hear and decide. That authority is specified at 42 C.F.R. �� 498.3; 498.5. The regulations authorize me to hear and decide only cases involving specified initial determinations by HCFA. I may 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 Administrative Procedure Act. Lauderhill Community Mental Health Center, DAB CR652 (2000). Nor do I have the authority to hear and decide claims of estoppel, an equitable argument, against HCFA or the Secretary. GranCare Home Health Service & Hospice, DAB CR464 (1997); The Rivers Health Care Resources, Inc., DAB CR446 (1996); SRA, Inc. D/B/A St. Mary Parish Dialysis Center, DAB CR341 (1994); T.L.C. Mental Health Center, DAB CR636 (1999); Therapeutic Rehabilitation Centers, Inc., DAB CR 531 (1998). Therefore, Petitioner's motion for summary judgment is denied.
Petitioner is a CMHC providing partial hospitalization
services for Medicare beneficiaries in Kaplan, Louisiana. On May 11, 1998,
Petitioner submitted an attestation statement as part of a completed application
packet to HCFA. Subsequently, two on-site surveys were conducted to confirm
that Petitioner was complying with the federal requirements for participation.
By letter dated March 11, 1999, HCFA notified Petitioner that it had been
approved to participate in the partial hospitalization program as a CMHC,
effective March 10, 1999. P. Ex. 1. By letter dated May 10, 1999, Petitioner
requested reconsideration of the date of certification. HCFA denied this
request for reconsideration. Petitioner disagreed with the reconsidered determination insofar as it established an effective date of participation of March 10, 1999. Petitioner contended that it should have been certified to participate in Medicare effective May 11, 1998, the date of its initial application (which included the attestation statement) to participate in Medicare. Petitioner requested a hearing before an administrative law judge to contest the effective date of its participation in Medicare. Petitioner argues that genuine
issues of material fact exist which preclude summary judgment of this
appeal for HCFA. Petitioner claims that the date that HCFA "accepted"
Petitioner's signed agreement has not yet been determined. Petitioner
argues, alternatively, that HCFA "accepted" Petitioner signed agreement
on May 11, 1998, the date the attestation statement was signed as part
of the completed application packet, via its agent the Louisiana Department
of Health and Hospitals; on August 6, 1998, the date that Petitioner was
first surveyed by Trispan (the fiscal intermediary), which determined
that Petitioner met the federal participation requirements; on September
30, 1998, the date the state agency recommended to HCFA that Petitioner
be approved as a CMHC; or, on February 18, 1999, the date the second survey
was conducted by HCFA personnel, which determined that Petitioner met
the federal participation requirements. However, the plain meaning of section 42 C.F.R. � 489.13(a)(2)(i)
is that the effective date of the certification of a CMHC is the date
that HCFA accepts an entity's signed agreement. This regulation does not
identify the signed agreement as a provider agreement. However, 42 C.F.R.
� 489.13(a)(2)(i) is a regulation under Part 489 which is entitled "Provider
Agreements and Supplier Approval" concerning matters related to provider
agreements. In the context of Part 489, it is clear that the signed agreement
referred to in 42 C.F.R. � 489.13(a)(2)(i) is a provider agreement. In addition, it is HCFA that must do the "accepting" under section 42 C.F.R. � 489.13(a)(2)(i). The filing of an a completed application does not amount to acceptance. The date a survey is completed, even if the provider is found to have met all federal requirements, is not the date of acceptance by HCFA. Neither is the date a recommendation is made to HCFA from a state agency a date of acceptance by HCFA. After a survey is completed and a recommendation is made to HCFA, HCFA makes an independent determination to either grant or deny the application for CMHC status. This determination is not made by Trispan, the fiscal intermediary (see P. Ex. 4) nor by the state agency (see P. Ex. 7), and Petitioner was so informed. In this case, that independent determination to grant the application for CMHC status was not made until March 10, 1999. The regulation appears to vest discretion in HCFA to decide
the date on which a CMHC qualifies to participate. HCFA may determine
to certify a CMHC to participate at a date which is as late as the date
that HCFA completes its evaluation of a CMHC's application even if the
evidence of compliance that is submitted to HCFA by the CMHC demonstrates
compliance at an earlier date than the evaluation date. Midtown Mental
Health Center, DAB CR689 (2000).
I do not have authority to decide if HCFA's determination to not certify a provider until a certain date is arbitrary and capricious. Lauderhill Community Mental Health Center, DAB CR652 (2000). Additionally, HCFA argues that its actions were reasonable and not arbitrary and capricious.(2) I do not address HCFA's argument about reasonableness since I do not have authority to decide whether HCFA's determination to not certify a provider until a certain date is arbitrary and capricious. IV. ConclusionI decide that HCFA correctly determined to certify Petitioner to participate in the partial hospitalization program as a CMHC, effective March 10, 1999. |
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JUDGE | |
Alfonso J. Montano Administrative Law Judge
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FOOTNOTES | |
1. Petitioner stated that it relied on the fact that it would be certified on the date of the signed attestation statement based on HCFA's alleged past practice of backdating the effective date of certification to the date of the signed attestation statement and based on section 2252(E) of the State Operation Manuel (SOM). Even if I were authorized to hear claims of estoppel, I note that I am bound by the regulations, regardless of HCFA's past practices. I also note that the SOM merely offers guidelines to HCFA and that HCFA is not bound by the SOM. 2. During the time that Petitioner's application was being processed, there was an internal policy change that required HCFA personnel, rather than fiscal intermediary personnel, to conduct all the on-site visits to a CMHC. The reason for this policy change was to better insure that CMHCs that were being certified provided the necessary core services. The delay in processing Petitioner's application was due to the voluminous number of CMHC applications pending and the lack of HCFA personnel necessary to conduct on-site visits. HCFA Ex. 6. | |