Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
Evolution Healthcare Community Mental Health Center, |
DATE: June 12, 2001 |
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Health Care Financing Administration
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Docket No.C-00-857
Decision No. CR778 |
DECISION | |
DECISION After considering the arguments of the parties, the documentary
evidence, and the applicable law and regulations, I sustain the Health
Care Financing Administration's (HCFA's) determination that Petitioner
did not meet the requirements for certification to participate in the
Medicare program as a community mental health center (CMHC) providing
partial hospitalization services. I. Background Petitioner, a mental health care facility in Opelousas,
Louisiana, submitted an application to HCFA on May 4, 2000 requesting
certification to participate in the Medicare program as a CMHC providing
partial hospitalization services. HCFA determined that Petitioner did
not meet certification requirements and communicated its determination
to Petitioner by letter dated June 9, 2000. Specifically, HCFA stated
that Petitioner did not meet the CMHC requirement that it provide 24-hour-a-day
emergency care services. By letter dated June 28, 2000, Petitioner provided
HCFA with additional evidence, in an attempt to persuade HCFA that it
did satisfy certification requirements. HCFA was not persuaded by this
evidence, and so notified Petitioner by letter dated July 18, 2000. Petitioner filed a request for hearing on September 15,
2000, and the case was assigned to me for hearing and decision. By my
"Order and Schedule for Filing Briefs and Documentary Evidence" dated
November 27, 2000, I noted that the parties agreed that there is no need
in this case for testimonial evidence and that all factual disputes would
be resolved through my review of the documentary evidence submitted to
me by the parties. I then adopted the briefing schedule suggested by the
parties, which concluded with Petitioner's reply brief dated April 16,
2001. In the absence of objection, I am admitting into evidence HCFA's
8 proposed exhibits (HCFA Exs. 1- 8) and Petitioner's 10 proposed exhibits
(P. Exs. 1- 10). I note that Petitioner submitted a brief (P. Br.) to
which HCFA responded (HCFA Br.) and to which Petitioner replied (P. R.
Br.). Where Petitioner and HCFA have submitted an identical copy of an
exhibit, or a page or pages of an exhibit, I will cite to HCFA's exhibits. II. Applicable law and regulations Partial hospitalization in the context of a CMHC consists
of a program of psychiatric services prescribed by a physician and aimed
at providing treatment to patients who would otherwise require inpatient
psychiatric hospitalization. Section 1861(ff) of the Social Security Act
(Act); 42 C. F. R. � � 410.2, 410.43, 410.110. In order to be certified as a CMHC providing partial hospitalization
services in the Medicare program, an entity must meet certain statutory
requirements. The Act requires that a CMHC provide the services described
in section 1916(c)(4) of the Public Health Service Act (PHSA) (since recodified
as section 1913(c)(1) of the PHSA (42 U.S.C. � 300x-2(c)(1)), and meet
the requisite licensing or certification requirements for a CMHC in the
State in which it is located. To be approved as a CMHC, an entity must provide the following services listed in the PHSA at section 1913(c)(1):
See PHSA, section 1913(c)(1); 42 C.F.R. � 410.2. III. Issue The issue in this case is whether HCFA was correct when
it determined that Petitioner was not providing 24-hour-a-day emergency
care services, one of the services listed in section 1913(c)(1) of the
PHSA and required by section 1861(ff)(3)(B) of the Act. IV. Burden of Proof As an applicant for certification as a participant in
the Medicare program, Petitioner has the burden of establishing that it
satisfies participation requirements. 42 C.F.R. � 489.10(a). Petitioner
also has the ultimate burden of rebutting, by a preponderance of the evidence,
any prima facie case of noncompliance established by HCFA. Hillman
Rehabilitation Center, DAB No. 1611 (1997), aff'd, Hillman
Rehabilitation Center v. United States Department of Health and Human
Services, Health Care Financing Administration, No. 98-3789 (GEV),
slip op. at 25 (D.N.J., May 13, 1999). HCFA meets its burden to establish a prima facie case
merely by establishing that Petitioner has not supplied it with sufficient
affirmative evidence that it is complying with participation requirements.
As an applicant for certification, Petitioner must show affirmatively
that it is complying with such requirements. V. Findings and Discussion My findings of fact and conclusions of law are noted and numbered below, in bold and italics, and are followed by a discussion of each finding.
For an applicant to qualify to participate in the Medicare
program as a CMHC, the Act and the regulations require
it to provide 24-hour-a-day emergency care services. PHSA, section 1913(c)(1);
Act, section 1861(ff)(3)(B); 42 C.F.R. � 410.2. HCFA contends that Petitioner
has not shown that such services were actually performed. This conclusion
was reached after evaluating the information gathered
byIntegriGuard,(1) HCFA's contractor, whose
personnel made an on-site visit to Petitioner to verify Petitioner's provision
of the services required under the Act and regulations. HCFA asserts that
following this on-site visit IntegriGuard submitted a report that substantiates
HCFA's denial of certification. HCFA Br. at 5; HCFA Ex. 2. Petitioner claims that it was complying with the statutory
and regulatory requirement to provide 24-hour-a-day emergency care services
by having a system designed to transfer phone calls at the end of the
facility's regular working hours to a portable cellular phone which would
be answered by a mental health professional (which calls would still be
made to the same telephone number utilized by Petitioner's patients during
regular business hours (P. Br. at 2)). HCFA Ex. 5, at 3; HCFA Ex. 6, at
1 - 6. In order to verify Petitioner's claim that at the end of the working
day all calls were transferred to the cell phone, an IntegriGuard employee
attempted to reach Petitioner's emergency services at 11:20 p.m. on May
15, 2000. HCFA Ex. 2, at 23. Although the facility administrator had represented
to IntegriGuard that the phone rang only once before being answered, the
IntegriGuard employee obtained no response after 11 rings. Id.
HCFA employees later made four unsuccessful attempts to reach the facility's
after-hours cell phone between 5:40 p.m. on June 8, 2000 and 6:50 a.m.
on June 9, 2000. HCFA Exs. 3, 4 . Petitioner's position, as reflected in its request for
reconsideration dated June 28, 2000 and in its briefs, is that it was
complying with the Act and regulations requiring the 24-hour-a-day emergency
care services requirement on the dates that the HCFA contractor and employees
made their calls. It asserts that it was receiving all incoming calls,
as is reflected in its call logs, telephone records, and the maintenance
of its forwarded caller service. Petitioner speculates that HCFA surveyors
may have been unable to access the after-hours number because the Dallas
area codes they made the call from may have been incompatible with the
telephone services Petitioner maintained. Petitioner asserts this as a
possibility because it states that its caller ID services show no calls
received from either the 972 or 214 area codes on the dates on which HCFA
claims to have tested the after-hours emergency number. Petitioner further
asserts that on one of the dates in question, June 8, 2000, an actual
emergency call was placed, received, and handled by Petitioner according
to the policies and procedures Petitioner has in place for emergency services.(2)
HCFA Ex. 6. HCFA disagrees with Petitioner's contention that it keeps
a log that bears testimony to its compliance with the requirement to provide
after-hours emergency care services. HCFA notes that the logs Petitioner
refers to show entries at various dates from March 1 to June 22, 2000,
but, during the on-site survey on May 15, 2000, Petitioner was unable
to produce any documentary evidence to substantiate its claim that it
actually provided services. HCFA Ex. 2, at 23; HCFA Ex. 6, at 7 - 9. Consequently,
the sudden appearance of this new "proof" of compliance is viewed as suspect
by respondent. HCFA Br. at 12 - 13.(3) HCFA also points out that although Petitioner provided
affidavit support that at least four separate individual staff members
shared the duty of carrying the cellular phone to which after-hours calls
were allegedly forwarded, the call log is written entirely in one person's
handwriting. P. Exs. 5, 6; HCFA Br. at 13. Petitioner concedes this, but
alleges in its reply brief that Patrick Bowman, Petitioner's administrator
and counselor, was primarily responsible for handling after-hour calls.
P. R. Br. at 3, n.2. Petitioner adds that while others shared that responsibility
on rare occasions, Mr. Bowman was the only one to have received after-hour
calls, and that the call log itself indicates that Mr. Bowman received
the cell phone call in which a client of Petitioner's allegedly got through
on the after-hours number after being conferenced in by a facility employee.
P. R. Br. at 3, n.2. The affidavits to which HCFA refers (P. Exs. 5, 6),
sworn to by Petitioner's general facilities manager and nurse manager,
indicate that if a call came in they would screen the call and, if necessary,
contact one of the Petitioner's social workers or the medical director,
Dr. Phillip Lefleur. The affidavits listed Patrick Bowman and Richard
Babin as the social workers who shared on-call duties. I find that logic dictates that if an after-hours call
was forwarded to the cellular phone of one of the affiants, regardless
of what action they took, it would be they who would make a log entry
to document the action taken in the matter. If, for some arcane reason,
the system in place required the person to whom the matter was referred
to make the log entry, I would expect to find entries by Patrick Bowman,
Richard Babin, and Dr. Phillip Lefleur within a several month period.
However, as Petitioner concedes, only entries by Mr. Bowman appear on
the logs. When confronted with the fact that only Mr. Bowman made entries
in the call logs, Petitioner explains that he was the only person to have
received after-hour calls. P. R. Br. at 3, n.2. This contradicts the affidavits
of the general facilities manager and nurse manager, who stated that if
a call was received they screened it and contacted a social worker or
the medical director. P. Exs. 5, 6. In that sense, Petitioner's revised
explanation of Mr. Bowman's role in the handling of after-hours calls
is a departure from the evidentiary offering previously made by Petitioner
and is therefore unpersuasive. The explanation given now is no more than
an unsupported self-serving statement. As additional proof that it provides 24-hour-emergency
care services, Petitioner references the call received on June 8, 2000
from Denise Anderson, the case manager at the Opelousas New Life Center,
on behalf of one of their tenants. HCFA Ex. 6, at 9. In response, HCFA
notes that this call does not appear on the telephone records. However,
Petitioner counters with the explanation that no record of the call appears
because there was an individual present at the facility when the call
was received who "conferenced in" Mr. Bowman. P. Br at. 7, n.1. Ms. Anderson's
statement says that she spoke with the "after-hours on call person," and
was transferred to Patrick Bowman. HCFA Ex. 6, at 2. Petitioner, on the
other hand, claims that the call was received by an individual who happened
to be at the facility. Again, Petitioner's rationalization runs counter
to its own documentary evidence.(4) Moreover,
I agree with HCFA that, at most, Ms. Anderson's statement reflects that
an after-hours call was successfully completed in this one instance (apparently
not even a call forwarded to Mr. Bowman by the call forwarding system
but by an employee who happened still to be working at the facility and
answered the phone). This one after-hours call does not prove that Petitioner's
system was in place and working. Additionally, I agree with HCFA that the absence of clinical
documentation to support the alleged interventions noted in the after-hours
call log detracts from Petitioner's alleged compliance with the 24-hour-a-day
emergency care services requirement. HCFA Br. at 13. All of these inconsistencies
militate against a conclusion that Petitioner was genuinely
providing 24-hour-a-day emergency care services. If these services were
really being provided it should be evident, and an examination of their
existence need not require the scrutiny of a magnifying glass. I do not find the other documents on which Petitioner
relies, such as the cellular telephone itemized record of calls (P. Ex.
7), probative of compliance with the requirements. HCFA is correct in
its assertion that they are inconclusive and provide no verification of
after-hours emergency calls received by the facility. HCFA Br. at 15. Petitioner asserts that because hot lines, beepers, and
answering services may be facets of emergency services,
but not constitute their totality (citing HCFA Pub. No. 9, � 260.2 (P.
Ex. 3)), HCFA should not have determined that it was not meeting certification
requirements because Petitioner did have policies and procedures complying
with the requirement. P. Br. at 4 - 5. Petitioner's argument here is unavailing,
however, because Petitioner must show that it is actually "providing"
services. The purpose of the 24-hour emergency care services requirement
(see HCFA Ex. 3) is not to have a hot line service in place to
receive calls, it is to ensure that a patient is able to consult with
a clinician outside of business hours for a psychiatric emergency and
then receive interventions to deal with that emergency. In summary, I agree with HCFA that given Petitioner's
representations that the means by which they provided emergency care was
by forwarding their business telephone to a cellular phone, it was reasonable
for HCFA to verify that the system was operational. A system in place
is not evidence that the 24-hour-a-day emergency care services requirement
is met. The purpose of the requirement, as I state above, is not to have
the call system; the purpose of the requirement is to ensure that patients
get the help they need from a qualified clinician 24-hours-a-day. Thus,
without clinical documentation or other independent verification, it is
not possible to demonstrate that an applicant has met this requirement.
Here, Petitioner has failed to proffer documentation proving that it was
providing this service and HCFA has proved that it was unable to even
access the system that Petitioner asserted showed its compliance with
this requirement. Moreover, Petitioner has failed to provide any plausible
explanation accompanied by credible evidence regarding why HCFA or its
contractor could not access the after-hours service.(5) Petitioner also considers HCFA's reliance on Psychstar of America, DAB CR645 (2000), to be misplaced. P. R. Br. at 1 - 3. I disagree. Psychstar's definition of a CMHC is that a CMHC is an entity that is providing specified services. Thus, an applicant's policies and procedures, however artfully drafted, are meaningless without actual application. Such reasoning is applicable here, and Petitioner has not demonstrated compliance.
It is Petitioner's responsibility to prove that it satisfies
participation requirements where HCFA has made a prima facie case that
it has not done so. Petitioner's failure to satisfy participation requirements
for a CMHC here compels me to sustain HCFA's determination. In order to be certified to provide partial hospitalization
services, an applicant must provide all of the services listed in section
1913(c)(1) of the PHSA. This includes an applicant's provision of 24-hour-a-day
emergency care services. The record of this case shows that Petitioner
did not provide such 24-hour-a-day emergency care services. VI. Conclusion Based on the foregoing analysis, I sustain HCFA's determination denying certification to Petitioner, Evolution Healthcare Community Mental Health Center, to participate in the Medicare program as a CMHC providing partial hospitalization services. |
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JUDGE | |
José A. Anglada Administrative Law Judge
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FOOTNOTES | |
1. HCFA states that to assure compliance with federal requirements, a prospective CMHC must have an on-site visit by its contractor, IntegriGuard. IntegriGuard's function is to gather information pertaining to whether the prospective CMHC meets participation requirements and to provide that information to HCFA. HCFA then conducts an evaluation to arrive at a determination regarding approval for certification. HCFA Br. at 5. 2. Petitioner refers here to a call received from Ms. Denise Anderson, of New Life Center, on June 8, 2000. HCFA Ex. 6, at 2; P. Ex. 2, at 2. 3. I note that on the call log, no emergency calls appear logged from March 28 to May 8, 2000. HCFA Ex. 6, at 8 - 9. That hiatus of more than a month is not credibly reflective of a facility that is routinely providing 24-hour-a-day emergency care services to its clientele. A similar hiatus appears from May 9 to June 7, 2000. Id. at 9. 4. It is noteworthy that Petitioner refers to this call as an actual emergency. Does that mean that none of the other calls recorded in the after-hours phone log are actual emergencies? 5. I note HCFA's rebuttal to Petitioner's assertion that HCFA's area code might have caused the problem, which is that HCFA's contractor was calling from a local telephone number, not a Dallas area code, when the contractor placed an after-hours call to Petitioner's telephone number on May 15, 2000 and was unable to get through. | |