SUBJECT:

Ambulatory Behavorial Healthcare Center,

Petitioner,

Centers for Medicare & Medicaid Services

DECISION

This matter came before me on the parties' cross motions and briefs in support of summary disposition. Ambulatory Behavioral Healthcare Center (Petitioner, or ABHC), and Centers for Medicare & Medicaid Services (CMS) filed their respective initial briefs simultaneously on September 21, 2001. The parties filed their briefs in opposition on November 21, 2001. On December 7, 2001, the parties filed simultaneous reply briefs. I have admitted into evidence Petitioner's six proposed exhibits, which are marked P. Exs. 1 - 6. ⁽¹⁾ CMS submitted 15 proposed exhibits with its briefs. These have been admitted into evidence as CMS Exs. 1 - 15. ⁽²⁾

I have identified my letter of April 5, 2002, addressed to Judge Alfonza Menefee at the Alabama State Probate Court, as ALJ Ex. 1. In my letter, I requested a copy of medical records pertaining to V.S., that were created or considered by ABHC staff, Dr. Kola Oyedepo, ⁽³⁾ and Mr. Harvey Vaughn ⁽⁴⁾ in connection with the screening and evaluation of V.S. in order to determine whether such screening services qualify as screening services under federal law. ALJ Ex. 1. I have identified as ALJ Exs. 2 - 11, the documents (11 pages total) I received from Judge Menefee in response to my April 5, 2002 letter. The documents comprise a May 15, 2002 affidavit signed by Judge Menefee, copies of a petition for V.S.'s involuntary commitment, and various court orders relating to those proceedings.

Initially, I had indicated to the parties that I was not going to admit Judge Menefee's May 15, 2002 affidavit (ALJ Ex. 2) into the record. See my Letter of May 31, 2002, addressed to the parties. However, in view of the argument that was submitted by Petitioner regarding an alternative way of establishing compliance with screening requirements based on use of court documents, I deem Judge Menefee's affidavit to be a document in support of that argument, and therefore, for purposes of giving consideration to Petitioner's argument, I have decided to admit it. However, as I indicate below, I find that Judge Menefee's affidavit has no probative value.

I forwarded copies of the Probate Court documents to the parties and granted them time to comment on the court documents. Each side filed supplemental briefs on June 24, 2002. Although Petitioner had previously submitted exhibits (see above) with its briefs, Petitioner extracted the documents it believed to be pertinent to the issue that still remained to be resolved, and submitted them as Tabs A - D with its supplemental brief. Tab A and Tab B refer to documents which are already contained in the record and now designated as ALJ Exs. 1 - 11, and therefore, I do not admit them into the record. Tab C and Tab D refer to two spiral-bound sets of documents. I have identified one set of bound exhibits (Affidavit of Dr. Oyedepo, with Attachments 1 and 2) as P. Ex. 10, and the other set of bound exhibits (Affidavit of Thelma Walker-Brown, with Attachments 10 - 15) as P. Ex. 11. I admit into evidence P. Exs. 10 - 11. I find that the other exhibits and attachments originally submitted by Petitioner, with the exception of P. Ex. 9, are not pertinent to the issue that I am deciding here. P. Exs. 9, 10, and 11 are the only exhibits of Petitioner I have considered as relevant to my analysis.

After considering the arguments of the parties, the documentary evidence, and the applicable law and regulations, I sustain CMS'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.

Petitioner, a mental health care facility in Tuskegee, Alabama, applied to CMS on December 17, 1999, for participation in the Medicare program as a CMHC providing partial hospitalization services. P. Ex. 11. CMS's determination that Petitioner did not meet certification requirements was communicated by letter dated June 19, 2000 (CMS Ex. 9). In response, Petitioner provided additional evidence on June 20, 2000, in an attempt to persuade CMS that it did satisfy certification requirements (CMS Ex. 10). CMS was not persuaded, and so notified Petitioner on July 10, 2000, that its initial denial was correct (CMS Ex. 11).

I. Applicable law and regulations

A. Federal law

In order to be certified as a CMHC providing partial hospitalization services in the Medicare program, an entity must meet certain statutory requirements. These are found at section 1861(ff) of the Social Security Act (Act), which require that a CMHC provide the services described in section 1913(c)(1) of the Public Health Service Act (PHSA), ⁽⁵⁾ 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 services listed in the PHSA, which include:

* * *

(B) Outpatient services, including specialized outpatient services for children, the elderly, individuals with a serious mental illness, and residents of the [CMHCs'] service areas who have been discharged from inpatient treatment at a mental health facility.

(C) 24-hour-a-day emergency care services.

(D) Day treatment or other partial hospitalization services, or psychosocial rehabilitation services.

(E) Screening for patients being considered for admission to State mental health facilities to determine the appropriateness of such admission.

42 U.S.C. � 300x-2(c)(1)(B)-(E); See 42 U.S.C. � 1395x(ff)(3)(B); See 42 C.F.R. � 410.2.

Partial hospitalization services refer to an intensive program of psychiatric services prescribed by a physician and aimed at providing active treatment to patients who would otherwise require inpatient psychiatric hospitalization. See 42 U.S.C. � 1395n(a)(2)(F); 42 C.F.R. �� 410.2, 424.24(e).

CMS published policy guidelines on July 24, 1995, which describe a CMHC's obligations under section 1913(c)(1) of the PHSA. In a document that is entitled "All States Letter 76-95" (All States Letter), CMS stated that a CMHC must provide all of the services that are listed in the PHSA, either directly or under arrangements with others. CMS Ex. 6. 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 PHSA and partial hospitalization services:

under a written arrangement, agreement or contract with other agencies, organizations, or individuals who are not CMHC employees, and for which the CMHC maintains overall management responsibility. The written agreement includes at least the identification of the services to be provided and the manner in which the contracted services are coordinated, supervised, and evaluated by the CMHC . . . .

CMS Ex. 6, at 3.

B. Alabama State law

Alabama law defines a "State mental health facility" as an entity operated by the Alabama State Department of Mental Health and Mental Retardation. A "designated mental health facility" is defined as an entity other than a State mental health facility designated by the State Department of Mental Health and Mental Retardation to receive persons for evaluation, examination, admission, detention or treatment. Ala. Code � 22-52-1.1 (1975). See also Ala. Code �� 22-52-90 and 22-52-12.1 (1975).

II. Issues

A. Whether CMS's interpretation of the applicable statutory and regulatory language to require that a prospective CMHC demonstrate that it is actually providing (as opposed to merely having the capacity to provide) all of the services described in section 1913(c)(1) of the PHSA is reasonable.

B. Whether CMS correctly determined that Petitioner's written agreement with East Central Mental Health/Mental Retardation Board, Inc. (ECMH) does not meet applicable federal criteria for the provision of services "under arrangements" with another organization or entity.

C. Whether CMS correctly determined that Petitioner was not actually providing specialized outpatient services for the elderly, as described in section 1913(c)(1) of the PHSA, either directly through its own employees or "under arrangements" with another organization or entity.

D. Whether CMS correctly determined that Petitioner was not actually providing specialized outpatient services for individuals discharged from inpatient treatment at a mental health facility, as described in section 1913(c)(1) of the PHSA, either directly through its own employees or "under arrangements" with another organization or entity.

E. Whether CMS correctly determined that Petitioner was not actually providing screening for patients being considered for admission to State mental health facilities to determine the appropriateness of such admission, as described in section 1913(c)(1) of the PHSA, either directly through its own employees or "under arrangements" with another organization or entity.

F. Whether I have jurisdiction to entertain issues regarding CMS's amended notice dated February 12, 2001.

III. Findings and Discussion

The findings of fact and conclusions of law noted below in boldface are followed by a discussion of each finding:

A. A prospective CMHC must demonstrate that it is actually providing (as opposed to having the capacity to provide) all of the services described in � 1913(c)(1) of the PHSA.

The Act defines a CMHC as an entity that is providing the services described in section 1913(c)(1) of the PHSA. Thus, to be approved as a CMHC, an entity must be providing all of the services listed in the PHSA. The term "providing" has been understood to mean actually rendering the services as opposed to merely being capable of providing the services stated in the statute. New Life Plus Center, CMHC, DAB CR700 (2000), at 10; Evolution Healthcare Community Mental Health Center, DAB CR778 (2001), at 8.

B. CMS correctly determined that Petitioner's written agreement with ECMH does not meet applicable federal criteria for the provision of services "under arrangements" with another entity.

On December 8, 1999, Petitioner entered into a cooperative agreement with ECMH. CMS Ex. 14, at 28; P. Ex. 11, Att. 10. The pertinent portion of that agreement provides that:

• [ECMH] will provide evaluation and screening for any client that requires admission to State psychiatric facilities . . . .



• Any of the clients [referred], who wants to continue services with ABHC, Inc., will be referred back to ABHC, Inc. for outpatient.

Id.

The terms of this agreement denote an absence of compliance with federal participation criteria. An arrangement between a CMHC and another entity has to provide that the CMHC retains overall supervision over the screening process. The mere fact of referring a patient for screening fails to satisfy the requirement. It is imperative for the CMHC to directly supervise the basic screening functions of the other entity. See Life Directions Mental Health PHP, Inc., DAB CR750 (2001).

As stated above, in the All States Letter, CMS specified that the written agreement should include, at least, the identification of the services to be provided and the manner in which the contracted services are coordinated, supervised, and evaluated by the CMHC. CMS Ex. 6, at 3. It is evident that Petitioner did not demonstrate that it met the applicable federal criteria for the provision of services "under arrangements" with another entity on or before the reconsidered denial of July 10, 2000.

C. CMS concedes, that upon further review of Petitioner's submissions, it is satisfied that the entity was providing outpatient services for elderly individuals. CMS Reply Brief, at 2, n.1.

D. CMS concedes that Petitioner was actually providing specialized outpatient services for individuals discharged from inpatient treatment at a mental health facility. CMS Response Brief, at 1, n.1.

E. CMS correctly determined that Petitioner was not actually providing screening for patients being considered for admission to State mental health facilities to determine the appropriateness of such admission, as described in Section 1913(c)(1) of the PHSA, either directly through its own employees or "under arrangements" with another entity or organization.

In order to qualify as a CMHC providing partial hospitalization services in the Medicare program, a facility must perform screening for patients being considered for admission to State mental health facilities to determine the appropriateness of such admission. The screening may be provided directly or under arrangements with another entity.

I have already concluded that the statute requires that a CMHC that seeks certification must be actually providing screening services, as opposed to merely being capable of providing such services. I have also found that Petitioner's written agreement with ECMH does not satisfy the federal requirements for the provision of services "under arrangements" with another entity.

Petitioner contends that it met the certification requirements on May 4, 2000, at the time of the on-site inspection, because Kola Oyedepo, Ph.D., had screened V.S. on October 6, 1999, when she was being considered for involuntary admission to a State mental health facility. P.'s Supplemental Brief (P. Supp. Br.) at 2, 5.

Petitioner argues that, pursuant to the Medicare Outpatient Manual � 260.2(A)(4), ⁽⁶⁾ it satisfies the Medicare program's definition of "screening" and the program's documentation standard for "screening" services. Evidence of screening may consist of either of the following:

(i) State/Court-required screening evaluation documents; or

(ii) a screening assessment that includes a clinical decision regarding the appropriate level of care needed by the patient and any follow-up placement. P. Supp. Br. at 8.

Specifically, Petitioner relies on Dr. Oyedepo's letter of October 6, 1999, in support of its claim that it satisfies both of the Medicare Outpatient Manual standards for screening services mentioned above. See ALJ Ex. 11. That letter, states Petitioner, is evidence of the screening evaluation that the court required and maintained in the court record as well as being proper documentation in support of the clinical decision that involuntary commitment of the patient was inappropriate, and that ABHC could provide follow-up outpatient treatment and case management services after stabilization was achieved.

P. Supp. Br. at 8 - 9.

Petitioner asserts that as a result of Dr. Oyedepo's clinical findings from the screening evaluation of October 6, 1999, Judge Menefee did not involuntarily commit V.S. to a State mental hospital. According to Petitioner, the judge adopted Dr. Oyedepo's recommendation that the patient be stabilized at Bullock County Hospital and then be released to ABHC for outpatient care. P. Supp. Br. at 6.

I note, however, that Dr. Oyedepo's letter of October 6, 1999, does not contain a mental status examination that includes the patient's history of illness, signs, symptoms, and clinical findings. ALJ Ex. 11. The letter speaks of "an extensive interview and screening exercise," yet no documentation is offered to attest to such assessment. Additionally, Dr. Oyedepo fails to indicate where or when the screening evaluation was conducted. Presumably, the evaluation took place at a time when the patient was admitted to Bullock County Hospital. However, Bullock County Hospital records do not reference such an evaluation by Dr. Oyedepo. See P. Ex. 10, Att. 2, at 42. While Petitioner claims that Judge Menefee did not order the involuntary commitment of the patient to a State mental hospital as a result of the screening conducted by Dr. Oyedepo, a Bullock County Hospital evaluation report indicates that long term hospitalization (in a State mental hospital) would be considered only if the patient was unresponsive to their interventions. P. Ex. 10, Att. 2, at 40. On October 10, 1999, the patient was in fact discharged to her home to be with her family in light of the remission of some of her symptoms. P. Ex. 10, Att. 2, at 42. Consequently, what prevented the involuntary admission to a State hospital was the patient's responsiveness to the treatment received at Bullock, consistent with the initial treatment plan adopted by that facility on September 28, 1999. P. Ex. 10, Att. 2, at 40. The fact that the patient was not admitted to a State mental hospital had nothing to do with Dr. Oyedepo's alleged screening. Moreover, V.S. was discharged to her home, with instructions to schedule a follow-up appointment at ECMH. ⁽⁷⁾ Those instructions are inconsistent with Dr. Oyedepo's statement in his October 6, 1999 letter that upon discharge, ABHC would assume psychiatric care of V.S. ALJ Ex. 11. Furthermore, Petitioner's assertion that "[t]he fact that Dr. Oyedepo's clinical evaluation resulted in a recommendation against involuntary commitment of [V.S.] has no bearing on whether the evaluation qualifies as a screening under the Medicare program," is based on an assumption not supported by the record. P. Supp. Br. at 8. Nothing in the record nor in Dr. Oyedepo's letter of October 6, 1999, reflects a recommendation that involuntary commitment was inappropriate in light of ABHC's mental assessment of the patient. The letter only states the obvious, and that is that if the patient were "fully stabilized" at Bullock County Hospital, she could be maintained on an outpatient basis at ABHC. ALJ Ex. 11 (emphasis added). Of course, if Bullock County Hospital had been unsuccessful in stabilizing the patient, she would have been involuntarily committed to a State mental hospital. ⁽⁸⁾

In conclusion, I find no evidence that ABHC contributed in any way to the disposition of V.S. as a result of the type of screening contemplated in the Medicare law and regulations.

Petitioner also claims that it met the required criteria because there is evidence of screening from the court-required screening documents. For authority, Petitioner relies on Medicare Outpatient Manual � 260.2(A)(4). However, that Manual reference is intended as guidance only, and is not binding on me. Nonetheless, it is my finding that an analysis of the court-related documents attest to no evidence of screening performed by Petitioner. The court-generated documents that relate to the Petition for Involuntary Commitment and the involuntary commitment proceedings found at ALJ Exs. 2 - 11, make no mention of a screening conducted by Petitioner. As I have stated above, the May 15, 2002 Affidavit of Judge Menefee (ALJ Ex. 2), is not deserving of any probative value. Additionally, as I have already stated above, there is no merit to the claim that the alleged screening conducted by Dr. Oyedepo "enabled [V.S.] to stabilize." ALJ Ex. 2; See P. Supp. Br. at 6 - 7. Stabilization occurred through the medical intervention of Bullock County Hospital staff. It was that intervention that allowed V.S. to remain in the community, and not anything that ABHC did on her behalf.

In order to provide Petitioner the fullest opportunity to demonstrate that it had actually conducted a screening of V.S. in the involuntary commitment proceedings under discussion, I requested from Judge Menefee, a copy of the medical records that were created by ABHC staff, Dr. Oyedepo, and Mr. Vaughn, and any other medical records created or considered by them in connection with the screening and evaluation of V.S. in order to determine whether such screening services qualify as screening services under federal law. ALJ Ex. 1. My request produced the documents contained in ALJ Exs. 2 - 11. It is evident that those records do not attest to a screening of V.S. to determine the appropriateness of her commitment to a State mental hospital. Furthermore, I cannot glean from the court record, the existence of any evidence that there has been completion "of required forms, court documents or any other required documentation in response to the screening request," as set out in the Medicare Operations Manual � 260.2(A)(4). ⁽⁹⁾

F. I do not have jurisdiction to consider Petitioner's claim regarding CMS's amended notice of February 12, 2001.

As previously stated, by letter dated June 19, 2000, CMS advised Petitioner of its initial determination denying Petitioner's request to participate in the Medicare program as a CMHC providing partial hospitalization services. Petitioner requested reconsideration of CMS's initial determination on June 20, 2000. By letter dated July 10, 2000, CMS advised Petitioner that it had reviewed Petitioner's reconsideration request, and determined that its initial denial of Petitioner's application was correct. Petitioner requested a hearing by letter dated August 25, 2000. By letter dated May 3, 2001, I gave Petitioner an opportunity to amend its hearing request in accordance with the requirements of 42 C.F.R. � 498.40(b). Petitioner filed an Amendment to Hearing Request, dated May 24, 2001. Petitioner attached two documents, which it labeled as "P. Ex. 1" and "P. Ex. 2," to its submission. I find that these documents are not relevant to the issue I am deciding here, and therefore, I do not admit them into the record.

Petitioner, in its Amendment to Hearing Request, states that the effective date of its enrollment with CMS as a CMHC should be no later than June 19, 2000, and possibly weeks earlier. However, this statement is no more than an offhanded reference to its desire to obtain an earlier effective date. Subsequently, in its response brief, Petitioner elaborates on its arguments as to whether it has a right to a hearing on CMS's amended notice of February 12, 2001.

During the pendency of the appeal of the application that was denied on July 10, 2000, which is now before me, Petitioner filed a new application in January 2001. The new application was approved with an effective date of February 9, 2001. In error, however, CMS sent a notice stating that the effective date was "February 9, 2000." P. Ex. 9, Att. 7, at 1. An "Amended Notice" of February 12, 2001, corrected the error and gave the applicant 60 days to file a request for reconsideration of CMS's determination. CMS Ex. 13; P. Ex. 9, Att. 8. Petitioner did not request a hearing regarding the award of a participation certificate effective February 9, 2001. In the case before me now, Petitioner expresses confusion as to whether the amended notice of February 12, 2001, is an "initial" determination or a determination amending the July 10, 2000 reconsidered determination. Petitioner's Memorandum in Opposition to CMS's Motion for Summary Disposition (P. Resp. Br.) at 5. There should be no room for confusion because the February 12, 2001 amended notice clearly states at the bottom of the page that it "[r]eplaces letter dated February 9, 2001 to correct effective date." CMS Ex. 13; P. Ex. 9, Att. 8. Petitioner goes on to argue that if the February 12, 2001 amended notice is an "initial" determination, that I should consider that it timely filed a request for hearing to contest that determination. P. Resp. Br. at 6.

I find that CMS's amended notice of February 12, 2001, is an initial determination, with respect to which Petitioner has not filed a request for hearing to challenge this initial determination. Therefore, I lack jurisdiction to consider the issue of whether Petitioner was deserving of an earlier effective date of participation in the Medicare program as a CMHC providing partial hospitalization services. I am also without jurisdiction to adjudicate in this case, Petitioner's claims regarding "good cause for late filing," "reopening," or "preservation of its appeal rights" with respect to CMS's determination of February 2001.

IV. Conclusion

Based on the foregoing analysis, I sustain CMS's July 10, 2000 reconsidered determination denying certification to Petitioner, ABHC, to participate in the Medicare program as a CMHC providing partial hospitalization services.

Jose A. Anglada

Administrative Law Judge

1. Petitioner submitted six exhibits and three affidavits with attachments. I have re-labeled Petitioner's affidavit number 1 as P. Ex. 7; Petitioner's affidavit number 2 as P. Ex. 8; and Petitioner's affidavit number 3 as P. Ex. 9, to conform to Civil Remedies Division Procedures. P. Ex. 7 contains 16 attachments (numbered 1 - 16); P. Ex. 8 contains 2 attachments (numbered 1 - 2); and P. Ex. 9 contains 10 attachments (numbered 1 - 10). The attachments have multiple pages. By re-labeling Petitioner's affidavits, I do not fully correct the improper and confusing manner in which it marked its exhibits, because correction would be too onerous at this juncture. I admit into evidence P. Exs. 7 - 9.

2. CMS filed a motion with its response brief requesting permission to substitute a complete copy of CMS Ex. 14 for the original CMS Ex. 14 it had previously filed with its initial brief. CMS indicated that Petitioner did not oppose the motion. Accordingly, I have granted CMS's motion.

3. Clinical Coordinator of ABHC.

4. Member of ABHC staff.

5. Section 1916 of the PHSA has been recodified as section 1913(c)(1) of the PHSA.

6. Medicare Outpatient Manual � 260.2(A)(4) provides that "[w]here there are State requirements for completion of required forms, court documents or any other required documentation in response to the screening request, these documents would be evidence of providing the service. Otherwise, evidence in the screening assessment must include a clinical decision regarding the appropriate level of care needed by the patient and follow-up placement."

7. ECMH is the facility with which Petitioner allegedly entered into a cooperative agreement on December 8, 1999, two months after the alleged screening in question occurred. CMS Ex. 14, at 28; P. Ex. 11, Att. 10.

8. I note that the documents that Petitioner refers to as progress notes that contain the alleged conversation of October 5, 1999, between ABHC and Bullock, are questionable in two respects. P. Ex. 10, Att. 2, at 43 - 46. At the outset, I find that no progress notes could exist for V.S. at ABHC on October 5, 1999, because at that time she was admitted at another institution. Secondly, the documents cited by Petitioner mention dates that appear to refer to events that may actually have occurred in the year 2000 inasmuch as I detect that nines were written over zeroes, except for the "10-18-00" date on one of the progress notes, which was apparently overlooked. Id.

9. I note with interest that it was not until July 2000, that ABHC entered into an agreement with Judge Menefee to provide Macon County Probate Court of Alabama with screening services and assist in the involuntary commitment process. P. Ex. 11, Att. 11.