New York State Department of Social Services, DAB No. 1313 (1992)

Department of Health and Human Services

DEPARTMENTAL APPEALS BOARD

Appellate Division

SUBJECT:        New York State Department  of Social Services

DATE:  March 17, 1992
Docket No. 91-48
Decision No. 1313

DECISION

The New York State Department of Social Services (State) appealed a
determination by the Health Care Financing Administration (HCFA)
disallowing $17,762,539 in federal financial participation (FFP) claimed
under Title XIX of the Social Security Act (Act).  New York claimed
these funds for inpatient services furnished from October 1, 1986
through September 30, 1989 by New York Hospital-Cornell Medical Center
in White Plains, New York and by St. Vincent's Hospital and Medical
Center in Harrison, New York.  HCFA found that the hospitals were
"institutions for mental diseases" (IMDs) and, therefore, that FFP was
not available under the Act for services provided by the hospitals to
individuals between the ages of 22 and 65.

Although each facility was certified as a "psychiatric hospital" by HCFA
and the State acknowledged that psychiatric hospitals are IMDs, the
State argued that in fact these facilities were psychiatric units of
general acute care hospitals located in New York City and therefore were
not free-standing IMDs.  The State contended that each facility was
licensed by the State as a psychiatric unit of a general acute care
hospital, and that the requirements of HCFA's State Operations Manual
for certification of multiple components as a single hospital were met.

We conclude that this disallowance should be upheld in full.  Based on
the record, we find that the administrators of the facilities, as well
as the State, consistently treated the facilities (both before and
during the disallowance period) as free-standing psychiatric hospitals.
This treatment has great weight in determining the overall character of
the facilities, but, in any event, the State did not establish that this
treatment is inconsistent either with the State licensure or with the
State Operations Manual.  Thus, HCFA correctly concluded that the
facilities were IMDs.

Below, we discuss the legal and factual background of the case and then
analyze the State's arguments.

Legal Background

A.      Exclusion of Medicaid reimbursement for services provided in an
IMD

Title XIX of the Act establishes a cooperative federal-state program
known as "Medicaid" to enable states to furnish "medical assistance" to
eligible individuals.  Section 1901 of the Act.  The definition of
"medical assistance" codified at section 1905(a) specifically excludes
payments for services to "any individual who has not attained 65 years
of age and who is a patient in an institution for mental diseases."
Language following section 1905(a)(24)(B).  Moreover, inpatient hospital
services are covered by Medicaid only if not provided in an IMD.
Section 1905(a)(1).  The IMD exclusion reflects Congress' conclusion
that the federal government ought not to assume responsibility through
the Medicaid program for the long-term care of institutionalized
patients, who have traditionally been wards of the states.  S. Rep. No.
404, 89th Cong., 1st Sess., pt. 1, at 144-47 (1965).  However, sections
1905(a)(14) and 1905(a)(16) provide for exceptions to the exclusion.  If
states meet certain conditions, they may cover IMD services for
individuals 65 years of age or over and inpatient psychiatric hospital
services for individuals under age 21. 1/  Therefore, a State is not
entitled to FFP in inpatient hospital services provided in an IMD to
Medicaid patients between the ages of 22 and 65.  New York regulations
reflect the IMD exclusion.  N.Y. Comp. Codes R. & Regs. tit. 14, .
505.4(d)(2).

Throughout the disallowance period, HCFA regulations implementing the
IMD exclusion have defined an IMD as an institution whose "overall
character [is] that of a facility established and maintained primarily
for the care and treatment of individuals with mental diseases, whether
or not it is licensed as such."  42 C.F.R. . 435.1009 (emphasis added).
2/  In 1988, a parallel definition was added to the Act.  Section
1905(i) defines "institution for mental disease" as "a hospital, nursing
facility, or other institution of more than 16 beds, that is primarily
engaged in providing diagnosis, treatment, or care of persons with
mental diseases . . . ."  Additionally, HCFA has issued guidelines to
states for determining whether a facility is an IMD, most recently in
the State Medicaid Manual, section 4390, issued in September 1986.

In Connecticut Dept. of Income Maintenance v. Heckler, 471 U.S. 524
(1985), the Supreme Court addressed the question of what type of
facility can be considered an IMD.  In that case, Connecticut argued
that an IMD was limited to traditional state "mental hospitals."
However, the Court upheld the Secretary's broad definition of IMD under
which a private facility such as an intermediate care facility may be an
IMD.  Id. at 529-30.  In discussing section 1905(a)(1) of the Act, the
Court specifically noted that a hospital may be an IMD.  Id. at 529,
536.

B.      Certification of facilities to participate in Medicaid

To qualify for reimbursement under Medicaid, a provider of services must
be inspected by the proper state survey agency.  In the case of
hospitals, the state survey agency must be the agency responsible for
licensing such institutions under state law.  Section 1902(a)(33)(B) of
the Act.  Generally the same survey agency performs the surveys for both
Medicare and Medicaid.  Section 1902(a)(9)(A) of the Act; 42 C.F.R. .
431.610(e).  If the facility is found to meet the standard for its class
of providers, the survey agency certifies this to the single state
agency (responsible for administering the Medicaid program).  If the
facility will participate only in Medicaid, the single state agency may
then enter into a Medicaid provider agreement with the certified
facility without seeking approval from HCFA.  In contrast, if a facility
is seeking certification for Medicare purposes, the survey agency's
certification is forwarded to HCFA as a recommendation which HCFA must
review and approve before the facility may be reimbursed under either
Medicare or Medicaid.

To be certified as Medicaid providers, hospitals must meet the standards
for Medicare participation.  The Medicare regulations contain separate
certification requirements for hospitals and psychiatric hospitals.  To
be certified as a psychiatric hospital, a facility must meet enhanced
treatment and recordkeeping standards.  42 C.F.R. .. 482.60-482.62.
Additionally, a facility certified as a psychiatric hospital is
reimbursed at a per diem rate calculated based on the facility's
reasonable costs, whereas a general hospital is usually reimbursed
prospectively on a per-case basis.  42 C.F.R. .. 412.23, .25. 3/

HCFA's State Operations Manual establishes the following criteria for
certifying multiple components of a hospital as a single hospital:

 A.      Ownership.--All components included are subject to the
 control and direction of one common owner . . . responsible for
 the operational decisions of the entire hospital enterprise.

 B.      Chief Medical Officer.--There is a single Chief Medical
 Officer who reports directly to the governing body and who is
 responsible for all medical staff activities of all components.

 C.      Totally Integrated Medical Staff.--. . .All medical
 staff members have privileges at all components. . . . All
 medical staff committees are responsible for their respective
 areas of responsibility in all components of the hospital. . . .

 D.      Chief Executive Officer.--There is a single Chief
 Executive Officer through whom all administrative authority
 flows and who exercises control and surveillance over all
 administrative activities of all components. . . .

State Operations Manual, section 2024.

C.  Licensing of psychiatric facilities by New York State

New York licenses hospitals pursuant to Article 28 of its Public Health
Law.  The statute excludes from the definition of hospital--

 an institution, sanitarium or other facility engaged principally
 in providing services for the prevention, diagnosis or treatment
 of mental disability and which is subject to the powers of
 visitation, examination and investigation of the department of
 mental hygiene except for those distinct parts of such a
 facility which provide hospital service.

N.Y. Pub. Health Law . 2801 (McKinney 1985).  Section 2805 of the Public
Health Law provides that no hospital shall be operated unless it
possesses a valid operating certificate issued by the New York State
Department of Health.

Article 31 of the New York Mental Hygiene Law governs the operation of
facilities for the care and treatment of persons with mental
disabilities.  The New York State Office of Mental Health issues
operating certificates to such facilities.  N.Y. Mental Hyg. Law . 31.02
(McKinney 1988); see also State Brief at 11.  Section 31.02 provides, in
pertinent part:

 . . . no provider of services shall engage in any of the
 following activities without an operating certificate issued by
 the commissioner pursuant to this article:

 1.  operation of a residential facility or institution,
 including a community residence, for the care, custody, or
 treatment of the mentally disabled; . . . .

 2.  operation of any part of a general hospital for the purpose
 of providing residential or non-residential services for the
 mentally disabled.

Factual Background

In this section, we provide background necessary to understanding the
history of the facilities at issue here (located in Westchester County)
and their relationships with general hospitals located in New York City.
The State argued that the Westchester facilities were psychiatric units
of the New York hospitals.

A.  The St. Vincent's Hospitals

In 1961, St. Vincent's Hospital of Westchester County, was consolidated
with and into the St. Vincent's Hospital of the City of New York.  State
Exhibit (Ex.) 4.  Later, the entity's name was changed to St. Vincent's
Hospital and Medical Center of New York (St. Vincent's).  Id.  The
Westchester County facility continued in existence as St. Vincent's
Hospital and Medical Center of New York, Westchester Branch.  According
to an affidavit signed by J. Rock Tonkel, President and Chief Executive
Officer of St. Vincent's, the New York City and Westchester branches of
St. Vincent's operate under common ownership, with a single Chief
Medical Officer, a single Chief Executive Officer, and an integrated
medical staff.  Id.  There is a single Board of Trustees, which is
responsible for the general management of the property and affairs of
both branches.  Id.

By application dated February 14, 1966, St. Vincent's Hospital and
Medical Center of New York, Westchester Branch, located in Harrison, New
York (St. Vincent's-Westchester), requested to be certified as eligible
to participate in the Medicare program.  HCFA Ex. 3.  Item VII of the
application form requests the "Type of Hospital."  In item VII, a
typewritten X next to the description "General-Short Term" appears to
have been stricken out; a handwritten X is marked next to the
description "Psychiatric."  The application indicates that the hospital
is licensed by the New York State Department of Mental Hygiene.  The
hospital requests certification for 200 beds.  The application was
signed by the hospital's administrator, Sister Regina Helen.  Id.  The
state survey agency 4/ recommended that St. Vincent's-Westchester be
certified as a psychiatric hospital and HCFA's predecessor agency, the
Bureau of Health Insurance, approved certification on June 22, 1966.
HCFA Ex. 4.  The hospital executed a provider agreement on June 21, 1966
and was assigned provider number 33-4007.  HCFA Exs. 4, 5.

After 1966, and throughout the disallowance period, St.
Vincent's-Westchester continued to describe itself as a psychiatric
hospital when it completed the forms requesting continued certification
in the Medicare and Medicaid programs.  HCFA Exs. 6, 9.  The state
survey agency continued to recommend recertification and HCFA approved
the hospital's recertification.  These recertifications were for 103
beds, rather than the original 200.  HCFA Exs. 7, 10.  The hospital was
surveyed for compliance with the two special conditions of participation
for psychiatric hospitals.  HCFA Ex. 8; State Ex. 1, App. at 15.

Meanwhile, St. Vincent's Hospital and Medical Center of New York in New
York City (St. Vincent's-NYC) first applied to be certified as a
Medicare provider on February 18, 1966.  In its application, St.
Vincent's-NYC responded to item VII, "Type of Hospital" by marking
"General-Short Term."  The application states that the hospital is
licensed by the New York State Department of Health.  The hospital
requested to be certified for 780 beds.  The application also identified
an additional 200 beds at the Westchester Branch, with a parenthetical
note "filing separately."  The application was signed by Sister Anthony
Marie, who is identified as the hospital's administrator.  HCFA Ex. 12.
The state survey agency recommended that St. Vincent's-NYC be certified
as a general hospital.  HCFA Ex. 13.  The Bureau of Health Insurance
approved certification on June 25, 1966.  Id.  The hospital executed a
provider agreement on May 26, 1966 and was assigned provider number
33-0290.  HCFA Exs. 13, 14.  Thereafter and throughout the disallowance
period, the hospital periodically requested, the state survey agency
recommended, and HCFA approved recertification of St. Vincent's-NYC as a
general acute care hospital.  HCFA Exs. 15, 16.

In a request for certification dated March 4, 1991, St. Vincent's
requested that the New York City and Westchester facilities be certified
to participate in the Medicare program as a single provider.  HCFA Ex.
17.  HCFA approved the request by letter dated June 24, 1991.  HCFA Ex.
18.  At the time of approval, HCFA also retired the separate provider
number of St. Vincent's-Westchester.  Id.  By letter dated September 4,
1991, Mr. Tonkel, St. Vincent's President, requested that the
certification of the facilities as a single provider commence as of
January 1, 1992.  HCFA Ex. 19.  In a letter dated October 1, 1991, HCFA
replied that the separate provider number for St. Vincent's-Westchester
would be reinstated, and that St. Vincent's would have to reapply at the
time it wished to become certified as a single provider.  HCFA Ex. 20.

Throughout the disallowance period and currently, the New York State
Department of Health issued separate licenses and operating certificates
to St. Vincent's-Westchester and to St. Vincent's-NYC.  State Exs. 4, 6,
7.  The licenses for both facilities were issued pursuant to Article 28
of the Public Health Law.  State Ex. 4.  The New York State Office of
Mental Health also separately licensed St. Vincent's-Westchester and the
psychiatric beds at St. Vincent's-NYC.  State Exs. 4, 6.  The Office of
Mental Health licenses were issued pursuant to Article 31 of the Mental
Hygiene Law.  State Ex. 6.  Prior to 1987, the Joint Commission on
Accreditation of Health Care Organizations (JCAHO) separately surveyed
and accredited St. Vincent's-Westchester and St. Vincent's-NYC.  State
Ex. 1 at 8.  Since 1987, JCAHO has jointly surveyed the facilities.
State Ex. 4.

In addition to having separate licenses, operating certificates, and,
for a portion of the disallowance period, separate accreditation, the
facilities also have separate provider numbers for use in the State's
Medicaid Management Information System (MMIS).  State Ex. 7.  Moreover,
St. Vincent's-Westchester and the psychiatric unit at St. Vincent's-NYC
submit separate cost reports to the Medicare and Medicaid programs and
are reimbursed using different per diem rates.  Id.

B.      The New York Hospital-Cornell Medical Center Facilities

The New York Hospital-Cornell Medical Center (New York Hospital)
consists of several components, including general hospital facilities, a
burn center, and the Payne Whitney Clinic, all of which are located in
New York City, and a psychiatric hospital facility located in
Westchester County.  See HCFA Ex. 35.  In an affidavit, George A.
Vecchione, Executive Vice President, Director, and Chief Operating
Officer of the New York Hospital, states that the hospital's New York
City and Westchester Divisions operate as a single, integrated medical
center.  State Ex. 3.  According to Mr. Vecchione, the Westchester
facility has always been part of New York Hospital.  Id. He also states
that the various divisions have a common owner, a single Chief Executive
Officer, a single Medical Director, and an integrated medical staff.
Id.

The New York Hospital-Cornell Medical Center, Westchester Division,
located in White Plains (New York Hospital-Westchester), requested to be
certified as a Medicare provider by application dated March 17, 1966.
HCFA Ex. 21.  In that application, the hospital indicated that it was
licensed by the Department of Mental Hygiene and identified itself as a
psychiatric hospital.  The application requested certification for 350
beds.  The application was signed by Francis J. Hamilton, M.D., who was
identified as the hospital's medical director.  The state survey agency
recommended that the facility be certified as a psychiatric hospital.
HCFA Ex. 22.  The Bureau of Health Insurance approved certification on
July 11, 1966.  Id.  The hospital executed a provider agreement on June
20, 1966 and was assigned provider number 33-4006.  HCFA Exs. 22, 23.

Periodically thereafter, and throughout the disallowance period, the
hospital requested, the state survey agency recommended, and HCFA
approved recertification of New York Hospital-Westchester as a
psychiatric hospital.  HCFA Exs. 24-27.  The hospital was surveyed for
compliance with the two special conditions of participation for
psychiatric hospitals.  State Ex. 1, App. at 15.

The New York Hospital-Cornell Medical Center, located in New York City
(New York Hospital-NYC), requested certification as a Medicare provider
by application dated February 22, 1966.  HCFA Ex. 36.  The application
stated that the hospital was licensed by the Department of Health and
indicates that it was a general short-term hospital.  The application
requested certification for 886 beds.  The application was signed by
Henry N. Pratt, M.D., who was identified as the hospital's director.
Id.  The state survey agency recommended certification of the New York
Hospital as a general hospital.  HCFA Ex. 37.  The Bureau of Health
Insurance approved certification on May 27, 1966.  The hospital executed
a provider agreement on May 25, 1966 and was assigned provider number
33-0101.  HCFA Exs. 37, 38.  Apparently, from 1966 until 1990, the
hospital periodically requested, the state survey agency recommended,
and HCFA approved recertification as a general hospital.

By application dated June 1, 1990, New York Hospital requested that all
of its components be certified to participate in the Medicare program as
a single provider.  HCFA Ex. 34.  By letter dated February 5, 1991, HCFA
approved the request, effective January 1, 1991.  HCFA Ex. 35.
Accordingly, HCFA retired the separate provider numbers of New York
Hospital-Westchester and the Payne Whitney Clinic and directed the
hospital to use provider number 33-0101 for the 1462 beds located in all
of the hospital's components.  Id.

As is true of the St. Vincent's facilities, the New York State
Department of Health and the Office of Mental Health issued separate
Article 28 and Article 31 licenses and operating certificates to New
York Hospital-Westchester and to New York Hospital-NYC.  State Exs. 3,
6, 7.  During the disallowance period, JCAHO surveyed New York
Hospital-Westchester and New York Hospital-NYC on different dates and
accredited the facilities for different periods.  State Ex. 1 at 8.

Additionally, the New York Hospital facilities, like the St. Vincent's
facilities, have separate MMIS provider numbers.  State Ex. 7.  New York
Hospital-Westchester and the psychiatric unit at New York Hospital-NYC
submit separate cost reports to the Medicare and Medicaid programs and
are reimbursed using different per diem rates.  Id.

Analysis

The State conceded that if St. Vincent's-Westchester and New York
Hospital-Westchester are considered to be free-standing psychiatric
hospitals, they would be IMDs subject to the Medicaid exclusion for
patients between the ages of 22 and 65.  However, the State argued that
the Westchester County facilities are not free-standing psychiatric
hospitals, but instead are psychiatric units of their general acute care
hospital affiliates in New York City.  The State argued that treating
the Westchester facilities as psychiatric units of general acute care
hospitals is consistent with HCFA guidelines published in the State
Operations Manual and with the State licensure status of the facilities.
The State further argued that HCFA's focus on the separate certification
of the Westchester facilities to participate in Medicare and Medicaid as
psychiatric hospitals relies on form rather than substance.

For the reasons explained below, we conclude that, during the
disallowance period, each of the Westchester facilities was a
psychiatric hospital and, therefore, an IMD.  We accord great weight to
the State's contemporaneous certification of the Westchester facilities
as free-standing psychiatric hospitals.  That certification is
consistent with a substantial number of factors indicating that the
Westchester facilities were operated as psychiatric hospitals distinct
from the New York City hospitals.  Recognizing their status as IMDs
therefore accords with substance and not mere form.  Moreover, even if
the Westchester facilities could have been certified as psychiatric
units of the New York City hospitals during the disallowance period,
this was not required.  The State was in the best position to determine
the appropriate classification of the facilities and did not question
their status as separate psychiatric hospitals.  The State licenses are
not inconsistent with that status.  In any event, the Act and the
federal regulations make clear that facilities may be IMDs regardless of
their state licensure status.

A.  The State recommended that the Westchester facilities be certified
as psychiatric hospitals.

According to the Medicare conditions of participation, a psychiatric
hospital must be "primarily engaged in providing, by or under the
supervision of a doctor of medicine or osteopathy, psychiatric services
for the diagnosis and treatment of mentally ill persons."  42 C.F.R. .
482.60 (emphasis added).  An entity which satisfies the conditions of
participation for psychiatric hospitals would be an IMD because, by
definition, its "overall character [would be] that of a facility
established and maintained primarily for the care and treatment of
individuals with mental diseases."  42 C.F.R. . 435.1009.  The State
admitted that the Westchester facilities provide only psychiatric
services and that, considered separately from the related New York City
institutions, the facilities would be IMDs.

If the Westchester facilities were indeed psychiatric units of the New
York City institutions, however, the overall character of the combined
entities would not be that of IMDs.  For example, the combined New York
Hospital group is now certified for 1462 beds, of which 108 in New York
City and 322 in Westchester are psychiatric beds.  HCFA Ex. 35; HCFA
Brief at 22.  Similarly, if at some time in the future St. Vincent's-NYC
and St. Vincent's-Westchester become certified as a single provider, the
combined facility could be certified for a total of 891 beds, with 100
psychiatric beds in New York City and 103 psychiatric beds in
Westchester.  HCFA Brief at 22.

The State asserted that the Westchester facilities are, and have been at
all relevant times, psychiatric units of the New York City hospitals.
The State pointed to section 2024 of the State Operations Manual and
argued that the separate Westchester and New York City facilities of St.
Vincent's and New York Hospital satisfy the criteria enumerated for
certification as single hospitals.  That is, according to the State, St.
Vincent's-Westchester and St. Vincent's-NYC are controlled by a common
owner, are directed by a single Chief Medical Officer and a single Chief
Executive Officer, and are served by an integrated medical staff.  The
State argued that New York Hospital-Westchester and New York
Hospital-NYC share the same attributes.

In support of its position, the State offered the affidavits of George
Vecchione, the Chief Operating Officer of The New York Hospital-Cornell
Medical Center, and J. Rock Tonkel, the Chief Executive Officer of St.
Vincent's Hospital and Medical Center.  Both affidavits attest that,
throughout the disallowance period, the hospitals met the criteria
enumerated in section 2024 of the State Operations Manual.  State Exs.
3, 4.  However, the State did not produce any documentation from the
disallowance period, such as organizational charts or position
descriptions, that would corroborate the statements made in the
affidavits.  We note that the affidavits were plainly prepared
specifically to address the issues in this litigation and therefore must
be viewed cautiously because of their self-serving character.

However, even if the State Operations Manual criteria were in fact met
throughout the disallowance period, this would not mean that each
Westchester facility was required to be treated as part of a larger
institution, rather than as a separate hospital sharing some
administration and staff with another, commonly owned hospital.  Indeed,
section 2024 of the State Operations Manual, relied on by the State,
recognizes that "a hospital may establish an additional facility so
organizationally or geographically separate as to make it impossible to
operate as a component of a single hospital."  This language
demonstrates that a related facility, such as the "branch" or "division"
at issue in this case, could nevertheless be regarded as a separate
institution under the federal regulations. 5/  In fact, the State and
the hospitals themselves consistently treated the Westchester facilities
as separate hospitals over a significant period of time.

Throughout the disallowance period, the State apparently concluded that
the Westchester facilities were, in fact, sufficiently separate from the
New York City hospitals, organizationally or geographically, or both, to
be treated as free-standing psychiatric hospitals.  There are a number
of factors that would support such a determination.  The Westchester
facilities were accredited separately from the New York City hospitals,
they executed separate provider agreements, filed separate cost reports,
and received separate reimbursement rates. 6/  Moreover, in addition to
recommending to HCFA that the Westchester facilities be separately
certified as psychiatric hospitals, the State issued separate licenses
and operating certificates to the Westchester and New York City
facilities.

Not only the State, but the hospitals themselves apparently viewed the
Westchester facilities as separate and distinct from the New York City
facilities throughout the disallowance period.  During that time, the
Westchester facilities described themselves as psychiatric hospitals
when requesting certification to participate in Medicare and Medicaid.
The consequence of the Westchester facilities' requesting certification
as psychiatric hospitals was that, throughout the disallowance period,
they were surveyed against the two special conditions of participation
for psychiatric hospitals.  Had the Westchester facilities been
psychiatric units of general hospitals, they would not have been
required to undergo those surveys. 7/


Both the State and the hospitals now argue that the characterization of
the Westchester facilities as free-standing psychiatric hospitals was
simply erroneous.  However, it appears that this argument (and indeed
this perception of the Westchester facilities) did not materialize until
the audit by the Inspector General raised the question of whether the
Westchester facilities were IMDs.  For this reason, we conclude that the
contemporaneous actions of the State in recommending certification of
the facilities as psychiatric hospitals and the actions of the
Westchester facilities in requesting certification as such and
submitting to surveys for the special conditions of participation are
entitled to greater weight than arguments made now in hindsight.

Moreover, even if the Westchester facilities could properly have been
viewed as psychiatric units of the New York City hospitals throughout
the period in question, HCFA could reasonably determine that the State
should bear the consequence of classifying the facilities as psychiatric
hospitals, since the State was in the best position to determine the
appropriate classification of the hospitals and to recommend
certification to HCFA on that basis.  See Massachusetts Dept. of Public
Welfare, DAB No. 262, at 13-14 (1982), aff'd 749 F.2d 89 (1st Cir.
1984); New York State Dept. of Social Services, DAB No. 311, at 7
(1982).  Further, the State had a duty under the regulations to identify
IMDs and ensure that no FFP was claimed for excluded services in IMDs.
Yet, while it repeatedly recommended that the Westchester facilities be
certified as psychiatric hospitals, the State apparently never
questioned their status for Medicaid purposes.

B.      State licensure is not determinative as to whether a facility is
an IMD.

The State attempted to counter the certification of the Westchester
facilities as psychiatric hospitals by pointing to the facilities'
licensure, which, according to the State, demonstrates that they are, in
fact, psychiatric units of general hospitals.  The State explained that,
under its licensing scheme, general hospitals and psychiatric hospitals
are licensed by different State agencies.  According to the State,
general hospitals are licensed by the New York State Department of
Health pursuant to Article 28 of the Public Health Law, while
psychiatric hospitals are licensed by the New York State Office of
Mental Health pursuant to Article 31 of the Mental Hygiene law.
According to the State, psychiatric units of general hospitals are
co-licensed by the Department of Health and the Office of Mental Health.
The Westchester facilities are licensed by both agencies, a fact which
the State argued proves that the facilities are psychiatric units of
general hospitals.

In essence, the State argued that any facility that possesses a dual
Article 28/Article 31 license must be a psychiatric unit of a general
hospital and thus cannot be an IMD for Medicaid reimbursement purposes.
The State did not point to any official interpretation of its licensure
law in support of this argument, however, and this is not the only
reasonable interpretation.  Section 2801 of the Public Health Law
(quoted on page 5 above) excludes from the definition of "hospital" any
facility which is principally engaged in providing services for the
treatment of mental illness, "except for those distinct parts of such a
facility which provide hospital service."  Section 31.02 of the Mental
Health Law (quoted on page 5 above) requires that any part of a general
hospital which provides services to the mentally disabled obtain an
operating certificate from the Office of Mental Health.  This does not
necessarily mean, however, that only psychiatric facilities bearing some
relationship to a general hospital would be required to obtain both an
Article 28 license and an Article 31 license.  Each of the Westchester
facilities provided hospital level services throughout the facility.
Thus, it is arguable that each facility, as a whole, would fall within
the exception in section 2801 and could be licensed as a hospital
without regard to any relationship to a larger institution. 8/

Moreover, the State offered no evidence that the Westchester facilities
received operating certificates "as a part of a general hospital" under
subsection 2 of section 31.02 of the Mental Health Law, rather than as
"institutions" under subsection 1.  Nor did the State offer any evidence
to show that the term "part of a general hospital" as used in section
31.02 of the Mental Health Law is intended to have the same meaning as
the term "psychiatric unit" as used in the federal regulations. 9/  It
may be that in New York any psychiatric facility related to a general
hospital is regarded as "part of a general hospital" and thus subject to
dual Article 28/31 licensure.  The fact that certain facilities are
related, however, does not establish that they should be treated as a
single provider entity for purposes of Medicare and Medicaid
reimbursement.  As discussed above, the State Operations Manual clearly
contemplates that related institutions which are geographically or
administratively distinct might properly be treated as separate
providers.

However, even if it were true that Article 28 licenses are only issued
to general hospitals, and thus the Westchester facilities could only
have received dual Article 28/31 licenses if the State regarded them as
part of a general hospital, HCFA would not be precluded from concluding
that they nevertheless were IMDs.  The federal regulatory definition of
IMD makes clear that a facility can be an IMD regardless of how it is
licensed.

In our view, the dual Article 28/31 licensure of the Westchester
facilities by the New York Department of Health and the Office of Mental
Health does not preclude a finding that the facilities were sufficiently
distinct from the New York City hospitals to be regarded as
free-standing psychiatric hospitals, and by extension as IMDs, for
Medicaid reimbursement purposes.  . Conclusion

For the foregoing reasons, we uphold this disallowance in full.

 


     ____________________________
     Donald F. Garrett

 

     ____________________________
     Norval D. (John) Settle

 


     ____________________________
     Judith A. Ballard Presiding
     Board Member


1.  Section 1905(h)(1)(C)(ii) of the Act extends coverage for inpatient
psychiatric hospital services to patients until they reach age 22 under
certain circumstances.  That section extends coverage:  "in the case of
an individual who was receiving such services in the period immediately
preceding the date on which he attained age 21, [until] (I) the date
such individual no longer requires such services, or (II) if earlier,
the date such individual attains age 22."

2.  All regulatory citations are to the 1989 Code of Federal
Regulations.  These regulations were in effect throughout the
disallowance period.

3.  Psychiatric units of general hospitals are also excluded from the
prospective payment system and are reimbursed at a per diem rate.  In
the present case, the psychiatric beds located in New York City were
reimbursed at a different per diem rate than the psychiatric beds
located in Westchester.  State Exhibit (Ex.) 7.

4.  Prior to April 1987, the New York State Office of Health Systems
Management was the state survey agency for Medicare and Medicaid.  After
April 1987, HCFA contracted with HCR of Rochester to perform the survey
functions.  However, HCR did not perform a Medicare/Medicaid survey at
either St. Vincent's-Westchester or New York Hospital-Westchester during
the disallowance period.  State Ex. 1 at 7.

5.  The federal regulations define "institution" as, "an establishment
that furnishes (in single or multiple facilities) food, shelter, and
some treatment or services to four or more persons unrelated to the
proprietor."  42 C.F.R. . 435.1009.  The Westchester facilities would
meet this definition independent of their relationship with the New York
hospitals.

6.  In fact, one consequence of retroactively reclassifying the
hospitals as single providers would seem to be to invalidate the per
diem reimbursement rates for both the Westchester facilities and the
psychiatric beds in the NYC hospitals, since those rates should have
been calculated based on the combined costs of the Westchester and NYC
facilities.  The hospitals seem to have recognized this problem, as they
did not request retroactive reclassification when they requested that
the Westchester and NYC hospitals be certified as single providers.  See
HCFA Exs. 19, 35.

7.  In a letter dated March 9, 1990, Frederic Raine, the administrator
of New York Hospital-Westchester questioned, apparently for the first
time, the propriety of conducting such a survey at the facility.  HCFA
Ex. 30.  In a subsequent letter, dated March 19, 1990, Mr. Raine stated
that the facility would cooperate should HCFA officials decide to
proceed with the survey.  HCFA. Ex. 33.  However, Mr. Raine further
stated that the facility's cooperation should not be viewed as an
admission that the facility was a free-standing psychiatric hospital.
Id.

8.  The State produced no clear proof that other free-standing
facilities providing hospital level psychiatric services were not
required to obtain dual Article 28/31 licensure.

9.  It is unclear whether the Westchester facilities would qualify as
"psychiatric units" under the federal regulations.  One of the criteria
for identifying a "unit" is that the unit "[r]eport its costs in the
hospital's cost report covering the same fiscal period and using the
same method of apportionment as the hospital."  42 C.F.R. .
412.25(a)(12).  The Westchester facilities submitted separate cost
reports from the New York City facilities.  See State Exs. 3,