Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Appellate Division
SUBJECT: New York
State DATE: January
19, 1994
Department of Social Services Docket
No.
A-93-177 Audit Report No. A-02-92-01005
Decision
No. 1457
DECISION
New York State Department of Social Services (New York) appealed
a
disallowance by the Health Care Financing Administration (HCFA)
of
federal financial participation (FFP) in the amount of $147,389. 1/
New
York claimed the FFP under Title XIX of the Social Security Act
(the
Act) for Medicaid payments to residential treatment facilities
for
children and youth (RTFs) for reserved bed days during the period
July
1, 1988 through June 30, 1991.
As authority for this disallowance, HCFA relied primarily on Office
of
Management and Budget (OMB) Circular A-87, which contains principles
for
determining whether costs incurred by state governments are allowable
as
charges to federal programs. Attachment A, C.1.b. of that
circular
requires that allowable costs be "authorized or not prohibited
under
State or local laws or regulations." HCFA determined, on the
basis of
an audit by the Office of the Inspector General (OIG), that New York
had
made payments to RTFs for reserved bed days which were prohibited by
New
York's Medicaid plan and associated regulations. HCFA contended,
among
other things, that these payments were not eligible for Title
XIX
funding because the RTFs had not obtained authorization to extend a
bed
reservation prior to the extended reservation period.
Based on our review of the record, we conclude as follows:
o This disallowance cannot be
upheld based on HCFA's
determination that New York's own rules required
the RTFs to
obtain authorization prior to the extended bed
reservation
period. HCFA's interpretation of New York's plan
and
regulations is unreasonable in view of their plain language,
and
HCFA provided no substantial basis for preferring
its
interpretation.
o HCFA's brief and the OIG audit
report suggest, but do
not fully explicate, other bases for disallowing
part of the
payments at issue here. We remand to HCFA to develop
the record
further if HCFA chooses to pursue these issues.
Background
New York participates in the Medicaid program pursuant to its State
plan
as approved by the Secretary of the Department of Health and
Human
Services (HHS) under section 1902(a) of the Act. The New York
State
Department of Social Services (DSS) is the single state agency under
the
State plan responsible for supervision of New York's Medicaid
program.
The Office of Mental Health (OMH) is the program agency to which DSS
has
delegated supervision of inpatient and outpatient psychiatric
services,
including administration of RTFs and psychiatric centers. New
York
Exhibit (Ex.) 1 at 1.
Pursuant to HHS's general rule-making authority under section 1102 of
the
Act, HCFA promulgated a regulation permitting states to institute a
process
for reserving beds in certain facilities for Medicaid recipients
who were
temporarily absent, usually receiving some form of acute care.
42 C.F.R. .
447.40 (1988-1990). This regulation required states to
provide for such
reservations in their Medicaid plans in order to claim
federal financial
participation (FFP), but left it to each state to
define any limits on the
use of reserved bed days. Id. New York
established a policy for
reserved bed days through Attachment 4.19-C of
its Medicaid plan, effective
January 1984. New York Ex. 1 at 53.
As the agencies responsible for Medicaid in general and RTFs
in
particular, DSS and OMH promulgated regulations implementing
the
reserved bed day provision of the State Medicaid plan and applying
it
specifically to RTFs. 2/ An RTF is a small, community-based
facility
certified by OMH to provide residential psychiatric treatment
services
to mentally ill children. New York Reply Brief (Br.) at
2. All the
payments implicated in this disallowance involved
reservations at RTFs
while residents were being treated at State-operated
psychiatric
centers, which are more restrictive and intensive than
RTFs. Id. Bed
reservations in such circumstances are generally
limited by New York's
regulations to 15 days, unless an extension or a
"special limit" is
approved. In or around 1984, New York published
informal guidelines for
reserved bed days, breaking down the responsibilities
of RTFs,
psychiatric centers, and the regional office of OMH. New York
Ex. 6;
HCFA Ex. 1. These guidelines reduced the reserved bed day rules
to a
series of steps, and provided for a telephone approval procedure
for
special limits which was not set out in the regulations. New York
Ex. 6
at 9; HCFA Ex. 1 at 11-12.
In 1992, OIG audited New York's reserved bed day payment procedures
for
the period July 1, 1988 through June 30, 1991. New York Ex.
1. For the
payments at issue, OIG found that New York should not have
paid for
claimed reserved bed days for periods longer than 15 days. The
auditors
found that such claims were improper because the RTFs had either
not
requested prior approvals at all for bed reservations beyond 15 days
or
they requested approvals after or near the end of the bed
reservation
period. 3/ New York Ex. 1 at 7. HCFA adopted
the audit report and
issued a disallowance, of which New York appealed the
portion attributed
to reserved bed day claims allegedly lacking proper prior
authorization.
New York provided documentation which it said showed that all of
the
reserved bed days at issue here had been approved and assigned a
prior
authorization number. HCFA did not deny, and the documentation
shows,
that an authorization number was assigned to each request
for
authorization at issue. HCFA did not provide a detailed analysis of
the
documentation, simply giving two examples of how it found
the
documentation insufficient to show full compliance with the limits
in
the State plan and regulations. In general, HCFA took the position
that
the payments were prohibited by New York law, which HCFA interpreted
as
requiring that approval for any extension of the bed reservation
period
be obtained prior to the bed being reserved for a period beyond 15
days.
Analysis
I. New York's Medicaid plan and regulations by
their terms do not
require approval for extended reserved bed days prior to
the
reservation.
A. New York's Medicaid plan
HCFA's regulations authorize Medicaid payments for reserved bed
days
during a recipient's temporary absence from a facility
while
hospitalized if the "State plan provides for such payments and
specifies
any limitations on the policy; . . ." 42 C.F.R. .
447.40(a)(1). Thus,
federal policy does not require any particular
limits. FFP may be
claimed only in payments made in accordance with an
approved State plan,
however. Section 1903(a) of the Act.
The relevant provision of the approved State Medicaid plan set
forth
limits on the use of reserved bed days, as required by 42 C.F.R.
.
447.40. New York Ex. 1 at 53 (Attachment 4.19-C of State plan).
In
addition to limits based on length of residency prior to
reservation,
the types of facilities which may claim payments for reserved
bed days,
and the maximum vacancy rate a facility may have to receive
reserved bed
day payments, the plan set limits for the duration of
reimbursable
reservation periods: "Without prior to payment approval,
not to exceed
15 days[.] . . . With prior to payment approval not to
exceed 20
days[.]" Id. (emphasis added).
HCFA interpreted this requirement to mean that "if approval for
the
payment is not secured before the bed is reserved, payment may not
be
made after the fifteenth day of the absence." HCFA Br. at 2-3.
Nothing
in the wording of the State plan supports this reading,
however. To the
contrary, the wording clearly indicates that the
approval is merely a
prerequisite to "payment" since it must be "prior to
payment."
Attachment 4.19-C of the plan went on to specify: "Special broader
limits,
subject to approval of the State Commissioner of Social
Services, may be
established for residents of institutions for the
mentally
retarded/developmentally disabled and for residents of
residential treatment
facilities for children and youth on an individual
case basis." New
York Ex. 1 at 53. This language indicates that the
20-day maximum
period in the extension provision just quoted was not an
absolute ceiling but
was subject to waiver. Nothing in the State plan
provision cited by
HCFA requires that special limits be approved before
the bed is reserved.
B. New York regulations
As mentioned above, both DSS and OMH promulgated regulations providing
for
case-by-case prior approval methods for the extensions and "special
limits"
referred to in the plan, as well as for other exceptions and
waivers.
14 N.Y.C.R.R. Part 576 (see New York Ex. 4); 18 N.Y.C.R.R.
360-7.10 (see New
York Ex. 5). We will address the references to prior
authorization or
approval on which HCFA relied. 4/
Like the State plan, the OMH regulations permitted reimbursement for
RTF
bed reservation periods longer than 15 days, providing for a period
of
up to 30 days for psychiatric hospitalization, provided "the
resident
returns immediately to the [RTF]" and the RTF "request[s]
prior
authorization from the regional office of the [OMH] serving the
region
in which the [RTF] is located to request payment for the actual
period
the bed was reserved." 14 N.Y.C.R.R. . 576.6(a)(1)(v)(b)
(emphasis
added). 5/ HCFA again interpreted "prior" here to mean "prior
to
extension." HCFA Br. at 3. However, nothing in the language of
this
section refers to the timing of the act of reserving the bed
or
extending a bed reservation; rather, the wording suggests that the
RTF
must request authorization prior to requesting payment. Moreover,
both
the requirement that the patient must have returned to the RTF and
the
fact that the request must be for the "actual period the bed
was
reserved" indicate that the required written authorization may
be
requested only after the reservation period, and that "prior"
means
"prior to payment," as in the State Medicaid plan. Only
after the
reservation period would the RTF know whether, in fact, the
recipient
had returned to the RTF and how many actual reserved bed days
there
were.
The corresponding DSS regulation provided for extended reserved bed
days
in mandatory terms: "[I]f an extension will permit a
recipient
hospitalized for acute psychiatric care to return to the RTF within
30
days of his/her admission to the hospital, the RTF must extend
the
recipient's reservation up to 15 days beyond the 15 day limit."
18
N.Y.C.R.R. 360-7.10(e)(3)(ii). Again, the regulation required
"[p]rior
authorization for payment . . . when . . . a recipient who . . .
was
expected to be hospitalized for 15 days or fewer, is hospitalized
for
more than 15 days." 18 N.Y.C.R.R. 360-7.10(f)(2). Similarly
to the OMH
regulations, the DSS regulations required payment to be made
for
extended reserved bed days where the RTF obtained "an authorization
that
has been approved by the Commissioner of [OMH] or his/her
designee." 18
N.Y.C.R.R. . 360-7.10(f)(3)(iii).
On the recommendation of the regional office of OMH, the Commissioner
of
Social Services (i.e., the head of DSS) had the power to
approve
"special limits": "The limit of 30 calendar days for a resident
who is
temporarily hospitalized for psychiatric care may be extended if
such
extension is expected to permit the resident to return to the
[RTF]."
14 N.Y.C.R.R. . 576.6(c)(2); see 18 N.Y.C.R.R. . 360-7.10(g).
Also,
"[t]he Commissioner of Mental Health may waive any of the
standards
pertaining to reserved bed [d]ays in individual cases under
special
conditions except those standards requiring the approval of
the
Commissioner of Social Services as provided for in subdivision (c)
of
this section." 14 N.Y.C.R.R. . 576.6(d); see 18 N.Y.C.R.R.
.
360-7.10(f)(3)(iii).
Thus, not only do the regulations contemplate approval requests made
after
an extended bed reservation period, but, also, they provide
authority for
establishing "special limits" and for waiving requirements
that otherwise
would apply.
C. New York's procedural guidelines
As mentioned above, OMH supplemented the reserved bed day regulations
with
procedural guidelines for RTF administrators. New York Ex. 6; HCFA
Ex.
1. 6/ HCFA described these guidelines as a distillation by OMH
of
the statutory and administrative framework into "procedures that must
be
followed whenever bed reservations at RTFs are to exceed fifteen
days."
HCFA Br. at 4.
HCFA's reliance on these guidelines is misplaced. The
procedural
provisions in HCFA's Exhibit 1 are characterized as "Guidelines"
and
"Instructions," and are nowhere described as establishing
additional
substantive requirements for payment of claims. HCFA Ex.
1. While
these documents inform RTFs of their responsibilities and the
expected
timing of their actions, they nowhere state that payment of claims
for
reserved bed days is prohibited or will be denied if the procedures
are
not followed.
In any event, nothing in the guidelines supports a disallowance on
the
basis that the RTFs had submitted their written requests for approval
to
OMH after the applicable 15 or 30-day period had elapsed or that
OMH
approved the claims after the reservation period had elapsed. Yet,
this
was the basis for OIG findings adopted by HCFA. HCFA Br. at 6,
citing
New York Ex. 1 at 7-9.
HCFA's own description of the guidelines does not include any
description
of a specific requirement that approval be requested or
obtained prior to the
extended bed reservation period (although that
description does appear to mix
procedures for obtaining approval of
extensions of up to 30 days with
procedures for obtaining special
limits, including extensions beyond 30
days). HCFA Br. at 4-5. 7/ A
careful reading of the guidelines
indicates that they are consistent
with an interpretation of the regulatory
requirements as mandating that
facilities obtain approval prior to claiming
rather than prior to
reserving the beds. While the guidelines provide
that generally the
facility should start the process of filling in the
approval request
form (DSS 3074) when the need for an extended stay is
determined, the
DSS 3074 form is to be submitted first to the hospital to
which the
recipient has been sent. For reserved bed days in excess of
15 days,
the guidelines provide:
In requesting payment for reserved bed fees, the provider
must
submit to the appropriate regional office of the OMH for
review
and prior approval, the patient's DSS 3074 which is returned
by
the hospital, and other explanatory data (as available) prior
to
submission of a claim for reserved bed fees.
HCFA Ex. 1, at 10. The hospital is to have returned the completed
form
to the RTF "no later than 24 hours following the end of the
bed
reservation period." Id. Thus, the guidelines, like the
regulations,
contemplate that written approval will not be obtained until
after the
end of the bed reservation period. While the guidelines
permit a
facility that wants some guarantee that it can obtain a special
limit to
obtain confirmation by telephone, they cannot reasonably be read
as
requiring a facility to do so.
In sum, New York's view that its State plan and regulations do
not
require authorization for reserved beds prior to reserving the
beds
accords with the language of the applicable provisions. This Board
has
previously stated: "Where the law of the State reasonably
encompasses
the meaning attributed to it, the Board will not substitute
its
interpretation for that of the State, absent substantial evidence
that
the State's interpretation is unsupportable." California Dept.
of
Social Services, DAB No. 393 at 6 (1983) (and cases cited therein);
Ohio
Dept. of Human Services, DAB No. 725 at 6 (1986). In this case,
we
consider the interpretation by OIG and HCFA that request and
approval
had to be prior to the bed reservation period to be unreasonable
in
light of the language of the applicable provisions.
II. New York's interpretation of its law to permit
DSS to issue
required approvals for reserved bed days retroactively is
reasonable and
the Board will not substitute HCFA's interpretation.
Despite HCFA's misconstruction of the authorization requirement,
HCFA
indirectly raised a question as to New York's compliance with the
actual
requirements of the regulations and plan. HCFA asserted that an
RTF
cannot receive payment unless it has obtained prior authorization.
HCFA
Br. at 4. According to the regulation upon which HCFA relied,
RTFs
"must indicate on billing claims that authorization to
claim
reimbursement for reserved bed days has been obtained when
necessary
according to subdivision (f) of this section." 18 N.Y.C.R.R.
.
360.7-10(i)(5). New York asserted that it substantially complied
with
this requirement for the reserved bed days at issue:
Even though some of these claims were paid before
receipt of the
actual documentation [of
authorization requests and approvals] by
the State,
the fact that they were found by the State, upon its
review, and usually after telephone notification that
requests
would be forthcoming from the RTFs, to be
appropriate to the needs
of the children in the RTFs
means that the State may even
retroactively find
that they are otherwise not prohibited or
unauthorized under State law or regulations.
New York Br. at 7. We agree with New York that this process
accords
with the purpose of the authorization regulations, which was to
ensure
that the residents' absences were clinically necessary and that
the
reserved bed day payments were used appropriately to minimize
residents'
stays in more expensive inpatient settings and to permit
continuity of
care in their RTFs. New York Br. at 3-4, 8.
Furthermore, since New York's regulation was reasonably interpreted
to
impose a prerequisite for payment on RTFs, and not ultimately
to
prohibit payment by DSS, New York could reasonably grant
written
authorization for payments to RTFs for reserved bed days
retroactively.
The Board has previously stated: "We cannot uphold the
Agency's initial
basis for the disallowance, relying upon the State's own
approval
policies, since . . . [the State], in any event, had the power to
ratify
(or retroactively approve) a transaction which resulted in no
otherwise
unallowable cost." Ohio Dept. of Human Services, DAB No. 725,
4-5
(1986). We note that HHS has interpreted similar prior
approval
requirements for certain costs charged to HHS grants as not
prohibiting
it from authorizing the charges retroactively. HHS
Grants
Administration Manual Ch. 1-105-60, . B.1.; see Intertribal Council
of
California, DAB No. 1418 (1993), and decisions cited therein.
The evidence here indicates that some of the payments at issue were
not
made until written approval was documented through a DSS 3074 to which
a
prior authorization number had been assigned, some may have been
paid
before the written form was completed but after a telephone
approval,
and all ultimately had a completed DSS 3074 with a prior
authorization
number. 8/
We note that HCFA questioned New York's assertion that the RTFs had
made
telephone requests for prior authorization of extensions, and
received
telephone confirmation of approvals from DSS via OMH. HCFA
argued that
RTFs were required under 14 N.Y.C.R.R. . 576.7(c) to document
any
telephone requests, whereas the OIG audit had found no
such
documentation during visits to RTFs, nor did New York submit any
such
records. HCFA Br. at 11. The cited regulation requires that
RTFs
retain documentation of "all actions required to demonstrate
compliance
with the requirements of this part, including telephone
notification and
correspondence with hospitals, requests for extensions and
approvals of
extensions." 14 N.Y.C.R.R. . 576.7(c). New York
replied that although
there was no regulation providing for OMH regional
offices to maintain
telephone logs of oral prior approvals, most did so, and
further
contended that absence of such logs, or the fact that RTFs
discarded
notes of telephone requests upon receiving the formal
written
authorization, did not violate New York regulations. New York
Reply Br.
at 10-11. This is a reasonable position.
While the procedures do state that telephone approvals should
be
"confirmed in writing" as HCFA alleged, there is nothing in
the
regulations or procedures that indicates that a completed DSS 3074,
with
an assigned prior authorization number, does not constitute such
a
confirmation. To the contrary, the procedures contemplate payment
based
on such a completed form. In view of this, and the
reasonableness of
New York retroactively ratifying any payment mistakenly
made by New York
prior to completion of the DSS 3074 form, we do not consider
the lack of
other documentation of telephone requests to be significant
here.
III. For any instances where HCFA determines that payment
is
prohibited on a basis other than absence of prior authorization,
HCFA
must state why New York's documentation did not demonstrate that
the
regulation in question was met or properly waived.
As mentioned above, New York supplied documentation showing that, for
the
48 cases at issue, authorization was requested in writing and a
prior
authorization number was obtained. New York Ex. 7. However,
the
original disallowance letter included bases other than absence of
prior
authorization, and the audit report on which the disallowance was
based
indicated that in some cases payment was disallowed on more than
one
basis. New York Ex. 1 at 6-7.
While HCFA gave one example from the record, HCFA did not
specifically
identify other payments appealed here where another basis
for
disallowance applied. In this example, HCFA alleged the reserved
bed
day payment should not have been made based on a substantive
problem
that would have prohibited its approval under New York's
regulations.
HCFA Br. at 8-10.
In the example given by HCFA, approval was apparently granted
for
extension of a bed reservation through November 26, 1990 despite
the
fact that the RTF, in its request letter dated November 14, 1990,
gave
notice that the resident was to be discharged from the RTF on
November
27. HCFA Br. at 10, HCFA Ex. 2; see New York Ex. 7, Case No.
30 (does
not include letter shown in HCFA Ex. 2). As HCFA pointed out,
New York
regulations permit "special limits" extensions beyond 30 days "if
such
extension is expected to permit the resident to return to the
[RTF]."
14 N.Y.C.R.R. . 576.6(c)(2). In the cited example, the last
portion of
the extension would not meet this standard, and therefore that
portion
of the reserved bed day payment would not be authorized unless the
RTF
was permitted to and did obtain a waiver of the standard from
the
Commissioner of Mental Health pursuant to 14 N.Y.C.R.R. .
576.6(d).
Neither party addressed the question here of whether either the
DSS
letter approving "special limits" or the actions by OMH
effectively
waived the requirement under New York law that the extension be
expected
to permit the resident to return.
Thus, we are remanding this case to provide HCFA an opportunity to
examine
this issue, as well as any other identified in the audit report,
and to
identify any other of the appealed payments originally disallowed
on a basis
in addition to the timing of the authorization. 9/
Conclusion
For the reasons stated above, we conclude that this disallowance cannot
be
sustained solely on the basis of lack of approval provided prior to
extension
of the reservation period. HCFA should promptly inform New
York, in
writing, whether HCFA wishes to develop other bases founded in
the audit
report for this disallowance, and, if so, include information
sufficient for
New York to respond. New York may return to the Board
within thirty
(30) days after receiving any such further notice.
M. Terry Johnson
Norval D.
(John)
Settle
Judith
A.
Ballard
Presiding
Board
Member
1. The total disallowance was in the amount of $426,179, of which New
York
appealed only those amounts disallowed on the basis of absence of
prior
authorization. In the appeal letter this amount was stated as
$159,090,
but New York's brief corrected it to $147,389.
2. Section 360-7.10 of Title 18 of the New York State
Official
Compilation of Codes, Rules and Regulations (N.Y.C.R.R.) was
promulgated
by DSS; Part 576 of Title 14 of the N.Y.C.R.R. was promulgated by
OMH.
3. Among the reasons to which OIG auditors attributed
New York's
payment of improper claims was New York's failure to implement an
edit
in the Medicaid Management Information System (MMIS) to capture
claims
which lacked prior authorizations.
4. The regulations provide separately for extensions
and waivers in
the case of residents hospitalized for medical treatment and
on leaves
of absence. 18 N.Y.C.R.R. .. 360-7.10(e)(3)(i),
360-7.10(f)(2)(iii),
360-7.10(f)(3), and 14 N.Y.C.R.R. ..
576.6(a)(1)(iv)(a),
576.6(a)(1)(v)(a), 576.6(c)(1) (medical treatment); 18
N.Y.C.R.R. .
360-7.10(h) and 14 N.Y.C.R.R. .. 576.6(a)(2), 576.6(b)(3) (leave
of
absence). The part of the disallowance at issue here involved only
RTF
residents who were receiving psychiatric treatment at
psychiatric
centers during their absences. New York relied on the
provisions for
absences to receive psychiatric care cited above. HCFA
also treated
those as the relevant provisions.
5. Although the 30 days is longer than the 20-day
maximum in the
State plan, the additional 10 days was clearly approved by
the
Commissioner of Social Services, DSS, as a special limit for
any
recipient absent from an RTF because of hospitalization in a
psychiatric
hospital. The DSS regulations specify the 30-day
period.
6. New York supplied as Exhibit 6 three sets of "RTF
Reserved Bed
Procedures" dated 9/10/90, the first two of which correspond to
the
first two documents in the RTF Manual at HCFA Exhibit 1: "Reserve
Bed
Procedure #1, Hospitalization Without Special Limits," and "Reserve
Bed
Procedure #2, Guidelines for Requesting Special Limits."
Although
HCFA's versions are dated 2/26/86, there is no substantive
difference in
the provisions. The third document in New York Exhibit 6
is a procedure
for reserved bed days during leaves of absence, which is
inapplicable
here. The third portion of HCFA Exhibit 1, which begins
"2.2
Residential Treatment Facilities: Guidelines," is undated; it
contains
a section numbered 2.2.11, "Reserved Bed Policy," which is
not
substantively different from the "Procedures." None of the
guidelines
contradicts New York regulations, although telephone procedures
for
prior authorization are added.
7. HCFA misinterpreted the guidelines as requiring
that, in each
case where an extension is requested, the regional OMH office
contact
DSS for approval. HCFA Br. at 4. This is incorrect, since
DSS approval
is required only for a "special limits" extension (i.e., for
a
reservation period greater than 30 days for psychiatric treatment).
18
N.Y.C.R.R. 360-7.10(f)(3)(iii), 14 N.Y.C.R.R. . 576.6(a)(1)(v)(b)
(OMH
extension authorization); 14 N.Y.C.R.R. . 576.6(c)(2), 18 N.Y.C.R.R.
.
360-7.10(g) ("special limits"); New York Ex. 6 at 2, 4, 5, 7, 9,
and
HCFA Ex. 1 at 3, 4, 5, 6, 9, 11, 12, 14, 24, 25-27 (guidelines
for
requesting "special limits").
8. Even if the RTF improperly submitted the claims
without having
first obtained a prior authorization number, this should not
result in a
denial of FFP. Once the RTF received the number, it could
have then
clearly received payment for the reserved bed days. The mere
timing of
New York's payment should not control here. While we
recognize HCFA's
concern that, in the absence of a MMIS edit to reject
reserved bed day
claims which lacked prior authorization numbers, New York
could make
payments for extended reserved bed days for which authorization
was
never in fact obtained, we do not consider absence of this MMIS
feature
to preclude FFP. Because New York provided documentation
showing that
the reserved bed day claims at issue have received
authorization
numbers, we need not reach here the question of whether a MMIS
edit is
required, nor need we address the issue raised in New York's reply
brief
as to the feasibility of implementing such an edit.
9. Should HCFA determine that such other limits on
reserved bed
payments were violated, HCFA should note that New York's
regulations
appear to contain not only "special limits" but broad waiver
authority.
14 N.Y.C.R.R. .. 576.6(c) and (d); 18 N.Y.C.R.R. ..
360-7.10(f)(3)(iii)
and (g). If the limits allegedly violated are
limits which could be
waived under New York regulations, consistently with
federal
requirements, New York should be permitted the opportunity
to
demonstrate that such a waiver was obtained from the
appropriate