GAB Decision 250
January 28, 1982 Idaho Department of Health and Welfare; Docket No.
81-21-ID-HC Garrett, Donald; Teitz, Alexander Ford, Cecilia
The Idaho Department of Health and Welfare (appellant) appealed a
disallowance made by the Health Care Financing Administration
(respondent) under Section 1903(g) of the Social Security Act, 42 U.S.
C. 1396b(g), for the quarter ending March 31, 1980. The basis for the
disallowance was the respondent's determination that the utilization
control requirements of Section 1903(g) were violated by the appellant
for eleven patients in six skilled nursing facilities (SNFs).
The appellant contested the factual bases for the determination on
several patients and offered supporting documentation. The two parties
have carried on extensive discussions regarding the facts and the
available documentation, and the respondent made a site visit to examine
proferred documentation. The parties have agreed to a reduction in the
number of violations to six patients in three SNS, with a total
disallowed amount of $17,613.74. The violation for one of the six
patients is not at issue here.
The remaining issues in the appeal are (A) whether the appellant is
accountable for the utilization control records for one patient which
were not updated in a timely manner by the physician; (B) whether
telephone orders for three patients are acceptable to meet the
utilization control requirement for timely recertification; and (C)
whether the documentation submitted by the appellant meets the
requirements for a timely and adequate recertification for one patient.
We sustain the disallowance for all five patients for the reasons set
out below. This decision is based on the application for review, the
respondent's reply, the Board's Order to Show Cause, and both parties'
responses to that Order. We have determined that there is no need for
either a conference or evidentiary hearing.
Background
Section 1903(g) of the Act requires that the responsible State agency
show to the Secretary's satisfaction that there is an "effective
program" of utilization control of long-term inpatient services in
certain types of facilities.The State must meet certain specific (2)
requirements set out in Sections 1903(g)(1)(A) through (D) or the
federal medical assistance percentage (FMAP) must be decreased, for the
quarter in which the violations were found, by an amount determined
according to the formula set out in Section 1903(g)(5). The requirement
at issue in this appeal is that of Section 1903(g)(1)(A), for a
recertification by a physician "at least every 60 days" that the
specific level of care provided to a patient is necessary. This
recertification is required "in each case for which payment is made
under the State plan." Section 1903(g)(1) (A).
The recertification requirement is implemented for SNFs by 42 CFR
456.260 and 456.280, recodified effective September 29, 1978. In
addition, the respondent had instructed the states about this
requirement in Action Transmittal SRS-AT-75-122, dated November 13,
1975.
Discussion
A. Appellant's accountability for the records of one patient which
were not updated in a timely manner by the responsible physician.
The physician did not recertify this patient's need for continued
care at an SNF level until 76 days after the last recertification. The
appellant alleged that it notified the physician twice about the
recertification requirement and that the physician failed to respond in
a timely manner. The appellant asserted that it demonstrated a
reasonable attempt to comply and cannot be held accountable because it
has no control over the physician.
The statutory requirement for recertification every 60 days is clear
and unambiguously implemented in 42 CFR 456.260. Section 1903(g)
requires the Secretary to impose a penalty reduction unless the State
makes a satisfactory showing, which "must" include evidence "in
each
case" of valid recertifications "at least every 60 days." The
legislative history of the 1977 amendments to Section 1903(g) showed a
Congressional determination that the respondent "aggressively implement
the congressional mandate" of Section 1903(g). H. R. REP. No. 393, Part
II, 95th Cong., 1st Sess. 84, (1977). Furthermore, this Board has
upheld previously the respondent's position that a policy which accepts
"reasonable compliance," and thus would waive violations for one or
two
patients, is not adequate under the language and legislative history of
Section 1903(g). Tennessee Department of Public Health and Colorado
Department of Social Services, Decisions No. 167 and No. 169, April 30,
1981, and Ohio Department of Public Welfare, Decision No. 191, June 24,
1981. The Comptroller General has also confirmed the respondent's
interpretation of Section 1903(g), which is that the respondent has no
discretion to allow "reasonable compliance." Comptroller General's
Opinion, B-164031(3).154, March 4, 1980.
(3) The State's allegation that it has no control over physicians and
that, therefore, it cannot be held accountable, is contrary to the very
purpose of Section 1903(g), that is, control over utilization of
long-term inpatient care paid for by federal funds. Under the statute,
a state that wishes to receive federal monies under Title XIX is
accountable for the actions of its physicians in this regard. Congress
reasonably concluded that control of long-term care is more appropriate
at the state then at the federal level. Furthermore, there are some
means available to states to ensure compliance, such as denial of
reimbursement to the provider or physician for services rendered where
the utilization control requirements are not followed.
We recognize that states have been given a burden in enforcing these
utilization control requirements, but if we accepted a plea, on a larger
scale, of no control over physicians, such acceptance would nullify the
utilization control requirements. We conclude that Congress has placed
the burden of control on the states, and that a disallowance based on a
clear violation must be upheld.
B. The acceptability of telephone orders for purposes of satisfying
the requirement of a timely recertification.
The respondent found the recertifications for three patients untimely
because the physicians did not sign and date the orders until after the
60-day period from the last recertification had elapsed, although they
had telephoned the facility within 60 days to authorize recertification.
The appellant argued that the recertification should be effective on
the date the physician telephoned rather than the date he signed the
recertification. The rationale the appellant offered for this position
was that the telephone recertifications were verified by forms showing
the receipt of the calls and subsequently by the physicians' signatures,
and that this system produces utilization control which is as effective
as the more restrictive interpretation advanced by the respondent, which
makes the date of signature the key date (See SRS-AT-75-122) and
requires a written recertification signed and dated by the physician
within 60 days of the last recertification. The appellant asserted that
the physician is not required to visit the patient for purposes of
recertification, and that when the physician recertifies by telephone
and verifies that recertification by a later signature, there is as much
control over the patient's care as when the physician signs a
recertification in his office and returns it to the SNF.
(4) The Board has previously upheld the respondent's requirement that
the recertification must be in writing and dated at the same time as it
is signed, within 60 days of the last recertification. Social Service
Board of North Dakota, Decision No. 166, April 30, 1981. This policy is
clearly stated in the respondent's Action Transmittal SRS-AT-75-122,
November 13, 1975, and reiterated in Action Transmittal 80-68, October
1, 1980. We have previously concluded that the policy is a logical
extension of the statute and regulations and that the policy carries out
the purpose of the statute in a manner which is reasonable under
considerations of administrative convenience. We have no basis for
overturning this policy where it has been clearly stated, the appellant
has had notice of the policy, and there has been no showing that the
policy is illegal or unreasonable. Therefore, we conclude that we must
sustain the disallowance for the violations pertaining to these three
patients. Nevertheless, the arguments presented in several appeals
before this Board have provided evidence that there are methods of
recertification which may be just as effective as the method required by
the respondent, and that there are, in some instances, circumstances
which might provide justification for a revision of the respondent's
policy to permit increased flexibility in the recertification method.
The Board cannot mandate such a policy revision, however; this is
within the respondent's discretion.
C. Adequacy of the documentation submitted by the appellant to meet
the recertification requirement for one patient.
This patient resided in the same facility as the three patients whose
records were involved in the telephone recertifications. The respondent
determined that there was no valid recertification in the quarter in
question which was within 60 days of the last prior recertification.
The document offered by the appellant as a recertification for the
quarter surveyed is the "Doctor's Record." There are two columns,
one
marked "Orders and Medication," and one marked "Progress Notes."
The
only notation in the "Progress Notes" column is that the patient's
status on January 29, 1980 was "unchanged." The respondent originally
found this notation inadequate as a recertification, citing the
physician's failure to date his signature. The Board tentatively found,
in its Order to Show Cause, that because the notation itself was dated
and the notation was so brief that a second date seemed superfluous,
there was no need for the physician to place a second date by his
signature. The respondent, in its response to the Board's Order,
revised its earlier finding with regard to this entry, accepted it as a
recertification, and stated that it would assume, for this appeal only,
that the notation referred to the patient's need for skilled care
because it was placed in the "Progress Notes" column.
(5) The respondent stated, however, that another recertification
would have been due 60 days from January 29th, i.e., before March 31,
1980.
The "Orders" column contains several items, all dated January 29,
1980, which refer to the patient's diet, medication, and activity. For
example, eye drops and vitamins were prescribed, as well as leg
exercises and a shot of whiskey. None of these items points to a
specific level of care and each might apply to a patient at either SNF
or intermediate care level. The "Orders" column also contains a
notation dated February 9, 1980, which states that these standing orders
and activity plan are to be renewed. The appellant offered the February
9th notation as a recertification to meet the 60-day requirement. The
respondent has stated that neither the notes about diet and medication
nor their renewal constitute a statement about the patient's level of
care. This appears to be a sound analysis of these orders, since there
is nothing to indicate that, either the initial notes or by reviewing
them, the physician made any determination about the proper level of
care. Therefore, we conclude that the appellant has not produced
evidence of an adequate and timely recertification of the patient for
the quarter ending March 31, 1980.
Conclusion
We conclude that the disallowance, reduced by the respondent to the
amount of $17,613.74, should be sustained because the appellant did not
meet the recertification requirements of Section 1903(g)(1)(A), as
interpreted by the respondent in regulations and an Action Transmittal,
in a timely manner for six patients in three SNFs.
OCTOBER 22, 1983