GAB Decision 529
Docket No. 84-4
April 9, 1984
Granville House, Inc.;
Ballard, Judith; Ford, Cecilia Sparks Settle, Norval
The issue in this case is whether alcoholism and chemical dependency
are properly characterized as mental diseases for the purpose of
determining whether certain treatment facilities operated by Granville
House, Inc. (Granville) are institutions for mental diseases (IMDS). In
determining whether facilities are IMDs, the Health Care Financing
Administration (HCFA, Agency) uses a disease classification system which
categorizes alcoholism as a mental disorder. /1/ Residents between the
ages of 21 and 65 in an IMD are ineligible for federal aid under Title
XIX of the Social Security Act (42 U.S.C. 1396 et seq.) (Medicaid).
This case is before the Board by an order of the United States District
Court for the District of Minnesota, dated January 9, 1984, in Civil
Action No. 4-80-279, pursuant to a decision by the United States Court
of Appeals for the Eighth Circuit remaning this case to the Board.
Granville House, Inc. v. Department of Health and Human Services, 715
F.2d 1292 (8th Cir. 1983). The record in this case includes testimony
before the District Court and in a hearing held by the Board, briefs of
the parties, and materials presented in response to a Board request by
the National Institute on Alcohol Abuse and Alcoholism.
(2) I. Summary of decision.
The Board determined early in its review that trying to label
alcoholism as a mental disease or not a mental disease, per se, is
simplistic and unproductive. The disorder is unique, complex, and not
fully understood. Labeling is relevant only to the perspective of the
would-be user of the label; for example, a diagnostician may find the
label "mental disease" useful as a communication tool, while the
practitioner may find the label irrelevant to day-to-day treatment. The
Board determined that it had to review evidence about the nature of
alcoholism in light of the IMD exclusion and what the Eighth Circuit
Court of Appeals said recently about that exclusion.
In State of Minnesota v. Heckler, 718 F.2d 852, 863 (8th Cir. 1983),
the Eighth Circuit emphasized that "characterization of an IMD must
fundamentally center on the type of care or nature of services required,
not on the mere presence in a facility of patients who have . . .
diagnoses of a mental disease." The Court, however, did not decide what
type of care marks a facility as an IMD. /2/
In the foregoing context, we made the following determinations:
There is no dispositive indication of legislative intent concerning
Medicaid funding for alcoholism treatment facilities.
Alcoholism is a complex, multi-faceted disease with both physical and
mental components. HCFA cannot reasonably rely on the International
Classification of Diseases as a per se determinant of the status of an
institution treating alcoholism as an IMD. Some of the treatment of
alcoholics involves non-psychiatric and relatively innocuous forms of
"psycho-social" therapy, not much more substantial than the kind of
therapy likely to be offered generally to nursing home residents for
depression or other common behavioral disorders, including smoking or
overeating.
On the other hand, Granville cannot reasonably maintain that
alcoholism treatment in all cases should not be a basis for
characterizing a facility as an IMD. Some treatment of some alcoholics
may go well beyond the level of psycho-social activities one may expect
to find generally in ICFs, and those facilities where such more
intensive psychiatric treatment predominates are IMDs by any reasonable
reading of the standard.
(3) The difficulty is that HCFA has not articulated any rules or
guidelines that can be meningfully applied to facilities treating the
unique disorder of alcoholism to determine when the treatment is of a
sufficiently unusual and intrusively psychological nature so that the
facility is an IMD. Until it has issued such rules or guidelines, HCFA
cannot reasonably deny funding to Granville's facilities simply because
they rehabilitate exclusively alcoholics, using psycho-social
techniques.
We note one caveat: even if Granville's facilities should not be
simplistically categorized as IMDs, this does not mean that they are
necessarily providing covered medical services. Merely because an
alcoholism treatment facility is not necessarily an IMD does not mean
that it should receive Medicaid funding. There appears to be a
legitimate question whether Congress wanted Medicaid to fund marginally
"medical" activities such as Alcoholics Anonymous meetings, smoking
cessation clinics, or weight loss meetings. This decision merely says
that HCFA cannot use the IMD exclusion as an all-inclusive mechanism to
prohibit such funding. Whether HCFA has other means to reach this issue
is outside the scope of this decision.
II. Background.
Granville House, Inc., is a non-profit Minnesota corporation
operating three residential chemical dependency treatment centers: Team
House, for men aged 17 and over; Jane Dickman House, for women aged 16
and over; and the Warren Eustis House, for adolescents aged 13-18. All
residents in these facilities are admitted with a diagnosis of
alcoholism or chemical dependency, and come to Granville after
detoxification. Treatment at Granville House is modeled after the
Alcoholics Anonymous (AA) approach and includes educational and social
services, individual, group, and family therapy, and counseling by
recovered alcoholics. /3/
(4) Each Granville facility is licensed by the State of Minnesota and
has received accreditation under the consolidated standards of the Joint
Commission on the Accreditation of Hospitals (JCAH) for Child,
Adolescent, and Adult Psychiatric, Alcoholism and Drug Abuse facilities.
Team House has been certified by Minnesota as an Intermediate Care
Facility (ICF); Minnesota has said the others are certifiable as ICFs.
Crt. Tr. II, p. 142; Minnesota/Granville brief, p. 24. /4/
When the Granville House program began in 1963, it was funded through
private sources. It first began receiving federal money in 1972 under
Title IV-A of the Social Security Act, and then, from 1974 on, under
Title XX. That funding does not appear to be available now and
Granville has sought Medicaid funds.
Although there are no specific exclusions in the Medicaid statute for
funding residential chemical dependency treatment centers, funding is
precluded for care provided to patients between the ages of 21 and 65 in
an IMD. 42 U.S.C. 1396d(a). /5/ The provisions of law are quoted
below. Granville was informed by the State of Minnesota that residents
of its treatment centers are ineligible for Medicaid because the Agency
classified alcoholism as a mental disease, and therefore, the facilities
are not eligible for funding base on the IMD exclusion. /6/
Granville filed suit in the U.S. District Court for the District of
Minnesota in 1980 seeking a declaration that alcoholism is a complex,
multi-faceted medical condition, not a mental disorder, and that
treatment of alcoholism in a certified ICF qualifies for federal
Medicaid funds. /7/ The District Court found that HCFA's (5)
classification of alcoholism as a mental disease was unreasonable and
therefore the characterization of Granville's facilities as IMDs was
arbitrary and capricious. Granville House, Inc. v. Department of Health
and Human Services, 550 F. Supp. 628, 638 (D. Minn. 1982).
HCFA appealed to the U.S. Court of Appeals for the Eighth Circuit.
The Court noted that evidence offered by Granville in the District Court
proceedings raised a serious question concerning whether alcoholism is
properly viewed as a mental disease. The Court remanded the case to the
District Court with directions to allow the Board to decide if HCFA
acted reasonably. Granville House, Inc. v. Department of Health and
Human Services, supra. n8
Our decision below discusses (1) what Congress intended when it
prohibited federal funding for services in IMDs; (2) whether an
alcoholism treatment facility is necessarily an IMD because HCFA
determined that alcoholism is a mental disease; and (3) whether
Granville's services are Medicaid eligible even if Granville is not an
IMD.
III. What Congress meant an "institution for mental diseases" to be.
Section 1905(a) of the Social Security Act (42 U.S.C. 1396d(a))
defines "medical assistance" for purposes of Medicaid. The section
lists the following among the types of eligible services:
(1) inpatient hospital services (other than services in an
institution for tuberculosis or mental diseases);
* * *
(4)(A) skilled nursing facilities services (other than services in an
institution for . . . mental diseases) . . .
* * *
(6) (14) Inpatient hospital services, skilled nursing facility
services, and intermediate care facility services for individuals 65
years of age or over in an institution for . . . mental diseases;
(15) intermediate care facility services (other than such services in
an institution for . . . mental diseases) . . . .
At the end of the list of services in section 1905(a), following (but
not part of) subsection (18), the Act further excludes "services for any
individual who has not attained 65 years of age and who is a patient in
an institution for tuberculosis or mental diseases."
The Act does not define "institution for mental diseases" or "mental
diseases." HCFA has the following definition in its regulations:
"Institution for mental diseases" means an institution that is
primarily engaged in providing diagnosis, treatment or care of persons
with mental diseases, including medical attention, nursing care and
related services. Whether an institution is an institution for mental
diseases is determined by its overall character as 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 CFR 435.1009; see also 42 CFR 440.140(a)(2).
While HCFA has a regulation defining the term "institution for mental
diseases," it has no regulation defining "mental diseases" for
purposes
of the IMD exclusion. HCFA relies on the "International Classification
of Diseases, Adapted for Use in the United States" (ICD) (discussed
below).
In Minnesota v. Heckler, already mentioned, the U.S. Court of Appeals
for the Eighth Circuit reversed a Board decision (No. 231) upholding a
HCFA determination applying the ICD to nursing homes in Minnesota. The
Court held that the "cardinal gauge" to (7) distinguish IMDs and ICFs
was the nature of care and treatment given to patients at any given
facility. /9/
(8) The Eighth Circuit reached its conclusions based on a review of
legislative history, but provided only limited guidance on
distinguishing the kinds of treatment that only an IMD, as opposed to a
general ICF, would provide. The Court noted, as the Board had in
Decision 231, that the IMD restriction dates to 1950, and was based on
the reasoning that long-term care for mental illness was traditionally a
responsibility of the states. Minnesota v. Heckler, p. 863, and cases
cited. /10/ The Court observed that IMD treatment would include, at a
minimum, treatment similar to inpatient psychiatric hospital services as
defined in the Act, and, generally, "a higher degree of care and
treatment than is provided by facilities which only offer SNF or ICF
services." Id., p. 866.
Trying to define precisely what Congress intended HCFA to do for
alcoholism under Title XIX is impossible. Neither the Act nor any
legislative history says explicitly that facilities which treat
alcoholics are, or are not, IMDs. Below are our observations about
legislative history and the parties' arguments about it.
We believe that the view of Granville that only mental hospitals
should be considered IMDs is incorrect. We will not deal with this at
length, because the Eighth Circuit and this Board have already addressed
this issue: the Court decided that IMD treatment, at a minimum,
includes the kind of care provided in psychiatric hospitals. While the
court did not define precisely what further kinds of care characterize
an IMD, its decision certainly did not restrict IMD care only to the
kind provided in mental hospitals. Minnesota v. Heckler, p. 866. The
Board reached essentially this conclusion in its earlier decision, and
we incorporate that analysis here. See, Decision 231, pp. 7-13.
Granville's argument would not be dispositive even if accepted at face
value, for if we were to conclude that only a mental hospital was an
IMD, the dispute would simply become whether a given ICF should then
fairly be characterized as a mental hospital. One of the hidden issues
in IMD disputes is (9) that state mental hospitals-- which Congress
generally did not want federally funded--have, through
deinstitutionalization in recent years, delivered many mental patients
at the doorsteps of ICFs. The real issue is whether these facilities
have become the functional equivalents of the state asylums which
Congress refused to fund.
HCFA made a lengthy and articulate argument focusing on various
congressional enactments since the original IMD exclusion, designed to
show by inference, since they could not show by explicit legislative
pronouncement, what Congress meant by the IMD exclusion. HCFA argued
essentially that Congress saw funding for mental disorders as a state
responsibility, that Congress used other mechanisms to fund alcoholism
treatment, and that Congress considered alcoholism a mental disorder.
As to HCFA's arguments that Congress generally considered funding for
treatment of mental disorders, under Medicaid and otherwise, as a state
responsibility, we do not disagree. But the generality of this concept,
and the collateral evidence from legislative history in support of it,
are not sufficiently dispositive on the issue before us to do more than
provide support for the threshold presumption that an institution may be
an IMD if there are many alcoholics in it, and that further inquiry is
needed. Given the Eighth Circuit's decision requiring examination of
treatment and care, and given evidence concerning current views of the
nature and treatment of the unique and complex disease of alcoholism,
HCFA's generalization about congressional views on mental diseases is
insufficient to justify a per se exclusion of all treatment of all
alcoholism under Title XIX. /11/
HCFA also argued essentially that other federal grants are available
for treatment of the mentally ill in general and for alcoholics in
particular, indicating that Congress saw fit to use these mechanisms
rather than Medicaid. HCFA brief, pp. 39-41, 46-48. This argument
refers to assistance under the Community Mental Health Centers Act and
subsequent amendments. It is true, as HCFA pointed out, that there are
indications in legislative (10) history that Congress "tailored" the
Community Mental Health Centers Act to avoid "the Federal government
assuming the traditional responsibility of the States, localities and
the medical profession for the care and treatment of the mentally ill."
HCFA brief, p. 40. But, of course, this does not specifically address
funding for alcoholism under Title XIX. Furthermore, despite the
rhetoric about impinging on state responsibilities for the mentally ill,
it is clear that Congress has provided funding for programs for the
mentally ill, directly and indirectly, in a variety of ways: for those
under 21 and over 64 in Medicaid; for all those in ICFs and SNFs (as
long as they do not so predominate as to render the facility an IMD
under HCFA's criteria); and, notwithstanding the quotation above, in
the Community Mental Health Centers Act as well. The general preclusion
on involvement in the states' responsibility to fund treatment for
mentally ill persons is a policy now full of holes. Furthermore, the
mere fact that community mental health centers can treat alcoholics does
not in any reasonable way rise to the status of an implied preclusion on
funding for them in Medicaid or other programs. Indeed, one might as
easily argue that belated recognition by Congress in the Community
Mental Health Centers Act that alcoholism needed federal support augurs
for support under Title XIX. In any event, we conclude that merely
because Congress provided funding for community mental health centers
which could treat alcoholism, among other mental health problems, there
is an insufficient basis to say that Congress intended to preclude
Medicaid coverage for facilities which treated alcoholics. Congress
never said so, and the evidence from legislative history is entirely too
conjectural to be dispositive.
HCFA also argued that Congress considered alcoholism to be a mental
disease. HCFA says the "most explicit" statement is contained in
legislative history of the Community Mental Health Centers Amendments of
1970, where a Senate Report said that "alcoholism is a major mental
health problem" and a Conference Report referred to the "mental or
emotional disability" of "adolescent narcotic addicts or drug abusers."
See HCFA brief, p. 48, and citations therein. We believe that these
merely incidental, and essentially lay, references to the character of
alcoholism, drawn from legislative history of a statute other than the
one in issue, are too insubstantial to provide dispositive guidance on
an issue as complicated as what the nature of alcoholism is, and too
remote from the Medicaid context that we are dealing with here.
Furthermore, in a larger sense, there is no real dispute--under Medicaid
or otherwise--that alcoholism is a "major mental health problem."
In
that sense, so is stress. But this merely begs the question whether
this "major mental health problem" is of the kind that can cause an
ICF
to be characterized as an IMD.
(11) We return, then, to the one substantial piece of legislative
history related to IMDs: Congress's apparent reluctance to provide
funding for state mental institutions (see, e.g., note 10 above). There
was testimony from one of Granville's experts that state mental
hospitals were, in the 1960's and earlier, the primary place where
alcoholics received medical treatment, and that one found many
alcoholics in such institutions. DGAB Tr., pp. 76-85. HCFA cites to
legislative history of certain 1968 amendments to the Community Mental
Health Centers Act indicating the same thing. HCFA brief, p. 46.
But evidence in this case indicates that it is not enough to merely
say that because state mental institutions at one time contained many
alcoholics, institutions treating alcoholics now are just the type of
institutions Congress had in mind when they precluded funding for IMDs.
There was unrebutted testimony that alcoholics went to state mental
institutions simply because there was no where else for them to go in
those days, that they received little or no treatment there, that they
remained there only until they "dried out," and that they generally
left
in 30 to 60 days. DGAB Tr., pp. 76-77. The legislative history cited
by HCFA on this point stated that the incidence of alcoholics in mental
hospitals "can be directly traced to the lack of available community
resources." HCFA brief, p. 46. Mental hospitals apparently were merely
and coincidently short-term warehousing facilities for alcoholics, as
opposed to the long-term treatment we generally associate with
schizophrenics and others with serious mental illnesses in state
asylums. In fact, there was testimony that the first effective
treatment in Maryland for institutionalized alcoholics occurred when
they were taken out of the institution to an Alcoholics Anonymous
program, based on which alcoholics later were gathered in one special
treatment unit. DGAB Tr., p. 77. Thus, even when alcoholics
historically were found in state mental institutions, their status was
unique and not necessarily synonymous with the status of those whom we
typically consider as seriously mentally ill.
More important, as we discuss below, circumstances have changed
markedly since those early days. General psychiatric warehousing of
those suffering only from alcoholism clearly is considered inappropriate
now, so that even if one could say definitively that Congress originally
meant to preclude Medicaid eligibility of facilities treating
alcoholics--which one cannot do--the premises on which that conclusion
would be based no longer exist. And the changed circumstances do not
involve the same kind of deinstitutionalization problem arguably seen
with other disorders: unlike deinstitutionalized schizophrenics, we are
not dealing with a hidden agenda of moving warehoused persons from
mental (12) institutions to ICFs; rather, we are dealing with
facilities which, unlike those early state institutions, offer a
treatment methodology, generally non-psychiatric, uniquely tailored to
alcoholism.
Based on the foregoing, we have concluded that neither the Act nor
its legislative history (nor other cited legislative history) supports
the reasonableness of finding an institution to be an IMD merely because
it is occupied by a substantial number of alcoholics. The Act and
legislative history, when viewed in the light of the decision in
Minnesota v. Heckler, could support a standard, not presently
articulated, under which some treatment of alcoholism rises to a status
which will render an ICF an IMD. But we do not believe that the Act and
its legislative history necessitate the conclusion that a facility is an
IMD based on the provision of incidental psychological support and
relatively innocuous social and behavioral programs with little or no
psychiatric intervention tailored specifically for the problems of
alcoholism.
IV. HCFA's determinations on alcoholism.
A. HCFA's use of the International Classification of Diseases.
The Agency relied on the International Classification of Diseases of
the World Health Organization, 9th Revision Clinical Modification, 1979
(ICD) to define mental diseases. The ICD classifies "alcohol dependence
syndrome" as a mental disorder (section 303). /12/
(13) We find that it is reasonable for the Agency to rely on the ICD
for guidance generally on what are mental diseases, but for reasons
explained below, it is not reasonable to treat the ICD as conclusive for
determining whether alcoholism should be viewed exclusively as a mental
disease.
We recognize that the ICD is a generally accepted guide for the
classification of diseases. But, it is undisputed that the ICD
classification system was not prepared with Medicaid or the IMD
exclusion in mind. Dr. Robert Spitzer, an Agency witness on disease
classification, who participated in development of the ICD, said that
the ICD classifiers did not concern themselves with reimbursement
schemes or the reimbursement consequences of the classifications. Crt.
Tr., pp. 233-235; DGAB Tr., pp. 124, 130. /13/
The Agency argued that it is reasonable to rely on the classification
system because the fact that the system is not reimbursement based means
that it is therefore purely scientific and neutral. That may be true,
but our interest here is not purely scientific and academic. Further,
no classification system is prepared in a vacuum; there is always a
purpose served. Dr. Spitzer explained the purpose of the ICD in part:
Disease classification serves as a basis of a language for
professionals to communicate with each other and it indicates to the
various subspecialties primary areas of responsibility. It is also a
necessary condition for research in a field to agree upon terminology
and definition of categories so that comparisons can be made between
different studies so that researchers know what kind of cases they are
talking about.
DGAB Tr., p. 116.
These purposes do not conflict with Medicaid purposes, but they are
not specifically and directly related to the classification of
alcoholism as a mental disease as Congress used the term for (14)
purposes of excluding IMDs from Medicaid funding, nor do they relate
directly to the type of care and treatment which would give a facility
the overall character of an IMD. Labeling diseases as a communication
tool is a valuable activity. However, we do not impinge upon that value
when we question whether the label should be allowed to exercise a per
se control over substantive decisionmaking in the face of evidence that
raises substantial questions about the label's absolute accuracy as
applied to all cases that might fit under it.
Dr. Spitzer explained that the ICD classifies disorders primarily
based on their symptoms rather than the etiology (cause) or treatment of
the disease. Dr. Spitzer testified that the ICD generally classifies as
mental disorders behavioral conditions for which the ultimate cause is
still unknown. He explained:
We don't decide whether an illness is a mental disorder based on
whether or not we think we understand the etiology; that is, the
decision is based primarily on the nature of how the illness presents
itself. If it presents itself in disturbances in behavior or in
psychological functioning then it has always traditionally been
classified as a mental disorder.
DGAB Tr., pp. 117-118.
Although we accept as valid the ICD factors and criteria in
classifying mental diseases generally, we find below that sufficient
evidence has been presented to show that alcoholism is a complex,
multi-faceted disease with physical and mental components. It therefore
cannot reasonably be characterized only and exclusively as a mental
disease for purposes of applying the IMD exclusion.
The ICD may be perfectly valid in labeling alcoholism as a mental
disease for purposes of facilitating communication among scientists;
however, the somewhat facile label cannot, in the face of evidence about
alcoholism, be used as a substantive determinate of the fundability of
all kinds of treatment for all alcoholics. The label, useful as a
general device, may be inaccurate in a specific case. The use of it in
all cases to preclude funding is, then, a misuse. In regard to
alcoholics, and in the context of Medicaid, the label has a valid use as
a triggering device, leading to further inquiry about the nature of
particular treatment for particular alcoholics, in accordance with
Minnesota v. Heckler.
Dr. Spitzer testified that trying to categorize diseases based on
treatment would be impracticable. DGAB Tr., p. 118. We do not (15)
disagree, nor are we suggesting that HCFA do so. We are saying that
under Medicaid, once one is within the category of alcoholism, that the
inquiry does not end: one must go further and determine the nature of
the treatment rendered. This is not inconsistent with the purposes nor
general use of the ICD.
Further, the ICD approach in classifying substance abuse disorders as
mental disorders results in including under that label conditions which
probably would not be considered mental diseases as Congress used the
term. The District Court considering the Granville case noted that the
ICD "behavioral/symptomatic approach suffers from over inclusiveness."
550 F. Supp. at 634. For example, at section 305.1, the ICD classifies
"tobacco use disorder" as a mental disorder. Even if we do not know
exactly what Congress intended by "mental diseases," we feel certain
that Congress did not intend to include smoking in that category
(neither, arguably, did Congress intend to spend Medicaid funds on
smoking cessation clinics; but merely because something is not a mental
disease does not guarantee Medicaid funding).
Therefore, we believe it is reasonable for the Agency to rely
generally on the ICD; we said as much in Decision 231. But, given the
unique situation with alcoholism, we find that the ICD label is not
conclusive in this case. This decision is limited to alcoholism and in
no way applies to any other classification in the ICD.
B. What the record shows about whether, aside from ICD
classification, it is reasonable to characterize alcoholism as a mental
disease.
The Board had before it considerable evidence, developed both before
the District Court and the Board, concerning the nature and treatment of
alcoholism. Specialists cannot agree about the disease, and admit they
do not have all the answers. The disease involves both physical and
mental components. Psychiatrists may have a role to play for some
alcoholics, but generally, psychiatric intervention is not necessarily
useful and may even be counterproductive. Knowledge of, and treatment
for, the disease is still evolving; views have changed markedly over
the past several decades.
As the evidence indicates, it is simply impossible to state
definitively whether alcoholism, as a general matter, is or is not a
"mental disease." Treatment in some cases may be intensively
psychiatric, while in other cases may be no more intrusive than the
support provided for a person who needs to stop smoking.
We find, therefore, that alcoholism is a complex and unique disease,
with a complex etiology still not understood, involving a wide range
(16) of physical and mental symptoms, and a wide range of medical (and
non-medical) interventions. The most reasonable thing one can say based
on the evidence is that medical categorization of all alcoholism under
any label--be it mental disease or physical disability--is simplistic
and as likely to be wrong as right in a given case.
Below are some representative portions of the record indicating the
foregoing.
Granville acknowledged that alcoholism is a complex, multi-faceted
disease. Granville presented testimony on the physiological components
of alcoholism and contended that the root of alcoholism is a dependence
on alcohol. Witnesses testified that addiction and dependency cannot be
explained psychologically. Crt. Tr. II, p. 93. Granville's witnesses
presented unrebutted testimony that it is not known why some people who
drink become alcoholics and others do not, and that attempts to develop
a psychological profile of who is susceptible to being an alcoholic and
who is not have not been successful. Crt. Tr. II, pp. 13-14.
Witnesses also testified that mentally healthy people can develop an
addiction to alcohol. Crt. Tr., p. 54. Dr. Le Clair Bissell testified
that mental health has no impact on whether the disease is cured in that
an alcoholic who has stopped drinking and is mentally healthy cannot
safely return to drinking alcohol. /14/ DGAB Tr., pp. 57-58.
Granville acknowledged that there were psychological symptoms of the
disorder, but witnesses testified that just because there are behavioral
symptoms does not mean necessarily that alcoholism is a mental disorder.
Dr. Richard O. Heilman said: /15/
the assumption was made that, if a person was not able to control
when or how they used a chemical substance, that they somehow have got
to be mentally ill or psychologically disturbed--which is a bad
assumption because it can make people sick who are not.
Crt. Tr. II, p. 83.
(17) Dr. Bissell said that she did not believe that all diseases
which exhibited themselves through behavioral symptoms should be called
mental diseases. DGAB Tr., p. 48. Dr. David Starret said that he does
not believe that the focus on symptoms properly define alcoholism as a
mental disease. /16/ He testified that that was too broad a factor
because all diseases have mental and behavioral manifestations. DGAB
Tr. II, p. 36.
Granville experts also testified that the prevailing view among
clinicians treating alcoholism is that it is something other than a
mental disease. DGAB Tr., p. 53. Granville introduced a copy of a
resolution dated October 1983, adopted by the American Medical Society
on Alcoholism (AMSA). DGAB Tr., p. 51. Dr. Bissell described AMSA as
the largest organization within the U.S. medical community dedicated to
the diagnosis and treatment of alcoholism. The resolution said:
Based on many years of physical experience, reinforced by recent and
continuing research into the genetic, biochemical and physiological
aspects of the effects of alcohol on living systems and of alcoholics
and their families, the American Medical Society on Alcoholism finds
that alcoholism is a complex primary physiological disease, and neither
a primary behavior disorder nor a symptomatic manifestation of any other
disease process. (emphasis supplied)
Granville also cited to an excerpt of a manual for physicians
published by the American Medical Association in 1967 which supports the
proposition that the AMA considers the disease complex, not simply a
mental disorder. The excerpt said that alcoholism is an:
illness characterized by preoccupation with alcohol, which is a kind
of psychic dependency, and a loss of control over its consumption, such
as to lead usually to intoxication if drinking is begun. By chronicity,
by progression and by tendency towards relapse, it is typically
associated with physical disability, and impaired emotional,
occupational and/or social adjustment as a direct consequence of
persisent and excessive use.
Granville Court of Appeals brief, p. 22.
(18) Several of Granville's witnesses testified that the perception
of alcoholism as a mental disease is incorrect and stems from the
historical treatment of alcoholism as being caused by some underlying
mental disease. Dr. Robert F. Premer said that the
classification doesn't really have any relationship to the facts--as
we know them today--about alcoholism and chemical dependency.
Crt. Tr. II, p. 38. Dr. Starret said:
I think to the extent that they include it (alcoholism) in this area
(mental diseases), it is partly a result of habit, partly a result of
history, and partly a result of simply not thinking about it very much.
DGAB Tr. II, p. 36.
The record also includes testimony by Dr. William Mayer before two
congressional committees. /17/ Dr. Mayer said before the Subcommittee
on Health:
it's only the tremendous advances in our research in recent years
that has given us real assurance that the disease is not a psychiatric
disorder.
He added that he acknowledged how it was classified in the ICD under
the general heading of "psychiatric diseases" but said:
a look at history shows that that it is partly because until not very
long ago it wasn't even considered a disease at all; it was considered
misbehavior, and some kind of moral decay or degeneracy or weakness of
will.
Granville witnesses testified that alcoholism should be regarded as a
physiological disease because of many recent developments linking
genetic factors to alcoholism. Dr. Maxwell Weisman testified that there
has always been a predisposition for alcoholism in people who have an
ancestry of alcoholism. He said further:
(19) Many years ago when I was asked . . . is alcoholism a genetic
disease, I would say then it runs in families but that is not evidence
that it is a genetic disease because many things run in families
including bank presidencies and yet nobody has found a gene for bank
presidencies. Toay in the question of alcholism, I cannot answer as
flipply as all that. There is no doubt that there is a genetic basis
for alcoholism . . . .
DGAB Tr., p. 71.
Dr. Mayer's statement at the Joint Hearing also spoke of advances in
genetic research. It said:
We believe very strongly--and our scientific evidence shows good
evidence--that it has genetic components and that it has important
metabolic abnormalities connected with it. Our research is progressing
at a rate unprecedented in the past now that the disease is becoming
respectable, and we are finding out more and more about the true nature
of dependency upon alcohol and other drugs.
HCFA argued that the classification of alcoholism as a mental disease
is correct primarily because alcoholism manifests itself through
behavioral symptoms and that the treatment for alcoholism is
non-physical in nature, and is designed to alter the patient's mentation
and behavior. HCFA brief, p. 9.
HCFA said that if a wholly physiologic cause for alcoholism were
discovered and if there were a wholly effective physical treatment, then
alcoholism would probably no longer be classified a mental disorder.
HCFA acknowledged that unlike other mental diseases, alcoholism involves
taking a substance and developing dependence on it, but that, HCFA
argued, just makes alcoholism and chemical dependency different from
other mental disorders. It does not take it out of mental disorder
category.
HCFA said that Granville's witnesses and the AMSA resolution indicate
that they believe alcoholism is a physiological disease because it has a
multi-factorial etiology including a possible genetic component. HCFA
maintained that the presence of physical symptoms and possible physical
etiology does not answer the question of whether it is a mental disease.
HCFA's witnesses testified that the same can be said for other mental
diseases such as schizophrenia, and that most diseases have
multi-factorial etiologies. HCFA brief, pp. 19-20. Further, the Agency
said that no specific cause for alcoholism has been shown.
(20) To answer the argument that alcohol causes alcoholism, Dr.
Bruce Rounsaville made the analogy that it is like saying that the cause
of wrist slashing is sharp instruments. /18/ He said, however, "the
important aspect of wrist slashing is this uncontrolled behavior that is
self destructive and thought in our society to be abnormal." DGAB Tr.,
p. 200.
HCFA argued that it is appropriate to focus on the primary symptoms
of a disorder when classifying diseases, especially with mental diseases
because their etiology is not known or multi-factorial. HCFA argued
that when alcoholism is considered in terms of primary symptoms, it fits
easily into the category of mental disorders. Dr. Rounsaville testified
that:
the primary characteristics of mental disorders is their
manifestations, their signs and symptoms are either psychological,
mental or behavioral.
DGAB Tr., p. 193.
Dr. Rounsaville said that
treatment of the physical addiction . . . is duck soup. . . . It is
not a problem. . . . But after the detoxification process is over and
routinely that is a max of 30 days anyway, then the real treatment
begins which is to try to control behavior of drink seeking, the
maladaptive drinking behavior.
DGAB Tr., p. 196.
Dr. Spitzer described some of the psychological manifestations of
alcoholism. He said:
if there is a craving for alcohol and if the individual cannot feel
normal and comfortable without drinking, then there is a behavioral
disorder.
Crt. Tr., p. 203.
(21) Dr. Spitzer acknowledged that there is a physiological basis to
craving but said that craving is a psychological symptom. He said, "It
is experienced psychologically." DGAB Tr., p. 142. Dr. Spitzer said
that the manifestations of alcoholism are behavioral because:
the way that we know that somebody has the disease (alcoholism) is
because of disturbance in their behavior. It is the taking of alcohol
in a maladaptive, compulsive way that is the disease.
DBAG Tr., p. 120.
He explained that primary symptoms of alcoholism are denial, loss of
control over the use of alcohol and the inability to refrain from use of
a substance. He identified these symptoms as behavioral. Dr.
Rounsaville testified:
And, denial--that is failure to confront the reality of the
situation--is a cornerstone of all psychological therapies and it is
discussed in any discussion of psychological treatments, the need to
engage the patient in a contract and accept responsibility for his
behavior.
DGAB Tr., p. 158.
HCFA argued that it is telling that alcoholism, while a separate
category from other mental disorders in health insurance coverage in
Minnesota and some other states, remains a commitable condition under
Minnesota law. HCFA said that in most states civil commitment for
alcoholism is permissible. HCFA brief, p. 14.
HCFA argued also that the JCAH has developed special requirements for
the accreditation for facilities that treat behavioral, as opposed to
physical problems, and that this reflected JCAH awareness that patients
with behavioral problems require different types of care than do
patients with physical problems. HCFA brief, p. 15.
HCFA and Granville also presented evidence concerning the treatment
of alcoholism and how that speaks to whether it is or is not a mental
disease. Though the parties agreed that the Alcoholics Anonymous
approach is effective and that it is properly characterized as
"psycho-social in nature," the parties reached different conclusions
about what that meant.
HCFA argued that the treatment indicated that alcoholism was a mental
disease because the facilities focused on treatment (22) which is
intended to keep the alcoholic from relapsing once the withdrawal from
alcohol and the detoxification process is completed. HCFA pointed out
that after the detoxification period there are no physiological
treatments for alcoholism with the exception of the use of the drug
Antabuse. HCFA argued that even using Antabuse is behavioral treatment
because Antabuse does not cure alcoholism but instead makes a person
nauseated with the hope that the person will then associate drinking
with nausea. HCFA described the use of Antabuse as a "classic
conditioning." HCFA brief, p. 13.
HCFA said that even if there is a genetic basis for the disease, that
is not what is being treated. HCFA said that instead of physiological
approaches, Granville's treatment approach, based on the Alcoholics
Anonymous model, includes individual group therapy, peer pressure, role
modeling, education--all psychological or psycho-social techniques. Dr.
Rounsaville testified that the first step in the AA process--admitting
powerlessness over the alcohol--is simply a way of dealing with denial,
which is a psychological concept. Dr. Rounsaville described
psychological treatment as:
any treatment that has as its mechanism of action something which
involves changes in a person's mentation or cognition and that usually
does not involve the manipulation of one's body so that they are
mediated by talk usually and this would include AA. It involves
teaching. Teaching is certainly a psychological mechanism. It is used
in psychiatry all the time.
DGAB Tr., p. 202.
Granville's witness, Dr. Weisman, described Granville's treatment
program as "behavioral therapy" and testified that psychiatrists have
not been successful treating alcoholism. DGAB Tr., p. 81. Dr. Weisman
said that a psychiatrist is only necessary when there are other mental
illnesses in addition to alcoholism. He said:
I was failing when I was functioning as a well trained psychiatrist
in the treatment of alcoholism until I began to realize that alcoholism
was not primarily an emotional disorder. It is not a psychiatric
disease but that it may have psychological components and certainly some
psychological consequences, but it was escaping me when I tried to treat
it as a psychiatric disease.
DGAB Tr., p. 74.
(23) Dr. Spitzer agreed that "psychiatrists generally recognize that
they don't have an awful lot to offer--as psychiatrists--in the
treatment of alcoholism." Crt. Tr., pp. 137-138. And further, Dr.
Rounsaville agreed that after diagnosis and detoxification, "there is
nothing that uniquely psychiatric about the treatment of alcoholism."
DGAB Tr., p. 220.
While Dr. Rounsaville acknowledged that psychoanalysis has been
largely unsuccessful in treating alcoholism, however, he pointed out
that other mental diseases have similarly not been aided by that
approach. He said that psychiatric training today deemphasizes
psychoanalysis and instead focuses on psychological techniques in
dealing with alcoholism and other mental disorders.
Dr. Rounsaville testified that in Connecticut most of the alcoholism
treatment programs are within psychiatric hospitals, under the
supervision of psychiatrists. DGAB Tr., p. 216. Granville maintained
that their treatment was not of that nature. Granville's experts
identified the AA based programs as based on fellowship, group support,
and self help, provided by counselors who are not medical professionals,
rather than psychiatric intervention. Granville differentiated the care
in its facilities from that provided to the mentally ill in psychiatric
facilities by noting, for example, that residency at Granville requires
that an individual be capable of self-care in areas of planning, goal
setting, judgment and interaction with the world at large. Granville
residents must have or seek outside employment or attend school.
Deposition of Dagny Christiansen, p. 42. Dr. Woods described the care
as "rehabilitation care" and "care of wellness." Crt. Tr.,
p. 107.
C. Board analysis of the evidence.
The following things are undisputed: that alcoholism is a medical
disease; that it can be a primary disease, and not an underlying
symptom of a mental disorder as was once assumed; and that a primary
disease can be a mental disease as well as a physical disease.
A wealth of evidence supports our conclusion that alcoholism has a
wide range of physical and mental components, and a wide range of
treatment methodologies, most of which are non-psychiatric. It is not
reasonable to label the disease as exclusively a "mental disease,"
nor
to imply, by the use of that label that all, or even most, alcoholics
suffer from, and need the kind of treatment appropriate for the kinds of
serious mental illnesses one generally associates with a state asylum.
There is clearly physical dependence involved in alcoholism, as well as
(24) physical manifestations; there is also clearly a mental component
to the disease which is manifested through the maladaptive use of
alcohol and through treatment focused on modifying that behavior. /19/
Often, however, treatment may consist of nothing more substantial
than exposing the alcoholic individual to the persuasions of a reformed
peer, or the inducements of a clergyman. We do not disagree that this
is "psycho-social" or "behavioral modification." But this
elevated
terminology disguises much that appears to be far from the sort of
professional medical and psychiatric treatment one associates with the
term "mental disease" and treatment in state mental asylums. Diabetics,
depressed persons, stroke victims, and others with many sorts of
problems with behavioral consequences are likely to receive
"psychological" therapy in ICFs of more intensity than that encountered
by many alcoholics.
Granville implied that if we support its position that alcoholism is
a multi-faceted disease, Granville's facilties cannot be IMDs. We
reject that conclusion. Because the disease is multi-faceted does not
mean that the mental components can be ignored. As we have already
said, and will discuss further below, the Eighth Circuit in Minnesota v.
Heckler held that treatment is a critical aspect in determining whether
a facility is an IMD. This cuts both (25) ways in this case. It is
agreed that alcoholism can be arrested, not cured, and that treatment
focuses on changing the alcoholic's behavior so that there is no return
to drinking. Notwithstanding that some treatment for alcoholics is so
innocuous that it cannot definitively be termed treatment for a "mental
disease" if the consequences of that label are denial of funding, it is
also clear that there may be more intensive treatment methodologies
which, when predominant in a facility, would give it the overall
character of an IMD. We discuss this below.
D. What type of care and treatment would give a facility an overall
character of an IMD?
HCFA has shown that there is a mental component to treatment of the
disease, and it is reasonable for HCFA to examine alcoholism treatment
facilities to determine if they are IMDs. As we have discussed, the
regulatory definition of an IMD requires a determination that the
overall character of a facility is that of an IMD. HCFA has said that
the guidelines it developed to supplement the regulations were intended
to assist reviewers in gathering evidence concerning whether the overall
character of a facility is that of an IMD. Moreover, HCFA acknowledged
that the guideline concerning the number of patients with mental
disorders is not determinative in establishing that a facility is an
IMD, and that it considers treatment in a way which is consistent with
the Eighth Circuit's decision in Minnesota v. Heckler. We find, however,
that applied to facilities such as Granville, neither the regulations
nor the supplementary guidelines provide sufficient notice as to when
required treatment which is not psychiatric in nature is still
sufficient to render an alcoholism treatment facility an IMD. /20/
As we have said, the treatment we find at Granville's facilties
includes the Alcoholics Anonymous approach which is designed to promote
abstinence from aocohol. The nature of the treatment is essentially
this: educational and social services, coupled (26) with individual and
group therapies often conducted by recovered alcoholics. /21/
HCFA pointed to group therapy treatment as psychological as opposed
to physiological and argued that this is the same type of "talking
therapy" used in treatment of diseases which are clearly mental
diseases. This may be true. However, HCFA has not established, by
regulation or through its guidelines, a relationship between this mode
of treatment and the overall character of an IMD.
HCFA argued that it revised its cirteria to emphasize treatment in
determining whether a facility is an IMD. The revised guideline says,
"More than 50 percent of the patients have mental diseases which require
inpatient treatment according to the patients' medical records." HCFA
brief, p. 29. The difficulty is that this can be as easily read as
purely diagnosis-related as not; if the diagnosis of alcoholism
requires "mental" treatment (as HCFA feels it does), then that could
end
the inquiry under the revised guideline. This is a long way from a
criterion that considers the nature of treatment rendered in a
particular facility, regardless of the diagnoses.
There is some guidance in the statute and regulations as to what kind
of facility is definitely an IMD: we know Congress considered
psychiatric hospitals to be IMDs and we know that Congress considered
"inpatient psychiatric facilities" to be IMDs. HCFA, by regulation,
elaborated on what kind of treatment these facilities would provide: the
regulations speak of persons with psychiatric conditions, under a plan
of care developed by (27) a psychiatrist, receiving active treatment.
42 CFR Part 441, Subparts C and D. Although the Eighth Circuit decision
emphasized that treatment is of paramount importance in determining if a
facility is an IMD, it did not further define what degree of care
constitutes IMD care. The Eighth Circuit said at page 866 only that IMD
care certainly includes "treatment similar to inpatient psychiatric
hospital facilities as defined for individuals under 21, in section
1396d(h)(1)(B)." The court offered no definitive guidance on what else
might be included.
We would not presume to impose any view we may hold on HCFA. It is
HCFA's responsibility to develop an appropriate standard to determine
what treatment is IMD-type care for alcoholics. We know only that
psychiatric services probably would be IMD care and that an informal
chat between a recovered alcoholic and a resident at Granville is
probably not IMD care. We are in no position, however, to decide
whether the levels in between are IMD care. We merely state (a) that
the continuum of care provided in Granville's facilities raises the
question whether they have the overall character of an IMD, but (b)
generally, much of the treatment of alcoholism does not rise to the
status of care of a mental disease, and (c), in any event, HCFA has no
standards other than an overbroad per se guideline based primarily on
the diagnosis of alcoholism.
We therefore conclude that while it may not be unreasonable for HCFA
to determine that these facilites are IMDs, nothing in the Medicaid
statute or currently in the regulations or guidelines supports this
result based on the record here, and therefore, HCFA cannot deny funding
for these types of facilities without providing further guidance as to
when the nature of the treatment renders them an IMD. The states (and
providers) need to know which kinds of alcoholism treatment render a
facility an IMD, given the multi-faceted nature of the disease and the
broad continuum of care.
V. Is Medicaid necessarily available for residents in Granville's
facilities, even if the facilties are not IMDs?
Testimony by Granville about how inappropriate some ICF certification
requirements were in the context of Granville's facilities, combined
with testimony about how the treatment offered there could be
characterized as non-professional social services raised a concern in
the Board's view about the differences between the Granville facilities
and the ICFs typically reimbursed under Medicaid. In response to
questions from the Board about the availability of Medicaid funding for
Granville's services, in (28) general, HCFA developed a position which
essentially offered the following choice: either Granville's facilities
are IMDs or they are not fundable under Medicaid for other reasons.
HCFA argued that, if the Board were to accept Granville's
characterization of its treatment methodology as social, rather than
HCFA's chacterization of the treatment as psychological, funding for the
facilities under Medicaid would be precluded on the ground that it was
not medical care at all. Social services, HCFA pointed out, are
reimbursable under Medicaid only when provided as an adjunct to medical
services being provided in institutional facilities. HCFA brief, p.
33. The alcoholism treatment methodology followed at Granville's
facilities is not "physical" treatment, HCFA said; thus the treatment
must be considered medical care for a mental condition to be funded
under Medicaid. In HCFA's view, Granville could prevail here only if it
could "push alcoholism treatment as practiced at Granville out of the
realm of mental health and into the realm of physical medicine" but,
instead, HCFA contended, Granville has pushed "in the opposite
direction, out of medical care altogether." Id., p. 32.
Granville's response to the question of whether the services provided
by its facilities are Medicaid fundable, irrespective of whether the
facilities are IMDs, was simply that ICF services are fundable, so all
that is necessary is for its facilities to be certified as ICFs.
We think that there is a substantial question raised by Granville's
attempt to identify its treatment with AA methodology and the emphasis
on educational, religious, and social services, as to whether the
services are appropriately considered ICF services. If an individual
needs no more than AA counseling, we think there is reason to doubt
whether the patient needs health-related care and services in an
institution gualified as an ICF. In exploring these questions, the
Agency has at its disposal means other than the IMD exclusion, however;
the Agency can consider whether the facilities are properly qualified as
ICFs and, if so, whether the individual residents are properly certified
as needing ICF level of care under applicable utilization control
requirements. Thus, our decision does not preclude the Agency from
determining that funding is improper on a basis other than that the
facilities are IMDs.
Assuming that the Granville residents are appropriately placed in an
ICF setting and receiving ICF services, however, it does not matter that
some of the services are not, strictly speaking, medical, as we discuss
below. Nor do we agree with the Agency's (29) proposition that the only
way these services can be Medicaid covered services is if they include
psychological treatment of a type which renders the facilities IMDs.
The matter is simply not so black and white. We find the Agency
position flawed for the following reasons:
* There is no basis in the statute or regulations for saying that to
be "medical care" treatment must be either "physical" or
the type of
treatment which an IMD provides; the term "medical care" is not defined
in the Act and does not appear to have the narrow meaning which the
Agency ascribed to it. In any event, the term "medical assistance,"
which is defined in section 1396d(a) of the Act, encompasses a broad
range of health-related services, including, for example, reference to
"screening, presentive, and rehabilitative services," and "medical
care
or any other type of remedial care recognized under State law furnished
by licensed practitioners within the scope of their practice as defined
by State law."
* Assuming that Granville's residents are appropriately receiving ICF
care, the services are fundable whether or not one specifically
characterizes the condition which necessitates the care as physical or
mental. We know that alcoholism is not one or the other; that it is
related to both physical and mental health. Moreover, merely because
the treatment of alcoholism has a mental component and no physiological
treatment is known does not contradict the evidence that there is a
physical basis. /22/
In short, HCFA's analysis is based on the presumption that there are
only two reasonable characterizations of the services and this is not
the case.
Thus, while we agree with HCFA that to characterize the services as
purely social services raises a fundamental question of how they can be
Medicaid funded, we do not think that acknowledging they have a
psychological component compels the conclusion the facilities are IMDs.
(30) Conclusion.
Based on the foregoing analysis, we conclude that HCFA may not
reasonable categorize Granville's facilities as IMDs based merely on the
predominance in those institutions of persons diagnosed and treated for
alcoholism. Given the uniqueness and complexity of the disease and its
treatment, we conclude that HCFA may determine IMD status for an
institution treating alcoholism only on the basis of more definitive
rules or guidelines which enable HCFA and its constituents to better
evaluate what types of alcoholism treatment are, and are not, conclusive
of IMD status. Nothing in our decision precludes HCFA from deciding
that Granville's facilities are ineligible for Medicaid assistance on
bases other than IMD status. /1/ The parties agreed that, for purposes
of this case, what is true for alcoholism is also true for
chemical dependency generally. DGAB Tr., p. 10. Therefore, in this
decision we use the term "alcoholism" to refer to both alcoholism
and
other chemical dependencies. We refer to the transcript of the District
Court proceeding as "Crt. Tr." for the first volume and "Crt
Tr. II" for
the second volume, and to the transcript of our hearing as "DGAB Tr."
for the first volume and "DGAB Tr. II" for the second volume. The
states
of Colorado and Minnesota also participated in the Board's proceedings.
Colorado took part because it has two cases raising similar issues at
the Board. Minnesota was originally named a party defendant in
Granville's district court case, but later cross-claimed against the
Agency in support of Granville's position. /2/ On March 30,
1984, the Second Circuit issued an opinion which may conflict with that
of the Eighth Circuit on the issue of what the IMD exclusion means. We
discuss below why that decision does not change the relevance of the
Eighth Circuit's decision here. /3/ The AA philosophy was
described as teaching the concept of total abstinence from alcohol
through a 12 step process that includes the following: clients admit
that they are unable to control the use of alcohol and that their lives
have become unmanageable; that they cannot do anything about the
problem themselves because they are addicted; that they need help and
that they are going to turn their lives over to a "higher power."
Clients then assess the harm they have done in their lives to themselves
and to others, tell this to another person, usually clergy, and get
absolution. Clients then decide they are going to make amends for the
wrongs they have done, and begin to do that. Clients commit to this way
of life for their emotional and physical health. The last part of the
process includes taking this message to other alcoholics and making this
philosophy a way of life. Deposition of Dagny Christiansen, Executive
Director of Granville, Inc., pp. 38-39. /4/ An ICF is an institution
licensed by the State to provide health-related care and services to
individuals who do not require hospitalization, but who because of their
physical or mental condition require care and services above the level
of room and board. 42 U.S.C. 1396d(c). /5/ In 1972, Congress
removed the restriction for inpatient psychiatric facility services for
persons 21 and under. 42 U.S.C. 1396d(a)(16). /6/ Although HCFA
has not yet made a determination that Granville's facilities are IMDs,
HCFA said that "it seems likely that they would be fund to be IMDs."
HCFA brief, p. 30. /7/ In the District Court and Court of Appeals
proceedings, HCFA argued that this case was not ripe for
judicial review and that Granville lacks standing to bring this action.
HCFA reserved those objections here, and we express no opinion on those
issues. /8/ Shortly after it issued the Granville decision, the
Eighth Circuit issued another decision, already mentioned, involving the
question of whether other Minnesota facilities were IMDs but not
involving the alcoholism issue specifically. Minnesota v. Heckler,
supra. /9/ On March 30, 1984, the U.S. Court of Appeals for the Second
Circuit reversed the District Court decision in Connecticut v.
Schweiker, 557 F. Supp. 1077 (D. Conn. 1983), thus upholding the Board's
finding in Decision No. 231 that the Connecticut facility involved there
was an IMD. The primary thrust of the Second Circuit's opinion is that
the IMD exclusion can apply to private ICFs, as well as state mental
hospitals. In a footnote, the Second Circuit refers to the Eighth
Circuit's decision in Minnesota v. Heckler, stating that it disagrees
that HHS acted improperly in focusing on the diagnosis of patients.
Slip. op., p. 2622, note 4. The Second Circuit's only other reference
to this issue is as follows: Connecticut's principal complaint is that
the IMD definition and criteria adopted by HHS improperly focus on the
nature of patients' illnesses rather than the type of care furnished at
the facility in question. However, the IMD exclusion virtually compels
HHS to focus on the nature of the illness treated rather than the care
furnished. Except for the use of Medicaid funds to treat the mentally
ill under age 65 in general hospitals and patients under age 21 in
psychiatric hospitals, Congress has not modified the IMD exclusion to
differentiate among types of custodial facilities treating the mentally
ill. Id., pp. 2633, 2634. We have considered the effect of the Second
Circuit's opinion on this case, and we do not think the Second Circuit's
analysis is inconsistent with our decision here. The question still
remains whether Granville's facilities are treating the mentally ill,
within HCFA's definition of an IMD. As we have said and the Second
Circuit (and, indeed, the Eighth Circuit) has affirmed, the regulatory
definition is a reasonable one in light of congressional intent. But
HCFA has not shown that that definition necessarily covers Granville's
facilities, given the nature of alcoholism and the type of treatment
used for it. Moreover, even if the Second Circuit statement is
inconsistent with the Eighth Circuit decision, it is arguably dicta and
would not, in any event, control this case which is in the Eighth rather
than the Second Circuit. /10/ The original IMD exclusion was
contained in the Social Security Act Amendments of 1950, Pub. L.
81-734. The relevant House Report states: "Your committee does not
favor Federal participation in assistance to persons residing in public
or private institutions for mental illness . . . since the States have
generally provided for medical care of such cases." H.R. Rep. 1300, 81st
Cong., 1st Sess. 42 (1949). For more details on relevant legislative
history, see Board Decision No. 231, pp. 3-13; the Minnesota/Granville
brief, pp. 17-21; HCFA brief, pp. 35-51; Granville brief, pp. 7-17.
/11/ Furthermore, some of the legislative history supports the view
that, at the time the IMD exclusion was enacted, Congress thought simply
that mental illness was frequently a component of alcoholism or that
alcoholism was a symptom of some major underlying psychiatric disorder.
See HCFA brief, pp. 39-40. This does not mean that Congress thought
that alcoholism, by itself, was a mental disease and, indeed, suggests
that Congress may have viewed alcoholism as something separate from
mental illness. /12/ The ICD-9-CM also has other references to
alcoholism related disorders, e.g., alcoholic psychoses (section
291), and alcohol abuses (section 305), which are also included in the
mental disorder section. Certain physical complications which result
from alcoholism, e.g., cerebral degeneration (section 331.7), cirrhosis
of the liver (section 571.2), are listed outside the mental disorders
section. HCFA provided, in a Field Staff Information and Instruction
Series issuance, FSIIS FY-76-44, November 1975, that mental diseases
were those so classified in the 8th version of the ICD. HCFA here
relied on the 9th revision, Clinical Modification. HCFA said that both
versions classify alcoholism as mental disease. HCFA also referred
during these proceedings to the American Psychiatric Association's (APA)
Diagnostic and Statistical Manual, Third Edition (DSM-III), as support
for its policy. There is no reference to DSM-III in Medicaid
regulations or FSIIS FY-76-44, but it is used for Medicare purposes.
See 42 CFR 405.243(b). DSM-III classifies alcoholism as a mental
disorder. The District Court noted, however, that the APA has taken
over the responsibility for the mental disorders portion of the ICD, and
therefore cannot be considered a separate source of support for HCFA's
policy. Granville House, Inc. v. Department of Health and Human
Services, 550 F. Supp. at 632. A HCFA witness acknowledged that DSM-III
is a further subspecification of the ICD, but is essentially the same
basic system. DGAB Tr., p. 123. /13/ Dr. Robert Spitzer is a
research psychiatrist "primarily interested in issues of diagnosis and
classification of mental disorders. "DGAB Tr., p. 115. He is a
professor of psychiatry at Columbia University and Chief of the
Biometrics Research Department at the New York State Psychiatric
Institute. Crt. Tr., p. 117. Dr. Spitzer was a consultant to the
current edition of the ICD and chairperson of the DSM-III. Dr. Spitzer
does not treat alcoholism in his profession. Crt. Tr., p. 201; DGAB
Tr., p. 154-155. /14/ Dr. Le Clair Bissell is a physician
certified in internal medicine. She was a founder of the Smithers
Alcoholism Treatment and Training center and served as immediate past
president of the American Medical Society on Alcoholism. DGAB Tr., pp.
45, 47. /15/ Dr. Richard O. Heilman is a psychiatrist
specializing in chemical dependency treatment. Dr. Heilman is the
Director of the chemical dependency treatment program at the Veterans
Hospital in Minneapolis. Crt. Tr. II, pp. 73-74. /16/ Dr. David
Starret is a psychiatrist in private practice, professor of psychiatry
and Director of the Inpatient Division of the Department of Psychiatry
at the University of Colorado School of Medicine. Dr. Starret is
involved with alcoholism treatment at the Denver Veterans
Administration. DGAB Tr. II, pp. 28-29. /17/ Dr. Mayer, then
Administrator, Alcohol Drug Abuse and Mental Health Administration, U.
S. Public Health Service, Department of Health and Human Services,
testified in a hearing before the Subcommittee on Health of the
Committee on Finance, United States Senate, July 27, 1982. Dr. Mayer
also appeared before a Joint Hearing of two subcommittees of the
Committee on Labor and Human Resources, United States Senate, July 14,
1982. /18/ Dr. Bruce J. Rounsaville is a psychiatrist and an
assistant professor of psychiatry at the Yale School of Medicine and is
the Director of Research at the Substance Abuse Treatment Unit of the
Connecticut Mental Health Center. Dr. Rounsaville said his area of
specialization is research on the classification, diagnosis, and
treatment of substance abuse disorders. DGAB Tr., pp. 186-187. /19/ In
response to our request, the National Institute of Alcohol Abuse and
Alcoholism provided the Board with a packet of publicly available
documents concerning whether, aside from the classification in the ICD,
alcoholism is or is not currently considered a mental disease. The
parties were also provided a copy of those documents and referred to
certain of the documents in their briefs. We find that overall those
documents support the view that aocoholism is a complex disease with
physicological and psychological and social aspects, needing
rehabilitation through a broad range of health and social services
tailored to persons at different stages of alcohol abuse and alcoholism.
See, e.g., First Special Report to the U.S. Congress on Alcohol and
Health, by the Secretary of HHS (then HEW), December 1971; Definition of
Alcoholism, reprinted from Annals of Internal Medicine, Vol. 85, No. 6,
December 1976; Third Special Report to the U.S. Congress on Alcohol
and Health, by the Secretary of HHS (then HEW), June 1978; testimony of
Dr. William Mayer; hearing before the Subcommittee on Health of the
Committee on Finance, United States Senate, July 27, 1982; Criteria for
the Diagnosis of Alcoholism by the Criteria Committee, National Council
on Alcoholism. /20/ We do not question that the regulations
defining IMDs are consistent with the Medicaid statute. They have been
upheld by the courts and, as we recognized in Massachusetts Department
of Public Welfare, Decision No. 314, April 29, 1983, use wording
derived from the statute. What we are deciding, in effect, is that HCFA
needs to develop further regulations or interpreting guidance.
/21/ The record indicates that Granville treated its residents only for
alcoholism. Residents needing treatment for unrelated mental diseases
were referred for care. The Director of Granville House, Inc.,
described the Granville residential program as based on the AA
philosophy and including an intake phase where treatment plans are made
and goals are set. The residents then begin looking for a job or going
to school. The second phase involves participating in test activities,
recreation, work, school, and ongoing therapy. The therapy was
described as taking place in groups and individually and is basically
"reality therapy." The Director indicated that the program also includes
recreation therapy, living skill therapy and work therapy. The phase out
stage is designed to help a resident readjust to the community or
family, and includes a good deal of family therapy. A resident
typically stays at Granville facilities for three to six months.
Deposition of Dagny Christiansen, pp. 33-48. /22/ There is some
indication that HCFA does not consider ICFs to be "medical
institutions," yet ICF services are clearly covered generally under
Medicaid. See 42 CFR 435.1009, definitions of "medical institution"
and
"public institution."
NOVEMBER 14, 1984