Masschusetts Department of Public Welfare, DAB No. 730 (1986)

GAB Decision 730

March 20, 1986

Massachusetts Department of Public Weflfare; 
Docket No. 85-162
Garrett, Donald F.; Settle, Norval D.  Ballard, Judith A.

The Massachusetts Department of Public Welfare (State) appealed a
determination by the Health Care Financing Administration (Agency)
disallowing federal financial participation in the amount of $4,523,612
claimed by the State under title XIX of the Social Security Act for
services provided in six State-owned intermediate care facilities for
the mentally retarded (ICFs/MR) during the period July 1, 1981 through
June 30, 1982.  The State's claim was based on a per diem rate increase
approved by the State's Rate Setting Commission (RSC) for each of the
facilities.  The Agency disallowed the costs on the ground that the rate
increases were not authorized by the State's title XIX plan.  As
discussed below, we find that there was no authority for the rate
increases in the State plan, and we therefore uphold the disallowance.

Statutory, Regulatory and State Plan Provisions Regarding Payment Rates

Section 1902(a)(13)(A) of the Social Security Act states that a state
plan for medical assistance must provide:

   for payment of . . . intermediate care facility services provided
under the plan through the use of rates (determined in accordance with
methods and standards developed by the State) . . . which the State
finds, and makes assurances satisfactory to the Secretary, are
reasonable and adequate to meet the costs which must be incurred by
efficiently and economically operated facilities in order to provide
care and services in confirmity with applicable State and Federal Laws,
regulations, and quality and safety standards. . . . /1/

(2)

Implementing regulations at 42 CFR 447.252(a)(2) (1981) further provide:

   The payment rates used by the Medicaid agency must be determined in
accordance with methods and standards developed by the agency.

In addition, 42 CFR 447.253(b) (1981) provides:

   The (State) plan must specify the methods and standards used by the
agency to set payment rates. /2/


The State's title XIX plan provided in pertinent part:

   The State agency will pay the reasonable cost of inpatient hospital
services in accordance with the principles adopted by the Massachusetts
Rate Setting Commission. . . . /3/


Both the State plan and the RSC regulations for determining payment
rates provide for use of a prospective rate-setting methodology to
compute ICF/MR per diem rates. Under this methodology, actual costs
reported by the facility for a base year, defined in this case as two
years prior to the year for which the rate is being set, are adjusted
for inflation and divided by total base year patient days to reach a per
diem rate.  (State plan, Attachment 4.19-A;  RSC regulations, 114.1 CMR
5.06) This rate is multiplied by the number of patient days in the rate
year to determine the amount reimbursable under title XIX.

The State plan further provides that a hospital may apply for an
administrative adjustment "to the prospective rate or to the allowed
base cost" based on the following "incidents":

   a.  A capital expenditure or change in service made under authority
of a determination of need issued by the Department of Public Health.(
3)

   b.  A substantial program change which did not require a
determination of need.

   c.  An increase in cost made necessary by requirements of
governmental units, e.g., additional licensure requirements imposed by
Public Health, changes in minimum wages, etc.

   d.  An extraordinary increase in operating cost, which is beyond the
reasonable control of the hospital, not reflected in the inflation
factor and which gravely threatens the financial stability of the
hospital.

The RSC regulations also provide for "administrative adjustment of (a) .
. . rate or charge" based on various grounds including the following:

   * * *

   (i) A hospital not subject to the licensing provisions of M.G.L. . .
. which did not utilize a significant number of beds during the base,
intermediate or rate year due to a substantial program change affecting
Patient days, and for which it would be inequitable to utilize base year
patient days in establishing rates and charges.

We note that the Agency asserted that a State plan provision ineffect
during the first nine months of State fiscal year 1982 would have
prohibited the reduction of patient days used to calculate the rate.
The Agency indicated, however, that it did not rely on the provision for
the disallowance.  (Agency's brief dated December 18, 1985, pp.  7-8)
The provision in question required the use of actual long-term care bed
days or 95% of total available long-term bed days, whichever is greater,
in the denominator of the rate.  The State stated, however, that this
provision was not applicable to the facilities in question here, citing
a clarifying amendment to the State plan approved by the Agency
effective April 1, 1982, which provided that for facilities such as the
ones in question here, allowed bed days are in all cases equal to actual
bed days.  (State's reply brief dated February 13, 1986, pp.  17-18, and
Ex. B-1)

Factual Background

On April 7, 1982, the Department of Mental Health requested that the RSC
approve administrative rate adjustments for the six facilities in
question for state fiscal year 1982 (July 1, 1981 through June 30,
1982).  This request was made when the State legislature failed to
appropriate all funds requested by the Department of Mental Health for
the facilities.  (State's brief dated November 15, 1985, pp. 25-27)
Requests for three(4) other rate increases for these facilities were
approved by the RSC for the same year and not challenged by the Agency.
These three increases were for increased costs incurred to improve
conditions in the facilities as required by consent decrees which had
been in effect for several years.  (Agency's brief dated December 18,
1985, p. 6;  State's reply brief dated February 13, 1986, p. 16) The
consent decrees also required that community facilities be made
available for patients for whom placement in such facilities rather than
in an institutional setting was appropriate.  (State's brief dated
November 15, 1985, pp. 17-18, n. 2) Here, the State requested that
intermediate year (fiscal 1981) patient days rather than base year
(fiscal 1980) patient days be used to compute the rates.  This
adjustment was requested "due to an intense deinstitutionalization
effort" (i.e., an effort to move patients out of ICFs/MR into community
placements), which had resulted in "an 8.29% decrease in patient days."
(State's appeal file, Ex. C) The request cited paragraph (i) of the
administrative adjustment provisions of the RSC regulations as authority
for the adjustment.  The adjustment was approved by the RSC effective
July 1, 1981.  (State's appeal file, Ex. C) The State later claimed that
the adjustment could also be justified under paragraphs b.  or c. of the
administrative adjustment provisions of the State plan.  (State's appeal
file, Ex. H, p. 2)

The Agency disallowed the costs claimed based on the rate increases on
the ground that the provision relied on by the RSC to approve the rate
increases was not contained in the approved State plan.  (State's appeal
file, Ex. J, pp. 1-2) /4/ The Agency also found that the provisions of
the State plan which the State asserted permitted the rate increases
were not applicable.  Specifically, the Agency found that there was no
"substantial program change" as required by b., and that there was no
"increase in cost" as required by c.  (Id., p. 3) On appeal to this
Board, the State did not pursue the argument either that (i) of the RSC
regulations or that b. of the State plan was applicable (conceding that
the RSC regulations "limited the definition of substantial program
change" so that(5) it did not apply here). /5/ Rather, the State argued
that c. and d. of the State plan were applicable.  (State's brief dated
November 15, 1985, pp. 13, 25; State's reply brief dated February 13,
1986, p. 7)

 

As discussed in detail below, we find that the rate increases were not
justified under either c. or d. of the State plan.  While we give
deference to a state's interpretation of its own plan in appropriate
circumstances, we are not constrained to defer to a state's
interpretation where that interpretation is not a reasonable one.  The
interpretation advanced by the State here in support of the rate
increases was not one articulated by the RSC.  Instead, the RSC
summarily approved the increases on the basis of a request by the State
which cited a provision the State now admits was not applicable. Thus,
in finding the State's interpretation unreasonable, we are not looking
behind a considered determination by the State rate-setting agency.

Moreover, we think that a less expansive interpretation of its plan than
the State advanced here is appropriate since the rates were determined
based on a prospective rate-setting methodology.  The underlying intent
of such a methodology--to encourage providers to better control
costs--is defeated if adjustments to reflect actual costs are available
in any case where the prospective rate does not reimburse the provider
for all costs incurred (much less in the present case where application
of the original per diem rates for State fiscal year 1982 resulted in
Medicaid compensation exceeding each facility's operating costs).  In
addition, the fact that the State sought and was granted several other
rate increases in the same fiscal year for the same six facilities calls
for closer scrutiny of the rate increases in question here;  the
repeated adjustment of the rate for each facility is not entirely
consistent with the intent of the prospective rate-setting methodology
to set in advance a rate which gives the provider an incentive to keep
costs down.

Another consideration bearing on the degree of deference to be accorded
to the State's interpretation is that, since the facilities in question
here were State-owned, the cost to the State for running the facilities
was the same regardless of the per diem rates approved by the RSC.  The
per diem rates affected only the amount of federal financial
participation to which the State was entitled.  In the case of a private
provider, however, the State must reimburse the provider at(6) the per
diem rate, so that, unlike the situation here, the State could not
receive a windfall if the rate were unjustifiably increased.  Although
the windfall in this case partially compensated the State for operating
losses for the six facilities in the two prior years, it was
inappropriate for the State to seek an adjustment on this basis.

Thus, we do not defer to the State, and find, contrary to the State's
position, that neither paragraph c. nor d. of the State plan adjustment
provisions authorized the rate increases at issue here.  Both of these
provisions specifically require an increase in costs.  However, the
State did not contend that for purposes of this adjustment there was any
increase in the costs reported by any facility.  Instead, the State
contended that the per patient cost in each facility increased since the
costs for each facility remained constant and the number of patients in
each facility decreased.  This is clearly not what was intended by the
reference in the State plan provisions to cost increases, however.  The
State plan provides that:

   (actual) base year costs as determined in accordance with and allowed
pursuant to the Principles of Reimbursement for Provider 42 U.  S.C.
1395 et seq., are reported by hospitals and are used to calculate per
diem rates for the rate year. . . .

It continues:

   Base year cost increases beyond actual inflation may be allowed only
on grounds described in Section 10 below, headed Administrative
Adjustments.

This indicates that the cost increases permitted as administrative
adjustments are increases in total costs reported by a facility for the
base year, not per patient cost increases as contended by the State.
The State cited language in the State plan prefacing the adjustment
provisions which refers to "adjustments to the prospective rate or to
the allowed base cost," arguing that adjustments to either the numerator
or denominator of the rate figure were properly considered adjustments
to the rate. (State's reply brief dated February 13, 1986, pp. 5-6)
However, this argument loses sight of the fact that the State relied in
this appeal only on c. and d. of the State plan adjustment provisions,
which specifically refer to cost increases.

Moreover, this reading of the plan provisions is consistent with the
adjustment provisions of the RSC regulations. Paragraphs (b) and (d) of
the latter adjustment provisions(7) are nearly identical to c. and d.
of the State plan. /6/ There is no provision in the State plan which
parallels the provision of the RSC regulations originally relied on by
the State in requesting that the RSC approve the rate increases.  Since
the latter provision--(i)--refers specifically to changes in patient
days, it can reasonably be inferred that neither (b) nor (d), and
therefore neither c. nor d. of the State plan, were intended to permit
an adjustment based on a change in patient days.

 

 

Even if the State's interpretation is adopted, it is not clear that the
State in fact experienced per patient cost increases.  Such increases
would be possible only if the costs reported by each facility remained
constant (or increased) despite the reduction in the number of patients.
The Agency identified several types of costs which it appeared might
reasonably have decreased as a result of the decreased patient load.
(Agency's brief dated December 18, 1985, p. 7) In response, the State
asserted that the 8.29% reduction in patient days which prompted the
request for the rate increases was not sufficient to permit a reduction
in fixed costs such as light and heating or in service costs such as
cleaning and laundry.  (State's reply brief dated February 13, 1986, p.
15) The State also asserted that food costs increased from 1980 to 1981.
(Id., p. 14) However, the State provided no documentation to support its
assertion regarding fixed costs and service costs.  The documentation
provided regarding food costs indicates only that budgeted food costs
increased and does not reflect costs actually incurred.  (State's
appeal(8) file, Ex. A1-A6) /7/ The State also asserted that the price of
oil increased by 50% between 1980 and 1981.  (State's reply brief dated
February 13, 1986, p. 15) However, the State provided no evidence that
such increased costs were a factor in requesting the rate increases
here.  There is thus no clear evidence that some costs did not in fact
decrease in each facility as the result of the decreased patient load.


Although the foregoing conclusions are sufficient to support the
disallowance, we note further that, even if we assume that the cost
increase contemplated by the State plan adjustment provisions is a per
patient cost increase, and that the State in fact experienced such an
increase in each facility, it is not clear that the increase was "made
necessary by requirements of governmental units," as required by c. The
State argued that the deinstitutionalization of a large number of
patients, and the resultant increase in per patient costs, was required
by federal statutory and regulatory provisions mandating active
treatment of patients in ICFs/MR as a condition of federal funding.
However, while federal requirements such as the active treatment
requirement foster deinstitutionalization, the State did not show that
there was a direct nexus between those requirements and the specific
reductions in patient population on which the rate increases were
purportedly based.

Furthermore, it is not clear that any per patient cost increases here
were "beyond the reasonable control" of the facilities, as required by
d. of the State plan.  As indicated above, although the State argued
that it could not have reduced certain costs which appeared to bear a
relationship to the number of patients in a facility, it did not
establish this as a matter of fact.  (It is thus unnecessary to consider
the State's contention that the cost increases threatened the financial
stability of the facilities, as also required by d.)(9)

Conclusion

For the foregoing reasons, we conclude that the rate increases on which
the State's claim was based were not authorized by the State plan.
Accordingly, we uphold the disallowance in the amount of $4,523,612.
        /1/ This provision applies here since under 42 CFR 447.251
intermediate care facilities include ICFs/MR.         /2/ Both this
regulation and the regulation quoted above implemented statutory changes
regarding payment for long-term care facility services made by section
962 of the Omnibus Reconciliation Act of 1980 (Pub. L. 96-499).  The
regulations were published as an "Interim Final Rule With Comment
Period" effective September 30, 1981 (46 Fed. Reg. 47964).  Both parties
here took the position that the regulations were applicable although
they were published after the beginning of the year in question.
/3/ Although for federal purposes an ICF/MR is not a hospital, under the
State plan, hospitals include ICFs/MR. (State's reply brief dated
February 13, 1986, p. 16)         /4/ The Agency also stated that, in
view of the fact that the application of the rates as adjusted resulted
in Medicaid reimbursement exceeding each facility's operating costs for
the year in question, the "inequity" required for application of this
provision was not present. (State's appeal file, Ex. J, p. 4) The
operating costs for each facility exceeded Medicaid reimbursement in
State fiscal years 1980 and 1981, however, resulting in a net loss for
the three-year period. (State's brief dated November 15, 1985, p. 23)
/5/ RSC regulation 74-26 states that such a change must involve a new
service with additional annual operating expenses exceeding $100,000.
(State's reply brief dated February 13, 1986, p. 7)         /6/
Paragraphs (b) and (d) of the adjustment provisions in the RSC
regulations provide as follows:  (b) Statutory or regulatory
requirements of a governmental unit or the federal government have
generated a substantial increase in allowable costs as adjusted pursuant
to 114.1 CMR 5.15 during the base, intermediate or rate year. * * * (d)
There has been an extraordinary increase in operating costs beyond the
reasonable control of a health care facility during the base,
intermediate or rate year which is not reflected in the inflation factor
and which gravely threatens the financial stability of the health care
facility.         /7/ Documents showing that the proposed food budget
for state fiscal year 1981 for two of the facilities was insufficient
indicate that the original budget request in each case was based on too
low an estimate of the number of patients in the facility.  (State's
appeal file, Ex. A3 and A4) Thus, these documents do not support the
State's position that food costs increased with a decreased patient
population.

MARCH 28, 1987