DEPARTMENTAL GRANT APPEALS BOARD
Department of Health and Human Services
SUBJECT: Wisconsin Department of Health and Social Services
Docket No. 85-11
Decision No. 791
DATE: September 22, 1986
DECISION
The Wisconsin Department of Health and Social Services (State) appealed
a
decision by the Health Care Financing Administration (Agency)
disallowing
$724,628.69 in federal funds claimed by the State under
Title XIX of the
Social Security Act (Act) for the quarters ending March
31, June 30, and
September 30, 1984. The disallowance was based on the
Agency's finding
that the State failed to maintain an effective program
for controlling the
utilization of long-term care services provided at
15 intermediate care
facilities (ICFs) in accordance with section
1903(g) of the Act. The
Agency determined that, for the quarters in
question, patients certified as
needing skilled nursing care were
retained in these ICFs. During the
course of this appeal we issued
Decision No. 655, Effect of DEFRA Amendments
on Utilization Control
Disallowances, June 7, 1985. Based on that
decision, the Agency deleted
the quarter ending September 30, 1984 from the
disallowance. See Agency
Letter, July 25, 1986. For the reasons
discussed below, we uphold the
disallowance for the quarters ending March 31
and June 30, 1984, and
direct the Agency to recalculate the disallowance
accordingly.
In three earlier cases from Wisconsin, the Board addressed whether it is
a
violation of the utilization control requirements to retain Medicaid
patients
certified as requiring skilled nursing care in ICFs or Medicaid
patients
certified as requiring intermediate nursing care in skilled
nursing
facilities (SNFs). See Wisconsin Department of Health and
Social
Services, Decision No. 482, November 30, 1983; Wisconsin
Department of Health
and Social Services, Decision No. 525, March 30,
1984; and Wisconsin
Department of Health and Social Services, Decision
No. 547, June 27,
1984. In those decisions, we sustained the Agency's
position that ICF
patients could not properly be retained in SNFs, nor
could SNF patients
properly be retained in ICFs. Our findings in those
decisions have been
upheld by the United States Court of Appeals for the
Seventh Circuit in State
of Wisconsin v. Bowen, No. 85-1207 (7th Cir.
July 21, 1986)..- 2 -
This case was appealed to the Board while the three Wisconsin
decisions
cited above were on appeal to the Seventh Circuit from a District
Court
ruling which reversed and remanded the Board's decisions. The
parties
and the Board agreed that it would be appropriate to stay
the
proceedings in this case pending the Seventh Circuit's decision.
See
Stay of Appeal, February 19, 1985. Upon receipt of the
Seventh
Circuit's decision, the Board ordered the State to show cause why,
based
on that decision, a summary decision should not be issued in
this
appeal. The Order also indicated that the State could choose
to
withdraw this appeal in light of the Seventh Circuit's decision.
See
Order to Show Cause, July 30, 1986. The State's undated reply to
our
Order (received September 12, 1986) indicated that it did not wish
to
withdraw this appeal and requested a continuation of the stay in view
of
the fact that the State "will most likely petition the U.S.
Supreme
Court for a writ of certiorari." The State did not specifically
comment
on the Board's issuance of a summary decision.
We find that a further stay of these proceedings is not warranted.
The
State has not alleged the existence of any new facts or issues
requiring
further development or given any reason for distinguishing this
appeal
from those decided earlier. From our review of the Notice
of
Disallowance and the State's Notice of Appeal, we conclude that
the
issues here are resolved by the prior decisions. Accordingly, we
are
issuing this summary decision, which will end the administrative
review
process, rather than continuing to keep this appeal on the
Board's
docket. Therefore, for the reasons stated in Decision Nos. 482,
525,
and 547, which are incorporated here by reference, we uphold
this
disallowance. The Agency should recalculate the amount of
the
disallowance consistent with its decision to delete the quarter
ending
September 30, 1984 from the disallowance.
________________________________ Norval D. [John) Settle
________________________________ Alexander G. Teitz
________________________________ Cecilia Sparks Ford
Presiding
Board