GAB Decision 189
June 17, 1981 West Virginia Department of Welfare; Docket No.
80-182-WV-HC Garrett, Donald; Teitz, Alexander Settle, Norval
Background
The West Virginia Department of Welfare (State), by letter dated
December 3, 1980, sought review of a November 13, 1980 determination by
the Acting Director, Bureau of Program Operations, Health Care Financing
Administration (HCFA), to disallow $156,817 in Federal financial
participation (FFP) claimed by the State under Title XIX of the Social
Security Act. The notification of disallowance stated that FFP was
being denied for intermediate care facility (ICF) services provided by
the Riverside Nursing and Convalescent Center (Riverside) between
October 1, 1978 and June 30, 1979 because the facility did not have a
valid provider agreement in effect during that time. The Board issued
an Order to Show Cause on January 9, 1981. The Agency responded on
January 22, 1981, and the State responded on January 29, 1981.
State Arguments
The State admits that there was no valid ICF provider agreement in
effect during the relevant period (Application for Review, p. 1) but
blames HCFA for the fact that the State continued to claim FFP.
According to the State, Riverside was both an ICF and a skilled
nursing facility (SNF) providing SNF services under Title XVIII of the
Social Security Act (Medicare) as well as Title XIX and:
The Title XIX SNF and ICF addendum agreements issued to this facility
must be uniform with the Title XVIII agreement. Responsibility for
certification of the facility as an SNF rests with the Secretary of the
Department of Health and Human Services, not the State agency.
(Application for Review, p.1)
The State asserts that the State survey agency recommended
termination of Riverside as an SNF on April 2, 1979 but that HCFA's
Regional Office did not act on the recommendation until April 15, 1980,
during which time payment by the State to the facility continued and FFP
was claimed. The State claims that the facility was subsequently
recertified as an SNF and ICF on April 15, 1980 retroactive to December
13, 1979.
At the end of its response to the Order, the State urges that "if the
Board affirms the intermediate care facility disallowance, it also
require that the Medicare trust fund be charged for payments made to
Riverside during the time when its skilled nursing facility status was
not recertified."
(2) Discussion
1. October 1, 1978 to April 2, 1979
The State has conceded that there was no ICF provider agreement with
the facility for the period in question and has provided no evidence of
certification. The ICF Certification and Transmittal form provided by
the Agency also indicates that ICF certification expired September 20,
1978 and was renewed no earlier than December 1, 1979. The next action
after the expiration of certification mentioned by the State is the
survey agency's recommendation on April 2, 1979 that the SNF be
terminated.
For this period, therefore, there is no basis whatsoever for the
State to claim FFP for ICF services in the facility. The regulations
clearly state that FFP is available only if there is a valid provider
agreement in effect, based on certification (42 CFR 442.12). Neither of
these essential elements was present after the ICF certification expired
until the State certified the facility and executed a provider
agreement.
2. April 2, 1979 to June 30, 1979
The State seems to be arguing that waiting for HCFA's Regional Office
to rule on the appropriateness of terminating the SNF somehow had an
impact on its ability to certify the ICF. But the State has not shown
that the deficiencies noted as part of its recommendation to decertify
the SNF were also considered ICF deficiencies. Conversely, the State
has also not shown that standards pertaining only to ICF services were
met during this period.
As was discussed in the Board's decision in Maryland Department of
Health and Mental Hygiene, Decision No. 113, July 31, 1980, the
responsibility for certifying (and decertifying) an ICF for Medicaid
participation lies solely with the State (42 CFR 442.12). Two major
types of services may be provided by nursing facilities participating in
the Medicaid program -- ICF and SNF services. Different standards are
imposed for ICF and SNF services. The Regional Office of HCFA becomes
involved in the Medicaid program through its role in certifying and
decertifying facilities providing SNF care in the Medicare program.
However, the Regional Office has no responsiblity in the process of
decertification of a facility for ICF services. The State, therefore,
does not have to await any HCFA action before it severs an ICF facility
from the Medicaid program.
Furthermore, according to the State, the survey agency recommended
decertification of the SNF. Although it appears that certification was
eventually restored, there is no evidence in the record to support a
finding that the facility was certifiable during the period in question
and that but for the Regional Office's presumed lack of action, the
facility would have been certified. Therefore, FFP was properly
disallowed for this period.
(3) The Board does not have the authority to grant the State's
request that we require that the Medicare trust fund by charged for
certain payments.This appeal pertains only to a disallowance of FFP for
ICF services and does not involve any SNF issues. Furthermore, the
Board does not have any jursidiction over Medicare matters (See 45 CFR
16.90).
Conclusion
For the reasons stated above, the disallowance of $156,817 pertaining
to the Riverside Nursing and Convalescent Center is upheld.
OCTOBER 22, 1983