GAB Decision 310
June 14, 1982 Colorado Department of Social Services; Docket No.
81-216-CO-HC Teitz, Alexander; Ford, Cecilia Settle, Norval
The Colorado Department of Social services appealed a decision of the
Health Care Financing Administration (HCFA or Agency), disallowing
federal financial participation under Title XIX (Medicaid) of the Social
Security Act of $28,822 in payments to Fairview Care Center (facility).
The payments were for skilled nursing and intermediate care services
provided at the facility. The Agency determined that a required
provider agreement between the State and the facility had expired on
September 21, 1979 and that the State improperly extended it until a new
provider agreement was executed on November 20, 1979. The State alleged
that the extension was authorized by an Agency regulation.
Based on the analysis below, we reverse the disallowance.
The regulation underlying the dispute.
42 CFR 442.16 (1978 and 1979) provided that a State Medicaid agency
could extend a provider agreement for up to two months from its
expiration date, if the state Medicaid agency received assurance from
the state survey agency, before expiration, that the extension would not
jeopardize the patients' health and safety and was needed because it was
--
. . . impracticable to determine, before the expiration date, whether
the facility meets certification standards.
The issue here is whether the record supports the State's
determination to extend a provider agreement because it was
"impracticable to determine" before expiration whether the facility
met
standards.
Background.
The facility's provider agreement with the State was due to expire on
September 21, 1979. On June 26, 1979 the State survey agency conducted
a survey indicating several deficiencies.By letter dated July 30, the
State survey agency advised the facility that "immediate action" was
needed to correct the deficiencies and (2) that "continued certification
cannot be made until correction is verified." State's brief, p. 2, and
cited attachements. The facility was required to respond by August 14.
The State survey agency received a incomplete response on August 23,
returned it, and received a further response on September 17.
On September 20 (the day before the provider agreement was due to
expire), the State extended the certification under 42 CFR 442.16 based
on a finding that it was "impractical" to determine compliance "due
to
an inability to conduct a revisit prior to the expiration date . . . ."
Id., pp. 2-3. The survey agency specifically found that the extension
would not jeopardize patient health and safety. Id. A revisit survey
on October 25 "revealed compliance with all conditions of
participation," according to the State, and a new provider agreement was
executed on November 20, 1979. Id.
The Agency argued that the extenstion of the provider agreement did
not satisfy 42 CFR 442.16 in two ways. First, the Agency argued that
the State survey agency found that timely determination of compliance
was "impractical" rather than "impracticable," and that
the difference
between the two terms is substantial enough to mean the determination
per se did not meet the requirement of 42 CFR 442.16. Second, the
Agency argured that, in any event, it was not "impracticable" in the
facts of this case for the State to make the determination of
compliance.
Discussion.
"Impractical" vs. "Impracticable".
The state did not dispute that its survey agency said a timely
compliance determination was "impractical" rather than "impracticable.
The Agency argued that the terms have "significantly different
meanings." Agency's brief, p. 4. As the Agency noted, a major
dictionary defines "impracticable" as meaning, among other things,
"incapable of being performed or accomplished by the means employed or
at command: infeasible . . . . " Webster's Third New International
Dictionary, Unabridged (1976), p. 1136. That dictionary defines
"impractical" as, among other things, "not practical: as . .
. not wise
to put into or keep in practice or effect . . . . " Id.
However, the Agency did not point out that two words are also defined
by reference to each other as a "sense" or "subsense" of
each other in
the same dictionary. Id. These are not necessarily even subsidiary
definitions, for the same dictionary describes the order of senses as --
(3) " . . . a lexical convenience. It (i.e., the order) does not
evaluate senses or establish an enduring hierarchy of importance among
them. The best sense is the one that most aptly fits the contest of an
actual genuine utterance. Id., p. 17a, paragraph 12.4.
We note also that "practicable" is shown as a sense of "practical"
in
the definition of the latter word. Id., p. 1780.
The Agency cited cases for the proposition that "impracticable"
meant
more than impracticality, and the State cited cases for the proposition
that the term meant less than impossibility. The case law is not
particularly helpful, since the cases dealt with substantially different
contexts than the one here; in any event there is no cited precedent
which is so closely analogous as to require the stringent semantic
result the Agency seeks here. Furthermore, the State responded, without
dispute from the Agency, that an Agency regional office manual (see Tab
7, appeal file) apparently supplmenting the regulation stated that the
extension under 42 CFR 442.16 is available if "it is impractical to
determine whether the facility is in compliance." Emphasis added.
State's reply brief, p. 2.
Therefore, we conclude that it would be unreasonable to find the
state survey agency's action fatally flawed merely because the survey
agency used the work "impractical" rather than the word "impracticable"
in the document extending the provider agreement. While the words have
different meanings, the differences are not so distinctly drawn that the
mere use of one word and not the other should void the certification as
if it were some nineteenth century common law pleading which omitted a
precious word.
But the foregoing conclusion does not mean the State necessarily is
relieved of application of some higher standard established by the word
"impracticable." That word and "impractical" are generally
and
substantially, if not exquisitely, different, as the following
discussion of the root words makes clear:
PRACTICABLE, PRACTICAL, though not properly synonyms, often cause
confusion.PRACTICABLE means possible or feasible, able to be done,
capable of being put into practice or being used . . . PRACTICAL
(applied to persons) means sensible and businesslike, (applied to
things) efficient and workable, as contrasted with theoretical . . . .
The American College Dictionary (1971), p. 951. (4) See also, H.W.
Fowler, Modern English Usage, 2nd Ed., p. 469. While the lengthier
definitions in the Webster's unabridged dictionary contain "senses"
of
the words which are virtually synonymic, much of the material there also
suggests the differences noted in the quote immediately above and in
Fowler. Thus, while there is insufficient precision in the differences
to support the Agency's position on the validity of the certification
per se, there is enough of a difference to support the conclusion that
the Standard which had to be met under 45 CFR 442.16 was more than mere
"impracticality." But the precise parameters of that standard were
not
articulated by the Agency and remain ambiguous.
The State's authority under section 442.16.
42 CFR 442.16 authorized a specific interaction between two State
agencies: the State Medicaid agency could extend a provider agreement
based on notice form the State survey agency. The provision did not
specify a review role for HCFA.n1 We do not question the authority of
HCFA generally to determine the allowability and reasonableness of
expenditures, and therefore to determine whether the State complied with
the conditions in section 442.16. But the intrastate nature of the
process authorized by the provision, the absence of a specified HCFA
role in the process, and the lack of standards like those under section
442.30, imply that the State's determination under section 442.16 was
entitled to presumptive validity. That is, HCFA is effect bore a burden
of showing how the State's determination was wrong.
We understand the Agency's apparent concern: that Part 442
established a process which includes provider agreements of twelve
months' duration, and section 442.16 provided only an exceptional
extension, not a mechanism for generally turning provider agreements
into fourteen month agreements. States should not extend provider
agreements on bases of whim or minor inconvenience. (5) At the same
time, the Agency had a standard for application of section 442.16 which
is ambiguous. While, as we have said, it appears that "impracticable"
can fairly be interpreted to mean something more than mere
impracticality (at least by the precise linquists among us), it is not
clear what that something more is. "Incapable of being performed,"
i.
e., "impossible," is a substantially more rigorous standard; if that
was what the Agency intended, it could easily have specified that
standard and avoided the confusion between two similar words which, to
those of us who are humanly imprecise, appear to mean about the same
thing. Furthermore, there is the additional confusion created by a
regional guidance document which used the less stringent term
"impractical."n2
As the Agency acknowledged in its brief, there is no issue here that
there was any jeopardy to patients' well-being from the extension.It is
not disputed that the facility was resurveyed, the problems were
resolved, a new certification was issued, and a new provider agreement
was executed, all within the 60-day period of the extension.
The impracticablity in this case.
Against the foregoing background, let us review the specifics of the
State's claim of impracticability and the Agency's response.
The Agency argued, essentially, that the State could have found the
facility out of compliance based on the survey findings announced by the
State survey agency in July, 1979, and that being so, it was not
impracticable for the State to make a certification decision. The State
responded that it was not bound to find the facility here out of
compliance per se based on the deficiencies and conditions of
participation in the circumstances of this case,n3 and that, in any
event, the State was required by State law to give the facility an
opportunity to submit a plan of correction.
(6) The State did, indeed, have some room to exercise judgement about
the severity of violations of conditions of participation and the
appropriate response. See, e.g., 42 CFR 405.1905(a), 405.1906,
405.1907. The regulations also contemplated an opportunity for a
facility to submit a "plan of correction." 42 CFR 405.1907. The record
does not contain any determination by the Agency that the State acted
improperly in not immediately finding the facility out of compliance.
Nor does the Agency contend that the state was not, as it claims,
obligated to give the facility an opportunity under State law to submit
a plan of correction.n4 See, State's brief, pp. 6-7.
We do not find it reasonable to dispute the determination of
impracticablity on the mere basis that the State theoretically could
have acted more precipitously. The regulatory scheme relating to
facility certification reflects concern for the well-being of patients
and the interests of providers; to hold that a state must have made a
determination of either compliance or noncompliance if it at all
possibly could, rather than delaying the decision for up to 60 days when
appropriate to make a more well-informed decision, is not consistent
with the regulatory scheme.n5
The Agency also argued that the survey agency had five working days
after receipt of the facility's, complete on September 17, (7) 1979 to
determine whether or not the facility was in compliance. (The State
says four working days; the Agency apparently counted the day the State
received the submission from the facility.) The State argued that it
could not make a dtermination of non-compliance within that time period
because of the constraints of State law (already discussed), and also
argued that it could not in that time make a determination of
compliance, even though the material on hand as of September 17, 1979,
indicated the facility was in compliance (by the facility's own
account). The State argued, without rebuttal from the Agency, that the
State was required by regional office guidance to make an on-site visit
to confirm the facility's allegation that deficiencies were corrected.
State's reply brief, p. 4. Even if this was not specifically so, the
State would be reasonable in determinaing that it should make a site
visit to determine compliance, and not merely accept the facility's
self-serving presentation at face value.The Agency did not allege that
the State was unreasonable in wanting to make a confirming site visit.
The issue seems to be whether the State should have done it within the
four or five days available to it. The State's response was that there
"was simply not enough time to schedule a revisit survey." Id. The
State submitted an affidavit of an apparently responsible State official
containing an explanation of work practice and workload factors which
the State alleges made it "impracticable and unreasonable" to drop
previously scheduled activity and devote attention to this one case.
Id., exhibit 9.
The Agency's response to the affidavit essentially was that it did
not go far enough in detailing the basis of the alleged
impracticability. The Agency used as an example the statement in the
affidavit that the state had a policy of using the same surveyor on
resurveys; the Agency said the State should have explained further why
it could not send another surveyor in this case. On the whole, we find
that the affidavit did present substantial evidence of impracticablity,
particularly given that the Agency's standard in section 442.16 did not
specify any requirement for a greater (or, indeed, any) quantum of
proof. As to the Agency's specific example, we note that the affidavit
explains that on any given day the State might have as many as fifty
surveys in process, that about twenty full surveys were done each month,
and that surveys were scheduled forty to fifty days in advance. The
complexity of the process indicates it would be disruptive to juggle
surveyors to accomodate the needs of this one survey, and questionable
in view of the apparently reasonable policy of using the same surveyor
to resurvey. Overall, we find that the State has made a reasonable and
substantial showing of impracticability which the Agency, in the context
of the ambiguous standard of section 442.16, has not substantially
rebutted. Even under the higher standard which the Agency would have
the State meet, the State might reasonably have put a label of practical
impossibility (8) or incapability on its ability to respond to the
facility's presentation within four or five days.
The Agency made two other arguments which, in the contest of the
foregoing analysis, we do not find persuasive. First, the Agency argued
that the state's position would lead to "paralysis in the certification
process" because a provider could always contend that it had made
corrections following a survey visit, thus establishing a basis for an
extension based on the impracticablity of a quick return visit.
Agency's brief, p. 6.However, any such "paralysis" would not exceed
two
months under the Agency's regulations, which in any event created the
problem. Second, the Agency argued that an April, 1980 Agency manual
required a certification to be made within 45 days of the "exit
interview." Id., p. 6-7. But the Agency acknowledged that no such
requirement was specified in previous manuals applicable during the time
involved here. The Agency argued that the new manual requirement
reflected a long-standing policy of requiring expedition in determinaing
compliance after a survey. However, an ambiguous long-standing policy
cannot take precedence over the specific extension process in section
442.16. Any general problem with how promptly the State conducted its
surveys within the basic provider agreement periods is beyond the scope
of the issue (and the evidence) in this case.
Summary
The Agency did not prove that the standard of impracticablity was as
definitive or as stringent as argued in this case. The State had some
discretion to determine what was impracticable. The State made a
reasonable showing of impracticability under section 442.16 and,
arguably, even the higher standard which the Agency would impose. The
Agency did not present any substantial evidence or argument rebutting
the State's detetrmination of impracticablity.
Decision
Based on the foregoing analysis, we reverse the disallowance in this
case of $28,822. /1/ Contrast this with the so-called "look-behind"
provisions in 42 CFR 442.30, which deal with the Agency's
authority to look behind the State's certification of a provider as
meeting the requirements for Medicaid participation. In the
"look-behind" situation, where the Agency clearly was concerned about
a
right of intervention in a State process, the Agency has set forth a
relatively detailed process containing what the Agency must determine
and how the Agency must determine it in order to invalidate a State
certification. /2/ While not controlling here, we further note
that the Agency recently proposed eliminating altogether the
twelve-month provider agreement and the related extension to . . .
"allow the flexibility needed to manage the survey and certification
process more effectively, to better ensure compliance, and to relieve
states of a substantial paper-work burden." 47 Fed. Reg. 23405, May 27,
1982. /3/ Deficiencies were found in three conditions of
participation: 42 CFR 405.1120 ("compliance with Federal, State, and
local laws"); 402.1121 ("governing body and management"); and
405.1132
("medical records"). /4/ The Board generally accepts a State's
interpretation of its own laws and administrative rules. Cf.
California Department of Health Services -- San Joaquin Foundation,
Board Decision No. 182, May 29, 1981; New York Department of Social
Services, Board Decision No. 249, January 29, 1982. /5/ The
State also pointed to an opinion of the Agency's Regional Attorney which
appears to hold that an extension of a provider agreement was
appropriate to accommodate the need for time of State officials who had
found violations of conditions of participation (but had not yet made a
formal certification decision). The State argued that the opinion dealt
with "identical" circumstances and should control here. State's brief,
p. 5. The Agency responded that the opinion was irrelevant, since it
ended by saying that the extension was proper if "other requirements .
.
. were satisfied," which left open the issue of impracticablity.
Agency's brief, p. 10. The opinion is not critical to the result we
reach here, but we observe that the opinion, had it indeed approved the
extension while leaving open a substantial possiblity that the extension
might separately be found improper because the same circumstances would
not support a determination of impracticablity, would have been very
misleading.
OCTOBER 22, 1983