GAB Decision 531
Docket No. 83-159
April 23, 1984
New York State Department of Social Services;
Ballard, Judith; Garrett, Donald Ford, Cecilia Sparks
The New York State Department of Social Services (State) appealed a
disallowance of $826,229.58 taken by the Health Care Financing
Administration (Agency) under section 1903(g) of the Social Security Act
(the Act). The Agency based the disallowance on its determination that
the State failed to meet the statutory and regulatory utilization
control requirements for certain Medicaid patients in nine intermediate
care facilities (ICFs) and one skilled nursing facility (SNF) during the
period July 1, 1982 through September 30, 1982. The Agency alleged that
there were violations of the requirements for timely and valid physician
certifications and recertifications and for timely establishment and
updating of plans of care. Sections 1903(g)(1)(A) and (B).
During the appeal the State raised several questions about the
calculation of the disallowance; the Agency reviewed its calculations
and revised the disallowed amount from $728,453.42 to $207,432.30 for
the ICFs and from $97,776.16 to $31,326.49 for the SNFs. /1/ The total
amount in dispute has thus been reduced to $238,758.79.
(2) We conclude that the ICF disallowance should be sustained in the
reduced amount. We also conclude that the SNF disallowance should be
sustained in the reduced amount subject, however, to a remand to the
parties for determination of whether the patients for whom SNF
violations were found were in fact ICF patients. Our reasons are
provided below. This decision is based on the written record.
Pertinent statutes, regulations, and policy
Section 1903(g) of the Act requires that the state agency responsible
for the administration of a state's Medicaid plan under Title XIX of the
Act show to the satisfaction of the Secretary that the state has an
"effective program of control over utilization" of long-term inpatient
services in certain facilities. This showing must be made for each
quarter, or the federal medical assistance percentage (FMAP) requested
for amounts paid by the state for long-term care services will be
decreased according to the formula set out in section 1903(g)(5).
Section 1903(g)(1)(A) and (B) provide that the showing must include
evidence that --
(A) in each case for which payment is made under the State plan, a
physician certifies at the time of admission . . . (and recertifies,
where such services are furnished over a period of time, in such cases,
at least every 60 days . . .) that such services are or were required to
be given on an inpatient basis because the individual needs . . . such
services; and
(3) (B) in each such case, such services were furnished under a plan
established and periodically reviewed and evaluated by a physician;
These statutory requirements were implemented at 42 CFR 456.360 and
456.380-381 (1981) for ICFs and at 42 CFR 456.260 and 456.280-281 (1981)
for SNFs. In addition, 42 CFR 456.652 specifies how states can make a
satisfactory showing. Section 456.655 of 42 CFR provides for validation
of the showing by the Agency, as required by section 1903( g)(2), and
says that the showing will not be satisfactory if the validation survey
demonstrates that any of the requirements of sections 456.652(a)(1)
through (4) were not met during the quarter for which the showing was
made.
Medicaid Action Transmittal 80-68, issued effective October 1, 1980,
was a "(clarification) of what constitutes a valid certification and
recertification." Action Transmittal 80-68 replaced an earlier action
transmittal, No. 75-122. Action Transmittal 80-68 defined certification
as "the process by which a physician attests to an individual's need for
a specific level of institutional care" and recertification as "the
process by which a physician attests to an individual's need for
continued placement at a specific level of care." Several different
types of documents may be accepted as valid certifications or
recertifications, so long as they indicate that the patient needs a
particular level of care, and are in writing, signed by the physician
(or, for recertifications, signed by a physician assistant or nurse
practitioner where appropriate under 42 CFR 456.260( b)(1)), and dated
when signed. A certification or recertification is valid for 60 days.
Action Transmittal 80-68 specifically provides that the initial
certification must be made "on or not more than 60 days prior" to
admission and that recertification must occur "at least every 60 days
after the initial certification."
With regard to plans of care, the regulations cited above require,
inter alia, that a written plan of care be established on or before
admission and that a plan of care be reviewed every 60 days for SNF
patients and every 90 days for ICF patients.
Validation survey and finding of violations of section 1903(g)
Medicaid Action Transmittal 82-27, issued in December 1982, contained
the validation survey procedures for the quarterly showings for the
quarter ending September 30, 1982. State Appeal File, Exhibit A. In
accordance with Action Transmittal 82-27, the Agency provided the State
with a list of the ten ICFs selected for onsite review, and further
requested the State to provide a Medicaid patient list for each
facility. State (4) Appeal File, Exhibit H. The purpose of the onsite
reviews was to determine whether the utilization control certification,
recertification, and plan of care requirements of section 1903(g)(1)(A)
and (B) were met. During February and March of 1983 federal reviewers
surveyed the records in each facility for patients who were selected by
a random sample formula from the information provided by the State.
State Brief, pp. 5-7; Agency Brief, p. 5. Action Transmittal 82-27
provided for completion of the surveys by the end of March 1983 and
official notice to the states of section 1903(g) violations no later
than July 1, 1983. Noting that complete analysis of the survey findings
generally takes several months, the action transmittal also provided for
the states to receive a preliminary report of the survey findings and
for the states to submit to the Agency shortly after receipt of the
preliminary report any date unavailable at the facilities during the
survey. Of the ten ICFs surveyed in New York, some were ICFs for the
mentally retarded (ICFs/MR) and, at least one, Harding Nursing Home, was
a dual ICF/SNF facility.
The Agency indicated that a State representative accompanied the
federal reviewers to each facility and that --
(at) the completion of the survey of each facility, respondent
conducted an exit interview in which findings of the federal reviewers
were discussed with the facility (representatives) and the
representative from the State. After completing the survey of all 10
facilities, federal reviewers visited each of the facilities a second
time to assure that no documents had been overlooked . . . .
Agency Brief, p. 5
The State received no written preliminary report.
By letter dated June 27, 1983 the Agency informed the State of
violations of the section 1903(g)(1)(A) and (B) requirements in nine
ICFs and one SNF (Harding) and assessed a disallowance for those
violations. Attached to the disallowance letter was a list, by
facility, of each patient and the violations found by the Agency. The
Agency found untimely and invalid certifications, recertifications, and
plans of care.
Statement of the issues
The State's arguments raised the following issues:
* Whether there were violations of the section 1903(g)(1)(A) and (B)
requirements;
(5) * Whether the violations cited for the ICF/MR patients should be
reversed because there was substantial compliance with the utilization
control requirements;
* Whether the Agency could properly take a disallowance for the SNF
level of care when it found violations for SNF patients in a dual ICF/
SNF facility during a validation survey of ICFs;
* Whether alleged deficiencies in the validation survey process and
the alleged loss of facility records by the federal surveyors are bases
for reversing the disallowance.
Whether there were violations of the section 1903(g)(1)(A) and (B)
requirements
Summary of the parties' arguments
The State made a general allegation that documentation showing
compliance with the certification/recertification requirements was
available during the onsite surveys. The State claimed that a State
review of the medical records and documentation performed after the
federal onsite surveys were performed showed compliance with the
certification/recertification requirements. The State asserted that the
disallowance should be "summarily dismissed as invalid." State Brief,
p.
12.
The State argued that the federal findings had "minimal empirical
credibility" because the federal reviewers "did not have sufficient
training or experience . . . or were so disorganized" that they did not
identify supporting documentation and left reviewed files "in disarray,
missing original documents and in generally poor order." Thus, the State
questioned whether, given the federal reviewers' conduct, there had
actually been sufficient documentation in the files during the federal
review to show compliance. State Brief, pp. 10-12. The State also
presented specific data for two facilities and argued that there was a
"cloud of doubt over all the federal findings" because of the
differences between the federal and State findings at these two
facilities. (The State attributed an 86.9% error rate to the federal
findings for these two facilities.) State Brief, p. 11.
The State submitted letters from the State Department of Health (DOH)
discussing its findings after reviews at Ann Lee Home and Infirmary and
Harding Nursing Home. (The Agency's disallowance letter found
violations for 26 patients in Ann Lee and 17 patients (6) in Harding.)
For Ann Lee the State submitted a document summarizing for 21 patients
the federal as contrasted with the DOH finding. The State also
submitted patient records for Ann Lee. DOH concluded that for Ann Lee
"we disagree with the Federal findings for 20 of the 26 patients
reviewed." For Harding the DOH concluded that, based on certain
arguments, it "(disagreed) with the findings of invalid recertification
in 15 of the 17 cases, the finding of untimely recertification in 3 of
the 6 cases, and the finding of untimely update of plan of care in 7 of
the 11 cases." State Appeal File, Exhibits L and M.
The State alleged that "several" homes, including Ann Lee and
Harding, complained that the federal reviewers left the patients'
records in "disarray." State Brief, p. 12. The State submitted two
letters from the Administrator of the Ann Lee Home. One letter mentions
six patients, none of whom were cited for violations by the Agency, but
whose records the facility said were incomplete after the federal
survey. State Appeal File, Exhibit J. The Ann Lee Administrator later
stated:
I would like to formally state the fact that as a result of the
onsite visit by . . . from the Health Care Financing Administration in
regard to Utilization Control, the resident's medical records have
missing documentation. Through their survey, they reviewed and copied
many records. There appeared to be no system of returning the medical
records to their original state. As a result, we have found that some
medical records are missing original documents as well as duplicate
copies normally contained in the resident's charts.
This survey has caused considerable problems for us . . . .
State Appeal File, Exhibit K.
The DOH findings for three Ann Lee residents stated that documents
may have been missing from the patient's records at the time of the DOH
review. The DOH findings for other patients, in general, make many
references to patient records without indicating that the records were
incomplete.
The State further alleged that the Agency "did not properly review
the material (the State) submitted" because the Agency did not show that
the documents in the State's appeal file "had been reviewed by the
proper program staff to determine whether or not they demonstrated
compliance with the certification requirements." State Reply Brief, pp.
3 and 5.
(7) The Agency argued, based on prior Board decisions, that the
disallowance was properly taken. The Agency did not, however,
specifically address the State's allegations concerning the condition of
the facilities' patient records after the federal survey.
After reviewing the patient records submitted for Ann Lee, the Agency
determined that the finding of a violation for one patient was incorrect
and that the documentation submitted for one other patient showed the
timely establishment of a plan of care but that the violation for that
patient must be sustained because of a finding of an untimely initial
certification.
The Agency stated:
Beyond these two items, however, respondent's original determinations
of untimely certifications/recertifications remain unchanged.
For the most part the documentation submitted by the State consists
of physicians orders and progress notes. This documentation does not
satisfy the requirements of section 1903(g)(A) because they do not
attest to a specific level of care.
Agency Brief, p. 11.
Analysis
The Board has now decided a substantial number of appeals from
section 1903(g) disallownaces. Under these decisions, it is clear that
the State has the burden of demonstrating compliance with the
utilization control requirements of section 1903(g). Oklahoma
Department of Institutions, Decision No. 318, June 28, 1982. Moreover,
under the Agency's interpretation of the Act, which the Board has upheld
as reasonable, the Agency is required to impose a disallowance once
there is a finding of even one violation in a facility. Colorado
Department of Social Services, Decision No. 169, April 30, 1981, p. 7.
Thus, in order to avoid the 1903(g) disallowance here the State must
show that the certification, recertification, and plan of care
requirements were met for each patient, i.e., "in each case." /2/
(8) The letters summarizing the results of the DOH reviews of Ann Lee
and Harding did not conclude that the requirements were met for each
patient for whom the Agency found a violation. In addition, the State
did not attribute its inability to demonstrate that the requirements
were met for each patient to lost or missing patient records. In
essence, the State's submissions constitute an admission that there were
several violations each at Ann Lee and Harding. Assuming, as the State
alleged, that the federal reviewers left patient records in disarray and
actually lost some records, this alone is not a sufficient basis for
overturning the disallowance. Although we see the seriousness of such
an allegation, the record does not show that the State was unable to
demonstrate compliance in each case due to lost or disarrayed patient
records. Here, independent of the possible loss or disarray of some
patient records, there were violations at Ann Lee and Harding. Even if
we were to overturn the violations for those Ann Lee patients for whom
the State reviewers concluded that documents may have been missing, the
disallowance is not affected. Procedural flaws in the Agency's conduct
of validation surveys do not relieve a state of its burden to
demonstrate compliance with the applicable requirements. Procedural
flaws are not a basis for overturning a disallowance unless the State is
then unable to demonstrate compliance. Hawaii Department of Social
Services and Housing, supra, and Indiana Department of Public Welfare,
Decision No. 489, December 30, 1983.
Moreover, the State review summaries in the record are merely
conclusory statements that the requirements are met and neither the
review materials (State Appeal File, Exhibit L) nor the State's briefs
analyze the patient records and explain why the requirements should be
considered met. For example, the review summary for patient James D.
cited for untimely recertification states:
Recertification was timely as evidenced by signed physician orders
dated 7/8/82, 7/29, and 9/9/82, progress notes dated 7/23/82, 8/17/82,
and 10/14/82 and lab slips signed by the physician dated 6/1/82, 7/16/
82, 8/13/82, 9/1/82 and 9/30/82. Copies are included . . . .
Where the State made no specific arguments concerning how the
requirements were met and did not contend that the requirements were met
for each patient, we think it was sufficient for the Agency, upon review
of the documentation for Ann Lee, to simply inform the State where its
determinations changed based on this review and to state in general that
"this documentation does not (9) satisfy the requirements of section
1903(g)(A) because they do not attest to a specific level of care." /3/
Indeed, as the Agency noted, since the State did not assert that the
requirements were met for each patient, had the Agency accepted (10) the
State's conclusions where it asserted the requirements were met, the
disallowance would still be appropriately taken. /4/ In light of this
conclusion, the purported inexperience of the federal reviewers is
simply not relevant to the determination of whether or not there were
violations of the section 1903(g) requirements. See Indiana Department
of Public Welfare, supra, p. 9. Thus, the State's arguments that the
reviewers were inexperienced and that the Agency's review of the
documents submitted with the State's appeal brief was deficient are not
(11) bases for overturning either the disallowance in general or for the
two re-reviewed homes.
Here, the State has chosen to rely on information about State reviews
in two facilities and general arguments concerning the federal review in
order to support conclusions that the federal findings were flawed and
that the requirements of section 1903(g)(1)(A) were met in all the
facilities for which the disallowance was taken. Since the record does
not support a conclusion overturning the findings that there were
violations at the Ann Lee and Harding homes, the record clearly does not
support a conclusion that documentation showing compliance with the
1903(g)(1)(A) requirements was present in the other facilities at the
time of the federal reviews. /5/
Whether the violations cited for the ICF/MR patients should be reversed
because of substantial compliance with the utilization control
requirements
The State asserted that "documentation verifies" substantial
compliance with the certification/recertification and plan of care
requirements in the two ICFs/MR reviewed. /6/ The State further alleged
that "the total plan of care for each patient had been reviewed
quarterly by a full interdisciplinary team and that annual reviews were
also conducted." State Brief, p. 14. However, the State did not provide
any patient records but rather relied on a letter from an official of
the State Office of Mental Retardation and Developmental Disabilities.
State Appeal File, Exhibit N.
The letter referred only to the plan of care review requirement and
stated that the "90 day requirement (of 42 CFR 356.380(c)) was
interpreted as equivalent to quarterly" and that "greater care in
the
future" would be taken to assure the 90 day requirement was met. The
letter attributed the delays to difficulties (12) in gathering a "team."
The State asserted that "delays of one to three days in the 90-day
review were non-prejudicial but were necessary to ensure participation
of a physician in the review team which was nonetheless conducted within
the quarter." State Brief, p. 14.
Based on our analysis, we conclude that the record does not establish
substantial compliance with the section 1903(g)(1)(A) and (B)
requirements. The letter which the State relied on refers to delays but
gives no specific number of days. Therefore there is no support in the
record for the assertion that the delays were only one-to-three days in
duration. The letter did refer to an interpretation of the 90-day plan
of care review requirement as a "quarterly" requirement. The letter
did
not, however, state that in fact such reviews were completed each
quarter but merely stated that there was difficulty in gathering the
review team. By stating that "it hardly seems that there is a pattern
of non-compliance," the letter supports a finding that there were at
least some instances of non-compliance. Moreover, the State's brief
referred to "utilization review" and "annual reviews"; it
is unclear
whether the State was referring to the requirements in question here or
to utilization reviews under section 1903(g)(1)(C) and to annual reviews
under section 1903(g)(1)(D).
There is no reason to conclude, and indeed the State did not argue
that, in the context of the Agency's implementation of the utilization
control requirements in general, the "90 day" requirement for plan
of
care review can reasonably be read as a requirement for quarterly
review. Indeed, the record does not even establish that such reviews
were performed quarterly. Here the record shows that the plan of care
reviews did not in each case meet the 90-day requirement and the State
simply alleges, without analyzing supporting patient records, that the
certification/recertification and plan of care requirements were
substantially complied with in two ICFs/MR. There is thus no basis for
reversing the disallowance where the State has merely alleged only
substantial compliance with the requirements. Missouri Department of
Social Services, Decision No. 214, September 23, 1981.
Furthermore, as noted by the Agency, the Board has previously held
that total rather than substantial compliance with the utilization
control requirements is necessary. Kansas Department of Social
Services, Decision No. 312, June 21, 1982. The Board has upheld as
reasonable the Agency's interpretation of the Act under which it must
take a disallowance where there is even a single violation in a
facility. Colorado Department of Social (13) Services, supra. In
addition, the Board has previously upheld violations where
recertifications were made one-to-four days after the 60-day statutory
limit for recertification. Georgia Department of Health, Decision No.
207, August 28, 1981 and Virginia Department of Health, Decision No.
208, August 28, 1981.
Whether the Agency could properly take a disallowance for the SNF level
of care when it found violations for SNF patients in a dual ICF/SNF
facility during a validation survey of ICFs
The State argued that the disallowance for the SNF level of care
based on violations found for SNF patients in Harding unfairly counted
this facility twice. (This facility was also included in the
disallowance taken for the ICF level of care.) The State objected to
findings of violations for SNF patients occurring outside the context of
the typical validation survey procedures which involve random selection
of both the facilities and the patients to be reviewed. The State
alleged that pre-selection of facilities in the typical validation
survey process serves as a "blind control" over the validation
procedures and prevents the Agency reviewers from choosing those
facilities most likely to have violations. The State asserted that
"this deviation from the official scenario" to include a disallowance
for an SNF facility is a basis for reversing that disallowance. State
Brief, Point IV.
We disagree. As the Agency pointed out, the Board held in Ohio
Department of Public Health, Decision No. 191, June 24, 1981 --
that the inclusion of a single dually certified facility in both the
ICF and SNF calculations was not only permitted but mandated by section
1903(g) where the Agency determined that there were violations for both
the ICF and SNF patients.
Agency Brief, pp. 26-27.
In the Ohio decision the Board rejected the State's argument that
this was an improper extension of the scope of the validation survey.
Based on Ohio it is clear that when, in the course of a validation
survey of patient records, the Agency determines that violations exist,
the Agency cannot ignore such violations and must take a disallowance
for each level of care in which the utilization control requirements
have not been met. Thus, the State cannot avoid a disallowance at the
SNF level of care simply because the Agency found violations for SNF
patients during the course of a validation survey of ICFs.
(14) In this case, however, we believe that the record raises a
question whether the SNF patients for whom violations were found at
Harding were in fact ICF patients. The parties did not address this in
their submissions. Nevertheless, in the report of its review of
Harding, DOH stated that there was some confusion between the levels of
care caused by the facility's preprinted recertification forms. The
report goes on to state that:
It should be noted that the five residents which (HCFA) identified as
SNF patients were appropriately placed as HRF residents at the time of
the audit as evidenced by the initial certifications, DMS-1 forms,
physician's orders and notes and the minutes of the Utilization Review
Committee meetings.
State Appeal File, Exhibit M.
Consequently, we return the SNF portion of the disallowance to the
parties in order to give the State the opportunity, within 30 days of
receipt of this decision, to submit documents to the Agency showing that
the five SNF patients for whom the Agency found violations were in fact
ICF patients. If the State chooses to submit no documentation to the
Agency then the SNF disallowance in the reduced amount is sustained. If
the parties cannot agree on what the documentation submitted by the
State shows, the State may return to the Board on this part of the
appeal. /7/
Whether alleged deficiencies in the validation survey process are a
basis for reversing the desallowance
The State alleged that the entire disallowance should be reversed
because of the substantial prejudice to the State resulting from the
Agency's deviation from proper survey procedures. In particular the
State asserted prejudice because of:
* Disruption and loss of pertinent facility records by the federal
reviewers.
* The Agency's failure to provide a "preliminary report" of the
survey findings and the State's resulting inability to respond before
the survey findings were final.
(15) * An inadequate chance to respond to the findings due to the
Agency's cavalier dismissal of the documents submitted with the State's
appeal file.
The State also argued that the Agency was clearly rushed to issue its
final determination since the disallowance was issued by telegram and
letter on June 27, 1983, shortly before the deadline, and the Agency, in
its brief, had to recalculate the amount disallowed. To counter the
Agency's point that the exit conferences at the facilities provided
adequate notice of the survey findings, the State argued that these
conferences, which did no more than inform some staff members about
possible problems, were not adequate notice. The State argued that the
process followed by the Agency did not provide a meaningful opportunity
to respond to the preliminary findings. /8/ In addition, the State
argued that the State re-review material demonstrated an error rate over
80% in the federal findings.
The record here shows that the Agency provided timely notice, i.e.,
by July 1, 1983, to the State of the section 1903(g) disallowance. The
disallowance letter informed the State of all the facilities included in
the disallowance calculation and gave each patient's name and the type
of violation found. In addition, during the appeal process, the Agency
revised the disallowed amount and decreased it substantially, in
response to questions raised by the State.
As the State correctly pointed out, the "(respondent) has completely
ignored to date the issue of the propriety of the conduct of the
surveyors," i.e., the disruption or loss of facility records. State
Reply Brief, p. 4. Nevetheless, as discussed above, any lost or missing
records notwithstanding, the record shows that there was at least one
violation in each of the two facilities for which the State submitted
information about the State re-reviews. The State has provided no
patient records to support a conclusion that the Agency's findings for
the other facilities were incorrect; the State has not argued that it
was unable to provide such documentation for the other facilities due to
lost or misplaced records. In addition, where, as here, the State's
submission, in essence, constitute an admission that there were
violations at the cited facilities, the record clearly does not support
a conclusion that the State's ability to present (16) its case on appeal
was adversely prejudiced by the Agency's failure to provide a more
detailed analysis of the documentation submitted for one facility. The
State has chosen to rely on general arguments based on alleged
procedural flaws as the reason for reversing the disallowance. The
State has not provided specific explanations backed up with patient
records to show why the findings were incorrect for each patient in each
facility. While we cannot conclude that the alleged disruption or loss
of facility records and the failure to provide a more formal preliminary
report were consistent with the validation survey procedures set in
Action Transmittal 82-27, neither can we conclude that they are fatal to
the disallowance. /9/ Accordingly, the alleged deficiencies in the
validation survey process are not a basis for reversing the
disallowance.
Conclusion
For the reasons explained above, the ICF portion of the disallowance
is sustained and the SNF portion is sustained subject to a remand. /1/
An attachment to the disallowance letter explained the penalty
calculation formula and showed how the penalty amounts were calculated.
State Appeal File, Exhibit B. The State questioned whether the facility
data used in step three of the ICF penalty calculation was correct and
whether the Agency used accurate patient population data in step four of
the SNF penalty calculation. State Brief, Point II. While not agreeing
with the data proposed by the State, the Agency reviewed the penalty
calculations and revised the data used in step three of the ICF
calculation and step four of the SNF calculation. As a result the
disallowed amount was revised downward to $622,296.89 for ICFs and
$93,979.46 for SNFs. Agency Brief, Exhibit A. The State raised no
further points concerning this aspect of the calculation in its reply
brief. Because of the meaning of the term "long-stay services," the
State also questioned whether "the literal terms of the statute and
regulations call for excluding, in calculating the penalty, all payments
attributable to the provision of services to any patient for the first
60 days of each year commencing July 1." State Reply Brief, p. 7. The
State pursued this question through special counsel independent of the
proceedings in this appeal. State Brief, Point V. The parties
initially disagreed about whether this issue was properly considered
part of this appeal. It is not necessary for us to resolve this
question since, subsequent to the completion of the briefing in this
case, the Agency informed the State that it was again revising the
disallowed amount downward. "This revision was made following the
agency's determination that the penalty calculation should exclude all
payments attributable to the provision of service to any patient for the
first 60 days of each and every year beginning July 1." Letter dated
March 15, 1984 from Agency counsel to a State official. The Agency's
final disallowed amounts are stated above. /2/ Also, as the
Board has acknowledged, given the disallowance formula, the amount
disallowed depends on the number of facilities where violations are
found and is the same regardless of whether there is one violation or
many violations in each facility. Hawaii Department of Social Services
and Housing, Decision No. 295, May 7, 1982. /3/ In considering
whether the requirements of section 1903(g)(1)(A) were met, this Board
has held that a valid certification or recertification "must evidence an
actual assessment of the patient's need for continued treatment at the
particular level of care involved." Hawaii Department of Social Services
and Housing, supra, and Ohio Department of Public Welfare, Decision No.
219, September 30, 1981. The results of the State review evidence a
basic lack of understanding of the requirement that a valid
certification or recertification actually assess the patient's need for
a particular level of care. Our review of the documents relied on by
the State, for example, for patient James D. at Ann Lee, show only
contact with the physician not an opinion or conclusion concerning what
level of care is needed. Our review of the Ann Lee documents reveals
that this is a general deficiency, as the Agency also concluded.
Accordingly, we refer the State to the Board's discussion of documents
sufficient to show recertification in Hawaii Department of Social
Services and Housing, supra, pp. 6 and 7. In addition, Action
Transmittal 82-27 specified that the survey would be, inter alia, to
identify certifications and recertifications meeting both federal
requirements and "the State's written methods and procedures for
identifying certification or recertification." The State alleged that
its procedures required recertification monthly and thus were "stricter
than federal standards require." September 20, 1983 letter, State to
Board. The State provided a comparison of the federal and State
requirements. State Appeal File, Exhibit E. The Agency disputed the
State's conclusion and noted that: (Section) 416.9(b)(1) (of the State
procedures) provides that for SNF's, recertification is to be performed
every 30 days for the first 90 days and then every 90 days thereafter.
Similarly, the state requirements for health related facilities
(including ICF's) set out at Sec. 421.13(b)(1) of the State's chart are
for recertification every 90 days. This document is therefore an
admission by appellant that its own requirements are not in compliance
with federal requirements. Agency Brief, p. 14. For purposes of this
appeal, it is not necessary to decide whether the State's requirements
comply with the federal requirements. We will simply note that the
State's requirements for public or voluntary SNFs include a visit by the
personal physician every 30 days unless there is an alternate schedule
for visits, at least at 60 day intervals. Section 416.1(g)(4)( i).
(Section 416.1(h)(1)(i) for proprietary SNFs provides for a 30 day visit
schedule, but this section is not repeated in its entirety in the
chart.) For ICFs a visit is required "in no case less often than every
60 days, unless justified otherwise and documented by the attending
physician." Section 421.1(g) (public or voluntary health related
facilities) and section 421.1(i) (proprietary facilities). The sections
of the State requirements just cited provide at least an arguable basis
for enforcing the 60 day recertification requirement. We note further
that the chart references, in a footnote, the use of physicians'
progress notes to comply with the recertification requirement. The
footnote states: Our position is that the presence of updated physician
progress notes (and the absence of discharge orders) is evidence of
continued need for in-patient care. Although a physician's progress
notes may be used to recertify, the notes must include an actual
assessment of the patient's continued need for a particular level of
care. Action Transmittal 80-68. /4/ Indeed, the Board has found
previously that it was unnecessary to review documentation submitted to
refute a substantial number but not all of the violations cited by the
Agency since, so long as there is at least one unrefuted violation in a
facility, the disallowance is unaffected by a determination that the
requirements were met in some instances. Hawaii Department of Social
Services and Housing, supra, p.
documentation showing that the plan of care requirement of section
1903(g)(1)(B) was met. It is unclear whether this was a purposeful
omission. /6/ The State did not identify the two ICFs/MR in its
brief. However, it appears this information is elsewhere in the record.
Exhibit I in the State's appeal file is an ICF-DD (developmental
disabilities) roster from the New York State Department of Social
Services. The roster lists patients in three facilities. Two of the
facilities were cited in an attachment to the disallowance letter for
untimely plan of care update violations. The Agency found one violation
at one facility and three at the other. /7/ We note that this
remand does not provide the State a further opportunity to refute the
violations found for these patients but simply with an opportunity to
show that they were not SNF patients. /8/ The State also argued
that the disallowance at the SNF level of care, discussed previously,
was a procedural flaw and a basis for reversing the SNF portion of the
disallowance. /9/ We do not mean to imply that the alleged
deficiencies do not merit further consideration by the State and the
Agency. The record here is not sufficient for us to conclude the
extent, if any, of the actual loss or disruption of facility records.
It would seem, however, that since the Agency sets validation survey
procedures it should take the necessary steps to assure these procedures
are followed with minimal inconvenience to the facilities surveyed.
NOVEMBER 14, 1984