Alabama Medicaid Agency, DAB No. 975 (1988)

DEPARTMENTAL GRANT APPEALS BOARD

Department of Health and Human Services

SUBJECT: Alabama Medicaid Agency

Docket No. 88-51
Decision No. 975

DATE:  August 5, 1988

DECISION

The Alabama Medicaid Agency (State) appealed a determination by the
Health Care Financing Administration (Agency) disallowing $170,149 in
federal funding claimed by the State under the Medicaid program of the
Social Security Act (Act) for the quarter ending December 31, 1987.  The
disallowance was taken pursuant to section 1903(g)(1) of the Act, which
provides for reduction of a state's federal medical assistance
percentage of amounts claimed for a calendar quarter for long-stay
services unless the state shows that during the quarter it had "an
effective program of medical review of the care of patients . . .
whereby the professional management of each case is reviewed and
evaluated at least annually by independent professional review teams."
The Agency alleged that Alabama's inspection of care reviews in two
intermediate care facilities (ICFs) that primarily care for mental
patients, S. D. Allen ICF and Alice M. Kidd ICF, were invalid because
the review teams did not contain a physician.  Alabama asserted that the
Agency had misapplied its regulations and that the composition of the
review teams met the Agency requirements.

For the reasons discussed below, we conclude that the position the
Agency advanced here conflicts with the plain meaning of the Agency's
own regulations on review team composition and otherwise lacks a
reasonable basis.  Accordingly, we reverse the disallowance.

It is undisputed that the inspection teams in issue were comprised of
three registered nurses.  State Brief (Br.), p. 7.  The State indicated
that while a physician did not accompany the review team, a staff
physician for the Alabama Medicaid Agency was available for consultation
with the team if necessary.  Id.  Additionally, after the teams had
completed their in-person reviews, they met with this physician to
analyze the team's findings.  Id.  The Agency's basis for this
disallowance was its assertion that under its regulations and the
statute, each inspection team should have included a physician while on
site at the ICFs.

Agency regulations at 42 C.F.R. 456.602 provide the substantive
requirements concerning the composition of review teams in the various
facilities participating in the Medicaid program.  This regulation is
the regulation a State would look to in determining the requirements
relating to the composition of a review team.  The regulation provides
as follows:

   Section 456.602  Inspection team.

     (a) A team, as described in this section . . . must
     periodically inspect the care and services provided to
     recipients in each facility.

  (b) Each team conducting periodic inspections must have
  a least one member who is at [sic] physician or
  registered nurse and other appropriate health and social
  service personnel.

  (c) For an IMD other than an ICF, each team must have a
  psychiatrist or physician knowledgeable about mental
  institutions and other appropriate mental health and
  social service personnel.

  (d) For an ICF that primarily cares for mental patients,
  each team must have at least one member who knows the
  problems and needs of mentally retarded [sic]
  individuals.

     (e) For an institution for the mentally retarded or persons
     with related conditions, each team must have at least one
     member who knows the problems and needs of mentally retarded
     individuals.


It is undisputed that the facilities at issue are ICFs that primarily
care for mental patients.  Consequently, the relevant subsections of
this regulation are subsections (b) and (d).  The plain meaning of these
subsections is that, for an ICF that primarily cares for mental
patients, the inspection team may have either a physician or a
registered nurse.  Subsection (b) states the general rule which permits
a state to use either a physician or a nurse on a review team.  This
rule would apply unless another subsection specifically provides a
stricter requirement.  Subsection (c) provides that, for an IMD other
than an ICF, there must be a psychiatrist or physician knowledgeable
about mental institutions.  Subsection (d) provides that, for ICFs that
primarily care for mental patients, each team must have at least one
member who knows the problems and needs of mental patients.  The clear
effect of all three subsections discussed is that an ICF that primarily
cares for mental patients need not have a physician or psychiatrist as a
member of the inspection team, but must have one member of the team who
knows the problems of mental patients.

The Agency argued that section 456.602 was "silent" as to whether an
ICF/IMD must have a physician on the team, and that section
456.654(a)(7), which is discussed below, was therefore controlling.
Agency Br., pp. 3-4.  The Agency, however, focused entirely on
subsections (c) and (d) of section 456.602 and ignored the effect of
subsection (b), which sets out the general rule permitting either a
physician or a nurse.  Furthermore, subsection (c), which refers to IMDs
and requires a psychiatrist or physician on the team, specifically
excludes ICFs from its scope.  Thus, there is simply no reasonable basis
to interpret the wording of section 456.602 to require a physician on a
team reviewing an ICF/IMD.  Correspondingly, there is no reasonable
basis to conclude that the regulation setting the substantive
requirements for state review teams is simply "silent" as to the
requirements for this facility.

This conclusion is supported by the history of the regulations.  The
rules concerning inspection teams in ICFs have been in effect since
January 1974 without substantive change.  The regulations in effect
between 1974 and 1978 addressed the composition of inspection teams in
ICFs under a separate subsection and clearly did not require a physician
on the team for any type of ICF, including an institution for mental
diseases.  42 C.F.R. 450.24(a)(2), promulgated at 39 Fed. Reg. 2220
(January 17, 1974).  In regulations subsequently promulgated on
September 29, 1978 and October 1, 1979, the Agency consolidated the
rules concerning inspection teams for skilled nursing facilities (SNFs),
ICFs and IMDs.  43 Fed. Reg. 45176 (September 29, 1978); 44 Fed. Reg.
56333 (October 1, 1979).  In the 1979 rulemaking, the Agency implemented
a statutory amendment made by Public Law 95-142 that allows states to
have either a physician or a registered nurse on review teams for SNFs.
Even though the Agency at that time specifically required that SNFs that
were IMDs still must have a physician or a psychiatrist on the team,
presumably to implement the Agency's interpretation of section
1902(a)(26) discussed below, it retained without change in the very same
section the rule that permitted ICFs that are IMDs to have either a
physician or a registered nurse.  See 44 Fed. Reg. 56335 (1979).

The Agency's primary argument on appeal was that the rules concerning
the showing the State must make to demonstrate that it met the medical
review requirements suggested that a physician had to be on the review
team of an ICF that primarily cares for mental patients.  The regulation
cited by the Agency, 42 C.F.R. 456.654(a)(7), lists what must be
included in the State's quarterly showing under section 1903(g).  It
provides:

   For each on-site review in a mental hospital, skilled nursing
   or intermediate care facility that primarily cares for mental
   patients, or inpatient psychiatric facility, list the name and
   qualifications of one team member who is a physician; . . . .

This provision does in fact require a state to list as part of its
showing the name of a physician even in the case of an ICF that
primarily cares for mental patients. However, section 456.654(a)(7) need
not be read to conflict with Subpart I since a state could have a
physician on its review team even for an ICF that primarily cares for
mental patients and, if so, would be required to make that known in its
showing.  Under section 456.602 in Subpart I, a state is not obliged to
have a physician on an ICF review team, but has the option to include
either a physician or a registered nurse.  Section 456.654(a)(7),
therefore, can be interpreted to complement the substantive rules in
Subpart I by requiring a physician to be listed for the facilities at
issue in those instances where a state has exercised its option to
include a physician on the team.

We also think that this interpretation of the nature and effect of the
two provisions, sections 456.602 and 456.654, is reasonable in view of
the fact that a state is dependent on the Agency's regulations for
instructions as to how to proceed in completing its medical reviews.
There would be no apparent purpose in taking a reduction under the
medical review requirements when the Agency's primary regulation setting
out the substantive requirements permits the State to proceed as it did.

We also reject the Agency's argument that its position was supported by
section 1902(a)(26) of the Act.  That section provides that a State plan
for medical assistance must--

   if the State plan includes medical assistance for inpatient
   mental hospital services, provide--

    *  *  *

     (B) for periodic inspections to be made in all mental
     institutions within the State by one or more medical review
     teams (composed of physicians and other appropriate health
     and social service personnel) of the care being provided . .
     . ;

The Agency argued that an ICF that primarily cares for mental patients
would be a "mental institution" within the meaning of this provision and
therefore must include a physician on its medical review team.

We have several problems with the Agency citation of this provision as a
basis for the disallowance.

o  This interpretation would be directly contrary to the rules
concerning inspection teams for ICFs in 42 C.F.R 456.602, which have
been in effect since 1974.  Aside from its arguments relating to section
456.654, the Agency provided no evidence, either in the regulations
concerning the substantive medical review requirements or in their
preambles, that it had ever so interpreted section 1902(a)(26)(B) in
this manner.

o  While the Agency conceivably has the discretion to interpret section
1902(a)(26) as covering ICFs that primarily care for mental patients, it
clearly also could view section 1902(a)(31) as the controlling statutory
provision.  Section 1902(a)(31)(B) requires annual medical reviews in
SNFs and ICFs generally and specifies that review teams need only be
composed of a physician or a registered nurse.  Certainly whether
section 1902(a)(26) would apply is not free of all doubt since ICFs that
primarily care for mental patients arguably might be viewed as not
providing "inpatient mental hospital services" and thus would not be
"mental institutions" within the meaning of that provision.  As the
State noted in its brief, ICFs that primarily care for mental patients
might reasonably be distinguished from SNFs/IMDs and mental hospitals by
virtue of the level of care that is provided to the patients.  State Br.
p. 13.

o  When the Agency implemented the 1979 statutory amendment permitting
SNF teams generally to be composed of a physician or a registered nurse,
it required in section 456.602(c) that IMDs other than ICFs be reviewed
by teams composed either of a physician or a psychiatrist.  (See the
regulatory history of section 456.602 discussed above.)  The Agency's
special rule for IMDs other than ICFs presumably reflected the Agency's
view concerning the scope of section 1902(a)(26).  In any event, the
Agency at that time retained the rule in section 456.602 that required
teams in ICFs that primarily care for mental patients to be composed of
only a physician or a registered nurse.

o  Contrary to what the Agency argued, the Agency's action transmittal
implementing the statutory change allowing either a nurse or a physician
to lead the review team in SNFs adds further support for the State's
position that a physician is not required for ICFs that primarily care
for mental patients.  See HCFA Action Transmittal 79-61 (June 13, 1979),
pp. 3-4, Agency Exhibit 13.  While the action transmittal is not
altogether free of ambiguity, a careful reading suggests that the only
facilities where a physician is still required to be on the review team
are mental hospitals and SNFs designated as IMDs.  The action
transmittal makes no special reference to ICFs that primarily care for
mental patients, and leaves the impression that such facilities need not
have a physician on their review team but rather need only meet the
requirements for ICFs generally.

Conclusion

For the foregoing reasons, we find that the Agency's position conflicts
with the plain meaning of its regulations and otherwise lacks a
reasonable basis.  Accordingly, the disallowance is reversed.

 


 ________________________________ Judith A. Ballard

 

 ________________________________ Cecilia Sparks Ford

 

 ________________________________ Donald F. Garrett Presiding
 Board