SUBJECT:

Evolution Healthcare Community Mental Health Center,

Petitioner,

Health Care Financing Administration

DECISION

After considering the arguments of the parties, the documentary evidence, and the applicable law and regulations, I sustain the Health Care Financing Administration's (HCFA's) determination that Petitioner did not meet the requirements for certification to participate in the Medicare program as a community mental health center (CMHC) providing partial hospitalization services.

I. Background

Petitioner, a mental health care facility in Opelousas, Louisiana, submitted an application to HCFA on May 4, 2000 requesting certification to participate in the Medicare program as a CMHC providing partial hospitalization services. HCFA determined that Petitioner did not meet certification requirements and communicated its determination to Petitioner by letter dated June 9, 2000. Specifically, HCFA stated that Petitioner did not meet the CMHC requirement that it provide 24-hour-a-day emergency care services. By letter dated June 28, 2000, Petitioner provided HCFA with additional evidence, in an attempt to persuade HCFA that it did satisfy certification requirements. HCFA was not persuaded by this evidence, and so notified Petitioner by letter dated July 18, 2000.

Petitioner filed a request for hearing on September 15, 2000, and the case was assigned to me for hearing and decision. By my "Order and Schedule for Filing Briefs and Documentary Evidence" dated November 27, 2000, I noted that the parties agreed that there is no need in this case for testimonial evidence and that all factual disputes would be resolved through my review of the documentary evidence submitted to me by the parties. I then adopted the briefing schedule suggested by the parties, which concluded with Petitioner's reply brief dated April 16, 2001. In the absence of objection, I am admitting into evidence HCFA's 8 proposed exhibits (HCFA Exs. 1- 8) and Petitioner's 10 proposed exhibits (P. Exs. 1- 10). I note that Petitioner submitted a brief (P. Br.) to which HCFA responded (HCFA Br.) and to which Petitioner replied (P. R. Br.). Where Petitioner and HCFA have submitted an identical copy of an exhibit, or a page or pages of an exhibit, I will cite to HCFA's exhibits.

II. Applicable law and regulations

Partial hospitalization in the context of a CMHC consists of a program of psychiatric services prescribed by a physician and aimed at providing treatment to patients who would otherwise require inpatient psychiatric hospitalization. Section 1861(ff) of the Social Security Act (Act); 42 C. F. R. � � 410.2, 410.43, 410.110.

In order to be certified as a CMHC providing partial hospitalization services in the Medicare program, an entity must meet certain statutory requirements. The Act requires that a CMHC provide the services described in section 1916(c)(4) of the Public Health Service Act (PHSA) (since recodified as section 1913(c)(1) of the PHSA (42 U.S.C. � 300x-2(c)(1)), and meet the requisite licensing or certification requirements for a CMHC in the State in which it is located.

To be approved as a CMHC, an entity must provide the following services listed in the PHSA at section 1913(c)(1):

� outpatient services, including specialized outpatient services for children, the elderly, the seriously mentally ill, and residents of service areas of the centers who have been discharged from inpatient treatment at a mental health facility;

� 24-hour-a-day emergency care services;

� day treatment or other partial hospitalization services or psycho-social rehabilitation services; and

� screening for patients being considered for admission to State mental health facilities to determine the appropriateness of such admission.

See PHSA, section 1913(c)(1); 42 C.F.R. � 410.2.

III. Issue

The issue in this case is whether HCFA was correct when it determined that Petitioner was not providing 24-hour-a-day emergency care services, one of the services listed in section 1913(c)(1) of the PHSA and required by section 1861(ff)(3)(B) of the Act.

IV. Burden of Proof

As an applicant for certification as a participant in the Medicare program, Petitioner has the burden of establishing that it satisfies participation requirements. 42 C.F.R. � 489.10(a). Petitioner also has the ultimate burden of rebutting, by a preponderance of the evidence, any prima facie case of noncompliance established by HCFA. Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd, Hillman Rehabilitation Center v. United States Department of Health and Human Services, Health Care Financing Administration, No. 98-3789 (GEV), slip op. at 25 (D.N.J., May 13, 1999).

HCFA meets its burden to establish a prima facie case merely by establishing that Petitioner has not supplied it with sufficient affirmative evidence that it is complying with participation requirements. As an applicant for certification, Petitioner must show affirmatively that it is complying with such requirements.

V. Findings and Discussion

My findings of fact and conclusions of law are noted and numbered below, in bold and italics, and are followed by a discussion of each finding.

1. Petitioner did not establish that it was providing 24-hour-a day emergency care services.

For an applicant to qualify to participate in the Medicare program as a CMHC, the Act and the regulations require it to provide 24-hour-a-day emergency care services. PHSA, section 1913(c)(1); Act, section 1861(ff)(3)(B); 42 C.F.R. � 410.2. HCFA contends that Petitioner has not shown that such services were actually performed. This conclusion was reached after evaluating the information gathered byIntegriGuard,⁽¹⁾ HCFA's contractor, whose personnel made an on-site visit to Petitioner to verify Petitioner's provision of the services required under the Act and regulations. HCFA asserts that following this on-site visit IntegriGuard submitted a report that substantiates HCFA's denial of certification. HCFA Br. at 5; HCFA Ex. 2.

Petitioner claims that it was complying with the statutory and regulatory requirement to provide 24-hour-a-day emergency care services by having a system designed to transfer phone calls at the end of the facility's regular working hours to a portable cellular phone which would be answered by a mental health professional (which calls would still be made to the same telephone number utilized by Petitioner's patients during regular business hours (P. Br. at 2)). HCFA Ex. 5, at 3; HCFA Ex. 6, at 1 - 6. In order to verify Petitioner's claim that at the end of the working day all calls were transferred to the cell phone, an IntegriGuard employee attempted to reach Petitioner's emergency services at 11:20 p.m. on May 15, 2000. HCFA Ex. 2, at 23. Although the facility administrator had represented to IntegriGuard that the phone rang only once before being answered, the IntegriGuard employee obtained no response after 11 rings. Id. HCFA employees later made four unsuccessful attempts to reach the facility's after-hours cell phone between 5:40 p.m. on June 8, 2000 and 6:50 a.m. on June 9, 2000. HCFA Exs. 3, 4 .

Petitioner's position, as reflected in its request for reconsideration dated June 28, 2000 and in its briefs, is that it was complying with the Act and regulations requiring the 24-hour-a-day emergency care services requirement on the dates that the HCFA contractor and employees made their calls. It asserts that it was receiving all incoming calls, as is reflected in its call logs, telephone records, and the maintenance of its forwarded caller service. Petitioner speculates that HCFA surveyors may have been unable to access the after-hours number because the Dallas area codes they made the call from may have been incompatible with the telephone services Petitioner maintained. Petitioner asserts this as a possibility because it states that its caller ID services show no calls received from either the 972 or 214 area codes on the dates on which HCFA claims to have tested the after-hours emergency number. Petitioner further asserts that on one of the dates in question, June 8, 2000, an actual emergency call was placed, received, and handled by Petitioner according to the policies and procedures Petitioner has in place for emergency services.⁽²⁾ HCFA Ex. 6.

HCFA disagrees with Petitioner's contention that it keeps a log that bears testimony to its compliance with the requirement to provide after-hours emergency care services. HCFA notes that the logs Petitioner refers to show entries at various dates from March 1 to June 22, 2000, but, during the on-site survey on May 15, 2000, Petitioner was unable to produce any documentary evidence to substantiate its claim that it actually provided services. HCFA Ex. 2, at 23; HCFA Ex. 6, at 7 - 9. Consequently, the sudden appearance of this new "proof" of compliance is viewed as suspect by respondent. HCFA Br. at 12 - 13.⁽³⁾

HCFA also points out that although Petitioner provided affidavit support that at least four separate individual staff members shared the duty of carrying the cellular phone to which after-hours calls were allegedly forwarded, the call log is written entirely in one person's handwriting. P. Exs. 5, 6; HCFA Br. at 13. Petitioner concedes this, but alleges in its reply brief that Patrick Bowman, Petitioner's administrator and counselor, was primarily responsible for handling after-hour calls. P. R. Br. at 3, n.2. Petitioner adds that while others shared that responsibility on rare occasions, Mr. Bowman was the only one to have received after-hour calls, and that the call log itself indicates that Mr. Bowman received the cell phone call in which a client of Petitioner's allegedly got through on the after-hours number after being conferenced in by a facility employee. P. R. Br. at 3, n.2. The affidavits to which HCFA refers (P. Exs. 5, 6), sworn to by Petitioner's general facilities manager and nurse manager, indicate that if a call came in they would screen the call and, if necessary, contact one of the Petitioner's social workers or the medical director, Dr. Phillip Lefleur. The affidavits listed Patrick Bowman and Richard Babin as the social workers who shared on-call duties.

I find that logic dictates that if an after-hours call was forwarded to the cellular phone of one of the affiants, regardless of what action they took, it would be they who would make a log entry to document the action taken in the matter. If, for some arcane reason, the system in place required the person to whom the matter was referred to make the log entry, I would expect to find entries by Patrick Bowman, Richard Babin, and Dr. Phillip Lefleur within a several month period. However, as Petitioner concedes, only entries by Mr. Bowman appear on the logs. When confronted with the fact that only Mr. Bowman made entries in the call logs, Petitioner explains that he was the only person to have received after-hour calls. P. R. Br. at 3, n.2. This contradicts the affidavits of the general facilities manager and nurse manager, who stated that if a call was received they screened it and contacted a social worker or the medical director. P. Exs. 5, 6. In that sense, Petitioner's revised explanation of Mr. Bowman's role in the handling of after-hours calls is a departure from the evidentiary offering previously made by Petitioner and is therefore unpersuasive. The explanation given now is no more than an unsupported self-serving statement.

As additional proof that it provides 24-hour-emergency care services, Petitioner references the call received on June 8, 2000 from Denise Anderson, the case manager at the Opelousas New Life Center, on behalf of one of their tenants. HCFA Ex. 6, at 9. In response, HCFA notes that this call does not appear on the telephone records. However, Petitioner counters with the explanation that no record of the call appears because there was an individual present at the facility when the call was received who "conferenced in" Mr. Bowman. P. Br at. 7, n.1. Ms. Anderson's statement says that she spoke with the "after-hours on call person," and was transferred to Patrick Bowman. HCFA Ex. 6, at 2. Petitioner, on the other hand, claims that the call was received by an individual who happened to be at the facility. Again, Petitioner's rationalization runs counter to its own documentary evidence.⁽⁴⁾ Moreover, I agree with HCFA that, at most, Ms. Anderson's statement reflects that an after-hours call was successfully completed in this one instance (apparently not even a call forwarded to Mr. Bowman by the call forwarding system but by an employee who happened still to be working at the facility and answered the phone). This one after-hours call does not prove that Petitioner's system was in place and working.

Additionally, I agree with HCFA that the absence of clinical documentation to support the alleged interventions noted in the after-hours call log detracts from Petitioner's alleged compliance with the 24-hour-a-day emergency care services requirement. HCFA Br. at 13. All of these inconsistencies militate against a conclusion that Petitioner was genuinely providing 24-hour-a-day emergency care services. If these services were really being provided it should be evident, and an examination of their existence need not require the scrutiny of a magnifying glass.

I do not find the other documents on which Petitioner relies, such as the cellular telephone itemized record of calls (P. Ex. 7), probative of compliance with the requirements. HCFA is correct in its assertion that they are inconclusive and provide no verification of after-hours emergency calls received by the facility. HCFA Br. at 15.

Petitioner asserts that because hot lines, beepers, and answering services may be facets of emergency services, but not constitute their totality (citing HCFA Pub. No. 9, � 260.2 (P. Ex. 3)), HCFA should not have determined that it was not meeting certification requirements because Petitioner did have policies and procedures complying with the requirement. P. Br. at 4 - 5. Petitioner's argument here is unavailing, however, because Petitioner must show that it is actually "providing" services. The purpose of the 24-hour emergency care services requirement (see HCFA Ex. 3) is not to have a hot line service in place to receive calls, it is to ensure that a patient is able to consult with a clinician outside of business hours for a psychiatric emergency and then receive interventions to deal with that emergency.

In summary, I agree with HCFA that given Petitioner's representations that the means by which they provided emergency care was by forwarding their business telephone to a cellular phone, it was reasonable for HCFA to verify that the system was operational. A system in place is not evidence that the 24-hour-a-day emergency care services requirement is met. The purpose of the requirement, as I state above, is not to have the call system; the purpose of the requirement is to ensure that patients get the help they need from a qualified clinician 24-hours-a-day. Thus, without clinical documentation or other independent verification, it is not possible to demonstrate that an applicant has met this requirement. Here, Petitioner has failed to proffer documentation proving that it was providing this service and HCFA has proved that it was unable to even access the system that Petitioner asserted showed its compliance with this requirement. Moreover, Petitioner has failed to provide any plausible explanation accompanied by credible evidence regarding why HCFA or its contractor could not access the after-hours service.⁽⁵⁾

Petitioner also considers HCFA's reliance on Psychstar of America, DAB CR645 (2000), to be misplaced. P. R. Br. at 1 - 3. I disagree. Psychstar's definition of a CMHC is that a CMHC is an entity that is providing specified services. Thus, an applicant's policies and procedures, however artfully drafted, are meaningless without actual application. Such reasoning is applicable here, and Petitioner has not demonstrated compliance.

2. Petitioner's failure to establish that it provided 24-hour-a-day emergency care services means that Petitioner has not satisfied the participation requirements for certification as a CMHC providing partial hospitalization services and is a sufficient basis for HCFA to deny Petitioner certification to participate as a CMHC in the Medicare program.

It is Petitioner's responsibility to prove that it satisfies participation requirements where HCFA has made a prima facie case that it has not done so. Petitioner's failure to satisfy participation requirements for a CMHC here compels me to sustain HCFA's determination.

In order to be certified to provide partial hospitalization services, an applicant must provide all of the services listed in section 1913(c)(1) of the PHSA. This includes an applicant's provision of 24-hour-a-day emergency care services. The record of this case shows that Petitioner did not provide such 24-hour-a-day emergency care services.

VI. Conclusion

Based on the foregoing analysis, I sustain HCFA's determination denying certification to Petitioner, Evolution Healthcare Community Mental Health Center, to participate in the Medicare program as a CMHC providing partial hospitalization services.

José A. Anglada

Administrative Law Judge

1. HCFA states that to assure compliance with federal requirements, a prospective CMHC must have an on-site visit by its contractor, IntegriGuard. IntegriGuard's function is to gather information pertaining to whether the prospective CMHC meets participation requirements and to provide that information to HCFA. HCFA then conducts an evaluation to arrive at a determination regarding approval for certification. HCFA Br. at 5.

2. Petitioner refers here to a call received from Ms. Denise Anderson, of New Life Center, on June 8, 2000. HCFA Ex. 6, at 2; P. Ex. 2, at 2.

3. I note that on the call log, no emergency calls appear logged from March 28 to May 8, 2000. HCFA Ex. 6, at 8 - 9. That hiatus of more than a month is not credibly reflective of a facility that is routinely providing 24-hour-a-day emergency care services to its clientele. A similar hiatus appears from May 9 to June 7, 2000. Id. at 9.

4. It is noteworthy that Petitioner refers to this call as an actual emergency. Does that mean that none of the other calls recorded in the after-hours phone log are actual emergencies?

5. I note HCFA's rebuttal to Petitioner's assertion that HCFA's area code might have caused the problem, which is that HCFA's contractor was calling from a local telephone number, not a Dallas area code, when the contractor placed an after-hours call to Petitioner's telephone number on May 15, 2000 and was unable to get through.