Decision No. CR657 Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |||||||
Long Life Wellness Center, |
DATE: Apr 5, 2000 | ||||||
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Health Care Financing Administration | Docket No.C-99-456 | ||||||
DECISION | |||||||
I enter summary disposition sustaining the determination
of the Health Care Financing Administration (HCFA) to deny certification
to Petitioner, Long Life Wellness Centers, Inc., to participate in the
Medicare program as a CMHC providing partial hospitalization services.
I do so because Petitioner has not shown that it may provide screening
for patients being considered for admission to State mental health facilities
to determine the appropriateness of such admissions consistent with the
requirements of federal and applicable Florida State law. Background Petitioner is a corporation that is located in Boca Raton,
Florida. Petitioner applied to be certified to participate in the Medicare
program as a community mental health center (CMHC) providing partial hospitalization
services. On September 11, 1998, HCFA notified Petitioner that it had
determined that Petitioner did not qualify to be certified as a CMHC.
On October 6, 1998, Petitioner requested reconsideration of HCFA's determination.
HCFA issued a reconsideration determination on December 14, 1998, again
denying Petitioner's application for certification. Petitioner then requested
a hearing and the case was assigned to me for a hearing and a decision.
HCFA moved for summary disposition. Petitioner opposed
HCFA's motion. HCFA submitted a brief (HCFA Br.) and four proposed exhibits
(HCFA Ex. 1 - HCFA Ex. 4) with its motion. Petitioner submitted a brief
(P. Br.) and two proposed exhibits (P. Ex. 1 - P. Ex. 2) in opposition
to HCFA's motion. I hereby receive into evidence HCFA Ex. 1 - HCFA Ex.
4 and P. Ex. 1 - P. Ex. 2. In addition to moving for summary disposition, HCFA moved
to dismiss that portion of Petitioner's hearing request in which Petitioner
asserts that it should be allowed to participate in the Medicare program
after it submits an acceptable plan of correction. Petitioner does not
object to HCFA's request that I dismiss this portion of the hearing request
and, therefore, I dismiss it. Governing law A. Federal law
"Partial hospitalization services" are services which
are described at section 1861(ff) of the Social Security Act and which
are reimbursed by the Medicare program. "Partial hospitalization services"
consist of services that are prescribed by a physician and provided, pursuant
to specified statutory criteria, and which include: individual and group
therapy with physicians and psychologists; occupational therapy requiring
the skills of a qualified occupational therapist; services of social workers,
trained psychiatric nurses, and other staff trained to work with psychiatric
patients; drugs and biologicals furnished for therapeutic purposes; individualized
activity therapies; family counseling; patient training and education;
diagnostic services; and such other services as the Secretary of this
Department may determine to be reasonable and necessary. Act, sections
1861(ff)(1); 1861(ff)(2)(A) - (I). The Medicare program will reimburse for partial hospitalization services that are provided by either a certified hospital or by a CMHC. See Act, section 1861(ff)(3)(A). A "community mental health center" is defined by the Act to mean an entity:
Act, section 1861(ff)(3)(B)(i), (ii). Although the Act refers to section 1916 of the Public Health Service Act, that section was recodified as section 1913(c)(1) of the Public Health Service Act. Under this section, the services that a CMHC must provide include the following:
Additionally, the Secretary of this Department has issued a regulation which defines the term "community mental health center." A CMHC is defined by the regulation to be an entity that:
42 C.F.R. � 410.2. HCFA has published policy guidelines which describe a CMHC's obligations under section 1913(c)(1) of the Public Health Services Act and the above-cited regulation. In a document that is entitled "All States Letter 76-95" (All States Letter), HCFA states that a community mental health services center must provide all of the services that are listed in the Public Health Service Act, either directly or under arrangements with others. The term "under arrangements" is defined in the All States Letter to mean that a CMHC may arrange for those services described at section 1913(c)(1) of the Public Health Services Act and partial hospitalization services:
All States Letter. HCFA did not elect to offer the All States Letter as an
exhibit in this case. That is almost certainly due to the fact that Petitioner
did not assert, either in its application for certification, its request
for reconsideration, or its hearing request, that it had acceptable arrangements
with other entities through which it was providing screening services.
However, Petitioner seems to be making such an argument in its brief.
P. B. at 4. For purposes of this decision, therefore, I take notice of
the All States Letter. I note that the All States Letter may be found
as an exhibit in other cases involving CMHCs which I have decided. See,
e.g., Charity Behavioural Services, Inc., DAB CR635 (1999)
(the All States Letter is in evidence in that case as HCFA Ex. 1).
HCFA has elected to defer to the laws of the States in order to determine what constitutes adequate screening for patients being considered for admission to State mental health facilities pursuant to section 1913(c)(1)(iv) of the Public Health Services Act. In a memorandum dated August 21, 1998, HCFA stated that "screening":
HCFA Ex. 3 at 1 (emphasis in original). B. Florida State law
Florida State law defines the entities that are authorized to perform the procedures which are necessary prerequisites to admission of individuals for treatment at a Florida State mental health facility. Under the Florida Mental Health Act (Florida State Act), F.S.A. � 394.451, et seq., only certain types of entities are authorized to perform the necessary procedures. Specifically, these entities are limited to those entities which are authorized to perform "transfer evaluations." F.S.A. � 394.461(2). A "transfer evaluation" is defined under Florida State law as being:
F.S.A. � 394.455(29). Under Florida State law, a "community mental health center
or clinic" is a: publicly-funded, not-for-profit center
which contracts with . . . F.S.A. � 394.455(6).
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FINDINGS OF FACT AND CONCLUSIONS OF LAW | |||||||
A. Issue The issue in this case is whether HCFA properly determined
not to certify Petitioner to participate in Medicare as a CMHC providing
partial hospitalization services. B. Findings of fact and conclusions of law
I make findings of fact and conclusions of law (Findings)
to support my decision in this case. I set forth each Finding below as
a separately numbered heading. I discuss each Finding in detail.
A threshold question in this case is whether summary disposition
is appropriate. Summary disposition is appropriate either where: there
are no disputed issues of material fact and the only questions that must
be decided involve application of law to the undisputed facts; or, where
the moving party must prevail as a matter of law even if all disputed
facts are resolved in favor of the party against whom the motion is made.
I have looked closely at Petitioner's arguments in order to decide whether
there exist any genuinely disputed issues of material fact.
I am assuming the facts that Petitioner asserts in its
brief and exhibits to be true for purposes of deciding HCFA's motion for
summary disposition. I conclude that summary disposition is appropriate
in this case notwithstanding my decision to accept as true the facts alleged
by Petitioner. As I explain in detail in the Findings which follow, Petitioner
has failed to make a showing that it qualifies to participate in Medicare
as a CMHC providing partial hospitalization services even accepting as
true the facts which Petitioner alleges. 2. Petitioner did not satisfy
participation criteria for a CMHC As I discuss above, at Part II.A of this decision, in order to be certified to provide partial hospitalization services - and to satisfy the statutory definition of a CMHC contained at section 1913(c)(1) of the Public Health Service Act - an entity must meet criteria which, among other things, include the following:
a. Petitioner has not shown
that it is performing screening directly In order to be able to perform directly the screening
services that are required under section 1861(ff)(3) of the Act and section
1913(c)(1)(iv) of the Public Health Service Act, Petitioner must be authorized
to perform transfer evaluations pursuant to Florida State law. Federal
law requires a CMHC to comply with applicable State requirements in order
to participate in Medicare. 42 C.F.R. � 410.2. Florida's law governing
a transfer evaluation by a CMHC is plainly applicable State law inasmuch
as a transfer evaluation is a process that is identical to screening.
Under federal law, screening is the clinical evaluation of a patient to
determine his or her suitability for hospitalization in a State mental
health facility. Under Florida State law, a transfer evaluation also is
a clinical evaluation of a patient to determine his or her suitability
for transfer to a State mental health facility. F.S.A. � 394.455(29).
Under Florida law, in order to qualify as a CMHC that
may perform transfer evaluations, an entity must meet two criteria. First,
it must be a publicly-funded, not-for-profit center. Second, it must contract
with the Florida Department of Children and Families for the provision
of inpatient, outpatient, day treatment, or emergency services. F.S.A.
� 394.455(6). Petitioner asserts that it is a not-for-profit corporation.
P. Br. at 1. Although Petitioner has provided no documentation that it
is in fact a not-for-profit corporation, I am accepting as true Petitioner's
representation that it is a not-for-profit corporation for the purpose
of deciding this case. However, Petitioner's not-for-profit status does not,
in and of itself, satisfy the requirements of Florida State law which
govern the qualifications of a CMHC to perform transfer evaluations. Petitioner
must also show that it contracts with the Florida Department of Children
and Families for the provision of inpatient, outpatient, day treatment,
or emergency services. F.S.A. � 394.455(6). Petitioner has neither
alleged, nor offered any evidence to show, that it has such a contract.
Petitioner asserts, both in its hearing request and its
brief, that it "performs all of the services of a community mental health
center as defined by Florida law." P. Ex. 1 at 1. As evidence to support
this contention Petitioner offers a declaration by its Director/Medical
Director, Angel M. Garcia, M.D. P. Ex. 2. Dr. Garcia avers that Petitioner
provided all of the services described in section 1913(c)(1) of the Public
Health Service Act. Id. at 1. Additionally, Dr. Garcia asserts
that Petitioner is authorized under Chapter 397 of the Florida Statutes
to provide programs to the public in the areas of day and night treatment,
outpatient treatment and prevention program for substance abuse. Id.
at 2. I am accepting as true the assertions of fact that are
contained in Dr. Garcia's declaration. But, Dr. Garcia does not aver that
Petitioner has contracted with the Florida Department of Children and
Families for the provision of inpatient, outpatient, day treatment or
emergency services. Nor has Petitioner produced any independent proof,
aside from Dr. Garcia's declaration, that it has such a contract as is
required under Florida State law as a prerequisite for performing transfer
evaluations. Indeed, at no time during the pendency of Petitioner's application
for certification has Petitioner produced such evidence. b. Petitioner has not shown
that it is performing screening In order to comply with federal participation criteria
an arrangement between a CMHC and another entity must provide that the
CMHC retains overall supervision over the screening process. All States
Letter. It is not sufficient for the CMHC merely to refer a patient to
another entity for screening. The CMHC must directly supervise the basic
functions which the other entity performs that comprise screening.
In its brief, Petitioner appears to concede that it does
not have an arrangement with another entity to provide screening which
complies with the requirements of the All States Letter. See P.
Br. at 6. But, paradoxically, Petitioner appears to arguethat
it may refer its patients to another entity for screening in a manner
that is consistent with the requirements of Florida State law. P. Br.
at 4 - 5. Thus, Petitioner seems to be asserting that, in fact, it does
have an acceptable arrangement with one or more other entities to provide
screening. Petitioner argues that, under Florida State law, an entity
known as a "receiving facility" is permitted to perform transfer evaluations.
P. Br. at 4 - 5. From this Petitioner asserts that it may satisfy the
screening requirement by transferring its patients to a receiving facility
which will then perform the requisite screening. This argument is essentially
the same argument that was made by the facility in the case of T.L.C.
Mental Health Center, DAB CR636 (1999). I held there that a referral
of a patient to a receiving facility does not satisfy the screening requirement
where the referring entity does not exercise the supervisory authority
that is required by HCFA. T.L.C., DAB CR636 at 8. I restate that
holding here. Petitioner's description of the referral of a patient to a screening facility is neither screening performed directly nor is it screening through an arrangement with others that is consistent with HCFA's requirements. It plainly is not screening performed directly because, as Petitioner describes it, the screening would be performed by the receiving facility and not by Petitioner. It is not screening through an acceptable arrangement because Petitioner has made no showing that it would retain the necessary management control or supervisory authority over the screening process. The fact that the receiving facility may be authorized under Florida State law to perform a transfer evaluation begs the question of whether Petitioner is exercising the requisite supervision of the receiving facility's performance of its functions.
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JUDGE | |||||||
Steven T. Kessel
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