DEPARTMENTAL GRANT APPEALS BOARD
Department of Health and Human Services
SUBJECT: Utah Department of Health
Docket No. 87-37
Decision No. 887
DATE: August 5, 1987
DECISION
The Utah Department of Health (State) appealed a determination by
the
Health Care Financing Administration (HCFA, Agency)
disallowing
$31,403.36 in federal Medicaid funding claimed by the State under
title
XIX of the Social Security Act (Act) for the quarter ending June
30,
1986. HCFA based the disallowance on its finding that Utah failed
to
make a satisfactory showing that it had a system of annual reviews,
as
required by section 1903(g)(1) of the Act. HCFA found that the
State
did not review the quality of care for all patients in one
intermediate
care facility (ICF) and one skilled nursing facility
(SNF). During the
course of this appeal, HCFA withdrew its findings of
violations at the
one SNF. Thus, the amount in dispute is now
$29,207.19.
The disallowance here relates to the State's alleged failure to
inspect
one patient in the ICF (identified here as patient L.F.).
Our decision is based on the parties' written submissions. For
the
reasons stated below, we reverse the remaining disallowance.
What the requirements are
Section 1903(g)(1) of the Act provides for the reduction of a
state's
federal medical assistance percentage of amounts claimed for
long-stay
services for a calendar quarter unless the state shows that during
the
quarter it had--
. . . an effective program of medical
review of the care of
patients . . .
pursuant to paragraphs . . . (31) of
section
1902(a) whereby the professional
management of each case is
reviewed and
evaluated at least annually by
independent
professional review
teams. .Section 1902(a)(31) requires in
pertinent part that a state
plan provide--
(B) with respect to each . . .
intermediate care facility
within
the
State, for periodic onsite inspections of the care
being
provided to each person receiving medical assistance, by
one
or
more independent professional review teams. . . .
The regulations implementing this provision and section 1903(g)(1)
are
found at 42 CFR Part 456. In particular, section 456.652
provides--
(a) . . . In order to avoid a
reduction in FFP, the Medicaid
agency
must make a satisfactory showing to the Administrator,
in
each quarter, that it had met the
following requirements for each
recipient:
* * * *
(4) A regular program of reviews,
including medical evaluations,
and
annual on-site reviews of the care of each recipient. . . .
(b) Annual on-site review requirements.
(1) An agency meets the quarterly
on-site review requirements of
paragraph
(a)(4) of this section for a quarter if it
completes
on-site review of each
recipient in every facility in the
State,
. . . by the end of the quarter
in which a review is required
under
paragraph (b)(2) of this section.
Background
The record demonstrates that the State has the following procedures
for
conducting medical reviews. Before beginning an on-site review of
a
facility, the review team compares its computer-generated list
of
Medicaid recipients with the facility's patient census and
billing
information. The State then uses a complete updated list as the
basis
for its review. Upon completion of the patient reviews in the
facility,
the review team checks the updated list against the completed
Inspection
of Care forms to make sure it has a form for each patient on the
list.
Next, the review team leader delivers the completed Inspection of
Care
forms to the Department of Health where a secretary again checks
the
forms to verify that each Medicaid identified patient in the
facility
has a completed form. Thereafter, a second verification is made by
a
State quality assurance inspector. The review team and supervisor
are
then notified of any discrepancies and they re-check their records
and
return to the facility if necessary. State's Brief, pp. 8-9;
and
State's Reply Brief, p. 3.
In the instant case, the State conducted its on-site medical review
at
Pioneer Memorial Nursing Home during the period May 27 through 29,
1986.
The review team leader, Lynn Probst, stated in an affidavit that
patient
L.F.'s name did not appear on the computer generated list as a
Medicaid
recipient but that her name did appear on the facility's list.
Mr.
Probst then recalled that he made a notation at the bottom of
the
facility's list of patients which stated, "all residents of
Pioneer
Memorial, 5-29-86, Per Facility." Mr. Probst stated that when
he
realized patient L.F.'s name did not appear on the State
generated
report, he, in accordance with usual practice, filled out
the
appropriate sections of the review form for patient L.F. Mr.
Probst
stated that to the best of his knowledge, the care given to patient
L.F.
was reviewed in the usual manner by the review team.
The State said that immediately following the on-site review,
the
Inspection of Care forms would be updated against the lists and that
no
discrepancy was noted in this instance. After the State performed
its
second follow-up check, however, the quality assurance inspector
could
not find a completed form for patient L.F. As a result, the
review team
was promptly notified and immediately returned to the facility
and
conducted a review of patient L.F. on July 31, 1986.
The Parties' Arguments
The State argued that it satisfied the review requirements for
patient
L.F. It claimed that although it cannot now produce the
Inspection of
Care form completed on patient L.F. during the original review,
the team
leader's affidavit coupled with evidence of the State's system
of
internal checks leads to the conclusion that the patient was reviewed.
Alternatively, the State argued that if the Board finds that the State
has
not established that the State conducted the required review of
patient L.F.
within the quarter, the State qualifies for statutory and
regulatory
exceptions to the annual review requirement. The State also
contended
that should the Board find that the State does not qualify for
the
exceptions, or that the patient was not reviewed, then the
disallowance must
be recalculated because the formula used by the Agency
was inaccurate.
The Agency contended that the affidavit alone was insufficient
to
establish that patient L.F. was reviewed. While the Agency
conceded
that the State met certain threshold requirements for exceptions
which
the State argued applied, the Agency found the State did not satisfy
the
other requirements for these exceptions. The Agency also contended
that
the disallowance was calculated in accordance with the formula set
forth
in the statute except that, in accordance with the
implementing
regulations, the Agency substituted an estimate for certain data
where
the exact data necessary to compute the disallowance was not
available.
The Agency indicated that the State could supply the patient data
needed
so that an estimate of that data would not be necessary to compute
the
disallowance.
Analysis
The Agency would impose a disallowance for Pioneer Memorial Nursing
Home
because the State allegedly failed to review one patient. The
State,
however, has presented testimony by affidavit to support the
position
that this patient was reviewed but that the documentation
to
substantiate the review was lost. The review team leader stated that
he
compared the computer generated list of patients from the Department
of
Health with the facility's own list and noted on the facility list
that
it was the complete list of all patients. This list contained
the
patient in question and according to the State would have been the
list
used during the on-site review and in the follow-up checks. The
review
team leader also specifically recalled entering the patient's name on
a
Inspection of Care form. This presumably increased the likelihood
that
the patient was reviewed since that form is the one used for the
review
itself. Having the patient's name at the top would have served
as a
reminder (along with the list) that this patient needed to be
reviewed.
It is also significant that there is unrebutted evidence that this
State
customarily performs follow-up checks upon completion of the
on-site
review, during which it compares the completed forms with the
patient
list. If the patient at issue here had not been reviewed, that
failure
apparently would have been picked up at that time.
While the review team leader's affidavit alone might not be sufficient
to
prove that the patient was actually reviewed, the affidavit
considered
together with the evidence of the State's usual and customary
practices in
performing its annual review leads us to conclude that the
record shows the
review was performed. The State has clearly shown that
in performing
the required reviews for the quarter ending June 30, 1986
it was aiming for
and thought it achieved 100 percent compliance. In
fact, the Agency
conceded that the State performed facility-wide reviews
in all facilities
requiring review. Moreover, as the record shows, the
State had no
reason to believe that there might be a question about the
review at this
facility until such time as the State's second follow-up
indicated that the
documentation on patient L.F. was missing. It was
the State's own
system, and not the Agency's validation survey, which
discovered that the
documentation was missing. The fact that the State
shortly after the
end of the quarter sent the review team into the
facility to perform another
review on this patient further demonstrates
the conscientious efforts of the
State's system in performing the annual
on-site reviews. Finally, the
Agency has not disputed the State's
account of how its system worked or the
efficacy of the State's usual
and customary practices in performing its
reviews. Moreover, we have no
reason to think that the State's system was
operated here in any manner
other than what was described as the usual and
customary practice.
Thus, it is reasonable to conclude that this patient was in fact
reviewed
and that there was no violation of the annual review
requirement for this
facility. Accordingly, we reverse the disallowance
for Pioneer Memorial
Nursing Home. 1/ .Conclusion
For the reasons indicated above, we reverse the disallowance for
Pioneer
Memorial Nursing Home in the amount of $29,207.19.
_____________________________ Judith
A.
Ballard
_____________________________ Norval
D.
(John) Settle
_____________________________ Donald
Garrett
Presiding Board Member
1. Since we have found no violation of the annual
review
requirement, it is unnecessary for us to consider the parties'
other
arguments.