Department of Health and Human Services DEPARTMENTAL APPEALS BOARD Civil Remedies Division |
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IN THE CASE OF | |
National Behavioral Center, Inc., |
DATE: August 31, 2000 |
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Health Care Financing Administration
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Docket No.C-99-504 Decision No. CR695 |
DECISION | |
I enter summary disposition in this case sustaining the
determination of the Health Care Financing Administration (HCFA) not to
certify Petitioner, National Behavioral Center, Inc., to participate in
the Medicare program as a community mental health center (CMHC) providing
partial hospitalization services. I premise this decision on my conclusions
that: (1) Petitioner did not meet the criteria for certification as a
CMHC providing partial hospitalization services; and (2) I do not have
the authority to decide Petitioner's argument that it suffered damages
as a consequence of HCFA's alleged delay in processing Petitioner's application
for certification. I. Introduction Petitioner is a not-for-profit corporation based in Hialeah
Gardens, Florida. Petitioner applied to be certified to participate in
the Medicare program as a CMHC which provides partial hospitalization
services. On September 14, 1998, HCFA denied Petitioner's application.
On December 14, 1998, HCFA denied Petitioner's request for reconsideration
of HCFA's initial denial. Petitioner requested a hearing and the case
was assigned to me for a hearing and a decision. On August 2, 1999, the
parties filed a Joint Notice of Issues for Summary Disposition in which
they agreed that this case could be decided based on written submissions. HCFA moved for summary disposition of the case. Petitioner
replied to HCFA's motion and cross-moved for summary disposition. HCFA
then replied to Petitioner's cross-motion. HCFA submitted nine exhibits to support its motion and
to respond to Petitioner's cross-motion (HCFA Exhibits (Exs.) 1 - 9).
Petitioner submitted eight exhibits to respond to HCFA's motion and to
support its cross-motion (P. Exs. A - H). In order to maintain internal
consistency, I numerically redesignate Petitioner's exhibits as P. Exs.
1-8. Without objection, I hereby admit all these exhibits into evidence. II. Governing law
"Partial hospitalization services" are services which
are defined in section 1861(ff) of the Social Security Act (Act) and reimbursed
by the Medicare program. "Partial hospitalization services" consist of
services that are prescribed by a physician and are provided pursuant
to specified statutory criteria, which include: individual and group therapy
with physicians or psychologists (or other mental health professionals
authorized under state law); 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 which cannot
be self administered; certain individualized activity therapies; family
counseling; patient training and education; diagnostic services; and such
other items and services as the Secretary of this Department may determine
to be reasonable and necessary. Sections 1861(ff)(1); 1861(ff)(2)(A) -
(I) of the Act. The Medicare program will reimburse for partial hospitalization
services that are provided by either a certified hospital or by a CMHC.
See section 1861(ff)(3)(A) of the Act. A "community mental health
center" is defined by the Act to mean an entity:
Section 1861(ff)(3)(B)(i), (ii) of the Act. Although the
Act refers to section 1916 of the Public Health Service Act, the 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 Service
Act. In a document that is entitled "All States Letter 76-95" (All States
Letter), HCFA stated that a community mental health center must provide
all of the services that are listed in the Public Health Service Act,
either directly or under arrangements with others. HCFA Ex. 1. 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 Service Act and partial hospitalization services:
Id. (emphasis added). 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 Service Act. HCFA Ex. 3. HCFA
defines "screening" to be:
HCFA Ex. 3 at 1 (emphasis in original).
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:
F.S.A. � 394.455(6). III. Issues, findings of fact and conclusions
of law
This case is one of a series of cases that have been heard
and decided recently involving the general issue of whether a CMHC meets
certification requirements for participation in Medicare. Many of these
cases involve CMHCs that are located in the State of Florida. Recent decisions
which address the participation status of Florida CMHCs include the following:
Charity Behavioural Services, Inc., DAB CR635 (1999); T.L.C.
Mental Health Center, DAB CR636 (1999); Psychstar of America,
DAB CR645 (2000); and New Millennium CMHC, Inc., DAB CR672 (2000). These cases do not involve identical questions of law
and fact, but the issues raised by them are very closely related. As I
discuss above, at Part II of this decision, qualification to participate
in Medicare as a CMHC depends on application of both federal and State
laws. In order to qualify for participation, a CMHC must meet both federal
and applicable State requirements. The specific issues in this case are whether:
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 am assuming the facts that Petitioner asserts in its
brief and exhibits to be true for the 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.
Petitioner does not satisfy participation criteria for
a CMHC providing partial hospitalization services. Consequently, I grant
HCFA's motion for summary disposition. In order to be certified to provide partial hospitalization
services - indeed, in order to fall within the statutory definition of
a CMHC contained at section 1913(c)(1) of the Public Health Service Act
- an entity subject to Florida State jurisdiction must meet the following
criteria which govern screening of patients being considered for admission
to State mental health facilities:
The record of this case shows that Petitioner did not
provide requisite screening services, either directly, or under arrangement
with others.
Under Florida State law, Petitioner was not authorized
to provide screening for patients being considered for admission to Florida
State mental health facilities. Consequently, Petitioner was not able
to provide screening directly as an alternative to having screening performed
by others. As I discuss above, at Parts II.A. and II.B. of this decision,
HCFA has elected to defer to the States to determine what constitutes
appropriate screening for admission of patients to State mental health
facilities. See HCFA Ex. 3. Florida State law discusses screening
as "transfer evaluations." F.S.A. � 394.455(29). Under Florida State law,
the authority to perform a transfer evaluation for the purpose of determining
whether a patient may be transferred to a State mental health facility
may only be performed by a publicly funded, not-for-profit center which
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). In order to be able to perform directly the screening
services that are required under section 1861(ff)(3)(A) 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. And, in order to be authorized to perform transfer evaluations, Petitioner
must satisfy Florida's requirement that it be a publicly funded, not-for-profit
center which contracts with the Florida Department of Children and Families
for the provision of inpatient, outpatient, day treatment, or emergency
services. As explained below, Petitioner has not offered evidence which
shows that it met this requirement. HCFA's December 14, 1998 reconsideration determination
denied Petitioner's request for Medicare certification as a community
mental health center. HCFA Ex. 7. There, HCFA asserted that Petitioner
had not demonstrated that it was authorized under Florida law to perform
all the steps in the process by which individuals are clinically evaluated
for the appropriateness of admission to a State mental health facility.
HCFA restated the requirement that community mental health centers providing
services under arrangements with other entities must maintain overall
management responsibility for the services. However, HCFA determined that
since Petitioner was not a CMHC or clinic authorized to itself perform
transfer evaluations under Florida law, it could not properly assume management
responsibility over such evaluations. Id; see also
HCFA Ex. 4. Petitioner has not offered any evidence to prove that
it was authorized to perform transfer evaluations under Florida law and
thus be in a position to assume management responsibility over such evaluations
performed on its behalf by other qualified entities.
The undisputed material facts presented by HCFA establish
that Petitioner did not arrange to have screening of patients performed
in a manner which complies with governing criteria. Petitioner neither
contracted for services required by law nor did it retain management responsibility
over the services for which it did contract. Petitioner asserted that it executed an agreement with
Citrus Health Network, Inc. (Citrus Health), which constituted a valid
"arrangement" to have screening services performed on Petitioner's behalf.
HCFA Ex. 8. Close analysis of this agreement shows that it does not satisfy
the criteria for screening via arrangements with another agency or organization. Petitioner's agreement with Citrus Health does not provide
that the contracting entities will provide screening services for admission
of patients to State mental facilities. The agreement obligates Petitioner
to screen patients to determine the mental health services appropriate
to their needs and obligates Citrus Health to accept referrals and transfers
from Petitioner where it is determined that Citrus Health can best meet
the individual's needs. HCFA Ex. 8 at 2 - 3. But, it does not specify
that Citrus Health will provide screening by arrangement for possible
admission of patients to State mental facilities. Id. at 3. The
agreement provides that each party maintains individual responsibility
for accounting, billing, and collection for services provided. Id.
at 4. Moreover, management responsibility for screening services is not
vested with Petitioner. Rather, the agreement reaffirms that the parties
are independent contractors and "shall neither have nor exercise any control
or direction over the methods by which each shall accomplish its professional
duties and objectives." Id. at 6.
Generally, Petitioner asserted that HCFA's review and
approval process for Petitioner's application for certification as a Medicare
provider of Community Mental Health Center Partial Hospitalization services
was conducted in a manner which denied Petitioner due process. Petitioner
alleged that it, as well as the community it served, suffered financial
and psychological damage based on HCFA's intentional delay in acting upon
Petitioner's application. Petitioner characterized HCFA's process as "affirmative
misconduct" which went beyond "negligence." Petitioner's Motion for Summary
Disposition at 4 - 7. I do not have the authority to hear and decide these types
of arguments. My authority in cases involving HCFA is limited to hearing
and deciding those issues which the Secretary of this Department has delegated
authority to me to hear and decide. That authority is specified at 42
C.F.R. �� 498.3; 498.5. The regulations authorize me only to hear and
decide cases involving specified initial determinations. I have the authority
to hear and decide whether HCFA's determination that an entity fails to
qualify as a provider was made correctly. 42 C.F.R �� 498.3(b)(1); 498.5(a)(2).
However, a dispute between an entity and HCFA concerning HCFA's alleged
failure to process a certification application timely is not an initial
determination over which I have hearing and decision authority. Moreover, Petitioner's argument that it has been damaged
by HCFA's alleged dilatory processing of its certification application
reduces to an argument that some remedy should be imposed against HCFA
based on principles of estoppel. It is well-established that I, or any
other similarly situated administrative law judge, lack the authority
to hear and decide estoppel arguments in cases involving alleged dilatory
processing of applications for provider or supplier certification. T.L.C.
Mental Health Center, DAB CR636 (1999); Charity Behavioural Services,
Inc., DAB CR635 (1999); GranCare Home Health Service & Hospice,
DAB CR464 (1997); The Rivers HealthCare Resources, Inc., DAB CR446
(1996); SRA, Inc. D/B/A St. Mary Parish Dialysis Center, DAB CR341
(1994). Petitioner has offered no argument here which would give me reason
to revisit the holdings of those decisions. IV. Conclusion Based on the foregoing analysis, I enter summary disposition in this case sustaining the determination of HCFA not to certify Petitioner, National Behavioral Center, Inc., to participate in the Medicare program as a CMHC providing partial hospitalization services. |
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JUDGE | |
Marion T. Silva Chief Administrative Law Judge |
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