GAB Decision 731
March 21, 1986
Louisiana Department of Health and Human Resources;
Docket No. 84-247
Ballard, Judith A.; Settle, Norval D. Ford, Cecilia Sparks
The Louisiana Department of Health and Human Resources (DHHR, State,
Louisiana) appealed a disallowance by the Health Care Financing
Administration (HCFA, Agency) of $1,761,997 in federal financial
participation (FFP) claimed under Title XIX of the Social Security Act
(Medicaid). The claims were for services provided to Medicaid
recipients during the period January 1, 1983 to August 31, 1983.
During the time period in question, the Louisiana State plan
limited
payments under Medicaid for hospital outpatient services to three
visits
per recipient per year and payments for physician services to 12
visits
per recipient per year. The issue here is whether charges billed
by
DHHR charity hospitals for certain costs associated with
physician
services provided in hospital outpatient clinics are subject to
the
three visit limit or the 12 visit limit. We determine that the
charges
are outpatient services costs subject to the three visit limit
and,
therefore, affirm the disallowance of FFP in these charity
hospital
charges for recipient visits in excess of that limit.
Background
The federal Medicaid regulations authorize FFP in expenditures for
both
physician services and outpatient hospital services furnished
to
Medicaid recipients, subject to such limitations as are imposed by
the
State in its plan as approved by the Secretary of the Department
of
Health and Human Services. Prior to January 1, 1979, the State plan
did
not limit the number of outpatient hospital services visits covered
by
Medicaid.
In 1979, by an amendment to its State plan eventually approved on
December
5, 1979, but effective January 1, 1979,(2) Louisiana limited
Medicaid
recipients to three outpatient hospital services visits per
year. The
State had limited Medicaid recipients to 12 physician
services visits per
year for several years preceding, possibly as far
back as 1975 or 1976.
/1/
As originally proposed by the State, the 1979 State plan amendment
would
have imposed a three-visit limit only on hospital emergency
room
outpatient services visits. As explained in greater detail in
the
Analysis, infra, pp. 6-7, that version of the proposed amendment
was
rejected by HCFA.
In addition to emergency room services, charity hospitals in
Louisiana
also had outpatient clinics where physicians' services were
available to
Medicaid recipients. These facilities were referred to in
this case as
outpatient hospital clinics and were staffed by physicians on
the
faculty of the State-owned Louisiana State University School of
Medicine
(LSU) under a contract between DHHR and LSU.
The aforesaid contract has two provisions which relate to the issue
in
this case:
II.a.3. All professional services of physicians, related
to direct
patient care, and related health educational activities or
the
administrative support of the affiliated programs which are included
in
this agreement will be contracted through the University or
negotiated
after agreement by the University that such action is
warranted. The
Dean of the School of Medicine will have ultimate
authority and
responsibility through his administrative staff and department
heads for
the faculty physicians assigned to hospitals and patient care
programs
affiliated with the DHHR.
* * * *(3)
II.a.7. The DHHR will provide well-equipped health care
facilities
and related resources for the care of patients and the
construction of
medical education. This includes the provision of a
sufficient staff of
nursing and allied health personnel to accomplish the
objectives listed
above and acceptable employee-to-patient ratios in keeping
with the
normal of other such programs in the area.
* * * *
III.A.2. DHHR . . . agrees to allow the University,
through its
billing agency (LSU Clinics), to bill for physician services
provided to
patients who have third party coverage for such services.
(Louisiana Exhibit A to submission of August 23, 1985, p. 2.) Thus,
LSU
agreed to provide all professional services of physician related
to
direct patient care including those services of a non-emergency
nature
which physicians with private offices ordinarily provide as part of
an
office visit. For its part, DHHR agreed to provide the physicians
with
well-equipped health care facilities and related resources,
including
nurses and allied health personnel.
When a Medicaid recipient visited one of these clinics and was seen by
a
physician on a non-emergency "office visit" basis, two types of
billings
for reimbursement were generated: LSU billed the Medicaid
program for
the professional services of the contract physician (using HCFA
1500, a
uniform claim form) and the hospital billed the program for the
costs
incurred by it incident to the service provided to the
Medicaid
recipient (using TCC 103, a Medicaid claim form). A cost
report showing
how one of the charity hospitals calculated its costs includes
such
items as, for example, salaries of unspecified personnel,
a
proportionate share of the intern-resident service program,
medical
records and library, laundry, housekeeping, supplies, and
depreciation.
The State referred to these and other related costs as a
"facility fee"
and as facility "overhead." From these items the hospital
arrives at a
per diem cost upon which its billing is based. This cost
is identified
in the State's financial data by procedure code 90045. /2/
(4)
Regulatory and Other Provisions Involved
42 CFR 440.2:
(a) Specific definitions. "Outpatient" means a patient who
is
receiving professional services at an organized medical facility,
or
distinct part of such a facility, which is not providing him with
room
and board and professional services on a continuous 24-hour-a-day
basis.
"Patient" means an individual who is receiving needed
professional
services that are directed by a licensed practitioner of the
healing
arts toward the maintenance, improvement, or protection of health,
or
lessening of illness, disability, or pain.
42 CFR 440.20:
(a) "Outpatient hospital services" means preventive,
diagnostic,
therapeutic, rehabilitative, or palliative services that --
(1) are furnished to outpatients;
(2) Except in the case of nurse-midwife services, as specified
in
Sec. 440.165, are furnished by or under the direction of a physician
or
dentist; and. . . .
42 CFR 440.50:
"Physicians' services," whether furnished in the office,
the
recipients's home, a hospital, a skilled nursing facility, or
elsewhere,
means services provided --
(a) Within the scope of practice of medicine or osteopathy as
defined
by State law; and
(b) By or under the personal supervision of an individual
licensed
under State law to practice medicine or osteopathy.
Louisiana State Plan Attachment 3.1(A), Item 2:
OUTPATIENT HOSPITAL SERVICES
Effective January 1, 1979, the Office of Family Security, will
make
payment to a licensed hospital for three outpatient hospital visits
per
recipient per calendar year. There are no provisions for any
additional
visits.
(Louisiana Exhibit 5 to submission of February 8, 1985)(5) Louisiana
State
Plan Attachment 3.1A, Item 5, effective November 20, 1980:
PHYSICIANS' SERVICES WHETHER FURNISHED IN THE OFFICE, THE
PATIENT'S
HOME, A HOSPITAL, A SKILLED NURSING FACILITY OR ELSEWHERE are
provided
with limitations as follows:
A. Physician Services
Payment is made to duly licensed Doctors . . . for the
following
services:
(1) up to 12 out-patient physician visits per calendar year
with
provision for extension If medically approved.
* * * *
(Louisiana Exhibit 4, supra)
DHHR Policy Manual dated March 1, 1979, at 19-220:
The following physician services are provided and are counted as
one
of the up to 12 allowable physician out-patient visits per year:
(a) Physician office visit
(b) Physician visit in the home
(c) Physician visit in a nursing home
(d) Physician visit in outpatient hospital setting (Louisiana
Exhibit
3, supra)
The parties' arguments
Louisiana argued that the 1979 amendment to its State plan
limiting
Medicaid recipients to three visits for outpatient services did
not
cover the facility's costs associated with physician services in
charity
hospital clinics. The State contended that its creation and
consistent
use of a special billing code (90045) for the hospital charges
proved
that the 1979 amendment did not apply, even though the services
were
provided in an outpatient hospital setting. (6)
HCFA argued that the disputed costs were billed by the hospital
as
outpatient services using hospital outpatient claim forms and thus
under
the 1979 amendment could not be treated as physician services.
HCFA
distinguished the allowability of FFP for the physician services
billed
for by LSU, up to the 12 visit limit, from the facility "overhead"
costs
billed for by the hospital, which HCFA argued were subject to the
three
visit limit imposed by the 1979 amendment to the State plan.
Analysis
This dispute arose because the State, by the language of the 1979
State
plan amendment ultimately approved by HCFA, limited itself to FFP
in
three billings per year by a hospital for outpatient services.
We
recognize that had the State submitted no amendment in 1979, it
could
have validly claimed these costs. This recognition does not mean
that
we can ignore the clear language of the 1979 amendment.
The State introduced a number of documents to support its contention
that
it did not intend to impose a three-visit limit on the type of
expenditures
involved here. Certainly, the amendment first offered would
not have done
so; that proposed language would have limited only use of
emergency
room outpatient facilities to three visits per year. /3/ This
proposed
amendment was rejected by HCFA in September 1979 because it was
deemed
contrary to Medicaid regulation 42 CFR 440.230( c)(1), which
prohibits
denying or reducing the amount, duration, or scope of a
required service to a
recipient because of diagnosis, type of illness,
or condition. The
State responded with another effort to persuade HCFA
to allow the State to
restrict only emergency outpatient services, but
was unsuccessful. /4/ On
December 5, 1979 HCFA approved the version
which was the focus of this
appeal.
(7)
In its briefs and through the testimony of DHHR officials at the
hearing
in this case, the State took the position that the 1979 State
plan
amendment as finally approved imposed the three-visit limit on
such
outpatient services as emergency room care, laboratory tests,
and
x-rays, but not on the hospital's costs for the outpatient clinics.
We do not find these after-the-fact (and largely self-serving)
statements
by the State and its witnesses to be credible. The State
provided no
written, contemporaneous evidence to support the position
that the State
intended to treat these costs as physicians' services,
rather than outpatient
services. To the contrary, the record shows that
the State was
accepting billing for the services on outpatient forms,
calculated according
to the methods used for and appropriate to
outpatient services, rather than
physicians' services. /5/ Below, we
discuss the following reasons why we do
not adopt the State's position.
* The fact that the State was paying the bills without imposing
the
three-visit limit does not constitute an administrative
practice
embodying the interpretation advanced here, given that the State
also
failed to apply the limit to other services which the State admits
were
subject to it. When HCFA repeatedly pointed out that the State was
not
applying the limit to all outpatient services, the State never
responded
by differentiating the costs in question here.(8)
* The testimony of the State's principal witness regarding the nature
of
the hospital's clinic program and why it was unique and thus should
be
treated differently was contradicted and unpersuasive.
* Most important, the State's position is not supported by an analysis
of
the wording in the State plan.
The record here indicates that when given the opportunity to confront
HCFA
with an interpretation which might have been viewed as
contradicting the
basis for HCFA's approval of the 1979 amendment, the
State instead responded
in a way apparently intended to reassure HCFA
that the State accepted an
interpretation of the 1979 amendment
consistent with that espoused by HCFA in
this appeal. This is shown by
the State's responses to the Agency
findings in reviews of the State
Medicaid program subsequent to the approval
of the 1979 amendment to the
State plan.
In September 1980 HCFA sent the State a copy of a draft assessment
report
for Fiscal Year 1980 (10/1/79 - 9/30/80) containing this finding
and
recommendation:
The State is placing inappropriate limits on outpatient
hospital
services by allowing only 3 visits for emergency room charges
while
allowing unlimited visits for other services.
* * * *
This practice is contrary to the Louisiana State Plan
amendment
approved on December 5, 1979 specifying that all outpatient
hospital
services are limited to 3 visits per recipient per year regardless
of
the reason for the visit. It is also contrary to 42 CFR
440.230(c)(1)
which specifies that a State may not arbitrarily deny or reduce
the
amount, duration or scope of a required service solely because of
the
diagnosis, type of illness or condition. 42 CFR 440.210
designates
outpatient hospital services as a required item of service to
the
categorically needy and Louisiana has, by authority of 42 CFR
440.220,
designated it as a required item of service to the medically
needy.
Further, 42 CFR 440.20(a) defines outpatient hospital services as
those
" . . . preventive, diagnostic, therapeutic, rehavilitative
or
palliative services provided to an outpatient. . . ."
Recommendation
The State should correct its practice of applying only emergency
room
services to the 3-visit limit on(9) out-patient hospital services.
Any
limit should be uniformily applied to all services provided by
the
outpatient hospital (sic).
(HCFA Exhibit CC, submission of November 26, 1985)
To this the State responded, in December 1980:
The State Plan limits outpatient hospital visits to three
per
calendar year. Because of a systems limitation of the Fiscal agent,
the
control has been limited to the emergency room visits under Code
00086
which represents the vast majority of outpatient services. This
control
has been deleted and the limit applied to outpatient
services.
Limitation will be on place of services (hospital) rather than the
type
of service. . . .
(Louisiana Exhibit 4, submission of November 7, 1985)
In June 1981 HCFA sent the State a copy of a narrative report for
Fiscal
Year 1981 (10/1/80 - 9/30/81) containing this finding
and
recommendation:
The State's limit of three outpatient hospital visits per year
is not
being enforced. . . . inappropriate procedure codes are being used
to
control the State's outpatient hospital limit.
Recommendation
The State should determine those procedure codes which should
be
controlled under its outpatient hospital limit. As indicated in the
FY
1980 Louisiana State Assessment, any limit which the State
establishes
should be applied uniformly to all services provided by the
outpatient
hospital.
(HCFA Exhibit EE, submission of November 26, 1985)
To this the State responded, in August 1981:
TCC (The Computer Company) has been instructed to place edits
on
outpatient services of three per calendar year. These will be
uniformly
applied to all outpatient services. . . .
(Louisiana Exhibit 5, submission of November 7, 1985)
The August 1981 letter referred to in the State's Response adds
additional
support to HCFA's position that the 1979(10)
State plan amendment limited all hospital outpatient services:
We are requesting approval of our plan to exempt hemodialysis
and
radiation therapy services from the three (3) hospital
out-patient
visits limitation per calendar year.
In January 1979, we imposed a limitation of three
hospital
out-patient visits per calendar year to control abuses and to
bring
expenditures within the appropriation. The EDS Federal system
could
apply this limitation only by procedure code. Therefore, all
claims
containing an emergency room visit were limited to three per
calendar
year. Information showed that applying the limitation in this
manner
controlled more than 90% of the out-patient claims to three per
calendar
year.
The Computer Company is now able to apply this limitation by
place of
service, which means that all claims showing the place of service as
an
out-patient hospital are now limited to three per calendar year. It
is
our position, however, that hemodialysis and radiation therapy
services
are not truly hospital out-patient services even though they may
be
provided on an out-patient basis. The same hospital facility
also
provides the services on an in-patient basis. . . .
(Ibid.; HCFA Hearing Exhibit 1)
In August 1982 HCFA sent the State a copy of a narrative report for
Fiscal
Year 1982 (10/1/81 - 9/30/82) containing this finding and
recommendation:
The State does not uniformly apply its outpatient hospital limit
to
all applicable procedure codes. Procedure code 90045 is exempt from
the
three visit limit. We were informed by State staff that this is
a
special code used by Charity Hospital only for services in
its
outpatient clinic.
* * * *
RECOMMENDATION
The State should count all services performed in an
outpatient
setting toward the three visit per year limit.
(HCFA Exhibit FF, submitted November 26, 1985) (11)
The State's Response, dated September 30, 1982, set out, as the
State's
"proposed policy to fulfill the requirements" of the above
quoted
Recommendation, a statement of "Outpatient Hospital
Services"
paralleling in part and amending in part the wording of the 1979
State
plan amendment. The first sentence is identical to the first
sentence
of the plan amendment. Then, in lieu of "(there) are no
provisions for
any additional visits," the following is inserted:
Additional visits may be determined medically necessary by the
OFS
Medical Review Section. Prior approval may be requested for
the
following reasons:
(a) Extenuating circumstances that warrant hospital
outpatient
treatment rather than treatment in a physician's office
setting.
(b) the patient's medical condition would endanger the patient's
life
or permanently impair his/her health, if not treated; and
(c) availability of medical facilities to provide required
services
warranted by the individual's illness.
(Louisiana Exhibit 6, submission of November 7, 1985; HCFA Exhibit
HH,
Attachment 7, page 1, submission of November 26, 1985)
The record does not show that the State plan was amended to
incorporate
the State's new policy as set out above. Instead, in a
March 1983
letter to HCFA, the State proposed an amendment to "correct a
compliance
issue" by revising the "limit of three outpatient visits" so that
"if a
provider has a physician clinic in the outpatient hospital
setting,
these services would be applied to the physician office visit limit
of
twelve (12) per annum rather than the three visit limit."
Louisiana
Exhibit 7, submission of February 8, 1985. The resulting
amendment,
approved by HCFA on October 26, 1983 (to be effective September
1,
1983), provided under "Outpatient Hospital Services" that
"physician
services . . . in an outpatient hospital setting shall(12) be
considered
physician services, not outpatient services. (Louisiana
Exhibit 8,
submission of February 8, 1985) /6/
The record also contains letters from DHHR officials to HCFA in
January
and February 1984 stating that it was Louisiana's position that
even
prior to the 1983 State plan amendment, the charges associated
with
physician services in a hospital outpatient clinic setting, billed
for
by the hospital, were physician services, not outpatient services,
and
thus were not subject to the three-visit limit. (Louisiana
Hearing
Exhibit 1 and Louisiana Exhibit 17, submitted November 7, 1985)
This
correspondence preceded the November 1984 disallowance and was
related
to that decision by HCFA.
Carolyn Maggio, DHHR official, testified that she was familiar with
the
circumstances of the 1979 State plan amendment and that Louisiana
had
not then communicated to HCFA that Louisiana assumed that in
limiting
outpatient hospital services to three visits the State was not
limiting
the hospital-billed costs associated with physician services(13) in
an
outpatient hospital setting. Tr., p. 444. /7/ Ms. Maggio also
testified
that the reason Louisiana did not point out to HCFA at the time
that the
hospital-billed "overhead" was considered a physician's service and
not
an outpatient service was because Louisiana regarded its system
of
providing such services in its charity hospitals as unique.
As explained by another State program official, the Louisiana system
is
unique because 1) the State owns the hospitals; 2) the State staffs
the
hospitals with teaching physicians from the State medical school
under
contract to provide a variety of services in an outpatient
setting; and
3) the contract authorizes the hospital to bill for the
facility
"overhead" cost. Tr., pp. 20-21, 30, 31, and 60. See also,
Tr., pp.
95-97.
This claim of uniqueness was later disputed in testimony by a
HCFA
regional program official. The HCFA official contended that many
states
offer medical services to Medicaid recipients under a system similar
to
that in Louisiana. He cited as examples Oklahoma and Texas,
where
privately owned hospitals provide a full range of outpatient
services,
including the physician services under discussion here, in an
outpatient
setting located in the hospital, utilizing teaching physicians
from a
medical school. Tr., pp. 375-380 and 387-388. He said that
these
hospitals viewed the facility charges as an outpatient cost. Tr.,
p.
407.
We are not presuaded that the Louisiana system is as unique as the
State
contended here. Whether it is or is not, the State clearly chose
in
1979 to limit all outpatient services to three visits per year.
The
costs here were for services rendered by a hospital to an
outpatient,
even though incident to a physician's service. Moreover,
the costs were
calculated in the same way as other outpatient costs (see HCFA
Brief of
July 24, 1985 and accompanying exhibits) and billed for by the
hospital
in the same manner and using the same forms it did with other
outpatient
costs. Thus, even if the State mistakenly assumed that these
hospital
costs were counted under the twelve-visit limit, it is bound by
the
all-encompassing use of the term "all outpatient(14) services" in
its
1979 State plan to limit these outpatient visits to three per year.
Even if we read the 1979 amendment in pari materia, as the State
urges,
with other State plan provisions and policy manuals defining
physician
services as including those rendered in an outpatient setting, we
do not
find that hospital-billed costs are thus converted into
physician
services. The Medicaid regulations define outpatient hospital
services
as being services furnished under the direction of a physician
(or
dentist), and although the State was free to subject such services
to
the same 12 visit limit covering physician services under its
State
plan, it did not accomplish that result by its 1979 State
plan
amendment.
We reach this conclusion also because at issue were costs
admittedly
incurred by and billed by hospitals. Hospitals basically
provide two
kinds of services -- inpatient and outpatient. To receive
an inpatient
service, one must be an inpatient and the Medicaid recipients
in
question here were not inpatients. They were outpatients, even
though
they received a physician's service during
their
less-than-inpatient-duration stay in the hospital. Thus, the
costs
billed were, for the hospital's part, for outpatient services and
a
State plan provision limiting all outpatient services to three
visits
per year necessarily limits the outpatient services associated
with
physician services provided in an outpatient hospital setting. /8/
The Board has, in several past decisions, given deference to a
state's
interpretation of its own plan. Michigan Department of Social
Services,
Decision No. 224, October 29, 1981; but see Arkansas
Department of
Human Services, Decision No. 357, November 15, 1982. Such
deference is
not warranted under the circumstances here, however, for the
following
reasons:
* The State did not provide any evidence of a contemporaneous,
written
interpretation or a consistent administrative practice to support
the
view advanced here.(15)
While the State had discretion to set its own limits in the State plan,
it
was important that the State communicate to HCFA what those limits
were so
that HCFA could determine whether they were consistent with
federal
requirements such as the prohibition on discrimination based
on
diagnosis. Here, the State plan did not contain any
provision
sufficient to give rise to a duty on the part of HCFA to
inquire
further; the plan does not address the question of a hospital
billing
for costs incurred by the hospital associated with physicians'
visits.
* The failure to articulate an exception in the State plan might
have
frustrated HCFA in its audit efforts. If HCFA examined
the
reasonableness of the physicians' charges for their services
without
being aware that associated costs were also being reimbursed to
the
hospital, it could not effectively monitor whether the payments for
the
services were excessive.
* Since State hospitals are involved, and the State is
essentially
reimbursing itself, the State's actions should be subject to
greater
scrutiny. See Massachusetts Department of Public Welfare,
Decision No.
730, March 20, 1986.
Finally, we note that the State was the only one of these two
parties
which could set desired limits on the various outpatient services
by
amending the State plan. The State presumably knew its
program,
including the nature of its charity hospital outpatient
clinics. The
State nevertheless opted to flatly limit outpatient
services and is thus
bound by the action it took. Moreover, the State
failed to change this
plan provision even after the Agency repeatedly pointed
out its
problems.
Conclusion
Accordingly, we affirm the disallowance. /1/ The 1979 amendment is
set
out on page four, infra.
The State plan provision originally
limiting physician visits to 12 per year
was not put in evidence, but
Carolyn O. Maggio, Assistant Director, Primary
Medical Services of
Medical Assistance Program of the Office of Family
Security, DHHR,
testified that the 12 visit limit had been in place several
years prior
to the 1979 amendment limiting outpatient hospital visits.
Transcript
(Tr.), p. 437. /2/
In the parties's initial briefs there was an
underlying assumption that the
only billing for the clinic
visits/physician services were the billings at
issue here. However,
Louisiana ultimately brought out the contractual
arrangement between the
hospitals and LSU and the fact that the hospitals and
LSU each billed
DHHR separately. Louisiana Brief, August 23,
1985. /3/ See
Louisiana
Exhibit 12 to submission of November 7, 1985, which is
incorrectly indicated
in the exhibit and the accompanying affidavit by
Carolyn Maggio as the
approved version. /4/ On November 6, 1979,
an
Assistant Secretary of DHHR
wrote to the HCFA Regional Medicaid
Director (Region VI) submitting
additional documentation requested by
HCFA and citing an attached document by
hospital administrators who were
described as believing that the unlimited
use of emergency facilities
within the hospital was a means by which Medicaid
recipients were
"getting around" their 12 outpatient physician service
limitation.
Louisiana Exhibit 15, November 7, 1985. The document, the
February 22,
1977 Minutes of the Louisiana Hospital Association Liaison
Committee,
quoted Association members as complaining that DHHR case workers
were
encouraging unwarranted use of emergency room services and expressed
the
need to make the case workers aware that nonemergency visits to
the
emergency room would be billed to the patient. Ibid. Although
this
indicates that concern over improper and excessive use of emergency
room
services was the rationale for the amendment originally proposed,
it
does not prove that HCFA understood the amendment approved in
December
1979 to exclude costs billed by a charity hospital for its
clinic.
/5/ Hospitals use reimbursement methods related to costs allocated
to
the various services provided. A physician charges a fee, which
may
reflect the physician's underlying costs, but only in a more
general
way. /6/ The
amendment set these limits: Outpatient Hospital
Services (1) Emergency
room services - three emergency room visits per
calendar year per
recipient; (2) Rehabilitation services - number of
visits in accordance
with a rehabilitation plan prior authorized by the
Medical Review Section of
the Office of Family Security; and (3) All
other outpatient services,
including, but not limited to, therapeutic
and diagnostic radiology services,
chemotherapy, hemodialysis and
laboratory services, shall have no limit
imposed other than the medical
necessity for the service. (4) Clinic services
- physician services
provided in a clinic in an outpatient hospital setting
shall be
considered physician services, not outpatient services, and shall
be
included in the limit of twelve physician visits per year per
recipient.
(See Item 5 of Attachment 3.1-A). There are no provisions for
any
additional visits beyond the limits specified above. /7/ In its
brief
of January 8, 1986, the State contended that Ms. Maggio testified
that
HCFA "understood and agreed" that the overhead cost was to be counted
in
the limit of 12 per year, but the State did not offer a
supporting
citation and a review of the transcript reveals no such
testimony.
Brief, p. 6. /8/
While some of the types of costs here are
similar to costs which might be
incurred by a physician who sees a
patient for an office visit, the key
factor here is that hospital
employees were assisting the physicians in
providing services to the
recipients of a preventive, diagnostic,
therapeutic, rehabilitative or
palliative nature, using hospital facilities
and the range of supportive
services a hospital has available.