California Department of Health Services, DAB No. 1338 (1992)

Department of Health and Human Services

 DEPARTMENTAL APPEALS BOARD

Appellate Division

SUBJECT:        California Department  of Health Services     

DATE:  June 15, 1992
Docket No. 91-151
Decision No. 1338

DECISION

The California Department of Health Services (California or State)
appealed a disallowance by the Health Care Financing Administration
(HCFA) of $5,690,544 in federal financial participation (FFP) claimed
under Title XIX (Medicaid) of the Social Security Act (Act) for the
period August 1, 1987 through February 28, 1989.  HCFA reported that the
claims were for ancillary and physician services provided to individuals
ages 22-64 in Institutions for Mental Diseases (IMDs) who were
ineligible for Medicaid services under section 1905(a) of the Act.

California did not dispute that services were provided to individuals
ages 22-64 in IMDs.  Instead, it argued that the prohibition on FFP for
services to persons in IMDs applies only to inpatient hospital, nursing
facility and intermediate care facility services, and not to the
ancillary and physician services at issue here.  For the reasons
discussed below, we agree with HCFA that section 1905(a) of the Act bars
FFP for any services to individuals in IMDs who are ages 22-64.
Consequently, we sustain the disallowance in full.

General Background

Title XIX of the Act authorizes federal grants to states to aid in
financing state programs which provide medical assistance and related
services to needy individuals.  Section 1905(a) of the Act enumerates
various services for which payment qualifies as "medical assistance."
They include:

 (1)     inpatient hospital services (other than services in an
 institution for mental diseases); . . .

 (4)(A) nursing facility services (other than services in an
 institution for mental diseases) for individuals 21 years of age
 or older; . . .

 (14)  inpatient hospital services and nursing facility services
 for individuals 65 years of age or over in an institution for
 mental diseases; (15)  services in an intermediate care facility
 for the mentally retarded (other than in an institution for
 mental diseases) . . . . 1/

Following the last of the enumerated paragraphs describing services
covered by Medicaid is language which provides that "medical assistance"
does not include payments "with respect to care or services for any
individual who has not attained 65 years of age and who is an individual
in an institution for mental diseases"  (except for inpatient
psychiatric hospital services for individuals under age 21). 2/  This
prohibition on payment for services provided to individuals ages 22-64
in an IMD is known as the general IMD exclusion.

 


Analysis

The Act

California argued that the IMD exclusion does not apply to ancillary and
physician services because the parenthetical language permitting payment
for services other than in an IMD appears only in paragraphs (1), (4),
and (15) of section 1905(a) of the Act with respect to inpatient
hospital, nursing and intermediate care facility (ICF) services.
California noted that the parenthetical does not appear in the other
numbered paragraphs of section 1905(a) authorizing payment for other
services, including the ancillary and physician services at issue here.
The absence of the parenthetical from the paragraphs relating to
ancillary and physician services, California contended, means that it is
entitled to FFP in the costs of such services when provided to
individuals ages 22-64 in IMDs.

California's position conflicts with the plain wording of the general
IMD exclusion appearing after the last numbered paragraph in section
1905(a) of the Act.  That wording bars payments with respect to any care
or services for individuals ages 22-64 in IMDs.  The Board has
previously held that the general IMD exclusion in effect renders such
persons ineligible for all Medicaid care or services by reason of their
institutional status, and does not itself distinguish between types of
services.  Joint Consideration:  Admission/Discharge Issue, DAB No. 436,
at 7 (1983); Petition for Clarification of Decision No. 436, DAB No. 535
(1984).  This holding was based on the statutory language and on HCFA's
longstanding regulations treating the exclusion not only as a limit on
services, but as a limit on eligibility.  42 C.F.R. .. 435.1008,
441.13(a)(2).  HCFA's reading of the IMD exclusion was also expressly
stated in the preamble to regulations removing the partial-month
eligibility provision at issue in the cited Board decisions:

     The language at section 1905(a) of the Act specifically excludes
     FFP for any services provided to . . . patients under age 65 in an
     institution for mental diseases . . .  The plain language of the
     statute thus clearly precludes FFP for all such services.

50 Fed. Reg. 13196, 13197 (1985).

Under the partial month eligibility provisions at former 42 C.F.R. .
435.1008(b), and our holdings above, states could receive FFP in
non-institutional services to individuals ages 22-64 in IMDs during the
month of admission to the IMD, so long as such services were covered in
the state plan.  Its removal eliminated the only circumstance in which
FFP was available for any services to individuals ages 22-64 in IMDs. 3/

The preamble acknowledged that some commenters felt that there was no
basis for eliminating FFP for noninstitutional services provided to
persons in IMDs; their view is similar to California's argument that the
IMD exclusion does not apply to ancillary and physician services.
HCFA's response to those comments was entirely consistent with its
position in this appeal:

     We believe the statute (section 1905(a) of the Act) clearly
     justifies these regulations.  The language of this provision
     prohibits FFP for all services to individuals in certain types of
     institutions (with specified exceptions).

50 Fed. Reg. 13196, 13197 (1985).

The specified exceptions relate to the age of the individual, not to the
nature of the services as being "ancillary" or otherwise
"non-institutional."

HCFA argued that California's interpretation that FFP is available in
services other than inpatient hospital, nursing facility and ICF
services provided in an IMD renders the general IMD exclusion
meaningless, and therefore violates the canon of statutory construction
that effect should be given to all provisions of a statute so that no
part is rendered superfluous or insignificant. 4/  California did not
dispute HCFA's position that this canon is a basic principle of
statutory construction, but argued that applying the general IMD
exclusion to bar FFP for all services to individuals ages 22-64 in IMDs
would make the parenthetical restrictions in sections 1905(a)(1), (4),
and (15) of the Act unnecessary and superfluous.  The absence of any
reference to IMDs in the paragraphs describing other categories of
services, California asserted, reveals congressional intent that the
only services to be excluded from medical assistance when provided to
persons ages 22-64 in IMDs are inpatient hospital, nursing facility and
ICF services.

California's argument ignores a compelling reason for the presence of
the parenthetical language in sections 1905(a)(1) and (4) of the Act, in
addition to the general IMD exclusion.  Specifically, the parenthetical
language distinguishes inpatient hospital and nursing facility services,
which section 1902(a)(10)(A) of the Act requires states to provide, from
those same services when provided to individuals over 65 years of age in
IMDs pursuant to section 1905(a)(14) of the Act, for which coverage is
optional. 5/  In Joint Consideration:  Admission/Discharge Issue the
Board discussed the history of the parenthetical language, which was
included in the original Medicaid law enacted as part of the Social
Security Act Amendments of 1965, Public Law 89-97.  The Board observed
that the relevant Senate report explained that the addition of the
parenthetical phrase would help make it clear that it is optional for a
state to include services for the aged in tuberculosis or mental
institutions. 6/  See S. Rep. No. 404, 89th Cong., 1st Sess., pt. 1, at
80-81 (1965).  Congress added the parenthetical to distinguish between
two types of covered services, mandatory institutional services for all
eligible individuals, and optional institutional services for the aged
in IMDs.  Joint Consideration, at 8.

The parenthetical in section 1905(a)(15) serves a similar purpose.  If a
state opted to cover ICF services and the coverage was not qualified by
the parenthetical "other than in an IMD," the state could be viewed as
choosing to cover ICF services in an IMD to individuals over age 65
(since the general IMD exclusion does not apply to such individuals).
Congress intended, however, that a state be allowed to cover services in
an IMD to individuals over age 65 only if the state met the condition
set out in section 1902(a)(21) of the Act.  Thus, states must separately
choose to cover ICF services other than in an IMD and ICF and other
institutional services to individuals over age 65 in an IMD.

Accordingly, we conclude that the parenthetical language in sections
1905(a)(1), (4), and (15) of the Act is not rendered superfluous or
insignificant by HCFA's reading of the general IMD exclusion that
follows the numbered paragraphs in section 1905(a).

The IMD exclusion and long-term care

California maintained that limiting the IMD exclusion to only inpatient
hospital, nursing and ICF services is consistent with congressional
intent that Medicaid not pay for long-term care for the mentally ill, as
provision of this care had historically been the states' responsibility.
Since the ancillary services at issue here are not part of long-term
care services traditionally provided by state mental hospitals,
California argued, they were not meant to be excluded from Medicaid.
Thus, California reasoned, the exclusion was intended by Congress to
refer only to services reimbursed by the inpatient per diem rate, which
includes long-term care services, and not to separately reimbursable
services provided in or out of the IMD, such as ancillary and physician
services.  Consistent with this view, California also asserted that
providing ancillary services to individuals in IMDs is supported by the
Medicaid regulations, since they do not include those services in the
definition of long-term care.

We find that the reference to "long-term care" in the legislative
history does not support limiting the IMD exclusion to only the sort of
services that are encompassed by an inpatient per-diem rate, including
those that are long-term in nature.  Legislative history cannot be
resorted to for the purpose of construing a statute contrary to its
plain and unambiguous terms.  See 73 Am. Jur. 2d. Statutes, .. 151, 170,
175; Singer, Sutherland on Statutory Construction, .. 48.01, 72.04.
Here, California's reliance on the reference to long-term care in the
legislative history is misplaced because it ignores the wording of the
statute itself which excludes coverage for care or services for any
individual who is a patient in an IMD and not covered by the exceptions
for the aged or children, irrespective of the duration of the care.  See
Pennsylvania Dept. of Public Welfare, DAB No. 1042 (1989).  Our
determination that the State cannot reasonable rely on the reference to
long-term care in the legislative history is also supported by the
following considerations:

o       The key point in the legislative history is that Congress did
not want to authorize Medicaid funding for care which was a traditional
state responsibility.  S. Rep. No. 404, 89th Cong, 1st Sess., pt. 1, at
144-46 (1965); Schweiker v. Wilson, 450 U.S. 221, 101 S.Ct. 1074 (1980).
However, California did not argue that the states' responsibility to pay
for services in institutions for the mentally ill has been restricted
only to those services directly associated with long-term care; rather,
states have traditionally paid for all care and services for
institutionalized individuals.  To permit FFP in the payments for the
services at issue would simply shift costs from the State to the federal
government with no corresponding increase in services to Medicaid
beneficiaries.  See Pennsylvania Dept. of Public Welfare at 6-7.  The
intent of Congress that states bear costs that have traditionally been
their responsibility is not violated by excluding FFP for ancillary
services when provided to individuals institutionalized in an IMD.

o       The Board addressed the legislative history's reference to
long-term care for the mentally ill in Pennsylvania, where we upheld the
disallowance of FFP in the costs of emergency medical services for
individuals ages 22-64 in IMDs.  Pennsylvania asserted that the
reference to long-term care in the legislative history meant that
Congress did not intend to exclude emergency services in IMDs.  The
Board noted, however, that Congress specifically applied the exclusion
not only to nursing facility services (which are normally identified
with long-term care), but also to inpatient hospital services, which
would include acute care on a short-term basis.  Pennsylvania, at 6-9.
Thus, the IMD exclusion was intended to encompass services other than
merely those that are long-term in nature.

Based on these considerations, we conclude that the IMD exclusion was
not intended to distinguish among types of services in IMDs, and was not
aimed exclusively at long-term care services or services paid under an
inpatient per diem rate.  Rather, the focus of the IMD exclusion is on
the institutional status and age of the individual.

Because the IMD exclusion is not limited only to services associated
with long-term care, California's position  that the IMD exclusion does
not apply to ancillary services is not supported by the fact that the
regulatory definition of long-term care does not include ancillary
services.  See 42 C.F.R. . 447.251.  The regulatory definition also does
not include inpatient hospital services, which California acknowledged
are covered by the IMD exclusion, and thus does not serve as a guide for
applying the IMD exclusion.  Moreover, the definition is a limited one,
for the purposes of the regulatory subpart on payment methods in which
it appears.

California also quoted language from the legislative history of Public
Law 92-603, which provided an exception to the IMD exclusion for persons
under 21, as cited in Kantrowitz v. Weinberger, 388 F. Supp. 1127
(1974):

     Under present medicaid law, reimbursement for inpatient care of
     individuals in institutions for mental disease is limited to those
     otherwise eligible individuals who are 65 years of age or older.
     Matching for outpatient care for mentally ill children, as well as
     needy adults, is currently available under Title XIX.

S. Rep. No. 1230, 92d Cong., 2d Sess. 280 (1972).

California asserted that this description indicates that long-term care,
which it accepts as covered by the IMD exclusion, does not include
ancillary and physician services.  However, we conclude that the
statement in the quoted report that outpatient care is available for
mentally ill adults should not be read as meaning that such care -- or
other care not long-term in nature, such as ancillary services -- may be
provided to mentally ill adults when they are in IMDs.  This is evident
from the language immediately following the portion cited by California:

     The committee supports use of these funds where appropriate and
     believes that outpatient treatment in the patient's own community
     should be used wherever possible.  However, in some cases,
     inpatient care in an institution for mental diseases is necessary.

     The committee amendment would therefore authorize Federal matching
     under medicaid for eligible children, age 21 or under, receiving
     active care and treatment for mental diseases in an accredited
     medical institution.

Id. at 280-81.

The cited language treats outpatient psychiatric care and inpatient care
in an IMD as mutually exclusive, and indicates that outpatient,
community-based care is the preferable alternative.  Thus, the statement
quoted by California that outpatient care was allowable for mentally ill
adults does not mean that outpatient or other care is allowable when
provided to residents of IMDs.

Other issues

California also maintained that barring FFP for ancillary and physician
services to individuals in IMDs conflicts with the requirement of
section 1902(a)(10) of the Act that states provide Medicaid to all
categorically eligible recipients, including recipients of SSI.  The
State asserted that excluding FFP in ancillary and physician services
for SSI recipients in IMDs would contravene Congress's intent that SSI
beneficiaries as a group be provided with adequate health care, by
preventing them from receiving the same level of services available to
non-IMD SSI recipients.  HCFA's refusal to provide FFP for SSI
recipients ages 22-64 in IMDs leaves this group without adequate health
care, California argued, as there is no guarantee that they will receive
services other than room, board and mental health services.

Section 1902(a)(10) of the Act, which provides that "medical assistance"
must be made available to categorically eligible recipients of other
forms of aid, including SSI recipients, must be read in conjunction with
section 1905(a) of the Act, which specifically excludes from the
definition of "medical assistance" any care or services to persons ages
22-64 in IMDs.  The obligation to provide medical assistance to
categorically eligible individuals does not extend to services that are
not included in the definition of medical assistance.  Thus, the
requirement that medical assistance be made available to SSI recipients
does not mean that care and services must be made available to those SSI
recipients ages 22-64 in IMDs.  We agree with HCFA that the fact that
states may be required to provide medical assistance to recipients of
certain kinds of assistance does not override the explicit congressional
determination that payments for treatment of individuals in IMDs do not
qualify as medical assistance.

Conclusion

We conclude that the general IMD exclusion in section 1905(a) of the Act
does not distinguish among services, and prohibits Medicaid payment for
the ancillary and physician services that California provided to
individuals ages 22-64 in IMDs.  Accordingly, we uphold the disallowance
in this case.

 

 

       Donald F. Garrett

 

 

       Norval D. (John) Settle

 

 

       Judith A. Ballard Presiding Board Member


1.  We have quoted the relevant provisions as in effect at the time of
our decision and cited by California in its appeal.  During the time
that the disallowed services were provided, section 1905(a)(4)(A)
referred to "skilled nursing facilities" instead of nursing facilities;
section 1905(a)(14) included "intermediate care facility services"; and
section 1905(a)(15) referred to "intermediate care facility services"
instead of services in an intermediate care facility for the mentally
retarded.  The changes were effected by Public Law 100-203, . 4211, 101
Stat. 1330 (1987), and are applicable to services rendered on or after
October 1, 1990.

2.  Section 1905(a)(16) of the Act provides that medical assistance
includes payments for inpatient psychiatric services for individuals
under age 21.  Section 1905(h) states that this includes inpatient
psychiatric services provided prior to the date an individual attains
age 22, where the individual had been receiving services in the period
immediately preceding the date of attaining age 21.  For ease of
reference, we refer in this decision to the IMD exclusion as covering
individuals ages 22-64 years in IMDs.  We note that there has been no
assertion that this disallowance includes payments for services to
persons 65 years of age or older in IMDs, or for inpatient psychiatric
hospital services for individuals under age 21.

3.  The U.S. Supreme Court, in finding that an ICF could be an IMD,
noted that services performed for the mentally ill may be covered under
the Act, provided the services are performed in a hospital, a skilled
nursing facility, or an ICF that is not an IMD.  Connecticut v. Heckler,
471 U.S. 524, 105 S.Ct. 2210 (1985).  Thus, it is not the nature of the
services provided that invokes the IMD exclusion.

4.  We base our decision here primarily on the plain wording of the
general exclusion.  To the extent that resort to construction aids is
necessary, however, we agree with HCFA that they support its view,
rather than California's.

5.  Section 1902(a)(10)(A) of the Act requires that medical assistance
provided to eligible individuals under state plans must include at least
the care and services listed in paragraphs (1) through (5), (17) and
(21) of section 1905(a).   IMD services for individuals over age 65 are
thus excepted from mandatory coverage.

6.  As in effect at the time of Joint Consideration, both the
parenthetical language and the general IMD exclusion also applied to
institutions for the treatment of tuberculosis; this reference was
removed effective July 18, 1984 by section 2335(f) of Public Law No.

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