SUBJECT:

Charity Behavioural Services, Inc.,

Petitioner,

Health Care Financing Administration.

I enter summary disposition in this case sustaining the determination of the Health Care Financing Administration (HCFA) not to certify Petitioner, Charity Behavioural Services, Inc., to participate in the Medicare program as a community mental health center providing partial hospitalization services. I premise this decision on my conclusions that: (1) Petitioner did not meet the criteria for certification as a community mental health center 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 dilatory processing of Petitioner's application for certification.

Introduction

Petitioner is a corporation that is based in Miami, Florida. Petitioner applied to be certified to participate in the Medicare program as a community mental health center which provides partial hospitalization services. HCFA denied Petitioner's application. Petitioner requested a hearing and the case was assigned to me for a hearing and a decision. I held a prehearing conference at which Petitioner and HCFA agreed that the 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 a total of 12 exhibits to support its motion and to respond to Petitioner's cross-motion (HCFA Ex. 1 - HCFA Ex. 12). Petitioner submitted a total of six exhibits to respond to HCFA's motion and to support its cross-motion (P. Ex. A -P. Ex. G). I hereby admit all of the aforesaid exhibits into evidence.

Governing law

A. Federal law

"Partial hospitalization services" are services which are reimbursed by the Medicare program pursuant to section 1861(ff) of the Social Security Act (Act). "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; 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 items and 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 community mental health center. Act, section 1861(ff)(3)(A). A "community mental health center" is defined by the Act to mean an entity:

HCFA has published policy guidelines which describe a community mental health center'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 community mental health center may arrange for those services described at section 1913(c)(1) of the Public Health Service Act and partial hospitalization services:

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).

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:

the process, as approved by the appropriate district office of the . . . [Florida Department of Children and Families], whereby a person who is being considered for placement in a state treatment facility is first evaluated for appropriateness of admission to the facility by a community-based public receiving facility or by a community mental health center or clinic if the public receiving facility is not a community mental health center or clinic.

F.S.A. § 394.455(29).

The Florida Department of Children and Families has interpreted the aforesaid statute as providing that only a community mental health center or clinic is authorized to perform transfer evaluations under Florida State law. HCFA Ex. 4. Under Florida State law, a "community mental health center or clinic" is 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).

A. Issues

The issues in this case are whether:

1. HCFA properly determined not to certify Petitioner to participate in Medicare as a community mental health center providing partial hospitalization services; and

2. I have authority to hear and decide Petitioner's argument that it was affected adversely by HCFA's allegedly dilatory review of Petitioner's certification application.

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.

As a preliminary matter, I note that Petitioner contested neither the facts nor the controlling law set forth by HCFA in its motion for summary disposition. I could find from Petitioner's failure to do so that Petitioner has, in effect, not contested HCFA's assertion that Petitioner failed to satisfy applicable certification requirements. However, I have examined closely HCFA's arguments and the applicable law in the interest of providing Petitioner with a full and fair hearing of its case.

1. Petitioner did not satisfy participation criteria for a community mental health center providing partial hospitalization services because it did not provide requisite screening services for patients who are candidates for admission to State mental facilities.

Petitioner does not satisfy participation criteria for a community mental health center 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 community mental health center contained at section 1913(c)(1) of the Public Health Service Act - an entity must meet the following criteria which govern screening of patients being considered for admission to State mental health facilities:

1. It must provide all of the services that are listed in section 1913(c)(1) of the Public Health Service Act. Act, section 1861(ff)(3)(A). Those services must include screening for patients being considered for admission to State mental health facilities to determine the appropriateness of such admission.

2. It must provide screening for patients either directly or under arrangement with others. All States Letter. If it elects to provide screening under arrangement with others, that arrangement must be via a written agreement which vests overall management responsibility in the community mental health center. Public Health Service Act, section 1913(c)(1). Furthermore, the agreement must specify the services to be provided and the manner in which the contracted services are coordinated, supervised, and evaluated by the community mental health center. Id.

The record of this case shows that Petitioner did not provide requisite screening services, either directly, or under arrangement with others.

a. Petitioner was not authorized under Florida State law to provide screening directly and, therefore, did not provide screening directly to others within the meaning of applicable participation criteria.

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. HCFA Ex. 3 at 1. Florida State law discusses screening as "transfer evaluations." F.S.A. § 394.455(29). Under Florida State law, a transfer evaluation for 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. Petitioner has not offered evidence which shows that it met this requirement.

Petitioner avers that it changed its corporate status from a for-profit to a not-for-profit entity. Petitioner's hearing request. But, Petitioner does not assert, nor has it offered any evidence to prove, that it was a publicly-funded center with a contract with the Florida Department of Children and Families for the provision of inpatient, outpatient, day treatment, or emergency services.

b. Petitioner did not provide screening through arrangements with others because it did not enter into contracts with other entities to have screening performed within the meaning of federal requirements.

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 required services nor did it retain the requisite management responsibility for those services that it did contract for.

Petitioner executed agreements with other entities to have services performed on Petitioner's behalf. HCFA Ex. 7; HCFA Ex. 8; HCFA Ex. 9. These agreements were between Petitioner and South Shores Hospital, between Petitioner and Prometo Counseling Center, Inc., (Prometo), and between Petitioner and Miami Counseling Center, Inc. (Miami Counseling). Ids. Close analysis of these agreements shows that none of them satisfy the criteria for screening via arrangements with others.

None of the agreements provide that the contracting entities will provide screening services for admission of patients to State mental facilities. The agreement between Petitioner and South Shore Hospital obligates Petitioner to screen patients for possible admission to South Shore Hospital. HCFA Ex. 7 at 2. But, it does not specify that South Shore Hospital will provide screening by arrangement for possible admission of patients to State mental facilities. See Id. Neither the agreement with Prometo nor the agreement with Miami Counseling specifies that these two entities actually will perform screening services for Petitioner to determine the admissibility of patients to State mental facilities. See HCFA Ex. 8; HCFA Ex. 9.

Furthermore, none of the agreements vest overall management responsibility for contracted services - much less overall management responsibility for screening services - with Petitioner. See HCFA Ex.7; HCFA Ex. 8; HCFA Ex. 9. Indeed, it is apparent from these agreements that Petitioner maintains no management responsibility for contracted services. See Ids.

2. I am not authorized to hear and decide Petitioner's assertion that it was damaged by HCFA's alleged dilatory processing of its certification application.

Petitioner asserts that HCFA delayed unreasonably its processing of Petitioner's application for certification. Petitioner argues that HCFA was negligent in failing to process the application more expeditiously and that, as a consequence, HCFA denied Petitioner due process. Petitioner contends that it suffered financial losses as a result of HCFA's alleged negligence. It asks that I direct HCFA to "assume all expenses incurred by" Petitioner for a period beginning six months prior to October 20, 1998 and running through January 31, 1999. Petitioner's motion for summary disposition at 4.

Petitioner's motion is, in effect, a demand for money damages premised on an argument that HCFA acted unfairly. I do not have the authority to hear and decide Petitioner's motion or to grant Petitioner the remedy that Petitioner seeks. Consequently, I deny Petitioner's motion.

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 about 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. On several previous occasions I have decided that I lack the authority to hear and decide estoppel arguments in cases involving alleged dilatory processing of applications for provider or supplier certification. 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 my previous decisions that I lack the authority to hear and decide estoppel arguments.

Steven T. Kessel

Administrative Law Judge