I grant the motion of the Health Care Financing Administration (HCFA) for summary disposition. I do so because Petitioner has not established that it is actually providing the services for which it seeks to be certified as a participant in Medicare.

Background

Petitioner, Psychstar of America, is a community mental health center (CMHC) in Florida. Petitioner applied to HCFA to participate in the Medicare program as a CMHC providing partial hospitalization services. On September 11, 1998, HCFA advised Petitioner that it had determined that Petitioner did not meet certification requirements. Petitioner provided additional information to HCFA with the purpose of satisfying HCFA's concerns. On December 14, 1998, HCFA sent Petitioner a notice advising Petitioner that, on reconsideration, HCFA had again determined that Petitioner failed to meet federal participation requirements.

Petitioner requested a hearing before an administrative law judge and the case was assigned to me for a hearing and a decision. HCFA then moved for summary disposition of the case. Petitioner opposed the motion. HCFA has offered 10 exhibits (HCFA Ex. 1 - HCFA Ex. 10) in support of its motion. I am receiving these exhibits into evidence for purposes of deciding the motion.

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 provided, pursuant to specified statutory criteria, and which include: individual and group therapy with physicians and 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 services as the Secretary of this Department may determine to be reasonable and necessary. Act, sections 1861(ff)(1); 1861(ff)(2)(A) - (I); 42 C.F.R. § 410.2; and 42 C.F.R. § 410.43.

The Medicare program will reimburse for partial hospitalization services that are provided by either a certified hospital to its outpatients or by a CMHC. Act, section 1861(ff)(3)(A). A CMHC is defined by the Act to mean an entity:

Act, section 1861(ff)(3)(B)(i), (ii).

Although the Act refers to section 1916 of the Public Health Service Act (PHSA), that section was recodified as section 1913(c)(1) of the PHSA. The services described in that section that a community mental health center must provide are:

• outpatient services, including specialized outpatient services for children, the elderly, the seriously mentally ill, and residents of the . . . [community mental health center's] service area discharged from inpatient treatment at a mental health facility;



• 24-hour-a-day emergency care services;



• day treatment or other partial hospitalization services or psychosocial rehabilitation services; and



• screening for patients being considered for admission to State mental health facilities to determine the appropriateness of such admission.
  

HCFA has published policy guidelines which describe a CMHC's obligations under section 1913(c)(1) of the PHSA. In a document issued July 24, 1995, entitled "All States Letter 76-95" (All States Letter), HCFA stated that a CMHC must provide all of the services that are listed in the PHSA, either directly or by others under arrangements. HCFA Ex. 1. The All States Letter defines the term "under arrangements" to mean that a CMHC may arrange for those services described at section 1916(c)(4) [now section 1913(c)(1)] of the PHSA and partial hospitalization services:

Id. , at 3 (emphasis added).

In an August 21, 1998 interpretive guidance, HCFA indicated that it 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 1861(ff)(3)(B)(i) of the Act. HCFA Ex. 3. In that guidance, HCFA defines "screening" as follows:

HCFA Ex. 3 at 1.

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:

F.S.A. § 394.455(29).

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. Issue

The issue in this case is whether Petitioner satisfies certification requirements to participate in the Medicare program as a CMHC which provides partial hospitalization services.

The gravamen of HCFA's motion is that Petitioner does not qualify for Medicare reimbursement because Petitioner has not made an acceptable arrangement for screening for patients being considered for admission to State mental health facilities to determine the appropriateness of such admissions which satisfies applicable federal criteria and state law. To support its motion, HCFA makes four arguments. These are that:

B. Findings of fact and conclusions of law

I make findings of fact and conclusions of law (Findings) to support my decision that Petitioner does not satisfy applicable certification requirements. I set forth each of my Findings below as a separately numbered heading. I discuss each Finding in detail.

Summary disposition is appropriate only in the case where there are no disputed issues of material fact and where the case may be decided based on the undisputed material facts and on analysis of the applicable law. In this case the facts are either undisputed or, alternatively, I have based my decision on an analysis of the facts which is most favorable to Petitioner.

1. It is Petitioner's burden to establish that it satisfies
applicable Medicare participation requirements.

Petitioner is an applicant for participation in Medicare. It has the burden of establishing that it satisfies participation requirements. 42 C.F.R. § 489.10(a). And it has the ultimate burden of rebutting, by a preponderance of the evidence, any prima facie case of noncompliance that is established by HCFA. Hillman Rehabilitation Center, DAB No. 1611 (1997), aff'd., Hillman Rehabilitation Center v. United States Department of Health and Human Services, Health Care Financing Administration, No. 98-3789 (GEV), slip op. at 25 (D.N.J., May 13, 1999); see Edison Medical Laboratories, Inc., DAB No. 1713 at 12 - 14 (1999).

Here, HCFA bears no burden of coming forward with evidence to establish the negative proposition that Petitioner is not complying with applicable participation requirements. As an applicant for participation, Petitioner must show affirmatively that it is complying with such requirements. HCFA meets its burden to establish a prima facie case merely by establishing that Petitioner has not supplied it with affirmative evidence that it is complying with one or more participation requirements.

2. Petitioner did not establish that it is actually
providing screening services.

The parties have dedicated most of their arguments to the questions of whether the Locktowns contract is an acceptable arrangement by which Petitioner may provide screening services and whether Petitioner is capable of providing the requisite supervision and control over the performance of the Locktowns contract. However, these arguments are secondary to the question of whether Petitioner has established that it is actually providing screening services via the Locktowns contract. That is because the Act requires that a CMHC actually be providing screening services - either directly or through an acceptable other arrangement - in order to qualify for reimbursement for partial hospitalization services. The capability to provide screening services is not enough to satisfy the Act's requirements. A CMHC will not qualify to participate in Medicare if it establishes that it has the capability to provide screening services but fails to establish that it actually is providing such services.

The statutory definition of a CMHC includes the statement that a CMHC is an entity that is providing specified services. Act, section 1861(ff)(3)(B)(i). The Act does not define the term "providing." However, the common and ordinary meaning of the term is that something is actually being given. A capability to provide something is not synonymous with the concept of "providing."

The language in the Act is not ambiguous. Moreover, HCFA has interpreted and applied the Act consistent with its plain meaning. In the All States Letter, HCFA poses and responds to the following question:

HCFA Ex. 1 at 1 (emphasis added).

Petitioner has not offered any evidence that it is actually providing - or that it ever has provided - screening services via the Locktowns contract. As of July 16, 1998, Petitioner admitted that it had not provided any screening services. HCFA Ex. 5 at 3. Moreover, Petitioner has not averred, nor offered any proof, that it has provided such services through the Locktowns contract at any date subsequent to July 16, 1998. Petitioner has asserted only that it has the capability to provide screening services.

On November 12, 1998, Petitioner submitted a response to HCFA which addressed the findings that HCFA had made in its September 11, 1998 initial determination. HCFA Ex. 6; see HCFA Ex. 5. Petitioner recited HCFA's finding that there was no evidence that Petitioner was providing screening services. HCFA Ex. 6 at 2. In response to that finding, Petitioner attached a copy of the Locktowns contract. Id.; see HCFA Ex. 8. It averred that, under the contract, Locktowns "will provide evaluation and screening for State mental health facilities . . . ." But, Petitioner did not assert that screening actually was taking place.

Nor did Petitioner respond in its brief to HCFA's argument that it did not qualify for participation because it has not actually provided screening services. Petitioner devoted virtually its entire brief to its contention that the Locktowns contract is an acceptable arrangement for providing such services. However, it never addressed HCFA's assertion that Petitioner had failed to prove that it actually was providing screening services.

3. Petitioner's failure to prove that it is providing
screening services is a sufficient basis for HCFA
to deny Petitioner participation in Medicare.

As I find above, at Finding 1, a CMHC must show that it actually is providing screening services in order to qualify for participation in Medicare. Petitioner has not established that it is providing such services. Therefore, HCFA is justified in denying Petitioner participation in Medicare.

4. It is unnecessary for me to decide whether the
Locktowns contract is an acceptable arrangement to
provide screening inasmuch as Petitioner has not shown
that it actually is providing screening via the Locktowns contract.

I do not decide whether Petitioner established an acceptable arrangement to provide screening services via the Locktowns agreement. It is not necessary that I do so. Petitioner has not established that it meets applicable participation requirements even if Petitioner could show that the Locktowns agreement passes muster under applicable federal and State criteria. That is because, under a characterization of the evidence that is most favorable to Petitioner, Petitioner would be able to demonstrate at most that it has the capacity to provide screening services. Therefore, I do not address HCFA's arguments 1 - 3 in this decision.

Steven T. Kessel
Administrative Law Judge