CASE | DECISION | FINDINGS OF FACT AND CONCLUSIONS OF LAW | 'JUDGE
Decision No. CR657
Department of Health and Human Services
DEPARTMENTAL APPEALS BOARD
Civil Remedies Division
IN THE CASE OF  


SUBJECT:

Long Life Wellness Center,

Petitioner,

DATE: Apr 5, 2000
                                          
             - v -
 
Health Care Financing Administration Docket No.C-99-456
DECISION
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I enter summary disposition sustaining the determination of the Health Care Financing Administration (HCFA) to deny certification to Petitioner, Long Life Wellness Centers, Inc., to participate in the Medicare program as a CMHC providing partial hospitalization services. I do so because Petitioner has not shown that it may provide screening for patients being considered for admission to State mental health facilities to determine the appropriateness of such admissions consistent with the requirements of federal and applicable Florida State law.

Background

Petitioner is a corporation that is located in Boca Raton, Florida. Petitioner applied to be certified to participate in the Medicare program as a community mental health center (CMHC) providing partial hospitalization services. On September 11, 1998, HCFA notified Petitioner that it had determined that Petitioner did not qualify to be certified as a CMHC. On October 6, 1998, Petitioner requested reconsideration of HCFA's determination. HCFA issued a reconsideration determination on December 14, 1998, again denying Petitioner's application for certification. Petitioner then requested a hearing and the case was assigned to me for a hearing and a decision.

HCFA moved for summary disposition. Petitioner opposed HCFA's motion. HCFA submitted a brief (HCFA Br.) and four proposed exhibits (HCFA Ex. 1 - HCFA Ex. 4) with its motion. Petitioner submitted a brief (P. Br.) and two proposed exhibits (P. Ex. 1 - P. Ex. 2) in opposition to HCFA's motion. I hereby receive into evidence HCFA Ex. 1 - HCFA Ex. 4 and P. Ex. 1 - P. Ex. 2.

In addition to moving for summary disposition, HCFA moved to dismiss that portion of Petitioner's hearing request in which Petitioner asserts that it should be allowed to participate in the Medicare program after it submits an acceptable plan of correction. Petitioner does not object to HCFA's request that I dismiss this portion of the hearing request and, therefore, I dismiss it.

Governing law

A. Federal law

"Partial hospitalization services" are services which are described at section 1861(ff) of the Social Security Act and which are reimbursed by the Medicare program. "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).

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

(i) providing the services described in section 1916(c)(4) of the Public Health Service Act; and

(ii) meeting applicable licensing or certification requirements for community mental health centers in the State in which it is located.


Act, section 1861(ff)(3)(B)(i), (ii). Although the Act refers to section 1916 of the Public Health Service Act, that 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:

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

(ii) 24-hour-a-day emergency care services;

(iii) day treatment or other partial hospitalization services or psychosocial rehabilitation services; and

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


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:

(1) Provides outpatient services, including specialized outpatient services for children, the elderly, individuals who are chronically mentally ill, and residents of its mental health service area who have been discharged from inpatient treatment at a mental health facility;

(2) Provides 24-hour-a-day emergency care services;

(3) Provides day treatment or other partial hospitalization services, or psychosocial rehabilitation services;

(4) Provides screening for patients being considered for admission to State mental health facilities to determine the appropriateness of such admission;

(5) Provides consultation and education services; and

(6) Meets applicable licensing or certification requirements for CMHC's in the State in which it is located.


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 Services Act and the above-cited regulation. In a document that is entitled "All States Letter 76-95" (All States Letter), HCFA states that a community mental health services center must provide all of the services that are listed in the Public Health Service Act, either directly or under arrangements with others. 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 Services Act and partial hospitalization services:

under a written arrangement, agreement or contract with other agencies, organizations, or individuals who are not [community mental health care] employees, and for which the [community mental health care] maintains overall management responsibility. The written agreement includes at least the identification of the services to be provided and the manner in which the contracted services are coordinated, supervised, and evaluated by the [community mental health care]. . .

All States Letter.

HCFA did not elect to offer the All States Letter as an exhibit in this case. That is almost certainly due to the fact that Petitioner did not assert, either in its application for certification, its request for reconsideration, or its hearing request, that it had acceptable arrangements with other entities through which it was providing screening services. However, Petitioner seems to be making such an argument in its brief. P. B. at 4. For purposes of this decision, therefore, I take notice of the All States Letter. I note that the All States Letter may be found as an exhibit in other cases involving CMHCs which I have decided. See, e.g., Charity Behavioural Services, Inc., DAB CR635 (1999) (the All States Letter is in evidence in that case as HCFA Ex. 1).

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 Services Act. In a memorandum dated August 21, 1998, HCFA stated that "screening":

constitutes the performance of at least one of the steps in a process by which an individual is clinically evaluated, pursuant to State law, for the appropriateness of admis[s]ion to a State mental health facility by an entity that has both the appropriate clinical personnel and authorization under State law to perform all of the steps in the clinical evaluation process except those required to be performed by a 24 hour facility.


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).

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).

 

FINDINGS OF FACT AND CONCLUSIONS OF LAW
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A. Issue

The issue in this case is whether HCFA properly determined not to certify Petitioner to participate in Medicare as a CMHC providing partial hospitalization services.

B. Findings of fact and conclusions of law

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.


1. Summary disposition is appropriate in this case.

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 have looked closely at Petitioner's arguments in order to decide whether there exist any genuinely disputed issues of material fact.

I am assuming the facts that Petitioner asserts in its brief and exhibits to be true for 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 providing partial hospitalization services even accepting as true the facts which Petitioner alleges.

2. Petitioner did not satisfy participation criteria for a CMHC
providing partial hospitalization services because it has made
no showing that it provides requisite screening services for patients
who are candidates for admission to State mental health facilities.

As I discuss above, at Part II.A of this decision, in order to be certified to provide partial hospitalization services - and to satisfy the statutory definition of a CMHC contained at section 1913(c)(1) of the Public Health Service Act - an entity must meet criteria which, among other things, include the following:

1. It must meet applicable licensing or certification requirements in the State in which it is located. 42 C.F.R. § 410.2;

2. 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);

3. The services that it must provide must include screening for patients being considered for admission to State mental health facilities to determine the appropriateness of such admissions. Public Health Service Act, section 1913(c)(1)(iv); 42 C.F.R. § 410.2; and,

4. Screening may be done either directly by a CMHC or through an arrangement with another entity. All States Letter



a. Petitioner has not shown that it is performing screening directly
consistent with the requirements of Florida State law.

In order to be able to perform directly the screening services that are required under section 1861(ff)(3) 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. Federal law requires a CMHC to comply with applicable State requirements in order to participate in Medicare. 42 C.F.R. § 410.2. Florida's law governing a transfer evaluation by a CMHC is plainly applicable State law inasmuch as a transfer evaluation is a process that is identical to screening. Under federal law, screening is the clinical evaluation of a patient to determine his or her suitability for hospitalization in a State mental health facility. Under Florida State law, a transfer evaluation also is a clinical evaluation of a patient to determine his or her suitability for transfer to a State mental health facility. F.S.A. § 394.455(29).

Under Florida law, in order to qualify as a CMHC that may perform transfer evaluations, an entity must meet two criteria. First, it must be a publicly-funded, not-for-profit center. Second, it must contract 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).

Petitioner asserts that it is a not-for-profit corporation. P. Br. at 1. Although Petitioner has provided no documentation that it is in fact a not-for-profit corporation, I am accepting as true Petitioner's representation that it is a not-for-profit corporation for the purpose of deciding this case.

However, Petitioner's not-for-profit status does not, in and of itself, satisfy the requirements of Florida State law which govern the qualifications of a CMHC to perform transfer evaluations. Petitioner must also show that it 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). Petitioner has neither alleged, nor offered any evidence to show, that it has such a contract.

Petitioner asserts, both in its hearing request and its brief, that it "performs all of the services of a community mental health center as defined by Florida law." P. Ex. 1 at 1. As evidence to support this contention Petitioner offers a declaration by its Director/Medical Director, Angel M. Garcia, M.D. P. Ex. 2. Dr. Garcia avers that Petitioner provided all of the services described in section 1913(c)(1) of the Public Health Service Act. Id. at 1. Additionally, Dr. Garcia asserts that Petitioner is authorized under Chapter 397 of the Florida Statutes to provide programs to the public in the areas of day and night treatment, outpatient treatment and prevention program for substance abuse. Id. at 2.

I am accepting as true the assertions of fact that are contained in Dr. Garcia's declaration. But, Dr. Garcia does not aver that Petitioner has contracted with the Florida Department of Children and Families for the provision of inpatient, outpatient, day treatment or emergency services. Nor has Petitioner produced any independent proof, aside from Dr. Garcia's declaration, that it has such a contract as is required under Florida State law as a prerequisite for performing transfer evaluations. Indeed, at no time during the pendency of Petitioner's application for certification has Petitioner produced such evidence.

b. Petitioner has not shown that it is performing screening
through an acceptable arrangement with another entity.

In order to comply with federal participation criteria an arrangement between a CMHC and another entity must provide that the CMHC retains overall supervision over the screening process. All States Letter. It is not sufficient for the CMHC merely to refer a patient to another entity for screening. The CMHC must directly supervise the basic functions which the other entity performs that comprise screening.

In its brief, Petitioner appears to concede that it does not have an arrangement with another entity to provide screening which complies with the requirements of the All States Letter. See P. Br. at 6. But, paradoxically, Petitioner appears to arguethat it may refer its patients to another entity for screening in a manner that is consistent with the requirements of Florida State law. P. Br. at 4 - 5. Thus, Petitioner seems to be asserting that, in fact, it does have an acceptable arrangement with one or more other entities to provide screening.

Petitioner argues that, under Florida State law, an entity known as a "receiving facility" is permitted to perform transfer evaluations. P. Br. at 4 - 5. From this Petitioner asserts that it may satisfy the screening requirement by transferring its patients to a receiving facility which will then perform the requisite screening. This argument is essentially the same argument that was made by the facility in the case of T.L.C. Mental Health Center, DAB CR636 (1999). I held there that a referral of a patient to a receiving facility does not satisfy the screening requirement where the referring entity does not exercise the supervisory authority that is required by HCFA. T.L.C., DAB CR636 at 8. I restate that holding here.

Petitioner's description of the referral of a patient to a screening facility is neither screening performed directly nor is it screening through an arrangement with others that is consistent with HCFA's requirements. It plainly is not screening performed directly because, as Petitioner describes it, the screening would be performed by the receiving facility and not by Petitioner. It is not screening through an acceptable arrangement because Petitioner has made no showing that it would retain the necessary management control or supervisory authority over the screening process. The fact that the receiving facility may be authorized under Florida State law to perform a transfer evaluation begs the question of whether Petitioner is exercising the requisite supervision of the receiving facility's performance of its functions.


JUDGE
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Steven T. Kessel
Administrative Law Judge

 

CASE | DECISION | FINDINGS OF FACT AND CONCLUSIONS OF LAW | JUDGE