SUBJECT:

Grandview Behavioral Health Center,

Petitioner,

Centers for Medicare & Medicaid Services.

DECISION

I grant summary disposition in favor of the Centers for Medicare & Medicaid Services (CMS). ⁽¹⁾ As discussed fully below, I find that CMS has established that Petitioner failed to meet two of the criteria required to participate as a CMHC in Medicare: the provision of 24-hour emergency care, and screening services for persons being considered for admission to State mental health facilities.

I. Procedural history of the case

This case was assigned to several administrative law judges (Judge Clifton, Chief Judge Silva, and then Judge Riotto) before being assigned to me for the hearing and the decision. The case is ultimately before me pursuant to Petitioner's letter requesting a hearing dated September 6, 2000. Petitioner's request stems from a July 6, 2000 letter from CMS. CMS's letter indicated that it was CMS's reconsidered determination that Petitioner remained out of compliance with the requirements for participation in Medicare as a CMHC, and that CMS's initial determination denying Petitioner's application to participate in Medicare as a CMHC (communicated to Petitioner by letter dated January 10, 2000) had been correct.

Petitioner's Motion for Summary Disposition was received August 14, 2001. CMS's Motion for Summary Disposition and Memorandum of Law in Support Thereof was received August 31, 2001. CMS's Response to Petitioner's Motion for Summary Dispositon was received September 6, 2001. And, Petitioner's Response to CMS's motion was received September 4, 2001.

Petitioner submitted Petitioner's Exhibits 1-33 (P. Exs. 1-33). Without objection, P. Exs. 1-33 are admitted. ⁽²⁾ CMS submitted CMS Exs. 1-20. Without objection, CMS Exs. 1-20 are admitted.

Petitioner is a mental health services provider in Montgomery, Alabama. It applied to participate in Medicare as a CMHC on June 23, 1998. P. Ex. 1. Subsequently, Petitioner submitted another application to participate in Medicare as a CMHC on September 17, 1998. The second application apparently sought to answer questions and provide information that the first application had not. P. Ex. 2.

An on-site visit was made by representatives of CMS on November 19, 1998. P. Ex. 3. A second on-site visit was made by CMS's intermediary (Cahaba Government Benefit Administrators) on March 4, 1999. P. Ex. 5. As a result of the second on-site survey, CMS made an initial determination that Petitioner did not meet the requirements for certification to participate in the Medicare program as a CMHC providing partial hospitalization services. CMS advised Petitioner of this initial determination by letter dated January 10, 2000. P. Ex. 6. By letter dated March 13, 2000, Petitioner requested that CMS reconsider its initial determination. P. Ex. 7. Then, by letter dated July 6, 2000, CMS informed Petitioner it had determined that its initial determination was correct. P. Ex. 8. Petitioner then filed its request for a hearing.

II. Authorities

The Social Security Act (Act) provides for reimbursement for "partial hospitalization services" provided by hospitals or CMHC's. The Act defines what partial hospitalization services are and it defines what CMHC's are for Medicare purposes. The Act also sets forth what qualifications CMHC's must have to participate in Medicare. The regulations enacted pursuant to the Act, provide the steps a prospective CMHC may take when CMS rejects its application to participate in Medicare.

Partial hospitalization services are reimbursed by Medicare pursuant to section 1861(ff) of the Act (section 1861 is codified at 42 U.S.C. 1395x). Partial hospitalization services are services prescribed by a physician and provided in accordance with criteria specified in the statute. These services include different types of therapy, psychiatric medicine services, counseling, training and education, diagnostic services, and other services deemed reasonable and necessary by the Secretary of Health and Human Services. See Act, sections 1861(ff)(1); 1861(ff)(2)(A)-(I).

CMHC's are entities that provide the mental health services described in section 1913(c)(1) of the Public Health Service Act. An exception is where state law prohibits the entity from providing the screening services described in subparagraph E of section 1913(c)(1) of the Public Health Service Act (patient screening services). In the event a State does prohibit such screening services, the CMHC may contract with another approved entity for the provision of screening services. The CMHC is further defined as an entity that meets additional conditions specified by the Secretary to ensure the health and safety of patients. The additional conditions are to ensure that services are effectively and efficiently provided, and that the CMHC complies with other criteria specified in 1931(c)(1) of the Public Health Service Act. See Act, section 1861(ff)(3)(B).

To provide partial hospitalization services under the Social Security Act, a CMHC must provide services, described in section 1931(c)(1) of the Public Services Act. Of those services, the ones relevant to this case are: specialized outpatient services for children, 24-hour-a-day emergency care services, and screening services for patients being considered for admission to State mental health facilities. See section 1913(c)(1) of the Public Health Services Act (codified at 42 U.S.C. § 300x-2(c)(1)). These same services are included in the regulatory definition of a CMHC at 42 C.F.R. § 410.2.

CMS has also published policy guidelines in All States Letter 76-95 and All States Letter 80-98. These guidelines provide CMHC's with information on how CMS interprets the Social Security Act as it pertains to CMHC's.

All States Letter 76-95 provides that the contracting of services with another entity, as allowed by the Public Health Services Act, must be pursuant to a written agreement which identifies the services to be provided and the manner in which the services are supervised, coordinated and evaluated by the CMHC. All States Letter 80-98 explains that a CMHC must provide the services required by the Act, not merely have the capacity to provide the required services.

42 C.F.R. Part 498 sets forth procedural regulations for appeals of CMS's determinations that deny participation in Medicare and Medicaid. Under Part 498 regulations, a provider dissatisfied with an initial determination by CMS may request reconsideration of that determination. 42 C.F.R. § 498.22. The standards by which reconsiderations are to be conducted are set forth in 42 C.F.R. § 498.24. The regulations further provide that a prospective supplier who is dissatisfied with a reconsidered determination is entitled to a hearing before an administrative law judge. 42 C.F.R. § 498.5(d)(1).

In reconsidering an initial determination, CMS is required to review relevant written evidence and statements that a party submits within a reasonable time after making the request for reconsideration. 42 C.F.R. § 498.24(a). CMS is required to consider as relevant: the initial determination, the findings on which the initial determination was based, the evidence considered in making the initial determination, and any other evidence submitted under § 498.24(a), and facts relating to the status of the prospective provider or supplier subsequent to the initial determination. 42 C.F.R. § 498.24(b).

III. Issues, findings and analysis

A. Issues

• Whether summary disposition (a decision based on the written submissions of the parties without an in-person hearing) is appropriate.

• Whether CMS's reconsidered determination that Petitioner did not qualify to participate in Medicare as a CMHC was correct.

B. Findings and analysis

1. Summary disposition is appropriate.

As a preliminary matter I find that summary disposition is appropriate. Summary disposition is appropriate in this case because the parties have agreed that "an in-person hearing is unnecessary to resolve this case and that the issues presented can be resolved based upon written submissions." Joint Notice of Issues for Summary Disposition at 2 (filed April 26, 2001).

In addition, I note that this case is appropriate for summary judgment because there are no material facts in dispute and the case may be decided as a matter of law. For instance, CMS does not question the content of the clinical records submitted as exhibits by Petitioner, which comprise most of Petitioner's evidence. CMS motion at 12. Summary judgement is appropriate and no hearing is required where either: there are no disputed issues of material fact and the only questions that must be decided involve application of law to the undisputed facts (See Federal Rules of Civil Procedure, Rule 56); 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.

2. CMS's reconsidered determination that Petitioner did not qualify to participate in Medicare as a CMHC is correct.

In its motion, CMS alleges that Petitioner was not qualified to participate in Medicare as a CMHC at the time of CMS's reconsidered determination. Specifically, CMS contends that Petitioner failed to provide three of the services required under the Act and 42 C.F.R. § 410.2: outpatient treatment for children, 24-hour emergency service, and screening for patients being considered for admission to State mental health facilities. I find that CMS has met its burden of presenting a prima facie case. I also find that Petitioner has not rebutted CMS's case by meeting its own burden- a preponderance of the evidence- that it was qualified to participate in Medicare as a CMHC at the time of the reconsidered determination. See Hillman Rehabilitation Center, DAB No. 1611 (1997); aff'd, Hillman Rehabilitation Center v. United Sates, No. 98-3789 (GEB) (D.N.J. 1999). Based on the relevant law, the evidence relating to what services Petitioner was providing before the date of the reconsidered determination, and the arguments of the parties, I find that Petitioner failed to meet two of the criteria required to participate as a CMHC in Medicare: the provision of 24-hour emergency care, and screening services for persons being considered for admission to State mental health facilities.

Before addressing whether Petitioner provided each of the services in question, for clarification, I explain my analysis of two sub-points in contention. The first is what the remedy should have been in the event I decided the case in Petitioner's favor; and the second is whether I should consider evidence (in the form of clinical records) that putatively show the provision of mental health services by Petitioner after the date of the reconsidered determination: July 6, 2000.

I do not make any finding concerning the appropriate remedy in this case because I decide the matter in CMS's favor. The question of what remedy I have the authority to impose is therefore moot and it is not necessary to discuss it further. I also conclude that the relevant time period for the development of evidence in this case ends at the date of the reconsidered determination. Therefore, I do not consider the evidence Petitioner offered which relates to the provision of services after the date of the reconsidered determination; however, this point merits thorough discussion.

a. I do not consider evidence of services provided after the date of the reconsidered determination: July 6, 2000.

Petitioner argues in its motion that I should consider "evidence including clinical records for services provided subsequent to January 10, 2000." Petitioner's motion at 17. Evidence of services provided after January 10, 2000 are relevant and, according to the regulations, it is appropriate for CMS to consider such evidence in its reconsidered determination; and it is likewise appropriate for me to consider such evidence in my review. However, in it's motion Petitioner does not mention that some evidence it submitted (in the form of clinical records) relates to services provided after July 6, 2000 - the date of the reconsidered determination. Then, in its reply to CMS Petitioner urges me to consider this evidence. Petitioner's reply at 2. Petitioner argues that consideration should be given because of Petitioner's unfair treatment in the application process by CMS, or, in the alternative, that the documents relating to services provided after July 6, 2000 should be treated as a new issue.

Section 498.24 is unambiguous in providing that evidence purporting to show qualification after the date of the initial determination will be considered by CMS during the reconsidered determination. In Center for Organ Recovery and Education, DAB CR313 (1994), Administrative Law Judge Kessel wrote:

The regulation establishes that reconsideration is a process in which parties may submit new evidence which is relevant to the issues under consideration. Also, the regulation states unambiguously that the evidence which a party submits to HCFA in its request for reconsideration may relate to activities and events which transpire after the date of the initial determination. 42 C.F.R. § 498.24(a) and (b).

As is apparent from the language of 42 C.F.R. § 498.24, the reconsideration process is not an appellate review by HCFA of its initial determination, or even a revisiting of that determination to assure that it was made correctly. The regulation contemplates a new determination in which additional relevant evidence is submitted by the party and considered by HCFA. Thus, it may be that in conducting reconsideration, HCFA must afford all parties to the initial determination the opportunity to present new evidence as to issues raised by the party requesting reconsideration. HCFA may be required to reevaluate its conclusions based on the evidence it obtains in the reconsideration process.

The unfair treatment alleged by Petitioner is that CMS delayed the processing of Petitioner's application to participate in Medicare as a CMHC; and that fairness dictates it should be permitted to present evidence of compliance after the date of the reconsidered determination. While I note that the process was lengthy (the initial application was made in September, 1998 and the reconsidered determination was not until July 6, 2000), my authority to review these matters is limited in scope, and I cannot take into account estoppel or other equitable arguments as the basis for a decision. See National Behavioral, DAB No. 1760 (2001). Furthermore, I am compelled to note that the time period between the on-site visit, initial determination and reconsidered determination, may reflect on either or both parties. On the one hand, the possibility, as Petitioner has argued, that Petitioner was not timely informed that the survey resulted in its application being rejected may be a regrettable delay; albeit one that it is beyond the scope of my review to remedy. On the other hand, between the time of the on-site survey and Petitioner's request for reconsideration, it occurs to me that there may have been sufficient time for Petitioner to raise its service level to ensure it met all statutory and regulatory criteria.

Petitioner also argues that I should exercise my discretion under 42 C.F.R. § 498.56(a)(1) and (2), which provides for an administrative law judge to hear new issues in a case, to consider the additional clinical records generated after July 6, 2000. But nowhere does Petitioner indicate in what way the new evidence constitutes a new issue or issues. Petitioner's reply at 2-3. While I do have the authority to consider new issues pursuant to 42 C.F.R. § 498.56, I decline to exercise that authority here because I do not find that there is a new issue related in any way to the main issue in the case. The development of new issues in a case is appropriate where, for example, new issues arise from surveys subsequent to an initial determination. See Kaulson Laboratories, Inc. DAB No. 1747 (2000). However, proposed evidence (clinical records) do not constitute an issue (i.e., controversy or matter to be decided). Nowhere does Petitioner argue or substantiate that evidence created after the reconsidered determination raises new issues. Petitioner could have alleged that the documentation of services provided after the reconsidered determination shows that some new issue has arisen. But, Petitioner has not argued, for example, that the documents show the facility was qualified to participate as a CMHC before the reconsidered determination. Thus, I conclude that the documents are not germane to the issue before me: was CMS's reconsidered determination correct that Petitioner was not qualified to participate in Medicare as a CMHC.

b. Petitioner was providing outpatient services for children as required by 42 C.F.R. § 410.2(1).

I find that Petitioner was compliant with 42 C.F.R. § 410.2(1) requiring provision of outpatient services to children. The record shows that Petitioner conceded that "[I]t is true that as of March 4, 1999 on-site visit Grandview was not providing outpatient services to any child." Petitioner's motion at 11. However, Petitioner maintains that the evidence demonstrates that it had been providing outpatient services to children. My review of the evidence and the arguments of the parties convinces me that Petitioner did provide outpatient services to children in a manner that was sufficient to comply with the regulation.

CMS concedes that one patient record, P. Ex. 26, does demonstrate the provision of outpatient services to a child. CMS motion at 22. But, CMS argues that this record is insufficient because it is a single instance of such service during the year between the initial onsite survey and the reconsidered determination. CMS maintains that this does not constitute actually providing (I discuss this concept fully below) the service. Id.

To support its rebuttal of CMS's case, Petitioner cites P. Ex. 26 to support a showing that outpatient services to children began on March 29, 2000. P. Ex. 26 is a document titled Initial Psychiatric Evaluation, March 29, 2000. It is background information and treatment records of a seven year old patient. That record contains, among other information, an initial diagnoses and treatment plan which includes admission to the outpatient program. P. Ex 26 at 3. The other documents provided by Petitioner, purporting to show the provision of outpatient services to children manifest services provided after July 6, 2000. See CMS Exs. 9-14.

The question is whether this information shows that Petitioner was actually providing the service. As I explained, P Ex. 26 shows the only instance of outpatient services provided by Petitioner to a child between the date of the onsite survey and the reconsidered determination; a period of a year. CMS argues that one instance under these circumstances does not fulfill the requirement in the regulation that the prospective CMHC be actually providing each service. CMS argues that merely showing the facility's capacity to provide the service is insufficient.

As I discussed in New Life, DAB No. CR700 (2000), the Social Security Act requires that a CMHC be actually providing the required services, but the term providing is not defined. The ordinary meaning of providing, however, is that something is actually being given. The capability of providing a service is not synonymous with the concept of actually providing. Thus, the mere capability to provide outpatient services to children is not sufficient under the regulations. CMS has applied this interpretation in All States Letter 80-98 where it indicates that a CMHC must be providing all of the services required in the regulation. Allowing facilities to participate in Medicare that claim to have the capacity to provide the services without actually proving that they are providing the services would allow entities that are not CMHC's to participate in Medicare.

In Comprehensive Behavioral Healthcare, DAB No CR890 (2002), Administrative Law Judge Sickendick found that the petitioner in that case documented that it had "one encounter almost nine months prior to the date of the onsite visit and one year prior to the date CMS initially denied its request for Medicare participation" and he concluded "a facility's provision of a brief assignment to a single child many months prior to the date of its onsite visits does not enable it to establish that it is providing the active, consistent and ongoing patient services which are prerequisite for Medicare certification as a CMHC." Judge Sickendick in turn cited Counseling and Therapeutic Center, DAB CR 696 (2000), wherein Judge Kessel found that a clinical record of services rendered approximately one year prior to an onsite visit did not establish actual provision of services because "having provided a service at some point in the past does not establish that a CMHC is actually providing services in the present." Also, what apparently influenced Judge Sickendick's finding in Comprehensive was the fact that the facility undertook treatment of a child, but never admitted the patient to its program and the petitioner was not directly involved in mental health treatment subsequent to the initial referral.

I find those cases persuasive for the proposition that actually providing a service does not mean having once provided the service in the remote past, and I would add that the degree of remoteness in time and the circumstances (e.g., as in Comprehensive where the service was not directly provided by the facility) of the service itself are significant. The facts of those cases, however, are distinguishable from the facts concerning outpatient services to children in the instant matter. In this case the facility has demonstrated that its provision of the service is current, and is wholly provided by the facility. This satisfies me that the facility demonstrated more than a mere capability at the time of the reconsidered determination, even if the service is a new part of Petitioner's operation. The thrust of the requirement is to prohibit entities that do not really provide the required services from passing themselves off as entities that do; in this context it is reasonable to conclude that actually providing means currently capable of providing the service as demonstrated by at least one recent provision of the service.

Accordingly, I conclude that Petitioner was providing outpatient services for children as required by 42 C.F.R. § 410.2(1).

c. Petitioner was not providing 24-hour emergency care as required by 42 C.F.R.§ 410.2 (2).

In addition to requiring outpatient services for children, 42 C.F.R. § 410.2(2) further defines a CMHC as an entity that "[p]rovides 24-hour-a-day emergency care services." I find that Petitioner failed to demonstrate that it was an entity providing these services at the time of the reconsidered determination.

CMS argued that Petitioner did not have an adequate mechanism for providing 24-hour emergency care, and that there was insufficient access for patients to 24-hour emergency care at the time of the reconsidered determination. CMS cited Evolution Healthcare Community Mental Health Center, CR778 (June 12, 2001) as supporting CMS's interpretation of how the emergency care requirement must be shown. In Evolution Administrative Law Judge Anglada determined that the purpose of the 24-hour emergency care requirement is "not to have a hot line service in place to receive calls, it is to insure that a patient is able to consult with a clinician outside of business hours for a psychiatric emergency and then receive interventions to deal with that emergency." Id. at 7. I agree with Judge Anglada's analysis of the regulation that the requirement is not satisfied by having some mechanism in place, nor do I think it is satisfied by a demonstration that the facility provided attention to a patient having an emergency. What a petitioner must demonstrate is that patients had access, consistent with the actually providing concept discussed above, to emergency interventions 24-hours a day. A petitioner demonstrating the existence of policies and procedures in memorandum and some instances of providing patients with telephone numbers or beeper numbers is suggestive that there is a system in place to deal with emergencies 24-hours a day, but I conclude that proof of compliance with the regulation requires more: a demonstration that an effective mechanism is in place.

Petitioner offered evidence that it had an emergency policy in place, see P. Ex. 18, and an on-call policy for its staff, see P. Ex. 19. And Petitioner argued that there were instances prior to the reconsidered determination of patients receiving emergency care. See P. Exs. 16, 20, 21, 22, and 32.

P Ex. 18 is a memorandum of the facility's psychiatric emergency policy. The policy in the memorandum is essentially that after office hours (8-5 Monday through Friday) patients will be instructed to call a toll-free number at the Mountain View Hospital. According to the policy, Mountain View Hospital will have contact information for Petitioner's staff. P Ex. 19 is the on-call policy which is described as "a mechanism for notification of crisis/emergency situations which impact the psychological stability of clients admitted to Grandview . . ." The exhibit also entails instructions for the crisis line operator, presumably a person on the staff of Mountain View Hospital (see P. Ex. 18), and it directs the on-call person to log calls and contact the on-call staff member. Attached to it is a list of beeper numbers for outpatient clinics (I note that Grandview does not appear to be listed as one of the outpatient clinics).

While P. Exs. 18 and 19 provide some evidence that Petitioner sought to have a 24-hour emergency availability, the mere indication of a policy alone is insufficient to demonstrate that patients were able to consult with clinicians outside of business hours. At best, some evidence of a 24-hour on-call policy indicates that there was an unproven mechanism in place. Petitioner attempted to buttress its claim by showing examples of "emergency service provided." Petitioner's motion at 8.

First Petitioner cites P Ex. 16. P. Ex. 16 is initial evaluation forms, progress notes, group therapy progress notes, psychosocial assessments, and a physician's order and discharge summary of a patient. Petitioner apparently offers these documents as to show that emergency services were provided because ultimately the patient was referred for screening and possible hospitalization due to a deterioration in his condition. Petitioner's motion at 6-8. It is arguable that the patient's condition was an emergency; I make no finding concerning that; however, nothing in P Ex. 16 is evidence that the patient was able to consult with a clinician outside of business hours for psychiatric emergencies. There is no information in P Ex. 16 which indicates that Petitioner's mechanism for providing after hours care was utilized by the patient, or Petitioner's staff. In fact, the records in the exhibit appear to show evaluation and treatment during regular business hours.

Petitioner also cites P. Ex. 20 to show that emergency services were provided. Petitioner's motion at 8-9. P. Ex. 20 is comprised of documents related to the psychiatric evaluation of a patient. It includes physician's orders, progress notes, group therapy progress notes, and aftercare and discharge documents. Apparently, Petitioner cites this example because the patient was sent to a hospital emergency room at one point during his treatment after he had an anxiety attack. While the emergency room visit could have been due to a psychiatric emergency, a facility's ability to note, document, or even assist in a patient's trip to a hospital emergency room, does not have anything to do with whether a patient would be able to consult with a clinician outside of business hours for a psychiatric emergency and receive interventions to deal with that emergency. Nowhere in P. Ex. 20 is there any indication that the patient availed himself of a mechanism or policy to deal with after-hours emergencies.

Petitioner next offers P. Ex. 21 to show that it was providing 24-hour emergency care. Petitioner's motion at 9-10. P. Ex. 21 is comprised of a crisis intervention/screening document, the initial psychiatric evaluation, doctors' orders, and progress notes. The documents show that after the initial intake of the patient, the patient apparently agreed to allow contact by Petitioner's staff to check on her over the weekend due to her suicidal ideation. There is nothing in the exhibit, however, to indicate that any emergency occurred or that emergency services were offered over the weekend in question. The emergency related content of P. Ex. 21 appears to be that Petitioner's staff monitored a new patient over a weekend, in accordance with a preagreed plan. While monitoring may have been prudent, and while "suicide ideation" is a very serious matter, I suspect that faced with a true emergency, a patient is not sent home. Furthermore, the arrangement whereby the patient would maintain contact with the facility does not appear to be consistent with the emergency policy and protocols in P. Exs. 18 and 19. The patient was apparently instructed to call a staff member's beeper directly, not the toll-free Mountain View Careline called for in the facility's policy. P. Ex. 21 at 4; P Ex. 18 at 1. Although the calls took place after hours, they did not occur as the result of an emergency. I conclude that P. Ex. 21 does not show either that Petitioner had an effective after hours emergency mechanism in place, nor dealt with an emergency which showed that Petitioner was capable of handling emergencies 24-hours a day.

Next is P. Ex. 22. This exhibit contains patient screening documents, an initial psychiatric evaluation, a "no-harm contract," a discharge summary, emergency call records, and progress notes. Petitioner explains that these documents show that contact was maintained with a patient over the weekend between the time he was initially assessed and the time he was to begin Petitioner's inpatient treatment. Petitioner offers the exhibit to show that Petitioner assisted the patient by calling 911 when the patient had an emergency. The emergency apparently resulted in the patient's admission to the hospital for stabilization. Petitioner's motion at 10. I note that the initial calls made over the weekend do not appear to be related to any after hours emergency care. It appears from the documents that at the initial screening of the patient on June 16, 2000, Petitioner's staff determined that the patient had "suicidal ideation." As a result, because it was Friday and the inpatient treatment did not begin until Monday, the patient was counseled to enter a "no-harm agreement" and was provided the facility's care line telephone number and a beeper number to use in the event of emergency. P. Ex. 22 at 1-2.

There is a discharge summary dated July 7, 2000, with a signature date of July 10, 2000, which appears to indicate that the patient was hospitalized on June 22, 2000- a Thursday. P. Ex. 22 at 8. The following document is the first of the emergency call forms. It indicates that the patient called at 7:35 p.m. on Friday June 16, 2000. This call didn't relate to an emergency but to the patients anxiety. "Discussed relaxation techniques" is recorded under the nature-of-emergency section. I note that June 16 is the date of the initial screening. On June 17 an emergency call form indicates that at "6:00 . . . called to follow up on client . . . no answer . . . [l]eft message on answering machine." The only other document in the exhibit is the progress notes which indicate that on June 22, 2000, a Thursday, at 4:00 p.m., a call was received from the patient for what appears to have actually been an emergency concerning suicide ideation. According to the progress notes, the staff member called 911 for police and an ambulance. A further notation indicates that at 4:20 the staff member spoke with the apartment manager and a police officer to explain the patient's background. It is also noted that the patient was transported to the hospital. It appears, from the emergency call log forms, that the emergency took place on a Thursday afternoon.

From this information it may be reasonable to infer that Petitioner was capable of responding to an emergency call from a patient during normal business hours. But it does not support a finding that Petitioner was providing 24-hour emergency care. This exhibit does not demonstrate that the patient was able to avail themselves of Petitioner's emergency policy, nor to consult with a clinician outside of business hours for psychiatric emergencies and receive interventions to deal with them. This example, while suggesting the facility took some measures to deal with emergencies generally, does not show the operation of the 24-hour emergency care mechanism.

Finally, Petitioner cites P. Ex. 32 to show that it was providing 24-hour emergency services. Petitioner asserts that P. Ex. 32 shows that one of its patients suffered "decompensation," (a deterioration in her mental health), and the facility arranged for her transport to an inpatient facility. Petitioner's motion at 10.

P. Ex. 32 does refer to a patient whose condition deteriorated and who apparently required transport to a hospital. And it appears that facility staff spoke with the patients family on the telephone, and paged the patient's doctor to get advice to relay to the patients family about what course of action to take. Nonetheless, it appears this is not an example of an after hours emergency service. I note that there is no emergency call form as was the case with some of the other exhibits purporting to show examples of emergency services. Instead all of the information is gleaned from progress notes. The date on the progress notes is June 13, 2000 and times are listed next to the entries on the form. All the times appear to be begin at "8:10" on June 13, 2000, with the latest entry on two different sets of progress notes and admission orders being 3:40 p.m. Thus, it appears that all of the telephone calls and consultations took place during normal business hours. P. Ex. 32 at 4-14. Petitioner has not explained how the information in this exhibit shows the provision of 24-hour emergency services.

I conclude from the evidence as a whole that Petitioner was not in compliance with the requirement to provide emergency services 24-hours a day. While there was a written policy which outlined the procedures for dealing with after hours emergencies, I find the examples Petitioner cited and the policy documents show that there was no consistent policy and no effective mechanism for dealing with emergencies in place.

It is telling that, as I noted above, Petitioner's emergency policy does not appear to specifically list the phone number of the facility that is the subject of the case; although it lists several others. Moreover, none of the examples offered by Petitioner were of after hours emergencies, and none of them appear to utilize the procedures set forth in the policy documents. This presents a troubling discordance between Petitioner's policy and the examples of care. These factors lead me to conclude that the facility's emergency policy was unclear, and, to the extent there was an emergency policy, Petitioner has not met its burden to show that it was an effective emergency policy.

d. Petitioner was not providing screening services for patients being considered for admission to State mental health facilities as required by 42 C.F.R. § 410.2(4).

42 C.F.R. § 410.2(4) requires that CMHCs must provide "screening for patients being considered for admission to State mental health facilities to determine the appropriateness of such admission." CMS argued that to comply with this requirement a CMHC must demonstrate that patients were considered for admission to a State mental health facility, that patients were clinically evaluated to determine the appropriateness of an admission, and that the evaluation resulted in a recommendation for admission or a recommendation for less restrictive treatment. CMS motion at 13. CMS's interpretation is that the screening process must have as its purpose determining a result, pro or con, based on clinical evaluation. CMS supported its interpretation with CMS Exs. 1 and 2 which are HCFA Program Issuance Transmittal Notices. These are guidelines to CMHCs concerning CMS's interpretation of the requirements under the regulations.

Petitioner argues it was compliant with this regulation at the time of the reconsidered determination and cites P. Exs. 16 and 17 in support. These exhibits are patient records that Petitioner claims show the patients were being considered for admission to mental health facilities and screened to determine the appropriateness of such admission. Petitioner's motion at 6-7.

The plain language of the regulation conveys that the screening is to be provided to a distinct group of patients: those "being considered for admission to State mental health facilities." And the regulation is clear on its face why the screening is being done: "to determine the appropriateness of such admission." Thus, the regulation creates a separate category of patients from those who are being treated during the regular course of the facility's inpatient program. So, if patients in the outpatient program suddenly "decompensate," it does not follow that their subsequent transfer to a hospital or inpatient facility places them in the category of those being deliberately screened for admission to a State mental health facility.

P. Ex. 16 is comprised of documents related to the care of a patient in Petitioner's out- patient program. The documents include daily and weekly progress notes. There does not appear to be any notation that an assessment was done for the purpose of determining the appropriateness of committing the patient to a State mental health facility. While it may be the case that, as a general matter, any time a patient is assessed by staff for any reason, certain indicia might lead to consideration of admission to an inpatient facility; however, in that circumstance, in order to meet the screening requirement in the regulation, that initial consideration must be followed by some clinical evaluation for the purpose of screening for admission to a State facility, and the screening must result in a determination that admission to a State facility is the most desirable course of action or it is not. Thus, Petitioner must provide evidence that the screening process was done for the reason stated in the regulation and what the result of the screening was. It is not enough to show that a patient in the outpatient program deteriorated and subsequently was referred for inpatient services.

In P. Ex. 16 there is a physician's order and admit order and discharge summary, both indicate the patient was making progress and then was dropped from the program and hospitalized. But there is no record to indicate the facility assessed the patient specifically to determine whether he should be admitted to a State facility or remain in the outpatient program. Thus, P. Ex. 16 does not show that Petitioner engaged in the specific screening required by § 410.2(4).

P Ex. 17, also relied on by Petitioner to show it was providing screening services, shows that a patient who had long history of mental illness was being treated on an outpatient basis by Petitioner, and then one day refused to attend the outpatient treatment, at which point it was evident that his condition had deteriorated. While there is evidence that Petitioner advised the patient's sister over the telephone that he needed to be hospitalized, there is no indication that Petitioner played a direct role in his commitment to the hospital, and more importantly there is no evidence that the facility did any assessment for admission to a State mental health facility for appropriateness and reached a conclusion. Merely relaying to the patient's sister that based on his rapid deterioration she should take steps to have him admitted to inpatient treatment, does not show the facility screened the patient considering him for admission to a State facility, and then reached a decision whether that type of admission would be best as opposed to some less restrictive treatment.

The two examples Petitioner offers show the end result where patients were moved from the outpatient program to inpatient care, but I find the regulation calls for a deliberate clinical process which is not demonstrated by the simple fact of patients being removed from outpatient to inpatient treatment. Accordingly, I find that Petitioner has not shown that it was providing screening services in compliance with § 410.2(4) at the time of the reconsidered determination.

IV. Conclusion

For the forging reasons, I enter summary disposition for CMS. I uphold CMS's reconsidered determination not to certify Petitioner to participate in Medicare as a CMHC.

Alfonso J. Montano
Administrative Law Judge

1. CMS was named the Health Care Financing Administration (HCFA). HCFA's name was changed to CMS effective July 5, 2001. To be clear I use CMS instead of HCFA throughout this decision, even where documents, including exhibits, refer to HCFA.

2. To keep the record clear, all Petitioner's exhibits are admitted without objection. But, I decide that evidence of services Petitioner provided after the date of the reconsidered determination are not relevant. Therefore, I have not relied on those Petitioner's exhibits which pertain to services provided after the date of the reconsidered determination.