GAB Decision 471
Docket No. 83-94
October 31, 1983
Nevada Department of Human Resources;
Garrett, Donald; Teitz, Alexander Ford, Cecilia
The Nevada Department of Human Resources (appellant) appealed a
decision by the Health Care Financing Administration (respondent) to
disallow $3,041.05 in federal financial participation claimed under
Title XIX of the Social Security Act (Act) for the quarter ending June
30, 1982. The disallowance was taken under section 1903(g) of the Act.
The disallowance was based on the respondent's determination that the
utilization control requirements of section 1903(g) were violated by the
appellant for eight patients in four skilled nursing facilities (SNFs).
Following review of additional material submitted by the appellant, the
respondent reduced the amount disallowed to $1,520.53. The disallowance
now encompasses two individuals in two facilities. This appeal was
handled under the Board's expedited process (45 CFR 16.12). The record
includes written submissions from both parties as well as the tape of a
telephone conference held on October 6, 1983. For the reasons set out
below, we uphold the disallowance in part and reverse in part.
Pertinent Statutes and Regulations
Section 1903(g) of the Act requires that the state agency responsible
for the administration of a State's Medicaid plan under Title XIX of the
Act show to the satisfaction of the Secretary that the State has an
"effective program of control over utilization of" long-term inpatient
services in certain facilities, including SNFs. This showing must be
made for each quarter that the federal medical assistance percentage
(FMAP) is requested with respect to amounts paid for such services for
patients who have received care for 60 days in SNFs or the FMAP will be
reduced according to the formula set out in section 1903(g)(5).
Specifically, sections 1903(g)(1)(A) and (B) provide that the State
"must" show that--
(A) in each case for which payment is made under the State plan, a
physician certifies at the time of admission . . . (and recertifies,
where such services are furnished over a period of time, in such cases,
at least every 60 days . . .) that such services are . . . required to
be given on an inpatient basis because the individual needs . . . such
services; and
(2) (B) in each such case, services were furnished under a plan
established and periodically reviewed and evaluated by a physician . .
.
These statutory requirements are implemented for SNFs by 42 CFR
456.260 (1981), which states in part that a physician must certify "at
the time of admission "that a patient needs skilled nursing care; and
42 CFR 456.280 (1981), which describes the elements of a plan of care
and states that the "physician must establish a written plan of care"
for each skilled care patient before admission to a SNF.
The respondent also issued an Action Transmittal, SRS-AT-75-122,
dated November 13, 1975, to State Medicaid administrators to clarify
"what is required (for certification and recertification) in order for
States to be considered in adherence with the statute and regulation."
Action Transmittal 80-68, issued October 1, 1980, replaced Action
Transmittal 75-122 and was intended to further clarify the requirements,
not to change them substantively.
Background
A. Hillhaven Convalescent
A patient in Hillhaven was transferred from an intermediate level of
care to the skilled nursing level by physician's telephone orders on
April 19, 1982. A transfer to the SNF level of care is considered a new
admission which requires the physician to certify that these services
are needed and to establish a plan of care. See, 456.260 and 456.280.
The respondent initially based the disallowance for this facility on
the physician's failure to establish a timely plan of care for this
patient. After reviewing documentation submitted by the appellant, the
respondent also alleged that the physician had not certified the patient
for a new level of care in a timely fashion. The respondent based its
position on evidence which it alleged showed that the physician had not
signed and dated the certification and plan of care until the day after
the patient's admission (April 20). The respondent concluded that the
physician's actions violated both 42 CFR 456.260 and 456.280.
B. Vegas Valley Convalescent
A patient was transferred from Vegas Valley to a local hospital on
June 2, 1982. On June 4, the patient was readmitted to Vegas Valley and
the attending physician telephoned in his orders for care of the
patient. The physician signed the plan of care when he went to the
facility on June 5. The respondent concluded that the utilization
control requirements had been violated for this (3) patient because the
plan of care was not established before admission to the SNF as required
by 42 CFR 456.280. The respondent later alleged that the plan of care
was substantively deficient.
C. Appellant's Position
Initially, the appellant conceded that the attending physician for
each patient had signed the documents in question on the day after
admission, "within 24 hours" of the telephone orders. (Appellant's
Brief, p. 1) However, the appellant argued that the physicians' actions
complied with the guidelines set out at 42 CFR 405.1132(e)(1981) and 42
CFR 405.1026(j)(1981) for recordkeeping in facilities covered by
Medicare and that these guidelines were applicable here. The appellant
also alleged that, in assessing compliance with section 1903(g), the
respondent had relied on an internal Agency document, Medicaid Regional
Letter, Transmittal No. 82-2 (Regional Letter 82-2), and imposed a new
standard of timeliness which conflicted with the statute and
regulations.
Subsequently, the appellant alleged that the respondent's application
of the regulations at 42 CFR 456.260 and 456.280 was overly restrictive.
The appellant argued that neither regulation required that a physician
sign and date either the certification of need or the plan of care. The
appellant maintained that the respondent's actions constituted an
attempt to create new regulations without going through the regulatory
process. Additionally, the appellant reversed its position with regard
to the certification of the Hillhaven patient and claimed that this
patient was certified in a timely manner. The appellant pointed to the
physician's orders (its Attachment I(b)), and claimed that this document
demonstrated that the physician had signed the certification on April
19, the date of admission to the skilled level of care.
Analysis
A. The Medicare Regulations on Which the Appellant Relied
The regulation at 42 CFR 405.1026 sets out, in part, conditions of
participation by hospitals in the Medicare program. The regulation
generally requires that medical records be maintained in accordance with
accepted professional principles. Specifically, the standard at
405.1026(j)(1) requires that current records are completed within 24-48
hours following admission. However, this standard applies to hospitals
in the Medicare program, not to nursing facilities in the Medicaid
program. Thus, 405.1026(j)(1) is inapplicable here.
(4) Generally the regulation at 42 CFR 405.1132 requires that SNFs
participating in Medicare maintain clinical (medical) records for all
patients in accordance with accepted professional standards. The
standard at section 405.1132(e) requires that current medical records
and those of discharged patients must be completed "promptly."
As a condition of their participation in the Medicaid program, SNFs
must meet the Medicare standards set out at 42 CFR 405, Subpart K.
(See, 42 CFR 442.202(c)) However, the standard at 405.1132(e) pertains
to record keeping in general. We do not believe that such a general
standard supercedes or conflicts with the more specific standards of the
utilization control program for SNFs discussed below. Thus, the mere
fact that the appellant may have complied with the standard does not
provide a basis for overturning this disallowance.
B. Regional Letter 82-2
Regional Letter 82-2 was a document issued by respondent to guide
federal surveyors who would be reviewing utilization control programs
for the quarter ending June 30, 1982. The Letter provided the surveyors
with an outline of the standards by which they were to assess a
facility's compliance with the utilization control requirements. The
Letter informed the surveyors that certifications were to be signed by a
physician and dated on or before the patient's admission. The Letter
interpreted the requirement that physicians establish written plans of
care before admission to mean that the attending physicians' "signatures
or initials must be timely; i.e. dated on or before admission . . . ."
During the telephone conference, the appellant maintained that
Regional Letter 82-2 was an internal document not sent out to the states
and that appellant did not have notice of the document's contents. The
appellant added that, in any event, the standards set out in the
Regional Letter were too restrictive and unreasonable. The respondent
contended that the Regional Letter represented a reasonable
interpretation of the regulations. The respondent argued that even if
the Regional Letter was not received by the appellant before the
validation survey, Action Transmittal 80-68, which was received by the
appellant, spelled out the requirement for a valid certification and the
standards of Action Transmittal 80-68 were merely reiterated in Regional
Letter 82-2. The appellant conceded that it had received 80-68 and that
certification standards were the same in both documents. However, the
appellant continued to argue that those standards were too restrictive
and represented an attempt by the respondent to improperly create new
regulations.
(5) So far as the question of certification is concerned, Regional
Letter 82-2 contained the same information as Action Transmittal 80-68.
We discuss the issue of certification and the application of Action
Transmittal 80-68 in section C below.
Although Regional Letter 82-2 addressed specific standards regarding
plans of care which the surveyors were expected to apply, no evidence
has been submitted to show that this appellant or any other state had
notice of the respondent's interpretation that the physician's signature
or initials on the plan of care had to be dated on or before the date of
admission. Action Transmittal 80-68 dealt only with certification and
recertification. Therefore, the respondent cannot rely on this
transmittal as notice to the appellant of the interpretation of the plan
of care requirements set out in Regional Letter 82-2. We discuss the
plan of care issue in section D below.
C. Whether the Certification for One Patient Was Timely
The regulation at 456.260 requires, in part,
(a) A physician must certify . . . for each applicant or recipient
that SNF services are . . . needed.
(b) The certification must be made at the time of admission . . . .
Action Transmittal 80-68 defined certification as "the process by
which a physician attests to an individual's need for a specific level
of institutional care. The certification must be provided by the
physician on or not more than 60 days prior to an individual's admission
to an institution." It also identified several conditions "which must
be
met in order for the certification to be considered valid": i.e., that
it be in writing, signed by a physician using his/ her signature or
initials, and dated at the time it is signed or initialed.
Paragraph 3 of Action Transmittal 80-68 provided several examples of
acceptable certification documents, including:
physician orders, which clearly indicate the need for a particular
level of care, signed and dated on or not more than 60 days before the
date of admission . . .;
The question of a timely certification arises in regard to the
patient in the Hillhaven facility. The appellant initially agreed that
the physician initialed the certification on the day after admission but
disputed that this (6) certification was untimely. The appellant argued
that the standards contained in Action Transmittal 80-68 were overly
restrictive and an attempt by the respondent to create new regulations
without observing the proper procedures.
As we have noted above, Action Transmittal 80-68 is an updated
version of SRS Action Transmittal 75-122. That earlier Action
Transmittal withstood a challenge substantially identical to that posed
by this appellant. This Board previously found that Action Transmittal
75-122 was "quite clearly . . . an interpretation of the terms used in
the statute: 'certification . . . by a physician's and 'at the time of
admission.'" The Board determined that the requirements set out in the
Action Transmittal were "not new, substantive requirements but are
merely interpretations of the terms of the statute and regulation."
Social Service Board of North Dakota, Decision 166, April 30, 1981, p.
4.
We conclude that the State's obligations have not been altered. The
only restrictions that the Action Transmittal places on the
certifications which are not explicit in the statute and regulation are
those that the certification be in writing and that time of admission
means on or before the date of admission. Both of these are logical
extensions of a requirement that there be a certification at the time of
admission and both carry out the purpose of the statute, i.e., that the
Secretary be satisfied that the State have an effective program of
utilization control. These requirements appear to be reasonable for
purposes of administrative convenience. (How can the Agency verify that
a certification has actually been made if it is not in writing?) We
conclude that there is no alteration of rights or other substantial
impact on the state that is not already imposed by the statute and
regulations.
We believe that the rationale of the North Dakota decision applies
here as well.
The regulation at 456.260 requires that certification be made at the
time of admission, and the appellant had notice that "time of admission"
means on or before the date of admission. We have previously upheld the
respondent's position that a certification dated even one day after the
patient's admission is invalid. Colorado Department of Social Services,
Decision 169, April 30, 1981. Accordingly, unless the physician
initialed the certification on or before the date of admission, the
certification was not initialed in a timely fashion.
The appellant provided the alternative argument that the physician
had, in fact, signed the certification at the time of admission. In
support of this argument, the appellant (7) presented a copy of the
physician's orders for the Hillhaven patient.
The orders are on a one-page document. On the left side of the
document is a column captioned "Order Date". In this column the date
corresponding to a particular order is entered. The first order, dated
"4-19-82", is the change in the level of the patient's care. The
appellant admitted that this order was phoned in by the attending
physician; there is a notation by a nurse who wrote the order to that
effect directly under the order. This particular order is accompanied
by scribbled initials which the appellant identified as the attending
physician's. The initials are not dated. The order certifying the
patient for skilled care is followed by several other orders which were
submitted to the Board as evidence of a plan of care. (See, discussion
at D, below.) At and end of this group of orders, which were written by
a nurse on April 19, are the physician's initials, dated "4-20".
In the written briefing, the appellant had conceded that the
physician had initialed the certification on the day after admission.
However, during the telephone conference the appellant argued that since
the change in certification was dated "4-19-82" and the physician
initialed the change, the initials must have been affixed on April 19.
The appellant maintained that the physician was in fact in the facility
on April 19 and offered to submit evidence of this as further proof that
the physician signed the certification at the time (i.e. on the date) of
admission. /1/
We do not find that the physician's presence in the facility on April
19 created a presumption that the certification was signed at the time
of admission.
The physician's initials for the plan of care are dated "4/20";
the
physician's initials for the certification (transfer to a higher level
of care) and undated. The physician's mere presence in the facility on
April 19 does not show that he initialed the certification on that date.
The appellant had originally admitted that the certification had been
initialed on April 20. Without an offer of direct evidence from the
physician to the contrary, we must conclude that it is most likely that
the physician initialed the certification when he initialed the plan of
care on April 20.
(8) Based on the evidence presented and the regulatory requirements,
we conclude that the patient in Hillhaven was not properly certified at
the time of admission.
D. Whether There Was a Timely Plan of Care Established for Each Patient
The regulation at 456.280(a) states:
Before admission to a SNF . . . the attending physician must
establish a written plan of care for each applicant or recipient in a
SNF.
The respondent concluded that the plans of care for the patients in
Vegas Valley and Hillhaven were untimely because they were not signed
and dated by the physicians before each patient's admission.
In determining that the plans of care were untimely, respondent used
the plan of care guidelines stated in Regional Letter 82-2.
The plan of care must be established by a physician (M.D. or D.O.
only) for continued-stay residents as well as new admissions and must be
dated before admission . . . . Examples of how a physician might
establish a plan of care are by: (1) signing his/her name and title,
(2) writing his/her initials and title, (3) using a rubberstamp and
initialing them, or (4) phoning or verbally giving orders (P.O. or V.
O.) to a nurse who records them, and the physician signs and dates them
later on the date of admission. All signatures or initials must be
timely; i.e., dated on or before admission . . . .
Appellant stated that it had not received this Regional Letter and
argued that the Agency applied requirements, more restrictive than the
regulations, of which it had no notice. It is clear from the face of
the Regional Letter that it is an internal document issued by respondent
in September 1982 to guide the regional office surveyors in performing
the validation survey for the quarter in question. We are aware of no
other guidelines or transmittals on plans of care which would have
notified appellant of the interpretation in the Regional Letter prior to
this quarter.
Here, for each patient a nurse wrote the physician's plan of care
order on the date of admission and the physician initialed one day
later. Under the explicit instructions in the Regional Letter, plans of
care would have been timely had the physicians initialed the orders
written by the nurse on the date of admission. (9) The statute and
regulation require simply that care be furnished under a plan
established by a physician (statute) and that there be a written plan
before admission (regulation). Here, we cannot find that there were
violations of the plan of care requirement where the State had no notice
of the explicit instructions in the Regional Letter and the evidence for
both patients shows that there was a written plan of care established
pursuant to the physician's orders when the patient was admitted to the
SNF level of care. Under the facts here, we believe the State could
reasonably conclude that it met the statutory and regulatory
requirements for plans of care even though the physician did not initial
the plan of care orders until one day later. Accordingly, we conclude
that the plans of care were timely since the requirement that the
physician actually sign and date the plan of care on (or before) the
date of admission is not so obvious an extension of the statutory and
regulatory provisions that it applies without notice.
E. Whether the Plan of Care Established for One Patient Was
Substantively Deficient.
During the telephone conference, the respondent alleged that the plan
of care for the patient in Vegas Valley was substantively deficient as
well as untimely. The appellant disputed this allegation, arguing that
the elements required for plans of care were present for this patient.
The regulation at 42 CFR 456.280(b) states that a "plan of care must
include"
(1) Diagnosis, symptoms, complaints and complications indicating the
need for admission;
(2) A description of the functional level of the individual;
(3) Objectives;
(4) Any orders for medical, social and dietary services;
(5) Plans for continuing care;
(6) Plans for discharge.
In view of the respondent's new argument, we reviewed the documents
for this patient (Appellant's Attachment I(d)) and concluded that a plan
of care was, in fact, established. We note first that the plan of care
was established in the context of continued care of the patient in this
facility and that the patient had been readmitted to the facility at the
SNF level after a two day hospital stay for cataract surgery. The
physician's progress notes, dated and signed by him on (10) the date of
admission, state that the patient was "(s)een on initial evaluation",
that "problems (were) stable", and that a hospital record was "reviewed
and accepted". (The notation identifying the hospital record is
unclear.) The physician's orders, which we earlier determined to be
timely, acknowledge the skilled level of care and give the physician's
instructions for diet, medication, and activities. We think that the
progress notes coupled with the physician's orders give sufficient
substantive guidance concerning the elements required for a plan of
care.
In addition, the physician's orders for this patient are similar to
the plan of care entries for other patients, such as the orders for the
Hillhaven patient, where only the timeliness was questioned.
Accordingly, we find that a timely plan of care was established for the
Vegas Valley patient.
Conclusion
For the reasons discussed above, we find (1) that the patient in
Hillhaven was not timely certified for skilled care and (2) that there
were timely plans of care established for the patients in Hillhaven and
Vegas Valley. Therefore, we uphold the disallowance for one patient in
one facility, and the disallowed amount should be recalculated
accordingly. /1/ The Board informed the appellant that if the Board
concluded that the physician's presence in the facility on April 19
would create a presumption that he signed the certification on that
date, the Board would permit the appellant to submit proof on that issue
to the respondent.
NOVEMBER 14, 1984