GAB Decision 515
Docket No. 83-223
February 29, 1984
Louisiana Department of Health and Human Services;
Ballard, Judith; Settle, Norval Garrett, Donald
The Louisiana Department of Health and Human Resources (State)
appealed a disallowance of $840,232.83 taken by the Health Care
Financing Administration (Agency) for alleged violations of section
1903(g) of the Social Security Act (the Act). Specifically, the Agency
determined that for the fourth quarter of 1982 and the first two
quarters of 1983, the utilization control requirements set out in
regulations implementing section 1903(g) were violated in five
intermediate care facilities for the mentally retarded (ICFs-MR). The
Agency subsequently reduced the amount of the disallowance based on the
State's submission of exact patient data. We conclude that the
disallowance as modified in amount should be upheld because the State
has not shown that it met the requirements set out in the applicable
regulations.
This decision is based on the written record.
Statutory and Regulatory Background
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 ICFs-MR. This showing must be
made for each quarter, or the federal medical assistance percentage
(FMAP) requested for amounts paid by the state for long-term care
services will be decreased according to the formula set out in section
1903(g)(5). Section 1903(g)(1) provides that the showing must include
evidence that --
(D) such State has an effective program of medical review of the care
of patients in . . . intermediate care facilities pursuant to section
1902(a)(26) and (31) whereby the professional management of each case is
reviewed and evaluated at least annually by independent professional
review teams.
(2) Section 1902(a)(31) provides, in part --
. . . (B) For periodic on-site inspections to be made in all such
intermediate care facilities . . . within the State by one or more
independent professional review teams (composed of physicians or
registered nurses and other appropriate health and social service
personnel). . . .
The Agency has implemented these provisions by regulations at 42 CFR
456, Subpart I. Section 456.602 provides:
(b) Each team conducting periodic inspections must have at least one
member who is a physician or registered nurse and other appropriate
health and social services personnel.
* * *
(g) If there is no physician on the team, the Medicaid agency must
insure that a physician is available to provide consultation to the
team.
Discussion
The Agency determined that the State inspection team for five ICFs-MR
did not contain either a physician or a registered nurse as required by
section 456.602, and, therefore, that the requirement of section
1903(g)(1)(D) was not met for three quarters.
The State admitted that neither a physician nor a registered nurse
accompanied the inspection team which visited the facilities. However,
the State pointed out that a physician was available for consultation.
State's Brief, December 14, 1983, p. 3. The State argued that, under
section 456.602(g), a physician or nurse did not have to be physically
present when the inspections were made so long as there was a physician
available for consultation.
The Agency's position was that section 456.602(b) required either a
physician or registered nurse to be a member of the team, and that
456.602(g) clearly indicated that a physician must be available as a
consultant where there is no physician "on the team." Thus, reading
the
two provisions together, the Agency argued, if a physician is not a
member of the inspection team, there must be a registered nurse on the
team, and a physician must be available for consultation. Here,
although the State had a physician available for consultation, no
registered nurse or physician was a member of the actual inspection
team. Furthermore, the Agency pointed out, under section 456.654(a)(
8), the team's inspection report must list the name of the team member
who is (3) either a physician or nurse, and the reports did not list
such a person. The implication the Agency would draw is that neither a
physician nor a nurse were a member of the team.
The Agency's interpretation of the language of section 456.602 is
reasonable. Section 456.602(g) says that a consulting physician must be
available if there is no physician "on the team." It does not say
that a
consulting physician is a member of the team. We think sections
456.602(b) and (g), read together, mean that one member of the team
which physically inspects the facilities must be either a nurse or a
physician, and that a physician who is "available" is not a member
of
the team. This interpretation is supported by section 1902(a)(31),
which is incorporated in section 1903(g)(1)(D). Section 1902(a)(31)
specifically requires periodic inspections made by teams composed of
"physicians or registered nurses and other appropriate health and social
service personnel." Moreover, the legislative history of section 1903(g)
supports this interpretation. S. REP No. 1230, 92d Congress, 44
(September 26, 1972) explained that the requirement for independent
professional patient reviews was intended to insure that patients are
getting "the right care in the right place." The requirement in section
1902(a)(31) and in section 456.602(b) that a person with medical
training be on the team is consistent with this goal. Thus, we conclude
that the State should have had either a physician or a nurse physically
present with the inspection team, and the State here admits that no such
member visited the facilities when the inspections were made.
Thus, we conclude that the Agency's finding of a violation of section
1903(g)(1)(D) and section 456.602 for five ICFs-MR in three quarters
must be upheld.
Conclusion
We sustain the Agency's findings that violations existed for five
ICFs-MR in three quarters. The disallowance should be upheld in the
amount of $60,439.39, as modified by the Agency in its submission of
February 21, 1984.
NOVEMBER 14, 1984