GAB Decision 615
December 24, 1984
Minnesota Department of Human Services;
Ford, Cecilia; Teitz, Alexander Ballard, Judith
Docket No. 84-141
The Minnesota Department of Human Services (State) appealed a
decision by the Health Care Financing Administration (HCFA) imposing a
disallowance of $88,583.87 under section 1903(g) of the Social Security
Act for the quarter ended September 30, 1983. Based on a validation
survey, HCFA determined that the State did not have a satisfactory
utilization control program in effect in that quarter because, in eight
Medicaid facilities within the State, one or more of the patients lacked
the required certification, recertification, or plan of care. The State
presented documentation which the State said showed that the applicable
requirements were met for the patients in two of the facilities in
question. The State also challenged HCFA's calculation of the penalty.
HCFA found the State's documentation insufficient but agreed to work
with the State to recalculate the disallowance based on data the State
provided.
For the reasons stated below, we conclude that the State's
documentation is sufficient to show compliance with utilization control
requirements in the two facilities. Accordingly, we reverse the
disallowance to the extent it relates to these two facilities and uphold
the disallowance to the extent it relates to the remaining facilities.
Our decision is based on the parties' written submissions. The State
initially requested a hearing but subsequently withdrew this request.
What the relevant requirements are.
Section 1903(g) of the Social Security Act (Act) requires that the
state agency responsible for administering a state's Medicaid plan under
Title XIX of the Act make a showing satisfactory to the Secretary that
the state has an "effective program of control over utilization of"
long-term inpatient services in certain facilities. This showing must
be made for each quarter, or the federal medical assistance percentage
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
--
(2) (A) in each case for which payment is made under the State plan,
a physician certifies at the time of admission, or, if later, the time
the individual applies for medical assistance . . . (and . . .
recertifies, where such services are furnished over a period of time, in
such cases, at least every 60 days, . . .), that such services are or
were required to be given on an inpatient basis because the individual
needs . . . such services; and
(B) in each such case, such services were furnished under a plan
established and periodically reviewed and evaluated by a physician;
* * *
Section 1903(g)(2) of the Act requires the Secretary to conduct
sample onsite surveys as part of the procedures for validating a state's
showing.
The statutory requirements for certifications, recertifications, and
plans of care are implemented at 42 CFR 456.260 and 456.280 (1982) for
skilled nursing facilities (SNFs) and at 42 CFR 456.360 and 456.380
(1982) for intermediate care facilities (ICFs). In addition, HCFA has
issued action transmittals to State Medicaid agencies about what
constitutes a valid certification and recertification (including
AT-80-68, October 1, 1980) and about what procedures would be used for
validation surveys (including AT-83-12, December 1983).
HCFA's findings and the State's response.
HCFA conducted a Utilization Control Validation Survey in Minnesota
for the quarter ended September 30, 1983. During the first few months
of 1984, HCFA did onsite surveys in ten SNFs in the State. HCFA's
regional office issued preliminary findings by letter dated March 13,
1984, identifying potential deficiencies at seven of the facilities
surveyed. The State responded to these preliminary findings.
Ultimately, by letter dated June 28, 1984, HCFA's Central Office issued
a final decision, finding that there were deficiencies in eight
facilities in the State and imposing a disallowance of $88,583.87. Of
this amount, $79,925.74 was calculated for the SNF level of care. The
remaining amount, $8,658.13, was for the ICF level of care because HCFA
found deficiencies for an ICF patient in a facility certified as both a
SNF and an ICF.
(3) The State did not dispute that deficiencies existed at five of
the eight facilities. Moreover, although the State originally disputed
HCFA's findings regarding a sixth facility (Arrowhead), the State
ultimately withdrew its appeal of the disallowance for Arrowhead.
State's reply brief, p. 1. Thus, the only findings remaining in dispute
are those related to the Karlstad Memorial Nursing Home (Karlstad) and
the Olivia Health Care Center (Olivia). /1/
We discuss these findings below.
DISCUSSION
Whether utilization control requirements were violated at Karlstad.
HCFA found that two residents of Karlstad were not validly certified
(patients Martin S. and Norris L.), that one resident did not have a
proper plan of care (patient Martin S.), and that fifteen residents were
not properly recertified.
Certification of Martin S. and Norris L.
The State submitted documentation to show that patients Martin S.
and Norris L. had been validly certified. For each patient, the State
submitted a form titled "PHYSICIAN CERTIFICATION." Appeal file, Exs.
H
and I. The form contains a box for an "Authorized Signature" below
the
following printed statement: "I certify (or I certify that a physician
has certified) that the recipient named above requires long term care
services and that the services are being provided under a written plan
of care." In addition, the (4) form has spaces for various items of
information about the facility and patient, including the recommended
level of care, and a space labeled "Date Physician Signed Order."
HCFA did not question whether the "authorized signature" on the
form
in each case was, in fact, that of a physician, but challenged the
adequacy of the documents as certifications on the ground that no dates
appear after the signature. HCFA disagreed with the State that the
typewritten dates appearing on the forms in the box noting when the
physician signed were acceptable, arguing that "AT-83-12 requires manual
dating by a physician." HCFA brief, p. 11. HCFA also relied on AT-80-68
and cited several Board decisions upholding disallowances based on HCFA
action transmittals. HCFA brief, p. 6, citing California Department of
Health, Decision No. 326, June 30, 1982; Kansas State Department of
Social and Rehabilitation Services, Decision No. 312, June 31, 1982;
and Hawaii Department of Social Services and Housing, Decision No. 295,
May 7, 1982. In addition, HCFA argued that other documentation
submitted by the State for patient Martin S. Showed that the typewritten
date, 8/8/83, was incorrect. HCFA said that the record of Physician's
Orders for Martin S. (Exs. H-2 and H-3) shows that the patient's first
contact with Dr. M., who signed the certification, was on August 19,
1983 and that no entry was made on the orders by any physician on or
near August 8, 1983. Thus, HCFA concluded that the documentation did
not support the State's claim that the physician signed the
certification on August 8.
HCFA's reliance on AT-83-12, and on Board decisions upholding
disallowances based on action transmittals, is misplaced. While this
Board has previously found that agency interpretations contained in an
action transmittal of which a state had actual, timely notice were
binding on that state, the rationale underlying those decisions simply
does not apply here. As the State pointed out, AT-83-12 was not
disseminated until December 1983, after the quarter in question here.
Thus, the State did not have timely notice of the action transmittal.
See Nevada Department of Human Resources, Decision No. 471, October 31,
1983. Moreover, the only reference in AT-83-12 to "manual" signing
and
dating relates to plans of care, /2/ not to (5) certifications or
recertifications. Finally, we note that AT-83-12 (unlike AT-80-68,
which we discuss below) was not promulgated to clarify substantive
program requirements. The subject of AT-83-12 is the validation survey
to be performed in ten states for the quarter ending September 30, 1983;
nothing in the action transmittal indicates any intent to promulgate any
new interpretations or requirements. Indeed, a note at the bottom of
the first page of the transmittal states: "This AT will be obsolete
March 16, 1984." Appeal file, Ex. B. In view of these considerations,
we conclude that HCFA cannot properly rely on AT-83-12 as a basis for
the disallowance here.
Action Transmittal AT-80-68 was issued prior to the quarter in
question here and was promulgated to clarify what constitutes a valid
certification and recertification, but we do not agree with HCFA that
this action transmittal supports HCFA's finding here. The statutory and
regulatory provisions specify who must certify or recertify and when
they must do so, but do not specify how this must be documented. Since
the Secretary must be able to verify that the requirements are met,
however, the Board has held that action transmittal provisions
clarifying that a certification or recertification must be in writing
and signed by the appropriate person were a logical extension of the
statutory and regulatory requirements. Social Service Board of North
Dakota, Decision No. 166, April 30, 1981. We have also said that a
requirement for dating may be viewed as an interpretation of what is a
timely and verifiable certification. Maine Department of Human
Services, Decision No. 516, February 29, 1984. However, we do not think
that, where there is other persuasive evidence of timeliness, HCFA can
reasonably apply AT-80-68 to require a finding of a violation simply
because the physician has not manually dated the certification or
recertification document, particularly where, once a violation is found,
a disallowance must be taken.
Some of the examples of acceptable certifications and
recertifications given in AT-80-68 refer to documents "signed and dated
by a physician," but other examples refer merely to "signed and dated"
orders or notes. In general, AT-80-68 states: "The certification must
be dated at the time it is signed by the physician." Appeal file, Ex.
A, p. 3. Although the illustrations imply that HCFA expects the date to
be entered by the physician, AT-80-68 does not explicitly state that a
violation will be found if the physician has not dated the certification
by hand or the (6) date does not appear next to the signature. /3/
Under the statute and regulations, a state has the burden to show
that the certification or recertification occurred in a timely manner.
Maine, supra. While a handwritten date appearing next to the physician's
signature would be the best evidence of when the physician signed the
certification, AT-80-68 does not clearly provide that this is the only
acceptable evidence of timeliness. The Board has agreed with HCFA that
a certification was not shown to be timely where the date on which a
state relied appeared on the same form as a physician's signature but
appeared to be related to a different entry on the form. See, e.g.,
Washington Department of Social and Health Services, Decision No. 487,
December 17, 1983. In this case, however, the typed dates appear in a
box labeled as the date the physician signed. Thus, we find the dates
entered on the forms constitute persuasive evidence that the
certifications were timely.
We also note that there is additional evidence here that the patients
were certified in a timely manner. To be timely, a certification must
be made on or before admission to the facility or, where an individual
applies for assistance while in a facility, before authorization for
payment. The date of signing on the forms for both Martin S. and Norris
L. is 8/8/83. Both forms are stamped: "RECEIVED Aug 11 1983 KITTSON
COUNTY WELFARE." Local welfare workers later signed the form and the
State alleged that this meant that the certification was approved on
that date and payment authorized. HCFA did not dispute this. We think
it is highly unlikely that the county welfare office would have approved
the certification unless the physican had signed it. Thus, we are
persuaded that the certifications were made prior to the admission date
for Martin S. (August 20, 1983) and the authorization date for Norris L.
(August 22, 1983).We do not think that this evidence is contradicted by
the Physician's Order form for Martin S. While a notation on the
Physician's Order form that Dr. M. had certified the need for skilled
care on August 8 would have confirmed that that was the date of
certification, we do not think that the mere absence of any notation on
the orders necessarily implies that the August 8 date was falsified.
(7) Thus, we reverse HCFA's findings that the certifications for
Martin S. and Norris L. were untimely.
The plan of care for Martin S.
The disallowance letter states for patient Martin S. "no
corresponding plan of care." Appeal file, Ex. F. As noted above, the
State submitted copies of Physician's Orders for this patient. The
State said that these orders showed that the plan of care requirements
were met for this patient. In discussing the certification question,
HCFA said that these orders revealed that Dr. M.'s first contact with
the patient was on August 19, 1983. HCFA also stated, without further
explanation, "there was no plan of care established for the purported
August 8, 1983 SNF certification." HCFA's brief, p. 11.
The basis for HCFA's finding is not entirely clear; by referring to
the lack of any orders by Dr. M. dated August 8, 1983, HCFA implied that
there was a requirement that the plan of care be recorded on the date of
certification. We could find no such requirement. The regulations
require instead that the plan of care be established on or before
admission to a SNF and that a written report of each plan of care be
entered in the applicant's record at the time of admission, or, if the
patient is already in the SNF, immediately upon completion of the plan.
42 CFR 456.280 and 281. The State alleged, and HCFA did not deny, that
Martin S. returned to Karlstad on August 20, 1983. An entry with that
date on the Physician's Orders form for Martin S. states: "Return to
KMNC with the following orders: . . . ." This statement is followed by
a list of orders for diet and medication and the notation "copied from
signed transfer form of Dr. (M.)," a nurse's signature, and Dr. M.'s
signature.
In our view, the State's documentation supports the conclusion that
the requirement that the plan of care be established by a physician and
recorded at the time of the patient's admission to the SNF was met for
Martin S. Moreover, since the Physician's Orders refer to a transfer
form from which the orders were copied and since Dr. M. certified that
the patient had a written plan of care, it is reasonable to conclude
that a plan of care was developed on August 8. We also note that the
Board has previously concluded that the statutory and regulatory
provisions require that there be a written plan of care established by a
physician on or before admission, not that the physician sign and date
the plan of care before admission. Washington Department of Social and
Health Services, Decision No. 487, December 17, 1983; Nevada Department
of Human Resources, Decision No. 471, October 31, 1983.
Thus, we reverse HCFA's finding that the plan of care requirement was
violated for patient Martin S.
(8) The recertifications for 15 patients.
HCFA found that 15 patients at Karlstad, including Martin S. and
Norris L., did not have timely recertifications. The State submitted
three Physician Recertification forms containing lists of patients (with
a check mark or an "X" indicating the level of care for each patient).
All of the forms are signed by Dr. M. Opposite his signature on each
form is a date; the dates are 6/28/83; 8/1/83; and 9/1/83. Appeal
file, Exs. J-3, J-4, and J-5. HCFA found this documentation
unacceptable on the basis that the dates were typed rather than
handwritten, but did not challenge the sufficiency of the forms in any
other respect.
The State also submitted an affidavit by Karlstad's Assistant
Administrator, stating that Karlstad's policy was to recertify all
long-term care patients approximately every 30 days. Appeal file, Ex.
J-1. (As discussed above, section 1903(g)(1)(A) requires
recertification every 60 days.) The affidavit further states: "On the
date that the physician signed each recertification form, a member of
the office staff of the nursing home typed in the other information
which appears on the forms, including the date of recertification."
Appeal file, Ex. J-2. In response, HCFA emphasized that this statement
referred to "other" information. From this, HCFA concluded:
Since all the information on the three recertification forms are
typed, it appears that Dr. (M.) is either signing a blank form or only a
partially completed one. Thus, the State has failed to demonstrate that
the recertifications are properly dated or completed on the date of the
physician's signature.
HCFA's brief, p. 12.
As discussed above, the action transmittals cannot reasonably be
applied to require manual dating of certifications and recertifications
by the physician as the only acceptable evidence of timeliness.
Moreover, we think that the conclusions which HCFA would have us draw
from the Assistant Administrator's statement are simply unwarranted.
The affidavit does not state, nor necessarily imply, that the patient
information is completed after the physician signs the form. Indeed,
the space for the physician's signature appears after the statement:
"This is to certify that the (recipients) named below require on an
inpatient basis the level of care indicated below." We have no reason to
believe that Dr. M. would sign a blank form in spite of this statement
or that the documents were incomplete at the time of signing or
otherwise falsified. Thus, we reverse HCFA's findings that the 15
patients were not recertified in a timely manner.
(9) In summary, we reverse HCFA's findings for the patients at
Karlstad.
Whether utilization control requirements were met at Olivia.
HCFA found that one patient in this facility lacked a timely
recertification. Like Karlstad, Olivia used the Physician
Recertification form which listed patients and indicated level of care
for each patient by means of check marks or similar marks. The State
submitted forms dated 6/19/83, 7/19/83, and 8/19/83 (in handwriting).
HCFA found that the form dated 7/19/83 did not constitute a valid
certification for patient Martha Z. because no mark appears after her
name on that form. Since 61 days elapsed between the 6/19/83 and 8/19/
83 recertifications, HCFA found that the 8/19/83 recertification was
untimely.
The State did not claim that the 7/19/83 form should be considered a
valid recertification for Martha Z., but said that a total patient care
review was performed on Martha Z. on June 25, 1983, and that the
documentation of that review constituted a valid recertification, so
that the period between recertifications was June 25 - August 19, less
than 60 days. The State submitted a form for Martha Z. labeled
"Physician Progress Notes." Appeal file, Ex. K-10. The date 6/25/83
appears in the upper left hand corner of the form. The caption
"PERIODIC TOTAL REVIEW" is typewritten on the form, as are various
categories such as "Level of Care," "Diet," "Discharge
Potential," and
"Medications & Treatments." Handwritten notations describing the
patient's needs in these areas (including the word "skilled" as the
level of care) are entered on the form and the margin containsd the
notation "transcribed by M. Johnson RN." There is a space identifying
two attending physicians and one of those names (Dr. T.) is signed on
the form in a handwriting different from the notations described above.
HCFA said that this documentation was unacceptable because "an
inspection of the document reveals that Dr. (T.'s) signature is not
dated and that the entire progress report has been transcribed by a
registered nurse." HCFA brief, p. 13 (emphasis in original). HCFA also
stated, "Since AT-83-68 requires that the physician must date the form
at the time of signing, this document does not satisfy federal
requirements." HCFA brief, p. 13.
As discussed above, AT-80-68 does not clearly require that the date
be entered by the physician. Since no other date appears on the form
here and since the only notations on the form relate to the periodic
total review, we think that, in the absence of any evidence to the
contrary, the form is sufficient evidence that the review (10) took
place on that date. The only other question which HCFA raised about the
form as a valid recertification was that the entries were transcribed by
a nurse. We have no basis for concluding that this is a defect under
the regulations. This is not specifically prohibited, and as the State
noted, it makes sense to have someone other than the physician take the
time to officially record the results of the review. Moreover, AT-80-68
gives the following as an example of an acceptable recertification:
utilization review committee minutes or form indicating that the
patient's care was reviewed by a physician and that continued care at a
specific level is necessary--the physician's signature and date must
appear on the minutes and/or form.
Appeal file, Ex. A, p. 3.
We do not see any substantial difference between this acceptable
documentation and the documentation the State submitted here: it
records the results of a review and indicates the appropriate level of
care, and the physician's signature and date appear on the form.
Thus, we reverse HCFA's finding that there was not a timely
recertificiation for patient Martha Z. at Olivia.
Conclusion
For the reasons stated above, we reverse HCFA's findings that there
were utilization control violations at Karlstad and Olivia. We uphold
the disallowance for the other facilities. HCFA should recalculate the
disallowance accordingly. If there is any further dispute about the
calculation, the State may return to the Board within 30 days of the
date it receives written notice of HCFA's final decision on the
recalculation. /1/ The State also challenged the disallowance for these
facilities on the grounds that HCFA's preliminary report noted no
deficiencies at these facilities and that the deficiencies which HCFA
later cited included some for intermediate care patients, even though
the survey was expressly limited to skilled nursing patients. In view
of our conclusions below, we do not need to reach these issues here. We
note, however, that the Board has previously addressed similar issues.
In Indiana Department of Public Welfare, Decision No. 489, December 30,
1983, the Board concluded that HCFA is not bound by preliminary findings
(so long as a state has timely notice of final findings which are
different). The Board has also held that HCFA may take a disallowance
for more than one level of care, even where the survey was initially
directed at only one level. See, e.g., Michigan Department of Social
Services, Decision No. 518, February 29, 1984; Ohio Department of Public
Welfare, Decision No. 191, June 24, 1981. /2/ In describing the survey
that HCFA intended to perform in certain states for the quarter ending
September 30, 1983, AT-83-12 stated: Physician's certifications and
plans of care must be established on or not more than 60 days prior to
the date of admission or authorization for Medicaid payment.
Recertifications and updates of the plans of care must be made every 60
days thereafter. The plan of care must also be manually signed or
initialed and dated by a physician. Appeal file, Ex. B. /3/ We
also note that use of the phrase "at the time" does not necessarily
imply that the date must be entered simultaneously with the signature.
HCFA has interpreted the phrase "at the time of admission" in section
1903(g) to mean on the date of admission (AT-75-122), so a state could
reasonably conclude that a certification was satisfactory if it was
dated on the day it was signed.
MARCH 19, 1985