Utah Department of Health, DAB No. 843 (1987)

DEPARTMENTAL GRANT APPEALS BOARD

Department of Health and Human Services

SUBJECT:  Utah Department of Health

Docket No. 86-157
Decision No. 843

DATE:  March 2, 1987

DECISION

The Utah Department of Health (State, Utah) appealed a determination by
the Health Care Financing Administration (HCFA, Agency) disallowing
$28,144.14 in federal funds claimed by the State under the Medicaid
program of the Social Security Act (Act) for the calendar quarter ending
September 30, 1985.  The disallowance was taken pursuant to section
1903(g)(1) of the Act, which provides for the reduction of a state's
federal medical assistance percentage of amounts claimed for a calendar
quarter unless the state shows that during the quarter it had "an
effective program of medical review of the care of patients . . .
pursuant to paragraphs (26) and (31) of section 1902(a) whereby the
professional management of each case is reviewed and evaluated at least
annually by independent professional review teams."

Specifically, HCFA found that Utah failed to conduct a satisfactory
annual review at the Hillhaven Convalescent Center (Hillhaven), an
intermediate care facility (ICF). HCFA alleged that the review of
Hillhaven was deficient because the State did not review one Medicaid
recipient residing in the facility during the annual review.  Utah
admitted that this patient should have been reviewed, but argued that
the omission of this patient from review met the "technical failings"
exception to the annual review requirement.

For the reasons discussed below, we find that the State's failure to
review this patient was a "technical failing" and reverse the
disallowance.

Applicable_Law

Section 1903(g)(1) of the Act requires the state agency responsible for
the administration of a state's Medicaid

 

plan to submit a written quarterly showing demonstrating that--

     [it] has an effective program of medical review of the care of
     patients in . . . intermediate care facilities pursuant to
     paragraphs . . . (31) of section 1902(a) whereby the professional
     management of each case is reviewed and evaluated at least annually
     by independent professional review teams.

A state's showing for each quarter must be "satisfactory" or FFP paid to
the state for expenditures for long-stay services will be decreased
according to the formula set out in section 1903(g)(5).

Section 1902(a)(31) requires in pertinent part that a state plan
provide--

     (B)  with respect to each . . . intermediate care facility within
          the State, for periodic on-site inspections of the care being
          provided to each person receiving medical assistance, by one
          or more independent professional review teams . . . .

The regulations implementing this provision and section 1903(g)(1) are
found at 42 CFR Part 456.  In particular, section 456.652 provides--

        (a)  . . . [i]n order to avoid a reduction in FFP, the Medicaid
     Agency must make a satisfactory showing to the Administrator, in
     each quarter, that it has met the following requirements for each
     recipient:

                       *   *   *   *

        (4)  A regular program of reviews, including medical
     evaluations, and annual on-site reviews of the care of each
     recipient . . . .

        (b)  Annual on-site review requirements.

        (1) An agency meets the quarterly on-site review requirements of
     paragraph (a)(4) of this section for a quarter if it completes
     on-site reviews of each recipient in every facility in the State, .
     . .  by the end of the quarter in which a review is required under
     paragraph (b)(2) of this section.

Section 1903(g)(4)(B) provides two exceptions to the annual review
requirement whereby--

     [T]he Secretary shall find a showing . . . to be satisfactory . . .
     if the showing demonstrates that the State has conducted such an
     onsite inspection during the 12-month period ending on the last
     date of the calendar quarter--

          (i) in each of not less than 98 per centum of the number of
          such hospitals and facilities requiring such inspections, and

          (ii) in every such hospital or facility which has 200 or more
          beds,

     and that, with respect to such hospitals and facilities not
     inspected within such period, the State has exercised good faith
     and due diligence in attempting to conduct such inspection, or if
     the State demonstrates to the satisfaction of the Secretary that it
     would have made such a showing but for failings of a technical
     nature only.

Section 1903(g)(4)(B) is implemented by the regulation at 42 CFR
456.653, titled, "Acceptable reasons for not meeting requirements for
annual on-site review," which provides in pertinent part that--

     The Administrator will find an agency's showing satisfactory, even
     if it failed to meet the annual review requirements of section
     456.652(a)(4), if--

     (a)  The agency demonstrates that--

          (1)  It completed reviews by the end of the quarter in at
          least 98 percent of all facilities requiring review by the end
          of the quarter;

          (2)  It completed reviews by the end of the quarter in all
          facilities with 200 or more certified Medicaid beds requiring
          review by the end of the quarter; and

          (3)  With respect to all unreviewed facilities, the agency
          exercised good faith and due diligence by attempting to review
          those facilities and would have succeeded but for events
          beyond its control which it could not have reasonably
          anticipated; or

     (b)  The agency demonstrates that it failed to meet the standard in
     paragraph (a)(1) and (2) of this section for technical reasons, but
     met the standard within 30 days after the close of the quarter.
     Technical reasons are circumstances within the agency's control.

Background

     Facts

Utah performed the on-site medical review at Hillhaven on September 9,
10, and 11, 1985.  Under Utah's program for annual reviews, the review
team used a computerized document generated monthly by the State's
Medicaid Management Information System that lists the names of Medicaid
recipients in the facility.  The report used by the review team at
Hillhaven reflected information current as of August 2, 1985 and bore a
"run date" of August 3, 1985.  Upon arrival at the facility, the review
team contacted the facility's business office to determine if there were
any new Medicaid patients in the facility or whether any patients had
been discharged.  The nursing home administrator compared the report
with the facility's patient listing and billing records to make certain
the review team's list was complete.

The State indicated that, although patient Z.H. (who was eligible for
Medicaid at the time of the review and present in the facility during
the review) was listed on the report as of June 14, 1985, patient Z.H
was not listed on the August 2, 1985 report.  Patient Z.H.'s omission
from the report was first noticed by Hillhaven when the claim for June
services for patient Z.H. was denied on August 8, 1985.  Thus, the
omission was discovered after the "run date" of the report used by the
review team.  The apparent reason for patient Z.H.'s removal from the
report was a key punch error which deleted patient Z.H.'s name from the
computer as a discharged patient instead of a patient with the same last
name who immediately preceded patient Z.H. on the computer list.  1/
The facility informed the State of the error some time around
September 10, 1985.  The State corrected the error on the computer on
September 13, 1985.  The facility, however, did not inform the review
team that patient Z.H. was omitted from the monthly report and should
have been reviewed.

As a further precaution to ensure all eligible patients in a facility
are reviewed, the review team would proceed on its review in an orderly
manner from room to room.  This method acted as a back-up to the monthly
report so that if a patient was not on the report and the facility
failed to give the review team the information, the patient would be
discovered at this point in the review.  In the instant case, however,
while the review was being conducted, patient Z.H. was transferred from
a room that had not been reviewed yet to another room in the facility
which was in an area that had already been reviewed by the review team.
The facility failed to make the review team aware of patient Z.H.'s
transfer.  Thus, patient Z.H. was not reviewed.

     HCFA's basis for the disallowance

HCFA claimed that while the State had met the threshold requirement for
the "good faith and due diligence" and "technical failings" exceptions
by inspecting 98 percent of the facilities due for review in the quarter
and all facilities with 200 or more beds, the State did not satisfy the
other requirements for these exceptions.  HCFA contended that it did not
consider the reasons for patient Z.H.'s omission from the computer list
and for not being reviewed to be circumstances beyond the State's
control. Thus, HCFA reasoned that the State could not claim the good
faith and due diligence exception.  HCFA alternatively contended that
while these circumstances were within the State's control, they would
not satisfy the technical failings exception because these circumstances
amounted to nothing more than poor administration or bad record keeping.

Analysis

The State asserted that its failure to review patient Z.H.  could be
excused under either the good faith and due diligence or technical
failings exceptions to the annual review requirements.  Since we
determine below that the State has met the "technical failings"
exception, we do not need to reach the arguments made by the State
concerning the "good faith and due diligence" exception and the
disallowance calculation.

In past decisions we have analyzed the technical failings exception to
the annual review requirement.  See Delaware Department of Health and
Social Services, Decision        No. 732, March 21, 1986; and
Pennsylvania Department of Public Welfare, Decision No. 746, April 28,
1986. Admittedly, there is little guidance about what is properly
regarded as a technical failing.  2/  The regulation relates the concept
of technical failings to the reasons for which the reviews were missed.
The heading of 42 CFR 456.653 refers to "acceptable reasons" and the
provision on the technical failings exception states a requirement for
"technical reasons."  Thus, we have stated that we cannot condone either
an unexplained failure to attempt a review or a review deficient for no
apparent reason.  Also, we have agreed with the general principle
underlying HCFA's position that poor adminis- tration or bad record
keeping should not be considered a technical failing.  We did not mean
to suggest, however, that every failure on the part of the State can be
considered poor administration or bad record keeping. This would render
the regulation meaningless since a technical failing is defined as a
"circumstance within the State's control."

Here, we believe that the State's key punch error does not amount to
poor administration or bad record keeping by the State.  The State
admitted it made a key punch error which resulted in patient Z.H.'s name
being deleted from the monthly report rather than another patient's
whose name immediately preceded patient Z.H.'s on the computer list.
This was a one-time error and one such error does not indicate that the
State poorly administered its system or that the error was caused by bad
record keeping.  The concepts of poor administration and bad record
keeping connote a systemic problem resulting in failings in the system
on a regular basis, or at least more than singular occurrences.  The
Agency here has not shown that the key punch error in dropping patient
Z.H. from the monthly report was a recurring problem.  If the Agency
cannot deem a one-time key punch error as a "technical failing," it is
difficult to fathom what would meet the exception.

We further conclude that this is not poor administration because,
ordinarily, notwithstanding such a key punch error, the State's method
of going through a facility room by room would have discovered this
patient's omission from the list.  Here, the unique convergence of two
events (the key punch error and the moving of the patient during the
course of the review) caused a patient to be missed who would ordinarily
have been reviewed.  3/

Absent formal policy guidance from HCFA specifying what constitutes a
technical failing, we conclude that this is the singular type of error
which can be reasonably considered a "technical failing" within the
State's control.  Thus, we find that the State has met the technical
failings exception and no disallowance should be imposed for the
Hillhaven facility.

Conclusion

We reverse the disallowance of $28,144.14.

 


                          _____________________________ Judith A.
                          Ballard

 

                          _____________________________ Cecilia Sparks
                          Ford

 

                          _____________________________ Norval D. (John)
                          Settle Presiding Board Member

 

1.     The facts here are undisputed except for the State's
reconstruction of how the key punch error occurred which it supported by
its records and conversations with persons involved.  HCFA characterized
this reconstruction as speculation but provided no evidence to
contradict the State's version, which we find to be logical in light of
the facts which are known.


2.     From the legislative history we know only that the "technical
failings" exception would cover the situation where the State had
conducted reviews in most but not all facilities by the close of the
showing quarter, but completed the remaining reviews within "several
weeks." See 44 Fed. Reg. 56336.

3.     The record also shows that the facility became aware of the
problem with the computer list as early as August 8, 1985 when patient
Z.H.'s claim for June services was denied.  The record shows that the
State was diligent in that as soon as it was made aware of the error on
September 10, 1985, the error was rectified on the computer by September
13, 1985.