Washington State Department of Social and Health Services, DAB No. 940 (1988)

DEPARTMENTAL GRANT APPEALS BOARD

Department of Health  and Human Services

SUBJECT:    Washington State Department of Social and Health Services

Docket No. 87-180
Decision No. 940

DATE:  March 1, 1988

DECISION

The Washington State Department of Social and Health Services (State)
appealed an amended determination by the Health Care Financing Agency
(HCFA, Agency) disallowing $203,865.71 in federal financial
participation claimed by the State under the Social Security Act (Act)
for the calendar quarters ending December 31, 1986, March 31, 1987, and
June 30, 1987. 1/  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 . . .
whereby the professional management of each case is reviewed and
evaluated at least annually by independent professional teams."


Based on a validation survey, the Agency found that the State had failed
to include in its annual medical reviews three patients in Issaquah Care
Center, a dually certified skilled nursing and intermediate care
facility (SNF/ICF), two patients in Pleasant Acres Nursing Home, a
SNF/ICF facility, and two patients in Rose Vista Nursing Center, a
SNF/ICF facility.

As discussed below, we sustain the findings for these facilities,
subject to a possible reduction by the Agency in the amount of the
disallowance for Rose Vista Nursing Center as discussed on page 7.

What the requirements are

The regulations implementing sections 1902(a)(26) and (31) and section
1903(g)(1) are found at 42 C.F.R. Part 456 (1986).  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, as specified in . . . Subpart I of this part.

            (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,
            and in every State-owned facility regardless of location, by
            the end of the quarter in which a review is required under
            paragraph (b)(2) of this section.

            (2)  An on-site review is required in a facility by the end
            of a quarter if the facility entered the Medicaid program
            during the same calendar quarter 1 year earlier or has not
            been reviewed since the same calendar quarter 1 year
            earlier.  If there is no Medicaid recipient in the facility
            on the day a review is scheduled, the review is not required
            until the next quarter in which there is a Medicaid
            recipient in the facility.

            (3)  If a facility is not reviewed in the quarter in which
            it is required to be reviewed under paragraph (b)(2) of this
            section, it will continue to require a review in each
            subsequent quarter until the review is performed.

.Issaquah Care Center

The Agency assessed a disallowance for this facility at both the SNF and
ICF level of care on the ground that the State failed to include in its
review one ICF patient and two SNF patients. Originally, the Agency's
disallowance was for the quarters ending December 31, 1986, March 31,
1987, and June 30, 1987 for both levels of care.  After reviewing
documentation submitted by the State, the Agency determined that reviews
for the one ICF patient and for one SNF patient were not required beyond
the December 31, 1986 quarter, as these patients died in February, 1987.
As a result, the disallowance for ICF care for this facility was applied
only to the December 31, 1986 quarter.  The Agency did not reduce the
disallowance for the facility at the SNF level of care because the
Agency contended that the third patient had not been reviewed in any of
the three quarters as required.  Thus, the disallowance at the SNF level
was assessed for all three quarters against this facility.

As for the two patients who died in February, 1987, the State
acknowledged that these two patients were not reviewed in the December
31, 1986 quarter.  The State, however, contended that the fact that
these patients were not reviewed did not mean the State had a less than
effective program of utilization review. The State argued that the
problem was with the nursing home since the nursing home had the
responsibility to notify the State nursing care consultant that these
patients were Medicaid admissions.

The State also argued that no disallowance should be assessed against
the facility for SNF care with regard to the third patient.  The Agency
had determined that the State failed to review this patient for the
quarters ending December 31, 1986, March 31, 1987, and June 30, 1987.
The State submitted a copy of a patient review form which indicated that
this patient was reviewed on December 9, 1985.  The State contended that
this review was performed as required during the year preceding the
facility review which was performed on October 22, 1986.  The State
alleged that it is normal procedure under Washington's waiver
utilization control system to base facility reviews upon client reviews
conducted during the period between the prior (November 11, 1985) and
current (October 22, 1986) facility reviews.  Thus, the State argued
that the December 9, 1985 patient review satisfies the 1986 annual
Inspection of Care (IOC) review requirements as it falls between the
November 11, 1985 IOC review and the October 22, 1986 IOC review.

We agree with the Agency that the State has failed to show that it had
an effective program of medical review of the care of patients in this
facility.  The Board has previously found that the State bears the
ultimate responsibility for identifying patients subject to the annual
review requirement and cannot rely solely on review lists supplied by a
facility without taking reasonable efforts to insure their completeness.
See North Carolina Dept. of Human Resources, DGAB No. 728 (1986); see
also Idaho Dept. of Health and Welfare, DGAB No. 747 (1986). As we
explained in Idaho and later in Missouri Dept. of Social Services, DGAB
No. 801 (1986) at 8, the type of extenuating circumstances that would
reduce the State's ultimate responsibility in these situations are, for
example, where the State has shown that its system for identifying
Medicaid patients was effective in all respects, but that it was not
reasonable for the review team to have known of the eligibility
determinations for a particular patient.  In the instant case, the State
has failed to show that it had an effective program for identifying
which patients in the facility were eligible for Medicaid.  In fact, the
State presented no evidence of what its system is for identifying
patients subject to review in a facility.  Also, the State failed to
present any evidence to show when it determined these two particular
patients eligible for Medicaid. Consequently, there is no support for
the State's contention that the State's nursing care consultant had no
reason to know that these two patients were Medicaid admissions.  We do
know, moreover, that the State paid the facility on November 17, 1986
for claims submitted for services rendered to these patients during the
entire month of October, 1986, the month the facility was reviewed.
Respondent's Appeal File, Attachment B.  Thus, in the absence of
evidence showing it would be unreasonable for the State review team to
have access to information on whether these patients were Medicaid
eligible at the time of the review, we conclude there was no reason why
the State should not have identified these two patients for review.
Therefore, we sustain the Agency's finding that the State failed to
review these two patients for the quarter ending December 31, 1986 and
sustain the disallowance against the facility for ICF and SNF care for
this quarter..In addition, we also conclude that the State did not
review the third patient by the end of the quarter in which the review
was required, December 31, 1986, nor in the two subsequent quarters as
required under the regulation.  It is true that this patient was
admitted to this facility after the November 22, 1985 annual review was
performed and that a review for this patient for the quarter ending
December 31, 1985 was not required.  However, that does not mean that
the review performed after the patient's admission to the facility on
December 9, 1985 would satisfy the requirement for an annual review for
this patient for the annual period ending December 31, 1986.  In
recognition of the practical administrative difficulties of tracking
individual patients, HCFA implemented the annual review requirement
through an approach tracking reviews of facilities, making a facility
review due by the end of the quarter in which the facility's previous
year review was performed.  Consequently, the fact that the facility was
reviewed in the quarter ending December 31, 1985 means that the facility
must be reviewed by the end of the quarter ending December 31, 1986.  42
C.F.R. 456.652(b).  Thus, this patient's review in December, 1985 is not
within the facility's annual review period of January 1, 1986 through
December 31, 1986. Indeed, this patient was not reviewed for a period
spanning approximately two years.  Accordingly, the State failed to
review this patient during the annual review period required by 42
C.F.R. 456.652(b).

While the State alleged that under its waiver utilization control system
it based facility reviews upon client reviews conducted during the
period between the prior and current facility reviews, the State
provided no evidence of its procedure nor evidence to show that this
procedure had been approved by the Agency.  Thus, there is no evidence
of an approved procedure that modified the time frame prescribed by the
regulation for completing facility-wide reviews.  The regulations
specify that the facility-wide review must take place during the year
following the quarter during which the previous review took place.  In
the absence of evidence that the Agency approved a procedure waiving the
regulatory requirements, we are bound by the regulations which in this
instance provide that an annual review, which includes each Medicaid
patient, is due for this facility during the quarter ending December 31,
1986..Therefore, we sustain the Agency's determination that the State
did not have an effective program of utilization control at this
facility at the SNF level of care for the quarters ending December 31,
1986, March 31, 1987, and June 30, 1987.

Pleasant Acres Nursing Home

The Agency assessed a disallowance against this facility at the SNF
level of care because the State failed to review two SNF patients at the
time of the facility's annual on-site review on October 21, 1986.  The
disallowance was assessed for the quarters ending December 31, 1986, and
March 31, 1987.

The State acknowledged that these two patients were not reviewed but
claimed that the patients here were not reviewed because the facility
did not notify the State nursing care consultant that these patients had
been admitted as Medicaid patients.

We agree with the Agency that the State failed to show it had an
effective program of medical review of the care of patients.  As we
stated above, the State bears the ultimate responsibility for
identifying patients subject to the annual review requirement and cannot
rely solely on review lists supplied by a facility without taking
reasonable efforts to insure their completeness.  North Carolina, supra.
The State failed to present any evidence to show why these patients who
were admitted as Medicaid patients in July, 1985, were not identified as
Medicaid patients by the time of the October 21, 1986 review.  Thus, in
the absence of evidence showing it would be unreasonable for the State
review team to have access to information on whether these patients were
Medicaid eligible at the time of the review, we conclude there was no
reason why the State should not have identified these patients for
review.  Therefore, we sustain the Agency's findings that the State
failed to review these two SNF patients in Pleasant Acres Nursing Home
for the quarter ending December 31, 1986 and March 31, 1987.

Rose Vista Nursing Center

The Agency assessed a disallowance against the facility at the SNF level
of care because the State failed to review two SNF patients at the time
of the facility's annual on-site review on October 8, 1986.  The
disallowance was assessed for the quarters ending December 31, 1986,
March 31, 1987 and June 30, 1987.  The State acknowledged that these
patients were not reviewed by the quarter ending December 31, 1986.
However, the State here presented evidence showing that these patients
were reviewed on February 23, 1987.  Appellant's Appeal File, Tab 1.
The State argued that the patients were not reviewed because the
facility failed to notify the State nursing care consultant that these
patients had been admitted as Medicaid patients.

For the reasons we indicated previously, we agree with the Agency that
the State failed to show it had an effective program of medical review
of the care of these patients for the quarter ending December 31, 1986.
The State presented no evidence to show why these patients were not
identified as Medicaid recipients at the time of the October 8, 1986
review.  Therefore, we sustain the Agency's finding that the State
failed to review these patients at Rose Vista Nursing Center.  It
appears, however, that these two patients were reviewed before the end
of the quarter ending March 31, 1987.  Appellant's Appeal File, Exhibit
1.  Neither party specifically addressed the implications of that review
in its briefs.  Consequently, the Agency may wish to review the State's
documentation and consider whether the disallowance assessed against
this facility for the quarters ending March 31, 1987 and June 30, 1987
was inappropriate.  If so, the disallowance should be then reduced
accordingly.

State's Good Faith and Due Diligence Arguments

In its reply brief, the State argued for the first time that on the
basis of Delaware Division of Health and Human Services v.  United
States Dept. of Health and Human Services, 665 Fed. Supp.  1104 (D. Del.
1987), which reversed the Board's decision in Delaware Dept. of Health
and Social Services, DGAB No. 732 (1986), the State's failure to inspect
the patients here due to reporting problems is precisely the type of
good faith and due diligence which would fall within the exception
provided for by the statute.  Section 1903(g)(4)(B).

At the outset, we note that the Board is not bound to apply the cited
District Court decision as controlling precedent because the instant
appeal is from a different district than the court in Delaware, supra.
See also Tennessee Dept. of Health and Environment, DGAB. 921 (1987) at
12.  Moreover, we believe the District Court's.conclusion concerning the
good faith and due diligence exception is inconsistent with the
statutory requirement.  Section 1902(a)(31), which is incorporated by
specific reference into section 1903(g)(1), expressly requires that the
State Plan provide--

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

Emphasis added.

In its analysis of the good faith and due diligence exception, the
District Court overlooked this specific statutory requirement.  As a
result, we believe that the Court's conclusion that a State may satisfy
the good faith and due diligence exception if a review was conducted in
a facility, even though not every patient in the facility   who
reasonably should have been reviewed has been reviewed, is erroneous.
Thus, there is no basis for concluding that the State met the statutory
exception.  2/.Conclusion

For the foregoing reasons, we sustain the Agency's findings subject to a
possible reduction in the amount of the disallowance for Rose Vista
Nursing Center.

 

 

                            ________________________________ Cecilia
                            Sparks Ford

 

                            ________________________________ Norval D.
                            (John) Settle

 

                            ________________________________ Donald F.
                            Garrett Presiding Board Member

 


1.     The initial disallowance of $325,241.81 was reduced based upon
supplemental documentation by the State.

2.     We also note that the State has not shown that it has met, in any
event, the threshold requirement for the statutory exception that it
reviewed 98% of all the facilities due for review, including all
facilities with 200 or more Medicaid certified beds, by the close of the
quarter in which the review was required (or in the case of technical
exceptions, the State met the standard within 30 days of the close of
the quarter). The Board has determined that the statute requires that
the State must show that it met this threshold standard before the
statutory exceptions may even be considered.  See, Arkansas Dept.  of
Human Services, DGAB No. 735 (1986); and Pennsylvania Dept. of Public
Welfare, DGAB No. 746 (1986).  Thus, we could not conclude that the
State met the exception without first deciding whether the threshold was