Arkansas Department of Human Services, DAB No. 1073 (1989)

DEPARTMENTAL APPEALS BOARD

Department of Health and Human Services

SUBJECT: Arkansas Department of DATE: July 20, 1989 Human
Services Docket No. 88-250 Audit Report No.
A-06-87-0004 Decision No. 1073

DECISION

The Arkansas Department of Human Services (State) appealed a
determination by the Health Care Financing Administration (HCFA)
disallowing $11,905,965 in federal financial participation (FFP) under
the Medicaid program. HCFA based its disallowance on a finding that the
State had failed to properly perform "certifications of need" for
individuals under age 21 receiving inpatient psychiatric services during
the period October 1, 1983 through June 30, 1986. Under Title XIX of
the Social Security Act (Act) and HCFA's implementing regulations, FFP
is available for inpatient psychiatric services for individuals under
age 21, only if a properly composed team certifies that criteria of
need, specified in the regulations, are met.

The State challenged the standards applied by HCFA in its review of
facility records and argued that HCFA had applied improper and
inadequate audit criteria. The State also alleged that it had conformed
with the applicable requirements and that its documentation satisfied
certification of need requirements.

For the reasons discussed below, we reject the State's general arguments
about HCFA's regulations and the standards to be applied under those
regulations. We conclude that HCFA reasonably required formal, written
certification by an appropriate team of the need for inpatient
psychiatric services, based on the criteria specified in the
regulations. We agree with the State generally that nothing in the law
or in HCFA's rules requires that a certification be a discrete document,
labeled as such, but disagree that HCFA rejected the State's
documentation on this basis. We further find that (1) the State's
documentation for 190 patients is on its face insufficient to show
satisfaction of the regulatory requirements, and for three patients who
were clearly identified by HCFA the State submitted no documentation;
(2) the State's documentation for 12 patients may be satisfactory, but
we cannot fully evaluate that documentation because HCFA did not
specifically explain its reasons for rejecting the documentation and the
record does not show how certain medical terminology should be
interpreted; (3) the State alleged facts with respect to 22 patients
which were undisputed by HCFA and which may establish that
certifications existed for part, but not necessarily all, of the
disallowance periods for those patients; and (4) the State may have been
given insufficient information to identify eight of the seventeen
patients whom HCFA reviewed in one facility (Charter Vista).

Accordingly, we uphold the disallowance with respect to the 193 patients
whose documentation was insufficient, or for whom the State submitted no
documentation or argument even though the patients were included in the
disallowance and clearly identified for the State. We remand to HCFA
the disallowance with respect to 34 patients for further review in
accordance with the guidance set forth below. Finally, we remand for
HCFA to identify the additional eight Charter Vista patients for whom it
may have disallowed FFP, and to give the State the opportunity to submit
documentation for these patients. We uphold any disallowance for these
patients to the extent that they were or are adequately identified and
the State submits no documentation.

Applicable Authority

Section 1903(a)(1) of the Act authorizes FFP in amounts expended as
medical assistance. Section 1905(a)(16) of the Act defines medical
assistance to include inpatient psychiatric hospital services for
individuals under age 21. Section 1905(h)(1)(B) restricts such services
to inpatient services which involve active treatment --

[and which] a team, consisting of physicians and other personnel
qualified to make determinations with respect to mental health
conditions and the treatment thereof, has determined are
necessary on an inpatient basis and can reasonably be expected
to improve the condition, by reason of which such services are
necessary, to the extent that eventually such services will no
longer be necessary... .

The implementing regulations at 42 C.F.R. Part 441, Subpart D (1978-86)
set forth at section 441.152 the three elements of the certification
process:

(a) A team specified in section 441.154 mustcertify that:

(1) Ambulatory care resources available in the
community do not meet the treatment needs of the
recipient;

(2) Proper treatment of the recipient's psychiatric
condition requires services on an inpatient basis under
the direction of a physician; and

(3) The services can reasonably be expected to improve
the recipient's condition or prevent further regression
so that the services will no longer be needed.

Section 441.153 prescribes the composition of the teams which must
perform the certifications required by section 441.152, and the time
periods by which certification must be performed:

(a) For an individual who is a recipient whenadmitted to a
facility or program, certification must be made by an
independent team that:

(1) Includes a physician;

(2) Has competence in diagnosis and treatment of mental
illness, preferably in child psychiatry; and

(3) Has knowledge of the individual's situation.

(b) For an individual who applied for Medicaid while in the
program, the certification must be:

(1) Made by the team responsible for the plan of care
as specified in section 441.156; and

(2) Cover any period before application for which
claims are made.

(c) For emergency admissions, the certification mustbe made by
the team responsible for the plan of care (section 441.156)
within 14 days after admission.

Section 441.156 sets forth specific requirements for the composition of
the teams which must perform certification for patients who become
Medicaid recipients after admission and patients who are emergency
admissions, as required by section 441.153.

There are related, but separate regulatory provisions for the
development of individual plans of care and for other utilization
control procedures, including physician certification and
recertification of need. Section 441.154 requires that inpatient
psychiatric services rendered in compliance with Part 441, Subpart D,
involve active treatment, defined as a professionally developed and
supervised individual plan of care. Sections 456.80, 456.180, 456.280
and 456.380 set forth plan of care requirements for Medicaid
institutional services in general, while section 441.155 describes the
specific requirements of the individual plan of care for inpatient
psychiatric services for individuals under 21. The development and
review of the plan of care in compliance with sections 441.154 and
441.155 satisfy more general plan of care and periodic recertification
requirements within Part 456.

Utilization control requirements are established by Part 456. Sections
456.60, 456.160, 456.260 and 456.360 provide that the need for
institutional services at a particular level of care must be certified
by a physician in a timely manner, and recertified periodically
thereafter. Section 456.481 provides that the certification of need
required by section 441.152 for facilities providing inpatient
psychiatric services to individuals under 21 satisfies the more general
physician certification requirements.

The Arkansas state Medicaid plan in effect during the period in dispute
required a certification of need by an independent team including a
physician for individuals under 21 receiving inpatient psychiatric
services, as mandated in 42 C.F.R. 441.153, and in compliance with
section 441.152. (HCFA's Exs. B and C.)

HCFA's Review

Auditors from the HHS Office of Inspector General reviewed the State's
Medicaid claims for inpatient psychiatric services for individuals under
21. The auditors randomly selected and examined at least 25% of the
Medicaid psychiatric patient files from each of the 17 facilities
providing care to Arkansas children, a total of 266 files. For two
facilities, which the auditors found had maintained some certifications
of need, the auditors examined the files of all patients admitted during
the review period. The auditors found generally, however, that the
State had not established satisfactory monitoring controls until July
1986.

On the basis of the audit, HCFA concluded that FFP of $11,905,965
claimed prior to July 1986 was unsupported by proper certifications of
need. The audit report indicates that the auditors found no file for
the one Medicaid patient at the G.W. Jackson facility and recommended
disallowing $224 in FFP claimed for this patient. The audit report does
not specify whether disallowances were also taken for all of the 266
patients whose files were reviewed. As explained below, the State
asserted that the auditors had found acceptable certifications for 32
patients in one facility (Rivendell), but neither party explained
whether the disallowance covered claims for all of the remaining 235
patients whose files were reviewed or not found. The auditors had
reduced the recommended disallowance for amounts included in a similar
disallowance taken previously, which overlapped the audit period, and
this may have eliminated fully the disallowance for some patients.
(HCFA's Ex. A, Audit Report, pp. 14-16)

Analysis

The State asserted several arguments on appeal. It challenged the
standards applied by HCFA, maintaining that the applicable regulations
are vague, arbitrary, and capricious, and that HCFA's findings were
based on improper and inadequate audit criteria. The State also argued
that it had provided inpatient psychiatric services to individuals under
21 appropriately and in conformance with statutory and regulatory
authority, and that it had provided documents that demonstrated the
satisfaction of applicable certification of need requirements.

HCFA relied generally on the regulations for its disallowance. In
support of its position that the mere fact that need for inpatient
services may be inferred from patient files is not sufficient as a
certification, HCFA cited to a statement in the legislative history of
section 1905(a)(16) referring to "formal" certification. HCFA also
relied on a 1973 memorandum and a HCFA action transmittal (AT 80-68)
discussing what is required for physician certifications under 42 C.F.R.
Part 456. (State's Exs. 2 and 3)

I. Challenge to HCFA's Standards

A. The Regulatory Requirements

The State argued that: (1) HCFA's requirement of "formal certification"
is improperly based on legislative history and HCFA memoranda which are
not pertinent; (2) neither the legislative history nor the Act require a
certification regarding ambulatory care resources; (3) HCFA's
requirement of certification by an independent team is improper.

1. Formal Certification

The State said that HCFA's position was improperly based on legislative
history which is "obscure" and memoranda which are "isolated and
random." These materials constituted, the State argued, an improper
basis for imposing a requirement of "formal certification." (State's
brief, p. 9) The State took the position that the certification
requirement was met if a need for inpatient services could be inferred
from patient evaluations and other documentation in the case files.

As this Board concluded in a previous case where Arkansas made similar
arguments, Arkansas Dept. of Human Services, DAB No. 959 (1988), HCFA is
reasonable in its position that it is insufficient to show that a
patient needed the care; the State must show that the proper
determination of need was made at the proper time. This requirement
flows directly from the statutory language of section 1905(h)(1)(B)
(quoted at page 2 above). HCFA is also reasonable in requiring that
this determination be a formal certification. The conference report on
section 1905(h) of the Act states that an individual must be "formally
certified" to be in need. (H.R. Conf. Rep. No. 1605, 92nd Cong., 2nd
Sess. 5398 (1972); HCFA's Ex. D) Contrary to what the State argued,
this legislative history is not "obscure"; it provides an important
indication of congressional intent.

Moreover, as the Board concluded in DAB No. 959, HCFA's longstanding
interpretation in its policy guidance is that certification involves a
process of attesting, through a signed, written statement, to a
determination that a specific level of care is needed. Moreover, this
interpretation is pertinent here, given the interrelationship of the
physician certification and team certification requirements and their
common purposes. Indeed, the State conceded that it would be foolish to
argue that a non-written certification is adequate. (State's reply
brief, p. 3)

Finally, we reject the State's assertion that the author of a 1973
memorandum containing a policy interpretation of utilization control
requirements did not have a firm grasp on the certification
requirements. While, as the State pointed out, this memorandum was only
a preliminary implementation of the physician certification
requirements, it evidences a consistent interpretation on HCFA's part of
what the concept of certification entails.

We conclude that HCFA properly required an affirmative written statement
signed or otherwise attested to by the required team, pursuant to
section 441.153, and evidencing a determination addressing the three
elements required by section 441.152: the unavailability of suitable
ambulatory care resources; the need for a particular level of inpatient
psychiatric services under the direction of a physician; and the
expectation of improvement or prevented regression so that services will
no longer be needed.

2. Ambulatory Care

Section 441.152(a)(1) requires that the specified team certify that the
ambulatory resources available in the community do not meet the
treatment needs of the recipient. The State challenged this requirement
as unrelated to legislative intent, on the basis that neither the
legislative history nor the Act require such a certification.

We conclude that the ambulatory care requirement is consistent with both
the general cost reduction purpose of utilization control and with the
history of section 1905(a)(16). Community outpatient care is less
expensive than inpatient care; specifying that available ambulatory
resources cannot meet a patient's needs ensures that the inpatient
services are needed not only because of the patient's condition, but
because that condition cannot effectively be treated in an outpatient
setting.

Moreover, under section 1905(a) of the Act, Congress has long excluded
from the definition of medical assistance care in institutions for
mental diseases (IMDs). Congress has excepted from this exclusion the
aged, under the conditions specified in section 1902(a)(21) of the Act,
and children, under the conditions specified in section 1905(h).
Funding for the aged (the exception enacted first) was made contingent
on states providing for less restrictive alternatives to IMD care. HCFA
reasonably interpreted the need requirement in the exception for
children to also include consideration of whether such alternatives are
available. See, also, section 1902(a)(26)(B)(iii) of the Act.

We also note that this requirement is particularly important with
respect to the kinds of patients at issue here. Many of these children
were in foster care in the custody of the State or were developmentally
disabled. The regulatory requirements ensure that placement decisions
for such children will be based on the patient's need for active
treatment of a psychiatric condition, not on the State's failure to
consider or to arrange placement in less restrictive alternatives.

3. Independent Team

The State challenged the independent team language of section 44.153.
With respect to some patient files, the State contended that an
outpatient provider had referred the patient for inpatient treatment,
and argued that there is no rational basis to conclude that an
outpatient provider's medical judgment is subject to the affirmation or
rejection of a third party, and that HCFA has improperly required that
patients who are recipients at the time of admission be certified by an
independent team.

The State apparently thought that HCFA had rejected these referrals on
the basis that the outpatient provider was not independent. However,
HCFA did not take the position that the independent team could never be
related to an outpatient provider. HCFA did say in its review report
that the State should have had a process for admission reviews by the
State agency, but this conclusion was related to a separate finding
based on the utilization control regulations at 42 C.F.R. 456.271, not
on the certification of need findings at issue here. (HCFA's Ex. A,
Audit Report, p. 9)

The independent team language, which was challenged by the State, is set
forth in section 441.153. It provides specific team composition
requirements, requiring that certification be performed by an
independent team if the patient is a Medicaid recipient when admitted,
and by the team responsible for developing the plan of care if the
patient applies for Medicaid after admission or is admitted as an
emergency. In our view, the requirement is reasonable because it
ensures that, whenever possible, the team making the determination of
need is not motivated by self-interest.

We conclude that HCFA properly required certification by an independent
team, in accordance with Part 441, for non-emergency patients who were
recipients when admitted.

B. The Audit Criteria.

The State argued that HCFA's audit findings were based on inadequate and
improper standards because they required that certification be comprised
of a single document, and did not give full consideration to the State's
documentation. The State argued that the certification of need is not
an isolated activity, and may be evidenced in a number of ways. It
maintained that HCFA had sought evidence of a single certificate, rather
than a certification process, and that the required certification may be
comprised of a collection of documents.

Although the State is correct that the regulation does not necessarily
require a single document, labeled a certificate of need, it is not
clear that HCFA required this. In its brief, HCFA said that medical,
psychiatric, and social evaluations of the type relied on by the State
could not be accepted "unless such evaluations are explicit,
affirmative, unequivocal certifications of determinations" that the
regulatory elements are met, by the specified team. (HCFA's brief, p.
21) It was with the State's satisfaction of these criteria that HCFA
found fault.

As the State pointed out, HCFA's action transmittal AT 80-68 states that
physician orders, medical evaluations, referral or transfer forms, and
admission review forms may function as physician certification
documents. (State's Ex. 3) What the State ignored is that AT 80-68
clearly provides that such documents may function as certifications only
if they evidence determinations about the particular level of care
needed and are signed by a physician within the required time period.
Also, for inpatient psychiatric services for individuals under age 21,
satisfaction of the physician certification requirements is
insufficient: the more stringent requirements of Part 44l must be met.

Contrary to what the State suggested, it is not sufficient that the
documentation merely indicate a general need for inpatient services.
(State's brief, p. 13) To meet the requirements, the State must show
that a determination about need, addressing all three regulatory
elements, was made by the appropriate team at the required time. We
also note that there is a separate utilization control provision
requiring "medical, psychiatric and social evaluations." See 42 C.F.R.
456.170 and 456.482. The plan of care required by section 441.155 must
be based on such evaluations, as well. However, the provisions of
section 441.152 separately require a certification of need, implying
that the state must document more than that these evaluations were
performed.

The State had an obligation to meet certification requirements, and HCFA
appropriately sought documentation of the required determinations.
Finally, even if we agreed with the State that HCFA failed to properly
apply the regulatory requirements, the State had ample opportunity to
submit documents to the Board which demonstrate its satisfaction of the
certification requirements and, with a few possible exceptions, failed
to do so.

II. The State's Compliance

A. The State's Case Review Process

The State maintained that its establishment of the Children's Case
Review Committee (CCRC), in accordance with the State's Policy No.
3001-I (State's Ex. 5), demonstrated its performance of the
certification of need requirements of Part 441, Subpart D. HCFA argued
that the existence of a formalized case review "process" does not
indicate compliance unless that process met the discrete requirements of
certification mandated by statutory and regulatory authority, and the
State adhered to that process.

The CCRC serves as the oversight body for services to children and youth
by state agencies. Among its varied responsibilities is the review of
admissions to inpatient psychiatric facilities, under Medicaid contract.
(State's Ex. 6) We agree with HCFA that the mere fact that the State
may have intended this process to meet the certification requirements is
not sufficient; the State must show that the CCRC process functioned
according to the regulations and actually made the required
determinations in each case. As we discuss below, the documentation
related to the CCRC reviews (minutes of CCRC meetings and "case review"
sheets) does not show that the requirements were met. We also found the
following general problems with the CCRC process:

o The CCRC was established to review only certain cases referred
to it to resolve service delivery problems beyond the reach of the
State's normal service delivery system; indeed, the State alleged that
there was a CCRC review in only 46 of the cases at issue here.

o Although HCFA's regulations were apparently attached to the CCRC
manual, the State provided no evidence that the CCRC members were
trained in those requirements or that it was CCRC policy that the
required determinations were prerequisites for all recommendations of
placement in an inpatient psychiatric facility or program.

o The CCRC had broad responsibilities, only one of which was the
certification of the need for inpatient care, and the record indicates
that the CCRC made recommendations based upon other considerations, such
as State custodial responsibilities and the need for some type of
residential placement for children who had been removed from their homes
or adjudicated delinquent.

o The State said that the CCRC met the requirements for team
composition, relying on evidence that a psychiatrist had been appointed
to the CCRC and then another one substituted for him. In most of the
patient files submitted by the State where there is evidence of a CCRC
meeting, however, the list of members attending includes neither one of
these psychiatrists nor anyone else identified as a physician. Some of
the files contain only a case review sheet, which does not indicate who
the current members of the CCRC were, nor whether they attended the
specific meeting.

Moreover, despite the State's claim that it had the independent team
required by section 441.153 in place for almost two years prior to
HCFA's audit, the auditors reported that State officials had
acknowledged that the State had chosen not to implement monitoring
requirements for certifications of need until July 1986, due to an
understatement of program costs and a mistaken belief that the program's
size did not justify the costs of utilization control procedures.
(HCFA's Ex. A, Audit Report, pp. 5, 7) The State did not specifically
dispute this finding, here, other than to provide evidence and argument
related to the CCRC (which applied only to certain cases).

The general utilization control provisions include a requirement that
the State implement a utilization control program. See 42 C.F.R. 456.3.
Even if the CCRC was created in part to fulfill this requirement, its
establishment does not, in and of itself, demonstrate compliance with
Part 441, Subpart D. The mere existence of a case review committee,
without the satisfaction of certification requirements in each case, is
inadequate.

B. The State's Documentation

We address below: (1) undocumented files and documentary discrepancies;
(2) the State's argument in its reply brief that it had established a
prima facie case; and (3) the sufficiency of the documentation which was
submitted.

1. Undocumented Files and Documentary Discrepancies

Despite the State's responsibility of documenting its compliance with
certification requirements, it submitted documents for individual
patients without specifically explaining their relationship to the
satisfaction of regulatory requirements. Furthermore, for most
patients, the State included no documentation which permits the Board to
ascertain whether patients were Medicaid recipients and the periods for
which claims were made. Unless evidence to the contrary was presented,
we have assumed that patients were recipients at the time of admission,
requiring certification by an independent team, and that a claim was
made for each patient's entire term of inpatient care.

HCFA failed to respond specifically to the State's documentary
submissions for individual patients, relying on general statements about
the inadequacies of the documentation.

The State did not include documentation for the first 22 patients at the
Rivendell facility; instead, the State asserted that the auditors had
acknowledged that certifications of need existed for these patients as
of September 3, 1985, but had been mistaken about whether these
individuals were eligible on admission. The State asserted that the
facility only became Medicaid eligible on August 1, 1985, and that the
auditors had recognized that, although the State had submitted claims
retroactive to August 1, 1985, applications were not made for these
recipients until September 24, 1985 or after.

HCFA did not dispute these assertions, so we must accept them as
correct. They do not, however, provide a basis for reversing the
disallowance. Under section 441.153(b)(2), a certification for an
individual who applies for Medicaid while in a facility must cover any
period before application for which claims are made. The mere
undisputed assertion that certifications of need existed as of September
3, 1985, for these patients does not mean that those certifications
covered the entire period for which claims were made, nor that those
certifications were by the appropriate team. On the other hand, in
light of HCFA's failure to specifically respond to the State's
assertions, we find that the State should have a further opportunity to
address these additional questions. Therefore, we remand the
disallowance for these patients to HCFA to determine whether the State
can document that the certifications related back to August 1, 1985, and
were done by the appropriate team.

We also find that the record indicates a discrepancy between the
submitted documentation and the number of files on which the
disallowance was apparently based. Of the 267 patients whose files the
auditors reviewed or did not find, the State said that 32 files at
Rivendell were found to be acceptable. The State did not explain why it
did not submit any documents for the Rivendell patient identified as
RIV-15 or for the two patients reviewed at the Pinewood facility.

The State also failed to submit documentation for eight of the 17
patients reviewed at the Charter Vista facility. The State asserted
that "of the 17 placements shown on the audit report, the State has been
unable to determine precisely which admissions were found unacceptable
because of contradictory notations." (State's brief, p. 34) HCFA did
not respond to this assertion. We note that the State's assertion is
somewhat ambiguous (since "admissions" could mean either that the State
could not identify which patients were covered by the disallowance or
that the State could not determine which of several admissions for
identified patients were found unacceptable). If, however, the State
was given insufficient information to identify the patients, and claims
for those patients were included in the disallowance, fairness requires
that HCFA identify them and provide the State a further opportunity to
submit documentation for them.

Accordingly, we uphold the disallowance of $4,353 FFP for Pinewood, as
well as any disallowance for patient RIV-15, with the amount to be
determined on remand. With respect to the eight patients at Charter
Vista for whom no documents were submitted, we remand for HCFA to
identify the patients for whom it disallowed FFP, and to give the State
the opportunity to submit documentation for these patients. We uphold
any disallowance for these patients to the extent that they were or are
adequately identified and the State submits no documentation.

2. The State's prima facie Case Argument

The State also argued in its reply brief that its documentation was
prima facie evidence of certification and that HCFA's failure to address
each set of documents specifically meant that the disallowance should be
overturned. (State's reply brief, p. 6)

We reject the State's argument that its documentation was prima facie
evidence of certification. Based on our examination of the
documentation, we conclude that the documentation submitted for 190
patients clearly fails, on its face, to show compliance with the
regulatory requirements discussed above.

We find, however, that the documentation for 12 patients, while not
sufficient to make a prima facie case, merits further examination. The
documentation for these patients shows that a team meeting the
regulatory requirements, while not explicitly using the terminology
contained in the regulations, appears to have addressed generally the
three elements of certification. Evaluating the sufficiency of these
documents would appear to require knowledge of medical terminology and
of the level of care particular facilities were providing. In many of
these cases, the State relied on CCRC review (which we found to be
inadequate), but a discharge summary from a previous placement or other
document contains a statement of need, and we cannot tell from HCFA's
brief whether it considered the sufficiency of these statements. In
sum, absent HCFA's specific articulation of the bases for its rejection
of the documentation and further development of the adequacy of certain
statements, we cannot fairly evaluate whether the regulatory
requirements were fully satisfied. We have determined that remand of
these cases is appropriate since, on further review, HCFA may find them
acceptable.

Accordingly, we uphold the disallowance only for those cases for which
we found the documentation clearly inadequate and remand with respect
to those cases needing further consideration.

Below, we discuss general deficiencies we found in the documentation for
which we uphold the disallowance. Specific findings of rejection are
set forth in an Appendix A to this decision. Our general findings about
the patient files in cases which we remand to HCFA are set forth in
Appendix B.

3. General Documentary Deficiencies

The State's argument that its documentation was sufficient was often
based on assertions regarding the status of patients or the type of
facility involved. We found many of these assertions to be unsupported.
The documentation in many cases fails to support the State's contention
that certain classes of admissions were emergencies, or even to offer
guidance on this issue. Also, the State sometimes asserted that
patients were admitted as emergencies because of suicidal gestures, yet
failed to document such assertions. The State also asserted generally
that cases involving court orders were emergencies. Copies of court
orders did not always accompany such assertions, and those contained in
patient files included custody orders (for example, CVH-2 and EMCC-12),
emergency custody orders for inpatient or outpatient treatment (for
example, HVM-14), adjudications of delinquency (for example, AMHS-17)
and determinations of Juvenile in Need of Supervision (JINS) status (for
example, YHI-1). Such court orders do not necessarily constitute
findings of jeopardy to the health and safety of patients which meet the
State's own definition of an emergency admission.

We also reject the State's contention that a determination of JINS
status constitutes an emergency and reflects a certification of the need
for inpatient services. (State's brief, p. 29) JINS are defined by
statute as juveniles who are habitually and without justification absent
from school or home and habitually disobedient to parent, custodian, or
guardian. The Arkansas statutory authority does not require, as a
prerequisite to a JINS determination, a finding of either the need for
inpatient psychiatric care or the need for emergency care, as the State
contended. Ark. Code Ann. sections 9-28-301 et seq. (1987).

The State further asserted that admissions to Arkansas Mental Health
Services and G. W. Jackson were emergencies, by virtue of Arkansas Act
817 of 1979 and Act 43 of 1980. Section 20-47-201 et seq. of the Ark.
Code Ann. (1987), in which these Acts are codified, provides the
standards for voluntary and involuntary commitments. Under these
standards, an involuntary commitment requires a finding that an
individual is homicidal, suicidal, or gravely disabled (likely to injure
himself or others if allowed to remain at liberty or unable to provide
for his own food, clothes or shelter because of mental illness, disease
or disorder), which is similar to the definition of an emergency
admission, found at 42 C.F.R. 440.180(e) and referred to by the State.
However, the mere fact of admission is not evidence of involuntary
commitment and, therefore, not evidence of an emergency.

Moreover, for emergency admissions, section 441.153(c) requires that
certification be done within 14 days of admission by the team
responsible for the plan of care and section 441.156 sets forth specific
team composition requirements. The documentation submitted by the State
often fails to establish that such requirements were met.

In many cases, the State asserted that the certification requirements
were met because its documentation showed physician's "orders" for
placement or transfer. As discussed above, a determination by a
physician, alone, is not sufficient to meet the regulatory requirements
for inpatient psychiatric services. Moreover, even though some of these
records show that a physician recommended placement or transfer, they do
not always demonstrate that these recommendations were based on the
requisite considerations.

Other problems with the documentation reflected additional
misunderstandings about the applicable requirements which we discussed
above. Specific findings are detailed in Appendix A.

Conclusion

o For the reasons stated generally above and specified in
Appendix A to this decision, we uphold the disallowance with respect to
the 193 patients for whom we found the documentation clearly
insufficient or for whom no documentation was submitted, even though the
State clearly knew they were included in the disallowance (patient
RIV-15 and the two Pinewood patients).

o For the reasons stated generally above on p. 15, we remand with
respect to the first 22 Rivendell patients.

o For the reasons stated generally above on p. 17 and specified in
Appendix B, we remand with respect to the 12 patients whose
documentation may be satisfactory, with the amounts to be determined on
remand.

o For the reasons stated above on p. 16, we remand with respect to
the eight Charter Vista patients for HCFA to identify the patients for
whom it disallowed FFP, and to give the State the opportunity to submit
documentation for these patients. We uphold any disallowance for these
patients to the extent that they were or are adequately identified and
the State submits no documentation.


_____________________________ Cecilia Sparks Ford

_____________________________ Norval D. (John) Settle

_____________________________ Judith A. Ballard Presiding Board
Member

APPENDIX A


The Board's grounds for rejecting individual patient files are set forth
according to the following reference code. The reader should bear in
mind that the brief explanations set forth below must be read in the
context of the general discussion above.

"C" refers to certification of the three elements setforth in section
441.152. We have used the phrase "not shown" to indicate that
there was no adequate determination with respect to any of the
three elements. "Inadequate" indicates that, although there is some
indication that one or two of the elements of certification were
considered, there was no adequate determination with respect to all
three elements. "Equivocal" indicates that there is evidence of
conclusions which are incompatible with or contradictory to the
requirements of certification.

"T" refers to team requirements. "POC" means plan ofcare team.

"D" refers to the dates of documentary evidence.

"O" refers to other considerations.


Yellowstone

Y-1: C - CCRC recommendation is equivocal (indications of intent to
explore outpatient care) and questionable whether recommendation was
based on psychiatric need; T - unclear which CCRC members were present
at meeting.

Liberty Hill - Meridell

M-1: C - inadequate (CCRC did not consider placement alternatives or
whether placement would improve condition or prevent regression);
evidence of prior recommendation of facility placement only if foster
care was not adequate; evidence of placement due to developmental
disabilities; and CCRC report does not indicate placement level
recommended; D - CCRC meeting on which State relied occurred more than
three months before admission.

Shadow Mountain

SMI-1: C - not shown by CCRC and other documentation is equivocal; T -
no physician on CCRC and no independent physician's determination.

SMI-2: C - basis for specific facility recommendation not given by CCRC
and other independent recommendation is equivocal; T - no clear
certification by independent team, as required, and no physician present
at CCRC meeting.

The Devereux Foundation

D-1: C - inadequate and unclear; T - no physician.

D-2: C - inadequate; T - although the State alleges that
certification could properly be done by facility team, no evidence that
individuals evaluating patient at beginning of claim period constituted
POC team for that period.

D-3: C - CCRC recommendation inadequate; T - no physician on CCRC and
no other independent team evaluation.

D-4: C - equivocal (foster care recommended by CCRC); D - CCRC
meeting took place more than 5 months before admission.

D-5: C - inadequate (questionable whether need for psychiatric care;
basis for specific facility recommendation not given) and equivocal
(indication that outpatient treatment or foster care were preferred).

D-6: C - no indication of CCRC recommendations; T - no physician
signed MSH recommendations; O - some documentation is irrelevant.

D-7: T - no physician present at 6/10/83 CCRC meetingrecommending
placement.

The Oak Treatment Center

OTC-1: C and T - no documentation of CCRC approval and referral summary
is incomplete, unsigned and undated; D - EMCC psychological evaluation
was done after admission.

OTC-2: C - inadequate and questionable whether need for psychiatric
care; T - no physician present at CCRC meeting.

The Ranch Treatment Center

RTC-1: C - CCRC recommendation is equivocal and inadequate; T - no
physician present at CCRC meeting; D - CCRC meeting occurred more than
five months before admission; O - some documentation is irrelevant.

RTC-2: C - questionable whether need for psychiatric care and CCRC
recommendation is equivocal; T - no indication of which CCRC members
were present at meeting; O - some documentation is irrelevant.

RTC-3: C - equivocal (indication of outpatient treatment
recommendation); T - no physician at CCRC meeting.

RTC-5: C - questionable whether need for psychiatric care; T - no
physician at CCRC meeting.

RTC-6: C - inadequate and equivocal.

RTC-8: C - equivocal and questionable whether appropriate level of care
recommended; T - no physician at CCRC meeting.

RTC-9: C - inadequate and equivocal (outpatient treatment with group or
foster home recommended); T - no indication of individuals present at
CCRC meeting.

RTC-10: C - inadequate; T - MSH team members are not identified; D -
CCRC recommendation occurred more than seven months before admission.

RTC-11: C - equivocal and no CCRC minutes or recommendations; T - no
indication of individuals present at CCRC meeting.

RTC-14: C - inadequate; T - no physician present at CCRC meeting.

RTC-15: C - inadequate; T - no indication of individuals present at CCRC
meeting; D - CCRC occurred more than 3 months after admission.

RTC-17: C - inadequate; T - no physician present at CCRC meeting and
other recommendations of long-term placement are written by unidentified
individuals and are unsigned.

San Marcos Treatment Center

SMTC-1: Team certification was done; the State acknowledged that it was
late, but argued that this was due to an anticipated form change
(State's brief, p. 22). We find this reason unacceptable, given that
the State also maintained, generally, that no specific form was
required. We also note that the State acknowledged that the form was
available after June 3, 1986, but did not explain why it was apparently
not completed until three weeks later. The State said that the date
given on the form (June 24) was the date of signature, not of
certification, but provided no evidence to support this assertion.

SMTC-2: C - not shown; T - no physician on CCRC.

SMTC-3: C - inadequate; T - no physician on CCRC; D - some documents
from irrelevant time period.

SMTC-4: C - equivocal; no physician "order" of transfer.

SMTC-5: C - equivocal and no certification regarding ambulatory care
resources; T - no indication of individuals present at CCRC meeting.

SMTC-6: C - CCRC certification inadequate; T - no physician present at
two CCRC meetings immediately preceding placement; D - other CCRC and
Mid-South Hospital evaluations are from irrelevant time period.

SMTC-7: C - CCRC certification inadequate; T - nophysician present at
CCRC meeting; D - CCRC review was done more than one year after
admission and other independent evaluations were not timely.

SMTC-8: C - not shown by CCRC and other independent documents are
equivocal; T - no physician on CCRC and BRI evaluation by physician
only; D - BRI documents were written more than 60 days before admission.

SMTC-9: C - inadequate (no statement about improvement or prevention of
regression and patient showed little improvement at Devereux) and CCRC
documentation does not show basis for placement recommendation; T - no
physician present at CCRC meeting.

SMTC-10: C - no documentation of 8/8/84 CCRC meeting andrecommendation
is equivocal; T - no physician present at CCRC meeting; D - other
documentation is not timely.

SMTC-12: C - inadequate (no statement about improvement or the
prevention of regression); T - no indication of members present at CCRC
meeting.

SMTC-13: C - CCRC recommendation inadequate and containedrecommendation
for review as adult; T - no physician present at CCRC meeting; D - CCRC
meeting occurred more than 60 days before admission.

SMTC-14: C - inadequate; T - no physician present at CCRC
meeting; D - some documentation from irrelevant time period.

SMTC-15: C - CCRC recommendation inadequate; T - nophysician present at
CCRC meeting; D - psychiatrist's evaluation not timely.

Mid-South Hospital

MSH-1: C - not shown; T - physician only.

MSH-2: C - inadequate and equivocal; T - recommendations by physician
only.

MSH-3: C - questionable whether CCRC recommended placement for
psychiatric care, and the other independent evaluation is equivocal; T -
no physician present at CCRC meeting.

MSH-4: C - not shown; D - documentation pertains to three years before
admission.

MSH-5: C - not shown; T - no physician on CCRC or on EMCC discharging
team; D - some documentation pertains to one year after admission.

MSH-6: C - inadequate; T - no physician.

MSH-7: (documentation indicates placement due to court commitment,
rather than physician's orders of transfer, as asserted) C - inadequate;
T - members not identified.

MSH-8: 1st Admit: C - inadequate; T - physician only. 2nd Admit: T -
certification of need (CON) form unsigned.

MSH-9: C - CCRC recommendation equivocal (foster care recommended); D -
CCRC meeting occurred more than four months before admission.

MSH-10: 1st Admit: C - inadequate; T - no physician on CCRC. 2nd
admit: C - inadequate; T - members unclear and no
physician shown.

MSH-11: C - not shown and equivocal (foster care recommended).

MSH-12: C - inadequate; T - evaluation by physicians only.

MSH-13: C - inadequate; T - no physician on CCRC.

MSH-14: C - no CCRC certification; D - CCRC meeting occurred more than
three months before admission.

Arkansas Mental Health Services (see also discussion on p.18 of
Decision)

AMHS-1: C - not shown; D - determination not made within 14 days.

AMHS-2: 1st Admit: C - not shown; T - no physician. 2nd Admit: C - not
shown; D - no determination by physician within 14 days.

AMHS-3: C - not shown; T - evaluation by physician only; D -
determination not made within 14 days.

AMHS-4: C - not shown; T - evaluation by physician only.

AMHS-5: C - not shown; T - documentation unsigned.

AMHS-6: C - not shown; T - physician only.

AMHS-7: C - not shown; T - physician only.

AMHS-8: C and T - no certification by POC team after admission, although
emergency asserted and; only the discharge summary was signed by
physician.

AMHS-9: C - inadequate; T - physician only.

AMHS-11: C - not shown; T - unclear; D - determination by
physician not made within 14 days of admission; O - social history
unsigned and psychologist's report undated.

AMHS-12: D - physician's discharge summary more than eight months
past admission and psychological assessment more than eight months
before admission.

AMHS-14: C - inadequate (treatment plan recommends only "close
observation").

AMHS-15: C - not shown; T - evaluation by physician only.

AMHS-16: C - not shown.

AMHS-17: D - the only certification was done after discharge; T
- evaluations done by internal team (court order is adjudication of
delinquency).

AMHS-18: C - inadequate; T - discharge summary by physician only;
D - not within 14 days of admission.

AMHS-19: 1st Admit: C - not shown (outpatient treatment
recommended); T - evaluation by physician only. 2nd Admit: C - not
shown; T & D - the only timely evaluation was
done by physician only. 3rd Admit: C - not
shown (attending physician recommended
outpatient placement); T - unclear if POC team
requirements were met. 4th Admit: C - not
shown; T - no evaluation by physician. 5th
Admit: (no evidence of emergency) C - not shown
(discharged because physician did not feel
patient needed to remain at hospital); T - no
independent team evaluation nor proper POC team.
6th Admit: (no evidence of emergency) C - not
shown; T - no independent team evaluation, nor
proper POC team. 7th Admit: C - not shown; T -
evaluation by physician only. 8th Admit: C -
not shown; T - no evidence of evaluation by
proper POC team. 9th Admit: C - not shown; T -
evaluation by physician only.

AMHS-20: C - not shown; T - evaluation by physician only.

AMHS-21: (physician progress notes state that inpatient treatment
is not indicated) C - not shown; T - discharge summary by physician not
signed.

AMHS-22: C - not shown; T - the only timely evaluation was done
by physician and "extern".

AMHS-23: T - only timely certification by "L.C.S.W."

AMHS-24: 1st Admit: C - not shown; D - aftercare recommendations
not timely; O - the only timely evaluation was unsigned. 2nd Admit: No
documentation.

AMHS-25: 1st Admit: C - not shown; physician evaluation more than
14 days after admission and outpatient therapy recommended. 2nd Admit:
CON sheet done four months after admission; D -
other documentation from irrelevant time period.

The Bridgeway

BRI-1: C - not shown; T - no evidence of team evaluation; D - not
evaluated within 14 days of admission.

BRI-2: C - not shown; T - unclear if "R.N." had the specialized
training required.

BRI-3: C - inadequate; T - no physician.

BRI-4: C - not shown and evidence of treatment due to learning
disability; T - no physician.

BRI-5: C - not shown; T - not independent as required.

BRI-6: C - not shown; T - not independent as required.

BRI-7: C - inadequate and equivocal; T - evaluation by physician only.

BRI-8: C - not shown.

BRI-9: C - not shown; T - "L.M.S.W." only.

BRI-10: C - inadequate; T - physician only (unsigned).

BRI-11: C - not shown; T - not independent as required.

BRI-12: C - not shown; T - Discharge Summary from previous facility
unsigned.

BRI-13: C - not shown; portions of documentation are illegible; T -
physician only; D - 41 days after admission and no assertion of
emergency.

BRI-14: T - no certification by independent team.

BRI-15: (questionable whether emergency) C - not shown; D - no
certification within 14 days of admission; December 1988 certification
irrelevant.

BRI-16: C - not shown; no independent team evaluation as required.

BRI-17: C - not shown; O - court order not included.

BRI-18: C - not shown; T - evaluation by two physicians only, although
emergency asserted.

G.W. Jackson (see also discussion on p. 18 of Decision)

GWJ-1: C - not shown; T - not POC team; D - not within 14 days of
admission.

Youth Home, Inc. (see also discussion on p. 18 of Decision)

YHI-1: C - not shown; T - "L.C.S.W." only; D - documentation undated.

YHI-2: T - CON sheet is unsigned; and although State asserted
emergency, no determination by POC team; D - CON sheet is undated.

YHI-3: C - not shown; T - "L.C.S.W." only.

YHI-4: C - inadequate, T - "L.C.S.W." only.

YHI-5: T - although State asserted emergency, no certification by POC
team; D - other documentation dated more than one year before admission.

YHI-6: C - not shown; T - physician's evaluation addresses physical
condition only.

YHI-7: C - not shown ("no recommendations" made in physician's After
Care Plan at transferring facility).

YHI-8: C - inadequate; T - Discharge Summary from Devereux not signed
by physician; members of "clinical team" to which Discharge Summary
refers are not identified.

YHI-9: T - physician only.

YHI-10: C - inadequate; T - physician only.

YHI-11: C - not shown (questionable whether need for psychiatric care);
T - physician only and not independent as required; D - evaluation seven
days after admission, with no evidence of emergency.

YHI-12: C - not shown (questionable whether need for psychiatric care);
T - not independent as required and no physician.

YHI-13: (no evidence of emergency) C - not shown (questionable whether
need for psychiatric care); T - not independent as required and no
physician.

YHI-14: C - not shown; T - evaluation by physician only; D - discharged
from previous placement more than four months before admission.

YHI-15: C - inadequate; T - physician only and not independent as
required; D - evaluation nine days after admission.

Harbor View Mercy Hospital

HVM-1: 1st Admit: T - specific POC team requirements not shown. 2nd
Admit: C - inadequate; O - some documents illegible.

HVM-2: Discharge Summary is only documentation submitted; D - not done
within 14 days of admission.

HVM-3: C - inadequate; T - no physician.

HVM-4: T - not independent team, as required.

HVM-5: 1st and 2nd Admits: T - no certifications by independent team
as required.

HVM-6: 1st Admit: T - No physician. 2nd Admit: C - not shown; T -
unclear if POC team requirements met; D-some documents
not timely.

HVM-7: C - inadequate; T - physician evaluation unsigned and POC team
requirements not met.

HVM-8: C - not shown; T - not independent team as required.

HVM-9: C - not shown; T - physician only; O - nursing assessment
illegible.

HVM-10: T - no certification by independent team as required.

HVM-11: C - inadequate; T - not independent team, as required.

HVM-12: C - inadequate; T - consideration of certification elements by
physician only; CON sheet unsigned.

HVM-13: D - court-ordered commitment seven days after second admission
and no evaluation within 14 days of admission.

HVM-14: 1st Admit: T - unclear if POC team requirements met. 2nd
Admit: No documents submitted.

HVM-15: 1st Admit: C - not shown; D - although emergency asserted,
evaluation not done within 14 days. 2nd Admit: C - inadequate (level
of care not addressed); T - evaluation by physician
only.

Rivendell

RIV-1: C - equivocal; T - no physician.

RIV-2: D - the only documentation submitted was written more than one
year before admission.

RIV-3: C - no determinations; T - evaluation by physician only;
unsigned; D - more than 60 days before admission.

RIV-4: C - not shown (needs discussed, but no determinations); T -
documents unsigned.

RIV-5: (questionable whether emergency) C - inadequate and questionable
whether need for psychiatric care; T - no certification by physician.

RIV-7: (questionable whether emergency) C & T - no independent team and
regarding facility team, while individuals recommended inpatient
treatment, the document recommending specific level of care is not
signed by physician.

RIV-8: C - equivocal (referral for inpatient evaluation, not
treatment).

RIV-9: D - no evidence of emergency admission and the only
documentation is discharge summary done more than one year before
admission.

RIV-10: C - not shown; T - although State asserted emergency, no
evaluation by POC team.

RIV-11: (no evidence of emergency admission and court order for
placement at RIV occurred after admission and contains inconsistent
dates) C - inadequate; T - no determination by physician and no
independent team.

RIV-12: (questionable whether emergency) C - inadequate; T - no evidence
of evaluation by POC team.

RIV-13: C & T - the only document signed by physician does not address
necessary level of care.

RIV-14: (questionable whether emergency) C - inadequate (no
certification regarding level of care); T - no evidence of evaluation by
independent team and unclear if evaluation by POC team.

RIV-16: (no evidence of emergency at time of admission) T - no evidence
of evaluation by independent team and unclear if evaluation by POC team.

RIV-17: (questionable whether emergency) C - inadequate (no statement
regarding ambulatory care or improvement).

RIV-18: (questionable whether emergency) C - inadequate; T - no evidence
of evaluation by independent team or POC team.

RIV-19: C & T - inadequate conclusions by physician.

RIV-20: (no evidence of emergency) C - inadequate; T - no evidence of
evaluation by independent team; D - documentation 4 - 7 days after
admission.

RIV-21: C - inadequate (no clear statement regarding ambulatory care or
improvement).

RIV-22: C - not shown (no clear determination); T - no determination by
POC team, although State asserted emergency; D - documentation was done
more than 60 days before admission.

RIV-23: T - although State asserts emergency, no determination by POC
team (the only facility team documentation submitted was unsigned).

RIV-24: C - not shown; T - evaluation by Ph.D. only and not by POC team,
although State asserted emergency; D - the only evaluation submitted was
done more than six months before admission.

RIV-25: C - inadequate; T - not POC team, although State asserts
emergency; D - all documentation is from irrelevant time period.

RIV-26: C - inadequate and questionable whether emergency; T - no
evidence of evaluation by POC team.

RIV-27: C - inadequate (no statement about ambulatory care resources); T
- no evidence that evaluating psychologists were members of POC team.

RIV-28: C - not shown.

RIV-29: C - inadequate; T - recommendation of inpatient treatment not
signed by physician.

RIV-30: C - not clear; T - no physician and evaluation not by POC team,
although State asserted emergency.

Charter Vista

CVH-1: T & D - the one adequate certification was done by "L.C.S.W."
only; D - Inpatient Summary by physician not timely.

CVH-2: C - inadequate; T - no team.

CVH-3: C - not shown; T - evaluation by "L.C.S.W." only; D -
physician's summary done upon discharge.

CVH-4: C - not shown; T - evaluation by physician only.

CVH-5: C - inadequate; T - evaluation by "L.C.S.W." only; some
documents illegible.

CVH-6: C - not shown; T - physician only.

CVH-7: C - inadequate; T - evaluation by "L.C.S.W." only.

CVH-8: (questionable whether emergency) C - not shown; T - no
certification by POC team.

CVH-9: C - not shown; T - no physician.

Elizabeth Mitchell

EMCC-1: C - inadequate; T - Utilization Review Committee Form signed
only by "Coordinator," with no indication of Committee membership.

EMCC-2: (questionable whether emergency, as court order is for custody
with the State, which has placement authority) C - not shown; T - no
physician and no evidence of evaluation by independent team; no
documentation by POC team.

EMCC-3: C - inadequate; T - no certification conclusion by physician.

EMCC-4: C - not shown; T - evaluation by "L.C.S.W." only.

EMCC-5: C - not shown and questionable whether placement for psychiatric
condition; D - document not timely.

EMCC-6: C - inadequate; T - Intake Summary unsigned, no physician; D -
documentation is either undated or was done more than 60 days before
admission.

EMCC-7: 1st Admit: C - equivocal; T - no evaluation by POC team, as
required; D - evaluation not timely; O - court ordered placement more
than two years before admission. 2nd Admit: C - not done; T -
"L.C.S.W." only.

EMCC-8: 1st Admit: T - no certification conclusion by physician; D -
physician referral occurred more than three months before admission.
2nd Admit: No documentation.

EMCC-9: C - inadequate; D - independent team evaluation more than three
months before admission.

EMCC-11: C - not shown - no certification upon transfer. EMCC-12:
(no evidence of emergency, as court order pertains to custody and
occurred more than nine months before admission) C - inadequate; T - no
documentation of evaluation by POC team.

EMCC-13: C - not shown; T - no physician, and no evaluation by
POC team, although State asserted emergency.

EMCC-14: (questionable whether emergency placement, as court
order for custody) C - inadequate; T - Intake Form signed by untitled
treatment team members and no independent team.

EMCC-15: T - no physician.

EMCC-16: 1st Admit: C - inadequate; D - Utilization Review
Committee Form signed more than one month after discharge.

2nd Admit: No documentation.

EMCC-17: 1st Admit C - inadequate; T - "L.C.S.W." only and not
by POC team, as required; D - other evaluations were not timely. 2nd
Admit: no documentation.

EMCC-18: ( questionable whether emergency) C - inadequate; T -
team members untitled.

EMCC-19: C - not shown; T - no physician.

EMCC-20: D - documentation from irrelevant time period.

EMCC-21: T - no physician.

EMCC-22: C - not shown (statement that patient is "acceptable
candidate" for EMCC, but no determination).

EMCC-23: C - not shown; T - no physician and not independent as
required.

EMCC-24: C - not shown; T - no physician.

EMCC-25: C - not shown; T - not independent as required; D - not
timely; O - no documents submitted for First Admit.

EMCC-26: C - inadequate; T - no certification by physician.

EMCC-27: D - documentation irrelevant - concerns admission to
another facility after discharge.

EMCC-29: T - no documentation by POC team; D - documentation was
done more than five months before admission.

EMCC-30: T - although emergency asserted, no POC team evaluation;
D - documentation was done more than 60 days before admission. APPENDIX
B


D-8 The CCRC review on which the State relied is clearly inadequate
since the psychiatrist member did not attend the meeting in question.
(The minutes indicate that the CCRC questioned whether substituting a
non-physician for him would violate the utilization control
requirements.) The record contains, however, a discharge summary from
Mid-South Hospital typed a few days prior to the child's admission to
Devereux and signed by the child's attending psychiatrist and several
other qualified persons. The discharge summary contains a thorough
description of the child, with a specific recommendation for placement
at Devereux and reference to the child's needs and possibility for
improvement. There is no specific statement that alternatives were
considered, but the child's history of other placements is thoroughly
discussed and the attending psychiatrist and a psychologist (one of
those signing the discharge summary) had clearly indicated in their
intake summary that alternatives should be considered as part of the
discharge planning for the child.

RTC-4 The State said the patient was transferred to RTC from the Oaks
Treatment Center pursuant to physician's orders. A discharge summary
from the Oaks Treatment Center signed by a child psychiatrist and
psychiatric social worker states that, after consultation with Arkansas
Social Services, RTC staff, staff at the Oaks, and the child (who was 17
years old), placement at RTC appeared to be the "most appropriate plan"
for the child. The summary indicates that he was transferred because he
sought discharge from the Oaks, but that he had a need for continued
psychotherapy. The summary also indicates that he could maintain
treatment gains if he committed himself to the RTC treatment program.
Although there is no clear statement that treatment had to be given on
an inpatient basis and that alternative resources could not meet his
needs, there is evidence that his history of failed placements,
relationship with family, and need for independent living skills such as
could be taught at RTC were considered. The authors were also clearly
aware of the nature of the RTC program and considered it the "most
appropriate plan."

RTC-7 The State said this patient was transferred from Devereux
pursuant to physician's orders. The discharge summary from Devereux
(signed by a psychiatrist and a social worker who was a mental health
technician) indicates that the patient was not transferred because his
condition had improved so that he no longer needed care but because
"[i]n-depth psychiatric and clinical appraisals, as well as referral to
Patient Care Monitoring, indicate that [the evaluation and stabilization
unit's] treatment resources are exhausted." The recommendation was for
transfer to the RTC "for continuation of intensive therapy in a secure,
long-term Psychiatric setting." There is no specific statement about
alternative resources in the community, but the signers clearly were
aware of the history of previous placements and said that the child's
behaviors "require that he be observed and that firm, consistent
consequences be imposed for negative behaviors." Although there is no
specific statement about expected improvement, his intermittent
improvements while in the evaluation and stabilization unit at Devereux
are discussed.

RTC-12 The State said the CCRC approved the placement on 10/28/83. The
case review sheet for the CCRC meeting on that date does not indicate
who was present at the CCRC meeting. However, a timely discharge
summary from Mid-South Hospital, signed by a two psychiatrists and two
psychologists, indicates that the patient was referred to the
neuropsychological unit at Brown (a generic reference to RTC) to receive
ongoing treatment and care because "this discharge option would provide
the patient with the greatest possibility of maintaining his
stabilization." The summary further states: "It is felt that the
patient's depression and atypical organic brain syndrome are still major
issues for him. [In the setting at Brown School, he] will receive the
therapy, medication, and structure that he requires to maintain
stabilization."

RTC-13 The State said that this patient received CCRC approval on
2/23/84. The case review sheet, however, does not indicate who was
present at the CCRC meeting where placement at Brown was recommended. A
letter from two child psychiatrists at the Child Study Center recommends
"an institutional placement in a structured setting with a behavioral
modification approach," but states, "we do not believe that he will
profit from traditional psychotherapy." This letter does state that
follow-up care with respect to his medication is needed, and that the
patient cannot get his needs met in a foster home or any other family
situation. A letter from a physician states that, although evaluation
has not been completed, the patient "will need long-term residential
treatment as opposed to foster care." And an undated Child Study Center
staff summary, signed by a physician, stated that the patient would need
long-term residential treatment.

RTC-16 The State said the CCRC approved the placement on 6/24/83. The
minutes of this meeting, held more than three months prior to admission
to the RTC on 10/4/83, do not indicate that any physician was present.
However, a discharge summary from Mid-South Hospital, dated 10/2/83 and
signed by two psychiatrists and two psychologists, states: "It is felt
that he will need continuing treatment for some time, and that, even
with substantial treatment, the patient will always require some form of
adult supervision within the framework of a highly structured program.
Despite the poor prognosis . . . it is anticipated that the patient will
continue to make gains in continued treatment." The discharge summary
does not explicitly address alternative resources but indicates that the
child's mother and the Advocacy Board were involved in the discharge
planning and "group home" was listed as a "long-term goal."

SMTC-11 The State said the child was transferred on physician's orders.
The only document signed by a physician is a letter from the Southeast
Arkansas Mental Health Center (which operated a program called the
"ARK") to the county social services office, signed by the ARK's Medical
Director and a case coordinator (identified elsewhere in the
documentation as a psychologist). This letter states that the child
"would benefit from long-term intensive residential treatment" and that
her behavior and limited intellectual functioning level "seems to
require a highly structured and confining environment." The letter
further states that her previous reaction to the ARK program and her
recent antisocial behavior "would counter-indicate readmission to this
program." HCFA might consider this sufficient consideration of
alternative resources (notwithstanding that there is some question about
the sufficiency of the statements with respect to the level of treatment
needed, in light of previous statements about the child's needs arising
from her mental retardation).

AMHS-10 A discharge summary from Yellowstone (a residential treatment
program in Montana), signed by the child's treatment team (including a
physician and two other members who appear to have training in child
psychology), states that the team believed they could not effectively
treat the child in their milieu because of his escalating violent
behaviors and that he would benefit from a "more restrictive placement."
The summary also states that the team would most likely refer him to the
locked unit of a state mental hospital if he were a Montana resident.

AMHS-13 The State said it was producing documentation of a "physician's
order." The documentation does not include an order for placement by a
physician. However, a letter to Arkansas Social Services (ASS), dated
2/17/86 (prior to admission to AMHS on 4/1/86) and signed by the
physician medical director of San Marcos Treatment Center and two other
SMTC staff members, explains how the patient's behavior escalated after
she was told she would be discharged from SMTC (which had exhausted its
treatment resources). The letter suggests that, to avoid her harming
herself, the patient should be admitted to a state hospital "for
stabilization," so that ASS "can have the opportunity to search for an
appropriate program for her." The letter also states that the patient
"will require a setting which provides a high degree of containment and
a high degree of security. Under no circumstances can she be returned
to the home." The letter raises some questions about what level of
institutional care she needed on a long-term basis and states that the
"prognosis for her eventual response to treatment remains extremely
poor." HCFA might consider the statement about "stabilization"
sufficient under the particular circumstances here to evidence a
determination of need for hospitalization and of anticipated improvement
or prevention of regression.

RIV-6 A discharge summary from the Child Study Center at the University
of Arkansas Hospital, signed by two psychiatrists, states that it was
the consensus of the CSC treatment staff that the child would require
long-term follow-up treatment in an inpatient facility. The summary
addresses the child's improvement while being treated by the CSC with
the clear implication that further treatment could result in further
improvement. This documentation might be acceptable if HCFA would
consider the discharge summary sufficient to show that the placement
determination included consideration of alternative resources in the
community. The summary shows the child was placed at the CSC by a
court for evaluation and, specifically, a determination of whether
long-term treatment at Rivendell was "necessary." The CSC informed the
court of its decision "that long-term follow-up was indicated at
Rivendell." However, we do not know whether HCFA would accept this as
necessarily implying that the CSC determined a less restrictive
alternative could not meet the child's needs, or, if HCFA would reject
it, specifically why.

EMCC-10 The State said that the order of transfer from another facility
constituted a certification of need. The University of Arkansas
Discharge Summary immediately preceding admission was signed by two
physicians and contains a plan of transfer to EMCC for long term
residential care. It contains clear statements that the patient
required highly structured hospital treatment by a psychiatrist and
discusses the reasons that foster care had not been satisfactory.
However, this Discharge Summary also states that the patient was
discharged to EMCC "at the request of Social Services."

EMCC-28 The State said that the order of transfer from another facility
constituted a certification of need. The University of Arkansas
Discharge Summary immediately preceding admission was signed by two
physicians. It contains a clear statement that long term residential
treatment was needed "due to the seriousness of his psychopathology,"
and states that he was to be placed at EMCC. This document states that
the patient needed a more structured setting than therapeutic foster
care and that he had made some improvement in the past. The prognosis
was indicated to be "Guarded to poor without long term residential