Foundations of Behavioral Health v. Department of Public Welfare
Foundations of Behavioral Health v. Department of Public Welfare
Opinion of the Court
OPINION BY
Petitioner Foundations Behavioral Health (Foundations)
Prior to his admission into Foundations’ inpatient psychiatric facility, S.D. had run away from his father’s residence in New Jersey to reunite with his mother in Philadelphia. (R.R. at 5.) Subsequently, police captured S. D., and Foundations admitted him into its inpatient psychiatric facility on April 30, 2010, based on suicidal and homicidal concerns. (Id.) S.D. remained at Foundations’ inpatient psychiatric facility until August 27, 2010. (Id.) Private insurance covered the costs of S.D.’s hospitalization from April 30, 2010, through May 17, 2010. (Id.) From May 18, 2010, through August 27, 2010, DPW paid for S.D.’s hospitalization. (Id.)
On December 22, 2011, BPI issued a letter to Foundations, notifying Foundations that, inter alia, it was denying reimbursement retrospectively to Foundations at the level requested for the admission of S.D. from June 11, 2010, until August 27, 2010. (Id. at 5, 68, 70.) BPI based its decision to deny reimbursement to Foundations for this time period on BPI’s determination that the medical record for S.D. lacked documentation to justify the medical necessity for continued acute short-term inpatient hospitalization, and that by June 11, 2010, an alternate, lesser level of care was appropriate for S.D. (Id. at 5, 68.) BPI also determined that the medical record lacked documentation that discharge planning for placement was adequate or performed in a timely manner. (Id. at 68.) Consequently, BPI concluded that Foundations had violated numerous MA regulations and, thus, was not entitled to reimbursement. (Id. at 5, 68, 70.)
Foundations appealed BPI’s determination on January 20, 2012. Foundations indicated that it was appealing because S.D.’s medical record established that it was medically necessary to provide S.D. with acute inpatient mental health care until July 23, 2010. (Id. at 73.) The ALJ held an evidentiary hearing on March 7, 2012, at which representatives of both Foundations and DPW testified. Lina Atkinson, M.S.N., testified on behalf of Foundations in her capacity as nurse executive. Ms. Atkinson admitted that although S.D. was voluntarily admitted to Foundations’ inpatient psychiatric facility on April 30, 2010, and was discharged on August 27, 2010, Foundations was concerned only about obtaining reimbursement for June 11, 2010, to July 23, 2010. (Id. at 17, 23, 28-31, 37.) Ms. Atkinson further explained that, as of July 23, 2010, Foundations no longer believed that acute inpatient hospital care was medically necessary for S.D. At that point, he was waiting for a bed at a residential facility. Until that
Elaine Douglas, M.D., testified on behalf of DPW at the hearing. Dr. Douglas, a board certified psychiatrist employed as a consultant for DPW, testified that the insurance company which paid for the first part of S.D.’s stay at Foundations’ inpatient psychiatric facility stopped paying after May 17, 2010, because it believed that S.D. was ready for discharge and appropriate for outpatient care as of that date.
According to Dr. Douglas, it was BPI’s position that when Foundations was told to
Following the hearing, the ALJ issued an adjudication and accompanying recommendation to deny Foundations’ appeal. In so doing, the ALJ determined, most relevantly, that (1) Foundations indicated that it was only appealing the admission period of June 11, 2010, through July 23, 2010; (2) a graph that Foundations introduced at the hearing documenting S.D.’s care at Foundations’ inpatient psychiatric facility reflected dates that were after S.D.’s discharge date of August 27, 2010;
The ALJ reasoned that the graph, which was purported to be a transcription of S.D.’s physician notes in order to justify S.D.’s stay at Foundations’ inpatient psychiatric facility from June 11, 2010, to July 23, 2010, was a flawed and unacceptable verification of medical necessity in several respects. (Id. at 9.) The ALJ noted that a transcript of the physician’s notes is not the best evidence under the applicable regulations. (Id.) The ALJ also reasoned that the transcription was incompetent on its face, because it was dated June 11, 2011, through July 25, 2011, dates that were after S.D.’s date of discharge. The ALJ further noted that even if the transcribed document was reviewed under the premise that the dates should have read 2010 instead of 2011, it contained contradictory evaluations. (Id.) The ALJ indicated that one entry under the heading of “Physician Documentation” provided: “Rated high risk suicide, homicide, elopement, & assault.” (Id. at 9, 77.) The ALJ noted that another entry under the heading of “Nurse/Therapist” made on the same date provided: “[Pjhone interview Children’s Home in New Jersey. Waiting list. Maybe two weeks for opening.” (Id.) The ALJ reasoned that based on those remarks, it appeared that S.D. was considered dangerous and not ready for discharge while simultaneously on a waiting list for a vacancy as indicated by Dr. Douglas. (Id. at 9.) The ALJ indicated that under DPWs regulations, Foundations failed to provide adequate documentation to justify S.D.’s continued care at Foundations’ inpatient psychiatric facility after June 10, 2010. (Id.) Thus, the ALJ concluded that based on the facts, testimony, and evidence submitted, DPW was correct to deny payment retrospectively to Foundations for the period of June 11, 2010, through August 27, 2010. (Id.) By order dated April 13, 2012, BHA adopted the ALJ’s recommendation. (Id. at 1.) Foundations then petitioned this Court for review.
Foundations first argues that it is entitled to reimbursement for the care it provided to S.D. from June 11, 2010, to July 23, 2010. Foundations contends that it was medically necessary to provide S.D. with inpatient care for this time period, and that SJD.’s medical record is replete with documentation evidencing this need and S.D.’s receipt of such care. Foundations also notes that the record documents
The regulations governing DPW’s payment for inpatient psychiatric services rendered by a provider to MA recipients are found in Title 55, Chapter 1151 of the Pennsylvania Code. 55 Pa.Code §§ 1151.1-.101. “The MA [pjrogram provides payment for medically necessary inpatient services rendered to eligible recipients by enrolled inpatient psychiatric facilities. Payment is made subject to [Chapter 1151] and Chapter 1101 (relating to general provisions).” Id. § 1151.1. Pursuant to Section 1101.61 of the regulations, DPW “will only pay for medically necessary compen-sable services.” Id. § 1101.61; see also id. § 1101.66(a)(2) (“DPW pays for compensa-ble services or items rendered, prescribed or ordered by a practitioner or provider if the service or item is: ... [m]edically necessary.”). The regulations define “medically necessary” as follows:
Medically necessary — A service, item, procedure or level of care that is:
(i) Compensable under the MA Program.
(ii) Necessary to the proper treatment or management of an illness, injury or disability.
(iii) Prescribed, provided or ordered by an appropriate licensed practitioner in accordance with accepted standards of practice.
Id. § 1101.21.
Here, at the hearing before the ALJ, Ms. Atkinson stated that Foundations was
On appeal to this Court, Foundations again fails to cite to the hearing testimony or medical record demonstrating that Foundations provided medically necessary treatment to S.D. from June 11, 2010, to July 23, 2010. No such references appear in Foundations’ petition for review. In its brief, Foundations merely asserts that S.D.’s medical record contains ample documentation evidencing that his treatment at Foundations’ inpatient psychiatric facility was medically necessary, “as reflected in his treatment plan updates, primary therapist progress notes, interdisciplinary team progress notes, psychiatric daily and weekend progress notes, mental health technician progress notes, and group therapy progress notes.” (Foundations’ Br. at 10.) Upon review, however, we conclude that S.D.’s medical record also fails to demonstrate that S.D.’s treatment at Foundations’ inpatient psychiatric facility was medically necessary. As noted by Dr. Douglas, the treatment plan updates and progress notes “simply document[] what [S.D.] was doing and saying,” (id. at 49), rather than the actual treatment Foundations was providing to S.D. and why that treatment was medically necessary. The medical record also contains references to the circumstances surrounding S.D.’s discharge, particularly S.D.’s prolonged placement on the waitlist for transfer to the Children’s Home of New Jersey and S.D.’s frustration regarding his length of stay at Foundations’ inpatient psychiatric facility. These notations indicate that Foundations repeatedly postponed S.D.’s discharge date, and that it did so not because S.D. required continued inpatient hospital care, but because S.D. continued to remain on the waitlist for transfer to the Children’s Home of New Jersey. Thus, based upon our review of the record and the ALJ’s reasoning (as adopted by BHA) previously discussed, we conclude that BHA’s finding that Foundations failed to provide sufficient documentation that S.D.’s admission to Foundations’ inpatient psychiatric facility was medically necessary, as it applies to the time period of June 11, 2010, to July 23, 2010, is supported by substantial evidence. BHA, therefore, did not err in denying Foundations reimbursement for that time
Next, Foundations argues that it provided medically necessary care to S.D. from July 23, 2010, through S.D.’s date of discharge from Foundations’ inpatient psychiatric facility in August 2010. Foundations notes that although it conceded before the ALJ that S.D. may no longer have qualified for inpatient care and treatment as of July 23, 2010, it is undisputed that S.D. needed residential care and treatment after that date. Foundations, therefore, asserts that under Section 1151.48(a)(10) of DPW’s regulations,
Notably, Foundations did not object to BPI’s denial of reimbursement for the care Foundations rendered to S.D. from July 28, 2010, through S.D.’s August discharge date in its letter of appeal to BHA or at the hearing before the ALJ. In now arguing that it did not waive its right to claim reimbursement at a lower rate for this time period, Foundations explains that it did not make this claim below because it believed that it could not claim any payment for the services Foundations provided to S.D. for that time period as a result of discussions Foundations and BPI engaged in prior to the issuance of BPI’s letter, dated December 22, 2011. Foundations contends that it advised the ALJ that its appeal from BPI’s denial of reimbursement covered only the period of June 11, 2010, through July 23, 2010, because it was unaware that it had a right to payment at a lesser reimbursement rate, it was unfamiliar with the administrative process, and it previously informed BPI that it would not contest the denial of need for inpatient care as of July 23, 2010. Foundations notes that it challenges BPI’s denial of reimbursement from June 11, 2010, through August 27, 2010, in its petition for review, and Foundations argues that the omission below of the time period of July 23, 2010, to August 27, 2010, is harmless error. Foundations further contends that the inclusion of those days in the appeal to this Court does not prejudice DPW, and that it would be manifestly unjust, inequitable, and contrary to 42 C.F.R. § 413.9(c) (providing, in part, that “[i]t is the intent of Medicare that payments to providers of services should be fair to the providers”) to exclude that time period from the appeal.
We conclude that Foundations did waive its right to seek any reimbursement for the care Foundations provided to S.D. from July 23, 2010, through S.D.’s August discharge date. Pursuant to Pennsylvania Rule of Appellate Procedure 1551(a), “[n]o question shall be heard or considered by the court which was not raised before the government unit.”
Moreover, Foundations’ claim that it was unfamiliar with the administrative process is without merit. As a health care provider, Foundations “is charged with knowledge of applicable DPW regulations,” which would include those governing the appeal process. See Del Borrello v. Dep’t of Pub. Welfare, 96 Pa.Cmwlth. 507, 508 A.2d 368, 371 (1986); Divine Providence Hosp. v. Dep’t of Pub. Welfare, 76 Pa.Cmwlth. 188, 463 A.2d 118, 120 (1983). Foundations was notified of its right to appeal BPI’s decision and how to do so in the letter issued by BPI on December 22, 2011. (R.R. at 68-69.) Furthermore, to the extent that Foundations’ argument is based on the fact that Foundations was unrepresented by counsel below, the principles of waiver apply to parties acting pro se. See Griffith v. Workers’ Comp. Appeal Bd. (New Holland N. Am., Inc.), 798 A.2d 324, 328 (Pa.Cmwlth. 2002). We conclude, therefore, that Foundations waived its right to seek reimbursement for the care it rendered to S.D. from July 23, 2010, until S.D.’s discharge from Foundations’ inpatient psychiatric facility in August 2010.
Accordingly, we affirm the order of BHA.
ORDER
AND NOW, this 5th day of August, 2013, the order of the Department of Public Welfare, Bureau of Hearings and Appeals, is hereby AFFIRMED.
. Although Petitioner’s name appears as "Foundations of Behavioral Health” in the caption, the documents contained in the record indicate that Petitioner is actually named "Foundations Behavioral Health."
. In its determination, BPI actually indicates that it was denying reimbursement from June 11, 2010, through August 25, 2010. (Reproduced Record (R.R.) at 70.) The AU, however, determined that DPW paid for S.D.’s stay at Foundations’ inpatient psychiatric facility until August 27, 2010, which the ALJ deter
. DPW is the state agency that administers Pennsylvania’s Medical Assistance (MA) program and, as such, DPW is responsible for providing medical benefits to the poor in Pennsylvania. Commonwealth v. TAP Pharm. Prods., Inc., 36 A.3d 1112, 1122-23 (Pa. Cmwlth. 2011). BPI is tasked with conducting retrospective reviews of MA recipients' admissions into hospitals for compliance with MA regulations. (R.R. at 67.) As part of this process, BPI performs medical record reviews to ensure payment information agrees with the medical record documentation. (Id.)
. Ms. Atkinson noted that the medical record documentation clearly demonstrated that S.D. was suicidal, homicidal, and a high risk for elopement and assault from June Í1, 2010, to July 23, 2010, and that after that point, the documentation was ”sporadic[,] on and off.” (R.R. at 37.)
. Nicole Rufe, a licensed professional counselor, also testified at the hearing on behalf of Foundations, regarding the circumstances that precipitated S.D.’s admission into Foundations’ inpatient psychiatric facility. (R.R. at 33-34.) Rashida Akter, M.D., a board certified behavioral psychiatrist, testified as to S.D.’s treatment from July 26, 2010, until S.D.’s discharge. (Id. at 35-36.) Susan Gur-man, M.S., Grievance and Appeals Manager, attended the hearing on behalf of Foundations, but she did not testify.
. At the hearing, Dr. Douglas stipulated that the time period at issue in the appeal was from June 11, 2010, through July 23, 2010. (R.R. at 25.)
. DPW also admitted S.D.’s medical record into evidence at the hearing. (R.R. at 60.)
. Foundations also filed an application/petition for reconsideration with the Secretary of DPW, and a petition for review with this Court on May 10, 2012. The Secretary grant
. As this Court has previously stated:
In reviewing a DPW decision to deny reimbursement under the MA program, this Court’s scope of review is limited to determining whether any constitutional rights were violated, whether there was an error of law, or whether essential findings of fact are supported by substantial evidence. "Substantial evidence” is evidence which outweighs inconsistent evidence and which a reasonable person would accept as adequate to support a conclusion. In addition, it is within the discretion of the fact-finder to make credibility determinations and these determinations will not be disturbed on appeal.
Mazzitti & Sullivan Counseling Servs., Inc. v. Dep’t of Pub. Welfare, 7 A.3d 875, 882 n. 5 (Pa.Cmwlth. 2010) (citations omitted), appeal denied, 611 Pa. 628, 23 A.3d 543 (2011).
. Foundations also argues that DPW’s denial of reimbursement for the care Foundations provided to S.D. constitutes a regulatory taking in violation of Article I, Section 1 of the Pennsylvania Constitution and the Fourteenth Amendment to the United States Constitution. Foundations contends that this denial wrongfully imposes on Foundations a financial responsibility of the public and DPW under the MA program, and that in the interests of fairness and justice, DPW must pay Foundations appropriately. Because Foundations failed to raise this issue below, it is waived. See K.J. v. Dep’t of Pub. Welfare, 767 A.2d 609, 612 (Pa.Cmwlth.) ("Our case law is unwavering that when a party fails to raise an issue, even one of a constitutional dimension, in an agency proceeding, the issue is waived and cannot be considered for the first time in a judicial appeal.”), appeal denied, 567 Pa. 750, 788 A.2d 381 (2001).
. The term has been further clarified as follows:
A service, item, procedure or level of care that is necessary for the proper treatment or management of an illness, injury or disability is one that:
(1) Will, or is reasonably expected to, prevent the onset of an illness, condition, injury or disability.
(2) Will, or is reasonably expected to, reduce or ameliorate the physical, mental or developmental effects of an illness, condition, injury or disability.
(3)Will assist the recipient to achieve or maintain maximum functional capacity in performing daily activities, taking into account both the functional capacity of the recipient and those functional capacities that are appropriate of recipients of the same age.
55 Pa.Code § 1101.21a.
. As previously discussed, Foundations notes that the record shows that it made a good faith effort to place S.D. at an alternate care facility and that such a facility was not available. We note that if it was indeed medically necessary for Foundations to provide S.D. with inpatient psychiatric care from June 11, 2010, to July 23, 2010, such that he could not be discharged to a lower care facility, as Foundations argues, the availability of a lower care facility would be immaterial for purposes of determining Foundations’ reimbursement eligibility for that time period. Moreover, if Foundations was keeping S.D. at its inpatient psychiatric facility during this time period simply because he needed some form of care, albeit not inpatient psychiatric care, and no lesser treatment facilities were available despite Foundations’ good faith efforts to locate one, we have previously held that these circumstances do not warrant reimbursement in a similar context. See Mercy Hosp. v. Dep't of Pub. Welfare, 89 Pa.Cmwlth. 192, 492 A.2d 104, 107 (1985) (denying reimbursement to acute care facility despite facility’s good faith effort to transfer patient who no longer needed acute care to another facility, concluding that “the issue is not whether [the acute care facility] had made a diligent effort to transfer [the patient,] but whether the hospital complied with DPW regulations”); Easton Hosp. v. Dep’t of Pub. Welfare, 76 Pa.Cmwlth. 39, 463 A.2d 94, 95-96 (1983) (denying reimbursement at lower rate to acute care facility for care rendered to patients remaining at facility due to unavailability of hospital beds at lower care facilities, noting "that reimbursement is not dependent upon the level of care for which reimbursement is being sought, but rather upon compliance with the standards established by th[e applicable] regulation”); Temple Univ. v. Dep't of Pub. Welfare, 47 Pa.Cmwlth. 22, 407 A.2d 92, 93-94 (1979) (upholding DPW regulation governing reimbursement to hospitals providing care to MA patients for whom some care, though not acute care, is necessary and for whom no space at lower care facility is available, noting that regulation did not provide DPW with discretion to deny reimbursement and that reimbursement is made only at rate established for particular service and only when care is provided by a facility certified to provide that service), aff'd, 490 Pa. 207, 415 A.2d 413, appeal dismissed, 449 U.S. 1005, 101 S.Ct. 555, 66 L.Ed.2d 464 (1980). But see Dep’t of Pub. Welfare v. Temple Univ., 21 Pa.Cmwlth. 162, 343 A.2d 701, 704 (1975) (holding that under regulation giving DPW discretion to determine reimbursement to hospitals in cases where patient no longer needs acute care but does need lower level of care, it was abuse of that discretion for DPW to deny reimbursement to hospitals which make diligent effort to locate lesser care facility placement for patients). Foundations did not argue that it was entitled to reimbursement at a lower rate for the care it rendered to S.D. from June 11, 2010, to July 23, 2010, until oral argument before this Court. Foundations also did not challenge below BPI’s determination that the medical record lacked documentation that discharge planning for placement was adequate or performed in a timely manner. Thus, these issues are waived. See M.T. v. Dep't of Educ., 56 A.3d 1, 10 n. 12 (Pa.Cmwlth. 2010) (“The failure of a party properly to raise and preserve an issue before an administrative agency results in waiver of that issue before this Court.”); Van Duser v. Unemployment Comp. Bd. of Review, 164 Pa.Cmwlth. 96, 642 A.2d 544, 548 n. 3 (1994) ("Issues not briefed are waived.”). Furthermore, given the precedent cited above, it is not readily apparent that such a claim would be successful under DPW's regulations applicable to this matter. See 55 Pa.Code § 1151.48 (outlining noncom-pensable services and items for inpatient psychiatric facilities).
. Section 1151.48(a)(10) of the regulations provides;
(a) [DPW] will not pay an inpatient psychiatric facility for:
*857 (10) Days of care for recipients who no longer require psychiatric inpatient care. [DPW] does make payment to an inpatient psychiatric facility for skilled nursing or intermediate care provided for a recipient in a certified bed in a certified and approved hospital-based skilled nursing or intermediate care unit in accordance with Chapter 1181 (relating to nursing facility care) or successor provisions.
55 Pa.Code § 1151.48(a)(10).
. This rule is subject to exceptions that are not applicable to this matter. See Pa.R.A.P. 1551(a)(l)-(3).
. As for Foundations’ contention that it was unaware of its right to reimbursement at a lower rate, we note that, as discussed previously, it is unclear that Foundations has such a right. Nevertheless, because we conclude that Foundations has waived its ability to claim any reimbursement for the care it rendered to S.D. from July 23, 2010, to S.D.'s date of discharge in August 2010, we need not address here whether Foundations can claim reimbursement at a lower rate for this time period.
Case-law data current through December 31, 2025. Source: CourtListener bulk data.