3 No. 85
In the Matter of Elcor Health
Services Inc.,
Appellant, v. Antonia Novello, as Commissioner
of Health of the State of New
York et al.,
Respondents.
2003 NY Int. 88
June 26, 2003
This opinion is uncorrected and subject to revision before
publication in the New York Reports.
Thomas G. Smith, for appellant. Kathleen M. Treasure, for respondents. New York State Health Facilities Association, amicus curiæ.
CIPARICK, J.:
The primary question presented by this appeal is
whether deference should be afforded to the Department of
Health's interpretation of 10 NYCRR 86-2.30(i)(27) to require
actual improvement by a patient before a residential health
care facility can receive reimbursement for restorative therapy.
We conclude that the Department's interpretation is not arbitrary
and capricious, or irrational, and is therefore entitled to
deference.
When a patient is admitted to a residential health care
facility (RHCF) or nursing home, his or her physician is required
to prepare a written plan of care for therapy services including
rehabilitative therapy. A physical therapist then determines
what specific type of rehabilitative therapy need be provided.
Under the Medicaid reimbursement system, RHCFs are entitled to
different rates of reimbursement depending in part upon the type
of care their patients require and receive. In order to
determine the appropriate reimbursement rate, each patient is
placed into one of 16 categories known as Resource Utilization
Groups (RUGs) ( see New York State Assn. of Counties v Axelrod, , 78 NY2d 158, 162 [1991]; see generally Jewish Home & Infirmary of
Rochester v Commissioner of Dept. of Health, , 84 NY2d 252 1994).
The 16 RUGs are further divided into five hierarchical groups
based on the patient's ability to perform the activities of daily
living (ADL).
A qualified registered nurse assessor places each
patient into a RUG category by completing a patient review
instrument (PRI) ( see 10 NYCRR 86-2.30[c][2]). PRIs must be
completed for each patient every six months ( see 10 NYCRR 86-
2.11[b][1]); there is, however, an opportunity to evaluate new
patients every three months ( see 10 NYCRR 86-2.11[b][2]). Each
RUG category is assigned a numerical value based upon the
resources necessary to care for that type of patient, with a
greater value assigned to categories that require more resources.
The weighted average of a facility's patients in each category is
its case mix index (CMI) ( see 10 NYCRR 86-2.10[a][5]). As a
result, the direct component[1]
of a facility's Medicaid
reimbursement rate ( see 10 NYCRR 86-2.10[c]) reflects its CMI --
the higher the CMI, the higher the reimbursement rate. In other
words, a facility that has more patients requiring intensive
services will receive a greater reimbursement rate.
Several PRI questions call for documentation
qualifiers, which require certain medical record support in order
to classify a patient properly. At issue here are documentation
qualifiers for maintenance therapy and restorative therapy. To
satisfy the documentation qualifier for restorative therapy, the
instructions require that [t]here is a positive potential for
improved functional status within a short and predictable period
of time. Therapy plan of care and progress notes should support
that patient has this potential/is improving (10 NYCRR 86-
2.30[i][27]). The documentation qualifier for maintenance
therapy requires that [t]herapy is provided to maintain and/or
retard deterioration of current functional/ADL status. Therapy
plan of care and progress notes should support that patient has
no potential for further or any significant improvement (10
NYCRR 86-2.30[i][27]).
The Department also prepared a Clarification Sheet to
assist nursing homes in completing the PRIs. Explaining the
documentation qualifier for restorative therapy, the
Clarification Sheet states that there must be a positive
potential for significant improvement in a resident's functional
status within a short and predictable period of time.
Consequently, the therapy plan of care should support that the
resident has this potential and is improving. The Clarification
Sheet also indicates that restorative therapy must be provided
for four consecutive weeks, five times a week for a total of at
least 2.5 hours.
In May 1999, Elcor submitted its PRI data to the
Department. In a subsequent audit to verify the accuracy of
Elcor's PRI results ( see 10 NYCRR 86-2.30[e][5]), the Department
concluded that 29 of Elcor's patients had been improperly
classified in the restorative therapy category.[2]
Although the
patients' physicians had ordered restorative therapy, the audit
concluded that because the patient did not respond to therapy or
improve, they should have been placed in the maintenance therapy
-- as opposed to restorative therapy -- category. As a result,
Elcor's CMI and corresponding Medicaid reimbursement were
reduced. In addition, the Department directed Elcor to contract
with an approved outside party to complete its PRIs ( see 10 NYCRR
86-2.30[f][1][ii]).
Elcor brought an article 78 proceeding to challenge the
Department's determination downgrading the 29 residents from
restorative therapy and adjusting the facility's CMI. Supreme
Court found that the requirement that residents demonstrate
actual improvement was a regulation that had never been properly
promulgated or filed by the Department.[3]
The court partially
granted the petition by annulling the Department's adjustment to
Elcor's CMI; it also reversed the Department's directive to
require an outside party to complete the PRIs and remitted to the
Department for a recalculation of Elcor's reimbursement rate
without using the actual improvement standard. The Appellate
Division denied the petition in its entirety, determining that
the actual improvement standard was an interpretation of the
Department's regulations and not an unpromulgated rule in
violation of the State Administrative Procedure Act (295 2
772, 773 [2002]). The court also found that the Department's
interpretation of its regulation -- requiring a resident to have
both the potential for improvement and to actually improve -- had
a rational basis and was entitled to deference. This Court
granted Elcor leave to appeal and we now affirm.[4]
Initially, we reject Elcor's contention, and Supreme
Court's holding, that the actual improvement standard is an
unpromulgated rule being applied without first being adopted
through the steps set forth in the State Administrative Procedure
Act ( see generally State Administrative Procedure Act § 202).
Specifically exempted from the definition of rule under the
Administrative Procedure Act are forms and instructions,
interpretive statements and statements of general policy which in
themselves have no legal effect but are merely explanatory
(State Administrative Procedure Act § 102[2][b][iv]). As we hold
today, the actual improvement standard provided by the Department
in the Clarification Sheet is a reasonable interpretation of the
restorative therapy documentation qualifier, and thus is not an
unpromulgated rule.
Having found the actual improvement standard to be
interpretive, we next turn to the question whether such agency
interpretation is arbitrary and capricious, or irrational. We
reject Elcor's argument that the actual improvement standard is
in violation of a federal mandate that nursing homes must
provide services and activities to attain or maintain the highest
practicable physical, mental, and psychosocial well-being of each
resident in accordance with a written plan of care * * * (42 USC
1396r[b][2]).
We note that the Second Circuit found a similar claim
to be without merit in Concourse Rehabilitation & Nursing Ctr.,
Inc. v Whalen (249 F3d 136 [2001]), holding that the actual
improvement standard was not arbitrary and capricious because the
State considered the costs of furnishing restorative therapy as
required by the federal statute ( see Concourse, 249 F3d at 146).
The court also found no actual conflict between the State's
interpretation of its Medicaid plan and federal law for
preemption purposes, stating that [o]ne might as easily presume
that the plan will result in more careful monitoring of patient's
progress to ensure that unnecessary rehabilitative services are
not being prescribed, or that the actual improvement standard
will encourage providers to provide effective treatment
( Concourse, 249 F3d at 146). We see no reason to differ with the
Second Circuit's holding that the actual improvement standard
does not violate federal Medicaid law.
The Concourse court, however, left open the question as
to whether such interpretation violates State Medicaid law,
observing that there exists a colorable claim that the State's
use of the 'actual improvement' standard -- which appears nowhere
in the State plan -- conflicts with the relevant State qualifiers
and therefore violates the State's plan ( Concourse, 249 F3d at
147). Elcor observes that reimbursement rates reasonable and
adequate to meet the costs which must be incurred by efficiently
and economically operated facilities are required by statute
(Public Health Law § 2807[3]) and that application of the actual
improvement standard impermissibly diminishes reimbursement
rates. However, the Public Health Law can reasonably be read to
support the actual improvement standard imposed by the Department
since the statute specifically contemplates efficiently and
economically operated facilities (Public Health Law § 2807[3]).
Hence, it is not contrary to its purpose to allow reimbursement
only for those patients who demonstrate actual improvement.
Elcor finally argues that the Department's
interpretation of its regulation requiring patients to actually
improve before reimbursement will be given for restorative
therapy is irrational, urging that a plain reading of the
restorative therapy qualifier only requires the patient to have
the potential for improvement. Elcor maintains the Department's
use of the virgule (or slash) in the regulation -- has this
potential/is improving -- means or. That the Department's
interpretation might not be the most natural reading of the
regulation, or that the regulation could be interpreted in
another way, does not make the interpretation irrational. [T]he
commissioner's interpretation of a regulation is 'controlling and
will not be disturbed in the absence of weighty reasons' ( Matter
of Cortlandt Nursing Care Center v Whalen, , 46 NY2d 979, 980
[1979] quoting Matter of Sigety v Ingraham, , 29 NY2d 110, 114
[1971]). The Department interprets the qualifier to require the
plan of care to demonstrate the patient has potential for
improvement at the beginning of therapy and the progress notes to
demonstrate actual improvement during therapy. This
interpretation does not conflict with the plain language of the
regulation, is neither arbitrary and capricious nor irrational
and, as a result, should not be disturbed ( see Matter of Marzec v
DeBuono, , 95 NY2d 262, 266 [2000]).
Elcor's remaining contentions are likewise without
merit.
Accordingly, the order of the Appellate Division should
be affirmed, with costs.
Footnotes
1 A facility's Medicaid reimbursement rate is made up of
four components: direct, indirect, noncomparable and capital ( see
10 NYCRR 86-2.10[b][1][ii]). To determine a facility's direct
component, its allowable costs for, among other things, nursing
administration, patient activities, physical therapy and
occupational therapy are considered ( see 10 NYCRR 86-2.10[c]).
2 Of the 29 residents, 16 were downgraded from restorative
therapy because their last therapy session had been on the last
day of the PRI assessment period. Twelve other residents were
downgraded because there had been no medical event precipitating
therapy and either all of the relevant qualifiers were not met or
the reported service was not done at all. An additional resident
was downgraded because the PRI indicated the resident received
physical therapy when the actual service was occupational
therapy.
3 Supreme Court found the requirements that a patient
experience a precipitating event or that the PRI be completed
other than day of discharge did not need to be promulgated as
regulations if they were not the only factors considered in
determining the correct therapy category for a patient. These
determinations are not at issue here.
4 The Department's argument that it had an appeal as of
right to the Appellate Division from the Supreme Court judgment
is not properly before this Court because the Department is not
aggrieved by the Appellate Division order, which granted the
Department leave to appeal to that court ( seeCPLR 5511 ).