# Amicus Curiae Brief — Wilder v. Virginia Hospital Assn. > Briefs, arguments, decisions, and more. URL: https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0517%3A13 ## Record - **Collection:** Supreme Court brief - **Document type:** Amicus Curiae Brief - **Published:** January 1, 1990 - **Citation:** 496 U.S. 498 ## Text — 51 LED 8 occ No. 88-2043 JOSEPH F SPANIOL, JR, | ene IN THE Supreme Court of the United States OCTOBER TERM, 1989 GERALD L. BALILEs, et al., Petitioners, v. THE VIRGINIA HOSPITAL ASSOCIATION, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit BRIEF OF THE AMERICAN HEALTH CARE ASSOCIATION, AMERICAN HOSPITAL ASSOCIATION, AMERICAN ASSOCIATION OF HOMES FOR THE AGING, NATIONAL COUNCIL ON THE AGING, INC. AS AMICI CURIAE ON BEHALF OF RESPONDENT (Additional Amici Curiae Listed in Appendix) Rex E. Lee THOMAS C. Fox CARTER G. PHILLIPS Counsel of Record Mark E. HADDAD Joe, M. HAMME Sip_ey & AUSTIN EUGENE TILLMAN 1722 Eye Street, N.W. W. THomas McGoucu, Jr. Washington, D.C. 20006 THOMAS N. BULLBIT, JR. (202) 429-4000 Reep SMITH SHAW & McCLAY 1200 18th Street, N.W. Jerrrey M. TESKE Suite 1000 MarJorie H. CAREY AMERICAN HOSPITAL ASSOCIATION 840 N. Lake Shore Drive Chicago, Illinois 60611 (312) 280-6700 Washington, D.C. 20036 (202) 457-6100 WILSON - Eres Painting Co Inc. - 789-0096 - WaswincTron, D.C. 20001 QUESTION PRESENTED Whether 42 U.S.C. § 1983 affords hospitals and nurs- all n TABLE OF CONTENTS QUESTION PRESENT EDB TABLE OF AUTHORTITI E88 INTEREST OF AMICI CURIAE ...... BACKGROUND ON THE MEDICAID PROGRAM AND STATE RATESETTING METHODOLOGIES.. ARGUMENT: RESPONDENT HAS A CAUSE OF ACTION UN- DER 42 U.S.C. § 1983 AGAINST STATE OFFI- CIALS FOR VIOLATION OF THE FEDERAL MEDICAID REIMBURSEMENT STANDARD IN THE BOREN AMENDMENT ..... I. A SECTION 1983 ACTION EXISTS FOR VIO- LATIONS OF FEDERAL STATUTORY RIGHTS UNLESS CONGRESS INTENDED NOT TO CONFER ENFORCEABLE RIGHTS UPON THE PUTATIVE PLAINTIFF, OR IN- TENDED A COMPREHENSIVE AND EX- CLUSIVE REMEDIAL SCHEME IN THE EN- ACTMENT ITSELF TO SUBSTITUTE FOR SECTION 1983 — — — A. The Medicaid statute creates an enforce- able right” to provider reimbursement by rates that are reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facili- 2 * (10 (iii) 11 11 iv TABLE OF CONTENTS—Continued - Page B. Congress has not forcelosed private enforce- ment of the Boren Amendment by providers in the Medicaid statute itself —...................... 18 II. RECOGNIZING A SECTION 1983 REMEDY WOULD NOT OPEN THE FLOODGATES TO FEDERAL COUFT REVIEW OF INDIVID- UAL RATE DISPUTES, BUT WOULD PRO- VIDE A MEANINGFUL METHOD OF REME- DYING SYSTEMATIC VIOLATIONS OF THE BOREN AMENDM ENT 25 A. Availability of a section 1983 remedy has not produced a flood of Boren Amendment liti- gation ... 4 Res OE Se 25 B. The absence of a remedy would permit State Plans which contain egregious violations of the Boren Amendment to continue in opera- — . a en 27 . ——ñ—ñꝛ —— ů — —— — 30 * TABLE OF AUTHORITIES CASES Page AMISUB (PSL) v. Colorado Dep’t of Social Serv- ices, 879 F.2d 789 (10th Cir. 1989), petition for cert. filed, 58 U.S. L. W. 3322 (U.S. Oct. 25, 1989) (No. 89-682) .. e eee een 19, 25-27 Alabama Hosp. Ass'n v. Beasley, 702 F.2d 955 (llth Cir. 1988) .......................... 1 25 Albert Einstein Medical Center v. White, Civ. No. 88-8831 (E. D. Pa. filed Nov. 17, 1988) 29 California Hosp. Ass'n v. Schweiker, 559 F. Supp. 110 (C. D. Cal 1982), aff'd, 705 F. 2d 466 (9th ER 7 .... 19 Children's Memorial Hosp. Ass'n v. Illinois Dep't of Public Aid, 562 F. Supp. 165 (N. D. III. 1983) 26 Coos Bay Care Center v. Oregon Dep't of Human Resources, 803 F.2d 1060 (9th Cir. 1986), cert. granted, 481 U.S. 1036, vacated as moot, 484 D ee 25 . Cort v. Ash, 422 U.S. 66 (197500) 12 ) Golden State Transit Corp. v. City of Los Angeles, No. 88-840, slip op. (U.S. Dec. 5, 198997 13 Illinois Hosp. Ass’n v. Illinois Dep’t of Public Aid, 576 F. Supp. 360 (N. D. III. 1983) — Maine v. Thiboutot, 448 U.S. 1 (1980) 9,11 Mary Washington Hosp., Inc. v. Fisher, 635 F. Supp. 891 (E. D. Va. 19880))))⸗n x Michigan Hosp. Ass’n v. Dep’t of Social Services, No. L89-40070 CA (W.D. Mich. filed July 25, AEST ˙—ecr ! . 29 Middlesex County Sewerage Auth. v. National Sea Clammers Ass'n, 453 U.S. 1 (19817 11, 12, 18 Montoya v. Johnston, 654 F. Supp. 511 (W.. 1 T0000 26 Nebraska Health Care Ass'n v. Dunning, 778 F. 2d 1291 (8th Cir. 1985), cert. denied, 479 U.S. EE GEREIEED ccccocsrscnsccnaseresscessnsessnnensensvasnescemmmanneasanes 25, 26 vi TABLE OF AUTHORITIES—Continued Page Nebraska Health Care Ass’n v. Dunning, [1984 Transfer Binder] Medicare & Medicaid Guide (CCH), 734.100 (D. Neb. July 9, 1984), aff’d in part and vacated in part on other grounds, 778 F.2d 1291 (8th Cir. 1985), cert. denied, 479 U.S. 1063 (1987) 28 Ohio Hosp. Ass’n v. Dep’t of Social Services, No. 88-04961, slip op. (Oh. Ct. Claims. Nov. 19, 1988), appeal pending, No. 88-AP-1084 (Oh. Ct. App.) . CS OS a 29 Pennhurst State School and Hosp. v. Halderman, 451 U.S. 1 (1981) ...... 11, 18, 14 Rosado v. Wyman, 397 U.S. 397 (1970) 6 29 St. Tammany Parish Hosp. Service Dist. v. Dep’t of Health and Human Resources, 677 F. Supp. 455 (E. D. La. 1988) ccc ccccccceeeeceeseeeeeees 26 Silver v. Baggiano, 804 F.2d 1211 (11th Cir. 11717 —Ä—Ä— eI OE 25 Smith v. Robinson, 468 U.S. 992 (1984) 1 18 State Tax Comm'n v. Administrative Hearing Comm'n, 641 S. W. 2d 69 (Mo. banc 1982) 23 Thomas v. Johnston, 557 F. Supp. 879 (W. D. Tex. 1 17, 26 Virginia Hosp. Ass'n v. Baliles, 868 F.2d 653 (4th Cir. 1989), cert. granted in part, 110 S. Ct. I A * ace Rs le ie 25 Washington State Health Facility Ass’n v. Wash- ington Dep’t of Social and Health Services, 698 F.2d 964 (9th Cir. 1982) 26 West Virginia Univ. Hosps., Inc. v. Casey, 885 F.2d PR ARM . 12, 25, 26, 28 Wright v. City of Roanoke Redevelopment and Housing Auth., 479 U.S. 418 (1987) 9, 12, 13, 18 Yapalater v. Bates, 494 F. Supp. 1349 (S. D. N. v. 1980), aff'd per curiam, 644 F.2d 181 (2d Cir. 1981), cert. denied, 455 U.S. 908 (1982) 25 vii TABLE OF AUTHORITIES—Continued STATUTES Page Medicaid Act, 42 U.S.C. 1396 et seq.: 42 U.S.C. § 1896 (1982 & Supp. 1987) 4 42 U.S.C. § 1896a (1982 & Supp. 1987) 8 4 1 — 11 42 U.S.C. 5 1396 (a) (13) (A) (1982 & Supp. r 5, 9, 16 42 U.S.C. § 1396 (a) (22) (D) (1982 & Supp. ＋ꝛꝓI— — 17 42 U.S.C. § 1396 e (1982 & Supp. 1987) 7, 14 42 U.S.C. § 1396 (a) (37) ((g)) 18 1 0 passim FE AE Se 11 Medicare and Medicaid Anti-fraud and Abuse Amendments of 1977, Pub. L. No. 95-142, „ —— 1.2 — 18-19 Omnibus Reconciliation Act of 1980, Pub. L. No. 96-499, § 962 (1980): 5 Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-85, § 2178 (1981774 5 Omnibus Budget Reconciliation Act of 1987, Pub. L. No. 100-208, 5 4211 (b) (198777 15-16 REGULATIONS 42 C. F. R.: 4 Section 430.10 (198)) cece. 4,19 Section 430.12 (198) 6 Section 430.15 (1980ꝙĩ060.c cece 6, 11 r 19 e ...... 7 e mx 7 Section 430.35 (a) (1988) 7, 14 r 14 Section 440.230 (198)));;:;::: „% 17 Section 447.205 (1988) 8 17 Section 447.250 (198) 14, 16, 19 viii TABLE OF AUTHORITIES—Continued Page Section 447.252 (1988) 6 = 5 Section 447.253 (1988) 9 Section 447.253 (a) (1989))) 6 Section 447.253 (b) (198) 5 Section 447.253 (b) (1) (1989) 6 Section 447.253 (e) (198) 6, 16, 20 Section 447.255 (1988) 14 45 C. F. R.: r .... 11, 19 . 11 D ˙ ST Ce ae 19 Section 250.30 (a) (3) (iv) (1976) 15 OTHER AUTHORITIES Hamme & Kanner, Long-Term Care Reimburse- ment Issues: Pro and Contra Aids for Litigants, in 1989 Health Law Handbook (Clark Boardman Co., A. Gosfield, Ed. 198999 26 H.R. Conf. Rep. No. — ee oe oes (1987) . 16 H.R. Rep. No. 1122, 94th Cong., 2d Sess. (1976) 15 H.R. Rep. No. 1479, 96th Cong., 2d Sess. (1980) 15 S. Rep. No. 139, 97th Cong., Ist Sess. (1981) 5 S. Rep. No. 471, 96th Cong., Ist Sess. (1979)... 17 S. Rep. No. 1240, 94th Cong., 2d Sess. (1976) 15 135 Cong. Rec. (1989) : ...... 16 ne 16 48 Fed. Reg. (1983) r ˙ ˙% 7 24 7 24 IN THE Supreme Court of the United States OCTOBER TERM, 1989 No. 88-2043 GERALD L. BALILEs, et al., . Petitioners, THE VIRGINIA HOSPITAL ASSOCIATION, Respondent. On Writ of Certiorari to the United States Court of Appeals for the Fourth Circuit BRIEF OF THE AMERICAN HEALTH CARE ASSOCIATION, | AMERICAN HOSPITAL ASSOCIATION, AMERICAN ASSOCIATION OF HOMES FOR THE AGING, NATIONAL COUNCIL ON THE AGING, INC. AS AMICI CURIAE ON BEHALF OF RESPONDENT (Additional Amici Curiae Listed in Appendix) INTEREST OF AMICI CURIAE Amici are an alliance of national organizations rep- resenting health care providers that participate in the Medicaid program, and recipients of medical assistance under that program. Amici’s shared interest in this case is their concern that States not adopt Medicaid Plans designed systematically to under-reimburse providers, and thereby jeopardize Medicaid recipients’ access to qual- ity health care. Amici recognize that assuring high qual- ity hospital and nursing home services is a complex proc- ess, requiring the hard work and cooperation of many dedicated health care professionals and nonprofessional staff. Amici also know that there is a vital link between the ability of providers to assure the availability to pa- tients of high quality care and the adequacy of the pay- ment they receive for such care. Because Medicaid dol- lars represent approximately 10 percent of the gross reve- nues of hospitals, and 43 percent of the gross revenues of nursing homes, amici believe that providers must have the means to assure that the federal standard for Medi- caid reimbursement of such institutions is met by each State’s Medicaid program. Amicus American Health Care Association (“AHCA”: and its affiliated State associations are the largest na- tional trade association representing the long term care (nursing home) industry. AHCA is a private, volun- tary, nonprofit federation of 51 affiliated State associa- tions representing more than 10,000 nonprofit and for- profit long term care providers which care for over one million nursing home patients. Many such patients are funded under the Medicaid program, and Medicaid spends annually approximately $40 billion (State and federal funds) on nursing home services for Medicaid recipients. Founded in 1949, AHCA remains dedicated to the promo- tion of standards for professionals in long term health care delivery and quality care for residents. Amicus American Hospital Association (“AHA”) is a private, voluntary, nonprofit, national trade association of hospitals whose mission is to promote the welfare of the public through leadership and assistance to its mem- bers in the provision of better health care and services. With approximately 5,500 institutional members, the AHA represents a majority of the nation’s acute care hospitals. A significant majority of these hospitals par- ticipate in the Medicaid program. Because more vide rates that are adequate to guaran ity medical care for those served through the Medicaid program. Amicus American Association of Homes for the Ag- ing (“AAHA”) and its affiliated State associations national nonprofit trade association representing 3.500 not-for-profit facilities providing health care, ing, continuing care retirement programs, and commu- nity services to more than 500,000 older individuals. Seventy-five percent of AAHA homes are affiliated with religious organizations; the remaining are sponsored Ly in a manner which enhances each resident’s sense of self- worth and dignity. Most of the members represented by AAHA and its 37 State affiliates participate in the Medi- caid program. Amicus National Council on the Aging, Inc. (“NCOA”), founded in 1950, is a national, nonprofit organization. Its membership includes individuals, voluntary agencies and associations (social, health, education, housing, re- ligious, civic, ete.), business organizations and labor un- ions united by a commitment to the principle that the nation’s older people are entitled to lives of dignity, se- curity, physical, mental and social well-being and to full participation in society. NCOA conducts research, under- takes demonstration programs, sets standards, dissemi- nates information and promotes the development of a continuum of opportunities and quality services with, by, for, and to older persons. NCOA has over 7,000 mem- bers, including nonprofit adult daycare programs, com- munity-based long term care organizations, senior hous- M The decision of the Court of Appeals in this case, rec- Medicaid statute does not withdraw 4 dicate the right to reimbursement through payment rates that satisfy the federal standards contained in the Medi- eaid statute. Without the opportunity for federal judi- cial review, the quality of care that hospitals and nurs- present their views concerning the important issues pre- sented by this case.“ BACKGROUND ON THE MEDICAID PROGRAM AND STATE RATESETTING METHODOLOGIES A. The Medicaid Program Medicaid is a cooperative federal-State program whose purpose is to provide federal funding to States to assist them in furnishing medical assistance, rehabilitation, and other services to the indigent. 42 U.S.C. § 1396 (1982 & Supp. 1987). Like other federal-State programs, States may choose between complying with the conditions of the statute or foregoing federal funding. To participate in the program, a State must first establish a State Plan for medical assistance (“State Plan”). Id. The State Plan is defined by regulation as a comprehensive written state- ment that describes the nature and scope of the State’s Medicaid program and conforms with the requirements of the Medicaid statute, regulations, and other official issuances of the Department of Health and Human Serv- ices (“HHS”). 42 C.F.R. § 430.10 (1988). The federal statutory requirements that a State Plan must meet are set forth in section 1902 of the Social Security Act. 42 U.S.C. § 1396a (1982 & Supp. 1987). The operative language of section 1902 is mandatory— the section begins with the statement, “A State Plan for medical assistance must provide, and proceeds to enumerate 50 requirements. Among these requirements is 1 Pursuant to Rule 36 of the Rules of this Court, the parties have consented to the filing of this brief. The parties’ letters of consent have been filed with the Clerk of the Court. the federal standard for reimbursement of hospitals and nursing homes, commonly known as the Boren Amend- ment. 42 U.S.C. § 1396a(a)(13)(A) (1982 4 Supp. 1987).* This provision states that: a State Plan for medical assistance must provide for payment .. of the hospital services, skilled nurs- in conformity with State and Federal laws, regulations, and ty and safety standards and to assure that individuals for medical assist- ance have reasonable access . . to inpatient hospital services of adequate quality. Id. (emphasis supplied). At the federal level, Medicaid is administered on behalf of HHS by the Health Care Financing Administration (“HCFA”). HCFA regulations implementing the Boren Amendment require that the State Plan specify compre- hensively the methods and standards used by the State Medicaid agency to set payment rates that are consistent with federal Medicaid requirements. 42 C.F.R. § 447.252 (1988). In addition, executing the statutory mandate, the regulations require that the State make certain find- ings on an annual basis, and whenever it submits a Plan or amendment for approval. 42 C. F. R. 447.253 (b (1988). Among the findings required is that the State 2 Section 1902 (a) (13) (A) of the Social Security Act. Congress originally applied the Boren Amendment only to nursing homes in the Omnibus Reconciliation Act of 1980, Pub. L. No. 96-499, § 962 (1980). The new payment standard was extended to hospital services in the Omnibus Budget Reconciliation Act of 1981, Pub. L. No. 97-35, § 2173 (1981). Congress has made clear that its inten- tions regarding the payment standard in the hospital amendment are identical with respect to the nursing home amendment. S. Rep. No. 139, 97th Cong, Ist Sess. 478 (1981). (1) (1988). The State is also required factory to HCFA that it has made the requisite findings, 42 C.F.R. § 447.253(a) (1988), and that it provides an administrative appeals procedure. 42 C.F.R. § 447.253 (a), (e) (1988). States are not required to submit the findings themselves, or supporting data, for review. HCFA’s review thus does not determine whether a State’s Plan in fact complies with the Medicaid statute’s sub- stantive standards, but is limited to determining whether the State has submitted satisfactory “assurances” of its compliance with those standards. Pursuant to these au- thorities, all States have opted to participate in Medicaid, as has the District of Columbia.“ every amendment to a State Plan, must be approved by HCFA, which is authorized to disapprove those Plans that do not meet federal requirements. 42 §§ 430.12-430.15 (1988). Second, even after a Plan has ment. Specifically, the statute and regulations allow 42 U.S.C. §1396¢ (1982 & Supp. 1987); see also, 42 C. F. R. § 430.35(a) (1988). The regulations further arise from the State’s failure to actually comply with a Federal requirement, regardless of whether the Plan it- self complies with that requirement.” Id. at § 430.35(c). In addition, the regulations require HCFA to perform “program reviews ... [i]n order to determine whether the State is complying with the Federal requirements and the provisions of its Plan,” id., § 430.32(a), and States must correct their deficiencies. Id., f 430.32(c). Al- though these provisions grant HCFA authority to termi- nate noncomplying States from Medicaid participation, the agency has never exercised this authority. C. State Ratesetting Methodologies The Boren Amendment grants States flexibility to fash- adjusted after the end of the cost year based on the The hospital ratesetting methodology in Virginia's State Plan contains many elements found in other prospective but no In 2 f 1 eer We | sz | | | Ht i 9 economically operated facilities” in order to make avail- able quality care to Medicaid recipients. 42 U.S.C. § 1396a (a) (13) (A); 42 C. F. R. 447.253 (1988). The issue pre- sented by this litigation is whether facilities have a right to sue State Medicaid officials under section 1983 to assure that the Plan’s ratesetting methodology does not systematically fail to conform with this standard. SUMMARY OF ARGUMENT Beneficiaries of rights conferred by a federal statute have a cause of action under 42 U.S.C. § 1983 against State officials for violation of those rights. Maine v. Thi- boutot, 448 U.S. 1 (1980). This rule permits the bene- ficiaries of a federal funding program to sue State offi- cials for violations of federal funding requirements in their administration of the program, unless the defend- ants demonstrate either that: (1) Congress did not in- tend the statute at issue to confer “enforceable rights” on the plaintiffs; or (2) Congress did intend remedial devices required by the statute to constitute a compre- hensive and exclusive scheme to remedy violations. Wright v. City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418 (1987). Under neither of these exceptions is there a basis for finding congressional intent to withdraw the section 1983 remedy from hospitals or nursing homes seeking to enjoin violations of the federal payment standard established by the Boren Amendment. The enforceable rights exception applies only where Congress speaks in merely precatory, rather than mandatory terms, or plainly does not intend the statute to confer rights on the putative plaintiffs. In the instant case, the payment standard set by the Boren Amendment is unequivocally mandatory, based on its plain language and because compliance with the stand- ard is an express condition on the continued receipt of federal Medicaid funds. Moreover, the structure and leg- islative history of the Medicaid statute and the Boren Amendment indicate that Congress, recognizing an essen- tial link between adequate reimbursement and quality of / 10 care, intended the payment standard to benefit providers as a way of assuring the availability of quality services to Medicaid recipients. Nor did Congress intend the administrative appeals procedures established by the States pursuant to HCFA regulations to represent a comprehensive scheme that would be the exclusive remedy for violations of the Boren Amendment. Not only is a comprehensive appeals re- quirement not directly mandated by the statute, but the regulations require only that States furnish an appeals or exceptions procedure to permit an individual provider an opportunity to present new evidence and receive prompt administrative review of its payment rate. HCFA has never suggested that the appeal procedures are intended for review of the legality of the State’s ratesetting meth- odology, and the overwhelming majority of States, with the approval of HCFA, have adopted procedures that pre- clude such challenges. In short, there is no evidence that Congress intended the Medicaid statute as a compre- hensive or exclusive remedial scheme, and the individual provider rate appeal regulation adopted by HCFA cannot change that intent. Finally, the cursory nature of the review of State Plans that HCFA conducts makes a private cause of action essential to effective enforcement of the federal payment standard in the Boren Amendment. Lower court deci- sions invalidating State ratesetting methodologies for noncompliance with the Boren Amendment demonstrate the need for such a remedy. Several of these cases show that States have often implemented State Plans whose noncompliance with the statute is egregious. In the absence of a private cause of action to enjoin noncompli- ance, such Plans would operate to deny providers the reasonable and adequate reimbursement needed to assure the availability of quality care to Medicaid recipients. 11 ARGUMENT RESPONDENT HAS A CAUSE OF ACTION UNDER 42 U.S.C. §1983 AGAINST STATE OFFICIALS FOR VIOLATION OF THE FEDERAL MEDICAID REIM- BURSEMENT STANDARD IN THE BOREN AMEND- MENT I. A SECTION 1983 ACTION EXISTS FOR VIOLA- TIONS OF FEDERAL STATUTORY RIGHTS UN- LESS CONGRESS INTENDED NOT TO CONFER ENFORCEABLE RIGHTS UPON THE PUTATIVE PLAINTIFF, OR INTENDED A COMPREHENSIVE AND EXCLUSIVE REMEDIAL SCHEME IN THE ENACTMENT ITSELF TO SUBSTITUTE FOR SEC- TION 1983 In Maine v. Thiboutot, 448 U.S. 1 (1980), this Court held that beneficiaries of an entitlement created under the Social Security Act could sue State officials under 42 U.S.C. 8 1983 for alleged deprivation of benefits con- ferred under the Act.“ Since Thiboutot, the Court has recognized two exceptions to the rule that section 1983 is available to remedy State violations of rights secured by federal statutes. See Middlesex County Sewerage Au- thority v. National Sea Clammers Association, 453 U.S. 1, 19 (1981), citing Pennhurst State School and Hospital v. Halderman, 451 U.S. 1, 67 (1981). A plaintiff alleging a deprivation of federal statutory rights by State officials will not be permitted to sue under section 1983 if: (1) the statute at issue is not the kind that creates enforce- able “rights” under section 1983; or (2) Congress has 5 The program at issue in Thiboutot was Aid to Families With Dependent Children (“AFDC”), a federal-State cooperative fund- ing program very similar to Medicaid. In both, the federal govern- ment contributes funds to be administered by a State agency in accordance with the terms of a State Plan approved by the super- vising federal agency. Compare 42 U.S.C. 5 602 (a); 45 C. F. R. §§ 201.2-201.3 (AFDC), with 42 U.S.C. §1396a(a); 42 C. F. R. §§ 430.10-430.15 (Medicaid). Like the plaintiffs in Thiboutot, Re- spondent seeks only a mechanism to compel State Medicaid officials to comply with statutory standards governing expenditure of pro- gram funds. 12 foreclosed private enforcement of the statute by creating a comprehensive and exclusive remedial scheme in the enactment itself. Sea Clammers, 453 U.S. at 19. The State defendants bear the burden of demonstrating, “by express provision or other specific evidence from the stat- ute itself that Congress intended to foreclose private enforcement.” Wright v. City of Roanoke Redevelopment and Housing Authority, 479 U.S. 418, 423 (1987).° These exceptions are inapplicable in the instant case. The language, legislative history, and agency interpreta- tion of the Boren Amendment amply demonstrate that it creates a right to “reasonable and adequate” reimburse- ment that is “enforceable” within the meaning of Penn- hurst, and that the statute contains no remedial mecha- nisms that are sufficiently “comprehensive” to demon- strate that Congress intended to foreclose access to sec- tion 1983. A. The Medicaid statute creates an “enforceable right” to provider reimbursement by rates that are reason- able and adequate to meet the costs which must be a incurred by efficiently and economically operated facilities The first of the Pennhurst exceptions to section 1983 examines the statute, under which the plaintiff claims a right, to determine whether Congress intended that en- actment to impose an “enforceable” obligation on the * Petitioners repeatedly mistake the object of the Pennhurst test as determining whether a cause of action under section 1983 is implied.“ Pet. Br. at 7, 11, 17, 21, 22. Petitioners have confused Pennhurst analysis with that applied by the Court in determining whether a cause of action should be inferred from a silent federal statute. E.g., Cort v. Ash, 422 U.S. 66 (1975). In the latter case, a plaintiff must demonstrate that Congress intended by implication to confer a private right of action. Section 1983, however, is an express cause of action. The relevant inquiry is whether there is evidence that Congress intended to withdraw that cause of action in a particular case. See Sea Clammers, 453 U.S. at 26 (Stevens, J., concurring in part and dissenting in part); West Virginia Uni- versity Hosps., Inc. v. Casey, 885 F.2d 11, 18 & n.1 (3d Cir. 1989). 13 State defendants. Pennhurst, 451 U.S. at 15. In the in- stant case, this inquiry has two components. First, the Court must ask whether Congress intended the interest in reasonable and adequate rates of payment to be man- datory, or whether Congress spoke “merely in precatory terms.” Id. Second, if the statutory provision is a man- datory one, it must be asked whether the provision was intended to benefit Medicaid providers. Golden State Transit Corp. v. City of Los Angeles, No. 88-840, slip op. at 5 (U.S. Dec. 5, 1989). 1. In Pennhurst, the Court concluded that the patient “bill of rights” provision in the Developmentally Dis- abled Assistance and Bill of Rights Act of 1975 was merely a declaration of policy rather than a manda- tory condition for participation in the program. The Court contrasted the Bill of Rights provision, which appeared in a section of the Act entitled “Findings,” with other provisions of the Act entitled “conditions.” 451 U.S. at 19, 23. While the failure of a State to meet one of the conditions of the Act could lead to the loss of federal funds, “funds [could] not be terminated for a State’s failure to comply with” one of the “findings.” Id. at 23. The distinction between conditions of receiving funds and mere findings of policy was critical, the Court explained, because only if Congress clearly “impose/{d) conditions on the grant of federal funds” could “the States knowingly decide whether or not to accept those funds.” Id. at 24. By contrast, in Wright, the statutory provi- sion at issue was framed in “mandatory” terms, 479 U.S. at 430, and a failure to comply with that provision was enforceable by the termination of further federal funds. Id. at 424. Pennhurst and Wright establish that a provision of a funding statute creates an enforceable right where that provision constitutes a condition of receiving federal funds, and where noncompliance with the provision would per- mit the administering federal agency to terminate further federal funding under the program. When the adminis- 14 ceipt of such funds, and the condition is obviously en- forceable within the meaning of Pennhurst. 451 U.S. at 23. The federal standard in the Boren Amendment is clearly a “condition” of participation. The Boren Amend- ment is one of 50 enumerated requirements of section 1902 which a State “must provide,” and the failure to comply with any of these requirements is grounds for termination of federal funding. Petitioners and the Solicitor General argue that cause the Boren Amendment refers to rates are complete once the Secretary accepts the assurances. This interpretation elevates form over substance, and i therefore flatly inconsistent with the statute and menting regulations. The Medicaid statute and regula- tions expressly distinguish between formal compliance and compliance in practice: “a question of noncompliance in practice may rise from the State’s failure to actually comply with a Federal requirement, regardless of whether the plan itself complies with that requirement.” 42 C. F. R. § 430.35 (e); see 42 U.S.C. §1396c; 42 C.F.R. § 430.35(a). The regulations further specify that a State must make annual findings that its payment rates are reasonable and must submit information related to the findings to HCFA. 42 C. F. R. §§ 447.250-447.255. There can be no doubt that if the Secretary determined, despite the State’s “assurances,” that the State’s Plan operated in practice systematically to deny providers reasonable payment, HCFA would have the authority under the Medicaid statute to terminate federal funding. 42 U.S.C. § 1396¢.” The Solicitor General notes that in 1988 alone, $29 billion in federal funds were expended under Medicaid. Br. of United States at 2. It is not credible that Congress would have committed federal government to annual expenditures of this magnitude out intending that the responsible agency at least retain the a 15 The legislative history confirms the plain language of the statute. While amici will not attempt to provide a comprehensive review of the legislative history, the fol- lowing points are particularly significant. First, when Congress enacted the Boren Amendment, it codified the requirement for reimbursement of the costs of “efficiently and economically operated” facilities al- ready contained in HCFA regulations implementing the prior reasonable cost-related payment standard. See 45 C. F. R. § 250.30 (a) (3) (iv) (1976). 17 history section 1983 remedy. See H.R. Rep. No. 1122, 94th Cong., 2d Sess. 7 (1976); S. Rep. No. 1240, 94th Cong., 2d Sess. 4 (1976). Moreover, notwithstanding the Cong., 2d Sess. 154 (1980) (emphasis supplied). There is no evidence that, in enacting the Boren Amendment, Congress (which was well aware of Medicaid rate liti- gation in federal courts) intended to withdraw pro- viders’ right to initiate such litigation. Congress has continued from time to time to express its view that the payment standard in the Boren Amend- ment is mandatory. For example, when Congress enacted extensive and costly nursing home quality of care reforms in the Omnibus Budget Reconciliation Act of 1987, it specifically directed that States must take those costs into mate authority to expel noncomplying States from participation. The fact that HCFA has never exercised this draconian authority cannot be equated with an absence of congressional! intent to grant it. 171 iH i 41 it 195 4275 115 2 f . i Hl Accordingly, the Boren Amendment’s federal payment standard is an “enforceable right” within the meaning of section 1983, as interpreted in Pennhurst and Wright. First, in the case of hospitals and nursing facilities, pay- ment is always made directly to the US.C. §1396a(a)(13)(A) (1982 4 Supp. 1987); C. F. R. § 447.250. See also, 42 C. F. R. 17 vidual provider has right to appeal its payment rate) ; 42 C.F.R. § 447.205 (1988) (public notice required of in ratesetting methodology). Moreover, the Boren Amendment specifically emphasizes the need for States to establish rates adequate to permit “facilities” to meet their responsibilities to provide quality care and to afford reasonable access to Medicaid recipients. Thus, under the plain terms of the statute, providers are recognized as independent beneficiaries under the Medicaid statute is a necessary concomitant of the way the program is structured. Amici acknowledge that the fundamental purpose of the Medicaid program is to provide funds whereby States may arrange for the fur- S. Rep. No. 471, 96th Cong., Ist Sess. 28-29 (1979). See also, 42 U.S.C. § 1396a(a)(22)(D) (1982 & Supp. 1987) (State Plan must specify standards and methods State will use to assure that services are of high quality) ; 42 C.F.R. § 440.230 (1988) (service must be of suffi- cient amount, duration, and scope reasonably to achieve its purpose Thus, the effort to parse the interests Medicaid recipients from those of providers is as incon sistent with congressional intent as it is with common sense. — * Numerous lower court decisions also have recognized this con- nection. F.., Thomas v. Johnston, 557 F. Supp. 879, 903-04 (W. D. Tex. 1983) ((tie link between the adequacy of reimbursement rates paid to providers and the adequacy of care provided to Medi- caid recipients is quite obvious 18 B. Congress has not foreclosed private enforcement of the Boren Amendment by providers in the Medicaid statute itself The second Pennhurst exception to section 1983 ex- amines the statute under which the plaintiff claims a right to determine if the enactment contains a remedial! scheme “sufficiently comprehensive . . . to demonstrate intent to preclude the remedy of suits un- der § 1983.” Sea Clammers, 453 U.S. at 20. More pre- cisely, the Court must inquire “whether Congress in- tended that the remedies in the substantive statutes be exclusive.” Id. at 28 (Stevens, J., concurring in part and dissenting in part), citing Pennhurst, 451 U.S. at 28. In only two cases has this Court found a statute’s in- ternal remedial schemes sufficiently comprehensive to demonstrate congressional intent to make the schemes exclusive. In Sea Clammers, the Court held that the “un- usually elaborate enforcement provisions” of two federal water quality statutes, conferring private judicial reme- dies on citizens, evidenced congressional intent to pre- clude a section 1983 remedy. 453 U.S. at 13-14. A stat- utory right to judicial review was also available in Smith v. Robinson, 468 U.S. 992, 1011 (1984). gests ment itself is silent as to the requi judicial or administrative remedies.’ : 3 8 * Amici the National Governors’ Association et al., erroneously argue that 42 U.S.C. § 1396a(a) (37 (B) requires States to estab- lish administrative appeals procedures for providers. Br. of Na- tional Governors’ Association, et al, at 5. This section, which re- quires States to establish “procedures for prepayment and post- payment claims review” (emphasis supplied), by its plain terms as part ances” often results in approval of State Plans that mani- festly do not satisfy the federal standard.“ As indicated, the Medicaid statute contains no require- ment concerning provider appeals. While HCFA has % The cursory nature of HCFA's review of State “sssurances” has often been documented in lower court decisions. See, eg. AMISUB (PSL) ». Colorado Dep't of Social Services, 879 F.2d 789, 799 (10th Cir. 1989), petition for cert. filed, 58 U.S. LW. 3322 (U.S. Oct. 25, 1989) (No. 89-682); California Hosp. Asen v. Schweiker, 559 F. Supp. 110, 116-117 (C.D. Cal. 1982), aff'd, 705 F.2d 466 (9th Cir. 1983). This review and approval process is nearly identical to that required under the AFDC regulations that were deemed insufficient Nebraska Health Care Association v. Dunning, 778 F.2d 1291 (8th Cir. 1986) (HCFA approval of 3.75% inflation factor invalid due to failure of State to include “related information” required under regulations), cert. denied, 479 U.S. 1063 (1987); Mary Washington Hospital, Inc. v. Fisher, 686 F. Supp. 891, 904 (E. D. Va. 1985) Tn in Tle * 5 11 1242 ii 12141 1 ‘ } i i 1 f . Aut 7 + i 1 r e Ie 14 114 127 j Hospital Plans: California, Hawaii, Missouri, North Carolina, Rhode Island, Virginia. Nursing Home Plans: California, Hawaii, '* Hospital Kansas, Kentucky, Maryland, Massachusetts, Mississippi, Montana, Missouri, North Carolina. New Mexico, New York, Tennessee, Washington, Wisconsin. Nurs- ing Home Plans: Alabama, Florida, Kansas, Maryland, Nebraska, Nevada, New York, South Carolina, South Dakota, Texas, Vermont, inen 24234097; He (Ul bate . fl 213122 i 1114213 b ii 15 8 ay 1 12125 file ; 111 75 2 8 ieee ni changed circumstances since the base year have signifi- cantly elevated the individual provider's costs. Sixteen that are reported and rates are set for a given year, generally will be precluded from raising challenges to the legality of that methodol- ogy. Three other States require that appeals identify particular computations and adjustments, plainly indicating that the procedure is intended to be used for arithmetic, not legal, challeages. Hoe pital Plan: Nevada (appeal must also document adverse financia! impact of rate). Nursing Home Plans: North Dakota and Utah. * Hospital Plans: Alabama, Arkansas, California, Colorado, Florida. Georgia, Hawaii, Idaho, Inis. Indiana, Kansas, Ken- tucky, Maryland, Massachusetts, Michigan, Missouri, Mississippi. Montana, Nevada, New Jersey, New Mexico, New York. North Carolina, Ohie, Pennsylvania, Rhode Island, South Carolina, Ten- authority to in- by the State agency, even if those policies do not comply with federal law.” The number of States whose procedures appear to per- is smal] indeed. Only : | eight States have enacted such and few of these unambiguously grant the right to challenge the legality of ratesetting methodology.“ Carolina, South Dakota, Texas, Utah, Vermont, Virginia, Wis- consin, Wyoming. 21 Hospital Plans: District of Columbia, Nebraska, Oklahoma, South Dakota, Utah. Nursing Home Plans: Louisiana, West Vir- ginia. 22 Hospital Plans: lowa, Louisiana, Maine, Oregon, Vermont. Nursing Home Plans: District of Columbia, Georgia, Illinois, Mon- tana, Oklahoma, Oregon, Tennessee, Washington. * See, eg., State Tax Comm’n v. Administrative Hearing Comm'n, 641 S.W.2d 69, 75 (Mo. banc 1982) (administrative agency lacks authority to invalidate properly promulgated regula- tions: “[a)gency adjudicative power extends only to the ascertain- ment of facts and the application of existing law thereto”). 2 Hospital Plans: Alaska, Arizona, Connecticut, Delaware, Min- nesota, West Virginia. Nursing Home Plans: Alaska, Arizona, Connecticut, Delaware, lowa, Minnesota, Ohio. 24 prehensive remedial scheme that would encompass review of State ratesetting policies. Quite the contrary, HCFA’s approval of Plans which typically preclude challenges to the ratesetting methodology further underscores the ab- sence of congressional intent to foreclose access to other remedies.” | Nor can HCFA’s power to exercise the extreme sanc- tion of terminating federal funding for a noncomplying Plan be regarded as part of a comprehensive review scheme. Although the courts have found that numerous State Plans violate the Boren Amendment, HCFA has never sought to terminate federal funding to a State on this basis. The Medicaid statute’s purpose of enabling each State to provide medical assistance to the indigent would hardly be served by ejecting a State from par- ticipation. The benevolent goal of furnishing adequate medical care demands that some less extreme sanction, such as a section 1983 suit, be available to challenge a State’s noncompliance with the Boren Amendment. 25 In the amicus brief of the state attorneys general, it is argued that HCFA “expressly has rejected the call for private rights of action in the regulations adopted to implement the Boren Amend- ment on the ground that the [Medicaid] statute contained neither mandate nor authority to provide judicial recourse for dissatisfied providers.” Br. of Amici State of Connecticut et al. This asser- tion is plainly wrong. In the regulatory preamble cited by the at- torneys general, HCFA discussed comments received on “who should adjudicate appeals.” 48 Fed. Reg. 56046, 56052 (1983). In response to one commentor’s suggestion that HCFA should require States to “provide judicial recourse for providers dissatisfied with State payment rates,” the agency correctly noted that the Medicaid stat- ute did not grant HCFA authority to require such recourse. /d. In fact, the statute does not authorize HCFA to restrict or expand judicial review in any way. HCFA also concluded that the regula- tions did not restrict the right of providers to pursue State judicial remedies after exhausting the administrative process. Id. The agency expressed no view on the availability of a private cause of action under section 1983 or any other provision of federal law. Id. II. RECOGNIZING A SECTION 1983 REMEDY WOULD NOT OPEN THE FLOODGATES TO FEDERAL COURT REVIEW OF INDIVIDUAL RATE DIS- PUTES, BUT WOULD PROVIDE A MEANINGFUL METHOD OF REMEDYING SYSTEMATIC VIOLA- TIONS OF THE BOREN AMENDMENT A. Availability of a section 1983 remedy has not pro- duced a flood of Boren Amendment litigation Every United States Court of Appeals to rule on the question has held that Medicaid-participating health care providers have a right under section 1983 to sue State officials in federal court for Boren Amendment viola- tions.“ Despite this free access to the federal courts in the decade since the Boren Amendment was enacted, amici have discovered only 48 reported federal cases al- leging violations of the Boren Amendment.“ Slightly fewer than half of the federal cases were based on a section 1983 cause of action.“ All involved challenges to the legality of the State’s ratesetting methodology rather than individual rate disputes. 2° West Virginia Univ. Hosps., Inc. v. Casey, 885 F.2d 11 (3d Cir. 1989) ; Virginia Hosp. Ass’n v. Baliles, 868 F.2d 653, 658 (4th Cir. 1989), cert. granted in part, 110 S. Ct. 49 (1989); Coos Bay Care Center v. Oregon Dep't of Human Resources, 803 F.2d 1060, 1062 (9th Cir. 1986), cert. granted, 481 U.S. 1036, vacated as moot, 484 U.S. 806 (1987) ; Nebraska Health Care Ass’n v. Dunning, 778 F.2d 1291, 1295 (8th Cir. 1985), cert. denied, 479 U.S. 1063 (1987); AMISUB (PSL) v. Colorado Department of Social Services, 879 F.2d 789, 798 (10th Cir. 1989), petition for cert. filed, 58 U.S.L.W. 3322 (U.S. Oct. 25, 1989) (No. 89-682). Cf. Yapalater v. Bates, 494 F. Supp. 1349, 1357-58 (S.D.N.Y. 1980) (finding right of action under prior reimbursement provision), aff'd per curiam, 644 F.2d 131 (2d Cir. 1981), cert. denied, 455 U.S. 908 (1982); Silver v. Baggiano, 804 F.2d 1211, 1217-18 (llth Cir. 1986) (reserving question). 27 See Appendix C. 28In most of the other cases, the issue of whether a cause of action was available was not considered by the court. E. g., Alabama Hosp. Ass'n v. Beasley, 702 F.2d 955 (11th Cir. 1983). While there have been a limited number of cases aris- ing under section 1983, in the majority of the cases in which the court reached the issue of the legality of the ratesetting methodology, the court found the need to grant relief to prevent arbitrary or unlawful State action.“ These cases demonstrate that the existence of a private cause of action permitting providers to chal- lenge the legality of a State’s ratesetting methodology has not produced a flood of litigation, and no reason exists to assume that a ruling by this Court upholding this right would increase significantly the number of such challenges.” Moreover, the success of many of these chal- lenges is good evidence that this remedy is needed to as- sure State compliance with the standard contained in the Boren Amendment. 2° See AMISUB, 879 F.2d 789; West Virginia Univ. Hosps., 885 F.2d 11; Nebraska Health Care Assen, 778 F.2d 1291; Washington State Health Facility Assen v. Washington Dep't of Social and Health Services, 698 F.2d 964 (9th Cir. 1982); St. Tammany Parish Hosp. Service Dist. v. Dep't of Health and Human Resources, 677 F. Supp. 455 (E.D. La. 1988); Children’s Memorial Hosp. v. Illinois Dep't of Public Aid, 562 F. Supp. 165 (N.D. III. 1983); Illinois Hosp. Assen v. Illinois Dep't of Public Aid, 576 F. Supp. 360 (N. D. II. 1983). Section 1983 has also been successfully used by Medicaid recipients to challenge a State’s ratesetting method- ology. Montoya v. Johnston, 654 F. Supp. 511 (W.D. Tex. 1987) ; Thomas v. Johnston, 557 F. Supp. 879 (W.D. Tex. 1983). % Boren Amendment litigation is extremely costly and time con- suming, due to the necessity of obtaining detailed expert and ac- counting reports establishing that the State’s methodology will not result in efficiently and economically operated facilities receiving reimbursement approximating their actual costs. This requires analysis not only of an individual facility’s costs, but those of all similar facilities in the State. See generally, Hamme & Kanner, Long-Term Care Reimbursement Issues: Pro and Contra Aids for Litigants, in 1989 Health Law Handbook (Clark Boardman Co., A. Gosfield, Ed. 1989). As a practical matter, it is not economically practicable for an individual provider to initiate Boren Amend- ment litigation simply to challenge its rate. 27 B. The absence of a remedy would permit State Plans which contain egregious violations of the Boren Amendment to continue in operation To leave providers without a federal remedy for vio- lations of the Boren Amendment would create the pros- pect of arbitrary or unlawful State action with no effec- tive remedy and extremely significant consequences for hospital and nursing home providers and, hence, Medicaid recipients. As noted above, implementation of unlawful and inadequate rates will have an adverse impact on the quality of services provided to the vulnerable indigent population who require inpatient hospital or nursing home services covered by Medicaid. That States have implemented ratesetting methodologies which contain egregious violations of the Boren Amendment has often been documented in lower court cases. Two recent circuit court decisions illustrate this prob- lem graphically. In AMISUB (PSL) v. Colorado De- partment of Social Services, 879 F.2d 789 (10th Cir. 1989), petition for cert. filed, 58 U.S.L.W. 3322 (U.S. Oct. 25, 1989) (No. 89-682), the State implemented a Plan under which a hospital’s base year Medicaid rate was determined by taking the average Medicare per diem reasonable cost per discharge for hospitals in a particular peer grouping, and multiplying that figure by .88. Id. at 791. The resulting figure then was multiplied by a “budget adjustment factor” of .54 to arrive at the Medi- caid rate for each facility. Id. In effect then, under Colorado’s methodology, hospitals would receive a per diem rate for Medicaid patients that was less than half of the average cost that would be deemed reasonable by Medicare for the same patient. Expert testimony at trial established that under this sys- tem, no Colorado hospital, no matter how efficiently and economically operated, would be reimbursed its reason- able costs. Id. at 798-99.“ The court concluded that such n The court noted that while the State’s “assurances” of ade- quate reimbursement might be “adequate for HCFA, .. at trial a a large across-the-board reduction, based solely on bud- getary considerations, violated the Boren Amendment. Id. at 799." Other ratesetting provisions may be equally violative of the Boren Amendment. In West Virginia University Hospitals, Inc. v. Casey, 885 F.2d 11 (3d Cir. 1989), the court was confronted with provisions in Pennsylvania’s Plan, which computed rates for out-of-state hospitals pro- viding care to Pennsylvania’s Medicaid recipients dif- ferently than for in-state hospitals providing the same services. Rates for in-state hospitals were computed by taking an average cost per hospital stay (based on actual allowable costs) and adjusting that amount for each stay by a factor designed to account for the relative severity (cost) of the case. Id. at 16. In contrast, rates for out-of-state hospitals were com- puted based not on allowable costs, but on the average of payments made to in-state hospitals (adjusted for severity). Jd. In addition, out-of-state hospitals re- ceived lower reimbursement for capital costs, and no reimbursement for direct medical education expenses. Id. The district court found that this situation resulted in the plaintiff hospital receiving only 54 percent of its costs of treatment to Medicaid patients, as opposed to the 95 percent received by in-state hospitals. Id. at 25. The Colorado and Pennsylvania Plans provide com- pelling examples of the potential for significant harm to hospitals and nursing homes, and ultimately to Medicaid recipients, that can occur where rates are predicated on party must offer evidence which supports its position.” Id. at 799. The court found no such evidence. 32 A smaller across-the-board reduction in nursing home rates. based solely on budgetary considerations, was invalidated in Ne- braska Health Care Asen v. Dunning, [1984 Transfer Binder Medicare & Medicaid Guide (CCH), 7 34,100 D. Neb. July 9, 1984) (reductions of 14.4% for intermediate care facilities and 44% for skilled nursing facilities), aff'd in part and vacated in part on other grounds, 778 F.2d 1291 (8th Cir. 1985) (State did not appeal in- validation of across-the-board reductions), cert. denied, 479 U.S. 1063 (1987). need poor and disabled, and there is no basis for concluding that Congress intended to insulate from meaningful scru- tiny the types of unlawful payment reductions that occur when a State adopts a reimbursement methodology that flatly violates the State’s obligations under the Boren Amendment. As this Court noted in Rosado v. Wyman, 397 U.S. 397 (1970), it is the duty of the federal courts, “no less in the welfare field than in other areas of the law, to resolve disputes as to whether federal funds allo- cated to the States are expended in consonance with the conditions that Congress has attached to their use.” Id. at 422-23. Under the scheme created by Congress, the appropriate mechanism for ensuring compliance with the Boren Amendment is a suit under 42 U.S.C. § 1983 brought by providers. — 30 CONCLUSION For the foregoing reasons, the judgment of the court 96 APPENDICES 10 Ht e iit iF 1 IF una | 1275 . He 1173 i 11 i 1 i 10 11 RHE Heal 11 EHR ED 15 te 1217 ral 4 fi if 3 | 11 i H : 0 findings in support of its audit the facility's cost report. Id. at 6. ALASKA Hospital Attachment 4.19-A). A Id. at See. VII. pp. 11-12. ARIZONA Arizona does not participate in Medicaid, a HCFA demonstration project called Health Care Cost Containment System (“AHCCCS”). Under this system, the exclusive means through which Hospital (Attachment 4.19-A, TN 88-26). Providers of hospital services are permitted to appeal their rates only for the folowing reasons: (1) costs of improve- ments incurred because of new certification or licensing requirements; (2) extraordinary circumstances (fires, floods, ete.) ; (3) program decisions of a substantive na- ture relating to application of the payment system; or (4) the rates are substantially below those paid during an earlier base period. Id. at Sec. 1.09, p. 15. Nursing Home (Attachment 4.19-D). The Plan per- mits nursing homes to submit written appeals of any provisions of the State Medicaid Manual (Plan) or ac- tions resulting therefrom, to the Commissioner of Arkan- sas Social Services. Id. Sec. 1-7. Appeals must be sub- mitted within 30 days of notification of initial publica- tion of a Manual provision, or an adjustment to a cost report. Id. No procedure exists for contesting Manual provisions after this time has elapsed. CALIFORNIA Hospital (Attachment 4.19-A, TN 87-16). The Plan permits a hospital to request an administrative adjust- ment to its interim rate. Id. at Sec. V, p. 9. However, the Plan specifically excludes consideration of the follow- ing: a. The use of Medicare standards and principles of retrospective reimbursement; 1 4 A4 b. The method for determining the input price index; c. The use of all-inclusive reimbursement rates; d. The use of a volume adjustment formula; e. The use of hospital peer groups; f. The use of percentile limits and the methods used to compute them. An appeal of the Department’s decision may be filed in ac- cordance with the procedural requirements of Cal. Admin. Code, tit. 22, Div. 3, Ch. 3, Art. 1.5. Id. at 11. The ap- peal is limited to those items subject to an administra- tive adjustment listed above. /d. Nursing Home (Attachment 4.19-D, TN 88-24). The Plan states that nursing homes will have the right to appeal audit findings which result in adjustments to pro- gram reimbursement or reimbursement rates. Id. at 4. However, the Plan specifically limits reimbursement rates to maximums set by the Plan itself, Inlotwithstanding any other provisions” of the Plan. /d. at 1. COLORADO Hospital (Attachment 4.19-A). The Plan permits hos- pitals to appeal administratively only annual “add-ons” to the established base year rate. Id. at 1. Add-ons are increases in budgeted costs in excess of the consumer price index that can be justified on the basis of or resulting from a new or expanded service, a price increase, or a change in patient case mix. Id. Regulations applicable to all Medicaid providers limit appeals to a provider ad- versely affected by a finding of fact or interpretation of rules. . . which results in a reduction in, or denial of, specific payments.” 11 Colo. Code Regs. Sec. 8.0501 (ef- fective 5/1/86). Nursing Home (Attachment 4.19-D, TN 89-4). The Plan assures that Colorado has established procedures for nursing home rate determinations which permit pro- A-5 viders to submit additional evidence and request prom administrative review. Id. at 30. The —— . — above for hospitals also apply. CONNECTICUT Hospital (Conn. Gen. Stat. § 17-311 (1989)). Con- necticut hospitals may appeal any decision of the Com- missioner of Income Maintenance in accordance with the aforementioned statute, which empowers the Commis- sioner to establish annual allowable costs for Medicaid Services. Id. An “aggrieved” hospital may request a rehearing as to any decision of the Commissioner. Id. at §17-311(b). Items not resolved through the rehearing are submitted to an arbitration board consisting of one member appointed by the institution, one member ap- pointed by the Commissioner, and one appointed by the chief court administrator. /d. Nursing Home (Attachment 4.19-D, TN 88-58). A nursing home aggrieved by any decision of the Commis- sioner of Income Maintenance may file a written request to the Commissioner requesting a rehearing on the items of aggrievement. Id. at Sec. 17-311-104. If items of ag- grievement are not resolved by the rehearing, the pro- vider can file a request for binding arbitration, which must include a memorandum setting forth its position and contentions concerning the items of aggrievement. Id. at Sec. 17-311-107. The arbitration board consists of one member appointed by the provider, one member ap- pointed by the Commissioner, and one member appointed by the chief court administrator from among the retired judges. Id. The Board may reverse the department if administrative findings, inferences, conclusions, or deci- sions are, among other things, violative of constitutional or statutory provisions. Id. at Sec. 17-311-112. In contesting a rate decision, the provider may elect to pursue an nistrative appeal in the Connecticut „ Id. at Sec. 17 1 A-6 DELAWARE HCFA’s copy of the State Plan contains no provision for provider rate appeal by hospitals or nursing homes. Appeals of “adverse actions” by the State Medicaid agency are permitted pursuant to State Medicaid regu- lations. Department of Social Services, Appeal Proce- dures of Adverse Actions for Providers (4/89). Requests for review must be mailed within 60 days of notice of adverse action. Id. at Sec. 5. DISTRICT OF COLUMBIA Hospital (Attachment 4.19-A, TN 88-6). The State Plan provides only an assurance of the existence of an appeal procedure that allows individual providers an opportunity to submit additional evidence and receive prompt administrative review of rates. Id. at Sec. 9, p. 4a. In a telephone conversation with the Comptroller’s office, we were informed that, although there are no formal appeal procedures, hospitals are permitted to ap- peal informally adjustments to annual cost reports. Nursing Home (Attachment 4.19-D). The Plan per- mits a nursing home to request a hearing before the Office of State Agency Affairs if the provider disagrees with a rate established by a Department of Human Serv- ices audit. Id. at See. VII. FLORIDA Hospital (Attachment 4.19-A, TN 88-19). The Plan permits a hospital the right to a hearing in response to adjustments to its cost report resulting from an audit. Id. at Sec. II (F), p. 8. The right to the hearing will be in accordance with Fla. Admin. Code Ann. r. 10-2.36, and with the Florida Administrative Procedure Act, Fla. Stat. Ann., Sec. 120.57. Nursing Home (Attachment 4.19-D, TN 88-3). The same right to a hearing is available to nursing home providers in accordance with Fla. Admin. Code Ann. r.\ 10C-7.481(6), and with Fla. Stat. Ann., Sec. 420.57. f : i TH . | decision is adverse to the hospital, a request ing may be made in accordance with Chapter 500 of Department’s Policies and Procedures Manual. /d. at This procedure may be used to consider only: (1 in cost report figures used to determine the base rate; (2) errors in calculation; (3) failure of the Department to comply with its stated policies; or (4) increased costs due to significant changes in patient care services. Id. at 10. See also Georgia Department of Medical Assistance Medicaid Manual, Chapter 500, Sec. 505.2. Nursing Home (Georgia Department of Medical As- sistance Medicaid Manual, Chapter 500). Georgia permits nursing homes to appeal the calculation of billing rates and related cost report disallowances. Id. at Sec. 504.3. HAWAII Hospital (Attachment 4.19-A, TN 88-30). The Plan permits a hospital to request reconsideration by the De- partment of its annual rate only “in extraordinary cir- cumstances”, or when there is a [reduction in Medi- caid average length of stay within a facility which pro- duced a decrease in the average cost per discharge but an increase in the average cost per day.” Id. at III-36. “Extraordinary circumstances” include acts of God, changes in life and safety code or licensure requirements, significant changes in case mix or new services occurring subsequent to the base year. Id. In addition, subsequent year adjustments to the facility’s initial base year rate may not result in changes to the Plan’s rate ceiling. Id. at III-35. Nursing Home (Attachment 4.19-D, TN 86-17). — Plan permits nursing homes the right to request a see e lt ey He THe Hui : | 772724 88242 : , Hi 12472 53 ai : aE 7 117101 +s 1 1 * . 4 4211 17711740 52 11 |. a7 i fe ee TESTS Ul U hte 5 rags 142715 if i! a 0 Liege eye Es tt il 116 115111755 it 1 tus ‘i; A Ar iH 2221 f 21 7512 222 11115 225112733 l 7111215 alps ee bt Wdab HUMBLE aH ee Ra ek tubs ih n (lactis ine 4 ahve All ILLINOIS The Plan permits a hospital to request review by the Department te share of low income patients), or signif- restructuring to meet new health and safety Hospital (Attachment 4.19-A, TN 82-9). tion, severe cash flow problems (resulting from serving a of Public Aid of its annual rate only for errors in calcula- disp ican A-10 with the Department of Human Services if dissatisfied with a rate determination. Id. at Sec. 20, p. 12. Hear- ings are conducted by the Department of Inspections and Appeals. Jd. The Department of Human Services makes a decision based on the recommendation of the Depart- ment of Inspections and Appeals. Id. Nursing Home (Attachment 4.19-D). If dissatisfied with the determination of its base year allowable cost, a nursing home may file an appeal and request for re- consideration with the Chief of the Bureau of Medical Services. Id. at Sec. 11, p. 3. In addition, Iowa regula- tions permit the Department to consolidate the claims of several providers where the sole issue involved is one of state or federal law or policy. Iowa Admin. Code. r. 441- 7.5 (1987). KANSAS Hospital (Attachment 4.19-A, TN MS 88-27). A hos- pital may obtain administrative review only upon evi- dence of at least a 10% variation between its current Medicaid cost and its per diem rate. Jd. at Sec. N, p. 7. The Commissioner of Income Maintenance shall render a decision which is appealable under Kan. Admin. Regs., Sec. 30-7. Id. There is no provision to contest rates (or rate methodology, if permitted) unless the 10% criterion is met. Nursing Home (Attachment 4.19-D, TN MS-89-15). The Plan for nursing homes provides a procedure for individual providers to obtain an “exception” to their assigned rates by submitting additional evidence demon- strating that the provider is efficiently and economically operated, but is being adversely affected by the Plan payment rates. Id. at p. 20A. KENTUCKY Hospital (Attachment 4.19-A, TN 86-4). A hospital may appeal a program decision only in the following cir- cumstances: (1) addition of new and necessary services A-11 requiring certificate of need approval; (2) major changes in case mix or types/intensity of services; (3) costs of improvements required by new licensing or certification requirements; (4) extraordinary circumstances (floods, ete.) ; substantive program decisions relating to applica- tion of the payment system. Id. at Sec. 110, p. 110.01. Nursing Home (Kentucky Medical Assistance Program Reimbursement Manual, TN 84-16). Nursing homes are permitted administrative review of program decisions relating to the application of the policies and procedures governing the nursing home payment system. Id. at Sec. 119, p. 119-01. LOUISIANA Hospital (Attachment 4.19-A, TN 84-9). The Plan provides that hospitals may appeal their rates to the DHHR Appeals section. Jd. at Sec. III, p. 11. An in- formal conference is first scheduled between the hospital and the state agency to discuss the issues of the appeal. Id. If the informal discussion does not resolve these is- sues, the hospital may request an administrative hearing with the DHHR Appeals Section. Id. at p. 12. The DHHR Appeals Section makes a recommendation to the Secretary. The department then makes a final decision, subject only to judicial review by the courts as provided in the State Administrative Procedure Act, La. Rev. Stat. Ann., Sec. 49:951. Id. at 13. Nursing Home (Attachment 4.19-D (1)). The Plan for nursing homes assures that the State provides an ap- peals procedure that permits individual providers to sub- mit additional evidence and receive prompt administra- tive review. Jd. at p. 4. In a telephone conversation with the Department of Health and Human Resources, how- ever, we were informed that a provider could not appeal a rate determination. MAINE Hospital (Attachment 4.19-A, TN 88-07). The Plan assures that a provider appeals system is in place which allows individual providers an opportunity to submit ad- A-12 ditional evidence and request prompt administrative re- view of payment rates. Id. at 2. Nursing Home (Attachment 4.19-D, TN 88-14). Nurs- ing homes may appeal audit adjustments to the Maine Department of Human Services. On appeal, the validity of a rate is judged “solely on the basis of its conformity with the principles governing the determination of rates contained in this attachment [4.19-D].” Id. at 18. MARYLAND Hospital (Md. Regs. Code tit. 10, Sec. 37.10 (1988) ). A hospital may request a temporary change in rates at any time if it has experienced a decline in net revenue or an increase in expenses due to factors beyond its con- trol. Id. at Sec. 10.37.10.05. Maryland also permits a hospital to file an application with the Health Services Cost Review Commission to re- quest an alternative method for submitting or reviewing its rates and charges. 10.37.10.06(A). The Executive Director may grant a temporary approval of an alterna- tive method of rate determination. 10.37.10.06 (B). Nursing Home (Medical Care Programs ICF Services). Maryland permits nursing homes to appeal only audit findings. Jd. at pp. 608-45. MASSACHUSETTS Hospital (Attachment 4.19-A(2), TN 88-12). HCFA retains two Massachusetts hospital plans, one for acute care facilities, one for non-acute facilities. The Plan does not contain an appeal procedure for acute care hospitals. In a telephone conversation with the State Rate Setting Commission, we were informed that acute care hospitals may appeal Medicaid reimburse- ment rates in accordance with State regulations. Mass. Regs. Code tit. 801, Sec. 1.03 (1986). Appeals from ac- tions or inactions on the part of the Rate Setting Com- * A-13 mission are permitted for the appeal of interim and final rates. Id. at Sec. 1.03 (12) (e), (d). The Plan for nonacute hospitals provides for appeal to the Division of Administrative Law Appeals, pursuant to the requirements of Mass. Gen. L. Ch. 6A, Sec. 36 and Mass. Gen. L. Ch. 7, Sec. 4H, in two circumstances. First, a hospital may request an increase in its allowed costs due to costs beyond its control. Jd. at 10. Such re- quests will be granted only if the additional costs: (1) are due to correcting deficiencies related to hospital li- censure or participation in Medicare or Medicaid; (2) are generated by compliance with new, non-discretionary regulations mandating expenses; (3) result from disaster losses in excess of (or not covered by) insurance; (4) are allowed in connection with a major capital expendi- ture or substantial change in services requiring a certifi- cate of need; (5) result from a new service; (6) result from certain wage adjustments which are demonstrated to be cost-effective; (7) result from an increase in pa- tient care costs due to serving a more intensely ill patient population. Jd. at 10-11. Second, a hospital may request — — if there has been an arithmetic error. Id. a . N Nursing Home (Mass. Regs. Code tit. 114.2, Sec. 2.20 (1987)). Massachusetts reimburses certain nursing homes through interim rates with retrospective adjust- ments, and certain nursing homes through prospective rates. This regulation permits both kinds of providers to petition for an increase to their rates. Id. at Sec. 2.20, 2.21, 5.15. Petitions for increase in interim rates are granted only for facilities with a population of more than 75 percent Medicaid patients, and only to implement cer- tain statutory wage increases for nurses and nurse aides. Id. at Sec. 2.20, 2.21. As to prospective rates, a provider aggrieved by a rate of payment may file an appeal, the validity of which will be “judged solely on the basis of its conformity with the principles governing the determi- A-14 nation of rates contained in” the ratesetting methodology set in the regulations. Id. at Sec. 5.16(1) and (2). MICHIGAN Hospital (Attachment 4.19-A, TN 88-6). The Plan permits a hospital to appeal its rate of payment as well as the components used to determine the rate. Id. at Sec. IV, p. 18. Appeal is restricted to the extent that incor- rect data were used in calculation, except that the appeal panel or ALJ may also hear appeals of “other items deemed . . . to be within the scope of their jurisdiction.” Id. An order from the Director of the Department of Social Services states that ALJs do not have “authority to make decisions on constitutional grounds, overrule statutes, overrule promulgated regulations or overrule or make exceptions to the Department policy set out in the program manuals.” Amended Delegation of Hearing Au- thority (April 1, 1981). ALJs are permitted to make a recommendation to the Director of the Bureau of Admin- istrative Hearings when they believe Department policy to be out of conformity with case law, statute, or prom- ulgated regulation, but there is no provision to permit a party to appeal an ALJ’s decision on this issue. Id. Nursing Home (Attachment, 4.19-D, TN 87-9). The Plan provides for an informal or formal review of an adverse action, which requires a nursing home to submit an application for relief to the state agency within 45 days of notification. Id. at Sec. VIII, p. 1. However, no administrative review is permitted for elements of the program that would necessitate a change for all pro- viders, including the “principles of reimbursement and guidelines which define allowable costs.” Id. The same Delegation of Authority cited above for hospitals also applies. MINNESOTA Hospital (Attachment 4.19-A, TN 88-69). “Rate Ap- peals” are taken in the first instance to the reimburse- A-15 ment staff of the Department of Human Resources. /d. at 9. Appeals that are not settled by reimbursement staff are made to a five member appeals board, appointed by the Commissioner of Human Resources, which makes recom- mendations to the Commissioner. Jd. Hospitals may ap- peal “a decision of the Commissioner” through Minnesota statutes (presumably the Administrative Procedure Act). Id. Nursing Home (Attachment 4.19-D; Minn. R. 256B.50). A nursing home may appeal from determina- tion of a payment rate. Id. at Subd.lc, p. 5501. Nursing homes may challenge the validity of the Commissioner’s rules in the court of appeals if it appears that the rule or its threatened application impairs or threatens to im- pair the petitioner’s legal rights. Minn. Stat. Ann., Sec. 14.44. MISSISSIPPI Hospital (Attachment 4.19-A, TN 81-1). The Plan permits a hospital to appeal its rate to the Mississippi Medicaid Commission. Id. at Sec. IV, p. 8. Appeals are limited to new costs resulting from major changes in case mix, the addition of new and necessary services, use of incorrect data or calculation error, extraordinary circumstances (riot, strike, flood, ete.). Id. Nursing Home (Attachment 4.19-D, TN 88-1). The plan permits a nursing home to submit a written request for a formal hearing in response to a rate notice. Id. at 19. The appeal must be accompanied by a statement and documents setting forth the facts which the provider contends place it in compliance with the Commission’s regulations. Jd. In addition, the Mississippi Medicaid Manual states that appeals of matters relating to pay- ment rates or reimbursement may be considered only if not otherwise previously considered by the Division of A-16 Medicaid under Public Hearing Procedures. Long Term Care Manual (July 1, 1989) at p. I-7. MISSOURI Hospital (Attachment 4.19-A, TN 88-3/87-01). The Plan permits a hospital to request an informal review of actions resulting from the provisions of the Plan. Id. at Sec. V(E), p. 10. Items which will not be subject to review include: the use of Medicare standards and re- imbursement principles; the method for determining the trend factor; the use of all-inclusive prospective reim- bursement rates; and increased cost resulting from change of ownership. Id. at 12. In addition, the Missouri Supreme Court has held that State administrative agen- cies have no authority to render declaratory rulings re- garding the validity of agency rules. State Tax Commis- sion v. Administrative Hearing Commission, 641 S.W. 2d 69, 75 (Mo. bane 1982). See Mo. Code Regs. tit. 13, Sec. 70-10.010 (8/89) (ratesetting methodology as agency rule). Nursing Home (Attachment 4.19-D, TN 88-22). The Plan permits a nursing home to obtain reconsideration of its rate by an advisory committee only for costs re- lated to changes in the facility's case mix, or costs re- sulting from other extraordinary circumstances. Id. at 51. The Plan prohibits administrative review of the trend factor, the use of prospective rates, or the provider’s initial cost base. Jd. The hospital limitation cited above also applies. MONTANA Hospital (Mont. Admin. Rules, Sec. 46.12.506-.510). Hospitals have the opportunity for a fair hearing, in accordance with the procedures set forth in Mont. Admin. R. 46.2.202, only to contest the computation of their interim payment rates (or final settlements for capital and medical education costs), coding errors resulting in incorrect DRG assignment and determination of medical A-17 necessity, outlier status, and readmission/transfer deci- sions. Id. at R. 46.12.510. Nursing Home (Attachment 4. 19-D, TN 88 (10) 19). A nursing home may request an administrative review of the Department of Social and Rehabilitative Services’ written findings, recommendations, or rate. Id. at Sec. 46.12.1210, p. 23. If the decision of the review is adverse to the provider, an appeal for a fair hearing can be made to the Department. Jd. The hearing officer will render a proposed decision, and the provider is permitted a fur- ther appeal by filing a notice of appeal with the hearing officer to be forwarded to the Department Director. Id. at 23. Judicial review of the decision of the Department Director is permitted under the State Administrative Pro- — Act, Title 2, chapter 4, part 7, Mont. Code Ann. NEBRASKA Hospital (Attachment 4.19-A, TN MS-89-6). The Plan assures that a hospital may submit additional evidence and request prompt administrative review of its pro- spective rate. Id. at 8a. The hospital is also permitted to utilize this procedure to appeal an adjustment to its rate. Nursing Home (Attachment 4.19-D, TN MS-84-3). The Plan permits a nursing home to request an admin- istrative appeal of a final decision or inaction in the process for determining the facility’s allowable cost. Id. at Sec. 12-011.13, p. 26. NEVADA Hospital (Nevada State Welfare Division, Medicaid Services Manual, MTL 8/89). A hospital is permitted to appeal its rate. Id. at Sec. 206.2. The appeal must include the specific rate adjustment requested with sup- porting documentation and documentation of adverse fi- nancial impact. Id. In a telephone conversation with the A-18 Welfare Division of the Department of Human Resources, we were informed that this procedure may not be used to appeal the ratesetting methodology. Nursing Home (Nevada SNF & ICF Medicaid Man- ual). Nevada permits providers to appeal audit adjust- ment settlements. Jd. at Sec. 506.2. NEW HAMPSHIRE Hospital. The Plan contains no provision for appeals by hospitals. In a telephone conversation with the State Medicaid Director, we were informed that because hos- pitals are reimbursed on a diagnosis-related group (“DRG”) basis, there are no appeal procedures in place. Nursing Home (Attachment 4.19-D, TN 87-10). The Plan provides a procedure for individual nursing homes to appeal unresolved disputes that may arise concerning application of the principles of reimbursement defined in the Plan. Id. at Sec. 9999.11, p. 38. NEW JERSEY Hospital (1983 Standard Hospital Accounting and Rate Evaluation Rate Review Guidelines). Hospitals may file appeals of their payment rates with Health Economics Services, Department of the Public Advocate. Id. at G-17. The purpose of the appeal is “to determine if the Guide lines were properly interpreted and executed.“ Id. at G-3. The Plan also provides a provision which permits hos- pitals faced with unpredictable and uncontrollable changes in costs to submit a request for adjustment to the Com- missioner. Id. at G-18. Nursing Home (Attachment 4.19-D, TN 86-1). The Plan provides a two level appeal process for nursing homes that believe that, “owing to an unusual situation, the application of these guidelines results in an inequity.” Id. at Sec. 3.20, p. C-36. A Level I appeal is heard by representatives from the Department of Health (“DOH”) and the Department of Human Services (“DHS”). The A-19 recommended solution will ultimately be forwarded to the Director, Division of Medical Assistance and Health Serv- ices for approval. This level is limited to matters pecu- liar to individuai providers. If the provider is not satisfied with the results of the level I appeal, it may request a hearing before an Ad- ministrative Law Judge (Level II). At Level II, the burden is on the provider to establish its entitlement to benefits under the State’s Cost Accounting and Rate Evaluation System Guidelines (the State’s ratesetting methodology). Jd. at C-38. NEW MEXICO Hospital (Attachment 4.19-A, TN 89-01). A hospital may appeal its rate and its application only if eireum- stances beyond the hospital’s control have caused rates to * * least 5% below actual allowable costs. Id. at Sec. „P. 2. Nursing Home (Attachment 4.19-D, Part 1, TN 88-6). The Plan permits a nursing home to file a request for reconsideration of the base year rate determination (or final settlement in the case of a change in ownership). Id. at Sec. IX, p. 17. The Medical Assistance Division Director delivers the request and his response to the Sec- retary of the Department of Human Services, who is em- powered (but not required) to hold a hearing. The Sec- retary’s final determination “shall be made in accordance with applicable provisions of the Plan.” Jd. at 18. NEW YORK Hospital (Attachment 4.19-A ( I), TN 85-34). The ap- peal procedure provided in the State Plan permits a hos- pital to appeal audit adjustments to its cost report, as to those items of the audit report that present a factual issue. Id. at 10. Pursuant to State Medicaid regulations, the State Commissioner of Health may consider rate revi- sions only for the following reasons: : 4 9 0 7 * bs 7 1 a N A-20 (1) mathematical or clerical errors in the rate cal- culation process, or in the development of [peer] groups, (2) mathematical or clerical errors in data submit- ted by the facility; (3) increases in the operating costs of a facility re- sulting from additional or expanded programs, staff or services mandated for the facility by the Commissioner ; . (4) increases in the operating expenses of a facility resulting from capital renovations, expansion, replacement or inclusion of programs, staff or services approved by the Commissioner through a certificate of need process; | for relief for intensity appeals, atypica * 3 of stay penalties, specialty hospital and physicians’ base to base noncomparability of cost data, nonprojectable capital, waiver of un- funded depreciation, return on investments of proprietary hospitals, and adjustment in target volume; (6) the reduction of costs related to the elimination of hospital inpatient service; (7) requests for relief from the ceiling provisions (8) requests for waivers of minimum utilization standards; and for reimbursement of costs which were = oS ae in the base year upon which the rate was established. N.Y. Comp. Code R. Regs. tit. 10, Sec. 86-1.17 (a) (1)- (9). The decision of the Commissioner is final unless a hearing is requested with a rate review officer. Id. at Sec. 86-1.17(b). The rate review officer may grant or deny the request for a hearing. Id. at Sec. 86-1.17(c) (2). The rate review officer shall make a recommenda- A-21 tion to the Commissioner of Health for final approval or disapproval. Id. at Sec. 86.1-17(c) (3). Nursing Home (Attachment 4.19-D, Part I, TN 86-4). The Plan permits a nursing home to appeal rate deter- minations only for increased costs resulting from utiliza- tion above 90 percent of bed capacity for a period of six months, errors in the cost and/or statistical data, sig- nificant new required or approved cost increases, or other changed circumstances. Id. at Sec. 86-2.14, p. 53. NORTH CAROLINA Hospital (Attachment 4.19-A, TN 88-17). Hospitals may request reconsideration of rate determinations by the Division of Medical Assistance. Id. at 2. Operating (as opposed to capital) rate appeals are considered only on the basis of additional cost of essential new services or changes in case mix, and even an adjusted rate cannot exceed the rate limits set by the Plan itself. Id. Nursing Home (Attachment 4.19-D, TN 88-15). The Plan permits a nursing home to appeal rate determina- tions in accordance with the procedures set forth in N.C. Admin. Code Tit. 10, r. 26.0200. (now r. 26K.000). Id. at .0106, p. 15. A rate may be adjusted on appeal only if the provider can demonstrate that an adjustment is necessary to protect the health and safety of its pa- tients and to sustain its financial viability. Id. The ad- justed rate may not exceed the maximum rate estab- lished in the Plan itself. Id. NORTH DAKOTA Hospital (Attachment 4.19-A, TN 87-13). The Plan merely assures that appeal procedures for hospital pro- viders are in place and remain unchanged. In a tele- phone conversation with the State Medical Services Division, we were informed that there are no formal procedures in place for hospitals to appeal rate deter- minations. A-22 Nursing Home (Attachment 4.19-D, TN 87-10). The Plan provides that a nursing home may appeal a rate determination to the Referee Supervisor, Department of Human Services. Id. at Sec. 75-02-06-17. Appeals are limited to those including a computation and the dollar amount which reflects the party’s claim as to the cor- rect computation and dollar amount for each disputed item. Id. OHIO Hospital (Attachment 4.19-A, TN 87-13). The Plan specifically excludes from the appeals process review of the methodology used to determine rates. Ohio Admin. Code, Sec. 5101 :3-2-0712(E), p. 11. Nursing Home (Attachment 4.19-D, TN 80-16). The appeal procedures in the Plan permit nursing homes an opportunity for a hearing under Chapter 119 of the Re- vised Code (Administrative Procedures Act) to contest a final fiscal audit. Ohio Admin. Code, Sec. 5101:3-1-57. Administrative action not subject to hearings under Chapter 119 may be reconsidered by the appropriate divi- sion chief upon written request by the provider to the Director of the Ohio Department of Public Welfare. Id. OKLAHOMA Hospital (Attachment 4:19-A, TN 86-17). The Plan provides an assurance that providers of hospital services may submit a request for rate review io the Director of the Department of Human Services for consideration and a final decision. Id. at p. 2. The Plan also indicates that providers are allowed an opportunity to submit additional evidence and a prompt administrative review regarding the appropriateness of the payment rate will be con- ducted. Id. Nursing Home (Medical Services Provider Manual). Oklahoma permits nursing homes to request review of nursing home payment rates to the Director of the De- partment of Human Services. Id. at Ch. 1, p. 12. The A-23 State also provides that facilities are allowed to submit additional evidence and receive prompt review of the appropriateness of the rate. Id. OREGON Hospital (Attachment 4.19-A, TN 88-17). Under the Plan, hespitals may request an appeal or exception to any State decision affecting payment rates pursuant to Or. Admin. R. 461-13-191 through 461-13-225. Jd. at 13. These regulations, which apply to hospitals and nursing homes, limit reconsiderations to: (1) individual institu- tional provider payment ratesetting; (2) issues related to prepaid capitated contracts; or (3) any other issues deemed appropriate by the ageney. Or. Admin. R. 461-13- 191 (2). As the only specific provision relating to rate- setting, the first clause should preclude the more general language of the third clause from authorizing broad- based appeals. Nursing Home (Attachment 4.19-D, Part 1, TN 87-34). The Plan states that a nursing home may appeal interim rates or year end settlements to the Senior Serv- ices Division. Id. at Sec. VI, p. 6. The hospital regula- tions described above also apply. PENNSYLVANIA The State Plan contains no provision for appeals by hospitals or nursing homes. Pennsylvania’s administra- tive regulations furnish providers a fair hearing process for certain medical assisti.nce decisions. 55 Pa. Code § 275.1(a), p. 275-1 (May, 1989). The regulations spe- cifically preclude administrative hearing officers from rendering a decision on the validity of a Departmental regulation, and from invalidating or modifying a regu- lation. Id. at Sec. 275.4(h), p. 275-21. RHODE ISLAND Hospital ( Attachment 4.19-A). The Plan provides a statewide “maxicap” on hospital operating expenses. Id. A-24 at 31. This amount is negotiated annually by representa- tives of the State and participating hospitals prior to commencement of the new rate year. While individual hospital budgets may be adjusted (through mediation or arbitration between a provider and the State), see id. at 46-50, the aggregate total of all hospital expenses in the state may not exceed this ceiling. Jd. at 31. Nursing Home (Principles of Reimbursement for Skilled Nursing and Intermediate Care facilities, TN 88-01). The Plan permits a nursing home to request a review of computation of the facility’s assigned rate if the provider is not in agreement with the base year or with application of the State’s Principles of Reimburse- ment for the applicable calendar years. Id. at 16. SOUTH CAROLINA Hospital (Attachment 4.19-A, TN 87-10). Hospitals may have their rates reconsidered only if one of the fol- lowing has occurred since the base year: (1) change in case mix; (2) error in calculation; (3) extraordinary circumstances. Id. at 25-26. The Plan specifically pro- hibits reconsideration (appeal) of the State’s rate meth- odology. Id. at 26. Nursing Home (Attachment 4. K P, TN 87-]4). The Plan permits nursing homes to appea a final audit determination in connection with a desk review of the provider’s cost report. Id. at 8. SOUTH DAKOTA Hospital (Attachment 4.19-A, TN 88-12). The Plan assures that the State Department of Social Services has administrative review procedures to meet the need for provider appeals required by 42 C.F.R. § 447.258 sic. ]. Id. at 4. Nursing Home (S. D. Admin. R. 67:16:04 :07.02 (19890). South Dakota regulations permit a facility to A-25 appeal only a disallowed expenditure or adjustment based on a Department audit of its cost report. Id. TENNESSEE Hospital (Attachment 4.19-A, TN 88-15). The Plan lacks a specific appeal procedure, but adjustments to a facility’s rate are permitted only for errors in computa- tion, additional capital expenditures pursuant to a certi- 1 of need, or significant changes in case mix. Id. at p. 10. Nursing Home. Tennessee's State Plan contains no pro- vision for rate appeals by nursing home providers. The State has no published procedures, but permits appeal of specific rates informally through the Comptroller of the Treasury, and formally through the State Administrative Procedures Act. TEXAS Hospital (Attachment 4.19-A, TN 89-20). Hospitals are permitted to appeal individual claims (as specified in the State Plan), mechanical, mathematical, and data entry error in base year claims data, and incorrectly computed subsequent adjustments to the hospital’s base year claims data. Id. at 5-7. The Plan expressly pre- cludes appeal of the prospective payment methodo used by the State. Jd: at 7. oad Nursing Home (Attachment 4.19-D, 85-2). The Plan assures that an appeals procedure for nursing home pro- viders is available to contest any cost report disallow- ance. Id. at 2. UTAH Hospital (Attachment 4.19-A, TN 89-11). The Plan assures that the State has administrative review proce- dures to handle provider appeals as required by 42 C. F. R. § 447.253 (e). Id. at Sec. 193. Nursing Home (Attachment 4. 19-D, TN 88-28). The Plan states that a nursing home may appeal an audit A-26 settlement or a revised payment rate. Id. at Sec. 920, p. 14. An appeal must identify a specific audit adjustment or rate calculation. Jd. The purpose of the appeal proce- dure is to allow individual providers an opportunity to submit additional evidence and receive prompt adminis- trative review, with respect to such issues as the agency determines appropriate, of payment rates. Jd. at 930. VERMONT Hospital (Attachment 4.19-A). The Plan merely as- sures that appeals of the rates set are allowed. Nursing Home (Attachment 4.19-D, TN 88-11). The Plan permits a nursing home to submit an appeal to the Division of Rate Setting. Appeals are limited to errors in the calculation of prospective rates. Id. Sec. 209. A party aggrieved by a final order of the Division has the option of appeal to the Vermont Supreme Court, trial de novo in superior court, or a hearing conducted by an ac- countant appointed by the Secretary of Human Services. Vt. Stat. Ann. tit. 33, Sec. 195. VIRGINIA Hospital (Attachment 4.19-A). The Plan specifically prohibits appeal of the use of Medicaid principles of re- imbursement to determine reimbursement of costs (other than operating costs for inpatient care), the calculation of the initial group ceilings on allowable operating costs for inpatient care, and the use of the Consumer Price Index as a prospective rate escalator. J.A. 33. Nursing Home (Attachment 4.19-D, TN 86-11). Nurs- ing homes may appeal the interpretation and application of the Plan’s principles of reimbursement. Id. at Sec. 3.3, p. 33. The Plan specifically prohibits appeal of the principles of reimbursement themselves. Id. at Sec. 3.1, p. 32. A-27 WASHINGTON Hospital (Division of Medical Assistance, Inpatient Hospital Rate Appeal, effective April 1, 1986). Wash- ington permits hospitals to appeal their rates by submit- ting a written notice, including a statement of the issue being appealed and the requested re-calculation of the rate. Id. at 1. The procedure allows appeals of compu- tation errors, errors in cost report data, or changes in case-mix or cost apportionment. Id. * Nursing Home (Attachment 4.19-D, TN 87-18). The Plan permits a nursing home to request a revision of its rate at any time. Id. at See. IV, p. 5. The provider may appeal first through an administrative review con- ference. Id. If the decision at the administrative review conference is adverse to the provider, a request for a fair hearing may be made in accordance with the Admin- istrative Procedure Act, Wash. Rev. Code, Sec. 34.04. Id. WEST VIRGINIA Hospital (Department of Human Services, Medicaid Program Regulations, Chapter 700). State Medicaid Program regulations (applicable to all Medicaid provid- ers) permit a provider to obtain administrative review through an “informal conference,” during which the pro- vider may present its case, provide additional informa- tion bearing on administrative action, or receive clarifica- tion or explanation of relevant policy. Id. at Sec. 764, p. 5. If dissatisfied, the provider may proceed to a for- mal hearing where the findings of fact and conclusions of law arrived at below may be challenged. Id. at Sec. 765.1, p. 6. Judicial review of this decision i Id. at Sec. 765.3, p. 6. oie. Nursing Home (Attachment 4.19-D, TN 86-7). The Plan contains only an assurance that there is an appeals or exceptions procedure for review of payment rates that allows individual providers to submit additional informa- tion and receive prompt administrative review. Id. at 7. A-28 The Medicaid regulations described above also apply to nursing homes. WISCONSIN Hospital (Attachment 4.19-A) The Plan assures that the State provides an appeal mechanism that allows providers the opportunity to submit additional evidence and to request prompt administrative review of payment rates. Jd. at 1. A hospital may seek a rate adjustment only for inappropriate calculation of rates (including clerical errors) or significant change in patient mix to include more low-income patients. Id. at 16. The Plan defines “inappropriate calculation of rates” to mean the application of the ratesetting methods to incomplete or incorrect data. Id. Nursing Home (Attachment 4.19-D, TN 89-0011). The Plan provides that a Nursing Home Appeals Board is available for redress in the event that a facility has extraordinary fiscal circumstances. Id. at Sec. 1.400. Providers also are permitted to appeal a final ratesetting action. Id. at Sec. 1.700. The Plan further provides that a nursing home may request an administrative review of cost-finding decisions. Jd. at Sec. 1.800. WYOMING HCFA’s copies of the Plan contain no provision for rate-related appeals by hospitals or nursing homes. The State’s Rules for Medicaid Administrative Hearings are separately printed, and apply to all Medicaid providers. Providers may appeal “adverse actions.” Id. at Sec. 4(a), p. 1. The rules specifically state that the term adverse action “does not include an appeal of ratesetting meth- odology.” Id. B-1 APPENDIX B Classification of Procedures for Rate-Related Appeals By Medicaid Providers In this Appendix, amici classify the procedures for rate-related appeals by Medicaid providers (hospitals and nursing homes) according to a number of relevant categories. States in which the procedure contains limi- tations fitting more than one category are listed only once, and the States in which we were unable to locate a procedure (hospital: New Hampshire, North Dakota) are not included. More detailed information on the rules of each jurisdiction and citations to these rules are fur- nished in Appendix A. B-2 ) L States In Which Appeals Are Limited To Correction Of Errors Or Changed Circumstances Limitation States Total Nursing Hospital Home A. Audit adjustments to or factual findings in cost reports, errors in calculation or computation 1. Hospital Florida, IIlinois“, Indiana, Massachusetts*, Mississippi*, Montana, New York*, Tennessee“, Washington“. Wisconsin“ 10 2. Nursing Home Alabama, Florida, Maryland. Nebraska, Nevada, New Vork“, South Carolina, South Dakota. Texas, Vermont, Wisconsin“ 11 B. Changed circumstances (patient case- mix. new services or capital expenditures, extraordinary circum- stances) since base year 1. Hospital Arkansas, Colorado, Kansas, Kentucky, Maryland, New Mexico 6 TOTALS 16 12 * Indicates procedure permits appeals under both A and B. B-3 II. States In Which Appeals Of Rate Methodology Specifically Prohibited Limitation States A. No appeal of principles of reimbursement or rate methodology 1. Hospital Alabama, Idaho, Michigan, Ohio, Pennsylvania, South Carolina, Texas, Wyoming 2. Nursing Home Idaho, Michigan, Pennsylvania, Virginia, Wyoming B. No appeal of key elements of rate methodology (e.g., inflation factor or rate ceilings) 1. Hospital California, Hawaii, Missouri, North Carolina, Rhode Island, Virginia 2. Nursing Home California, Hawaii, Missouri, North Carolina New Jersey, Georgia Indiana, Maine, Massachusetts, Mississippi, New Jersey, New Mexico Colorado, New Hampshire, Kentucky, Rhode Island Total Nursing Hospital Home 16 19 B-4 III. States In Which Particular Limitations Preclude Challenges To Ratesetting Methodology Limitation A. Appeals must be brought within specified time of adverse action b 1. Nursing Home B. Appeals must identify parti- cular computations and adjustments contested States Total Nursing Hospital Home Arkansas 1 1. Hospital 2. Nursing Home TOTALS Nevada 1 North Dakota, Utah B- 5 IV. States In Which Procedures Limited To Appeal Of Rates Or Rate Deter minations Limitation States A. Provider permitted to present new evidence and receive review of payment rates 1. Hospital Distriet of Columbia, Maine, Nebraska, Oklahoma, South Dakota, Utah 2. Nursing Home B. Provider permitted to appeal rate or rate determination 1. Hospital 2. Nursing Home TOTALS Louisiana, West Virginia Iowa, Louisiana, Oregon, Vermont District of Columiba, Georgia, Illinois, Montana, Oklahoma, Oregon, Tennessee, Washington Total Nursing Hospital Home 10 10 B-6 v. States In Which Appeal Of Rate Methodology May Be Permitted By Rule Rule States A. Provider may appeal action or decision of rate commission 1. Hospital Alaska, Arizona, Connecticut, Delaware, Minnesota 2. Nursing Home Alaska, Arizona, B. Provider may appeal validity or legality of rule Connecticut, Delaware 1. Hospital 2. Nursing Home C. Provider may appeal administrative action not otherwise provided for by letter West Virginia Iowa, Minnesota 1. Nursing Home TOTALS Ohio Total Nursing Hospital Home E 2 C-1 APPENDIX C List of Reported Federal Cases in Which Violations of The Boren Amendment Have Been Alleged ' AMISUB (PSL) v. Colorado Dept. of Social Services, 879 F.2d 789 (10th Cir. 1989), petition for cert. filed, 58 U.S.L.W. 3322 (U.S. Oct. 25, 1989) (No. 89-682); Hoodkroft Convalescent Center Inc. v. New Hampshire Division of Human Services, 879 F.2d 968 (Ist Cir. 1989) ; West Virginia Univ. Hosps. Inc. v. Casey, 885 F.2d 11 (3d Cir. 1989); Colorado Health Care Ass’n v. Colorado Dep't of Social Services, 842 F.2d 1158 (10th Cir. 1988) ; Wisconsin Ass’n v. Revitz, 820 F.2d 863 (7th Cir. 1987); Wilmac Corp. v. Bowen, 811 F.2d 809 (3d Cir. 1987); Coos Bay Care Center v. Oregon Dep’t of Human Re- sources, 803 F.2d 1060 (9th Cir. 1986), cert. granted, 481 U.S. 1036, vacated as moot, 484 U.S. 806 (1987); Nebraska Health Care Ass’n v. Dunning, 778 F.2d 1291 (8th Cir. 1985), cert. denied, 479 U.S. 1063 (1987) ; United Hosp. Center, Inc. v. Richardson, 757 F.2d 1445 (4th Cir. 1985) ; Hillhaven Corp. v. Wisconsin Dep’t of Health and Social Services, 733 F.2d 1224 (7th Cir. 1984) ; Oberlander v. Perales, 740 F.2d 116 (2d Cir. 1984) ; Alabama Hosp. Ass’n v. Beasley, 702 F.2d 955 (11th Cir. 1983) ; Mississippi Hosp. Ass’n, Inc. v. Heckler, 701 F.2d 511 (5th Cir. 1983) ; 1 Based on a search of West’s Federal Reporters, the Medicare & Medicaid Guide (CCH), WESTLAW, and LEXIS. C-2 Hadley Memorial Hosp. Inc. v. Schweiker, 689 F.2d 905 (10th Cir. 1982) ; Washington State Health Facility Ass’n v. Washington Dep’t of Social and Health Services, 698 F.2d 964 (9th Cir.1982) ; Charleston Memorial Hosp. v. Conrad, 693 F.2d 324 (4th Cir. 1982) ; Chicago Osteopathic Medical Centers v. Duffy, No. 88-C- 1174 (N. D. Ill. Oct. 27, 1989) (WESTLAW, Allfeds database) ; Pinnacle Nursing Home v. Axelrod, 719 F. Supp. 1173 (W.D.N.Y. 1989) ; Illinois Health Care Ass’n v. Suter, 719 F. Supp. 1419 (N. D. III. 1989); 461 Bluff Manor, Inc. v. Reagen, 713 F. Supp. 1535 (W. D. Mo. 1989); In re Saint Joseph's Hosp., 103 Bankr. 643 (Bankr. E. D. Pa. 1989); SSM Healthcare Systems v. Reagen, 681 F. Supp. 625 (W.D. Mo. 1988) ; Friedman v. Perales, 668 F. Supp. 216 (S.D.N.Y. 1987), aff'd 841 F.2d 47 (2d Cir. 1988); Vantage Healthcare v. Virginia Board of Medical As- sistance Services, 684 F. Supp. 1329 (E.D. Va. 1988); St. Tammany Parish Hosp. Service Dist. v. Dep’t of Health and Human Resources, 677 F. Supp. 455 (E.D. La. 1988) ; Bethany Medical Center v. Harder, 693 F. Supp. 968 (D. Kan. 1988), opinion amended, No. Civ. A. 85-2415-0 (D. Kan. July 1, 1988) ; Montoya v. Johnston, 654 F. Supp. 511 (W.D. Tex. 1987) ; Mary Washington Hosp., Inc. v. Fisher, 635 F. Supp. 891 (E.D. Va. 1985) ; C-3 — Inc., v. Heintz, 612 F. Supp. 81 (D. Conn. Hillhaven Corp. v. Wisconsin Dep’ ocial \ pt of Health and S Services, 634 F. Supp. 1313 (E.D. Wis. 1986) ; — 2 v. Perales, 616 F. Supp. 1363 (S. D. N. v. Hulburn v. Commissioner, Connecticut Dep’ | , pt of Income Maintenance, No. H-82-200 (D. Conn. July 17, 1985) (WESTLAW, Allfeds database) ; Florida Nursing Home Ass’n v. Paige, 596 F (S.D. Fla. 1984); * Supp. 1152 Illinois Council on Long Term Care v. Miller . 1 ; Supp. 1140 (N.D. III. 1983); Troutman v. Cohen, 588 F. Supp. 590 (E. D. P ö Supp. D. Pa. 1 aff'd, 755 F. 2d 924 (3d Cir. 1984); * In re Greenwald, 48 Bankr. 263 (S. D. N. v. 1984); Illinois Council on Long Term Care v. Coler, Nos. 83 . 4 . 83-C- 4812, 83-C-5245, 83-C-6574 (N. D. III. Sept. 24, 1984) (WESTLAW, Allfeds database) ; New York City Health and Hosps. C v. Heckler F. Supp. 226 (S. D. N. V. 1984) : N * Fort Tryon Nursing Home v. Perales, 592 F. Su (S.D.N.Y. 1984) ; *, GEE F. Supp. 818 California Ass’n of Bioanalysts v. Rank 1342 (C. D. Cal. 1983 eb a In re Park Nursing Center, Inc., 28 B E. D. Mich. 1983) ; 28 Bankr. 798 (Bankr. Thomas v. Johnston, 557 F. Supp. 879 (W.D. Tex. 1983) j Children’s Hosp. of Philadelphia v. Secreta . . ry of De p't of Public Welfare, 568 F. Supp. 1001 (E.D. Pa. 1983) : = C-4 Michigan Hosp. Ass’n v. Department of Social Services, 555 F. Supp. 675 (E.D. Mich. 1983) ; Children’s Memorial Hosp. v. Illinois Dep’t of Public Aid, 562 F. Supp. 165 (N.D. Ill. 1983) ; California Hosp. Ass’n v. Schweiker, 559 F. Supp. 110 (C.D. Cal. 1982), aff'd, 705 F.2d 466 (9th Cir. 1983); Illinois Hosp. Ass’n v. Illinois Dep’t of Public Aid, 576 F. Supp. 360 (N.D. III. 1983); Coalition of Michigan Nursing Homes, Inc. v. Dempsey, 537 F. Supp. 451 (E.D. Mich. 1982); Massachusetts Hospital Ass’n, Inc. v. Harris, 500 F. Supp. 1270 (D. Mass. 1980). D-1 APPENDIX D Listing of Additional Amici Curiae Affiliates of the American Health Care Association: Alabama Nursing Home Association Health Association of Alaska Arizona Health Care Association Arkansas Health Care Association California Association of Health Facilities Colorado Health Care Association Connecticut Association of Health Care Facilities Delaware Health Care Facilities Association District of Columbia Health Care Association Florida Health Care Association Georgia Health Care Association Healtheare Association of Hawaii Idaho Health Care Association Illinoie Health Care Association Indiana Health Care Association Iowa Health Care Association Kansas Health Care Association Kentucky Association of Health Care Facilities Louisiana Health Care Association Maine Health Care Association Health Facilities Association of Maryland Massachusetts Federation of Nursing Homes, Inc. Health Care Association of Michigan Care Providers of Minnesota Mississippi Health Care Association Missouri Health Care Association Montana Health Care Association Nebraska Health Care Association Nevada Health Care Association New Hampshire Health Care Association New Jersey Association of Health Care Facilities New Mexico Health Care Association New York State Health Facilities Association North Carolina Health Care Association D-2 North Dakota Long Term Care Association Ohio Health Care Association Oklahoma Nursing Home Association Oregon Health Care Association Pennsylvania Health Care Association Rhode Island Health Care Association South Carolina Health Care Association South Dakota Health Care Association Tennessee Health Care Association Texas Health Care Association Utah Health Care Association Vermont Health Care Association Washington Health Care Association West Virginia Health Care Association Wisconsin Association of Nursing Homes Wyoming Health Care Association Affiliates of the American Association of Homes for the Aging: Arizona Association of Homes for the Aging Association of Massachusetts Homes for the Aging Association of Ohio Philanthropic Homes and Housing for Aging California Association of Homes for the Aging Colorado Association of Homes and Services for the Aging Connecticut Association of Non-Profit Facilities for Aged Florida Association of Homes for the Aging Georgia Association of Homes and Services for the Aging Illinois Association of Homes for the Aging Indiana Association of Homes for the Aging Iowa Association of Homes for the Aging Kansas Association of Homes for the Aging Kentucky Association of Homes for the Aging Louisiana Association of Homes and Services for Aging D-3 Maryland Association of Non-Profit Homes for the Aging. Michigan Non-Profit Homes Association Minnesota Association of Homes for the Aging Missouri Association of Homes for the Aging Montana Association of Homes for the Aging Nation’s Capital Area Association of Homes for the Aging New Jersey Association of Non-Profit Homes for the Aging New York Association of Homes and Services for the Aging North Carolina Association of Non-Profit Homes for the Aging North Dakota Nursing Home Association Oregon Association of Homes for the Aging Pennsylvania Association of Non-Profit Homes for the Aging Rhode Island Association of Facilities for the Aged South Dakota Association of Homes for the Aging Texas Association of Homes for the Aging Virginia Association of Nonprofit Homes for the Aging Washington Association of Homes for the Aging Wisconsin Association of Homes and Services for the Aging --- Source: Frix Law Library, https://www.frixlaw.com/law-library/documents/brief%3Amicro_IA40385012_0517%3A13. Public record. Not legal advice.