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Nursing Home Lawsuit
Topic: Nursing Home Written Plan of Care for Therapy Services
3 No. 85
In the Matter of Elcor Health Services Inc.,
Appellant,
v.
Antonia Novello, as Commissioner of Health of the State of New York et al.,
Respondents.
2003 NY Int. 88
June 26, 2003
Thomas G. Smith, for appellant.
Kathleen M. Treasure, for respondents.
New York State Health Facilities Association, amicus curiæ.
CIPARICK, J.:
The primary question presented by this appeal is whether deference should be afforded to the Department of Health's interpretation of 10 NYCRR 86-2.30(i)(27) to require “actual improvement” by a patient before a residential health care facility can receive reimbursement for restorative therapy. We conclude that the Department's interpretation is not arbitrary and capricious, or irrational, and is therefore entitled to deference. When a patient is admitted to a residential health care facility (RHCF) or nursing home, his or her physician is required to prepare a written plan of care for therapy services including rehabilitative therapy. A physical therapist then determines what specific type of rehabilitative therapy need be provided.
Under the Medicaid reimbursement system, RHCFs are entitled to different rates of reimbursement depending in part upon the type of care their patients require and receive. In order to determine the appropriate reimbursement rate, each patient is placed into one of 16 categories known as Resource Utilization Groups (RUGs) ( see New York State Assn. of Counties v Axelrod, , 78 NY2d 158, 162 [1991]; see generally Jewish Home & Infirmary of Rochester v Commissioner of Dept. of Health, , 84 NY2d 252 1994). The 16 RUGs are further divided into five hierarchical groups based on the patient's ability to perform the activities of daily living (ADL). A qualified registered nurse assessor places each patient into a RUG category by completing a patient review instrument (PRI) ( see 10 NYCRR 86-2.30[c][2]). PRIs must be completed for each patient every six months ( see 10 NYCRR 86- 2.11[b][1]); there is, however, an opportunity to evaluate new patients every three months ( see 10 NYCRR 86-2.11[b][2]). Each RUG category
is assigned a numerical value based upon the resources necessary to care for that type of patient, with a greater value assigned to categories that require more resources. The weighted average of a facility's patients in each category is its case mix index (CMI) ( see 10 NYCRR 86-2.10[a][5]).
As a result, the direct component[1] of a facility's Medicaid reimbursement rate ( see 10 NYCRR 86-2.10[c]) reflects its CMI -- the higher the CMI, the higher the reimbursement rate. In other words, a facility that has more patients requiring intensive services will receive a greater reimbursement rate. Several PRI questions call for documentation qualifiers, which require certain medical record support in order to classify a patient properly.
At issue here are documentation qualifiers for maintenance therapy and restorative therapy. To satisfy the documentation qualifier for restorative therapy, the instructions require that “[t]here is a positive potential for improved functional status within a short and predictable period of time. Therapy plan of care and progress notes should support that patient has this potential/is improving” (10 NYCRR 86- 2.30[i][27]). The documentation qualifier for maintenance therapy requires that “[t]herapy is provided to maintain and/or retard deterioration of current functional/ADL status. Therapy plan of care and progress notes should support that patient has no potential for further or any significant improvement” (10 NYCRR 86-2.30[i][27]). The Department also prepared a Clarification Sheet to assist nursing homes in completing the PRIs.
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