Determination-Making Authority

2831 – Determination-Making Authority (Rev. 132; Issued: 01-16-15, Effective: 01-16-15, Implementation: 01-16-15) 2831A – Survey Agency and State Medicaid Agency Interaction Section 1902(a)(33) of the Act requires that the same State survey agency (SA) that certifies Medicare provider and supplier eligibility also make the determination of eligibility to participate in Medicaid. The law also requires that there be a separately designated single SA responsible for the overall management of the Medicaid program (42 CFR 431.610(b)). Therefore, in each State, a State Medicaid Agency (SMA) is ultimately responsible for Medicaid program administration. Each SMA enters into an interagency agreement with its certifying SA establishing the determination-making function of the SA and providing for the application of Federal certification standards and procedures. In addition, 42 CFR 431.610(e) and (f) require that the Medicaid State plan must designate the agency that is responsible to ensure that institutions and agencies meet the requirements for participation in the Medicaid program. The SMA must accept the SA’s certification decisions as final, but exercise its own determination whether to enter into an agreement with psychiatric residential treatment facilities (PRTFs), while if the SA determines the PRTF is out of compliance, the SMA may not enter into an agreement. The SMA is responsible for reviewing certifications to ensure that the SA adhered to procedural requirements. If the SMA disagrees with the SA’s certification, the SMA should first contact the SA to resolve the issue. If the issue is not resolved after contact with the SA, the SMA should present the issue to the applicable CMS-Regional Office (RO). (See discussion in State Medicaid Manual (SMM) §2084.3A). 2831B – Authorization of Certification Expenditures Authority to approve Medicare certification budgets and expenditures is delegated to the designated CMS Consortium or Regional Administrator(s). Authority to approve or disapprove Federal Financial Participation (FFP) in Medicaid certification expenses is delegated to the CMS Associate Regional Administrators or the Consortium Survey and Certification Officer where an Associate Regional Administrator is not present. 2831C – Look-Behind Authority on State Determinations The Secretary has authority under §§1902(a)(33), 1919(g)(3), and 1910(b)(1) of the Act cancel approval of all Medicaid facilities that do not meet Federal health or safety requirements. Such a determination is in lieu of, or overrides a determination by the State and is binding on the SMA. Section 1902(a)(33) of the Act gives CMS the authority to question State determinations regarding Medicaid facilities' compliance with Federal requirements and authorizes CMS to make independent and binding determinations concerning the extent to which individual institutions and agencies meet requirements for participation. CMS has the authority to “look behind” State determinations and, with cause, to make binding determinations. This authority allows CMS to validate State determinations concerning the extent to which individual institutions and agencies meet the requirements for participation (Section 1902 (a)(33)(B) of the Act). This look behind authority accords CMS the ability to cancel the approval of a facility to participate in the Medicaid program when CMS determines the facility fails to comply substantially with the Conditions of Participation. (See Section 1902 (a)(33)(B) and SMM §2084.3). Also refer to 42 CFR Part 483, Subpart G for PRTF Conditions of Participation. Another part of CMS’s look- behind authority provides that a provider agreement is considered by CMS to be invalid for purposes of providing FFP to the State if the State failed to adhere to federal procedures. For example, the SMA may have issued the provider agreement even though the SA determined that the facility was not in compliance with the COP. In that case, the agreement is void from its inception. This authority is established by Section 1902 (a)(33)(B) of the Act. (See discussion of look behind authority in SMM §2084.3 and SOM §3042). 2831D – Appeals 2831D.1- State Appeals A State has the right to appeal the Administrator’s decision to withhold federal funds for Medicaid programs due to failure to comply with the Federal regulations; as stated in 42 CFR Part 430 Subpart D “(a) This subpart sets forth the rules for hearings to States that appeal a decision to disapprove State plan material (under §430.18) or to withhold Federal funds (under §430.35), because the State plan or State practice in the Medicaid program is not in compliance with Federal requirements. (b) Nothing in this subpart is intended to preclude or limit negotiations between CMS and the State, whether before, during, or after the hearing to resolve the issues that are, or otherwise would be, considered at the hearing. Such negotiations and resolution of issues are not part of the hearing, and are not governed by the rules in this subpart except as expressly provided.” 2831D.2 – Facility Appeals If a Medicaid-only facility requests a hearing, such hearing must be completed either before or within 120 days after the effective date of the adverse action. (See SMM §2040.) Detailed Medicaid appeal procedures are provided by the State. In the case of “look-behind” terminations, CMS notifies the facility of the termination and whether it has a right to request a hearing before a Federal Administrative Law Judge. Although a facility can appeal a look-behind determination that found the facility out of compliance with the conditions of participation, the facility has no right to request for an appeal in cases where CMS disallowed FFP on the grounds of an SA’s improper or inappropriate certification of the facility. (See SMM §2084.3E). 2831E – Accreditation Federal regulations at 42 CFR 441.151(2)(ii) require that PRTFs are to be accredited by the Joint Commission, the COA, the CARF or by any other accrediting organization with comparable standards that is recognized by the State.