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Appropriateness Review

Published online by Cambridge University Press:  01 January 2021

W. Thomas Berriman
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Extract

During the last half of 1980, health systems agencies (HSAs) throughout the country will be conducting appropriateness reviews for the first time. For many HSAs, this will be their initial venture into reviewing existing institutional health services, as distinguished from their reviews of proposed capital expenditures and new institutional health services under the authority of Section 1122 of the Social Security Act or state certificate of need (CON) laws. The scope, content, and effect of appropriateness reviews present numerous areas of uncertainty, some of which this article will examine.

Appropriateness review was enacted originally as part of the National Health Planning and Resources Development Act of 1974 (the “Act”). It was a compromise. The concept originated among health planners who were dissatisfied with their inability to initiate changes in the health care delivery system. This weakness resulted from their essentially reactive posture in reviewing new projects proposed by existing facilities.

Type
Health Planning
Information
Medicolegal News , Volume 8 , Issue 6 , December 1980 , pp. 15 - 17
Copyright
Copyright © American Society of Law, Medicine and Ethics 1980

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References

P.L. 92–603, 42 U.S.C. §1320a–1.Google Scholar
P.L. 93–641, 42 U.S.C. §300k et seq.Google Scholar
H.R. Rep. NO. 93–1382, 93d Cong., 2d Sess. (1974); S. Rep. NO. 93–1285, 93d Cong., 2d Sess. (1974).Google Scholar
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H.R. 16204, 93d Cong., 2d Sess. Sections 1413(g) and 1423(a)(5)(1974); S. 2994, 93d Cong., 2d Sess., Sections 1413(h)(1) and 1423(a)(4)(1974).Google Scholar
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P.L. 93–641, Section 1513(g), 42 U.S.C. §300/–2(g) (HSA) and Section 1523(a)(6), 42 U.S.C. §300m-2(a)(6) (SHPDA). It should be noted, however, that the regulations require both HSAs and SHPDAs “to the extent practicable” to “make recommendations for remedial action.” 42 C.F.R. §§122.508(d) and 123.608(d). See note 49 and accompanying text, infra.Google Scholar
P.L. 93–641, Section 1513(g), 42 U.S.C. §300/–2(g) (HSA). SHPDAs were required to complete their findings with respect to appropriateness within one year after receiving the recommendation of a health systems agency. P.L. 93–641, Section 1523(b)(3), 42 U.S.C. §300m-2(b)(3).Google Scholar
42 C.F.R. §122.104(b)(9).Google Scholar
42 C.F.R. §122.107(c)(15).Google Scholar
Notice of Proposed Rulemaking, Health Systems Agency and State Agency Reviews of the Appropriateness of Existing Institutional Health Services and of Proposed New Institutional Health Services, 43 Fed. Reg. 21274–82 (May 16, 1978).Google Scholar
Final Regulations, Health Systems Agency and State Agency Reviews of the Appropriateness of Existing Institutional Health Services, 44 Fed. Reg. 71754–73 (Dec. 11, 1979). The final regulations are to be codified in Title 42, C.F.R., as a new Subpart F to Part 122, §§122.501–122.508 (HSAs), and as a new Subpart G to Part 123, §§123.601–123.608 (SHPDAs). Hereinafter, references to the final regulations will be cited as they will appear upon codification.Google Scholar
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This change was made in both Section 1513(g)(1), 42 U.S.C. §300/-2(g)(1) and Section 1523(a)(6), 42 U.S.C. §300m-2(a)(6).Google Scholar
E.g., North Carolina, North Carolina Appropriateness Review Work Program (Feb. 1980–Dec. 1983).Google Scholar
E.g., Pennsylvania, Appropriateness Review Regulations (proposed), 28 Pa. Code §501.5, Services Scheduled for Review, 10 Pennsylvania Bulletin 1695, 1698 (April 26, 1980).Google Scholar
42 C.F.R. §123.603(b)(2).Google Scholar
42 C.F.R. §122.503(b)(2); see also U.S. Department of Health and Human Services Program Policy Notice No. 80–03, January 16, 1980, p. 6, second paragraph (hereinafter referred to as “Program Policy Notice No. 80–03”).Google Scholar
42 C.F.R. §§122.505 and 123.605.Google Scholar
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Criteria shall be developed after consultation with other planning and health planning agencies in the region and state; notice must be given of the availability of proposed criteria; opportunity must be afforded for public comment; and adopted criteria must be distributed to affected persons. 42 C.F.R. §§122.504 and 122.305 apply these requirements to HSAs and 42 C.F.R. §§123.604 and 123.406 impose them on SHPDAs.Google Scholar
Program Policy Notice No. 80–03, supra note 21, p. 5, last paragraph.Google Scholar
Section 1513(g)(3), 42 U.S.C. §300l-2(g)(3) applies to HSAs and Section 1523(a)(6), 42 U.S.C. §300m-2(a)(6) applies to SHPDAs.Google Scholar
42 U.S.C. §300n-1(c).Google Scholar
Section 1532(a), 42 U.S.C. §300n-1(a).Google Scholar
Program Policy Notice No. 80–03, supra note 21, requires that the appropriateness review function must be initiated, in general, not later than June 11, 1980.Google Scholar
The federal government is apparently not immune from this temptation. Compare the appropriateness review criteria set forth in 42 C.F.R. §123.607 with the criteria for certificate of need and review of new institutional health services set forth in 42 C.F.R. §123.409.Google Scholar
The National Guidelines for Health Planning set forth, inter alia, Standards Respecting the Appropriate Supply, Distribution, and Organization of Health Resources, 42 C.F.R. §121.201 et seq.Google Scholar
42 C.F.R. §121.207(a).Google Scholar
Pursuant to 42 C.F.R. §123.104(b) (11), SHPDAs must require health care facilities and HMOs to supply such statistical and other information on health and health care as the agency finds necessary for its purposes.Google Scholar
42 C.F.R. §123.603(b)(3).Google Scholar
Section 1513(b)(1), 42 U.S.C. §300l-2(b)(1); see also 42 C.F.R. §123.603(b)(3).Google Scholar
42 C.F.R. §123.605(a)(3).Google Scholar
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Id., at col. 3. This view is based on the language of §1513(g) apparently limiting HSA recommendations to “the appropriateness in the area” of the services being reviewed, 42 U.S.C. §300l-2(g).Google Scholar
H.R. Rep. NO. 96–309, 96th Cong., 1st Sess., p. 88 (1979).Google Scholar
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H.R. Rep. NO. 96–309, 96th Cong., 1st Sess., p. 88 (1979). Interestingly, the Committee Report cited to justify that statement of Congressional intent (H.R. Rep. NO. 93–1382, 93d Cong., 2d Sess., p. 79 (1974), cited in the “Supplementary Information,” 44 Fed. Reg. 71754 (Dec. 11, 1979)) was specifically disavowed by Representative Paul Rogers, Chairman of the Subcommittee who developed the bill and was its floor manager. For the Secretary to cite the repudiated language in support of optional sanctions is, at best, misleading.Google Scholar
120 Cong. Rec. H11, 847–48 (Dec. 13, 1974).Google Scholar
44 Fed. Reg. 71754, col. 3 (Dec. 11, 1979).Google Scholar
Section 1523(a)(6), 42 U.S.C. §300m-2(a)(6).Google Scholar
44 Fed. Reg. 71754, col. 3 (Dec. 11, 1979).Google Scholar