§ 1101.84. Provider right of appeal.
(a) Right to appeal from termination of a provider’s enrollment and participation. If a provider’s enrollment and participation are terminated by the Department, the provider may appeal the Department’s decision, subject to the following conditions:
(1) If a provider’s enrollment and participation are terminated by the Department under the provider’s termination or suspension from Medicare or conviction of a criminal act under § 1101.75 (relating to provider prohibited acts), the provider may appeal the Department’s action only on the issue of identity.
(2) If the Department has terminated a provider’s enrollment and participation for an additional cause unrelated to the conviction or disciplinary action as specified in § 1101.77(b)(3) (relating to enforcement actions by the Department), the provider may only appeal the period of the termination attributable to that additional cause.
(3) A written Notice of Appeal shall be filed within 30 days of the date of the notice of termination. The Notice of Appeal will be considered filed on the date it is received by the Director, Office of Hearings and Appeals.
(4) The Notice of Appeal shall include a copy of the letter of termination, state the actions being appealed and explain in detail the reasons for the appeal.
(b) Right to appeal interim per diem rates, audit disallowances or payment settlements.
(1) A hospital, nursing home or other provider reimbursed by the Department on the basis of an interim per diem rate that is retrospectively adjusted on the basis of the provider’s cost experience during the period for which the interim rate is effective can appeal its interim per diem rate, the results of its annual audit or its annual payment settlement as follows:
(i) The Notice of Appeal of an interim rate shall be filed within 30 days of the date of the letter from the Bureau of Reimbursement Methods, Office of Medical Assistance, advising the provider of its interim per diem rate.
(ii) The Notice of Appeal from an audit disallowance shall be filed within 30 days of the date of the letter from the Bureau of Reimbursement Methods, Office of Medical Assistance, or the Bureau of State-Aided Audits, Office of the Auditor General, transmitting the provider’s audit report. If a facility fails to appeal from the auditor’s findings at audit, the facility may not contest the finding in another proceeding.
(iii) The Notice of Appeal of the final payment settlement shall be appealed within 30 days of the date of the letter from the Comptroller of the Department, advising the provider of the final settlement of accounts.
(2) The Notice of Appeal shall include a copy of the letter establishing the interim per diem rate, the letter forwarding the audit report or the letter setting forth the payment settlement, as applicable, to the provider. The Notice of Appeal also shall set forth in detail the reasons for the appeal.
(3) The Notice of Appeal will be considered filed on the date it is received by the Director, Office of Hearings and Appeals.
(4) This paragraph applies to overpayments relating to cost reporting periods ending prior to October 1, 1985. If an analysis of a provider’s audit report by the Office of the Comptroller discloses that an overpayment has been made to the provider, the Comptroller of the Department shall advise the provider of the amount of the overpayment. The provider shall repay the amount of the overpayment within 6 months of the date the Comptroller notifies the provider of the overpayment. The repayment period will commence on the date set forth in the notice from the Comptroller of the overpayment. If repayment is not made within 6 months, the Department will recoup the amount of the overpayment from future payments to the provider.
(5) An appeal of an audit disallowance does not suspend the provider’s obligation to repay the amount of the overpayment to the Department.
(c) Right to appeal other action of the Department. Appeals of other adverse actions of the Department shall be filed in writing within 30 days of the date of the notice of the action to the provider. The Notice of Appeal will be considered filed on the date it is received by the Director, Office of Hearings and Appeals.
The Notice of Appeal shall include a copy of the notice of adverse action sent to the provider by the Department and shall set forth in detail the reasons for the appeal.
(d) Nonappealable actions. The provider does not have the right to appeal the following:
(1) Disallowances for services or items provided to noneligible individuals.
(2) Invoice adjustments to correct clerical errors or to reduce the amount billed to the maximum fee allowed by the Department.
(3) Disallowances for untimely submission of invoices, except where it is alleged the Department has directly caused the delay.
(4) Disallowances for services or items rendered during a period of nonenrollment or termination, except on the issue of identity.
(5) Rejection of an application to re-enroll a terminated or excluded provider prior to the date the Department specified that it would consider re-enrollment.
Authority The provisions of this § 1101.84 issued under: sections 403(a) and (b), 441.1 and 1410 of the Public Welfare Code (62 P. S. § § 403(a) and (b), 441.1 and 1410); amended under sections 201 and 443.1 of the Public Welfare Code (62 P. S. § § 201 and 443.1).
Source The provisions of this § 1101.84 adopted November 18, 1983, effective November 19, 1983, 13 Pa.B. 3653; amended February 5, 1988, effective February 6, 1988, 18 Pa.B. 556. Immediately preceding text appears at serial pages (117328) to (117331).
Notes of Decisions No basis existed to allow Medical Assistance program provider to pursue separate appeals regarding disputed audit findings of Department of Public Welfare’s final cost settlement report regarding reimbursement claims; dismissal of appeal transferred from Board of Claims to Bureau of Hearings and Appeals was warranted since provider had other appeal before Bureau which provided adequate remedy to seek relief and the transferred appeal challenged same cost adjustments. Lancaster v. Department of Public Welfare, 916 A.2d 707, 712 (Pa. Cmwlth. 2006).
A petitioner’s failure to correct or respond not once, but twice, to a request regarding the lack of specificity of issues stated on the Notice of Appeal was unreasonable and justified dismissal of the appeal. Greensburg Nursing and Convalescent Center v. Department of Public Welfare, 633 A.2d 249 (Pa. Cmwlth. 1993).
In the absence of a timely appeal, a request to reopen a cost report was discretionary. Quincy United Methodist Home v. Department of Public Welfare, 530 A.2d 1026 (Pa. Cmwlth. 1987).
There is an ambiguity between the 30-day time requirement of this section and the limitation that all resubmissions be received within 365 days of the date of service under § 1101.68. Nayak v. Department of Public Welfare, 529 A.2d 557 (Pa. Cmwlth. 1987).
Nursing care facilities have the right to appeal any adjustments made by the Department of Public Welfare based on audits performed after the facility filed its annual ‘‘cost report’’. Harston Hall Nursing and Convalescent Home, Inc. v. Department of Public Welfare, 513 A.2d 1097 (Pa. Cmwlth. 1986).
This section provides the administrative remedy for providers whose bills have been rejected for payment by the Department, and failure of the Department to afford this avenue of relief may result in an equitable estoppel preventing the Department from claiming these bills were not timely submitted. Brog Pharmacy v. Department of Public Welfare, 487 A.2d 49 (Pa. Cmwlth. 1985).
Cross References This section cited in 55 Pa. Code § 41.3 (relating to definitions); 55 Pa. Code § 1101.69 (relating to overpayment—underpayment); 55 Pa. Code § 1101.69a (relating to establishment of a uniform period for the recoupment of overpayments from providers (COBRA)); 55 Pa. Code § 1101.74 (relating to provider fraud); 55 Pa. Code § 1127.81 (relating to provider misutilization); 55 Pa. Code § 1150.59 (relating to PSR program); 55 Pa. Code § 1181.68 (relating to upper limits of payment); 55 Pa. Code § 1181.73 (relating to final reporting); 55 Pa. Code § 1181.101 (relating to facility’s right to a hearing); 55 Pa. Code § 1187.113b (relating to capital cost reimbursement waivers—statement of policy); 55 Pa. Code § 1187.141 (relating to nursing facility’s right to appeal and to a hearing); 55 Pa. Code § 1189.141 (relating to county nursing facility’s right to appeal and to a hearing); 55 Pa. Code § 6210.122 (relating to additional appeal requirements); and 55 Pa. Code § 6210.125 (relating to right to reopen audit).
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