§ 1181.568. How long it will take to get a decision.
Under Chapter 275 (relating to appeal and fair hearing and administrative disqualification hearings), a decision on appeals will be issued within 90 days of the date on which the appeal is received by the Office of Hearings and Appeals. Chapter 275 provides that the decisions are subject to reconsideration by the Department and, if the decision is adverse to the individual who filed the appeal, subject to appellate review before the Commonwealth Court of Pennsylvania.
APPENDIX A
[Reserved]
APPENDIX B
[Reserved]
APPENDIX C
[Reserved]
Source The provisions of this Appendix C codified July 24, 1981, effective retroactively to October 1, 1980, 11 Pa.B. 2610; amended March 5, 1982, effective retroactively to July 1, 1981, 12 Pa.B. 869; amended March 25, 1983, effective retroactively to July 1, 1982, 13 Pa.B. 1140; amended April 1, 1983, effective April 1, 1983, 13 Pa.B. 1185; amended February 17, 1984, effective July 1, 1983, 14 Pa.B. 546; corrected March 2, 1984, effective July 1, 1983, 14 Pa.B. 731; reserved September 6, 1985, effective September 7, 1985, 15 Pa.B. 3181. Immediately preceding text appears at serial pages (99469) to (99472).
APPENDIX D
[Reserved]
APPENDIX E
SKILLED NURSING CARE
I. Introduction.
(a) The Department has developed criteria to be used in determining whether an applicant or recipient is medically eligible for skilled level of care. To be determined medically eligible for skilled level of care, a recipient must receive at least one skilled care service which meets all of the requirements specified in section II(a). If any one of the requirements specified in section II(a) are not met, the service does not qualify as a skilled care service and recipient cannot be determined to be medically eligible for skilled level of care.
(b) If an applicant is applying for nursing facility care from a nonnursing facility setting and, therefore, does not meet certain conditions, such as receiving a skilled care service on an inpatient basis, the determination should be made based on what services the physician would order and the applicant would receive if the applicant were admitted to a skilled nursing facility.
II. Skilled Care Services.
(a) For an individual service provided to the recipient to be considered a skilled care service, the service shall:
(i) Be required and provided to the recipient on a daily basis.
(ii) Be ordered and provided under the direction of a physician.
(iii) Require the skills of, and be provided either directly by or under the supervision of, medical professionals; for example, registered nurse, licensed practical nurse, physical therapist, occupational therapist, speech pathologist or audiologist.
(iv) Be one that, as a practical matter, can only be provided in a skilled nursing facility on an inpatient basis.
(v) Be documented in the recipient’s medical record consistent with standard medical practice.
(b) Skilled care services, as specified in the Skilled Nursing Care Assessment Form Handbook, fall into three categories: skilled nursing services, skilled rehabilitative services and skilled nursing/rehabilitative services.
(i) Skilled nursing services, as specified in the Skilled Nursing Care Assessment Form Handbook include:
(A) Intravenous, intramuscular, or subcutaneous injections and hypodermocylsis or intravenous feedings.
(B) Levin tube and gastrostomy feedings.
(C) Nasopharyngeal and tracheostomy aspiration.
(D) Insertion and sterile irrigation and replacement of catheters.
(E) Application of dressings involving prescription medications and aseptic techniques.
(F) Treatment of extensive decubitus ulcers or other widespread skin disorders.
(G) Heat treatments which have been specifically ordered by a physician as part of active treatment and which require observation by nurses to adequately evaluate the recipient’s progress.
(H) Initial phases of a regimen involving administration of medical gases.
(I) Rehabilitative nursing procedures, including related teaching and adaptive aspects of nursing, that are part of active treatment.
(J) Another skilled nursing procedure that the recipient needs and meets the requirements of section II(a).
(ii) Skilled rehabilitative services, as specified in the Skilled Nursing Care Assessment Form Handbook include:
(A) Therapeutic exercises or activities.
(B) Gait evaluation and training.
(C) Range of motion exercises.
(D) Maintenance therapy: design and establishment of a maintenance program by a qualified therapist based on an initial evaluation and periodic reassessment of the recipient’s needs and consistent with the recipient’s capacity and tolerance.
(E) Ultrasound, shortwave, and microwave therapy.
(F) Hot pack, hydrocollator, infrared treatments, paraffin baths and whirlpool.
(G) Services of a speech pathologist or audiologist when necessary for the restoration of function in speech or hearing.
(H) Other skilled rehabilitative services that the recipient needs and meets the requirements of section II(a).
(iii) Skilled nursing/rehabilitative services as specified in the Skilled Nursing Care Assessment Form Handbook include:
(A) Overall management and evaluation of care plan—The development, management and evaluation of a patient care plan based on the physician’s orders constitute skilled services when, because of the recipient’s physical or mental condition, those activities require the involvement of technical or professional personnel to meet the recipient’s needs, promote recovery and ensure medical safety. This includes the management of a plan involving a variety of personal care services—nonskilled services—when, in light of the recipient’s condition, the aggregate of those services requires the involvement of technical or professional personnel. A condition that does not ordinarily require skilled services may require them because of special medical complications. Under these circumstances, a service that is usually nonskilled may be considered skilled because it must be performed or supervised by skilled nursing or rehabilitative personnel. In situations of this type, the complications, and the skilled services they require, shall be documented by physicians’ orders and nursing or therapy notes. Skilled planning and management activities are not always specifically identified in the recipient’s clinical record. Therefore, if the recipient’s overall condition supports a finding that recovery and safety can be assured only if the total care is planned, managed and evaluated by technical or professional personnel, it is appropriate to infer that skilled services are being provided.
(B) Observation and assessment of the patient’s changing condition—Observation and assessment constitute skilled services when the skills of a technical or professional person are required to identify and evaluate the recipient’s need for modification of treatment for additional medical procedures until the recipient’s condition is stabilized. The need for services of this type shall be documented by physicians’ orders and/or nursing or therapy notes.
(C) Patient education services—Patient education services are skilled services if the use of technical or professional personnel is necessary to teach a recipient self-maintenance.
Source The provisions of this Appendix E adopted January 7, 1983, effective January 8, 1983, 13 Pa.B. 148; amended March 10, 1989, effective immediately and applies retroactively to February 23, 1988, 19 Pa.B. 999.
Notes of Decisions Appendix E II (c) does permit the DPW to consider, in accordance with interpretations of the Social Security Act, a patient’s overall condition in the course of determining level of care. Fifty Residents of Park Pleasant v. Commonwealth, 503 A.2d 1057 (Pa. Cmwlth. 1986).
The Department’s regulations at 55 Pa. Code Chapter 1181 Appendix E, do comply with the corresponding Federal regulations, cf. 42 CFR 409.32-409.36. Fifty Residents of Park Pleasant v. Commonwealth, 503 A.2d 1057 (Pa. Cmwlth. 1986).
Appendix E II (c) is consistent with 42 CFR 409.33(a), the ‘‘catch-all’’ Federal regulation; and petitioners receiving personal care services, but whose conditions did not warrant the services of medical professionals, did not qualify under either regulation. Barnett v. Department of Public Welfare, 491 A.2d 320 (Pa. Cmwlth. 1985).
Cross References This appendix cited in 55 Pa. Code § 1181.2 (relating to definitions); 55 Pa. Code § 1181.53 (relating to payment conditions related to the recipient’s initial need for care) and 55 Pa. Code § 1181.54 (relating to payment conditions related to the recipient’s continued need for care).
APPENDIX F
HEAVY CARE/INTERMEDIATE SERVICES
I. Introduction.
The Department has developed criteria to be used in determining whether an applicant or recipient is medically eligible for the heavy care/intermediate level of care. To be determined medically eligible for the heavy care/intermediate level of care, a recipient shall meet the requirements in Section II. If any one of the requirements specified in Section II are not met, the recipient cannot be determined to be medically eligible for the heavy care/intermediate level of care.
II. Heavy care/intermediate services.
(a) Heavy care/intermediate services shall be provided in a dually certified skilled bed and are subject to the same limits on nursing hours as skilled care services.
(b) Heavy care/intermediate services are services provided to patients who are functionally impaired to the following extent with respect to the following activities of daily living:
(1) Eating—requires total care. Requires total care means that the individual must be hand fed by another person, is tube fed, or is in a feeding retraining program. Functional impairment shall be at level 3 or 4.
(2) Dressing—requires total care. Requires total care means that the individual must be dressed by another person. Functional impairment shall be at level 3.
(3) Continence of urine—is incontinent or has an indwelling bladder catheter. Incontinent means incontinent more than 50% of the time. Functional impairment shall be at level 3 or 4.
(4) Mental status—confused or speech-aphasic with behavioral problems. Confused means confused most of the time, semi-comatose or comatose. Functional impairment shall be at level 3, 4 or 5. Speech-aphasic with behavioral problems means unable to communicate for whatever reason. Functional impairment shall be at level 3 and there shall be behavioral problems.
(5) Mobility—wheelchair/mobile. Mobility includes those categories of mobility status which are wheelchair/mobile, cane/walker, chairbound or bedfast. Functional impairment shall be at level 2, 3, 4 or 5.
ITEM LEVEL 1 LEVEL 2 LEVEL 3 LEVEL 4 LEVEL 5 Eating
Self With Assistance Total Care Tube Fed Self With Assistance Total Care Self With Assistance Total Care Continent Occas. Incontinent Incontinent Catheter Continent Occas. Incontinent Incontinent Colostomy Clear Occas. Confused Confused Semi Comatose Comatose Never Occasionally Most of the Time Never Occasionally Most of the Time Never Occasionally Most of the Time Never Occasionally Most of the Time Never Occasionally Most of the Time Ambulatory Wheelchair/Mobile Cane/Walker/Asst. Chairbound Bedfast Not Impaired Impaired Blind Not Impaired Impaired Deaf Not Impaired Impaired Aphasic (c) Documentation justifying the need for heavy care/intermediate services on an inpatient basis shall be recorded in the patient’s medical record at least monthly.
Source The provisions of this Appendix F adopted December 24, 1988, effective January 1, 1989, 18 Pa.B. 5711; amended March 10, 1989, effective immediately and applies retroactively to February 23, 1988, 19 Pa.B. 999.
Cross References This section cited in 55 Pa. Code § 1181.2 (relating to definitions); and 55 Pa. Code § 1181.54 (relating to payment conditions related to the recipient’s continued need for care).
APPENDIX G
TIMETABLE OF KEY MEDICAL ASSISTANCE RELATED
IMPLEMENTATION DATES UNDER OBRA-87, as amended, FOR HHS,
PROVIDER FACILITIES AND STATE AGENCIES
1988 7/1/88 Facilities: Must provide LTC ombudsmen, physicians and State/Federal officials immediate access to residents. 7/1/88 HHS: Issue regulation to define which costs can be charged to Medicaid eligible nursing facility residents’ personal fund, and which costs are included in the Medicaid payment amount. 9/1/88 HHS: Establish requirements for approval of nurse aide training and competency evaluation programs. 10/1/88 HHS: Establish guidelines for minimum standards for state appeals process for transferred and discharged residents. 10/1/88 HHS: Develop minimum criteria for preadmission screening and annual resident review (PASARR) for mentally retarded and mentally ill residents of nursing facilities. 10/1/88 HHS: Develop criteria for appeals process for residents adversely affected by PASARR process. 10/1/88 HHS: Develop criteria to monitor state performance in granting nursing facilities waiver of 24-hour licensed professional nurse provision. 10/1/88 HHS: Publish regulation regarding alternative remedies (sanctions) for nursing facilities out of compliance. 1989 1/1/89 States: Must have in effect a preadmission screening program for mentally retarded and mentally ill patient placement determinations. 1/1/89 States: Establish a nurse aide registry. 1/1/89 States: Must establish appeals process for residents adversely affected by screening and review process for mentally retarded and mentally ill individuals. 1/1/89 States: Specify approved nurse aide training and competency evaluation programs. 1/1/89 Facilities: Must not admit any mentally retarded or mentally ill individuals unless screened by appropriate state authority and found to need level of care provided by facility. 1/1/89 HHS: Specify minimum data set of core elements and common definitions for use by nursing facilities in conducting resident assessments. Establish guidelines for utilization of data set. 4/1/89 States/HHS: Enter into agreement regarding alternative disposition plan for review/placement of mentally retarded or mentally ill residents needing active treatment but not level of care provided by facility in which they reside (NOTE: Since HCFA usually requires a 90-day period to review and approve such plans, states are advised to submit their alternative disposition plans to HCFA by January 1, 1989. 7/1/89 States: Implementation and enforcement of standards for nursing facility administrators. 7/1/89 Facilities: Must provide for nurse aid competency evaluation programs for nurse aides employed in facility as of July 1, 1989; and for any preparation needed to complete program by January 1, 1990. 10/1/89 States: Must have appeals process in place for residents involuntarily transferred or discharged from nursing facilities on or after October 1, 1989. 10/1/89 States: Establish alternative remedies (sanctions) for nursing facilities out of compliance. 10/1/89 Facilities: Must notify residents of right to appeal all transfers and discharges. 1990 1/1/90 States: Provide for review and reapproval of all nurse aide training and competency evaluation programs. 1/1/90 Facilities: All nurses aides must have completed training and competency evaluation program if they are employed more than 4 months by facility. 1/1/90 HHS: Develop, test and validate protocol for standard and extended survey of nursing facilities. 4/1/90 States: Complete review of all mentally retarded and mentally ill residents currently residing in nursing facilities and determine and implement appropriate placement. 4/1/90 States: Submit to HHS a state plan amendment which provides for appropriate payment adjustment to nursing facilities (which takes into account the cost of complying with nursing home reform provisions). 4/1/90 HHS: Must designate one or more resident assessments which a state may specify for use by nursing facilities. 7/1/90 States: Must specify resident assessment instrument to be used by nursing facilities. 7/1/90 States: Must specify resident assessment instrument to be used by nursing facilities. 9/30/90 HHS: Must review and approve/disapprove state plan amendments for payment adjustments to nursing facilities. 10/1/90 States: Survey and Certification requirements become effective. 10/1/90 Facilities: Must conduct resident assessment within 4 days for residents admitted on or after October 1, 1990 and must begin conducting annual resident assessments. 10/1/90 Facilities: Must provide 24-hour/day licensed professional nursing services and full-time registered nurse services 7 days/week (unless waived). Distinction between SNF and ICF level of care eliminated. 1991 10/1/91 Facilities: Resident assessment for all residents admitted to facility prior to October 1, 1990 must be completed. 1993 *1/1/93 HHS: Evaluation of resident assessment process—report to Congress.
Source The provisions of this Appendix G adopted December 23, 1988, effective January 1, 1989, 18 Pa.B. 5711.
Cross References This section cited in 55 Pa. Code § 1181.505 (relating to discussion).
APPENDIX H
State Offices and Contact Persons for Determination of Eligibility
or Active Treatment
For persons with mental illness:Estelle Richman, Area Director, Southeastern Area Office, Philadelphia State Office Building, 1400 Spring Garden Street, Philadelphia, Pennsylvania 19130.
Ford Thompson, Jr., Acting Area Director, Central Area Office, 2330 Ararat Boulevard, Harrisburg, Pennsylvania 17110.
Kathleen D. Reese, Acting Area Director, Northeastern Area Office, Scranton State Office Building, 100 Lackawanna Avenue, Scranton, Pennsylvania 18503.
Shirley Dumpman, Acting Area Director, Western Area Office, Pittsburgh State Office Building, Pittsburgh, Pennsylvania 15222.
For persons with mental retardation:Vicki Stillman-Toomey, MR Program Manager, Southeastern Area Office, 306 State Office Building, 1400 Spring Garden Street, Philadelphia, Pennsylvania 19130, (215) 560-2242.
Marvin Meyers, MR Program Manager, Northeastern Area Office, 100 Lackawanna Avenue, Post Office Box 1127, Scranton, Pennsylvania 18503, (717) 963-4393.
Ed Manning, MR Program Manager, Central Area Office, 2330 Ararat Boulevard, Harrisburg, Pennsylvania 17105, (717) 657-4471.
Mary Puskarich, MR Program Manager, Western Area Office, 1403 State Office Building, 300 Liberty Avenue, Pittsburgh, Pennsylvania 15222, (412) 565-5144.
For persons with other related developmental disabilities:
Final Determinations Contact PersonTammy McElfresh-Tyburski, Department of Human Services, Office of Social Programs, Room 529, Health and Welfare Building, Harrisburg, Pennsylvania 17120, (717) 787-5753.
Source The provisions of this Appendix H adopted December 23, 1988, effective January 1, 1989, 18 Pa.B. 5711.
Cross References This appendix cited in 55 Pa. Code § 1181.548 (relating to what happens if active treatment is required).
APPENDIX I. [Reserved]
Source The provisions of this Appendix I adopted December 23, 1988, effective January 1, 1989, 18 Pa.B. 5711; reserved July 24, 1992, effective July 1, 1992, 22 Pa.B. 3918. Immediately preceding text appears at serial pages (150214) and (136051) to (136053).
APPENDIX J. [Reserved]
Source The provisions of this Appendix J adopted December 23, 1988, effective January 1, 1989, 18 Pa.B. 5711; reserved July 24, 1992, effective July 1, 1992, 22 Pa.B. 3918. Immediately preceding text appears at serial page (136054).
APPENDIX K. [Reserved]
Source The provisions of this Appendix K adopted December 23, 1988, effective January 1, 1989, 18 Pa.B. 5711; reserved July 24, 1992, effective July 1, 1992, 22 Pa.B. 3918. Immediately preceding text appears at serial pages (136055) and (136063).
APPENDIX L. [Reserved]
Source The provisions of this Appendix L adopted December 23, 1988, effective January 1, 1989, 18 Pa.B. 5711; reserved July 24, 1992, effective July 1, 1992, 22 Pa.B. 3918. Immediately preceding text appears at serial page (136064).
APPENDIX M
DEPARTMENTAL DETERMINATIONS
The Department is required to determine the need for nursing care and active treatment for all applicants to nursing homes who are mentally ill, mentally retarded or who have a related condition unless otherwise exempt.
For Departmental Determination of the applicant’s need for nursing care and active treatment, the following information must be sent with the LAMP Summary and the PASARR-EV to the appropriate office listed in Appendix G. If a new evaluation or set of evaluations are required, those preparing their reports should address themselves to the following items.
I. Determination of All Persons. Data sent to the Department for determination of need for nursing care for all persons must include:
A. The finding that the applicant’s medical needs cannot be adequately met in noninstitutional settings include at least:
1. An evaluation of medical status including at least the applicant’s:
a. Diagnoses.
b. Date of onset.
c. Medical history.
d. Prognosis.
2. A history of previous rehabilitation within the past year.
B. A recommendation based upon medical determination that nursing care is needed.
II. Determination of Persons with Mental Illness. Data sent to the Department for determinations to be made for persons with mental illness must also include a recommendation and sufficient supporting information in order to determine whether or not the person needs the implementation of ‘‘active treatment’’ in order to be able to function. Information must include:
A. A comprehensive history and physical examination of the person. At a minimum, the examination must address the following areas—if not previously addressed:
1. Complete medical history.
2. Review of all body systems.
3. Specific evaluation of the person’s neurological system in the areas of:
a. Motor functioning.
b. Sensory functioning.
c. Gait.
d. Deep tendon reflexes.
e. Cranial nerves.
f. Abnormal reflexes.
4. In case of abnormal findings which are the basis for a nursing facility placement, additional evaluations must be conducted by appropriate specialists.
5. If the history and physical examination used for the PASARR Determination is not performed by a physician, then a physician’s countersignature is required.
B. A comprehensive drug history of all current or immediate past utilization of medications used by the person that could mask symptoms, as well as the use of medications that could mimic mental illness.
C. A psychosocial evaluation of the person. At a minimum, this includes an evaluation of the following:
1. Current living arrangements.
2. Medical and support systems.
3. If the psychosocial evaluation is not conducted by a social worker, then a social worker’s countersignature is required.
D. A comprehensive mental health evaluation. At a minimum, the evaluation must address the following areas:
1. Complete mental health history.
2. Evaluation of intellectual functioning, memory functioning, and orientation.
3. Description of current attitudes and overt behaviors.
4. Affect.
5. Suicidal/homicidal ideation.
6. Degree of reality testing—presence and content of delusions—and hallucinations.
7. If the mental health evaluation is not performed by a physician who is knowledgeable about mental illness or a clinical psychologist. Then the countersignature of one or the other is required.
E. The information must include all medical and psychiatric diagnoses which require treatment. Copies of previous discharge summaries—during the past 2 years.
III. Determination of Persons with Mental Retardation or Related Conditions. Data sent to the Department for determination to be made for persons with mental retardation or other related conditions must also include a recommendation and sufficient supporting information to determine whether or not the person needs the implementation of a continuous ‘‘active treatment’’ program as defined at 42 CFR 435.1009 ‘‘Active Treatment in Intermediate Care Facilities for the Mentally Retarded’’ in order to be able to function. Information must include:
A. The individual’s comprehensive history and physical examination results so that the following, minimum information can be identified:
1. A list of the individual’s medical problems.
2. The level of impact these problems have on the individual’s independent functioning.
3. A list of all current medications used by the individual.
4. Current response of the individual to any prescribed medications in the following drug groups:
a. Hypnotics.
b. Antipsychotics (neuroleptics).
c. Mood stabilizers and antidepressants.
d. Antianxiety-sedative agents.
e. Anti-parkinsonian agents.
B. An assessment of the individual’s:
1. Self-monitoring of health status.
2. Self-administering and/or scheduling of medical treatments.
3. Self-monitoring of nutrition status.
4. Self-help development—such as: toileting, dressing, grooming and eating.
5. Sensorimotor development—such as: ambulation, positioning, transfer skills, gross motor dexterity, visual motor/perception, fine motor dexterity, eye-hand coordination and extent to which prosthetic, orthotic, corrective or mechanical supportive devices can improve the individual’s functioning capacity.
6. Speech and language (communication) development—such as: expressive language (verbal and nonverbal), receptive language (verbal and nonverbal), extent to which nonoral communication systems can improve the individual’s functional capacity, auditory functioning and extent to which amplification devices (hearing aid) or a program amplification can improve the individual’s functional capacity.
7. Social development, such as: interpersonal skills, recreation-leisure skills and relationships with others.
8. Academic/educational development, including functional learning skills.
9. Independent living development—such as: meal preparation, budgeting and personal finances, survival skills, mobility skills (orientation to the neighborhood, town, city), laundry, housekeeping, shopping, bedmaking, care of clothing, and orientation skills—for individuals with visual impairments.
10. Vocational development, including present vocational skills.
11. Affective development—such as: interests and skills involved with expressing emotions, making judgements and making independent decisions.
12. Presence of identifiable maladaptive or inappropriate behaviors of the individual based on systematic observation—including, but not limited to, the frequency and intensity of identified maladaptive or inappropriate behaviors.
C. The information conveyed to the Department must identify to what extent the person’s status compares with each of the following characteristics, commonly associated with need for active treatment:
1. Inability to take care of most personal care needs.
2. Inability to understand simple commands.
3. Inability to communicate basic needs and wants.
4. Inability to be employed at a productive wage level without systematic long term supervision or support.
5. Inability to learn new skills without aggressive and consistent training.
6. Inability to apply skills learned in a training situation to other environments or settings without aggressive and consistent training.
7. Without direct supervision, inability to demonstrate behavior appropriate to the time, situation or place.
8. Demonstration of severe maladaptive behaviors which place the person or others in jeopardy to health and safety.
9. Inability or extreme difficulty in making decisions requiring informed consent.
10. Presence of other skill deficits or specialized training needs which necessitates the availability of trained Mental Retardation personnel, 24 hours per day, to teach the person to learn functional skills.
D. The information must indicate that a psychologist, who meets the qualifications of a Qualified Mental Retardation Professional, as defined in 42 CFR 483.430(a)(1)(2):
1. Identifies the individual’s intellectual functioning measurement.
2. Validates the individual has mental retardation or a related condition.
3. Recommends whether the individual needs active treatment to function.
Source The provisions of this Appendix M adopted December 23, 1988, effective January 1, 1989, 18 Pa.B. 5711.
Cross References This appendix cited in 55 Pa. Code § 1181.544 (relating to where and how evaluations will be made); and 55 Pa. Code § 1181.546 (relating to how providers and applicants will be notified).
APPENDIX N
RIGHT TO APPEAL AND FAIR HEARING
I. GUIDELINES FOR PROVIDERS
In order to assist providers in meeting the requirements established by OBRA-87 with respect to residents’ transfer and discharge rights, the Department is establishing guidelines for the definition of terms contained in OBRA-87 and for the implementation of the procedures required by the law.
A. Definitions:
1. TRANSFER—A change of the facility from which the resident is to receive necessary health care on a 24-hour basis, including changes to a higher or lower level of care, whether or not that facility is a provider in the MA Program.
2. DISCHARGE—An action by which a resident is removed from a facility providing necessary health care on a 24-hour basis to any other situation in which the resident will not be receiving necessary health care in a facility on a 24-hour basis, except where such removal is part of the resident’s plan of care administered by the facility (e.g., movement to a hospital or a program of therapeutic leave is a transfer, whereas movement to a personal care home or a program of home health care in the resident’s own home is a discharge).
3. STATE LONG-TERM CARE OMBUDSMAN—The officer designated by the Department of Aging under 42 U.S.C.A. § 3027(a)(12). As of October 1, 1989, the name, mailing address and telephone of this officer are: State Long-term Care Ombudsman, Department of Aging, Market Street State Office Building, 400 Market St., 6th Floor, Harrisburg, Pennsylvania 17101-2301, (717) 783-7247.
4. AGENCY RESPONSIBLE FOR THE PROTECTION AND ADVOCACY SYSTEM FOR MENTALLY ILL OR DEVELOPMENTALLY DISABLED INDIVIDUALS UNDER 42 U.S.C.A. § 6041 et seq. AND 10801 et seq.—Pennsylvania Protection and Advocacy, 116 Pine Street, Harrisburg, Pennsylvania 17101-1208 (Telephone: (717) 236-8110).
5. RESIDENT—Any living person admitted for care into a nursing facility participating in the MA Program, whether or not that care is paid for in whole or in part by the MA Program.
B. Procedures
1. While no Department-approved form for the required notice has been established, the form of notice used by providers must be written in clear language designed to effectively communicate with residents and shall be available in English as well as in any other language required for effective communication with the person(s) to be notified (including Braille for blind residents).
2. Lack of proper notice is a basis for a resident to seek an order precluding an intended transfer or discharge.
3. The first availability of a bed in a semiprivate room in the facility, for purposes of permitting a resident who has been transferred for hospitalization or therapeutic leave to return, under 42 U.S.C.A. § 1396r(c)(2)(D)(iii)(III), shall be determined by the facility so that the affected resident is presumed to apply for readmission on the first day on which readmission to a nursing facility is indicated in that person’s plan of care; and, provider facilities shall be responsible for obtaining information on the planned readmission date for any resident transferred for hospitalization or therapeutic leave. The provider facility should coordinate a plan for the return of the resident.
II. STATE APPEALS PROCESS FOR TRANSFERS AND DISCHARGES
All residents (including any legal or personal representative acting on behalf of the resident) of nursing facilities (other than intermediate care facilities for the mentally retarded) which are enrolled as providers in the MA Program shall have the right to appeal from any decision to transfer or discharge that resident. The Department currently has regulations which provide for such appeals.
Under Chapter 275 (relating to appeal and fair hearing and administrative disqualification hearings), residents who are eligible for MA benefits have the right to appeal to the Department’s Office of Hearings and Appeals with respect to any decision affecting their rights to receive Program benefits. These regulations will be applied to appeals of decisions with respect to transfers and discharges.
The OBRA-87 requirements, however, also affect persons who are not eligible for MA benefits. The Department currently has regulations which provide for appeals by such persons at 1 Pa. Code Part II (relating to general rules of administrative practice and procedure). Such appeals must still be filed with the Department’s Office of Hearings and Appeals.
A. WHAT MAY BE APPEALED?
A resident may appeal any determination to transfer or discharge the resident.
B. WHO MAY APPEAL?
Only the resident (including any legal or personal representative acting on behalf of the resident, which includes Pennsylvania Protection and Advocacy) shall have the right to appeal. A provider does not have the right to appeal.
C. WHEN MUST APPEALS BE FILED?
Appeals must be filed within thirty (30) days of the date of the provider’s proper notice to the resident of the intended transfer or discharge. Where a provider fails to provide proper notice, the time to appeal does not begin to run out until proper notice has been given. Appeals should be filed as soon as possible.
Notice to a resident must include all of the information required by law, including information on bed-hold policy and readmission required when a transfer is for hospitalization or therapeutic leave. Failure to provide required information invalidates a notice and extends the period in which the resident may appeal.
An appeal is filed on the date it is actually received by the Office of Hearings & Appeals; however, where there is an official U. S. Post Office postmark or common carrier (e.g., express mail delivery services) receipt in the materials transmitting the appeal, the appeal will be deemed filed when postmarked or received by the common carrier.
D. WHAT MUST AN APPEAL CONTAIN?
An appeal from a discharge or transfer decision can be made by letter. No formal pleadings are required. The letter must identify the name of the resident on whose behalf the appeal is being filed, the name and address of the nursing facility involved, and the name of the person filing the appeal. The appeal must also include a copy of the provider’s notice of the intended discharge or transfer and a short presentation of the reasons why the resident believes the decision is wrong. There are no filing fees or other charges.
A copy of the appeal letter must be sent to the provider facility. If the appeal involves a dispute with the recommendations of the resident’s physician, a copy of the appeal letter must be sent to that physician as well.
An appeal may include a request for an order to halt the transfer or discharge pending the Department’s decision on the appeal. Appeals including such a request should be identified with the words ‘‘INTERVENTION REQUESTED’’ in large letters on the envelope transmitting the appeal and in the appeal letter itself.
The more information that is sent with the appeal letter, the faster the appeal can be processed and heard.
E. WHERE SHOULD APPEALS BE FILED?
All appeals must be filed with the Department’s Office of Hearings and Appeals at the following address:
Office of Hearings and Appeals, Department of Human Services, Post Office Box 2675, Harrisburg, Pennsylvania 17105-2675.
The Office of Hearings and Appeals is currently located on the sixth floor of the Bertolino Building, 1401 N. Seventh St. in Harrisburg.
Information concerning the filing of appeals can be obtained by calling the Office of Hearings and Appeals at any of the following telephone numbers:
Erie (814) 871-4433
Harrisburg (717) 783-3590
Philadelphia (215) 560-2207
Pittsburgh (412) 565-5215
Reading (215) 378-4189
Wilkes-Barre (717) 826-2106F. HOW WILL HEARINGS BE CONDUCTED AND WHERE?
Hearings will be conducted on an informal basis. Hearings will be held at the regional offices of the Office of Hearings and Appeals (Harrisburg, Philadelphia, Pittsburgh, Reading and Scranton), as well as, where necessary, at the provider facility involved. The parties may agree to submit documentation in advance and conduct the hearing by telephone. The individual on whose behalf the appeal was filed may handle the case or may be represented by an attorney or a personal representative. The provider facility will be given notice of the hearing and may be represented by an attorney or by any authorized officer of the facility or by its medical director.
G. HOW LONG WILL IT TAKE TO GET A DECISION?
Decisions will be issued within 90 days of the date on which the appeal is received by the Office of Hearings and Appeals. Any decision is subject to reconsideration by the Department, pursuant to the provisions of Chapter 275, and is also subject to appellate review by the Commonwealth Court of Pennsylvania.
H. SCOPE OF REVIEW
When a resident appeals from the decision of a provider facility to transfer or discharge the resident, the Department will exercise a limited scope of review of some questions, but a broad review of others. As to questions concerning: (1) whether a resident was given proper notice or (2) whether the resident is a threat to the safety or health of other individuals in the facility or (3) whether the resident has failed to pay for a stay at the facility or (4) whether the facility has ceased to operate, the Department may determine any question of law or fact raised by the appeal. As to a discharge or transfer to meet the resident’s needs or because improvements in the resident’s health no longer support the need for nursing facility care, the Department will affirm the decision where there is sufficient documentation in the resident’s clinical record, entered by the resident’s physician, to support the decision (unless the resident’s physician shall have later documented a change in the disposition of the case) and there is evidence that the resident’s need can be met by the situation to which the resident is to be discharged or transferred.
The resident shall be required to present evidence to show that the provider facility’s determination is in error. If the resident fails to produce evidence to show that the provider facility’s decision is in error, the Department shall affirm the decision. The burden of proof is on the resident.
I. WHAT KINDS OF RELIEF ARE AVAILABLE?
Where an appeal has been timely filed and properly served, the Department may enter an order precluding the transfer or discharge of the resident until otherwise ordered by the Department. Where the Department determines that a resident has been improperly transferred or discharged, it may enter an order requiring the readmission of the resident unless the resident no longer requires nursing facility services at the time readmission is ordered. If readmission is ordered and the facility has no available bed for the successful appellant, the Department may enter an order requiring the facility to readmit to the first available bed in a semiprivate room, if, at the time of readmission, the resident requires the services provided by the facility. The Department may also order the facility to reimburse the Department or the former resident for any costs of necessary alternative care incurred by the Department or the former resident which could have been avoided had the improper transfer or discharge not occurred.
Source The provisions of this Appendix N adopted December 23, 1988, effective January 1, 1989, 18 Pa.B. 5711; amended October 6, 1989, effective October 1, 1989, 19 Pa.B. 4278; reserved July 24, 1992, effective July 1, 1992, 22 Pa.B. 3918; corrected February 11, 1994, effective July 25, 1992, 24 Pa.B. 874; amended October 3, 2008, effective November 3, 2008, 38 Pa.B. 5435. Immediately preceding text appears at serial pages (201509) to (201513).
Cross References This appendix cited in 55 Pa. Code § 1181.542 (relating to who is required to be screened).
APPENDIX O
OBRA SANCTIONS
I. Federal Requirements. OBRA-87 requires the Department to implement six (6) specified remedies with respect to providers that are not in compliance with the provider participation requirements established by the Act:
1. Denial of payment under the State Plan with respect to new admissions.
2. Civil Monetary Penalties, assessed and collected with interest, for each day a provider facility is or was out of compliance with specified requirements under the Act.
(The Act provides for other civil monetary penalties against individuals which are to be administered by Federal agencies. (42 U.S.C.A. § § 1320a-7a, 1396r(b)(3)(B)(ii)))
3. Appointment of Temporary Management to oversee operations in the event of an orderly closure of the facility or while improvements are made in order to bring the facility into compliance with the Act’s requirements.
4. Authority, in the case of an emergency, to close the facility and/or to transfer the residents to another facility. (42 U.S.C.A. § 1396r(h)(2)(A))
5. Denial of payment for new admissions of any provider facility which has not come into compliance with specified requirements of the Act within 3 months after the date on which that facility is found to be out of compliance. (42 U.S.C.A. § 1396r(h)(2)(C))
6. Denial of payment for new admissions and continuous monitoring until the Department is satisfied that the facility will remain in compliance as to a facility which, on 3 consecutive standard surveys, has been found to have provided substandard quality of care. (42 U.S.C.A. § 1396r(h)(2)(D))
In addition, the Act permits the States to implement additional remedies, such as directed plans of correction. (42 U.S.C.A. § § 1396r(h)(1), 1396r(h)(2)(A))
II. Current State Law. Closure of Facilities and Removal of Jeopardy to Resident Health and Safety. Under current State law, the Department of Health is authorized to close nursing facilities (other than ICFs/MR) in the event of emergencies and, where necessary, to require the transfer of residents to other nursing facilities and take any other steps required to remove jeopardy to resident health and safety (35 P. S. § § 448.814—448.819). The Department of Human Services provides limited payment in such situations (55 Pa. Code § 1181.58). Both Departments are required by law to coordinate their activities in such a situation (71 P. S. § 181), and such coordination can include delegation by the Department of Health to Department of Human Services staff to perform duties ordinarily assigned to staff of the Department of Health. The Department of Human Services has determined that these existing provisions of State law are sufficient to comply with the requirement that the State have the authority, in the case of an emergency, to close a provider facility and/or to transfer residents to other facilities, as required by 42 U.S.C.A. § 1396r(h)(2)(A)(iv). Therefore, no new statutes or regulations are required to meet this provision of the Act.
Denial of Payments for New Admissions. Under current Department regulations, the Department may terminate or suspend a provider facility’s participation in the MA Program (55 Pa. Code § 1101.73 and 1101.77). This includes termination or suspension of payments pending appeals (55 Pa. Code § § 1101.73 and 1101.77(c)). Such action may be taken if the Department determines that the provider facility has failed to comply with any requirements of 55 Pa. Code Chapters 1101 and 1181, including the requirements that such facilities conform with the requirements established by OBRA-87 (55 Pa. Code § § 1101.77(a)(1) and 1181.41(3)). The Department may also preclude admissions of certain applicants whom the Department determines cannot be adequately served by the facility because of the facility’s noncompliance with certain Program standards (55 Pa. Code § § 1181.82 and 1181.548(3)). In addition, the Public Welfare Code authorizes the Department to make MA payments to nursing facilities subject to their meeting the requirements established by Title XIX of the Social Security Act for participation in the MA Program (62 P. S. § 443.1). Under this existing authority, the Department has precluded payments for new admissions pending correction of compliance deficiencies as an intermediate sanction. In addition, the Department of Health is authorized to preclude a facility from admitting additional patients as part of a plan of correction of licensing violations. The Department has determined that this existing authority is sufficient to comply with the requirement that the State have the authority to deny payments for new admissions at provider facilities determined to be out of compliance with OBRA-87 standards, as required by 42 U.S.C.A. § 1396r(h)(2)(A)(i), (C) and (D). Therefore, no new statutes or regulations are required to meet such provisions of the Act.
Monitoring Provider Operations to Assure Compliance. Under existing Department regulations, the Department has the authority to monitor provider facility operations to review compliance with Program requirements and to preclude the participation of provider facilities which are not in compliance (55 Pa. Code § § 1101.71, 1101.77 and 1181.83). The Department may also preclude the re-enrollment of a terminated provider until such time as it is satisfied that there will be no repetition of the violations which led to the provider’s termination (55 Pa. Code § 1101.82). In addition, the Department of Health is authorized to monitor facility compliance with the requirements of applicable State and federal regulations (35 P. S. § 448.813). The Department has determined that these existing provisions of State law are sufficient to comply with the requirement that the State have the authority to monitor a provider facility in order to determine that the facility will remain in compliance with OBRA-87, as required by 42 U.S.C. § 1396r(h)(2)(D)(ii). Therefore, no new statutes or regulations are required to meet this provision of the Act.
Civil Monetary Penalties. Under existing Department regulations, the Department has the authority to terminate or suspend provider facilities’ participation in the MA Program, including the suspension of payments pending appeals. Under this existing authority, the Department has imposed administrative monetary penalties on providers as an alternative to termination. The Department has also utilized statistical samples, under 55 Pa. Code § 1101.83(a), to determine restitution for services rendered contrary to Program requirements. The Department of Health is also authorized to impose civil monetary penalties in cases where provider facilities fail to promptly correct serious deficiencies which are also licensure requirements (35 P. S. § 448.817(b)). The Department has determined that these existing provisions of State law are sufficient to comply with the requirement that the State have the authority to impose civil monetary penalties on provider facilities found to be out of compliance with Program requirements, as required by 42 U.S.C.A. § 1396r(h)(2)(A)(ii). Therefore, no new statutes or regulations are required to meet this provision of the Act.
Appointment of Temporary Management and Directed Plans of Correction. Under existing State law, the Department of Health may petition the courts for the appointment of a temporary manager or master to oversee facility operations for a specified period of time or until violations of licensing standards or patterns of noncompliance are corrected and may also direct specific plans of correction for the facility (35 P. S. § 448.814). The Department of Human Services has the authority to terminate or suspend provider facilities’ participation in the MA Program, including the suspension of payments pending appeals. Under this existing authority, the Department can, as a condition for the continuation of a provider agreement, require providers to permit the imposition of temporary management to oversee the operation of the facility and to assure the health and safety of the facility’s residents and can direct specific plans of correction. The Department can also petition the courts for the appointment of a receiver in appropriate cases, Tate v. P.T.C., 410 Pa. 490, 190 A.2d 316 (1963) (Receivers may be appointed to manage solvent as well as insolvent entities in appropriate cases); or, for injunctive relief to require the facility to conform with OBRA-87 requirements, Rupel v. Bluestein, 280 Pa. Super. 65, 421 A.2d 406 (1980) (Courts of equity may prevent or restrain the commission of acts contrary to law and prejudicial to the rights of individuals). The Department has determined that these existing provisions of State law are sufficient to comply with the requirement that the State have the authority to appoint temporary management to oversee facility operations and to assure the health and safety of residents in appropriate cases where such temporary management is needed during the closure of a facility or in order to assure necessary improvements to bring the facility into compliance with OBRA-87 standards, as required by 42 U.S.C.A. § 1396r(h)(2)(A)(iii). Therefore, no new statutes or regulations are required to meet this provision of the Act.
Other Remedies. Any person or entity knowingly violating any of the Department’s rules and regulations with respect to the MA Program can be prosecuted under 62 P. S. § 483; and, if convicted, they shall be guilty of a misdemeanor and shall be sentenced to pay a fine not exceeding $100, or to undergo imprisonment not exceeding 6 months, or both. If a provider or the owner, agent, or employe of a provider is convicted of such a crime, the Department can preclude the participation of the provider and any other convicted person(s) in the MA Program for a period of 5 years (55 Pa. Code § 1101.77(b)(3)).
III. Criteria for the Application of Remedies. The Act requires the Department to provide for the enforcement of the OBRA-87 facility participation standards through the use of the remedies specified by the Act at 42 U.S.C. § 1396r(h)(2) and the use of the Department’s authority to terminate the facility’s participation in the MA Program and to administer the Program (42 U.S.C. § 1396r(h)(1)). The Act vests the Department with broad discretion in the use of these remedies and other methods in order to provide the Department with the greatest flexibility to assure the health and safety of facility residents, to minimize the time between the identification of violations and the imposition of remedies, and to effectively deter and correct deficiencies.
The Act, however, directs the Department with respect to the application of certain remedies; and, where such direction exists, the Department shall apply the remedies as required by the Act. The Act requires the Department to impose incrementally more severe fines for repeated or uncorrected deficiencies; requires the Department to deny payment for new admissions in cases where providers fail to promptly correct deficiencies or have been found on 3 consecutive standard surveys to provide substandard quality of care; and requires the Department to monitor facilities which have been found on 3 consecutive standard surveys to provide substandard quality of care (42 U.S.C.A. § § 1396r(h)(2)(A), (C) and (D)).Effective Date and Basis for the Imposition of Remedies. While the Act focuses on the determination of provider facility compliance through the use of the survey and certification process, it permits the Department to impose most of the remedies required by the Act even where the Department finds noncompliance through some other method. Under current State law and regulations, the Department and the Department of Health can take action whenever they determine that a facility is not in compliance with applicable law.
Since the survey and certification process required by OBRA-87 is not yet in place due to delays in the required federal training program, the Department cannot presently make a determination that a provider facility has been found to have provided substandard quality of care on 3 consecutive standard surveys, pursuant to 42 U.S.C.A. § 1396r(h)(2)(D), since no such surveys are presently being conducted. The imposition of this mandatory remedy must therefore be delayed until the survey process is in place. This limitation does not preclude or prevent the Department from monitoring provider facilities as already permitted under State laws and regulations or from utilizing other available remedies to assure continued provider facility compliance with OBRA-87 standards.The Department will begin to apply and impose the sanctions required by OBRA-87 immediately, along with any other remedies otherwise available under State law and regulations. Application of these remedies will not be restricted to the survey and certification process. The Department may cite a facility for violations of applicable OBRA-87 standards and may require the provider facility to show cause why any of these remedies should not be imposed at any time. The Department shall continue to coordinate its efforts with those of other agencies involved in protecting the health, safety and welfare of provider facility residents.
Termination of Facility Participation in the Program. A provider facility shall be terminated from participation in the MA Program in those cases where termination is required by Program regulations or otherwise by law (e.g., when such termination is directed by federal authorities pursuant to 42 U.S.C.A. 1320a-7 or when the provider is convicted of a Program-related crime or when the provider’s license is suspended or revoked). A provider facility shall be terminated from participation in the MA Program as otherwise permitted by Program regulations whenever the provider facility has not shown cause for and agreed to the application of another remedy provided for in this appendix or otherwise in State law and regulations, including the application of the mandatory remedies required by 42 U.S.C.A. § 1396r(h)(2)(C)—(D). A provider facility shall be terminated from participation in the MA Program in any case in which the Department determines that compliance with Program standards and conditions of participation can most effectively be achieved by terminating the facility’s participation, including those cases in which the facility has a history of repeated noncompliance with Program standards or conditions of participation for reasons within the control of the facility or its owners or where the facility or its owners have knowingly violated Program standards or conditions of participation or any Program regulation.
Closure of Facilities and Transfer of Residents and Intervention to Cure Immediate Threats to Resident Health and Safety. In the event of an emergency, a provider facility shall be closed and its residents transferred to other facilities, as provided by Department regulations and as determined by the Department of Health in cooperation with the facility. All facilities are required by law to notify the Department of Health in the event of any intended closure and that Department is authorized to require closures in order to protect residents’ health and safety (28 Pa. Code § 201.23). Provider facilities must also notify the Department of Human Services of any impending strike or emergency requiring resident transfers (55 Pa. Code § 1181.58). The Department of Human Services shall coordinate with the Department of Health in cases where there is a finding that there are deficiencies which immediately jeopardize the health and safety of residents to take immediate action to remove the jeopardy either by correcting the deficiencies, by transferring the residents, or by closing the facility temporarily or permanently. A provider facility’s participation in the MA Program is not automatically terminated because of closures or transfers of residents in the case of an emergency.
Temporary Management. The appointment of temporary management will be required to oversee the operation of a provider facility and to assure the health and safety of the facility’s residents in the following six (6) cases:
(1) Where the facility, after notice by the Department or by the Department of Health of a violation of a Program standard and the acceptance of a plan of correction submitted by the facility, has failed to bring the facility into compliance in the time specified in the plan of correction (even in a case where the facility has determined in the interim to close);
(2) Where the facility has demonstrated a pattern of episodes of noncompliance such as would convince a reasonable person that any correction of violations would be unlikely to be maintained (even in a case where the facility has determined to close);
(3) Where the facility has failed to submit a plan of correction within thirty (30) days of notice of violations from the Department or the Department of Health (even in a case where the facility has determined to close);
(4) Where persons responsible for the facility’s management are disqualified from participation in the Program;
(5) Where persons responsible for the facility’s management are otherwise unable to perform and the facility has certified to the Department that it requires a temporary manager pending the hiring of new personnel; or,
(6) Where the facility has been denied renewal of its license and that determination has been timely appealed to the licensing agency (the grant of a provisional license shall not be construed as a denial of renewal of a license).
Civil Monetary Penalties. Where the Department determines that a facility is out of compliance with any requirements of 42 U.S.C. § 1396r(b)—(d) and such noncompliance could have been prevented by the provider, the Department may require the facility to make payment at a rate of $100 per violation per day of noncompliance, plus interest at the legal rate, until paid; however, if the provider unreasonably fails to correct any such deficiency within ten (10) days of notice thereof (including notice from its own records or staff), then the rate shall be increased to $500 per violation per day of delayed compliance, plus interest at the legal rate, until paid.
Where the Department determines that a provider facility, within sixty (60) days, is again out of compliance with the same requirement of 42 U.S.C.A. § 1396r(b)—(d) as to which the Department has previously sought a civil monetary penalty and such repeated noncompliance could have been prevented by the provider, the Department may require the facility to make payment at a rate of $200 per violation per day of noncompliance, plus interest at the legal rate, until paid; however, if the provider unreasonably fails to correct any such deficiency within ten (10) days of notice thereof (including notice from its own records or staff), then the rate shall be increased to $500 per violation per day of delayed compliance, plus interest at the legal rate, until paid.
With respect to deficiencies involving screening, services or notices required for residents, the Department shall deem each resident that failed to receive the required notice or service or screening to be a separate violation.
The provider shall be held liable for violations caused by the acts and omissions of its officers, agents and employes; however, the provider shall not automatically be held liable for violations caused by the criminal acts of such persons, but may be liable in cases where the provider is also liable for such acts. Where the Department determines that a provider facility is knowingly out of compliance with any Program regulation or requirement, it shall refer the matter to the Office of Attorney General for review as to possible prosecution under the Public Welfare Code or other applicable laws, as well as, where appropriate, to relevant licensing agencies.Denial of Program Payment for New Admissions. The Department will require a provider facility to waive Program payments with respect to new admissions (either in general or limited to those requiring certain kinds or levels of care):
(1) Where the provider facility has been out of compliance with any requirement of 42 U.S.C.A. § 1396r(b)—(d) for a period of 3 months after the date the facility is found to be out of compliance with any such requirement and continues to be out of compliance;
(2) Where the provider facility has been found on 3 consecutive standard surveys conducted under 42 U.S.C.A. § 1396r(g)(2) to have provided substandard quality of care and the Department has not made a subsequent determination that the facility is or will remain in compliance with the requirements of 42 U.S.C.A. § 1396r(b)—(d);
(3) Where the Department has determined that the facility is not currently in compliance with requirements of 42 U.S.C.A. § 1396r(b)—(d) and is not able to provide services in compliance with the requirements of 42 U.S.C.A. § 1396r(b)—(d) for such additional residents;
(4) Where the Department determines that the facility is not able to provide services in compliance with the requirements of 42 U.S.C.A. § 1396r(b)—(d) for such additional residents; or,
(5) Where the Department has not approved the admission of such additional residents through the pre-admission screening processes established by law.
Monitoring Facilities With Repeated Substandard Care. Where a provider facility has been determined on 3 consecutive standard surveys conducted under 42 U.S.C.A. § 1396r(g)(2) to have provided substandard quality of care, the Department shall require the facility to permit the Department to monitor the facility, consistent with the requirements of 42 U.S.C.A. § § 1396r(g)(4)(B) and (h)(2)(D)(ii), until the facility has demonstrated to the satisfaction of the Department that it is in compliance with the requirements of 42 U.S.C.A. § 1396r(b)—(d) and that it will remain in compliance with such requirements. Nothing in this paragraph shall be construed to limit the Department’s rights to monitor provider facility operations as required by 42 U.S.C.A. § 1396r(g)(4)(B) or as otherwise permitted by law or otherwise.
IV. Relationship of Remedies and Rights During Appeals. When the Department determines that a provider facility is subject to the remedies discussed in this appendix, it will issue a notice to the provider facility, as required by 42 CFR 431.154, of the Department’s intent to take action and requesting the provider for a response to inform the Department as to any errors in the Department’s findings, as well as with respect to the appropriate remedy. If the provider facility fails to respond to such advance notice, the Department will terminate the provider facility’s participation in the MA Program by a subsequent notice, effective as of the date specified in the advance notice. If the provider does timely respond to the advance notice, the Department will consider the information submitted and will advise the provider facility of the Department’s decision with respect to the matter in a subsequent notice to be issued prior to the effective date of any termination.
The Department’s advance notice will include alternative remedies to termination which the Department will consider, which alternatives shall be based on the criteria in this appendix. If the provider facility agrees to the suggested alternative remedy, the Department shall enter an order permitting the provider facility’s continued participation in the Program subject to the alternative remedy. Such an order shall require compliance with the alternative remedy even though the provider may still be contesting the basis for the Department’s findings and determination; however, such an order shall not require the provider to make payment of any civil monetary penalty until and unless the Department’s determination is sustained by a final order.
If the provider facility’s appeal of the Department’s determination is sustained by a final order, the provider facility may obtain payment for residents admitted to the facility after the effective date of any limitation on new admissions, as permitted by such final order, under 55 Pa. Code § 1101.77(c)(3)(i). The costs of providing temporary management pursuant to 42 U.S.C.A. § 1396r(h)(2)(iii) are borne by the Department.
Source The provisions of this Appendix O adopted October 6, 1989, effective October 1, 1989, 19 Pa.B. 4278.
APPENDIX P
INITIAL RESIDENT REVIEWS REQUIRED BY
OBRA-87 LEGISLATION
(a) Several counties were involved as LAMP sites, and OBRA screenings began on January 1, 1989. Therefore, nursing facilities shall complete the PA-PASARR-ID forms and, if necessary, the Facility Report Form for individuals who were admitted prior to January 1, 1989.
(1) The January 1, 1989 date applies to the following counties:
Allegheny
Erie
Luzerne
Philadelphia
Schuylkill
Westmoreland
Wyoming
York
(2) Nursing facilities in the remaining 59 counties of this Commonwealth shall complete the PA-PASARR-ID form and the Facility Report Form (if necessary) for individuals who were admitted prior to March 1, 1989.
(b) When completing the PA-PASARR-ID form, the exemption for severe medical conditions, (question 1E), may be used for an individual in the target group, only if the person’s medical condition is so severe that the person is too sick to benefit from a plan of active treatment for mental illness, mental retardation or other related condition in the foreseeable future.
(c) A person whose PA-PASARR-ID form indicates that further assessment is needed, shall be identified by name, MA ID number (if applicable), and conditions to be assessed on the Facility Report Form. Instructions are available on the reverse side of the form.
(1) When completing the Facility Report Form, if more space is needed for additional names, copies should be made by the nursing facility. If a nursing facility has no individuals identified as needing further evaluation, this form still shall be completed and marked in the appropriate box as having no identified individuals. The completed form shall be returned January 8, 1990 to the following address:
Department of Human Services
Office of Medical Assistance Programs
Division of Long Term Care
Client Services
Post Office Box 2675
Harrisburg, Pennsylvania 17105
or
FAX: (717) 731-7060
(2) This review does not include individuals who have been discharged from the nursing facility or who are deceased.
(3) Reviews of individuals identified as needing further evaluation to determine the need for active treatment will be done by the Inspection of Care teams. If possible, these reviews will be performed concurrent with the nursing facility’s annual Inspection of Care review. If the Inspection of Care review has already occurred, and the next review is not due until after April 1, 1990, a member of the Inspection of Care team will come to the nursing home to review recipients identified as needing further evaluation.
(d) Failure to submit the required information in a timely manner may result in loss of MA funding for MA patients in the facility.
Source The provisions of this Appendix P adopted December 22, 1989, effective December 23, 1989, 19 Pa.B. 5433.
APPENDIX Q. [Reserved]
Source The provisions of this Appendix Q adopted June 29, 1990, effective June 30, 1990, 20 Pa.B. 3596; reserved October 28, 1994, effective immediately and apply retroactively to July 1, 1994, 24 Pa.B. 5523. Immediately preceding text appears at serial pages (171927) to (171929).
Cross References This appendix cited in 55 Pa. Code § 1181.53 (relating to payment conditions related to the recipient’s initial need for care); and 55 Pa. Code § 1181.54 (relating to payment conditions related to the recipient’s continued need for care).
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