Subchapter D. NURSING HOME REFORM—
STATEMENT OF POLICY
GENERAL Sec.
1181.501. Purpose.
1181.502. Scope.
1181.503. Definitions.
1181.504. Background.
1181.505. Discussion.
CONDITIONS OF PARTICIPATION
1181.511. Provider conditions of participation.
NURSE AIDE TRAINING AND
COMPETENCY EVALUATION PROGRAM
1181.521. Nurse aide training and competency evaluation system.
NURSE AIDE REGISTRY SYSTEM
1181.531. Nurse aide registry system.
PREADMISSION SCREENING PROGRAM
1181.541. Preadmission screening program.
1181.542. Who is required to be screened.
1181.543. Agencies that manage the evaluation process.
1181.544. Where and how evaluations will be made.
1181.545. Charges for screening.
1181.546. How providers and applicants will be notified.
1181.547. How long it will take to get a determination.
1181.548. What happens if active treatment is required.
1181.549. Confidentiality of information.
APPEALS OF ADVERSE DETERMINATIONS
1181.561. Process to appeal adverse determinations in the preadmission screening program.
1181.562. Adverse determinations.
1181.563. Who may appeal.
1181.564. When an appeal is required to be filed.
1181.565. What an appeal is required to contain.
1181.566. Where appeals should be filed.
1181.567. How and where hearings will be conducted.
1181.568. How long it will take to get a decision.
Source The provisions of this Subchapter D adopted December 3, 1988, effective January 1, 1989, 18 Pa.B. 5711, unless otherwise noted.
GENERAL
§ 1181.501. Purpose.
This subchapter provides information on the implementation of OBRA-87 provisions pertaining to nursing home reform due for implementation by January 1, 1989, including notices of Federal requirements for nursing home providers and statements of policy.
§ 1181.502. Scope.
This subchapter affects skilled nursing facilities and intermediate care facilities—but not intermediate care facilities for the mentally retarded—participating as providers or seeking to enroll as providers in the Medical Assistance Program; persons—and their families—seeking admission to the facilities; persons employed or seeking employment by the facilities as nurse aides; and persons or entities providing or intending to provide training and competency evaluations for nurse aides employed by the facilities. This subchapter addresses the application of requirements established by Federal law to be effective January 1, 1989.
§ 1181.503. Definitions.
The following words and terms, when used in this subchapter, have the following meanings, unless the context clearly indicates otherwise:
Department—The Department of Human Services of the Commonwealth.
LAMP—The Long Term Care Assessment and Management Program.
OBRA-87—Subtitle C of the Omnibus Budget Reconciliation Act of 1987 (42 U.S.C.A. § § 1395i-3, 1395x, 1396a note, 1396b, 1396b note, 1396o, 1396r, 1396r note, 1396r-3 note, 1396s).§ 1181.504. Background.
(a) In 1987, Congress enacted major nursing home reform legislation affecting providers participating in the Medicare and Medical Assistance Programs as part of OBRA-87. Congress made some technical amendments to OBRA-87 in Title IV, Subtitle B of the Medicare Catastrophic Coverage Act of 1988 (Pub. L. 100-360, 102 Stat. 768) (July 1, 1988). The nursing home reform provisions affecting the Medical Assistance Program are codified at 42 U.S.C.A. § 1396r, as part of Title XIX of the Social Security Act.
(b) The nursing home reform provisions enacted by Congress establish a timetable for action by Federal and state agencies, as well as by providers, from 1987 through 1993, including requirements for continuing approval of State plans. In a number of cases, state agencies are required to take action even where Federal guidelines required by the law are not timely promulgated. The reform provisions grew out of concerns that the preexisting system of certification and review of participating providers did not adequately deal with the quality of patient care and did not sufficiently inform patients and providers of rights and limitations. While most of the new requirements established by OBRA-87 do not become effective until October 1, 1990, some are required to be implemented prior to that date.
(c) Since the enactment of OBRA-87, the Department in cooperation with the Departments of Aging, Education, Health and State and the Governor’s Budget Office and Office of Policy, as well as with the responsible Federal agencies and representatives of providers and recipients, has been conducting planning and development activities necessary for the implementation of OBRA-87. These activities are part of a program of change to improve the quality of care provided in nursing facilities, to provide quality services in the most appropriate setting and to increase public awareness of rights and limitations under the Medical Assistance Program. The Department is the single State agency for the administration of the Medical Assistance Program in this Commonwealth and is therefore responsible for issuing information and regulations with respect to the application of OBRA-87 to the Medical Assistance Program.
(d) OBRA-87 requires the Department to implement certain provisions of the law on January 1, 1989. These provisions are:
(1) Specification of nurse aide training and competency evaluation programs and those competency evaluation programs that the Department approves for use by providers and that meet requirements established by the law. See 42 U.S.C.A. § 1396r(e)(1)(A).
(2) Establishment of a registry of individuals who satisfactorily complete a nurse aide training and competency evaluation program or a nurse aide competency evaluation program approved by the Department. See 42 U.S.C.A. § 1396r(e)(2).
(3) Implementation of a preadmission screening program, applicable to persons seeking admission to a provider nursing facility, whether or not that person is applying for or receiving Medical Assistance, to determine, based on criteria established by the Federal government under OBRA-87, whether persons who are mentally ill or are mentally retarded or have related disabilities require nursing facility services and, if they do, whether they also require active treatment for their condition. See 42 U.S.C.A. § 1396r(e)(7)(A).
(4) Implementation of an appeals process for individuals who are adversely affected by the preadmission screening program and wish to seek relief. See 42 U.S.C.A. § 1396r(e)(7)(F).
(5) Enforcement of conditions of participation established by OBRA-87 and effective for current nursing facility providers.
(e) The Department currently has regulations with respect to provider facilities in this chapter. The regulations require participating providers to abide by applicable Federal and State laws and regulations, including Title XIX of the Social Security Act (42 U.S.C.A. § § 1396—1396s) and to conform with requirements of Title XIX and of the regulations promulgated thereunder which are necessary for the Department to qualify for Federal Financial Participation (FFP) with respect to their participation. See § 1181.41(3) (relating to provider participation requirements). The regulations require provider facilities to comply with the requirements for provider facilities added by OBRA-87 to Title XIX. The Department also has regulations with respect to appeals procedures for persons applying for or receiving Medical Assistance benefits in Chapter 275 (relating to appeal and fair hearing and administrative disqualification hearings), as well as for others. See 1 Pa. Code Part II (relating to general rules of administrative practice and procedure).
§ 1181.505. Discussion.
(a) This subchapter is the first of a series involving the implementation of OBRA-87. Since the implementation of OBRA-87 is to be phased over several years, the Department will be issuing statements of policy and other documents in advance of the implementation of State and Federal requirements to provide information on Department policy with respect to the requirement, to announce Department regulations and to describe procedures and resources for compliance. Since the implementation of OBRA-87 involves coordination with policies established by the United States Department of Health and Human Services (HHS) under the law, publications may also be required to update or revise standards in light of announcement of HHS criteria and regulations.
(b) This subchapter deals with five areas:
(1) Conditions of participation affecting providers of nursing home services that are being added by OBRA-87.
(2) The Nurse Aide Registry System being established by the Department of Health in cooperation with the Department.
(3) The Nurse Aide Training and Competency Evaluation Program being established by the Department of Education in cooperation with the Department.
(4) The Preadmission Screening Program for persons seeking admission to nursing facilities.
(5) The appeals process for persons adversely affected by the Preadmission Screening Program.
(c) Each of the areas in subsection (b) involves implementation of a phase of OBRA-87. Under section 501 of The Administrative Code of 1929 (71 P. S. § 181), the Department has been working with other departments and agencies of the Commonwealth to utilize their expertise in the development and implementation of OBRA-87 provisions. Cooperation among different departments will continue to have a role in this implementation process. The Departments of Aging, Education and Health will be responsible for the implementation and management of several aspects of the reforms required by OBRA-87. The Department remains the single State agency for the overall administration of the Medical Assistance Program and is the agency responsible for the resolution and adjudication of disputes concerning the Program.
(d) The January 1, 1989 nursing home reform requirements of OBRA-87 do not involve changes to existing Department regulations. They do involve new activities about which the Department wishes to inform the general public and those directly involved. The Department has established procedures for providing information to the public. See Chapter 9 (relating to regulatory document information system). The Department issues statements of policy to provide guidelines in response to Federal statutes such as OBRA-87 under § 9.12(b)(2) (relating to statements of policy). The Department also issues notices under § 9.13 (relating to notices). The Department is publishing a series of statements of policy and notices to inform the general public and those affected by OBRA-87 of the guidelines used by the Department under the law to implement those activities required by January 1, 1989. This subchapter does not preclude the Department from changing its policies and procedures with respect to OBRA-87, including changes required by modifications of Federal requirements or changes implemented by regulation.
(e) This subchapter includes a timetable of key MA related implementation dates under OBRA-87, as amended. See Appendix G. This timetable indicates activities with which the Department, as well as providers and the United States Department of Health and Human Services, will be involved over the next few years. The Department will be issuing additional statements of policy, notices and regulations with respect to later phases in the implementation of the nursing home reform provisions of OBRA-87.
(f) This subchapter also includes forms related to the preadmission screening process. These forms are subject to change.
CONDITIONS OF PARTICIPATION
§ 1181.511. Provider conditions of participation.
(a) OBRA-87, as amended, establishes a number of conditions of participation (42 U.S.C.A. § § 1396r(a), (b), (c) and (d)). Most of these conditions of participation are not effective until October 1, 1990; however, some are effective prior to that date (OBRA-87, section 4214(a), as amended by sections 411(i)(3)(c) of the Medicare Catastrophic Coverage Act (42 U.S.C.A. § 1396r note)).
(b) OBRA-87, as amended, requires providers to meet the conditions of participation established in sections 1861(j) and 1905(c) of the Social Security Act (42 U.S.C.A. § § 1395x(j) and 1396d(c)), as applicable, in addition to those sections of OBRA-87 itself expressly made effective prior to October 1, 1990 until all of the OBRA-87 conditions of participation become effective (OBRA-87, section 4214(a) and (c)) (42 U.S.C.A. § 1396r note). Providers are required to comply with OBRA-87 requirements as they become effective. See § 1181.41(3) (relating to provider participation requirements).
(c) The changes in conditions of participation which OBRA-87, as amended, makes effective prior to October 1, 1990, are:
(1) Effective July 1, 1988, a provider shall permit immediate access to a resident—whether or not the resident is applying for or receiving MA or Medicare benefits—by the resident’s individual physician, by a representative of the Secretary of the United States Department of Health and Human Services, by a representative of the Commonwealth, by an ombudsman authorized by the Department of Aging—including those employed by a local Area Agency on Aging—and, with respect to residents with developmental disabilities or who are mentally ill, by a representative of Pennsylvania Protection and Advocacy, 116 Pine Street, Harrisburg, Pennsylvania 17101, the agency designated under subchapter III of the Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C.A. § § 6041—6043) and the Protection and Advisory for Mentally Ill Individuals Act of 1986 (42 U.S.C.A. § § 10801—10851). See 42 U.S.C.A. § 1396r(c)(3)(A).
(2) Effective January 1, 1989, a provider facility may not admit a new resident—whether or not the person seeking admission is applying for or receiving, or otherwise eligible for MA or Medicare benefits—who is mentally ill or is mentally retarded or has another related condition, as defined in OBRA-87, unless the Department has determined and notified the provider that the individual requires nursing facility services and, if the individual does, whether the individual requires active treatment for mental illness, mental retardation or other related conditions, as defined by regulations and guidelines issued by the United States Department of Health and Human Services. See 42 U.S.C.A. § 1396r(b)(3)(F).
(d) Information on the procedures to secure the necessary State agency determinations required to comply with the preadmission screening conditions of participation is presented in § 1181.541 (relating to preadmission screening program). This requirement applies to a person seeking admission and is not restricted to a person applying for or already eligible for MA or Medicare.
(e) While other statutory conditions of participation established by OBRA-87 may not apply until October 1, 1990, existing conditions of participation, under Federal and State law and regulations, continue to apply. Providers and their employes should also note that under 42 U.S.C.A. § 1396r(b)(5), a provider is required to provide for approved nurse aide competency evaluation programs for staff members employed as of July 1, 1989 to prepare them for successful completion of an approved competency evaluation program by January 1, 1990, and is limited in its use of unregistered staff members as of January 1, 1990.
(f) The Department will be publishing additional notices and statements of policy to inform providers and others about the subsequent phases in the implementation of OBRA-87. The Department will also be promulgating regulations, as necessary.
NURSE AIDE TRAINING AND COMPETENCY
EVALUATION PROGRAM
§ 1181.521. Nurse aide training and competency evaluation system.
(a) Section 1396r(e)(1)(A) of 42 U.S.C.A. provides: ‘‘The State must by not later than January 1, 1989, specify those training and competency evaluation programs and those competency evaluation programs, that the State approves for purposes of (42 U.S.C.A. § 1396r(b)(5)) and that meet the requirements established under (42 U.S.C.A. § § 1396r(f)(2)(A)(i) or (ii)).’’
(b) For purposes of 42 U.S.C.A. § 1396r(e)(1)(A):
(1) ‘‘The Secretary (of HHS) shall establish, by not later than September 1, 1988, requirements for the approval of nurse aide training and competency evaluation programs, including requirements relating to the areas to be covered in such a program (including at least basic nursing skills, personal care skills, recognition of mental health and social service needs, basic restorative services, and residents’ rights), content of the curriculum; minimum hours of initial and ongoing training and retraining (including not less than 75 hours in the case of initial training); qualifications of instructors; and procedures for determination of competency.’’
(2) ‘‘Requirements for the approval of nurse aide competency evaluation programs, including requirements relating to the areas to be covered in such a program, including at least basic nursing skills, personal care skills, cognitive, behavioral and social care, basic restorative services, and residents’ rights, and procedures for determination of competency.’’
(c) The Secretary of HHS has not yet established requirements for these programs. The Department of Education in cooperation with the Department has not approved existing programs as meeting the statutory requirements.
(d) The Department of Education in cooperation with the Department is developing criteria for the approval of nurse aide training and competency evaluation programs. The Department of Education will manage the review and approval of nurse aide training and competency evaluation programs and of nurse aide competency evaluation programs required by OBRA-87. The Department of Education will be the source for information about those programs and the agency responsible for determining nurse aide competency.
(e) Beginning January 1, 1989, the Department of Education will issue applications for approval of nurse aide training programs. The application will include information on the criteria that will be used to approve programs, which at a minimum, will conform with the Federal requirements noted in this section. Existing nurse aide training and competency evaluation programs, including those previously approved under the Department of Education’s voluntary approval program, will have to obtain reapproval for purposes of training nurse aides under the OBRA-87 requirements. The Department of Education will be mailing copies of the application to existing nurse aide training programs which the Department of Education is aware are currently operating in this Commonwealth. Applications and information on nurse aide training and competency evaluation programs may be obtained from:
Vocational Licensure and Developmental Services Section Bureau of Vocational and Adult Education Pennsylvania Department of Education 333 Market Street Harrisburg, Pennsylvania 17126-0333 (717) 787-8867
(f) The Department, in cooperation with the Department of Education, will publish Pennsylvania-specific approval criteria for both nurse aide training and competency evaluation programs and nurse aide competency evaluation programs in the Pennsylvania Bulletin.
(g) The Department and the Department of Education are currently planning to contract for the administration of nurse aide competency evaluation tests. The Department of Education will arrange for the administration of the tests. These tests will be scheduled Statewide. Notice of the availability of the test and the schedule and locations for its administration will be published in the Pennsylvania Bulletin and mailed to participating nursing facility providers.
Cross References This section cited in 55 Pa. Code § 1181.531 (relating to nurse aide registry system).
NURSE AIDE REGISTRY SYSTEM
§ 1181.531. Nurse aide registry system.
(a) Section 1396r(e)(2)(A) of 42 U.S.C.A. provides: ‘‘By no later than January 1, 1989, the State shall establish and maintain a registry of all individuals who have satisfactorily completed a nurse aide training and competency evaluation program, or a nurse aid competency evaluation program, approved . . . by the State.’’
(b) The registry required by OBRA-87 is established and will be maintained by the Department of Health in cooperation with the Department and the Department of Education. Within the Department of Health, the administration of the registry is the responsibility of:
Nurse Aide Registry Section Division of Long Term Care Department of Health Room 526, Health and Welfare Building Harrisburg, Pennsylvania 17108 (717) 787-1816
(c) The registry is not required by OBRA-87 to include information relating to findings of nurse aide misconduct until October 1, 1990. See 42 U.S.C.A. § § 1396r(e)(2)(B) and 1396r(g)(1)(C). The Department of Health is currently considering the promulgation of regulations to make the OBRA-87 nurse aide training and competency evaluation and registry requirements—including investigation and findings with respect to reported staff misconduct—applicable to licensed nursing facilities within this Commonwealth. If the Department of Health does not issue these regulations before July 1, 1989, the Department will be issuing regulations for provider facilities with respect to the inclusion of findings of misconduct on the registry.
(d) Currently the registry contains no names of individuals who have satisfactorily completed approved training or competency evaluation programs, or both. The Secretary of Health and Human Services (HHS) has not yet established requirements for nurse aide training and competency evaluation programs. The Department, in cooperation with the Department of Education, has not approved existing programs under the statutory requirements of 42 U.S.C.A. § 1396r(f)(2)(A). If HHS does not establish its requirements before January 1, 1989, the Department of Education will review programs for approval as of that date using the statutory criteria.
(e) Once approved programs have been identified, names of certified nurse aides will be entered onto the registry upon notification from the Department of Education that the individual has satisfactorily completed an approved nurse aide training and competency evaluation program or a nurse aide competency evaluation program. Section 1181.521 (relating to nurse aide training and competency evaluation system) provides additional information on the process for obtaining approval of the programs.
(f) A nursing facility will be required to make inquiry with the registry about individuals they plan to use as nurse aides. See 42 U.S.C.A. § 1396r(b)(5)(C). This requirement does not become effective until January 1, 1990. Beginning on July 1, 1989, a nursing facility will be required to provide individuals used as nurse aides by the facility with approved competency evaluation programs and preparation as those individuals require to complete the programs by January 1, 1990. Providers will be limited in their use of unregistered staff as of January 1, 1990. See 42 U.S.C.A. § 1396r(b)(5)(A).
(g) An individual who is currently on a nurse aide registry in another state and who seeks listing on Pennsylvania’s registry should contact the registry.
PREADMISSION SCREENING PROGRAM
§ 1181.541. Preadmission screening program.
(a) Section 1396r(e)(7)(A) of 42 U.S.C.A. provides: ‘‘Effective January 1, 1989, the State must have in effect a preadmission screening program, for making determinations using criteria developed under 42 U.S.C.A. § 1396r(f)(8) and described in 42 U.S.C.A. § 1396r(b)(3)(F) for mentally ill and mentally retarded individuals (as defined in subparagraph G) who are admitted to nursing facilities on or after January 1, 1989. The failure of the Secretary (of HHS) to develop minimum criteria . . . shall not relieve any State of its responsibility to have a preadmission screening program under this subparagraph.’’
(b) Section 1396r(b)(3)(F) of 42 U.S.C.A. provides: ‘‘A nursing facility must not admit, on or after January 1, 1989, any new resident who—’’
(1) ‘‘is mentally ill (as defined in (42 U.S.C.A. § 1396r(e)(7)(G)(i))) unless the State mental health authority has determined (based on an independent physical and mental evaluation performed by a person or entity other than the State mental health authority) prior to admission that, because of the physical and mental condition of the individual, the individual requires the level of services provided by a nursing facility, and, if the individual requires such level of services, whether the individual requires active treatment for mental illness, or’’
(2) ‘‘is mentally retarded (as defined in (42 U.S.C.A. § 1396r(e) (7)(G)(ii))) unless the State mental retardation or developmental disabilities authority has determined that, because of the physical and mental condition of the individual, the individual requires the level of services provided by a nursing facility, and, if the individual requires such level of services, whether the individual requires active treatment for mental retardation.’’
(c) Health and Human Services (HHS) has issued draft criteria for states to use in making preadmission screening determinations. The preadmission screen ing program is being implemented by the Department based on its analysis of the HHS draft criteria and the requirements which Congress has established in OBRA-87 itself. The Department is the state authority with respect to the administration of mental health, mental retardation and developmental disability programs, as well as for the MA Program.
Cross References This section cited in 55 Pa. Code § 1181.511 (relating to provider conditions of participation).
§ 1181.542. Who is required to be screened.
(a) OBRA-87 requires only that individuals who are mentally ill or mentally retarded, including persons with other related conditions, as defined by the law, be screened prior to admission. This requirement applies to all those individuals, whether or not the individual is eligible or applying for MA or Medicare benefits. However, this requirement does not displace the existing preadmission assessment requirements for persons eligible or applying for MA—for example, LAMP. This subchapter deals with the OBRA-87 requirement, which is in addition to existing preadmission screening requirements.
(b) OBRA-87 applies only to persons seeking admission to nursing facilities, but it does not apply to persons seeking admission to intermediate care facilities for the mentally retarded (ICF/MR). It also does not apply to persons seeking admission to inpatient psychiatric facilities, institutions for mental diseases, community placement or nursing facilities which are not providers participating in the MA Program or the Medicare Program.
(1) Who is mentally ill as defined by OBRA-87.
(i) OBRA-87 defines an individual who is mentally ill and therefore subject to screening as an individual who has a primary or secondary diagnosis of mental illness—as defined in the Diagnostic and Statistical Manual of Mental Disorders, 3rd edition—but does not have a primary diagnosis of dementia, including Alzheimer’s disease or a related disorder. Thus, an individual who does have a primary diagnosis of dementia, including Alzheimer’s disease or a related disorder, is exempt from the OBRA-87 preadmission screening requirements.
(ii) The Health and Human Services (HHS) draft criteria seek to limit the OBRA-87 definition to only those individuals with the following types of major mental disorders: schizophrenic; paranoid; major affective; schizoaffective; and atypical psychotic. The Department will apply this limiting definition of mental illness. Thus, an individual has a primary or secondary diagnosis of mental illness for OBRA-87 screening purposes only if the condition falls within the definitions of schizophrenic, paranoid, major affective, schizoaffective or atypical psychotic disorders.
(iii) Since OBRA-87 focuses on the actual condition of the individual seeking admission, the HHS draft criteria indicate that certain information in addition to the diagnoses be reviewed and that the information can be the basis for screening even if the individual does not have a primary or secondary diagnosis of mental illness. The Department will apply these additional criteria. Thus, except as provided in paragraph (3), an individual shall be screened, for OBRA-87 purposes, even if they do not have a primary or secondary diagnosis of mental illness, if one of the following applies:
(A) The individual has a history of mental illness—as limited by definitions in this subparagraph—within the last 2 years.
(B) The individual has been prescribed a major tranquilizer on a regular basis in the absence of a justifiable neurological disorder.
(C) There is presenting evidence of mental illness—as limited by definitions in this subparagraph—including possible disturbances in orientation, affect or mood.
(iv) If the individual has a primary diagnosis of dementia—as defined in this subparagraph—even if the individual meets one or more of the additional criteria, the individual is exempt from the preadmission screening process.
(2) Who is mentally retarded under OBRA-87.
(i) OBRA-87 uses the term ‘‘mentally retarded’’ to involve both individuals who are mentally retarded and those who may not be mentally retarded, but have other related conditions under 42 U.S.C.A. § 1396d(d).
(A) Individuals who are mentally retarded. Mental retardation is defined as having a level of retardation—mild, moderate, severe or profound—as described in the American Association on Mental Deficiency’s Manual on Classification in Mental Retardation (1983).
(B) Individuals with other related conditions. Other related conditions are defined by 42 CFR 435.1009 (relating to definitions relating to institutional status), and include cerebal palsy and epilepsy, as well as other conditions—such as autism—other than mental illness, found to be closely related to mental retardation because the condition results in impairment of general intellectual functioning or adaptive behavior similar to that of persons with mental retardation, and requires treatment or services similar to those required for the mentally retarded. Related conditions are conditions which are:
(I) Manifested before age 22.
(II) Likely to continue indefinitely.
(III) Resulting in substantial functional limitations in three or more of the following areas of major life activity:
(-a-) Self-care.
(-b-) Understanding and use of language.
(-c-) Learning.
(-d-) Mobility.
(-e-) Self-direction.
(-f-) Capacity for independent living.
(ii) Thus, for OBRA-87 purposes, a person is subject to preadmission screening if that individual:
(A) Has a diagnosis that fits the definitions of ‘‘Mental retardation’’ or ‘‘other related conditions’’ in clauses (A) and (B).
(B) Has a history of a condition that fits the definitions.
(C) Presents evidence—cognitive or behavior functions—that may indicate those conditions.
(D) Is referred by an agency that serves persons with those conditions and has been found eligible for services by the agency.
(3) Exceptions to the rule.
(i) Exceptions to the rule are as follows:
(A) Convalescent care. An individual who may otherwise be mentally ill or mentally retarded or who has another related condition under OBRA-87, but is not a danger to himself or others, may be admitted to a nursing facility without going through the OBRA-87 preadmission screening process for up to 120 days as part of a medically prescribed period of recovery after release from an acute care hospital. If a person admitted under this exception requires more than 120 days of recovery, a determination permitting the continued stay shall be sought promptly.
(B) Terminal illness. An individual who may otherwise be mentally ill or mentally retarded or who has another related condition under OBRA-87, but is not a danger to himself or others, may be admitted to a nursing facility without going through the OBRA-87 preadmission screening process, if certified by a physician to be terminally ill—as defined in 42 U.S.C.A. § 1395x(dd)(3)(A)—and requiring continuous nursing care or medical supervision and treatment, or both, due to the individual’s physical condition. ‘‘Terminally ill’’ is defined in 42 U.S.C.A. § 1395x(dd)(3)(A) as an individual who has a medical prognosis of a life expectancy of 6 months or less.
(C) Severity of illness. An individual who may otherwise be mentally ill or mentally retarded or who has another related condition under OBRA-87 may be admitted to a nursing facility without going through the OBRA-87 preadmission screening process if certified by a physician to be comatose, ventilator dependent, functioning at the brain stem level or having a diagnosis of either Chronic Obstructive Pulmonary Disease, Severe Parkinson’s Disease, Huntington’s Disease, Amyotrophic Lateral Sclerosis, Congestive Heart Failure or another diagnosis later determined by the Health Care Financing Administration (HCFA) to be sufficient.
(D) Not mentally ill or mentally retarded. An individual who is not mentally ill, mentally retarded, who doesn’t have another related condition, as defined by OBRA-87, and who is not otherwise subject to preadmission screening as described in this subparagraph may be admitted to a nursing facility without going through the OBRA-87 preadmission screening process.
(ii) Thus, a person who qualifies for an exception in this paragraph may be admitted to a nursing facility without further determinations by the Department within the OBRA-87 preadmission screening process.
(4) Necessary documentation. A nursing facility provider—except an ICF/MR—is required to comply with the preadmission screening process as a condition of continuing participation in the Medical Assistance Program. The process involves certain documentation requirements with respect to individuals who are subject to preadmission screening and individuals who are not.
(i) Form PA-PASARR-ID.
(A) The Department will require the use of Form PA-PASARR-ID by a nursing facility subject to the OBRA-87 requirement. Form PA-PASARR-ID is designed to evaluate whether an applicant for admission to the nursing facility is subject to the determination requirements of OBRA-87 and, if not, to document the bases for excepting that individual from the process.
(B) The record of each resident admitted to a nursing facility on or after January 1, 1989 shall include the completed Form PA-PASARR-ID for that resident. Failure to maintain documentation of the completion of the form in a resident’s record shall be a basis for the disallowance of payment under the Medical Assistance Program with respect to that resident under § § 1101.51(e), 1101.61, 1101.71(a) and 1101.83(a), and may be a basis for the termination of the provider agreement or for the imposition of another sanction permitted by law.
(C) Where Form PA-PASARR-ID indicates that an applicant for admission is subject to further preadmission screening by the Department, the provider shall refer the applicant to the appropriate agency, for evaluation, and shall provide the agency and the applicant with a copy of the completed Form PA-PASARR-ID. The applicant—including a legal or personal representative acting on behalf of the applicant—shall have the right to appeal a referral. The appeals process is described in § 1181.561 (relating to process to appeal adverse determinations in the preadmission screening program). An attachment to form PA-PASARR-ID provides the applicant with notice of the appeals process.
(D) Completion of Form PA-PASARR-ID does not replace Department requirements with respect to Form MA-51. When Form MA-51 is required by current Department procedures, that form shall be filed as well as Form PA-PASARR-ID.
(ii) Form PA-PASARR-YN.
(A) The determinations of whether individuals requiring preadmission screening require nursing facility services and, if they do, whether they require active treatment shall be issued to the involved applicants for admission to the facility on Form PA-PASARR-YN. No individual who has been referred by a provider for evaluation may be admitted to the nursing facility without presenting Form PA-PASARR-YN authorizing admission for copying and verification by the provider.
(B) Providers are required to maintain their copy of Form PA-PASARR-YN as part of the record of a person admitted to the facility on or after January 1, 1989. Certification to the provider on Form PA-PASARR-YN, verified by the agency designated by the Department of Aging to manage the evaluation process, is the only acceptable evidence as to whether a person who has been referred by the provider for further determination under the preadmission screening process has been determined to be eligible for admission. The Department will not make payment for services provided to a resident referred for preadmission screening process determinations unless the Department has certified on Form PA-PASARR-YN that the resident requires the level of services provided in a nursing facility.
(C) A copy of the completed Form PA-PASARR-YN is provided to each applicant who has been referred for further determination. The applicant—including a legal or personal representative acting on behalf of the applicant—shall have the right to appeal from a determination. The form provides the applicant with notice of the appeals process.
§ 1181.543. Agencies that manage the evaluation process.
(a) Preadmission screening process. For an individual subject to the preadmission screening process, relevant determinations shall be made by the State mental health, mental retardation and developmental disability authority. In this Commonwealth, the Department is that authority. The authority is required to make a determination of whether the referred individual requires nursing facility services and, if the individual does, whether the individual requires active treatment. The Department will notify the designated evaluation agency and each individual involved of its determination using Form PA-PASARR-YN.
(b) Determination by Department. The Department is required to base its determination on an independent physical and mental evaluation performed by a person or entity other than the Department. The Department will therefore not perform the evaluations itself, but will utilize evaluations performed by the Department of Aging through its LAMP sites and other authorized agents. The Department of Aging will utilize Form PA-PASARR-EV as the protocol for the evaluations.
(c) LAMP site counties.
(1) General. The Department, in cooperation with the Department of Aging, is already conducting preadmission screening with respect to persons eligible for MA in counties which have LAMP sites. LAMP assesses the need for nursing facility services in light of the condition of the individual involved in the assessment and of the alternatives available for the care of that individual outside of a nursing facility in the individual’s community. LAMP will continue to be available for the assessment of individuals eligible for MA. In designated counties, LAMP will be the agency to which providers will refer applicants for admission to the nursing facility who have been determined to require further determination after the administration of Form PA-PASARR-ID.
(2) Definition. The term ‘‘LAMP site’’ refers to a site doing both LAMP and OBRA assessments and providing alternative community services.
(3) Counties. The counties where OBRA evaluations will be done by LAMP sites and the addresses and telephone numbers of the sites are:
County AAA Information Allegheny Allegheny County Department of Aging 416 County Office Building Pittsburgh, Pennsylvania 15219 (412) 355-4305 Erie Greater Erie Community Action Committee Erie County Area Agency on Aging 18 West Ninth Street Erie, Pennsylvania 16501 (814) 459-4581 Luzerne and Wyoming Luzerne/Wyoming Counties Bureau for Aging 111 North Pennsylvania Boulevard Wilkes-Barre, Pennsylvania 18701 (717) 822-1158 Philadelphia Philadelphia Corporation for Aging 111 North Broad Street Philadelphia, Pennsylvania 19107 (215) 496-0520 Schuylkill Schuylkill County Area Agency on Aging 13-15 North Centre Street Pottsville, Pennsylvania 17901 (717) 622-3103 Westmoreland Westmoreland County Office on Aging 2482 South Grande Boulevard Greensburg, Pennsylvania 15601 (412) 836-1111 York York County Area Agency on Aging 141 West Market Street York, Pennsylvania 17401 (717) 771-9610 (d) Preadmission site.
(1) Definition. The term ‘‘preadmission site’’ refers to an AAA which is doing preadmission assessments for MA applicants and persons identified through the OBRA screening process, which are ‘‘LAMP Lite,’’ ‘‘Diet LAMP’’ or ‘‘modified LAMP’’ sites.
(2) Counties. The counties where the assessment portion of the LAMP program, as well as OBRA evaluations, will be done by preadmission sites and the addresses and telephone numbers of the sites are:
County AAA Information Berks Berks County Area Agency on Aging 15 South Eighth Street Reading, Pennsylvania 19602-1105 (215) 378-8808 Blair Blair Senior Services, Inc. 1404 Eleventh Avenue Altoona, Pennsylvania 16601 (814) 946-1235 Bradford, Sullivan, Susquehanna and Tioga Area Agency on Aging for Tioga/ Bradford/Susquehanna/Sullivan Counties 701 Main Street Towanda, Pennsylvania 18848 (717) 265-6121 or 1 (800) 982-4346 Cambria Cambria County AAA Post Office Box 88 Ebensburg, Pennsylvania 15931 (814) 472-5580 Clearfield Clearfield County Area Agency on Aging 211 Ogden Avenue Post Office Box 550 Clearfield, Pennsylvania 16830 (814) 765-2696 Clinton and Lycoming Lycoming/Clinton Bi-County Office of Aging Post Office Box 770 352 Water Street Lock Haven, Pennsylvania 17745 (717) 748-8665 Cumberland Cumberland County Office on Aging Room 111-R, East Wing Cumberland County Courthouse Carlisle, Pennsylvania 17013 (717) 240-6110 Fayette, Greene and Washington Southwestern PA AAA, Inc. Eastgate 8 Monessen, Pennsylvania 15062 (412) 684-9000 Indiana Aging Services, Inc. of Indiana County 201 Airport Professional Center Indiana, Pennsylvania 15701 (412) 349-4500 Jefferson Jefferson County Area Agency on Aging Jefferson County Services Center R. D. 5 Brookville, Pennsylvania 15825 (814) 849-3096 Juniata and Mifflin Mifflin/Juniata AAA, Inc. Post Office Box 750 Lewistown, Pennsylvania 17044 (717) 242-0315 Lackawanna Lackawanna County Area Agency on Aging Lackawanna County Office Building 200 Adams Avenue Scranton, Pennsylvania 18503 (717) 963-6707 Lawrence Lawrence County AAA— Catholic Charities of the Diocese of Pittsburgh, Inc. 20 South Mercer Street New Castle, Pennsylvania 16101 (412) 658-5661 or (412) 658-0322 Mercer Mercer County Area Agency on Aging, Inc. Human Services Complex 120 South Diamond Street Mercer, Pennsylvania 16137 (412) 662-3800 (Extension 538) Monroe Monroe County Area Agency on Aging 62 Analomink Street Post Office Box 384 East Stroudsburg, Pennsylvania 18301 (717) 424-5290 Montgomery Montgomery County Office on Aging and Adult Services Montgomery County Court House Norristown, Pennsylvania 19404 (215) 278-3601 Northampton Northampton County Area Agency on Aging Gracedale—Southwest Ground Gracedale Avenue Nazareth, Pennsylvania 18064 (215) 746-1990 Northumberland Northumberland County AAA R. D. 1, Box 943 Shamokin Pennsylvania 17872 (717) 644-4545 Somerset AAA of Somerset County 132 East Catherine Street Post Office Box 960 Somerset, Pennsylvania 15501 (814) 443-2681
(e) OBRA only site.
(1) Definition. The term ‘‘OBRA only site’’ refers to an AAA doing only the OBRA preadmission assessments.
(2) Counties. The counties currently providing evaluations at OBRA only sites, and the addresses and telephone numbers of the sites are:
County AAA Information Adams Adams County Office for Aging, Inc. 100 North Stratton Street Gettysburg, Pennsylvania 17325 (717) 334-9296 Armstrong Armstrong County AAA 125 Queen Street Kittanning, Pennsylvania 16201 (412) 548-3290 Beaver Beaver County Office on Aging 599 Market Street, W. B. Beaver, Pennsylvania 15009 (412) 728-5700 (Extension 406) Bedford, Fulton and Huntingdon Huntingdon/Bedford/Fulton AAA 240 Wood Street Post Office Box 46 Bedford, Pennsylvania 15522 (814) 623-8149 Bucks Bucks County Area Agency on Aging 30 East Oakland Avenue Doylestown, Pennsylvania 18901 (215) 348-0510 Butler Butler County AAA 715 Morton Avenue Building 3A Butler, Pennsylvania 16001 (412) 282-3008 Cameron, Clarion, Elk and McKean Jefferson County Area Agency on Aging Jefferson County Services Center R. D. 5 Brookville, Pennsylvania 15825 (814) 849-3096 Carbon Carbon County Area Agency on Aging Post Office Box 251 Jim Thorpe, Pennsylvania 18229 (717) 325-2726 Centre Clearfield County Area Agency on Aging 211 Ogden Avenue Post Office Box 550 Clearfield, Pennsylvania 16830 (814) 765-2696 Chester Chester County Office of Aging 10 North Church Street West Chester, Pennsylvania 19380 (215) 431-6350 Columbia and Montour Luzerne/Wyoming Counties Bureau of Aging 111 North Pennsylvania Boulevard Wilkes-Barre, Pennsylvania 18701 (717) 822-1158 Crawford Active Aging, Inc. 1034 Park Avenue Meadville, Pennsylvania 16335 (814) 336-1792 Dauphin Dauphin County AAA 25 South Front Street Harrisburg, Pennsylvania 17107-2025 (717) 255-2790 Delaware County of Delaware Services of the Aging Government Center Media, Pennsylvania 19063 (215) 891-4455 Forest and Warren Greater Erie Community Action Committee Erie County Area Agency on Aging 18 West Ninth Street Erie, Pennsylvania 16501 (814) 459-4581 Franklin Franklin County Office for the Aging Franklin County Farm Lane Chambersburg, Pennsylvania 17201 (717) 263-2153 Lancaster Lancaster County Office on Aging 50 North Duke Street Lancaster, Pennsylvania 17603-1881 (717) 299-7979 Lebanon Lebanon County AAA 710 Maple Street Room 209—Senior Centers Lebanon, Pennsylvania 17042 (717) 273-9262 or (717) 274-1439 Lehigh Lehigh County Area Agency on Aging Court House Annex 523 Hamilton Street Allentown, Pennsylvania 18101 (215) 820-3248 Perry Cumberland County Office on Aging Room 111-R, East Wing Cumberland County Courthouse Carlisle, Pennsylvania 17013 (717) 240-6110 Pike and Wayne Wayne/Pike Area Agency on Aging Pike County Program Office 106 Broad Street Milford, Pennsylvania 18337 (717) 296-7813 Potter Area Agency on Aging for Tioga/ Bradford/ Susquehanna/Sullivan Counties 701 Main Street Towanda, Pennsylvania 18848 (717) 265-6121 or 1 (800) 982-4346 Snyder and Union Mifflin/Juniata AAA, Inc. Post Office Box 750 Lewistown, Pennsylvania 17044 (717) 242-0315 Venango Venango County Area Agency on Aging Post Office Box 1130 Franklin, Pennsylvania 16323 (814) 437-6871
Source The provisions of this § 1181.543 adopted December 3, 1988, effective January 1, 1989, 18 Pa.B. 5711; amended August 4, 1989, effective upon publication and applies retroactively to January 1, 1989, 19 Pa.B. 3314. Immediately preceding text appears at serial pages (136029) to (136034).
§ 1181.544. Where and how evaluations will be made.
The designated agency managing the evaluations in the county in which the applicant is located—either as the result of residence or temporary accommodation in a residential or medical facility—shall conduct the evaluation. The agency shall conduct the evaluations using Form PA-PASARR-EV and following the protocol noted in Appendix M. Appendix M details kinds of information and medical records necessary for the preadmission screening process. Evaluations will be conducted at specified locations in the county, but, if necessary because of the condition of the applicant, at the applicant’s place of residence or place of care. The agencies will coordinate the place and time of each evaluation with the applicant.
§ 1181.545. Charges for screening.
A person eligible for Medical Assistance will not be charged fees or copayments as part of the preadmission screening process, either by the nursing facility or by another agency or department. A person who is not eligible for Program benefits may be charged, but at no more than cost.
§ 1181.546. How providers and applicants will be notified.
When the evaluation process has been completed, Form PA-PASARR-EV, along with documentation and data required by Appendix M, will be forwarded by the evaluation agency to the Department. The Department will determine whether the applicant requires the level of services provided in a nursing facility. The Department will notify the applicant and the evaluation agency using Form PA-PASARR-YN. The applicant is responsible for providing the nursing facility with Form PA-PASARR-YN as part of the admissions process. The nursing facility shall verify the Form PA-PASARR-YN with the Department. A provider may obtain verification of Form PA-PASARR-EV from the evaluation agency indicated on the Form, but shall include the control number indicated on the PA-PASARR-EV in a request. Verification is provided using Form PA-PASARR-OK.
§ 1181.547. How long it will take to get a determination.
The Department will issue a determination within 5 working days of its receipt of Form PA-PASARR-EV from the evaluation agency. Subject to the cooperation of the applicant, the evaluation agency will complete the evaluation and file Form PA-PASARR-EV with the Department as soon as possible after its receipt of Form PA-PASARR-ID from the nursing facility. The nursing facility should be able to complete and file Form PA-PASARR-ID in 3 working days.
§ 1181.548. What happens if active treatment is required.
OBRA-87 permits the Secretary of Health and Human Services to define the meaning of ‘‘active treatment,’’ but provides that its meaning may not include those services which a nursing facility is required to provide or arrange for its residents under OBRA-87 (42 U.S.C.A. § 1396r(e)(7)(G)(iii)). Health and Human Services has issued draft definitions which significantly limit determinations that an individual requires active treatment but has not yet established official criteria for the preadmission screening programs. The Department has adopted the Health and Human Services draft definitions under its authority under OBRA-87. See 42 U.S.C.A. § 1396r(e)(7)(A).
(1) Active treatment. The Health and Human Services draft defines active treatment as follows:
(i) For individuals with mental illness. The implementation of an individualized plan of care developed under and supervised by a physician, provided by a physician and other qualified mental health professionals, that prescribes the specific therapies and activities for the treatment of persons experiencing an acute episode of severe mental illness, which necessitates supervision by trained mental health personnel.
(ii) For individuals with mental retardation or other related conditions. A continuous program which includes aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services that is directed toward the acquisition of the behaviors necessary for the client to function with as much self determination and independence as possible and the prevention or deceleration of regression or loss of current optimal functional status. Active treatment does not include services to maintain generally independent clients who are able to function with little supervision or in the absence of a continuous active treatment program. See 42 CFR 435.1009 (relating to definitions relating to institutional status).
(2) Who determines if it is required. The Department is required under OBRA-87 to determine, with respect to individuals who are mentally ill or mentally retarded—including those with other related conditions—and require nursing facility services, whether those individuals require active treatment for their condition. The Department is required to base this determination on the data collected as part of the evaluation process conducted by the Department of Aging. Department staff who will be responsible for issuing the determination on the need for active treatment are listed in Appendix H.
(3) Persons needing active treatment admitted to a nursing facility. An individual determined by the preadmission screening process to require active treatment may be admitted to a provider nursing facility if the individual is determined to require the level of services provided by a nursing facility. The Department may, nevertheless, determine that an individual does not require the level of services provided by a nursing facility, because, for example, they require a different level of services provided by another facility, such as an ICF/MR, institution for mental diseases (IMD) or acute care hospital. The Department may recommend alternative placements for those individuals. However, for an individual of advanced age—65 years of age or older on the date of admission, who is competent to make an independent decision and is not a danger to himself or others—for example, not assaultive or self-destructive, or both—and who requires the services which a nursing facility is required to provide under OBRA-87, the Department may determine that the individual requires the level of services provided by a nursing facility where the individual chooses to receive that care in a nursing facility.
(4) Information and services available to those needing active treatment but denied admission to provider nursing facilities. An individual may require active treatment but be determined to be ineligible for admission to a provider nursing facility under OBRA-87. That individual may obtain information from the county MH/MR agency and other local resources to assist in the determination of an appropriate plan of care and an appropriate placement to meet the individual’s needs. The county MH/MR agency will provide an individual who is mentally ill or mentally retarded with information on available programs, including information on costs and financial support, as well as on services covered by the MA Program and other programs administered by the Commonwealth. For an individual who has another related condition, the Department will provide information on local agencies which help individuals obtain care, as well as on services covered by the MA Program and other programs administered by the Commonwealth.
(5) Persons requiring active treatment and admitted to nursing facilities; receiving active treatment while in the nursing facility. If an individual determined to need nursing facility services and active treatment is admitted to a provider nursing facility, the provider is not required to provide or arrange for active treatment for that individual. A facility may provide or arrange for active treatment.
§ 1181.549. Confidentiality of information.
Information collected as part of the preadmission screening process is considered confidential and may only be released for purposes directly connected to the administration of the MA Program. PA-PASARR-ID Forms are subject to review by the Department, HHS, the Department of Health and their authorized agents.
APPEALS OF ADVERSE DETERMINATIONS
§ 1181.561. Process to appeal adverse determinations in the preadmission screening program.
(a) Section 1396r(e)(7)(F) of the Social Security Act (42 U.S.C.A. § 1396r(e)(7)(F)) provides: ‘‘Each State, as a condition of approval (of its State Plan), effective January 1, 1989, must have in effect an appeals process for individuals adversely affected by determinations under (42 U.S.C.A. § § 1396r(e)(7)(A) and 1396r(e)(7)(B) (relating to the pre-admission screening program and to the annual resident review program)).’’
(b) An applicant—including a legal or personal representative acting on behalf of the applicant—for admission to a nursing facility participating as a provider in the MA Program has the right to appeal from an adverse determination made as part of the preadmission screening program established under OBRA-87. The Department currently has regulations in effect which provide for appeals in Chapter 275 (relating to appeal and fair hearing and administrative disqualification hearings).
(c) Under Chapter 275, an applicant for admission to a nursing facility who is seeking or is already eligible for MA benefits has the right to appeal to the Department’s Office of Hearings and Appeals with respect to a decision affecting the applicant’s rights to receive Program benefits. Chapter 275 will be applied to appeals of adverse determinations in the OBRA-87 preadmission screening process where the appeals are filed by or on behalf of individuals who are seeking or receiving MA.
(d) The OBRA-87 preadmission screening process can also adversely affect an applicant for admission who is not seeking or receiving MA. Appeals by or on behalf of those individuals shall still be filed with the Office of Hearings and Appeals. These appeals will be heard under the authority established in 1 Pa. Code Part II (relating to general rules of administrative practice and procedure).
Source The provisions of this § 1181.561 amended October 3, 2008, effective November 3, 2008, 38 Pa.B. 5435. Immediately preceding text appears at serial pages (201492) to (201493).
Cross References This section cited in 55 Pa. Code § 1181.542 (relating to who is required to be screened).
§ 1181.562. Adverse determinations.
(a) OBRA-87 requires an appeal process for an individual adversely affected by determinations made in the preadmission screening process effective January 1, 1989. An adverse determination is one which denies or conditions the individual admission to the nursing facility. The preadmission screening process involves the following kinds of adverse determinations:
(1) Classification as an individual who is subject to the preadmission screening process administered by the Department of Aging under OBRA-87—not including the existing LAMP site review process—including the issue of whether the individual is mentally ill, mentally retarded or has a related condition (Form PA-PASARR-ID Appeals).
(2) Classification as an individual who may not be admitted to a nursing facility (Form PA-PASARR-YN Appeals).
(b) The determination that an individual requires nursing facility services is not an adverse determination which is appealable under OBRA-87 or Department regulations.
§ 1181.563. Who may appeal.
Only the applicant—including a legal or personal representative acting on behalf of the applicant—has the right to appeal. A provider does not have the right to appeal unless it has the applicant’s power of attorney to act as the applicant’s personal representative.
§ 1181.564. When an appeal is required to be filed.
(a) An appeal from an adverse determination in the preadmission screening process shall be filed within 30 days of the date of written notice of the determination involved. Additional time will be permitted only as provided at § 275.3(b) (relating to requirements).
(b) For purposes of OBRA-87 adverse determination appeals, the notice required by § 275.3(b) will be issued by the following:
(1) Notice of classification as an individual who requires a determination by the Department of Aging will be issued by the service provider—the nursing home—using Form PA-PASARR-ID.
(2) Notice that an individual referred to the Department of Aging may not be admitted to a nursing facility will be issued by the Department, using Form PA-PASARR-YN.
(c) An appeal is deemed filed on the date it is actually received by the Office of Hearings and Appeals. If there is an official United States Post Office postmark on an envelope transmitting an appeal, it will be deemed filed on the postmark date.
§ 1181.565. What an appeal is required to contain.
An appeal from an adverse determination may be made by letter. No formal pleadings are required. The letter shall identify the name of the individual on whose behalf the appeal is being filed, the name of the nursing facility involved, the date of the written notice of the adverse determination, the agency or provider that issued the adverse determination and the address of the person to whom information from the Office of Hearings and Appeals should be sent. In addition, the appeal shall include a copy of the written notice of adverse determination in question. There are no filing fees or other charges.
§ 1181.566. Where appeals should be filed.
(a) An appeal shall 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
(b) The Office of Hearings and Appeals is currently located in Room 305, Capitol Associates Building, Seventh and Forster Streets, in Harrisburg.
(c) Information concerning the filing of appeals can be obtained by calling the Office of Hearings and Appeals at the following telephone numbers: Harrisburg, (717) 783-3950; Reading, (215) 378-4188; Philadelphia, (215) 560-2385; Pittsburgh, (412) 565-5213; and Scranton, (717) 963-3016.
§ 1181.567. How and where hearings will be conducted.
Hearings on matters involving adverse determinations in the preadmission screening process will be conducted on an informal basis. Hearings will be held at the regional offices of the Office of Hearings and Appeals—Harrisburg, Reading, Philadelphia, Pittsburgh and Scranton—as well as, in extraordinary cases, at local County Assistance Offices. 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 personal representative.
§ 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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