§ 1187.158. Appeals.
(a) Appeals. An appeal may be filed by the resident or the resident’s authorized representative, by the nursing facility, or by both, from the Department’s decision to deny, terminate or suspend a grant, subject to the following:
(1) If the Department denies a grant because the DME is not exceptional DME, an appeal of the denial may be filed solely on the basis that the DME is exceptional DME as defined in § 1187.2 (relating to definitions).
(2) If the Department automatically terminates a grant under § 1187.157(a)(1) (relating to termination or suspension of exceptional DME grants and recovery of exceptional payments), an appeal of the termination may be filed solely on the basis that none of the conditions specified in § 1187.157(a)(1)(i)—(vi) has occurred.
(3) If a resident appeals the denial, termination or suspension of a grant, Chapter 275 (relating to appeal and fair hearing and administrative disqualification hearings) applies.
(4) If a nursing facility appeals the denial, termination or suspension of a grant, § 1187.141(b), (d) and (e) (relating to nursing facility’s right to appeal and to a hearing) apply.
(5) An appeal from the Department’s decision denying a request for a grant shall be received in the Department’s Bureau of Hearings and Appeals within 30 days of the date of the Department’s written notice.
(6) If the resident or the nursing facility timely appeals the Department’s decision to deny, suspend or terminate a grant, the Department’s decision is not final until the Department issues a final adjudication on the appeal.
(b) Effect of decisions.
(1) Effect on subsequent grant requests. The denial or termination of a grant, does not prohibit a nursing facility from submitting a new request for an exceptional DME grant for the same resident, if the nursing facility determines that there has been a change in the resident’s condition since the denial or termination.
(2) Effect on services.
(i) If the Department determines that DME specified in the nursing facility’s request is medically necessary but denies the request because the DME is not exceptional DME, the nursing facility shall, as a part of the nursing facility services that it provides to the resident, provide the DME to the resident, unless the resident refuses the DME, regardless of whether the nursing facility or resident appeals the Department’s decision. If the resident refuses the DME, the nursing facility shall notify the Department in accordance with § 1187.22(17) (relating to ongoing responsibilities of nursing facilities).
(ii) If the Department determines that the DME specified in the nursing facility’s request is exceptional DME but denies the request because the DME is not medically necessary, the nursing facility may provide the DME and charge the resident in accordance with and subject to applicable Federal and state requirements, including 42 CFR 483.10(c)(8) (relating to resident rights) and § 1101.63(a) (relating to payment in full), if, after receiving actual notice of the Department’s denial, the resident requests that the nursing facility provide the DME. If the resident or nursing facility appeals the Department’s determination to deny the exceptional DME grant and the appeal is sustained, the nursing facility shall refund any payment made by the resident within 60 days from the date of the Department’s final adjudication sustaining the appeal.
(iii) If the Department terminates a grant or suspends payment under a grant under § 1187.157(a)(2) and (3), and the resident or the resident’s authorized representative appeals the termination or suspension within 10-calendar days of the date on which the Department’s notice was mailed, the Department will continue to make payments under the grant pending the outcome of the hearing on the resident’s appeal. If, after the hearing, the Department denies the resident’s appeal, the Department will recover any payments made under the grant on or after the termination date or during the period of suspension specified in the Department’s notice.
(iv) If the Department terminates a grant or suspends payment under a grant under § 1187.157(a)(2) and (3), and the resident or the resident’s authorized representative does not appeal the termination or suspension, or appeals more than 10-calendar days from the date on which the Department’s notice was mailed, the Department will cease payments under the grant on the termination date or during the period of suspension specified in the Department’s notice.
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