Pennsylvania Code › Title 55 - HUMAN SERVICES › Part III - MEDICAL ASSISTANCE MANUAL › Chapter 1181 - NURSING FACILITY CARE › Subchapter D - NURSING HOME REFORM-STATEMENT OF POLICY › APPEALS OF ADVERSE DETERMINATIONS › Appendix N - RIGHT TO APPEAL AND FAIR HEARING

Current through Register Vol. 54, No. 28, July 13, 2024
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 Public
						Welfare, 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) 826-2106
F.
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.
This appendix cited in 55 Pa. Code §
													1181.542 (relating to who is
						  required to be screened).