Pa. Code tit. 55, pt. III, ch. 1181, subch. D, APPEALS OF ADVERSE DETERMINATIONS, app N
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.
Pa. Code tit. 55, pt. III, ch. 1181, subch. D, APPEALS OF ADVERSE DETERMINATIONS, app N
This appendix cited in 55 Pa. Code § 1181.542 (relating to who is required to be screened).