[ 55 PA. CODE CH. 1187 ] Nursing Facility Services [38 Pa.B. 5974]
[Saturday, November 1, 2008]Statutory Authority
The Department of Public Welfare (Department) under the authority of section 443.1(8) of the Public Welfare Code (code) (62 P. S. § 443.1(8)), intends to revise the statement of policy in 55 Pa. Code § 1187.21a (relating to nursing facility exception requests--statement of policy) as set forth in Annex A.
Scope
This proposed statement of policy applies to county, general, hospital-based and special rehabilitation nursing facilities that are enrolled, or applying for enrollment in the Medical Assistance (MA) Program.
Purpose
The purpose of this proposed statement of policy is to provide nursing facilities and other interested persons with notice of the guidelines that the Department intends to use in exercising its existing statutory and regulatory discretion to manage the enrollment and participation of nursing facilities as providers in the MA program.
Background
The Department is the ''Single State Agency'' responsible for the administration of the MA Program. See 62 P. S. § 201(1) regarding State participation in cooperative Federal programs. As the Single State Agency, the Department must operate the MA Program in compliance with Federal law. Federal law requires, among other things, that the Department administer the MA Program in a manner that assures that ''care and services [are] provided in a manner consistent with simplicity of administration and the best interests of recipients,'' and in a manner that safeguards against the unnecessary utilization of services and that assures that MA payments are consistent with efficiency, economy and quality of services. See 42 U.S.C.A. § 1396a(a)(23) and (30)(A) (relating to state plans for medical assistance). Additionally, Federal law requires that the Department administer the MA Program so as to avoid the unjustified institutional isolation of persons with disabilities. Olmstead v. L.C., 527 U.S. 581, 597 (1999).
To ensure compliance with applicable Federal requirements, and acting under its authority under section 201(2) and (3) of the code and regulations in §§ 1101.42(a) and 1101.77(b)(1) (relating to prerequisites for participation and enforcement actions by the Department), the Department issued a series of statements of policy relating to certain provider participation culminating in a 1998 statement of policy (SOP). See 28 Pa.B. 138 (January 10, 1998), codified in §§ 1101.42b, 1101.77a and 1187.21a (relating to certificate of need requirements for participation--statement of policy; terminationfor covenience and best interests of the Department--statement of policy; and nursing facility exception requests--statement of policy). the SOPs, the Department announced both the general policies relating to the participation of nursing facilities, and the specific guidelines that it intended to consider in future adjudications involving nursing facility participation in the MA Program. In adopting and applying these policies and guidelines, the Department's overarching goal was, and remains, to promote the efficient operation of the MA Program in a manner, consistent with the best interests of recipients, that avoids the unjustified institutional isolation of persons with disabilities. The SOPs provide the means for the Department to manage and control the publicly-funded long-term living system in this Commonwealth so as to reduce the MA Program's continued reliance on institutional nursing services and encourage the increased access to and use of home and community-based (HCB) services.
Approximately 10 years after the SOPs were issued, Commonwealth Court determined in Eastwood Nursing & Rehabilitation Center v. Department of Public Welfare, 910 A.2d 134, 148 (2006), that the SOPs were invalid because they imposed binding norms but had not been duly promulgated as regulations. The Court also determined that the SOPs reference to the ''best interests of the Department'' was inconsistent with the Federal requirement that the Department adopt ''safeguards to assure that care and services 'will be provided in a manner consistent with . . . the best interests of the recipient.' ''
