WYOMING DEPARTMENT OF HEALTH WYOMING MEDICAID RULES
CHAPTER 5
MEDICAID LONG TERM CARE FACILITY REMEDIES/TERMINATIONS
Section 1. Authority. This rule is promulgated by the Department of Health pursuant to W. S. § 42-4-101 et seq., and the Wyoming Administrative Procedures Act at W. S. § 16-3-101 et seq.
Section 2. Purpose and Applicability.
(a) This Chapter establishes the standards and procedures for imposing remedies on nursing facilities which participate in the Medicaid program and which are not in compliance with the require- ments of participation of the Medicaid program. It is intended to ensure prompt compliance with the requirements of participation.
(b) This Chapter is to be read in conjunction with:
(i) Applicable federal statutes and regulations, including 42 C.F.R. Parts 401, 431, 435, 441, 441, 447, 483, 488, 489 and 498, as amended effective July 1, 1995. If there are inconsisten- cies between the provisions of this Chapter and federal statutes and/or regulations, including additional or different substantive or procedural requirements, the federal statutes and/or regulations shall control the provisions of this Chapter; and
(ii) The State Operations Manual (SOM). Except as otherwise specified in this Chapter, the procedures and standards of the SOM shall control procedures for the imposition of remedies.
Section 3. General provisions.
(a) The Department may issue Manuals or Bulletins to providers and/or other affected parties to interpret the provisions of this Chapter. Such Manuals and Bulletins shall be consistent with and reflect the policies contained in this Chapter. The provisions contained in Manuals or Bulletins shall be subordinate to the provisions of this Chapter.
(b) The Department may refer suspected abuse or neglect to the appropriate local, state and/ or federal agencies for investigation.
(c) Available remedies. The Department is authorized to impose one or more of the follow- ing remedies for each deficiency:
(i) Directed in-service training;
(ii) Directed plan of correction;
(iii) Appointment of a State monitor;
(iv) Denial of Medicaid payments for new admissions;
(v) Denial of fifty percent of the State share of Medicaid payments;
(vi) Denial of the Federal share of Medicaid payments;
(vii) Reimbursement of resident losses;
(viii) Appointment of a temporary manager;
(ix) Termination of Medicaid provider agreement with transfer of residents and assess- ment of transfer costs; or
(x) Closure of facility with transfer of residents and assessment of transfer costs.
(d) The provisions of 42 C.F.R. § 448.402 are incorporated by this reference.
Section 4. Definitions.
(a) "Abbreviated standard survey." "Abbreviated standard survey" as defined by 42 C.F.R. § 488.301, which definition is incorporated by this reference.
(b) "Abuse." "Abuse" as defined by 42 C.F.R. § 488.301, which definition is incorporated by this reference.
(c) "Alternative remedies." The following remedies selected by the Department as alternatives to federally mandated remedies pursuant to 42 C.F.R. § 488.406(a)(8):
(i) Assessment of transfer costs;
(ii) Denial of the Federal share of Medicaid payments;
(iii) Denial of the fifty percent of the State share of Medicaid payments; and
(iv) Reimbursement of resident losses.
(d) "Assessment of transfer costs." The payment by a facility of the actual costs of transferring residents of the facility to other appropriate facilities, selected by the Department, when transfer is part of a remedy.
(e) "Certification of compliance." A determination by the Department, based on the findings and recommendation of the survey agency or the Secretary of HHS, pursuant to 42 C.F.R. Subpart C, that a facility is in substantial compliance with the requirements of participation.
(f) "Certification of noncompliance." A determination by the Department, based on the findings and recommendation of the survey agency or the Secretary of HHS, pursuant to 42 C.F.R. Subpart C, that a facility is in not substantial compliance with the requirements of participation.
(g) "Chapter 1." Chapter 1, Rules for Medicaid Administrative Hearings, of the Wyoming Medicaid Rules.
(h) "Chapter 3." Chapter 3, Provider Participation, of the Wyoming Medicaid Rules.
(i) "Chapter 7." Chapter 7, Wyoming Nursing Home Reimbursement, of the Wyoming Medicaid Rules.
(j) "Closure with transfer of residents." The closure of a facility because of an emergency accompanied by the transfer of all residents to an appropriate facility or facilities.
(k) "Compliance." A facility that meets the requirements of participation.
(l) "Corrective action." The changes or improvements necessary to bring a facility into compli- ance with the applicable requirements of participation.
(m) "Deficiency." "Deficiency" as defined by 42 C.F.R. § 488.301, which definition is incorpo- rated by this reference.
(n) "Denial of fifty percent of the State share of Medicaid payments." The deduction from and retention by the Department of fifty percent (50%) of the State's share of the facility's per diem rate.
The State's share is determined pursuant to 42 U.S.C. § 1396d(b).
(i) If imposed as a category 2 remedy, the Department shall deny the State share of Medicaid payments for those residents affected by the deficiency(ies).
(ii) If imposed as a category 3 remedy, the Department shall deny the State share of Medicaid payments for all Medicaid residents of a facility.
(iii) Payments that are denied shall not be retroactively paid to a facility.
(o) "Denial of the Federal share of Medicaid payments." The deduction from and retention by the Department of the federal share of the facility's per diem rate. The federal share is the federal medi- cal assistance percentage as determined pursuant to 42 U.S.C. § 1396d(b).
(i) If imposed as a category 2 remedy, the Department shall deny the federal share of Medicaid payments for those residents affected by the deficiency(ies).
(ii) If imposed as a category 3 remedy, the Department shall deny the federal share of Medicaid payments for all Medicaid residents of a facility.
(iii) Payments that are denied shall not be retroactively paid to a facility.
(p) "Denial of payment for new admissions." The denial of Medicaid payments for all recipients admitted to a facility after a specified date. Payments that are denied shall not be retroactively paid to a facility.
(q) "Department." The Wyoming Department of Health, its agent, designee or successor. The Department is the single state agency appointed pursuant to 42 U.S.C. § 1396a(a)(5).
(r) "Directed in-service training." Training and education of a facility's staff that is:
(i) Required by the Department;
(ii) In response to a pattern of deficiencies; and
(iii) Is deemed, by the Department, to be likely to correct the pattern of deficiencies.
(s) "Directed plan of correction." A plan of correction developed by the survey agency and implemented pursuant to the supervision of the survey agency.
(t) "Director." The Director of the Department, the Director's agent, designee or successor.
(u) "Division." The Division of Health Care Financing of the Department, its agent, designee or successor.
(v) "Dually participating facility." "Dually participating facility" as defined in 42 C.F.R. § 488.301, which definition is incorporated by this reference.
(w) "Emergency." A situation in which there is a high probability that deficiencies will cause residents immediate serious physical or mental disability, continuation of severe pain or death if not immediately corrected.
(x) "Extended survey." "Extended survey" as defined by 42 C.F.R. § 488.301, which definition is incorporated by this reference.
(y) "Facility." A nursing facility .
(z) "HCFA." The Health Care Financing Administration of HHS, its agent, designee or succes- sor.
(aa) "HHS." The United States Department of Health and Human Services, its agent, designee or successor.
(bb) "Immediate jeopardy." Immediate jeopardy" as defined in 42 C.F.R. § 488.301, which definition is incorporated by this reference.
(cc) "Informal dispute resolution." A provider's opportunity, upon written request, to dispute the survey findings as set forth in the statement of deficiencies.
(dd) "Medicaid." Medical assistance and services provided pursuant to Title XIX of the Social Security Act and the Wyoming Medical Assistance and Services Act of 1967, as amended.
(ee) "Medicare." The health insurance program for the aged and disabled under Title XVIII of the Social Security Act.
(ff) "Neglect." "Neglect" as defined by 42 C.F.R. § 488.310, which definition is incorporated by this reference.
(gg) "New admission." The admission of a recipient who has never been in a facility or, if previously admitted, ha d been discharged or had voluntarily left the facility. The term does not include:
(i) Residents who were in the facility before the effective date of denial of payment for new admissions, even if they became eligible for Medicaid after that date; or
(ii) Residents who, after a temporary absence, are readmitted to reserved beds.
(hh) "No immediate jeopardy." A situation in which a facility's deficiencies do not pose an imminent threat of serious harm to residents' physical or mental health and safety such that immediate corrective action is necessary.
(ii) "Noncompliance." "Noncompliance" as defined by 42 C.F.R. § 488.301, which definition is incorporated by this reference.
(jj) "Nursing facility." "Nursing facility" as defined by 42 U.S.C. § 1396r(a), which definition is incorporated by this reference. "Nursing facility" may include a distinct part of a hospital or other institution which is designated to provide nursing facility services.
(kk) "Nursing facility services." "Nursing facility services" as defined by 42 U.S.C. § 1396d(f), which definition is incorporated by this reference.
(ll) "Per diem rate." A facility's per diem rate as established pursuant to Chapter 7.
(mm) "Plan of correction." A written document submitted to and subject to the approval of the survey agency specifying
(i) The corrective action the facility will take to correct deficiencies; and
(ii) A schedule for implementation and completion of the corrective action (the completion date for corrective action may not be more than sixty days after the date of survey, except that if the deficiencies involve substandard quality of care, the completion date for corrective action may not be more than thirty days after the date of survey, unless otherwise agreed to by the survey agency).
(nn) "Provider agreement." "Provider agreement" as defined by Chapter 3, which definition is incorporated by this reference.
(oo)"Recipient." A person who has been determined eligible for Medicaid.
(pp) "Reimbursement of resident losses." The reimbursement by a facility of a resident's per- sonal funds or the value of property owned by a resident when the statement of deficiencies establishes the funds or property have been lost or misplaced as a result of actions by agents or employees of the facility.
(qq) "Remedy." Any of the actions specified in section 3 which the Department may select and impose pursuant to this Chapter to ensure that a facility is in compliance.
(rr) "Requirements of participation." The requirements for long term care facilities as set forth in 42 C.F.R. Subpart B, which requirements are incorporated by this reference.
(ss) "Reserved bed." Beds in a facility reserved for a resident who is temporarily absent when there are no appropriate vacancies in the facility.
(tt) "Resident." A resident of a facility.
(uu) "Standard survey." "Standard survey" as defined by 42 C.F.R. § 488.301, which definition is incorporated by this reference.
(vv) "Statement of deficiencies." The form, currently HCFA-2567, by which the survey agency notifies a facility of a finding of a deficiency or deficiencies. The statement of deficiencies must include notice of the facility's right to request informal dispute resolution, including the procedures to follow in making such a request.
(ww) "State monitor." An individual, who is an employee or contractor of the survey agency that is appointed by the director, to:
(i) Oversee the implementation of a plan of correction;
(ii) Protect the facility's residents; and
(iii) Report to the survey agency and the Department on whether the facility is operating in compliance with the requirements of participation, properly implementing a plan of correction, or both.
(iv) A monitor shall have no authority to become involved in the actual operation of a facility, except that the monitor may make recommendations to the facility.
(xx) "State Operations Manual (SOM)." The 7000 series of the State Operations Manual as disseminated by HCFA. The SOM is incorporated by this reference. It is available upon request from the survey agency.
(yy) "Submit." To hand-deliver or mail to the Department by certified mail, return receipt requested. If hand-delivered, the date of submission is the date of delivery. If mailed, the date of sub- mission shall be the date of the postmark.
(zz) "Substandard quality of care." Substandard quality of care" as defined by 42 C.F.R. § 488.301, which definition is incorporated by this reference.
(aaa) "Substantial compliance." "Substantial compliance" as defined by 42 C.F.R. § 488.301, which definition is incorporated by this reference.
(bbb) "Survey." An abbreviated standard survey, an extended survey or a standard survey.
(ccc) "Survey agency." The Office of Health quality of the Department ,its agent, designee or successor.
(ddd) "Temporary absence" or "temporarily absent." "Temporary absence" or "temporarily absent" as defined by Chapter 7, which definition is incorporated by this reference.
(eee) "Temporary manager." An individual appointed to act as temporary nursing home admin- istrator with authority to (except as otherwise specified by the Director):
(i) Hire, terminate or reassign staff;
(ii) Obligate facility funds;
(iii) Alter facility procedures;
(iv) Manage the facility to correct deficiencies; and
(v) Such other duties and responsibilities as assigned by the Director.
(fff) "Termination of Medicaid provider agreement." Making a facility indefinitely ineligible to receive Medicaid reimbursement for providing nursing facility services to recipients.
Section 5. Factors to be considered in selecting remedies. The Director shall consider the factors specified in 42 C.F.R. § 488.404, which is incorporated by this reference, in determining the seriousness of a facility's deficiency(ies) and selecting the appropriate remedy(ies).
Section 6. Available remedies. Remedies are grouped into the following categories pursuant to 42 C.F.R. § 488.408:
(a) Category 1 remedies.
(i) Directed in-service training;
(ii) Directed plan of correction; and/or
(iii) The appointment of a state monitor.
(b) Category 2 remedies.
(i) Denial of Medicaid payments for new admissions;
(ii) Denial of fifty percent of the State share of Medicaid payments for each resident affected by the deficiency(ies);
(iii) Denial of the Federal share of Medicaid payments for each resident affected by the deficiency(ies); and/or
(iv) Reimbursement of resident losses.
(c) Category 3 remedies.
(i) Denial of the federal share of Medicaid payments for all Medicaid residents.
(ii) Denial of fifty percent of the State share of Medicaid payments for all Medicaid residents.
(iii) Appointment of a temporary manager.
(iv) Termination of Medicaid provider agreement;
(v) Transfer of residents with assessment of transfer costs; and/or
(vi) Closure of facility and transfer of residents with assessment of transfer costs.
(d) A provider shall not report any costs incurred as any part of a remedy as an allowed cost pursuant to Chapter 7.
Section 7. Selection of remedies.
(a) The Department shall follow the procedures and methods specified in 42 C.F.R. § 488.408, as supplemented by the SOM, both of which is incorporated by this reference, in selecting remedies.
(b) For purposes of selecting remedies, the alternative remedies shall be classified as speci- fied in Section 6, and may be imposed whenever remedies of the specified category are appropriate pursuant to 42 C.F.R. Subpart F, as supplemented by the SOM.
Section 8. Action when there is immediate jeopardy.
(a) When there is immediate jeopardy, the Department shall take action pursuant to 42 C.F.R. § 488.410, as supplemented by the SOM, both of which are incorporated by this reference.
(b) The Department shall follow the procedures specified in 42 C.F.R. § 488.410, as supple- mented by the SOM.
Section 9. Imposition of remedies when there is no immediate jeopardy but the facility is not in substantial compliance.
(a) When there is no immediate jeopardy, but a facility is not in substantial compliance, the Department shall take action pursuant to 42 C.F.R. § 488.412, as supplemented by the SOM, both of which are incorporated by this reference.
(b) The Department shall follow the procedures specified in 42 C.F.R. § 488.412, as supple- mented by the SOM.
Section 10. Imposition of remedies when there is repeated substandard quality of care.
(a) When a facility has been found to have provided substandard quality of care on the last three consecutive standard surveys, the Department shall take action pursuant to 42 C.F.R. § 488.414, as supplemented by the SOM, both of which are incorporated by this reference.
(b) The Department shall follow the procedures specified in 42 C.F.R. § 488.414, as supple- mented by the SOM.
Section 11. Temporary management. The Department adopts the provisions of 42 C.F.R. §488.415, as supplemented by the SOM, both of which are incorporated by this reference, relating to the appointment of a temporary manager.
Section 12. Denial of payments for new admissions. The Department adopts the provisions of 42 C.F.R. § 488.417, as supplemented by the SOM, both of which are incorporated by this reference, relating to the denial of payments for new admissions.
Section 13. State monitoring. The Department adopts the provisions of 42 C.F.R. § 488.422, as supplemented by the SOM, both of which are incorporated by this reference, relating to state monitor- ing.
Section 14. Directed plan of correction. The Department adopts the provisions of 42 C.F.R. § 488.424, as supplemented by the SOM, both of which are incorporated by this reference, relating to directed plans of correction.
Section 15. Directed inservice training. The Department adopts the provisions of 42 C.F.R. § 488.425, as supplemented by the SOM, both of which are incorporated by this reference, relating to directed inservice training.
Section 16. Closure of a facility or transfer of residents, or both. The Department adopts the provisions of 42 C.F.R. § 488.426, as supplemented by the SOM, both of which are incorporated by this reference, relating to the closure of a facility or transfer of residents, or both.
Section 17. Alternative remedies.
(a) The Department has adopted alternative remedies pursuant to 42 C.F.R. § 488.406(a)(8)
(b) Alternative remedies are classified pursuant to Section 6 as category 2 or category 3 remedies.
(i) Alternative remedies classified as category 2 remedies may be imposed whenever the imposition of category 2 remedies is appropriate according to 42 C.F.R. Subpart F. In imposing category 2 alternative remedies, the Department shall follow the procedures of Sections 7510 through 7536 of the SOM.
(ii) Alternative remedies classified as category 3 remedies may be imposed whenever the imposition of category 3 remedies is appropriate according to 42 C.F.R. Subpart F. In imposing category 3 alternative remedies, the Department shall follow the procedures of Sections 7510 through 7536 of the SOM.
Section 18. Duration of remedies.
(a) The Department adopts the provision of 42 C.F.R. § 488.454, which are incorporated by this reference, relating to the duration of remedies.
(b) Alternative remedies. Alternative remedies shall remain in effect until the facility is in substantial compliance as determined by the survey agency, or until the provider agreement is termi- nated.
Section 19. Termination of provider agreement. The Department adopts the provisions of 42 C.F.R. § 488.456, which are incorporated by this reference, relating to the termination of provider agreement.
Section 20. Informal dispute resolution.
(a) Availability. Informal dispute resolution is available whenever the survey agency notifies a facility of noncompliance.
(b) Request. A request for informal dispute resolution shall be made in writing and hand- delivered or mailed by certified mail, return receipt requested, and delivered to the survey agency within ten calendar days after the facility receives a statement of deficiencies.
(c) Conduct of meeting. Informal dispute resolution shall consist of a face-to-face meeting between representatives of the facility and representative of the survey agency.
(d) Scope of informal dispute resolution.
(i) The purpose of informal dispute resolution is to allow a provider an opportunity to demonstrate that deficiencies should not have been cited.
(ii) A facility may not use the informal dispute resolution process to challenge any part of the survey process, including the:
(A) Classification of deficiencies;
(B) Director's choice of remedy(ies) imposed;
(C) Failure of the survey agency to comply with a requirement of the survey process;
(D) Inconsistency of the survey team in citing deficiencies among facilities; or
(E) Inadequacy or inaccuracy of the informal dispute resolution process.
(e) A request for informal dispute resolution shall not delay the imposition of remedies.
Section 21. Readmission.
(a) After termination of Medicaid provider agreement or closure and transfer of residents or voluntary withdrawal, a facility may not participate in Medicaid unless:
(i) The reasons for the termination of Medicaid provider agreement, closure and transfer of residents, or voluntary withdrawal no longer exist;
(ii) There is reasonable assurance that the reasons for the termination of Medicaid provider agreement, closure and transfer of residents, or voluntary withdrawal will not recur; and
(iii) The facility has received a certification of compliance.
(b) Reasonable assurance means, with the exception of physical plant standards, that the facility has demonstrated compliance with the requirements of participation for at least 30 consecutive days immediately prior to readmission. The physical plant standards must be in compliance at the time of readmission.
Section 22. Effect of imposition of Medicare sanctions on dually certified facilities.
(a) Automatic imposition. If a facility is denied participation in, terminated from participa- tion in Medicare, or otherwise sanctioned by Medicare, the Department shall impose the same remedy or remedies for purposes of Medicaid, in accordance with the provisions of 42 C.F.R. § 488.452.
(b) No separate appeal. A remedy imposed pursuant to this Section may not be appealed pursuant to Section 23 of this rule, Chapter I, or any other rules of the Department. The provider's exclusive appeal is pursuant to Medicare procedures in accordance with 42 C.F.R. § 498.
Section 23. Appeal rights.
(a) Request for administrative hearing. A facility may request an administrative hearing at which it may refute the certification of noncompliance upon which the imposition of remedies is based, in accordance with the provisions of 42 C.F.R. § 431, Subpart D. The administrative hearing shall be pursuant to Chapter I and shall be requested by mailing by certified mail, return receipt requested, or personally delivering a written request for hearing to the Department within sixty days of the date the facility receives notice of the imposition of remedies. The request for hearing shall state with specificity the factual basis for the request. The failure to provide such specificity shall result in the denial of the request, with prejudice.
(b) Time of hearing. The administrative hearing shall be held before the effective date of the remedy or within 120 calendar days after the effective date of the remedy.
(c) No stay of remedy. The filing of a request for an administrative hearing shall not stay the effective date of the remedy.
(d) Matters not subject to appeal. A facility may not request an administrative hearing regard- ing:
(i) The scope and severity of noncompliance; or
(ii) The Director's choice of remedy.
(e) Burden of proof. The burden of proof shall be on the facility at an administrative hearing.
Section 24. Superseding effect. This Chapter supersedes all prior rules or policy statements issued by the Department, including Provider Manuals and/or Provider Bulletins, which are inconsistent with this Chapter.
Section 25. Severability. If any portion of this Chapter is found to be invalid or unenforceable, the remainder shall continue in full force and effect.