[Code of Federal Regulations]

[Title 42, Volume 4]

[Revised as of October 1, 2006]

From the U.S. Government Printing Office via GPO Access

[CITE: 42CFR431.153]



[Page 33-35]

 

                         TITLE 42--PUBLIC HEALTH

 

  CHAPTER IV--CENTERS FOR MEDICARE & MEDICAID SERVICES, DEPARTMENT OF 

                  HEALTH AND HUMAN SERVICES (CONTINUED)

 

PART 431_STATE ORGANIZATION AND GENERAL ADMINISTRATION--Table of Contents

 

              Subpart D_Appeals Process for NFs and ICFs/MR

 

Sec.  431.153  Evidentiary hearing.



    (a) Right to hearing. Except as provided in paragraph (b) of this 

section, and subject to the provisions of paragraphs (c) through (j) of 

this section, the State must give the facility a full evidentiary 

hearing for any of the actions specified in Sec.  431.151.



[[Page 34]]



    (b) Limit on grounds for appeal. The following are not subject to 

appeal:

    (1) The choice of sanction or remedy.

    (2) The State monitoring remedy.

    (3) [Reserved]

    (4) The level of noncompliance found by a State except when a 

favorable final administrative review decision would affect the range of 

civil money penalty amounts the State could collect.

    (5) A State survey agency's decision as to when to conduct an 

initial survey of a prospective provider.

    (c) Notice of deficiencies and impending remedies. The State must 

give the facility a written notice that includes:

    (1) The basis for the decision; and

    (2) A statement of the deficiencies on which the decision was based.

    (d) Request for hearing. The facility or its legal representative or 

other authorized official must file written request for hearing within 

60 days of receipt of the notice of adverse action.

    (e) Special rules: Denial, termination or nonrenewal of provider 

agreement--(1) Appeal by an ICF/MR. If an ICF/MR requests a hearing on 

denial, termination, or nonrenewal of its provider agreement--

    (i) The evidentiary hearing must be completed either before, or 

within 120 days after, the effective date of the adverse action; and

    (ii) If the hearing is made available only after the effective date 

of the action, the State must, before that date, offer the ICF/MR an 

informal reconsideration that meets the requirements of Sec.  431.154.

    (2) Appeal by an NF. If an NF requests a hearing on the denial or 

termination of its provider agreement, the request does not delay the 

adverse action and the hearing need not be completed before the 

effective date of the action.

    (f) Special rules: Imposition of remedies. If a State imposes a 

civil money penalty or other remedies on an NF, the following rules 

apply:

    (1) Basic rule. Except as provided in paragraph (f)(2) of this 

section (and notwithstanding any provision of State law), the State must 

impose all remedies timely on the NF, even if the NF requests a hearing.

    (2) Exception. The State may not collect a civil money penalty until 

after the 60-day period for request of hearing has elapsed or, if the NF 

requests a hearing, until issuance of a final administrative decision 

that supports imposition of the penalty.

    (g) Special rules: Dually participating facilities. If an NF is also 

participating or seeking to participate in Medicare as an SNF, and the 

basis for the State's denial or termination of participation in Medicaid 

is also a basis for denial or termination of participation in Medicare, 

the State must advise the facility that--

    (1) The appeals procedures specified for Medicare facilities in part 

498 of this chapter apply; and

    (2) A final decision entered under the Medicare appeals procedures 

is binding for both programs.

    (h) Special rules: Adverse action by CMS. If CMS finds that an NF is 

not in substantial compliance and either terminates the NF's Medicaid 

provider agreement or imposes alternative remedies on the NF (because 

CMS's findings and proposed remedies prevail over those of the State in 

accordance with Sec.  488.452 of this chapter), the NF is entitled only 

to the appeals procedures set forth in part 498 of this chapter, instead 

of the procedures specified in this subpart.

    (i) Required elements of hearing. The hearing must include at least 

the following:

    (1) Opportunity for the facility--

    (i) To appear before an impartial decision-maker to refute the 

finding of noncompliance on which the adverse action was based;

    (ii) To be represented by counsel or other representative; and

    (iii) To be heard directly or through its representative, to call 

witnesses, and to present documentary evidence.

    (2) A written decision by the impartial decision-maker, setting 

forth the reasons for the decision and the evidence on which the 

decision is based.

    (j) Limits on scope of review: Civil money penalty cases. In civil 

money penalty cases--

    (1) The State's finding as to a NF's level of noncompliance must be 

upheld unless it is clearly erroneous; and



[[Page 35]]



    (2) The scope of review is as set forth in Sec.  488.438(e) of this 

chapter.



[61 FR 32348, June 24, 1996, as amended at 62 FR 43935, Aug. 18, 1997; 

64 FR 39937, July 23, 1999]