Bruce G. Baron, Esq. bruceb@capozziadler.com
On April 1, 2019, DHS issued OLTL Bulletin IEB-19-04 (Implementation of the Functional Eligibility Determination Process) to provide for the use of the new FED Assessment Tool in place of the previous “LCD” (Level of Care Determination) Tool for all initial assessments of Clinical Eligibility for nursing facility services, whether provided in a nursing home or through a home- or community-based program, whether provided in through Community Health Choices LTSS or not. In addition to the transition to the new FED Assessment Tool, this Bulletin makes some significant changes to the process:
- Where the individual’s MA-51 supports NFCE (Nursing Facility Clinically Eligible), but the FED Assessment score results in a NFI (Nursing Facility Ineligible) determination, the results must be forwarded to a DHS Physician for review and final determination. Under the prior process in such cases, the Area Agency on Aging’s (AAA’s) Physician Consultant had to be involved in resolving such conflicts. The transmittal to the Physician Consultant can include an Assessor’s own comments about reasons why the Assessor believes the FED results may be questionable; however, DHS has not issued any guidance to the Department Physician(s) to date as to the documentation or other information to be considered in resolving such issues. Under the prior LCD process, the Department of Aging had guidelines as to what information and documentation was required in order for an assessment to be deemed complete. The OLTL Bulletin does not expressly exclude consideration of the Department of Aging’s standards.
- Where in such cases the Department Physician confirms the NFI determination, the results are issued to the applicant by OLTL (not by the AAA) and must include an explanation of why the individual is not NFCE along with information on filing an appeal. Where the result is a NFCE determination, then the application will be forwarded to the County Assistance Office (CAO) for determination of financial eligibility for Medicaid coverage and issuance of a PA-162.
- Appeals of OLTL NFI Determinations must be initially filed with OLTL, not with the CAO or the Bureau of Hearings and Appeals (BHA) pursuant to the requirements of 55 Pa. Code Section 275.4(a)(2)(i) and DHS’s CMS Waiver Agreement (Appendix F). NOTE: if such a decision is not issued by OLTL, but by the AAA, our Firm recommends that the appeal be filed with both and with the CAO, since the flow of documents has sometimes come out of the CAO instead of OLTL.
Our Firm recommends that, since this is a new system, individuals and providers consult with counsel as to the validity of results and potential appeal issues. DHS has received many comments on the new FED system and the OLTL Bulletin; and, has not responded to many of them so far. If you have questions or a particular case to discuss, you may contact Bruce G. Baron, Esq. of our Firm at bruceb@capozziadler.com or 717-233-4101.