Appeal from the Orders of the Department of Public Welfare in case of Fifty Residents, by Eugene Brody, Administrator of Park Pleasant Nursing Home, dated September 13, 1984.
Samuel Kagle, with him, Niles Schore, for petitioners.
Mary Frances Grabowski, Assistant Counsel, for respondent.
Judges Rogers and MacPhail, and Senior Judge Barbieri, sitting as a panel of three. Opinion by Judge Rogers.
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This is the appeal of fifty nursing home residents of the Park Pleasant Nursing Home (residents) who have been receiving skilled nursing care under the Medical Assistance Program.*fn1 Following an annual
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inspection, the Pennsylvania Department of Public Welfare's (DPW) Inspection of Care team recommended that the care of the appellant residents be reclassified from skilled to intermediate. DPW sent notices to the residents recertifying them in accordance with the recommendation. The residents appealed this determination, and two days of hearings were held at which the hearing officer upheld DPW's recommendations. The hearing officer's decision was affirmed by DPW's Office of Hearings and Appeals. The residents filed a request for reconsideration which was denied by DPW's Executive Deputy Secretary. The residents have filed a petition for review of the order of recertification, asking us to remand their cases for reevaluation because, as they assert, DPW's procedures were contrary to law and its own regulations.
The residents first claim that the DPW regulations which formed the basis for the reduction in the level of care to them must be invalidated since "[these] regulations examine only the treatment and services provided in determining whether care is skilled or not." The DPW regulations classify skilled care services as follows:
II. Skilled Care Services.
(a) For an individual service provided to the recipient to be considered a skilled care service, the service must:
(i) Be needed by the patient on a daily basis.
(ii) Be ordered by a physician.
(iii) Require the skills of, and be provided either directly by or under the supervision of, medical professionals.
(iv) Be provided to the patient on a daily basis.
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(v) Be one that can only be provided, as a practical matter, in a skilled nursing facility on an inpatient basis.
(vi) Be documented in the recipient's medical record daily.
(vii) Be included and not excluded as a skilled care service in the Skilled Nursing Care Assessment Handbook.
55 Pa. Code § 1181, Appendix E II(a). The residents claim that these criteria do not allow for an analysis of the patient's condition as a whole, which has been found to be necessary by those courts interpreting a similar provision defining "skilled nursing facility services" in the Social Security Act, which states in pertinent part:
[T]he term 'skilled nursing facility services' means services which are or were required to be given an individual who needs or needed on a daily basis skilled nursing care (provided directly by or requiring the supervision of skilled nursing personnel) . . . which can only as practical matter be provided in a skilled nursing facility on an inpatient basis.
42 U.S.C. § 1396d(f). As a result, the residents claim that the DPW regulations are not in compliance with the Social Security Act. We find this argument to be without merit.
If a patient does not need or receive one of the listed services in the above-cited DPW regulation, he may still qualify for skilled care service under the following conditions:
A recipient may not need or receive a skilled care service . . . however, in rare instances, a particular medical condition may occur which contemplates the recipient's medical state to the degree that the treatment of the recipient's medical condition must be rendered or supervised
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by medical professionals on a daily basis. Although any of the services required in the treatment of this condition could be performed by a properly instructed person, that person would not have the ability to understand the relationship between the services and to evaluate the ultimate effect of one service on the other. Therefore, the treatment of the medical condition requires that the services be performed by or under the immediate supervision of medical professionals. It is the necessity of the immediate involvement of medical professionals in ...