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Bethany Hospice Services of Western Pennsylvania v. Department of Public Welfare

Commonwealth Court of Pennsylvania

December 9, 2013

Bethany Hospice Services of Western Pennsylvania, Petitioner
v.
Department of Public Welfare, Respondent

Argued November 14, 2013.

Appealed from No. 02I0879-001. State Agency: Department of Public Welfare.

Robert H.C. Ralston, Pittsburgh, for petitioner.

Peter J. Garcia, Senior Counsel, Harrisburg, for respondent.

BEFORE: HONORABLE BERNARD L. McGINLEY, Judge, HONORABLE RENÉ E COHN JUBELIRER, Judge, HONORABLE ROBERT SIMPSON, Judge. OPINION BY JUDGE COHN JUBELIRER.

OPINION

Page 251

RENÉ E COHN JUBELIRER, Judge

Bethany Hospice Services of Western Pennsylvania (Bethany) petitions for review of the Order of the Bureau of Hearings and Appeals (BHA) of the Department of Public Welfare (Department) that adopted the Recommendation of the Administrative Law Judge (ALJ) denying Bethany's appeal from a Retroactive Inpatient Denial by the Department's Bureau of Program Integrity, Division of Program and Provider Compliance (Bureau).[1] The Bureau retroactively denied Medical Assistance (MA) payment for hospice services provided by Bethany to patient M.O. (Patient) from October 11, 2006, six months after Patient entered hospice, to June 4, 2008, when the Patient was discharged, alive, from hospice on the basis that Bethany's records did not document a decline in Patient's condition. On appeal, Bethany argues that Patient at all times met the relevant criteria for hospice care, which do not require a decline in a patient's condition while the patient is in hospice.

Eligibility for hospice care through the MA program is governed by Section 1130.21 of the Department's regulations, which provides, among other requirements, that a recipient must " [b]e certified as being terminally ill by a doctor of medicine or osteopathy under § 1130.22 (relating to duration of coverage)." 55 Pa. Code § 1130.21. Section 1130.22 provides for the duration of hospice coverage, stating in relevant part:

There is no limit on the available number of days of hospice coverage for a recipient who meets the eligibility requirements of § 1130.21 (relating to recipient eligibility requirements) and who is certified as being terminally ill in

Page 252

accordance with the following procedures:
(1) Basic requirement. For the first 60-day period of hospice coverage, the hospice obtains, within 2 calendar days after hospice care is initiated, a completed ...

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