Wyo. Code R. 048-0037-5
Medicaid
Chapter 5: Medicaid Long Term Care Facility Remedies/Terminations
Effective Date: 06/28/1995 to 11/16/1995
Rule Type: Superceded Rules & Regulations
Reference Number: 048.0037.5.06281995
This rule is promulgated by the Department of Health pursuant to the Medical Assistance and Services Act at W. S. 42-4-101 et seq. and the Wyoming Administrative Procedures Act at W. S. 16-3-101 et seq.
(a) This rule establishes the standards and procedures for imposing adverse actions on nursing facilities which participate in the Medicaid program.
(b) This rule is to be read in conjunction with 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 inconsistencies between the provisions of this rule 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 rule.
(a) Available remedies. The Medicaid Agency is authorized to impose the following remedies:
(b) Standards for imposing remedies. The Director shall impose the least restrictive remedy which will result in corrective action and protect the health and safety of the residents of the facility. In determining the appropriate remedy, the Director shall consider:
(i) The results of the most recent survey and any follow-up surveys;
(ii) The severity and scope of the deficiencies;
(iii) The facility's corrective actions; and
(iv) The facility's prior history of deficiencies.
Section 4. Definitions
(a) "Adverse action." The imposition of a remedy.
(b) "Appropriate vacancies." An unoccupied bed in a facility which is not a reserved bed and which is in a room shared by a resident of the same gender as the recipient who is temporarily absent, unless the resident in the room is the spouse of the temporarily absent recipient.
(c) "Certification." A determination by the Medicaid agency, based on the findings and recommendation of the survey agency or the Secretary of the United States Department of Health and Human Services, pursuant to 42 C.F.R. 442 Subpart C, that a facility meets the applicable conditions of participation.
(d) "Closure." The closure of a facility because of an emergency.
(e) "Conditions of participation." Before October 1, 1990, the requirements an SNF or ICF must meet to participate in the Medicaid program, as specified in the applicable federal regulations. Effective October 1, 1990, the requirements a nursing facility must meet to participate in the Medicaid program, as specified in the applicable federal regulations.
(f) "Corrective action." The changes or improvements necessary to bring a facility into compliance with the applicable conditions of participation.
(g) "Credible Allegation of Compliance." Written documentation from an authorized representative of a facility that corrective action has been taken or will be taken as soon as practicable pursuant to a plan of correction approved by the survey agency and that no immediate jeopardy exists. An "authorized representative" is a person authorized in writing by the governing body of the facility to act on behalf of the facility in its dealings with the Department.
(h) "Critical care requirements." The following Level A requirements as set forth in 42 C.F.R. Part 483, Subpart B: Residents' rights, Quality of life, Quality of care, Dietary, and Administration.
(i) 'Date of Survey.' The date on which the survey agency completes a review of a facility by conducting an exit conference with the operator of the facility.
(j) 'Decertification.' The termination or nonrenewal of a facility's certification.
(k) 'Deficiencies.' Noncompliance by a facility with one or more of the conditions of participation as defined in subsection (e). 'Deficiencies' includes noncompliance with one or more of the level B requirements specified in 42 C.F.R. Part 483, Subpart B, even though the facility may be in substantial compliance with the applicable level A requirements specified therein. 42 C.F.R. Part 483, Subpart B is hereby incorporated by reference.
(l) 'Directed plan of correction.' A plan of correction developed by the survey agency and implemented pursuant to the supervision of the survey agency. A directed plan of correction may include the appointment of a monitor.
(m) 'Director.' The Director of the Medicaid agency, or his designee.
(n) '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.
(o) 'Facility.' A skilled nursing facility (SNF), an intermediate care facility (ICF) or a nursing facility that meets all of the conditions for participation in the Medicaid program. 'Facility' may include a distinct part of a hospital or institution which is designated to provide nursing services.
(p) 'Follow-up Survey.' A review by the survey agency of a facility which has been cited for deficiencies to ascertain if the deficiencies have been corrected.
(q) 'Immediate jeopardy.' A situation in which deficiencies pose an imminent threat of serious harm to residents' mental or physical health and safety such that immediate corrective action is necessary.
(r) 'Impartial decision-maker.' A hearing officer appointed pursuant to W. S. 16-3-112.
(s) 'Medicaid.' Medical assistance and services provided pursuant to Title XIX of the Social Security Act, as amended, and the Wyoming Medical Assistance and Services Act, as amended.
(t) 'Medicaid Agency.' The Wyoming Department of Health, the single state agency appointed pursuant to 42 U.S.C §1396a(a)(5), its successor or designee.
(u) 'Medicare.' The health insurance program for the aged and disabled under
(v) 'Monitor.' An individual appointed by, and subject to the supervision of, the Director to observe the operation of a facility, including, but not limited to the implementation of a plan of correction, and report to the Director on whether the facility is operating in compliance with the conditions of participation, properly implementing a plan of correction, or both. 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.
(w) 'New Admission.' The admission of a recipient who has never been in a facility or, if previously admitted, had 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.
(x) '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.
(y) 'Nonrenewal.' A decision by the Medicaid agency, based on the recommendation of the survey agency, not to certify a facility at the conclusion of a period for which the facility had been certified, or a decision by the Medicaid agency not to enter into a provider agreement with a facility at the end of a period during which there had been a provider agreement in effect.
(z) 'Notice' or 'notify.' A written notice sent by certified mail, return receipt requested, or hand delivered. Any notice of adverse action shall include a statement of the reasons for and the evidence supporting the adverse action, the effective date of the adverse action, the facility's right to request a reconsideration of the adverse action, that the facility may request a stay of certain adverse actions pursuant to subsection 15(i), and that the failure to request reconsideration shall preclude an administrative hearing.
(aa) 'Notice to public.' A publication in a newspaper of general circulation in the city or town in which a facility is located or a broadcast by a radio or television station which serves the city or town in which the facility is located. If notice to the public is given by radio or television broadcast, notice shall also be given by publication in an appropriate newspaper as soon as practicable after the broadcast.
(bb) 'Nursing facility.' A nursing facility as defined by section 1919 (a) through (d) of the Social Security Act (Pub. L. 100-203, section 4211).
(cc) 'Nursing services.' Skilled nursing services, intermediate care services or nursing facility services, as defined by applicable federal regulations.
(dd) 'Operator.' A person licensed as a nursing home administrator by the Wyoming State Board of Nursing Home Administrators.
(ee) 'Physical plant standards.' The physical environment and sanitation standards specified in applicable federal regulations and the Life Safety Code.
(ff) 'Plan of Correction.' A written document submitted to and subject to the approval of the survey agency specifying the corrective action the facility will take to correct deficiencies and 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 conditions or critical care requirements, 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.
(gg) 'Provider Agreement.' A formal written agreement between the Medicaid agency and a facility.
(hh) 'Recipient.' A person who has been determined eligible for Medicaid.
(ii) 'Remedy.' A directed plan of correction, decertification, termination, denial of payments for new admissions, the appointment of a temporary manager, closure, nonrenewal or the appointment of a monitor.
(jj) 'Reserved Beds.' Beds in a facility reserved for a resident who is temporarily absent when there are no appropriate vacancies in the facility.
(kk) 'Resident.' A resident of a facility.
(ll) '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 submission shall be the date of the postmark.
(mm) 'Substandard quality of care.' Deficiencies which limit the capacity of the facility to furnish an adequate level or quality of care. A facility that does not substantially meet all applicable conditions of participation is limited in its capacity to provide an adequate level or quality of care.
(nn) 'Survey.' An onsite review of a facility by the survey agency to determine whether the facility is in compliance with the applicable conditions of participation.
(oo) 'Survey agency.' The Medical Facilities Office of the Wyoming Department of Health.
(pp) 'Temporary absence' or 'temporarily absent.' When a resident is out of a facility for hospitalization or therapeutic home visits. Temporary absences for hospitalization shall not exceed fifteen days per year. Temporary absences for therapeutic home visits shall be limited to five days in duration no more than once per month and shall not exceed, in total, eighteen days per the facility's cost reporting period.
(qq) 'Temporary manager.' A receiver appointed pursuant to Section 8.
(rr) 'Termination.' The revocation by the Medicaid agency of a facility's provider agreement.
(ss) 'Working day.' Any day on which the offices of the State of Wyoming are open to conduct business.
(a) The survey agency shall recommend that the Medicaid agency decertify a facility if it determines and documents that:
(i) The facility is no longer in compliance with one or more of the conditions of participation and the facility's deficiencies pose immediate jeopardy; or
(ii) The facility is in substantial noncompliance with one or more of the conditions of participation and no lesser remedy will protect the health and safety of the facility's residents.
(b) Notice to Medicaid agency. The survey agency shall notify the Medicaid agency of the recommended decertification as provided in Section 7.
(a) The survey agency may recommend to the Director the closure of a facility in an emergency if it determines and documents that closure of the facility and transfer of the residents to other facilities is necessary to protect the health and safety of the residents.
(b) The survey agency shall notify the Medicaid agency of the recommended closure as provided in Section 7.
(c) The Director may order the closure of a facility upon recommendation of the survey agency pursuant to subsection (a) if he finds that there is an emergency and that closure of the facility and transfer of the residents to other facilities is necessary to protect the health and safety of the residents.
(a) Decertification or closure. Upon notice from the survey agency of the recommended decertification or closure of a facility, the Medicaid agency shall:
(i) Terminate the facility pursuant to subsection 12(a) if there is immediate jeopardy or pursuant to subsection 12(c) if there is no immediate jeopardy.
(ii) Subject to subsection 6(c), order closure of the facility.
(iii) In the case of an emergency, and if necessary to oversee the operation of the facility and to ensure the health and safety of the facility's residents during the termination or closure process, ask the Director to appoint a temporary manager pursuant to Section 8 to ensure the orderly closure of the facility and transfer of the residents to other facilities.
(b) Deficiencies which do not pose immediate jeopardy. Upon notice from the survey agency that a facility has deficiencies, but such deficiencies do not pose immediate jeopardy, the Medicaid agency shall terminate the facility if the deficiencies represent substantial noncompliance with one or more conditions of participation and no lesser remedy will protect the health and safety of the facility's residents. Termination shall not preclude other adverse action pursuant to this rule.
(c) Failure to correct deficiencies. If a facility has been denied payments for new admissions pursuant to this Chapter and the survey agency finds that the facility has been unable to complete corrective action during the period that such payments have been denied, the Medicaid agency shall terminate the facility effective the day following the last day of the period of denial of such payments.
(d) A facility which also participates in Medicare and which has its Medicare provider agreement suspended, terminated, not renewed or otherwise sanctioned, shall have its Medicaid provider agreement suspended, terminated or not renewed for the same period of time. The facility shall be entitled to the Medicare appeal procedures specified in 42 C.F.R. 498, and shall not be entitled to appeal pursuant to these rules. The final decision entered under the Medicare procedures shall be binding on the facility and the Medicaid agency.
Section 8. Appointment of a temporary manager The following procedures shall apply to the appointment of a temporary manager:
(a) Selection of temporary manager. The director shall nominate the temporary manager and seek appointment pursuant to subsection (b). A temporary manager may not have any financial interest in the facility or any other facility in the state, unless otherwise agreed by the Director and the facility and approved by the court.
(b) Appointment of temporary manager. The director shall request the appointment of a temporary manager pursuant to W.S. § 1-33-101(a)(viii) (1977). The director may request that the temporary manager be responsible for operating or closing the facility, transferring residents to other facilities, overseeing corrective action or such other duties and responsibilities as are necessary to ensure the health and safety of the residents of the facility.
(c) Duties and responsibilities. The temporary manager shall have the duties and responsibilities specified by the Court.
(d) Terms of service. The temporary manager shall be subject to the supervision and control of the Court and shall receive such compensation from the Medicaid agency as the Court shall direct.
(e) Duration of temporary management. Subject to the Court's control, the temporary management of a facility shall continue until the facility is closed or the survey agency has determined that the facility's deficiencies have been corrected and the director has determined that the facility's management capability is adequate to ensure continued compliance with the conditions of participation.
(a) The Medicaid agency may deny payments for new admissions to a facility with deficiencies in critical care requirements, even if such deficiencies do not jeopardize the health or safety of the residents. In determining whether to deny payments for new admissions, the Director shall consider:
(b) The Medicaid agency shall deny such payments to a facility which, on three consecutive standard surveys, has been found to have provided substandard quality of care.
(c) Period of denial. The denial of payments for new admissions shall begin on the date specified in the notice of intent to deny payments sent pursuant to paragraph 12(d)(iv), and shall continue for eleven months after the month it begins, unless the Medicaid agency finds, based on the recommendations of the survey agency, that:
(i) The facility has taken corrective action or is making a good faith effort to meet the deadlines for taking corrective action pursuant to an approved plan of correction; or
(ii) The deficiencies are such that it is or becomes necessary to terminate the facility because of immediate jeopardy.
(d) Subsequent termination. The Medicaid agency shall terminate a facility if the facility has not completed corrective action during the period of denial. such termination shall be effective on the day following the last day of the period of denial.
(e) The denial of payments for new admissions shall not preclude other adverse actions based on the same deficiencies.
(a) The survey agency shall not recommend the renewal of the certification of a facility with deficiencies, even if such deficiencies do not jeopardize the health or safety of the residents, unless there is in place an approved plan of correction and the facility is substantially in compliance with the plan of correction.
(b) The Medicaid agency shall not renew a facility's provider agreement if the survey agency has recommended against renewal of the facility's certification.
(a) If the survey agency determines that a facility has deficiencies which pose no immediate jeopardy, it may require the facility to take corrective action pursuant to a directed plan of correction. In determining whether to impose a directed plan of correction, the survey agency shall consider the severity and scope of the deficiencies and the facility's prior history of taking corrective action.
(b) Not exclusive remedy. The decision to impose a directed plan of correction shall not preclude the survey agency from recommending and the Medicaid agency from ordering other remedies pursuant to this rule.
(a) Termination because of immediate jeopardy. When the survey agency determines that immediate jeopardy exists, the following procedure must be completed within twenty-three calendar days of the date of survey. The procedure shall not be postponed or stopped unless compliance is achieved and documented by the survey agency through a follow-up survey. If there is a credible allegation of compliance, the survey agency shall conduct a follow-up survey before the effective date of termination,
(i) Notice to Medicaid agency (second working day). No later than two working days after the date of survey, the survey agency shall notify the Medicaid agency of its decision to recommend decertification of the facility.
(ii) Notice to facility (second working day). No later than two working days after the date of survey, the survey agency shall notify the facility by telegram or overnight express mail of its deficiencies, that the survey agency is recommending termination and that the Medicaid agency will issue a formal notice.
(iii) Documentation to Medicaid agency (third working day). The survey agency shall forward all supporting documentation to the Medicaid agency no later than three working days after the date of survey.
(iv) Notice to facility (fifth working day). The Medicaid agency shall notify the facility of the decertification, closure, appointment of a temporary manager or termination no later than five working days after the date of survey. The notice shall specify the deficiencies, the effective date of termination, and shall include notice of the facility's right to request reconsideration pursuant to Section 15. Such notice shall advise the facility that the failure to request reconsideration shall preclude an administrative hearing regarding the adverse action. The Medicaid agency shall also provide notice to the public of the decertification and termination.
(v) Effective date (twenty-third calendar day). The decertification and termination shall be effective no later than twenty-three calendar days after the date of survey. Medicaid payments for services provided after such date shall be denied and recipients shall be transferred, except as otherwise permitted by applicable federal regulations.
(b) Closure. The Medicaid agency shall follow the procedures specified in subsection (a).
(c) Termination for substantial noncompliance which does not present immediate jeopardy. If the survey agency determines that a facility has deficiencies which represent substantial noncompliance with one or more conditions of participation, but there is no immediate jeopardy, the following procedure shall be followed (all times specified are calendar days):
(i) Notice to facility and Medicaid agency of deficiencies. No later than fifteen days after the date of survey, the survey agency shall notify the Medicaid agency of the facility's deficiencies and shall notify the facility that failure to take corrective action within forty-five days after the date of survey shall result in decertification.
(ii) No later than seven days after the date it receives notice pursuant to paragraph (i), the facility shall submit a plan of correction for approval. The deadline for submitting a plan of correction may be extended by the survey agency to ten days for good cause.
(iii) Follow-up survey. No later than forty-five days after the date of survey, the survey agency shall conduct a follow-up survey to determine whether corrective action has been taken or will be taken pursuant to an approved plan of correction.
(iv) Notice to Medicaid agency of results of follow-up survey. No later than fifty-five days after the date of survey, the survey agency shall notify the Medicaid agency and the facility of the results of the follow-up survey. The survey agency shall recommend decertification of the facility unless it finds that corrective action has been taken or the facility is meeting the schedule specified in an approved plan of correction.
(v) Notice of termination. No later than seventy days after the date of survey, the Medicaid agency shall notify the facility of termination. The notice shall include a statement of the deficiencies and notice of the facility's right to request reconsideration pursuant to Section 15. Such notice shall advise the facility that the failure to request reconsideration shall preclude an administrative hearing regarding the adverse action.
(vi) Notice to public. No later than seventy-five days after the date of survey, the Medicaid agency shall provide notice to the public that in fifteen days the facility shall be terminated if the deficiencies remain uncorrected.
(vii) Effective date of termination. Unless stayed pursuant to subsection 15(i), the termination shall take effect no later than ninety days after the date of survey if the facility has not taken corrective action or is not substantially in compliance with the plan of correction, except as specified in subsection 15(c). Termination may take effect in less than ninety days if all required procedures have been completed. If there is a credible allegation of compliance, the survey agency shall conduct a follow-up survey before the effective date of termination.
(viii) Effect of Termination. Medicaid payments for services provided after the effective date shall be denied and recipients shall be transferred, except as otherwise permitted by applicable federal regulations.
(d) Denial of payments for new admissions. If the survey agency determines that a facility has deficiencies in critical care requirements which create no immediate jeopardy, the following procedure shall be followed (all times specified are calendar days):
(i) Notice to Medicaid agency of deficiencies. No later than fifteen days after the date of survey, the survey agency shall notify the the Medicaid agency of the deficiencies and shall notify the facility of the deficiencies.
(ii) No later than seven days after the date it receives notice from the survey agency, the facility shall submit a plan of correction unless the survey agency agrees to extend the deadline for good cause.
(iii) Denial of payments for new admissions. If the facility has failed to complete corrective action within the period specified in an approved plan of correction, or if the facility fails to timely submit a plan of correction, the Medicaid agency may deny payments for new admissions pursuant to subsection 9(a) and shall deny payments if the criteria of subsection 9(b) are met.
(iv) Notice to facility of intent to deny payment for new admissions. If the facility fails to take corrective action as specified in paragraph (iii) and the Director has determined to deny payments for new admissions pursuant to subsections 9(a) or 9(b), the
Medicaid agency shall notify the facility of intent to deny payments for new admissions. The notice shall specify the nature of the deficiencies, the effective date of the denial of payments for new admissions, that the facility may request a stay pursuant to subsection 15(i) and that the facility may request reconsideration of the adverse action pursuant to Section 15. Such notice shall advise the facility that the failure to request reconsideration shall preclude an administrative hearing regarding the adverse action.
(v) Notice to public. If the final decision pursuant to paragraph 15(b)(iv) is to deny payments for new admissions, or if the facility does not request reconsideration, the Medicaid agency shall notify the public of the denial of such payments. Such notice shall be published at least fifteen days before the effective date of the denial and include a statement of the reasons for the denial.
(vi) Subsequent termination. If the facility does not complete corrective action during the period that payments for new admissions have been denied, the Medicaid agency shall terminate the facility. Termination shall be effective the day following the last day of the denial of payments period. The Medicaid agency shall give notice of termination to the facility on or before the effective date of the termination.
(e) Nonrenewal.
(i) The survey agency shall notify the Medicaid agency at least forty-five days before the end of the period for which a facility is certified if it determines that a facility's certification should not be renewed.
(ii) The Medicaid agency shall notify a facility at least thirty days before the end of the period for which a provider agreement is in effect if the facility's provider agreement will not be renewed. The notice shall specify the reasons for the nonrenewal and shall include the facility's right to request reconsideration of the nonrenewal pursuant to Section 15. Such notice shall advise the facility that the failure to request reconsideration shall preclude an administrative hearing regarding the adverse action.
(f) Directed plan of correction. If the survey agency determines pursuant to Section 11 to require a directed plan of correction, the following procedure shall be followed (all times specified are calendar days):
(i) Notice to facility and Medicaid agency. No later than fifteen days after the date of survey, the survey agency shall notify the facility and the Medicaid agency of the facility's deficiencies, that the facility must take corrective action pursuant to a directed plan of correction, that the failure to take corrective action as specified in the directed plan of correction may result in the imposition of other remedies, that the facility may request a stay pursuant to subsection 15(i), and that the facility may request reconsideration of the adverse action pursuant to Section 15. Such notice shall advise the facility that the failure to request reconsideration shall preclude an administrative hearing regarding the adverse action.
(ii) No later than ten days after the date notice is provided pursuant to paragraph (i), the survey agency shall deliver the directed plan of correction to the facility by hand-delivery or by certified mail, return receipt requested.
(iii) Follow-up survey. No later than forty-five days after the date of survey, the survey agency shall conduct a follow-up survey to determine whether corrective action has been taken or will be taken pursuant to the directed plan of correction.
(iv) Notice to Medicaid agency and facility of results of follow-up survey. No later than fifty-five days after the date of survey, the survey agency shall notify the Medicaid agency and the facility of the results of the follow-up survey. If the facility is not in substantial compliance with the directed plan of care, the survey agency may recommend that the Medicaid agency impose any of the other remedies provided pursuant to this rule.
(g) Failure to comply with timeframes. The failure of the survey agency or the Medicaid agency to comply with the timeframes specified in this rule shall not preclude the Medicaid agency from taking adverse action, and shall not delay the effective date of any adverse action beyond the time necessary to give the specified notice to the facility, which shall be entitled to such timeframes as this rule otherwise requires.
(a) Monitoring. If the survey agency finds deficiencies which result in substandard quality of care on three consecutive standard surveys of a facility, the Medicaid agency shall, in addition to denying payments for new admissions, monitor the facility until the facility demonstrates to the satisfaction of the Director that it is in compliance with the conditions of participation and will remain in compliance.
(b) Scope of monitoring. The Director may install a monitor or monitoring team on the premises of the facility, or have the facility reviewed by such monitor or monitoring team at such times as the Director deems appropriate.
(c) Failure to provide access to monitor. The failure of a facility to provide the monitor access to any information necessary for the monitor to fulfill his functions under this rule shall be good cause for the Director to impose appropriate remedies pursuant to this rule.
(a) After termination, closure, nonrenewal or voluntary withdrawal, a facility may not participate in Medicaid unless:
(i) The reasons for the termination, closure, nonrenewal or voluntary withdrawal no longer exist;
(ii) There is reasonable assurance that the reasons for the termination, closure, nonrenewal or voluntary withdrawal will not recur; and (iii) The facility has been certified.
(b) Reasonable assurance means, with the exception of physical plant standards, that the facility has demonstrated compliance with the conditions of participation for at least 180 consecutive days immediately prior to readmission. The physical plant standards must be in compliance at the time of readmission.
(a) Filing of request for informal reconsideration. A facility may request an informal reconsideration of any adverse action by submitting a written request for informal reconsideration to the Medicaid agency within twenty calendar days after receipt of the notice of the adverse action.
(b) Informal reconsideration procedure. The Medicaid agency shall provide an informal reconsideration as follows:
(i) The facility may submit written evidence or documentation to the Medicaid agency to refute the finding of deficiencies, request a meeting with the Director, or both. Such evidence or request shall be submitted with the facility's request for an informal reconsideration, unless otherwise agreed to by the parties.
(ii) The facility may request in writing that the Medicaid agency provide additional information related to the finding of deficiencies. Such request shall be submitted with the facility's request for an informal reconsideration, unless otherwise agreed to by the parties.
(iii) The Director may request in writing additional information or a meeting with representatives of the facility. Such evidence must be submitted within fifteen calendar days after the date of the Director's request for additional information, unless otherwise agreed to by the parties.
(iv) The Director shall provide, in writing, a decision, affirming, reversing or modifying the adverse action within fifteen calendar days after the receipt of the facility's initial submission or the submission of additional information pursuant to paragraphs (i) or (ii) or within fifteen days after the date of a meeting pursuant to those paragraphs. The Director's decision shall include a statement setting forth the reasons for such decision. The decision shall be mailed to the facility, and shall include notice of the facility's right to request an administrative hearing pursuant to subsection (f).
(c) Except in an emergency or as otherwise agreed by the parties, the informal reconsideration of a termination shall be completed before the effective date of the adverse action.
(d) Failure to request informal hearing. A facility which fails to request reconsideration of an adverse action pursuant to subsection (a) may not subsequently request an administrative hearing regarding the adverse action pursuant to this Section or Chapter I.
(e) Waiver of informal reconsideration. After a request for informal reconsideration, the parties may agree in writing to waive the informal reconsideration and proceed directly to an administrative hearing. Either party may request that the other party agree to such a waiver. Such a request shall not, unless agreed to by the other party, stay the procedures and deadlines specified in this section. If the parties enter a written agreement to waive informal reconsideration, the agreement shall be deemed a request for an administrative hearing and the facility need not submit a request for administrative hearing as specified in subsection (f).
(f) Administrative hearing. A facility may request an administrative hearing regarding the Director's decision pursuant to Chapter I, as modified by these rules, by submitting a request for hearing to the Department within twenty days of the date the provider receives notice of decision pursuant to paragraph (b)(iv).
(f) Procedures for administrative hearings. If the facility timely requests an administrative hearing, the Medicaid agency shall provide an evidentiary hearing before the effective date of the adverse action or within 120 calendar days after the effective date of the adverse action.
(g) Except as otherwise specified in this chapter, the administrative hearing shall be conducted pursuant to Chapter I.
(h) The administrative hearing shall include:
(i) An opportunity for the facility to appear before an impartial decision maker to refute the basis for the adverse action;
(ii) An opportunity for the facility to be represented by counsel or another representative;
(iii) An opportunity for the facility or its representatives to be heard in person, to call witnesses, and to present documentary evidence.
(iv) An opportunity for the facility or its representative to cross-examine witnesses; and
(v) A written recommendation by the impartial decision maker to the Director, with a copy provided to the facility, setting forth the reasons for the recommendation.
(vi) Following receipt of the impartial decision maker's recommendation, the Director shall make a final decision which is appealable pursuant to the Wyoming Administrative Procedure Act.
(i) Neither the filing of a request for informal reconsideration nor a request for administrative hearing shall stay the effective date of the adverse action. The facility may request a stay by filing a written request with the Director. Such request must be submitted on or before the due date of the request for informal reconsideration. A stay shall be granted only if the Director determines that the proposed remedy will cause the facility irreparable harm and that the health and safety of the facility's residents will not be jeopardized by the issuance of a stay. The Director may issue a stay upon such conditions as the Director finds are necessary to protect the health and safety of the facility's residents. The Director shall send written notice to the facility of his decision regarding a request for a stay. Such notice shall include findings of fact in support of the decision.
(j) The Director shall determine the scope of an informal reconsideration or an administrative hearing requested pursuant to this Section.
(k) Burden of proof. The burden of proof shall be on the facility.
(l) Consolidation of administrative hearings. The hearing officer may consolidate administrative hearings which involve the same or similar deficiencies.
Section 16. Severability. If any portion of these rules is found to be invalid or unenforceable, the remainder shall continue in effect.