Medicaid Program; Preadmission Screening and Resident Review
| Published date | 20 February 2020 |
| Citation | 85 FR 9990 |
| Record Number | 2020-03081 |
| Section | Proposed rules |
| Court | Centers For Medicare & Medicaid Services |
Federal Register, Volume 85 Issue 34 (Thursday, February 20, 2020)
[Federal Register Volume 85, Number 34 (Thursday, February 20, 2020)]
[Proposed Rules]
[Pages 9990-10028]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 2020-03081]
[[Page 9989]]
Vol. 85
Thursday,
No. 34
February 20, 2020
Part III Department of Health and Human Services----------------------------------------------------------------------- Centers for Medicare & Medicaid Services-----------------------------------------------------------------------42 CFR Parts 431, 433, 435, et al. Medicaid Program; Preadmission Screening and Resident Review; Proposed
Rule
Federal Register / Vol. 85, No. 34 / Thursday, February 20, 2020 /
Proposed Rules
[[Page 9990]]
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DEPARTMENT OF HEALTH AND HUMAN SERVICES
Centers for Medicare & Medicaid Services
42 CFR Parts 431, 433, 435, 441, and 483
[CMS-2418-P]
RIN 0938-AT95
Medicaid Program; Preadmission Screening and Resident Review
AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.
ACTION: Proposed rule.
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SUMMARY: This proposed rule would modernize the requirements for
Preadmission Screening and Resident Review (PASRR), currently referred
to in regulation as Preadmission Screening and Annual Resident Review,
by incorporating statutory changes, reflecting updates to diagnostic
criteria for mental illness and intellectual disability, reducing
duplicative requirements and other administrative burdens on State
PASRR programs, and making the process more streamlined and person-
centered.
DATES: To be assured consideration, comments must be received at one of
the addresses provided below, no later than 5 p.m. on April 20, 2020.
ADDRESSES: In commenting, please refer to file code CMS-2418-P. Because
of staff and resource limitations, we cannot accept comments by
facsimile (FAX) transmission.
Comments, including mass comment submissions, must be submitted in
one of the following three ways (please choose only one of the ways
listed):
1. Electronically. You may submit electronic comments on this
regulation to http://www.regulations.gov. Follow the ``Submit a
comment'' instructions.
2. By regular mail. You may mail written comments to the following
address ONLY: Centers for Medicare & Medicaid Services, Department of
Health and Human Services, Attention: CMS-2418-P, P.O. Box 8016,
Baltimore, MD 21244-8016.
Please allow sufficient time for mailed comments to be received
before the close of the comment period.
3. By express or overnight mail. You may send written comments to
the following address ONLY: Centers for Medicare & Medicaid Services,
Department of Health and Human Services, Attention: CMS-2418-P, Mail
Stop C4-26-05, 7500 Security Boulevard, Baltimore, MD 21244-1850.
For information on viewing public comments, see the beginning of
the SUPPLEMENTARY INFORMATION section.
FOR FURTHER INFORMATION CONTACT: Anne Blackfield, (410) 786-8518.
SUPPLEMENTARY INFORMATION: Inspection of Public Comments: All comments
received before the close of the comment period are available for
viewing by the public, including any personally identifiable or
confidential business information that is included in a comment. We
post all comments received before the close of the comment period on
the following website as soon as possible after they have been
received: http://www.regulations.gov. Follow the search instructions on
that website to view public comments.
I. Background
Preadmission Screening and Annual Resident Review (now referred to
as Preadmission Screening and Resident Review, or PASRR) was created as
part of the Omnibus Budget Reconciliation Act of 1987 (OBRA '87). The
PASRR requirements, added to the statute as sections 1919(b)(3)(F) and
1919(e)(7) of the Social Security Act (the Act), required states to
create a system to assess the needs of individuals with mental illness
(MI) or intellectual disability (ID) applying to, or already residing
in, Medicaid-certified nursing facilities (NFs), to ensure that
individuals were not being placed in NFs unnecessarily or without
adequate supports. These sections of the statute direct the state
mental health authority (SMHA) or state intellectual disability
authority (SIDA), as appropriate, to determine whether individuals with
MI or ID who are applying to, or are living in, Medicaid-certified NFs
require the level of services offered by a NF and whether they need
additional (``specialized'') services for MI and ID beyond the services
typically provided in a NF. (Note that section 1919(e)(7)(G)(i) of the
Act explicitly excludes individuals with dementia or Alzheimer's
disease or a related disorder from the definition of MI. The current
and proposed definitions of MI and ID are discussed in the discussion
of Sec. 483.102 in this rule.)
When first enacted, sections 1919(b)(3)(F) and 1919(e)(7) of the
Act set forth basic requirements for PASRR, including:
Requirements for preadmission screening of NF applicants,
which states were required to implement by January 1, 1989;
Requirements for annual review of NF residents with MI or
ID, which states were required to begin by April 1, 1990;
Discharge procedures for short-term residents found to not
need NF level of services;
Options for long-term residents (who had lived in a
nursing facility for 30 or more months) found to not need NF level of
services, but to need specialized services;
Basic rules for Federal Financial Participation (FFP),
including when FFP could be withheld for failure to comply with PASRR
requirements;
A requirement for an appeals procedure, to allow
individuals to appeal adverse outcomes resulting from PASRR
determinations; and
Basic definitions for MI, ID (referred to in statute as
``mental retardation''), and specialized services (originally called
``active treatment'').
We published initial criteria for the PASRR programs in the State
Medicaid Manual (HCFA Pub. 45-4) in May 1989 (Transmittal No. 42).
These criteria functioned as interim guidelines for states' PASRR
programs, and formed the basis for the proposed rule, published in the
Federal Register on March 23, 1990 (55 FR 10951). In the meantime, on
November 5, 1990, the Omnibus Budget Reconciliation Act of 1990 (OBRA
'90) (Pub. L. 101-508) was enacted. Section 4801(b) of OBRA '90
contained several revisions to the PASRR requirements in sections
1919(b)(3)(F) and 1919(e)(7) of the Act. Notable revisions included the
addition of exemptions from Preadmission Screening for readmissions and
certain hospital discharges to NFs, and adding the term ``specialized
services'' in place of ``active treatment.'' We published the final
PASRR rule on November 30, 1992 (57 FR 56540), which reflected the
statutory changes to PASRR made by OBRA `90.
On October 19, 1996, Public Law 104-315 removed the requirement
that Resident Review be performed annually, and provided instead at
section 1919(e)(7)(B)(iii) of the Act that Resident Review should be
performed upon a significant change in the resident's physical or
mental condition. We have not issued additional regulations since the
final rule in November 1992, so current regulations do not reflect this
statutory change.
We have received feedback from stakeholders including states'
Medicaid agencies, states' PASRR programs, clinicians, NFs, and NF
resident advocates that portions of the current PASRR regulations are
unclear, illogical, duplicative, or out of touch with current long-term
care practices. While we have attempted to address some of the
challenges presented by outdated regulations through technical
assistance,
[[Page 9991]]
we believe updating and streamlining the regulations will provide the
most effective method of improving implementation of PASRR nationwide.
With this proposed rule, we seek to modernize PASRR requirements so
that they may become an even more effective tool and resource for
states, NFs, and individuals with MI or ID.
II. Provisions of the Proposed Regulations
A. Parts 431, 433, 435, and 441
1. Basis and Scope (Sec. 431.200)
Section 431.200 sets out the basis for the regulations in part 431,
subpart E, stating that the fair hearings process afforded to Medicaid
beneficiaries and applicants is authorized by sections 1902(a)(3),
1919(f)(3), and 1919(e)(7)(F) of the Act. Section 431.200(c) provides
that regulations in part 431, subpart E implement section 1919(e)(7)(F)
of the Act, which provides an appeal for any person who has been
adversely affected by the PASRR process. We propose technical changes
to Sec. 431.200(c)(1). We propose to replace the word ``pre-
admission'' with ``preadmission,'' so that the word ``preadmission''
conforms to how it appears in other regulations. We propose to remove
the word ``annual'' before ``resident review.'' We also propose to add
``and further described in part 483, subpart C of this chapter'' after
``section 1919(e)(7) of the Act.'' We believe a cross-reference to the
regulations that implement PASRR statutory requirements would be
helpful to readers.
2. Definitions (Sec. 431.201)
Section 431.201 contains definitions of terms used in part 431,
subpart E. We propose a technical change to the definition of ``date of
action,'' which includes a mention of PASRR, to remove the word
``annual'' from before ``resident review.'' We also propose to replace
``of section 1919(e)(7) of the Act'' with ``under part 483, subpart C
of this chapter.'' We believe a cross-reference to the regulations that
implement PASRR statutory requirements would be helpful to readers.
3. Informing Applicants and Beneficiaries (Sec. 431.206)
Section 431.206 contains requirements for when the state must
notify Medicaid applicants and beneficiaries of their appeal rights. We
propose a technical change to Sec. 431.206(c)(4) to remove ``annual''
before ``resident review.'' We also propose to replace ``of section
1919(e)(7) of the Act'' with ``under part 483, subpart C of this
chapter.'' We believe a cross-reference to the regulations that
implement PASRR statutory requirements would be helpful to readers.
4. Exceptions From Advance Notice (Sec. 431.213)
Section 431.213 contains exceptions to the advance notice
requirements contained in Sec. 431.211. Section 431.211 requires that
the state Medicaid agency provide Medicaid applicants and beneficiaries
with notice of appeal rights 10 days before the effective date of the
action they wish to appeal. However, actions associated with PASRR are
exempted from this requirement. Rather, per Sec. 431.213(g), the state
Medicaid agency may provide notice on the date of action--namely, the
date the PASRR program issues the determinations required in sections
1919(e)(7)(A) and 1919(e)(7)(B) of the Act. We propose a technical
correction to Sec. 431.213(g), which states that the exception applies
to notices involving adverse determinations made ``with regard to the
preadmission screening requirements of section 1919(e)(7) of the Act.''
We propose to add ``and resident review'' after ``preadmission
screening.'' Section 1919(e)(7) of the Act pertains to both
preadmission screening and resident review requirements, and we propose
to fix the omission of ``resident review'' in this provision. We also
propose to replace ``of section 1919(e)(7) of the Act' with ``under
part 483, subpart C of this chapter.'' We believe a cross-reference to
the regulations that implement PASRR statutory requirements would be
helpful to readers.
5. When a Hearing Is Required (Sec. 431.220)
Section 431.220 lays out the circumstances when an individual may
request a hearing, which includes when an individual believes the PASRR
program has made an error in making the determinations required by
section 1919(e)(7) of the Act. We propose a technical change to Sec.
431.220(a)(3) to add ``screening'' after the word ``preadmission.'' We
propose this change so that this mention of Preadmission Screening
conforms to how it appears elsewhere in regulation--as ``preadmission
screening,'' not just ``preadmission.'' We propose to remove ``annual''
from before ``resident review.'' We also propose to replace ``of
section 1919(e)(7) of the Act'' with ``under part 483, subpart C of
this chapter.'' We believe a cross-reference to the regulations that
implement PASRR statutory requirements would be helpful to readers.
6. Matters To Be Considered at the Hearing (Sec. 431.241)
Section 431.241(c) addresses the matters that must be reviewed
during the PASRR hearing. We propose a technical change to remove
``annual'' from before ``resident review.'' We also propose to replace
``of section 1919(e)(7) of the Act'' with ``under part 483, subpart C
of this chapter.'' We believe a cross-reference to the regulations that
implement PASRR statutory requirements would be helpful to readers.
7. Hearing Decisions (Sec. 431.244)
Section 431.244 sets out the requirements for the hearing decision,
including how the decision may be reached and the appellant's access to
the decision. We propose a technical change to Sec. 431.244(f)(3)(i).
We propose to add ``screening'' after the word ``preadmission.'' We
propose this change so that this mention of Preadmission Screening
conforms to how it appears (as ``preadmission screening,'' not just
``preadmission'') elsewhere in regulations. We propose to remove
``annual'' from before ``resident review.''
8. Federal Financial Participation (Sec. 431.250)
Section 431.250 discusses the availability of FFP for activities
relating to hearings and hearing decisions. We propose a technical
change to Sec. 431.250(f)(4) to remove ``annual'' from before
``resident reviews.''
9. State Requirements for Nursing Facilities (Sec. 431.621)
Section 431.621 provides guidelines for the interagency agreement
that the states' Medicaid agencies must execute with the SMHA and SIDA
regarding the authorities' respective roles in implementing PASRR. We
propose to make technical corrections in this section, including:
removing ``PASARR'' and replacing it with ``PASRR''; removing the word
``annual'' before ``resident review''; correcting typos; and updating
cross-references.
Additionally, we propose a modification to Sec. 431.621(c)(6). The
current provision specifies that determinations regarding NF level of
services and specialized services must be consistent with criteria
adopted by the State Medicaid Agency (SMA) under its approved State
plan. We propose to remove the words ``under its approved State plan''
because State plan approval is not required for states to develop
[[Page 9992]]
state-specific PASRR criteria or NF admissions criteria.
10. Rates of FFP for Administration (Sec. 433.15)
Section 433.15(b)(9) provides the FFP rate for PASRR administrative
activities. We propose technical changes in this provision to replace
``PASARR'' with ``PASRR'' and to remove ``annual'' before ``resident
review.''
11. Definitions Related to Institutional Status (Sec. 435.1010)
Section 435.1010 provides the definition for ``persons with related
conditions.'' Related conditions, also commonly referred to as
``developmental disabilities,'' are considered a subset of ID for PASRR
purposes (see discussion regarding Sec. 483.102 in this proposed
rule). The definition for PASRR ID at Sec. 483.102(b)(3) contains a
cross-reference to Sec. 435.1010. Section 435.1010 contains one use of
the outdated term ``mentally retarded persons,'' which we propose to
replace with ``people with intellectual disabilities.''
12. Supporting Documentation Required (Sec. 441.303)
Section 441.303, which provides guidance on HCBS programs, make
incidental reference to the PASRR process. We propose to make technical
changes to paragraphs (f)(4) and (f)(9), including: replacing
``PASARR'' with ``PASRR''; removing ``annual'' before ``resident
review''; correcting typos; and replacing the phrase ``developmentally
disabled'' with ``individuals with developmental disabilities'' at
441.303(f)(4). We also propose to replace the word ``inpatients'' with
``residents'' to reflect language more commonly used to describe
individuals who live in NFs or ICF/IIDs.
We also propose in Sec. 441.303(f)(4) to clarify that in making
estimates for annual per capita expenditures for a separate waiver
program, the state may estimate costs for individuals with
developmental disabilities who have been identified by PASRR, who are
residents of NFs, or require the level of care provided by an
Intermediate Care Facility for Individuals with Intellectual
Disabilities (ICF/IID).
B. Part 483, Subpart B
1. Resident Assessment (Sec. 483.20)
Section 483.20 provides instructions to NFs on resident
assessments, as required by section 1919(b)(3) of the Act, which
requires that NFs perform a comprehensive, standardized, reproducible
assessment of each resident's functional capability. NFs must use an
assessment tool known as the Resident Assessment Instrument to identify
residents' strengths, needs, and preferences in key areas of functional
abilities and activities of daily living. The minimum data set (MDS) is
a component of the resident assessment, which contains a standardized
set of essential clinical and functional status measures. Information
gathered from the MDS is used to identify conditions that require
additional evaluation, and the information gathered from these
assessments is used to develop the individualized care plan required
for each NF resident.
Despite certain superficial similarities between the resident
assessments and PASRR evaluations, the two processes are distinct
statutory requirements. Resident assessments are specifically intended
to be the responsibility of the NF (per section 1919(b)(3)(A) of the
Act), whereas PASRR evaluations are specifically the responsibility of
the SMHA and SIDA, and cannot be delegated to the NF (in accordance
with section 1919(b)(3)(F) of the Act). Unlike PASRR evaluations,
resident assessments are performed for all NF residents, not just those
with MI or ID. The timing for resident assessments and PASRR
evaluations is also different. A comprehensive resident assessment must
be performed initially within 14 days after NF admission and then every
year until the resident's discharge from the NF (per section
1919(b)(3)(C) of the Act) with modified quarterly assessments performed
in the intervals between the annual comprehensive resident assessments
to ensure the information stays up-to-date (per Sec. 483.20(c)).
Additionally, when an individual experiences a ``significant change''
in physical or mental conditions, as defined in Sec. 483.20(b)(2)(ii),
the NF must perform a new comprehensive resident assessment within 14
days of the significant change (even if this significant change happens
before the resident's scheduled annual comprehensive resident
assessment). By comparison, Preadmission Screening evaluations for
PASRR must be performed prior to NF admission (per section
1919(b)(3)(F) of the Act), and Resident Review evaluations must be done
``promptly'' after a NF has observed a significant change of physical
or mental condition (per sections 1919(b)(3)(E) and 1919 (e)(7)(B)(iii)
of the Act). Both resident assessments and PASRR evaluations involve
reviewing the individual's medical history, cognitive and behavior
patterns, psychosocial well-being, and long-term care goals (in
accordance with Sec. 483.20(b) for resident assessment and Sec.
483.128 of this proposed rule for PASRR evaluations). However, the
resident assessment is focused on the individual's needs while in the
NF, while the PASRR evaluation considers whether the individual may be
better served in a different setting other than a NF. As described in
Sec. 483.20(b), resident assessments focus on a broad range of
functional needs--such as vision, dental, continence, and skin
conditions--that may be out of scope for a PASRR evaluation, which
focuses on only those needs directly related to the individual's MI or
ID. PASRR evaluations will include recommendations for NF services and
specialized services (which are discussed in greater detail in the
discussions of Sec. Sec. 483.120 and 483.128 later in this proposed
rule). However, these differences notwithstanding, both resident
assessments and PASRR evaluations are designed to assess needs of NF
residents and provide information needed to identify residents' care
needs while they are in the NF.
Section 483.20(e) implements the requirement at section
1919(b)(3)(E) of the Act that NFs must coordinate Preadmission
Screening with resident assessments to the greatest extent practicable.
We propose a technical correction to Sec. 483.20(e) to replace
``PASARR'' with ``PASRR.'' We also propose to change the term ``mental
disorder'' to ``mental illness'' in this section to align with the
language in part 483, subpart C, which uses ``mental illness'' rather
than ``mental disorder.'' The term ``mental illness'' is more aligned
with terminology used in the authorizing statute for PASRR at sections
1919(b)(3)(F) and 1919(e)(7) of the Act, which uses ``mentally ill''
and ``serious mental illness.'' Additionally, we note that the term
``mental disorder'' commonly denotes neurodevelopmental disorders (such
as intellectual disability and developmental disability) and
neurocognitive disorders (such as dementia and Alzheimer's or related
conditions).\1\ People with intellectual and developmental disabilities
are identified in sections 1919(b)(3)(F)(ii) and 1919(e)(7)(B)(ii) of
the Act as distinct from people with mental illness, who are addressed
in sections 1919(b)(3)(F)(i) and 1919(e)(7)(B)(i). Section
1919(e)(7)(G)(i) indicates that primary diagnoses of dementia and
[[Page 9993]]
Alzheimer's or related disorders cannot be included in the PASRR-
specific definition of mental illness. Thus we propose to replace the
broad term ``mental disorder'' with the narrower term ``mental
illness'' in order to indicate mental disorders that do not include
neurodevelopmental or neurocognitive disorders. Because there is much
discussion in the behavioral health community about appropriate
terminology, we solicit feedback on this proposal to use ``mental
illness'' rather than ``mental disorder.''
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\1\ See, for example, World Health Organization, ``Mental Health
Disorders.'' April 9, 2018. Available at https://www.who.int/news-room/fact-sheets/detail/mental-disorders. Last accessed: August 19,
2019.
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We propose a change to the language Sec. 483.20(e)(1), which
requires that PASRR recommendations be incorporated into a resident's
assessment, care planning, and transitions of care. We propose to
remove the mention in Sec. 483.20(e)(1) of care planning and
transition planning because they are both out of scope for this
section. Care planning requirements are addressed in Sec. 483.21,
whereas Sec. 483.20 contains requirements for resident assessments.
Additionally, paragraphs (a)(1)(ii)(F) and (b)(1)(iii) at Sec. 483.21
both address the inclusion of PASRR recommendations in care planning,
so including the same requirement in Sec. 483.20(e)(1) is duplicative.
We also propose in Sec. 483.20(e)(1) to replace PASRR
``recommendations'' with PASRR ``findings.'' The word
``recommendations'' is not defined in this provision, but seems to
refer to recommendations for NF services or specialized services--
information that would be incorporated into a care plan, but would not
be incorporated into the resident assessment. Rather, we propose using
the word ``findings'' in its place because this more clearly refers to
the data collected by the PASRR evaluator regarding the individual's
medical history, psychosocial history, diagnosis of MI or ID, and
functional needs--information that could be used to help complete the
resident assessment.
We propose to make changes to Sec. 483.20(e)(2), which requires
that NFs refer all NF residents with known MI or ID (as determined by
the PASRR program) and all residents with possible MI or ID to the
PASRR program for Resident Review upon the completion of a significant
change in status assessment. This requirement somewhat duplicates the
requirement at Sec. 483.20(k)(4) that NFs promptly refer all NF
residents with known MI or ID (as determined by the PASRR program) for
a Resident Review upon a significant change in physical or mental
condition. One key difference between these provisions is the timing of
when the referral must be made. Section 483.20(e)(2) specifies that the
referral must happen upon a significant change in status assessment.
Significant change in status assessments, per Sec. 483.20(b)(2) must
be completed within 14 days of the significant change, so it appears
that Sec. 483.20(e)(2) currently allows NFs to wait at least 14 days
before making a referral for Resident Review. This conflicts with the
requirement in Sec. 483.20(k)(4) (which more closely mirrors the
language in section 1919(b)(3)(E) of the Act), requiring referrals for
Resident Review to be made ``promptly after a significant change.''
Another key difference between the two provisions is that Sec.
483.20(e)(2) addresses the needs of residents with ``newly evident or
possible'' MI or ID--meaning residents who had not been previously
identified by the PASRR program as having MI or ID. Section
483.20(k)(4) only refers to residents with MI or ID--presumably
residents who have already been identified by the PASRR program as
having MI or ID.
We propose to resolve the duplications and misalignment between
Sec. 483.20(e)(2) and (k)(4) by striking the current language in Sec.
483.20(e)(2) and replacing it with proposed language that would clarify
that NFs would be required to refer residents with newly evident or
possible MI or ID to the PASRR program for a Resident Review within 72
hours of when the NF identifies conditions indicating the person has
possible MI or ID. (See discussion of Sec. 483.126 in this proposed
rule for proposed criteria for ``possible'' MI and ID.) We believe it
is critical for NFs to refer such individuals to the PASRR program,
since any resident of a Medicaid-certified NF with possible MI or ID
falls within PASRR's purview--including individuals who had been
misidentified at admission, or developed MI post-admission. While the
NF would be expected to complete a Level I identification screen
(discussed in detail in the discussion of Sec. 483.126 of this
proposed rule), we do not propose to require that a NF first complete a
significant change in status assessment to make the referral. In some
instances the NF's discovery of an overlooked MI or ID identification
may occur during the initial comprehensive resident assessment
performed at admission (in which case, the NF's discovery of the
possible MI or ID would not be the result of a resident experiencing a
significant change in physical or mental condition). We also do not
propose that a NF first complete a significant change in status
assessment before making the referral for Resident Review. This would
apply even if the newly evident or possible MI or ID is discovered by
the NF as a result of a significant change in the resident's condition;
rather, we propose that the referral for Resident Review be made first,
so that the evaluations performed as part of the Resident Review could
be used to help the NF complete the significant change in status
assessment, if one ultimately needs to be performed. We propose in the
amended Sec. 483.20(e)(2) that the referral for Resident Review be
made within 72 hours after the facility identifies evidence indicating
the individual has possible mental illness, intellectual disability, or
related conditions, to align with the timeframe for Resident Review
referral we propose to add to Sec. 483.20(k)(4), discussed below.
Section 483.20(k) is currently titled ``Preadmission screening for
individuals with a mental disorder and individuals with an intellectual
disability.'' We propose to retitle this provision ``Preadmission
screening and resident review for individuals with mental illness and
individuals with an intellectual disability.'' We propose this change
because Sec. 483.20(k) addresses both Preadmission Screening and
Resident Review requirements. Additionally, we propose to change
``mental disorder'' to ``mental illness'' to align Sec. 483.20(k) with
PASRR requirements in part 483, subpart C that use ``mental illness''
rather than ``mental disorder.'' Similarly, we propose at Sec.
483.20(k)(1)(i) to change ``mental disorder'' to ``mental illness.''
(See discussion of rationale for this change in the discussion of Sec.
483.20(e) above.)
Section 483.20(k)(2) describes exceptions to Preadmission Screening
requirements. We propose to add language to Sec. 483.20(k)(2)(i) to
clarify that neither new Level I identification screens, nor new
preadmission Level II evaluation and determinations, are required for
readmissions. We propose this clarification because, as will be
discussed at greater length in the discussion of Preadmission Screening
in Sec. 483.112, we propose to resolve confusion about what
constitutes ``Preadmission Screening'' and what PASRR activities are
required to be completed prior to admission.
We propose to add language at Sec. 483.20(k)(2)(ii), which
implements the statutory Preadmission Screening exemption for
individuals who have been admitted to a NF from a hospital under
certain circumstances. We propose to add language that would clarify
that a resident admitted under an exempted hospital discharge (as in,
meeting the criteria listed in
[[Page 9994]]
Sec. 483.20(k)(2)(ii)) would not be required to receive a Level II
evaluation and determination prior to admission, but would still be
expected to have received a Level I identification screen prior to
admission. This added language would align Sec. 483.20(k)(2)(ii) with
proposed changes to Sec. 483.112 that would require Level I
identification screens for all NF applicants, including applicants
eligible for an exempted hospital discharge. These proposed changes are
discussed further in the discussion of Sec. 483.112 in this proposed
rule.
We propose a new section 483.20(k)(2)(iii) that would add an
additional exception to the requirement that residents not be admitted
until they have received a Level II evaluation and determination. This
proposed provision would specify that individuals who are admitted to
the NF under a provisional admission (which is described in the
discussion of proposed Sec. 483.112(b)(3) of this rule) would be
required to receive Level I identification screens, but would not be
required to receive a Level II evaluation and determination prior to
admission. This would align the requirements for NF admissions of
individuals eligible for provisional admission with proposed
requirements regarding provisional admissions in Sec. 483.112(b)(3).
We propose a technical change in Sec. Sec. 483.20(k)(3)(i) and
(k)(4) to change ``mental disorder'' to ``mental illness'', for the
reasons already discussed in this section.
We are also proposing an additional change to Sec. 483.20(k)(4).
Section 483.20(k)(4), like the current Sec. 483.20(e)(2), addresses
NFs' obligations to make referrals to Resident Review. As noted in the
discussion of proposed Sec. 483.20(e)(2), we propose to remove the
requirement in Sec. 483.20(e)(2) that a Resident Referral must be made
after a resident with known MI or ID experiences a significant change
(instead proposing to focus Sec. 483.20(e)(2) on the needs of
residents who have newly evident or possible MI or ID). We propose to
retain Sec. 483.20(k)(4) (with some rewording for clarity), as it
implements a critical component of section 1919(b)(3)(E) of the Act,
which requires that NFs refer residents with known MI or ID (as in,
previously identified by the Level II process) to the PASRR program for
Resident Review ``promptly after a significant change in physical or
mental condition.'' We propose to add language to Sec. 483.20(k)(4) to
specify that ``promptly'' means within 72 hours of the significant
change in condition. We also propose to add a cross-reference to
paragraph (b)(2)(ii) of this section to provide a definition of
``significant change in physical or mental condition.''
2. Comprehensive Person-Centered Care Planning (Sec. 483.21)
Section 483.21 contains requirements for person-centered care
planning, which includes services recommended through the PASRR
process. We propose to make technical changes to this section to
replace ``PASARR'' with ``PASRR.'' We propose to amend language at
paragraph (b)(1)(iii), which indicates that PASRR recommendations of
specialized services or specialized rehabilitative services must be
part of the care plan. This provision currently provides that the care
plan must include any specialized services or specialized
rehabilitative services that the nursing facility will provide as a
result of PASRR recommendations. We propose to amend this language to
clarify that the state, not the NF, is responsible for providing
specialized services (as is discussed in the discussion of Sec.
483.120 in this proposed rule). We also propose changes to the second
sentence of this provision, which currently states that if a facility
disagrees with the PASRR findings, it must indicate its rationale in
the resident's medical record. We propose to replace the word
``findings'' with ``recommendation'' in order to promote consistency in
the use of those terms. As noted in the discussion of proposed changes
to Sec. 483.20(e)(1), we believe that ``findings'' connotes
conclusions about the individual's diagnosis and functional abilities,
whereas ``recommendations'' refers to the NF services and specialized
services recommended by the PASRR program. We also seek to amend this
provision to specify that NFs cannot unilaterally disregard PASRR
recommendations without communication with the PASRR program. We would
specify that changes to the PASRR recommendations in a plan of care
would need to be made as part of the PASRR Level II determination
process (as described in the discussion of Sec. 483.130 below).
C. Part 483, Subpart C
1. Preadmission Screening and Resident Review for Individuals With
Mental Illness or Intellectual Disability (Part 483, Subpart C)
The current title of part 483, subpart C is ``Preadmission
Screening and Annual Resident Review of Mentally Ill and Mentally
Retarded Individuals.'' We propose to change this title to
``Preadmission Screening and Resident Review for Individuals with
Mental Illness or Intellectual Disability.''
2. Basis (Sec. 483.100)
Section 483.100 provides the authority for PASRR, which lies
primarily in section 1919(e)(7) of the Act. We propose to revise this
section by removing ``annual'' before ``resident review,'' and
replacing the acronym ``PASARR'' with ``PASRR,'' to reflect the
statutory change made in 1996 (by Pub. L. 104-315) that removed the
``annual'' requirement for Resident Review.
3. Applicability and Definitions (Sec. 483.102)
Section 483.102(a) explains that part 483, subpart C applies to all
individuals with MI or ID who apply to or reside in a Medicaid-
certified NF, regardless of the individuals' source of payment to the
NF or known prior diagnoses. We note that this provision means that
PASRR applies to all individuals who enter a facility that is Medicaid-
certified, including individuals whose stays are covered by Medicare,
the Department of Veterans Affairs, private insurance, or the
individual out of his or her own funds. PASRR also applies to
individuals who are entering a facility that is dually-certified for
Medicare and Medicaid beneficiaries, unless the facility has distinct
parts for Medicaid and Medicare beneficiaries as defined in Sec. 483.5
(in which case, PASRR would only apply to those entering the Medicaid
distinct part). We do not propose to make changes to Sec. 483.102(a).
Section 483.102(b) provides PASRR-specific definitions of MI,
dementia, and ID, all of which we propose to revise.
a. Mental Illness
Section 1919(e)(7)(G)(i) of the Act indicates that an individual is
considered to have MI for PASRR purposes if the individual has a
``serious mental illness'' as defined by the Secretary in consultation
with the National Institute of Mental Health (NIMH); the statutory
definition states that the MI must be serious and that the individual
may not have a primary diagnosis of dementia. The current definition of
MI at Sec. 483.102(b)(1) requires that for a PASRR program to
determine an individual has MI, the program must consider three sets of
criteria related to diagnosis, functional impairment, and duration of
illness as measured by how recently the individual received intensive
treatment.
The current diagnosis criteria for MI at Sec. 483.102(b)(1)(i)
requires that an individual have a ``major mental disorder''
diagnosable under the ``Diagnostic and Statistical Manual of Mental
Disorders, 3rd edition'' (also
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referred to as the DSM-III-R), which was released in 1987. The mental
disorders listed currently in Sec. 483.102(b)(1) include
``schizophrenic, mood, paranoid, panic or other severe anxiety
disorder; somatoform disorder; personality disorder; other psychotic
disorder'' and any other mental disorder that may lead to a chronic
disability. Since Sec. 483.102(b)(1) was issued, the DSM has been
revised several times and is now in a 5th edition (DSM-5), published in
2013. The DSM-5 and DSM-III-R are not identical, and the DSM-5 does not
categorize disorders the same way as the DSM-III-R. As a result,
clinicians must currently crosswalk diagnoses made using the DSM-5 with
the categories of mental disorders listed in the DSM-III-R.
In addition to diagnosis, the current definition of MI at Sec.
483.102(b)(1)(ii) also includes criteria that an individual must have
experienced a functional impairment within the previous 3-6 months and,
at Sec. 483.102(b)(1)(iii), that an individual must have required
intensive psychiatric treatment or social supports within the previous
2 years. We believe that limiting the definition of MI only to those
individuals who have recently had acute symptoms may be unintentionally
problematic. For instance, under a strict reading of this current
definition, an individual with MI who has successfully managed symptoms
with treatment or therapy, or is in remission, may be considered to not
have MI for PASRR purposes. If an individual requires such specific
treatment or therapy while in a NF, including these therapies might
constitute specialized services if they go beyond typical NF services
(see discussion of specialized services in discussion of Sec. 483.120
of this rule)--in which case the PASRR program may help ensure that
these ongoing treatments or therapies are maintained in the NF.
We have also received feedback from stakeholders that the ``recent
treatment'' requirement at Sec. 483.102(b)(1)(iii), which requires
individuals to have received inpatient hospitalization, is out of step
with current practices, which are increasingly trending towards
intensive outpatient and other community-based treatments. Individuals
who may have received inpatient hospitalization in 1992, when Sec.
483.102(b)(1)(iii) was originally promulgated, might today be more
likely to receive some form of outpatient treatment, making this
criterion unreasonably difficult to meet by today's standards of
practice.
For readability, we propose to title Sec. 483.102(b)(1) ``Mental
illness.'' We propose to revise Sec. 483.102(b)(1) in its entirety; a
new definition of MI at Sec. 483.102(b)(1) would provide that a person
would be considered to have MI if:
The individual has, within the past year, had a serious
and persistent mental disorder meeting the criteria specified within
the (DSM-5), with the exception of conditions that would fall under
DSM-5 ``V'' codes, substance use or substance/medication-induced
disorders, neurodevelopmental disorders, and neurocognitive disorders;
The disorder has been determined by a qualified clinician
to be acute or in partial remission, have recurrent or persistent
features and, if the DSM includes a severity scale for the disorder,
the severity level of the disorder is moderate to severe;
The disorder has resulted in functional impairment which
has substantially interfered with, or limited, one or more major life
activity (including activities of daily living; instrumental activities
of daily living; or functioning in social, family, and academic or
vocational contexts), or would have caused functional impairment
without the benefit of treatment or other support services; and
A qualified clinician has found that the mental disorder
is not a secondary characteristic of a primary diagnosis of dementia
(or neurocognitive disorder due to Alzheimer's disease or related
conditions), as defined in paragraph (b)(2).
The proposed definition is a PASRR-specific modification of the
definition of serious MI issued by the Substance Abuse and Mental
Health Services Administration (SAMHSA) as part of the Public Health
Service Act (PHSA). The Alcohol, Drug Abuse, and Mental Health
Administration Reorganization Act (Pub. L. 102-321, enacted July 10,
1992) that created SAMHSA in 1992 also directed SAMHSA to issue a
definition of ``serious mental illness,'' which it did in 1993 (58 FR
29425, May 20, 1993). We arrived at this proposed definition for PASRR-
eligible MI after consultation with NIMH staff, as directed by section
1919(e)(7)(G)(i) of the Act. In an attempt to streamline the
regulations, we are proposing a single definition of MI to apply to
both children and adults, whereas the PHSA definition offers separate
definitions for ``serious mental illness'' and ``serious emotional
disturbance'' for children. In addition, in an effort to bring the
proposed definition of MI up-to-date, we have chosen to refer to the
most current available version of the DSM (which is more current than
the edition reflected in the PHSA). Unlike the PHSA definition, the
proposed PASRR definition for MI would exclude Alzheimer's disease and
related disorders in accordance with section 1919(e)(7)(G)(i) of the
Act.
Another proposed update to the definition of MI is to indicate that
a person must have been diagnosed with a ``mental disorder'' rather
than a ``major mental disorder.'' The DSM-5 does not classify many
mental disorders as ``major'' as it may have done in previous editions,
and we believe removing ``major' aligns better with the current
descriptions of most of the relevant mental disorders in the DSM-5. We
also believe this would avoid over-inclusion of individuals with
clinically mild presentations of disorders that have the word ``major''
in the diagnosis, such as major depressive disorder. We propose instead
to specify that a qualified clinician would have to identify that the
disorder has recurrent or persistent features. The term ``serious and
persistent mental illness'' is often used interchangeably with
``serious mental illness,'' and we propose to highlight the persistent
or recurrent nature of the disorder to avoid over-inclusion of
individuals who have experienced a single episode of mental illness
that will not require the ongoing specialized supports offered through
PASRR interventions. We also propose to specify that, if the DSM-5
includes a severity scale for the disorder, that the disorder be
considered by the clinician to be moderate to severe.
We note that in the proposed definition, a diagnosis of substance
use disorder (including opioid use disorder) or a substance-induced
disorder would not be considered a qualifying diagnosis of MI. This is
in keeping with the SAMHSA definition of serious MI. However, an
individual with a diagnosis of substance use disorder and a distinct
diagnosis of a qualifying MI (such as bipolar disorder) would be
considered eligible for PASRR evaluation.
We believe this proposed definition would rectify the problems
posed by the current definition described above by updating the
diagnostic criteria and removing specific treatment criteria. It would
also adopt language from the preamble to SAMHSA's 1993 definition of
serious MI (at 58 FR 29425) that specifies that the mental disorder
would be considered serious if it caused a functional impairment in the
past year, or would have caused an impairment in the past year absent
treatment or support services. This would mean that people with serious
but managed conditions could still be eligible for PASRR evaluation and
determination to ensure continuation of these supports while they are
in the NF.
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The final criterion of the proposed definition for MI reflects the
statutory requirement at section 1919(e)(7)(G)(i) of the Act that a
person is not considered to have MI (for PASRR purposes) if the MI
diagnosis is secondary to a primary diagnosis of dementia. We propose
to specify as part of this provision that a qualified clinician would
make the decision that the dementia is primary, as it may difficult for
non-clinicians (such as those who may be performing the Level I
identification screen, discussed in Sec. 483.126 of this proposed
rule) to identify accurately whether the individual's behavioral
disturbances are caused by MI or dementia. We solicit feedback on this
proposed updated definition.
b. Dementia
Section 483.102(b)(2) provides a definition of dementia, and for
readability, we propose to title Sec. 483.102(b)(2) ``Dementia.'' We
propose to amend the current definition of dementia at Sec.
483.102(b)(2). In the DSM-5, dementia is now described as ``major
neurocognitive disorder'' and Alzheimer's disease and related disorders
are described as different forms of either mild or major neurocognitive
disorders. We propose to specify that an individual would be considered
to have dementia if a qualified clinician has diagnosed such individual
with a ``major neurocognitive disorder'' as defined in the DSM-5, with
the exception of delirium. (See the discussion of proposed Sec.
483.112(b)(3) for a discussion of how individuals with delirium
diagnoses would be addressed by PASRR.) Mild neurocognitive disorders,
including mild cognitive impairment, would not be included in the
definition of dementia for PASRR purposes.
We also propose to specify that an individual with a co-occurring
diagnosis of MI and a neurocognitive disorder would not automatically
be considered to have ``primary dementia'' unless a qualified clinician
has confirmed the identification of dementia as primary. We frequently
receive requests for additional guidance on what is meant by ``primary
dementia'' in PASRR. We solicit feedback on our proposed approach.
c. Intellectual Disability
Section 483.102(b)(3) provides a definition of intellectual
disability, and for readability we propose to add a title to this
provision, ``Intellectual disability.'' The statute does not provide a
specific definition of ``intellectual disability''. Section
1919(e)(7)(G)(ii) of the Act states that a person is ``mentally
retarded'' if the person is mentally retarded or has a related
condition as described in section 1905(d) of the Act.'' Section 1905(d)
defines intermediate care facilities for people with intellectual
disability (ICF/IID), but does not define ``intellectual disability''.
Section 483.102(b)(3)(i) currently provides a definition of
``intellectual disability,'' but it relies on an outdated diagnostic
manual (the American Association on Mental Deficiency's ``Manual on
Classification in Mental Retardation'' (1983)). We propose to update
this definition, using an adaptation of the most current definition
provided by the American Association on Intellectual and Developmental
Disabilities (AAIDD), formerly known as the American Association on
Mental Deficiency. We propose to specify that an individual may be
considered to have an intellectual disability if the individual has a
disability, with onset before age 18, which is characterized by
significant limitations in both intellectual functioning and adaptive
behavior, as described in the American Association on Intellectual and
Developmental Disabilities' ``Intellectual Disability: Definition,
Classification, and Systems of Support, 11th edition'' (2010). We also
propose to retain the provision at Sec. 483.102(b)(3)(ii) that an
individual may also be considered to have ID for PASRR purposes if the
individual has a related condition as defined by Sec. 435.1010. We
welcome public comment on this definition.
d. Incorporation by Reference: Material Availability and Description
We also propose to add a new Sec. 483.102(c) to incorporate the
American Psychiatric Association's ``Diagnostic and Statistical Manual
of Mental Disorders, 5th Edition'' (DSM-5) and the 11th edition of
AAIDD's Intellectual Disability: Definition, Classification, and
Systems of Support'' by reference; PASRR programs would use these
materials to identify MI, dementia and ID, in accordance with 5 U.S.C.
552(a) and 1 CFR 51.5(a). Incorporation by reference allows federal
agencies to comply with the requirement to publish rules in the Federal
Register and the Code of Federal Regulations (CFR) by referring to
material already published elsewhere. The legal effect of incorporation
by reference is that the material is treated as if it had also been
published in the Federal Register and the CFR. This material, like any
other properly issued rule, has the force and effect of law. New Sec.
483.102(c)(1) would incorporate by reference the DSM-5, which we
propose would be used to identify qualifying MI diagnoses and to
identify primary dementia diagnoses. Section 483.102(c)(2) would
incorporate by reference the current edition of the AAIDD's
``Intellectual Disability: Definition, Classification, and Systems of
Support'', which we propose would be used to identify instances of
intellectual disability.
The ``Diagnostic and Statistical Manual of Mental Disorders, Fifth
Edition'' (DSM-5) is the diagnostic tool published by the American
Psychiatric Association (APA). The DSM serves as one of the principal
authorities for identifying and classifying the psychiatric diagnoses
required for treatment recommendations and health care payments. The
DSM-5 contains criteria that help clinicians identify subtypes of:
Neurodevelopmental disorders; schizophrenia spectrum and other
psychotic disorders; bipolar and related disorders; depressive
disorders; anxiety disorders; obsessive-compulsive disorders; trauma-
and stressor-related disorders; dissociative disorders; somatic symptom
and related disorders; feeding and eating disorders; elimination
disorders; sleep-wake disorders; sexual dysfunctions; gender dysphoria;
disruptive, impulse-control, and conduct disorders; substance-related
and addictive disorders; neurocognitive disorders; personality
disorders; and paraphilic disorders.
The AAIDD's manual, ``Intellectual Disability: Definition,
Classification, and Systems of Supports'', contains current guidelines
on diagnosing and classifying intellectual disability, as well as
information on developing a system of supports for people with an
intellectual disability. The manual was created to provide an
authoritative definition and diagnostic system of intellectual
disability and to give guidance on the role of assessment in the
diagnostic process, the role of the intelligence quotient (IQ) in
making a diagnosis, and methods of assessing adaptive behavior.
We would make both the DSM-5 and the AAIDD's ``Intellectual
Disability: Definition, Classification, and Systems of Support''
available for inspection at the Centers for Medicare & Medicaid
Services, 7500 Security Boulevard, Baltimore, Maryland, or at the
National Archives and Records Administration (NARA). For information on
the availability of these materials at NARA, call 202-741-6030, or go
to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. Information on how to
purchase a copy of the DSM-5 may be
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obtained from the American Psychiatric Association, 800 Maine Avenue
SW, Suite 900, Washington, DC 20024, 202-559-3500, or from American
Psychiatric Association Publishing at www.appi.org. Information on how
to purchase a copy of the AAIDD manual may be obtained from the AAIDD,
8403 Colesville Road, Suite 900, Silver Spring, MD 20910, 202-387-1968
or www.aaidd.org.
4. State Plan Requirement (Sec. 483.104)
Sec. 483.104 provides that, as a condition of approval of the
State plan, states must operate a PASRR program that meets the
requirements of Sec. Sec. 483.100 through 483.138. We propose in this
provision to remove the word ``annual'' to indicate that Resident
Review is no longer required annually.
5. Basic Rules and Responsibilities (Sec. 483.106)
Currently, Sec. 483.106 is titled ``Basic rule.'' The focus of
this section is on providing a high-level overview of PASRR
requirements and outlining the roles of the State Medicaid Agency
(SMA), the SMHA, and the SIDA in implementing PASRR. PASRR is a
somewhat unusual Medicaid mandate in that the statute (sections
1919(b)(3)(F) and (e)(7)(A) and (B) of the Act) assigns
responsibilities to the SMHA and the SIDA, as well as the SMA. We
propose to retitle this section ``Basic rules and responsibilities'' to
draw readers' attention to these distinct responsibilities. We also
propose to make revisions to this section to clarify and highlight the
respective roles of each authority.
The current Sec. 483.106(a) reiterates the requirement in section
1919(e)(7)(A)(i) of the Act that states were to have a system for
Preadmission Screening in place by January 1, 1989. It also reflects
the requirement in section 1919(e)(7)(B) of the Act that states must
perform an initial Resident Review of all individuals with MI or ID in
NFs by April 1, 1990, and have a system of annual Resident Review in
place by April 1, 1990. This requirement for annual Resident Review was
repealed in 1996 (by Pub. L. 104-315) and replaced with the requirement
that a Resident Review was required upon a resident's ``significant
change of physical and mental condition.'' We propose to remove Sec.
483.106(a) because the deadlines for implementation of Preadmission
Screening implementation and Resident Review programs have long passed,
and the reference to annual Resident Review is now obsolete.
We propose to redesignate the current Sec. 483.106(c) as Sec.
483.106(a) and remove the existing reference to ``annual'' Resident
Reviews. This provision provides the basic purpose of PASRR programs,
which are to have Preadmission Screening and Resident Review processes
that result in determinations for NF applicants and residents with MI
and ID, based on a physical and mental evaluation of the individual.
The current Sec. 483.106(b) indicates that ``new admissions'' must
receive Preadmission Screening, and clarifies who is considered a ``new
admission.'' It also defines and distinguishes among new admissions,
exempted hospital discharges, readmissions, and inter-facility
transfers. Because this provision has more relevance to Preadmission
Screening than to Resident Review, we propose to move this provision to
Sec. 483.112 (which discusses Preadmission Screening for NF
applicants) and to redesignate it as Sec. 483.112(b). Additional
proposed changes to that provision are contained in the discussion of
Sec. 483.112 in this proposed rule.
We propose new language at Sec. 483.106(b) to provide a proposed
restatement of the basic requirements of the PASRR programs, including:
Identification of all applicants for admission to, and
residents of, Medicaid-certified NFs who have possible MI or ID;
Preadmission Screening of all eligible new admissions with
MI or ID who apply to Medicaid NFs and tracking of individuals with
possible MI or ID admitted under Preadmission Screening exceptions; and
Resident Review of eligible residents with MI or ID.
This proposed regulation would provide a clear overview of PASRR
requirements that reflects current statutory requirements. The proposed
Sec. 483.106(b)(2) would provide a cross-reference to Sec. 483.112,
where we propose that exempted hospital discharge and other exceptions
to Preadmission Screening be defined.
We propose a new requirement at Sec. 483.106(c) that would
describe the SMA's PASRR responsibilities, including:
General responsibility for ensuring and enforcing the
PASRR program's compliance with federal regulations;
Executing and enforcing written interagency agreement
among the State Medicaid agency, SMHA and SIDA as required at Sec.
431.621;
Designating an entity to perform the evaluations for
individuals with MI;
Ensuring timely and accurate reporting of data as required
in proposed Sec. 483.130(j); and
All PASRR functions not explicitly assigned to another
entity by statute or regulation.
We believe this new regulation is necessary because the current
regulations do not offer explicit discussion of the SMA's role in
PASRR. Our proposed regulation would largely affirm current
responsibilities of the SMA. We have observed that while the SMA does
bear ultimate responsibility for PASRR implementation, in some
instances SMAs have been unaware of some of their specific obligations,
and we attempt to highlight these obligations in proposed Sec.
483.106(c). For instance, the existing Sec. 431.621 requires the SMA
to execute a PASRR-related interagency agreement among the SMA, SMHA
and SIDA--a requirement that is easy to overlook because it is not part
of the PASRR requirements in part 483, subpart C. Additionally, we
propose to clarify that since the SMHA cannot perform or delegate
responsibility for evaluations for people with MI (per the restrictions
at sections 1919(b)(3)(F)(i) and 1919(e)(7)(B)(i) of the Act, discussed
further in the discussion of Sec. 483.106(d) in this proposed rule),
that responsibility would fall to the SMA.
To the list of the SMA's responsibilities, we propose to add one
new responsibility in proposed Sec. 483.106(c)(4), to ensure timely
and accurate reporting of data as required in proposed Sec.
483.130(j). The proposed reporting requirements are discussed at
greater length in the discussion of Sec. 483.130(j) in this proposed
rule. We propose at Sec. 483.106(c)(4) that, when a PASRR program
gathers and submits data on PASRR program activities, the SMA would
bear ultimate responsibility for ensuring that this data is reported to
the Secretary, as required in section 1919(e)(7)(C)(iv) of the Act.
Section 483.106(d) describes the specific obligations of the SMHA
and SIDA to perform determinations for people with MI and ID
(respectively), as described in the statute. Sections 1919(b)(3)(F)(i)
and 1919(e)(7)(B)(i) of the Act specify that the determinations made by
the SMHA must be based on an ``independent physical and mental
evaluation performed by a person or entity other than the [SMHA.]''
Sections 1919(b)(3)(F)(ii) and 1919(e)(7)(B)(ii) of the Act require the
SIDA to base determinations ``on the physical and mental condition'' of
the individual (implying that determinations must also be based on
evaluations). Unlike the SMHA, the SIDA is not statutorily prohibited
from performing the evaluation on which the determination is made. The
language in current
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Sec. 483.106(d) generally reflects this set of statutory requirements.
We propose in Sec. 483.106(d) to change a mention of ``the level of
services provided by a NF'' to ``NF level of services'' to maintain
consistent language around NF level of services. We propose to add
clarifying language to Sec. 483.106(d)(1) that indicates that the
SMHA's determination for people with MI must be based on a physical and
mental evaluation performed by a person or entity that is ``independent
from'' the SMHA. The current language indicates only that the person or
entity must be ``other than'' the SMHA. That arguably ambiguous
language has created the misimpression for some PASRR programs that the
evaluation of people with MI can be performed by an entity that is
distinct from, but still under contract with, the SMHA. We believe a
plain reading of the statute indicates that the entity performing the
evaluation for people with MI cannot have a contractual relationship
with the SMHA, and propose to make that clear. The SIDA's role is
summarized at Sec. 483.106(d)(2). To highlight the differences between
the SIDA statutorily-authorized roles in evaluations, we propose to add
language at Sec. 483.106(d)(2) that specifies that the determination
made by the SIDA must be ``based on a physical and mental evaluation
performed by the state intellectual disability authority or its
designee.''
We propose changes at Sec. 483.106(e), which currently describes
the obligations placed on the SMHA and the SIDA when delegating
statutory responsibilities. We propose to redesignate Sec.
483.106(e)(1)(i) through (iii) as Sec. 483.106(e)(1) through (3). We
propose to expand Sec. 483.106(e) and (e)(1) to include the SMA, as
well as the SMHA and SIDA. We also propose to remove current Sec.
483.106(e)(1)(ii), which contains an instruction to the SMHA and SIDA
that the two determinations as to the need for NF services and
specialized services must be made based on a consistent analysis of the
data. We believe this instruction is unnecessary, as this principle is
also addressed in rules regarding determinations (contained in Sec.
483.130). We propose to replace this provision with a clarification at
newly redesignated Sec. 483.106(e)(2) that the SMA cannot delegate the
evaluation responsibility to the SMHA (in accordance with sections
1919(b)(3)(F)(i) and (e)(7)(B)(i) of the Act). Section
483.106(e)(1)(iii), which we propose to redesignate Sec.
483.106(e)(3), instructs that the responsibility of evaluations and
determinations cannot be delegated to a NF or an entity with a direct
or indirect relationship with a NF. As this is required by sections
1919(b)(3)(F) and (e)(7)(B)(iv)) of the Act, we propose to retain this
provision without amendment.
We propose to remove the current Sec. 483.106(e)(2), which
contains redundant language describing the SIDA and SMHA's
responsibilities and ability to delegate these responsibilities. We
also propose to remove the current Sec. 483.106(e)(3), which
reiterates the restriction against the SMHA providing (or delegating)
evaluations for people with MI, and restricting the state from
delegating this responsibility to NFs. We believe this language
duplicates existing and proposed language in Sec. 483.106(d)(1) and of
newly redesignated Sec. 483.106(e)(2) and (3).
We propose to move the current Sec. 483.128(b) to Sec. 483.106
and redesignate it as Sec. 483.106(f). This provision requires that
PASRR evaluations and determination notices be adapted to the cultural
background, ethnic origin, language, and means of communication used by
the individual. We propose this redesignation because the provision is
currently in Sec. 483.128, which provides criteria only for
evaluations, yet the provision addresses both evaluation and
determination practices. Culturally-sensitive and accessible
communications are fundamental to all PASRR-related activities, so we
consider this provision most appropriate for the section on basic
rules. In relocating language currently found at Sec. 483.128, we
propose to revise the reference to ``PASARR notices'' to ``PASRR-
related communications'' to clarify that cultural adaptation and
accessibility would be expected of all communication, and not limited
to formal determination notices issued by the PASRR program. We would
also add in this provision that, at no cost to the individual,
evaluations should include qualified interpreters as needed, as
required by Section 1557 of the Affordable Care Act and Title VI of the
Civil Rights Act of 1964, and qualified sign language interpreters and
auxiliary aids as required by Section 1557 of the Affordable Care Act
and Section 504 of the Rehabilitation Act of 1973, to ensure there is
effective communication.
6. Relationship of PASRR to Other Medicaid Processes (Sec. 483.108)
Section 483.108 describes the protections for, and limitations on,
the independence of the SMHA and SIDA in making determinations, and the
statutory responsibility to coordinate PASRR with the resident
assessment in Sec. 483.20(b).
We propose to make only minor technical changes to Sec.
483.108(a), to remove the acronym ``PASARR'' and replace it with
``PASRR.'' We propose minor changes in Sec. 483.108(b). We propose
replacing ``NF care'' with ``NF level of services'' to keep language
regarding the NF level of services determination consistent. The
current provision specifies that determinations regarding NF level of
services and specialized services must be consistent with ``any
supplemental criteria adopted by the State Medicaid agency under its
approved State plan.'' We propose to remove the words ``under its
approved State plan'' because state plan approval is not required for
states to develop state-specific rules about PASRR criteria or NF
admissions criteria.
We propose to add clarifying language in Sec. 483.108(c), which
reflects the statutory requirement in sections 1919(b)(3)(E) and
1919(e)(7)(B)(iii) of the Act that the resident assessment process
implemented in Sec. 483.20 must be coordinated with the state's PASRR
program. (See discussion of Sec. 483.20 for discussion of the resident
assessment process.) As we discuss in the discussion of Sec. 483.20(e)
in this proposed rule, Preadmission Screening and Resident Review may
be coordinated with the resident assessment by gathering the
preliminary documentation that will aid in the completion of the
resident assessment. To this end, we propose to replace language in
Sec. 483.108(e) requiring that PASRR must be coordinated with the
routine resident assessments with a more specific statement to the
effect that information gathered by the PASRR process must be
incorporated into the routine resident assessments required by Sec.
483.20(b) whenever possible. We recognize that the need for
coordination between PASRR and resident assessments is both critical
and complex, and intend to expand on this requirement through future
sub-regulatory guidance.
7. Out-of-State Arrangements (Sec. 483.110)
Section 483.110 describes how responsibility for PASRR is assigned
when an individual seeks admission or transfer to an out-of-state NF.
The general goal of Sec. 483.110(a) is to ensure that one state (the
``sending state'') cannot obligate another (the ``receiving state'') to
provide, or pay for, NF services or specialized services that do not
align with the NF level of services
[[Page 9999]]
or specialized services in the receiving state.
We have received stakeholder feedback that, for some states,
deciding how PASRR should be performed when a NF resident is
transferred between states, or otherwise moves over state lines, can be
a source of confusion. We understand that some receiving states: (1)
Elect to accept the PASRR documentation from the sending state, even if
the receiving state will ultimately be responsible for paying for the
individual's care (including paying for specialized services); (2) redo
all PASRRs for relocated residents; or (3) attempt to perform
Preadmission Screening on prospective new residents themselves, which
may involve sending staff from the receiving state's PASRR program
across state lines to the sending state to perform the Preadmission
Screening.
Some of the challenges related to admitting NF applicants or
residents from another state are beyond PASRR's scope, such as
differences in Medicaid eligibility or states' level of care criteria
for NF admission. However, while we do not currently propose
substantive changes to Sec. 483.110(a), we solicit suggestions from
stakeholders on ways that the language in Sec. 483.110 may, within the
scope of the authority of this subpart, be amended to address any
barriers to executing PASRR responsibilities associated with out-of-
state transfers.
We propose to remove the current requirement at Sec. 483.110(b),
which indicates that states may choose to include PASRR in interstate
agreements. States do not need regulatory authority to do so, and may
continue to do so if this removal is finalized. We have observed that
some states have interpreted Sec. 483.110(b) as a mandate, which it is
not. We note that the delegation authority granted at Sec. 483.106(e)
would include, for example, allowing a receiving state to delegate its
authority to perform PASRR activities to a sending state's PASRR
program to complete needed Preadmission Screening. Because we propose
to remove Sec. 483.110(b), we propose that Sec. 483.110(a) would be
redesignated as Sec. 483.110.
8. Preadmission Screening of Admission to NFs (Sec. 483.112)
Section 483.112 describes the requirements for Preadmission
Screening. Per section 1919(b)(3)(F) of the Act, Preadmission Screening
instructs that ``new resident[s]'' with MI or ID cannot be admitted to
a NF unless the SMHA or SIDA has determined ``prior to admission'' that
the individual needs NF level of services and, if the individual does
need NF level of services, whether the individual needs specialized
services. (The need for NF level of services and specialized services
are discussed in greater detail in the discussions of Sec. Sec.
483.120, 483.132, and 483.134 of this proposed rule.)
In this section, we propose to reorganize and expand on the
requirements for Preadmission Screening. As part of this
reorganization, we propose to remove current Sec. 483.112(a) and (b).
These sections reiterate the statutory requirement set out in the
previous paragraph. We propose removing these sections and
consolidating this information into a single requirement at Sec.
483.112(d), discussed later in this proposed rule.
We propose a new Sec. 483.112(a) that would clarify who would be
required to receive Level I identification screening prior to NF
admission. We would specify that all individuals who are applying to
Medicaid-certified NFs as a new admission (as defined in proposed Sec.
483.112(b)) must receive a Level I identification screen. We note that
Level I identification screens performed prior to admission do not
constitute Preadmission Screening, but rather are used to indicate who
must receive Preadmission Screening. This means that all applicants,
including those who are eligible for exemptions from Preadmission
Screening, would be required to receive a Level I identification
screen. The rationale for this proposed policy is discussed further in
the discussion of proposed Sec. 483.112(b) in this proposed rule.
We propose a new Sec. 483.112(b), which is largely a redesignation
of the current Sec. 483.106(b). As noted in our discussion in Sec.
483.106, this provision currently describes who is required to receive
Preadmission Screening. We would add new language in this revised Sec.
483.112(b) that clarifies that new admissions with positive Level I
identification screens applying to become a new resident of a Medicaid-
certified NF would be required to receive Preadmission Screening prior
to admission. (Proposals regarding the Level I identification process,
including what may constitute a positive Level I screen, are discussed
in the discussion of Sec. 483.126 of this proposed rule.) We also
propose to add language at proposed Sec. 483.112(b) clarifying that
Preadmission Screening (also referred to in this proposed rule as
``Level II Preadmission Screening'') consists of a Level II evaluation
and determination as described in Sec. Sec. 483.128 and 483.130. We
believe this definition of Preadmission Screening accurately reflects
the description of Preadmission Screening required by sections
1919(b)(3)(F) and 1919(e)(7)(A) of the Act, which only specifically
includes the evaluation and determination process.
Proposed Sec. 483.112(b)(1) contains much of the current language
from existing Sec. 483.106(b)(1) that defines ``new admission.'' We
propose to retain the language that explains that ``new admissions''
are individuals applying for admission to a Medicaid-certified NF for
the first time and who do not qualify as ``readmissions'' or an
``inter-facility transfer.'' (Readmissions and inter-facility transfers
are discussed further in the discussions for Sec. 483.112(b)(4) and
(b)(5), respectively in this proposed rule.) We also propose to add
language at proposed Sec. 483.112(b)(1) that clarifies that, with the
exception of certain hospital discharges or provisional admissions
(explained in the next paragraph), new admissions would be subject to
Preadmission Screening (meaning they must receive, if they have
possible MI or ID, a Level II evaluation and determination prior to
admission).
At proposed Sec. 483.112(b)(2), we would preserve much of the
language from current Sec. 483.106(b)(2) that defines exempted
hospital discharge. Current Sec. 483.106(b)(2)(i) mirrors the language
in section 1919(e)(7)(A)(iii) of the Act, which provides that
Preadmission Screening ``shall not apply'' to an individual: (1) Who is
admitted to the NF directly from a hospital after receiving acute
inpatient care at the hospital; (2) who requires nursing facility
services for the condition for which the individual received care in
the hospital; and (3) whose attending physician has certified, before
admission to the NF, that the individual is likely to require less than
30 days of nursing facility services. Current Sec. 483.106(b)(2)(ii)
adds that if an individual who was admitted to a NF under an exempted
hospital discharge ends up staying in the NF for more than 30 days, the
SMHA or SIDA must conduct a Resident Review by the 40th day of the
individual's admission.
We believe the current regulations do not provide adequate
oversight for the exempted hospital discharge because they have left
unclear whether the PASRR program may have any contact with individuals
who qualify for the exempted hospital discharge prior to the NF
admission (such as by performing a Level I identification screen on the
individual or verifying that the person meets the criteria for exempted
hospital discharge). We have received anecdotal
[[Page 10000]]
feedback from stakeholders that many states' PASRR programs do not feel
they have the authority, under current regulations, to conduct proper
oversight of the application of hospital discharge exemptions. The lack
of oversight of hospital discharge exemptions may result in improper
use of the exemption, such as identifying individuals as qualifying for
the exemption even though they do not have written documentation from a
physician as required by law. Another issue that may arise with
hospital discharge exemptions is that individuals with possible MI or
ID may initially meet the criteria for an exempted hospital discharge
but then stay in the NF longer than 30 days, and not receive a timely
referral for Resident Review; it is difficult for PASRR programs to
ensure that such Resident Review referrals are being made when the
PASRR program has no prior knowledge of the individuals admitted under
this exemption.
To address these potential issues, we propose to add language at
Sec. 483.112(b)(2) to clarify that exempted hospital discharges are
considered new admissions, which means that while they are exempted
from Preadmission Screening (Level II evaluation and determination),
they are not exempted from Level I identification screening. Performing
Level I identification screens on people who qualify for the hospital
discharge exemption would serve two purposes. One is to serve as notice
to PASRR programs that individuals with MI or ID (as identified via a
positive Level I screen) are being admitted to a NF under a hospital
discharge exemption and may need a Resident Review if their stays
exceed 30 days. The second is to have the Level I identification screen
function as a means of verifying that the conditions of the hospital
discharge exemption are met, including that a physician has certified
the expected length of the stay. This proposed clarification would
assist us in providing greater oversight of the use of hospital
discharge exemptions to avoid misapplication or misuse of this
exemption, and would provide PASRR programs with an improved ability to
track individuals with MI or ID who have been admitted to NFs.
We propose to redesignate Sec. 483.106(b)(2)(i) as Sec.
483.112(b)(2)(i). The language in this provision describes the
conditions for exempted hospital discharge per section
1919(e)(7)(A)(iii) of the Act. Additionally, we propose in Sec.
483.112(b)(2)(ii) to retain the provision in current Sec.
483.106(b)(2)(ii) which states that, if an individual ends up staying
in a NF longer than 30 days, the state's PASRR program would be
required to conduct a Resident Review (consisting of a Level II
evaluation and determination) within 40 calendar days of admission.
However, we propose to add language in proposed Sec. 483.112(b)(2)(ii)
specifying that only individuals who have possible MI or ID (as
identified by the Level I identification screen) would have to receive
a Resident Review by the 40th day of admission. We also propose to
change the word ``conduct'' to ``complete,'' to make it clear that the
Level II evaluation and determination would have to be completed by the
40th day (rather than merely initiated) after the person's admission
date. We believe this proposed Resident Review requirement would
provide a critical protection to ensure that individuals with MI or ID
who intended to stay in a NF for only a short time do not become long-
term residents without being reviewed by the PASRR program to confirm
that the individual needs NF level of services and to determine whether
the individual needs specialized services.
We propose to add a new provision at Sec. 483.112(b)(3) that
describes a second exemption to Preadmission Screening, called a
``provisional admission.'' Section 1919(b)(3)(F) of the Act specifies
that those applying as ``new residents'' are subject to Preadmission
Screening. We would define a provisional admission as a new admission
in which the individual is only admitted to a NF for short, time-
limited stays, and thus is not considered a ``new resident'' for PASRR
purposes. These individuals would be subject to a Level I
identification screen but, even if the individuals receive positive
screens, would not be required to receive Level II evaluation and
determination prior to admission. Provisional admissions, like hospital
discharge exemptions, would be time-limited NF stays that are
admissions for:
Emergency stays due to emergency evacuations or protective
services placements, with placement in the NF not to exceed 14 days;
Individuals with delirium where the delirium prevents an
accurate diagnosis at the time of entry into the NF, but is expected to
clear within 14 days;
Respite stays of up to 30 consecutive days to provide
respite to in-home caregivers; or
Convalescent stays of up to 30 days in which an applicant
requires a stay in the NF to recover from an acute physical illness
that required hospitalization; and does not meet all the criteria for
an exempted hospital discharge (described previously in this proposed
rule in the discussion of Sec. 483.112(b)(2)). Convalescent stays, for
example, may be required for individuals who do not qualify for
hospital discharge exemptions because they are being discharged to a NF
from a rehabilitative hospital, rather than an acute care hospital as
specified by section 1919(e)(7)(A)(iii) of the Act.
While this would be a new requirement, it is one designed to reduce
burden. We propose such provisional admissions in lieu of the
categorical determinations, examples of which are set out at current
Sec. 483.130(d). Categorical determinations are part of the current
regulations and are designed to expedite admissions for individuals
with positive Level I screens whose conditions are such that the SMHA
or SIDA can determine, without a comprehensive evaluation, that the
individual either needs NF level of services or does not need
specialized services, or both. As authorized by the current
regulations, categorical determinations frequently result in ``desk
reviews,'' which are quick reviews of the individual's medical
paperwork (often without the individual's direct involvement).
We believe the proposed regulations at Sec. 483.112(b)(3) would
reduce PASRR programs' burden by eliminating the need to collect and
review paperwork for individuals with positive Level I identification
screens who are going to be in the NF for such a short period of time
that the individual is not likely to become a long-term resident and
would not have time to benefit from specialized services. The
application of this exception would be voluntary for state PASRR
programs; this provision would not preclude states, if they so choose,
from performing Preadmission Screening or providing specialized
services, as appropriate, to individuals with positive Level I
identification screens who fall under these categories if the state
identifies that the individual would benefit from such interventions.
We also propose to provide a schedule at proposed Sec.
483.112(b)(3)(ii) for when a Resident Review would need to be completed
by the SMHA or SIDA for an individual with possible MI or ID (as
indicated by the Level I identification screen) who was admitted under
provisional admission. We propose a similar timeframe to the Resident
Review policy on expired hospital discharge exemptions described in
proposed Sec. 483.112(b)(2)(ii), which contemplates 9 calendar days
for the Resident Review. We propose that a Resident Review would have
to be completed by the 24th
[[Page 10001]]
calendar day after admission for emergency admissions and delirium, and
the 40th calendar day after admission for respite stays and
convalescent care stays. This ensures that individuals who are admitted
under provisional admissions do not become long-term residents without
an appropriate review for NF level of services and specialized
services.
In summary, we are proposing parallel processes for hospital
discharge exemptions and provisional admissions. We propose that
individuals in both categories would receive Level I identification
screening prior to admission to identify individuals who have possible
MI or ID (as described in the discussion for Sec. 483.126) and to
confirm that the individual qualifies for a Preadmission Screening
exemption, the individual's MI or ID notwithstanding. These exemptions
come with an expiration date--30 days for exempted hospital discharge
and provisional admission for respite or convalescent stays, 14 days
for provisional admissions for emergencies and delirium. We propose
that when individuals who have been admitted under an hospital
discharge exemption or as a provisional admission remain in the NF past
the allotted exemption period, the NF must notify the PASRR program
promptly so that the SMHA or SIDA can perform a Resident Review and
make a Level II determination within an average of 9 calendar days of
when the individual's exemption period expired.
We propose at Sec. 483.112(b)(4) to relocate and revise the
language from current Sec. 483.106(b)(3) that defines
``readmissions''. Readmissions, as set forth in section
1919(e)(7)(A)(ii) of the Act do not need to receive Preadmission
Screening. We propose to remove the sentence that explains that
readmissions are exempt from Preadmission Screening, but are subject to
``annual'' Resident Review, because annual Resident Review is no longer
a requirement. In its place, we propose to add a specification that
readmissions of individuals who received a Level I identification
screen and Level II evaluation and determination (if needed) upon
initial admission do not need to have these processes repeated upon
readmission. We propose to retain the language from current Sec.
483.106(b)(3) that readmissions are still subject to Resident Review,
although we propose to remove the language that says that this Resident
Review must be performed annually and would clarify that the Resident
Review would need to be performed in accordance with Sec. 483.114.
At proposed Sec. 483.112(b)(5), we propose to retain the
definition of ``inter-facility transfer'' from current Sec.
483.106(b)(4), which is that an individual is being transferred from
one NF to another, with or without an intervening hospital stay. We
propose to add language specifying that inter-facility transfers are
treated similarly to readmissions, in that Level I identification
screening and, for individuals with MI or ID, Level II evaluations and
determinations (conducted as Preadmission Screening and any subsequent
Resident Reviews), Level I identification and Level II Preadmission
Screening typically do not need to be repeated during the transfer. We
propose to add language at Sec. 483.112(b)(5)(ii) that would specify
that a receiving NF would have to ensure that the individual has
paperwork demonstrating that the individual has previously received a
Level I identification screen and, if necessary, Level II determination
(or multiple Level II determinations). Absent this documentation or if
this documentation does not reflect the individual's current physical
or mental condition, we would specify that the individual must be
treated as a new admission (meaning the individual would need to
receive a new Level I identification screen and, if necessary, Level II
evaluation and determination prior to admission.) We also propose a new
requirement at Sec. 483.112(c)(5)(iii) indicating that a new Level II
Preadmission Screening would be required for an individual whose inter-
facility transfer involved an intervening stay in an inpatient facility
in which the individual received inpatient psychiatric treatment or
active treatment (as defined in Sec. 483.440(a)).
We propose changes to the provisions at Sec. 483.112(c)(1)
describing the timeliness of the Level II Preadmission Screening. The
current regulation indicates that Level II determinations must be made
in writing within an annual average of 7-9 working days from the day
the Level I referral was made. We believe setting a standard that is
both an average and a range presents an unnecessarily confusing
benchmark for PASRR programs. While 9 working days is clearly the upper
limit of how long most determinations should take, states are not
required to complete determinations in a minimum of 7 days. We propose
to revise the existing completion rate of an annual average of 7 to 9
working days to within an annual average of 9 calendar days from date
of receipt of the Level I referral. We propose to change ``working
days'' to ``calendar days'' because calendar days, unlike ``working
days'' are unambiguous. We also note that in the requirement for
completing Level II determinations for expired hospital discharge
exemptions (discussed in this section above in relation to proposed
Sec. 483.112(b)(2)), the need for the Level II determination would
begin on the 31st day after admission, and the Level II would need to
be completed by the 40th day of admission--in other words, within 9
calendar days. Thus, we propose that all Level II determinations be
made within, on average, 9 calendar days of the Level I referral in
order to streamline timeframes.
We also propose to add at Sec. 483.112(c) that Level II
Preadmission Screening (consisting of a Level II evaluation and
determination) would have to be completed prior to admission, and
propose to clarify that the Level II determinations may be made
electronically or in writing. We believe many PASRR programs already
deliver determinations electronically, and propose to formally
memorialize this practice in regulation. Relatedly, we propose to
remove Sec. 483.112(c)(2) allowing the PASRR program to make Level II
determinations verbally and confirming in writing. The presumed purpose
of this requirement was to help expedite admissions to NFs at a time
when email and other forms of electronic communication were not widely
available. Electronic communication at this point can be almost as
instantaneous as phone calls (if not more so) and, unlike verbal
communications, create an instant verifiable record of the
determination.
We propose to relocate Sec. 483.112(c)(3) and (c)(4), which
pertain to requirements for gathering data on the annual average
timeliness and the ability to request waiver of this requirement to a
new provision at proposed Sec. 483.130(j). We discuss these
requirements at greater length in the discussion of Sec. 483.130 of
this proposed rule.
We propose a new provision at Sec. 483.112(d) that contains the
expectations for Preadmission Screening determinations set forth in
section 1919(b)(3)(F) of the Act. The Act indicates that NF applicants
referred to the PASRR program for Level II determinations must first
receive a determination for NF level of services and, if found to
require NF level of services, a determination for specialized services.
9. Review of NF Residents (Sec. 483.114)
The title of Sec. 483.114 is currently ``Annual Review of NF
Residents.'' As
[[Page 10002]]
has been discussed elsewhere, Resident Review is no longer required
annually so we propose to retitle this section ``Review of NF
Residents.'' All regulations in this section currently presume the
Annual Resident Review requirement. As such, we propose to remove them
and replace them (at Sec. 483.114(e)) with language on how states'
PASRR programs may implement section 1919(e)(7)(B)(iii) of the Act,
which requires that Resident Review be performed when there has been a
``significant change in the resident's physical or mental condition.''
We propose a new requirement at Sec. 483.114(a) specifying the
circumstances under which a referral for a Resident Review would be
required. We propose at Sec. 483.114(a) to specify that a referral for
Resident Review would be required when a resident with known MI or ID
(as confirmed by a previous Level II evaluation and determination)
experiences a possible significant change in physical or mental
condition, as defined in Sec. 483.20(b)(2)(ii). The definition of
``significant change'' in Sec. 483.20(b)(2)(ii) is a ``major decline
or improvement in the resident's status'' that (1) will not normally
resolve itself without further intervention by staff or by implementing
standard disease-related clinical interventions, (2) has an impact on
more than one area of the resident's health status, and (3) requires
interdisciplinary review or revision of the individual's care plan (or
both). In the absence of a specific definition of ``significant
change'' in part 483, subpart C, NFs have already been using the
definition of ``significant change'' provided in Sec. 483.20(b)(2)(ii)
when identifying the need for referral for Resident Review, and we
propose to formally adopt this definition in subpart C.
We propose at Sec. 483.114(a)(2) that an individual with possible
MI or ID who was exempted from receiving Preadmission Screening
(because the individual qualified as an exempted hospital discharge or
a provisional admission) would be required to be referred for a
Resident Review upon the expiration of the exemption's time limit as
described in proposed Sec. 483.112(b).
We propose at Sec. 483.114(a)(3) that a Resident Review referral
would be required when the NF identifies, through any means not
otherwise described in this section, that a resident has a possible MI
or ID that was not previously identified by a Level I identification
screen. We propose at Sec. 483.114(a)(4) to specify that states would
be able to establish criteria, in addition to the criteria listed
above, for when a Resident Review is required.
We propose at Sec. 483.114(b) to provide a definition of Resident
Review, which we propose would consist of a Level II evaluation and
determination (and is sometimes referred to in the proposed regulations
as the Level II Resident Review). This proposed regulation would
reflect the description of Resident Review in section 1919(e)(7)(B) of
the Act, which describes Resident Review as a determination based on an
evaluation. Criteria for Level II evaluation and determination are
discussed in greater detail in the discussions of sections Sec. Sec.
483.128 and 483.130, respectively. We propose new language at Sec.
483.114(b)(1) to specify that the purpose of a Resident Review would be
to provide first-time Level II evaluation and determination for
residents with possible MI or ID who had not previously received Level
II evaluation and determination. We propose new language at Sec.
483.114(b)(2) to provide that a Resident Review would provide a new
Level II evaluation and determination for residents who have previously
been confirmed by Level II determination to have MI and ID, but are
experiencing a significant change in physical or mental condition such
that the PASRR program will need to revise the findings of the previous
Level II determination.
We propose at Sec. 483.114(c) requirements for when the NF would
refer residents to the PASRR program for Resident Review. We propose at
Sec. 483.114(c)(1) that referrals would have to be made within 72
hours of when the resident experiences one of the circumstances
described in proposed Sec. 483.114(a)(1) and (a)(3), including an
apparent significant change in an individual's mental or physical
condition, or evidence of a previously-unidentified MI or ID. We
propose a 72-hour timeframe for Resident Review referral because
section 1919(e)(7)(B)(iii) of the Act requires NFs to make Resident
Review referrals ``promptly'' when a ``significant change' occurs.
Additionally, we propose at Sec. 483.114(c)(2) that NFs must make a
referral for Resident Review within 24 hours of when the NF identified,
or should have identified, the expiration of an exemption period for
exempted hospital discharges or provisional admissions. These
conditions are described in greater detail in the discussion of
proposed Sec. 483.112(b).
In an effort to create consistency in PASRR processes where
possible, we are proposing at Sec. 483.114(d) to align the timeframe
for completing a Level II determination made as part of Resident Review
with the timeframe proposed at Sec. 483.112(c) for Level II
determinations made as part of Preadmission Screening--that is, within
an annual average of 9 calendar days from date of receipt of referral.
The rationale for that timeframe is discussed in the discussion of
proposed Sec. 483.112(c).
We are proposing a new requirement at Sec. 483.114(e) that
reflects the language from sections 1919(e)(7)(B)(i) and (ii) of the
Act that describes, generally, the expectations for Resident Review
determinations. These sections of the statute specify that NF residents
referred to the PASRR program for determination must receive a
determination for NF level of services (or the need for the level of
services provided by an inpatient psychiatric hospital for individuals
under age 21, an institution providing medical assistance for
individuals over age 65, or an ICF/IID), and a determination for
specialized services.
10. Residents and Applicants Determined To Require NF Level of Services
(Sec. 483.116)
Section 483.116 describes the admission and retention requirements
for individuals found to need NF level of services and specialized
services. We are proposing only one technical change to this section.
We propose to remove the phrase ``for the mental illness or
intellectual disability'' from Sec. 483.116(b). The definition of
``specialized services'' at Sec. 483.120 makes it clear that
specialized services are inherently services that support an
individual's MI or ID. To avoid the impression that there are different
types of ``specialized services'' and for consistency throughout the
revised regulation, we propose to replace the phrase ``specialized
services for mental illness and intellectual disability'' with
``specialized services'' in this regulation.
11. Residents and Applicants Determined Not To Require NF Level of
Services (Sec. 483.118)
Section 483.118 describes the discharge and retention options for
NF applicants and residents who have been determined by the PASRR
program to not need NF level of services. These outcomes are carefully
described in sections 1919(e)(7)(C) of the Act, and we do not propose
to make significant changes to the regulations in Sec. 483.118 that
reiterate these requirements.
We propose to make minor changes in Sec. Sec. 483.118(b) and (c)
to promote consistency in how the regulations refer to ``specialized
services.'' For the reasons explained in the discussion of Sec.
483.116, we propose to remove the phrase ``specialized services for MI
or IID'' where it appears in Sec. Sec. 483.118(b)
[[Page 10003]]
and (c), as well as the phrase ``specialized services for the mental
illness or intellectual disability'' in Sec. Sec. 483.118(c)(1)(iv)
and (c)(2)(iii), and replace them with ``specialized services.''
We propose to remove language in Sec. 483.118(c)(1) and (2) that
references alternative disposition plans. Alternative disposition plans
were allowances under section 1919(e)(7)(E) of the Act for states to
delay discharging residents from NFs pending development of resources
in alternative settings. As noted in section 1919(e)(7)(E) of the Act,
this allowance expired April 1, 1994, therefore it is no longer
necessary to include in the regulations.
12. Specialized Services and NF Services (Sec. 483.120)
The current Sec. 483.120 contains provisions describing
specialized services, which are a central component of PASRR. We
propose to revise the definition of ``specialized services'' and to add
clarity as to how the provision of specialized services relates to, and
is different from, the provision of NF services. We propose retitling
Sec. 483.120 to ``Specialized Services and NF Services'' to reflect
this expanded focus on both specialized services and NF services.
Section 1919(e)(7)(G)(iii) of the Act gives the Secretary broad
authority to define ``specialized services'' in regulations, so long as
the definition specifies that they do not include services within the
scope of services which the NF must provide or arrange for its
residents under section 1919(b)(4) of the Act. (Section 1919(b)(4) of
the Act contains a list of services that NFs must provide and are
typically included in their per diem reimbursement rate.)
The current Sec. 483.120(a) provides a definition of ``specialized
services'', which distinguishes between specialized services for people
with MI and for people with ID. In the current definition of
``specialized services'' for people with MI (at current Sec.
483.120(a)(1)), the focus of the services is split between improving
the resident's ``level of independent functioning'' and addressing the
needs of residents ``experiencing an acute episode of serious mental
illness.'' ``Specialized services'' for people with ID are defined at
current Sec. 483.120(a)(2) as equivalent to active treatment offered
in ICF/IIDs, which is defined at Sec. 483.440(a)(1). We have found
that these requirements inadvertently perpetuate an image of
specialized services as being restricted to institutional-type
services. We propose a broader understanding of specialized services,
beyond those furnished in institutional settings such as inpatient
psychiatric facilities or ICF/IIDs.
We propose a new definition at Sec. 483.120(a) that would define
specialized services as state-defined services for NF residents with MI
or ID, which, we propose, would have to be:
Developed by an interdisciplinary team, that would
include, at minimum, a physician and a mental health professional (for
people with MI) or intellectual disability or developmental disability
professional (for people with ID or related conditions);
Designed to address needs related to MI or ID;
Of greater intensity, frequency or customization than the
NF services for MI or ID required in part 483, subpart B;
Designed in a person-centered manner that promotes self-
determination and independence,
Designed to prevent or delay loss of, or support increase
in, functional abilities; and
If the individual is admitted to or remains in an
institutional setting, designed to support any goals the individual may
have of transition to the most integrated setting appropriate.
This proposed definition would depart from the current definition
of ``specialized services'' in Sec. 483.120(a) in several key ways.
The proposed definition would not provide a distinct definition for
``specialized services'' for people with MI and a separate distinct
definition for people with ID. This is, in part, because we want to
provide a more flexible definition, and we believe a combined
definition would pose fewer logistical challenges when designing
service plans for people with co-occurring diagnoses of MI and ID. This
also means, should our proposal be finalized as proposed, that for
people with MI, specialized services would emphasize developing long-
term skills needed for independence as opposed to focusing narrowly on
managing discrete periods of crisis. Likewise, for people with ID,
specialized services would have an even greater emphasis on developing
skills needed to transition to the community than what may currently be
captured in the active treatment requirement at Sec. 483.440(a)(1).
Many states have done a commendable job of looking beyond the
institutional bias of the current definition of ``specialized
services'' and developing robust and creative systems of specialized
services, and we propose to update this definition in ways that would
solidify the commitment to using specialized services as a tool for
assisting individuals' transition to the community. We emphasize,
however, that we do not believe specialized services are only to be
delivered to people with a specific goal of transitioning from the NF
into the community. Rather, specialized services should be designed to
maintain individuals in the most integrated setting appropriate--
whether that is to help maintain them in a NF (versus a more
restrictive institutional setting such as a locked psychiatric unit) or
whether that is to assist the individual's move into a home- or
community-based setting. The purpose of PASRR ultimately is to allow
people to live in the optimal setting for that individual, as reflected
by the individual's needs and preferences. Because they are critical to
the operation and success of PASRR, we solicit comments on the proposed
definition of specialized services.
We propose to remove the current Sec. 483.120(b), which describes
who must receive specialized services. Currently, Sec. 483.120(b)
requires that the state provide or arrange for the provision of
specialized services, to all NF residents with MI or ID who require
``continuous supervision, treatment and training'' by qualified mental
health or intellectual disability personnel. We propose to replace the
language ``continuous supervision, treatment and training'' with new
language that indicates that states would provide specialized services
to individuals needing specialized services, as identified through the
Level evaluation and determination process (discussed in sections
Sec. Sec. 483.128 and 483.130.) This proposal would remove language
that ambiguously suggests that these services would be restricted only
to those individuals requiring ``continuous supervision, treatment or
training''--language reminiscent of the definition of ``active
treatment'' in Sec. 483.440(a)--and would clarify the connection the
Level II evaluation and determination process and the provision of
specialized services.
We also propose to remove language in Sec. 483.120(b) suggesting
that only ``mental health and intellectual disability professionals''
may provide specialized services. We propose to replace this with new
language in Sec. 483.120(b) that the state must ensure that the
services are provided by qualified personnel. We propose to give states
more flexibility in deciding the qualifications of who may deliver the
specialized services and potentially to allow services to be delivered
by qualified professionals who would not necessarily be considered
``mental
[[Page 10004]]
health or intellectual disability personnel.''
We also propose in revised Sec. 483.120(b) to require that
specialized services be periodically reviewed to ensure they remain
effective for the individual. We include this proposal out of concern
that once specialized services are recommended, it is not always clear
if they are monitored for quality, safety, and efficacy. We want to
ensure that states take measures to ensure that specialized services
are not only being delivered to individuals as required, but that they
are delivered efficiently and effectively. We do not propose a specific
frequency with which specialized services must be reviewed, but welcome
stakeholder comments on this proposal.
We propose to change the current title of Sec. 483.120(c) from
``Services of a lesser intensity than specialized services'' to
``Provision of NF services'' as this provision describes services
offered by NFs as part of their per diem and ``specialized services''
does not need to be included in the title.
We propose to add a new requirement at Sec. 483.120(d) that would
specify that specialized services may not duplicate the services NFs
must provide under part 483, subpart B, which describes the activities
NFs must perform to meet the requirements (also known as ``conditions
of participation'') as a Medicaid provider, and for which they are
already reimbursed by states participating in the Medicaid program.
These are services that are largely medical or rehabilitative in nature
and, while intended to improve or maintain an individual's health and
well-being, may not explicitly prioritize helping individuals
transition to the most integrated setting. This proposed requirement
would reaffirm the statutory prohibition of specialized services
duplicating NF services set forth in section 1919(e)(7)(G)(iii) of the
Act.
We propose a new requirement at Sec. 483.120(e) that would specify
that, for individuals who are admitted to or retained by a NF, NF
services and specialized services recommended by the PASRR program
would have to be coordinated with the individual's care plan, as
required at Sec. 483.21(b)(1)(iii).
We propose a new Sec. 483.120(f) to explain that, if an individual
requiring specialized services is discharged to another institutional
setting or to a community program for the purposes of receiving long-
term services and supports, services offered in those settings would be
presumed to satisfy the specialized services requirement. This proposed
requirement would seek to clarify the requirement in sections
1919(e)(7)(C)(i) and (ii) of the Act that the state must continue to
provide specialized services for residents who need specialized
services but who have been discharged from a NF because they do not
need the NF level of services.
13. FFP for NF Services (Sec. 483.122)
FFP for NF services, including when FFP may be provided to NF
residents or withheld for non-compliance with PASRR requirements, is
described in Sec. 483.122. We propose at Sec. 483.122(a) to remove
the reference to alternative disposition plans provided for by section
1919(e)(7)(E) of the Act, since, as we explained in the discussion of
Sec. Sec. 483.118(c)(1) and (2) in this proposed rule, the
availability of alternative disposition was a statutory construct that
expired in 1994; consequently the language in this section, as in the
other sections, is obsolete and can be removed.
We also propose to change ``NF care'' to ``NF level of services''
in Sec. 483.122(a)(1), and we propose to change ``NF services'' to
``NF level of services'' in Sec. 483.122(a)(2) to promote consistency
in references to the determination for NF level of services.
In Sec. 483.122(b), we propose to remove the obsolete mention of
an ``annual review'' (referring to the annual Resident Review) and
replace it with ``resident review.''
14. FFP for Specialized Services (Sec. 483.124)
Section 483.124 currently indicates that FFP is not available for
specialized services delivered as NF services. This language has long
caused confusion; until recently it has been misinterpreted as a
prohibition against FFP for any specialized services. However, section
1919(e)(7)(G)(iii) of the Act does not prescribe such a restriction on
specialized services; it only specifies that specialized services
cannot be NF services. We propose to remove the current language in
Sec. 483.124 and replace it with new language that would more clearly
describe the conditions under which FFP is available for specialized
services. We propose language that states that FFP would be available
for specialized services furnished to NF residents so long as the state
has added a description of the services in its State plan (which is
approved by CMS) and these services do not duplicate NF services
included in payments to the NF. This language would not create a new
policy regarding FFP for specialized services, but rather affirms
existing policy.
15. Level I Identification Criteria (Sec. 483.126)
The current Sec. 483.126, titled ``Appropriate placement,''
contains a single provision defining what ``appropriate placement'' in
a NF means. This phrase relates to NF level of services determinations
and is addressed in Sec. Sec. 483.130(c) and 483.132. We propose to
remove both the title and the requirement in Sec. 483.126.
In its place, we propose to include requirements that describe the
Level I identification process. Level I identification is the function
of identifying people with possible MI or ID who are eligible for
Preadmission Screening or Resident Review. Despite being a critical
precursor to the PASRR process, the Level I identification process is
not described in current regulation, aside from a brief mention in
current Sec. 483.128(a). We propose to retitle Sec. 483.126 ``Level I
identification criteria,'' and to provide in this revised section a
description for the Level I process.
We propose a new provision at Sec. 483.126(a) that would explain
that the state's PASRR program must have a Level I screening process to
identify all individuals with possible MI or ID who require
Preadmission Screening (if they are NF applicants) or Resident Review
(if they are residents). Note that, as will be explained in the
discussion of Sec. 483.126(b), people with known diagnoses of MI or ID
are still considered to have ``possible MI or ID'' until the Level II
evaluator has confirmed the individual meets the definition of MI or ID
proposed in Sec. 483.102(b).
We propose a new Sec. 483.126(b) that would provide guidelines on
the criteria for identifying ``possible MI'' that would be used during
the Level I process. We propose that an individual may be considered to
have possible MI if one or more of the following criteria are met:
The individual has received a diagnosis of MI that appears
to meet the definition at Sec. 483.102(b)(1);
Within the last 12 months the individual has experienced
significant challenges to interpersonal or cognitive functioning,
including but not limited to hallucinations or delusions, attempts to
harm self or others, or suicidal ideation;
Within the last 12 months the individual has required
psychiatric treatment, including residential treatment, partial
hospitalization, or inpatient hospitalization; or
The Level I identification screener cannot rule out
possible MI based on the available data.
We propose a new requirement at Sec. 483.126(c) that would specify
that an
[[Page 10005]]
applicant may be considered to have ``possible ID'' if:
The individual has received a diagnosis of ID or a related
condition that appears to meet the definition of ID in Sec.
483.102(b)(3),
Within the past 12 months the individual has received
active treatment (as defined in Sec. 483.440(a)) in an ICF/IID; or
The Level I identification screener cannot rule out
possible ID or related condition based on the available data.
We note that for both proposed definitions, an individual would not
need to meet all of the listed criteria, but rather would have to meet
at least one. We also propose to give Level I screeners flexibility to
exercise judgment, particularly in instances in which the individual
has gaps in medical history or is exhibiting behaviors not listed in
this proposed regulations that the Level I screener regards as needing
further examination. For instance, a Level I screener might have reason
to believe that someone with a diagnosed substance use disorder, but no
formal diagnosis of MI might nevertheless require evaluation for MI,
given the high incidence of overlap between substance use disorders and
MI. We welcome comments on our proposed criteria.
We propose at Sec. 483.126(d) to specify that the state would be
able to designate the qualifications for who may complete the Level I
screen. While NFs are prohibited from performing the Level II
evaluations and determinations by sections 1919(b)(3)(F) and
(e)(7)(B)(iv) of the Act, NFs are not excluded from performing Level I
screens because they are distinct from the evaluation and determination
process.
We propose at Sec. 483.126(e) to clarify that individuals
performing the Level I identification screen would be able to rely on
existing records, including hospital records, physician's evaluations,
election of hospice status, school records, records of community mental
health centers or community intellectual disability or developmental
disability providers, and other information provided by the individual
or the individual's legally authorized representative. We also propose
in this provision that the Level I screener would have to certify that
the records relied upon support the screener's conclusions regarding
whether the individual has possible MI or ID and if the individual
qualifies for a hospital discharge exemption or as a provisional
admission.
We propose a new Sec. 483.126(f) which would require that
individuals with possible MI or ID be referred to the PASRR program for
Level II evaluation and determination, unless the individuals are
applicants who qualify for an exemption to Preadmission Screening due
to a hospital discharge exemption or provisional admission, as
discussed in the proposed changes to Sec. 483.112(b) in this proposed
rule. These individuals would have to be identified to the PASRR
program but would not need to receive a Level II evaluation and
determination prior to admission. Notifying the PASRR program when
someone with a positive Level I identification screen has been admitted
to the NF under a hospital discharge exemption or provisional admission
would allow the PASRR program to track how often these exceptions were
applied (to discourage misuse or overuse) and would alert the PASRR
program to individuals who might need a Resident Review in the near
future should the exception period expire (to offer better oversight of
when NFs' Resident Review referrals).
We propose to move the fourth sentence of current Sec. 483.128(a)
to this section and redesignate it as Sec. 483.126(g). This sentence
currently states that as part of the Level I identification function,
an individual must be provided (at least in the case of first time
identifications), with written notice that the individual is
``suspected of having'' MI or ID and is being referred to the SMHA or
SIDA for Level II evaluation and determination. We propose to retain
some of this language in this section as well, but to modify it so that
it would provide that the state's performance of the Level I
identification function would have to provide a copy of the completed
Level I identification screen (rather than a ``written notice'') to the
individual, the individual's legal representative and the admitting or
retaining NF (if applicable.) We also propose that the Level I
identification screen would clearly indicate whether the individual is
being referred to the PASRR program for Level II evaluation and
determination. We believe it is important for individuals to have
documentation demonstrating that they have had a Level I identification
screen completed in compliance with this subpart. We also believe it is
important that individuals be notified whether they are being referred
for additional evaluation as part of the Level II evaluation and
determination process. When an applicant has a positive Level I screen,
providing a copy of the Level I screen would alert the NF that the
individual could not be admitted until Preadmission Screening
(consisting of a Level II evaluation and determination) is completed.
In cases in which the individual has a negative Level I screen, the NF
would be provided documentation that proves admission was appropriate
and Level II Preadmission Screening was not required.
16. Level II Evaluation Criteria (Sec. 483.128)
Section 483.128 describes the criteria that must be used to perform
the physical and mental evaluations on which the Level II
determinations must be made. We propose to retitle Sec. 483.128
``Level II Evaluation Criteria,'' which would acknowledge that
evaluations are typically referred to as ``Level II evaluations'' and
further distinguish evaluations from the Level I identification process
described in the previous section.
We propose to remove the first three sentences of Sec. 483.128(a),
which contain definitions of the terms ``Level I'' and ``Level II''
that are contained elsewhere (including proposed Sec. Sec. 483.126,
483.128 and 483.130). We propose to redesignate the fourth sentence of
Sec. 483.128(a) as Sec. 483.126(g), which is discussed in the
discussion of Sec. 483.126(g). We propose that the requirements of
Sec. 483.128(b) be redesignated as Sec. 483.106(g), which is
discussed in the discussion of Sec. 483.106 in this proposed rule.
We propose new language for Sec. 483.128(a) that would more
clearly articulate the purpose of the evaluation, which is to provide
the SMHA or SIDA with enough information to confirm that the individual
has MI or ID, as defined in proposed Sec. 483.102, or to confirm that
the individual has experienced a qualifying significant change in
physical or mental condition, as defined in Sec. 483.114(b)(2); and to
make the determinations regarding need for a NF level of services and
specialized services.
We propose a new requirement at Sec. 483.128(b) that would
authorize the state to specify the mental health, intellectual
disability or developmental disability professionals who may perform
the evaluations. We specify in the proposed requirement that the state
would have to ensure that the evaluators are qualified to make or
confirm clinical diagnoses, and that the evaluations are performed in
accordance with statutory restrictions. Specifically, evaluations for
people with MI cannot be performed by the SMHA, and NFs cannot perform
evaluations. The language of this proposed requirement is adapted from
the current requirements for who may conduct evaluations at Sec. Sec.
483.134(c)(2) and 483.136(c).
[[Page 10006]]
We propose to remove current Sec. 483.128(c) as its substance
would be incorporated into a new proposed requirement at Sec.
483.128(e)(10), described later in this proposed rule.
We propose to redesignate current Sec. 483.128(d), addressing
interdisciplinary coordination of evaluations where more than one
evaluator is needed, as Sec. 483.128(c). We propose to add language to
specify that this coordination would, in particular, apply to
individuals who have (or may have) diagnoses of both MI and ID. We
propose to include this specification because some PASRR programs have
different processes for evaluations of people with MI and people with
ID, and we do not want people with dual diagnoses to experience
unnecessary burden or delays due to the different processes.
We propose a new title for Sec. 483.128(d), ``Data to confirm
Level II identification and significant change,'' and a new provision
designated as Sec. 483.128(d)(1), that would provide a list of data to
be used to confirm that the individual does have MI or ID, as defined
in Sec. 483.102. This proposed list would include, at a minimum:
A review of current medical and psychiatric condition and
current medications;
A medical history and physical exam that has been
performed by a qualified clinician, as identified by the state;
A history of medication and prescription and illegal drug
use;
For MI evaluations, an evaluation of psychiatric history
performed by a qualified mental health professional;
For ID evaluations, an evaluation of intellectual
functioning performed by a licensed psychologist or psychiatrist; and
Any other documentation or information provided to, or
gathered by, the evaluator to confirm a diagnosis.
We adapted this proposed revised regulation from the current list
of data required in Sec. Sec. 483.134(b) and 483.136(b). We propose to
specify that this data would have to be used to confirm MI or ID for
people with positive Level I identification screens who are eligible
for Preadmission Screening or Resident Review. We note one specific
proposed change in proposed Sec. 483.128(d)(1)(ii). Currently, Sec.
483.134(c)(1) requires that the history and physical examination of
individuals with MI, when used during a Level II evaluation of the need
for specialized services, be performed or reviewed by a physician. This
same requirement currently does not exist for people with ID. We have
received feedback from stakeholders that the requirement that a history
and physical examination be performed or reviewed by a physician is
burdensome, particularly in rural areas where there may be few
physicians and such examinations are typically performed by a nurse
practitioner or other qualified clinician. We propose to reduce this
burden by allowing states to identify which clinicians are qualified to
perform the history and physical examinations included as part of PASRR
documentation for people with MI and with ID.
We propose a new provision at Sec. 483.128(d)(2) to describe the
data that we believe should be used in confirming a qualifying
significant change in physical or mental status of a resident who was
already confirmed by the PASRR program to have MI or ID. This data
would include, at minimum, recent medical, psychiatric and medication
records and resident assessments relevant to the significant change in
physical or mental status; and other information deemed necessary by
the evaluator. This proposed language would expand on the new
regulations that we propose in Sec. 483.114 to implement the statutory
requirement that Resident Review be performed for individuals
experiencing a significant change in physical or mental status.
We propose to remove Sec. 483.128(e), which currently requires
that evaluators use the data listed in Sec. Sec. 483.132, 483.134, and
483.136 when performing evaluations for NF level of services and
specialized services. With the changes that we propose in this rule,
those cross-references would no longer be accurate. Section 483.128(e)
also mentions evaluations for categorical determinations, which--as is
discussed further in the discussion of Sec. 483.128(m)--we propose to
remove.
We also propose to remove the current language in Sec. 483.128(f)
describing data to be used in evaluations and propose to replace it
with language that would more specifically describe the data that
evaluators should use when performing evaluations for NF level of
services and specialized services. Currently, Sec. Sec. 483.132,
483.134, and 483.136 contain separate lists of the data that should be
used to evaluate individuals' need for NF level of services and
specialized services. We envision a more integrated evaluation process
and propose to not require use of different sets of data for an
individual's evaluation.
To that end, we propose a new provision at Sec. 483.128(e) that
would require that the data relied upon for evaluations to assess the
need for NF level of services and specialized services include:
Review of the relevant history of the physical status;
Focused relevant physical examination (either as recorded
in chart or conducted by the evaluator);
Review of relevant psychiatric history including
diagnoses, date of onset, treatment history;
Focused relevant mental status examination, including
observations and professional opinion regarding intellectual and memory
functioning, impulse control, irritability and ability to be
redirected, likelihood that individual may post threat to self or
others, agreeableness to participate in activities of daily living
(that is, how likely the patient is to resist activities such as
bathing, eating, grooming, etc.);
Functional assessment (activities of daily living and
instrumental activities of daily living);
Psychosocial evaluation (for example, living arrangements,
natural and formal supports);
Social, academic and vocational history;
Service plans from community-based providers, if
applicable; and
Relevant sections of the individual's plan of care (as
defined in Sec. 483.21(b)) if the individual is a NF resident.
This proposed requirement is drawn from the data listed in the
current requirements at Sec. Sec. 483.132, 483.134, and 483.136 for
evaluating need for NF level of services and specialized services. We
also propose to require at Sec. 483.128(e)(10) that these evaluations
include person-centered interviews that involve the individual being
evaluated and the individual's legal representative, if one has been
designated under state law; and the individual's family, friends or
caregivers, at the individual's discretion. With proposed Sec.
483.128(e)(10), we propose to make it clearer that for the NF level of
services and specialized services evaluations, the individual must be
directly involved in the evaluation activities.
We propose at Sec. 483.128(f) that the person-centered interviews
that we propose to require in proposed Sec. 483.128(e)(10) be
conducted face-to-face. We include in this proposed provision that we
would permit telehealth evaluations via live videoconferencing to be
performed if conducting a face-to-face interview would, due to resource
limitations, geographical distances, or other circumstances, prevent
timely completion of the determination. We have observed that most
PASRR
[[Page 10007]]
programs already conduct face-to-face interviews with NF applicants and
residents, and some states have begun piloting the use of telehealth
technologies to perform evaluations. We would specify that the
telehealth technology applied would be live videoconferencing (as
opposed to other asynchronous telehealth options). The purpose of the
use of telehealth technology would be to recreate the experience of a
live, face-to-face interaction as much as possible. Note that we do not
propose to apply this face-to-face requirement for the confirmation of
MI or ID, or the confirmation of a significant change in physical or
mental status, which, if the state PASRR program chooses, may be
performed as a desk review in advance of the NF level of services and
specialized services evaluations. We propose that the face-to-face
interview requirement only apply to the NF level of services and
specialized services evaluations.
We propose to retain Sec. 483.128(g), which discusses the use of
pre-existing data that evaluators may use when gathering information to
perform the evaluation. We propose to delete two minor elements in this
regulation; we would remove reference to ``annual resident reviews''
and ``individualized evaluations.'' We would expect all evaluations to
be individualized. (See discussion for Sec. Sec. 483.112, 483.128(m)
and 483.130 regarding removal of categorical determinations in this
proposed rule.)
We propose to retain Sec. 483.128(h) requiring that findings made
in evaluations reflect the individual's current condition. However, we
propose to remove references to ``categorical and individualized
determinations'' as we would expect that all determinations would be
individualized. As noted previously with respect to Sec. Sec. 483.112,
483.128(m), and 483.130 in this proposed rule, we propose to remove
categorical determinations, making references to categorical
determinations unnecessary in this proposed rule.
We propose to retain Sec. 483.128(i), which describes the
evaluation report that the evaluator submits to the SMHA or SIDA after
completing the evaluation. Section 483.128(i) currently requires that
after completing the evaluation for NF level of services and
specialized services, the evaluator must submit to the SMHA or SIDA a
written evaluative report summarizing the findings. We propose to add
that the report must summarize recommendations in addition to findings.
(See discussion of proposed changes to Sec. Sec. 483.20(e), and
483.20(k) in this rule for discussion of ``findings'' versus
``recommendations.'') We also propose to remove language that indicates
this report is for ``individualized determinations'' as we would expect
that all evaluations would be individualized (see discussion of the
proposed removal of categorical determinations in Sec. Sec. 483.112,
483.128(m) and 483.130 in this proposed rule). We propose to combine
two of the provisions in Sec. 483.128(i)--currently designated
Sec. Sec. 483.128(i)(3) and 483.138(i)(4)--both of which presently
require the evaluator to describe the types of NF services the
evaluator is recommending for the individual. We propose to merge these
duplicative provisions into a single provision designated Sec.
483.128(i)(3). Sections 483.128(i)(5) and (6) would be redesignated as
Sec. Sec. 483.128(i)(4) and (5), respectively.
We propose to retain the provision at Sec. 483.128(j), with
revisions. This provision describes the format of an abbreviated
evaluation report generated for evaluations made for categorical
determinations--a report that is shorter than the evaluation report
that is to be issued for individualized evaluations. As noted in the
discussions of Sec. Sec. 483.112, 483.128(m), and 483.130 of this
proposed rule, we are proposing to eliminate categorical
determinations, so there would no longer be a need to generate an
evaluation report for categorical determinations. We do, however,
propose to retain the concept of an abbreviated evaluation report under
certain circumstances. In particular, we propose that this abbreviated
report would be issued when an evaluation is terminated before the
evaluation for NF level of services or specialized services, as
discussed in Sec. 483.128(m) of this proposed rule. We propose to
include a specific regulation describing evaluation reports issued
after termination of an evaluation to clarify the presently existing,
but ambiguously stated, expectation that evaluation reports must be
generated to document the rationale for terminating an evaluation. The
current regulations do not waive the evaluation report requirement for
terminated evaluations, but also do not specify what information should
be shared with the SMHA or SIDA. We propose at Sec. 483.128(j) to
retitle the provision ``Evaluation report: Terminated evaluations'' and
replace the mention of ``categorical determinations'' in the
introductory text with language specifying the regulation refers to
terminated evaluations. We propose to remove Sec. 483.128(j)(2), which
is specific to categorical determinations, and replace it with a
requirement that the evaluator include in the report the specific
reason why the evaluator terminated the report.
We propose to retain Sec. 483.128(k) that requires that findings
of the report must be explained to the individual. We propose to remove
the phrase ``For both categorical and individualized determinations''
because we expect that there would only be individualized
determinations, referred to simply as determinations. (See discussion
of categorical determinations in sections for Sec. Sec. 483.112,
483.128(m), and 483.130 in this proposed rule.)
In Sec. 483.128(l), we propose to retain only the requirement at
Sec. 483.128(l)(2) that the evaluation report be forwarded to the SMHA
or SIDA as appropriate. In an effort to consolidate the paperwork sent
to individuals during the PASRR process, we propose to remove the
requirements at Sec. Sec. 483.128(l)(1), (3), (4) and (5) that the
evaluation report be provided to the individual and others separately
from the determination notice. We discuss the proposed requirement to
include the evaluation report with the determination notice in proposed
Sec. 483.130(g).
We propose to remove the language at Sec. 483.128(m), which allows
evaluators to terminate evaluations under certain circumstances. We
propose to replace this regulation with language that would lay out a
different set of criteria for terminating an evaluation. The current
Sec. 483.128(m) allows evaluators to terminate the evaluation if: (1)
The evaluator finds that the individual being evaluated does not have
MI or ID within the definition of proposed Sec. 483.102 or (2) the
individual has MI but also has primary dementia. We propose to replace
this language with a revised Sec. 483.128(m) that would indicate the
evaluations may be terminated without further evaluation of the need
for NF level of services or specialized services (as discussed in
Sec. Sec. 483.132 and 483.134 of this proposed rule), and an
abbreviated evaluation report issued (per proposed Sec. 483.128(j)
discussed above) should the evaluator find that the individual being
evaluated--
Does not have MI or ID within the definition of Sec.
483.102;
Did not experience a qualifying significant change in
physical or mental condition as defined in Sec. 483.114(b)(2); or
Has a severe physical illness (such as ventilator
dependency; advanced Parkinson's disease, Huntington's disease,
amyotrophic lateral sclerosis; or is comatose or functioning at a brain
stem level), terminal illness (as defined in Sec. 418.3 of this
chapter) or dementia (as defined in Sec. 483.102(b)(2)) which
[[Page 10008]]
results in a level of impairment so severe that the individual could
not be effectively evaluated for the need for NF level of services and
specialized services.
We intend that the list of physical conditions that we propose here
would replace the current categorical determinations criteria in
current Sec. 483.130(d) and (h). Under the current regulations,
categorical determinations function as expedited determinations for
people with certain conditions. According to current regulations at
Sec. 483.130(f), people with severe physical illness and terminal
illness do not need an evaluation for NF level of services, but are
still required to receive an evaluation for specialized services. The
current regulation at Sec. 483.130(h) allows individuals with co-
occurring ID and dementia to be admitted to a NF without an evaluation
for specialized services, but still requires that they receive an
evaluation for NF level of services. We consider this current framework
of categorical determinations to be somewhat confusing, and propose to
retain the principle that evaluations should not be performed
needlessly on individuals who clearly need NF level of services but who
are not likely, as the result of a severe physical or cognitive
impairment, to benefit from specialized services. Proposed Sec.
483.128(m) would simply require an evaluator to confirm that
individuals have a condition or conditions such that the individual
could not be effectively evaluated by the Level II evaluator for NF
services specific to ID or MI or for specialized services.
We note that this would also allow individuals with the listed
conditions to receive PASRR interventions if they are able to
participate in evaluations for NF level of services and specialized
services. For instance, if an individual with terminal illness is able
to participate in the evaluations, the individual could still receive
NF level of services and specialized service recommendations (whereas
under the old categorical determinations framework, an individual with
terminal illness might automatically be considered to require NF level
of services without an evaluation). Our intent is that the PASRR
process should be driven by the person's individual circumstances
rather than a diagnosis. This focus on person-centeredness motivates
the proposal to eliminate categorical determinations, which focus too
heavily on making assumptions about individuals based solely on
diagnosis.
17. Level II Determination Criteria (Sec. 483.130)
Section 483.130 sets out the criteria that must be used to make
determinations of the need for NF level of services and for specialized
services. We propose to retitle Sec. 483.130 ``Level II PASRR
Determination Criteria,'' to acknowledge that determinations are
typically referred to as ``Level II determinations'' and to underscore
that Level II evaluations and determinations should be an integrated
process.
We propose to retain Sec. 483.130(a), which explains that the
determinations must be based on evaluations, and add a cross-reference
to Sec. 483.128(e). As discussed in the discussion of Sec.
483.128(e), we propose to add language to Sec. 483.128(e) to describe
the data to be used in evaluations.
We propose to remove Sec. Sec. 483.130(b) through (i), which set
out requirements pertaining to categorical determinations. As we
explained in discussing Sec. Sec. 483.112 and 483.128(m) of this
proposed rule, we propose to eliminate categorical determinations. We
have found that the framework of categorical determinations has proven
cumbersome and counterproductive. In too many instances, they have
created the opportunity for individuals with MI or ID to be admitted to
an NF with only a cursory review of the individual's records, and
without a follow-up comprehensive Resident Review to ensure individuals
do not end up unnecessarily becoming long-term NF residents (or, if the
long-term institutionalization is necessary, to ensure that they
receive needed specialized services). We believe new proposals of
provisional admissions (as proposed at Sec. 483.112(b)(3)) and the
expansion of evaluation terminations (as proposed at Sec. 483.128(m))
would adequately preserve the spirit of categorical determinations--
avoiding unnecessary evaluations--but would create a simpler system
with greater accountability.
We propose a new requirement at Sec. 483.130(b) to clarify who
would be able to perform the determinations. We propose that the state
would be able to designate the medical, mental health, intellectual
disability, or developmental disability professionals who perform the
determinations, as appropriate. The proposed rule would also reiterate
requirements stemming from sections 1919(b)(3)(F) and (e)(7)(B)(iv) of
the Act that the determinations may not be performed by NFs.
We propose a new requirement at Sec. 483.130(c) that would provide
the criteria for making a determination regarding the need for NF level
of services. (The criteria for evaluation of individuals for NF level
of services on which this determination would be based will be
discussed in greater detail in the discussion of Sec. 483.132 in this
proposed rule.) In proposed Sec. 483.130(c), we propose that an
individual with MI or ID could be determined to need NF level of
services only when:
The individual meets the state's criteria for NF
admission;
The individual's total needs do not exceed the services
which can be delivered in the NF to which the individual is admitted,
either through NF services alone or, where necessary, through NF
services supplemented by specialized services; and
Placement in HCBS program cannot be achieved either
because the individual's total needs exceed or cannot currently be
accommodated by the state's HCBS programs, or the individual does not
want the community placement.
We propose a new requirement at Sec. 483.130(d) that would provide
criteria for determining the need for specialized services. (The
criteria for evaluating individuals for specialized services is
discussed in greater detail in proposed Sec. 483.134 of this proposed
rule.) We propose at Sec. 483.130(d) that an individual may be
determined to need specialized services if the individual's total needs
are such that services described in Sec. 483.120(a) would be necessary
to maintain the individual in, or transition the individual to, the
most integrated setting appropriate, and the individual would benefit
from such services. We believe this proposed criteria for determination
adequately summarizes the underlying purpose of specialized services,
as discussed in proposed Sec. 483.120.
We propose redesignating Sec. 483.130(j), requiring that
determinations be recorded in the individual's records, as Sec.
483.130(e). This requirement currently specifies that all
determinations made by the SMHA and SIDA, ``regardless of how they are
arrived at,'' must be recorded in the individual's record. We propose
removing the clause ``regardless of how they are arrived at,'' as its
meaning and purpose is unclear.
We propose to redesignate and revise the current Sec. 483.130(k)
as Sec. 483.130(f). This section requires that the SMHA or SIDA send
determination notices (either in writing or, as we propose to add here,
electronically) to the individual and the individual's legal
representative, the admitting or retaining NF, the individual's
attending physician, and
[[Page 10009]]
the discharging hospital (unless the individual is exempt from
Preadmission Screening). We propose that the determination notice be
sent to the ``physician most involved in the individual's medical care,
as identified by the individual,'' as opposed to the presently
specified ``attending'' physician. We have received feedback from
stakeholders that the provision to simply send the determination to the
``attending'' physician meant that determinations notices were
sometimes sent to physicians with little involvement in the
individual's ongoing care, such as the attending physician during an
individual's brief hospital stay.
We propose to retain Sec. 483.130(l), but redesignate it as Sec.
483.130(g). This requirement describes the contents of the
determination notice. We propose to retain the introductory text of
this newly redesignated section. We propose to replace the language in
Sec. Sec. 483.130(g)(1), (2) and (3). We propose a new Sec.
483.130(g)(1) that specifies that the determination notice should
indicate if the person was found by the PASRR program to have MI or ID
(as defined in Sec. 483.102) or a significant change in physical or
mental status (as described in Sec. 483.114(b)(2)). We propose a new
Sec. 483.130(g)(2) that specifies that if an individual has been
confirmed to have MI or ID (as defined in Sec. 483.102) or a
significant change in physical or mental condition (as described in
Sec. 483.114(b)(2)), the determination notice should specify whether
the individual needs NF level of services and specialized services, and
what placement options are available to the individual as described in
Sec. Sec. 483.116 and 483.118. These changes largely reflect the
current language in Sec. 483.130(l), but are intended to clarify that
the PASRR program only needs to make determinations regarding NF level
of services, specialized services, and placement options when the
individual has MI or ID, or has had a significant change in physical or
mental condition, and is within the PASRR program's jurisdiction. We
propose to redesignate Sec. 483.130(l)(4), which provides for
individuals' appeal rights, as Sec. 483.130(g)(3). We also propose to
add a new Sec. 483.130(g)(4) that would require the evaluation report
described in proposed Sec. Sec. 483.128(i) and (j) to be attached to
the determination notice. As noted in the discussion in Sec.
483.128(l) in this proposed rule, we are proposing to remove the
requirement that the evaluation report be sent to the individual
separately from the determination notice; here we propose that the two
documents be delivered to the individual (as well as the individual's
legal representative, physician, and admitting or retaining NF) in a
single package.
We propose to remove Sec. 483.130(m) and (n), which describe the
placement options and the provision of specialized services based on
the determinations. We believe these regulations are duplicative of
requirements in Sec. Sec. 483.116, 483.118 and 483.120.
We propose to redesignate Sec. 483.130(o), which describes
requirements regarding record retention, as Sec. 483.130(h). We
propose to remove the reference to categorical and individualized
determinations. Per the discussion of Sec. Sec. 483.112 and 483.128,
and in this section of the proposed rule, we propose to eliminate
categorical determinations and such distinctions would not be
necessary. The current language states that record retention is
necessary to help protect the appeal rights of individuals subjected to
PASRR. We also propose to revise the provision so that rather than
describing individuals as being ``subjected to'' PASRR, the requirement
would state that records must be kept in order to protect individuals'
appeal rights related to PASRR determinations.
We propose to retain the language of Sec. 483.130(p), but
redesignate it as Sec. 483.130(i) with no substantive changes. We
propose to replace mention of ``PASARR'' with ``PASRR.'' We propose to
replace ``individuals with MI or IID'' with ``individuals with MI or
ID'' for grammatical reasons.
We propose to add a new Sec. 483.130(j) that would contain new
reporting requirements on two key activities related to the
determination process: Timeliness and outcomes. The language we propose
at Sec. 483.130(j)(1) would require that the state report to the
Secretary on an annual basis the annual averages for completion of
determinations, in order to demonstrate compliance with the timeframes
required in proposed Sec. Sec. 483.112(c) and 483.114(d). Section
483.106(c)(3) currently requires that states compute annual averages
for their completion times, and Sec. 483.112(c)(4) allows the
Secretary to grant a waiver should a state fall behind, but the current
regulations do not make explicit the requirement to actually report the
completion times. We seek to remedy this confusion with proposed Sec.
483.130(j)(1). We believe our oversight of PASRR would be more
effective if states affirmatively reported on their compliance with the
timeliness requirement, rather than only reporting to the Secretary
when the state has fallen behind on the timeliness standard. We propose
to specify at Sec. 483.130(j) that states would be expected to report
the annual average of the completion of these determinations, as is
suggested by current Sec. 483.112(c)(3). While proposed changes to
Sec. Sec. 483.112(c) and 483.114(d) indicate that determinations would
be provided within 9 calendar days of Level I referral, it is possible
that some determinations would be issued sooner than in 9 days. Thus,
we are proposing to request that states report on the average of the
number of days required to complete determinations over the course of a
year, and expect that states would report an average of 9 calendar days
or less.
We propose at Sec. 483.130(j)(2) that states would report annually
on the number of people with MI or ID who, as a result of the PASRR
program's determinations, are diverted or are discharged from NFs each
year because the individual:
Does not meet, or no longer meets, the state's criteria
for NF level of care,
Requires the level of services offered in another
institutional setting; or
Elects to receive services in a non-institutional setting.
This proposed provision is designed to implement section
1919(e)(7)(D)(iv) of the Act that requires that each state report
annually to the Secretary the number and disposition of individuals who
are discharged from NFs because they have been determined to no longer
needed NF level of services (but still need specialized services) and
individuals who are discharged from NFs because they are determined to
need neither NF level of services nor specialized services. This
reporting requirement was not explained in the current regulations,
and, as a result, reporting to the Secretary has been inconsistent. We
propose to require reporting on both diversions of NF applicants, as
well as discharges of NF residents. We believe that the purpose of the
statutory requirement at section 1919(e)(7)(D)(iv) of the Act is to
ensure that PASRR has a meaningful impact on the outcome of individuals
who do not need (or want) NF placement, which would include
dispositions for applicants as well as residents.
We propose to add a new requirement at Sec. 483.130(j)(3) that
would retain language from current Sec. 483.112(c)(3) allowing the
state to compute separate annual averages for the determination made by
the SMHA and SIDA. We propose to add language indicating that
dispositions for individuals with MI or ID, as required in proposed
[[Page 10010]]
Sec. 483.130(j)(2), could also be reported separately.
We propose to add a new requirement at Sec. 483.130(j)(4) that
incorporates the language from current Sec. 483.112(c)(4), authorizing
the Secretary to grant an exception to the timeliness standard (which
would be reported on per proposed Sec. 483.130(j)(1)) at the
Secretary's discretion.
We propose to add a new requirement at Sec. 483.130(j)(5) that
would require that reports containing data for the previous calendar
year be submitted to the Secretary by March 1 of each year.
18. Evaluating the Need for NF Level of Services (Sec. 483.132)
We propose to retitle Sec. 483.132 as ``Evaluating the Need for NF
Level of Services.'' The current title, ``Evaluating the Need for
Services and NF Level of Care,'' perpetuates the confusion that PASRR
processes include NF level of care assessments. This is a problematic
assumption. NF level of care assessments are the functional needs
assessments states use to confirm basic eligibility for NF admission on
the basis of functional needs. The evaluation of NF level of services
evaluation required by PASRR involves a more comprehensive and holistic
evaluation than most NF level of care assessments, and we want to avoid
the impression that performing a NF level of care assessment satisfies
the requirement to evaluate individuals with MI or ID for NF level of
services. The relationship between NF level of services and NF level of
care is further discussed in the discussion of proposed Sec.
483.132(e).
Because many of the current requirements in this section were
incorporated in proposed Sec. Sec. 483.120 and 483.128, we propose to
remove all of the requirements in this section and replace them with
new language. We propose at Sec. 483.132(a) to describe the evaluation
for the most integrated setting appropriate for the individual. At
proposed Sec. 483.132(a)(1), we propose that for each NF applicant and
each NF resident who has MI or ID, the evaluator would assess whether
the individual has the option of placement in an HCBS program (and a
non-institutional placement is desired by the individual). At Sec.
483.132(a)(2), we propose that if the individual does not have the
option of community placement, or does not want community placement,
the evaluator would assess whether the individual's total needs are
such that they can be met only by admitting the individual on an
inpatient basis (as ``inpatient'' is defined in Sec. 440.2 of this
chapter). In that case, the evaluator would also have to assess whether
the NF (with or without specialized services) would be an appropriate
institutional setting for meeting those needs; or, if the NF would not
be the most appropriate setting for meeting the individual's needs,
whether another institutional setting would be an appropriate setting
for meeting those needs. Our proposed language is similar to the
current basic rule at Sec. 483.132(a), but we propose to restructure
it such that we would highlight more explicitly the expectation that
evaluators should review the individual's consideration of HCBS options
during the evaluation.
We propose a new requirement at Sec. 483.132(b) that would require
that the evaluator assess the individual's preferences for where the
individual may receive long term services and supports, including HCBS
and institutional care. We propose that this evaluation would include
confirming whether the individual and the individual's legal
representative, if applicable, have received information about the
types of long term care options available to the individual.
We propose a new requirement at Sec. 483.132(c) that would require
that for individuals for whom NF placement is identified as an
appropriate setting by the evaluator (resulting from the evaluations
performed under proposed Sec. 483.132(a) and (b)), the evaluator would
be required to assess what services for MI or ID the individual may
need that are offered as part of standard NF services, including
behavioral health services and specialized rehabilitative services
described at Sec. Sec. 483.40 and 483.65, respectively.
We propose a new requirement at Sec. 483.132(d) that would require
the data relied on in performing the evaluation to include the data
listed in proposed Sec. 483.128(e).
We propose a new requirement at Sec. 483.132(e) that would clarify
the relationship between NF level of services and NF level of care,
which is a set of criteria established by each state that an individual
must meet to be eligible for Medicaid coverage of services provided in
a NF. We propose to clarify that evaluations to determine whether an
individual meets the state's NF level of care criteria are not part of
the PASRR process. However, PASRR evaluators may ``look behind'' a
level of care determination to confirm that the individual has been
accurately assessed as meeting the state's NF level of care criteria,
and may consider that assessment in determining an individual's needs
for PASRR purposes. We note that Level II evaluators are charged with
ensuring that individuals with MI or ID are not improperly placed in
NFs simply because they have MI or ID (when other options preferred by
the individuals are available), and Level II evaluators may disagree
with the conclusions of a level of care assessment (so long as their
findings still abide by state-specific criteria for NF level of care).
19. Evaluating the Need for Specialized Services (Sec. 483.134)
Currently, Sec. 483.134 lists criteria for evaluating people with
MI for specialized services and Sec. 483.136 contains criteria for
evaluating people with ID for specialized services. Because many of the
requirements presented in this section were incorporated in our
proposed Sec. Sec. 483.120 and 483.128, we propose to remove
Sec. Sec. 483.134 and 483.136 in their entirety and replace them with
a single new Sec. 483.134, titled ``Evaluating the Need for
Specialized Services.''
We propose a new requirement at Sec. 483.134(a) that would provide
a basic rule for performing specialized services evaluations for NF
applicants with MI or ID who are recommended for NF placement per Sec.
483.132, and for NF residents with MI or ID. (Note that for NF
applicants, section 1919(b)(3)(F) of the Act makes the evaluation for
specialized services conditional on the outcome of the NF level of
services evaluation, while section 1919(e)(7)(B) of the Act requires NF
residents to receive both evaluations for NF level of services and
specialized services.) We propose at new Sec. 483.134(a)(1) that the
evaluator would be required to assess the individual's ability to
engage in activities of daily living and instrumental activities of
daily living. We propose at new Sec. 483.134(a)(2) that the evaluator
would then assess the level of support that would be needed to assist
the individual to perform these activities successfully in the NF or
while living in the community. We propose at new Sec. 483.134(a)(3)
that the evaluator would then evaluate the level of support needed by
the individual could be provided by standard NF services or whether
specialized services (as defined at proposed Sec. 483.120) were
required. We intend that the definition of specialized services we
propose in Sec. 483.120(a) would provide evaluators with additional
guidance as to what types of services should be considered as part of
this evaluation.
We propose a new requirement at Sec. 483.134(b) that would
indicate that if specialized services are already being provided to a
NF resident, the evaluator would assess whether the specialized
services included in the resident's care plan need to be modified. We
seek to encourage regular and meaningful
[[Page 10011]]
review of specialized services to ensure they continue to be effective
for the individual and meet the individual's needs.
We propose a new requirement at Sec. 483.134(c) that would
require, at a minimum, that the data relied on to perform an evaluation
for specialized services include the data listed in proposed Sec.
483.128(e).
20. Maintenance of Services and Availability of FFP (Sec. 483.138)
We are not proposing any changes to this section.
D. Part 483, Subpart E
1. Appeals of Discharges, Transfers and Preadmission Screening and
Resident Review Actions (Part 483, Subpart E).
The current title of part 483, subpart E is ``Appeals of
Discharges, Transfers and Preadmission Screening and Annual Resident
Review (PASARR) Determinations.'' We propose to change this title to
``Appeals of Discharges, Transfers, and Preadmission Screening and
Resident Review (PASRR) Actions'' in order to (1) remove the word
``annual'' from the title, for reasons we discuss previously, and (2)
change the word ``Determinations'' to ``Actions'' to broaden the scope
of appeals to include both Level I identification screening decisions
as well as Level II determinations.
2. Provision of a Hearing and Appeal System (Sec. 483.204)
Section 483.204 specifies individuals' ability to appeal PASRR
determinations. We propose at Sec. 483.204(a)(2) to change ``PASARR
determination'' to ``PASRR Level I screen or Level II determination.''
We propose to further streamline and update the regulation by removing
``in the context of preadmission screening and annual resident
review.'' We also propose to change ``appeal that determination'' to
``appeal that Level I screen or Level II determination.'' Our intent
with this proposal is to clarify individuals' right to appeal both
Level I screens (positive and negative identifications) as well as
Level II determinations.
III. PASRR Requirements Crosswalk
Table 1 notes the proposed changes to the regulations in part 483,
subpart C.
Table 1--Proposed Changes to Part 483, Subpart C
----------------------------------------------------------------------------------------------------------------
Existing CFR section Title Action New CFR section
----------------------------------------------------------------------------------------------------------------
Sec. 483.100....................... Basis.................. ....................... Sec. 483.100.
Sec. 483.100....................... Basis.................. Technical changes...... Sec. 483.100.
Sec. 483.102....................... Applicability and Revised................ Sec. 483.102.
definitions.
Sec. 483.102(a).................... (a) Applicability...... Technical changes...... Sec. 483.102(a).
Sec. 483.102(b).................... (b) Definitions........ ....................... Sec. 483.102(b).
Sec. 483.102(b)(1)................. (1) untitled........... Titled and revised..... Sec. 483.102(b)(1)
Mental illness.
Sec. 483.102(b)(2)................. (2) untitled........... Titled and revised..... Sec. 483.102(b)(2)
Dementia.
Sec. 483.102(b)(3)................. (3) untitled........... Titled and revised..... Sec. 483.102(b)(3)
Intellectual
disability.
n/a.................................. (c) Incorporation by Added.................. Sec. 483.102(c)(1)-
reference. (2).
Sec. 483.104....................... State plan requirement. ....................... Sec. 483.104.
Sec. 483.104....................... State plan requirement. Technical changes...... Sec. 483.104.
Sec. 483.106....................... Basic rule............. Retitled............... Sec. 483.106 Basic
rules and
responsibilities.
Sec. 483.106(a).................... (a) Requirement........ Removed................ n/a.
Sec. 483.106(b).................... (b) Admissions, Redesignated, retitled Sec. 483.112(b) Who
readmissions and inter- and revised. must receive Level II
facility transfers. preadmission
screening.
Sec. 483.106(b)(1)................. (1) New admissions..... Redesignated and Sec. 483.112(b)(1).
revised.
Sec. 483.106(b)(2)................. (2) Exempted hospital Redesignated and Sec. 483.112(b)(2).
discharge. revised.
Sec. 483.106(b)(3)................. (3) Readmissions....... Redesignated and Sec. 483.112(b)(4).
revised.
Sec. 483.106(b)(4)................. (4) Inter-facility Redesignated and Sec. 483.112(b)(5).
transfers. revised.
Sec. 483.106(c).................... (c) Purpose............ Redesignated........... Sec. 483.106(a).
n/a.................................. Requirement............ Added.................. Sec. 483.106(b).
n/a.................................. State Medicaid agency Added.................. Sec. 483.106(c)(1)-
responsibilities. (5).
Sec. 483.106(d).................... (d) Responsibility for Revised................ Sec. 483.106(d).
evaluation and
determinations.
Sec. 483.106(e).................... (e) Delegation of Revised................ Sec. 483.106(e).
responsibility.
Sec. 483.106(e)(1)................. (1) untitled........... Redesignated and Sec. 483.106(e).
revised.
Sec. 483.106(e)(1)(i).............. (i) untitled........... Redesignated and Sec. 483.106(e)(1).
revised.
Sec. 483.106(e)(1)(ii)............. (ii) untitled.......... Redesignated and Sec. 483.106(e)(2).
revised.
Sec. 483.106(e)(1)(iii)............ (iii) untitled......... Redesignated and Sec. 483.106(e)(3).
revised.
Sec. 483.106(e)(2)................. (2) untitled........... Removed................ n/a.
Sec. 483.106(e)(3)................. (3) untitled........... Removed................ n/a.
Sec. 483.108....................... Relationship of PASARR Retitled............... Sec. 483.108
to other Medicaid Relationship of PASRR
processes. to other Medicaid
processes.
Sec. 483.108(a).................... (a) untitled........... Technical changes...... Sec. 483.108(a).
Sec. 483.108(b).................... (b) untitled........... Revised................ Sec. 483.108(b).
Sec. 483.108(c).................... (c) untitled........... Revised................ Sec. 483.108(c).
Sec. 483.110....................... Out-of-State ....................... Sec. 483.110.
arrangements.
[[Page 10012]]
Sec. 483.110(a).................... (a) Basic rule......... Redesignated and title Sec. 483.110.
removed.
Sec. 483.110(b).................... (b) Agreements......... Removed................ n/a.
Sec. 483.112....................... Preadmission screening ....................... Sec. 483.112.
of applicants for
admission to NFs.
Sec. 483.112(a).................... (a) Determination of Removed................ n/a.
need for NF services.
Sec. 483.112(b).................... (b) Determination of Removed................ n/a.
need for specialized
services.
n/a.................................. Preadmission Level I... Added.................. Sec. 483.112(a).
n/a.................................. Provisional admissions. Added.................. Sec. 483.112(b)(3).
Sec. 483.112(c).................... (c) Timeliness......... Retitled and revised... Sec. 483.112(c)
Timeliness of
determinations.
Sec. 483.112(c)(1)................. (1) untitled........... Redesignated and Sec. 483.112(c).
revised.
Sec. 483.112(c)(2)................. (2) untitled........... Removed................ n/a.
Sec. 483.112(c)(3)................. (3) untitled........... Redesignated and Sec. 483.130(j)(3).
retititled.
Sec. 483.112(c)(4)................. (4) untitled........... Redesignated and Sec. 483.130(j)(4).
retitled.
Sec. 483.114....................... Annual review of NF Retitled............... Sec. 483.114 Review
residents. of NF residents.
Sec. 483.114(a).................... (a) Individuals with Removed................ n/a.
mental illness.
Sec. 483.114(b).................... (b) Individuals with Removed................ n/a.
intellectual
disability.
Sec. 483.114(c).................... (c) Frequency of review Removed................ n/a.
Sec. 483.114(d).................... (d) April 1, 1990 Removed................ n/a.
deadline for initial
review.
n/a.................................. Referral for resident Added.................. Sec. 483.114(a)(1)-
review. (4).
n/a.................................. Level II resident Added.................. Sec. 483.114(b)(1)-
review. (2).
n/a.................................. Timing for referral Added.................. Sec. 483.114(c)(1)-
from NF. (2).
n/a.................................. Timeliness of Added.................. Sec. 483.114(d).
determination.
n/a.................................. Resident review Added.................. Sec. 483.114(e).
determinations.
Sec. 483.116....................... Residents and ....................... Sec. 483.116.
applicants determined
to require NF level of
services.
Sec. 483.116(a).................... (a) Individuals needing No change.............. Sec. 483.116(a).
NF services.
Sec. 483.116(b).................... (b) Individuals needing Technical changes...... Sec. 483.116(b).
NF services and
specialized services.
Sec. 483.118....................... Residents and ....................... Sec. 483.118.
applicants determined
not to require NF
level of services.
Sec. 483.118(a).................... (a) Applicants who do No change.............. Sec. 483.118(a).
not require NF
services.
Sec. 483.118(b).................... (b) Residents who Technical changes...... Sec. 483.118(b).
require neither NF
services nor
specialized services
for MI or IID.
Sec. 483.118(c).................... (c) Residents who do Revised................ Sec. 483.118(c).
not require NF
services but require
specialized services
for MI or IID.
Sec. 483.120....................... Specialized services... Retitled............... Sec. 483.120
Specialized services
and NF services.
Sec. 483.120(a)(1)-(2)............. (a) Definition......... Revised................ Sec. 483.120(a)(1)-
(6).
Sec. 483.120(b).................... (b) Who must receive Retitled and revised... Sec. 483.120(b)
specialized services. Provision of
specialized services.
Sec. 483.120(c).................... (c) Services of lesser Retitled............... Sec. 483.120(c)
intensity. Provision of NF
services.
n/a.................................. Duplication with NF Added.................. Sec. 483.120(d).
services prohibited.
n/a.................................. Coordination with plan Added.................. Sec. 483.120(e).
of care.
n/a.................................. Coordination with other Added.................. Sec. 483.120(f).
program services.
Sec. 483.122....................... FFP for NF services.... ....................... Sec. 483.122.
Sec. 483.122(a).................... (a) Basic rule......... Revised................ Sec. 483.122(a).
Sec. 483.122(b).................... (b) FFP for late Technical changes...... Sec. 483.122(b).
reviews.
Sec. 483.124....................... FFP for specialized ....................... Sec. 483.124.
services.
Sec. 483.124....................... FFP for specialized Redesignated and Sec. 483.124(a)(1)-
services. revised. (2).
n/a.................................. Reserved............... Added.................. Sec. 483.124(b).
Sec. 483.126....................... Appropriate placement.. Retitled............... Sec. 483.126 Level I
identification
criteria.
Sec. 483.126....................... Untitled............... Removed................ n/a.
n/a.................................. Level I identification Added.................. Sec. 483.126(a).
of individuals with
possible MI or ID.
n/a.................................. Possible MI............ Added.................. Sec. 483.126(b)(1)-
(4).
n/a.................................. Possible ID............ Added.................. Sec. 483.126(c)(1)-
(3).
n/a.................................. Personnel.............. Added.................. Sec. 483.126(d).
n/a.................................. Data................... Added.................. Sec. 483.126(e).
n/a.................................. Referral after positive Added.................. Sec. 483.126(f).
identification.
[[Page 10013]]
Sec. 483.128(a).................... (a) Level I: Retitled, redesignated Sec. 483.126(g)
Identification of and revised. Documentation of
individuals with MI or completed
IID. identification screen.
Sec. 483.128(b).................... (b) Adaptation to Redesignated and Sec. 483.106(f).
culture, language, revised.
ethnic origin.
Sec. 483.128(c).................... (c) Participation by Removed................ n/a.
individual and family.
n/a.................................. Purpose................ Added.................. Sec. 483.128(a)(1)-
(2).
n/a.................................. Personnel.............. Added.................. Sec. 483.128(b)(1)-
(2).
Sec. 483.128(d).................... (d) Interdisciplinary Redesignated and Sec. 483.128(c).
coordination. technical changes.
Sec. 483.128(e).................... (e) untitled........... Removed................ n/a.
Sec. 483.128(f).................... (f) Data............... Removed................ n/a.
n/a.................................. Data to confirm Level I Added.................. Sec. 483.128(d)(1)-
identification or (2).
significant change.
n/a.................................. Data for evaluations Added.................. Sec. 483.128(e)(1)-
needed for NF level of (10).
services and
specialized services.
n/a.................................. Face-to-face interviews Added.................. Sec. 483.128(f).
Sec. 483.128(g).................... (g) Preexisting data... Technical changes...... Sec. 483.128(g).
Sec. 483.128(h).................... (h) Findings........... Technical changes...... Sec. 483.128(h).
Sec. 483.128(i)(1)-(6)............. (i) Evaluation report: Retitled and technical Sec. 483.128(i)
Individualized changes. Evaluation report.
determinations.
Sec. 483.128(j)(1)-(4)............. (j) Evaluation report: Retitled and revised... Sec. 483.128(j)
Categorical Evaluation report:
determinations. Terminated
evaluations.
Sec. 483.128(k).................... (k) Interpretation of Technical changes...... Sec. 483.128(k).
findings to individual.
Sec. 483.128(l)(1) through (5)..... (l) Evaluation report.. Retitled and revised... Sec. 483.128(l)
Evaluation report
submission.
Sec. 483.128(m)(1) through (2)..... (m) untitled........... Titled and revised..... Sec. 483.128(m)
Termination before
evaluations for NF and
specialized services.
Sec. 483.130....................... PASARR determination Retitled............... Sec. 483.130 Level II
criteria. PASRR determination
criteria.
Sec. 483.130(a).................... (a) Basis for Technical changes...... Sec. 483.130(a).
determinations.
n/a.................................. Personnel.............. Added.................. Sec. 483.130(b).
n/a.................................. Determination of need Added.................. Sec. 483.130(c)(1)-
for NF level of (3).
services.
n/a.................................. Determination of need Added.................. Sec. 483.130(d).
for specialized
services.
Sec. 483.130(b).................... (b) Types of Removed................ n/a.
determinations.
Sec. 483.130(c).................... (c) Group Removed................ n/a.
determinations by
category.
Sec. 483.130(d).................... (d) Examples of Removed................ n/a.
categories.
Sec. 483.130(e).................... (e) Time limits........ Removed................ n/a.
Sec. 483.130(f).................... (f) untitled........... Removed................ n/a.
Sec. 483.130(g).................... (g) Categorical Removed................ n/a.
determinations: No
positive specialized
treatment
determinations.
Sec. 483.130(h).................... (h) Categorical Removed................ n/a.
determinations:
Dementia and IID.
Sec. 483.130(i).................... (i) untitled........... Removed................ n/a.
Sec. 483.130(j).................... (j) Recording Redesignated and Sec. 483.130(e).
determinations. technical changes.
Sec. 483.130(k).................... (k) Notice of Redesignated and Sec. 483.130(f).
determination. revised.
Sec. 483.130(l).................... (l) Contents of notice. Redesignated and Sec. 483.130(g).
revised.
Sec. 483.130(m).................... (m) Placement options.. Removed................ n/a.
Sec. 483.130(n).................... (n) Specialized Removed................ n/a.
services needed in a
NF.
Sec. 483.130(o).................... (o) Record retention... Redesignated and Sec. 483.130(h).
technical changes.
Sec. 483.130(p).................... (p) Tracking system.... Redesignated and Sec. 483.130(i).
technical changes.
n/a.................................. Reporting.............. Added.................. Sec. 483.130(j)(1)-
(4).
Sec. 483.132....................... Evaluating the need for Retitled............... Sec. 483.132
NF services and NF Evaluating the need
level of care (PASARR/ for NF level of
NF). services.
Sec. 483.132(a).................... (a) Basic rule......... Removed................ n/a.
[[Page 10014]]
Sec. 483.132(b).................... (b) Determining Removed................ n/a.
appropriate placement.
Sec. 483.132(c).................... (c) Data............... Removed................ n/a.
Sec. 483.132(d).................... (d) untitled........... Removed................ n/a.
n/a.................................. Evaluation for Added.................. Sec. 483.132(a)(1)-
appropriate settings. (2).
n/a.................................. Evaluation of Added.................. Sec. 483.132(b).
preferences.
n/a.................................. Evaluation for NF Added.................. Sec. 483.132(c).
services.
n/a.................................. Data................... Added.................. Sec. 483.132(d).
n/a.................................. Relationship to NF Added.................. Sec. 483.132(e).
level of care.
Sec. 483.134....................... Evaluating whether an Retitled............... Sec. 483.134
individual with mental Evaluating whether an
illness requires individual requires
specialized services specialized services.
(PASARR/MI).
Sec. 483.134(a).................... (a) Purpose............ Removed................ n/a.
Sec. 483.134(b).................... (b) Data............... Removed................ n/a.
Sec. 483.134(c).................... (c) Personnel Removed................ n/a.
requirements.
Sec. 483.134(d).................... (d) Data interpretation Removed................ n/a.
n/a.................................. Basic rule............. Added.................. Sec. 483.134(a)(1)-
(3).
n/a.................................. Review of specialized Added.................. Sec. 483.134(b).
services.
n/a.................................. Data................... Added.................. Sec. 483.134(c).
Sec. 483.136....................... Evaluating whether an Removed................ n/a.
individual with
intellectual
disability requires
specialized services
(PASARR/IID).
Sec. 483.136(a).................... (a) Purpose............ Removed................ n/a.
Sec. 483.136(b).................... (b) Data............... Removed................ n/a.
Sec. 483.136(c).................... (c) Data interpretation Removed................ n/a.
Sec. 483.138....................... Maintenance of services ....................... Sec. 483.138.
and availability of
FFP.
Sec. 483.138(a).................... (a) Maintenance of No change.............. Sec. 483.138(a).
services.
Sec. 483.138(b).................... (b) Availability of FFP No change.............. Sec. 483.138(b).
----------------------------------------------------------------------------------------------------------------
IV. Collection of Information Requirements
Consistent with our implementing PASARR regulation (November 30,
1992; 57 FR 56504) section 4214(d) of OBRA '87 exempts this rule's
proposed nursing home reform amendments from the requirements of the
Paperwork Reduction Act of 1995 (44 U.S.C. Chapter 35). In this regard,
Office of Management and Budget review under the authority of the PRA
is not applicable. The projected costs and savings of this proposed
rule are discussed in the Regulatory Impact Analysis section of this
proposed rule.
V. Response to Comments
Because of the large number of public comments we normally receive
on Federal Register documents, we are not able to acknowledge or
respond to them individually. We will consider all comments we receive
by the date and time specified in the DATES section of this preamble,
and, when we proceed with a subsequent document, we will respond to the
comments in the preamble to that document.
VI. Regulatory Impact Analysis
A. Statement of Need
This proposed rule intends to modernize the requirements for
Preadmission Screening and Resident Review (PASRR), currently referred
to in the regulation as Preadmission Screening and Annual Resident
Review. PASRR proposes to incorporate statutory changes, which reflects
updates to diagnostic criteria for mental illness and intellectual
disability. It will also reduce duplicative requirements and other
administrative burdens on state PASRR programs, and makes the process
more streamlined and person-centered.
B. Overall Impact
We have examined the impacts of this proposed rule as required by
Executive Order 12866 on Regulatory Planning and Review (September 30,
1993), Executive Order 13563 on Improving Regulation and Regulatory
Review (January 18, 2011), the Regulatory Flexibility Act (Pub. L. 96-
354, enacted on September 19, 1980) (RFA), section 1102(b) of the Act,
section 202 of the Unfunded Mandates Reform Act of 1995 (Pub. L. 104-4,
enacted on March 22, 1995) (UMRA), Executive Order 13132 on Federalism
(August 4, 1999), and Executive Order 13771 on Reducing Regulation and
Controlling Regulatory Costs (January 30, 2017).
Executive Orders 12866 and 13563 direct agencies to assess all
costs and benefits of available regulatory alternatives and, if
regulation is necessary, to select regulatory approaches that maximize
net benefits (including potential economic, environmental, public
health and safety effects, distributive impacts, and equity). Section
3(f) of Executive Order 12866 defines a ``significant regulatory
action'' as an action that is likely to result in a rule: (1) Having an
annual effect on the economy of $100 million or more in any 1 year, or
adversely and materially affecting a sector of the economy,
productivity, competition, jobs, the environment, public health or
safety, or state, local or tribal governments or communities (also
referred to as ``economically significant''); (2) creating a serious
inconsistency or otherwise interfering with an action taken or planned
by another agency; (3) materially altering the budgetary impacts of
entitlement grants, user fees, or loan programs or the rights and
obligations of recipients thereof; or (4) raising novel legal or policy
issues arising out of legal mandates, the President's priorities, or
the principles set forth in the Executive Order.
C. Anticipated Effects
As discussed in the Collection of Information section of this
proposed rule, the proposed collections of information in this rule are
exempt from Paperwork Reduction Act. However, we will identify here the
estimated costs and savings associated with this proposed rule.
[[Page 10015]]
1. Wage Estimates
To derive average costs for this estimate, we used data from the
U.S. Bureau of Labor Statistics' May 2018 National Occupational
Employment and Wage Estimates for all salary estimates (http://www.bls.gov/oes/current/oes_nat.htm). In this regard, Table 2 presents
the mean hourly wage, the cost of fringe benefits and overhead
(calculated at 100 percent of salary), and the adjusted hourly wage.
Table 2--National Occupational Employment and Wage Estimates
----------------------------------------------------------------------------------------------------------------
Fringe
Occupation Mean hourly benefits and Adjusted
Occupation title code wage ($/hr) overhead ($/ hourly wage ($/
hr) hr)
----------------------------------------------------------------------------------------------------------------
Social and Community Services Managers.......... 11-9151 34.46 34.46 68.92
Healthcare Social Worker........................ 21-1022 28.11 28.11 56.22
Registered Nurse................................ 29-1141 36.30 36.30 72.60
----------------------------------------------------------------------------------------------------------------
As indicated, we are adjusting our employee hourly wage estimates
by a factor of 100 percent. This is necessarily a rough adjustment,
both because fringe benefits and overhead costs vary significantly from
employer to employer, and because methods of estimating these costs
vary widely from study to study. Nonetheless, we believe that doubling
the hourly wage to estimate total cost is a reasonably accurate
estimation method.
2. Minimum Data Set Data
Unless otherwise noted, numbers drawn from the Minimum Data Set
(MDS) were generated from internal analysis of MDS data reported to CMS
by NFs.
3. Estimated Costs of the Proposed Regulations
Note that all of states' costs associated with the proposed
regulation changes would be considered administrative costs related to
administering PASRR and eligible for 75 percent FFP per Sec.
433.15(b)(9).
a. Updated Terminology, Definition and Data Collection (Sec. Sec.
483.102, 483.128, 483.132, 483.134)
We are proposing to replace the name ``Preadmission Screening and
Annual Resident Review'' with ``Preadmission Screening and Resident
Review'' in the regulation, to reflect the fact that the statutory
obligation of ``annual'' Resident Review was removed from section
1919(e)(7)(B) of the Act in 1996. It is our understanding that most
states have already updated their program materials to reflect the
statutory requirement. For states that do retain references to
``PASARR'' in their documents, we presume the states would make that
change while making other updates to program documents, and that the
cost would be absorbed into the cost estimates calculated in the next
paragraph.
In Sec. 483.102(b), we propose to update the definitions of MI,
dementia, and ID, as well as update the diagnostic manuals that would
be used to identify these conditions. Currently, Sec. 483.102(b)(1)
and (2) requires that clinicians use the DSM-III-R when identifying MI
and dementia; we propose that clinicians would use the most current
edition of the DSM, the DSM-5. Currently, Sec. 483.102(b)(3) also
requires use of an outdated diagnostic manual for the identification of
ID; we propose that clinicians instead would use the most current
edition of the American Association on Intellectual and Developmental
Disabilities' manual, ``Intellectual Disability: Definition,
Classification, and Systems of Support, 11th edition''. It is our
understanding that most clinicians are already using the most current
versions of diagnostic manuals when identifying MI, dementia, and ID,
and have been performing a crosswalk between the current manuals and
those included at Sec. 483.102. We believe that no longer having to
perform this crosswalk would reduce burden on clinicians. Making this
update, however, may require that PASRR programs make updates to some
of their program materials where they have retained references to the
outdated manuals. We also propose at Sec. Sec. 483.128, 483.132 and
483.134 to consolidate and simplify the data that must be collected
from individuals as part of the Level II evaluation process.
We do not provide or prescribe specific program materials or forms
for the Level I identification screen and the Level II evaluation and
determinations (that is, states develop their own documents). We
presume that these proposed updates described above would necessitate
revisions to states' internal program documents and Level I and II
PASRR documents.
We note that we maintain a technical contract (the PASRR Technical
Assistance Center) that is a free resource to states, and would be
available to provide assistance with helping state PASRR programs align
documents with changes to federal PASRR requirements once they are
finalized. Assuming states take advantage of this free resource, we
estimate it would take 16 hours at $68.92/hr for a social and community
services manager to review and update the program materials. Including
the state PASRR programs of all 50 states and the District of Columbia
performing this activity, we estimate a one-time burden of 816 hours
(51 programs x 16 hr) at a cost of $56,239 (816 hr x $68.92/hr).
b. Preadmission Screening of NF Applicants: Exempted Hospital Discharge
(Sec. 483.112)
We propose in Sec. 483.112 to clarify that all individuals,
including those who qualify for an exemption from Level II Preadmission
Screening under the exempted hospital discharge would still receive a
Level I identification screen. (See discussion of Sec. 483.112 for
information on the exempted hospital discharge and this proposed
clarification.) The current regulations do not prohibit such
individuals from receiving Level I identification screens, and it is
our understanding that at least 15 of the 51 states and District of
Columbia (29 percent of state PASRR programs) already do perform Level
I identification screens or collect some other kind of preadmission
documentation for these individuals.\2\ We believe that our proposed
change to Sec. 483.112 would not significantly impact these states; we
provide here an estimate of the cost impact on the states that may not
currently be collecting preadmission documentation from individuals
being admitted to NFs under an exempted hospital discharge.
---------------------------------------------------------------------------
\2\ PASRR Technical Assistance Center, ``Revised 2017 National
PASRR,'' May 2018. Available at https://www.medicaid.gov/medicaid/ltss/downloads/institutional/2017-pasrr-national-report.pdf. Last
accessed: August 27, 2019. Data taken from page 7, showing that 15
states reported they collect data on admissions of people with
exempted hospital discharges.
---------------------------------------------------------------------------
[[Page 10016]]
Using nursing home data collected as part of the MDS we estimate
that there were 2,998,840 individuals admitted to NFs from acute care
hospitals nationwide in 2016. A portion of these individuals would have
been eligible for an exempted hospital discharge. We reduce the total
number of these admissions from acute care hospitals by 29 percent, to
2,129,176 because, as previously mentioned, 29 percent of states
collect preadmission documentation from exempted hospital discharges.
This leaves 2,129,176 individuals potentially admitted to a NF under an
exempted hospital discharge without a Level I identification screen or
other collection of preadmission documentation.
MDS data indicates that 56 percent of individuals admitted to a NF
from an acute care hospital will end up staying in the NF for more than
30 days (at which point these individuals would be required to receive
a Level I identification screen under current rules at Sec.
483.106(b)(2)(ii)). This means that 1,192,338 individuals (2,129,176
individuals x 0.56) would still have required a Level I identification
screen performed post-admission. Under our proposed rule at Sec.
483.112(b), performing all Level I identification screens preadmission
would obviate the need for a post-admission Level I identification
screen. Thus, these 1,192,338 individuals would not represent a new
cost to state PASRR programs resulting from this proposed rule because
they would have received a Level I identification screen under the
current regulations.
We then presume that the 44 percent of residents discharged before
30 days may have been eligible for an exempted hospital discharge and
would not have received a Level I identification screen either before
or after admission. This would mean that 936,837 individuals (2,129,176
individuals x 0.44) a year who might not otherwise have received a
Level I identification screen would now receive a screen under our
proposed revisions. (We believe this number is on the high end. We are
assuming here that all individuals admitted from an acute care hospital
qualified for an exempted hospital discharge, even though many of these
individuals may have not qualified and thus received a Level I
identification screen prior to admission.)
It is our experience that the Level I identification screens take
0.25 hours at $56.22/hr for a hospital discharge planner (who are often
social workers) to complete. With one Level I identification screen
being performed for 936,837 individuals, we estimate an ongoing annual
burden of 234,209 hours (936,837 screens x 0.25 hr/screen) at a cost of
$13,167,244 (234,209 hr x $56.22/hr) to complete the Level I
identification screens.
Additionally, both current and proposed regulations require that
only positive Level I identification screens would be forwarded to
PASRR programs for tracking purposes. According to MDS data, roughly 7
percent of people who are admitted to NFs are identified as having MI
or ID, which means that of the 936,837 potential additional Level I
identification screens, 65,578 (936,837 screens x 0.07) of the Level I
identification screens may be forwarded to the PASRR programs by the
Level I screeners. We estimate it would take 6 minutes (0.1 hr) at
$68.92/hr for a community and social services manager to review and
process the completed form. In aggregate we estimate an ongoing annual
burden of 6,558 hours (65,578 screens x 0.1 hr/screen) at a cost of
$451,967 (6,558 x $68.92/hr) for processing the additional positive
Level I identification screens.
c. Reporting on Timeliness (Sec. 483.130(j)(1))
Each state's PASRR program is currently required to comply with the
requirements at Sec. 483.112(c)(1) which specify that preadmission
screening must be completed within an average of 7-9 working days, and
requirements at Sec. 483.106(b)(2)(ii) which specify that Resident
Reviews for expired exempted hospital discharges be completed within 40
days of admission. State PASRR programs should already be tracking
their completion rates to ensure compliance with these requirements. To
ensure better oversight of compliance with the timeliness standards, we
propose new language at Sec. 483.130(j)(1) which would require that
the state report to the Secretary on an annual basis the annual
averages for the completion of determinations.
In calculating the cost of this reporting, we assume that states'
PASRR programs already have in place an effective means to track
timeliness, as they are already expected under current regulations at
Sec. 483.112(c) to comply with timeliness requirements. The reporting
would require the SMHA and SIDA to cooperate with the state Medicaid
agency (SMA) by providing data to the SMA, which would be responsible
for reporting the data to the Secretary. We anticipate that the staff
in each of the SMHA, SIDA, and SMA would be of comparable positions and
salaries, namely social and community service managers with an adjusted
wage of $68.92/hr. We estimate that in both the SMHA and the SIDA,
staff would each require 1 hour to generate, review and submit the data
to the SMA. We also estimate that the SMA staff would require 1 hour to
assemble the reported data and submit a report electronically to CMS,
using a CMS-generated template. This is a total of 3 hours (1 hr SMHA +
1 hr SIDA + 1 hr SMA). We expect that all 50 states and the District of
Columbia would submit timeliness annual reports, for an ongoing annual
burden of 153 hours (3 hr x 51 respondents) at a cost of $10,545 (153
hr x $68.92/hr).
d. Reporting on Dispositions (Sec. 483.130(j)(2))
Section 1919(e)(7)(C)(iv) of the Act requires that each state
report annually to the Secretary the number and disposition of
individuals who are discharged from NFs because they have been
determined by the PASRR program to no longer needed NF level of
services (but still needed specialized services) and individuals who
are discharged from NFs because they were determined by the PASRR
program to no longer need NF level of services or specialized services.
We have not previously issued robust guidance on how to comply with
this statutory requirement or what kind of information relating to
discharge should be reported. This rule proposes new language at Sec.
483.130(j)(2) which would clarify that states must report annually on
the number of people with MI or ID who are diverted or discharged from
NFs each year because the PASRR program has determined that the
individual:
Does not meet, or no longer meets, the state's criteria
for NF level of care,
Requires the level of services offered in another
institutional setting; or
Elects to receive services in a non-institutional setting.
This rule proposes to include reporting on both diversion for
applicants and discharge for residents, as we believe the intent of
this statutory reporting requirement was to demonstrate efficacy of the
PASRR process. The proposed requirement is designed to more effectively
implement section 1919(e)(7)(C)(iv) of the Act, thus providing better
insight into whether PASRR programs are fulfilling the statutory goals
of avoiding unnecessary NF placements.
Since states do not consistently report on the outcomes for
applicants and residents, we are using data collected on NF residents
as part of the MDS to approximate the time that would be spent
gathering this data. In 2016, approximately 62,000 individuals with
[[Page 10017]]
PASRR-level MI or ID in all 50 states and the District of Columbia were
discharged from Medicaid-certified NFs into one of the settings we
contemplate would be reportable under proposed Sec. 483.130(j)(2)
(community, psychiatric hospital or intermediate care facility for
individuals with intellectual disabilities). We note here that the
following cost estimates presumes that all 62,000 PASRR-identified
individuals discharged from NFs in a year were discharged as a result
of a PASRR determination. The MDS data does not indicate how many of
these individuals were discharged as a result of PASRR program
intervention; some portion of these individuals will have been
discharged for reasons unrelated to the PASRR program's determination
and thus would not be subject to the proposed reporting requirement.
Thus, our cost estimates related to this proposal will be on the high
end. However, in the absence of more precise data, we will use the
figure 62,000 discharged individuals for our time and cost estimates.
We assume that in order to confirm the recommended discharge has
occurred, NFs may need to send confirmation of the discharges of PASRR-
identified individuals directly to the state PASRR program by a method
identified by the state. It is our understanding that in many NFs a
social worker is tasked with PASRR-related duties, taking approximately
6 minutes (0.1 hr) at $56.22/hr per discharged individual. In aggregate
we estimate an ongoing annual burden of 6,200 hours (0.1 hr x 62,000
discharges) at a cost of $348,564 (6,200 hr x $56.22/hr) for all NFs to
report to their respective state PASRR programs the discharge outcome
for PASRR-identified individuals.
Additionally, we estimate that state PASRR program staff would need
to enter this information from NFs into the PASRR program's tracking
system. Per each discharged individual we estimate it would take 6
minutes (0.1 hr) at $68.92/hr for a social and community services
manager to perform this task. In aggregate, we estimate an ongoing
annual burden of 6,200 hours (0.1 hr x 62,000 discharges) at a cost of
$427,304 (6,200 hr x $68.92/hr).
We also estimate it would take 1 hour at $68.92/hr for a social and
community services manager to assemble this data into a report and
submit it to CMS. We anticipate that this report will be submitted
electronically to CMS via a CMS-developed template and we do not
estimate additional materials costs to states. In aggregate, we
estimate an ongoing annual burden of 51 hours (51 respondents x 1 hr/
response) at a cost of $3,515 (51 hr x $68.92/hr).
4 Estimated Savings of the Proposed Rule
a. Changes to State Plan Requirements (Sec. 483.104)
Section 483.104 requires that states have a PASRR program as a
condition of approval of the Medicaid State Plan. Currently in the
Medicaid State Plan, states provide an assurance that they have a PASRR
program on plan page 4.39. This page is a preprint created by CMS that
contains boilerplate language regarding PASRR requirements and does not
require states to provide additional information. As a result of this
proposed rule, page 4.39 of the Medicaid State Plan would be revised by
CMS. It was issued in 1993 and contains obsolete references to
``Preadmission Screening and Annual Resident Review.'' In this proposed
rule we propose to remove ``annual'' before ``Resident Review,'' and
replace the acronym ``PASARR'' with ``PASRR,'' to reflect the statutory
change made in 1996 (by Pub. L. 104-315) that removed the ``annual''
requirement for Resident Review. Page 4.39 would also be impacted by
our proposal to remove categorical determination requirements (as
discussed in Sec. 483.130 of this rule), so we would need to remove
references to that requirement. Because the page simply contains
boilerplate language and does not require the state to provide
additional information, we do not believe it would be administratively
efficient to require states to go through the State Plan Amendment
(SPA) process to affirm the updated preprint. Rather, as page 4.39
(which is currently paper-based) is slated to be included in CMS'
transition of the Medicaid State Plan to an electronic format (MACPro),
we propose to make the necessary updates when page 4.39 is added to
MACPro (CMS-10434, OMB control number: 0938-1188) as part of the
routine business of that transition. No action would be required of
states, aside from receiving electronic notice of the updated page.
However, by proposing to eliminate categorical determinations (as
is discussed in Sec. 483.130 of this proposed rule), we would
eliminate the requirement for states to submit an attachment to page
4.39 describing the categorical determinations that they apply in their
program. States are not required to update this page on a regular
schedule, but rather submit updates via the SPA process whenever
changes are made to their program. All 50 states and the District of
Columbia have a PASRR program, and almost all of these programs have
made updates to these attachments since the PASRR requirements were
originally issued. We estimate that revising the attachment to page
4.39 takes 4 hours at $68.92/hr for a social and community service
manager to generate and submit their state's 4.39 page attachment to
CMS for approval. Since this rule proposes to remove the requirement
for the attachment, we estimate a one-time savings of 204 hours (1 SPA
x 4hr/response x 51 programs). This amounts to a one-time savings of
$14,060 (204hr x $68.92/hr).
b. Provisional Admissions (Sec. 483.102(b)(3))
We propose in Sec. 483.112(b)(3) to eliminate the need for Level
II Preadmission Screening of individuals who are admitted to NFs as a
``provisional admission'' meaning the individual was admitted with
delirium or as part for emergency, respite, or convalescent reasons.
Under current regulations at Sec. 483.130(d), these individuals would
be required to receive a Level II categorical determination.
While we do not collect information from state PASRR programs on
the number of categorical determinations they perform in a year, MDS
data suggests that about 7 percent of NF residents are identified as
having MI or ID for PASRR purposes. We estimate that there are
3,748,550 new admissions to NFs each year (from both acute care
hospitals and other settings), of which roughly 7 percent or 262,399
individuals (3,748,550 new admissions x 0.07) may be identified as
having MI or ID necessitating a Level II screen. Of those individuals,
we further estimate that half of these individuals, or 131,200
individuals (262,399/2) would be eligible for a provisional admission
who would have previously been required to receive a Level II
categorical determination prior to admission.
Anecdotal evidence suggests that categorical determinations take 2
hours at $72.60/hr for a registered nurse to complete the Level II
categorical determination and communication the information to the
admitting NF. In aggregate we estimate an annual savings of 262,400
hours (2 hr x 131,200) and $19,050,240 (262,400 hr x $72.60/hr).
c. Terminating Evaluations (Sec. 483.128)
We propose to revise the language at Sec. 483.128(m), which
specifies when evaluators may terminate evaluations. We propose to
expand on the number of conditions under which an evaluation could be
terminated. The current Sec. 483.128(m) allows evaluators to
[[Page 10018]]
terminate the evaluation if: (1) The evaluator finds that the
individual being evaluated does not have MI or ID within the definition
of proposed Sec. 483.102 or (2) the individual has MI but also has
primary dementia. We propose to revise Sec. 483.128(m) to indicate the
evaluations may be terminated without further evaluation of the need
for NF level of services or specialized services if the evaluator finds
that the individual being evaluated (1) does not have MI or ID within
the definition of Sec. 483.102; (2) has not experienced a qualifying
significant change in physical or mental condition as defined in
proposed Sec. 483.114(b)(2); or (3) has a severe physical illness
(such as ventilator dependency; advanced Parkinson's disease,
Huntington's disease, amyotrophic lateral sclerosis; or is comatose or
functioning at a brain stem level), terminal illness; or advanced
dementia (as defined in Sec. 483.102(b)(2) which results in a level of
impairment so severe that the individual could not be effectively
evaluated for the need for NF level of services and specialized
services.
The first condition of our proposed change to Sec. 483.128(m)
mirrors the current regulation (allowing evaluators to terminate an
evaluation if the individual does not have MI or ID.) The second
proposed condition (the individual did not experience a qualifying
significant change in physical or mental condition) is intended to
memorialize what we believe to be current practice among PASRR
programs. We do not expect this part of our proposed change to Sec.
483.128(m) to have an impact on PASRR program expenditures.
The list of physical and neurocognitive conditions that we propose
in Sec. 483.128(m) would replace the current categorical
determinations criteria in current Sec. 483.130(d) and (h). Under the
current regulations, categorical determinations function as expedited
determinations for people with certain conditions. As discussed in the
narrative above, we consider the current framework of categorical
determinations to add unnecessary complexity to the PASRR process and
propose to eliminate categorical determinations. We propose to expand
the number of conditions under which a Level II evaluation may be
terminated in order to retain the principle that evaluations should not
be performed needlessly on individuals who, as a result of severe
physical illness or cognitive impairment, cannot participate in the
evaluations (and would not be expected to benefit from specialized
services.)
We believe this proposal would reduce costs for PASRR programs.
Because there is great variability among states' current use of
categorical determinations for NF applicants with severe illness,
terminal illness, and co-occurring ID/dementia, we cannot estimate the
exact impact of this proposal. For states with a robust or highly
expedited system of categorical determinations, we expect that
terminating an evaluation for people with severe physical illness,
terminal illness, or co-occurring ID/dementia would require comparable
effort as performing the categorical determination for those same
individuals. For states that do not use categorical determinations--
meaning that NF applicants with severe physical illness, terminal
illness and co-occurring ID/dementia receive complete Level II
evaluations and determinations--we expect the savings to be greater,
since those state PASRR programs would not need to perform as many
comprehensive Level II evaluations for these individuals. We welcome
public comment on the potential costs and savings associated with this
proposal.
d. Telehealth (Sec. 483.128)
We propose at Sec. 483.128(f) that, for evaluations that would
otherwise need to be conducted face-to-face, telehealth evaluations may
be performed if conducting a face-to-face interview would, due to
resource limitations, geographical distances, or other circumstances,
prevent timely completion of the PASRR Level II evaluation and
determination process. We believe this proposal would present a cost
savings for PASRR programs. Using telehealth technologies in states
with large geographical areas, for instance, would likely be less
expensive than paying for the time and travel costs for staff who would
otherwise need to travel long distances to reach NF applicants and
residents.
We cannot estimate the cost savings that would result from this
proposal because we expect that implementation of this proposal would
vary greatly among the states. Some states have already begun piloting
telehealth technologies in their PASRR programs, so will not incur new
cost savings as a result of this proposed regulation. Many states may
be able to fulfill all of their evaluation obligations without needing
telehealth technology and will not be impacted by this proposal. Of the
states that might choose to decide to use telehealth technologies as a
result of this proposal, the technologies that they use and the
associated costs or savings will vary, as will the number of
individuals reached via telehealth. We would note that the use of
telehealth is not proposed as a requirement, but rather presented as an
option for states to explore if the states individually determine that
using telehealth technology would provide them with cost savings or
other meaningful benefit. We welcome public comment on the potential
costs and savings associated with this proposal.
5. Summary of Estimated Costs and Savings
Table 3--Estimated Costs and Savings
----------------------------------------------------------------------------------------------------------------
Total estimated annual Total estimated annual
Provision under Title 42 of the CFR Responsible entity cost savings
----------------------------------------------------------------------------------------------------------------
Sec. Sec. 483.102, 483.128, State PASRR programs... $56,239 (one-time).....
483.132, 483.134--Updating PASRR
Level I and Level II forms.
Sec. 483.112--Level Is for exempted State's designated $13,167,244 (ongoing)..
hospital discharges performed Level I entities.
preadmission.
Sec. 483.112--PASRR programs State PASRR programs... $451,957 (ongoing).....
processing Level Is for exempted
hospital discharges.
Sec. 483.130(j)(i)--Reporting on State PASRR programs... $10,545 (ongoing)......
timeliness.
Sec. 483.130(j)(ii)--Reporting on NFs.................... $348,564 (ongoing).....
dispositions to PASRR program.
Sec. 483.130(j)(ii)--Collecting State PASRR programs... $427,304 (ongoing).....
information on dispositions.
Sec. 483.130(j)(ii)--Reporting on State PASRR programs... $3,515 (ongoing).......
dispositions to CMS.
[[Page 10019]]
Sec. 483104--State Plan changes.... State PASRR programs... ....................... ($14,060) (one-time).
Sec. 483.112--Provisional State PASRR programs... ....................... ($19,050,240)
admissions. (ongoing).
-------------------------------------------------
Total............................ ....................... $14,465,378............ ($19,064,300).
Net costs/savings (Year 1)... ....................... ....................... ($4,598,922).
Net costs/savings (ongoing).. ....................... ....................... ($4,641,101).
----------------------------------------------------------------------------------------------------------------
The Regulatory Flexibility Act (RFA) requires agencies to analyze
options for regulatory relief of small entities, if a rule has a
significant economic impact on a substantial number of small entities.
For purposes of the RFA, we estimate that many NFs are small entities
as that term is used in the RFA (including small businesses, nonprofit
organizations, and small governmental jurisdictions). Many nursing
facilities and hospitals are small entities, either by being nonprofit
organizations or by meeting the Small Business Administration's (SBA)
definition of a small business having revenues of less than $25.5
million in any 1 year (see the SBA's website at http://www.sba.gov/content/small-business-size-standards). However, while NFs would be
subject to the proposed rule, we do not believe this proposed rule will
have a significant economic impact on a substantial number of small
entities. As noted above, the estimated total impact on NFs as a result
of this rule is projected at an annual cost of $348,564, resulting from
the proposed requirement that NFs confirm with state PASRR programs
when PASRR-identified residents are discharged from the after the PASRR
program has determined the resident no longer needs NF services. As
noted in the analysis of this proposed cost, we believe the estimate of
$348,564 to NFs is on the high end. (See discussion in the section on
Estimated Costs of the Proposed Rule, above.) This total cost would be
distributed among nearly 15,000 NFs. (According to recent data, there
are 14,524 dually-certified nursing homes and 354 Medicaid-only nursing
homes, all of which would be subject to PASRR requirements and would
share in the total estimated annual costs associated with this proposed
rule.) Because the Secretary certifies that rule will not, if
promulgated, have a significant economic impact on a substantial number
of small entities, a regulatory flexibility analysis is not required.
In addition, section 1102(b) of the Social Security Act requires us
to prepare a regulatory impact analysis if a rule may have a
significant impact on the operations of a substantial number of small
rural hospitals. This analysis must conform to the provisions of
section 603 of the RFA. For purposes of section 1102(b) of the Act, we
define a small rural hospital as a hospital that is located outside of
a metropolitan statistical area and has fewer than 100 beds. This rule
will not have a significant impact on the operations of a substantial
number of small rural hospitals.
Section 202 of the Unfunded Mandates Reform Act of 1995 (UMRA) also
requires that agencies assess anticipated costs and benefits before
issuing any rule whose mandates require spending in any 1 year of $100
million in 1995 dollars, updated annually for inflation. In 2020, that
threshold is approximately $156 million. This rule does not contain
mandates that will impose spending costs on state, local, or tribal
governments in the aggregate, or by the private sector, in excess of
the threshold.
Executive Order 13132 establishes certain requirements that an
agency must meet when it issues a proposed rule that imposes
substantial direct compliance costs on state and local governments,
preempts state law, or otherwise has Federalism implications. This rule
does not have a substantial direct cost impact on state or local
governments, nor does it preempt state law.
D. Alternatives Considered
This proposed rule contains a range of other proposed policies. We
have provided descriptions of the statutory provisions that are
addressed, identified the proposed policies, and presented rationales
for our decisions. We have attempted to make proposals that would
adequately address the need to update the PASRR requirements, promote
better oversight, and improve outcomes for PASRR-identified
individuals. We solicit feedback on this proposed rule, including any
alternative policies stakeholders identify that would support the
principles of efficiency, accountability, quality, and self-direction
in long-term care.
We did consider a specific alternative regarding inclusion of
people with acquired and traumatic brain injury. We proposed updates to
the definitions of mental illness, intellectual disability, and
dementia in Sec. 483.102. Sections 1919(e)(7)(G)(i) and
1919(e)(7)(G)(ii) of the Act provide broad definitions for PASRR-
eligible mental illness and intellectual disability. We are aware that
people who experience acquired or traumatic brain injuries sometimes
require supports that overlap with those provided to people with
intellectual disability. While individuals who acquire a brain injury
prior to age 22 sometimes qualify for PASRR consideration due to having
a ``related condition'' as defined in Sec. 435.1010. We are aware,
however, that individuals who have acquired brain injuries after the
age 22 are typically regarded as ineligible for PASRR. We considered
the possibility of explicitly expanding PASRR eligibility to
individuals with acquired or traumatic brain injury (without an age
restriction), but were not certain that this expansion would be
supported by section 1919(e)(7) of the Act or the definition of
``related conditions'' provided in Sec. 435.1010. We were also
concerned that attempting to add traumatic brain injury to the
definition of ``related conditions'' in Sec. 435.1010 could have
unintentional consequences for other programs or policies that rely on
this definition.
We considered a specific alternative in the requirements relating
to provisional admissions. We propose in Sec. 483.112(b)(3) to create
a set of conditions under which someone may be considered a provisional
admission to a NF and does not require Preadmission Screening. Among
these conditions we propose that individuals admitted for a
convalescent care stay would be eligible for this Preadmission
Screening exemption so long as the convalescent stay is not expected to
exceed 30 days. (See discussion of this proposal in the discussion of
Sec. 483.112(b)(3).) We considered extending this length of time to 60
days, but were concerned that this might compromise the care for
individuals admitted under this provisional admission. For individuals
in need of specialized services, 60 days without these reports could
may put the individuals at risk of decompensation or
[[Page 10020]]
functional loss. While we do not want to require unnecessary Level II
evaluations for individuals staying in NFs for comparatively short
periods, we also want to ensure that individuals with MI or ID receive
appropriate supports in NFs.
E. Reducing Regulation and Controlling Regulatory Costs
Executive Order 13771, titled Reducing Regulation and Controlling
Regulatory Costs, was issued on January 30, 2017. This proposed rule,
if finalized, is expected to be an E.O. 13771 deregulatory action. We
estimate that this rule generates $3.4 million in annualized cost
savings, discounted at 7 percent relative to year 2016, over a
perpetual time horizon. Details on the estimated cost savings of this
rule can be found in the preceding analyses.
F. Conclusion
In accordance with the provisions of Executive Order 12866, this
proposed rule was reviewed by the Office of Management and Budget.
List of Subjects
42 CFR Part 431
Grant programs--health, Health facilities, Medicaid, Privacy,
Reporting and recordkeeping requirements.
42 CFR Part 433
Administrative practice and procedure, Child support, Claims, Grant
programs--health, Medicaid, Reporting and recordkeeping requirements.
42 CFR Part 435
Aid to Families with Dependent Children, Grant programs--health,
Medicaid, Reporting and recordkeeping requirements, Supplemental
Security Income (SSI), Wages.
42 CFR Part 441
Aged, Family planning, Grant programs--health, Infants and
children, Medicaid, Penalties, Reporting recordkeeping requirements.
42 CFR Part 483
Grant programs--health, Health facilities, Health professions,
Health records, Incorporation by reference, Medicaid, Medicare, Nursing
homes, Nutrition, Reporting and recordkeeping requirements, Safety.
For the reasons set forth in the preamble, the Centers for Medicare
& Medicaid Services proposes to amend 42 CFR chapter IV as set forth
below:
PART 431--STATE ORGANIZATION AND GENERAL ADMINISTRATION
0
1. The authority for part 431 is revised to read as follows:
Authority: 42 U.S.C. 1302.
0
2. Section 431.200 is amended by revising paragraph (c)(2) to read as
follows:
Sec. 431.200 Basis and scope.
* * * * *
(c) * * *
(2) Is adversely affected by the preadmission screening or the
resident review that are required by section 1919(e)(7) of the Act and
further described in part 483, subpart C of this chapter.
* * * * *
0
3. Section 431.201 is amended by revising the definition of ``Date of
action'' to read as follows:
Sec. 431.201 Definitions.
* * * * *
Date of action means the intended date on which a termination,
suspension, reduction, transfer or discharge becomes effective. It also
means the date of the determination made by a State with regard to the
preadmission screening and resident review requirements under part 483,
subpart C of this chapter.
* * * * *
0
4. Section 431.206 is amended by revising paragraph (c)(4) to read as
follows:
Sec. 431.206 Informing applicants and beneficiaries.
* * * * *
(c) * * *
(4) At the time an individual receives an adverse determination by
the State with regard to the preadmission screening and resident review
requirements under part 483, subpart C of this chapter.
* * * * *
0
5. Section 431.213 is amended by revising paragraph (g) to read as
follows:
Sec. 431.213 Exceptions from advance notice.
* * * * *
(g) The notice involves an adverse determination made with regard
to the preadmission screening and resident review requirements under
part 483, subpart C of this chapter; or
* * * * *
0
6. Section 431.220 is amended by revising paragraph (a)(3) to read as
follows:
Sec. 431.220 When a hearing is required.
(a) * * *
(3) Any individual who requests it because he or she believes the
State has made an erroneous determination with regard to the
preadmission screening and resident review requirements under part 483,
subpart C of this chapter.
* * * * *
0
7. Section 431.241 is amended by revising paragraph (c) to read as
follows:
Sec. 431.241 Matters to be considered at the hearing.
* * * * *
(c) A State determination with regard to the preadmission screening
and resident review requirements under part 483, subpart C of this
chapter.
0
8. Section 431.244 is amended by revising paragraph (f)(3)(i) to read
as follows:
Sec. 431.244 Hearing decisions.
* * * * *
(f) * * *
(3) * * *
(i) For a claim related to eligibility described in Sec.
431.220(a)(1), or any claim described in Sec. 431.220(a)(2) (relating
to a nursing facility) or Sec. 431.220(a)(3) (related to preadmission
screening and resident review), as expeditiously as possible and,
effective no later than the date described in Sec. 435.1200(i) of this
chapter, no later than 7 working days after the agency receives a
request for expedited fair hearing; or
* * * * *
Sec. 431.250 [Amended]
0
9. Section 431.250 is amended in paragraph (f)(4) by removing the word
``annual''.
Sec. 431.621 [Amended]
0
10. Section 431.621 is amended--
0
a. In paragraphs (a) and (c)(3), (6), and (7) by removing the term
``PASARR'' and adding in its place the term ``PASRR'';
0
b. In paragraphs (a) and (c)(4) by removing the word ``annual'';
0
c. In paragraphs (a), (b), (c) introductory text, and (c)(2), (5), and
(6) by removing the phrase ``Intellectual Disability'' and adding in
its place the phrase ``intellectual disability'';
0
d. In paragraph (c)(4) by removing the reference ``483.114(c)'' and
adding in its place the reference ``Sec. 483.114(d)'';
0
e. In paragraphs (c)(4) and (5) by removing the word ``part'' and
adding in its place the word ``chapter'';.
0
f. In paragraph (c)(6) by removing the phrase ``under its approved
State plan''; and
0
g. In paragraph (c)(8) by removing the reference ``483.136'' and adding
in its place the reference ``483.138 of this chapter''.
[[Page 10021]]
PART 433--STATE FISCAL ADMINISTRATION
0
11. The authority citation for part 433 is revised to read as follows:
Authority: 42 U.S.C. 1302.
Sec. 433.15 [Amended]
0
12. Section 433.15 is amended in paragraphs (b)(9) by removing the term
``PASARR'' and adding in its place the phrase ``PASRR''; and by
removing the word ``annual''.
PART 435--ELIGIBILITY IN THE STATES, DISTRICT OF COLUMBIA, THE
NORTHERN MARIANA ISLANDS, AND AMERICAN SAMOA
0
13. The authority citation for part 435 is revised to read as follows:
Authority: 42 U.S.C. 1302.
Sec. 435.1010 [Amended]
0
14. Section 435.1010 is amended in the definition of ``Persons with
related conditions'' in paragraph (a)(2) by removing the phrase
``mentally retarded persons,'' and adding in its place the phrase
``people with intellectual disabilities,''.
PART 441--SERVICES: REQUIREMENTS AND LIMITS APPLICABLE TO SPECIFIC
SERVICES
0
15. The authority citation for part 441 continues to read as follows:
Authority: 42 U.S.C. 1302.
0
8. Section 441.303 is amended--
0
a. By revising paragraph (f)(4); and
0
b. In paragraph (f)(9) by removing the term ``PASARR'' and adding in
its place the phrase ``PASRR''.
The revision reads as follows:
Sec. 441.303 Supporting documentation required.
* * * * *
(f) * * *
(4) In making estimates of average per capita expenditures for a
separate waiver program that applies only to individuals with
developmental disabilities who are identified through the preadmission
screening and resident review (PASRR) process, residents of a NF, or
require the level of care provided in an ICF/IID as determined by the
State on the basis of an evaluation under Sec. 441.303(c), the agency
may determine the average per capita expenditures that would have been
made in a fiscal year for those individuals based on the average per
capita expenditures for residents in an ICF/IID. When submitting
estimates of institutional costs without the waiver, the agency may use
the average per capita costs of ICF/IID care even though the
deinstitutionalized individuals with developmental disabilities were
residents of NFs.
* * * * *
PART 483--REQUIREMENTS FOR STATES AND LONG TERM CARE FACILITIES
0
16. The authority citation for part 483 continues to read as follows:
Authority: 42 U.S.C. 1302, 1320a-7, 1395i, 1395hh and 1396r.
0
17. Section 483.20 is amended--
0
a. In paragraphs (e) introductory text and (e)(1) by removing the term
``PASARR'' and adding in its place the term ``PASRR'';
0
b. In paragraph (e)(1) removing the word ``recommendations'' and adding
in its place the word ``findings'', and by removing the phrase ``, care
planning, and transitions of care'';
0
c. By revising paragraph (e)(2);
0
d. In paragraph (k) subject heading, by adding ``and resident review''
after ``Preadmission screening'';
0
e. In paragraph (k) heading, by removing the phrase ``mental disorder''
and adding in its place the phrase ``mental illness'';
0
f. In paragraph (k)(1)(i) introductory text, by removing the phrase
``Mental disorder'' and adding in its place the phrase ``Mental
illness'';
0
g. In paragraph (k)(2)(i) by adding the phrase ``Level I identification
screening and Level II evaluations and'' before the word
``determinations'';
0
h. By revising paragraph (k)(2)(ii) introductory text;
0
i. By adding paragraph (k)(2)(iii);
0
j. In paragraphs (k)(3)(i), by removing the phrase ``mental disorder''
and adding in its place the phrase ``mental illness''; and
0
k. By revising paragraph (k)(4).
The revisions and additions read as follows:
Sec. 483.20 Resident assessment.
* * * * *
(e) * * *
(2) Referring all residents with newly evident or possible mental
illness or an intellectual disability or related condition for Level II
resident review within 72 hours of when the facility identifies
conditions indicating possible mental illness or intellectual
disability or related condition as described in Sec. 483.126.
* * * * *
(k) * * *
(2) * * *
(ii) The State must apply Level I identification screening, but may
choose not to apply Level II preadmission screening under paragraph
(k)(1) of this section, to the admission to a nursing facility of an
individual--
* * * * *
(iii) The State must apply Level I identification screening, but
may choose not to apply the Level II preadmission screening program
under paragraph (k)(1) of this section, to the admission to a nursing
facility of an individual who qualifies as a ``provisional admission''
in accordance with Sec. 483.112(b)(3).
* * * * *
(4) Residents with mental illness or intellectual disability who
are experiencing a significant change in physical or mental condition
(as defined in paragraph (b)(2)(ii) of this section) must be referred
by the nursing facility within 72 hours of the significant change to
the state mental health authority or state intellectual disability
authority, as applicable, for a resident review.
0
18. Section 483.21 is amended--
0
a. In paragraph (a)(1)(ii)(F) by removing the term ``PASARR'' and
adding in its place the term ``PASRR''; and
0
b. Revising paragraph (b)(1)(iii).
The revision reads as follows:
Sec. 483.21 Comprehensive person-centered care planning.
* * * * *
(b) * * *
(1) * * *
(iii) Any specialized services (provided or arranged for by the
state) or specialized rehabilitative services (provided by the nursing
facility) as a result of PASRR recommendations. If a facility disagrees
with the PASRR recommendations, it may request a Level II resident
review. Changes to PASRR recommendations in the plan of care must be
authorized by the PASRR program as part of a Level II determination in
accordance with Sec. 483.130.
* * * * *
Subpart C--Preadmission Screening and Resident Review for
Individuals with Mental Illness or Intellectual Disability
0
19. The heading for subpart C is revised to read as set forth above.
Sec. 483.100 [Amended]
0
20. Section 483.100 is amended--
0
a. By removing the term ``annual''; and
0
b. By removing the term ``PASARR'' and adding in its place the term
``PASRR''.
0
21. Section 483.102 is amended--
0
a. By revising paragraphs (b)(1) and (2) and (b)(3)(i);
[[Page 10022]]
0
b. In paragraph (b)(3) introductory text by adding a subject heading;
and
0
c. By adding paragraph (c).
The revisions and addition read as follows:
Sec. 483.102 Applicability and definitions.
* * * * *
(b) * * *
(1) Mental illness. An individual is considered to have a mental
illness (MI) if:
(i) The individual has within the past year had a serious and
persistent mental disorder meeting the criteria specified within the
Diagnostic and Statistical Manual of Mental Disorders, 5th edition
(2013), incorporated by reference in paragraph (c) of this section,
with the exception of conditions that would fall under DSM-5 ``V''
codes, substance use or substance/medication-induced disorders,
neurodevelopmental disorders, and neurocognitive disorders;
(ii) The disorder has been determined by a qualified clinician to
be acute or in partial remission, have recurrent or persistent features
and, if the DSM includes a severity scale for the disorder, the
severity level of the disorder is moderate to severe;
(iii) The disorder has resulted in functional impairment which has
substantially interfered with or limited one or more major life
activity (including activities of daily living; instrumental activities
of daily living; or functioning in social, family, and academic or
vocational contexts), or would have caused functional impairment
without the benefit of treatment or other support services; and
(iv) A qualified clinician has found that the mental illness is not
a secondary characteristic of a primary diagnosis of dementia (or
neurocognitive disorder due to Alzheimer's disease or related
conditions), as defined in paragraph (b)(2) of this section.
(2) Dementia. An individual is considered to have dementia if he or
she has a primary diagnosis of a major neurocognitive disorder (other
than delirium) as described in the Diagnostic and Statistical Manual of
Mental Disorders, 5th edition, revised in 2013. An individual with co-
occurring diagnoses of MI and major neurocognitive disorder would not
be automatically considered to have ``primary dementia'' unless a
qualified clinician has confirmed that the individual's primary
diagnosis is a major neurocognitive disorder.
(3) Intellectual Disability. * * *
(i) A disability, with onset before age 18, which is characterized
by significant limitations in both intellectual functioning and
adaptive behavior, as described in the American Association on
Intellectual and Developmental Disabilities' Intellectual Disability:
Definition, Classification, and Systems of Support, 11th edition
(2010), incorporated by reference in paragraph (c) of this section; or
* * * * *
(c) Incorporation by reference. The standards incorporated by
reference in this section are approved for incorporation by reference
by the Director of the Office of the Federal Register in accordance
with 5 U.S.C. 552(a) and 1 CFR part 51. You may obtain the material
from the sources listed below. You may inspect a copy at the CMS
Information Resource Center, 7500 Security Boulevard, Baltimore, MD or
at the National Archives and Records Administration (NARA). For
information on the availability of this material at NARA, call 202-741-
6030, or go to http://www.archives.gov/federal_register/code_of_federal_regulations/ibr_locations.html. If any changes in this
edition of the Code are incorporated by reference, CMS will publish a
document in the Federal Register to announce the changes.
(1) Diagnostic and Statistical Manual of Mental Disorders, 5th
edition (2013).
(2) Association on Intellectual and Developmental Disabilities'
Intellectual Disability: Definition, Classification, and Systems of
Support, 11th edition (2010).
Sec. 483.104 [Amended]
0
22. Section 483.104 is amended by removing the word ``annual''.
0
23. Section 483.106 is revised to read as follows:
Sec. 483.106 Basic rules and responsibilities.
(a) Purpose. The preadmission screening and resident review process
must result in determinations based on a physical and mental evaluation
of each individual with MI or ID, that are described in Sec. Sec.
483.112 and 483.114.
(b) Requirement. The State PASRR program must require:
(1) Identification of all applicants for admission to and residents
of Medicaid certified NFs who have possible MI or ID;
(2) Preadmission screening of all eligible new admissions with MI
or ID who apply to Medicaid NFs and tracking of individuals with
possible MI or ID admitted under preadmission screening exceptions, in
accordance with Sec. 483.112; and
(3) Resident review of eligible residents with MI or ID in
accordance with Sec. 483.114.
(c) State Medicaid agency responsibilities. The State Medicaid
agency is responsible for:
(1) Ensuring that the PASRR process is in compliance with this
subpart;
(2) Executing and enforcing written interagency agreements with the
State mental health and intellectual disability authorities as required
at Sec. 431.621 of this chapter;
(3) Designating an entity to perform evaluations of individuals
with MI;
(4) Ensuring timely and accurate reporting of data in accordance
with Sec. 483.130(j); and
(5) All PASRR functions not otherwise assigned to another entity by
statute or regulation.
(d) Responsibility for evaluations and determinations. The PASRR
determinations of whether an individual requires NF level of services
and whether specialized services are needed--
(1) For individuals with MI, must be made by the State mental
health authority and be based on a physical and mental evaluation
performed by a person or entity that is independent from the State
mental health authority; and
(2) For individuals with ID, must be made by the State intellectual
disability authority based on a physical and mental evaluation
performed by the State intellectual disability authority or its
designee.
(e) Delegation of responsibility. The State Medicaid agency and the
State mental health and intellectual disability authorities may
delegate by subcontract or otherwise the functions for which they are
responsible to another entity only if:
(1) The State Medicaid agency and the State mental health and
intellectual disability authorities retain ultimate control and
responsibility for the performance of their statutory obligations;
(2) The entity to which the State Medicaid agency delegates the
evaluation function for individuals with MI is independent from the
State mental health authority; and
(3) The entity to which the delegation is made for evaluation and
determinations is not a NF or an entity that has a direct or indirect
affiliation or relationship with a NF.
(f) Adaptation to culture, language, ethnic origin. Evaluations
performed under PASRR and PASRR-related communications must be adapted
to the cultural background, language, ethnic origin and means of
communication used by the individual being evaluated. At no cost to the
individual, evaluations should include as needed qualified
[[Page 10023]]
interpreters as required by section 1557 of the Affordable Care Act and
Title VI of the Civil Rights Act of 1964, and qualified sign language
interpreters and auxiliary aids as required by section 1557 of the
Affordable Care Act and section 504 of the Rehabilitation Act of 1973,
to ensure there is effective communication.
0
24. Section 483.108 is amended--
0
a. By revising the section heading.
0
b. In paragraph (a) by removing the term ``PASARR'' each time it
appears and adding in its place the term ``PASRR''; and
0
c. By revising paragraphs (b) and (c).
The revisions read as follows:
Sec. 483.108 Relationship of PASRR to other Medicaid processes.
* * * * *
(b) In making their determinations, however, the State mental
health and intellectual disability authorities must not use criteria
relating to the need for NF level of services or specialized services
that are inconsistent with this regulation and any supplementary
criteria adopted by the State Medicaid agency.
(c) To the maximum extent practicable, in order to avoid
duplicative testing and effort, information gathered by the PASRR
process must be incorporated into the routine resident assessments
required by Sec. 483.20(b), whenever possible.
0
25. Section 483.110 is revised to read as follows:
Sec. 483.110 Out-of-state arrangements.
The State in which the individual is a State resident (or would be
a State resident at the time he or she becomes eligible for Medicaid),
as defined in Sec. 435.403 of this chapter, must pay for the PASRR and
make the required determinations, in accordance with Sec. 431.52(b) of
this chapter.
0
26. Section 483.112 is revised to read as follows:
Sec. 483.112 Preadmission screening of applicants for admission to
NFs.
(a) Preadmission Level I. All individuals applying to Medicaid
certified NFs as new admissions as defined in paragraph (b)(1) of this
section, must receive a Level I identification screen (pursuant to
Sec. 483.126) prior to admission to a Medicaid certified NF.
(b) Who must receive Level II preadmission screening. New
admissions with positive Level I screens (as described in Sec.
483.126) who are applying to become a new resident of a Medicaid
certified NF must receive preadmission screening prior to admission.
Preadmission screening, also referred to in these regulations as Level
II preadmission screening, consists of a Level II evaluation and
determination in accordance with Sec. Sec. 483.128 and 483.130.
(1) New admission. An individual is a new admission if he or she is
admitted to any NF for the first time or does not qualify as a
readmission as described in paragraph (b)(4) of this section or inter-
facility transfer as described in paragraph (b)(5) of this section.
With the exception of certain hospital discharges described in
paragraph (b)(2) of this section or provisional admission described in
paragraph (b)(3) of this section, new admissions are subject to Level
II preadmission screening (as defined in paragraph (b) of this
section).
(2) Exempted hospital discharge. Exempted hospital discharges are
considered new admissions and require Level I identification screening
(as described in Sec. 483.126), but are exempted from Level II
preadmission screening (as defined in paragraph (b) of this section).
(i) An exempted hospital discharge means an individual--
(A) Who is admitted to any NF directly from a hospital after
receiving acute inpatient care at the hospital;
(B) Who requires NF services for the condition for which he or she
received care in the hospital; and
(C) Whose attending physician has certified before admission to the
facility that the individual is likely to require less than 30 days of
nursing facility services.
(ii) If an individual with possible MI or ID (as identified by the
Level I identification process) who enters a NF as an exempted hospital
discharge is later found to require more than 30 days of NF care, the
State PASRR program must complete a resident review within 40 calendar
days of admission.
(3) Provisional admissions. Provisional admissions are considered
new admissions and require Level I identification screening (as
described in Sec. 483.126), but are not considered new residents, and
may be exempted from Level II preadmission screening (as defined in
paragraph (b) of this section).
(i) A provisional admission means an individual is being admitted
to a NF for a short, time-limited stay. Provisional admissions are
admissions for:
(A) Emergency stays due to emergency evacuations or protective
services placements, with placement in the NF not to exceed 14 days;
(B) Delirium, where an accurate diagnosis cannot be made until the
delirium clears, but is expected to clear within 14 days;
(C) Respite stays of up to 30 consecutive days to provide respite
to in-home caregivers; or
(D) Convalescent stays of up to 30 days in which an applicant:
(1) Requires a stay in the NF to recover from an acute physical
illness that required hospitalization; and
(2) Does not meet all the criteria for an exempted hospital
discharge described in paragraph (b)(2) of this section.
(ii) If an individual with possible MI or ID (as identified by the
Level I identification process) who enters a NF as a provisional
admission is later found to require more than 14 days of NF care (for
emergency admissions or delirium) or more than 30 days of NF care (for
respite or convalescent stay admissions), the State PASRR program must
complete a resident review in accordance with Sec. 483.114 within 24
calendar days of admission (for emergency admissions or delirium) or
within 40 calendar days of admission (for respite or convalescent stay
admissions).
(4) Readmissions. An individual's status is deemed to be a
``readmission'' if he or she was readmitted to a facility from a
hospital to which he or she was transferred for the purpose of
receiving care. Readmissions who received Level I identification
screens and Level II evaluation and determinations (if applicable) as
new admissions do not need to repeat these processes upon readmission.
Readmissions may still be subject to resident review as needed, in
accordance with Sec. 483.114.
(5) Inter-facility transfers. (i) An inter-facility transfer occurs
when an individual is transferred from one NF to another NF, with or
without an intervening hospital stay. With the exceptions noted in
paragraphs (b)(5)(ii) and (iii) of this paragraph, residents receiving
inter-facility transfers who previously received Level I identification
screens as new admissions and Level II preadmission screening or
resident review (if applicable) do not need a new Level I
identification screen or Level II preadmission screening upon inter-
facility transfer.
(ii) In cases of transfer of a resident to another NF, with or
without an intervening hospital stay, the receiving NF is responsible
for ensuring that copies of the resident's most recent Level I and, if
applicable, Level II PASRR documentation accompany the transferring
resident. If such paperwork is missing, or does not reflect the
individual's current physical and mental condition, the individual must
be treated as a new admission.
[[Page 10024]]
(iii) Individuals who are transferred from one NF to another with
an intervening stay in an inpatient facility in which the individuals
received inpatient psychiatric treatment or active treatment (as
defined at Sec. 483.440(a) of this part) must be treated as new
admissions.
(c) Timeliness of determination. A preadmission Level II
determination must be made electronically or in writing within an
annual average of 9 calendar days of referral of the individual with
possible MI or ID by whatever agent performs the Level I
identification, under Sec. 483.126, to the State PASRR program for
preadmission screening. Level II preadmission screening determinations
must be completed prior to the individual's admission to the NF.
(d) Preadmission screening determinations. NF applicants referred
to the State PASRR program for determination must receive a
determination of need for NF level of services and, if found to require
NF level of services, a determination of need for specialized services,
in accordance with Sec. 483.130.
0
27. Section 483.114 is revised to read as follows:
Sec. 483.114 Review of NF residents.
(a) Referral for resident review. Referral for resident review of
NF residents is required:
(1) When a resident previously confirmed by a Level II evaluation
and determination as having MI or ID experiences a possible significant
change in physical or mental condition, as defined in Sec.
483.20(b)(2)(ii);
(2) Upon the expiration of an exempted hospital discharge or
provisional admission, as described in Sec. 483.112(b)(2) and (3);
(3) When the NF identifies, through any means not otherwise
described in this section, that a resident has a possible MI or ID (as
described in Sec. 483.126) that was not previously identified by a
preadmission screen or resident review; or
(4) Upon other conditions designated by the State.
(b) Level II resident review. Resident review consists of a Level
II evaluation and determination (also referred to in these regulations
as Level II resident review), as described in Sec. Sec. 483.128 and
483.130. The purpose of a resident review is to provide:
(1) First-time Level II evaluation and determination for residents
with possible MI or ID who had not previously received Level II
evaluation and determination, in order to make the determination
required in Sec. 483.114(e); or
(2) A new Level II evaluation and determination for residents who
have previously been confirmed by Level II determination to have MI and
ID, but are experiencing a significant change in physical or mental
condition (as defined in Sec. 483.20(b)(2)(ii)) such that the PASRR
program will need to revise the findings of the previous Level II
determination.
(c) Timing for referral from NF. NFs must notify the State PASRR
program of the need for resident review within--
(1) 72 hours of when a resident experiences one of the conditions
described in paragraphs (a)(1) or (3) of this section.
(2) 24 hours of the expiration of an exempted hospital discharge or
provisional admission, as described in paragraph (a)(2) of this
section.
(d) Timeliness of determination. A Level II resident review
determination must be made electronically or in writing within an
annual average of 9 calendar days from the date the resident was
referred to the State PASRR program for resident review.
(e) Resident review determination. NF residents referred to the
State PASRR program for determination must receive a determination of
need for NF level of services (or the need for the level of services
provided by an resident psychiatric hospital for individuals under age
21, an institution providing medical assistance for individuals over
age 65, or an ICF/IID), and a determination of need for specialized
services, in accordance with Sec. 483.130.
Sec. 483.116 [Amended]
0
28. Section 483.116 is amended in paragraph (b) introductory text by
removing ``for the mental illness or intellectual disability''.
0
29. Section 483.118 is amended--
0
a. In the paragraph (b) subject heading, paragraph (b) introductory
text, and the paragraph (c) subject heading by removing the phrase
``for MI or IID'';
0
b. By revising paragraph (c)(1) introductory text;
0
c. In paragraph (c)(1)(iv) by removing the phrase ``for the mental
illness or intellectual disability'' '
0
d. By revising paragraph (c)(2) introductory text; and
0
e. In paragraph (c)(2)(iii) by removing the phrase ``for the mental
illness or intellectual disability''.
The revisions read as follows:
Sec. 483.118 Residents and applicants determined not to require NF
level of services.
* * * * *
(c) * * *
(1) Long term residents. For any resident who has continuously
resided in a NF for at least 30 months before the date of the
determination, and who requires only specialized services as defined in
Sec. 483.120, the State must, in consultation with the resident's
family or legal representative and caregivers.
* * * * *
(2) Short term residents. For any resident who requires only
specialized services as defined in Sec. 483.120 and who has not
continuously resided in a NF for at least 30 months before the date of
the determination, the State must, in consultation with the resident's
family or legal representative and caregivers--
* * * * *
0
30. Section 483.120 is revised to read as follows:
Sec. 483.120 Specialized services and NF services.
(a) Definition. Specialized services are State-defined services for
NF residents with MI or ID as determined by the Level II process. These
services must be--
(1) Developed by an interdisciplinary team, which includes, at
minimum, a physician and a mental health or intellectual disability or
developmental disability professional, as appropriate;
(2) Designed to address needs related to MI or ID;
(3) Of greater intensity, frequency or customization than the NF
services for MI or ID mandated in subpart B of this part;
(4) Designed in a person-centered manner to promote self-
determination and independence;
(5) Designed to prevent or delay loss of or support increase in
functional abilities; and
(6) If applicable, designed to support the individual's goals of
transition to the most integrated setting, if the individual is
admitted to or remains in an institutional setting (including a NF,
ICF/IID, inpatient psychiatric facility for individuals under age 22,
or an IMD for individuals over 65).
(b) Provision of specialized services. The State must provide or
arrange for the provision of specialized services, in accordance with
this subpart, to all NF residents with MI or ID determined to need
specialized services in accordance with Sec. Sec. 483.130 and 483.134.
The State must ensure that the services are provided by qualified
personnel, and must periodically review the specialized services to
ensure that they continue to be effective for the individual.
(c) Provision of NF services. The NF must provide mental health or
intellectual disability services which are
[[Page 10025]]
of a lesser intensity than specialized service to all residents who
need such services.
(d) Duplication with NF services prohibited. Specialized services
delivered to NF residents may not duplicate NF services as described in
subpart B of this part.
(e) Coordination with plan of care. For individuals who are
admitted to or retained by a NF, NF services and specialized services
recommended by the PASRR program must be coordinated with the
individual's care plan, as required at Sec. 483.21(b)(1)(iii).
(f) Coordination with other program services. If an individual
requiring specialized services is discharged to another institutional
setting or to a community program in which the individual is receiving
long-term services and supports, services offered in those settings may
satisfy the specialized services requirement.
0
31. Section 483.122 is amended--
0
a. By revising paragraph (a) introductory text;
0
b. In paragraph (a)(1) by removing the phrase ``NF care'' and adding in
its place the phrase ``NF level of services'';
0
c. In paragraph (a)(2) by removing the phrase ``NF services'' and
adding in its place the phrase ``NF level of services'';
0
d. In paragraph (b) by removing the phrase ``annual review'' ' and
adding in its place ``resident review''; and
0
e. In paragraph (b) by removing the reference ``Sec. 483.114(c)'' and
adding in its place the reference ``Sec. 483.114(d)''.
The revision reads as follows:
Sec. 483.122 FFP for NF services.
(a) Basic rule. FFP is available in State expenditures for NF
services provided to a Medicaid eligible individual subject to the
requirements of this part only if the individual has been determined--
* * * * *
0
32. Section 483.124 is revised to read as follows:
Sec. 483.124 FFP for specialized services.
(a) FFP is available for specialized services furnished to NF
residents so long as the services:
(1) Have been described by the State in its approved State plan;
and
(2) Do not duplicate NF services included in payments to the NF.
(b) [Reserved]
0
33. Section 483.126 is revised to read as follows:
Sec. 483.126 Level I identification criteria.
(a) Level I identification of individuals with possible MI or ID.
The State's PASRR program must have a Level I identification screening
process to identify all individuals with possible MI or ID (as defined
in paragraphs (b) and (c) in this section) who require Level II
preadmission screening or Level II resident review.
(b) Possible MI. An individual may be considered to have a positive
Level I identification screen for possible MI if any of the following
criteria are met:
(1) The individual has received a diagnosis of MI that appears to
meet the definition of MI in Sec. 483.102(b)(2); or
(2) Within the last 12 months the individual has experienced
significant challenges to interpersonal or cognitive functioning, such
as hallucinations or delusions, attempts to harm self or others, or
suicidal ideation; or
(3) Within the last 12 months the individual has required
psychiatric treatment including residential treatment, partial
hospitalization, or inpatient hospitalization; or
(4) The Level I identification screener cannot rule out possible MI
based on the available data.
(c) Possible ID. A person is considered to have a positive Level I
identification screen for possible ID if:
(1) The individual has received a diagnosis of ID or a related
condition that appears to meet the definition of ID in Sec.
483.102(b)(3); or
(2) Within the past 12 months the individual has received active
treatment (as defined in Sec. 483.440(a)) in an intermediate care
facility for individuals with intellectual disabilities; or
(3) The Level I identification screener cannot rule out possible ID
or related condition based on the available data.
(d) Personnel. The State may designate who can perform a Level I
identification screen.
(e) Data. Level I identification screeners may conduct the screen
using existing data, including hospital records, physicians'
evaluations, election of hospice status, school records, records of
community mental health centers or community intellectual disability or
developmental disability providers, and other information provided by
the individual or the individual's legally authorized representative.
Level I identification screeners must certify that the data supports
the screener's conclusion regarding whether the individual has possible
MI or ID and, if applicable, whether the individual qualifies for an
exempted hospital discharge or provisional admission, as defined in
Sec. 483.112.
(f) Referral after positive identification. Individuals with
possible MI or ID must be referred to the State PASRR program for Level
II preadmission screening or resident review. Individuals who qualify
for a preadmission screening exception per Sec. 483.112 must still be
referred to the Level II authority so it may track the individual's
need for a resident review, as described in Sec. 483.112(b)(2) and
(3).
(g) Documentation of completed identification screen. The State's
performance of the Level I identification function must provide a copy
of the completed Level I identification screen to the individual, the
individual's legal representative and the admitting or retaining NF (if
applicable). The Level I identification screen must clearly indicate
whether the individual is being referred to the State PASRR program for
Level II evaluation and determination.
0
34. Section 483.128 is revised to read as follows:
Sec. 483.128 Level II PASRR evaluation criteria.
(a) Purpose. The purpose of the evaluation is to provide the SMHA
or SIDA with enough information to:
(1) Confirm the individual has MI or ID, as defined in Sec.
483.102, or has experienced a qualifying significant change in physical
or mental condition, as defined in Sec. 483.114(b)(2); and
(2) Make the determinations regarding need for NF level of services
and specialized services as required by Sec. 483.130(c) and (d).
(b) Personnel. The State may designate the mental health or
intellectual or developmental disability professionals who perform the
evaluations. The State must ensure that:
(1) Evaluators are qualified to make or confirm clinical diagnoses;
and
(2) Evaluations are conducted by appropriate personnel in
accordance with Sec. 483.106(d).
(c) Interdisciplinary coordination. When parts of a PASRR
evaluation are performed by more than one evaluator, or are performed
for individuals with co-occurring possible or known MI and ID, the
State must ensure that there is interdisciplinary coordination among
the evaluators.
(d) Data to confirm Level I identification and significant change
in condition. (1) For individuals with positive Level I screens for
possible MI or ID, including individuals receiving resident review
after an expired exempted hospital discharge or provisional admission
as described in Sec. 483.112(b), evaluators must collect and review
data reflecting the individual's current condition in order to confirm
that the individual has MI or ID. This data at a minimum must include-
(i) A review of current medical and psychiatric conditions and
current medications;
[[Page 10026]]
(ii) A medical history and physical exam that has been performed by
a qualified clinician as identified by the state;
(iii) A history of medication and prescription and illegal drug
use;
(iv) For MI evaluations, an evaluation of psychiatric history
performed by a qualified mental health professional;
(v) For ID evaluations, an evaluation of intellectual functioning
performed by a licensed psychologist or psychiatrist; and
(vi) Other documentation or information provided to or gathered by
the evaluator deemed necessary to confirm a diagnosis.
(2) For individuals identified as needing a Level II resident
review due to a significant change of physical or mental condition(s)
(as defined in Sec. 483.114(b)(2)) evaluators must collect and review
at a minimum recent medical, psychiatric and medication records, recent
resident assessments performed under Sec. 483.20(b), and other
documents or information provided to or gathered by the evaluator
deemed necessary to confirm the significant change.
(e) Data for evaluations needed for NF level of services and
specialized services. The data relied on for evaluations for the NF
level of services and specialized services, described in Sec. Sec.
483.132 and 483.134, respectively, should include:
(1) Review of the relevant history of the physical status.
(2) Focused relevant physical examination (either as recorded in
chart or conducted by the evaluator).
(3) Review of relevant psychiatric history including diagnoses,
date of onset, treatment history.
(4) Focused relevant mental status examination, including
observations and professional opinion regarding intellectual and memory
functioning, impulse control, irritability and ability to be
redirected, likelihood that individual may pose a threat to self or
others, agreeableness to participate in activities of daily living
(that is, how likely the patient is to resist activities such as
bathing, eating, grooming, etc.).
(5) Functional assessment (activities of daily living and
instrumental activities of daily living).
(6) Psychosocial evaluation (for example, living arrangements, paid
and unpaid supports);
(7) Social, academic and vocational history;
(8) Service plans from community-based providers, if applicable;
(9) Relevant sections of the individual's plan of care (as defined
in Sec. 483.21(b)) if the individual is a NF resident; and
(10) Person-centered interviews including--
(i) The individual being evaluated;
(ii) The individual's legal representative, if one has been
designated under State law; and
(iii) The individual's family, friends or caregivers, at the
individual's discretion.
(f) Face-to-face interviews. The person-centered interviews
required in paragraph (e)(10) of this section must be conducted face-
to-face. Telehealth evaluations conducted via live videoconferencing
may be performed if conducting a face-to-face interview would, due to
resource limitations, geographical distances, or other circumstances,
prevent completion of the determination within the timeframe required
by Sec. Sec. 483.112(c) and 483.114(e).
(g) Preexisting data. Evaluators may use relevant evaluative data,
obtained prior to initiation of preadmission screening or resident
review, if the data are considered valid and accurate and reflect the
current functional status of the individual. However, to supplement and
verify the currency and accuracy of existing data, the State's PASRR
program may need to gather additional information necessary to assess
proper placement and treatment.
(h) Findings. Findings of the evaluation must correspond to the
person's current functional status as documented in medical and social
history records.
(i) Evaluation report. The evaluation findings and recommendations
must be issued in the form of a written evaluative report which--
(1) Identifies the name and professional title of person(s) who
performed the evaluation(s) and the date on which each portion of the
evaluation was administered;
(2) Provides a summary of the medical and social history, including
the positive traits or developmental strengths and weaknesses or
developmental needs of the evaluated individual;
(3) If NF services are recommended, identifies the specific
services which are required to meet the evaluated individual's needs,
including any specific intellectual disability or mental health
services which are of a lesser intensity than specialized services that
are required to meet the evaluated individual's needs;
(4) If specialized services are recommended, identifies the
specific intellectual disability or mental health services required to
meet the evaluated individual's needs; and
(5) Includes the bases for the report's conclusions.
(j) Evaluation report: Terminated evaluations. If an evaluator
terminates an evaluation pursuant to Sec. 483.128(m) of this section,
findings must be issued in the form of an abbreviated written
evaluative report which--
(1) Identifies the name and professional title of the person
performing the evaluation;
(2) Explains the reason for the termination of the evaluation;
(3) Identifies, to the extent possible, based on the available
data, NF services, including any behavioral health or specialized
psychiatric rehabilitative services (as described in Sec. Sec. 483.40
and 483.65, respectively), that may be needed; and
(4) Includes the bases for the report's conclusions.
(k) Interpretation of findings to individual. The findings of the
evaluation must be interpreted and explained to the individual and,
where applicable, to a legal representative designated under State law.
(l) Evaluation report submission. The evaluator must send a copy of
the evaluation report to the State mental health or intellectual
disability authority, as appropriate, in sufficient time for the State
authorities to meet the times identified in Sec. 483.112(c) for
preadmission screens and Sec. 483.114(d) for resident reviews;
(m) Termination before evaluations for NF level of services and
specialized services. The evaluation may be terminated without further
evaluation of the need for NF level of services or specialized services
(as described in Sec. Sec. 483.132 and 483.134) and an abbreviated
evaluation report issued per paragraph (j) of this section if the
evaluator finds that the individual being evaluated--
(1) Does not have MI or ID within the definition of Sec. 483.102;
(2) Did not experience a qualifying significant change in physical
or mental condition as defined in Sec. 483.114(b)(2); or
(3) Has a severe physical illness (such as ventilator dependency,
advanced Parkinson's disease, Huntington's disease, amyotrophic lateral
sclerosis; or is comatose or functioning at a brain stem level), a
terminal illness (as defined in Sec. 418.3 of this chapter) or
dementia (as defined in Sec. 483.102(b)(2)), which results in a level
of impairment so severe that the individual could not be effectively
evaluated for the need for NF level of services or for specialized
[[Page 10027]]
services as required in Sec. Sec. 483.132 and 483.134.
0
35. Section 483.130 is revised to read as follows:
Sec. 483.130 Level II PASRR determination criteria.
(a) Basis for determinations. Determinations made by the State
mental health or intellectual disability authority as to whether NF
level of services and specialized services are needed must be based on
an evaluation of data concerning the individual, as specified in Sec.
483.128(e) of this section.
(b) Personnel. The State may designate the medical, mental health,
intellectual disability, or developmental disability professionals who
perform the determinations. Personnel cannot have a direct or indirect
relationship with a NF.
(c) Determination of need for NF level of services. An individual
with MI or ID shall be determined to need NF level of services only
when:
(1) The individual meets the State's criteria for NF admission;
(2) The individual's total needs do not exceed the services which
can be delivered in the NF to which the individual is admitted either
through NF services alone or, where necessary, through NF services
supplemented by specialized services; and
(3) Placement in a home and community based program cannot be
achieved because:
(i) The individual's total needs pursuant to Sec. 483.128(e)
exceed or cannot currently be accommodated by the State's home and
community based programs: or
(ii) The individual does not want community placement.
(d) Determination of need for specialized services. An individual
with MI or ID shall be determined to need specialized services if the
individual's total needs are such that services described in Sec.
483.120(a) are necessary to maintain the individual in or transition
the individual to the most integrated setting possible, and the
individual would benefit from such services.
(e) Recording determinations. All determinations made by the State
mental health and intellectual disability authority must be recorded in
the individual's record.
(f) Notice of determination. The State mental health or
intellectual disability authority must notify in writing or
electronically the following entities of a determination made under
this subpart:
(1) The evaluated individual and his or her legal representative;
(2) The admitting or retaining NF;
(3) The physician most involved in the individual's medical care,
as identified by the individual; and
(4) The discharging hospital, unless the individual is exempt from
preadmission screening as provided for at Sec. 483.106(b)(2).
(g) Contents of notice. Each notice of the determination made by
the State mental health or intellectual disability authority must
include--
(1) Whether the individual was found to have MI or ID (as defined
in Sec. 483.102 of this subpart) or a significant change of physical
or mental condition (as described in Sec. 483.114(b)(2) of this
subpart);
(2) If the individual was found to have MI or ID or a significant
change in physical or mental condition--
(i) Whether a NF level of services is needed;
(ii) Whether specialized services are needed;
(iii) The placement options that are available to the individual
consistent with these determinations, as described in Sec. Sec.
483.116 and 483.118;
(3) The rights of the individual to appeal the determination under
subpart E of this part; and
(4) A copy of the evaluation report generated in accordance with
Sec. 483.128(i) or (j), as appropriate.
(h) Record retention. The State PASRR system must maintain records
of evaluations and determinations in order to support its
determinations and actions and to protect the individual's appeal
rights related to PASRR determinations.
(i) Tracking system. The State PASRR system must establish and
maintain a tracking system for all individuals with MI or ID in NFs to
ensure that appeals and future reviews are performed in accordance with
this subpart and subpart E of this part.
(j) Reporting. The State must report to the Secretary on an annual
basis:
(1) The annual averages for completing determinations as required
in Sec. Sec. 483.112(c) and 483.114(d).
(2) The number of people with MI or ID as defined in Sec. 483.102
who are diverted and who are discharged from NFs each year in
accordance with Sec. 483.118 because the PASRR program has determined
that the individual:
(i) Does not meet, or no longer meets, the State's criteria for NF
admission,
(ii) Requires the level of services offered in another
institutional setting; or
(iii) Elects to receive services in a non-institutional setting.
(3) The State may report separate annual averages for the
determinations made by the State mental health and intellectual
disability authorities as required in paragraph (j)(1) of this section
and report separately for persons with MI and ID the outcomes required
in paragraph (j)(2) of this section.
(4) The Secretary may grant an exception to the timeliness standard
of Sec. Sec. 483.112(c) and 483.114(d) or of the annual reporting
requirement as described in this section at the Secretary's discretion.
(5) Reports should be submitted to the Secretary on March 1 of each
year, and report on data for previous calendar year.
0
36. Section 483.132 is revised to read as follows:
Sec. 483.132 Evaluating the need for NF level of services.
(a) Evaluation for appropriate settings. For each NF applicant for
admission to a NF and each NF resident who has MI or ID, the evaluator
must assess whether--
(1) The individual has the option of placement in a home and
community based services program and a non-institutional placement is
desired, or
(2) The individual's total needs are such that they can be met only
on an inpatient basis and
(i) The NF (with or without specialized services) is an appropriate
institutional setting for meeting those needs; or
(ii) The NF is not the appropriate setting for meeting the
individual's needs and another institutional setting is an appropriate
setting for meeting those needs.
(b) Evaluation of preferences. The evaluator must assess the
individual's preferences for where the individual may receive long term
services and supports, including whether the individual and the
individual's legal representative, if applicable, have received
information about the types of long term care setting options available
to the individual.
(c) Evaluation for NF services. For individuals for whom NF
placement is considered an appropriate option by the evaluator (per the
evaluation in paragraphs (a) and (b)) of this section), the evaluator
must assess what services for MI or ID the individual may need which
are offered as part of standard NF services, including behavioral
health services and specialized rehabilitative services described at
Sec. Sec. 483.40 and 483.65, respectively.
(d) Data. At a minimum, the data relied on to perform the
evaluation must include the data listed in Sec. 483.128(e).
(e) Relationship to NF level of care. Evaluations to determine
whether an individual meets the State's NF level of
[[Page 10028]]
care criteria are not part of the PASRR process, but PASRR evaluators
should confirm that the individual has been accurately assessed as
meeting the State's NF level of care, and may consider the individual's
level of care assessment as part of the analysis of the individual's
total needs as described in this section.
0
37. Section 483.134 is revised to read as follows:
Sec. 483.134 Evaluating the need for specialized services.
(a) Basic rule. For each NF applicant with MI or ID who is
recommended for NF placement per Sec. 483.132, and each NF resident
with MI or ID, the evaluator must assess:
(1) The individual's ability to engage in:
(i) Activities of daily living; and
(ii) Instrumental activities of daily living.
(2) The level of support that would be needed to assist the
individual to perform these activities successfully in the NF or while
living in the community; and
(3) Whether the level of support needed can be provided by standard
NF services or whether specialized services, as defined at Sec.
483.120, are required.
(b) Review of specialized services. If specialized services are
already being provided to a NF resident, the evaluator must assess
whether changes need to be made to the specialized services included in
the resident's care plan.
(c) Data. At a minimum, the data relied on to perform the
evaluation must include the data listed in Sec. 483.128(e).
Sec. 483.136 [Removed and Reserved]
0
38. Section 483.136 is removed and reserved.
Subpart E--Appeals of Discharges, Transfers, and Preadmission
Screening and Resident Review (PASRR) Actions
0
39. The heading for subpart E is revised to read as set forth above.
0
40. Section 483.204 is amended by revising paragraph (a)(2) to read as
follows:
Sec. 483.204 Provision of a hearing and appeal system.
(a) * * *
(2) An individual who has been adversely affected by any Level I
identification or Level II PASRR determination made by the State under
subpart C of this part to appeal that Level I identification screen or
Level II determination.
* * * * *
Dated: January 8, 2020.
Seema Verma,
Administrator, Centers for Medicare & Medicaid Services.
Dated: January 24, 2020.
Alex M. Azar II,
Secretary, Department of Health and Human Services.
[FR Doc. 2020-03081 Filed 2-14-20; 11:15 am]
BILLING CODE 4120-01-P
