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Page:United States Statutes at Large Volume 101 Part 2.djvu/983

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-189

have, including those with respect to the behavior of other residents. "(vii) PARTICIPATION IN RESIDENT AND FAMILY GROUPS.—The right of the resident to organize and participate in resident groups in the facility and the right of the resident's family to meet in the facility with the families of other residents in the facility. ^^ "(viii) PARTICIPATION IN OTHER ACTIVITIES.—The

right of the resident to participate in social, religious, and community activities that do not interfere with the rights of other residents in the facility. ^2 "(ix) EXAMINATION OF SURVEY RESULTS.—The right to examine, upon reasonable request, the results of the most recent survey of the facility conducted by the Secretary or a State with respect to the facility and any plan of correction in effect with respect to the facility. ^3 "(x) OTHER RIGHTS.—Any other right established by the Secretary. Clause (iii) shall not be construed as requiring the provision of a private room. "(B) NOTICE OP RIGHTS.—A nursing facility must— "(i) inform each resident, orally and in writing at the time of admission to the facility, of the resident's legal rights during the stay at the facility; "(ii) make available to each resident, upon reasonable request, a written statement of such rights (which statement is updated upon changes in such rights); "(iii) inform each resident who is entitled to medical assistance under this title— "(I) at the time of admission to the facility or, if later, at the time the resident becomes eligible for such assistance, of the items and services (including those specified under section 1902(a)(28XB)) that are included in nursing facility services under the State plan and for which the resident may not be charged (except as permitted in section 1916), and of those other items and services that the facility offers and for which the resident may be charged and the amount of the charges for such items and services, and "(II) of changes in the items and services described in subclause (I) and of changes in the charges imposed for items and services described in that subclause; and "(iv) inform each other resident, in writing before or at the time of admission and periodically during the resident's stay, of services available in the facility and of related charges for such services, including any charges for services not covered under title XVIII or by the facility's basic per diem charge. The written description of legal rights under this subparagraph shall include a description of the protection of personal funds under paragraph (6) and a statement that a "Copy read " "(ix)". "Copy read " "(x)". "Copy read " "(xi)".

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Page:United States Statutes at Large Volume 101 Part 2.djvu/984

 101 STAT. 1330-190

PUBLIC LAW 100-203—DEC. 22, 1987 resident may file a complaint with a State survey and certification agency respecting resident abuse and neglect and misappropriation of resident property in the facility. "(C) RIGHTS OF INCOMPETENT RESIDENTS.—In the case of a resident adjudged incompetent under the laws of a State, the rights of the resident under this title shall devolve upon, and, to the extent judged necessary by a court of competent jurisdiction, be exercised by, the person appointed under State law to act on the resident's behalf. "(D)

USE

OF

PSYCHOPHARMACOLOGIC DRUGS.—Psycho-

pharmacologic drugs may be administered only on the orders of a physician and only as part of a plan (included in the written plan of care described in paragraph (2)) designed to eliminate or modify the symptoms for which the drugs are prescribed and only if, at least annually an independent, external consultant reviews the appropriateness of the drug plan of each resident receiving such drugs. "(2) TRANSFER AND DISCHARGE RIGHTS.—

"(A) IN GENERAL.—A nursing facility must permit each resident to remain in the facility and must not transfer or discharge the resident from the facility unless— "(i) the transfer or discharge is necessary to meet the resident's welfare and the resident's welfare cannot be met in the facility; "(ii) the transfer or discharge is appropriate because the resident's health has improved sufficiently so the resident no longer needs the services provided by the facility; "(iii) the safety of individuals in the facility is endangered; "(iv) the health of individuals in the facility would otherwise be endangered; "(v) the resident has failed, after reasonable and appropriate notice, to pay (or to have paid under this title or title XVIII on the resident's behalf) an allowable charge imposed by the facility for an item or service requested by the resident and for which a charge may be imposed consistent with this title and title XVIII; or "(vi) the facility ceases to operate. In each ^* of the cases described in clauses (i) through (iv), the basis for the transfer or discharge must be documented in the resident's clinical record. In the cases described in clauses (i) and (ii), the documentation must be made by the resident's physician, and in the case described in clause (iv) the documentation must be made by a physician. For purposes of clause (v), in the case of a resident who becomes eligible for assistance under this title after admission to the facility, only charges which may be imposed under this title shall be considered to be allowable. "(B) PRE-TRANSFER AND PRE-DISCHARGE NOTICE.—

"(i) IN GENERAL.—Before effecting a transfer or discharge of a resident, a nursing facility must— •* Copy read "In the each".

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license: Creative Commons - Attribution Share-Alike - https://creativecommons.org/licenses/by-sa/4.0/


text:
Page:United States Statutes at Large Volume 101 Part 2.djvu/985

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-191

"(I) notify the resident (and, if known, an immediate family member of the resident or legal representative) of the transfer or discharge and the reasons therefor, "(II) record the reasons in the resident's clinical record (including any documentation required under subparagraph (A)), and "(III) include in the notice the items described in clause (iii). "(ii) TIMING OF NOTICE.—The notice under clause (i)(I) must be made at least 30 days in advance of the resident's transfer or discharge except— "(I) in a case described in clause (iii) or (iv) of subparagraph (A); "(II) in a case described in clause (ii) of subparagraph (A), where the resident's health improves sufficiently to allow a more immediate transfer or discharge; "(III) in a case described in clause (i) of subparagraph (A), where a more immediate transfer or discharge is necessitated by the resident's urgent medical needs; or "(IV) in a case where a resident has not resided in the facility for 30 days. In the case of such exceptions, notice must be given as many days before the date of the transfer or discharge as is practicable. "(iii) ITEMS INCLUDED IN NOTICE.—Each notice under clause (i) must include— "(I) for transfers or discharges effected on or after October 1, 1989, notice of the resident's right to appeal the transfer or discharge under the State process established under subsection (e)(3); "(II) the name, mailing address, and telephone number of the State long-term care ombudsman (established under section 307(a)(12) of the Older Americans Act of 1965); "(III) in the case of residents with developmental disabilities, the mailing address and telephone number of the agency responsibile for the protection and advocacy system for developmentally disabled individuals established under part C of the Developmental Disabilities Assistance and Bill of Rights Act; and defined in subsection (e)(^XGXi)), the mailing address and telephone number of the agency responsible for the protection and advocacy system for mentally ill individuals established under the Protection and Advocacy for Mentally 111 Individuals Act. "(C) ORIENTATION.—A nursing facility must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility. "(D) NOTICE ON BED-HOLD POLICY AND READMISSION.— "(i) NOTICE BEFORE TRANSFER.—Before a resident of a
 * (IV) in the case of mentally ill residents (as

nursing facility is transferred for hospitalization or

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Page:United States Statutes at Large Volume 101 Part 2.djvu/986

 101 STAT. 1330-192

PUBLIC LAW 100-203—DEC. 22, 1987 therapeutic leave, a nursing facility must provide written information to the resident and an immediate family member or legal representative concerning— "(I) the provisions of the State plan under this title regarding the period (if any) during which the resident will be permitted under the State plan to return and resume residence in the facility, and "(II) the policies of the facility regarding such a period, which policies must be consistent with clause (iii). "(ii) NOTICE UPON TRANSFER.—At the time of transfer of a resident to a hospital or for therapeutic leave, a nursing facility must provide written notice to the resident and an immediate family member or legal representative of the duration of any period described in clause (i). "(iii) PERMITTING RESIDENT TO RETURN.—A nursing facility must establish and follow a written policy under which a resident— "(I) who is eligible for medical sissistance for nursing facility services under a State plan, "(II) who is transferred from the facility for hospitalization or therapeutic leave, and "(III) whose hospitalization or therapeutic leave exceeds a period paid for under the State plan for the holding of a bed in the facility for the resident, will be permitted to be readmitted to the facility immediately upon the first availability of a bed in a semiprivate room in the facility if, at the time of readmission, the resident requires the services provided by the facility. "(3) ACCESS AND VISITATION RIGHTS.—A

nursing

facility

must— "(A) permit immediate access to any resident by any representative of the Secretary, by any representative of the State, by an ombudsman or agency described in subclause (II), (III), or (IV) of paragraph (2)(B)(iii), or by the resident's individual physician; "(B) permit immediate access to a resident, subject to the resident's right to deny or withdraw consent at any time, by immediate family or other relatives of the resident; "(C) permit immediate access to a resident, subject to reasonable restrictions and the resident's right to deny or withdraw consent at any time, by others who are visiting with the consent of the resident; "(D) permit reasonable access to a resident by any entity or individual that provides health, social, legal, or other services to the resident, subject to the resident's right to deny or withdraw consent at any time; and "(E) permit representatives of the State ombudsman (described in paragraph (2)(B)(iiiXII)), with the permission of the resident (or the resident's legal representative) and consistent with State law, to examine a resident's clinical records. "(4) EQUAL ACCESS TO QUAUTY CARE.—

"(A) IN GENERAL.—A nursing facility must establish and maintain identical policies and practices regarding trans-

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Page:United States Statutes at Large Volume 101 Part 2.djvu/987

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-193

fer, discharge, and the provision of services required under the State plan for all individuals regardless of source of payment. (B) CONSTRUCTION.— "(i) NOTHING PROHIBITING ANY CHARGES FOR NON-

MEDiCAiD PATIENTS.—Subparagraph (A) shall not be construed as prohibiting a nursing facility from charging any amount for services furnished, consistent with the notice in paragraph (I)(B) describing such charges, "(ii) No ADDITIONAL SERVICES REQUIRED.—Subparagraph (A) shall not be construed as requiring a State to offer additional services on behalf of a resident than are otherwise provided under the State plan. '(5) ADMISSIONS POLICY.—

"(A) ADMISSIONS.—With respect to admissions practices, a nursing facility must— "(i)(1) not require individuals applying to reside or residing in the facility to waive their rights to benefits under this title or title XVIII, (II) not require oral or written assurance that such individuals are not eligible for, or will not apply for, benefits under this title or title XVIII, and (III) prominently display in the facility written information, and provide to such individuals oral and written information, about how to apply for and use such benefits and how to receive refunds for previous payments covered by such benefits; "(ii) not require a third party guarantee of payment to the facility as a condition of admission (or expedited admission) to, or continued stay in, the facility; and "(iii) in the case of an individual who is entitled to medical Eissistance for nursing facility services, not charge, solicit, accept, or receive, in addition to any amount otherwise required to be paid under the State plan under this title, any gift, money, donation, or other consideration as a precondition of admitting (or expediting the admission of) the individual to the facility or as a requirement for the individual's continued stay in the facility. "(B) CONSTRUCTION.— "(i) N o PREEMPTION

OF

STRICTER

STANDARDS.—

Subparagraph (A) shall not be construed as preventing States or political subdivisions therein from prohibiting, under State or local law, the discrimination against individuals who are entitled to medical assistance under the State plan with respect to admissions practices of nursing facilities. "(ii)

CONTRACTS

WITH

LEGAL

REPRESENTATIVES.—

Subparagraph (A)(ii) shall not be construed as preventing a facility from requiring an individual, who has legal access to a resident's income or resources available to pay for care in the facility, to sign a contract (without incurring personal financial liability) to provide payment from the resident's income or resources for such care. "(iii) CHARGES FOR ADDITIONAL SERVICES REQUESTED.— Subparagraph (A)(iii) shall not be construed as preventing a facility from charging a resident, eligible for

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text:
Page:United States Statutes at Large Volume 101 Part 2.djvu/988

 101 STAT. 1330-194

PUBLIC LAW 100-203—DEC. 22, 1987 medical assistance under the State plan, for items or services the resident has requested and received and that are not specified in the State plan as included in the term 'nursing facility services'. "(iv)

BONA

FIDE

CONTRIBUTIONS.—Subparagraph

(A)(iii) shall not be construed as prohibiting a nursing facility from soliciting, accepting, or receiving a charitable, religious, or philanthropic contribution from an organization or from a person unrelated to the resident (or potential resident), but only to the extent that such contribution is not a condition of admission, expediting admission, or continued stay in the facility. "(6) PROTECTION OF RESIDENT FUNDS.—

"(A) IN GENERAL.—The nursing facility— "(i) may not require residents to deposit their personal funds with the facility, and "(ii) once the facility accepts the written authorization of the resident, must hold, safeguard, and account for such personal funds under a system established and maintained by the facility in accordance with this paragraph. "(B) MANAGEMENT OF PERSONAL FUNDS.—Upon a facility's acceptance of written authorization of a resident under subparagraph (A)(ii), the facility must manage and account for the personal funds of the resident deposited with the facility as follows: "(i) DEPOSIT.—The facility must deposit any amount of personal funds in excess of $50 with respect to a resident in an interest bearing account (or accounts) that is separate from any of the facility's operating accounts and credits all interest earned on such separate account to such account. With respect to any other personal funds, the facility must maintain such funds in a non-interest bearing account or petty cash fund. "(ii) ACCOUNTING AND RECORDS.—The facility must assure a full and complete separate accounting of each such resident's personal funds, maintain a written record of all financial transactions involving the personal funds of a resident deposited with the facility, and afford the resident (or a legal representative of the resident) reasonable access to such record. "(iii) NOTICE OF CERTAIN BALANCES.—The facility must notify each resident receiving medical assistance under the State plan under title XIX when the amount in the resident's account reaches $200 less than the dollar amount determined under section 1611(a)(3)(B) and the fact that if the amount in the account (in addition to the value of the resident's other nonexempt resources) reaches the amount determined under such section the resident may lose eligibility for such medical assistance or for benefits under title XVI. "(iv) CONVEYANCE UPON DEATH.—Upon the death of a resident with such an account, the facility must convey promptly the resident's personal funds (and a final accounting of such funds) to the individual administering the resident's estate. ' ' ^"

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Page:United States Statutes at Large Volume 101 Part 2.djvu/989

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-195

"(C) ASSURANCE OF FINANCIAL SECURITY.—The facility must purchase a surety bond, or otherwise provide assurance satisfactory to the Secretary, to assure the security of all personal funds of residents deposited with the facility. "(D) LIMITATION ON CHARGES TO PERSONAL FUNDS.—The

facility may not impose a charge against the personal funds of a resident for any item or service for which payment is made under this title or title XVIIL "(d) REQUIREMENTS RELATING TO ADMINISTRATION AND OTHER MATTERS.— "(1) ADMINISTRATION.—

"(A) IN GENERAL.—A nursing facility must be administered in a manner that enables it to use its resources effectively and efficiently to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident (consistent with requirements established under subsection (fK5)). "(B) REQUIRED NOTICES.—If a change occurs in— "(i) the persons with an ownership or control interest (as defined in section 1124(a)(3)) in the facility, "(ii) the persons who are officers, directors, agents, or managing employees (as defined in section 1126(b)) of the facility, "(iii) the corporation, association, or other company responsible for the management of the facility, or "(iv) the individual who is the administrator or director of nursing of the facility, the nursing facility must provide notice to the State agency responsible for the licensing of the facility, at the time of the change, of the change and of the identity of each new person, company, or individual described in the respective clause. "(C)

NURSING FACILITY ADMINISTRATOR.—The adminis-

trator of a nursing facility must meet standards established by the Secretary under subsection (fK4). "(2) LICENSING AND U F E SAFETY CODE.—

"(A) LICENSING.—A nursing facility must be licensed under applicable State and local law. "(B) LIFE SAFETY CODE.—A nursing facility must meet such provisions of such edition (as specified by the Secretary in regulation) of the Life Safety Code of the National Fire Protection Association as are applicable to nursing homes; except that— "(i) the Secretary may waive, for such periods as he deems appropriate, specific provisions of such Code which if rigidly applied would result in unreasonable hardship upon a facility, but only if such waiver would not adversely affect the health and safety of residents or personnel, and "(ii) the provisions of such Code shall not apply in any State if the Secretary finds that in such State there is in effect a fire and safety code, imposed by State law, which adequately protects residents of and personnel in nursing facilities. "(3) SANITARY AND INFECTION CONTROL AND PHYSICAL ENVIRON-

MENT.—A nursing facility must—

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text:
Page:United States Statutes at Large Volume 101 Part 2.djvu/990

 101 STAT. 1330-196

PUBLIC LAW 100-203—DEC. 22, 1987 "(A) establish and maintain an infection control program designed to provide a safe, sanitary, and comfortable environment in which residents reside and to help prevent the development and transmission of disease and infection, and "(B) be designed, constructed, equipped, and maintained in a manner to protect the health and safety of residents, personnel, and the general public. "(4) MISCELLANEOUS.— "(A) COMPUANCE WITH FEDERAL, STATE, AND LOCAL LAWS

AND PROFESSIONAL STANDARDS.—A nursing facility must operate and provide services in compliance with all applicable Federal, State, and local laws and regulations (including the requirements of section 1124 and with accepted professional standards and principles which apply to professionals providing services in such a facility. "(B) OTHER.—A nursing facility must meet such other requirements relating to the health and safety of residents or relating to the physical facilities thereof as the Secretary may find necessary.'. (c) STATE REQUIREMENTS RELATING TO NURSING FACILITY REQUIRE-

42 USC I396r.

MENTS.—Section 1919 of such Act is further amended by adding at the end the following new subsection: "(e)

STATE

REQUIREMENTS

RELATING

TO

NURSING

FACILITY

REQUIREMENTS.—As a condition of approval of ** its plan under this title, a State must provide for the following: "(1) SPECIFICATION AND REVIEW OF NURSE AIDE TRAINING AND COMPETENCY EVALUATION PROGRAMS AND OF NURSE AIDE COMPETENCY EVALUATION PROGRAMS.—The State must—

"(A) by not later than September 1, 1988, specify those training and competency evaluation programs, and those competency evaluation programs, that the State approves for purposes of subsection (b)(5) and that meet the requirements established under clause (i) or (ii) of subsection (fK2XA), and "(B) by not later than September 1, 1990, provide for the review and reapproval of such programs, at a frequency and using a methodology consistent with the requirements established under subsection (fK2XAXiii). The failure of the Secretary to establish requirements under subsection (f)(2) shall not relieve any State of its responsibility under this paragraph. "(2) NURSE AIDE REGISTRY.—

"(A) IN GENERAL.—By not later than January 1, 1989, the State shall establish and maintain a registry of all individuals who have satisfactorily completed a nurse aide training and competency evaluation program, or a nurse aide competency evaluation program, approved under paragraph (1) in the State. "(B) INFORMATION IN REGISTRY.—The registry under subparagraph (A) shall provide (in accordance with regulations of the Secretary) for the inclusion of specific documented findings by a State under subsection (g)(l)(C) of resident neglect or abuse or misappropriation of resident •* Copy read "approval its".

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text:
Page:United States Statutes at Large Volume 101 Part 2.djvu/991

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-197

property involving an individual listed in the registry, as well as any brief statement of the individual disputing the findings. In the case of inquiries to the registry concerning an individual listed in the registry, any information disclosed concerning such a finding shall also include disclosure of any such statement in the registry relating to the finding or a clear and accurate summary of such a statement. "(3) STATE APPEALS PROCESS FOR TRANSFERS.—The State, for transfers from nursing facilities effected on or after October 1, 1989, must provide for a fair mechanism, meeting the guidelines established under subsection (fK3), for hearing appeals on transfers of residents of such facilities; but the failure of the Secretary to establish such guidelines under such subsection shall not relieve any State of its responsibility under this paragraph. "(4)

NURSING FACILITY ADMINISTRATOR STANDARDS.—By

not

later than July 1, 1989, the State must have implemented and enforced the nursing facility administrator standards developed under subsection (f)(4) respecting the qualification of administrators of nursing facilities. "(5)

SPECIFICATION OF RESIDENT ASSESSMENT INSTRUMENT.—

Effective July 1, 1990, the State shall specify the instrument to be used by nursing facilities in the State in complying with the requirement of subsection (b)(SXAXiii). Such instrument shall be"(A) one of the instruments designated under subsection (fK6XB), or "(B) an instrument which the Secretary has approved as being consistent with the minimum data set of core elements, common definitions, and utilization guidelines specified by the Secretary under subsection (fK6XA). "(6) NOTICE OF MEDICAID RIGHTS.—Each State, as a condition of approval of its plan under this title, effective April 1, 1988, must develop (and periodically update) a written notice of the rights and obligations of residents of nursing facilities (and spouses of such residents) under this title. "(7) STATE REQUIREMENTS FOR PREADMISSION SCREENING AND RESIDENT REVIEW.— "(A) PREADMISSION SCREENING.—Effective January 1,

1989, the State must have in effect a preadmission screening program, for making determinations (using any criteria developed under subsection (f)(8)) described in subsection (b)(3)(F) for mentally ill and mentally retarded individuals (as defined in subparagraph (G)) who are admitted to nursing facilities on or after January 1, 1989. The failure of the Secretary to develop minimum criteria under subsection (f)(8) shall not relieve any State of its responsibility to have a preadmission screening program under this subparagraph or to perform resident reviews under subparagraph (B). "(B) STATE REQUIREMENT FOR ANNUAL RESIDENT REVIEW.— "(i) FOR MENTALLY ILL RESIDENTS.—As of April 1,

1990, in the case of each resident of a nursing facility who is mentally ill, the State mental health authority must review and determine (using any criteria developed under subsection (f)(8) and based on an independent physical and mental evaluation performed by a

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text:
Page:United States Statutes at Large Volume 101 Part 2.djvu/992

 101 STAT. 1330-198

PUBLIC LAW 100-203—DEC. 22, 1987 person or entity other than the State mental health authority)— "(I) whether or not the resident, because of the resident's physical and mental condition, requires the level of services provided by a nursing facility or requires the level of services of an inpatient psychiatric hospital for individuals under age 21 (as described in section 1905(h)) or of an institution for mental diseases providing medical assistance to individuals 65 years of age or older; and "(II) whether or not the resident requires active treatment for mental illness, "(ii) FOR MENTALLY RETARDED RESIDENTS.—As of April 1, 1990, in the case of each resident of a nursing facility who is mentally retarded, the State mental retardation or developmental disability authority must review and determine (using any criteria developed under subsection (0(8))— "(I) whether or not the resident, because of the resident's physical and mental condition, requires the level of services provided by a nursing facility or requires the level of services of an intermediate care facility described under section 1905(d); and "(II) whether or not the resident requires active treatment for mental retardation, "(iii) FREQUENCY OF REVIEWS.— "(I) ANNUAL.—Except as provided in subclauses (II) and (III), the reviews and determinations under clauses (i) and (ii) must be conducted with respect to each mentally ill or mentally retarded resident not less often than annually. "(II) PREADMISSION REVIEW CASES.—In the case of a resident subject to a preadmission review under subsection (b)(3)(F), the review and determination under clause (i) or (ii) need not be done until the resident has resided in the nursing facility for 1 year. "(Ill) INITIAL REVIEW.—The reviews and determinations under clauses (i) and (ii) must first be conducted (for each resident not subject to preadmission review under subsection (b)(3)(F)) by not later than April 1, 1990. "(C) RESPONSE TO PREADMISSION SCREENING AND RESIDENT

REVIEW.—AS of April 1, 1990, the State must meet the following requirements: "(i) LONG-TERM RESIDENTS NOT REQUIRING NURSING FACILITY SERVICES, BUT REQUIRING ACTIVE TREATMENT.—

In the case of a resident who is determined, under subparagraph (B), not to require the level of services provided by a nursing facility, but to require active treatment for rciental illness or mental retardation, and who has continuously resided in a nursing facility 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 care-givers—

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Page:United States Statutes at Large Volume 101 Part 2.djvu/993

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-199

"(I) inform the resident of the institutional and noninstitutional alternatives covered under the State plan for the resident, "(11) offer the resident the choice of remaining in the facility or of receiving covered services in an alternative appropriate institutional or noninstitutional setting, "(III) clarify the effect on eligibility for services under the State plan if the resident chooses to leave the facility (including its effect on readmission to the facility), and "(IV) regardless of the resident's choice, provide for (or arrange for the provision of) such active treatment for the mental illness or mental retardation. A State shall not be denied payment under this title for nursing facility services for a resident described in this clause because the resident does not require the level of services provided by such a facility, if the resident chooses to remain in such a facility. "(ii)

OTHER RESIDENTS N O T R E Q U I R I N G N U R S I N G FACIL-

ITY SERVICES, BUT REQUIRING ACTIVE TREATMENT.—In

the case of a resident who is determined, under subparagraph (B), not to require the level of services provided by a nursing facility, but to require active treatment for mental illness or mental retardation, and who has not continuously resided in a nursing facility 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 care-givers— "(I) arrange for the safe and orderly discharge of the resident from the facility, consistent with the requirements of subsection (c)(2), "(II) prepare and orient the resident for such discharge, and "(III) provide for (or arrange for the provision of) such active treatment for the mental illness or mental retardation, "(iii) RESIDENTS NOT REQUIRING NURSING FACILITY SERVICES AND NOT REQUIRING ACTIVE TREATMENT.—In

the case of a resident who is determined, under subparagraph (B), not to require the level of services provided by a nursing facility and not to require active treatment for mental illness or mental retardation, the State must— "(I) arrange for the safe and orderly discharge of the resident from the facility, consistent with the requirements of subsection (c)(2), and "(II) prepare and orient the resident for such discharge. "(D)

DENIAL OF PAYMENT WHERE FAILURE TO CONDUCT

PREADMISSION SCREENING.—No payment may be made under section 1903(a) with respect to nursing facility services furnished to an individual for whom a determination is required under subsection 0)X3XF) or subparagraph (B) but for whom the determination is not made.

91-194 O - 90 - 32: QL.3 Part 2

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Page:United States Statutes at Large Volume 101 Part 2.djvu/994

 101 STAT. 1330-200 Contracts.

PUBLIC LAW 100-203—DEC. 22, 1987 "(E) PERMITTING ALTERNATIVE DISPOSITION PLANS.—With

respect to residents of a nursing facility who are mentally retarded or mentally ill and who are determined under subparagraph (B) not to require the level of services of such a facility, but who require active treatment for mental illness or mental retardation, a State and the nursing facility shall be considered to be in compliance with the requirement of this paragraph if, before October 1, 1988, the State and the Secretary have entered into an agreement relating to the disposition of such residents of the facility and the State is in compliance with such agreement. Such an agreement may provide for the disposition of the residents after the date specified in subparagraph (C). "(F) APPEALS PROCEDURES.—Each State, as a condition of approval of its plan under this title, effective January 1, ^ 1989, must have in effect an appeals process for individuals adversely affected by determinations under subparagraph (A) or (B). "(G) DEFINITIONS.—In this paragraph and in subsection (b)(3)(F): ^ "(i) An individual is considered toT)e 'mentally ill' if the individual has a primary or secondary diagnosis of mental disorder (as defined in the Diagnostic and Statistical Manual of Mental Disorders, 3rd edition) and does not have a primary diagnosis of dementia (including Alzheimer's disease or a related disorder), "(ii) An individual is considered to be 'mentally retarded' if the individual is mentally retarded or a person with a related condition (as described in section 1905(d)). ^ / "(iii) The term 'active treatment' has the meaning '. given such term by the Secretary in regulations, but does not include, in the case of a resident of a nursing "' » facility, services within the scope of services which the facility must provide or arrange for its residents under subsection (b)(4). (f) RESPONSIBIUTIES OF SECRETARY RELATING TO NURSING FACILITY REQUIREMENTS.— "(1) GENERAL RESPONSIBILITY.—It is the duty and responsibil-

ity of the Secretary to assure that requirements which govern the provision of care in nursing facilities under State plans approved under this title, and the enforcement of such requirements, are adequate to protect the health, safety, welfare, and rights of residents and to promote the effective and efficient use of public moneys. (2) REQUIREMENTS FOR NURSE AIDE TRAINING AND COMPETENCY EVALUATION PROGRAMS AND FOR NURSE AIDE COMPETENCY EVALUATION PROGRAMS.—

"(A) IN GENERAL.—For purposes of subsections (b)(5) and (e)(l)(A), the Secretary shall establish, by not later than July 1, 1988— "(i) requirements for the approval of nurse aide training and competency evaluation programs, including requirements relating to (I) the areas to be covered in such a program (including at least basic nursing skills, personal care skills, cognitive, behavioral and social care, basic restorative services, and residents'

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text:
Page:United States Statutes at Large Volume 101 Part 2.djvu/995

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-201

rights), content of the curriculum, (II) minimum hours of initial and ongoing training and retraining (including not less than 75 hours in the case of initial training), (III) qualifications of instructors, and (IV) procedures for determination of competency; "(ii) requirements for the approval of nurse aide competency evaluation programs, including requirement relating to the areas to be covered in such a program, including at least basic nursing skills, personal care skills, cognitive, behavioral and social care, basic restorative services, and residents' rights, and procedures for determination of competency; "(iii) requirements respecting the minimum frequency and methodology to be used by a State in reviewing such programs' compliance with the requirements for such programs.

-

"(B)

APPROVAL OF CERTAIN PROGRAMS.—Such require-

ments— "(i) may permit approval of programs offered by or in facilities, as well as outside facilities (including employee organizations), and of programs in effect on the date of the enactment of this section; "(ii) shall permit a State to find that an individual who has completed (before January 1, 1989) a nurse aide training and competency evaluation program shall be deemed to have completed such a program approved under subsection (b)(5) if the State determines that, at the time the program was offered, the program met the requirements for approval under such paragraph; and "(iii) shall prohibit approval of such a program— "(I) offered by or in a nursing facility which has been determined to be out of compliance with the requirements of subsection (b), (c), or (d), within the previous 2 years, or "(II) offered by or in a nursing facility unless the State makes the determination, upon an individual's completion of the program, that the individual is competent to provide nursing and nursing-related services in nursing facilities. A State may not delegate its responsibility under clause (iiiXII) to the nursing facility. "(3)

FEDERAL GUIDELINES FOR STATE APPEALS PROCESS FOR

TRANSFERS.—For purposes of subsections (c)(2)(B)(iii) and (e)(3), by not later than October 1, 1988, the Secretary shall establish guidelines for minimum standards which State appeals processes under subsection (e)(3) must meet to provide a fair mechanism for hearing appeals on transfers of residents from nursing facilities. "(4) SECRETARIAL STANDARDS QUALIFICATION OF ADMINISTRA-

TORS.—For purposes of subsections (d)(l)(C) and (e)(4), the Secretary shall develop, by not later than March 1, 1988, standards to be applied in assuring the qualifications of administrators of nursing facilities. "(5) CRITERIA FOR ADMINISTRATION.—The Secretary shall establish criteria for assessing a nursing facility's compliance with the requirement of subsection (d)(1) with respect to— "(A) its governing body and management,

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Page:United States Statutes at Large Volume 101 Part 2.djvu/996

 101 STAT. 1330-202

PUBLIC LAW 100-203—DEC. 22, 1987 "(B) agreements with hospitals regarding transfers of residents to and from the hospitals and to and from other nursing facilities, "(C) disaster preparedness, "(D) direction of medical care by a physician, "(E) laboratory and radiological services, "(F) clinical records, and "(G) resident and advocate participation. "(6) SPECIFICATION OF RESIDENT ASSESSMENT DATA SET AND

INSTRUMENTS.—The Secretary shall— "(A) not later than January 1, 1989, specify a minimum data set of core elements and common dehnitions for use by nursing facilities in conducting the assessments required under subsection (b)(3), and establish guidelines for utiliza• tion of the data set; and "(B) by not later than April 1, 1990, designate one or more instruments which are consistent with the specification made under subparagraph (A) and which a State may specify under subsection (e)(5)(A) for use by nursing facilities in complying with the requirements of subsection s; (b)(3)(A)(iii). "(7) LIST OF ITEMS AND SERVICES FURNISHED IN NURSING FACILITIES N O T C H A R G E A B L E TO THE PERSONAL FUNDS OF A RESIDENT.— "(A) REGULATIONS REQUIRED.—Pursuant to the require-

ment of section 21(b) of the Medicare-Medicaid Anti-Fraud and Abuse Amendments of 1977, the Secretary shall issue regulations, on or before the first day of the seventh month to begin after the date of enactment of this section, that define those costs which may be charged to the personal funds of patients in nursing facilities who are individuals receiving medical assistance with respect to nursing facility services under this title and those costs which are to be included in the payment amount under this title for nursing facility services. (B) RULE IF FAILURE TO PUBUSH REGULATIONS.—If the

^' '

Secretary does not issue the regulations under subparagraph (A) on or before the date required in that subparagraph, in the case of a resident of a nursing facility who is eligible to receive benefits for nursing facility services under this title, for purposes of section 1902(a)(28XB), the Secretary shall be deemed to have promulgated regulations under this paragraph which provide that the costs which may not be charged to the personal funds of such resident (and for which payment is considered to be made under this title) do not include, at a minimum, the costs for routine personal hygiene items and services furnished by the fsicility.

"(8) FEDERAL MINIMUM CRITERIA AND MONITORING FOR • PREADMISSION SCREENING AND RESIDENT REVIEW.— ^ "(A) MINIMUM CRITERIA.—The Secretary shall develop, by

not later than October 1, 1988, minimum criteria for States to use in making determinations under subsections (b)(3)(F) and (e)(7)(B) and in permitting individuals adversely affected to appeal such determinations, and shall notify the States of such criteria. "(B) MONITORING COMPLIANCE.—The Secretary shall review, in a sufficient number of cases to allow reasonable

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Page:United States Statutes at Large Volume 101 Part 2.djvu/997

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-203

inferences, each State's compliance with the requirements of subsection (e)(7)(C)(ii) (relating to discharge and placement for active treatment of certain residents). "(9) ® CRITERIA FOR MONITORING STATE WAIVERS.—The Sec^ retary shall develop, by not later than October 1, 1988, criteria and procedures for monitoring State performances in granting waivers pursuant to subsection (b)(4)(C)(ii).". (b) INCORPORATING REQUIREMENTS INTO STATE PLAN.—

(1) IN GENERAL.—Section 1902(a) of such Act (42 U.S.C. .1396a(a)) is amended— (A) in paragraph (13)(A), by inserting "which, in the case of nursing facilities, take into account the costs of complying with subsections (b) (other than paragraph (3)(F) thereof), (c), and (d) of section 1919 and provide (in the case of a nursing facility with a waiver under section 1919(b)(4)(C)(ii)) for an appropriate reduction to take into account the lower costs (if any) of the facility for nursing care," after "State" the second place it appears; and (B) by amending paragraph (28) to read as follows: "(28) provide— "(A) that any nursing facility receiving payments under such plan must satisfy all the requirements of subsections (b) through (d) of section 1919 as they apply to such facilities; "(B) for including in 'nursing facility services' at least the items and services specified (or deemed to be specified) by the Secretary under section 1919(f)(7) and making available upon request a description of the items and services so included; "(C) for procedures to make available to the public the data and methodology used in establishing payment rates for nursing facilities under this title; and "(D) for compliance (by the date specified in the respective sections) with the requirements of— "(i) section 1919(0 (relating to implementation of , nursing facility requirements, including paragraph ,: (6)(B), relating to specification of resident assessment instrument); "(ii) section 1919(g) (relating to responsibility for survey and certification of nursing facilities); and "(iii) sections 1919(h)(2)(B) and 1919(h)(2)(D) (relating to establishment and application of remedies);". (2) STATE PLAN AMENDMENT REQUIRED.—A plan of a State 42 USC I396a under title XIX of the Social Security Act shall not be consid- note. ered to have met the requirement of section 1902(a)(13)(A) of the Social Security Act (as amended by paragraph (1)(A) of this subsection), as of the first day of a Federal fiscal year (beginning on or after October 1, 1990), unless the State has submitted to the Secretary of Health and Human Services, as of April 1 before the fiscal year, an amendment to such State plan to provide for an appropriate adjustment in payment amounts for nursing facility services furnished during the Federal fiscal year. The Secretary shall, not later than September 80 before the fiscal year concerned, review each such plan amendment for •e Copy read " "(8)".

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Page:United States Statutes at Large Volume 101 Part 2.djvu/998

 101 STAT. 1330-204

PUBLIC LAW 100-203—DEC. 22, 1987

-

Reports. 42 USC 1396r "°^®-

compliance with such requirement and by such date shall approve or disapprove each such amendment. If the Secretary disapproves such an amendment, the State shall immediately submit a revised amendment which meets such requirement. The absence of approval of such a plan amendment does not relieve the State or any nursing facility of any obligation or requirement under title XIX of the Social Security Act (as amended by this Act). (c) EVALUATION.—The Secretary of Health and Human Services shall evaluate, and report to Congress by not later than January 1, 1993, on the implementation of the resident assessment process for residents of nursing facilities under the amendments made by this section. (d) FUNDING.—

(1) IN GENERAL.—Section 1903(a)(2) of such Act (42 U.S.C. 1396b(a)(2)) is amended— (A) by inserting "(A)" after "(2)", and (B) by adding at the end the following new subparagraphs: "(B) notwithstanding paragraph (1) or subparagraph (A), with .V respect to amounts expended for nursing aide training and competency evaluation programs, and competency evaluation programs, described in section 1919(e)(1), regardless of whether the programs are provided in or outside nursing facilities or of the skill of the personnel involved in such programs, an amount equal to 50 percent of so much of the sums expended during such quarter (as found necessary by the Secretary for the proper and efficient administration of the State plan) as are attributable to such programs; plus J "(C) an amount equal to 75 percent of so much of the sums ^ expended during such quarter (as found necessary by the Secretary for the proper and efficient administration of the State plan) as are attributable to preadmission screening and resident review activities conducted by the State under section 1919(e)(7); plus". 42 USC 1396b

iiote.

\^, ^''' ^' ':;

(2) ENHANCED FUNDING FOR NURSE AIDE TRAINING.—For Cal-

endar quarters during fiscal years 1988 and 1989, with respect ^' to payment under section 1903(a)(2)(B) of the Social Security Act to a State for additional amounts expended by the State under ' ' its plan approved under title XIX of such Act for nursing aide training and competency evaluation programs, and competency '*' evaluation programs, described in section 1919(e)(1) of such title, any reference to "50 percent" is deemed a reference to the sum of the Federal medical assistance percentage (determined under section 1905(b) of such Act) plus 25 percentage points, but not to exceed 90 percent. (e) REVISION OF PREVIOUS DEFINITIONS.—Section 1905 of such Act (42 U.S.C. 1396d) is amended— (1) by amending subsection (c) to read as follows: "(c) For definition of the term 'nursing facility', see section 1919(a)."; (2) in subsection (d)— (A) by striking "intermediate care facility services" and inserting "intermediate care facility for the mentally re>^^ - i tarded", (B) by striking "may include services in a public" and inserting "means an",

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Page:United States Statutes at Large Volume 101 Part 2.djvu/999

 PUBLIC LAW 100-203—DEC. 22, 1987 ft'

101 STAT. 1330-205

(C) in paragraph (3), by inserting "in the case of a public institution," after "(3)"; (3) in subsection (f), by striking "skilled" each place it appears; and (4) by striking subsection (i). (f) MAKING COVERAGE OF NURSING FACILITY SERVICES MANDATORY

FOR ADULTS.—Section 1905(a)(4)(A) of such Act (42 U.S.C. 1396d(a)(4)(A)) is amended by striking "skilled". (g) ELIMINATION OF PAYMENT DIFFERENTIAL.—Section 1903 of such Act (42 U.S.C. 1396b) is amended— (1) by striking subsection (h), and (2) in subsection (a)(D, by striking ", (h), and" and inserting "and". (h) CLARIFYING TERMINOLOGY.—(1) Section 1902(a)(10) of such Act (42 U.S.C. 1396a(a)(10)) is amended— (A) in subparagraph (A)(iiXVI), by striking "skilled" and by inserting "for the mentally retarded" after "intermediate care facility"; (B) in subparagraph (C)(iv), by striking "intermediate care facility services" and inserting "in an intermediate care facility"; and (C) in subparagraph (D), by striking "skilled". (2) Section 1902(a)(13) of such Act (42 U.S.C. 1396a(a)(13)) is amended— (A) in subparagraph (A), by striking ", skilled nursing facility, and intermediate care facility services" and inserting "services, nursing facility services, and services in an intermediate care facility for the mentally retarded"; *'^ (B) in subparagraph (A), by striking ", skilled nursing facility, and intermediate care facility and" and inserting "nursing facility, and intermediate care facility for the mentally retarded and"; (C) in subparagraph (C), by striking "skilled nursing facilities and intermediate care facilities" and inserting "nursing facilities"; and (D) in subparagraph (D)— (i) by striking "skilled nursing facility or intermediate care facility" and inserting "nursing facility", and (ii) by striking "skilled nursing facility services or intermediate care facility services" and inserting "nursing facility services" (3) Section 1902(a)(30XB) of such Act (42 U.S.C. 1396a(a)(30XB)) is amended by striking "skilled nursing facility, intermediate care facility," each place it appears and inserting "intermediate care facility for the mentally retarded,". (4) Section 1902(e)(3)(B)(i) of such Act (42 U.S.C. 1396a(e)(3)(B)(i)) is amended by striking "skilled nursing facility, or intermediate care facility" and inserting "nursing facility, or intermediate care facility for the mentally retarded". (5) Section 1902(e)(9) of such Act (42 U.S.C. 1396a(e)(9)) is amended— (A) in subparagraph (A)(iii), by striking "skilled nursing facility, or intermediate care facility," and inserting "nursing facility, or intermediate care facility for the mentally retarded" and
 * ' Copy read "retarded",".

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Page:United States Statutes at Large Volume 101 Part 2.djvu/1000

 101 STAT. 1330-206

PUBLIC LAW 100-203—DEC. 22, 1987

(B) in subparagraph (B), by striking "skilled nursing facilities, or intermediate care facilities" and inserting "nursing facilities, (6) Section 1905(a) of such Act (42 U.S.C. 1396d(a)) is amended— (A) in paragraph (5), by striking "skilled", y (B) in paragraph (14), by striking ", skilled nursing facility services, and intermediate care facility services" and inserting "and nursing facility services", and 4; (C) in paragraph (15), by striking "intermediate care facility services (other than such services" and inserting "services in an intermediate care facility for the mentally retarded (other than". (7) Section 1128B of such Act (42 U.S.C. 1320a-7b) is amended— (A) in subsection (c), by striking "intermediate care facility" and inserting "nursing facility, intermediate care facility for the mentally retarded", and (B) in subsection (d)(2)(A), by striking "skilled nursing facility, or intermediate care facility" and inserting "nursing facility, or t intermediate care facility for the mentally retarded". (8) Section 1911 of such Act (42 U.S.C. 1396j) is amended by striking ", intermediate care facility, or skilled nursing facility ' each place it appears and inserting "or nursing facility". (9) Section 1913 of such Act (42 U.S.C. 13961) is amended— (A) in the heading, by striking "SKILLED NURSING AND INTERMEDIATE ICES";
 * i or intermediate care facilities for the mentally retarded".

CARE SERVICES" and inserting

"NURSING FACILITY SERV-

(B) in subsection (a)— (i) by striking "skilled nursing facility services and intermediate care facility services" and inserting "nursing facility services", and V (ii) by inserting before the period at the end the following: "and which, with respect to the provision of such services, meets the requirements of subsections (b) through (d) of section 1919"; (C) in subsection (b)(1)— (i) by striking "skilled nursing or intermediate care facil^jj.. ity services" and inserting "nursing facility services", and (ii) by striking "skilled nursing and intermediate care facilities" and inserting "nursing facilities"; and (D) in subsection (b)(3), by striking "skilled nursing or intermediate care facility services" and inserting "nursing facility services' (10) Section 1915(c) of such Act (42 U.S.C. 1396n(c)) is amended— (A) in paragraph (1), by striking "skilled nursing facility or intermediate care facility" and inserting "nursing facility or intermediate care facility for the mentally retarded"; (B) in paragraph (2)(B)(i), by striking ", skilled nursing facility, or intermediate care facility services" and inserting "services, nursing facility services, or services in an intermediate care facility for the mentally retarded"; (C) in paragraph (2)(B), by striking "need" and all that follows up to the semicolon and inserting "need for inpatient hospital services, nursing facility services, or services in an intermediate care facility for the mentally retarded"; (D) in paragraph (2)(C), by striking "or skilled nursing facility or intermediate care facility" and inserting ", nursing facility, or intermediate care facility for the mentally retarded';

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Page:United States Statutes at Large Volume 101 Part 2.djvu/1001

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-207

(E) in paragraph (2)(C), by striking "or skilled nursing facility or intermediate care facility services" and inserting ", nursing facility services, or services in an intermediate care facility for the mentally retarded"; (F) in paragraph (5), by striking "skilled nursing facility or intermediate care facility" and inserting "nursing facility or intermediate care facility for the mentally retarded"; and (G) in paragraph (7), by striking "or in skilled nursing or intermediate care facilities" and inserting ", nursing facilities, or intermediate care facilities for the mentally retarded". (11) Section 1916 of such Act (42 U.S.C. 1396m) is amended, in subsections (a)(2)(C) and (b)(2)(C), by striking "skilled nursing facility, intermediate care facility" and inserting "nursing facility, intermediate care facility for the mentally retarded". (12) Section 1917 of such Act (42 U.S.C. 1396p), as amended by this title, is further amended— (A) in subsections (a)(l)(B)(i) and (c)(2)(B)(i), by striking "skilled nursing facility, intermediate care facility" and inserting "nursing facility, intermediate care facility for the mentally retarded", and (B) in subsection (c)(3)(A), by striking "skilled". (i) UTILIZATION REVIEW.—Section 1903(i)(4) of such Act (42 U.S.C. 1396b(i)(4)) is amended by striking "or skilled nursing facility" each place it appears. (j) TECHNICAL ASSISTANCE.—The Secretary of Health and Human Services shall, upon request by a State, furnish technical assistance with respect to the development and implementation of reimbursement methods for nursing facilities that take into account the case mix of residents in the different facilities. (k) REPORT ON STAFFING REQUIREMENTS.—The Secretary of Health and Human Services shall report to Congress, by not later than January 1, 1993, on the progress made in implementing the nursing facility staffing requirements of subparagraph (C) of section 1919(b)(4) of the Social Security Act (as amended by subsection (a) of this section), including the number and types of waivers approved under subparagraph (C)(ii) of such section and the number of facilities which have received waivers.

42 USC 139Go.

42 USC 1396a note.

42 USC 1396r note.

(1) CONFORMING AMENDMENT.—Section 9516(c) of the Consolidated

Omnibus Budget Reconciliation Act of 1985 is amended by striking 42 USC 1396r-3 note. "section 1919" and inserting "section 1922". SEC. 4212. SURVEY AND CERTIFICATION PROCESS.

(a) IN GENERAL.—Section 1919 of the Social Security Act, as inserted by section 4211, is amended by adding at the end the following new subsection: "(g) SURVEY AND CERTIFICATION PROCESS.— "(1) STATE AND FEDERAL RESPONSIBILITY.—

^

"(A) IN GENERAL.—Under each State plan under this title, the State shall be responsible for certifying, in accordance with surveys conducted under paragraph (2), the compliance of nursing facilities (other than facilities of the State) with the requirements of subsections (b), (c), and (d). The Secretary shall be responsible for certifying, in accordance with surveys conducted under paragraph (2), the compliance of State nursing facilities with the requirements of such subsections.

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Page:United States Statutes at Large Volume 101 Part 2.djvu/1002

 101 STAT. 1330-208

 * 'i

PUBLIC LAW 100-203—DEC. 22, 1987 "(B) EDUCATIONAL PROGRAM.—Each State shall conduct periodic educational programs for the staff and residents (and their representatives) of nursing facilities in order to present current regulations, procedures, and policies under this section. "(C) INVESTIGATION OF ALLEGATIONS OF RESIDENT NEGLECT A N D ABUSE A N D MISAPPROPRIATION OF RESIDENT PROPERTY.—

The State shall provide, through the agency responsible for surveys and certification of nursing facilities under this subsection, for a process for the receipt, review, and investigation of allegations of neglect and abuse and misappropriation of resident property by a nurse aide of a resident in a nursing facility. If the State finds, after notice to the nurse aide involved and a reasonable opportunity for a iMs hearing for the nurse aide to rebut allegations, that a nurse aide whose name is contained in a nurse aide registry has - s u t neglected or abused a resident or misappropriated resident property in a facility, the State shall notify the nurse aide and the registry of such finding. "(D) CONSTRUCTION.—The failure of the Secretary to establish standards under subsection (f) shall not relieve a State of its responsibility under this subsection.

t. ( \:

"(2) SURVEYS.— "(A) ANNUAL STANDARD SURVEY.—

..^,

.

m

"(i) IN GENERAL.—Each nursing facility shall be subject to a ^^ standard survey, to be conducted without any prior notice to the facility. Any individual who notifies (or causes to be notified) a nursing facility of the time or date on which such a survey is scheduled to be conducted is subject to a civil money penalty of not to exceed $2,000. The Secretary shall provide for imposition of civil money penalties under this clause in a manner similar to that for the imposition of civil money penalties under section 1128A. The Secretary shall review each State's procedures for scheduling and conduct of standard surveys to assure that the State has taken all reasonable steps to avoid giving notice of such a survey through the scheduling procedures and theconductof the surveys themselves. "(ii) CONTENTS.—Each standard survey shall include, for a case-mix stratified sample of residents— "(I) a survey of the quality of care furnished, as measured by indicators of medical, nursing, and ji rehabilitative care, dietary and nutrition services, activities and social participation, and sanitation, infection control, and the physical environment, "(II) written plans of care provided under subsection (b)(2) and an audit of the residents' assessments under subsection (b)(3) to determine the accuracy of such assessments and the adequacy of such plans of care, and "(III) a review of compliance with residents' rights under subsection (c). "(iii) FREQUENCY.—

•8 Copy read "to an standard".

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Page:United States Statutes at Large Volume 101 Part 2.djvu/1003

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-209

"(I) IN GENERAL.—Each nursing facility shall be subject to a standard survey not later than 15 months after the date of the previous standard survey conducted under this subparagraph. The statewide ® average interval between standard ^ surveys of a nursing facility shall not exceed 12 months. "(II) SPECIAL SURVEYS.—If not otherwise conducted under subclause (I), a standard survey (or an abbreviated standard survey) may be conducted within 2 months of any change of ownership, administration, management of a nursing facility, or director of nursing in order to determine whether the change has resulted in any decline in the quality of care furnished in the facility. "(B) EXTENDED SURVEYS.—

"(i) IN GENERAL.—Each nursing facility which is found, under a standard survey, to have provided substandard quality of care shall be subject to an extended survey. Any other facility may, at the Secretary's or State's discretion, be subject to such an extended survey (or a partial extended survey). "(ii) TIMING.—The extended survey shall be conducted immediately after the standard survey (or, if not practical, not later than 2 weeks after the date of completion of the standard survey). "(iii) CONTENTS.—In such an extended survey, the survey team shall review and identify the policies and procedures which produced such substandard quality of care and shall determine whether the facility has complied with all the requirements described in subsections (b), (c), and (d). Such review shall include an expansion of the size of the sample of residents' assessments reviewed and a review of the staffing, of in-service training, and, if appropriate, of contracts with consultants. "(iv) CONSTRUCTION.—Nothing in this paragraph shall be construed as requiring an extended or partial extended survey as a prerequisite to imposing a sanction against a facility under subsection (h) on the basis of findings in a standard survey. "(C) SURVEY PROTOCOL.—Standard and extended surveys

shall be conducted— "(i) based upon a protocol which the Secretary has developed, tested, and validated by not later than January 1, 1990, and "(ii) by individuals, of a survey team, who meet such minimum qualifications as the Secretary establishes by not later than such date. The failure of the Secretary to develop, test, or validate such protocols or to establish such minimum qualifications shall not relieve any State of its responsibility (or the Secretary of the Secretary's responsibility) to conduct surveys under this subsection.
 * " Copy read "Statewide".

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Page:United States Statutes at Large Volume 101 Part 2.djvu/1004

 101 STAT. 1330-210

PUBLIC LAW 100-203—DEC. 22, 1987 "(D) CONSISTENCY OF SURVEYS.—Each State shall implement programs to measure and reduce inconsistency in the application of survey results among surveyors. "(E) SURVEY TEAMS.—

"(i) IN GENERAL.—Surveys under this subsection shall be conducted by a multidisciplinary team of professionals (including a registered professional nurse). "(ii) PROHIBITION OF CONFLICTS OF INTEREST.—A State may not use as a member of a survey team under this subsection an individual who is serving (or has served within the previous 2 years) as a member of the staff of, or as a consultant to, the facility surveyed respecting compliance with the requirements of subsections (b), (c), and (d), or who has a personal or familial financial interest in the facility being surveyed. "(iii) TRAINING.—The Secretary shall provide for the comprehensive training of State and Federal surveyors in the conduct of standard and extended surveys under this subsection, including the auditing of resident assessments and plans of care. No individual shall serve as a member of a survey team unless the individual has successfully completed a training and testing program in survey and certification techniques that has been approved by the Secretary. "(3) VALIDATION SURVEYS.—

_,

"(A) IN GENERAL.—The Secretary shall conduct onsite surveys of a representative sample of nursing facilities in each State, within 2 months of the date of surveys conducted under paragraph (2) by the State, in a sufficient number to allow inferences about the adequacies of each State's surveys conducted under paragraph (2). In conducting such surveys, the Secretary shall use the same survey protocols as the State is required to use under paragraph (2). If the State has determined that an individual nursing facility meets the requirements of subsections (b), (c), and (d), but the Secretary determines that the facility does not meet such requirements, the Secretary's determination as to the facility s noncompliance with such requirements is binding and supersedes that of the State survey. "(B) SCOPE.—With respect to each State, the Secretary shall conduct surveys under subparagraph (A) each year with respect to at least 5 percent of the number of nursing facilities surveyed by the State in the year, but in no case less than 5 nursing facilities in the State. "(C) REDUCTION IN ADMINISTRATIVE COSTS FOR SUBSTANDARD PERFORMANCE.—If the Secretary finds, on the

basis of such surveys, that a State has failed to perform surveys as required under paragraph (2) or that a State's survey and certification performance otherwise is not adequate, the Secretary may provide for the training of survey teams in the State and shall provide for a reduction of the payment otherwise made to the State under section 1903(a)(2)(D) with respect to a quarter equal to 33 percent multiplied by a fraction, the denominator of which is equal to the total number of residents in nursing facilities surveyed by the Secretary that quarter and the numerator of which is equal to the total number of residents in nursing

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Page:United States Statutes at Large Volume 101 Part 2.djvu/1005

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-211

facilities which were found pursuant to such surveys to be not in compliance with any of the requirements of subsections (b), (c), and (d). A State that is dissatisfied with the Secretary's findings under this subparagraph may obtain reconsideration and review of the findings under section 1116 in the same manner as a State may seek reconsideration and review under that section of the Secretary's determination under section 1116(a)(l). "(C) SPECIAL SURVEYS OF COMPUANCE.—Where the Secretary has reason to question the compliance of a nursing facility with any of the requirements of subsections (b), (c), and (d), the Secretary may conduct a survey of the facility and, on that basis, make independent and binding determinations concerning the extent to which the nursing facility meets such requirements. "(4) INVESTIGATION OF COMPLAINTS AND MONITORING NURSING

FACiuTY COMPUANCE.—Each State shall maintain procedures and adequate staff to— "(A) investigate complaints of violations of requirements by nursing facilities, and "(B) monitor, on-site, on a regular, as needed basis, a nursing facility's compliance with the requirements of subsections (b), (c), and (d), if^ "(i) the facility has been found not to be in compliance with such requirements and is in the process of correcting deficiencies to achieve such compliance; "(ii) the facility WEIS previously found not to be in compliance with such requirements, has corrected deficiencies to achieve such compliance, and verification of continued compliance is indicated; or "(iii) the State has reason to question the compliance of the facility with such requirements. A State may maintain and utilize a specialized team (including an attorney, an auditor, and appropriate health care professionals) for the purpose of identifying, surveying, gathering and preserving evidence, and carrying out appropriate enforcement actions against chronically substandard nursing facilities. "(5) DISCLOSURE OF RESULTS OF INSPECTIONS AND ACTIVITIES.—

"(A) PuBuc INFORMATION.—Each State, and the Secretary, shall make available to the public— "(i) information respecting all surveys and certifications made respecting nursing facilities, including statements of deficiencies and plans of correction, "(ii) copies of cost reports of such facilities filed under this title or under title XVIII, "(iii) copies of statements of ownership under section 1124, and "(iv) information disclosed under section 1126. "(B) NOTICE TO OMBUDSMAN.— Each State shall notify the State long-term care ombudsman (established under section 307(a)(12) of the Older Americans Act of 1965) of the State's findings of noncompliance with any of the requirements of subsections (b), (c), and (d), with respect to a nursing facility in the State. "(C) NOTICE TO PHYSICIANS AND NURSING FACILITY ADMINISTRATOR UCENSING BOARD.—If a State finds that a

»„

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Page:United States Statutes at Large Volume 101 Part 2.djvu/1006

 101 STAT. 1330-212

PUBLIC LAW 100-203—DEC. 22, 1987

nursing facility hsis provided substandard quality of care, the State shall notify— • "(i) the attending physician of each resident with p respect to which such finding is made, and "(ii) any State board responsible for the licensing of the nursing facility administrator of the facility. fc "(D) ACCESS TO FRAUD CONTROL UNITS.—Each State shall provide its State medicaid fraud and abuse control unit (established under section 1903(q)) with access to all information of the State agency responsible for surveys and certifications under this subsection. '. (b) POSTING SURVEY RESULTS.—Section 1864(a) of such Act (42 U.S.C. 1395aa(a)) is amended by inserting, after "readily available form and place" in the fifth sentence, the following: ", and require (in the case of skilled nursing facilities) the posting in a place readily accessible to patients (and patients' representatives),". (c) INCREASING MATCHING PERCENTAGE FOR NURSING HOME SURVEY AND CERTIFICATION ACTIVITIES.—(1) Section 1903(a)(2) of

42 USC 1396b note.

such Act (42 U.S.C. 1396b(a)(2)), as amended by this title, is further amended by adding at the end the following new subparagraph: "(D) for each calendar quarter during— "(i) fiscal year 1991, an amount equal to 90 percent, "(ii) fiscal year 1992, an amount equal to 85 percent, "(iii) fiscal year 1993, an amount equal to 80 percent, and "(iv) fiscal year 1994 and thereafter, an amount equal to 75 percent, of so much of the sums expended during such quarter (as found necessary by the Secretary for the proper and efficient administration of the State plan) as are attributable to State activities under section 1919(g); plus". (2) Section 1903(r) of such Act (42 U.S.C. 1396b(r)) is amended by striking "paragraphs (2)" each place it appears and inserting "paragraphs (2KA)". (3) For purposes of section 1903(a) of the Social Security Act, proper expenses incurred by a State for medical review by independent professionals of the care provided to residents of nursing facilities who are entitled to medical assistance under title XIX of such Act shall be reimbursable as expenses necessary for the proper and efficient administration of the State plan under that title. (d) REVISION OF PENALTY PROVISIONS.—(1) Section 1903(g) of such Act (42 U.S.C. 1396b(g)) is amended— (A) in paragraph (1)— (i) by striking "or intermediate care facility services" the first place it appears and inserting "or services in an • •^.'•: intermediate care facility for the mentally retarded", (ii) by striking ", skilled nursing facility services for 30 i

' •' d a y s, ",

(iii) by striking ", skilled nursing facility services, or intermediate care facility services" and inserting "or services in an intermediate care facility for the mentally retarded", (iv) by striking ", skilled nursing facilities, and intermediate care facilities" and inserting "and intermediate care facilities for the mentally retarded"; (B) in paragraph (4)(B), by striking ", skilled nursing facilities, x v
 * and intermediate care facilities" and inserting "and intermedifi ate care facilities for the mentally retarded";

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text: Author:Thomas Woodhouse

title: Author:Thomas Woodhouse


text:
Page:United States Statutes at Large Volume 101 Part 2.djvu/1007

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-213

(C) in paragraph (6)— (i) by striking subparagraph (B), (ii) in subparagraph (C), by striking "intermediate care facility services" and inserting "services in an intermediate care facility for the mentally retarded", and \ (iii) by redesignating subparagraphs (C) and (D) as subparagraphs (B) and (C), respectively; and (D) by striking paragraph (7). (2) Section 1902(a)(31) of such Act (42 U.S.C. 1396a(a)(31)) is amended— (A) in the matter before subparagraph (A), by striking "skilled nursing facility services" and all that follows through "where" and inserting "services in an intermediate care facility for the mentally retarded (where", and (B) in subparagraph (B), by striking "skilled nursing or intermediate care facility" and inserting "intermediate care facility for the mentally retarded". (3) Section 1902(a)(33)(B) of such Act (42 U.S.C. 1396a(a)(33)(B)) is amended by inserting ", except as provided in section 1919(d)," after "(B) that". (4) The amendments made by this subsection shall not apply to a Effective date. State until such date (not earlier than October 1, 1990) as of which 42 USC I396a the Secretary determines that— "°*® (A) the State has specified the resident assessment instrument under section 1919(e)(5) of the Social Security Act, and (B) the State has begun conducting surveys under section 1919(g)(2)ofsuchAct. (e)

MISCELLANEOUS

CONFORMING

AMENDMENTS.—(1)

Section

1902(a)(44) of such Act (42 U.S.C. 1396a(a)(44)) is amended— (A) in the matter before subparagraph (A), by striking "skilled nursing facility services, intermediate care facility services" and inserting "services in an intermediate care facility for the mentally retarded", and (B) in subparagraph (A), by striking "that are intermediate care facility services in an institution for the mentally retarded" and inserting "that are services in an intermediate care facility for the mentally retarded". (2) Section 1903(a)(7) of such Act (42 U.S.C. 1396b(a)(7)) is amended by inserting "subject to section 1919(g)(3)(B)," after "(7)". (3) Section 1910 of such Act (42 U.S.C. 13961) is amended— (A) by striking "SKILLED NURSING FACILITIES AND" in the

heading, (B) by striking subsection (a), and (C) by redesignating subsections (b) and (c) as subsections (a) and (b) resoectivelv. (4) Section 1866(c) of such Act (42 U.S.C. 1395cc(c)) is amended by striking paragraph (2) and by redesignating paragraph (3) as paragraph (2). SEC. 4213. ENFORCEMENT PROCESS.

(a) IN GENERAL.—Section 1919 of the Social Security Act, as inserted by section 4201 and amended by section 4202, is further amended by adding at the end the following new subsection: "(h) ENFORCEMENT PROCESS.—

"(1) IN GENERAL.—If a State finds, on the basis of a standard, extended, or partial extended survey under subsection (g)(2) or otherwise, that a nursing facility no longer meets a requirement

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Page:United States Statutes at Large Volume 101 Part 2.djvu/1008

 101 STAT. 1330-214

PUBLIC LAW 100-203—DEC. 22, 1987

of subsection 0)), (c), or (d), and further finds that the facility's deficiencies— "(A) immediately jeopardize the health or safety of its residents, the State shall take immediate action to remove the jeopardy and correct the deficiencies through the remedy specified in paragraph (2)(A)(iii), or terminate the facility's participation under the State plan and may provide, in addition, for one or more of the other remedies described in paragraph (2); or "(B) do not immediately jeopardize the health or safety of its residents, the State may— "(i) terminate the facility's participation under the State plan, "(ii) provide for one or more of the remedies described in paragraph (2), or "(iii) do both. Nothing in this paragraph shall be construed as restricting the remedies available to a State to remedy a nursing facility's deficiencies. If a State finds that a nursing facility meets the requirements of subsections (b), (c), and (d), but, as of a previous period, did not meet such requirements, the State may provide for a civil money penalty under paragraph (2)(A)(i) for the days in which it finds that the facility was not in compliance with such requirements. Regulations.

"(2) SPECIFIED REMEDIES.—

f ,

i^, J. , "
 * . i.

,.

"(A) LISTING.—Except as provided in subparagraph (B)(ii), each State shall establish by law (whether statute or regulation) at least the following remedies: "(i) Denial of payment under the State plan with respect to any individual admitted to the nursing facility involved after such notice to the public and to the facility as may be provided for by the State. "(ii) A civil money penalty assessed and collected, with interest, for each day in which the facility is or was out of compliance with a requirement of subsection (b), (c), or (d). Funds collected by a State as a result of imposition of such a penalty (or as a result of the imposition by the State of a civil money penalty for activities described in subsections (b)(SXBXiiXD, (b)(3)(B)(iiXII), or (g)(2)(A)(i)) shall be applied to the protection of the health or property of residents of nursing facilities that the State or the Secretary finds deficient, including payment for the costs of relocation of residents to other facilities, maintenance of operation of a facility pending correction of deficiencies or closure, and reimbursement of residents for personal funds lost. "(iii) The appointment of temporary management to oversee the operation of the facility and to assure the health and safety of the facility s residents, where there is a need for temporary management while— "(I) there is an orderly closure of the facility, or "(II) improvements are made in order to bring the facility into compliance with all the requirements of subsections (b), (c), and (d). The temporary management under this clause shall not be terminated under subclause (II) until the State

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Page:United States Statutes at Large Volume 101 Part 2.djvu/1009

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-215

has determined that the facility has the management capability to ensure continued compliance with all the requirements of subsections (b), (c), and (d). "(iv) The authority, in the case of an emergency, to close the facility, to transfer residents in that facility to other facilities, or both. The State also shall specify criteria, as to when and how each of such remedies is to be applied, the amounts of any fines, and the severity of each of these remedies, to be used in the imposition of such remedies. Such criteria shall be designed so as to minimize the time between the identification of violations and final imposition of the remedies and shall provide for the imposition of incrementally more severe fines for repeated or uncorrected deficiencies. In addition, the State may provide for other specified remedies, such as directed plans of correction. "(B) DEADLINE AND GUIDANCE,—(i) Except as provided in clause (ii), as a condition for approval of a State plan for calendar quarters beginning on or after October 1, 1989, each State shall establish the remedies described in clauses (i) through (iv) of subparagraph (A) by not later than October 1, 1989. The Secretary shall provide, through regula- Regulations. tions or otherwise by not later than October 1, 1988, guidance to States in establishing such remedies; but the failure of the Secretary to provide such guidance shall not relieve a State of the responsibility for establishing such remedies. "(ii) A State may establish alternative remedies (other than termination of participation) other than those described in clauses (i) through (iv) of subparagraph (A), if the State demonstrates to the Secretary's satisfaction that the alternative remedies are as effective in deterring noncompliance and correcting deficiencies as those described in subparagraph (A). "(C) ASSURING PROMPT COMPUANCE.—If a nursing facility has not complied with any of the requirements of subsections (b), (c), and (d), within 3 months after the date the facility is found to be out of compliance with such requirements, the State shall impose the remedy described in subparagraph (A)(i) for all individuals who are admitted to the facility after such date. "(D) REPEATED NONCOMPUANCE.—In the case of a nursing facility which, on 3 consecutive standard surveys conducted under subsection (g)(2), has been found to have provided substandard quality of care, the State shall (regardless of what other remedies are provided)— "(i) impose the remedy described in subparagraph (A)(i), and "(ii) monitor the facility under subsection (g)(4)(B), until the facility has demonstrated, to the satisfaction of the State, that it is in compliance with the requirements of subsections (b), (c), and (d), and that it will remain in compliance with such requirements. "(E) FUNDING.—The reasonable expenditures of a State to provide for temporary management and other expenses associated with implementing the remedies described in clauses (iii) and (iv) of subparagraph (A) shall be considered,

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Page:United States Statutes at Large Volume 101 Part 2.djvu/1010

 101 STAT. 1330-216

PUBLIC LAW 100-203—DEC. 22, 1987

t*f

for purposes of section 1903(a)(7), to be necessary for the proper and efficient administration of the State plan. "(F) INCENTIVES FOR HIGH QUAUTY CARE.—In addition to

the remedies specified in this paragraph, a State may establish a program to reward, through public recognition, incentive payments, or both, nursing facilities that provide the highest quality care to residents who are entitled to medical assistance under this title. For purposes of section 1903(a)(7), proper expenses incurred by a State in carrying out such a program shall be considered to be expenses necessary for the proper and efficient administration of the State plan under this title. "(3) SECRETARIAL AUTHORITY.— "(A) FOR STATE NURSING FACILITIES.—With respect to a

-»«

State nursing facility, the Secretary shall have the authority and duties of a State under this subsection, including the authority to impose remedies described in clauses (i), (ii), and (iii) of paragraph (2)( A). "(B) OTHER NURSING FACILITIES.—With respect to any

other nursing facility in a State, if the Secretary finds that a nursing facility no longer meets a requirement of subseci tion (b), (c), (d), or (e), and further finds that the facility's deficiencies— "(i) immediately jeopardize the health or safety of its residents, the Secretary shall take immediate action to remove the jeopardy and correct the deficiencies through the remedy specified in subparagraph (C)(iii), or terminate the facility's participation under the State plan and may provide, in addition, for one or more of the other remedies described in subparagraph (C); or "(ii) do not immediately jeopardize the health or J safety of its residents, the Secretary may impose any of the remedies described in subparagraph (C). Nothing in this subparagraph shall be construed as restricting the remedies available to the Secretary to remedy a nursing facility's deficiencies. If the Secretary finds that a nursing facility meets such requirements but, as of a previous period, did not meet such requirements, the Secretary 5 may provide for a civil money penalty under subparagraph (C)(ii) for the days on which he finds that the facility was not in compliance with such requirements. "(C) SPECIFIED REMEDIES.—The Secretary may take the following actions with respect to a finding that a facility has not met an applicable requirement: "(i) DENIAL OF PAYMENT.—The Secretary may deny ' '"•;,,':•• any further payments to the State for medical assistance furnished by the facility to all individuals in the facility or to individuals admitted to the facility after the effective date of the finding. "(ii) AUTHORITY WITH RESPECT TO CIVIL MONEY PEN-

¥

ALTiES.—The Secretary may impose a civil money penalty in an amount not to exceed $10,000 for each day of noncompliance and the Secretary shall impose and collect such a penalty in the same manner as civil money penalties are imposed and collected under section 1128A. „,, „....,

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Page:United States Statutes at Large Volume 101 Part 2.djvu/1011

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-217

"(iii) APPOINTMENT OF TEMPORARY MANAGEMENT.—In consultation with the State, the Secretary may appoint temporary management to oversee the operation of the facility and to assure the health and safety of the facility's residents, where there is a need for temporary management while— "(I) there is an orderly closure of the facility, or ,0,, "(II) improvements are made in order to bring the facility into compliance with all the requirements of subsections (b), (c), and (d). The temporary management under this clause shall not be terminated under subclause (II) until the Secretary has determined that the facility has the management capability to ensure continued compliance with all the requirements of subsections (b), (c), and (d). The Secretary shall specify criteria, as to when and how each of such remedies is to be applied, the amounts of any fines, and the severity of each of these remedies, to be used in the imposition of such remedies. Such criteria shall be designed so as to minimize the time between the identification of violations and final imposition of the remedies and shall provide for the imposition of incrementally more severe fines for repeated or uncorrected deficiencies. In addition, the Secretary may provide for other specified remedies, such as directed plans of correction. "(D)

CONTINUATION

OF

PAYMENTS

PENDING

REMEDI-

ATION.—The Secretary may continue payments, over a period of not longer than 6 months, under this title with respect to a nursing facility not in compliance with a requirement of subsection (b), (c), or (d), if— "(i) the State survey agency finds that it is more appropriate to take alternative action to assure compliance of the facility with the requirements than to terminate the certification of the facility, "(ii) the State has submitted a plan and timetable for corrective action to the Secretary for approval and the Secretary approves the plan of corrective action, and "(iii) the State agrees to repay to the Federal Government payments received under this subparagraph if the corrective action is not taken in accordance with the approved plan and timetable. The Secretary shall establish guidelines for approval of corrective actions requested by States under this subparagraph. "(4) EFFECTIVE PERIOD OF DENIAL OF PAYMENT.—A finding to deny payment under this subsection shall terminate when the State or Secretary (or both, as the case may be) finds that the facility is in substantial compliance with all the requirements of subsections (b), (c), and (d). "(5) IMMEDIATE TERMINATION OF PARTICIPATION FOR FACILITY

WHERE STATE OR SECRETARY FINDS NONCOMPUANCE AND IMMEDIATE JEOPARDY.—If either the State or the Secretary finds that a nursing facility has not met a requirement of subsection (b), (c), or (d), and finds that the failure immediately jeopardizes the health or safety of its residents, the State and the Secretary shall notify the other of such finding, and the State or the Secretary, respectively, shall take immediate action to remove

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Page:United States Statutes at Large Volume 101 Part 2.djvu/1012

 101 STAT. 1330-218

PUBLIC LAW 100-203—DEC. 22, 1987

the jeopardy and correct the deficiencies through the remedy specified in paragraph (2)(A)(iii) or (SXCXiii), or terminate the facility's participation under the State plan. If the facility's participation in the State plan is terminated by either the State or the Secretary, the State shall provide for the safe and orderly transfer of the residents eligible under the State plan consistent with the requirements of subsection (c)(2). "(6) SPECIAL RULES WHERE STATE AND SECRETARY DO NOT AGREE ON FINDING OF NONCOMPLIANCE.— "(A) STATE FINDING OF NONCOMPUANCE AND NO SECRETAR-

IAL FINDING OF NONCOMPLIANCE.—If the Secretary finds that a nursing facility has met all the requirements of subsections (b), (c), and (d), but a State finds that the facility has not met such requirements and the failure does not immediately jeopardize the health or safety of its residents, the State's findings shall control and the remedies imposed by the State shall be applied. "(B)

SECRETARIAL FINDING OF NONCOMPLIANCE AND NO

STATE FINDING OF NONCOMPUANCE.—If the Secretary finds that a nursing facility has not met all the requirements of subsections (b), (c), and (d), and that the failure does not immediately jeopardize the health or safety of its residents, but the State has not made such a finding, the Secretary— "(i) may impose any remedies specified in paragraph (3)(C) with respect to the facility, and "(ii) shall (pending any termination by the Secretary) permit continuation of payments in accordance with paragraph (3)(D). "(7) SPECIAL RULES FOR TIMING OF TERMINATION OF PARTICIPATION WHERE REMEDIES OVERLAP.—If both the Secretary and the

State find that a nursing facility has not met all the requirements of subsections (b), (c), and (d), and neither finds that the failure immediately jeopardizes the health or safety of its residents— "(A)(i) if both find that the facility's participation under the State plan should be terminated, the State's timing of any termination shall control so long as the termination date does not occur later than 6 months after the date of the finding to terminate; "(ii) if the Secretary, but not the State, finds that the facility's participation under the State plan should be terminated, the Secretary shall (pending any termination by the Secretary) permit continuation of payments in accordance with paragraph (3)(D); or "(iii) if the State, but not the Secretary, finds that the facility's participation under the State plan should be terminated, the State's decision to terminate, and timing of such termination, shall control; and "(B)(i) if the Secretary or the State, but not both, establishes one or more remedies which are additional or alternative to the remedy of terminating the facility's participation under the State plan, such additional or alternative remedies shall also be applied, or "(ii) if both the Secretary and the State establish one or more remedies which are additional or alternative to the remedy of terminating the facility's participation under the

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Page:United States Statutes at Large Volume 101 Part 2.djvu/1013

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-219

State plan, only the additional or alternative remedies of the Secretary shall apply. "(8) CONSTRUCTION.—The remedies provided under this subsection are in addition to those otherwise available under State or Federal law and shall not be construed as limiting such other remedies, including any remedy available to an individual at common law. The remedies described in clauses (i), (iii), and (iv) of paragraph (2)(A) may be imposed during the pendency of any hearing. "(9) SHARING OF INFORMATION.—Notwithstanding any other provision of law, all information concerning nursing facilities required by this section to be filed with the Secretary or a State agency shall be made available to Federal or State employees for purposes consistent with the effective administration of programs established under this title and title XVIII, including investigations by State medicaid fraud control units.", (b) CONFORMING AMENDMENTS.—(1) Section 1902 of such Act (42 U.S.C. 1396a) is amended by striking subsection (i). (2) Section 1903(i) of such Act (42 U.S.C. 1396b(i)) is amended by striking the period at the end of paragraph (7) and inserting "; or" and by adding at the end the following new paragraph: "(8) with respect to any amount expended for medical assistance for nursing facility services to reimburse (or otherwise compensate) a nursing facility for payment of a civil money penalty imposed under section 1919(h).'. SEC. 4214. EFFECTIVE DATES. (a)

NEW

REQUIREMENTS

42 USC 1396r AND

SURVEY

AND

CERTIFICATION

PROCESS.—Except as otherwise specifically provided in section 1919 of the Social Security Act, the amendments made by sections 4211 and 4212 (relating to nursing facility requirements and survey and certification requirements) shall apply to nursing facility services furnished on or after October 1, 1990, without regard to whether regulations to implement such amendments are promulgated by such date; except that section 1902(a)(28XB) of the Social Security Act (as amended by section 4211(b) of this Act), relating to requiring State medical assistance plans to specify the services included in nursing facility services, shall apply to calendar quarters beginning more than 6 months after the date of the enactment of this Act, without regard to whether regulations to implement such section are promulgated by such date. (b) ENFORCEMENT.—(1) Except as otherwise specifically provided in section 1919 of the Social Security Act, the amendments made by section 4213 of this Act apply to payments under title XIX of the Social Security Act for calendar quarters beginning on or after the date of the enactment of this Act, without regard to whether regulations to implement such amendments are promulgated by such date. (c) TRANSITIONAL RULE.—In applying the amendments made by this part for services furnished before October 1, 1990— (A) any reference to a nursing facility is deemed a reference to a skilled nursing facility or intermediate care facility (other than an intermediate care facility for the mentally retarded), and (B) with respect to such a skilled nursing facility or intermediate care facility, any reference to a requirement of subsection

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Page:United States Statutes at Large Volume 101 Part 2.djvu/1014

 101 STAT. 1330-220

PUBLIC LAW 100-203—DEC. 22, 1987

(b), (c), or (d), is deemed a reference to the provisions of section 186l(j) or section 1905(c), respectively, of the Social Security Act. (d) WAIVER OF PAPERWORK REDUCTION.—Chapter 35 of title 44, United States Code, shall not apply to information required for purposes of carrying out this part and implementing the amendments made by this part. 42 USC 1396r note.

42 USC 1396r.

SEC. 4215. ANNUAL REPORT.

The Secretary of Health and Human Services shall report to the Congress annually on the extent to which nursing facilities are complying with the requirements of subsections (b), (c), and (d) of section 1919 of the Social Security Act (as added by the amendments made by this part) and the number and type of enforcement actions taken by States and the Secretary under section 1919(h) of such Act (as added by section 4213 of this Act). SEC. 4216. CONSTRUCTION.

Section 1919 of the Social Security Act is amended by adding at the end the following new subsection: "(i) CONSTRUCTION.—Where requirements or obligations under this section are identical to those provided under section 1819 of this Act, the fulfillment of those requirements or obligations under section 1819 shall be considered to be the fulfillment of the corresponding requirements or obligations under this section.". Effective date. 42 USC 1396r-3 note.

100 Stat. 82.

SEC. 4217. FINAL REGULATIONS WITH RESPECT TO PLANS OF CORRECTION OR REDUCTION.

(a) IN GENERAL.—Not later than 30 days after the date of enactment of this Act, the Secretary of Health and Human Services shall promulgate final regulations to implement the amendments made by section 9516 of the Consolidated Omnibus Budget Reconciliation Act of 1985. (b) The regulations promulgated under paragraph (1) shall be effective as if promulgated on the date of enactment of the Consolidated Omnibus Budget Reconciliation Act of 1985. SEC. 4218. MEDICAID CERTIFICATIONS AND RECERTIFICATIONS FOR CERTAIN SERVICES.

(a) IN GENERAL.—Section 1902(a)(44) of the Social Security Act (42 U.S.C. 1396a(a)(44)) is amended— (1) in subparagraph (A)— (A) by striking "physician certifies" and inserting "physician (or, in the case of skilled nursing facility services or intermediate care facility services, a physician, or a nurse practitioner or clinical nurse specialist who is not an employee of the facility but is working in collaboration with a physician) certifies', and (B) by striking "the physician, or a physician assistant or nurse practitioner under the supervision of a physician," ~M and inserting "a physician, a physician assistant under the supervision of a physician, or, in the case of skilled nursing facility services or intermediate care facility services, a physician, or a nurse practitioner or clinical nurse specialist who is not an employee of the facility but is working in collaboration with a physician,"; and " (2) in subparagraph (B), by striking "a physician;" and inserting "a physician, or, in the case of skilled nursing facility

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Page:United States Statutes at Large Volume 101 Part 2.djvu/1015

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-221

services or intermediate care facility services, a physician, or a nurse practitioner or clinical nurse specialist who is not an employee of the facility but is working in collaboration with a physician;". (b) EFFECTIVE DATE.—The amendments made by subsection (a) shall apply with respect to certifications or recertifications during the period beginning on July 1, 1988, and ending on October 1, 1990.

Subtitle D—Vaccine Compensation SEC. 4301. SHORT TITLE, REFERENCE.

42 USC 1396a note.

Vaccine Compensation Amendments of 1987.

(a) SHORT TITLE.—This subtitle may be cited as the "Vaccine 42 USC 201 note. Compensation Amendments of 1987". (b) REFERENCE.—Whenever in this subtitle (other than in section 4302(a)) an amendment or repeal is expressed in terms of an amendment to, or repeal of, a section or other provision, the reference shall be considered to be made to a section or other provision of the Public Health Service Act. SEC. 4302. EFFECTIVE DATE.

(a) IN GENERAL.—Section 323(a) of the National Childhood Vaccine Injury Act of 1986 (42 U.S.C. 300aa-l note) is amended by striking out "Subtitle 2 of such title and this title shall take effect on the effective date of a tax" and all that follows in that section and inserting in lieu thereof "parts A and B of subtitle 2 of such title shall take effect on October 1, 1988 and parts C and D of such title and this title shall take effect on the date of the enactment of the Vaccine Compensation Amendments of 1987.". (b) REFERENCES."—

(1) Sections 2111, 2115, 2119(a), 2122, 2123, 2125, 2126, 2127, and 2128 (42 U.S.C. 300aa-ll, 300aa-15, 300aa-199a), 300aa-22, 300aa-23, 300aa-25, 300aa-26, 300aa-27, 300aa-28) are each amended by striking out "effective date of this subtitle" each place it appears and inserting in lieu thereof "effective date of this part". (2) Sections 2111(a)(5)(A), 2115(e)(2) and 2116 (42 U.S.C. 300aall(a)(5)(A), 300aa-15(e)(2), 300a-16) are each amended by striking out "effective date of this title" each place it appears and inserting in lieu thereof "effective date of this part". SEC. 4303. COMPENSATION.

(a) SOURCE.—Section 2115 (42 U.S.C. 300aa-15) is amended by adding at the end the following: "(i) SOURCE OF COMPENSATION.—

"(1) Payment of compensation under the Program to a petitioner for a vaccine-related injury or death associated with the administration of a vaccine before the effective date of this part shall be made from appropriations under subsection (i). "(2) Payment of compensation under the Program to a petitioner for a vaccine-related injury or death associated with the administration of a vaccine on or after the effective date of this part shall be made from the Vaccine Injury Compensation Trust Fund established under section 9510 of the Internal Revenue Code of 1986.".

42 USC 300aa-i9.

42 USC 300aa-16.

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