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Page:United States Statutes at Large Volume 101 Part 2.djvu/950

 101 STAT. 1330-156

Effective date. 42 USC 1396J note.

PUBLIC LAW 100-203—DEC. 22, 1987

(1) Section 1911 of the Social Security Act (42 U.S.C. 1396j), as amended by section 4111(g)(8) of this title, is amended— (A) by striking "or nursing facility" each place it appears and inserting ", nursing facility, or any other type of . facility which provides services of a type otherwise covered under the State plan"; and (B) by adding at the end the following new subsection: "(c) The Secretary is authorized to enter into agreements with the State agency for the purpose of reimbursing such agency for health care and services provided in Indian Health Service facilities to Indians who are eligible for medical assistance under the State plan.".55 (2) The amendments made by paragraph (1) shall apply to health care services performed on or after the date of the enactment of this Act. (g) FRAIL ELDERLY DEMONSTRATION PROJECT WAIVERS.—

100 Stat. 2063.

Effective date.

(1) Section 9412(b)(2) of the Omnibus Budget Reconciliation Act of 1986 is amended— (A) in subparagraph (A), by inserting before the period at "*"^ the end the following: ", including permitting the organization to assume progressively (over the initial 3-year period of the waiver) the full financial risk", and r).8.i (B) in subparagraph (B), by striking "be awarded a grant from the Robert Wood Johnson Foundation" and insert k "participate in an organized initiative to replicate the findings of the On Lok long-term care demonstration project (described in section 603(c)(1) of the Social Security Amendments of 1983)". (2) The amendments made by paragraph (1) shall take effect as though it were included in the Omnibus Budget Reconciliation Act of 1986. (h) MEDICALLY NEEDY INCURRED EXPENSES.

Effective date. 42 USC 1396a note.

Effective date. 42 USC 1396n note. 42 USC 1396n note.

(1) Section 1902(a)(17) of the Social Security Act (42 U.S.C. 1396a(a)(17)) is amended by striking "(whether in the form of insurance premiums or otherwise)" and inserting "(whether in the form of insurance premiums or otherwise and regardless of whether such costs are reimbursed under another public program of the State or political subdivision thereof)". (2) The amendment made by paragraph (1) shall apply to costs incurred after the date of the enactment of this Act. (i) QUALIFICATIONS FOR CASE MANAGERS FOR INDIVIDUALS WITH DEVELOPMENT DISABIUTIES AND CHRONIC MENTAL ILLNESS.—

(1) Section 1915(g)(1) of such Act (42 U.S.C. 1396n(g)(l)) is amended by adding at the end the following new sentence: "The State may limit the case managers available with respect to case management services for eligible individuals with devel'•'•' opmental disabilities or with chronic mental illness in order to ^ of ensuring that such individuals receive needed services.". (2) The amendment made by paragraph (1) shall take effect as though it were included in the enactment of the Consolidated Omnibus Budget Reconciliation Act of 1985. (j) HABIUTATION SERVICES EFFECTIVE DATE.—Effective as if in-
 * ensure that the case managers for such individuals are capable

cluded in the enactment of section 9502 of the Consolidated Omni** Subparagraph " "(c)"' indented incorrectly.

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Page:United States Statutes at Large Volume 101 Part 2.djvu/951

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-157

bus Budget Reconciliation Act of 1985, subsection (j)(l) of such section is amended by inserting before the period at the end the following: "to individuals eligible for services under a waiver granted under section 1915(c) of the Social Security Act, without regard to whether such individuals were receiving institutional services before their participation in the waiver". (k) SECTION 2176

WAIVER FOR INSTITUTIONALIZED DEVELOPMEN-

TALLY DISABLED.—Section 1915(c)(7) of the Social Security Act (42 U.S.C. 1396n(c)(7)) is amended by inserting "(A)" after "(7)" and adding at the end the following new subparagraph: "(B) In making estimates under paragraph (2)(D) in the case of a waiver that applies only to individuals with developmental disabilities who are inpatients in a skilled nursing facility or intermediate care facility and whom the State has determined, on the basis of an evaluation under paragraph (2)(B), to need the level of services provided by an intermediate care facility for the mentally retarded, the State may determine the average per capita expenditures that would have been made in a fiscal year for those individuals under the State plan on the bsisis of the average per capita expenditures under the State plan for services to individuals who are inpatients in an intermediate care facility for the mentally retarded.". (1) RENEWAL OF FREEDOM-OF-CHOICE WAIVERS.—

(1) Section 1915(h) of such Act (42 U.S.C. 1396n(h)) is amended by striking "denies such request in writing within 90 days after the date of its submission to the Secretary." and inserting ", within 90 days after the date of its submission to the Secretary, either denies such request in writing or informs the State agency in writing with respect to any additional information which is needed in order to make a final determination with 6 respect to the request. After the date the Secretary receives such additional information, the request shall be deemed granted unless the Secretary, within 90 day of such date, denies (2) The amendment made by paragraph (1) shall apply to Effective date. requests for continuation of waivers received after the date of 42 USC 1396n note. the enactment of this Act. (m) REPEAL OF COORDINATED AUDIT REQUIREMENT.—
 * - > such request.".

(I)(A) Section 1129 of such Act (42 U.S.C. 1320a-8) is repealed. (B) Section 1902(a)(42) of such Act (42 U.S.C. 1396a(a)(42)) is (i) by striking "(A)", and
 * ^i amended—
 * -5

(ii) by striking ", (B)" and all that follows up to the ^^semicolon at the end. (2) The amendments made by paragraph (1) shall apply to audits conducted after the date of the enactment of this Act. (n) TEMPORARY TECHNICAL ERROR DEFINITION.—For purposes of section 1903(u)(l)(E)(ii) of the Social Security Act, effective for the period beginning on the date of enactment of this Act and ending December 31, 1988, a "technical error" ^^ is gm error in eligibility condition (such as assignment of social security numbers and assignment of rights to third-party benefits as a condition of eligibility) that, if corrected, would not result in a difference in the amount of medical assistance paid. " Copy read " 'technical error' ".

Effective date. 42 USC 1396a note. 42 USC 1396b note.

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


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Page:United States Statutes at Large Volume 101 Part 2.djvu/952

 101 STAT. 1330-158

PUBLIC LAW 100-203—DEC. 22, 1987

(o) TECHNICAL AMENDMENTS RELATING TO NEW JERSEY RESPITE CARE PILOT PROJECT.—

100 Stat. 2064.

(1) Section 9414(b) of the Omnibus Budget Reconciliation Act of 1986 is amended— (A) by redesignating paragraphs (2), (3), and (4), as paragraphs (3), (4), and (5), respectively, (B) by inserting after paragraph (1) the following new paragraph: "(2) provide that the State may submit a detailed proposal describing the project (in lieu of a formal request for the waiver of applicable provisions of title XIX of the Social Security Act) and that submission of such a description by the State will be treated as such a request for purposes of subsection (g),", and (C) in paragraph (3), as redesignated by *^» paragraph (1) of this subsection, by striking "if the project" and all that follows through "Act" the second place it appears and inserting "the State shall utilize a post-eligibility cost-sharing formula based on the available income of participants with income in excess of the nonfarm income ofRcial poverty line (as defined by the Office of Management and ^ Budget, and revised annually in accordance with section 673(2) of the Omnibus Budget Reconciliation Act of 1981)". (2)(A) Section 9414(a) of the Omnibus Budget Reconciliation Act of 1986 is amended by striking "elderly and disabled individuals" and inserting "eligible individuals". (B) Section 941(c) of the Omnibus Budget Reconciliation Act of 1986 is amended to read as follows: "(C) DEFINITIONS.—For purposes of this section— "(1) the term 'eligible individual' means an individual— "(A) who is elderly or disabled, "(B)(i) whose income (not including the income of the spouse or family of the individual) does not exceed 300 percent of the amount in effect under section 1611(a)(l)(A) of the Social Security Act (as increased pursuant to section 1617ofsuchAct),or "(ii) in the case of an individual and spouse who are both dependent on a caregiver, whose combined incomes do not exceed such amount, "(C) whose liquid resources (as declared by the individual) do not exceed $40,000, "(D) who is at risk of institutionalization unless the individual's caregiver is provided with respite care, and "(E) who has been determined to meet the requirements of subparagraphs (A) through (D) in accordance with an application process designed by the State; and "(2) the term 'respite care services' shall include— "(A) short-term and intermittent— "(i) companion or sitter services (paid as well as volunteer), V;.1 a?; "(ii) homemaker and personal care-services, v t "(iii) adult day care, and "(iv) inpatient care in a hospital, a skilled nursing facility, or an intermediate care facility (not to exceed a total of 14 da}^ for any individual), and "(B) peer support and training for family caregivers (using informal support groups and organized counseling).".
 * • Copy read "by by".

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Page:United States Statutes at Large Volume 101 Part 2.djvu/953

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-159

(3) Section 9414(g) of the Omnibus Budget Reconciliation Act of 1986 is amended by inserting "section 1902(a)(10)(C)(i)(III)," 100 Stat. 2064. after "section 1902(a)(10XB),". (4) The amendments made by this subsection shall be effective Effective date. as if included in the enactment of the Omnibus Budget Reconciliation Act of 1986. (p) MISCELLANEOUS TECHNICAL CORRECTIONS.—

(1) Subclause (IX) of section 1902(a)(10)(A)(ii) of the Social Security Act (42 U.S.C. 1396a(a)(10XAXii)) is amended by moving it 4 ems to the right so as to align its left margin with that of subclause (VIII) of that section. (2) Subclause (X) of section 1902(a)(10XAXii) of such Act (42 U.S.C. 1396a(a)(10XAXii)) is amended by moving it 2 ems to the right so as to align its left margin with that of subclause (VIII) of that section. (3) Section 1902(a)(17) of such Act (42 U.S.C. 1396a(a)(17)) is amended by striking "subsection (1)(3)" and inserting "subsections (1)(3), (m)(4), and (m)(5)". (4) Section 1902(a)(30XC) of such Act (42 U.S.C. 1396(a)(30XC)) 42 USC I396a. is amended by striking "provide" and inserting "use". (5) Section 1903(f)(4) of such Act (42 U.S.C. 1396b(f)(4)) is amended by inserting ", 1902(a)(10XAXiiXX), or 1905(p)(l)" after X (6) Paragraph (9) of section 1902(e) of such Act (42 U.S.C. 1396a(e)) is amended by moving the paragraph 2 ems to the left so as to align the left margin of subparagraph (A) (before clause (i)) and subparagraphs (B) and (C) with the left margin of paragraph (8).
 * * 1902(a)( 1 O AXiiXIX)
 * JJU

(7) Section 1902(1)(1) of such Act (42 U.S.C. 1396a(l)(l)) is amended— (A) by striking "(IXD Individuals" and inserting "(IXD Individuals", (B) by moving the matter before subparagraph (A) 2 ems to the left so it is indented only once, and (C) by striking ", whose" and inserting "and whose". (8) Sections 1902(1)(2), 1902(m)(2)(A), 1905(p)(2)(A), and 501(b)(2) of such Act (42 U.S.C. 1396a(l)(2), 1396a(m)(2)(A), 1396d(p)(2)(A), "' ' 701(b)(2)) are each amended by striking "nonfarm". (9) Paragraphs (1) and (2) of section 1925(a), as redesignated by section (4111(a)) of this title, are amended to read as follows: 42 USC 1396s. "(1) AFDC.—(A) Section 402(a)(32) of this Act (relating to individuals who are deemed recipients of aid but for whom a payment is not made). '^(B) Section 402(a)(37) of this Act (relating to individuals who lose AFDC eligibility due to increased earnings). "(C) Section 406(h) of this Act (relating to individuals who lose AFDC eligibility due to increased collection of child or spousal support). (D) Section 414(g) of this Act (relating to certain individuals participating in work supplementation programs). "(2) SSL—(A) Section 1611(e) of this Act (relating to treatment of couples sharing an accommodation in a facility). "(B) Section 1619 of this Act (relating to benefits for individuals who perform substantial gainful activity despite severe medical impairment). "(C) Section 1634(b) of this Act (relating to preservation of benefit status for disabled widows and widowers who lost SSI

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Page:United States Statutes at Large Volume 101 Part 2.djvu/954

 101 STAT. 1330-160

PUBLIC LAW 100-203—DEC. 22, 1987

benefits because of 1983 changes in actuarial reduction formula). "(D) Section 1634(c) of this Act (relating to individuals who loge eligibility for SSI benefits due to entitlement to child's insurance benefits under section 202(d) of this Act).". (10) Effective as if included in the enactment of the Omnibus Budget Reconciliation Act of 1986, section 9411(a)(2)(B) of such Act is amended by inserting "such" after "need for".

l-S!;? te a;?0l Qi«i. rs^spf'? Effective date. 42 USC 1396n.

Subtitle C—Nursing Home Reform i

PART 1—MEDICARE PROGRAM

SEC. 4201. REQUIREMENTS FOR SKILLED NURSING FACILITIES.

.tal'i&i ^)£l

i >

(a) SPECIFICATION OF FACILITY REQUIREMENTS.—Title XVIII of the Social Security Act is amended— I (1) by amending subsection (j) of section 1861 (42 U.S.C. 1395x) to read as follows: "Skilled Nursing Facility

Contracts.

"(j) The term 'skilled nursing facility' has the meaning given such term in section 1819(a)."; (2) by adding at the end of section 1864 (42 U.S.C. 1395aa) the following new subsection: "(d) The Secretary may not enter an agreement under this section with a State with respect to determining whether an institution therein is a skilled nursing facility unless the State meets the requirements specified in section 1819(e)."; and (3) by adding at the end of part A the following new section: "REQUIREMENTS FOR, AND ASSURING QUAUTY OF CARE IN, SKILLED NURSING FACILITIES

42 USC 1395i-3. .^<^^i

1819. (a) SKILLED NURSING FACILITY DEFINED.—In this title, the term 'skilled nursing facility' means an institution (or a distinct part of an institution) which— ,,, V "(1) is primarily engaged in providing to residents— "(A) skilled nursing care and related services for resi£ dents who require medical or nursing care, or "(B) rehabilitation services for the rehabilitation of injured, disabled, or sick persons, and is not primarily for the care and treatment of mental .; diseases; f "(2) has in effect a transfer agreement (meeting the requirements of section 1861(1)) with one or more hospitals having agreements in effect under section 1866; and "(3) meets the requirements for a skilled nursing facility described in subsections (b), (c), and (d) of this section. "SEC.

"(b) REQUIREMENTS RELATING TO PROVISION OF SERVICES.— "(1) QUAUTY OF LIFE.—

t i (.: '}'•'"'':t

"(A) IN GENERAL.—A skilled nursing facility must care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident, ng • JM stih; > .a;

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Page:United States Statutes at Large Volume 101 Part 2.djvu/955

 PUBLIC LAW 100-203—DEC. 22, 1987 i, i h:

QUALITY ASSESSMENT AND ASSURANCE.—A skilled

nursing facility must maintain a quality assessment and assurance committee, consisting of the director of nursing services, a physician designated by the facility, and at least 3 other members of the facility's staff, which (i) meets at least quarterly to identify issues with respect to which quality assessment and assurance activities are necessary and (ii) develops and implements appropriate plans of action to correct identified quality deficiencies.

S u .>tf i
 * o

!;/ i

"(B)

101 STAT. 1330-161

"(2) SCOPE OF SERVICES AND ACTIVITIES UNDER PLAN OF CARE.—

A skilled nursing facility must provide services to attain or maintain the highest practicable physical, mental, and , psychosocial well-being of each resident, in accordance with a ,.; written plan of care which— "(A) describes the medical, nursing, and psychosocial needs of the resident and how such needs will be met; 3Q im. "(B) is initially prepared, with the participation to the extent practicable of the resident or the resident's family or legal representative, by a team which includes the resident's attending physician and a registered professional ionurse with responsibility for the resident; and after each assessment under paragraph (3). £ £ "(3) RESIDENTS' ASSESSMENT.— >• "(A) REQUIREMENT.—A skilled nursing facility must cons'i duct a comprehensive, accurate, standardized, reproducible assessment of each resident's functional capacity, which vt' assessment— "(i) describes the resident's capability to perform ai' daily life functions and significant impairments in r: functional capacity; "(ii) is based on a uniform minimum data set speci^H5 fied by the Secretary under subsection (fK6)(A);
 * i"(C) is periodically reviewed and revised by such team

"(iii) in the case of a resident eligible for benefits under title XIX, uses an instrument which is specified by the State under subsection (e)(5); and "(iv) in the case of a resident eligible for benefits '...vjj under part A of this title, includes the identification of medical problems. "(B) CERTIFICATION.—

v.r ,^i y i
 * ij J

ytx /jv tja .

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"(i) IN GENERAL.—Each such assessment must be conducted or coordinated (with the appropriate participation of health professionals) by a registered professional nurse who signs and certifies the completion of the assessment. Each individual who completes a portion of such an assessment shall sign and certify as to the accuracy of that portion of the assessment. "(ii) PENALTY FOR FALSIFICATION.—

"(I) An individual who willfully and knowingly certifies under clause (i) a material and false statement in a resident assessment is subject to a civil money penalty of not more than $1,000 with respect to each assessment. "(II) An individual who willfully and knowingly causes another individual to certify under clause (i) a material and false statement in a resident assess-

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Page:United States Statutes at Large Volume 101 Part 2.djvu/956

 101 STAT. 1330-162 ' '•'

'•

-• ^

PUBLIC LAW 100-203—DEC. 22, 1987 ment is subject to a civil money penalty of not more than $5,000 with respect to each assessment. "(Ill) 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. "(iii) USE OF INDEPENDENT ASSESSORS.—If a State determines, under a survey under subsection (g) or otherwise, that there has been a knowing and willful certification of false assessments under this paragraph, the State may require (for a period specified by the State) that resident assessments under this paragraph be conducted and certified by individuals who are independent of the facility and who are approved by the State. "(C) FREQUENCY.—

"(i) IN GENERAL.—Such an assessment must be conducted— "(I) promptly upon (but no later than 4 days ' ' after the date of) admission for each individual admitted on or after October 1, 1990, and by not "•-•••''• later than October 1, 1990, for each resident of the facility on that date; "(II) promptly after a significant change in the resident's physical or mental condition; and "(III) in no case less often than once every 12 months. "(ii) RESIDENT REVIEW.—The skilled nursing facility must examine each resident no less frequently than ' once every 3 months and, as appropriate, revise the resident's assessment to assure the continuing accuracy yr-/: •'of the assessment. "(D) USE.—The results of such an assessment shall be used in developing, reviewing, and revising the resident's plan of care under paragraph (2). "(E) COORDINATION.—Such assessments shall be coordinated with any State-required preadmission screening program to the maximum extent practicable in order to avoid duplicative testing and effort. "(4) PROVISION OF SERVICES AND ACTIVITIES.—

"(A) IN GENERAL.—To the extent needed to fulfill all plans of care described in paragraph (2), a skilled nursing facility must provide, directly or under arrangements (or, with respect to dental services, under agreements) with others for the provision of— '^ "(i) nursing services and specialized rehabilitative services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each '• ' ' resident; "(ii) medically-related social services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident; "(iii) pharmaceutical services (including procedures that assure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to v, - ,. - meet the needs of each resident;

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Page:United States Statutes at Large Volume 101 Part 2.djvu/957

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-163

"(iv) dietary services that assure that the meals meet the daily nutritional and special dietary needs of each resident; "(v) an on-going program, directed by a qualified professional, of activities designed to meet the interests and the physical, mental, and psychosocial well-being of each resident; and "(vi) routine and emergency dental services to meet the needs of each resident. The services provided or arranged by the facility must meet professional standards of quality. Nothing in clause (vi) shall be construed as requiring a facility to provide or arrange for dental services described in that clause without additional charge. "(B) QuAUFiED PERSONS PROVIDING SERVICES.—Services described in clauses (i), (ii), (iii), (iv), and (vi) of subparagraph (A) must be provided by qualified persons in accordance with each resident's written plan of care. "(C) REQUIRED NURSING CARE.—

"(i) IN GENERAL.—Except as provided in clause (ii), a skilled nursing facility must provide 24-hour nursing service which is sufficient to meet nursing needs of its residents and must employ the services of a registered professional nurse at least during the day tour of duty (of at legist 8 hours a day) 7 days a week. "(ii) EXCEPTION.—To the extent that clause (i) may be deemed to require that a skilled nursing facility engage the services of a registered professional nurse for more than 40 hours a week, the Secretary is authorized to waive such requirement if the Secretary finds that— "(I) the facility is located in a rural area and the supply of skilled nursing facility services in such area is not sufficient to meet the needs of individuals residing therein, "(II) the facility has one full-time registered professional nurse who is regularly on duty at such facility 40 hours a week, and "(III) the facility either has only patients whose physicians have indicated (through physicians' orders or admission notes) that each such patient does not require the services of a registered nurse or a physician for a 48-hour period, or has made arrangements for a registered professional nurse or a physician to spend such time at such facility as may be indicated as necessary by the physician to provide necessary skilled nursing services on days when the regular full-time registered professional nurse is not on duty. A waiver under this subparagraph shall be subject to annual renewal.
 * (5) REQUIRED TRAINING OF NURSE AIDES.—

"(A) IN GENERAL.—A skilled nursing facility must not use (on a full-time, temporary, per diem, or other basis) any individual, who is not a licensed health professional (as defined in subparagraph (E)), as a nurse aide in the facility on or after October 1, 1989, (or January 1, 1990, in the CEise of an individual used by the facility as a nurse aide before

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Page:United States Statutes at Large Volume 101 Part 2.djvu/958

 101 STAT. 1330-164

PUBLIC LAW 100-203—DEC. 22, 1987

i

July 1, 1989) for more than 4 months unless the individual— "(i) has completed a t r a i n i n g and competency evaluafc"?^l?' i r tion program, or a competency evaluation program, approved by the State under subsection (e)(1)(A), and J, "(ii) is competent to provide such services. i&*jffi N" ' i; j! I •

-

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mni?

"(B) OF F E R I N G COMPETENCY EVALUATION PROGRAMS FOR CURRENT EMPLOYEES.—A skilled n u r s i n g facility m u s t pro-

vide, for individuals used a s a n u r s e aide by the facility as of July 1, 1989, for a competency evaluation program approved by the State under subsection (e)(1) and such p r e p a r a t i o n a s may b e necessary for the individual to complete such a program by January 1, 1990. "(C) COMPETENCY.—The skilled nursing facility must not permit an individual, other than in a training and competency evaluation program approved by the State, to serve as a nurse aide or provide services of a type for which the individual has not demonstrated competency and must not use such an individual as a nurse aide unless the facility has inquired of the State registry established under subsection (e)(2)(A) as to information in the registry concerning the individual. "(D) RE-TRAINING REQUIRED.—For purposes of subpara-

graph (A), if, since an individual's most recent completion of a training and competency evaluation program, there tw has been a continuous period of 24 consecutive months ^ during none of which the individual performed nursing or 3. nursing-related services for monetary compensation, such •: individual shall complete a new training and competency evaluation program. »r "(E) REGULAR IN-SERVICE EDUCATION.—The skilled nurs» ing facility m u s t provide such regular performance review b. and regular in-service education as assures that individuals used as nurse aides a r e competent to perform services as b • nurse aides, including training for individuals providing 1 nursing and nursing-related services to residents with cognitive impairments. SSNJP s "(F) N U R S E AIDE DEFINED.—In this paragraph, the term 'nurse aide' means any individual providing nursing or nursing-related services to residents in a skilled nursing facility, b u t does not include a n individual— "(i) who is a licensed health professional (as defined in subparagraph (G)), or "(ii) who volunteers to provide such services without monetary compensation. Ti "(G) LICENSED HEALTH PROFESSIONAL DEFINED.—In this asii.: paragraph, the term 'licensed health professional' means a physician, physician assistant, nurse practitioner, physical, oi lo') speech, or occupational therapist, registered professional nurse, licensed practical nurse, or licensed or certified social worker. "(6) PHYSICIAN SUPERVISION AND CUNICAL RECORDS.—A skilled nursing facility must— "(A) require that the medical care of every resident be provided under the supervision of a physician; "(B) provide for having a physician available to furnish '-n necessary medical care in case of emergency; and

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Page:United States Statutes at Large Volume 101 Part 2.djvu/959

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-165

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"(C) maintain clinical records on all residents, which records include the plans of care (described in paragraph (2)) and the residents' assessments (described in paragraph (3)). "(7) REQUIRED SOCIAL SERVICES.—In the case of a skilled nursing facility with more than 120 beds, the facility must have at least one social worker (with at least a bachelor's degree in social work or similar professional qualifications) employed fulltime to provide or assure the provision of social services.

V ..

"(c) REQUIREMENTS RELATING TO RESIDENTS' RIGHTS.— "(1) GENERAL RIGHTS.— "(A) SPECIFIED RIGHTS.—A skilled nursing facility

must protect and promote the rights of each resident, including each of the following rights: istfiie. "(i) FREE CHOICE.—The right to choose a personal attending physician, to be fully informed in advance (lolfe'yoK about care and treatment, to be fully informed in advance of any changes in care or treatment that may 8fiCH">;ri affect the resident's well-being, and (except with respect to a resident adjudged incompetent) to participate in planning care and treatment or changes in care and treatment. "(ii) FREE FROM RESTRAINTS.—The right to be free .£.." from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident's medical ,. symptoms. Restraints may only be imposed— ^.^ "(I) to ensure the physical safety of the resident r^'^^ or other residents, and ,..". "(II) only upon the written order of a physician that specifies the duration and circumstances ^. ^..f. under which the restraints are to be used (except ,.,cy^^ in emergency circumstances specified by the Secr;j,, retary) until such an order could reasonably be obtained. "(iii) PRIVACY.—The right to privacy with regard to accommodations, medical treatment, written and teleP phonic communications, visits, and meetings of family and of resident groups. "(iv) CONFIDENTIAUTY.—The right to confidentiality of personal and clinical records. ^^ "(v) ACCOMMODATION OF NEEDS.—The right— "(I) to reside and receive services with reasonable accommodations of individual needs and preferences, except where the health or safety of the individual or other residents would be endangered, and "(II) to receive notice before the room or room.. ]-^f mate of the resident in the facility is changed, "(vi) GRIEVANCES.—The right to voice grievances ..^,. with respect to treatment or care that is (or fails to be) ^''.'.^ furnished, without discrimination or reprisal for voicing the grievances and the right to prompt efforts by the facility to resolve grievances the resident may have, including those with respect to the behavior of other residents.
 * il\;,j^lj^^

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Page:United States Statutes at Large Volume 101 Part 2.djvu/960

 101 STAT. 1330-166

•'i

PUBLIC LAW 100-203—DEC. 22, 1987 "(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

^••'f* •' " '

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. ® "(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. 5^ "(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 OF RIGHTS AND SERVICES.—A skilled nursing

,

y,; '

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); and "(iii) 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 this title 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 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. "(2) TRANSFER AND DISCHARGE RIGHTS.—

•

"(A) IN GENERAL.—A skilled 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 "'Copy read " "(ix)".
 * 'Copy read " "(%)".
 * Copy read " "(xi)".

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Page:United States Statutes at Large Volume 101 Part 2.djvu/961

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-167

resident no longer needs the services provided by the facihty; "(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 XIX 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 XIX; or "(vi) the facility ceases to operate. In each of the cases described in clauses (i) through (v), 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 cases described in clauses (iii) and (iv) the documentation must be made by a physician. "(B) PRE-TRANSFER AND PRE-DISCHARGE NOTICE.—

"(i) IN GENERAL.—Before effecting a transfer or discharge of a resident, a skilled nursing facility must— "(I) notify the resident (and, if known, a 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, 1990, notice of the resident's right to appeal the transfer or discharge under the State process established under subsection (e)(3); and "(II) the name, mailing address, and telephone number of the State long-term care ombudsman

91-194 O - 90 - 31: QL.3 Part 2

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Page:United States Statutes at Large Volume 101 Part 2.djvu/962

 101 STAT. 1330-168

PUBLIC LAW 100-203—DEC. 22, 1987 (established under section 307(a)(12) of the Older Americans Act of 1965). "(C) ORIENTATION.—A skilled nursing facility must provide sufficient preparation and orientation to residents to ensure safe and orderly transfer or discharge from the facility.

"(3) ACCESS AND VISITATION RIGHTS.—A skilled 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 described in paragraph (2)(B)(iii)(II), 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 QUALITY CARE.—A skilled nursing facility must establish and maintain identical policies and practices regarding transfer, discharge, and covered services under this title for all individuals regardless of source of payment. "(5) ADMISSIONS POLICY.—

"(A) ADMISSIONS.—With respect to admissions practices, a skilled nursing facility must— "(i)(I) not require individuals applying to reside or residing in the facility to waive their rights to benefits under this title or under a State plan under title XIX, (II) not require oral or written assurance that such individuals are not eligible for, or will not apply for, benefits under this title or such a State plan, and (III) prominently display in the facility and provide to such individuals written information about how to apply for and use such benefits and how to receive refunds for previous payments covered by such benefits; and "(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. "(B) CONSTRUCTION.— "(i) No 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 this title with respect to admissions practices of skilled nursing facilities.

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Page:United States Statutes at Large Volume 101 Part 2.djvu/963

 PUBLIC LAW 100-203—DEC. 22, 1987 "(ii)

CONTRACTS WITH

101 STAT. 1330-169

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. "(6) PROTECTION OP RESIDENT FUNDS.—

"(A) IN GENERAL.—The skilled 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 OP 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) 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. "(C) ASSURANCE OP 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 XIX. "(d) REQUIREMENTS RELATING TO ADMINISTRATION AND OTHER MATTERS.— "(1) ADMINISTRATION.—

"(A) IN GENERAL.—A skilled 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-

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Page:United States Statutes at Large Volume 101 Part 2.djvu/964

 101 STAT. 1330-170

PUBLIC LAW 100-203—DEC. 22, 1987 being of each resident (consistent with requirements estabhshed under subsection (f)(5)). "(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 skilled 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)

SKILLED NURSING

FACILITY ADMINISTRATOR.—The

administrator of a skilled nursing facility must meet standards established by the Secretary under subsection (f)(4). "(2) LICENSING AND LIFE SAFETY CODE.—

"(A) LICENSING.—A skilled nursing facility must be licensed under applicable State and local law. "(B) LIFE SAFETY CODE.—A skilled 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 skilled nursing facilities. "(3) SANITARY AND INFECTION CONTROL AND PHYSICAL ENVIRON-

MENT.—A skilled nursing facility must— "(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 skilled 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. 'Copy read "sections".

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Page:United States Statutes at Large Volume 101 Part 2.djvu/965

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-171

"(B) OTHER.—A skilled nursing facility must meet such other requirements relating to the health, safety, and wellbeing of residents or relating to the physical facilities thereof as the Secretary may find necessary. "(e) STATE REQUIREMENTS RELATING TO SKILLED NURSING FACILITY

REQUIREMENTS.—The requirements, referred to in section 1864(d), with respect to a State are as follows: "(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 March 1, 1989, 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 (f)(2)(A), and "(B) by not later than March 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 (f)(2)(A)(iii). 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 March 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 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 skilled nursing facilities effected on or after October 1, 1990, must provide for a fair mechanism for hearing appeals on transfers of residents of such facilities. Such mechanism must meet the guidelines established by the Secretary under subsection (f)(3); but the failure of the Secretary to establish such guidelines shall not relieve any State of its responsibility to provide for such a fair mechanism. "(4) SKILLED NURSING FACILITY ADMINISTRATOR STANDARDS.—

By not later than January 1, 1990, the State must have implemented and enforced the skilled nursing facility administrator standards developed under subsection (f)(4) respecting the qualification of administrators of skilled nursing facilities.

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Page:United States Statutes at Large Volume 101 Part 2.djvu/966

 101 STAT. 1330-172

PUBLIC LAW 100-203—DEC. 22, 1987

"(5) SPECIFICATION OF RESIDENT ASSESSMENT INSTRUMENT.—

Effective July 1, 1989, the State shall specify the instrument to be used by nursing facilities in the State in complying with the requirement of subsection (b)(3)(A)(iii). Such instrument shall be— "(A) one of the instruments designated under subsection (f)(6)(B), 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 (fK6)(A). "(f) RESPONSIBIUTIES OF SECRETARY RELATING TO SKILLED 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 skilled nursing facilities 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 PETENCY EVALUATION PROGRAMS A N D FOR NURSE PETENCY EVALUATION PROGRAMS.—

A N D COMAIDE COM-

"(A) IN GENERAL.—For purposes of subsections (b)(5) and (e)(1)(A), the Secretary shall establish, by not later than September 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, beisic restorative services, and residents' 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, residents' rights, and procedures for determination of competency; and "(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 July 1, 1989) a nurse aide training and competency evaluation program shall be deemed to have completed such a program approved

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Page:United States Statutes at Large Volume 101 Part 2.djvu/967

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-173

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 skilled 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 skilled 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 skilled nursing facilities. A State may not delegate its responsibility under clause (iiiXII) to the skilled nursing facility. "(3)

FEDERAL GUIDELINES FOR STATE APPEALS PROCESS FOR

TRANSFERS.—For purposes of subsections (c)(2)(B)(iii)(I) and (e)(3), by not later than October 1, 1989, 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 skilled nursing facilities. "(4) SECRETARIAL STANDARDS FOR QUALIFICATION OF ADMINIS-

TRATORS.—For purposes of subsections (d)(l)(C) and (e)(4), the Secretary shall develop, by not later than March 1, 1989, standards to be applied in sissuring the qualifications of administrators of skilled nursing facilities. "(5) CRITERIA FOR ADMINISTRATION.—The Secretary shall establish criteria for assessing a skilled nursing facility's compliance with the requirement of subsection (d)(1) with respect to— "(A) its governing body and management, "(B) agreements with hospitals regarding transfers of residents to and from the hospitals and to and from other skilled 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 July 1, 1989, specify a minimum data set of core elements and common definitions for use by nursing facilities in conducting the assessments required under subsection (b)(3), and establish guidelines for utilization of the data set; and "(B) by not later than October 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 a)X3XAXiii). "(7) LIST OF ITEMS AND SERVICES FURNISHED IN SKILLED NURSING FACILITIES NOT CHARGEABLE TO THE PERSONAL FUNDS OF A RESIDENT.—

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Page:United States Statutes at Large Volume 101 Part 2.djvu/968

 101 STAT. 1330-174

PUBLIC L A W 100-203—DEC. 22, 1987 "(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 skilled nursing facilities who are individuals receiving benefits under this part and those costs which are to be included in the reasonable cost (or other payment amount) under this title for extended care services. "(B) RULE IF FAILURE TO PUBLISH REGULATIONS.—-If the

Secretary does not issue the regulations under subparagraph (A) on or before the date required in such subparagraph, in the case of a resident of a skilled nursing facility who is eligible to receive benefits under this part, 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) shall not include, at a minimum, the costs for routine personal hygiene items and services furnished by the facility.". 42 USC 1395x.

(b) COSTS OF MEETING REQUIREMENTS.— (1) UNDER REASONABLE COST.—Section 1861(v)(l)(E) of such Act

(42 U.S.C. 1395s(v)(l)(E)) is amended by adding at the end the following new sentence: "Notwithstanding the previous sentence, such regulations with respect to skilled nursing facilities shall take into account (in a manner consistent with subparagraph (A) and based on patient-days of services furnished) the costs of such facilities complying with the requirements of subsections (b), (c), and (d) of section 1819 (including the costs of conducting nurse aide training and competency evaluation programs and competency evaluation programs).". (2) ADJUSTMENT IN PROSPECTIVE PAYMENTS.—Section 1888(d) of

Reports. 42 USC 1395i-3 note.

such Act (42 U.S.C. 1395yy(d)) is amended by adding at the end the following new paragraph: "(7) In computing the rates of payment to be made under this subsection, there shall be taken into account the costs described in the last sentence of section 1861(v)(l)(E) (relating to compliance with nursing facility requirements and of conducting nurse aide training and competency evaluation programs and competency evaluation programs).". (c) EVALUATION.—The Secretary of Health and Human Services shall evaluate, and report to Congress by not later than January 1, 1992, on the implementation of the resident assessment process for residents of skilled nursing facilities under the amendments made by this section. (d) CONFORMING AMENDMENT.—Section 1861(a)(2) of the Social

Security Act (42 U.S.C. 1395x(a)(2)) is amended by striking "skilled nursing facility" and inserting "facility described in section 1919(a)(2) or subsection (y)(D". SEC. 4202. SURVEY AND CERTIFICATION PROCESS. (a) STATE REQUIREMENT FOR PROCESS.—Title XVIII of the Social

Security Act is amended— (1) in section 1864(d) (42 U.S.C. 1395aa(d)), as added by section 4201(a)(2) of this Act, by inserting before the period "and section 1819(g)", and

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Page:United States Statutes at Large Volume 101 Part 2.djvu/969

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-175

(2) in section 1819, as added by section 4201(a)(3) of this Act, by adding at the end the following new subsection: '(g) SURVEY AND CERTIFICATION PROCESS.— "(1) STATE AND FEDERAL RESPONSIBILITY.—

"(A) IN GENERAL.—Pursuant to an agreement under section 1864, each State shall be responsible for certifying, in accordance with surveys conducted under paragraph (2), the compliance of skilled 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 skilled nursing facilities with the requirements of such subsections. "(B) EDUCATIONAL PROGRAM.—Each State shall conduct periodic educational programs for the staff and residents (and their representatives) of skilled nursing facilities in order to present current regulations, procedures, and policies under this section. "(C) INVESTIGATION OF ALLEGATIONS OF RESIDENT NEGLECT AND ABUSE AND 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 hearing for the nurse aide to rebut allegations, that a nurse aide whose name is contained in a nurse aide registry has 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. "(2) SURVEYS.— "(A) STANDARD SURVEY.—

"(i) IN GENERAL.—Each skilled 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 skilled 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 the 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 the conduct of 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 rehabilitative care, dietary and nutrition services,

r^

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Page:United States Statutes at Large Volume 101 Part 2.djvu/970

 101 STAT. 1330-176

PUBLIC LAW 100-203—DEC. 22, 1987 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.—

"(I) IN GENERAL.—Each skilled 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 skilled nursing facilities under this subsection 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 skilled nursing facility, or the 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.—

Contracts.

"(i) IN GENERAL.—Each skilled 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 prerequisit-e 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 October 1, 1990, and ,. „ _....,,

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Page:United States Statutes at Large Volume 101 Part 2.djvu/971

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-177

"(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. (D) CONSISTENCY OF SURVEYS.—Each State and the Secretary 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 skilled 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 skilled 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 skilled nursing facilities surveyed by the State in the year, but in no case less than 5 skilled nursing facilities in the State. "(C) REMEDIES 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

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Page:United States Statutes at Large Volume 101 Part 2.djvu/972

 101 STAT. 1330-178

PUBLIC LAW 100-203—DEC. 22, 1987 (2) or that a State's survey and certification performance otherwise is not adequate, the Secretary shall provide for an appropriate remedy, which may include the training of survey teams in the State. ^° "(D) SPECIAL SURVEYS OF COMPLIANCE.—Where the Secretary has reason to question the compliance of a skilled nursing facility with any of the requirements of subsections 03), (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 skilled nursing facility meets such requirements. "(4) INVESTIGATION OF COMPLAINTS AND MONITORING COMPLI-

ANCE.—Each State shall maintain procedures and adequate staff to— "(A) investigate complaints of violations of requirements by skilled nursing facilities, and "(B) monitor, on-site, on a regular, GS needed basis, a skilled 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 was 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 skilled nursing facilities. "(5) DISCLOSURE OF RESULTS OF INSPECTIONS AND ACTIVITIES.—

Reports.

"(A) PuBuc INFORMATION.—Each State, and the Secretary, shall make available to the public— "(i) information respecting all surveys and certifications made respecting skilled nursing facilities, including statements of deficiencies and plans of correction. "(ii) copies of cost reports of such facilities filed under this title or title XIX, "(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 skilled nursing facility in the State. "(C) NOTICE TO PHYSICIANS AND SKILLED NURSING FACILITY ADMINISTRATOR UCENSING BOARD.—If a State finds that a 'Copy read ""(C)".

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Page:United States Statutes at Large Volume 101 Part 2.djvu/973

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101 STAT. 1330-179

skilled nursing facility has provided substandard quality of care, the State shall notify— "(i) the attending physician of each resident with respect to which such finding is made, and "(ii) the State board responsible for the licensing of the skilled nursing facility administrator at the facility. "(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.". (c) 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),". SEC. 4203. ENFORCEMENT PROCESS.

(a) STATE REQUIREMENT.—Title XVIII of the Social Security Act is amended— (1) in section 1864(d) (42 U.S.C. 1395aa(d)), as added by section 4201(a)(2) and as amended by section 4202(a)(1) of this Act, by inserting before the period at the end the following: "and the establishment of remedies under sections 1819(h)(2)(B) and 1819(h)(2)(C) (relating to establishment and application of remedies)"; and (2) by adding at the end of section 1819 of such Act, as added by section 4201(a)(3) and as amended by section 4202(a)(2), 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 skilled nursing facility no longer meets a requirement of subsection (b), (c), or (d), and further finds that the facility's deficiencies— "(A) immediately jeopardize the health or safety of its residents, the State shall recommend to the Secretary that the Secretary take such action as described in paragraph (2)(A)(i); or "(B) do not immediately jeopardize the health or safety of its residents, the State may recommend to the Secretary that the Secretary take such action as described in paragraph (2)(A)(ii). If a State finds that a skilled 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 recommend a civil money penalty under paragraph (2)(B)(ii) for the days in which it finds that the facility was not in compliance with such requirements. "(2) SECRETARIAL AUTHORITY.—

"(A) IN GENERAL.—With respect to any skilled nursing facility in a State, if the Secretary finds, or pursuant to a recommendation of the State under paragraph (1) finds, that a skilled nursing facility no longer meets a requirement of subsection (b), (c), (d), or (e), and further finds that the facility's deficiencies—
 * • Copy read ""(C)".

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Page:United States Statutes at Large Volume 101 Part 2.djvu/974

 101 STAT. 1330-180

PUBLIC LAW 100-203—DEC. 22, 1987 "(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 (B)(iii), or terminate the facility's participation under this title and may provide, in addition, for one or more of the other remedies described in subparagraph (B); or "(ii) do not immediately jeopardize the health or safety of its residents, the Secretary may impose any of the remedies described in subparagraph (B). Nothing in this subparagraph shall be construed as restricting the remedies available to the Secretary to remedy a skilled nursing facility's deficiencies. If the Secretary finds, or pursuant to the recommendation of the State under paragraph (1) finds, that a skilled nursing facility meets such requirements but, as of a previous period, did not meet such requirements, the Secretary may provide for a civil money penalty under subparagraph (B)(ii) for the days on which he finds that the facility was not in compliance with such requirements. "(B) 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 under this title with respect to all individuals entitled to benefits under this title in the facility or with respect to such 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 1128 A. "(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 "(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

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Page:United States Statutes at Large Volume 101 Part 2.djvu/975

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-181

severe fines for repeated or uncorrected deficiencies. In addition, the Secretary may provide for other specified remedies, such as directed plans of correction. "(C)

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 skilled 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 facility 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. "(D) ASSURING PROMPT COMPLIANCE.—If a skilled 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 h»e out of compliance with such requirements, the Secretary shall impose the remedy described in subparagraph (B)(i) for all individuals who are admitted to the facility after such date. "(E) REPEATED NONCOMPLIANCE.—In the case of a skilled nursing facility which, on 3 consecutive standard surveys conducted under subsection (g)(2), has been found to have provided substandard quality of care, the Secretary shall (regardless of what other remedies are provided)— "(i) impose the remedy described in subparagraph (B)(i), and "(ii) monitor the facility under subsection (g)(4)(B), until the facility has demonstrated, to the satisfaction of the Secretary, that it is in compliance with the requirements of subsections (b), (c), and (d), and that it will remain in compliance with such requirements. "(3) EFFECTIVE PERIOD OF DENIAL OF PAYMENT.—A finding to deny payment under this subsection shall terminate when the Secretary finds that the facility is in substantial compliance with all the requirements of subsections (b), (c), and (d). "(4) IMMEDIATE TERMINATION OF PARTICIPATION FOR FACILITY WHERE SECRETARY FINDS NONCOMPUANCE AND IMMEDIATE JEOP-

ARDY.—If the Secretary finds that a skilled 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 Secretary shall take immediate action to remove the jeopardy and correct the deficiencies through the remedy specified in paragraph (2)(B)(iii), or the Secretary shall terminate the facility's participation under this title. If the facility's participation under this title is terminated, the State shall provide for the safe and orderly transfer of the residents eligible

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Page:United States Statutes at Large Volume 101 Part 2.djvu/976

 101 STAT. 1330-182

PUBLIC LAW 100-203—DEC. 22, 1987

under this title consistent with the requirements of subsection (0(2). "(5) 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. "(6) SHARING OF INFORMATION.—Notwithstanding any other provision of law, all information concerning skilled 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 XIX, including investigations by State medicaid fraud control units.". 42 USC 1395i-3

SEC. 4204. EFFECTIVE DATES. (a) NEW REQUIREMENTS AND SURVEY AND CERTIFICATION PROC-

ESS.—Except as otherwise specifically provided in section 1819 of the Social Security Act, the amendments made by this part shall apply to extended care services furnished on or after October 1, 1990, without regard to whether regulations to implement such amendments are promulgated by such date. (b) 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 1395i-3

SEC. 420.5. ANNUAL REPORT.

The Secretary of Health and Human Services shall report to the Congress annually on the extent to which skilled nursing facilities are complying with the requirements of subsections (b), (c), and (d) of section 1819 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 1819(h) of such Act (as added by section 4203 of this Act). SEC. 4206. CONSTRUCTION.

42 USC l395i-3.

Section 1819 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 1919 of this Act, the fulfillment of those requirements or obligations under section 1919 shall be considered to be the fulfillment of the corresponding requirements or obligations under this section.".

PART 2—MEDICAID PROGRAM SEC. 4211. REQUIREMENTS FOR NURSING FACILITIES. (a) SPECIFICATION OF FACILITY REQUIREMENTS.—Title XIX of

42 USC 1396s. 42 USC I396r, i396r-3.

the

Social Security Act is amended— (1) by redesignating section 1922 as section 1923, (2) by redesignating section 1919 as section 1922 and by transferring and inserting such section after section 1921, and (3) by inserting after section 1918 the following new section:

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Page:United States Statutes at Large Volume 101 Part 2.djvu/977

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-183

"REQUIREMENTS FOR NURSING FACILITIES

1919. (a) NURSING FACILITY DEFINED.—In this title, the term 42 USC I396r. 'nursing facility' means an institution (or a distinct part of an institution) which— "(1) is primarily engaged in providing to residents— "(A) skilled nursing care and related services for residents who require medical or nursing care, "(B) rehabilitation services for the rehabilitation of injured, disabled, or sick persons, or "(C) on a regular basis, health-related care and services to individuals who because of their mental or physical condition require care and services (above the level of room and board) which can be made available to them only through institutional facilities, and is not primarily for the care and treatment of mental diseases; "(2) has in effect a transfer agreement (meeting the requirements of section 1861(1)) with one or more hospitals having agreements in effect under section 1866; and "(3) meets the requirements for a nursing facility described in subsections (b), (c), and (d) of this section. Such term also includes any facility which is located in a State on an Indian reservation and is certified by the Secretary as meeting the requirements of paragraph (1) and subsections (b), (c), and (d). "SEC.

"(b) REQUIREMENTS RELATING TO PROVISION OF SERVICES.— "(1) QUAUTY OF LIFE.—

"(A) IN GENERAL.—A nursing facility must care for its residents in such a manner and in such an environment as will promote maintenance or enhancement of the quality of life of each resident. "(B)

QuAUTY ASSESSMENT AND ASSURANCE.—A n u r s i n g

facility must maintain a quality assessment and assurance committee, consisting of the director of nursing services, a physician designated by the facility, and at least 3 other members of the facility's staff, which (i) meets at least quarterly to identify issues with respect to which quality assessment and assurance activities are necessary and (ii) develops and implements appropriate plans of action to correct identified quality deficiencies. "(2) SCOPE OF SERVICES AND ACTIVITIES UNDER PLAN OF CARE.—

A nursing facility must provide services and activities to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident in accordance with a written plan of care which— "(A) describes the medical, nursing, and psychosocial needs of the resident and how such needs will be met; "(B) is initially prepared, with the participation to the extent practicable of the resident or the resident's family or legal representative, by a team which includes the resident's attending physician and a registered professional nurse with responsibility for the resident; and "(C) is periodically reviewed and revised by such team after each assessment under paragraph (3). "(3) RESIDENTS' ASSESSMENT.—

"(A) REQUIREMENT.—A nursing facility must conduct a comprehensive, accurate, standardized, reproducible assess-

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Page:United States Statutes at Large Volume 101 Part 2.djvu/978

 101 STAT. 1330-184

PUBLIC LAW 100-203—DEC. 22, 1987 ment of each resident's functional capacity, which assessment— "(i) describes the resident's capability to perform daily life functions and significant impairments in functional capacity; "(ii) is based on a uniform minimum data set specified by the Secretary under subsection (f)(6)(A); "(iii) in the case of a resident eligible for benefits under this title, uses an instrument which is specified by the State under subsection (e)(5); and "(iv) in the case of a resident eligible for benefits under part A of title XVIII, includes the identification of medical problems. "(B) CERTIFICATION.—

"(i) IN GENERAL.—Each such assessment must be conducted or coordinated (with the appropriate participation of health professionals) by a registered professional nurse who signs and certifies the completion of the assessment. Each individual who completes a portion of such an assessment shall sign and certify as to the accuracy of that portion of the assessment. "(ii) PENALTY FOR FALSIFICATION.—

"(I) An individual who willfully and knowingly certifies under clause (i) a material and false statement in a resident assessment is subject to a civil money penalty of not more than $1,000 with respect to each assessment. "(II) An individual who willfully and knowingly causes another individual to certify under clause (i) a material and false statement in a resident assessment is subject to a civil money penalty of not more than $5,000 with respect to each assessment. "(Ill) 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. "(iii) USE OF INDEPENDENT ASSESSORS.—If a State determines, under a survey under subsection (g) or otherwise, that there has been a knowing and willful certification of false assessments under this paragraph, the State may require (for a period specified by the State) that resident assessments under this paragraph be conducted and certified by individuals who are independent of the facility and who are approved by the State. "(C) FREQUENCY.—

"(i) IN GENERAL.—Such an assessment must be conducted— "(I) promptly upon (but no later than 4 days after the date of) admission for each individual admitted on or after October 1, 1990, and by not later than October 1, 1991, for each resident of the facility on that date; "(II) promptly after a significant change in the resident's physical or mental condition; and "(III) in no case less often than once every 12 months. •

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Page:United States Statutes at Large Volume 101 Part 2.djvu/979

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-185

"(ii) RESIDENT REVIEW.—The nursing facility must examine each resident no less frequently than once every 3 months and, as appropriate, revise the resident s assessment to assure the continuing accuracy of the assessment. "(D) USE.—The results of such an assessment shall be used in developing, reviewing, and revising the resident's plan of care under paragraph (2). "(E) COORDINATION.—Such assessments shall be coordinated with any State-required preadmission screening program to the maximum extent practicable in order to avoid duplicative testing and effort. "(F) REQUIREMENTS RELATING TO PREADMISSION SCREENING FOR M E N T A L L Y ILL AND MENTALLY RETARDED INDIVIDUALS.—

A nursing facility must not admit, on or after January 1, 1989, any new resident who— "(i) is mentally ill (as defined in subsection (e)(TXGXi)) unless the State mental health authority has determined (based on an independent physical and mental evaluation performed by a person or entity other than the State mental health authority) prior to admission that, because of the physical and mental condition of the individual, the individual requires the level of services provided by a nursing facility, and, if the individual requires such level of services, whether the individual requires active treatment for mental illness, or "(ii) is mentally retarded (as defined in subsection (e)(TXGXii)) unless the State mental retardation or developmental disability authority has determined prior to admission that, because of the physical and mental condition of the individual, the individual requires the level of services provided by a nursing facility, and, if the individual requires such level of services, whether the individual requires active treatment for mental retardation. "(4) PROVISION OF SERVICES AND ACTIVITIES.—

"(A) IN GENERAL.—To the extent needed to fulfill all plans of care described in paragraph (2), a nursing facility must provide (or arrange for the provision of)— "(i) nursing and related services and specialized rehabilitative services to attain or maintain the highest practicable physical, mental, and psychosocial wellbeing of each resident; "(ii) medically-related social services to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident; "(iii) pharmaceutical services (including procedures that assure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals) to meet the needs of each resident; "(iv) dietary services that assure that the meals meet the daily nutritional and special dietary needs of each resident; "(v) an on-going program, directed by a qualified professional, of activities designed to meet the interests and the physical, mental, and psychosocial well-being of each resident; and

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Page:United States Statutes at Large Volume 101 Part 2.djvu/980

 101 STAT. 1330-186

PUBLIC LAW 100-203—DEC. 22, 1987 "(vi) routine dental services (to the extent covered under the State plan) and emergency dental services to meet the needs of each resident. The services provided or arranged by the facility must meet professional standards of quality. "(B)

QUALIFIED PERSONS PROVIDING SERVICES.—Services

described in clauses (i), (ii), (iii), (iv), and (vi) of subparagraph (A) must be provided by qualified persons in accordance with each resident's written plan of care. "(C) REQUIRED NURSING CARE; FACILITY WAIVERS.— "(i) GENERAL REQUIREMENTS.—With respect to

nursing facility services provided on or after October 1, 1990, a nursing facility— "(I) except as provided in clause (ii), must provide 24-hour licensed nursing services which are sufficient to meet the nursing needs of its residents, and "(II) except as provided in clause (ii), must use the services of a registered nurse for at least 8 consecutive hours a day, 7 days a week, "(ii) FACILITY WAIVERS.— "(i) WAIVER BY STATE.—A

State may waive the requirement of subclause (I) or (II) of clause (i) with respect to a facility if— "(I) the facility demonstrates to the satisfaction of the State that the facility has been unable, despite diligent efforts (including offering wages at the community prevailing rate for nursing facilities), to recruit appropriate personnel, "(II) the State determines that a waiver of the requirement will not endanger the health or safety of individuals staying in the facility, and "(III) the State finds that, for any such periods in which licensed nursing services are not available, a registered nurse or a physician is obligated to respond immediately to telephone calls from the facility. A waiver under this clause shall be subject to annual review and to the review of the Secretary and subject to clause (ii) shall be accepted by the Secretary for purposes of this title to the same extent as is the State's certification of the facility. In granting or renewing a waiver, a State may require the facility to employ other qualified, licensed personnel. "(ii)

ASSUMPTION OF WAIVER AUTHORITY BY SEC-

RETARY.—If the Secretary determines that a State has shown a clear pattern and practice of allowing waivers in the absence of diligent efforts by facilities to meet the staffing requirements, the Secretan^ shall assume and excercise the authority of the State to grant waivers. "(5) REQUIRED TRAINING OF NURSE AIDES.—

"(A) IN GENERAL.—A nursing facility must not use (on a full-time, temporary, per diem, or other basis) any individual, who is not a licensed health professional (as defined in subparagraph (E)), as a nurse aide in the facility on or after

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Page:United States Statutes at Large Volume 101 Part 2.djvu/981

 PUBLIC LAW 100-203—DEC. 22, 1987

101 STAT. 1330-187

January 1, 1990, for more than 4 months unless the individual— "(i) has completed a training and competency evaluation program, or a competency evaluation program, approved by the State under subsection (e)(l)(A), and '(ii) is competent to provide such services. "(B) OFFERING COMPETENCY EVALUATION PROGRAMS FOR

CURRENT EMPLOYEES.—A nursing facility must provide, for individuals used as a nurse aide by the facility as of July 1, 1989, for a competency evaluation program approved by the State under subsection (e)(1) and such preparation as may be necessary for the individual to complete such a program by January 1, 1990. "(C) COMPETENCY.—The nursing facility must not permit an individual, other than in a training and competency evaluation program approved by the State, to serve as a nurse aide or provide services of a type for which the individual has not demonstrated competency and must not use such an individual as a nurse aide unless the facility has inquired of the State registry established under subsection (e)(2)(A) as to information in the registry concerning the individual. "(D) RE-TRAINING REQUIRED.—For purposes of subpara-

graph (A), if, since an individual's most recent completion of a training and competency evaluation program, there has been a continuous period of 24 consecutive months during none of which the individual performed nursing or nursing-related services for monetary compensation, such individual shall complete a new training and competency evaluation program. "(E) REGULAR IN-SERVICE EDUCATION.—The nursing facility must provide such regular performance review and regular in-service education as assures that individuals used as nurse aides are competent to perform services as nurse aides, including training for individuals providing nursing and nursing-related services to residents with cognitive impairments. "(F) NURSE AIDE DEFINED.—In this paragraph, the term 'nurse aide' means any individual providing nursing or nursing-related services to residents in a nursing facility, but does not include an individual— "(i) who is a licensed health professional (as defined in subparagraph (G)), or "(ii) who volunteers to provide such services without monetary compensation. "(G) LICENSED HEALTH PROFESSIONAL DEFINED.—In this paragraph, the term 'licensed health professional' means a physician, physician assistant, nurse practitioner, physical, speech, or occupational therapist, registered professional nurse, licensed practical nurse, or licensed or certified social worker. "(6) PHYSICIAN SUPERVISION AND CUNICAL RECORDS.—A nursing facility must— "(A) require that the health care of every resident be provided under the supervision of a physician; "(B) provide for having a physician available to furnish necessary medical care in case of emergency; and

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Page:United States Statutes at Large Volume 101 Part 2.djvu/982

 101 STAT. 1330-188

PUBLIC LAW 100-203—DEC. 22, 1987

"(C) maintain clinical records on all residents, which records include the plans of care (described in paragraph (2)) and the residents' assessments (described in paragraph (3)), as well as the results of any pre-admission screening conducted under subsection (e)(7). "(7) REQUIRED SOCIAL SERVICES.—In the case of a nursing facility with more than 120 beds, the facility must have at least one social worker (with at least a bachelor's degree in social work or similar professional qualifications) employed full-time to provide or assure the provision of social services. "(c) REQUIREMENTS RELATING TO RESIDENTS' RIGHTS.— "(1) GENERAL RIGHTS.— "(A) SPECIFIED RIGHTS.—A nursing facility must

protect and promote the rights of each resident, including each of the following rights: "(i) FREE CHOICE.—The right to choose a personal attending physician, to be fully informed in advance about care and treatment, to be fully informed in advance of any changes in care or treatment that may affect the resident's well-being, and (except with respect to a resident adjudged incompetent) to participate in planning care and treatment or changes in care and treatment. "(ii) FREE FROM RESTRAINTS.—The right to be free from physical or mental abuse, corporal punishment, involuntary seclusion, and any physical or chemical restraints imposed for purposes of discipline or convenience and not required to treat the resident's medical symptoms. Restraints may only be imposed— "(I) to ensure the physical safety of the resident or other residents, and "(II) only upon the written order of a physician that specifies the duration and circumstances under which the restraints are to be used (except in emergency circumstances specified by the Secretary) until such an order could reasonably be obtained, "(iii) PRIVACY.—The right to privacy with regard to accommodations, medical treatment, written and telephonic communications, visits, and meetings of family and of resident groups. "(iv) CONFIDENTIAUTY.—The right to confidentiality of personal and clinical records. "(v) ACCOMMODATION OF NEEDS.—The right— "(I) to reside and receive services with reasonable accommodations of individual needs and preferences, except where the health or safety of the individual or other residents would be endangered, and "(II) to receive notice before the room or roommate of the resident in the facility is changed, "(vi) GRIEVANCES.—The right to voice grievances with respect to treatment or care that is (or fails to be) furnished, without discrimination or reprisal for voicing the grievances and the right to prompt efforts by the facility to resolve grievances the resident may

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