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U.S. Code as of:
01/19/04
Section 1396r. Requirements for nursing facilities
(a) "Nursing facility" defined
In this subchapter, the term "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 1395x(l) of this title) with one or more
hospitals having agreements in effect under section 1395cc of
this title; 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)
of this section.
(b) Requirements relating to provision of services
(1) Quality 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) Quality assessment and assurance
A 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. A State or the
Secretary may not require disclosure of the records of such
committee except insofar as such disclosure is related to the
compliance of such committee with the requirements of this
subparagraph.
(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 assessment 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) of this section;
(iii) uses an instrument which is specified by the State
under subsection (e)(5) of this section; and
(iv) 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.
(III) The provisions of section 1320a-7a of this title
(other than subsections (a) and (b)) shall apply to a civil
money penalty under this clause in the same manner as such
provisions apply to a penalty or proceeding under section
1320a-7a(a) of this title.
(iii) Use of independent assessors
If a State determines, under a survey under subsection (g)
of this section 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 14 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.
(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.
In addition, a nursing facility shall notify the State mental
health authority or State mental retardation or developmental
disability authority, as applicable, promptly after a
significant change in the physical or mental condition of a
resident who is mentally ill or mentally retarded.
(F) Requirements relating to preadmission screening for
mentally ill and mentally retarded individuals
Except as provided in clauses (ii) and (iii) of subsection
(e)(7)(A) of this section, 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)(7)(G)(i)
of this section) 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 specialized services for mental illness, or
(ii) is mentally retarded (as defined in subsection
(e)(7)(G)(ii) of this section) 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 specialized
services for mental retardation.
A State mental health authority and a State mental retardation
or developmental disability authority may not delegate (by
subcontract or otherwise) their responsibilities under this
subparagraph to a nursing facility (or to an entity that has a
direct or indirect affiliation or relationship with such a
facility).
(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 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 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;
(vi) routine dental services (to the extent covered under
the State plan) and emergency dental services to meet the
needs of each resident; and
(vii) treatment and services required by mentally ill and
mentally retarded residents not otherwise provided or
arranged for (or required to be provided or arranged for) by
the State.
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 professional nurse for at least 8
consecutive hours a day, 7 days a week.
(ii) Waiver by State
To the extent that a facility is unable to meet the
requirements of clause (i), a State may waive such
requirements with respect to the 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,
(III) the State finds that, for any such periods in which
licensed nursing services are not available, a registered
professional nurse or a physician is obligated to respond
immediately to telephone calls from the facility,
(IV) the State agency granting a waiver of such
requirements provides notice of the waiver to the State
long-term care ombudsman (established under section
307(a)(12) )1(! of the Older Americans Act of 1965) and the
protection and advocacy system in the State for the
mentally ill and the mentally retarded, and
(V) the nursing facility that is granted such a waiver by
a State notifies residents of the facility (or, where
appropriate, the guardians or legal representatives of such
residents) and members of their immediate families of the
waiver.
A waiver under this clause shall be subject to annual review
and to the review of the Secretary and subject to clause
(iii) shall be accepted by the Secretary for purposes of this
subchapter 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 use other qualified, licensed
personnel.
(iii) Assumption of waiver authority by Secretary
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 Secretary shall assume and exercise the
authority of the State to grant waivers.
(5) Required training of nurse aides
(A) In general
(i) Except as provided in clause (ii), a nursing facility
must not use on a full-time basis any individual as a nurse
aide in the facility on or after October 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)(1)(A) of this section, and
(II) is competent to provide nursing or nursing-related
services.
(ii) A nursing facility must not use on a temporary, per
diem, leased, or on any other basis other than as a permanent
employee any individual as a nurse aide in the facility on or
after January 1, 1991, unless the individual meets the
requirements described in clause (i).
(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 January 1, 1990, for a
competency evaluation program approved by the State under
subsection (e)(1) of this section and such preparation as may
be necessary for the individual to complete such a program by
October 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 any State registry established under
subsection (e)(2)(A) of this section that the facility believes
will include information concerning the individual.
(D) Re-training required
For purposes of subparagraph (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, or a new 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 a registered dietician, 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, physical or
occupational therapy assistant, registered professional nurse,
licensed practical nurse, or licensed or certified social
worker.
(6) Physician supervision and clinical records
A nursing facility must -
(A) require that the health care of every resident be
provided under the supervision of a physician (or, at the
option of a State, under the supervision of a nurse
practitioner, clinical nurse specialist, or physician assistant
who is not an employee of the facility but who is working in
collaboration with a physician);
(B) provide for having a physician available to furnish
necessary medical care in case of emergency; and
(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) of this section.
(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.
(8) Information on nurse staffing
(A) In general
A nursing facility shall post daily for each shift the
current number of licensed and unlicensed nursing staff
directly responsible for resident care in the facility. The
information shall be displayed in a uniform manner (as
specified by the Secretary) and in a clearly visible place.
(B) Publication of data
A nursing facility shall, upon request, make available to the
public the nursing staff data described in subparagraph (A).
(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) Confidentiality
The right to confidentiality of personal and clinical
records and to access to current clinical records of the
resident upon request by the resident or the resident's legal
representative, within 24 hours (excluding hours occurring
during a weekend or holiday) after making such a request.
(v) Accommodation of needs
The right -
(I) to reside and receive services with reasonable
accommodation 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 have, including those with respect to the
behavior of other residents.
(vii) Participation in resident and family groups
The right of the resident to organize and participate in
resident groups in the facility and the right of the
resident's family to meet in the facility with the families
of other residents in the facility.
(viii) Participation in other activities
The right of the resident to participate in social,
religious, and community activities that do not interfere
with the rights of other residents in the facility.
(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.
(x) Refusal of certain transfers
The right to refuse a transfer to another room within the
facility, if a purpose of the transfer is to relocate the
resident from a portion of the facility that is not a skilled
nursing facility (for purposes of subchapter XVIII of this
chapter) to a portion of the facility that is such a skilled
nursing facility.
(xi) Other rights
Any other right established by the Secretary.
Clause (iii) shall not be construed as requiring the provision
of a private room. A resident's exercise of a right to refuse
transfer under clause (x) shall not affect the resident's
eligibility or entitlement to medical assistance under this
subchapter or a State's entitlement to Federal medical
assistance under this subchapter with respect to services
furnished to such a resident.
(B) Notice of rights
A nursing facility must -
(i) inform each resident, orally and in writing at the time
of admission to the facility, of the resident's legal rights
during the stay at the facility and of the requirements and
procedures for establishing eligibility for medical
assistance under this subchapter, including the right to
request an assessment under section 1396r-5(c)(1)(B) of this
title;
(ii) make available to each resident, upon reasonable
request, a written statement of such rights (which statement
is updated upon changes in such rights) including the notice
(if any) of the State developed under subsection (e)(6) of
this section;
(iii) inform each resident who is entitled to medical
assistance under this subchapter -
(I) at the time of admission to the facility or, if
later, at the time the resident becomes eligible for such
assistance, of the items and services (including those
specified under section 1396a(a)(28)(B) of this title) that
are included in nursing facility services under the State
plan and for which the resident may not be charged (except
as permitted in section 1396o of this title), and of those
other items and services that the facility offers and for
which the resident may be charged and the amount of the
charges for such items and services, and
(II) of changes in the items and services described in
subclause (I) and of changes in the charges imposed for
items and services described in that subclause; and
(iv) inform each other resident, in writing before or at
the time of admission and periodically during the resident's
stay, of services available in the facility and of related
charges for such services, including any charges for services
not covered under subchapter XVIII of this chapter 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 subchapter
shall devolve upon, and, to the extent judged necessary by a
court of competent jurisdiction, be exercised by, the person
appointed under State law to act on the resident's behalf.
(D) Use of psychopharmacologic drugs
Psychopharmacologic drugs may be administered only on the
orders of a physician and only as part of a plan (included in
the written plan of care described in paragraph (2)) designed
to eliminate or modify the symptoms for which the drugs are
prescribed and only if, at least annually an independent,
external consultant reviews the appropriateness of the drug
plan of each resident receiving such drugs.
(2) Transfer and discharge rights
(A) In general
A nursing facility must permit each resident to remain in the
facility and must not transfer or discharge the resident from
the facility unless -
(i) the transfer or discharge is necessary to meet the
resident's welfare and the resident's welfare cannot be met
in the facility;
(ii) the transfer or discharge is appropriate because the
resident's health has improved sufficiently so the resident
no longer needs the services provided by the facility;
(iii) the safety of individuals in the facility is
endangered;
(iv) the health of individuals in the facility would
otherwise be endangered;
(v) the resident has failed, after reasonable and
appropriate notice, to pay (or to have paid under this
subchapter or subchapter XVIII of this chapter on the
resident's behalf) for a stay at the facility; or
(vi) the facility ceases to operate.
In each of the cases described in clauses (i) through (iv), the
basis for the transfer or discharge must be documented in the
resident's clinical record. In the cases described in clauses
(i) and (ii), the documentation must be made by the resident's
physician, and in the case described in clause (iv) the
documentation must be made by a physician. For purposes of
clause (v), in the case of a resident who becomes eligible for
assistance under this subchapter after admission to the
facility, only charges which may be imposed under this
subchapter shall be considered to be allowable.
(B) Pre-transfer and pre-discharge notice
(i) In general
Before effecting a transfer or discharge of a resident, a
nursing facility must -
(I) notify the resident (and, if known, an immediate
family member of the resident or legal representative) of
the transfer or discharge and the reasons therefor,
(II) record the reasons in the resident's clinical record
(including any documentation required under subparagraph
(A)), and
(III) include in the notice the items described in clause
(iii).
(ii) Timing of notice
The notice under clause (i)(I) must be made at least 30
days in advance of the resident's transfer or discharge
except -
(I) in a case described in clause (iii) or (iv) of
subparagraph (A);
(II) in a case described in clause (ii) of subparagraph
(A), where the resident's health improves sufficiently to
allow a more immediate transfer or discharge;
(III) in a case described in clause (i) of subparagraph
(A), where a more immediate transfer or discharge is
necessitated by the resident's urgent medical needs; or
(IV) in a case where a resident has not resided in the
facility for 30 days.
In the case of such exceptions, notice must be given as many
days before the date of the transfer or discharge as is
practicable.
(iii) Items included in notice
Each notice under clause (i) must include -
(I) for transfers or discharges effected on or after
October 1, 1989, notice of the resident's right to appeal
the transfer or discharge under the State process
established under subsection (e)(3) of this section;
(II) the name, mailing address, and telephone number of
the State long-term care ombudsman (established under title
III or VII of the Older Americans Act of 1965 [42 U.S.C.
3021 et seq., 3058 et seq.] in accordance with section 712
of the Act [42 U.S.C. 3058g]);
(III) in the case of residents with developmental
disabilities, the mailing address and telephone number of
the agency responsible for the protection and advocacy
system for developmentally disabled individuals established
under subtitle C of the Developmental Disabilities
Assistance and Bill of Rights Act of 2000 [42 U.S.C. 15041
et seq.]; and
(IV) in the case of mentally ill residents (as defined in
subsection (e)(7)(G)(i) of this section), the mailing
address and telephone number of the agency responsible for
the protection and advocacy system for mentally ill
individuals established under the Protection and Advocacy
for Mentally Ill Individuals Act )2(! [42 U.S.C. 10801 et
seq.].
(C) Orientation
A nursing facility must provide sufficient preparation and
orientation to residents to ensure safe and orderly transfer or
discharge from the facility.
(D) Notice on bed-hold policy and readmission
(i) Notice before transfer
Before a resident of a nursing facility is transferred for
hospitalization or therapeutic leave, a nursing facility must
provide written information to the resident and an immediate
family member or legal representative concerning -
(I) the provisions of the State plan under this
subchapter regarding the period (if any) during which the
resident will be permitted under the State plan to return
and resume residence in the facility, and
(II) the policies of the facility regarding such a
period, which policies must be consistent with clause
(iii).
(ii) Notice upon transfer
At the time of transfer of a resident to a hospital or for
therapeutic leave, a nursing facility must provide written
notice to the resident and an immediate family member or
legal representative of the duration of any period described
in clause (i).
(iii) Permitting resident to return
A nursing facility must establish and follow a written
policy under which a resident -
(I) who is eligible for medical assistance for nursing
facility services under a State plan,
(II) who is transferred from the facility for
hospitalization or therapeutic leave, and
(III) whose hospitalization or therapeutic leave exceeds
a period paid for under the State plan for the holding of a
bed in the facility for the resident,
will be permitted to be readmitted to the facility
immediately upon the first availability of a bed in a
semiprivate room in the facility if, at the time of
readmission, the resident requires the services provided by
the facility.
(E) Information respecting advance directives
A nursing facility must comply with the requirement of
section 1396a(w) of this title (relating to maintaining written
policies and procedures respecting advance directives).
(F) Continuing rights in case of voluntary withdrawal from
participation
(i) In general
In the case of a nursing facility that voluntarily
withdraws from participation in a State plan under this
subchapter but continues to provide services of the type
provided by nursing facilities -
(I) the facility's voluntary withdrawal from
participation is not an acceptable basis for the transfer
or discharge of residents of the facility who were residing
in the facility on the day before the effective date of the
withdrawal (including those residents who were not entitled
to medical assistance as of such day);
(II) the provisions of this section continue to apply to
such residents until the date of their discharge from the
facility; and
(III) in the case of each individual who begins residence
in the facility after the effective date of such
withdrawal, the facility shall provide notice orally and in
a prominent manner in writing on a separate page at the
time the individual begins residence of the information
described in clause (ii) and shall obtain from each such
individual at such time an acknowledgment of receipt of
such information that is in writing, signed by the
individual, and separate from other documents signed by
such individual.
Nothing in this subparagraph shall be construed as affecting
any requirement of a participation agreement that a nursing
facility provide advance notice to the State or the
Secretary, or both, of its intention to terminate the
agreement.
(ii) Information for new residents
The information described in this clause for a resident is
the following:
(I) The facility is not participating in the program
under this subchapter with respect to that resident.
(II) The facility may transfer or discharge the resident
from the facility at such time as the resident is unable to
pay the charges of the facility, even though the resident
may have become eligible for medical assistance for nursing
facility services under this subchapter.
(iii) Continuation of payments and oversight authority
Notwithstanding any other provision of this subchapter,
with respect to the residents described in clause (i)(I), a
participation agreement of a facility described in clause (i)
is deemed to continue in effect under such plan after the
effective date of the facility's voluntary withdrawal from
participation under the State plan for purposes of -
(I) receiving payments under the State plan for nursing
facility services provided to such residents;
(II) maintaining compliance with all applicable
requirements of this subchapter; and
(III) continuing to apply the survey, certification, and
enforcement authority provided under subsections (g) and
(h) of this section (including involuntary termination of a
participation agreement deemed continued under this
clause).
(iv) No application to new residents
This paragraph (other than subclause (III) of clause (i))
shall not apply to an individual who begins residence in a
facility on or after the effective date of the withdrawal
from participation under this subparagraph.
(3) Access and visitation rights
A nursing facility must -
(A) permit immediate access to any resident by any
representative of the Secretary, by any representative of the
State, by an ombudsman or agency described in subclause (II),
(III), or (IV) of paragraph (2)(B)(iii), or by the resident's
individual physician;
(B) permit immediate access to a resident, subject to the
resident's right to deny or withdraw consent at any time, by
immediate family or other relatives of the resident;
(C) permit immediate access to a resident, subject to
reasonable restrictions and the resident's right to deny or
withdraw consent at any time, by others who are visiting with
the consent of the resident;
(D) permit reasonable access to a resident by any entity or
individual that provides health, social, legal, or other
services to the resident, subject to the resident's right to
deny or withdraw consent at any time; and
(E) permit representatives of the State ombudsman (described
in paragraph (2)(B)(iii)(II)), 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) In general
A nursing facility must establish and maintain identical
policies and practices regarding transfer, discharge, and the
provision of services required under the State plan for all
individuals regardless of source of payment.
(B) Construction
(i) Nothing prohibiting any charges for non-medicaid patients
Subparagraph (A) shall not be construed as prohibiting a
nursing facility from charging any amount for services
furnished, consistent with the notice in paragraph (1)(B)
describing such charges.
(ii) No additional services required
Subparagraph (A) shall not be construed as requiring a
State to offer additional services on behalf of a resident
than are otherwise provided under the State plan.
(5) Admissions policy
(A) Admissions
With respect to admissions practices, a nursing facility must
-
(i)(I) not require individuals applying to reside or
residing in the facility to waive their rights to benefits
under this subchapter or subchapter XVIII of this chapter,
(II) not require oral or written assurance that such
individuals are not eligible for, or will not apply for,
benefits under this subchapter or subchapter XVIII of this
chapter, and (III) prominently display in the facility
written information, and provide to such individuals oral and
written information, about how to apply for and use such
benefits and how to receive refunds for previous payments
covered by such benefits;
(ii) not require a third party guarantee of payment to the
facility as a condition of admission (or expedited admission)
to, or continued stay in, the facility; and
(iii) in the case of an individual who is entitled to
medical assistance for nursing facility services, not charge,
solicit, accept, or receive, in addition to any amount
otherwise required to be paid under the State plan under this
subchapter, any gift, money, donation, or other consideration
as a precondition of admitting (or expediting the admission
of) the individual to the facility or as a requirement for
the individual's continued stay in the facility.
(B) Construction
(i) 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 the
State plan with respect to admissions practices of nursing
facilities.
(ii) Contracts with legal representatives
Subparagraph (A)(ii) shall not be construed as preventing a
facility from requiring an individual, who has legal access
to a resident's income or resources available to pay for care
in the facility, to sign a contract (without incurring
personal financial liability) to provide payment from the
resident's income or resources for such care.
(iii) Charges for additional services requested
Subparagraph (A)(iii) shall not be construed as preventing
a facility from charging a resident, eligible for medical
assistance under the State plan, for items or services the
resident has requested and received and that are not
specified in the State plan as included in the term "nursing
facility services".
(iv) Bona fide contributions
Subparagraph (A)(iii) shall not be construed as prohibiting
a nursing facility from soliciting, accepting, or receiving a
charitable, religious, or philanthropic contribution from an
organization or from a person unrelated to the resident (or
potential resident), but only to the extent that such
contribution is not a condition of admission, expediting
admission, or continued stay in the facility.
(6) Protection of resident funds
(A) In general
The nursing facility -
(i) may not require residents to deposit their personal
funds with the facility, and
(ii) upon the written authorization of the resident, must
hold, safeguard, and account for such personal funds under a
system established and maintained by the facility in
accordance with this paragraph.
(B) Management of personal funds
Upon written authorization of a resident under subparagraph
(A)(ii), the facility must manage and account for the personal
funds of the resident deposited with the facility as follows:
(i) Deposit
The facility must deposit any amount of personal funds in
excess of $50 with respect to a resident in an interest
bearing account (or accounts) that is separate from any of
the facility's operating accounts and credits all interest
earned on such separate account to such account. With respect
to any other personal funds, the facility must maintain such
funds in a non-interest bearing account or petty cash fund.
(ii) Accounting and records
The facility must assure a full and complete separate
accounting of each such resident's personal funds, maintain a
written record of all financial transactions involving the
personal funds of a resident deposited with the facility, and
afford the resident (or a legal representative of the
resident) reasonable access to such record.
(iii) Notice of certain balances
The facility must notify each resident receiving medical
assistance under the State plan under this subchapter when
the amount in the resident's account reaches $200 less than
the dollar amount determined under section 1382(a)(3)(B) of
this title and the fact that if the amount in the account (in
addition to the value of the resident's other nonexempt
resources) reaches the amount determined under such section
the resident may lose eligibility for such medical assistance
or for benefits under subchapter XVI of this chapter.
(iv) Conveyance upon death
Upon the death of a resident with such an account, the
facility must convey promptly the resident's personal funds
(and a final accounting of such funds) to the individual
administering the resident's estate.
(C) Assurance of financial security
The facility must purchase a surety bond, or otherwise
provide assurance satisfactory to the Secretary, to assure the
security of all personal funds of residents deposited with the
facility.
(D) Limitation on charges to personal funds
The facility may not impose a charge against the personal
funds of a resident for any item or service for which payment
is made under this subchapter or subchapter XVIII of this
chapter.
(7) Limitation on charges in case of medicaid-eligible
individuals
(A) In general
A nursing facility may not impose charges, for certain
medicaid-eligible individuals for nursing facility services
covered by the State under its plan under this subchapter, that
exceed the payment amounts established by the State for such
services under this subchapter.
(B) "Certain medicaid-eligible individual" defined
In subparagraph (A), the term "certain medicaid-eligible
individual" means an individual who is entitled to medical
assistance for nursing facility services in the facility under
this subchapter but with respect to whom such benefits are not
being paid because, in determining the amount of the
individual's income to be applied monthly to payment for the
costs of such services, the amount of such income exceeds the
payment amounts established by the State for such services
under this subchapter.
(8) Posting of survey results
A nursing facility must post in a place readily accessible to
residents, and family members and legal representatives of
residents, the results of the most recent survey of the facility
conducted under subsection (g) of this section.
(d) Requirements relating to administration and other matters
(1) Administration
(A) In general
A nursing facility must be administered in a manner that
enables it to use its resources effectively and efficiently to
attain or maintain the highest practicable physical, mental,
and psychosocial well-being of each resident (consistent with
requirements established under subsection (f)(5) of this
section).
(B) Required notices
If a change occurs in -
(i) the persons with an ownership or control interest (as
defined in section 1320a-3(a)(3) of this title) in the
facility,
(ii) the persons who are officers, directors, agents, or
managing employees (as defined in section 1320a-5(b) of this
title) of the facility,
(iii) the corporation, association, or other company
responsible for the management of the facility, or
(iv) the individual who is the administrator or director of
nursing of the facility,
the nursing facility must provide notice to the State agency
responsible for the licensing of the facility, at the time of
the change, of the change and of the identity of each new
person, company, or individual described in the respective
clause.
(C) Nursing facility administrator
The administrator of a nursing facility must meet standards
established by the Secretary under subsection (f)(4) of this
section.
(2) Licensing and Life Safety Code
(A) Licensing
A nursing facility must be licensed under applicable State
and local law.
(B) Life Safety Code
A nursing facility must meet such provisions of such edition
(as specified by the Secretary in regulation) of the Life
Safety Code of the National Fire Protection Association as are
applicable to nursing homes; except that -
(i) the Secretary may waive, for such periods as he deems
appropriate, specific provisions of such Code which if
rigidly applied would result in unreasonable hardship upon a
facility, but only if such waiver would not adversely affect
the health and safety of residents or personnel, and
(ii) the provisions of such Code shall not apply in any
State if the Secretary finds that in such State there is in
effect a fire and safety code, imposed by State law, which
adequately protects residents of and personnel in nursing
facilities.
(3) Sanitary and infection control and physical environment
A 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) Compliance with Federal, State, and local laws and
professional standards
A nursing facility must operate and provide services in
compliance with all applicable Federal, State, and local laws
and regulations (including the requirements of section 1320a-3
of this title) and with accepted professional standards and
principles which apply to professionals providing services in
such a facility.
(B) Other
A nursing facility must meet such other requirements relating
to the health and safety of residents or relating to the
physical facilities thereof as the Secretary may find
necessary.
(e) State requirements relating to nursing facility requirements
As a condition of approval of its plan under this subchapter, a
State must provide for the following:
(1) Specification and review of nurse aide training and
competency evaluation programs and of nurse aide competency
evaluation programs
The State must -
(A) by not later than January 1, 1989, specify those training
and competency evaluation programs, and those competency
evaluation programs, that the State approves for purposes of
subsection (b)(5) of this section and that meet the
requirements established under subsection (f)(2) of this
section, and
(B) by not later than January 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) of this section.
The failure of the Secretary to establish requirements under
subsection (f)(2) of this section shall not relieve any State of
its responsibility under this paragraph.
(2) Nurse aide registry
(A) In general
By not later than January 1, 1989, the State shall establish
and maintain a registry of all individuals who have
satisfactorily completed a nurse aide training and competency
evaluation program, or a nurse aide competency evaluation
program, approved under paragraph (1) in the State, or any
individual described in subsection (f)(2)(B)(ii) of this
section or in subparagraph (B), (C), or (D) of section
6901(b)(4) of the Omnibus Budget Reconciliation Act of 1989.
(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)(1)(C) of this section 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. The State shall make
available to the public information in the registry. 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.
(C) Prohibition against charges
A State may not impose any charges on a nurse aide relating
to the registry established and maintained under subparagraph
(A).
(3) State appeals process for transfers and discharges
The State, for transfers and discharges from nursing facilities
effected on or after October 1, 1989, must provide for a fair
mechanism, meeting the guidelines established under subsection
(f)(3) of this section, for hearing appeals on transfers and
discharges of residents of such facilities; but the failure of
the Secretary to establish such guidelines under such subsection
shall not relieve any State of its responsibility under this
paragraph.
(4) Nursing facility administrator standards
By not later than July 1, 1989, the State must have implemented
and enforced the nursing facility administrator standards
developed under subsection (f)(4) of this section respecting the
qualification of administrators of nursing facilities.
(5) Specification of resident assessment instrument
Effective July 1, 1990, the State shall specify the instrument
to be used by nursing facilities in the State in complying with
the requirement of subsection (b)(3)(A)(iii) of this section.
Such instrument shall be -
(A) one of the instruments designated under subsection
(f)(6)(B) of this section, 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 (f)(6)(A) of this section.
(6) Notice of medicaid rights
Each State, as a condition of approval of its plan under this
subchapter, effective April 1, 1988, must develop (and
periodically update) a written notice of the rights and
obligations of residents of nursing facilities (and spouses of
such residents) under this subchapter.
(7) State requirements for preadmission screening and resident
review
(A) Preadmission screening
(i) In general
Effective January 1, 1989, the State must have in effect a
preadmission screening program, for making determinations
(using any criteria developed under subsection (f)(8) of this
section) described in subsection (b)(3)(F) of this section
for mentally ill and mentally retarded individuals (as
defined in subparagraph (G)) who are admitted to nursing
facilities on or after January 1, 1989. The failure of the
Secretary to develop minimum criteria under subsection (f)(8)
of this section shall not relieve any State of its
responsibility to have a preadmission screening program under
this subparagraph or to perform resident reviews under
subparagraph (B).
(ii) Clarification with respect to certain readmissions
The preadmission screening program under clause (i) need
not provide for determinations in the case of the readmission
to a nursing facility of an individual who, after being
admitted to the nursing facility, was transferred for care in
a hospital.
(iii) Exception for certain hospital discharges
The preadmission screening program under clause (i) shall
not apply to the admission to a nursing facility of an
individual -
(I) who is admitted to the facility directly from a
hospital after receiving acute inpatient care at the
hospital,
(II) who requires nursing facility services for the
condition for which the individual received care in the
hospital, and
(III) whose attending physician has certified, before
admission to the facility, that the individual is likely to
require less than 30 days of nursing facility services.
(B) State requirement for resident review
(i) For mentally ill residents
As of April 1, 1990, in the case of each resident of a
nursing facility who is mentally ill, the State mental health
authority must review and determine (using any criteria
developed under subsection (f)(8) of this section and based
on an independent physical and mental evaluation performed by
a person or entity other than the State mental health
authority) -
(I) whether or not the resident, because of the
resident's physical and mental condition, requires the
level of services provided by a nursing facility or
requires the level of services of an inpatient psychiatric
hospital for individuals under age 21 (as described in
section 1396d(h) of this title) or of an institution for
mental diseases providing medical assistance to individuals
65 years of age or older; and
(II) whether or not the resident requires specialized
services for mental illness.
(ii) For mentally retarded residents
As of April 1, 1990, in the case of each resident of a
nursing facility who is mentally retarded, the State mental
retardation or developmental disability authority must review
and determine (using any criteria developed under subsection
(f)(8) of this section) -
(I) whether or not the resident, because of the
resident's physical and mental condition, requires the
level of services provided by a nursing facility or
requires the level of services of an intermediate care
facility described under section 1396d(d) of this title;
and
(II) whether or not the resident requires specialized
services for mental retardation.
(iii) Review required upon change in resident's condition
A review and determination under clause (i) or (ii) must be
conducted promptly after a nursing facility has notified the
State mental health authority or State mental retardation or
developmental disability authority, as applicable, under
subsection (b)(3)(E) of this section with respect to a
mentally ill or mentally retarded resident, that there has
been a significant change in the resident's physical or
mental condition.
(iv) Prohibition of delegation
A State mental health authority, a State mental retardation
or developmental disability authority, and a State may not
delegate (by subcontract or otherwise) their responsibilities
under this subparagraph to a nursing facility (or to an
entity that has a direct or indirect affiliation or
relationship with such a facility).
(C) Response to preadmission screening and resident review
As of April 1, 1990, the State must meet the following
requirements:
(i) Long-term residents not requiring nursing facility
services, but requiring specialized services
In the case of a resident who is determined, under
subparagraph (B), not to require the level of services
provided by a nursing facility, but to require specialized
services for mental illness or mental retardation, and who
has continuously resided in a nursing facility for at least
30 months before the date of the determination, the State
must, in consultation with the resident's family or legal
representative and care-givers -
(I) inform the resident of the institutional and
noninstitutional alternatives covered under the State plan
for the resident,
(II) offer the resident the choice of remaining in the
facility or of receiving covered services in an alternative
appropriate institutional or noninstitutional setting,
(III) clarify the effect on eligibility for services
under the State plan if the resident chooses to leave the
facility (including its effect on readmission to the
facility), and
(IV) regardless of the resident's choice, provide for (or
arrange for the provision of) such specialized services for
the mental illness or mental retardation.
A State shall not be denied payment under this subchapter for
nursing facility services for a resident described in this
clause because the resident does not require the level of
services provided by such a facility, if the resident chooses
to remain in such a facility.
(ii) Other residents not requiring nursing facility services,
but requiring specialized services
In the case of a resident who is determined, under
subparagraph (B), not to require the level of services
provided by a nursing facility, but to require specialized
services for mental illness or mental retardation, and who
has not continuously resided in a nursing facility for at
least 30 months before the date of the determination, the
State must, in consultation with the resident's family or
legal representative and care-givers -
(I) arrange for the safe and orderly discharge of the
resident from the facility, consistent with the
requirements of subsection (c)(2) of this section,
(II) prepare and orient the resident for such discharge,
and
(III) provide for (or arrange for the provision of) such
specialized services for the mental illness or mental
retardation.
(iii) Residents not requiring nursing facility services and
not requiring specialized services
In the case of a resident who is determined, under
subparagraph (B), not to require the level of services
provided by a nursing facility and not to require specialized
services for mental illness or mental retardation, the State
must -
(I) arrange for the safe and orderly discharge of the
resident from the facility, consistent with the
requirements of subsection (c)(2) of this section, and
(II) prepare and orient the resident for such discharge.
(iv) Annual report
Each State shall report to the Secretary annually
concerning the number and disposition of residents described
in each of clauses (ii) and (iii).
(D) Denial of payment
(i) For failure to conduct preadmission screening or review
No payment may be made under section 1396b(a) of this title
with respect to nursing facility services furnished to an
individual for whom a determination is required under
subsection (b)(3)(F) of this section or subparagraph (B) but
for whom the determination is not made.
(ii) For certain residents not requiring nursing facility
level of services
No payment may be made under section 1396b(a) of this title
with respect to nursing facility services furnished to an
individual (other than an individual described in
subparagraph (C)(i)) who does not require the level of
services provided by a nursing facility.
(E) Permitting alternative disposition plans
With respect to residents of a nursing facility who are
mentally retarded or mentally ill and who are determined under
subparagraph (B) not to require the level of services of such a
facility, but who require specialized services for mental
illness or mental retardation, a State and the nursing facility
shall be considered to be in compliance with the requirements
of subparagraphs (A) through (C) of this paragraph if, before
April 1, 1989, the State and the Secretary have entered into an
agreement relating to the disposition of such residents of the
facility and the State is in compliance with such agreement.
Such an agreement may provide for the disposition of the
residents after the date specified in subparagraph (C). The
State may revise such an agreement, subject to the approval of
the Secretary, before October 1, 1991, but only if, under the
revised agreement, all residents subject to the agreement who
do not require the level of services of such a facility are
discharged from the facility by not later than April 1, 1994.
(F) Appeals procedures
Each State, as a condition of approval of its plan under this
subchapter, effective January 1, 1989, must have in effect an
appeals process for individuals adversely affected by
determinations under subparagraph (A) or (B).
(G) Definitions
In this paragraph and in subsection (b)(3)(F) of this
section:
(i) An individual is considered to be "mentally ill" if the
individual has a serious mental illness (as defined by the
Secretary in consultation with the National Institute of
Mental Health) and does not have a primary diagnosis of
dementia (including Alzheimer's disease or a related
disorder) or a diagnosis (other than a primary diagnosis) of
dementia and a primary diagnosis that is not a serious mental
illness.
(ii) An individual is considered to be "mentally retarded"
if the individual is mentally retarded or a person with a
related condition (as described in section 1396d(d) of this
title).
(iii) The term "specialized services" has the meaning given
such term by the Secretary in regulations, but does not
include, in the case of a resident of a nursing facility,
services within the scope of services which the facility must
provide or arrange for its residents under subsection (b)(4)
of this section.
(f) Responsibilities of Secretary relating to nursing facility
requirements
(1) General responsibility
It is the duty and responsibility of the Secretary to assure
that requirements which govern the provision of care in nursing
facilities under State plans approved under this subchapter, and
the enforcement of such requirements, are adequate to protect the
health, safety, welfare, and rights of residents and to promote
the effective and efficient use of public moneys.
(2) Requirements for nurse aide training and competency
evaluation programs and for nurse aide competency evaluation
programs
(A) In general
For purposes of subsections (b)(5) and (e)(1)(A) of this
section, 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, recognition of mental health and social service
needs, care of cognitively impaired residents, basic
restorative services, and residents' rights) and 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, recognition of
mental health and social service needs, care of cognitively
impaired residents, basic restorative services, and
residents' rights, and procedures for determination of
competency;
(iii) requirements respecting the minimum frequency and
methodology to be used by a State in reviewing such programs'
compliance with the requirements for such programs; and
(iv) requirements, under both such programs, that -
(I) provide procedures for determining competency that
permit a nurse aide, at the nurse aide's option, to
establish competency through procedures or methods other
than the passing of a written examination and to have the
competency evaluation conducted at the nursing facility at
which the aide is (or will be) employed (unless the
facility is described in subparagraph (B)(iii)(I)),
(II) prohibit the imposition on a nurse aide who is
employed by (or who has received an offer of employment
from) a facility on the date on which the aide begins
either such program of any charges (including any charges
for textbooks and other required course materials and any
charges for the competency evaluation) for either such
program, and
(III) in the case of a nurse aide not described in
subclause (II) who is employed by (or who has received an
offer of employment from) a facility not later than 12
months after completing either such program, the State
shall provide for the reimbursement of costs incurred in
completing such program on a prorata basis during the
period in which the nurse aide is so employed.
(B) Approval of certain programs
Such requirements -
(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 December 22,
1987;
(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 under subsection (b)(5) of
this section if the State determines that, at the time the
program was offered, the program met the requirements for
approval under such paragraph; and
(iii) subject to subparagraphs (C) and (D), shall prohibit
approval of such a program -
(I) offered by or in a nursing facility which, within the
previous 2 years -
(a) has operated under a waiver under subsection
(b)(4)(C)(ii) of this section that was granted on the
basis of a demonstration that the facility is unable to
provide the nursing care required under subsection
(b)(4)(C)(i) of this section for a period in excess of 48
hours during a week;
(b) has been subject to an extended (or partial
extended) survey under section 1395i-3(g)(2)(B)(i) of
this title or subsection (g)(2)(B)(i) of this section; or
(c) has been assessed a civil money penalty described
in section 1395i-3(h)(2)(B)(ii) of this title or
subsection (h)(2)(A)(ii) of this section of not less than
$5,000, or has been subject to a remedy described in
subsection (h)(1)(B)(i) of this section, clauses )3(!
(i), (iii), or (iv) of subsection (h)(2)(A) of this
section, clauses )3(! (i) or (iii) of section
1395i-3(h)(2)(B) of this title, or section 1395i-3(h)(4)
of this title, or
(II) offered by or in a nursing facility unless the State
makes the determination, upon an individual's completion of
the program, that the individual is competent to provide
nursing and nursing-related services in nursing facilities.
A State may not delegate (through subcontract or otherwise)
its responsibility under clause (iii)(II) to the nursing
facility.
(C) Waiver authorized
Clause (iii)(I) of subparagraph (B) shall not apply to a
program offered in (but not by) a nursing facility (or skilled
nursing facility for purposes of subchapter XVIII of this
chapter) in a State if the State -
(i) determines that there is no other such program offered
within a reasonable distance of the facility,
(ii) assures, through an oversight effort, that an adequate
environment exists for operating the program in the facility,
and
(iii) provides notice of such determination and assurances
to the State long-term care ombudsman.
(D) Waiver of disapproval of nurse-aide training programs
Upon application of a nursing facility, the Secretary may
waive the application of subparagraph (B)(iii)(I)(c) if the
imposition of the civil monetary penalty was not related to the
quality of care provided to residents of the facility. Nothing
in this subparagraph shall be construed as eliminating any
requirement upon a facility to pay a civil monetary penalty
described in the preceding sentence.
(3) Federal guidelines for State appeals process for transfers
and discharges
For purposes of subsections (c)(2)(B)(iii) and (e)(3) of this
section, by not later than October 1, 1988, the Secretary shall
establish guidelines for minimum standards which State appeals
processes under subsection (e)(3) of this section must meet to
provide a fair mechanism for hearing appeals on transfers and
discharges of residents from nursing facilities.
(4) Secretarial standards qualification of administrators
For purposes of subsections (d)(1)(C) and (e)(4) of this
section, the Secretary shall develop, by not later than March 1,
1988, standards to be applied in assuring the qualifications of
administrators of nursing facilities.
(5) Criteria for administration
The Secretary shall establish criteria for assessing a nursing
facility's compliance with the requirement of subsection (d)(1)
of this section 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
nursing facilities,
(C) disaster preparedness,
(D) direction of medical care by a physician,
(E) laboratory and radiological services,
(F) clinical records, and
(G) resident and advocate participation.
(6) Specification of resident assessment data set and instruments
The Secretary shall -
(A) not later than January 1, 1989, specify a minimum data
set of core elements and common definitions for use by nursing
facilities in conducting the assessments required under
subsection (b)(3) of this section, and establish guidelines for
utilization of the data set; and
(B) by not later than April 1, 1990, designate one or more
instruments which are consistent with the specification made
under subparagraph (A) and which a State may specify under
subsection (e)(5)(A) of this section for use by nursing
facilities in complying with the requirements of subsection
(b)(3)(A)(iii) of this section.
(7) List of items and services furnished in nursing facilities
not chargeable to the personal funds of a resident
(A) Regulations required
Pursuant to the requirement 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 December 22, 1987, that
define those costs which may be charged to the personal funds
of residents in nursing facilities who are individuals
receiving medical assistance with respect to nursing facility
services under this subchapter and those costs which are to be
included in the payment amount under this subchapter for
nursing facility 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 that
subparagraph, in the case of a resident of a nursing facility
who is eligible to receive benefits for nursing facility
services under this subchapter, for purposes of section
1396a(a)(28)(B) of this title, the Secretary shall be deemed to
have promulgated regulations under this paragraph which provide
that the costs which may not be charged to the personal funds
of such resident (and for which payment is considered to be
made under this subchapter) include, at a minimum, the costs
for routine personal hygiene items and services furnished by
the facility.
(8) Federal minimum criteria and monitoring for preadmission
screening and resident review
(A) Minimum criteria
The Secretary shall develop, by not later than October 1,
1988, minimum criteria for States to use in making
determinations under subsections (b)(3)(F) and (e)(7)(B) of
this section and in permitting individuals adversely affected
to appeal such determinations, and shall notify the States of
such criteria.
(B) Monitoring compliance
The Secretary shall review, in a sufficient number of cases
to allow reasonable inferences, each State's compliance with
the requirements of subsection (e)(7)(C)(ii) of this section
(relating to discharge and placement for active treatment of
certain residents).
(9) Criteria for monitoring State waivers
The Secretary shall develop, by not later than October 1, 1988,
criteria and procedures for monitoring State performances in
granting waivers pursuant to subsection (b)(4)(C)(ii) of this
section.
(g) Survey and certification process
(1) State and Federal responsibility
(A) In general
Under each State plan under this subchapter, the State shall
be responsible for certifying, in accordance with surveys
conducted under paragraph (2), the compliance of nursing
facilities (other than facilities of the State) with the
requirements of subsections (b), (c), and (d) of this section.
The Secretary shall be responsible for certifying, in
accordance with surveys conducted under paragraph (2), the
compliance of State nursing facilities with the requirements of
such subsections.
(B) Educational program
Each State shall conduct periodic educational programs for
the staff and residents (and their representatives) of nursing
facilities in order to present current regulations, procedures,
and policies under this section.
(C) Investigation of allegations of resident neglect 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 and timely 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 or by another individual used by
the facility in providing services to such a resident. The
State shall, after notice to the individual involved and a
reasonable opportunity for a hearing for the individual to
rebut allegations, make a finding as to the accuracy of the
allegations. If the State finds that a nurse aide 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. If the State finds that any other
individual used by the facility has neglected or abused a
resident or misappropriated resident property in a facility,
the State shall notify the appropriate licensure authority. A
State shall not make a finding that an individual has neglected
a resident if the individual demonstrates that such neglect was
caused by factors beyond the control of the individual.
(D) Removal of name from nurse aide registry
(i) In general
In the case of a finding of neglect under subparagraph (C),
the State shall establish a procedure to permit a nurse aide
to petition the State to have his or her name removed from
the registry upon a determination by the State that -
(I) the employment and personal history of the nurse aide
does not reflect a pattern of abusive behavior or neglect;
and
(II) the neglect involved in the original finding was a
singular occurrence.
(ii) Timing of determination
In no case shall a determination on a petition submitted
under clause (i) be made prior to the expiration of the
1-year period beginning on the date on which the name of the
petitioner was added to the registry under subparagraph (C).
(E) Construction
The failure of the Secretary to issue regulations to carry
out this subsection shall not relieve a State of its
responsibility under this subsection.
(2) Surveys
(A) Annual standard survey
(i) In general
Each nursing facility shall be subject to a standard
survey, to be conducted without any prior notice to the
facility. Any individual who notifies (or causes to be
notified) a nursing facility of the time or date on which
such a survey is scheduled to be conducted is subject to a
civil money penalty of not to exceed $2,000. The provisions
of section 1320a-7a of this title (other than subsections (a)
and (b)) shall apply to a civil money penalty under the
previous sentence in the same manner as such provisions apply
to a penalty or proceeding under section 1320a-7a(a) of this
title. The Secretary shall review each State's procedures for
scheduling and conduct of standard surveys to assure that the
State has taken all reasonable steps to avoid giving notice
of such a survey through the scheduling procedures and 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,
activities and social participation, and sanitation,
infection control, and the physical environment,
(II) written plans of care provided under subsection
(b)(2) of this section and an audit of the residents'
assessments under subsection (b)(3) of this section 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) of this section.
(iii) Frequency
(I) In general
Each nursing facility shall be subject to a standard
survey not later than 15 months after the date of the
previous standard survey conducted under this subparagraph.
The statewide average interval between standard surveys of
a nursing facility shall not exceed 12 months.
(II) Special surveys
If not otherwise conducted under subclause (I), a
standard survey (or an abbreviated standard survey) may be
conducted within 2 months of any change of ownership,
administration, management of a nursing facility, or
director of nursing in order to determine whether the
change has resulted in any decline in the quality of care
furnished in the facility.
(B) Extended surveys
(i) In general
Each nursing facility which is found, under a standard
survey, to have provided substandard quality of care shall be
subject to an extended survey. Any other facility may, at the
Secretary's or State's discretion, be subject to such an
extended survey (or a partial extended survey).
(ii) Timing
The extended survey shall be conducted immediately after
the standard survey (or, if not practicable, 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) of this section. Such review
shall include an expansion of the size of the sample of
residents' assessments reviewed and a review of the staffing,
of in-service training, and, if appropriate, of contracts
with consultants.
(iv) Construction
Nothing in this paragraph shall be construed as requiring
an extended or partial extended survey as a prerequisite to
imposing a sanction against a facility under subsection (h)
of this section on the basis of findings in a standard
survey.
(C) Survey protocol
Standard and extended surveys shall be conducted -
(i) based upon a protocol which the Secretary has
developed, tested, and validated by not later than January 1,
1990, and
(ii) by individuals, of a survey team, who meet such
minimum qualifications as the Secretary establishes by not
later than such date.
The failure of the Secretary to develop, test, or validate such
protocols or to establish such minimum qualifications shall not
relieve any State of its responsibility (or the Secretary of
the Secretary's responsibility) to conduct surveys under this
subsection.
(D) Consistency of surveys
Each State shall implement programs to measure and reduce
inconsistency in the application of survey results among
surveyors.
(E) Survey teams
(i) In general
Surveys under this subsection shall be conducted by a
multidisciplinary team of professionals (including a
registered professional nurse).
(ii) Prohibition of conflicts of interest
A State may not use as a member of a survey team under this
subsection an individual who is serving (or has served within
the previous 2 years) as a member of the staff of, or as a
consultant to, the facility surveyed respecting compliance
with the requirements of subsections (b), (c), and (d) of
this section, or who has a personal or familial financial
interest in the facility being surveyed.
(iii) Training
The Secretary shall provide for the comprehensive training
of State and Federal surveyors in the conduct of standard and
extended surveys under this subsection, including the
auditing of resident assessments and plans of care. No
individual shall serve as a member of a survey team unless
the individual has successfully completed a training and
testing program in survey and certification techniques that
has been approved by the Secretary.
(3) Validation surveys
(A) In general
The Secretary shall conduct onsite surveys of a
representative sample of nursing facilities in each State,
within 2 months of the date of surveys conducted under
paragraph (2) by the State, in a sufficient number to allow
inferences about the adequacies of each State's surveys
conducted under paragraph (2). In conducting such surveys, the
Secretary shall use the same survey protocols as the State is
required to use under paragraph (2). If the State has
determined that an individual nursing facility meets the
requirements of subsections (b), (c), and (d) of this section,
but the Secretary determines that the facility does not meet
such requirements, the Secretary's determination as to the
facility's noncompliance with such requirements is binding and
supersedes that of the State survey.
(B) Scope
With respect to each State, the Secretary shall conduct
surveys under subparagraph (A) each year with respect to at
least 5 percent of the number of nursing facilities surveyed by
the State in the year, but in no case less than 5 nursing
facilities in the State.
(C) Reduction in administrative costs for substandard
performance
If the Secretary finds, on the basis of such surveys, that a
State has failed to perform surveys as required under paragraph
(2) or that a State's survey and certification performance
otherwise is not adequate, the Secretary may provide for the
training of survey teams in the State and shall provide for a
reduction of the payment otherwise made to the State under
section 1396b(a)(2)(D) of this title with respect to a quarter
equal to 33 percent multiplied by a fraction, the denominator
of which is equal to the total number of residents in nursing
facilities surveyed by the Secretary that quarter and the
numerator of which is equal to the total number of residents in
nursing facilities which were found pursuant to such surveys to
be not in compliance with any of the requirements of
subsections (b), (c), and (d) of this section. A State that is
dissatisfied with the Secretary's findings under this
subparagraph may obtain reconsideration and review of the
findings under section 1316 of this title in the same manner as
a State may seek reconsideration and review under that section
of the Secretary's determination under section 1316(a)(1) of
this title.
(D) Special surveys of compliance
Where the Secretary has reason to question the compliance of
a nursing facility with any of the requirements of subsections
(b), (c), and (d) of this section, the Secretary may conduct a
survey of the facility and, on the basis of that survey, make
independent and binding determinations concerning the extent to
which the nursing facility meets such requirements.
(4) Investigation of complaints and monitoring nursing facility
compliance
Each State shall maintain procedures and adequate staff to -
(A) investigate complaints of violations of requirements by
nursing facilities, and
(B) monitor, on-site, on a regular, as needed basis, a
nursing facility's compliance with the requirements of
subsections (b), (c), and (d) of this section, 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 substandard nursing facilities.
(5) Disclosure of results of inspections and activities
(A) Public information
Each State, and the Secretary, shall make available to the
public -
(i) information respecting all surveys and certifications
made respecting nursing facilities, including statements of
deficiencies, within 14 calendar days after such information
is made available to those facilities, and approved plans of
correction,
(ii) copies of cost reports of such facilities filed under
this subchapter or under subchapter XVIII of this chapter,
(iii) copies of statements of ownership under section
1320a-3 of this title, and
(iv) information disclosed under section 1320a-5 of this
title.
(B) Notice to ombudsman
Each State shall notify the State long-term care ombudsman
(established under title III or VII of the Older Americans Act
of 1965 [42 U.S.C. 3021 et seq., 3058 et seq.] in accordance
with section 712 of the Act [42 U.S.C. 3058g]) of the State's
findings of noncompliance with any of the requirements of
subsections (b), (c), and (d) of this section, or of any
adverse action taken against a nursing facility under
paragraphs )4(! (1), (2), or (3) of subsection (h) of this
section, with respect to a nursing facility in the State.
(C) Notice to physicians and nursing facility administrator
licensing board
If a State finds that a 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) any State board responsible for the licensing of the
nursing facility administrator of the facility.
(D) Access to fraud control units
Each State shall provide its State medicaid fraud and abuse
control unit (established under section 1396b(q) of this title)
with access to all information of the State agency responsible
for surveys and certifications under this 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) of this section
or otherwise, that a nursing facility no longer meets a
requirement of subsection (b), (c), or (d) of this section, and
further finds that the facility's deficiencies -
(A) immediately jeopardize the health or safety of its
residents, the State shall take immediate action to remove the
jeopardy and correct the deficiencies through the remedy
specified in paragraph (2)(A)(iii), or terminate the facility's
participation under the State plan and may provide, in
addition, for one or more of the other remedies described in
paragraph (2); or
(B) do not immediately jeopardize the health or safety of its
residents, the State may -
(i) terminate the facility's participation under the State
plan,
(ii) provide for one or more of the remedies described in
paragraph (2), or
(iii) do both.
Nothing in this paragraph shall be construed as restricting the
remedies available to a State to remedy a nursing facility's
deficiencies. If a State finds that a nursing facility meets the
requirements of subsections (b), (c), and (d) of this section,
but, as of a previous period, did not meet such requirements, the
State may provide for a civil money penalty under paragraph
(2)(A)(ii) for the days in which it finds that the facility was
not in compliance with such requirements.
(2) Specified remedies
(A) Listing
Except as provided in subparagraph (B)(ii), each State shall
establish by law (whether statute or regulation) at least the
following remedies:
(i) Denial of payment under the State plan with respect to
any individual admitted to the nursing facility involved
after such notice to the public and to the facility as may be
provided for by the State.
(ii) A civil money penalty assessed and collected, with
interest, for each day in which the facility is or was out of
compliance with a requirement of subsection (b), (c), or (d)
of this section. Funds collected by a State as a result of
imposition of such a penalty (or as a result of the
imposition by the State of a civil money penalty for
activities described in subsections (b)(3)(B)(ii)(I),
(b)(3)(B)(ii)(II), or (g)(2)(A)(i) of this section) shall be
applied to the protection of the health or property of
residents of nursing facilities that the State or the
Secretary finds deficient, including payment for the costs of
relocation of residents to other facilities, maintenance of
operation of a facility pending correction of deficiencies or
closure, and reimbursement of residents for personal funds
lost.
(iii) The appointment of temporary management to oversee
the operation of the facility and to assure the health and
safety of the facility's residents, where there is a need for
temporary management while -
(I) there is an orderly closure of the facility, or
(II) improvements are made in order to bring the facility
into compliance with all the requirements of subsections
(b), (c), and (d) of this section.
The temporary management under this clause shall not be
terminated under subclause (II) until the State has
determined that the facility has the management capability to
ensure continued compliance with all the requirements of
subsections (b), (c), and (d) of this section.
(iv) The authority, in the case of an emergency, to close
the facility, to transfer residents in that facility to other
facilities, or both.
The State also shall specify criteria, as to when and how each
of such remedies is to be applied, the amounts of any fines,
and the severity of each of these remedies, to be used in the
imposition of such remedies. Such criteria shall be designed so
as to minimize the time between the identification of
violations and final imposition of the remedies and shall
provide for the imposition of incrementally more severe fines
for repeated or uncorrected deficiencies. In addition, the
State may provide for other specified remedies, such as
directed plans of correction.
(B) Deadline and guidance
(i) Except as provided in clause (ii), as a condition for
approval of a State plan for calendar quarters beginning on or
after October 1, 1989, each State shall establish the remedies
described in clauses (i) through (iv) of subparagraph (A) by
not later than October 1, 1989. The Secretary shall provide,
through regulations by not later than October 1, 1988, guidance
to States in establishing such remedies; but the failure of the
Secretary to provide such guidance shall not relieve a State of
the responsibility for establishing such remedies.
(ii) A State may establish alternative remedies (other than
termination of participation) other than those described in
clauses (i) through (iv) of subparagraph (A), if the State
demonstrates to the Secretary's satisfaction that the
alternative remedies are as effective in deterring
noncompliance and correcting deficiencies as those described in
subparagraph (A).
(C) Assuring prompt compliance
If a nursing facility has not complied with any of the
requirements of subsections (b), (c), and (d) of this section,
within 3 months after the date the facility is found to be out
of compliance with such requirements, the State shall impose
the remedy described in subparagraph (A)(i) for all individuals
who are admitted to the facility after such date.
(D) Repeated noncompliance
In the case of a nursing facility which, on 3 consecutive
standard surveys conducted under subsection (g)(2) of this
section, has been found to have provided substandard quality of
care, the State shall (regardless of what other remedies are
provided) -
(i) impose the remedy described in subparagraph (A)(i), and
(ii) monitor the facility under subsection (g)(4)(B) of
this section,
until the facility has demonstrated, to the satisfaction of the
State, that it is in compliance with the requirements of
subsections (b), (c), and (d) of this section, and that it will
remain in compliance with such requirements.
(E) Funding
The reasonable expenditures of a State to provide for
temporary management and other expenses associated with
implementing the remedies described in clauses (iii) and (iv)
of subparagraph (A) shall be considered, for purposes of
section 1396b(a)(7) of this title, to be necessary for the
proper and efficient administration of the State plan.
(F) Incentives for high quality care
In addition to the remedies specified in this paragraph, a
State may establish a program to reward, through public
recognition, incentive payments, or both, nursing facilities
that provide the highest quality care to residents who are
entitled to medical assistance under this subchapter. For
purposes of section 1396b(a)(7) of this title, proper expenses
incurred by a State in carrying out such a program shall be
considered to be expenses necessary for the proper and
efficient administration of the State plan under this
subchapter.
(3) Secretarial authority
(A) For State nursing facilities
With respect to a State nursing facility, the Secretary shall
have the authority and duties of a State under this subsection,
including the authority to impose remedies described in clauses
(i), (ii), and (iii) of paragraph (2)(A).
(B) Other nursing facilities
With respect to any other nursing facility in a State, if the
Secretary finds that a nursing facility no longer meets a
requirement of subsection (b), (c), (d), or (e) of this
section, and further finds that the facility's deficiencies -
(i) immediately jeopardize the health or safety of its
residents, the Secretary shall take immediate action to
remove the jeopardy and correct the deficiencies through the
remedy specified in subparagraph (C)(iii), or terminate the
facility's participation under the State plan and may
provide, in addition, for one or more of the other remedies
described in subparagraph (C); or
(ii) do not immediately jeopardize the health or safety of
its residents, the Secretary may impose any of the remedies
described in subparagraph (C).
Nothing in this subparagraph shall be construed as restricting
the remedies available to the Secretary to remedy a nursing
facility's deficiencies. If the Secretary finds that a nursing
facility meets such requirements but, as of a previous period,
did not meet such requirements, the Secretary may provide for a
civil money penalty under subparagraph (C)(ii) for the days on
which he finds that the facility was not in compliance with
such requirements.
(C) Specified remedies
The Secretary may take the following actions with respect to
a finding that a facility has not met an applicable
requirement:
(i) Denial of payment
The Secretary may deny any further payments to the State
for medical assistance furnished by the facility to all
individuals in the facility or to individuals admitted to the
facility after the effective date of the finding.
(ii) Authority with respect to civil money penalties
The Secretary may impose a civil money penalty in an amount
not to exceed $10,000 for each day of noncompliance. The
provisions of section 1320a-7a of this title (other than
subsections (a) and (b)) shall apply to a civil money penalty
under the previous sentence in the same manner as such
provisions apply to a penalty or proceeding under section
1320a-7a(a) of this title.
(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) of this section.
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) of this section.
The Secretary shall specify criteria, as to when and how each
of such remedies is to be applied, the amounts of any fines,
and the severity of each of these remedies, to be used in the
imposition of such remedies. Such criteria shall be designed so
as to minimize the time between the identification of
violations and final imposition of the remedies and shall
provide for the imposition of incrementally more severe fines
for repeated or uncorrected deficiencies. In addition, the
Secretary may provide for other specified remedies, such as
directed plans of correction.
(D) Continuation of payments pending remediation
The Secretary may continue payments, over a period of not
longer than 6 months after the effective date of the findings,
under this subchapter with respect to a nursing facility not in
compliance with a requirement of subsection (b), (c), or (d) of
this section, 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, and
(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.
The Secretary shall establish guidelines for approval of
corrective actions requested by States under this subparagraph.
(4) Effective period of denial of payment
A finding to deny payment under this subsection shall terminate
when the State or Secretary (or both, as the case may be) finds
that the facility is in substantial compliance with all the
requirements of subsections (b), (c), and (d) of this section.
(5) Immediate termination of participation for facility where
State or Secretary finds noncompliance and immediate jeopardy
If either the State or the Secretary finds that a nursing
facility has not met a requirement of subsection (b), (c), or (d)
of this section, and finds that the failure immediately
jeopardizes the health or safety of its residents, the State or
the Secretary, respectively )5(! shall notify the other of such
finding, and the State or the Secretary, respectively, shall take
immediate action to remove the jeopardy and correct the
deficiencies through the remedy specified in paragraph
(2)(A)(iii) or (3)(C)(iii), or terminate the facility's
participation under the State plan. If the facility's
participation in the State plan is terminated by either the State
or the Secretary, the State shall provide for the safe and
orderly transfer of the residents eligible under the State plan
consistent with the requirements of subsection (c)(2) of this
section.
(6) Special rules where State and Secretary do not agree on
finding of noncompliance
(A) State finding of noncompliance and no Secretarial finding
of noncompliance
If the Secretary finds that a nursing facility has met all
the requirements of subsections (b), (c), and (d) of this
section, but a State finds that the facility has not met such
requirements and the failure does not immediately jeopardize
the health or safety of its residents, the State's findings
shall control and the remedies imposed by the State shall be
applied.
(B) Secretarial finding of noncompliance and no State finding
of noncompliance
If the Secretary finds that a nursing facility has not met
all the requirements of subsections (b), (c), and (d) of this
section, and that the failure does not immediately jeopardize
the health or safety of its residents, but the State has not
made such a finding, the Secretary -
(i) may impose any remedies specified in paragraph (3)(C)
with respect to the facility, and
(ii) shall (pending any termination by the Secretary)
permit continuation of payments in accordance with paragraph
(3)(D).
(7) Special rules for timing of termination of participation
where remedies overlap
If both the Secretary and the State find that a nursing
facility has not met all the requirements of subsections (b),
(c), and (d) of this section, and neither finds that the failure
immediately jeopardizes the health or safety of its residents -
(A)(i) if both find that the facility's participation under
the State plan should be terminated, the State's timing of any
termination shall control so long as the termination date does
not occur later than 6 months after the date of the finding to
terminate;
(ii) if the Secretary, but not the State, finds that the
facility's participation under the State plan should be
terminated, the Secretary shall (pending any termination by the
Secretary) permit continuation of payments in accordance with
paragraph (3)(D); or
(iii) if the State, but not the Secretary, finds that the
facility's participation under the State plan should be
terminated, the State's decision to terminate, and timing of
such termination, shall control; and
(B)(i) if the Secretary or the State, but not both,
establishes one or more remedies which are additional or
alternative to the remedy of terminating the facility's
participation under the State plan, such additional or
alternative remedies shall also be applied, or
(ii) if both the Secretary and the State establish one or
more remedies which are additional or alternative to the remedy
of terminating the facility's participation under the State
plan, only the additional or alternative remedies of the
Secretary shall apply.
(8) Construction
The remedies provided under this subsection are in addition to
those otherwise available under State or Federal law and shall
not be construed as limiting such other remedies, including any
remedy available to an individual at common law. The remedies
described in clauses (i), (iii), and (iv) of paragraph (2)(A) may
be imposed during the pendency of any hearing. The provisions of
this subsection shall apply to a nursing facility (or portion
thereof) notwithstanding that the facility (or portion thereof)
also is a skilled nursing facility for purposes of subchapter
XVIII of this chapter.
(9) Sharing of information
Notwithstanding any other provision of law, all information
concerning nursing facilities required by this section to be
filed with the Secretary or a State agency shall be made
available by such facilities to Federal or State employees for
purposes consistent with the effective administration of programs
established under this subchapter and subchapter XVIII of this
chapter, including investigations by State medicaid fraud control
units.
(i) Construction
Where requirements or obligations under this section are
identical to those provided under section 1395i-3 of this title,
the fulfillment of those requirements or obligations under section
1395i-3 of this title shall be considered to be the fulfillment of
the corresponding requirements or obligations under this section.
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