42 USC § 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—
(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;
(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;
(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.
(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
(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—
(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—
(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
Such term includes an individual who provides such services through an agency or under a contract with the facility.
(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);
(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.
(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—
(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—
(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.
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
(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;
(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
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)
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—
(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
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—
(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—
(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.
(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:
(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—
(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;
(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.
(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 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.
(v)
Treatment of continuing care retirement communities admission contracts
Notwithstanding subclause (II) of subparagraph (A)(i), subject to subsections (c) and (d) ofsection
1396r–5 of this title, contracts for admission to a State licensed, registered, certified, or equivalent continuing care retirement community or life care community, including services in a nursing facility that is part of such community, may require residents to spend on their care resources declared for the purposes of admission before applying for medical assistance.
(6)
Protection of resident funds
(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.
(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.
(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
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.
(2)
Licensing and Life Safety Code
(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—
(3)
Sanitary and infection control and physical environment
A nursing facility must—
(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.
(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.
(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—
(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,
(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)
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)—
(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—
(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—
(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 (including, in the case of initial training and, if the Secretary determines appropriate, in the case of ongoing training, dementia management training, and patient abuse prevention training
[3]
,
(II)
minimum hours of initial and ongoing training and retraining (including not less than 75 hours in the case of initial training),
(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
(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
[4]
(i), (iii), or (iv) of subsection (h)(2)(A) of this section, clauses
[4]
(i) or (iii) of section
1395i–3
(h)(2)(B) of this title, or section
1395i–3
(h)(4) of this title, or
So in original. Probably should be “clause”.
(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,
(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.
(B)
agreements with hospitals regarding transfers of residents to and from the hospitals and to and from other nursing facilities,
(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.
(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.
(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).
(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—
(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,
(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.
(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—
(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
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,
(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
[5]
(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—
(E)
Submission of survey and certification information to the Secretary
In order to improve the timeliness of information made available to the public under subparagraph (A) and provided on the Nursing Home Compare Medicare website under subsection (i), each State shall submit information respecting any survey or certification made respecting a nursing facility (including any enforcement actions taken by the State) to the Secretary not later than the date on which the State sends such information to the facility. The Secretary shall use the information submitted under the preceding sentence to update the information provided on the Nursing Home Compare Medicare website as expeditiously as practicable but not less frequently than quarterly.
(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—
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—
(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)—
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
(I)
In general
Subject to subclause (II), 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.
(II)
Reduction of civil money penalties in certain circumstances
Subject to subclause (III), in the case where a facility self-reports and promptly corrects a deficiency for which a penalty was imposed under this clause not later than 10 calendar days after the date of such imposition, the Secretary may reduce the amount of the penalty imposed by not more than 50 percent.
(III)
Prohibitions on reduction for certain deficiencies
(aa)
Repeat deficiencies
The Secretary may not reduce the amount of a penalty under subclause (II) if the Secretary had reduced a penalty imposed on the facility in the preceding year under such subclause with respect to a repeat deficiency.
(bb)
Certain other deficiencies
The Secretary may not reduce the amount of a penalty under subclause (II) if the penalty is imposed on the facility for a deficiency that is found to result in a pattern of harm or widespread harm, immediately jeopardizes the health or safety of a resident or residents of the facility, or results in the death of a resident of the facility.
(IV)
Collection of civil money penalties
In the case of a civil money penalty imposed under this clause, the Secretary shall issue regulations that—
(aa)
subject to item (cc), not later than 30 days after the imposition of the penalty, provide for the facility to have the opportunity to participate in an independent informal dispute resolution process which generates a written record prior to the collection of such penalty;
(bb)
in the case where the penalty is imposed for each day of noncompliance, provide that a penalty may not be imposed for any day during the period beginning on the initial day of the imposition of the penalty and ending on the day on which the informal dispute resolution process under item (aa) is completed;
(cc)
may provide for the collection of such civil money penalty and the placement of such amounts collected in an escrow account under the direction of the Secretary on the earlier of the date on which the informal dispute resolution process under item (aa) is completed or the date that is 90 days after the date of the imposition of the penalty;
(dd)
may provide that such amounts collected are kept in such account pending the resolution of any subsequent appeals;
(ee)
in the case where the facility successfully appeals the penalty, may provide for the return of such amounts collected (plus interest) to the facility; and
(ff)
in the case where all such appeals are unsuccessful, may provide that some portion of such amounts collected may be used to support activities that benefit residents, including assistance to support and protect residents of a facility that closes (voluntarily or involuntarily) or is decertified (including offsetting costs of relocating residents to home and community-based settings or another facility), projects that support resident and family councils and other consumer involvement in assuring quality care in facilities, and facility improvement initiatives approved by the Secretary (including joint training of facility staff and surveyors, technical assistance for facilities implementing quality assurance programs, the appointment of temporary management firms, and other activities approved by the Secretary).
(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—
(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
[6]
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—
(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;
(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), (ii)(IV),
[7]
(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)
Nursing Home Compare website
(1)
Inclusion of additional information
(A)
In general
The Secretary shall ensure that the Department of Health and Human Services includes, as part of the information provided for comparison of nursing homes on the official Internet website of the Federal Government for Medicare beneficiaries (commonly referred to as the “Nursing Home Compare” Medicare website) (or a successor website), the following information in a manner that is prominent, updated on a timely basis, easily accessible, readily understandable to consumers of long-term care services, and searchable:
(i)
Staffing data for each facility (including resident census data and data on the hours of care provided per resident per day) based on data submitted under section
1320a–7j
(g) of this title, including information on staffing turnover and tenure, in a format that is clearly understandable to consumers of long-term care services and allows such consumers to compare differences in staffing between facilities and State and national averages for the facilities. Such format shall include—
(I)
concise explanations of how to interpret the data (such as plain English explanation of data reflecting “nursing home staff hours per resident day”);
(ii)
Links to State Internet websites with information regarding State survey and certification programs, links to Form
2567 State inspection reports (or a successor form) on such websites, information to guide consumers in how to interpret and understand such reports, and the facility plan of correction or other response to such report. Any such links shall be posted on a timely basis.
(iii)
The standardized complaint form developed under section
1320a–7j
(f) of this title, including explanatory material on what complaint forms are, how they are used, and how to file a complaint with the State survey and certification program and the State long-term care ombudsman program.
(2)
Review and modification of website
(A)
In general
The Secretary shall establish a process—
(j)
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.
[1] See References in Text note below.
[2] See References in Text note below.
[3] So in original. Probably should be followed by a closing parenthesis.
[4] So in original. Probably should be “clause”.
[5] So in original. Probably should be “paragraph”.
[6] So in original. Probably should be followed by a comma.
[7] So in original. Cl. (ii) of par. (2)(A) of this subsection does not contain subclauses. Probably means cl. (ii)(IV) of par. (3)(C) of this subsection.
(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—
(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;
(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;
(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.
(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
(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—
(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—
(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
Such term includes an individual who provides such services through an agency or under a contract with the facility.
(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);
(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.
(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—
(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—
(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.
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
(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;
(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
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)
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—
(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
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—
(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—
(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.
(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:
(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—
(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;
(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.
(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 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.
(v)
Treatment of continuing care retirement communities admission contracts
Notwithstanding subclause (II) of subparagraph (A)(i), subject to subsections (c) and (d) ofsection
1396r–5 of this title, contracts for admission to a State licensed, registered, certified, or equivalent continuing care retirement community or life care community, including services in a nursing facility that is part of such community, may require residents to spend on their care resources declared for the purposes of admission before applying for medical assistance.
(6)
Protection of resident funds
(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.
(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.
(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
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.
(2)
Licensing and Life Safety Code
(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—
(3)
Sanitary and infection control and physical environment
A nursing facility must—
(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.
(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.
(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—
(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,
(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)
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)—
(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—
(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—
(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 (including, in the case of initial training and, if the Secretary determines appropriate, in the case of ongoing training, dementia management training, and patient abuse prevention training
[3]
,
(II)
minimum hours of initial and ongoing training and retraining (including not less than 75 hours in the case of initial training),
(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
(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
[4]
(i), (iii), or (iv) of subsection (h)(2)(A) of this section, clauses
[4]
(i) or (iii) of section
1395i–3
(h)(2)(B) of this title, or section
1395i–3
(h)(4) of this title, or
So in original. Probably should be “clause”.
(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,
(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.
(B)
agreements with hospitals regarding transfers of residents to and from the hospitals and to and from other nursing facilities,
(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.
(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.
(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).
(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—
(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,
(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.
(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—
(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
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,
(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
[5]
(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—
(E)
Submission of survey and certification information to the Secretary
In order to improve the timeliness of information made available to the public under subparagraph (A) and provided on the Nursing Home Compare Medicare website under subsection (i), each State shall submit information respecting any survey or certification made respecting a nursing facility (including any enforcement actions taken by the State) to the Secretary not later than the date on which the State sends such information to the facility. The Secretary shall use the information submitted under the preceding sentence to update the information provided on the Nursing Home Compare Medicare website as expeditiously as practicable but not less frequently than quarterly.
(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—
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—
(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)—
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
(I)
In general
Subject to subclause (II), 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.
(II)
Reduction of civil money penalties in certain circumstances
Subject to subclause (III), in the case where a facility self-reports and promptly corrects a deficiency for which a penalty was imposed under this clause not later than 10 calendar days after the date of such imposition, the Secretary may reduce the amount of the penalty imposed by not more than 50 percent.
(III)
Prohibitions on reduction for certain deficiencies
(aa)
Repeat deficiencies
The Secretary may not reduce the amount of a penalty under subclause (II) if the Secretary had reduced a penalty imposed on the facility in the preceding year under such subclause with respect to a repeat deficiency.
(bb)
Certain other deficiencies
The Secretary may not reduce the amount of a penalty under subclause (II) if the penalty is imposed on the facility for a deficiency that is found to result in a pattern of harm or widespread harm, immediately jeopardizes the health or safety of a resident or residents of the facility, or results in the death of a resident of the facility.
(IV)
Collection of civil money penalties
In the case of a civil money penalty imposed under this clause, the Secretary shall issue regulations that—
(aa)
subject to item (cc), not later than 30 days after the imposition of the penalty, provide for the facility to have the opportunity to participate in an independent informal dispute resolution process which generates a written record prior to the collection of such penalty;
(bb)
in the case where the penalty is imposed for each day of noncompliance, provide that a penalty may not be imposed for any day during the period beginning on the initial day of the imposition of the penalty and ending on the day on which the informal dispute resolution process under item (aa) is completed;
(cc)
may provide for the collection of such civil money penalty and the placement of such amounts collected in an escrow account under the direction of the Secretary on the earlier of the date on which the informal dispute resolution process under item (aa) is completed or the date that is 90 days after the date of the imposition of the penalty;
(dd)
may provide that such amounts collected are kept in such account pending the resolution of any subsequent appeals;
(ee)
in the case where the facility successfully appeals the penalty, may provide for the return of such amounts collected (plus interest) to the facility; and
(ff)
in the case where all such appeals are unsuccessful, may provide that some portion of such amounts collected may be used to support activities that benefit residents, including assistance to support and protect residents of a facility that closes (voluntarily or involuntarily) or is decertified (including offsetting costs of relocating residents to home and community-based settings or another facility), projects that support resident and family councils and other consumer involvement in assuring quality care in facilities, and facility improvement initiatives approved by the Secretary (including joint training of facility staff and surveyors, technical assistance for facilities implementing quality assurance programs, the appointment of temporary management firms, and other activities approved by the Secretary).
(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—
(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
[6]
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—
(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;
(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), (ii)(IV),
[7]
(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)
Nursing Home Compare website
(1)
Inclusion of additional information
(A)
In general
The Secretary shall ensure that the Department of Health and Human Services includes, as part of the information provided for comparison of nursing homes on the official Internet website of the Federal Government for Medicare beneficiaries (commonly referred to as the “Nursing Home Compare” Medicare website) (or a successor website), the following information in a manner that is prominent, updated on a timely basis, easily accessible, readily understandable to consumers of long-term care services, and searchable:
(i)
Staffing data for each facility (including resident census data and data on the hours of care provided per resident per day) based on data submitted under section
1320a–7j
(g) of this title, including information on staffing turnover and tenure, in a format that is clearly understandable to consumers of long-term care services and allows such consumers to compare differences in staffing between facilities and State and national averages for the facilities. Such format shall include—
(I)
concise explanations of how to interpret the data (such as plain English explanation of data reflecting “nursing home staff hours per resident day”);
(ii)
Links to State Internet websites with information regarding State survey and certification programs, links to Form
2567 State inspection reports (or a successor form) on such websites, information to guide consumers in how to interpret and understand such reports, and the facility plan of correction or other response to such report. Any such links shall be posted on a timely basis.
(iii)
The standardized complaint form developed under section
1320a–7j
(f) of this title, including explanatory material on what complaint forms are, how they are used, and how to file a complaint with the State survey and certification program and the State long-term care ombudsman program.
(2)
Review and modification of website
(A)
In general
The Secretary shall establish a process—
(j)
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.
[1] See References in Text note below.
[2] See References in Text note below.
[3] So in original. Probably should be followed by a closing parenthesis.
[4] So in original. Probably should be “clause”.
[5] So in original. Probably should be “paragraph”.
[6] So in original. Probably should be followed by a comma.
[7] So in original. Cl. (ii) of par. (2)(A) of this subsection does not contain subclauses. Probably means cl. (ii)(IV) of par. (3)(C) of this subsection.
Source
(Aug. 14, 1935, ch. 531, title XIX, § 1919, as added and amended Pub. L. 100–203, title IV, §§ 4211(a)(3), (c),
4212
(a), (b),
4213
(a),
4216,Dec. 22, 1987, 101 Stat. 1330–182, 1330–196, 1330–207, 1330–213, 1330–220, as amended Pub. L. 100–360, title IV, § 411(l)(3)(C)(ii), (6)(B), (8)(A),July 1, 1988, 102 Stat. 803–805; Pub. L. 100–360, title III, § 303(a)(2), title IV, § 411(l)(2)(A)–(D), (F)–(K), (L)(ii), (3)(A), (B), (C)(iii), (D), (5), (6)(A), (7), (8)(B), July 1, 1988, 102 Stat. 760, 801–805, as amended Pub. L. 100–485, title VI, § 608(d)(27)(C)–(E), (I), Oct. 13, 1988, 102 Stat. 2423; Pub. L. 101–239, title VI, § 6901(b)(1), (3), (4)(A), (d)(1), (4),Dec. 19, 1989, 103 Stat. 2298–2301; Pub. L. 101–508, title IV, §§ 4751(b)(2),
4801
(a)(2)–(6)(A), (7), (b)(2)–(5)(A), (6)–(8), (d)(1), (e)(2)–(7)(A), (8)–(10), (12)–(15), (18), Nov. 5, 1990, 104 Stat. 1388–205, 1388–211 to 1388–219; Pub. L. 102–375, title VII, § 708(a)(1)(B),Sept. 30, 1992, 106 Stat. 1292; Pub. L. 104–315, §§ 1(a),
2
(a), (b),Oct. 19, 1996, 110 Stat. 3824; Pub. L. 105–15, § 1,May 15, 1997, 111 Stat. 34; Pub. L. 105–33, title IV, §§ 4754(a),
4755(b),Aug. 5, 1997, 111 Stat. 526; Pub. L. 106–4, § 2(a),Mar. 25, 1999, 113 Stat. 7; Pub. L. 106–113, div. B, § 1000(a)(6) [title VI, § 608(p)], Nov. 29, 1999, 113 Stat. 1536, 1501A–397; Pub. L. 106–402, title IV, § 401(b)(6)(A),Oct. 30, 2000, 114 Stat. 1738; Pub. L. 106–554, § 1(a)(6) [title IX, § 941(b)], Dec. 21, 2000, 114 Stat. 2763, 2763A–586; Pub. L. 108–173, title IX, § 932(c)(2),Dec. 8, 2003, 117 Stat. 2401; Pub. L. 109–171, title VI, § 6015(a),Feb. 8, 2006, 120 Stat. 65; Pub. L. 109–432, div. B, title IV, § 405(c)(2)(B),Dec. 20, 2006, 120 Stat. 3000; Pub. L. 111–148, title VI, §§ 6101(c)(1)(B),
6103
(b)(1), (2)(A), (3), (c)(2),
6111(b),
6121(b),Mar. 23, 2010, 124 Stat. 702, 707–709, 715, 721.)
Amendment of Subsection (d)(1)
Pub. L. 111–148, title VI, § 6101(c)(1)(B), (2),Mar. 23, 2010, 124 Stat. 702, provided that, effective on the date on which the Secretary of Health and Human Services makes certain information available to the public, subsection (d)(1) of this section is amended by striking subparagraph (B) and redesignating subparagraph (C) as subparagraph (B). See Effective Date of 2010 Amendment note below. Pub. L. 111–148, title VI, § 6103(c)(2), (3),Mar. 23, 2010, 124 Stat. 709, 710, provided that, effective one year after Mar. 23, 2010, subsection (d)(1) of this section, as amended by section 6101 ofPub. L. 111–148, is amended by adding at the end the following new subparagraph: (V) [sic] Availability of survey, certification, and complaint investigation reports
A nursing facility must—
(i) have reports with respect to any surveys, certifications, and complaint investigations made respecting the facility during the 3 preceding years available for any individual to review upon request; and
(ii) post notice of the availability of such reports in areas of the facility that are prominent and accessible to the public.
The facility shall not make available under clause (i) identifying information about complainants or residents.
References in Text
The Older Americans Act of 1965, referred to in subsecs. (b)(4)(C)(ii)(IV), (c)(2)(B)(iii)(II), and (g)(5)(B), is Pub. L. 89–73, July 14, 1965, 79 Stat. 218, as amended. Section 307(a)(12) of the Act was repealed by Pub. L. 106–501, title III, § 306(5),Nov. 13, 2000, 114 Stat. 2244, and provisions formerly appearing in section 307(a)(12) of the Act are now contained in section 307(a)(9) of the Act, which is classified to section
3027
(a)(9) of this title. Titles III and VII of the Act are classified generally to subchapters III (§ 3021 et seq.) and XI (§ 3058 et seq.), respectively, of chapter
35 of this title. For complete classification of this Act to the Code, see Short Title note set out under section
3001 of this title and Tables.
The Developmental Disabilities Assistance and Bill of Rights Act of 2000, referred to in subsec. (c)(2)(B)(iii)(III), is Pub. L. 106–402, Oct. 30, 2000, 114 Stat. 1677. Subtitle C of the Act probably means subtitle C of title I of the Act, which is classified generally to part C (§ 15041 et seq.) of subchapter
I of chapter
144 of this title. For complete classification of this Act to the Code, see Short Title note set out under section
15001 of this title and Tables.
The Protection and Advocacy for Mentally Ill Individuals Act [of 1986], referred to in subsec. (c)(2)(B)(iii)(IV), was Pub. L. 99–319, May 23, 1986, 100 Stat. 478, as amended. Pub. L. 99–319was renamed the Protection and Advocacy for Individuals with Mental Illness Act by Pub. L. 106–310, div. B, title XXXII, § 3206(a),Oct. 17, 2000, 114 Stat. 1193, and is classified generally to chapter 114 (§ 10801 et seq.) of this title. For complete classification of this Act to the Code, see Short Title note set out under section
10801 of this title and Tables.
Section
6901
(b)(4)(B)–(D) of the Omnibus Budget Reconciliation Act of 1989, referred to in subsec. (e)(2)(A), is section
6901
(b)(4)(B)–(D) of Pub. L. 101–239, which is set out as a note under section
1395i–3 of this title.
Section 21(b) of the Medicare-Medicaid Anti-Fraud and Abuse Amendments of 1977, referred to in subsec. (f)(7)(A), probably means section 21(b) of the Medicare-Medicaid Anti-Fraud and Abuse Amendments, Pub. L. 95–142, which is set out as a note under section
1395x of this title.
Prior Provisions
A prior section 1919 of act Aug. 14, 1935, was renumbered section
1922 and is classified to section
1396r–3 of this title.
Amendments
2010—Subsec. (b)(5)(F). Pub. L. 111–148, § 6121(b)(2), inserted concluding provisions.
Subsec. (f)(2)(A)(i)(I). Pub. L. 111–148, § 6121(b)(1), inserted “ (including, in the case of initial training and, if the Secretary determines appropriate, in the case of ongoing training, dementia management training, and patient abuse prevention training” before “, (II)”.
Subsec. (f)(10). Pub. L. 111–148, § 6103(b)(3), added par. (10).
Subsec. (g)(5)(E). Pub. L. 111–148, § 6103(b)(2)(A), added subpar. (E).
Subsec. (h)(3)(C)(ii). Pub. L. 111–148, § 6111(b)(1), designated existing provisions as subcl. (I), inserted heading, substituted “Subject to subclause (II), the Secretary” for “The Secretary”, and added subcls. (II) to (IV).
Subsec. (h)(8). Pub. L. 111–148, § 6111(b)(2), which directed insertion of “(ii)(IV),” after “(i),” in subsec. “(h)(5)(8)” of this section, was executed to subsec. (h)(8), to reflect the probable intent of Congress. Subsec. (h)(5) does not contain “(i),”.
Subsecs. (i), (j). Pub. L. 111–148, § 6103(b)(1), added subsec. (i) and redesignated former subsec. (i) as (j).
2006—Subsec. (c)(5)(A)(i)(II). Pub. L. 109–432substituted “subparagraph (B)(v)” for “clause (v)”.
Pub. L. 109–171, § 6015(a)(1), inserted “subject to clause (v)” after “(II)”.
Subsec. (c)(5)(B)(v). Pub. L. 109–171, § 6015(a)(2), added cl. (v).
2003—Subsec. (f)(2)(B)(iii). Pub. L. 108–173, § 932(c)(2)(A), substituted “subparagraphs (C) and (D)” for “subparagraph (C)” in introductory provisions.
Subsec. (f)(2)(D). Pub. L. 108–173, § 932(c)(2)(B), added subpar. (D).
2000—Subsec. (b)(8). Pub. L. 106–554added par. (8).
Subsec. (c)(2)(B)(iii)(III). Pub. L. 106–402substituted “subtitle C of the Developmental Disabilities Assistance and Bill of Rights Act of 2000” for “part C of the Developmental Disabilities Assistance and Bill of Rights Act”.
1999—Subsec. (b)(3)(C)(i)(I). Pub. L. 106–113, § 1000(a)(6) [title VI, § 608(p)(1)], struck out “not later than” before “14 days”.
Subsec. (c)(2)(F). Pub. L. 106–4added subpar. (F).
Subsec. (d)(4)(A). Pub. L. 106–113, § 1000(a)(6) [title VI, § 608(p)(2)], inserted closing parenthesis after “section
1320a–3 of this title”.
1997—Subsec. (f)(2)(B)(iii). Pub. L. 105–15, § 1(1), inserted “subject to subparagraph (C),” after “(iii)”.
Subsec. (f)(2)(C). Pub. L. 105–15, § 1(2), added subpar. (C).
Subsec. (g)(1)(D), (E). Pub. L. 105–33, § 4755(b), added subpar. (D) and redesignated former subpar. (D) as (E).
Subsec. (h)(3)(D). Pub. L. 105–33, § 4754(a), inserted “and” at end of cl. (i), substituted a period for “, and” at end of cl. (ii), and struck out cl. (iii) which read as follows: “the State agrees to repay to the Federal Government payments received under this subparagraph if the corrective action is not taken in accordance with the approved plan and timetable.”
1996—Subsec. (b)(3)(E). Pub. L. 104–315, § 2(a), inserted at end “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.”
Subsec. (e)(7)(B). Pub. L. 104–315, § 1(a)(1)(A), struck out “annual” before “resident review” in heading.
Subsec. (e)(7)(B)(iii). Pub. L. 104–315, § 2(b), added cl. (iii).
Pub. L. 104–315, § 1(a)(1)(B), struck out cl. (iii) which related to frequency of reviews as annual, preadmission, and initial.
Subsec. (e)(7)(D)(i). Pub. L. 104–315, § 1(a)(2), struck out “annual” before “review” in heading.
1992—Subsecs. (c)(2)(B)(iii)(II), (g)(5)(B). Pub. L. 102–375substituted “title III or VII of the Older Americans Act of 1965 in accordance with section 712 of the Act” for “section 307(a)(12) of the Older Americans Act of 1965”.
1990—Subsec. (b)(1)(B). Pub. L. 101–508, § 4801(e)(2), inserted at end “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.”
Subsec. (b)(3)(C)(i)(I). Pub. L. 101–508, § 4801(e)(3), substituted “not later than 14 days” for “4 days”.
Subsec. (b)(3)(F). Pub. L. 101–508, § 4801(b)(8), substituted “specialized services” for “active treatment” in cls. (i) and (ii).
Pub. L. 101–508, § 4801(b)(4)(A), inserted at end “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).”
Pub. L. 101–508, § 4801(b)(2)(A), substituted “Except as provided in clauses (ii) and (iii) of subsection (e)(7)(A) of this section, a nursing facility” for “A nursing facility” in introductory provisions.
Subsec. (b)(4)(A)(vii). Pub. L. 101–508, § 4801(e)(4), added cl. (vii).
Subsec. (b)(4)(C)(ii). Pub. L. 101–508, § 4801(e)(5)(A), substituted “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” for “A State may waive the requirement of subclause (I) or (II) of clause (i) with respect to a facility if” in introductory provisions.
Subsec. (b)(4)(C)(ii)(IV), (V). Pub. L. 101–508, § 4801(e)(5)(B)–(D), which directed amendment of cl. (ii) by adding subcls. (IV) and (V) at the end, was executed by adding subcls. (IV) and (V) after subcl. (III) and before concluding provisions to reflect the probable intent of Congress.
Subsec. (b)(5)(A). Pub. L. 101–508, § 4801(a)(2), designated existing provision as cl. (i), substituted “Except as provided in clause (ii), a nursing facility” for “A nursing facility” and “on a full-time basis” for “(on a full-time, temporary, per diem, or other basis)”, redesignated former cls. (i) and (ii) as subcls. (I) and (II), respectively, and added cl. (ii).
Subsec. (b)(5)(C). Pub. L. 101–508, § 4801(a)(3), substituted “any State registry established under subsection (e)(2)(A) of this section that the facility believes will include information” for “the State registry established under subsection (e)(2)(A) of this section as to information in the registry”.
Subsec. (b)(5)(D). Pub. L. 101–508, § 4801(a)(4), inserted before period at end “, or a new competency evaluation program”.
Subsec. (b)(5)(F)(i). Pub. L. 101–508, § 4801(e)(6), substituted “(G)) or a registered dietician” for “(G))”.
Subsec. (b)(6)(A). Pub. L. 101–508, § 4801(d)(1), inserted before semicolon at end “(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)”.
Subsec. (c)(1)(A). Pub. L. 101–508, § 4801(e)(8)(B), inserted at end “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.”
Subsec. (c)(1)(A)(iv). Pub. L. 101–508, § 4801(e)(9), inserted before period at end “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”.
Subsec. (c)(1)(A)(x), (xi). Pub. L. 101–508, § 4801(e)(8)(A), added cl. (x) and redesignated former cl. (x) as (xi).
Subsec. (c)(1)(B)(ii). Pub. L. 101–508, § 4801(e)(10), inserted “including the notice (if any) of the State developed under subsection (e)(6) of this section” after “in such rights)”.
Subsec. (c)(2)(E). Pub. L. 101–508, § 4751(b)(2), added subpar. (E).
Subsec. (c)(7), (8). Pub. L. 101–508, § 4801(e)(7)(A), added par. (7) and redesignated former par. (7) as (8).
Subsec. (e)(1)(A). Pub. L. 101–508, § 4801(e)(18), substituted “under subsection (f)(2) of this section” for “under clause (i) or (ii) of subsection (f)(2)(A) of this section”.
Subsec. (e)(2)(A). Pub. L. 101–508, § 4801(e)(12)(A), inserted “, 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” after “in the State”.
Subsec. (e)(2)(C). Pub. L. 101–508, § 4801(e)(12)(B), added subpar. (C).
Subsec. (e)(7)(A). Pub. L. 101–508, § 4801(b)(2)(B), designated existing provision as cl. (i), inserted cl. (i) heading, and added cls. (ii) and (iii).
Subsec. (e)(7)(B)(i)(II), (ii)(II). Pub. L. 101–508, § 4801(b)(8), substituted “specialized services” for “active treatment”.
Subsec. (e)(7)(B)(iv). Pub. L. 101–508, § 4801(b)(4)(B), added cl. (iv).
Subsec. (e)(7)(C)(i) to (iii). Pub. L. 101–508, § 4801(b)(8), substituted “specialized services” for “active treatment” wherever appearing.
Subsec. (e)(7)(C)(iv). Pub. L. 101–508, § 4801(b)(5)(A), added cl. (iv).
Subsec. (e)(7)(D). Pub. L. 101–508, § 4801(b)(3)(A), struck out “where failure to conduct preadmission screening” after “Denial of payment” in heading, designated existing provisions as cl. (i), inserted cl. (i) heading, and added cl. (ii).
Subsec. (e)(7)(E). Pub. L. 101–508, § 4801(b)(8), substituted “specialized services” for “active treatment”.
Pub. L. 101–508, § 4801(b)(6), inserted at end “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.”
Pub. L. 101–508, § 4801(b)(3)(B), substituted “the requirements of subparagraphs (A) through (C) of this paragraph” for “the requirement of this paragraph”.
Subsec. (e)(7)(G)(i). Pub. L. 101–508, § 4801(b)(7), substituted “serious mental illness (as defined by the Secretary in consultation with the National Institute of Mental Health)” for “primary or secondary diagnosis of mental disorder (as defined in the Diagnostic and Statistical Manual of Mental Disorders, 3rd edition)” and inserted before period at end “or a diagnosis (other than a primary diagnosis) of dementia and a primary diagnosis that is not a serious mental illness”.
Subsec. (e)(7)(G)(iii). Pub. L. 101–508, § 4801(b)(8), substituted “specialized services” for “active treatment”.
Subsec. (f)(2)(A)(iv)(II). Pub. L. 101–508, § 4801(a)(5)(B), inserted “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” after “nurse aide”.
Subsec. (f)(2)(A)(iv)(III). Pub. L. 101–508, § 4801(a)(5)(A), (C), (D), added subcl. (III).
Subsec. (f)(2)(B). Pub. L. 101–508, § 4801(a)(7), inserted “(through subcontract or otherwise)” after “may not delegate” in last sentence.
Subsec. (f)(2)(B)(iii)(I). Pub. L. 101–508, § 4801(a)(6)(A), amended subcl. (I) generally. Prior to amendment, subcl. (I) read as follows: “offered by or in a nursing facility which has been determined to be out of compliance with the requirements of subsection (b), (c), or (d) of this section, within the previous 2 years, or”.
Subsec. (g)(1)(C). Pub. L. 101–508, § 4801(e)(13), inserted at end “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.”
Subsec. (g)(5)(A)(i). Pub. L. 101–508, § 4801(e)(14), substituted “deficiencies, within 14 calendar days after such information is made available to those facilities, and approved plans” for “deficiencies and plans”.
Subsec. (g)(5)(B). Pub. L. 101–508, § 4801(e)(15), substituted “or of any adverse action taken against a nursing facility under paragraphs (1), (2), or (3) of subsection (h) of this section, with respect” for “with respect”.
1989—Subsec. (b)(5)(A). Pub. L. 101–239, § 6901(b)(1)(A), substituted “October 1, 1990” for “January 1, 1990” in introductory provisions.
Subsec. (b)(5)(B). Pub. L. 101–239, § 6901(b)(1)(B), substituted “January 1, 1990” and “October 1, 1990” for “July 1, 1989” and “January 1, 1990”, respectively.
Subsec. (c)(1)(A)(ii)(II). Pub. L. 101–239, § 6901(d)(4)(A), substituted “Secretary until such an order could reasonably be obtained)” for “Secretary) until such an order could reasonably be obtained”.
Subsec. (c)(1)(A)(v)(I). Pub. L. 101–239, § 6901(d)(4)(B), substituted “accommodation” for “accommodations”.
Subsec. (f)(2)(A)(i)(I). Pub. L. 101–239, § 6901(d)(4)(C), substituted “and content of the curriculum” for “, content of the curriculum”.
Pub. L. 101–239, § 6901(b)(3)(A), inserted “care of cognitively impaired residents,” after “social service needs,”.
Subsec. (f)(2)(A)(ii). Pub. L. 101–239, § 6901(b)(3)(B), substituted “recognition of mental health and social service needs, care of cognitively impaired residents” for “cognitive, behavioral and social care”.
Subsec. (f)(2)(A)(iv). Pub. L. 101–239, § 6901(b)(3)(C), (D), added cl. (iv).
Subsec. (f)(2)(B)(ii). Pub. L. 101–239, § 6901(b)(4)(A), substituted “July 1, 1989” for “January 1, 1989”.
Subsec. (h)(3)(D). Pub. L. 101–239, § 6901(d)(4)(D), substituted “not longer than 6 months after the effective date of the findings” for “not longer than 6 months”.
Subsec. (h)(8). Pub. L. 101–239, § 6901(d)(1), inserted at end “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.”
1988—Subsec. (b)(3)(A)(iii). Pub. L. 100–360, § 411(l)(2)(B), struck out “in the case of a resident eligible for benefits under this subchapter,” before “uses an instrument”.
Subsec. (b)(3)(A)(iv). Pub. L. 100–360, § 411(l)(2)(A), as amended by Pub. L. 100–485, § 608(d)(27)(C), struck out “in the case of a resident eligible for benefits under part A of subchapter XVIII of this chapter,” before “includes the identification of medical problems”.
Subsec. (b)(3)(B)(ii)(III). Pub. L. 100–360, § 411(l)(2)(C), amended subcl. (III) generally. Prior to amendment, subcl. (III) read as follows: “The Secretary shall provide for imposition of civil money penalties under this clause in a manner similar to that for the imposition of civil money penalties under section
1320a–7a of this title.”
Subsec. (b)(4)(C)(i)(II). Pub. L. 100–360, § 411(l)(3)(A)(i), inserted “professional” after “registered”.
Subsec. (b)(4)(C)(ii). Pub. L. 100–360, § 411(l)(3)(A)(i)–(iv), in heading, substituted “(ii) Waiver” for “(ii) Facility waivers.—(i) Waiver”, in subcl. (III), inserted “professional” after “registered”, and in concluding provisions, substituted “clause (iii)” for “clause (ii)” and “use” for “employ”.
Subsec. (b)(4)(C)(iii). Pub. L. 100–360, § 411(l)(3)(A)(v), (vi), substituted “(iii) Assumption” for “(ii) Assumption” in heading and “exercise” for “excercise” in text.
Subsec. (b)(5)(A). Pub. L. 100–360, § 411(l)(3)(B), which directed amendment of subpar. (A) by striking “subparagraph (E)” and inserting “subparagraph (F)”, could not be executed because of prior amendment by Pub. L. 100–360, § 411(l)(2)(D)(i), see Amendment note below.
Pub. L. 100–360, § 411(l)(2)(D)(i), as amended by Pub. L. 100–485, § 608(d)(27)(D), struck out “, who is not a licensed health professional (as defined in subparagraph (E)),” after “any individual” in introductory provisions.
Subsec. (b)(5)(A)(ii). Pub. L. 100–360, § 411(l)(2)(D)(ii), substituted “nursing or nursing-related services” for “such services”.
Subsec. (b)(5)(G). Pub. L. 100–360, § 411(l)(2)(D)(iii), inserted “physical or occupational therapy assistant,” after “occupational therapist,”.
Subsec. (c)(1)(B)(i). Pub. L. 100–360, § 303(a)(2), inserted before semicolon at end “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”.
Subsec. (c)(2)(A)(v). Pub. L. 100–360, § 411(l)(2)(F), substituted “for a stay at the facility” for “an allowable charge imposed by the facility for an item or service requested by the resident and for which a charge may be imposed consistent with this subchapter and subchapter XVIII of this chapter”.
Subsec. (c)(2)(B)(iii)(III). Pub. L. 100–360, § 411(l)(3)(C)(iii), as added by Pub. L. 100–485, § 608(d)(27)(E), substituted “responsible” for “responsibile”.
Subsec. (c)(6). Pub. L. 100–360, § 411(l)(2)(G), substituted “upon the written” for “once the facility accepts the written” in subpar. (A)(ii) and “Upon written” for “Upon a facility’s acceptance of written” in subpar. (B).
Subsec. (c)(7). Pub. L. 100–360, § 411(l)(6)(B), amended Pub. L. 100–203, § 4212(b), see 1987 Amendment note below.
Subsec. (e). Pub. L. 100–360, § 411(l)(3)(C)(ii), as added by Pub. L. 100–485, § 608(d)(27)(E), amended Pub. L. 100–203, § 4211, see 1987 Amendment note below.
Subsec. (e)(1). Pub. L. 100–360, § 411(l)(3)(D)(i), (ii), substituted “January 1, 1989” for “September 1, 1988” in subpar. (A) and “January” for “September” in subpar. (B).
Subsec. (e)(2)(B). Pub. L. 100–360, § 411(l)(2)(H), inserted after first sentence “The State shall make available to the public information in the registry.”
Subsec. (e)(3). Pub. L. 100–360, § 411(l)(2)(I), inserted “and discharges” after “transfers” in heading and two places in text.
Subsec. (e)(7)(E). Pub. L. 100–360, § 411(l)(3)(D)(iii), substituted “April 1, 1989” for “October 1, 1988”.
Subsec. (f). Pub. L. 100–360, § 411(l)(3)(C)(ii), as added by Pub. L. 100–485, § 608(d)(27)(E), amended Pub. L. 100–203, § 4211, see 1987 Amendment note below.
Subsec. (f)(2)(A). Pub. L. 100–360, § 411(l)(3)(D)(iv), substituted “September” for “July” in introductory provisions.
Subsec. (f)(2)(A)(i)(I). Pub. L. 100–360, § 411(l)(2)(J), substituted “recognition of mental health and social service needs” for “cognitive, behavioral and social care”.
Subsec. (f)(3). Pub. L. 100–360, § 411(l)(2)(I), inserted “and discharges” after “transfers” in heading and in text.
Subsec. (f)(7)(A). Pub. L. 100–360, § 411(l)(2)(K), substituted “residents” for “patients”.
Subsec. (f)(7)(B). Pub. L. 100–360, § 411(l)(2)(L)(ii), substituted “include” for “do not include”.
Subsec. (g)(1)(C). Pub. L. 100–360, § 411(l)(5)(A)–(C), substituted “and timely review” for “, review,”, inserted “or by another individual used by the facility in providing services to such a resident” after “a nursing facility”, and substituted “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” for “If the State finds, after notice to the nurse aide involved and a reasonable opportunity for a hearing for the nurse aide to rebut allegations, that a nurse aide whose name is contained in a nurse aide registry has neglected or abused a resident or misappropriated resident property in a facility, the State shall notify the nurse aide and the registry of such finding”.
Subsec. (g)(1)(D). Pub. L. 100–360, § 411(l)(5)(D), substituted “to issue regulations to carry out this subsection” for “to establish standards under subsection (f) of this section”.
Subsec. (g)(2)(A)(i). Pub. L. 100–360, § 411(l)(5)(E), amended third sentence generally. Prior to amendment, third sentence read as follows: “The Secretary shall provide for imposition of civil money penalties under this clause in a manner similar to that for the imposition of civil money penalties under section
1320a–7a of this title.”
Subsec. (g)(2)(B)(ii). Pub. L. 100–360, § 411(l)(5)(F), as added by Pub. L. 100–485, § 608(d)(27)(I), substituted “practicable” for “practical”.
Subsec. (g)(3)(C). Pub. L. 100–360, § 411(l)(6)(A), redesignated subpar. (C), relating to special surveys of compliance, as (D).
Subsec. (g)(3)(D). Pub. L. 100–360, § 411(l)(5)(G), formerly § 411(l)(5)(F), as redesignated by Pub. L. 100–485, § 608(d)(27)(I), substituted “on the basis of that survey” for “on that basis”.
Subsec. (g)(4). Pub. L. 100–360, § 411(l)(5)(H), formerly § 411(l)(5)(G), as redesignated by Pub. L. 100–485, § 608(d)(27)(I), struck out “chronically” after “enforcement actions against” in last sentence.
Subsec. (h). Pub. L. 100–360, § 411(l)(8)(A), made technical correction to directory language of Pub. L. 100–203, § 4213(a), see 1987 Amendment note below.
Subsec. (h)(1). Pub. L. 100–360, § 411(l)(8)(B)(i), substituted “paragraph (2)(A)(ii)”for “paragraph (2)(A)(i)” in last sentence.
Subsec. (h)(2)(B)(i). Pub. L. 100–360, § 411(l)(8)(B)(ii), struck out “or otherwise” after “regulations”.
Subsec. (h)(3)(C)(ii). Pub. L. 100–360, § 411(l)(7)(A), substituted “. 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” for “and the Secretary shall impose and collect such a penalty in the same manner as civil money penalties are imposed and collected under section
1320a–7a of this title”.
Subsec. (h)(5). Pub. L. 100–360, § 411(l)(8)(B)(iii), substituted “State or the Secretary, respectively” for “State and the Secretary”.
Subsec. (h)(9). Pub. L. 100–360, § 411(l)(7)(B), inserted “by such facilities” after “be made available”.
1987—Subsec. (c)(7). Pub. L. 100–203, § 4212(b), as amended by Pub. L. 100–360, § 411(l)(6)(B), added par. (7).
Subsecs. (e), (f). Pub. L. 100–203, § 4211, which contained two subsecs. (c), the first of which amended this section and the second of which enacted provisions set out as a note below, was amended by Pub. L. 100–360, § 411(l)(3)(C)(ii), to delete the designation, heading, and directory language of the first subsec. (c), resulting in subsecs. (e) and (f) being added by section 4211(a)(3) ofPub. L. 100–203, which enacted subsecs. (a) to (d) of this section.
Subsec. (g). Pub. L. 100–203, § 4212(a), added subsec. (g).
Subsec. (h). Pub. L. 100–203, § 4213(a), as amended by Pub. L. 100–360, § 411(l)(8)(A), added subsec. (h).
Subsec. (i). Pub. L. 100–203, § 4216, added subsec. (i).
Effective Date of 2010 Amendment
Amendment by section 6101(c)(1)(B) ofPub. L. 111–148effective on the date on which the Secretary of Health and Human Services makes the information described in section 6101(b) ofPub. L. 111–148, set out as a note under section
1320a–3 of this title, available to the public, see section 6101(c)(2) ofPub. L. 111–148, set out as a note under section
1395i–3 of this title.
Pub. L. 111–148, title VI, § 6103(b)(2)(B),Mar. 23, 2010, 124 Stat. 709, provided that: “The amendment made by this paragraph [amending this section] shall take effect 1 year after the date of the enactment of this Act [Mar. 23, 2010].”
Amendment by section 6103(c)(2) ofPub. L. 111–148effective 1 year after Mar. 23, 2010, see section 6103(c)(3) ofPub. L. 111–148, set out as a note under section
1395i–3 of this title.
Amendment by section 6111(b) ofPub. L. 111–148effective 1 year after Mar. 23, 2010, see section 6111(c) ofPub. L. 111–148, set out as a note under section
1395i–3 of this title.
Amendment by section 6121(b) ofPub. L. 111–148effective 1 year after Mar. 23, 2010, see section 6121(c) ofPub. L. 111–148, set out as a note under section
1395i–3 of this title.
Effective Date of 2006 Amendment
Pub. L. 109–432, div. B, title IV, § 405(c)(2)(B),Dec. 20, 2006, 120 Stat. 3000, provided that the amendment made by section
405
(c)(2)(B) is effective as if included in the amendment made by section 6015(a)(1) of the Deficit Reduction Act of 2005 [Pub. L. 109–171].
Effective Date of 2003 Amendment
Amendment by Pub. L. 108–173applicable to appeals filed on or after Oct. 1, 2004, see section 932(d) ofPub. L. 108–173, set out as a note under section
1395i–3 of this title.
Effective Date of 2000 Amendment
Amendment by Pub. L. 106–554effective Jan. 1, 2003, see section
1
(a)(6) [title IX, § 941(c)] of Pub. L. 106–554, set out as a note under section
1395i–3 of this title.
Effective Date of 1999 Amendment
Pub. L. 106–4, § 2(b),Mar. 25, 1999, 113 Stat. 8, provided that: “The amendment made by subsection (a) [amending this section] applies to voluntary withdrawals from participation occurring on or after the date of the enactment of this Act [Mar. 25, 1999].”
Effective Date of 1997 Amendment
Section 4754(b) ofPub. L. 105–33provided that: “The amendments made by subsection (a) [amending this section] take effect on the date of the enactment of this Act [Aug. 5, 1997].”
Effective Date of 1996 Amendment
Section 1(b) ofPub. L. 104–315provided that: “The amendments made by subsection (a) [amending this section] shall take effect on the date of the enactment of this Act [Oct. 19, 1996].”
Section 2(c) ofPub. L. 104–315provided that: “The amendments made by this section [amending this section] shall apply to changes in physical or mental condition occurring on or after the date of the enactment of this Act [Oct. 19, 1996].”
Effective Date of 1992 Amendment
Amendment by Pub. L. 102–375inapplicable with respect to fiscal year 1993, see section 4(b) ofPub. L. 103–171, set out as a note under section
3001 of this title.
Amendment by Pub. L. 102–375inapplicable with respect to fiscal year 1992, see section 905(b)(6) ofPub. L. 102–375, set out as a note under section
3001 of this title.
Effective Date of 1990 Amendment
Amendment by section 4751(b)(2) ofPub. L. 101–508applicable with respect to services furnished on or after the first day of the first month beginning more than 1 year after Nov. 5, 1990, see section 4751(c) ofPub. L. 101–508, set out as a note under section
1396a of this title.
Section 4801(a)(6)(B) ofPub. L. 101–508provided that: “The amendments made by subparagraph (A) [amending this section] shall take effect as if included in the enactment of the Omnibus Budget Reconciliation Act of 1987 [Pub. L. 100–203], except that a State may not approve a training and competency evaluation program or a competency evaluation program offered by or in a nursing facility which, pursuant to any Federal or State law within the 2-year period beginning on October 1, 1988—
“(i) had its participation terminated under title XVIII of the Social Security Act [subchapter XVIII of this chapter] or under the State plan under title XIX of such Act [this subchapter];
“(ii) was subject to a denial of payment under either such title;
“(iii) was assessed a civil money penalty not less than $5,000 for deficiencies in nursing facility standards;
“(iv) operated under a temporary management appointed to oversee the operation of the facility and to ensure the health and safety of the facility’s residents; or
“(v) pursuant to State action, was closed or had its residents transferred.”
Amendment by section
4801
(a)(2)–(5), (7) of Pub. L. 101–508effective as if included in the enactment of the Omnibus Budget Reconciliation Act of 1987, Pub. L. 100–203, see section 4801(a)(9) ofPub. L. 101–508, set out as a note under section
1396b of this title.
Section 4801(b)(9) ofPub. L. 101–508provided that:
“(A) In general.—Except as provided in subparagraph (B), the amendments made by this subsection [amending this section] shall take effect as if they were included in the enactment of the Omnibus Budget Reconciliation Act of 1987 [Pub. L. 100–203].
“(B) Exception.—The amendments made by paragraphs (4), (6), and (8) [amending this section] shall take effect on the date of the enactment of this Act [Nov. 5, 1990], without regard to whether or not regulations to implement such amendments have been promulgated.”
Section 4801(d)(2) ofPub. L. 101–508provided that: “The amendment made by paragraph (1) [amending this section] applies with respect to nursing facility services furnished on or after October 1, 1990, without regard to whether or not final regulations to carry out such amendment have been promulgated by such date.”
Section 4801(e)(7)(B) ofPub. L. 101–508provided that: “The amendments made by subparagraph (A) [amending this section] shall take effect on the date of the enactment of this Act [Nov. 5, 1990], without regard to whether or not regulations to implement such amendments have been promulgated.”
Amendment by section
4801
(e)(2)–(6), (8)–(10), (12)–(15), and (18) of Pub. L. 101–508effective as if included in the enactment of the Omnibus Budget Reconciliation Act of 1987, Pub. L. 100–203, see section 4801(e)(19) ofPub. L. 101–508, set out as a note under section
1396a of this title.
Effective Date of 1989 Amendment
Amendment by section 6901(b)(1), (4)(A) ofPub. L. 101–239effective as if included in the enactment of the Omnibus Budget Reconciliation Act of 1987, Pub. L. 100–203, and amendment by section 6901(b)(3) ofPub. L. 101–239applicable to nurse aide training and competency evaluation programs, and nurse aide competency evaluation programs, offered on or after end of 90-day period beginning on Dec. 19, 1989, but not to affect competency evaluations conducted under programs offered before end of that period, see section 6901(b)(6) ofPub. L. 101–239, set out as a note under section
1395i–3 of this title.
Amendment by section 6901(d)(1) ofPub. L. 101–239effective Dec. 19, 1989, and amendment by section 6901(d)(4) ofPub. L. 101–239effective as if included in the enactment of the Omnibus Budget Reconciliation Act of 1987, Pub. L. 100–203, see section 6901(d)(6) ofPub. L. 101–239, set out as a note under section
1395i–3 of this title.
Effective Date of 1988 Amendments
Amendment by Pub. L. 100–485effective as if included in the enactment of the Medicare Catastrophic Coverage Act of 1988, Pub. L. 100–360, see section 608(g)(1) ofPub. L. 100–485, set out as a note under section
704 of this title.
Amendment by section 303(a)(2) ofPub. L. 100–360applicable, except as otherwise provided, to payments under this subchapter for calendar quarters beginning on or after Sept. 30, 1989, without regard to whether or not final regulations to carry out such amendment has been promulgated by such date, see section 303(g)(1)(A), (5) ofPub. L. 100–360, set out as an Effective Date note under section
1396r–5 of this title.
Except as specifically provided in section 411 ofPub. L. 100–360, amendment by section
411
(l)(2)(A)–(D), (F)–(K), (L)(ii), (3)(A), (B), (C)(ii), (iii), (D), (5), (6)(A), (B), (7), and (8)(A), (B) of Pub. L. 100–360, as it relates to a provision in the Omnibus Budget Reconciliation Act of 1987, Pub. L. 100–203, effective as if included in the enactment of that provision in Pub. L. 100–203, see section 411(a) ofPub. L. 100–360, set out as a Reference to OBRA; Effective Date note under section
106 of Title
1, General Provisions.
Effective Date
Section 4214 of title IV of Pub. L. 100–203, as amended by Pub. L. 100–360, title IV, § 411(l)(10),July 1, 1988, 102 Stat. 806, provided that:
“(a) New Requirements and Survey and Certification Process.—Except as otherwise specifically provided in section 1919 of the Social Security Act [this section], the amendments made by sections
4211 [enacting this section, amending sections
1320a–7b,
1396a,
1396b,
1396d,
1396j,
1396l,
1396n,
1396o,
1396p,
1396r, and
1396s of this title, redesignating section
1396r of this title as section
1396r–3 of this title, and amending provisions set out as a note under section
1396r–3 of this title] and 4212 [amending sections
1395cc,
1396a,
1396b,
1396i, and
1396r of this title] (relating to nursing facility requirements and survey and certification requirements) shall apply to nursing facility services furnished on or after October 1, 1990, without regard to whether regulations to implement such amendments are promulgated by such date; except that section 1902(a)(28)(B) of the Social Security Act [section
1396a
(a)(28)(B) of this title] (as amended by section 4211(b) of this Act), relating to requiring State medical assistance plans to specify the services included in nursing facility services, shall apply to calendar quarters beginning more than 6 months after the date of the enactment of this Act [Dec. 22, 1987], without regard to whether regulations to implement such section are promulgated by such date.
“(b) Enforcement.—(1) Except as otherwise specifically provided in section 1919 of the Social Security Act [this section], the amendments made by section 4213 of this Act [amending this section and sections
1396a and
1396b of this title] apply to payments under title XIX of the Social Security Act [this subchapter] for calendar quarters beginning on or after the date of the enactment of this Act [Dec. 22, 1987], without regard to whether regulations to implement such amendments are promulgated by such date.
“(2) In applying the amendments made by this part [part 2 of subtitle C (§§ 4211–4218) of title IV of Pub. L. 100–203, see Tables for classification] for services furnished before October 1, 1990—
“(A) any reference to a nursing facility is deemed a reference to a skilled nursing facility or intermediate care facility (other than an intermediate care facility for the mentally retarded), and
“(B) with respect to such a skilled nursing facility or intermediate care facility, any reference to a requirement of subsection (b), (c), or (d) ofsection
1919 of the Social Security Act [subsec. (b), (c), or (d) of this section], is deemed a reference to the provisions of section
1861
(j) orsection
1905
(c), respectively, of the Social Security Act [section
1395x
(j) or
1396d
(c) of this title].
“(c) Waiver of Paperwork Reduction.—Chapter
35 of title
44, United States Code, shall not apply to information required for purposes of carrying out this part and implementing the amendments made by this part.”
Retroactive Review
For requirement that procedures developed by a State permit individual to petition for review of any finding made by a State under subsec. (g)(1)(C) of this section or section
1395i–3
(g)(1)(C) of this title after Jan. 1, 1995, see section 4755(c) ofPub. L. 105–33, set out as a note under section
1395i–3 of this title.
Nurse Aide Training and Competency Evaluation; Compliance Actions
Section 4801(a)(1) ofPub. L. 101–508provided that: “The Secretary of Health and Human Services shall not take (and shall not continue) any action against a State under section 1904 of the Social Security Act [section
1396c of this title] on the basis of the State’s failure to meet the requirement of section 1919(e)(1)(A) of such Act [subsec. (e)(1)(A) of this section] before the effective date of guidelines, issued by the Secretary, establishing requirements under section 1919(f)(2)(A) of such Act, if the State demonstrates to the satisfaction of the Secretary that it has made a good faith effort to meet such requirement before such effective date.”
Preadmission Screening and Annual Resident Review; Compliance Actions
Section 4801(b)(1) ofPub. L. 101–508provided that: “The Secretary of Health and Human Services shall not take (and shall not continue) any action against a State under section
1904 orsection 1919(e)(7)(D) of the Social Security Act [section
1396c of this title and subsec. (e)(7)(D) of this section] on the basis of the State’s failure to meet the requirement of section 1919(e)(7)(A) of such Act before the effective date of guidelines, issued by the Secretary, establishing minimum criteria under section 1919(f)(8)(A) of such Act, if the State demonstrates to the satisfaction of the Secretary that it has made a good faith effort to meet such requirement before such effective date.”
Restriction on Enforcement Process
Section 4801(c) ofPub. L. 101–508provided that: “The Secretary of Health and Human Services shall not take (and shall not continue) any action against a State under section 1904 of the Social Security Act [section
1396c of this title] on the basis of the State’s failure to meet the requirements of section 1919(h)(2) of such Act [subsec. (h)(2) of this section] before the effective date of guidelines, issued by the Secretary, regarding the establishment of remedies by the State under such section, if the State demonstrates to the satisfaction of the Secretary that it has made a good faith effort to meet such requirements before such effective date.”
Staffing Requirements
Pub. L. 101–508, title IV, § 4801(e)(17),Nov. 5, 1990, 104 Stat. 1388–218, as amended by Pub. L. 105–362, title VI, § 602(b)(1),Nov. 10, 1998, 112 Stat. 3286, provided that:
“(A) Maintaining regulatory standards for certain services.—Any regulations promulgated and applied by the Secretary of Health and Human Services after the date of the enactment of the Omnibus Budget Reconciliation Act of 1987 [Dec. 22, 1987] with respect to services described in clauses (ii), (iv), and (v) of section 1919(b)(4)(A) of the Social Security Act [subsec. (b)(4)(A)(ii), (iv), (v) of this section] shall include requirements for providers of such services that are at least as strict as the requirements applicable to providers of such services prior to the enactment of the Omnibus Budget Reconciliation Act of 1987.
“(B) Study on staffing requirements in nursing facilities.—The Secretary shall conduct a study and report to Congress no later than January 1, 1999, on the appropriateness of establishing minimum caregiver to resident ratios and minimum supervisor to caregiver ratios for skilled nursing facilities serving as providers of services under title XVIII of the Social Security Act [subchapter XVIII of this chapter] and nursing facilities receiving payments under a State plan under title XIX of the Social Security Act [this subchapter], and shall include in such study recommendations regarding appropriate minimum ratios.”
Nurse Aide Training and Competency Evaluation; Satisfaction of Requirements; Waiver
For satisfaction of training and competency evaluation requirements of subsec. (b)(5)(A) of this section and section
1395i–3
(b)(5)(A) of this title and authorization for a State to waive such competency evaluation requirements, see section
6901
(b)(4)(B)–(D) of Pub. L. 101–239, set out as a note under section
1395i–3 of this title.
Publication of Proposed Regulations Respecting Preadmission Screening and Annual Resident Review
Section 6901(c) ofPub. L. 101–239provided that: “The Secretary of Health and Human Services shall issue proposed regulations to establish the criteria described in section 1919(f)(8)(A) of the Social Security Act [subsec. (f)(8)(A) of this section] by not later than 90 days after the date of the enactment of this Act [Dec. 19, 1989].”
Evaluation and Report on Implementation of Resident Assessment Process
Section 4211(c) ofPub. L. 100–203directed Secretary of Health and Human Services to evaluate and report to Congress by not later than Jan. 1, 1993, on implementation of resident assessment process for residents of nursing facilities under amendments made by section
4211
(c).
Report on Staffing Requirements
Section 4211(k) ofPub. L. 100–203directed Secretary of Health and Human Services to report to Congress, by not later than Jan. 1, 1993, on progress made in implementing the nursing facility staffing requirements of 42 U.S.C. 1396r
(b)(4)(C), including the number and types of waivers approved under subparagraph (C)(ii) of such section and the number of facilities which received waivers.
Annual Report on Statutory Compliance and Enforcement Actions
Section 4215 ofPub. L. 100–203, as amended by Pub. L. 101–508, title IV, § 4801(b)(5)(B),Nov. 5, 1990, 104 Stat. 1388–214, provided that: “The Secretary of Health and Human Services shall report to the Congress annually on the extent to which nursing facilities are complying with the requirements of subsections (b), (c), and (d) ofsection
1919 of the Social Security Act [subsecs. (b), (c), and (d) of this section] (as added by the amendments made by this part) and the number and type of enforcement actions taken by States and the Secretary under section 1919(h) of such Act (as added by section 4213 of this Act). Each such report shall also include a summary of the information reported by States under section 1919(e)(7)(C)(iv) of such Act.”
The table below lists the classification updates, since Jan. 3, 2012, for this section. Updates to a broader range of sections may be found at the update page for containing chapter, title, etc.
The most recent Classification Table update that we have noticed was Wednesday, May 29, 2013
An empty table indicates that we see no relevant changes listed in the classification tables. If you suspect that our system may be missing something, please double-check with the Office of the Law Revision Counsel.
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