SEC. 1819.
[42 U.S.C. 1395i-3] (a)
SKILLED NURSING FACILITY DEFINED.—In
this title, the term “skilled nursing facility” means
an institution (or a distinct part of an institution) which—
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(1) is primarily engaged in providing to residents—
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(A) skilled nursing care and related services for residents
who require medical or nursing care, or
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(B) rehabilitation services for the rehabilitation of injured,
disabled, or sick persons,
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and is not primarily for the care and treatment of mental
diseases;
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(2) has in effect a transfer agreement (meeting the requirements
of section 1861(l)) with one or more hospitals having agreements
in effect under section 1866; and
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(3) meets the requirements for a skilled nursing facility described
in subsections (b), (c), and (d) of this section.
(b)
REQUIREMENTS RELATING TO PROVISION
OF SERVICES.—
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(1) QUALITY OF LIFE.—
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(A) IN GENERAL.—A skilled nursing facility
must care for its residents in such a manner and in such an environment
as will promote maintenance or enhancement of the quality of life
of each resident.
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(B) QUALITY ASSESSMENT AND ASSURANCE.—A
skilled nursing facility must maintain a quality assessment and
assurance committee, consisting of the director of nursing services,
a physician designated by the facility, and at least 3 other members
of the facility's staff, which (i) meets at least quarterly to
identify issues with respect to which quality assessment and assurance
activities are necessary and (ii) develops and implements appropriate
plans of action to correct identified quality deficiencies. 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.
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(2) SCOPE OF SERVICES AND ACTIVITIES UNDER PLAN
OF CARE.—A skilled nursing facility must provide services
to attain or maintain the highest practicable physical, mental,
and psychosocial well-being of each resident, in accordance with
a written plan of care which—
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(A) describes the medical, nursing, and psychosocial needs of
the resident and how such needs will be met;
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(B) is initially prepared, with the participation to the extent
practicable of the resident or the resident's family or legal
representative, by a team which includes the resident's attending
physician and a registered professional nurse with responsibility
for the resident; and
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(C) is periodically reviewed and revised by such team after
each assessment under paragraph (3).
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(3) RESIDENTS' ASSESSMENT.—
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(A) REQUIREMENT.—A skilled nursing
facility must conduct a comprehensive, accurate, standardized,
reproducible assessment of each resident's functional capacity,
which assessment—
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(i) describes the resident's capability to perform daily life
functions and significant impairments in functional capacity;
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(ii) is based on a uniform minimum data set specified by the
Secretary under subsection (f)(6)(A);
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(iii) uses an instrument which is specified by the State under
subsection (e)(5); and
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(iv) includes the identification of medical problems.
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(B) CERTIFICATION.—
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(i) IN GENERAL.—Each such assessment
must be conducted or coordinated (with the appropriate participation
of health professionals) by a registered professional nurse who
signs and certifies the completion of the assessment. Each individual
who completes a portion of such an assessment shall sign and certify
as to the accuracy of that portion of the assessment.
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(ii) PENALTY FOR FALSIFICATION.—
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(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.
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(II) An individual who willfully and knowingly causes another
individual to certify under clause (i) a material and false statement
in a resident assessment is subject to a civil money penalty of
not more than $5,000 with respect to each assessment.
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(III) The provisions of section 1128A (other than subsections
(a) and (b)) shall apply to a civil money penalty under this clause
in the same manner as such provisions apply to a penalty or proceeding
under section 1128A(a).
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(iii) USE OF INDEPENDENT ASSESSORS.—If
a State determines, under a survey under subsection (g) or otherwise,
that there has been a knowing and willful certification of false
assessments under this paragraph, the State may require (for a
period specified by the State) that resident assessments under
this paragraph be conducted and certified by individuals who are
independent of the facility and who are approved by the State.
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(C) FREQUENCY.—
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(i) IN GENERAL.—Subject to the timeframes
prescribed by the Secretary under section 1888(e)(6), such an
assessment must be conducted—
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(I) promptly upon (but no later than 14 days after the date
of) admission for each individual admitted on or after October
1, 1990, and by not later than January 1, 1991, for each resident
of the facility on that date;
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(II) promptly after a significant change in the resident's
physical or mental condition; and
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(III) in no case less often than once every 12 months.
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(ii) RESIDENT REVIEW.—The skilled nursing
facility must examine each resident no less frequently than once
every 3 months and, as appropriate, revise the resident's assessment
to assure the continuing accuracy of the assessment.
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(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).
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(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.
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(4) PROVISION OF SERVICES AND ACTIVITIES.—
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(A) IN GENERAL.—To the extent needed
to fulfill all plans of care described in paragraph (2), a skilled
nursing facility must provide, directly or under arrangements
(or, with respect to dental services, under agreements) with others
for the provision of—
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(i) nursing services and specialized rehabilitative services
to attain or maintain the highest practicable physical, mental,
and psychosocial well-being of each resident;
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(ii) medically-related social services to attain or maintain
the highest practicable physical, mental, and psychosocial well-being of
each resident;
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(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;
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(iv) dietary services that assure that the meals meet the daily
nutritional and special dietary needs of each resident;
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(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;
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(vi) routine and emergency dental services to meet the needs
of each resident; and
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(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.
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The services provided or arranged by the facility must meet
professional standards of quality. Nothing in clause (vi) shall
be construed as requiring a facility to provide or arrange for
dental services described in that clause without additional charge.[70]
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(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.
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(C) REQUIRED NURSING CARE.—
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(i) IN GENERAL.—Except as provided
in clause (ii), a skilled nursing facility must provide 24-hour
licensed nursing service which is sufficient to meet nursing needs
of its residents and must use the services of a registered professional
nurse at least[71] 8 consecutive hours a day, 7 days a week.
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(ii) EXCEPTION.—To the extent that
clause (i) may be deemed to require that a skilled nursing facility
engage the services of a registered professional nurse for more
than 40 hours a week, the Secretary is authorized to waive such
requirement if the Secretary finds that—
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(I) the facility is located in a rural area and the supply of
skilled nursing facility services in such area is not sufficient
to meet the needs of individuals residing therein,
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(II) the facility has one full-time registered professional
nurse who is regularly on duty at such facility 40 hours a week,
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(III) the facility either has only patients whose physicians
have indicated (through physicians' orders or admission notes)
that each such patient does not require the services of a registered
nurse or a physician for a 48-hour period, or has made arrangements
for a registered professional nurse or a physician to spend such
time at such facility as may be indicated as necessary by the physician
to provide necessary skilled nursing services on days when the
regular full-time registered professional nurse is not on duty,
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(IV) the Secretary provides notice of the waiver to the State
long-term care ombudsman (established under section 307(a)(12)
of the Older Americans Act of 1965[72]) and the protection and
advocacy system in the State for the mentally ill and the mentally
retarded, and
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(V) the facility that is granted such a waiver 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.
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A waiver under this subparagraph shall be subject to annual
renewal.
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(5) REQUIRED TRAINING OF NURSE AIDES.—
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(A) IN GENERAL.—(i) Except as provided
in clause (ii), a skilled 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—
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(I) has completed a training and competency evaluation program,
or a competency evaluation program, approved by the State under
subsection (e)(1)(A), and
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(II) is competent to provide nursing or nursing-related services.
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(ii)[73] A skilled nursing facility must not use on a temporary,
per diem, leased, or on any basis other than as a permanent employee any
individual as a nurse aide in the facility on or after January
1, 1991, unless the individual meets the requirements described
in clause (i).
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(B) OFFERING COMPETENCY EVALUATION PROGRAMS FOR
CURRENT EMPLOYEES.—A skilled 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) and such preparation as may
be necessary for the individual to complete such a program by
October 1, 1990.
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(C) COMPETENCY.—The skilled nursing
facility must not permit an individual, other than in a training
and competency evaluation program approved by the State, to serve
as a nurse aide or provide services of a type for which the individual
has not demonstrated competency and must not use such an individual
as a nurse aide unless the facility has inquired of any State registry
established under subsection (e)(2)(A) that the facility believes
will include information concerning the individual.
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(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.
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(E) REGULAR IN-SERVICE EDUCATION.—The
skilled 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.
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(F) NURSE AIDE DEFINED.—In this paragraph,
the term “nurse aide” means any individual providing
nursing or nursing-related services to residents in a skilled
nursing facility, but does not include an individual—
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(i) who is a licensed health professional (as defined in subparagraph
(G)) or a registered dietician, or
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(ii) who volunteers to provide such services without monetary
compensation.
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(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 certified social worker, registered respiratory therapist,
or certified respiratory therapy technician.
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(6) PHYSICIAN SUPERVISION AND CLINICAL RECORDS.—A
skilled nursing facility must—
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(A) require that the medical care of every resident be provided
under the supervision of a physician;
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(B) provide for having a physician available to furnish necessary medical
care in case of emergency; and
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(C) maintain clinical records on all residents, which records
include the plans of care (described in paragraph (2)) and the
residents' assessments (described in paragraph (3)).
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(7) REQUIRED SOCIAL SERVICES.—In the
case of a skilled nursing facility with more than 120 beds, the
facility must have at least one social worker (with at least a
bachelor's degree in social work or similar professional qualifications)
employed full-time to provide or assure the provision of social
services.
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(8) INFORMATION ON NURSE STAFFING.—
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(A) IN GENERAL.—A skilled 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.
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(B) PUBLICATION OF DATA.—A skilled
nursing facility shall, upon request, make available to the public
the nursing staff data described in subparagraph (A).
(c)
REQUIREMENTS RELATING TO RESIDENTS'
RIGHTS.—
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(1) GENERAL RIGHTS.—
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(A) SPECIFIED RIGHTS.—A skilled nursing
facility must protect and promote the rights of each resident,
including each of the following rights:
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(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.
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(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—
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(I) to ensure the physical safety of the resident or other
residents, and
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(II) only upon the written order of a physician that specifies
the duration and circumstances under which the restraints are to
be used (except in emergency circumstances specified by the Secretary
until such an order could reasonably be obtained).
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(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.
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(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.
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(v) ACCOMMODATION OF NEEDS.—The right—
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(I) to reside and receive services with reasonable accommodation
of individual needs and preferences, except where the health or
safety of the individual or other residents would be endangered,
and
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(II) to receive notice before the room or roommate of the resident
in the facility is changed.
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(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.
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(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.
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(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.
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(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.
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(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 a skilled nursing facility (for
purposes of this title) to a portion of the facility that is not
such a skilled nursing facility.
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(xi) OTHER RIGHTS.—Any other right
established by the Secretary.
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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 benefits under this title or to medical assistance
under title XIX of this Act.
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(B) NOTICE OF RIGHTS AND SERVICES.—A
skilled nursing facility must—
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(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;
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(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 section 1919(e)(6); and
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(iii) inform each other resident, in writing before or at the
time of admission and periodically during the resident's stay,
of services available in the facility and of related charges for
such services, including any charges for services not covered
under this title or by the facility's basic per diem charge.
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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.
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(C) RIGHTS OF INCOMPETENT RESIDENTS.—In
the case of a resident adjudged incompetent under the laws of a
State, the rights of the resident under this title shall devolve
upon, and, to the extent judged necessary by a court of competent
jurisdiction, be exercised by, the person appointed under State
law to act on the resident's behalf.
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(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. In determining
whether such a consultant is qualified to conduct reviews under
the preceding sentence, the Secretary shall take into account the
needs of nursing facilities under this title to have access to
the services of such a consultant on a timely basis.
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(E) INFORMATION RESPECTING ADVANCE DIRECTIVES.—A
skilled nursing facility must comply with the requirement of section 1866(f) (relating to maintaining written policies and procedures
respecting advance directives).
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(2) TRANSFER AND DISCHARGE RIGHTS.—
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(A) IN GENERAL.—A skilled nursing facility
must permit each resident to remain in the facility and must not
transfer or discharge the resident from the facility unless—
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(i) the transfer or discharge is necessary to meet the resident's welfare
and the resident's welfare cannot be met in the facility;
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(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;
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(iii) the safety of individuals in the facility is endangered;
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(iv) the health of individuals in the facility would otherwise
be endangered;
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(v) the resident has failed, after reasonable and appropriate
notice, to pay (or to have paid under this title or title XIX on
the resident's behalf) for a stay at the facility; or
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(vi) the facility ceases to operate.
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In each of the cases described in clauses (i) through (v),
the basis for the transfer or discharge must be documented in the
resident's clinical record. In the cases described in clauses
(i) and (ii), the documentation must be made by the resident's
physician, and in the cases described in clauses (iii) and (iv)
the documentation must be made by a physician.
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(B) PRE-TRANSFER AND PRE-DISCHARGE NOTICE.—
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(i) IN GENERAL.—Before effecting a
transfer or discharge of a resident, a skilled nursing facility
must—
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(I) notify the resident (and, if known, a family member of the
resident or legal representative) of the transfer or discharge
and the reasons therefor,
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(II) record the reasons in the resident's clinical record (including
any documentation required under subparagraph (A)), and
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(III) include in the notice the items described in clause (iii).
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(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—
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(I) in a case described in clause (iii) or (iv) of subparagraph
(A);
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(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;
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(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
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(IV) in a case where a resident has not resided in the facility
for 30 days.
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In the case of such exceptions, notice must be given as many
days before the date of the transfer or discharge as is practicable.
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(iii) ITEMS INCLUDED IN NOTICE.—Each
notice under clause (i) must include—
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(I) for transfers or discharges effected on or after October
1, 1990, notice of the resident's right to appeal the transfer
or discharge under the State process established under subsection
(e)(3); and
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(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[74] in accordance with
section 712 of the Act).
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(C) ORIENTATION.—A skilled nursing
facility must provide sufficient preparation and orientation to
residents to ensure safe and orderly transfer or discharge from
the facility.
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(3) ACCESS AND VISITATION RIGHTS.—A
skilled nursing facility must—
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(A) permit immediate access to any resident by any representative
of the Secretary, by any representative of the State, by an ombudsman described
in paragraph (2)(B)(iii)(II), or by the resident's individual physician;
-
(B) permit immediate access to a resident, subject to the resident's right
to deny or withdraw consent at any time, by immediate family or other
relatives of the resident;
-
(C) permit immediate access to a resident, subject to reasonable
restrictions and the resident's right to deny or withdraw consent
at any time, by others who are visiting with the consent of the
resident;
-
(D) permit reasonable access to a resident by any entity or
individual that provides health, social, legal, or other services
to the resident, subject to the resident's right to deny or withdraw
consent at any time; and
-
(E) permit representatives of the State ombudsman (described
in paragraph (2)(B)(iii)(II)), with the permission of the resident
(or the resident's legal representative) and consistent with State
law, to examine a resident's clinical records.
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(4) EQUAL ACCESS TO QUALITY CARE.—A
skilled nursing facility must establish and maintain identical
policies and practices regarding transfer, discharge, and covered
services under this title for all individuals regardless of source
of payment.
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(5) ADMISSIONS POLICY.—
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(A) ADMISSIONS.—With respect to admissions
practices, a skilled nursing facility must—
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(i)(I) not require individuals applying to reside or residing
in the facility to waive their rights to benefits under this title
or under a State plan under title XIX, (II) not require oral or
written assurance that such individuals are not eligible for, or
will not apply for, benefits under this title or such a State
plan, and (III) prominently display in the facility and provide
to such individuals written information about how to apply for
and use such benefits and how to receive refunds for previous
payments covered by such benefits; and
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(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.
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(B) CONSTRUCTION.—
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(i) NO PREEMPTION OF STRICTER STANDARDS.—Subparagraph (A)
shall not be construed as preventing States or political subdivisions
therein from prohibiting, under State or local law, the discrimination
against individuals who are entitled to medical assistance under
this title with respect to admissions practices of skilled nursing
facilities.
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(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.
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(6) PROTECTION OF RESIDENT FUNDS.—
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(A) IN GENERAL.—The skilled nursing
facility—
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(i) may not require residents to deposit their personal funds
with the facility, and
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(ii) upon the written authorization of the resident, must hold,
safeguard, and account for such personal funds under a system established
and maintained by the facility in accordance with this paragraph.
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(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:
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(i) DEPOSIT.—The facility must deposit
any amount of personal funds in excess of $100 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.
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(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.
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(iii) CONVEYANCE UPON DEATH.—Upon the
death of a resident with such an account, the facility must convey
promptly the resident's personal funds (and a final accounting
of such funds) to the individual administering the resident's
estate.
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(C) ASSURANCE OF FINANCIAL SECURITY.—The
facility must purchase a surety bond, or otherwise provide assurance
satisfactory to the Secretary, to assure the security of all personal
funds of residents deposited with the facility.
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(D) LIMITATION ON CHARGES TO PERSONAL FUNDS.—The
facility may not impose a charge against the personal funds of
a resident for any item or service for which payment is made under
this title or title XIX.
(d)
REQUIREMENTS RELATING TO ADMINISTRATION
AND OTHER MATTERS.—
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(1) ADMINISTRATION.—
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(A) IN GENERAL.—A skilled nursing facility
must be administered in a manner that enables it to use its resources
effectively and efficiently to attain or maintain the highest practicable
physical, mental[75], and psychosocial well-being of each resident
(consistent with requirements established under subsection (f)(5)).
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(B) REQUIRED NOTICES.—If a change occurs
in—
-
(i) the persons with an ownership or control interest (as defined in
section 1124(a)(3)) in the facility,
-
(ii) the persons who are officers, directors, agents, or managing employees
(as defined in section 1126(b)) of the facility,
-
(iii) the corporation, association, or other company responsible
for the management of the facility, or
-
(iv) the individual who is the administrator or director of
nursing of the facility,
-
the skilled nursing facility must provide notice to the State
agency responsible for the licensing of the facility, at the time
of the change, of the change and of the identity of each new person,
company, or individual described in the respective clause.
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(C) SKILLED NURSING FACILITY ADMINISTRATOR.—
The administrator of a skilled nursing facility must meet standards
established by the Secretary under subsection (f)(4).
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(2) LICENSING AND LIFE SAFETY CODE.—
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(A) LICENSING.—A skilled nursing facility
must be licensed under applicable State and local law.
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(B) LIFE SAFETY CODE.—A skilled nursing
facility must meet such provisions of such edition (as specified
by the Secretary in regulation) of the Life Safety Code of the
National Fire Protection Association as are applicable to nursing
homes; except that—
-
(i) the Secretary may waive, for such periods as he deems appropriate,
specific provisions of such Code which if rigidly applied would
result in unreasonable hardship upon a facility, but only if such
waiver would not adversely affect the health and safety of residents
or personnel, and
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(ii) the provisions of such Code shall not apply in any State
if the Secretary finds that in such State there is in effect a
fire and safety code, imposed by State law, which adequately protects
residents of and personnel in skilled nursing facilities.
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(3) SANITARY AND INFECTION CONTROL AND PHYSICAL
ENVIRONMENT.—A skilled nursing facility must—
-
(A) establish and maintain an infection control program designed
to provide a safe, sanitary, and comfortable environment in which
residents reside and to help prevent the development and transmission
of disease and infection, and
-
(B) be designed, constructed, equipped, and maintained in a
manner to protect the health and safety of residents, personnel,
and the general public.
-
(4) MISCELLANEOUS.—
-
(A) COMPLIANCE WITH FEDERAL, STATE, AND LOCAL LAWS
AND PROFESSIONAL STANDARDS.—A skilled nursing facility
must operate and provide services in compliance with all applicable
Federal, State, and local laws and regulations (including the requirements
of section 1124) and with accepted professional standards and principles
which apply to professionals providing services in such a facility.
-
(B) OTHER.—A skilled nursing facility
must meet such other requirements relating to the health, safety,
and well-being of residents or relating to the physical facilities
thereof as the Secretary may find necessary.
(e)
STATE REQUIREMENTS RELATING TO
SKILLED NURSING FACILITY REQUIREMENTS.—The requirements,
referred to in section 1864(d), with respect to a State are as
follows:
-
(1) SPECIFICATION AND REVIEW OF NURSE AIDE TRAINING
AND COMPETENCY EVALUATION PROGRAMS AND OF NURSE AIDE COMPETENCY
EVALUATION PROGRAMS.—The State must—
-
(A) by not later than 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)
and that meet the requirements established under subsection (f)(2),
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).
-
The failure of the Secretary to establish requirements under
subsection (f)(2) shall not relieve any State of its responsibility
under this paragraph.
-
(2) NURSE AIDE REGISTRY.—
-
(A) IN GENERAL.—By not later than January
1, 1989, the State shall establish and maintain a registry of all
individuals who have satisfactorily completed a nurse aide training
and competency evaluation program, or a nurse aide competency evaluation
program, approved under paragraph (1) in the State, or any individual
described in subsection (f)(2)(B)(ii) 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 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, but shall not include any allegations of
resident abuse or neglect or misappropriation of resident property
that are not specifically documented by the State under such subsection.
The State shall make available to the public information in the
registry. In the case of inquiries to the registry concerning an
individual listed in the registry, any information disclosed concerning
such a finding shall also include disclosure of any such statement
in the registry relating to the finding or a clear and accurate
summary of such a statement.
-
(C) PROHIBITION AGAINST CHARGES.—A
State may not impose any charges on a nurse aide relating to the
registry established and maintained under subparagraph (A).
-
(3) STATE APPEALS PROCESS FOR TRANSFERS AND DISCHARGES.—The State,
for transfers and discharges from skilled nursing facilities effected on
or after October 1, 1989, must provide for a fair mechanism for
hearing appeals on transfers and discharges of residents of such
facilities. Such mechanism must meet the guidelines established
by the Secretary under subsection (f)(3); but the failure of the
Secretary to establish such guidelines shall not relieve any State
of its responsibility to provide for such a fair mechanism.
-
(4) SKILLED NURSING FACILITY ADMINISTRATOR STANDARDS.—By
not later than January 1, 1990, the State must have implemented
and enforced the skilled nursing facility administrator standards
developed under subsection (f)(4) respecting the qualification
of administrators of skilled nursing facilities.
-
(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).
Such instrument shall be—
-
(A) one of the instruments designated under subsection (f)(6)(B),
or
-
(B) an instrument which the Secretary has approved as being
consistent with the minimum data set of core elements, common
definitions, and utilization guidelines specified by the Secretary
under subsection (f)(6)(A).
(f)
RESPONSIBILITIES OF SECRETARY
RELATING TO SKILLED 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 skilled nursing facilities
under this title, and the enforcement of such requirements, are
adequate to protect the health, safety, welfare, and rights of
residents and to promote the effective and efficient use of public moneys.
-
(2) REQUIREMENTS FOR NURSE AIDE TRAINING AND COMPETENCY
EVALUATION PROGRAMS AND FOR NURSE AIDE COMPETENCY EVALUATION PROGRAMS.—
-
(A) IN GENERAL.—For purposes of subsections
(b)(5) and (e)(1)(A), the Secretary shall establish, by not later
than September 1, 1988—
-
(i) requirements for the approval of nurse aide training and
competency evaluation programs, including requirements relating
to (I) the areas to be covered in such a program (including at
least basic nursing skills, personal care skills, recognition of
mental health and social service needs, care of cognitively impaired
residents, basic restorative services, and residents' rights) and
content of the curriculum, (II) minimum hours of initial and ongoing
training and retraining (including not less than 75 hours in the
case of initial training), (III) qualifications of instructors,
and (IV) procedures for determination of competency;
-
(ii) requirements for the approval of nurse aide competency
evaluation programs, including requirement relating to the areas
to be covered in such a program, including at least basic nursing
skills, personal care skills, recognition of mental health and
social service needs, care of cognitively impaired residents, basic
restorative services, 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 (subject to clause (iii)), (including employee
organizations), and of programs in effect on the date of the enactment
of this section[76];
-
(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) if the State determines that, at the time
the program was offered, the program met the requirements for approval
under such paragraph; and
-
(iii) subject to subparagraphs (C) and (D)[77], shall prohibit approval
of such a program—
-
(I) offered by or in a skilled nursing facility which, within
the previous 2 years—
-
(a) has operated under a waiver under subsection (b)(4)(C)(ii)(II);
-
(b) has been subject to an extended (or partial extended) survey
under subsection (g)(2)(B)(i) or section 1919(g)(2)(B)(i), unless
the survey shows that the facility is in compliance with the requirements
of subsections (b), (c), and (d) of this section; or
-
(c) has been assessed a civil money penalty described in subsection
(h)(2)(B)(ii) or section 1919(h)(2)(A)(ii) of not less than $5,000,
or has been subject to a remedy described in clause (i) or (iii)
of subsection (h)(2)(B), subsection (h)(4), section 1919(h)(1)(B)(i),
or in clause (i), (iii), or (iv) of section 1919(h)(2)(A), or
-
(II) offered by or in a skilled nursing facility unless the
State makes the determination, upon an individual's completion
of the program, that the individual is competent to provide nursing
and nursing-related services in skilled nursing facilities.
-
A State may not delegate (through subcontract or otherwise)
its responsibility under clause (iii)(II) to the skilled nursing
facility.[78]
-
(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 title XVIII) in a State if the State—
-
(i) determines that there is no other such program offered
within a reasonable distance of the facility,
-
(ii) assures, through an oversight effort, that an adequate
environment exists for operating the program in the facility,
and
-
(iii) provides notice of such determination and assurances to
the State long-term care ombudsman.
-
(D)[79] 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)(I) and (e)(3), by not later than October 1, 1988,
the Secretary shall establish guidelines for minimum standards
which State appeals processes under subsection (e)(3) must meet
to provide a fair mechanism for hearing appeals on transfers and
discharges of residents from skilled nursing facilities.
-
(4) SECRETARIAL STANDARDS FOR QUALIFICATION OF
ADMINISTRATORS.—For purposes of subsections (d)(1)(C)
and (e)(4), the Secretary shall develop, by not later than March
1, 1989, standards to be applied in assuring the qualifications
of administrators of skilled nursing facilities.
-
(5) CRITERIA FOR ADMINISTRATION.—The
Secretary shall establish criteria for assessing a skilled nursing
facility's compliance with the requirement of subsection (d)(1)
with respect to—
-
(A) its governing body and management,
-
(B) agreements with hospitals regarding transfers of residents
to and from the hospitals and to and from other skilled nursing
facilities,
-
(C) disaster preparedness,
-
(D) direction of medical care by a physician,
-
(E) laboratory and radiological services,
-
(F) clinical records, and
-
(G) resident and advocate participation.
-
(6) SPECIFICATION OF RESIDENT ASSESSMENT DATA SET
AND INSTRUMENTS.—The Secretary shall—
-
(A) not later than 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),
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) for use by nursing facilities in complying with the requirements
of subsection (b)(3)(A)(iii).
-
(7) LIST OF ITEMS AND SERVICES FURNISHED IN SKILLED
NURSING FACILITIES NOT CHARGEABLE TO THE PERSONAL FUNDS OF A RESIDENT.—
-
(A) REGULATIONS REQUIRED.—Pursuant
to the requirement of section 21(b) of the Medicare-Medicaid Anti-Fraud
and Abuse Amendments of 1977[80], the Secretary shall issue
regulations, on or before the first day of the seventh month to
begin after the date of enactment of this section[81], that
define those costs which may be charged to the personal funds of
residents in skilled nursing facilities who are individuals receiving
benefits under this part and those costs which are to be included
in the reasonable cost (or other payment amount) under this title
for extended care services.
-
(B) RULE IF FAILURE TO PUBLISH REGULATIONS.—
If the Secretary does not issue the regulations under subparagraph
(A) on or before the date required in such subparagraph, in the
case of a resident of a skilled nursing facility who is eligible
to receive benefits under this part, the costs which may not be
charged to the personal funds of such resident (and for which payment
is considered to be made under this title) shall include, at a
minimum, the costs for routine personal hygiene items and services
furnished by the facility.
(g)
SURVEY AND CERTIFICATION PROCESS.—
-
(1) STATE AND FEDERAL RESPONSIBILITY.—
-
(A) IN GENERAL.—Pursuant to an agreement
under section 1864, each State shall be responsible for certifying,
in accordance with surveys conducted under paragraph (2), the compliance
of skilled nursing facilities (other than facilities of the State)
with the requirements of subsections (b), (c), and (d). The Secretary
shall be responsible for certifying, in accordance with surveys
conducted under paragraph (2), the compliance of State skilled
nursing facilities with the requirements of such subsections.
-
(B) EDUCATIONAL PROGRAM.—Each State
shall conduct periodic educational programs for the staff and
residents (and their representatives) of skilled nursing facilities
in order to present current regulations, procedures, and policies
under this section.
-
(C)INVESTIGATION OF ALLEGATIONS OF RESIDENT NEGLECT
AND ABUSE AND MISAPPROPRIATION OF RESIDENT PROPERTY[82].—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 providing the individual
involved with a written notice of the allegations (including a
statement of the availability of a hearing for the individual to
rebut the allegations) and the opportunity for a hearing on the
record, make a written finding as to the accuracy of the allegations.
If the State finds that a nurse aide has neglected or abused a
resident or misappropriated resident property in a facility, the
State shall notify the nurse aide and the registry of such finding.
If the State finds that any other individual used by the facility
has neglected or abused a resident or misappropriated resident
property in a facility, the State shall notify the appropriate
licensure authority. A State shall not make a finding that an individual
has neglected a resident if the individual demonstrates that such
neglect was caused by factors beyond the control of the individual.
-
(D) REMOVAL OF NAME FROM NURSE AIDE REGISTRY.—
-
(i) IN GENERAL.—In the case of a finding
of neglect under subparagraph (C), the State shall establish a
procedure to permit a nurse aide to petition the State to have
his or her name removed from the registry upon a determination
by the State that—
-
(I) the employment and personal history of the nurse aide does
not reflect a pattern of abusive behavior or neglect; and
-
(II) the neglect involved in the original finding was a singular
occurrence.
-
(ii) TIMING OF DETERMINATION.—In no
case shall a determination on a petition submitted under clause
(i) be made prior to the expiration of the 1-year period
beginning on the date on which the name of the petitioner was
added to the registry under subparagraph (C).
-
(E) CONSTRUCTION.—The failure of the
Secretary to issue regulations to carry out this subsection shall
not relieve a State of its responsibility under this subsection.
-
(2) SURVEYS.—
-
(A) STANDARD SURVEY.—
-
(i) IN GENERAL.—Each skilled nursing
facility shall be subject to a standard survey, to be conducted
without any prior notice to the facility. Any individual who notifies
(or causes to be notified) a skilled nursing facility of the time
or date on which such a survey is scheduled to be conducted is
subject to a civil money penalty of not to exceed $2,000. The provisions
of section 1128A (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 1128A(a). The Secretary shall review each State's procedures
for the scheduling and conduct of standard surveys to assure that
the State has taken all reasonable steps to avoid giving notice
of such a survey through the scheduling procedures and the conduct
of the surveys themselves.
-
(ii) CONTENTS.—Each standard survey
shall include, for a case-mix stratified sample of residents—
-
(I) a survey of the quality of care furnished, as measured by
indicators of medical, nursing, and rehabilitative care, dietary
and nutrition services, activities and social participation, and
sanitation, infection control, and the physical environment,
-
(II) written plans of care provided under subsection (b)(2) and
an audit of the residents' assessments under subsection (b)(3)
to determine the accuracy of such assessments and the adequacy
of such plans of care, and
-
(III) a review of compliance with residents' rights under subsection
(c).
-
(iii) FREQUENCY.—
-
(I) IN GENERAL.—Each skilled nursing
facility shall be subject to a standard survey not later than 15
months after the date of the previous standard survey conducted
under this subparagraph. The Statewide average interval between
standard surveys of skilled nursing facilities under this subsection
shall not exceed 12 months.
-
(II) SPECIAL SURVEYS.—If not otherwise
conducted under subclause (I), a standard survey (or an abbreviated
standard survey) may be conducted within 2 months of any change
of ownership, administration, management of a skilled nursing facility,
or the director of nursing in order to determine whether the change
has resulted in any decline in the quality of care furnished in
the facility.
-
(B) EXTENDED SURVEYS.—
-
(i) IN GENERAL.—Each skilled nursing
facility which is found, under a standard survey, to have provided
substandard quality of care shall be subject to an extended survey.
Any other facility may, at the Secretary's or State's discretion,
be subject to such an extended survey (or a partial extended survey).
-
(ii) TIMING.—The extended survey shall
be conducted immediately after the standard survey (or, if not
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). Such
review shall include an expansion of the size of the sample of
residents' assessments reviewed and a review of the staffing, of
in-service training, and, if appropriate, of contracts with consultants.
-
(iv) CONSTRUCTION.—Nothing in this
paragraph shall be construed as requiring an extended or partial
extended survey as a prerequisite to imposing a sanction against
a facility under subsection (h) on the basis of findings in a
standard survey.
-
(C) SURVEY PROTOCOL.—Standard and extended
surveys shall be conducted—
-
(i) based upon a protocol which the Secretary has developed,
tested, and validated by not later than January 1, 1990, and
-
(ii) by individuals, of a survey team, who meet such minimum
qualifications as the Secretary establishes by not later than
such date.
-
The failure of the Secretary to develop, test, or validate
such protocols or to establish such minimum qualifications shall
not relieve any State of its responsibility (or the Secretary of
the Secretary's responsibility) to conduct surveys under this
subsection.
-
(D) CONSISTENCY OF SURVEYS.—Each State
and the Secretary shall implement programs to measure and reduce
inconsistency in the application of survey results among surveyors.
-
(E) SURVEY TEAMS.—
-
(i) IN GENERAL.—Surveys under this
subsection shall be conducted by a multidisciplinary team of professionals
(including a registered professional nurse).
-
(ii) PROHIBITION OF CONFLICTS OF INTEREST.—A
State may not use as a member of a survey team under this subsection
an individual who is serving (or has served within the previous
2 years) as a member of the staff of, or as a consultant to, the
facility surveyed respecting compliance with the requirements of
subsections (b), (c), and (d), or who has a personal or familial
financial interest in the facility being surveyed.
-
(iii) TRAINING.—The Secretary shall
provide for the comprehensive training of State and Federal surveyors
in the conduct of standard and extended surveys under this subsection,
including the auditing of resident assessments and plans of care.
No individual shall serve as a member of a survey team unless the
individual has successfully completed a training and testing program
in survey and certification techniques that has been approved by
the Secretary.
-
(3) VALIDATION SURVEYS.—
-
(A) IN GENERAL.—The Secretary shall
conduct onsite surveys of a representative sample of skilled nursing
facilities in each State, within 2 months of the date of surveys
conducted under paragraph (2) by the State, in a sufficient number
to allow inferences about the adequacies of each State's surveys
conducted under paragraph (2). In conducting such surveys, the
Secretary shall use the same survey protocols as the State is required
to use under paragraph (2). If the State has determined that an
individual skilled nursing facility meets the requirements of subsections
(b), (c), and (d), but the Secretary determines that the facility
does not meet such requirements, the Secretary's determination
as to the facility's noncompliance with such requirements is binding
and supersedes that of the State survey.
-
(B) SCOPE.—With respect to each State,
the Secretary shall conduct surveys under subparagraph (A) each
year with respect to at least 5 percent of the number of skilled
nursing facilities surveyed by the State in the year, but in no
case less than 5 skilled nursing facilities in the State.
-
(C) REMEDIES FOR SUBSTANDARD PERFORMANCE.—If
the Secretary finds, on the basis of such surveys, that a State
has failed to perform surveys as required under paragraph (2) or
that a State's survey and certification performance otherwise is
not adequate, the Secretary shall provide for an appropriate remedy,
which may include the training of survey teams in the State.
-
(D) SPECIAL SURVEYS OF COMPLIANCE.—Where
the Secretary has reason to question the compliance of a skilled
nursing facility with any of the requirements of subsections (b),
(c), and (d), 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 skilled nursing
facility meets such requirements.
-
(4) INVESTIGATION OF COMPLAINTS AND MONITORING
COMPLIANCE.—Each State shall maintain procedures and
adequate staff to—
-
(A) investigate complaints of violations of requirements by
skilled nursing facilities, and
-
(B) monitor, on-site, on a regular, as needed basis, a skilled
nursing facility's compliance with the requirements of subsections
(b), (c), and (d), if—
-
(i) the facility has been found not to be in compliance with
such requirements and is in the process of correcting deficiencies
to achieve such compliance;
-
(ii) the facility was previously found not to be in compliance
with such requirements, has corrected deficiencies to achieve
such compliance, and verification of continued compliance is indicated; or
-
(iii) the State has reason to question the compliance of the
facility with such requirements.
-
A State may maintain and utilize a specialized team (including
an attorney, an auditor, and appropriate health care professionals)
for the purpose of identifying, surveying, gathering and preserving
evidence, and carrying out appropriate enforcement actions against
substandard skilled 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 skilled nursing facilities, including statements of
deficiencies, within 14 calendar days after such information is
made available to those facilities, and approved plans of correction,
-
(ii) copies of cost reports of such facilities filed under this
title or title XIX,
-
(iii) copies of statements of ownership under section 1124,
and
-
(iv) information disclosed under section 1126.
-
(B) NOTICE TO OMBUDSMAN.—Each State
shall notify the State long-term care ombudsman (established under
title III or VII of the Older Americans Act of 1965[83] in accordance
with section 712 of the Act) of the State's findings of noncompliance
with any of the requirements of subsections (b), (c), and (d),
or of any adverse action taken against a skilled nursing facility
under paragraph (1), (2), or (4) of subsection (h), with respect
to a skilled nursing facility in the State.
-
(C) NOTICE TO PHYSICIANS AND SKILLED NURSING FACILITY
ADMINISTRATOR LICENSING BOARD.—If a State finds that
a skilled nursing facility has provided substandard quality of
care, the State shall notify—
-
(i) the attending physician of each resident with respect to
which such finding is made, and
-
(ii) the State board responsible for the licensing of the skilled nursing
facility administrator at the facility.
-
(D) ACCESS TO FRAUD CONTROL UNITS.—Each
State shall provide its State medicaid fraud and abuse control
unit (established under section 1903(q)) with access to all information
of the State agency responsible for surveys and certifications
under this subsection.
(h)
ENFORCEMENT PROCESS.—
-
(1) IN GENERAL.—If a State finds, on
the basis of a standard, extended, or partial extended survey under
subsection (g)(2) or otherwise, that a skilled nursing facility
no longer meets a requirement of subsection (b), (c), or (d),
and further finds that the facility's deficiencies—
-
(A) immediately jeopardize the health or safety of its residents,
the State shall recommend to the Secretary that the Secretary take
such action as described in paragraph (2)(A)(i); or
-
(B) do not immediately jeopardize the health or safety of its
residents, the State may recommend to the Secretary that the Secretary take
such action as described in paragraph (2)(A)(ii).
-
If a State finds that a skilled nursing facility meets the
requirements of subsections (b), (c), and (d), but, as of a previous
period, did not meet such requirements, the State may recommend
a civil money penalty under paragraph (2)(B)(ii) for the days in
which it finds that the facility was not in compliance with such
requirements.
-
(2) SECRETARIAL AUTHORITY.—
-
(A) IN GENERAL.—With respect to any
skilled nursing facility in a State, if the Secretary finds, or
pursuant to a recommendation of the State under paragraph (1) finds,
that a skilled nursing facility no longer meets a requirement of
subsection (b), (c), (d), or (e), and further finds that the facility's
deficiencies—
-
(i) immediately jeopardize the health or safety of its residents, the
Secretary shall take immediate action to remove the jeopardy and
correct the deficiencies through the remedy specified in subparagraph
(B)(iii), or terminate the facility's participation under this
title and may provide, in addition, for one or more of the other remedies
described in subparagraph (B); or
-
(ii) do not immediately jeopardize the health or safety of its
residents, the Secretary may impose any of the remedies described
in subparagraph (B).
-
Nothing in this subparagraph shall be construed as restricting
the remedies available to the Secretary to remedy a skilled nursing
facility's deficiencies. If the Secretary finds, or pursuant to
the recommendation of the State under paragraph (1) finds, that
a skilled nursing facility meets such requirements but, as of a
previous period, did not meet such requirements, the Secretary
may provide for a civil money penalty under subparagraph (B)(ii)
for the days on which he finds that the facility was not in compliance
with such requirements.
-
(B) SPECIFIED REMEDIES.—The Secretary
may take the following actions with respect to a finding that a
facility has not met an applicable requirement:
-
(i) DENIAL OF PAYMENT.—The Secretary
may deny any further payments under this title with respect to
all individuals entitled to benefits under this title in the facility
or with respect to such individuals admitted to the facility after
the effective date of the finding.
-
(ii) AUTHORITY WITH RESPECT TO CIVIL MONEY PENALTIES.—The
Secretary may impose a civil money penalty in an amount not to
exceed $10,000 for each day of noncompliance. The provisions of
section 1128A (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 1128A(a).
-
(iii) APPOINTMENT OF TEMPORARY MANAGEMENT.—In
consultation with the State, the Secretary may appoint temporary
management to oversee the operation of the facility and to assure
the health and safety of the facility's residents, where there
is a need for temporary management while—
-
(I) there is an orderly closure of the facility, or
-
(II) improvements are made in order to bring the facility into
compliance with all the requirements of subsections (b), (c), and
(d).
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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).
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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.
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(C) 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 title with respect
to a skilled nursing facility not in compliance with a requirement
of subsection (b), (c), or (d), if—
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(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,
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(ii) the State has submitted a plan and timetable for corrective
action to the Secretary for approval and the Secretary approves
the plan of corrective action, and
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(iii) the facility agrees to repay to the Federal Government
payments received under this subparagraph if the corrective action
is not taken in accordance with the approved plan and timetable.
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The Secretary shall establish guidelines for approval of corrective actions
requested by States under this subparagraph.
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(D) ASSURING PROMPT COMPLIANCE.—If
a skilled nursing facility has not complied with any of the requirements
of subsections (b), (c), and (d), within 3 months after the date
the facility is found to be out of compliance with such requirements,
the Secretary shall impose the remedy described in subparagraph
(B)(i) for all individuals who are admitted to the facility after
such date.
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(E) REPEATED NONCOMPLIANCE.—In the
case of a skilled nursing facility which, on 3 consecutive standard
surveys conducted under subsection (g)(2), has been found to have
provided substandard quality of care, the Secretary shall (regardless
of what other remedies are provided)—
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(i) impose the remedy described in subparagraph (B)(i), and
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(ii) monitor the facility under subsection (g)(4)(B),
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until the facility has demonstrated, to the satisfaction of
the Secretary, that it is in compliance with the requirements of
subsections (b), (c), and (d), and that it will remain in compliance
with such requirements.
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(3) EFFECTIVE PERIOD OF DENIAL OF PAYMENT.—A
finding to deny payment under this subsection shall terminate
when the Secretary finds that the facility is in substantial compliance
with all the requirements of subsections (b), (c), and (d).
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(4) IMMEDIATE TERMINATION OF PARTICIPATION FOR
FACILITY WHERE SECRETARY FINDS NONCOMPLIANCE AND IMMEDIATE JEOPARDY.—If
the Secretary finds that a skilled nursing facility has not met
a requirement of subsection (b), (c), or (d), and finds that the
failure immediately jeopardizes the health or safety of its residents,
the Secretary shall take immediate action to remove the jeopardy
and correct the deficiencies through the remedy specified in paragraph
(2)(B)(iii), or the Secretary shall terminate the facility's participation
under this title. If the facility's participation under this title
is terminated, the State shall provide for the safe and orderly transfer
of the residents eligible under this title consistent with the
requirements of subsection (c)(2).
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(5) CONSTRUCTION.—The remedies provided
under this subsection are in addition to those otherwise available
under State or Federal law and shall not be construed as limiting
such other remedies, including any remedy available to an individual
at common law. The remedies described in clauses (i), and (iii)
of paragraph (2)(B) may be imposed during the pendency of any hearing.
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(6) SHARING OF INFORMATION.—Notwithstanding
any other provision of law, all information concerning skilled
nursing facilities required by this section to be filed with the
Secretary or a State agency shall be made available by such facilities
to Federal or State employees for purposes consistent with the
effective administration of programs established under this title
and title XIX, including investigations by State medicaid fraud
control units.
(i)
CONSTRUCTION.—Where
requirements or obligations under this section are identical to
those provided under section 1919 of this Act, the fulfillment
of those requirements or obligations under section 1919 shall be
considered to be the fulfillment of the corresponding requirements
or obligations under this section.