Federal Register / Vol. 81, No. 192/Tuesday, / October 4, 2016 / Rules and Regulations 68847

Transcription

1 Requirements of Participation Color Key: Phase I : Effective November 28, 2016 Phase II: Effective November 2017 Phase III: Effective November 2019 Effective: November 28, 2016

2 Federal Register / Vol. 81, No. 192/Tuesday, / October 4, 2016 / Rules and Regulations Federalism Executive Order establishes certain requirements that an agency must meet when it promulgates a final rule) that imposes substantial direct requirement costs on state and local governments, preempts state law, or otherwise has Federalism implications. We have determined that this final rule does not contain policies that have substantial direct effects on the states, on the relationship between the National Government and the states, or on the distribution of power and responsibilities among the various levels of government. Accordingly, we have concluded that the rule does not contain policies that have Federalism implications as defined in the Executive Order and, consequently, a Federalism summary impact statement is not required. Congressional Review Act This final regulation is subject to the Congressional Review Act provisions of the Small Business Regulatory Enforcement Fairness Act of 1996 (5 U.S.C. 801 et seq.) and has been transmitted to the Congress and the Comptroller General for review. K. Conclusion The requirements in this final rule will update the existing requirements for long-term care facilities to reflect current standards of practice. In addition, the revisions will provide added flexibility to providers, potentially improve efficiency and effectiveness, potentially enhance resident quality of care and quality of life, and potentially improve clinical outcomes. The analysis above, together with the remainder of this preamble, provides a Regulatory Impact Analysis. In accordance with the provisions of Executive Order 12866, this regulation was reviewed by the Office of Management and Budget. List of Subjects 42 CFR Part 405 Administrative practice and procedure, Health facilities, Health professions, Kidney diseases, Medical devices, Medicare, Reporting and recordkeeping requirements, Rural areas, X-rays. 42 CFR Part 431 Grant programs health, Health facilities, Medicaid, Privacy, Reporting and recordkeeping requirements. 42 CFR Part 447 Accounting, Administrative practice and procedure, Drugs, Grant programs health, Health facilities, Health professions, Medicaid, Reporting and recordkeeping requirements, Rural areas. 42 CFR Part 482 Grant programs health, Hospitals, Medicaid, Medicare, Reporting and recordkeeping requirements. 42 CFR Part 483 Grant programs health, Health facilities, Health professions, Health records, Medicaid, Medicare, Nursing homes, Nutrition, Reporting and recordkeeping requirements, Safety. 42 CFR Part 485 Grant programs health, Health facilities, Medicaid, Medicare, Reporting and recordkeeping requirements. 42 CFR Part 488 Administrative practice and procedure, Health facilities, Medicare, Reporting and recordkeeping requirements. 42 CFR Part 489 Health facilities, Medicare, Reporting and recordkeeping requirements. For the reasons set forth in the preamble, the Centers for Medicare & Medicaid Services amends 42 CFR chapter IV as set forth below: PART 405 FEDERAL HEALTH INSURANCE FOR THE AGED AND DISABLED 1. The authority citation for part 405 continues to read as follows: Authority: Secs. 205(a), 1102, 1861, 1862(a), 1869, 1871, 1874, 1881, and 1886(k) of the Social Security Act (42 U.S.C. 405(a), 1302, 1395x, 1395y(a), 1395ff, 1395hh, 13951±, 1395kk, 1395rr and 1395ww(k)), and sec. 353 of the Public Health Service Act (42 U.S.C. 263a) [Amended] 2. In , amend paragraph (f) by removing the reference " " and add in its place, the reference " 483.5(n) and ". PART 431 STATE ORGANIZATION AND GENERAL ADMINISTRATION 3. The authority citation for part 431 continues to read as follows: Authority: Sec of the Social Security Act, (42 U.S.C. 1302) [Amended] 4. In , amend paragraph (c)(3) by removing the reference " " and adding in its place the reference reference " " [Amended] 5. In , amend paragraph (h) by removing reference " (a)(5)(ii) (a)(5)(ii)" and adding in its place the reference " (b)(4)(ii) and (b)(8)" (b)(8) and by removing the reference " (a)(5)(i) (a)(5)(i)" and adding in its place the reference " (b)(4)(i) of this chapter. chapter". PART 447 PAYMENTS FOR SERVICES 6. The authority citation for part 447 continues to read as follows: Authority: Sec of the Social Security Act (42 U.S.C. 1302) [Amended] 7. In , amend paragraph (b)(1)(iii)(b) by removing the reference " (c)" (c) and adding in its place the reference (e). reference " (e)". PART 482 CONDITIONS OF PARTICIPATION FOR HOSPITALS 8. The authority citation for part 482 continues to read as follows: Authority: Secs. 1102, 1871 and 1881 of the Social Security Act (42 U.S.C. 1302, 1395hh, and 1395rr), unless otherwise noted. 9. In , paragraphs (b)(1) through (8) are revised to read as follows: Special requirements for hospital providers of long-term care services ("swing-beds"). ( swing-beds ). (b) * * * (1) Resident rights ( (a)(4)(iv), (b), (c), (d)(1), (d)(3), (e)(8), (g), (f)(4)(i), (f)(4)(iii), (f)(9), (h)(2), and (h)(3) of this chapter). (2) Admission, transfer, and discharge rights ( (c), (c)(1), (c)(2), (c)(3)(i) through (iii), (c)(4), (c)(5)(i) through (vii), and (c)(7) of this chapter). (3) Freedom from abuse, neglect and exploitation ( of this chapter). (4) Patient activities ( (c) of this chapter). (5) Social services ( (d) and (p) of this chapter). (6) Discharge planning ( of this chapter). (7) Specialized rehabilitative services ( of this chapter). (8) Dental services ( of this chapter). chapter). VerDate Sep<11> :27 Oct 03, 2016 Jkt PO Frm Fmt 4701 Sfmt 4700 E:\FR\FM\04OCR2.SGM 04OCR2 PART 483 REQUIREMENTS FOR STATES AND LONG TERM CARE FACILITIES 10. The authority citation for part 483 continues to read as follows: Authority: Secs. 1102, I and 1871 of the Social Security Act (42 U.S.C. 1302, 1320a-7j, 1320a 7j, and 1395hh.

3 68848 Federal Register/Vol. / 81, No. 192/Tuesday, / October 4, 2016/Rules / and Regulations 11. Section is amended by revising paragraphs (a)(1) introductory text, (a)(3), and (b) and adding paragraphs (a)(4) and (a)(5) to read as follows: Basis and scope. (a) * * * (1) Sections 1819(a), (b), (c), (d), and (f) of the Act provide that (3) Sections 1919(a), (b), (c), (d), and (f) of the Act provide that nursing facilities participating in Medicaid must meet certain specific requirements. (4) Sections 1128I(b) and (c) require that (i) Skilled nursing facilities or nursing facility have in operation a compliance and ethics program that is effective in preventing and detecting criminal, civil, and administrative violations. (ii) The Secretary establish and implement a quality assurance and performance improvement program for facilities, including multi-unit chains of facilities. (5) Section 1150B establishes requirements for reporting to law enforcement crimes occurring in federally funded LTC facilities. (b) Scope. The provisions of this part contain the requirements that an institution must meet in order to qualify to participate as a Skilled Nursing Facility in the Medicare program, and as a nursing facility in the Medicaid program. They serve as the basis for survey activities for the purpose of determining whether a facility meets the requirements for participation in Medicare and Medicaid. 12. Section is amended by a. Removing the paragraph designations for paragraphs (a), (b), (c), (d), (e), and (f) and placing the definitions in alphabetical order. b. Adding introductory text. c. Revising the definition of common "common area". area. d. Amending the definition of "Composite Composite distinct part part" by adding paragraph (2)(v). e. Amending the definition of "Facility" Facility by removing the italicized word "defined". defined. f. Adding the new definitions of "Abuse", Abuse, "Adverse Adverse event, event", "Exploitation", Exploitation, "Licensed Licensed health professional, professional", Misappropriation "Misappropriation of resident property, property", Mistreatment, "Mistreatment", "Neglect", Neglect, Nurse "Nurse aide, aide", "Person- Personcentered care, care", Resident "Resident representative, representative", Sexual "Sexual abuse, abuse", and "Transfer Transfer and discharge discharge" in alphabetical order. The revisions and additions read as follows: follows: Definitions. As used in this subpart, the following definitions apply: Abuse. Abuse is the willful infliction of injury, unreasonable confinement, intimidation, or punishment with resulting physical harm, pain or mental anguish. Abuse also includes the deprivation by an individual, including a caretaker, of goods or services that are necessary to attain or maintain physical, mental, and psychosocial well-being. Instances of abuse of all residents, irrespective of any mental or physical condition, cause physical harm, pain or mental anguish. It includes verbal abuse, sexual abuse, physical abuse, and mental abuse including abuse facilitated or enabled through the use of technology. Willful, as used in this definition of abuse, means the individual must have acted deliberately, not that the individual must have intended to inflict injury or harm. Adverse event. An adverse event is an untoward, undesirable, and usually unanticipated event that causes death or serious injury, or the risk thereof. Common area. Common areas are areas in the facility where residents may gather together with other residents, visitors, and staff or engage in individual pursuits, apart from their residential rooms. This includes but is not limited to living rooms, dining rooms, activity rooms, outdoor areas, and meeting rooms where residents are located on a regular basis. Composite distinct part. * * * (2) * * * (v) Use of composite distinct parts to segregate residents by payment source or on a basis other than care needs is prohibited. Exploitation. Exploitation means taking advantage of a resident for personal gain through the use of manipulation, intimidation, threats, or coercion. Licensed health professional. A licensed health professional is 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; or registered respiratory therapist or certified respiratory therapy technician. Misappropriation of resident property means the deliberate misplacement, exploitation, or wrongful, temporary, or permanent use of a resident s belongings permanent use of a resident's belongings VerDate Sep<11> :27 Oct 03, 2016 Jkt PO Frm Fmt 4701 Sfmt 4700 E:\FR\FM\04OCR2.SGM 04OCR2 or money without the resident s resident's consent. Mistreatment means inappropriate treatment or exploitation of a resident. Neglect is the failure of the facility, its employees or service providers to provide goods and services to a resident that are necessary to avoid physical harm, pain, mental anguish, or emotional distress. Nurse aide. A nurse aide is any individual providing nursing or nursing-related services to residents in a facility. This term may also include an individual who provides these services through an agency or under a contract with the facility, but is not a licensed health professional, a registered dietitian, or someone who volunteers to provide such services without pay. Nurse aides do not include those individuals who furnish services to residents only as paid feeding assistants as defined in of this chapter. Person-centered care. For purposes of this subpart, person-centered care means to focus on the resident as the locus of control and support the resident in making their own choices and having control over their daily lives. Resident representative. For purposes of this subpart, the term resident representative means any of the following: (1) An individual chosen by the resident to act on behalf of the resident in order to support the resident in decision-making; access medical, social or other personal information of the resident; manage financial matters; or receive notifications; (2) A person authorized by State or Federal law (including but not limited to agents under power of attorney, representative payees, and other fiduciaries) to act on behalf of the resident in order to support the resident in decision-making; access medical, social or other personal information of the resident; manage financial matters; or receive notifications; (3) Legal representative, as used in section 712 of the Older Americans Act; Or. or. (4) The court-appointed guardian or conservator of a resident. (5) Nothing in this rule is intended to expand the scope of authority of any resident representative beyond that authority specifically authorized by the resident, State or Federal law, or a court of competent jurisdiction. Sexual abuse is non-consensual sexual contact of any type with a resident. Transfer and discharge includes movement of a resident to a bed outside of the certified facility whether that bed

4 Federal Register/Vol. / 81, No. 192 / Tuesday, October 4, 2016/Rules / and Regulations is in the same physical plant or not. Transfer and discharge does not refer to movement of a resident to a bed within the same certified facility. 13. Section is revised to read as follows: Resident rights. (a) Residents Rights. The resident has a right to a dignified existence, selfdetermination, and communication with and access to persons and services inside and outside the facility, including those specified in this section. (1) A facility must treat each resident with respect and dignity and care for each resident in a manner and in an environment that promotes maintenance or enhancement of his or her quality of life, recognizing each resident s resident's individuality. The facility must protect and promote the rights of the resident. (2) The facility must provide equal access to quality care regardless of diagnosis, severity of condition, or payment source. A facility must establish and maintain identical policies and practices regarding transfer, discharge, and the provision of services under the State plan for all residents regardless of payment source. (b) Exercise of rights. The resident has the right to exercise his or her rights as a resident of the facility and as a citizen or resident of the United States. (1) The facility must ensure that the resident can exercise his or her rights without interference, coercion, discrimination, or reprisal from the facility (2) The resident has the right to be free of interference, coercion, discrimination, and reprisal from the facility in exercising his or her rights and to be supported by the facility in the exercise of his or her rights as required under this subpart. (3) In the case of a resident who has not been adjudged incompetent by the state court, the resident has the right to designate a representative, in accordance with State law and any legal surrogate so designated may exercise the resident s resident's rights to the extent provided by state law. The same-sex spouse of a resident must be afforded treatment equal to that afforded to an opposite-sex spouse if the marriage was valid in the jurisdiction in which it was celebrated. (i) The resident representative has the right to exercise the resident s resident's rights to the extent those rights are delegated to the resident representative. (ii) The resident retains the right to exercise those rights not delegated to a resident representative, including the right to revoke a delegation of rights, except as limited by State law. except as limited by State law. (4) The facility must treat the (iii) The right to be informed, in decisions of a resident representative as advance, of changes to the plan of care. the decisions of the resident to the (iv) The right to receive the services extent required by the court or delegated and/or items included in the plan of by the resident, in accordance with care. applicable law. (v) The right to see the care plan, (5) The facility shall not extend the including the right to sign after resident representative the right to make significant changes to the plan of care. decisions on behalf of the resident (3) The facility shall inform the beyond the extent required by the court resident of the right to participate in his or delegated by the resident, in or her treatment and shall support the accordance with applicable law. resident in this right. The planning (6) If the facility has reason to believe process must that a resident representative is making (i) Facilitate the inclusion of the decisions or taking actions that are not resident and/or resident representative. in the best interests of a resident, the (ii) Include an assessment of the facility shall report such concerns in the resident s resident's strengths and needs. manner required under State law. (iii) Incorporate the resident s resident's (7) In the case of a resident adjudged personal and cultural preferences in incompetent under the laws of a State developing goals of care. by a court of competent jurisdiction, the (4) The right to be informed, in rights of the resident devolve to and are advance, of the care to be furnished and exercised by the resident representative the type of care giver or professional appointed under State law to act on the that will furnish care. resident's resident s behalf. The court-appointed (5) The right to be informed in resident representative exercises the advance, by the physician or other resident's resident s rights to the extent judged practitioner or professional, of the risks necessary by a court of competent and benefits of proposed care, of jurisdiction, in accordance with State treatment and treatment alternatives or law treatment options and to choose the (i) In the case of a resident alternative or option he or she prefers. representative whose decision-making (6) The right to request, refuse, and/ authority is limited by State law or court or discontinue treatment, to participate appointment, the resident retains the in or refuse to participate in right to make those decision outside the experimental research, and to formulate representative's representative s authority. an advance directive. (ii) The resident s resident's wishes and (7) The right to self-administer preferences must be considered in the medications if the interdisciplinary exercise of rights by the representative. team, as defined by (b)(2)(ii), (iii) To the extent practicable, the has determined that this practice is resident must be provided with clinically appropriate. opportunities to participate in the care (8) Nothing in this paragraph should planning process. be construed as the right of the resident (c) Planning and implementing care. to receive the provision of medical The resident has the right to be treatment or medical services deemed informed of, and participate in, his or medically unnecessary or inappropriate. her treatment, including: (d) Choice of attending physician. The (1) The right to be fully informed in resident has the right to choose his or language that he or she can understand her attending physician. of his or her total health status, (1) The physician must be licensed to including but not limited to, his or her practice, and medical condition. (2) If the physician chosen by the (2) The right to participate in the resident refuses to or does not meet development and implementation of his requirements specified in this part, the or her person-centered plan of care, facility may seek alternate physician including but not limited to: participation as specified in paragraphs (i) The right to participate in the (d)(4) and (5) of this section to assure planning process, including the right to provision of appropriate and adequate identify individuals or roles to be care and treatment. included in the planning process, the (3) The facility must ensure that each right to request meetings and the right resident remains informed of the name, to request revisions to the person- specialty, and way of contacting the centered plan of care. physician and other primary care (ii) The right to participate in professionals responsible for his or her establishing the expected goals and care. outcomes of care, the type, amount, (4) The facility must inform the frequency, and duration of care, and any resident if the facility determines that other factors related to the effectiveness the physician chosen by the resident is of the plan of care. unable or unwilling to meet VerDate Sep<11> :27 Oct 03, 2016 Jkt PO Frm Fmt 4701 Sfmt 4700 E:\FR\FM\04OCR2.SGM 04OCR2

5 68850 Federal Register/Vol. / 81, No. 192 / Tuesday, October 4, 2016 / Rules and Regulations requirements specified in this part and paragraphs (f)(1) through (11) of this right to deny or withdraw consent at the facility seeks alternate physician section. any time; and participation to assure provision of (1) The resident has a right to choose (v) The facility must have written appropriate and adequate care and activities, schedules (including sleeping policies and procedures regarding the treatment. The facility must discuss the and waking times), health care and visitation rights of residents, including alternative physician participation with providers of health care services those setting forth any clinically the resident and honor the resident s resident's consistent with his or her interests, necessary or reasonable restriction or preferences, if any, among options. assessments, plan of care and other limitation or safety restriction or (5) If the resident subsequently selects applicable provisions of this part. limitation, when such limitations may another attending physician who meets (2) The resident has the right to make apply consistent with the requirements the requirements specified in this part, choices about aspects of his or her life of this subpart, that the facility may the facility must honor that choice. in the facility that are significant to the need to place on such rights and the (e) Respect and dignity. The resident resident. reasons for the clinical or safety has a right to be treated with respect and (3) The resident has a right to interact restriction or limitation. dignity, including: with members of the community and (vi) A facility must meet the following (1) The right to be free from any participate in community activities both requirements: physical or chemical restraints imposed inside and outside the facility. (A) Inform each resident (or resident for purposes of discipline or (4) The resident has a right to receive representative, where appropriate) of his convenience, and not required to treat visitors of his or her choosing at the or her visitation rights and related the resident's resident s medical symptoms, time of his or her choosing, subject to facility policy and procedures, consistent with (a)(2). the resident's resident s right to deny visitation including any clinical or safety (2) The right to retain and use when applicable, and in a manner that restriction or limitation on such rights, personal possessions, including does not impose on the rights of another consistent with the requirements of this furnishings, and clothing, as space resident. subpart, the reasons for the restriction or permits, unless to do so would infringe (i) The facility must provide limitation, and to whom the restrictions upon the rights or health and safety of immediate access to any resident by apply, when he or she is informed of his other residents. (A) Any representative of the or her other rights under this section. (3) The right to reside and receive Secretary, (B) Inform each resident of the right, services in the facility with reasonable (B) Any representative of the State, subject to his or her consent, to receive accommodation of resident needs and (C) Any representative of the Office of the visitors whom he or she designates, preferences except when to do so would the State long term care ombudsman, including, but not limited to, a spouse endanger the health or safety of the (established under section 712 of the (including a same-sex spouse), a resident or other residents. Older Americans Act of 1965, as domestic partner (including a same-sex (4) The right to share a room with his amended 2016 (42 U.S.C et seq.), domestic partner), another family or her spouse when married residents resident's member, or a friend, and his or her right (D) The resident s individual live in the same facility and both to withdraw or deny such consent at physician, spouses consent to the arrangement. any time. (E) Any representative of the (C) Not restrict, limit, or otherwise (5) The right to share a room with his protection and advocacy systems, as deny visitation privileges on the basis of or her roommate of choice when designated by the state, and as race, color, national origin, religion, sex, practicable, when both residents live in established under the Developmental gender identity, sexual orientation, or the same facility and both residents Disabilities Assistance and Bill of Rights disability. consent to the arrangement. Act of 2000 (42 U.S.C et seq.), (D) Ensure that all visitors enjoy full (6) The right to receive written notice, (F) Any representative of the agency and equal visitation privileges including the reason for the change, responsible for the protection and consistent with resident preferences. before the resident s resident's room or roommate advocacy system for individuals with a (5) The resident has a right to organize in the facility is changed. mental disorder (established under the and participate in resident groups in the (7) The right to refuse to transfer to Protection and Advocacy for Mentally facility. another room in the facility, if the Ill Individuals Act of 2000 (42 U.S.C. (i) The facility must provide a purpose of the transfer is: et seq.), and resident or family group, if one exists, (i) To relocate a resident of a SNF (G) The resident representative. with private space; and take reasonable from the distinct part of the institution (ii) The facility must provide steps, with the approval of the group, to that is a SNF to a part of the institution immediate access to a resident by make residents and family members that is not a SNF, or immediate family and other relatives of aware of upcoming meetings in a timely (ii) to relocate a resident of a NF from the resident, subject to the resident s resident's manner. the distinct part of the institution that right to deny or withdraw consent at (ii) Staff, visitors, or other guests may is a NF to a distinct part of the any time; attend resident group or family group institution that is a SNF. (iii) The facility must provide meetings only at the respective group s group's (iii) solely for the convenience of staff. immediate access to a resident by others invitation. (8) A resident s resident's exercise of the right to who are visiting with the consent of the (iii) The facility must provide a refuse transfer does not affect the resident, subject to reasonable clinical designated staff person who is approved resident s resident's eligibility or entitlement to and safety restrictions and the resident s resident's by the resident or family group and the Medicare or Medicaid benefits. right to deny or withdraw consent at facility and who is responsible for (f) Self-determination. The resident any time; providing assistance and responding to has the right to and the facility must (iv) The facility must provide written requests that result from group promote and facilitate resident self- reasonable access to a resident by any meetings. determination through support of entity or individual that provides (iv) The facility must consider the resident choice, including but not health, social, legal, or other services to views of a resident or family group and limited to the rights specified in the resident, subject to the resident s resident's act promptly upon the grievances and VerDate Sep<11> :27 Oct 03, 2016 Jkt PO Frm Fmt 4701 Sfmt 4700 E:\FR\FM\04OCR2.SGM 04OCR2

6 Federal Register/Vol. / 81, No. 192/Tuesday, / October 4, 2016/Rules / and Regulations recommendations of such groups that do not exceed $100 in a non- deductible and coinsurance amounts). concerning issues of resident care and interest bearing account, interest- The facility may charge the resident for life in the facility. bearing account, or petty cash fund. requested services that are more (A) The facility must be able to (B) Residents whose care is funded by expensive than or in excess of covered demonstrate their response and Medicaid: The facility must deposit the services in accordance with of rationale for such response. residents' residents personal funds in excess of this chapter. (This does not affect the (B) This should not be construed to $50 in an interest bearing account (or prohibition on facility charges for items mean that the facility must implement accounts) that is separate from any of and services for which Medicaid has as recommended every request of the the facility's facility s operating accounts, and paid. See of this chapter, which resident or family group. that credits all interest earned on limits participation in the Medicaid (6) The resident has a right to resident's resident s funds to that account. (In program to providers who accept, as participate in family groups. pooled accounts, there must be a payment in full, Medicaid payment plus (7) The resident has a right to have separate accounting for each resident s resident's any deductible, coinsurance, or family member(s) or other resident share.) The facility must maintain copayment required by the plan to be representative(s) meet in the facility personal funds that do not exceed $50 paid by the individual.) with the families or resident in a non-interest bearing account, (i) Services included in Medicare or representative(s) of other residents in interest-bearing account, or petty cash Medicaid payment. During the course of the facility. fund. a covered Medicare or Medicaid stay, (8) The resident has a right to (iii) Accounting and records. (A) The facilities must not charge a resident for participate in other activities, including facility must establish and maintain a the following categories of items and social, religious, and community system that assures a full and complete services: activities that do not interfere with the and separate accounting, according to (A) Nursing services as required at rights of other residents in the facility. generally accepted accounting (9) The resident has a right to choose principles, of each resident s resident's personal (B) Food and Nutrition services as to or refuse to perform services for the funds entrusted to the facility on the required at facility and the facility must not require resident's resident s behalf. (C) An activities program as required a resident to perform services for the (B) The system must preclude any at (c). facility. The resident may perform commingling of resident funds with (D) Room/bed maintenance services. services for the facility, if he or she facility funds or with the funds of any (E) Routine personal hygiene items chooses, when person other than another resident. and services as required to meet the (i) The facility has documented the (C) The individual financial record resident's needs of residents, including, but not resident s need or desire for work in the must be available to the resident limited to, hair hygiene supplies, comb, plan of care; through quarterly statements and upon (ii) The plan specifies the nature of brush, bath soap, disinfecting soaps or request. the services performed and whether the specialized cleansing agents when (iv) Notice of certain balances. The services are voluntary or paid; indicated to treat special skin problems facility must notify each resident that (iii) Compensation for paid services is or to fight infection, razor, shaving receives Medicaid benefits at or above prevailing rates; and (A) When the amount in the resident s resident's cream, toothbrush, toothpaste, denture (iv) The resident agrees to the work account reaches $200 less than the SSI adhesive, denture cleaner, dental floss, arrangement described in the plan of resource limit for one person, specified moisturizing lotion, tissues, cotton balls, care. in section 1611(a)(3)(B) of the Act; and cotton swabs, deodorant, incontinence (10) The resident has a right to (B) That, if the amount in the account, care and supplies, sanitary napkins and manage his or her financial affairs. This in addition to the value of the resident s resident's related supplies, towels, washcloths, includes the right to know, in advance, other nonexempt resources, reaches the hospital gowns, over the counter drugs, what charges a facility may impose SSI resource limit for one person, the hair and nail hygiene services, bathing against a resident s resident's personal funds. resident may lose eligibility for assistance, and basic personal laundry. (i) The facility must not require Medicaid or SSI. (F) Medically-related social services residents to deposit their personal funds (v) Conveyance upon discharge, as required at (d). with the facility. If a resident chooses to eviction, or death. Upon the discharge, (G) Hospice services elected by the deposit personal funds with the facility, eviction, or death of a resident with a resident and paid for under the upon written authorization of a resident, personal fund deposited with the Medicare Hospice Benefit or paid for by the facility must act as a fiduciary of the facility, the facility must convey within Medicaid under a state plan. resident's resident s funds and hold, safeguard, 30 days the resident s resident's funds, and a final (ii) Items and services that may be manage, and account for the personal accounting of those funds, to the charged to residents residents' funds. Paragraphs funds of the resident deposited with the resident, or in the case of death, the (f)(11)(ii)(a) through (L) of this section facility, as specified in this section. individual or probate jurisdiction are general categories and examples of (ii) Deposit of funds. (A) In general: administering the resident s resident's estate, in items and services that the facility may Except as set out in paragraph accordance with State law. charge to residents residents' funds if they are (f)(10)(ii)(b) of this section, the facility (vi) Assurance of financial security. requested by a resident, if they are not must deposit any residents residents' personal The facility must purchase a surety required to achieve the goals stated in funds in excess of $100 in an interest bond, or otherwise provide assurance the resident's resident s care plan, if the facility bearing account (or accounts) that is satisfactory to the Secretary, to assure informs the resident that there will be separate from any of the facility s facility's the security of all personal funds of a charge, and if payment is not made by operating accounts, and that credits all residents deposited with the facility. Medicare or Medicaid: interest earned on resident s resident's funds to (11) The facility must not impose a (A) Telephone, including a cellular that account. (In pooled accounts, there charge against the personal funds of a phone. must be a separate accounting for each resident for any item or service for (B) Television/radio, personal resident's resident s share.) The facility must which payment is made under Medicaid computer or other electronic device for maintain a resident s resident's personal funds or Medicare (except for applicable personal use. VerDate Sep<11> :27 Oct 03, 2016 Jkt PO Frm Fmt 4701 Sfmt 4700 E:\FR\FM\04OCR2.SGM 04OCR2

7 68852 Federal Register/Vol. / 81, No. 192 / Tuesday, October 4, 2016 / Rules and Regulations (C) Personal comfort items, including herself, upon an oral or written request, Survey Agency, the State licensure smoking materials, notions and in the form and format requested by the office, the State Long-Term Care novelties, and confections. individual, if it is readily producible in Ombudsman program, the protection (D) Cosmetic and grooming items and such form and format (including in an and advocacy agency, adult protective services in excess of those for which electronic form or format when such services where state law provides for payment is made under Medicaid or records are maintained electronically); jurisdiction in long-term care facilities, Medicare. or, if not, in a readable hard copy form the local contact agency for information (E) Personal clothing. or such other form and format as agreed about returning to the community and (F) Personal reading matter. to by the facility and the individual, the Medicaid Fraud Control Unit; and (G) Gifts purchased on behalf of a within 24 hours (excluding weekends (D) A statement that the resident may resident. and holidays); and file a complaint with the State Survey (H) Flowers and plants. (ii) The facility must allow the Agency concerning any suspected (I) Cost to participate in social events resident to obtain a copy of the records violation of state or federal nursing and entertainment outside the scope of or any portions thereof (including in an facility regulations, including but not the activities program, provided under electronic form or format when such limited to resident abuse, neglect, (c). records are maintained electronically) exploitation, misappropriation of (J) Non-covered special care services upon request and 2 working days resident property in the facility, non- such as privately hired nurses or aides. advance notice to the facility. The compliance with the advance directives (K) Private room, except when facility may impose a reasonable, cost- requirements and requests for therapeutically required (for example, based fee on the provision of copies, information regarding returning to the isolation for infection control). provided that the fee includes only the community. (L) Except as provided in cost of: (ii) Information and contact (e)(11)(ii)(l)(1) and (2) of this section, (A) Labor for copying the records information for State and local advocacy specially prepared or alternative food requested by the individual, whether in organizations, including but not limited requested instead of the food and meals paper or electronic form; to the State Survey Agency, the State generally prepared by the facility, as (B) Supplies for creating the paper Long-Term Care Ombudsman program required by copy or electronic media if the (established under section 712 of the (1) The facility may not charge for individual requests that the electronic Older Americans Act of 1965, as special foods and meals, including copy be provided on portable media; amended 2016 (42 U.S.C et seq.) medically prescribed dietary and and the protection and advocacy system supplements, ordered by the resident s resident's (C) Postage, when the individual has (as designated by the state, and as physician, physician assistant, nurse requested the copy be mailed. established under the Developmental practitioner, or clinical nurse specialist, (3) With the exception of information Disabilities Assistance and Bill of Rights as these are included in accordance described in paragraphs (g)(2) and Act of 2000 (42 U.S.C et seq.); with (g)(11) of this section, the facility must (iii) Information regarding Medicare (2) In accordance with (c) ensure that information is provided to and Medicaid eligibility and coverage; through (f), when preparing foods and each resident in a form and manner the (iv) Contact information for the Aging meals, a facility must take into resident can access and understand, and Disability Resource Center consideration residents residents' needs and including in an alternative format or in (established under Section preferences and the overall cultural and a language that the resident can 202(a)(20)(B)(iii) of the Older Americans religious make-up of the facility s facility's understand. Summaries that translate Act); or other No Wrong Door Program population. information described in paragraph (v) Contact information for the (iii) Requests for items and services. (g)(2) of this section may be made Medicaid Fraud Control Unit; and (A) The facility can only charge a available to the patient at their request (vi) Information and contact resident for any non-covered item or and expense in accordance with information for filing grievances or service if such item or service is applicable law. complaints concerning any suspected specifically requested by the resident. (4) The resident has the right to violation of state or federal nursing (B) The facility must not require a receive notices orally (meaning spoken) facility regulations, including but not resident to request any item or service and in writing (including Braille) in a limited to resident abuse, neglect, as a condition of admission or format and a language he or she exploitation, misappropriation of continued stay. understands, including; resident property in the facility, non- (C) The facility must inform, orally (i) Required notices as specified in compliance with the advance directives and in writing, the resident requesting this section. The facility must furnish to requirements and requests for an item or service for which a charge each resident a written description of information regarding returning to the will be made that there will be a charge legal rights which includes community. for the item or service and what the (A) A description of the manner of (5) The facility must post, in a form charge will be. protecting personal funds, under and manner accessible and (g) Information and communication. paragraph (f)(10) of this section; understandable to residents, and (1) The resident has the right to be (B) A description of the requirements resident representatives: informed of his or her rights and of all and procedures for establishing (i) A list of names, addresses (mailing rules and regulations governing resident eligibility for Medicaid, including the and ), and telephone numbers of conduct and responsibilities during his right to request an assessment of all pertinent State agencies and or her stay in the facility. resources under section 1924(c) of the advocacy groups, such as the State (2) The resident has the right to access Social Security Act. Survey Agency, the State licensure personal and medical records pertaining (C) A list of names, addresses (mailing office, adult protective services where to him or herself. and ), and telephone numbers of state law provides for jurisdiction in (i) The facility must provide the all pertinent State regulatory and long-term care facilities, the Office of resident with access to personal and informational agencies, resident the State Long-Term Care Ombudsman medical records pertaining to him or advocacy groups such as the State program, the protection and advocacy VerDate Sep<11> :27 Oct 03, 2016 Jkt PO Frm Fmt 4701 Sfmt 4700 E:\FR\FM\04OCR2.SGM 04OCR2

8 Federal Register/Vol. / 81, No. 192 / Tuesday, October 4, 2016/Rules / and Regulations network, home and community based (i) Post in a place readily accessible to potential for requiring physician service programs, and the Medicaid residents, and family members and legal intervention; Fraud Control Unit; and representatives of residents, the results (B) A significant change in the (ii) A statement that the resident may of the most recent survey of the facility. resident s resident's physical, mental, or file a complaint with the State Survey (ii) Have reports with respect to any psychosocial status (that is, a Agency concerning any suspected surveys, certifications, and complaint deterioration in health, mental, or violation of state or federal nursing investigations made respecting the psychosocial status in either life- facility regulations, including but not facility during the 3 preceding years, threatening conditions or clinical limited to resident abuse, neglect, and any plan of correction in effect with complications); exploitation, misappropriation of respect to the facility, available for any (C) A need to alter treatment resident property in the facility, non- individual to review upon request; and significantly (that is, a need to compliance with the advance directives (iii) Post notice of the availability of discontinue or change an existing form requirements (42 CFR part 489 subpart such reports in areas of the facility that of treatment due to adverse I) and requests for information regarding are prominent and accessible to the consequences, or to commence a new returning to the community. public. form of treatment); or (6) The resident has the right to have (iv) The facility shall not make (D) A decision to transfer or discharge reasonable access to the use of a available identifying information about the resident from the facility as telephone, including TTY and TDD complainants or residents. specified in (c)(1)(ii). services, and a place in the facility (12) The facility must comply with (ii) When making notification under where calls can be made without being the requirements specified in 42 CFR paragraph (g)(14)(i) of this section, the overheard. This includes the right to part 489, subpart I (Advance Directives). facility must ensure that all pertinent retain and use a cellular phone at the (i) These requirements include information specified in (c)(2) is resident's resident s own expense. provisions to inform and provide available and provided upon request to (7) The facility must protect and written information to all adult the physician. facilitate that resident s resident's right to residents concerning the right to accept (iii) The facility must also promptly communicate with individuals and or refuse medical or surgical treatment notify the resident and the resident entities within and external to the and, at the resident's resident s option, formulate representative, if any, when there is facility, including reasonable access to: an advance directive. (A) A change in room or roommate (i) A telephone, including TTY and (ii) This includes a written assignment as specified in TDD services; description of the facility's facility s policies to (e)(6); or (ii) The internet, to the extent implement advance directives and (B) A change in resident rights under available to the facility; and applicable State law. Federal or State law or regulations as (iii) Stationery, postage, writing (iii) Facilities are permitted to specified in paragraph (e)(10) of this implements and the ability to send mail. contract with other entities to furnish section. (8) The resident has the right to send this information but are still legally (iv) The facility must record and and receive mail, and to receive letters, responsible for ensuring that the periodically update the address (mailing packages and other materials delivered requirements of this section are met. and ) and phone number of the to the facility for the resident through a (iv) If an adult individual is resident representative(s). means other than a postal service, incapacitated at the time of admission (15) Admission to a composite including the right to: and is unable to receive information or distinct part. A facility that is a (i) Privacy of such communications articulate whether or not he or she has composite distinct part (as defined in consistent with this section; and executed an advance directive, the must disclose in its admission (ii) Access to stationery, postage, and facility may give advance directive agreement its physical configuration, writing implements at the resident s resident's information to the individual s individual's resident including the various locations that own expense. representative in accordance with State comprise the composite distinct part, (9) The resident has the right to have law. and must specify the policies that apply reasonable access to and privacy in their (v) The facility is not relieved of its to room changes between its different use of electronic communications such obligation to provide this information to locations under (c)(9). as and video communications and the individual once he or she is able to (16) The facility must provide a notice for Internet research. receive such information. Follow-up of rights and services to the resident (i) If the access is available to the procedures must be in place to provide prior to or upon admission and during facility the information to the individual the resident s resident's stay. (ii) At the resident s resident's expense, if any directly at the appropriate time. (i) The facility must inform the additional expense is incurred by the (13) The facility must display in the resident both orally and in writing in a facility to provide such access to the facility written information, and provide language that the resident understands resident. to residents and applicants for of his or her rights and all rules and (iii) Such use must comply with state admission, oral and written information regulations governing resident conduct and federal law. about how to apply for and use and responsibilities during the stay in (10) The resident has the right to Medicare and Medicaid benefits, and the facility. (i) Examine the results of the most how to receive refunds for previous (ii) The facility must also provide the recent survey of the facility conducted payments covered by such benefits. resident with the State-developed notice by Federal or State surveyors and any (14) Notification of changes. (i) A of Medicaid rights and obligations, if plan of correction in effect with respect facility must immediately inform the any. to the facility; and resident; consult with the resident s resident's (iii) Receipt of such information, and (ii) Receive information from agencies physician; and notify, consistent with any amendments to it, must be acting as client advocates, and be his or her authority, the resident acknowledged in writing; afforded the opportunity to contact representative(s), when there is (17) The facility must these agencies. (A) An accident involving the resident (i) Inform each Medicaid-eligible (11) The facility must which results in injury and has the resident, in writing, at the time of VerDate Sep<11> :27 Oct 03, 2016 Jkt PO Frm Fmt 4701 Sfmt 4700 E:\FR\FM\04OCR2.SGM 04OCR2