PART 442—STANDARDS FOR PAYMENT TO NURSING FACILITIES AND INTERMEDIATE CARE FACILITIES FOR INDIVIDUALS WITH INTELLECTUAL DISABILITIES Authority: 42 U.S.C. 1302. Source: 43 FR 45233, Sept. 29, 1978, unless otherwise noted. Subpart A—General Provisions § 442.1 Basis and purpose. (a) This part states requirements for provider agreements for facility certification relating to the provision of services furnished by nursing facilities and intermediate care facilities for individuals with intellectual disabilities. This part is based on the following sections of the Act: Section 1902(a)(4), administrative methods for proper and efficient operation of the State plan; Section 1902(a)(27), provider agreements; Section 1902(a)(28), nursing facility standards; Section 1902(a)(33)(B), State survey agency functions; Section 1902(i), circumstances and procedures for denial of payment and termination of provider agreements in certain cases; Section 1905(c), definition of nursing facility; Section 1905(d), definition of intermediate care facility for individuals with intellectual disabilities; Section 1905 (f), definition of nursing facility services; Section 1910, certification and approval of ICFs/IID and of RHCs; Section 1913, hospital providers of nursing facility services; Section 1919 (g) and (h), survey, certification and enforcement of nursing facilities; and Section 1922, correction and reduction plans for intermediate care facilities for individuals with intellectual disabilities. (b) Section 431.610 of this subchapter contains requirements for designating the State licensing agency to survey these facilities and for certain survey agency responsibilities. [43 FR 45233, Sept. 29, 1978, as amended at 47 FR 31533, July 20, 1982; 59 FR 56235, Nov. 10, 1994] § 442.2 Terms. In this part— Facility Facility, Immediate jeopardy New admission (a) Individuals who were in the facility before the effective date of denial of payment for new admissions, even if they become eligible for Medicaid after that date. (b) If the approved State plan includes payments for reserved beds, individuals who, after a temporary absence from the facility, are readmitted to beds reserved for them in accordance with § 447.40(a) of this chapter. [43 FR 45233, Sept. 29, 1978, as amended at 51 FR 24491, July 3, 1986; 53 FR 1993, Jan. 25, 1988; 54 FR 5358, Feb. 2, 1989; 56 FR 48865, Sept. 26, 1991; 59 FR 56235, Nov. 10, 1994] Subpart B—Provider Agreements § 442.10 State plan requirement. A State plan must provide that requirements of this subpart are met. § 442.12 Provider agreement: General requirements. (a) Certification and recertification. (b) Exception. (c) Conformance with certification condition. (d) Denial for good cause. (2) A provider agreement is not a valid agreement for purposes of this part even though certified by the State survey agency, if the facility fails to meet the civil rights requirements set forth in 45 CFR parts 80, 84, and 90. [45 FR 22936, Apr. 4, 1980, as amended at 56 FR 48865, Sept. 26, 1991; 59 FR 56235, Nov. 10, 1994; 64 FR 67052, Nov. 30, 1999] § 442.13 Effective date of provider agreement. The effective date of a provider agreement with an NF or ICF/IID is determined in accordance with the rules set forth in § 431.108. [62 FR 43936, Aug. 18, 1997] § 442.14 Effect of change of ownership. (a) Assignment of agreement. (b) Conditions that apply to assigned agreements. (1) Any existing plan of correction. (2) Any expiration date for ICFs/IID. (3) Compliance with applicable health and safety requirements. (4) Compliance with the ownership and financial interest disclosure requirements of §§ 455.104 and 455.105 of this chapter. (5) Compliance with civil rights requirements set forth in 45 CFR parts 80, 84, and 90. (6) Compliance with any additional requirements imposed by the Medicaid agency. [45 FR 22936, Apr. 4, 1980, as amended at 53 FR 20495, June 3, 1988; 59 FR 56235, Nov. 10, 1994] § 442.15 Duration of agreement for ICF/IIDs. (a) The agreement for an ICF/IID remains in effect until the Secretary determines that the facility no longer meets the applicable requirements. The State Survey Agency must conduct a survey of the facility to determine compliance with the requirements at a survey interval of no greater than 15 months. (b) FFP is available for services furnished by a facility for up to 30 days after its agreement expires or terminates under the conditions specified in § 441.11 of this subchapter. [77 FR 29031, May 16, 2012] § 442.16 [Reserved] § 442.30 Agreement as evidence of certification. (a) Under §§ 440.40(a) and 440.150 of this chapter, FFP is available in expenditures for NF and ICF/IID services only if the facility has been certified as meeting the requirements for Medicaid participation, as evidenced by a provider agreement executed under this part. An agreement is not valid evidence that a facility has met those requirements if CMS determines that— (1) The survey agency failed to apply the applicable requirements under subpart B of part 483 of this chapter for NFs or subpart I of part 483 of this chapter, which set forth the conditions of participation for ICFs/IID. (2) The survey agency failed to follow the rules and procedures for certification set forth in subpart C of this part, subpart E of part 488, and § 431.610 of this subchapter; (3) The survey agency failed to perform any of the functions specified in § 431.610(g) of this subchapter relating to evaluating and acting on information about the facility and inspecting the facility; (4) The agency failed to use the Federal standards, and the forms, methods and procedures prescribed by CMS as required under § 431.610(f)(1) or § 488.318(b) of this chapter, for determining the qualifications of providers; or (5) The survey agency failed to adhere to the following principles in determining compliance: (i) The survey process is the means to assess compliance with Federal health, safety and quality standards; (ii) The survey process uses resident outcomes as the primary means to establish the compliance status of facilities. Specifically, surveyors will directly observe the actual provision of care and services to residents, and the effects of that care, to assess whether the care provided meets the needs of individual residents; (iii) Surveyors are professionals who use their judgment, in concert with Federal forms and procedures, to determine compliance; (iv) Federal procedures are used by all surveyors to ensure uniform and consistent application and interpretation of Federal requirements; (v) Federal forms are used by all surveyors to ensure proper recording of findings and to document the basis for the findings. (6) The survey agency failed to assess in a systematic manner a facility's actual provision of care and services to residents and effects of that care on residents. (7) Required elements of the NF survey process fails to include all of the following: (i) An entrance conference; (ii) A resident-centered tour of facility; (iii) An in-depth review of a sample of residents including observation, interview and record review; (iv) Observation of the preparation and administration of drugs for a sample of residents; (v) Evaluation of a facility's meals, dining areas and eating assistance procedures; (vi) Formulation of a deficiency statement based on the incorporation of all appropriate findings onto the survey report form; (vii) An exit conference; and (viii) Follow-up surveys as appropriate. (8) The agreement's terms and conditions do not meet the requirements of this subpart. (b) The Administrator will make the determination under paragraph (a) of this section through onsite surveys, other Federal reviews, State certification records, or reports he may require from the Medicaid or survey agency. (c) If the Administrator disallows a State's claim for FFP because of a determination under paragraph (a) of this section, the State is entitled upon request to reconsideration of the disallowance under 45 CFR part 16. [43 FR 45233, Sept. 29, 1978, as amended at 51 FR 21558, June 13, 1986; 53 FR 20495, June 3, 1988; 53 FR 23101, June 17, 1988; 56 FR 48865, Sept. 26, 1991; 59 FR 56235, Nov. 10, 1994] § 442.40 Availability of FFP during appeals for ICFs/IID. (a) Definitions. Effective date of expiration Effective date of termination (b) Scope, applicability, and effective date Scope. (2) Applicability. (ii) When the State acts under instructions from CMS, FFP ends on the date specified by CMS (CMS instructs the State to terminate the Medicaid provider agreement when CMS in validating a State survey agency certification, determines that an ICF/IID does not meet the requirements for participation.) (3) Effective date. (c) Basic rules. (2) If State law, or a Federal or State court order or injunction, requires the agency to extend the provider agreement or continue payments to a facility after the dates specified in paragraph (d) of this section, FFP is not available in those payments. (d) Exception: Continuation of FFP after termination or expiration of provider agreement Conditions for continuation. (i) The evidentiary hearing required under § 431.153 of this chapter is provided by the State agency after the effective date of termination or expiration (or, if begun before termination or expiration, is not completed until after that date); and (ii) Termination or nonrenewal action is based on a survey agency certification that there is no jeopardy to beneficiaries' health and safety. (2) Extent of continuation. (i) The date of issuance of an administrative hearing decision that upholds the agency's termination or nonrenewal action. (ii) The 120th day after the effective date of termination of the facility's provider agreement or, if the agreement is not terminated, the 120th day after the effective date of expiration. (If a hearing decision that upholds the facility is issued after the end of the 120-day period, when FFP has already been discontinued, the rules of § 442.42 on retroactive agreements apply). (e) Applicability of § 441.11. [52 FR 32551, Aug. 28, 1987, as amended at 56 FR 48865, Sept. 26, 1991; 59 FR 56236, Nov. 10, 1994] § 442.42 FFP under a retroactive provider agreement following appeal. (a) Basic rule. (b) Exception. [52 FR 32551, Aug. 28, 1987, as amended at 59 FR 56236, Nov. 10, 1994] § 442.43 Payment transparency reporting. (a) Definitions. Compensation (i) Salary, wages, and other remuneration as defined by the Fair Labor Standards Act and implementing regulations (29 U.S.C. 201 et seq., (ii) Benefits (such as health and dental benefits, life and disability insurance, paid leave, retirement, and tuition reimbursement); and (iii) The employer share of payroll taxes. (2) Direct care worker (i) A registered nurse, licensed practical nurse, nurse practitioner, or clinical nurse specialist; (ii) A certified nurse aide who provides services under the supervision of a registered nurse, licensed practical nurse, nurse practitioner, or clinical nurse specialist; (iii) A licensed physical therapist, occupational therapist, speech-language pathologist, or respiratory therapist; (iv) A certified physical therapy assistant, occupational therapy assistant, speech-language therapy assistant, or respiratory therapy assistant or technician; (v) A social worker; (vi) A direct support professional; (vii) A personal care aide; (viii) A medication assistant, aide, or technician; (ix) A feeding assistant; (x) Activities staff; or (xi) Any other individual who is paid to provide clinical services, behavioral supports, active treatment (as defined at § 483.440 of this chapter) or address activities of daily living (such as those described in § 483.24(b) of this chapter) for Medicaid-eligible individuals receiving Medicaid services under this part, including nurses and other staff providing clinical supervision. (3) Support staff (i) A housekeeper; (ii) A janitor or environmental services worker; (iii) A groundskeeper; (iv) A food service or dietary worker; (v) A driver responsible for transporting residents; (vi) A security guard; or (vii) Any other individual who is not a direct care worker and who maintains the physical environment of the care facility or supports other services for Medicaid-eligible individuals receiving Medicaid services under this part. (4) Excluded costs (i) Costs of required trainings for direct care workers and support staff (such as costs for qualified trainers and training materials); (ii) Travel costs for direct care workers and support staff (such as mileage reimbursement or public transportation subsidies); and (iii) Costs of personal protective equipment for facility staff. (b) Reporting requirements. (1) Services. (2) Exclusion of specified payments. (3) Exclusion of data from the Indian Health Service and Tribal health programs. (c) Report contents and methodology Contents. (i) Direct care workers at each nursing facility; (ii) Support staff at each nursing facility; (iii) Direct care workers at each ICF/IID; and (iv) Support staff at each ICF/IID. (2) Methodology. (d) Availability and accessibility requirements. (1) Include clear and easy to understand labels on documents and links; (2) Verify no less than quarterly, the accurate function of the website and the current accuracy of the information and links; and (3) Include prominent language on the website explaining that assistance in accessing the required information on the website is available at no cost and include information on the availability of oral interpretation in all languages and written translation available in each non-English language, how to request auxiliary aids and services, and a toll-free and TTY/TDY telephone number. (e) Information reported by States. (f) Applicability date. [89 FR 40995, May 9, 2024] Subpart C—Certification of ICFs/IID § 442.100 State plan requirements. A State plan must provide that the requirements of this subpart and part 483 are met. [53 FR 20495, June 3, 1988] § 442.101 Obtaining certification. (a) This section states the requirements for obtaining notice of an ICF/IID's certification before a Medicaid agency executes a provider agreement under § 442.12. (b) The agency must obtain notice of certification from the Secretary for an ICF/IID located on an Indian reservation. (c) The agency must obtain notice of certification from the survey agency for all other ICFs/IID. (d) The notice must indicate that one of the following provisions pertains to the ICF/IID: (1) An ICF/IID meets the conditions of participation set forth in subpart I of part 483 of this chapter. (2) The ICF/IID has been granted a waiver or variance by CMS or the survey agency under subpart I of part 483 of this chapter. (3) An ICF/IID has been certified with standard-level deficiencies and (i) All conditions of participation are found met; and (ii) The facility submits an acceptable plan of correction covering the remaining deficiencies. (e) The failure to meet one or more of the applicable conditions of participation is cause for termination or non-renewal of the ICF/IID provider agreement. [56 FR 48866, Sept. 26, 1991, as amended at 57 FR 43924, Sept. 23, 1992; 59 FR 56236, Nov. 10, 1994; 79 FR 27153, May 12, 2014] § 442.105 [Reserved] § 442.109 Certification period for ICF/IIDs: General provisions. (a) A survey agency may certify a facility that fully meets applicable requirements. The State Survey Agency must conduct a survey of each ICF/IID not later than 15 months after the last day of the previous survey. (b) The statewide average interval between surveys must be 12 months or less, computed in accordance with paragraph (c) of this section. (c) The statewide average interval is computed at the end of each Federal fiscal year by comparing the last day of the most recent survey for each participating facility to the last day of each facility's previous survey. [77 FR 29031, May 16, 2012] § 442.110 Certification period for ICF/IID with standard-level deficiencies. Facilities with standard-level deficiencies may be certified under § 442.101 with a condition that the certification will continue if either of the following applies: (a) The survey agency finds that all deficiencies have been satisfactorily corrected. (b) The survey agency finds that the facility has made substantial progress in correcting the deficiencies and has a new plan of correction that is acceptable. [79 FR 27153, May 12, 2014] § 442.117 Termination of certification for ICFs/IID whose deficiencies pose immediate jeopardy. (a) A survey agency must terminate a facility's certification if it determines that— (1) The facility no longer meets conditions of participation for ICFs/IID as specified in subpart I of part 483 of this chapter. (2) The facility's deficiencies pose immediate jeopardy to residents' health and safety. (b) Subsequent to a certification of a facility's noncompliance, the Medicaid agency must, in terminating the provider agreement, follow the appeals process specified in part 431, subpart D of this chapter. [51 FR 24491, July 3, 1986, as amended at 59 FR 56236, Nov. 10, 1994] § 442.118 Denial of payments for new admissions to an ICF/IID. (a) Basis for denial of payments. (b) Agency procedures. (1) Provide the facility up to 60 days to correct the cited deficiencies and comply with conditions of participation for ICFs/IID. (2) If at the end of the specified period the facility has not achieved compliance, give the facility notice of intent to deny payment for new admissions, and opportunity for an informal hearing. (3) If the facility requests a hearing, provide an informal hearing that includes— (i) The opportunity for the facility to present, before a State Medicaid official who was not involved in making the initial determination, evidence or documentation, in writing or in person, to refute the decision that the facility is out of compliance with the conditions of participation for ICFs/IID. (ii) A written decision setting forth the factual and legal bases pertinent to a resolution of the dispute. (4) If the decision of the informal hearing is to deny payments for new admissions, provide the facility and the public, at least 15 days before the effective date of the sanction, with a notice that includes the effective date and the reasons for the denial of payments. [51 FR 24491, July 3, 1986, as amended at 59 FR 56236, Nov. 10, 1994] § 442.119 Duration of denial of payments and subsequent termination of an ICF/IID. (a) Period of denial. (1) The facility has corrected the deficiencies or is making a good faith effort to achieve compliance with the conditions of participation for ICFs/IID; or (2) The deficiencies are such that it is necessary to terminate the facility's provider agreement. (b) Subsequent termination. (1) Upon the agency's finding that the facility has been unable to achieve compliance with the conditions of participation for ICFs/IID during the period that payments for new admissions have been denied; (2) Effective the day following the last day of the denial of payments period; and (3) In accordance with the procedures for appeal of terminations set forth in subpart D of part 431 of this chapter. [51 FR 24491, July 3, 1986, as amended at 59 FR 56236, Nov. 10, 1994] Subparts D-F [Reserved]