42 U.S.C. § 1396r–3: Correction and reduction…

Summary

When the Secretary finds that an intermediate care facility for people with intellectual disabilities has serious problems that do not immediately endanger residents (including failure to give active treatment), the State has two choices. The State can send a written fix-it plan within the time the Secretary requires that shows what parts already meet federal rules and gives timetables to correct staffing and building problems within 6 months. Or the State can send a written plan, within that same time plus 35 days, to permanently cut the number of certified beds over up to 36 months so unsafe or noncomplying parts can be emptied and staffing fixed. If the State chooses a bed-reduction plan, it must hold a hearing at the facility at least 35 days before sending the plan and give notice to staff, residents, families, and the public. The State must show it already provides similar home and community services and must meet several plan rules. The plan must name residents who will move, show a schedule in 6-month steps over 36 months, explain how residents are chosen and how new services will meet their needs, describe safeguards for health and safety and meeting licensing and certification rules, allow residents to move in ways that keep their Medicaid eligibility, and protect people left at the facility with active treatment and higher staff-to-resident ratios (either the ratio the Secretary requires or the ratio that existed when the problems were found, whichever is greater). The plan must also protect employees’ rights and benefits, offer training and redeployment, and try to keep them employed (without promising a job). The Secretary must allow at least 30 days for public comment after a plan is sent. If the Secretary approves more than 15 reduction plans in a fiscal year, any extra approvals must be for facilities where correcting the problems would cost $2,000,000 or more. If the State fails to fix problems under a 6-month fix-it plan, the Secretary may end the facility’s provider agreement. For reduction plans, if the State fails in any 6-month period the Secretary may end the provider agreement or, if the State tried in good faith, withhold 5 percent of the cost of care for each month of failure. These rules apply only to plans approved by the Secretary by January 1, 1990.

Title 42, §1396r–3

The Public Health and Welfare, Source: USLM XML via OLRC

(a)Written plans to remedy substantial deficiencies; time for submission

If the Secretary finds that an intermediate care facility for the mentally retarded has substantial deficiencies which do not pose an immediate threat to the health and safety of residents (including failure to provide active treatment), the State may elect, subject to the limitations in this section, to—

(1)submit, within the number of days specified by the Secretary in regulations which apply to submission of compliance plans with respect to deficiencies of such type, a written plan of correction which details the extent of the facility’s current compliance with the standards promulgated by the Secretary, including all deficiencies identified during a validation survey, and which provides for a timetable for completion of necessary steps to correct all staffing deficiencies within 6 months, and a timetable for rectifying all physical plant deficiencies within 6 months; or

(2)submit, within a time period consisting of the number of days specified for submissions under paragraph (1) plus 35 days, a written plan for permanently reducing the number of certified beds, within a maximum of 36 months, in order to permit any noncomplying buildings (or distinct parts thereof) to be vacated and any staffing deficiencies to be corrected (hereinafter in this section referred to as a “reduction plan”).

(b)Conditions for approval of reduction plans

As conditions of approval of any reduction plan submitted pursuant to subsection (a)(2), the State must—

(1)provide for a hearing to be held at the affected facility at least 35 days prior to submission of the reduction plan, with reasonable notice thereof to the staff and residents of the facility, responsible members of the residents’ families, and the general public;

(2)demonstrate that the State has successfully provided home and community services similar to the services proposed to be provided under the reduction plan for similar individuals eligible for medical assistance; and

(3)provide assurances that the requirements of subsection (c) shall be met with respect to the reduction plan.

(c)Contents of reduction plan

The reduction plan must—

(1)identify the number and service needs of existing facility residents to be provided home or community services and the timetable for providing such services, in 6 month intervals, within the 36-month period;

(2)describe the methods to be used to select such residents for home and community services and to develop the alternative home and community services to meet their needs effectively;

(3)describe the necessary safeguards that will be applied to protect the health and welfare of the former residents of the facility who are to receive home or community services, including adequate standards for consumer and provider participation and assurances that applicable State licensure and applicable State and Federal certification requirements will be met in providing such home or community services;

(4)provide that residents of the affected facility who are eligible for medical assistance while in the facility shall, at their option, be placed in another setting (or another part of the affected facility) so as to retain their eligibility for medical assistance;

(5)specify the actions which will be taken to protect the health and safety of, and to provide active treatment for, the residents who remain in the affected facility while the reduction plan is in effect;

(6)provide that the ratio of qualified staff to residents at the affected facility (or the part thereof) which is subject to the reduction plan will be the higher of—

(A)the ratio which the Secretary determines is necessary in order to assure the health and safety of the residents of such facility (or part thereof); or

(B)the ratio which was in effect at the time that the finding of substantial deficiencies (referred to in subsection (a)) was made; and

(7)provide for the protection of the interests of employees affected by actions under the reduction plan, including—

(A)arrangements to preserve employee rights and benefits;

(B)training and retraining of such employees where necessary;

(C)redeployment of such employees to community settings under the reduction plan; and

(D)making maximum efforts to guarantee the employment of such employees (but this requirement shall not be construed to guarantee the employment of any employee).

(d)Notice and comment; approval of more than 15 reduction plans in any fiscal year; corrections costing $2,000,000 or more

(1)The Secretary must provide for a period of not less than 30 days after the submission of a reduction plan by a State, during which comments on such reduction plan may be submitted to the Secretary, before the Secretary approves or disapproves such reduction plan.

(2)If the Secretary approves more than 15 reduction plans under this section in any fiscal year, any reduction plans approved in addition to the first 15 such plans approved, must be for a facility (or part thereof) for which the costs of correcting the substantial deficiencies (referred to in subsection (a)) are $2,000,000 or greater (as demonstrated by the State to the satisfaction of the Secretary).

(e)Termination of provider agreements; disallowance of percentage amounts for purposes of Federal financial participation

(1)If the Secretary, at the conclusion of the 6-month plan of correction described in subsection (a)(1), determines that the State has substantially failed to correct the deficiencies described in subsection (a), the Secretary may terminate the facility’s provider agreement in accordance with the provisions of section 1396i(b) of this title.

(2)In the case of a reduction plan described in subsection (a)(2), if the Secretary determines, at the conclusion of the initial 6-month period or any 6-month interval thereafter, that the State has substantially failed to meet the requirements of subsection (c), the Secretary shall—

(A)terminate the facility’s provider agreement in accordance with the provisions of section 1396i(b) of this title; or

(B)if the State has failed to meet such requirements despite good faith efforts, disallow, for purposes of Federal financial participation, an amount equal to 5 percent of the cost of care for all eligible individuals in the facility for each month for which the State fails to meet such requirements.

(f)Applicability of section limited to plans approved by January 1, 1990

The provisions of this section shall apply only to plans of correction and reduction plans approved by the Secretary by January 1, 1990.

Notes & Related Subsidiaries

Editorial Notes

Prior Provisions

A prior section 1922 of act Aug. 14, 1935, was renumbered section 1939 and is classified to section 1396v of this title.

Amendments

1988—Subsec. (a). Pub. L. 100–647, § 8433(a)(1), inserted “(including failure to provide active treatment)” after “residents” in introductory provisions. Subsec. (c)(5). Pub. L. 100–647, § 8433(a)(2), inserted “, and to provide active treatment for,” after “safety of”. Subsec. (e)(1), (2)(A). Pub. L. 100–360, § 411(l)(6)(E), substituted “1396i(b)” for “1396i(c)”. Subsec. (f). Pub. L. 100–647, § 8433(a)(3), substituted “by January 1, 1990” for “within 3 years after the

Effective Date

of final

Regulations

implementing this section”.

Statutory Notes and Related Subsidiaries

Effective Date

of 1988 Amendment Pub. L. 100–647, title VIII, § 8433(b), Nov. 10, 1988, 102 Stat. 3805, provided that: “The

Amendments

made by subsection (a) [amending this section] shall become effective on the date of the enactment of this Act [Nov. 10, 1988], and shall apply to any proceeding where there has not yet been a final determination by the Secretary (as defined for purposes of judicial review) as of the date of the enactment of this Act.” Except as specifically provided in section 411 of Pub. L. 100–360, amendment by Pub. L. 100–360, as it relates to a provision in the Omnibus Budget Reconciliation Act of 1987, Pub. L. 100–203, effective as if included in the enactment of that provision in Pub. L. 100–203, see section 411(a) of Pub. L. 100–360, set out as a Reference to OBRA;

Effective Date

note under section 106 of Title 1, General Provisions.

Effective Date

Pub. L. 99–272, title IX, § 9516(b), Apr. 7, 1986, 100 Stat. 215, provided that: “(1) The amendment made by this section [enacting this section] shall become effective on the date of the enactment of this Act [Apr. 7, 1986]. “(2) The Secretary of Health and Human Services shall issue a notice of proposed rulemaking with respect to section 1919 of the Social Security Act [42 U.S.C. 1396r–3] within 60 days after the date of the enactment of this Act, and shall allow a period of 30 days for comment thereon prior to promulgating final

Regulations

implementing such section.”

Regulations

Pub. L. 100–203, title IV, § 4217, Dec. 22, 1987, 101 Stat. 1330–220, provided that: “(a) In General.—Not later than 30 days after the date of enactment of this Act [Dec. 22, 1987], the Secretary of Health and Human Services shall promulgate final

Regulations

to implement the

Amendments

made by section 9516 of the Consolidated Omnibus Budget Reconciliation Act of 1985 [enacting this section]. “(b) The

Regulations

promulgated under paragraph (1) shall be effective as if promulgated on the date of enactment of the Consolidated Omnibus Budget Reconciliation Act of 1985 [Apr. 7, 1986].” Report to Congress on Implementation and Results of This Section Pub. L. 99–272, title IX, § 9516(c), Apr. 7, 1986, 100 Stat. 215, as amended by Pub. L. 100–203, title IV, § 4211(l), Dec. 22, 1987, 101 Stat. 1330–207, directed Secretary of Health and Human Services to submit a report to Congress on implementation and results of this section, such report to be submitted not later than 30 months after the

Effective Date

of final

Regulations

promulgated to implement this section.

§1396r–3 Correction and Reduction Plans for Intermediate Care Facilities for Mentally Retarded

Summary

Title 42, §1396r–3

Notes & Related Subsidiaries

Editorial Notes

Prior Provisions

Amendments

Effective Date

Regulations

Statutory Notes and Related Subsidiaries

Effective Date

Amendments

Effective Date

Effective Date

Regulations

Regulations

Regulations

Amendments

Regulations

Effective Date

Regulations

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