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«Center for Clinical Standards and Quality/Survey & Certification Group Ref: S&C: 16-21-ALL DATE: May 03, 2016 TO: State Survey Agency Directors FROM: ...»

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Department of Health & Human Services

Centers for Medicare & Medicaid Services

7500 Security Boulevard, Mail Stop C2-21-16

Baltimore, Maryland 21244-1850

Center for Clinical Standards and Quality/Survey & Certification Group

Ref: S&C: 16-21-ALL

DATE: May 03, 2016

TO: State Survey Agency Directors

FROM: Director

Survey and Certification Group

SUBJECT: Guidance to Surveyors on Federal Requirements for Providing Services to Justice

Involved Individuals Memorandum Summary Surveyor Guidance: The Centers for Medicare & Medicaid Services (CMS) are clarifying requirements for providing services to justice involved individuals in skilled nursing facilities (SNFs), nursing facilities (NFs), hospitals, psychiatric hospitals, critical access hospitals (CAHs), and intermediate care facilities for individuals with intellectual disabilities (ICFs/IID).

Specifically, this guidance seeks to assure high quality care that is consistent with essential patient rights and safety for all individuals.

A. Introduction Many States are examining the role that the health care system plays in providing vital services to individuals during and following a period of incarceration. For example, some individuals were previously uninsured and may have long-untreated health conditions. Others have aged in prison and may be discharged under compassionate release policies or may need specialized care for chronic or debilitating conditions.

In particular, States are considering the role that Medicaid can play in facilitating better access to health care for individuals prior to, during, and after, a stay in a correctional facility. The Social Security Act (the Act) prohibits federal financial participation (FFP) under Medicaid for inmates of a public institution, but provides an exception to this exclusion for patients in a medical institution 1. The CMS Center for Medicaid and Children’s Health Insurance Program (CHIP) Services (CMCS) recently issued a letter to State Health Officials (SHO) that clarifies the definition of inmate of a public institution for purposes of Medicaid eligibility and to whom this exception applies. The letter is available at: https://www.medicaid.gov/federal-policyguidance/downloads/sho16007.pdf.

Section 1905(a)(29)(A) of the Act prohibits Medicaid federal financial participation (FFP) for “any such payments with respect to care or services for any individual who is an inmate of a public institution (except as a patient in a medical institution)” [Emphasis added].

Page 2- State Survey Agency Directors Additionally, Medicare has requirements and payment limitations that would also apply. 2

Generally, three questions are particularly pertinent to this topic:

1. Individual - Does the individual meet the inmate exception or otherwise qualify for medical services? The SHO letter explains, for example, that an individual’s eligibility for Medicaid may be established during incarceration even though no FFP may be available due to their inmate status. Enrolling the individual during the period of incarceration may facilitate his or her reentry by enabling timely access to needed health services upon the individual’s release from prison. 3

2. Service – Is the service covered by Medicare or under the State’s Medicaid plan, and does the individual qualify for the medical service (e.g., by virtue of assessed need and medical judgment)?

3. Provider – Does the provider of services qualify for payment by virtue of having a Medicare or Medicaid provider agreement, and maintain continuous compliance with Medicare and Medicaid Requirements for Participation (Requirements) or Conditions of Participation (CoPs)?

This memorandum addresses only the third topic – certified provider compliance with Medicare and Medicaid participation requirements.

In this memorandum, the umbrella term “justice involved individuals” includes the following

three categories of individuals:

Inmates of a public institution: Individuals currently in custody and held involuntarily through operation of law enforcement authorities in an institution which is the responsibility of a governmental unit or over which a governmental unit exercises administrative control, such as a state or federal prisons, local jails, detention facilities, or other penal settings (e.g., boot camps, wilderness camps).

Individuals under the care of law enforcement: Individuals who have been taken into custody by law enforcement. Law enforcement includes local and state police, sheriffs, federal law enforcement agents, and other deputies charged with enforcing the law.

Individuals under community supervision. Individuals who are on parole, on probation, or required as an alternative to criminal prosecution by a court of law to conditions of ongoing supervision and treatment.

This issue is described more fully in the Medicare Learning Network Publication: https://www.cms.gov/Outreachand-Education/Medicare-Learning-Network-MLN/MLNProducts/Downloads/Items-Services-Furnished-toBeneficiaries-in-Custody-Under-Penal-Authority-Fact-Sheet-ICN908084.pdf The SHO letter also clarifies that individuals serving part of their sentence in halfway houses may not be subject to the payment exclusion if certain conditions apply and that individuals under community supervision are not subject to the payment exclusion. It is important to note that CMS does not certify or survey halfway houses.

Page 3- State Survey Agency Directors

B. Medical Institutions - Provider Requirements

To be eligible to receive Medicare or Medicaid payment, medical institutions must demonstrate continuous compliance with federal requirements. Providers and certain certified suppliers must be certified for participation in Medicare or Medicaid and are subject to periodic, onsite recertification surveys (inspections) to assess their continued compliance, as well as to investigations that focus on particular areas that may be the subject of a complaint received by CMS or by a State Survey Agency (SA). 4 Medicare and Medicaid CoP requirements are different for different types of providers. For

example generally:

• Hospitals: The CoPs focus on acute care needs of inpatients and outpatients, and recognize that there can be a very large array of situations that may be presented for treatment.

• Psychiatric Hospitals: Psychiatric hospitals are subject to the same CoPs as other hospitals, except the medical record services requirement specified at 42 C.F.R. §482.24, plus two additional CoPs that focus on the unique care needs of psychiatric patients.

• Critical Access Hospitals (CAHs): The CoPs specific to CAHs focus on short stay, acute care needs of inpatients and outpatients, and take into account that there is a wide array of treatment situations. However, CAHs are different Medicare/Medicaid providers than hospitals, and except for CAH psychiatric and rehabilitation units, are subject to a different set of CoPs than hospitals.

• Nursing Homes (NHs) – The Requirements for Long Term Care Facilities (Requirements for Participation) accommodate both short and long-range needs, with a primary focus on the fact that the nursing home often serves as the individual’s residence.

Resident rights, choices, and dignity are therefore important features of the statutory and regulatory requirements. The requirements for nursing homes are the same for Medicare 5 and Medicaid. 6 The Medicaid nursing home benefit may also include levels of care in addition to the skilled nursing home care that is covered in Medicare. Individuals may be admitted as a resident of a nursing home only if they meet certain level-of-care and screening requirements, such as preadmission screening and resident review (PASRR). 7 CMS may also deem an accreditation of a provider to be sufficient as demonstrating compliance with the CoPs, if that accreditation is conducted by a CMS-approved accrediting organization. Deemed providers remain subject to complaint investigations conducted by CMS or SAs, as well as full validation surveys that are conducted by CMS or SAs to check on the adequacy of the accrediting organization’s surveys.

Sections 1819(a), (b), (c) and (d) of the Act and 42 CFR Part 483, Subpart B.

Sections 1919(a), (b), (c) and (d) of the Act and 42 CFR Part 483, Subpart B.

PASRR is an important tool for states to use in rebalancing services away from institutions and towards supporting people in their homes, and to comply with the Supreme Court decision, Olmstead vs L.C., 527 U.S. 581 (1999), which held that, under the Americans with Disabilities Act, individuals with disabilities cannot be required to be institutionalized to receive public benefits that could be furnished in community-based settings. PASRR can also advance person-centered care planning by assuring that psychological, psychiatric, and functional needs are Page 4- State Survey Agency Directors

• Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICFs/IID) – Like nursing homes, ICFs/IID must pay particular attention to resident rights, choices, and dignity. They must ensure that only individuals who need and receive active treatment are admitted.

The needs of justice involved individuals may be accommodated in the varying types of medical institutions. However careful attention needs to be paid so that these needs are met in a manner consistent with federal requirements. In some cases, institutions have been able to demonstrate compliance with federal requirements. In other situations, they have not been able to do so (in which case, depending on State law, they usually functioned under State licensure without Medicare or Medicaid payments). The provider’s ability to meet these needs and remain in compliance with federal requirements depends in large part on the interaction between (a) the nature of the individual’s needs, behaviors, and restrictions, (b) the manner in which those needs or restrictions are addressed in the facility, and (c) capabilities of the relevant institution.

C. Questions Applicable to all Provider Types A health care institution that provides care and services to justice involved individuals must be surveyed with the federal requirements applicable to all other health care institutions in the same provider type category.

Because Medicare and Medicaid requirements vary by provider type, we cover each provider or certified supplier separately. Any institution/facility that is regulated by Federal CoPs or Requirements for Participation in Medicare and Medicaid must adhere to those conditions or requirements and administer them in a manner that does not violate any individual’s rights.

However, there are key questions surveyors must ask in all settings. These include:

• Governance: Does the provider or the Department of Corrections(DOC)/Parole Board maintain control over the conditions under which the individual receives care? It would not be permissible for the DOC or Parole Board to maintain control over the conditions.

• Screening, Admission, Discharge: Are federal requirements for screening and emergency care met, when applicable, e.g., the Emergency Medical Treatment and Labor Act (EMTALA)? Are federal requirements for admission and discharge processes met?

Does the institution maintain admission processes to ensure that individuals are qualified for admission and that the institution/facility is capable of providing the necessary care?

Institutions should receive sufficient information prior to admission of any patient or considered along with personal goals and preferences in planning long term care. The PASRR process requires that all applicants to Medicaid-certified Nursing Facilities be given a preliminary assessment to determine whether they might have mental illness or intellectual disability. This is called a "Level I screen." Those individuals who test positive at Level I are then evaluated in depth, called "Level II" PASRR. The results of this evaluation result in a determination of need, determination of appropriate setting, and a set of recommendations for services to inform the individual's plan of care. Regulations governing PASRR are found in the Code of Federal Regulations, primarily at 42 CFR Part 483, Subpart C. See: https://www.medicaid.gov/Medicaid-CHIP-Program-Information/ByTopics/Delivery-Systems/Institutional-Care/Preadmission-Screening-and-Resident-Review-PASRR.html Page 5- State Survey Agency Directors resident (e.g., medical records, diagnoses, etc.). Do individuals with a mental health diagnosis receive proper screening for mental health services under the preadmission screening and resident review (PASRR) requirements? PASRR is a federal requirement to help ensure that individuals are not inappropriately placed in nursing homes for long term care. PASRR requires that 1) all applicants to a Medicaid-certified nursing facility be evaluated for mental illness and/or intellectual disability; 2) be offered the most appropriate setting for their needs (in the community, a nursing facility, or acute care settings); and 3) receive the services they need in those settings. 8

• Assessment of Individual Need for Care and Treatment: Do the medical professionals at the institution or facility gather information and work in concert with other medical professionals and caregivers who have knowledge of the individual and his or her needs?

Does the institution maintain processes to ensure that individuals are adequately assessed with respect to their needs for care and treatment, and are provided care that directly corresponds to their needs?

• Treatment: Do the services, treatment and restrictions applied by the medical institution

for the patient or resident:

–  –  –

• Role: Does the institution/facility administer or provide treatment or restrictions that do not flow from the independent, clinical judgment of medical professionals responsible for the care of the individual in the certified institution? Is the medical institution in the position of serving as an agent of the correctional or law enforcement authority?

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