PART 249-SERVICES AND PAYMENT IN MEDICAL ASSISTANCE PROGRAMS

Home Health Services

Notice of proposed rule making was published August 21, 1975 (40 FR 36702) revising existing regulations on the provision of home health services under State plans for medical assistance (title XIX, Social Security Act). The purpose of the proposed revisions was to remove certain restrictions and ambiguities which prevented full realization of the benefits of such services. The basis for the proposal was the Department's desire to increase the availability of home health services to Medicaid reciplents and to encourage their use in appropriate cases as one alternative to institutionalization.

In summary, the regulations as proposed would have:

Permitted certain types of qualified health service agencies, in addition to those which meet Medicare standards, to provide home health services under Medicaid programs;

Prescribed the standards which those agencies must meet, which paralleled those for Medicare but were appropriately adjusted for differing needs under Medicaid;

Permitted proprietary agencies to participate if they met the standards, subject to any licensing law of the State;

Clarified that States must make available under the State plan the three main types of services needed in home care: nursing, home health, aide, and supplies and equipment, and also permitted them to provide various therapies as home health services;

Clarified the Medicaid recipients to whom home health services must be available, specified the requirements for a physician's determination of medical needs recorded in a plan of care and periodically, reviewed, and clarified that Medicare requirements relating to need for certain types of "skilled" care and the prior hospitalization applicable to the Medicare Part A home health benefit do not apply under Medicaid.

Nearly 1300 comments were received from a broad range of interested parties: Members of Congress, private citizens, national health and welfare organizations, consumer and senior citizen groups, public and private providers and provider organizations, State and local agencies, etc. The comments themselves represented a broad range of opinion from approval of the changes to strong objections in whole or in part. Evidence of widespread interest was also presented by the holding of public hearings on Oc

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tober 28, 1975 by subcommittees of the Senate and House Committees on Aging, and by the convening of an all-day session on the major issues to which the Department invited State, congressional, consumer and provider representatives.

The greatest controversy arose over the proposal to drop from Medicaid the restrictions on proprietary agency participation applied by statute under Medicare, thus allowing their participation in the Medicaid program on the same basis and under the same standards as nonprofit agencies. Another major issue was the establishment of standards differing in some respects from Medicare's, including the provision for single service agencies to participate in Medicaid (those offering only nursing or only home health aide services). In addition, however, these were questions and suggestions on virtually every detail of the proposed regulations.

In light of the great public interest and widely varying opinions the Medicaid regulations are being published at this time with only those revisions necessary to clarify the previous ambiguities on persons eligible to receive home health services and types of services State must provide. This should increase understanding of the requirements on the part of States, recipients and home health agencies and facilitate the appropriate provisions of the services. The issues raised by the proposed rule making will be included for discussion in the overall review of home health care on which the Department has announced public hearings (see Notice of Intent, FR Doc. 76-24916 published elsewhere in this issue).

With respect to the eligibility provisions, comments received were affirmative. Comments on the services requirements and the Department's response are summarized below:

(a) Clarify when services may be provided in an intermediate care facility. This has been done by giving an example.

(b) Change the 90-day physician's review to the Medicare requirement of 60 days. This has been done.

(c) With respect to use of a "solo" nurse in the absence of a qualified agency: Drop the requirement, make it optional, clarify when no agency is considered "available", require States to hold public hearings prior to such a finding, clarify "direction" by a physician.

The requirement has been retained since it is necessary for the provision of services in certain areas, primarily rural. Approximately 23 States now make use of this provision and the Department considers it essential for all States to

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The non-availability of an agency has been clarified by changing the wording to no such agency exista in the area. This clarification also makes it unnecessary to provide for public hearings on whether an agency is not "available". The wording on "direction" by a phystcian has been replaced by more specific language.

(d) Clarify whether the home health agency itself must furnish the medical supplies, equipment and appliances required by 249.10(b) (7) (1) (C).

It is the State's responsibility to make payment for any such item. The items may be supplied by direct prescription of the physician and not necessarily by the home health agency.

(e) Many respondents suggested that a variety of other services-nutrition, homemaker, social services should be required and that the therapy services listed as optional should be mandated.

The Department recognizes that many of these services would ennance the benefits gained from home health services. However, some of the suggested services are solely custodial in nature and readily available under other federally-assisted programs and, therefore, do not appear to be appropriate for inclusion under title XIX of the Act, the primary purpose of which is to make medical care and services available to indigent people. The therapy services have been retained as optional since it is felt that in the light of current fiscal restraints, this should be a State decision. Such services are optional in State Medicaid programs for provision to any recipient as well as under home health programs. However,

A comment was also received in the definition of a medical renalitation facility which may provide therapy serv ces under these regulations. I pointed out an inconsistency between the spectfication that the major portion of serv ices be provided in the facility and the fact that home health services are provided in the patents residence. The wording has been clarified.

Accordingly, the proposed regulations, as modified, are hereby adopted.

During the year following the publication of these regulations, the Department will evaluate the utilization and delivery of home hesith services under both Medicare and Medicaid. Modificstions in the legislation and regulations of both programs will be considered on the basis of this evaluation.

Chapter II. Title 45. Code of Federal Regulations, is amended as follows:

1. Section 249.10 is amended by revising paragraphs (a) (4) and (b)\?) to read as set forth below:

(Sec. 1102, 49 Stat. 848 (42 U.S.C. 1302))

Effective date: The regulations in this section will be effective November 23. 1976.

(Catalog of Federal Domestic Assistance Program No. 13.714 Medical Assistance Program.)

Answers to specific questions may be obtained by calling Robert Silva, 202245-0251.

Dated: August 13, 1976.

DON WORTMAN,

Acting Administrator, Social
and Rehabriitation Service.

Approved: August 20, 1976.
WILLIAM A. MORRILL,

Acting Secretary.

[FR Doc.76-24915 Filed 8-24-76;8:45 am)

$249.10 Amount, duration, and scope of medical assistance.

(a) State plan requirements.-A State plan for medical assistance under title XIX of the Social Security Act must:

(1) Specify that at least the first five items of medical and remedial care and services, as set forth in paragraph (b) (1) through (5) of this section, will be provided to the categorically needy.

(2) Specify that, if the plan includes the medically needy, at least the following items of medical and remedial care and services will be provided to the medically needy:

(1) The first five items as set forth in paragraph (b) (1) through (5) of this section; or

(1) (A) Any seven of the items as set forth in paragraph (b) (1) through (16) of this section; and

(B) If the plan includes inpatient hospital services or skilled nursing facility services, physicians' services to eligible individuals when they are patients in a hospital or skilled nursing facility, even. though physicians' services as defined in paragraph (b) (5) of this section are not otherwise included for the medically needy.

(3) In carrying out the requirements in paragraph (a) (1) and (2) of this paragraph with respect to the item of care set forth in paragraph (b) (4) (ii) of this section, provide:

(1) For establishment of administrative mechanisms to identify available screening and diagnostic facilities, to assure that individuals under 21 years of age who are eligible for medical assistance may receive the services of such facilities, and to make available such services as may be included under the State plan;

(11) For identification of all eligible Individuals, including those who are in need of medical or remedial care and services furnished through title V grantees, and for assuring that individuals eligible for title V services are informed of such services and are referred to title V grantees for care and services, as appropriate;

(i) For agreements to assure maximum utilization of existing screening. diagnostic, and treatment services provided by other public and voluntary agencles such as child health clinics, OEO Neighborhood Health Centers, day care centers, nursery schools, school health programs, family planning clinics, maternity clinics, and similar faclitics;

(iv) That early and periodic screening and diagnosis to ascertain physical and mental defects, and treatment of conditions discovered within the limits of the State plan on the amount, duration, and scope of care and services, will be avaliable to all eligible individuals under 21 years of age; and that, in addition, eyeglasses, hearing aids, and other kinds of treatinent for visual and hearing defects, and at least such dental care as is necessary for relief of pain and infection and for restoration of teeth and

maintenance of dental health, will be available, whether or not otherwise included under the State plan, subject, however, to such utilization controls as may be imposed by the State agency. See $205.146(c) of this chapter relating to reduction in Federal financial participation under title IV-A of the Act for failure to provide early and periodic screening, diagnosis, and treatment of children.

(4) Provide for the inclusion of home health services which, as a minimum, shall include nursing services, home health aide services, and medical supplies, equipment and appliances, as specified in paragraph (b) (7) of this section. Under this requirement, home health services must be provided to all categorically needy individuals 21 years of age or over; to all categorically needy individuals under 21 years of age if the State plan provides for skilled nursing facility services for such individuals; and to all corresponding groups of medically needy individuals to whom skilled nursing facility services are available under the plan. Eligibility of any individual to receive home health services available under the plan shall not depend upon his need for, or discharge from, institutional

care.

(5) (1) Specify the amount and/or duration of cach item of medical and remedial care and services that will be provided to the categorically necdy and to the medically needy, if the plan includes this latter group. Such items must be sufficient in amount, duration and scope to reasonably achieve their purposc. With respect to the required scrvices for the categorically needy (subparagraph (1) of this paragraph) and the medically recdy (subparagraph (2) of this paragraph), the State may not arbitrarily deny or reduce the amount, duration, or scope of, such services to an otherwise eligible individual solely because of the diagnosis, type of illness or condition. Appropriate limits may bo placed on services based on such criteria as medical necessity or those contained in utilization or medical review pro-. oedures.

(i) Specify that there will be provision for assuring necessary transportation of recipients to and from providers of services and describe the methods that will be used.

(6) Provide that the medical and remedial care and services niade available to any categorically needy individual included under the plan will not be less in amount, duration, or scope than those made available to other individuals included under the program, except that:

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