ported by medical bills for services provided under the plan.

[34 F.R. 1397, Jan. 29, 1969]

§ 249.33 Standards for payment for skilled nursing home care.

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

(1) Provide that any skilled nursing home (see § 249.10 (b) (4) (i) of this part) receiving payments under the plan must:

(i) Supply to the licensing agency of the State full and complete information, and promptly report any changes which would affect the current accuracy of such information, as to the identity

(a) of each person having (directly or indirectly) an ownership interest of 10 percentum or more in such skilled nursing home,

(b) In case a skilled nursing home is organized as a corporation, of each officer and director of the corporation, and

(c) In case a skilled nursing home is organized as a partnership, of each partner;

(ii) Have and maintain an organized nursing service, as defined in paragraph (b) of this section, for its patients which is under the direction of a professional registered nurse who is employed fulltime by such skilled nursing home, and which is composed of sufficient nursing and auxiliary personnel to provide adequate and properly supervised nursing services for such patients during all hours of each day and all days of each week;

(iii) Make satisfactory arrangements, as defined in paragraph (b) of this section, for professional planning and supervision of menus and meal service for patients for whom special diets or dietary restrictions are medically prescribed;

(iv) Have satisfactory policies and procedures, as defined in paragraph (b) of this section;

(a) Relating to the maintenance of medical records on each patient of the skilled nursing home;

(b) Relating to dispensing and administering of drugs and biologicals;

(c) To assure that each patient is under the care of a physician;

(d) To assure that adequate provision is made for medical attention to any patient during emergencies;

(v) Have arrangements, as defined in paragraph (b) of this section, with one or more general hospitals under which

such hospital or hospitals will provide needed diagnostic and other services to patients of such skilled nursing home, and under which such hospital or hospitals agree to timely acceptance, as patients thereof, of acutely ill patients of such skilled nursing home who are in need of hospital care. The single State agency, however, may waive this requirement wholly or in part with respect to any skilled nursing home which meets all other requirements and is unable to effect such an arrangement with a hospital, as provided in paragraph (c) of this section;

(vi) Meet conditions relating to environment and sanitation, as specified in paragraph (b) (9) of this section, applicable to extended care facilities under title XVIII of the Social Security Act. The single State agency, however, may waive for such periods and under such conditions as the approved plan provides any requirement imposed by paragraph (b) (9) in accordance with the regulations set forth in paragraph (c) of this section;

(vii) Meet (after December 31, 1969) such provisions of the Life Safety Code of the National Fire Protection Association (21st Edition, 1967) as are applicable to nursing homes; except that the State agency may waive in accordance with regulations set forth in paragraph (c) of this section for such periods as it deems appropriate, specific provisions of such code, which if rigidly applied, would result in unreasonable hardship upon a nursing home, but only if such agency makes a determination (and keeps a written record setting forth the basis of such determination) that such waiver will not adversely affect the health and safety of the patients of such skilled nursing home; and except that the requirements of this subdivision need not apply in any State if the Secretary finds that in such State there is in effect a fire and safety code, imposed by State law, which adequately protects patients in nursing homes.

(2) Provide and specify the methods and procedures which assure that:

(i) The single State agency will, prior to execution of an agreement with any facility for provision of skilled nursing home care and making payments under the plan,

(a) Obtain sufficient evidence through survey arrangements with the State licensing authority or with the agency

of the State designated pursuant to section 1864 of the Social Security Act, that the facility

(1) Meets the requirement of subparagraph (1) of this paragraph; or

(2) Is a participating provider of extended care under title XVIII of the Social Security Act, and in addition meets the requirements of subdivisions (i), (v) and (vii) of such subparagraph (1); or

(b) Otherwise obtain sufficient evidence that the facility meets the requirements of such subparagraph (1); Provided, however, That if the single State agency elects not to use the services of the State licensing authority or the agency of the State designated pursuant to section 1864 of the Social Security Act, a written justification is submitted to the Administrator, Social and Rehabilitation Service that such election is not inconsistent with efficiency and economy of administration.

(ii) The single State agency will:

(a) Review information contained in reports of medical review teams on inspections made pursuant to State plan provisions under section 1902(a)(26) of the Social Security Act;

(b) Review statements obtained by the appropriate State agency from each skilled nursing home, on forms provided by such agency, setting forth (from payroll records) the average numbers and types of personnel (in full-time equivalents) on each shift during at least 1 week of each quarter, such week to be selected by the survey agency and to occur irregularly in each quarter of the year;

(c) Evaluate such statements to determine that requirements relating to personnel were or were not met during any quarter in which payment is being requested;

(iii) Beginning January 1, 1970, onsite inspection by qualified personnel will be made at least once during the term of an agreement, or more frequently if there is a question of compliance, and the single State agency will review the information thus obtained, except that this requirement may be deemed to be met for skilled nursing homes also certified to participate as extended care facilities under title XVIII of the Social Security Act;

(iv) The single State agency agreement with a facility for payments under the plan may not exceed a period of 1 year. Execution of a new agreement shall

be contingent upon a determination of compliance with the provisions of subparagraph (1) of this paragraph except that:

(a) In the case of any skilled nursing home determined or certified to be in substantial compliance (i.e., is in compliance except for deficiencies) with the requirements of such subparagraph (1), the single State agency may enter into an agreement with such skilled nursing home for the provision of services and making of payments under the plan for a period not to exceed 6 months provided that on the basis of documented evidence derived from a survey the single State agency finds that:

(1) There is a reasonable prospect that the deficiencies can be corrected within 6 months and the skilled nursing home provides in writing a plan acceptable to the single State agency for so doing;

(2) The deficiencies noted individually or in combination, do not jeopardize the health and safety of the patients and a written justification of such a finding is maintained on file by the appropriate State agency;

And provided further, That

(3) No more than two successive agreements for 6 months are executed with any skilled nursing home having deficiencies, and no second agreement is executed if any of the deficiencies existing are the same as those which occasioned the prior agreement unless the single State agency finds on the basis of documented evidence derived from a survey that the facility has made substantial effort and progress in correcting such deficiencies;

(b) Notwithstanding the foregoing provisions, in the case of skilled nursing homes certified with deficiencies as extended care facilities under the provisions of title XVIII of the Social Security Act, the term of agreements may extend until 90 days after the next inspection scheduled, as required, for extended care facility certification.

For the purposes of this subdivision (iv), waivers granted pursuant to paragraph (a) (1) (v)-(vii) and paragraph (c) of this section are not considered deficiencies.

(v) All information and reports used in determining whether a skilled nursing home meets the requirements set forth in subparagraph (1) of this paragraph are maintained on file for a period of at least

3 years by the appropriate State agency for ready access by the Department of Health, Education, and Welfare; and

(a) Copies of reports of inspection made on or after January 1, 1970, are completed by the inspector(s) surveying the premises with notations indicating whether each requirement for which inspection is made, is or is not satisfied, with documentation of deficiencies;

(b) Copies of official notices of waiver of any requirement imposed pursuant to subparagraph (1)(vii) of this paragraph and regulations pertaining thereto are on file;

(vi) Facilities which do not qualify under this section are not recognized as skilled nursing homes for purposes of payment under title XIX of the Act.

(b) Definition of terms. For purposes of paragraph (a) (1) of this section the following definitions apply:

(1) Organized nursing service. The term "organized nursing service" means that:

(i) Nursing services are under the direction of a director of nursing service who is a professional registered nurse and who:

(a) Is employed full-time in the facility, devotes her full-time to supervising the nursing service, and is on duty during the day shift;

(b) Is qualified by education, training or experience for supervisory duties; (c) Is responsible to the administrator for the selection, assignment, and direction of the activities of nursing service personnel;

(d) Is responsible to the administrator for development of standards, policies, and procedures governing skilled nursing care and for assuring that such standards, policies and procedures are observed;

(ii) There is on duty at all times and in charge of nursing activities at least one professional registered nurse or licensed practical (or vocational) nurse who is a graduate of a State-approved school of practical nursing, or who is found by the appropriate State licensing authority for nurses on the basis of the individual's education and formal training to have background considered to be equivalent to graduation from a State's approved school of practical nursing except that: (a) In those instances in which a licensed practical serving charge nurse is not a graduate of an approved school and does not possess background determined to be equivalent

nurse

as

but was successfully discharging the responsibilities of a charge nurse on July 1, 1967, such nurse may continue to be employed in this capacity until July 1, 1970, but after that date only if she has been found by the appropriate State licensing authority to have completed training equivalent to graduation from a State-approved school of practical nursing; and

(b) In the case of institutions for the mentally retarded or distinct parts of such institutions which are certified as skilled nursing homes, other categories of licensed personnel with special training in the care of such patients may serve as charge nurse: Provided, That such person is licensed by the State in such category following completion of a course of training which includes at least the number of classroom and practice hours in all of the nursing subjects included in the program of a State approved school of practical (or vocational) nursing as evidenced by a report to the single State agency by the agency or agencies of the State responsible for the licensure of such personnel comparing the courses in the respective curricula.

(iii) Lines of administrative and supervisory responsibility are clearly established in writing, and are known to all members of the nursing staff and to appropriate personnel in other units of the facility;

(iv) Duties are clearly defined and assigned to staff members consistent with the level of education, preparation, experience, and licensing of each.

(v) There are written patient-care policies and procedures governing skilled nursing care and related services, including restorative services, and staff members are familiar with them.

(2) Nursing and auxiliary personnel. (i) Nursing personnel means professional registered nurses and licensed practical (or vocational) nurses holding valid and current licenses as required by State law and performing duties directly related to providing nursing services to patients.

(ii) Auxiliary personnel includes nurses aides, orderlies, attendants, and ward clerks performing duties not constituting the practice of nursing as defined under State law.

sonnel are determined by the number of patients and their particular needs in accordance with accepted policies of effective nursing care and guidelines issued by the Social and Rehabilitation Service;

(ii) Nursing and auxiliary personnel are employed and assigned on the basis of their experience or qualifications to perform designated duties;

(iii) The amount of nursing time is sufficient to assure that each patient:

(a) Receives treatments, medications, and diet as prescribed;

(b) Receives proper care to prevent decubiti and is kept comfortable, clean, and well-groomed;

(c) Is protected from accident and injury by the adoption of appropriate safety measures;

(d) Is encouraged to perform out-ofbed activities as permitted;

(e) Receives assistance to maintain optimal physical and mental function.

(4) Professional planning and supervision of menus and meal service. The phrase "professional planning and supervision," when used in relation to menus and meal service for patients for whom special diets or dietary restrictions are medically prescribed means that:

(i) Menus are planned and supervised by professional personnel meeting the following qualifications:

(a) A dietitian who meets the American Dietetic Association's standards for qualification as a dietitian; or

(b) A graduate holding at least a bachelor's degree from a university program with major study in food and nutrition; or

(c) A trained food service supervisor, an associate degree dietary technician, or a professional registered nurse, with frequent and regularly scheduled consultation from a dietitian or nutritionist meeting the qualifications stated in subdivisions (a) and (b) of this subparagraph (4) (i);

(ii) Special and restricted diet menus are kept on file for at least 30 days, notations are made of any substitutions or variations in the meal actually served, and the patients to whom the diets were actually served are identified in the dietary records;

(iii) Procedures are established and regularly followed which assure that the serving of meals to patients for whom special or restricted diets have been medically prescribed is supervised and their acceptance by the patient is ob

served and recorded in the patient's medical record.

(5) Satisfactory policies and procedures relating to maintenance of medical records. Satisfactory policies and procedures relating to the maintenance of medical records means the standards set forth in 20 CFR 405.1132 pertaining to extended care facilities under title XVIII.

(6) Satisfactory policies and procedures relating to dispensing and administering of drugs and biologicals. Satisfactory policies and procedures relating to dispensing and administering of drugs and biologicals means the standards set forth in 20 CFR 405.1127 pertaining to extended care facilities under title XVIII.

(7) Satisfactory policies and procedures relating to physician coverage. Satisfactory policies and procedures relating to physician coverage and emergency medical attention means the standards set forth in 20 CFR 405.1123 pertaining to extended care facilities under title XVIII.

(8) Arrangements with one or more general hospitals. Arrangements with one or more general hospitals means:

(i) Written agreements providing a basis for effective working arrangements under which inpatient hospital care is available promptly to the skilled nursing home's patients when needed, which include as a minimum:

(a) Procedures for transfer of acutely ill patients to the hospital ensuring timely admission,

(b) Provisions for continuity in the care of the patient and for the transfer of pertinent medical and other information between the skilled nursing home and the hospital.

(ii) Written agreements containing provisions for the prompt availability of diagnostic and other medical services.

(9) Conditions relating to environment and sanitation. Conditions relating to environment and sanitation applicable to extended care facilities under title XVIII means standards set forth in 20 CFR 405.1125 (i), and 405.1134, 405.1135, and 405.1136.

(c) Conditions under which the single State agencies may waive certain requirements. (1) The requirements for arrangements with one or more general hospitals may be waived wholly or in part if by reason of remote location or other good and sufficient reason a skilled

nursing home is unable to effect such an arrangement with a hospital. However, this requirement may not be waived in whole if it can be satisfied in part. A finding of remote location or other good and sufficient reason may be made when the single State agency finds that:

(i) There is no general hospital serving the area in which the skilled nursing home is located; or

(ii) There are one or more general hospitals serving the area and the skilled nursing home has attempted in good faith and has exhausted all reasonable possibilities to enter into an agreement with such hospital or hospitals, and

(a) The nursing home has provided copies of letters, records of conferences, or other evidence to support its claim that it has attempted in good faith to enter into an agreement, and

(b) Hospitals in the area have, in fact, refused to enter into an agreement with the skilled nursing home in question.

(2) The single State agency may waive the application to a skilled nursing home of one or more specific provisions of 20 CFR 405.1125 (i), 405.1134, 405.1135, or 405.1136 or one or more specific provisions of the fire and safety code applied pursuant to paragraph (a) (1) (vii) of this section if it finds on the basis of documented evidence derived from a survey that:

(i) Such provision(s), if rigidly applied, would result in unreasonable hardship upon the skilled nursing home;

(ii) The waiver of the specific provision(s) does not adversely affect the health and safety of the patients in the facility and a written justification of such determination is maintained on file;

(iii) Where structural changes in the facility are necessary to meet a provision, the change is of such magnitude as to be infeasible, or economically impracticable;

delay in making such changes would not adversely affect the health and safety of patients; and an explanation of this finding is maintained on file;

and upon assurance that:

(iv) The conditions of waiver in subdivisions (i), (ii), and (iii) of this subparagraph are redetermined at the time of each survey and written evidence of such redetermination is maintained on file;

(v) The waiver of requirements is re

scinded at any time any of the conditions of subdivisions (i), (ii), and (iii) of this subparagraph are found no longer to apply.

(d) Federal financial participation. (1) Federal financial participation is available at 75 percentum in expenditures of the single State agency for compensation (or training) of its skilled professional medical personnel and staff directly supporting such personnel, which are necessary to carry out these regulations.

(2) Federal financial participation at applicable rates also is available for the single State agency to enter into a written contract (under the supervision of the Medical Assistance Unit) with the State licensing authority, the agency of the State designated pursuant to section 1864 of the Social Security Act or other appropriate State agencies providing for at least:

(i) On-site surveys and resurveys of skilled nursing homes applying to participate or participating as providers of service under the medical assistance plan to be performed at appropriate intervals by properly qualified personnel,

(ii) Timely furnishing to the single State agency of all information and records herein required, and

(iii) Methods and procedures acceptable to the Secretary for determining an agency's expenditures in which Federal financial participation is available. Such Federal financial participation is available only for those expenditures of the State licensing authority or other appropriate State agencies which are not attributable to the overall cost of meeting responsibilities under State law and regulations for establishing and maintaining standards but which are necessary and proper for carrying out these regulations. (Sec. 1092 (a) (28), 81 Stat. 906; 42 U.S.C. 1396a (a) (28)) [35 F.R. 6792, Apr. 29, 1970] § 249.40 Cost sharing and similar charges; State plan requirements.

A State plant for medical assistance under title XIX of the Social Security Act must:

(a) Provide that no deduction, cost sharing, enrollment fee, premium, or similar charge, with respect to any medical or remedial care and services furnished under the plan, will be imposed on any categorically needy individual.

(b) If any deduction, cost sharing, enrollment fee, premium, or similar charge,