DAR File No. 32748

Health, Health Care Financing, Coverage and Reimbursement Policy

R414-502-8

Criteria for Intermediate Care Facility for the Mentally Retarded

NOTICE OF PROPOSED RULE

DAR File No.: 32748
Filed: 06/24/2009, 04:41
Received by: NL

RULE ANALYSIS

Purpose of the rule or reason for the change:

The purpose of this amendment is to increase the objectivity of eligibility criteria for admission into an Intermediate Care Facility for the Mentally Retarded (ICF/MR). The other purpose is to educate potential residents about available Medicaid services that will allow them to make informed decisions about which services best meet their unique needs.

Summary of the rule or change:

This amendment clarifies that individuals must have a qualifying diagnosis to be eligible for ICF/MR admission. It also clarifies ICF/MR criteria for individuals seven years of age and older. In addition, it provides a new list of criteria for conditions that are closely related to mental retardation, and includes a new requirement for an ICF/MR to provide potential residents with an informational fact sheet.

State statutory or constitutional authorization for this rule:

Sections 26-1-5 and 26-18-3

Anticipated cost or savings to:

the state budget:

There is no impact to the state budget because this amendment only clarifies existing ICF/MR criteria for potential residents. No change is expected in who will be determined to be eligible for service, by adopting these more objective criteria. There may be a small administrative savings by using these criteria by simplifying the decision-making process.

local governments:

There is no budget impact because local governments do not fund or provide Medicaid services to ICF/MR residents. No change is expected in who will be determined to be eligible for service, by adopting these more objective criteria.

small businesses and persons other than businesses:

There is no budget impact to other persons and small businesses because this amendment only clarifies existing ICF/MR criteria for potential residents. No change is expected in who will be determined to be eligible for service, by adopting these more objective criteria. There may be a small administrative savings by using these criteria by simplifying the decision-making process.

Compliance costs for affected persons:

There are no compliance costs because this amendment only clarifies existing ICF/MR criteria for potential residents. No change is expected in who will be determined to be eligible for service, by adopting these more objective criteria. There may be a small administrative savings by using these criteria by simplifying the decision-making process.

Comments by the department head on the fiscal impact the rule may have on businesses:

Using more objective criteria that reflects current practice for determining who is eligible for ICF/MR services should not change the current eligibility practice and no fiscal impact on business is expected. David N. Sundwall, MD, Executive Director

The full text of this rule may be inspected, during regular business hours, at the Division of Administrative Rules, or at:

Health
Health Care Financing, Coverage and Reimbursement Policy
CANNON HEALTH BLDG
288 N 1460 W
SALT LAKE CITY UT 84116-3231

Direct questions regarding this rule to:

Craig Devashrayee at the above address, by phone at 801-538-6641, by FAX at 801-538-6099, or by Internet E-mail at cdevashrayee@utah.gov

Interested persons may present their views on this rule by submitting written comments to the address above no later than 5:00 p.m. on:

08/14/2009

This rule may become effective on:

08/21/2009

Authorized by:

David N. Sundwall, Executive Director

R414. Health, Health Care Financing, Coverage and Reimbursement Policy.

R414-502. Nursing Facility Levels of Care.

R414-502-8. Criteria for Intermediate Care Facility for [the Mentally Retarded]Persons with Mental Retardation.

The following criteria must be met before the [d]Department may authorize Medicaid coverage for an [applicant]individual in an intermediate care facility for [the mentally retarded]persons with mental retardation:

[(1) The applicant is mentally retarded, except that even if the applicant is mentally retarded, he will not qualify for care in an intermediate care facility for the mentally retarded if the applicant is ambulatory, continent, only moderately or mildly mentally retarded without complicating conditions, is in need of less than weekly intervention by or under the supervision of a health care professional or trained habilitative personnel, and is capable of daily attendance in work settings or day treatment. Day treatment is training and habilitation services outside the nursing facility that are:

(a) intended to aid the self-help and self-sufficiency skill development of a mentally retarded resident;

(b) sufficient to meet the specialized rehabilitative service requirements of 42 CFR 435.1009 for the mentally retarded; and

(c) coordinated with the active treatment program of the intermediate care facility for the mentally retarded.

(2) The applicant has at least one of the following conditions:

(a) Is severely or profoundly retarded;

(b) Is under six years of age;

(c) Is severely multiply handicapped in that he has at least two of the conditions identified in the definition of mental retardation found in the Diagnostic and Statistical Manual of Mental Disorders IV, Revised, 1994;

(d) More than once per week is physically aggressive or assaultive towards himself or others;

(e) Is a security risk or wanders away at least once per week;

(f) Is diagnosed as severely hyperactive;

(g) Demonstrates psychotic-like behavior; or

(h) Has conditions requiring at least weekly intervention by or under the supervision of a health care professional or trained habilitative personnel.](1) The individual must have a diagnosis of:

(a) mental retardation in accordance with 42 CFR 483.102(b)(3); or

(b) a condition closely related to mental retardation in accordance with 42 CFR 435.1010.

(2) For individuals seven years of age and older, the presence of a diagnosis alone is not sufficient to qualify for admission to an intermediate care facility for persons with mental retardation. The diagnosis identified in Subsection R414-502-8(1) must result in documented substantial functional limitations in three or more of the following seven areas of major life activity that include:

(a) self care;

(i) the individual requires assistance, training and supervision to eat, dress, groom, bathe, or use the toilet;

(b) receptive and expressive language;

(i) the individual lacks functional communication skills, requires the use of assistive devices to communicate, does not demonstrate an understanding of requests, or is unable to follow two-step instructions;

(c) learning;

(i) the individual has a valid diagnosis of mental retardation based on criteria found in the Diagnostic and Statistical Manual of Mental Disorders (DSM), Fourth Edition, 1994);

(d) mobility;

(i) the individual requires the use of assistive devices to be mobile and cannot physically self-evacuate from a building during an emergency without an assistive device;

(e) self-direction;

(i) the individual is seven through 17 years of age and significantly at risk in making age appropriate decisions, or an adult is unable to provide informed consent for medical care, personal safety, or for legal, financial, rehabilitative, and residential issues, and has been declared legally incompetent. The individual is a danger to himself or others without supervision;

(f) capacity for independent living;

(i) the individual who is seven through 17 years of age is unable to locate and use a telephone, cross the street safely, or understand that it is unsafe to accept rides, food or money from strangers, or an adult who lacks basic skills in the areas of shopping, preparing food, housekeeping, or paying bills;

(g) economic self-sufficiency; (not applicable to children under age 18);

(i) the individual receives disability benefits, is unable to work more than 20 hours a week, or is paid less than minimum wage without employment support.

(3) The Department considers a child under the age of seven to be at risk for functional limitation in three or more areas of major life activity, if the child has a diagnosis of mental retardation or a condition closely related to mental retardation. The Department does not require separate documentation of the limitations defined in Subsection R414-502-8(2) until the child turns seven years of age.

(4) To meet the criteria of a condition closely related to mental retardation, an individual must manifest the condition before the age of 22 and the condition must be likely to continue. A diagnosis will qualify as a condition closely related to mental retardation only if the criteria as defined in 42 CFR 435.1010 is met. The following is a list of diagnoses that the Department considers to be conditions closely related to mental retardation. It includes:

(a) cerebral palsy (the Department does not require individuals to demonstrate an intellectual impairment for this diagnosis, but they must demonstrate that they have functional limitations as described in Subsection R414-502(2));

(b) epilepsy (the Department does not require individuals to demonstrate an intellectual impairment for this diagnosis, but they must demonstrate that they have functional limitations as described in Subsection R414-502(2));

(c) autism or autistic disorder, childhood disintegrative disorder, Rett syndrome, and pervasive developmental disorder, not otherwise specified (only if "atypical autism");

(d) severe brain injury (acquired brain injury, traumatic brain injury, stroke, anoxia, meningitis);

(e) fetal alcohol syndrome;

(f) chromosomal disorders (Down syndrome, fragile x syndrome, Prader-Willi syndrome);

(g) other genetic disorders (Williams syndrome, spina bifida, phenylketonuria).

(5) The following conditions do not qualify as conditions closely related to mental retardation. Nevertheless, a person with any of these conditions is not disqualified if there is a simultaneous occurrence of a qualifying condition as cited in Subsection R414-502-8(1)(a) and (b):

(a) learning disability;

(b) behavior or conduct disorders;

(c) substance abuse;

(d) hearing impairment or vision impairment;

(e) mental illness that includes psychotic disorders, adjustment disorders, reactive attachment disorders, impulse control disorders, and paraphilias;

(f) borderline intellectual functioning, developmental disability that does not result in an intellectual impairment, developmental delay, or "at risk" designations;

(g) physical problems (such as multiple sclerosis, muscular dystophy, spinal cord injuries, and amputations);

(h) medical health problems (such as cancer, acquired immune deficiency syndrome, and terminal illnesses);

(i) milder autism spectrum disorders (such as Asperger's disorder, and pervasive developmental disorder not otherwise specified if not "atypical autism");

(j) neurological problems not associated with intellectual deficits (such as Tourette's syndrome, fetal alcohol effects, and non-verbal learning disability;

(k) mild traumatic brain injury (such as minimal brain injury and post-concussion syndrome).

(6) Individuals who were admitted to an ICF/MR before August 27, 2009, are eligible for continued stay as long as they continue to meet the requirements in effect before that date. A resident who was admitted to an ICF/MR before August 27, 2009, is only required to meet the revised eligibility criteria when there has been a break in stay wherein the individual resided in a setting that is not a Medicaid certified ICF/MR, nursing facility, or hospital.

(7) Before admission to an ICF/MR, the facility must provide each potential resident with a two-sided fact sheet (Form IFS 10) that offers information about ICFs/MR as well as the Community Supports Waiver for People with Intellectual Disabilities and Other Related Conditions. Each resident's record must contain an acknowledgement (Form IFS 20) signed by the resident or the resident's legal representative, which verifies that the facility provided the Form IFS 10 before admission.

 

KEY: Medicaid

Date of Enactment or Last Substantive Amendment: [November 15, 2007]2009

Notice of Continuation: August 27, 2004

Authorizing, and Implemented or Interpreted Law: 26-1-5; 26-18-3[; 63-46a-7(1)(a)]