Utah Administrative Code

The Utah Administrative Code is the body of all effective administrative rules as compiled and organized by the Division of Administrative Rules (see Subsection 63G-3-102(5); see also Sections 63G-3-701 and 702).

NOTE: For a list of rules that have been made effective since April 1, 2019, please see the codification segue page.

NOTE TO RULEFILING AGENCIES: Use the RTF version for submitting rule changes.


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

Rule R414-502. Nursing Facility Levels of Care.

As in effect on April 1, 2019

Table of Contents

R414-502-1. Introduction and Authority.

This rule defines the levels of care provided in nursing facilities.

R414-502-2. Definitions.

The definitions in Section R414-1-2 and Section R414-501-2 apply to this rule.

R414-502-3. Approval of Level of Care.

(1) The Department shall document that at least two of the following factors exist when it determines whether an applicant has mental or physical conditions that require the level of care provided in a nursing facility or equivalent care provided through a Medicaid Home and Community-Based Waiver program:

(a) Due to diagnosed medical conditions, the applicant requires substantial physical assistance with daily living activities above the level of verbal prompting, supervising, or setting up;

(b) The attending physician has determined that the applicant's level of dysfunction in orientation to person, place, or time requires nursing facility care; or equivalent care provided through a Medicaid Home and Community-Based Waiver program ; or

(c) The medical condition and intensity of services indicate that the care needs of the applicant cannot be safely met in a less structured setting, or without the services and supports of a Medicaid Home and Community-Based Waiver program.

(2) The Department shall determine whether at least two of the factors described in Subsection R414-502-3(1) exist by reviewing the following clinical documentation:

(a) A current history and physical examination completed by a physician;

(b) A comprehensive resident assessment completed, coordinated and certified by a registered nurse;

(c) A social services evaluation that meets the criteria in 42 CFR 456.370 and completed by a person licensed as a social worker, or higher degree of training and licensure;

(d) A written plan of care established by a physician;

(e) A physician's written certification that the applicant requires nursing facility placement; and

(f) Documentation which indicates that all less restrictive alternatives or services to prevent or defer nursing facility care have been explored.

(3) If the Department finds that at least two of the factors described in Section R414-502-3(1) exist, the Department shall determine whether the applicant meets nursing facility level of care and is medically-approved for Medicaid reimbursement of nursing facility services or equivalent care provided through a Medicaid Home and Community-Based Waiver program. Meeting medical eligibility for nursing facility services does not guarantee Medicaid payment. Financial eligibility and other Home and Community-Based Waiver targeting criteria shall apply.

R414-502-4. Approval of Differential Levels of Care.

The Department shall pay nursing facilities a rate differential for residents who meet nursing facility level of care and any of the criteria listed in Sections R414-502-5 through R414-502-7.

R414-502-5. Criteria for Intensive Skilled Care.

A nursing facility must demonstrate that the applicant meets the following criteria before the Department may authorize Medicaid reimbursement for intensive skilled care:

(1) The applicant meets the need for skilled services provided by a nursing facility certified pursuant to 42 CFR 409.20 through 409.35, or a swing bed hospital approved by the Centers for Medicare and Medicaid Services to furnish skilled nursing facility care in the Medicare program.

(2) The following routine skilled care does not qualify as intensive skilled care in making a determination under Section R414-502-5:

(a) Skilled nursing services described in 42 CFR 409.33(b);

(b) Skilled rehabilitation services described in 42 CFR 409.33(c);

(c) Routine monitoring of medical gases after a therapy regimen;

(d) Routine enteral tube and gastronomy feedings; and

(e) Routine isolation room and techniques.

(3) The applicant has exhausted Medicare benefits or has been denied by Medicare for other reasons other than level of care requirements.

(4) The applicant requires and receives at least five additional hours of direct licensed professional nursing care daily, including a combination of specialized care and services, and assessment by a registered nurse and 24-hour observation.

(5) The applicant meets criteria for intensive skilled care if the attending physician makes any one of the following determinations:

(a) There is no reasonable expectation that the applicant will benefit further from any care and services available in an acute care hospital that are not available in a nursing facility; or

(b) The applicant's condition requires physician follow-up at the nursing facility at least once every 30 days;

(c) An interdisciplinary team may indicate a therapeutic leave of absence from the nursing facility is appropriate either to facilitate discharge planning or to enhance the applicant's medical, social, educational, and habilitation potential; and

(d) Except in extraordinary circumstances, the applicant has been hospitalized immediately before admission to the nursing facility.

(6) The applicant has continuously required skilled care, either through Medicare or Medicaid, since admission to the nursing facility.

(7) If the attending physician has written and signed progress notes at the time of each physician visit that reflect the current medical condition of the applicant.

(8) An applicant who was previously approved for intensive skilled care and later downgraded to a lower care level may return to intensive skilled care instead of being hospitalized in an acute care setting if :

(a) A complication occurs that involves the condition for which the applicant was originally approved for intensive skilled care; and

(b) It has been less than 30 days since the termination of the previous intensive skilled care.

R414-502-6. Criteria for Behaviorally Complex Program.

In order for the Department to authorize Medicaid coverage for the Behaviorally Complex Program, a nursing facility must:

(1) Demonstrate that the resident has a history of persistent disruptive behavior that is not easily altered and requires an increase in resources from nursing facility staff as documented by one or more of the following behaviors:

(a) The resident engages in wandering behavior with no rational purpose, is oblivious to his needs or safety, and places his self and others at significant risk of physical illness or injury;

(b) The resident engages in verbally abusive behavior where he threatens, screams or curses at others;

(c) The resident presents a threat of hitting, shoving, scratching, or sexually abusing other residents.

(d) The resident engages in socially inappropriate and disruptive behavior by doing of one of the following:

(i) Makes disruptive sounds, noises and screams;

(ii) Engages in self-abusive acts;

(iii) Inappropriate sexual behavior;

(iv) Disrobes in public;

(v) Smears or throws food or feces;

(vi) Hoards; and

(vii) rummages through others belongings.

(e) The resident refuses assistance with medication administration or activities of daily living ; or

(f) The resident's behavior interferes significantly with the stability of the living environment and interferes with other residents' ability to participate in activities or engage in social interactions.

(2) Demonstrate that an appropriate behavioral intervention program has been developed for the resident.

(a) All behavior intervention programs shall:

(b) Be a precisely planned systematic application of the methods and experimental findings of behavioral science with the intent to reduce observable negative behaviors;

(c) Incorporate processes and methodologies that are the least restrictive alternatives available for producing the desired outcomes;

(d) Be conducted following only identification and, if feasible, remediation of environmental and social factors that likely precipitate or reinforce the inappropriate behavior;

(e) Incorporate a process for identifying and reinforcing a desirable replacement behavior;

(f) Include a program data sheet; and

(g) Include a behavior baseline profile that consists of all of the following:

(i) Applicant name;

(ii) Date, time, location, and specific description of the undesirable behavior;

(iii) Persons and conditions present before and at the time of the undesirable behavior;

(iv) Interventions for the undesirable behavior and their results; and

(v) Recommendations for future action.

(h) The interdisciplinary team shall include a behavior intervention plan that consists of all of the following:

(i) The applicant's name, the date the plan is prepared, and when the plan will be used;

(ii) The objectives stated in terms of specific behaviors;

(iii) The names, titles and signatures of persons responsible for conducting the plan; and

(iv) The methods and frequency of data collection and review.

R414-502-7. Criteria for Specialized Rehabilitative Services for Residents with Intellectual Disabilities.

A nursing facility must demonstrate that the applicant meets the following criteria before the Department may authorize Medicaid coverage for an applicant for specialized rehabilitative services:

(1) The nursing facility must arrange for specialized rehabilitative services for clients with intellectual disabilities who are residing in nursing homes;

(2) The individual must meet the criteria for Nursing Facility III Level of Care (excluding residents who receive the intensive skilled or behaviorally complex rate);

(3) The individual must have a Preadmission Screening and Resident Review (PASRR) Level II Evaluation that indicates the resident needs specialized rehabilitation. The nursing facility must assure that needed services are provided under the written order of a physician by qualified personnel; and

(4) The nursing facility must document the need for specialized rehabilitative services in the resident's comprehensive plan of care.

(5) Specialized rehabilitative services include but are not limited to:

(a) Medication management and monitoring effectiveness and side effects of medications prescribed to change inappropriate behavior or to alter manifestations of psychiatric illness;

(b) The provision of a structured environment to include structured socialization activities to diminish tendencies toward isolation and withdrawal;

(c) Development, maintenance, and implementation of programs designed to teach individuals daily living skills that include but are not limited to:

(i) Grooming and personal hygiene;

(ii) Mobility;

(iii) Nutrition, health and self-feeding;

(iv) Medication management;

(v) Mental health education;

(vi) Money management;

(vii) Maintenance of the living environment; and

(viii) Occupational, speech, and physical therapy obtained from providers outside the nursing facility who specialize in providing services for persons with intellectual disabilities at the intensity level necessary to attain the desired goals of independence and self-determination.

(d) Formal behavior modification programs;

(e) Development of appropriate person support networks.

R414-502-8. Criteria for Intermediate Care Facility for Persons with Intellectual Disability.

An intermediate care facility for persons with intellectual disabilities (ICF/ID) must demonstrate that the applicant meets the following criteria before the Department may authorize Medicaid coverage for an individual who resides in an ICF/ID.

(1) The individual must have a diagnosis of:

(a) An intellectual disability in accordance with 42 CFR 483.102(b)(3); or

(b) A condition closely related to intellectual disability 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 intellectual disabilities. 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 cannot follow two-step instructions.

(c) Learning;

(i) The individual has a valid diagnosis of an intellectual disability 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, in the case of an adult, cannot 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) The capacity for independent living;

(i) The individual who is seven through 17 years of age cannot 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 18 years of age);

(i) The individual receives disability benefits, cannot 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. The child may satisfy this criteria if the child has been with an intellectual disability or a condition closely related to intellectual disability. 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 an intellectual disability, an individual must manifest the condition before the individual turns 22 years of age and the condition must be likely to continue. A diagnosis may qualify as a condition closely related to an intellectual disability only if the child meets the criteria defined in 42 CFR 435.1010. The following is a list of diagnoses the Department considers to be conditions closely related to an intellectual disability:

(a) Cerebral palsy. The Department does not require individuals to demonstrate an intellectual impairment for this diagnosis, but they must demonstrate they have functional limitations as described in Subsection R414-502-8(2);

(b) Epilepsy. The Department does not require individuals to demonstrate an intellectual impairment for this diagnosis, but they must demonstrate they have functional limitations as described in Subsection R414-502-8(2);

(c) Autism Spectrum Disorder. The Department requires an individual to meet the following criteria under this category:

(i) Persistent deficits in social communication and social interaction across contexts, not accounted for by general developmental delays, and manifests by all three of the following:

(A) Deficits in social-emotional reciprocity, ranging from abnormal social approach and failure of normal back and forth conversation through reduced sharing of interests, emotions, and affect and response to total lack of initiation of social interaction;

(B) Deficits in non-verbal communicative behaviors used for social interaction, ranging from poorly integrated verbal and non-verbal communication through abnormalities in eye contact and body language, or deficits in understanding and use of non-verbal communication to total lack of facial expression or gestures;

(C) Deficits in developing and maintaining relationships appropriate to developmental level (beyond those with caregivers), ranging from difficulties adjusting behavior to suit different social contexts through difficulties in sharing imaginative play, and in making friends to an apparent absence of interest in people.

(ii) Restricted, repetitive patterns of behavior, interests, or activities as manifested by at least two of the following:

(A) Stereotyped or repetitive speech, motor movements, or use of objects (such as simple motor stereotypies, echolalia, repetitive use of objects, or idiosyncratic phrases);

(B) Excessive adherence to routines, ritualized patterns of verbal or non-verbal behavior, or excessive resistance to change (such as motoric rituals, insistence on same route or food, repetitive questioning or extreme distress at small changes);

(C) Highly restricted, fixated interests with abnormal intensity or focus (such as strong attachment to or preoccupation with unusual objects, excessively circumscribed or perseverative interests);

(D) Hyper or hypo-reactivity to sensory input or unusual interest in sensory aspects of environment (such as apparent indifference to pain, heat and cold, adverse response to specific sounds or textures, excessive smelling or touching of objects, fascination with lights or spinning objects).

(iii) Symptoms must be present in early childhood (but may not become fully manifest until social demands exceed limited capacities).

(iv) Symptoms together limit and impair everyday functioning.

(d) Severe brain injury. May be the result of an acquired brain injury, traumatic brain injury, stroke, anoxia, meningitis;

(e) Fetal alcohol syndrome;

(f) Chromosomal disorders such as Down syndrome, fragile x syndrome, and Prader-Willi syndrome;

(g) Other genetic disorders. Examples include Williams syndrome, spina bifida, and phenylketonuria.

(5) The following conditions do not qualify as conditions closely related to intellectual disabilities. Nevertheless, the Department may consider a person with any of these conditions 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, a related condition that does not result in an intellectual impairment, developmental delay, or "at risk" designations;

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

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

(i) Neurological problems not associated with intellectual deficits. Examples include Tourette's syndrome, fetal alcohol effects, and non-verbal learning disability;

(j) Mild traumatic brain injury such as minimal brain injury and post-concussion syndrome.

(6) An individual who was admitted to an ICF/ID before August 27, 2009, is eligible for continued stay as long as the individual continues to meet the requirements in effect before that date. A resident who was admitted to an ICF/ID before August 27, 2009, is only required to meet the revised eligibility criteria when there is a break in stay wherein the individual resides in a setting that is not a Medicaid-certified ICF/ID nursing facility or hospital.

(7) Before admission to an ICF/ID, the facility must provide each potential resident with a two-sided fact sheet (Form IFS 10) that offers information about ICFs/ID and 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 legal representative, which verifies that the facility provided the Form IFS 10 before admission.

KEY

Medicaid

Date of Enactment or Last Substantive Amendment

October 11, 2012

Notice of Continuation

June 17, 2014

Authorizing, Implemented, or Interpreted Law

26-1-5; 26-18-3


Additional Information

Contact

For questions regarding the content or application of rules under Title R414, please contact the promulgating agency (Health, Health Care Financing, Coverage and Reimbursement Policy). A list of agencies with links to their homepages is available at http://www.utah.gov/government/agencylist.html or from http://www.rules.utah.gov/contact/agencycontacts.htm.