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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsJune 2016

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Delaware Health and Social Services ("Department") / Division of Medicaid and Medical Assistance (DMMA) initiated proceedings to amend the Delaware Title XIX Medicaid State Plan and the Division of Social Services Manual (DSSM) regarding Methods and Standards for Payment of Reserved Beds during Absence from Long-Term Care Facilities, specifically, standards for payment of reserved beds during absence from Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICF/IID). The Department's proceedings to amend its regulations were initiated pursuant to 29 Del.C. §10114 and its authority as prescribed by 31 Del.C. §512.
The Department published its notice of proposed regulation changes pursuant to 29 Del.C. §10115 in the April 2016 Delaware Register of Regulations, requiring written materials and suggestions from the public concerning the proposed regulations to be produced by May 1, 2016 at which time the Department would receive information, factual evidence and public comment to the said proposed changes to the regulations.
§1919(c)(2)(D) of the Social Security Act, Notice of bed hold policy and readmission
42 CFR §447.40, Payment for reserving beds in institutions
42 CFR §447.205, Public notice of changes in statewide methods and standards for setting payment rates
42 CFR §483.12, Admission, transfer and discharge rights
Payments for Reserving Beds in Institutions
In accordance with the federal public notice requirements established at Section 1902(a)(13)(A) of the Social Security Act and 42 CFR 447.205 and the state public notice requirements of Title 29, Chapter 101 of the Delaware Code, Delaware Health and Social Services (DHSS)/Division of Medicaid and Medical Assistance (DMMA) gives public notice and provides an open comment period for thirty (30) days to allow all stakeholders an opportunity to provide input to the coverage and payment methodology for reservation of beds in ICF/IID long-term care facilities. Comments were to be received by 4:30 p.m. on Monday May 2, 2016.
Federal Fiscal Year 20161

1

Agency Response: DMMA thanks the Council for its endorsement and offers the following responses to your observations and recommendations.
Agency Response: DMMA agrees that the reference citation was entered incorrectly under the Statutory Authority listing in the Summary of Proposal, despite being listed correctly in the Background. The correct citation will be listed in both places when the final regulation is published.
Agency Response: DMMA thanks the Council for its comment. However, no change was made as a result of this comment.
Third, waiver of the 18 day paid leave of absence limit can be obtained if the LTC facility applies and its medical director confirms medical necessity. This may be unduly limiting. It would be preferable to allow either the LTC facility or the resident [supported by his personal attending physician [16 Del.C. §1121(21)] to apply for a waiver since a resident’s view may be different than the facility’s view. CMS recognizes the divergence of interest in the context of transfers and discharges. See 42 C.F.R. §483.12(a)(3)(i); attached CMS Surveyor Guidance F201-203; and attached CMS proposed regulations, 80 Fed Reg. 42247-42249, 42254-42255. For example, the facility may prefer that the resident or resident’s family “private pay” for the period in excess of 18 days since that results in higher payment.
Agency Response: DMMA thanks the Council for its comment. However, no change was made as a result of this comment.
THEREFORE, IT IS ORDERED, that the proposed regulation to amend the Delaware Title XIX Medicaid State Plan and the Division of Social Services Manual (DSSM) regarding Methods and Standards for Payment of Reserved Beds during Absence from Long-Term Care Facilities, specifically, standards for payment of reserved beds during absence from Intermediate Care Facilities for Individuals with Intellectual Disabilities (ICF/IID), is adopted and shall be final effective June 11, 2016.
Payment will be made for reserving beds in long-term care (LTC) facilities for recipients during their temporary absence for the following purposes:
5. 2. For leaves of absence up to 18 eighteen (18) days per calendar year as provided for in the recipient's plan of care.
3. If a recipient's physical condition is being negatively impacted by their his or her emotional need to be in a family setting, prior approval may be obtained for a waiver of the 18-day eighteen-day leave of absence limitation (for other than acute care hospitalization) from the Title XIX Medical Consultant in order to allow the patient more time to visit with his or her family, as long as such absences are provided for in the recipient's written plan of care.
To obtain approval, a written request must be submitted by the nursing home long-term care facility to the Nursing Home Long-Term Care Coordinator and must include:
1. a. reason Reason for the request;
2. b. medical Medical summary;
3. c. statement Statement from the nursing home's LTC facility's medical director regarding the medical necessity of the patient being absent from the home facility in excess of 18 eighteen (18) days per year;
4. d. anticipated Anticipated frequency of absence.; and
e. Number of days the recipient was absent from the LTC facility during the previous six-month period.
20650 Temporary Absence from Nursing a Long-Term Care Facility
42 CFR §447.40
20650.1 20650.2 Temporary Absence from Nursing a Long-Term Care Facility for Reasons Other Than Hospitalization
20650.2.1 A recipient may be absent from the nursing a long-term care facility for reasons other than hospitalization for a period of 18 eighteen (18) days per year without interruption of payment to the nursing long-term care facility, as long as such absences are provided for in the recipient's plan of care.
20650.2.2 If a recipient's physical condition is being negatively impacted by his or her emotional need to be in a family setting, prior approval may be obtained for a waiver of the 18-day eighteen-day leave of absence limitation (for other than acute care hospitalization) from the Title XIX Medical Consultant in order to allow the patient more time to visit with his or her family.
To obtain approval, a written request must be submitted by the nursing long-term care facility to the Long-Term Care Coordinator and must include:
20650.2.2.1 reason Reason for the request;
20650.2.2.2 medical Medical summary;
20650.2.2.3 statement Statement from the nursing LTC facility's medical director regarding the medical necessity of the patient being absent from the nursing LTC facility in excess of 18 eighteen (18) days per year;
20650.2.2.4 anticipated Anticipated frequency of absence; and
20650.2.2.5 number Number of days the recipient was absent from the nursing LTC facility during the previous six month six-month period.
If the approval is given, the 18-day eighteen-day restriction will be waived for six (6) months from the date of approval. Any request for a waiver after the six month six-month limit must be resubmitted and approved for payments to be continued.
Last Updated: December 31 1969 19:00:00.
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