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Delaware General AssemblyDelaware RegulationsMonthly Register of RegulationsOctober 2014

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Delaware Health and Social Services ("Department") / Division of Medicaid and Medical Assistance (DMMA) initiated proceedings to amend to amend the Title XIX Medicaid State Plan regarding administration of the Medicaid Preadmission Screening and Resident Review (PASRR), specifically, Categorical Determinations and Specialized Services. The Department's proceedings to amend its regulations were initiated pursuant to 29 Delaware Code Section 10114 and its authority as prescribed by 31 Delaware Code Section 512.
The Department published its notice of proposed regulation changes pursuant to 29 Delaware Code Section 10115 in the August 2014 Delaware Register of Regulations, requiring written materials and suggestions from the public concerning the proposed regulations to be produced by August 31, 2014 at which time the Department would receive information, factual evidence and public comment to the said proposed changes to the regulations.
42 CFR 483 Subpart C, Preadmission Screening and Annual Review of Mentally Ill and Mentally Retarded Individuals
IMPORTANT NOTE: People first language is respectful of the person and should always be used when referencing an individual with intellectual and other developmental disabilities. Current federal law and regulations use the term "mentally retarded". DHSS/DMMA prefers to use the accepted term "individuals with intellectual disability" (ID) instead of "mental retardation." The term "intellectual disability" will be reflected on all applicable amended State plan and policy pages.
The serial prepositions (for from) are grammatically odd. SCPD suspects the term should be "for or from" an acute physical illness. DMMA may wish to review this sentence.
Agency Response: DMMA agrees with the comment and has amended the sentence by inserting the term "convalescent care", as follows: "X. Convalescent Care: NF services are needed for [convalescent care] from an acute physical illness which required hospitalization, and does not meet all the criteria for an exempt hospital discharge".
Second, in the past, there was considerable discussion of which agency issues the final PASRR decision. See e.g., 15 DE Reg. 86, 88, "Seventh" Paragraph (July 1, 2011). The proposed regulation would benefit from a clarifying amendment to avoid confusion. There is some "tension" between the recital that DSAMH/DDDS adopt "the final determination" versus the recital that DMMA issues the final determination. See Pars. 9 and 10 at p. 115. For example, Par. 9 could be revised as follows:
Agency Response: Under the proposed Regulations, page 115, #9, DMMA agrees to clarify that the determination is made by the CMS designated authority Divisions, DSAMH/DDDS, by changing the word "the" to "their". The sentence has been amended to read, as follows: "DSAMH/DDDS notifies DMMA of the[ir] final determination".
Third, it may not be intuitive that the final DMMA PASRR is appealable to DSS. See 16 DE Admin. Code 5001, Subsection 2.D; 5304; 5304.1; and 5401, Subsection 1.C.4. DMMA could consider amending Par. 10 on p. 115 as follows:
10. Final PASRR determinations will be issued by DMMA and are subject to 16 DE Admin. Code 5000.
Agency Response: DMMA agrees with the comment. Page 115, #10 is amended to read, as recommended: 10. Final PASRR determinations will be issued by DMMA [and are subject to 16 DE Admin Code 5000].
Agency Response: PASRR determinations made by the State mental health or intellectual disability authorities cannot be countermanded by the State Medicaid agency. DMMA will take into consideration your comments as the agency develops procedures for processing a PASRR-related Fair Hearings.
STATE: DELAWARE
Citation 4.39 Preadmission Screening and Annual Resident Review in Nursing 1902(a)(28)(D)(i), Facilities
483.100-138, and Section 1919e)(7)(B)(iii) of the Act.
(c) The State identifies Nursing Facility (NF) applicants and residents
(c)(d) The State does not claim as "medical assistance under
STATE: DELAWARE
(d)(e) With the exception of NF services furnished to certain long-term NF
but for whom NF is determined not to be a needed and appropriate
serious mental illness, intellectual disability or a related condition. The
State mental health and intellectual disability authorities assess
(e)(g) ATTACHMENT 4.39 Page 1 specifies the State's definition of
()(h) The State describes applies any categorical determinations it applies,
as specified in ATTACHMENT 4.39-A.
STATE: DELAWARE
STATE: DELAWARE
The following categories developed by the State mental health or intellectual/developmental disability authorities and approved by the State Medicaid Agency may be made applicable to individuals identified by PASRR Level I as possibly having serious mental illness/intellectual/developmental disability /related condition (MI/IDD/RC) when existing data on the individual appear to be current and accurate and are sufficient to allow the reviewer readily to determine that the individual fits the category. The data available includes physical, mental, and functional assessments as required by 42 CFR 483.132(c).
When existing data is not adequate, or any judgment is required about the presence of serious mental illness or intellectual/developmental disability, the individual is referred for individualized Level II evaluation. The State mental health or intellectual/developmental disability authority is responsible for: 1. assuring that the categorical determinations meet requirements; 2. assuring that the determinations are in the best interests of the residents; 3. retaining copies of the categorical evaluation and determination reports, and 4. maintaining a tracking system for all categorical determinations.
I. Categorical Determination that nursing facility (NF) placement is appropriate. (Level II Specialized Services evaluation and determination by the State Mental Health/ Intellectual Disabilities/ Developmental Disabilities Authorities (SMH/ID/DDA) is individualized. A new, individualized, Level II Resident Review is required if at any time the resident demonstrates need for services related to serious mental illness, intellectual disability, developmental disability, or a related condition, or the admission exceeds the specified time limit.)
STATE: DELAWARE
X Convalescent Care: NF services are needed for [convalescent care] from an acute physical illness which required hospitalization, and does not meet all the criteria for an exempt hospital discharge. (An exempt hospital discharge as specified in 42 CFR 483.106(b)(2) is not subject to Preadmission Screening, at State option.)
X Terminal Illness (as defined for hospice purposes at 42 CFR 418.3: a life expectancy of six (6) months or less if the illness runs its normal course). NF admission is not approved to a facility without a hospice contract unless terminal illness is documented and the individual waives a hospice contract.
Other category(s) defined by the State.
II. Categorical Determination that NF placement is appropriate, and that Specialized Services are not needed. (Determination that Specialized Services are needed is individualized, not categorical.)
X Medical Dependence: documented severe physical illness which results in a level of impairment documented to be so severe that the individual could not be expected to benefit from Specialized Services. For example: coma, ventilator dependence, functioning at a brain stem level, or diagnosis such as chronic obstructive pulmonary disease, Parkinson's disease, Huntington's disease, amyotrophic lateral sclerosis, and congestive heart failure 42 CFR 483.130 (c)(3)
Other category(s) defined by the State, in which a level of impairment is documented to be so severe that the individual could not be expected to benefit from Specialized Services.
STATE: DELAWARE
Time limit (optional)
III. Provisional admissions. Categorical Determination that NF placement is appropriate for a brief period. Option to also categorically determine by the SMH/ID/DDA (not Level I screeners) that Specialized Services are not needed because stay is expected to be brief and the individual does not have a history of need for intensive MI or ID/DD services. (Determination that Specialized Services (SS) are needed is individualized, not categorical.)
X Delirium: Provisional admission pending further assessment in case of where an accurate diagnosis cannot be made until the delirium clears.
X Emergency Situations: Provisional admission pending further assessment requiring protective services, with placement in the nursing facility not to exceed seven (7) days.
X Respite: Very brief and finite stays of up to a fixed number of days to provide to in-home caregivers to whom the individual with MI or ID/DD is expected to return following the brief NF stay.
IV. Categorical determination that Specialized Services are not needed. (Determination that Specialized Services are needed is individualized, not categorical. Determination by the State MH/ID/DD authority that NF placement is appropriate and is individualized.)
STATE: DELAWARE
X Dementia and Intellectual Disability/Developmental Disability (ID/DD). The State intellectual disability authority (not Level I screeners) makes categorical determinations that an individual with dementia in combination with intellectual disability or a related condition, does not need Specialized Services. The dementia is of a severity to affect the individual’s need for or ability to make use of Specialized Services.
1. The Division of Medicaid and Medical Assistance (DMMA) is Responsible for PASRR Oversight has oversight responsibility for Level 1 screenings.
2. A Level I screening is the process of identifying individuals who are suspected of having mental illness or intellectual disability or developmental disability/related conditions or if categorical determinations are met.
The Nursing Facility is responsible for completing the Level I screening for non-Medicaid individuals.
a. No indication of mental illness/mental retardation intellectual disability/developmental disability or related condition – nursing home admission/continued stay is appropriate - No further evaluation is needed.
b. There are indicators of mental illness/mental retardation intellectual disability/developmental disability/related condition however, individual meets any of the following Physician’s Exemption Categorical Determination Criteria:
Primary Diagnosis of Dementia or related disorder
i. Convalescent Care; not to exceed 30 days - PAS nurses will track this exemption and initiate Level II PASRR evaluation prior to expiration if continued NF stay is warranted.
ii. Terminal Illness; a life expectancy of 6 months or less if the illness runs its normal course.
iii. Medical dependency with a severe physical illness. Medical Dependence;
No further evaluation is needed at this time.
c. There are indicators of mental illness, mental retardation intellectual disability/developmental disability/related conditions – Needs complete PASRR Assessment (Level II).
DMMA Preadmission Screening (PAS) nurse will gather available data for Level II PASRR screening and forward it to the MI or ID/DD authority.
Data is reviewed with DMMA Nurse Supervisor for approval to continue with the Level II screening.
The notice must inform them that the individual is being referred for Level II Evaluation to DSAMH the Division of Substance Abuse and Mental Health (DSAMH) due to mental illness indicators or to DDDS the Division of Developmental Disabilities Services (DDDS) due to mental retardation intellectual disability/developmental disability/related condition.
DDDS will assess individual and review documentation to verify whether or not diagnostic criteria of mental retardation or related conditions are met.
7. DDDS will complete the Level II Evaluation for those with mental retardation intellectual or developmental disabilities indicators.
DDDS will assess individual and review documentation to verify whether or not diagnostic criteria of mental retardation intellectual or developmental disabilities or related conditions are met.
The Level II evaluation may be terminated at any time if the evaluator determines that no Mental Retardation intellectual or developmental disability [or related conditions] is are present.
9. DMMA is notified by DSAMH/DDDS notifies DMMA of the[ir] final determination.
10. DMMA will send the final determination letter to:
Individual/applicant Applicant;
Admitting or retaining NF Retaining Nursing Facility (NF);
Discharging hospital Hospital - if exemption is not applicable.
Final PASRR determinations will be issued by DMMA [and are subject to 16 DE Admin. Code 5000].
Last Updated: December 31 1969 19:00:00.
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