PURPOSE: This rule sets forth application procedures and general certification requirements for nursing facilities certified under the Title XIX (Medicaid) program and skilled nursing facilities under Title XVIII (Medicare), procedures to be followed by nursing facilities when requesting a nurse staffing waiver and requirements for notification of residents of right to appeal prior to transfer.

Editor’s Note: The secretary of state has determined that the publication of this rule in its entirety would be unduly cumbersome or expensive. The entire text of the material referenced has been filed with the secretary of state. This material may be found at the Office of the Secretary of State or at the headquarters of the agency and is available to any interested person at a cost established by state law.

1. (1) Definitions.

   1. (A) Alternate remedy, a sanction as a result of noncompliance with federal regulations imposed upon a facility participating in the Medicare or Medicaid program, as provided by federal statute, including denial of payment for new admission.
   2. (B) Certification, the determination by the Division of Aging or the Health Care Financing Administration that a skilled nursing or intermediate care facility (SNF/ICF) is in compliance with all federal requirements and is approved to participate in the Medicaid or Medicare programs.
   3. (C) Credible allegation of compliance letter, a letter submitted by a provider to the division, following a determination by the division that a facility is out of compliance with one (1) or more level A requirements, which indicates the facility has taken measures to correct the level A deficiencies and requests that a revisit be done.
   4. (D) Denial of payment for new admissions, an alternate remedy recommended to the Division of Medical Services by the Division of Aging by which the facility shall not admit new Medicaid residents for a period of time specified by the division not to exceed a date six (6) months from the date of survey.
   5. (E) Distinct part, a unit within a facility organized and operated to give a distinct type of care within a larger organization rendering other levels of care. This unit must be physically identifiable and be organized and operated distinguishably from the rest of the institution and must consist of all beds within that unit—such as a separate building, floor, wing, ward or several rooms at one end of a hall or one side of a corridor.
   6. (F) Division, the Division of Aging (DA), Missouri Department of Social Services.
   7. (G) HCFA, the Health Care Financing Administration section of the United States Department of Health and Human Services (HHS).
   8. (H) ICF/MR, intermediate care facility for mentally retarded.
   9. (I) Level A requirement, a major requirement contained in 42 CFR chapter IV part 483 subpart B with which a Medicaidor Medicare-certified facility must be in compliance in order to be initially certified or remain certified.
   10. (J) Medicaid, Title XIX of the federal Social Security Act.
   11. (K) Medicare, Title XVIII of the federal Social Security Act.
   12. (L) Nursing facility (NF), an SNF or ICF licensed under Chapter 198, RSMo which has signed an agreement with the Department of Social Services to participate in the Medicaid program and which is certified by the Division of Aging.
   13. (M) Reasonable assurance period, a period of between sixty and one hundred eighty (60—180) days during which a facility decertified from participating in the Medicaid or Medicare program, or both, must maintain compliance before it can be reconsidered for participation in the program from which decertified.
   14. (N) Skilled nursing facility (SNF), an SNF licensed under Chapter 198, RSMo which has a signed agreement with the HCFA to participate in the Medicare program and which has been recommended for certification by the Division of Aging.
   15. (O) Title XVIII, the Medicare program as provided for in the federal Social Security Act.
   16. (P) Title XIX, the Medicaid program as provided for in the federal Social Security Act.
2. (2) An operator of a SNF or ICF licensed by the division wishing to be certified as a provider of skilled nursing services under the Title XVIII (Medicare) or NF services under the Title XIX (Medicaid) program of the Social Security Act or an operator of a facility wishing to be certified as an ICF/MR facility under Title XIX shall submit application materials to the division as required by federal law and shall comply with standards set forth by the United States Department of 13 CSR 15-9

HHS in 42 CFR chapter IV, part 483, subpart B for nursing homes and 42 CFR part 483, subpart D for ICF/MR facilities, as appropriate.

1. (A) For Medicaid, the application shall include:

   1. 1. Form HCFA 671, Long Term Care

Facility Application for Medicare and Medicaid;

1. 2. Form HCFA 1513, Disclosure of

Ownership and Control Interest Statement; and

1. 3. Form DA-113, Bed Classification for

Licensure and Certification by Category.

1. (B) For Medicare, the application shall include:

   1. 1. Form HCFA 671, Long Term Care

Facility Application for Medicare and Medicaid;

1. 2. Form HCFA 1513, Disclosure of

Ownership and Control Interest Statement;

1. 3. Form DA-113, Bed Classification for

Licensure and Certification by Category;

1. 4. Two (2) copies of form HCFA 1561,

Health Insurance Benefit Agreement;

1. 5. Two (2) copies of form HCFA 2572,

Statement of Financial Solvency; and

1. 6. Three (3) copies of form HHS 690,

Assurance of Compliance.

1. (C) SNFs or NFs which are newly certified or which are undergoing a change of ownership shall submit an initial certification fee in the amount up to one thousand dollars ($1,000) as stipulated by the division in writing to the operator following receipt of the properly completed application material referenced in subsection (2)(A) or (2)(B). The amount for the initial certification fee shall be the prorated portion of one thousand dollars ($1,000) with prorating based on the month of receipt of the application in relation to the beginning of the next federal fiscal year. This initial certification fee shall be nonrefundable and a facility not be certified until the fee has been paid. The facility shall complete all requirements for certification prior to the end of the federal fiscal year in which application was made. If not, an additional certification fee of one thousand dollars ($1,000) shall be submitted to the division by October 1 or the application shall be considered withdrawn.
2. (D) All SNFs or NFs licensed and certified prior to October 1, 1995 shall submit to the division the initial certification fee of one thousand dollars ($1,000) prior to October 1, 1995. Subsequently, in order to maintain certification in the Medicaid or Medicare program(s) all SNFs or NFs shall submit to the division an annual certification fee of one thousand dollars ($1,000) prior to October 1 of each year. If the fee is not received by that date each year a late fee of fifty dollars ($50) per month shall be payable to the division. If payment of any fees due is not received by the division by the time the facility license expires or by December 31 of that year, whichever is earlier, the division shall notify the Division of Medical Services and the Health Care Financing Administration recommending termination of the Medicaid or Medicare agreement as denial of license will occur as provided in 13 CSR 15-10.010 and section 198.022, RSMo.

1. (3) Application material shall be signed and dated and submitted to the division’s central office at least fourteen (14) working days prior to the date the facility is ready to be surveyed for compliance with federal regulations. The operator or authorized representative shall notify the appropriate division regional office by letter or by phone as to the date the facility will be ready to be surveyed. There shall be at least two (2) residents in the facility before a survey can be conducted. The facility shall already be licensed or with licensure in process shall be in compliance with all state rules.
2. (4) Any facility certified for participation as an NF in the Title XIX Medicaid program wishing to participate in the Title XVIII Medicare program shall submit an application signed and dated to the division’s central office. The division will recommend Medicare certification to the HCFA effective the date the application material is received by the division or a subsequent date if requested by the provider, provided the facility was in compliance with all federal and state regulations for SNFs at the last survey conducted by the division and provided the facility’s application is complete.
3. (5) Any facility certified for participation in the Medicare program wishing to participate in the Medicaid program shall submit a signed and dated application to the division’s central office. The division will certify the facility for Medicaid participation effective the date the application is received by the division or a subsequent date requested by the provider, provided the facility was in compliance with all federal regulations at the last survey conducted by the division and the application is complete.
4. (6) For newly certified facilities, the facility will be certified for either Medicare or Medicaid participation effective the date the facility receives a license at the proper level or the date the facility administrator has signed an acceptable plan of correction for deficiencies cited at the survey, whichever is the later date. The facility shall be in compliance with state and federal regulations at the initial certification survey conducted by the division. The application shall be completed and, for certification in the Title XVIII (Medicare) program, the HCFA must concur with the division’s recommendation.

5. (7) The division shall conduct federal surveys for both the initial and recertification purposes in SNFs, NFs and ICF/MR facilities, utilizing regulations and procedures contained in—

   1. (A) The State Operations Manual (SOM) (HCFA Publication 7);
   2. (B) The Health Standards and Quality Regional letters received by the division from the HCFA regional office in Kansas City;
   3. (C) For SNFs and NFs, federal regulation 42 CFR chapter IV part 483, subpart B; and
   4. (D) For ICF/MR facilities, federal regulation 42 CFR chapter IV, part 483, subpart D.
6. (8) A facility, in its application, shall designate the number of beds to be certified and the location in their facility. A facility can be wholly or partially certified. If partially certified, the beds shall be in a distinct part of the facility and all beds shall be contiguous.
7. (9) If a facility certified to participate in the Title XIX (Medicaid) or Title XVIII (Medicare) program wishes to reduce or increase the number of beds in the facility which are certified, a written request shall be submitted to the licensure/certification unit of the division or the ICF/MR unit of the Department of Social Services, as applicable. The request shall specify the room numbers involved, the number of beds in each room and the effective date. Bed increases shall be limited to two (2) increases per facility fiscal year. Requests for bed decreases or changes in location may be made at any time. Prior to approval of the request, the request shall be reviewed and approved by the appropriate division regional office and the facility shall complete and sign a new DA-113 form, Bed Classification for Licensure and Certification by Category.
8. (10) If a facility certified to participate in the Title XIX (Medicaid) program wishes to decertify a bed(s) for a temporary period to assist a resident(s) who is applying for benefits under the division of assets provisions of the federal Catastrophic Health Care Act of 1988, a written request shall be submitted to the licensure/certification unit of the division. The request shall specify the room number(s) and number of beds per room and that the purpose is to implement the division of assets provision of the Medicare Catastrophic Health Care Act. It shall also specify that the decrease is temporary and shall indicate the beginning and ending date of the temporary period. The beds decertified need not be contiguous.
9. (11) If a facility certified to participate in the Title XIX (Medicaid) or Title XVIII (Medicare) program undergoes a change of operator, the new operator shall submit an application as specified in section (2) of this rule. The application shall be submitted within five
10. (5) working days of the change of operator. For applications made for the Title XIX (Medicaid) program, the division shall provide the application to the Division of Medical Services of the Department of Social Services so that a provider agreement can be negotiated and signed. For applications made for the Title XVIII (Medicare) program, the division shall provide the application to the HCFA. Certification status will be retained unless or until formally denied.
11. (12) If it is determined by the division that a facility certified to participate in Medicaid or Medicare does not comply with federal regulations at the time of a federal survey, complaint investigation or state licensure inspection, a revisit will be conducted approximately forty (40) days following the completion of the federal survey, complaint investigation or state licensure inspection to determine if the facility has achieved compliance if the facility submits to DA a credible allegation of compliance letter. The credible allegation of compliance letter must be received by the division within thirty-five (35) days of the completion date of the survey. If the facility is not in compliance with federal regulations following the revisit or had not submitted a credible allegation of compliance letter within thirty-five (35) days of the survey completion date, the division shall take enforcement action as provided in sections 198.026 and 198.067, RSMo and in 42 U.S.C. 1396(r). This includes decertification and the alternate remedies as given in sections 1819(h) and 1919(h) of the Social Security Act. If a facility has been found out of compliance with any of the level A requirements, quality of care, quality of life, residents’ rights, and resident behavior and facility practices on three
12. (3) consecutive surveys, the alternate remedies, denial of payment for new admissions and state monitoring will automatically be imposed and will continue until the facility has demonstrated to the satisfaction of the state that it is in compliance with federal requirements and that it will remain in compliance.
13. (13) If a facility certified to participate in the Medicaid Title XIX or Title XVIII Medicare program has been decertified as a result of noncompliance with federal regulations, the facility can be readmitted only when the reasons for the decertification no longer exist, there is reasonable assurance that they will not recur and all state and federal statutory and regulatory requirements are fulfilled. If the facility operator requests readmission of the facility into certified status, the operator shall submit a letter to the division alleging that the reasons for the decertification no longer exist. If the information provided in the letter is sufficient, a revisit will be conducted by the division staff, concentrating on the areas that caused the decertification action. If the facility has achieved compliance, a time frame, referred to as reasonable assurance period, will be established. The reasonable assurance period will be between sixty and one hundred eighty (60—180) days and will be determined based upon the provider’s compliance history and correction of deficiencies on which decertification was based. For Title XIX Medicaid, the reasonable assurance period will be set by the division. For Title XVIII Medicare, it will be set by the HCFA. The facility shall maintain compliance without recurrence of the deficiencies which were the basis for decertification during the reasonable assurance period. Division staff will monitor the facility to assure the facility maintains compliance. Just prior to the end of the reasonable assurance period, the division shall conduct a full federal survey. If the facility is found not in compliance or does not maintain compliance during the reasonable assurance period, the decertification shall remain in effect.
14. (14) If a facility certified to participate in the Title XIX Medicaid or Title XVIII Medicare program has been placed under an alternate remedy as a result of noncompliance with federal regulations, the alternate remedy can be lifted only if the facility has corrected all level A deficiencies. To request a revisit, the facility shall submit a credible allegation of compliance letter to the division. If the letter is approved, a revisit will be conducted by division staff. If it has been determined that for Title XIX Medicaid, compliance has been achieved with all level A requirements, the division will lift the alternate remedy; for Title XVIII Medicare, the results of the revisit will be submitted to the HCFA for a decision. For a facility that is Medicare/Medicaid-certified, the HCFA decision is binding for both Medicare and Medicaid. If the facility fails to achieve compliance, the division will proceed with decertification actions as specified in sections 1819(h) and 1919(h) of the Social Security Act and sections (12) and
15. (13) of this rule.
16. (15) If a change in the administrator or the director of nursing of a facility occurs, the facility shall provide written notice to the division’s central office at the time of the change. The notice shall indicate the effective date of the change, the identity of the new director of nursing or administrator and a copy of his/her license or the license number. A change of administrator is also part of the licensure application process; therefore, the information shall be submitted as a notarized statement by the operator in accordance with section 198.018, RSMo.

17. (16) An NF may request a waiver of nurse staffing requirements to the extent the facility is unable to meet the requirements including the areas of twenty-four (24)-hour licensed nurse coverage, the use of a registered nurse for eight (8) consecutive hours seven (7) days per week and the use of a registered nurse as director of nursing.

    1. (A) Requests for waivers shall be made in writing to the deputy director, Division of Aging.
    2. (B) Requests for waivers will be considered only from facilities licensed under Chapter 198, RSMo as ICFs which do not have a nursing pool agency that is within fifty

18. (50) miles, within state boundaries, and which can supply the needed nursing personnel.

    1. (C) The division shall consider each request for a waiver and shall approve or disapprove the request in writing within thirty

19. (30) working days of receipt or, if additional information is needed, shall request from the facility the additional information or documentation within ten (10) working days.

    1. (D) Approval of a nurse waiver request shall be based on an evaluation of whether the facility has been unable, despite diligent efforts—including offering wages at the community prevailing rate for nursing facilities— to recruit the necessary personnel. Diligent effort shall mean prominently advertising for the necessary nursing personnel in a variety of local and out-of-the-area publications, including newspapers and journals within a fifty (50)-mile radius, and which are within state boundaries; contacts with nursing schools in the area; and participation in job fairs. The operator shall submit evidence of the diligent effort including:

       1. 1. Copies of newspapers and journal

advertisements, correspondence with nursing schools and vocational programs, and any other relevant material; 13 CSR 15-9

1. 2. If there is a nursing pool agency with-

in fifty (50) miles which is within state boundaries and the agency cannot consistently supply the necessary personnel on a perdiem basis to the facility, the operator shall submit a letter from the agency so stating;

1. 3. Copies of current staffing patterns

including the number and type of nursing staff on each shift and the qualifications of licensed nurses;

1. 4. A current form HCFA 672, Resident

Census and Conditions of Residents;

1. 5. Evidence that the facility has a regis-

tered nurse consultant required under 13 CSR 15-14.042(36)(B) and evidence that the facility has made arrangements to assure registered nurse involvement in the coordination of the assessment process as required under 42 CFR 20(c)(1)(ii);

1. 6. Location of the nurses’ stations and

any other pertinent physical feature information the facility chooses to provide;

1. 7. Any other information deemed

important by the facility including personnel procedures, promotions, staff orientation and evaluation, scheduling practices, benefit programs, utilization of supplemental agency personnel, physician-nurse collaboration, support services to nursing personnel and the like; and

1. 8. For renewal requests, the information

supplied shall show diligent efforts to recruit appropriate personnel throughout the prior waiver period. Updates of prior submitted information in other areas are acceptable.

1. (E) In order to meet the conditions specified in federal regulation 42 CFR 483.30, the following shall be considered in granting approval:

   1. 1. There is assurance that a registered

nurse or physician is available to respond immediately to telephone calls from the facility for periods of time in which licensed nursing services are not available;

1. 2. There is assurance that if a facility

requesting a waiver has or admits after receiving a waiver any acutely ill or unstable residents requiring skilled nursing care, the skilled care shall be provided in accordance with state licensure rule 13 CSR 15- 14.042(6); and

1. 3. The facility has not received a Class I

notice of noncompliance in resident care within one hundred twenty (120) days of the waiver request or the division has not conducted an extended survey in the facility within one (1) year of the waiver request. Any facility which receives a Class I notice of noncompliance in resident care or an extended survey while under waiver status will not have the waiver renewed unless the problem has been corrected and steps have been taken to prevent recurrence. If a facility received more than one (1) Class I notice of noncompliance in resident care during a waiver period, the Division of Aging will consider revocation of the waiver.

1. (F) The facility shall cooperate with the Division of Aging in providing the proper documentation. For renewal requests, the request and proper documentation shall be submitted to the Division of Aging at least forty-five (45) days prior to the ending date of the current waiver period. If any changes occur during a waiver period that affect the status of the waiver, a letter shall be submitted to the deputy director of institutional services within ten (10) days of the changes. The request for a waiver or renewal of a waiver shall be denied if the facility fails to abide by these previously mentioned time frames.
2. (G) If a waiver request is denied, the division shall notify the facility in writing and within twenty (20) days, the facility shall submit to the division a written plan for how the facility will recruit the required personnel. If appropriate personnel are not hired within two (2) months, the division shall initiate enforcement proceedings.

AUTHORITY: section 536.021, RSMo Supp. 1997.* Emergency rule filed Sept. 18, 1990, effective Oct. 1, 1990, expired Jan. 25, 1991. Original rule filed Nov. 2, 1990, effective June 10, 1991. Amended: Filed June 3, 1993, effective Dec. 9, 1993. Amended: Filed Feb. 1, 1995, effective Sept. 30, 1995. Amended: Filed May 11, 1998, effective Nov. 30, 1998. *Original authority 1975, amended 1976, 1989, 1992, 1993, 1994, 1997.