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4 Organizations Issue Joint Public Comment on Centers for Medicare & Medicaid Services Proposed Rule

WASHINGTON, May 26 -- Four organizations have issued a public joint comment on the Centers for Medicare and Medicaid Services proposed rule entitled "Medicaid Program: Preadmission Screening and Resident Review". The comment was written on May 20, 2020, and posted on May 21, 2020:

The comment was co-signed by Daniel Crimmins, director of the Center for Leadership in Disability, Atlanta, Georgia; Eric Jacobson, executive director of the Georgia Council on Developmental Disabilities, Atlanta; Ruby Moore, executive director of Georgia Advocacy Office, Decatur; and Zolinda Stoneman, director of the Institute on Human Development and Disability, Athens, Georgia.

* * * We write on behalf of Georgia's Developmental Disability Network, which includes the Georgia Advocacy Office (Georgia's P & A); Georgia's Council on Developmental Disabilities; Institute on Human Development and Disability/UCEDD; and the Center for Leadership in Disability/UCEDD to express concern about the changes to the regulations governing the Preadmission Screening and Resident Review (PASRR). Our organizations work to ensure that people who experience disabilities live full lives free from abuse and neglect. The recent pandemic punctuates the potential for harm caused by institutionalization and highlights the need for ensuring the protections intended by use of the PASRR remain intact.

We recognize and support one underlying goal of the proposed rules - to modernize PASRR regulations and to clarify the sequential PASRR process. We also recognize the goal to better align the PASRR regulations with:

1) Congress's original purpose in enacting the PASRR program

2) Current legal and clinical standards, including the Americans with Disabilities Act and the Supreme Court's decision in Olmstead v. L.C.

3) CMS Bulletins and Guidance documents that explain these requirements

4) Professional mental health and IDD standards favoring community services, and

5) The trend in virtually all states to reduce reliance on segregated settings for persons with IDD and MI.

We believe the proposed rules undermine and certainly are not consistent with the second goal and will likely result in more people with IDD and MI being admitted to nursing facilities, less people being discharged, and few specialized services being provided to these who remain in nursing facilities. In this unique moment, when we have seen so clearly how nursing facility admissions often result in death, it is particularly inappropriate for CMS to adopt the proposed rules. Instead, we urge CMS to reconsider and revise the proposed rules considering the impact of the current pandemic, and then reissue them for public comment pursuant to a new NPRM.

There are three glaring concerns with the proposed rules that undermine the Congressional purpose of the PASRR program, that contravene the legal requirements of the ADA and Olmstead v. L.C., and that are inconsistent with contemporary professional standards for people with IDD and MI:

1) The proposed rule substantially reduces the utility of PASRR preadmission screening (Level I) and evaluation (Level II) to prevent unnecessary admissions to nursing facilities. PASRR evaluations are supposed to determine if the person needs nursing facility level of services and/or could be better served in an alternative setting, like an integrated setting in the community. The proposed rule allows States to avoid all preadmission evaluations for individuals who are: (1) readmitted to a nursing facility (regardless of how long they have been out of that facility); (2) transferred from another nursing facility; (3) discharged from an acute hospital and presumably needing only 30 days of care in the nursing facility (called exempt admission); or (4) admitted for a short term (called provisional admission). This last category is particularly troubling since it includes admissions for respite, crisis or protective services, and convalescent care. Georgia does not effectively track people in this way despite a requirement that they do so. In Texas, which has adopted these categorical admission options, the State's own data indicates that 97% of all admissions of individuals with IDD were not subject to preadmission evaluation, either because they were categorical admissions (90%) or exempt admissions (7%). Data from other States, like Illinois, is almost as dramatic. Once a person is admitted, even if the PASRR evaluation is conducted weeks or months later, the opportunity for diversion is lost, the likelihood of a prompt return to the community drastically reduced, and the probability of long-term institutionalization significantly increased. While provisional admissions mirror and replace the concept of categorical admissions in the current regulations, they are mandatory, not optional (as in the current regulation), and entirely bypass the Level II process for determining appropriate placement until well after the admission. As a result, the proposed rules substantially undermine the diversion goals and elements of the PASRR program.

2) The proposed rule sharply limits the PASRR Level II evaluation with respect to placement in an alternative, community setting. While the proposed rules add occasional references to "integrated settings," they authorize the admission of individuals who do not have a currently available community option, even if the person could be served in an integrated setting, or even who could be better served in the community. Moreover, while the proposed rules require that states provide individuals (or guardians) "information about community options," there is no requirement for informed choice, no specification of the type, amount, or frequency of such information, and, contrary to Olmstead, an assumption that institutionalization is appropriate unless the person expresses a preference for community placement, instead of an assumption that community placement is appropriate unless the person opposes such placement.

3) The proposed rule significantly diminishes the amount and scope of specialized services that must be provided to persons with IDD or MI. It substantially restricts the assessments used for determining if specialized services are needed, focusing almost exclusively on ADL and IADL assessments instead of a broad range of social, vocational, educational, and communication areas, as in the current regulations. It allows States to drastically limit the type of specialized services they will provide and eliminates any standard for determining what services should be provided. It affords States broad latitude to decide who conducts Level I identifications of MI and IDD, who conducts Level II evaluations of needed services, and what specialized services the State will provide as well as the amount, duration, and scope of those services without reference to any professional standard. The proposed rule is particularly problematic for individuals with IDD by significantly diluting the evaluation criteria for specialized services and deleting the active treatment standard for providing these services, allegedly to avoid an institutional standard of care, even though they only apply to an institutional setting - nursing facilities. The proposed rule also eliminates the historical requirements that States must provide specialized services in the community to nursing facility residents (either long term or short term) who no longer need nursing facility services.

Finally, the decision to omit individuals with traumatic brain injuries (TBI) is inappropriate and illogical, particularly since a TBI that occurs before age 22 is a developmental disabilities or related condition. Thus, the mere fortuity of when the TBI occurs determines whether the PASRR rules apply. We know many young persons who experienced TBIs just after their twenty-second birthday who were needlessly admitted to a nursing facility without the benefit and protections of PASRR. In addition, in Georgia there are several individuals who are under 22 who experience a TBI who have improperly landed in nursing facilities despite protections in place that are supposed to prevent this from occurring.

For these reasons, and in light of what we now know even more clearly from the pandemic about the consequences of nursing facility admission, we urge you to reconsider the proposed rule, substantially revise it to remove its decided institutional bias, and revise it to align with prior CMS Guidance and directives from Congress and the Supreme Court. The revised rule should be reissued for public comment pursuant to a new NPRM. This simply is not the time to make it easier to admit, and harder to discharge, individuals with disabilities to nursing facilities. We provide more detailed, section-by-section comments below.


Part 483, Subpart B

Sec. 483.20(b)(2(ii): This section defines "significant change in physical or mental condition," which in turn determines when a PASRR evaluation is required on a current resident of a nursing facility. The criteria for such review are vague and limited to: (1) a major decline or improvement; (2) that requires staff or clinical intervention; and (3) that justifies an interdisciplinary review or change in care plan. This definition is likely to reinforce the present practice of rarely conducting a resident review for residents who have been in nursing facilities more than sixty days, and leaving the determination of whether the individual has experienced a change of condition that requires a PASRR evaluation entirely in the discretion of the nursing facility. The definition fails to consider a change that: (1) indicates a need for specialized services; (2) reflects a change in preference for specialized services or transition [Sec. Q]; or (3) would make discharge/transition appropriate. The definition should be expanded to include changes in the individual's ability to live in a home- and community-based program, interest in transition, interest in specialized services, and need for additional specialized services. This section should be revised to include these factors, or these factors should be included in the related Sec. 483.114(a)(1).

Sec. 483.20(e): The commentary helpfully distinguishes the purpose, scope, and content of the MDS from the PASRR evaluation. But the rule contains no such distinction. This subsection should be revised to explicitly state that the MDS does not satisfy the requirements of a PASRR evaluation and that the PASRR evaluation serves a different purpose, involves different assessments, and results in different types of recommendations.

Sec. 483.20(k)(2)(i): This section allows States to bypass the PASRR evaluation for all readmissions, regardless of how long the individual has been out of the nursing facility and for what reasons. Thus, an individual who was admitted to a nursing facility from a home- and community-based program in January 2018, who received a PASRR evaluation in February of 2018, who was discharged to a hospital in June of 2019, and then was returned to the same nursing facility in September of 2019 would not receive a new PASRR evaluation, unless the nursing facility determined that her condition had changed. This subsection should be deleted.

Sec. 483.20(k)(2)(iii): This section allows States to bypass the PASRR evaluation for the newly termed "provisional admissions:" (formerly categorical admissions described in Sec. 483.130(d)). For the reasons stated above, allowing States to admit people with MI or IDD who are included in the five categories of provisional admissions results in most admissions avoiding all preadmission evaluation, thereby making it impossible to achieve the diversionary goals of PASRR. This subsection should be deleted. Sec. 483.21: We support the clarifications included in this section, including the importance of using person-centered planning in all determinations of nursing, rehabilitative, and specialized services, and particularly the requirement of proposed Sec. 483.21(b)(iii) requiring the nursing facility to implement PASRR evaluation recommendations for specialized services and incorporate them in the PCP.

Part 483, Subpart C S

ec. 483.102: We support the new definitions of MI and IDD.

Sec. 483.106(a): The description of the purpose of the PASRR program is vague and not in line with the legislative history, as expressed in House and Senate Reports that accompanied the enactment of the original legislation in 1987, as well as the requirements of federal law. The language should be revised to note that PASRR is intended to identify, screen, and evaluate people with MI and IDD in order to determine if admission to a nursing facility is appropriate and the most integrated setting to meet the individual's needs, and if so, to ensure that the individual receives all needed specialized services to promote independence, to prevent deterioration, and to facilitate transition to the most integrated setting, if not opposed by the person.

Sec. 483.106(b): We generally support the clarification of this section and the description of each component of the PASRR program.

Sec. 483.106(f): We support the clarification requiring culturally-component communications.

Sec. 483.112(b): For the reasons set forth above and the specific comment to proposed Sec. 483.20(k)(2), preadmission evaluation should be required for all readmissions, inter-facility transfers, and provisional admissions. Proposed Secs. 483.112(b)(1), (3), (4), and (5) should be redrafted to require a preadmission evaluation for all admissions except exempt admissions, as provided by statute. As evidenced by data from Texas and other states, eliminating preadmission evaluations for all the categories listed in proposed Sec. 483.112(b)(3) effectively eliminates all diversion opportunities for approximately 90% of all admissions of people with IDD.

Sec. 483.114(a)(1): As noted in our comment to proposed Sec. 483.20(b)(2)(ii), a resident review should be required whenever there is a change in the individual's ability to live in a home- and community-based program, interest in transition (like MDS, Section Q), interest in specialized services, or need for additional specialized services, regardless of whether there is a change in the individual's physical or mental condition. Sec. 483.120(a): This section provides a new definition of specialized services which allows States to determine what specialized services they will provide - without any standard, guidance, or professional criteria. Thus, a State could decide to only offer one specialized service (i.e., transition planning), or even none, since there is no standard to measure the vague concept of "need" in Sec. 483.120(a)(2). It deletes all references to active treatment or any professional standard of care, leaving States unfettered discretion to decide what specialized services it will offer, who will offer them, the method for providing them, and the frequency, intensity, and duration that the services will be provided. The alleged rationale for ignoring the Congressional mandate to provide active treatment and deleting all references in the regulations to this professional standard is to "avoid an institutional standard of care." But specialized services are services provided in nursing facilities and for residents of institutions - in this case, residents of nursing facilities. That is precisely why Congress adopted this term, why courts have relied upon this term, and why this term is uniquely appropriate in PASRR regulations. It is essential that this term be retained in order to establish a clear professional standard to guide the State's determination of what specialized services it must provide as well as the frequency, intensity, and duration that specialized services are provided. In addition, the professional standard for assessing the adequacy of specialized services should include services necessary to effectively and timely assist individuals to transition to the community.

The new definition of specialized services is deeply problematic. It allows the nursing facility treatment team to decide what services are appropriate to: (1) address the individual's needs; (2) increase or delay loss of functional abilities; and (3) promote transition to integrated settings. By assuming that the nursing facility care planning team is qualified and positioned to determine the habilitative needs of persons with IDD or the mental health treatment needs of persons with MI is unrealistic. Similarly, expecting that this team will be an appropriately constituted interdisciplinary team that can develop treatment plans in a person-centered manner that promotes self-determination is inconsistent with established practice in nursing facilities and is unsupported by many courts that have considered this issue. CMS should encourage States to provide specialized services in the community, like integrated day services, and to have community case managers who participate in all nursing facility treatment planning and who monitor specialized services.

The focus of specialized services as set forth in Sec. 483.120(5) is limited to functional abilities and ignores other core goals like maximizing independence, gaining a broad range of skills, promoting choice, and participating in community activities. The section should be deleted and rewritten to require States to: (1) provide all specialized services in the amount, duration, and intensity necessary to constitute a program of active treatment, including both the standard and implementation process as defined by Sec. 483.440(a)-(f) for a person with IDD, and to promote transition to the most integrated setting; (2) provide all specialized services necessary to allow individuals with MI and IDD to learn about and engage in community activities sufficient to make an informed choice about whether to remain in a nursing facility; and (3) include a case manager/service coordinator from the relevant component of the State's community service system on the interdisciplinary team.

Sec. 483.120(b): This section requires the State to provide needed specialized services and allows the State to determine who can provide such services, including persons who are not MI or IDD professionals or specialists such as regular nursing staff if they are deemed "qualified personnel" by the State. This section should require that all specialized services are only provided by appropriately trained and qualified MI or IDD personnel. States should be encouraged to include community-based case managers/service coordinators, through targeted case management, as a type of specialized service.

Sec. 483.128(b): This section allows the State to determine who will perform the Level II evaluation, subject to certain statutory restrictions. There is no requirement that evaluators be appropriately trained and qualified MI or IDD professionals, even though they are required to assess mental health or IDD needs and recommend treatment or habilitative specialized services. Nor is there a requirement that they have any knowledge or experience in home- and community-based programs, even though they are required to evaluate the need for and appropriateness of home- and community-based alternatives to a nursing facility placement. This subsection should be modified to include these qualifications for all PASRR evaluators.

Sec. 483.128(d)(2): This section lists the data that must be reviewed to determine whether there has been a significant change in someone's physical or mental condition. For the reasons set forth in the comment to Secs. 483.20(b) and 114(b(2), this data should include information concerning the individual's appropriateness and preferences for both specialized services and transition to an integrated community setting.

Sec. 483.128(e): This section lists the data that must be collected and reviewed in order to determine the need for ...