August, 1999

Information Bulletin 99-18
ICF/MR-8

Clarifications On Issues Related To ICF/MR'S

Purpose:

This information bulletin will provide you with information and clarifications regarding the ICF/MR regulations, guidance for Minnesota Department of Health survey staff and also an update on the discontinuation of case mix reviews in ICF/MRs.

Questions And Responses:

The following questions and responses were provided by HCFA as a guidance to surveyors:

    Q:   "ICF/MR providers are not responsible to pay for dentures." Is this in violation of W436? At W436 it indicates that providers are responsible to furnish and maintain in good repair adaptive equipment. Please clarify situations in which it is appropriate for residents to pay for adaptive equipment.

    R:   This response is a violation of 42 CFR 483.470(g)(2)- (W436) which reads: "The facility must furnish, maintain in good repair and teach clients to use and to make informed choices about the use of dentures, eyeglasses, hearing and other communication aids, braces and other devices identified by the interdisciplinary team as needed by the client".

    The guidance to surveyors written in the State Operations manual, Transmittal 277, further reads:

    "The term "furnish" means that the facility is responsible for obtaining or purchasing these items and is responsible for making any necessary arrangements to enable the individual actually to receive them. However, if an item is available free of charge, the facility would satisfy the requirement simply by making the necessary arrangements for the individual to receive them. Individuals' funds should not be used for these items since this is a covered service under the ICF/MR benefit".

    The only situation where it may be appropriate for an individual to pay for his/her own adaptive equipment would be if the individual purposefully destroys the equipment as a means to avoid use of the device. In this case, you would expect to see the payment for the replacement of the device (restitution) in the individual's behavior management program. However, one would also need to consider the individuals' right to refuse such services.

    Q:   Can W371 be referred in a survey report under the Condition of Participation (COP) of Active Treatment at W195?

    R:   The Principles of Documentation, Principle #19 reads:

    "If a COP is determined to be deficient, the HCFA-2567 should identify the specific practices that must be corrected before the entity can be found to be in compliance. If these practices refer to requirements specified at standards, these requirements may be referenced under the COP citation."

    Therefore, any requirement which was essential in making the decision of the COP noncompliance, and which must be corrected in order to avoid adverse action can be referred to under the Condition. The surveyor must be sure to use the Principle of Documentation #18 with regards to cross referencing.

    Q:  Please clarify W123, W124 and W125, including situations where each of these citations would be appropriately cited regarding informed consent.

    R:   W123- "The facility must inform each client, parent (if the client is a minor), or legal guardian, of the client's rights and the rules of the facility"

    This requirement pertains to how the facility assures that individuals are informed specifically about their rights and the rules of the facility. If the individual is not capable of understanding his/her rights, how does the facility assure that someone is acting on behalf of the client in promoting and protecting the client's rights? How does the facility assure that rules of the facility (such as not smoking in designated areas) are presented to the individual and that the individual understands the rules? This information (rights and rules of facility) is usually provided at the time of admission and whenever there is a change in the rules.

    W124- "  Inform each client,( parent if the client is a minor), or legal guardian, of the client's medical condition, developmental and behavioral status, attendant risks of treatment, and the right to refuse treatment"

    This requirement pertains to ongoing communication with the client, parent or legal guardian relative to the clients' overall status. How is the facility informing the client about his condition, risks of treatment and right to refuse treatment? The surveyor would look for participation by client/guardian in program planning, consents for restrictive interventions, informing client/guardian of side effects of medication and informing client of risks involved in treatment strategies. In addition, surveyors should determine whether clients are free to refuse treatment or services, what alternatives are provided whether they do and how the facility works with clients to understand the ramifications for such refusals.

    W125-   "Allow and encourage individual clients to exercise their rights as clients of the facility and citizens of the United States, including the right to file complaints and the right to due process".

    This requirement pertains to how an individual is allowed to exercise his/her rights. Any denial of rights is a potential violation of this requirement. Surveyors should determine how the facility assists individuals in exercising their rights. Individuals who are not able to make decisions regarding their rights should have a guardian or spokesperson (in accordance with State Law) appointed to act on the client's behalf. Also, surveyors should determine whether clients feel they can file complaints without reprisal. Examples of citations at this tag include clients who need guardians but the facility has not taken steps to help obtain guardianship; rights being denied-such as locked building, not encouraging clients to vote, etc.

    Q:   Does a provider have the right to refuse to allow residents access to personal clothing and other items that the facility feels is "age inappropriate", based on philosophy of the agency, i.e., social role valorization?

    R:   The regulation at 42 CFR 482.420(a)(12) reads: "The facility must ensure that clients have the right to retain and use appropriate personal possessions and clothing". The interpretive guidance states that individuals should be provided the opportunity, encouraged and trained to use age appropriate materials, but have a right to retain and use possessions and clothing of their choice. This is further defined by the regulation at 42 CAR 483.440(c)(6)(vi) which reads: "The individual program plan must also include opportunities for client choices and self-management". Although the facility should provide alternatives to the individual as well as train them on use of age appropriate possessions, they cannot deny their right to have choice in their possessions. The surveyor would determine how the facility is allowing choice in personal possessions while at the same time assuring that age appropriate options are available and taught to the client.

In addition to the above questions and responses, the Minnesota Department of Health would like to alert you to a CMS website that has additional regulation clarifications for your viewing. The website can be located at: http://www.cms.hhs.gov/medicaid/icfmr/.

Case Mix Reviews

Effective July 1, 1999, Case Mix Review staff from the Minnesota Department of Health will no longer be conducting reviews of clients in ICF/MRs. Facilities which may have used the Case Mix Review as one of the required continued stay reviews will need to assure their utilization review committee conducts reviews in accordance with the federal regulations under 42 CFR 456.350. Please review your utilization review plan to assure it is current and in compliance with federal requirements.

If you have any questions regarding this information bulletin, please contact in writing:

Minnesota Department of Health
Compliance Monitoring
Licensing and Certification Program
85 East Seventh Place, Suite 300
PO Box 64900
St. Paul, Minnesota   55164-0900

Updated Thursday, March 17, 2011 at 01:21PM