Current through Register Vol. 54, No. 45, November 9, 2024
Section 1181.511 - Provider conditions of participation(a) OBRA-87, as amended, establishes a number of conditions of participation (42 U.S.C.A. §§ 1396r(a), (b), (c) and (d)). Most of these conditions of participation are not effective until October 1, 1990; however, some are effective prior to that date (OBRA-87, section 4214(a), as amended by sections 411(i)(3)(c) of the Medicare Catastrophic Coverage Act (42 U.S.C.A. § 1396r note)).(b) OBRA-87, as amended, requires providers to meet the conditions of participation established in sections 1861(j) and 1905(c) of the Social Security Act (42 U.S.C.A. §§ 1395x(j) and 1396d(c)), as applicable, in addition to those sections of OBRA-87 itself expressly made effective prior to October 1, 1990 until all of the OBRA-87 conditions of participation become effective (OBRA-87, section 4214(a) and (c)) (42 U.S.C.A. § 1396r note). Providers are required to comply with OBRA-87 requirements as they become effective. See § 1181.41(3) (relating to provider participation requirements).(c) The changes in conditions of participation which OBRA-87, as amended, makes effective prior to October 1, 1990, are: (1) Effective July 1, 1988, a provider shall permit immediate access to a resident-whether or not the resident is applying for or receiving MA or Medicare benefits-by the resident's individual physician, by a representative of the Secretary of the United States Department of Health and Human Services, by a representative of the Commonwealth, by an ombudsman authorized by the Department of Aging-including those employed by a local Area Agency on Aging-and, with respect to residents with developmental disabilities or who are mentally ill, by a representative of Pennsylvania Protection and Advocacy, 116 Pine Street, Harrisburg, Pennsylvania 17101, the agency designated under subchapter III of the Developmental Disabilities Assistance and Bill of Rights Act (42 U.S.C.A. §§ 6041-6043) and the Protection and Advisory for Mentally Ill Individuals Act of 1986 (42 U.S.C.A. §§ 10801-10851). See 42 U.S.C.A. § 1396r(c)(3)(A).(2) Effective January 1, 1989, a provider facility may not admit a new resident-whether or not the person seeking admission is applying for or receiving, or otherwise eligible for MA or Medicare benefits-who is mentally ill or is mentally retarded or has another related condition, as defined in OBRA-87, unless the Department has determined and notified the provider that the individual requires nursing facility services and, if the individual does, whether the individual requires active treatment for mental illness, mental retardation or other related conditions, as defined by regulations and guidelines issued by the United States Department of Health and Human Services. See 42 U.S.C.A. § 1396r(b)(3)(F).(d) Information on the procedures to secure the necessary State agency determinations required to comply with the preadmission screening conditions of participation is presented in § 1181.541 (relating to preadmission screening program). This requirement applies to a person seeking admission and is not restricted to a person applying for or already eligible for MA or Medicare.(e) While other statutory conditions of participation established by OBRA-87 may not apply until October 1, 1990, existing conditions of participation, under Federal and State law and regulations, continue to apply. Providers and their employes should also note that under 42 U.S.C.A. § 1396r(b)(5), a provider is required to provide for approved nurse aide competency evaluation programs for staff members employed as of July 1, 1989 to prepare them for successful completion of an approved competency evaluation program by January 1, 1990, and is limited in its use of unregistered staff members as of January 1, 1990.(f) The Department will be publishing additional notices and statements of policy to inform providers and others about the subsequent phases in the implementation of OBRA-87. The Department will also be promulgating regulations, as necessary.