Terminating Medicaid ICF/IID Eligibility Based on “Look

3040 - Terminating Medicaid ICF/IID Eligibility Based on “Look Behind” Determination (Rev. 92, Issued, 11-22-13, Effective: 11-22-13, Implementation: 11-22-13) Section 1910(b)(1) of the Act authorizes CMS to terminate approval of a Medicaid ICF/IID’s eligibility to participate in the Medicaid program when CMS determines that the provider does not substantially meet the CoPs for ICFs/IID (42 CFR Part 483). The Act uses the terms “cancel” and “terminate” interchangeably. The adjudicative procedures are similar to those followed for terminating a §1866 provider agreement under §§3010 and 3012. Except in the case of immediate jeopardy situations, termination usually becomes effective after the provider has had an evidentiary hearing before an Administrative Law Judge (ALJ) and the ALJ has upheld the termination. 3040A - Termination Procedures (Rev. 1, 05-21-04) 3040A1 - Immediate Jeopardy (Rev. 1, 05-21-04) At the exit conference, the RO team leader should explain the findings to facility management as well as which findings apparently constitute an immediate jeopardy to client health and safety. (See Appendix Q for examples.) The RO survey team leader explains that if his/her supervisor agrees with the seriousness of the team’s onsite survey findings, the RO will notify the facility by electronic facsimile, telegram, or overnight express mail of the determination to cancel/terminate the facility’s program participation unless the immediate threat is eliminated. The RO allows no more than two working days following the exit conference to determine whether circumstances found in the facility pose an immediate jeopardy to client health and safety and to notify the facility of your determination. The RO notifies the facility and SMA by electronic facsimile, telegram (Exhibit 185), or other expeditious means, that as a result of the finding that an immediate jeopardy to client health and safety exists, the RO is initiating termination proceedings pursuant to §1910(b)(1). The RO telephones the SA to inform them of its determination. The RO gives the facility no more than 5 working days from the date of the notification to eliminate the threat and to notify it of the remedial action taken. Also, the RO should state that if the facility does not notify the RO that the threat has been removed or compliance has been achieved by the time specified, it will assume the condition still exists and termination occurs on the proposed effective date. If the threat is removed but deficiencies still exist at the Condition level, the RO uses the procedures for no immediate threat and gives the provider 90 calendar days from the date of survey to correct the deficiencies. Following CMS termination based on immediate jeopardy, CMS grants up to 30 calendar days of Federal Financial Participation (FFP) for purposes of relocating patients after the effective date of termination. If an appeal is filed by the facility, the ALJ hearing is afforded after the effective date of termination and does not forestall termination from taking effect. 3040A2 - No Immediate Threat to Patients’ Health and Safety (Rev.92, Issued, 11-22-13, Effective: 11-22-13, Implementation: 11-22-13) If the ICF/IID is not in compliance with one or more of the CoPs, the RO completes the actions within the time limits prescribed. a. Tenth Working Day - The RO notifies the provider in writing of its deficiencies and that termination action is being initiated. Included in the notices is the provider’s right to appeal this action, along with the effective date of termination. If the provider makes a credible allegation of compliance prior to the effective date of termination, the RO conducts a revisit. (See §3038.B.) b. Seventieth Calendar Day - The RO completes all related documentation and notifies the facility, the SMA, and the SA. c. Ninetieth Calendar Day - If compliance has not been achieved, the RO terminates participation. If an appeal is filed by the facility, termination must be delayed pending the hearing and decision by the ALJ (see 42 CFR 498.5(j). The provider agreement remains in effect and FFP continues pending the appeal decision. If the facility makes a credible allegation of compliance during the appeal period, it is the RO’s decision whether or not it is in the recipients’ and the Federal Government’s best interests to conduct a revisit and dispose of the case based on the findings. If a revisit is made and the facility failed to achieve compliance, adverse action continues based on the findings of the first Federal survey and the findings of the revisit. If at the time of the revisit the provider is in compliance with the requirements forming the basis for the original termination, but has new deficiencies that are also grounds for termination, the RO initiates a new termination process commencing with the revisit. If the ALJ sustains the termination action, the effective date of termination and cessation of FFP is set by the ALJ. Further appeal by the facility to the DAB does not cause the provider agreement to be extended, i.e., payment does not continue pending a decision by the DAB. Whenever possible, the RO conducts the termination notification and decision-making process in the 90-day timeframe used for Medicare terminations. However, there are circumstances that require that the RO give a facility extra time. For example, with State-owned facilities, it sometimes takes longer to get a PoC because of the need for action by other parts of State government, thus requiring additional processing time. Keep these situations to an absolute minimum. In addition, an ALJ hearing may not be scheduled within the usual 90-day termination timeframe. The reasonable assurance provisions apply to ICFs/IID terminated by CMS.