Notice of preadmission screening and resident review determinations

1. An individual dissatisfied with an adverse determination made with regard to the preadmission screening and resident review requirements of 42 U.S.C. 1396r(e)(7)(A) or (B) may request a fair hearing in review of that determination. 2. The right to request a fair hearing under subsection 1 arises upon receipt of a notice under subsection 3. 3. If the department's action in administering preadmission screening and resident review is adverse to an individual, the department shall provide to the individual a written notice which conforms to section 75-01-03-07 and which includes: a. A statement of the adverse determination; b. The reason for the adverse determination; c. The date of the adverse determination; and d. A statement that 42 U.S.C. 1396r(e)(7) requires the department to make such determinations. 4. For purposes of this section and sections 75-01-03-07 and 75-01-03-09.2: a. "Adverse determination" means a determination made in accordance with 42 U.S.C. 1396r(b)(3)(F) or 42 U.S.C. 1396r(e)(7)(B), through the application of section 75-02-02-09, that the individual does not require the level of services provided by a nursing facility or that the individual does or does not require specialized services, but does not mean a determination, made under 42 CFR 483.128, that an individual is not suspected of having mental illness or mental retardation; and b. "Significant change" means: (1) A significant physical status improvement experienced by a nursing facility resident, such that the resident is more likely to respond to special treatment for that condition or might be considered appropriate for a less restrictive alternative setting; (2) The presence of a nursing facility resident's mental illness, mental retardation, or condition related to mental retardation, not identified prior to admission, when it later emerges or is discovered; (3) Exhibition of increased symptoms of mental illness or behavioral problems by a nursing facility resident; or (4) A circumstance arising if a review resulted in a determination requiring inpatient psychiatric treatment for a nursing facility resident, and an update to that determination is needed to support that individual's admission or readmission to a nursing facility following delivery of psychiatric services. 5. Preadmission screening and resident review, including determinations of significant change, is undertaken applying professional judgment and standards approved by the department that are consistent with the requirements of 42 CFR part 483, subpart C, and 42 U.S.C. 1396r(f) (8).