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§ 440.1 42 CFR Ch. IV (10–1–11 Edition)
440.370 Economy and efficiency. cility and does not actually stay in the
440.375 Comparability. institution for 24 hours.
440.380 Statewideness. Outpatient means a patient of an or-
440.385 Delivery of benchmark and bench-
mark-equivalent coverage through man-
ganized medical facility, or distinct
aged care entities. part of that facility who is expected by
440.390 Assurance of transportation. the facility to receive and who does re-
ceive professional services for less than
AUTHORITY: Sec. 1102 of the Social Security
Act (42 U.S.C. 1302).
a 24-hour period regardless of the hour
of admission, whether or not a bed is
SOURCE: 43 FR 45224, Sept. 29, 1978, unless used, or whether or not the patient re-
otherwise noted. mains in the facility past midnight.
Patient means an individual who is
Subpart A—Definitions receiving needed professional services
that are directed by a licensed practi-
§ 440.1 Basis and purpose. tioner of the healing arts toward the
This subpart interprets and imple- maintenance, improvement, or protec-
ments the following sections of the tion of health, or lessening of illness,
Act: disability, or pain. (See also § 435.1010 of
1902(a)(70), State option to establish a non- this chapter for definitions relating to
emergency medical transportation program. institutional care.)
1905(a) Services included in the term (b) Definitions of services for FFP pur-
‘‘medical assistance.’’ poses. Except as limited in part 441,
1905 (c), (d), (f) through (i), (l), and (m) FFP is available in expenditures under
Definitions of institutions and services that the State plan for medical or remedial
are included in the term ‘‘medical assist- care and services as defined in this sub-
ance.’’
part.
1913 ‘‘Swing-bed’’ services. (See §§ 447.280
and 482.66 of this chapter for related provi- [43 FR 45224, Sept. 29, 1978, as amended at 52
sions on ‘‘swing-bed’’ services.) FR 47934, Dec. 17, 1987; 71 FR 39229, July 12,
1915(c) Home and community-based serv- 2006]
ices listed as ‘‘medical assistance’’ and fur-
nished under waivers under that section to § 440.10 Inpatient hospital services,
individuals who would otherwise require the other than services in an institution
level of care furnished in a hospital, NF, or for mental diseases.
ICF/MR.
1915(d) Home and community-based serv-
(a) Inpatient hospital services means
ices listed as ‘‘medical assistance’’ and fur- services that—
nished under waivers under that section to (1) Are ordinarily furnished in a hos-
individuals age 65 or older who would other- pital for the care and treatment of in-
wise require the level of care furnished in a patients;
NF. (2) Are furnished under the direction
[57 FR 29155, June 30, 1992, as amended at 61 of a physician or dentist; and
FR 38398, July 24, 1996; 73 FR 77530, Dec. 19, (3) Are furnished in an institution
2008] that—
(i) Is maintained primarily for the
§ 440.2 Specific definitions; definitions care and treatment of patients with
of services for FFP purposes. disorders other than mental diseases;
(a) Specific definitions. (ii) Is licensed or formally approved
Inpatient means a patient who has as a hospital by an officially des-
been admitted to a medical institution ignated authority for State standard-
as an inpatient on recommendation of setting;
a physician or dentist and who— (iii) Meets the requirements for par-
(1) Receives room, board and profes- ticipation in Medicare as a hospital;
sional services in the institution for a and
24 hour period or longer, or (iv) Has in effect a utilization review
(2) Is expected by the institution to plan, applicable to all Medicaid pa-
receive room, board and professional tients, that meets the requirements of
services in the institution for a 24 hour § 482.30 of this chapter, unless a waiver
period or longer even though it later has been granted by the Secretary.
develops that the patient dies, is dis- (b) Inpatient hospital services do not
charged or is transferred to another fa- include SNF and ICF services furnished
256
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Centers for Medicare & Medicaid Services, HHS § 440.20
by a hospital with a swing-bed ap- (3) Services and supplies that are fur-
proval. nished as an incident to professional
[47 FR 21050, May 17, 1982, as amended at 47
services furnished by a physician, phy-
FR 31532, July 20, 1982; 51 FR 22041, June 17, sician assistant, nurse practitioner,
1986, 52 FR 47934, Dec. 17, 1987; 60 FR 61486, nurse midwife, or specialized nurse
Nov. 30, 1995] practitioner. (See §§ 405.2413 and 405.2415
of this chapter for the criteria for de-
§ 440.20 Outpatient hospital services termining whether services and sup-
and rural health clinic services. plies are included under this para-
(a) Outpatient hospital services means graph.)
preventive, diagnostic, therapeutic, re- (4) Part-time or intermittent visiting
habilitative, or palliative services nurse care and related medical supplies
that— (other than drugs and biologicals) if:
(1) Are furnished to outpatients; (i) The clinic is located in an area in
(2) Are furnished by or under the di- which the Secretary has determined
rection of a physician or dentist; and that there is a shortage of home health
(3) Are furnished by an institution agencies (see § 405.2417 of this chapter):
that— (ii) The services are furnished by a
(i) Is licensed or formally approved as registered nurse or licensed practical
a hospital by an officially designated nurse or a licensed vocational nurse
authority for State standard-setting; employed by, or otherwise com-
and pensated for the services by, the clinic;
(ii) Meets the requirements for par-
(iii) The services are furnished under
ticipation in Medicare as a hospital;
a written plan of treatment that is es-
and
(4) May be limited by a Medicaid tablished and reviewed at least every 60
agency in the following manner: A days by a supervising physician of the
Medicaid agency may exclude from the clinic or that is established by a physi-
definition of ‘‘outpatient hospital serv- cian, physician assistant, nurse practi-
ices’’ those types of items and services tioner, nurse midwife, or specialized
that are not generally furnished by nurse practitioner and reviewed and
most hospitals in the State. approved at least every 60 days by a su-
(b) Rural health clinic services. If nurse pervising physician of the clinic; and
practitioners or physician assistants (iv) The services are furnished to a
(as defined in § 481.1 of this chapter) are homebound recipient. For purposes of
not prohibited by State law from fur- visiting nurse care, a ‘‘homebound’’ re-
nishing primary health care, ‘‘rural cipient means one who is permanently
health clinic services’’ means the fol- or temporarily confined to his place of
lowing services when furnished by a residence because of a medical or
rural health clinic that has been cer- health condition. He may be considered
tified in accordance with part 491 of homebound if he leaves the place of
this chapter. residence infrequently. For this pur-
(1) Services furnished by a physician pose, ‘‘place of residence’’ does not in-
within the scope of practice of his pro- clude a hospital or a skilled nursing fa-
fession under State law, if the physi- cility.
cian performs the services in the clinic (c) Other ambulatory services furnished
or the services are furnished away from by a rural health clinic. If the State plan
the clinic and the physician has an covers rural health clinic services,
agreement with the clinic providing other ambulatory services means am-
that he will be paid by it for such serv- bulatory services other than rural
ices. health clinic services, as defined in
(2) Services furnished by a physician paragraph (b) of this section, that are
assistant, nurse practitioner, nurse otherwise included in the plan and
midwife or other specialized nurse meet specific State plan requirements
practitioner (as defined in §§ 405.2401 for furnishing those services. Other
and 491.2 of this chapter) if the services ambulatory services furnishd by a
are furnished in accordance with the rural health clinic are not subject to
requirements specified in § 405.2414(a) of the physician supervision requirements
this chapter. specified in § 491.8(b) of this chapter,
257
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§ 440.30 42 CFR Ch. IV (10–1–11 Edition)
unless required by State law or the (2) Nursing facility services include
State plan. services provided by any facility lo-
[43 FR 45224, Sept. 29, 1978, as amended at 47
cated on an Indian reservation and cer-
FR 21050, May 17, 1982; 52 FR 47934, Dec. 17, tified by the Secretary as meeting the
1987; 60 FR 61486, Nov. 30, 1995; 73 FR 66198, requirements of subpart B of part 483 of
Nov. 7, 2008; 74 FR 31195, June 30, 2009] this chapter.
(b) EPSDT. ‘‘Early and periodic
§ 440.30 Other laboratory and X-ray screening and diagnosis and treat-
services. ment’’ means—
Other laboratory and X-ray services (1) Screening and diagnostic services
means professional and technical lab- to determine physical or mental de-
oratory and radiological services— fects in recipients under age 21; and
(a) Ordered and provided by or under (2) Health care, treatment, and other
the direction of a physician or other li- measures to correct or ameliorate any
censed practioner of the healing arts defects and chronic conditions discov-
within the scope of his practice as de- ered. (See subpart B of part 441 of this
fined by State law or ordered by a phy- chapter.)
sician but provided by referral labora- (c) Family planning services and sup-
tory; plies for individuals of child-bearing age.
(b) Provided in an office or similar
[Reserved]
facility other than a hospital out-
patient department or clinic; and [59 FR 56233, Nov. 10, 1994; 60 FR 50117, Sept.
(c) Furnished by a laboratory that 28, 1995, as amended at 61 FR 59198, Nov. 21,
meets the requirements of part 493 of 1996; 68 FR 46071, Aug. 4, 2003]
this chapter.
§ 440.50 Physicians’ services and med-
[46 FR 42672, Aug. 24, 1981, as amended at 57 ical and surgical services of a den-
FR 7135, Feb. 28, 1992] tist.
§ 440.40 Nursing facility services for (a) ‘‘Physicians’ services,’’ whether
individuals age 21 or older (other furnished in the office, the recipient’s
than services in an institution for home, a hospital, a skilled nursing fa-
mental disease), EPSDT, and family cility, or elsewhere, means services
planning services and supplies. furnished by a physician—
(a) Nursing facility services. (1) ‘‘Nurs- (1) Within the scope of practice of
ing facility services for individuals age medicine or osteopathy as defined by
21 or older, other than services in an State law; and
institution for mental diseases’’, means (2) By or under the personal super-
services that are— vision of an individual licensed under
(i) Needed on a daily basis and re- State law to practice medicine or oste-
quired to be provided on an inpatient opathy.
basis under §§ 409.31 through 409.35 of (b) ‘‘Medical and surgical services of
this chapter. a dentist’’ means medical and surgical
(ii) Provided by— services furnished, on or after January
(A) A facility or distinct part (as de- 1, 1988, by a doctor of dental medicine
fined in § 483.5(b) of this chapter) that or dental surgery if the services are
meets the requirements for participa- services that—
tion under subpart B of part 483 of this (1) If furnished by a physician, would
chapter, as evidenced by a valid agree- be considered physician’s services.
ment between the Medicaid agency and (2) Under the law of the State where
the facility for providing nursing facil- they are furnished, may be furnished
ity services and making payments for either by a physician or by a doctor of
services under the plan; or dental medicine or dental surgery; and
(B) If specified in the State plan, a
(3) Are furnished by a doctor of den-
swing-bed hospital that has an ap-
tal medicine or dental surgery who is
proval from CMS to furnish skilled
authorized to furnish those services in
nursing facility services in the Medi-
the State in which he or she furnished
care program; and
the services.
(iii) Ordered by and provided under
the direction of a physician. [56 FR 8851, Mar. 1, 1991]
258
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Centers for Medicare & Medicaid Services, HHS § 440.70
§ 440.60 Medical or other remedial (3) Medical supplies, equipment, and
care provided by licensed practi- appliances suitable for use in the home.
tioners. (i) A recipient’s need for medical sup-
(a) ‘‘Medical care or any other type plies, equipment, and appliances must
remedial care provided by licensed be reviewed by a physician annually.
practitioners’’ means any medical or (ii) Frequency of further physician
remedial care or services, other than review of a recipient’s continuing need
physicians’ services, provided by li- for the items is determined on a case-
censed practitioners within the scope by-case basis, based on the nature of
of practice as defined under State law. the item prescribed;
(b) Chiropractors’ services include (4) Physical therapy, occupational
only services that—
therapy, or speech pathology and audi-
(1) Are provided by a chiropractor
ology services, provided by a home
who is licensed by the State and meets
standards issued by the Secretary health agency or by a facility licensed
under § 405.232(b) of this chapter; and by the State to provide medical reha-
(2) Consists of treatment by means of bilitation services. (See § 441.15 of this
manual manipulation of the spine that subchapter.)
the chiropractor is legally authorized (c) A recipient’s place of residence,
by the State to perform. for home health services, does not in-
clude a hospital, nursing facility, or in-
§ 440.70 Home health services. termediate care facility for the men-
(a) ‘‘Home health services’’ means tally retarded, except for home health
the services in paragraph (b) of this services in an intermediate care facil-
section that are provided to a recipi- ity for the mentally retarded that are
ent— not required to be provided by the fa-
(1) At his place of residence, as speci- cility under subpart I of part 483. For
fied in paragraph (c) of this section; example, a registered nurse may pro-
and vide short-term care for a recipient in
(2) On his or her physician’s orders as an intermediate care facility for the
part of a written plan of care that the mentally retarded during an acute ill-
physician reviews every 60 days, except ness to avoid the recipient’s transfer to
as specified in paragraph (b)(3) of this a nursing facility.
section.
(d) ‘‘Home health agency’’ means a
(b) Home health services include the
following services and items. Those public or private agency or organiza-
listed in paragraphs (b) (1), (2) and (3) tion, or part of an agency or organiza-
of this section are required services; tion, that meets requirements for par-
those in paragraph (b)(4) of this section ticipation in Medicare, including the
are optional. capitalization requirements under
(1) Nursing service, as defined in the § 489.28 of this chapter.
State Nurse Practice Act, that is pro- (e) A ‘‘facility licensed by the State
vided on a part-time or intermittent to provide medical rehabilitation serv-
basis by a home health agency as de- ices’’ means a facility that—
fined in paragraph (d) of this section, (1) Provides therapy services for the
or if there is no agency in the area, a primary purpose of assisting in the re-
registered nurse who— habilitation of disabled individuals
(i) Is currently licensed to practice in through an integrated program of—
the State; (i) Medical evaluation and services;
(ii) Receives written orders from the and
patient’s physician;
(ii) Psychological, social, or voca-
(iii) Documents the care and services
tional evaluation and services; and
provided; and
(iv) Has had orientation to accept- (2) Is operated under competent med-
able clinical and administrative rec- ical supervision either—
ordkeeping from a health department (i) In connection with a hospital; or
nurse.
(2) Home health aide service provided
by a home health agency,
259
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§ 440.80 42 CFR Ch. IV (10–1–11 Edition)
(ii) As a facility in which all medical (1) The teeth and associated struc-
and related health services are pre- tures of the oral cavity; and
scribed by or under the direction of in- (2) Disease, injury, or impairment
dividuals licensed to practice medicine that may affect the oral or general
or surgery in the State. health of the recipient.
(b) ‘‘Dentist’’ means an individual li-
[43 FR 45224, Sept. 29, 1978, as amended at 45
FR 24888, Apr. 11, 1980; 62 FR 47902, Sept. 11,
censed to practice dentistry or dental
1997; 63 FR 310, Jan. 5, 1998] surgery.
[43 FR 45224, Sept. 29, 1978, as amended at 45
§ 440.80 Private duty nursing services. FR 24888, Apr. 11, 1980]
Private duty nursing services means
nursing services for recipients who re- § 440.110 Physical therapy, occupa-
tional therapy, and services for in-
quire more individual and continuous dividuals with speech, hearing, and
care than is available from a visiting language disorders.
nurse or routinely provided by the
nursing staff of the hospital or skilled (a) Physical therapy. (1) Physical ther-
nursing facility. These services are pro- apy means services prescribed by a
vided— physician or other licensed practi-
tioner of the healing arts within the
(a) By a registered nurse or a licensed
scope of his or her practice under State
practical nurse;
law and provided to a recipient by or
(b) Under the direction of the recipi-
under the direction of a qualified phys-
ent’s physician; and
ical therapist. It includes any nec-
(c) To a recipient in one or more of
essary supplies and equipment.
the following locations at the option of
(2) A ‘‘qualified physical therapist’’ is
the State—
an individual who is—
(1) His or her own home; (i) A graduate of a program of phys-
(2) A hospital; or ical therapy approved by both the Com-
(3) A skilled nursing facility. mittee on Allied Health Education and
[52 FR 47934, Dec. 17, 1987] Accreditation of the American Medical
Association and the American Physical
§ 440.90 Clinic services. Therapy Association or its equivalent;
Clinic services means preventive, diag- and
nostic, therapeutic, rehabilitative, or (ii) Where applicable, licensed by the
palliative services that are furnished State.
by a facility that is not part of a hos- (b) Occupational therapy. (1) Occupa-
pital but is organized and operated to tional therapy means services pre-
provide medical care to outpatients. scribed by a physician or other licensed
The term includes the following serv- practitioner of the healing arts within
ices furnished to outpatients: the scope of his or her practice under
(a) Services furnished at the clinic by State law and provided to a recipient
or under the direction of a physician or by or under the direction of a qualified
dentist. occupational therapist. It includes any
(b) Services furnished outside the necessary supplies and equipment.
(2) A ‘‘qualified occupation thera-
clinic, by clinic personnel under the di-
pist’’ is an individual who is—
rection of a physician, to an eligible in-
(i) Registered by the American Occu-
dividual who does not reside in a per-
pational Therapy Association; or
manent dwelling or does not have a
(ii) A graduate of a program in occu-
fixed home or mailing address.
pational therapy approved by the Com-
[56 FR 8851, Mar. 1, 1991, as amended at 60 FR mittee on Allied Health Education and
61486, Nov. 30, 1995] Accreditation of the American Medical
Association and engaged in the supple-
§ 440.100 Dental services. mental clinical experience required be-
(a) ‘‘Dental services’’ means diag- fore registration by the American Oc-
nostic, preventive, or corrective proce- cupational Therapy Association.
dures provided by or under the super- (c) Services for individuals with speech,
vision of a dentist in the practice of his hearing, and language disorders. (1) Serv-
profession, including treatment of— ices for individuals with speech, hearing,
260
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Centers for Medicare & Medicaid Services, HHS § 440.130
and language disorders means diag- doctoral degree in audiology, or a re-
nostic, screening, preventive, or cor- lated field; and successfully completed
rective services provided by or under a national examination in audiology
the direction of a speech pathologist or approved by the Secretary.
audiologist, for which a patient is re- [43 FR 45224, Sept. 29, 1978, as amended at 45
ferred by a physician or other licensed FR 24888, Apr. 11, 1980; 56 FR 8854, Mar. 1,
practitioner of the healing arts within 1991; 60 FR 19861, Apr. 21, 1995; 69 FR 30587,
the scope of his or her practice under May 28, 2004]
State law. It includes any necessary
supplies and equipment. § 440.120 Prescribed drugs, dentures,
(2) A ‘‘speech pathologist’’ is an indi- prosthetic devices, and eyeglasses.
vidual who meets one of the following (a) ‘‘Prescribed drugs’’ means simple
conditions: or compound substances or mixtures of
(i) Has a certificate of clinical com- substances prescribed for the cure,
petence from the American Speech and mitigation, or prevention of disease, or
Hearing Association. for health maintenance that are—
(ii) Has completed the equivalent (1) Prescribed by a physician or other
educational requirements and work ex- licensed practitioner of the healing
perience necessary for the certificate. arts within the scope of this profes-
(iii) Has completed the academic pro- sional practice as defined and limited
gram and is acquiring supervised work by Federal and State law;
experience to qualify for the certifi- (2) Dispensed by licensed pharmacists
cate. and licensed authorized practitioners
(3) A ‘‘qualified audiologist’’ means in accordance with the State Medical
an individual with a master’s or doc- Practice Act; and
toral degree in audiology that main- (3) Dispensed by the licensed phar-
tains documentation to demonstrate macist or practitioner on a written
that he or she meets one of the fol- prescription that is recorded and main-
lowing conditions: tained in the pharmacist’s or practi-
(i) The State in which the individual tioner’s records.
furnishes audiology services meets or (b) ‘‘Dentures’’ are artificial struc-
exceeds State licensure requirements tures made by or under the direction of
in paragraph (c)(3)(ii)(A) or (c)(3)(ii)(B) a dentist to replace a full or partial set
of this section, and the individual is li- of teeth.
censed by the State as an audiologist (c) ‘‘Prosthetic devices’’ means re-
to furnish audiology services. placement, corrective, or supportive
(ii) In the case of an individual who devices prescribed by a physician or
furnishes audiology services in a State other licensed practitioner of the heal-
that does not license audiologists, or ing arts within the scope of his prac-
an individual exempted from State li- tice as defined by State law to—
censure based on practice in a specific (1) Artificially replace a missing por-
institution or setting, the individual tion of the body;
must meet one of the following condi- (2) Prevent or correct physical de-
tions: formity or malfunction; or
(A) Have a Certificate of Clinical (3) Support a weak or deformed por-
Competence in Audiology granted by tion of the body.
the American Speech-Language-Hear- (d) ‘‘Eyeglasses’’ means lenses, in-
ing Association. cluding frames, and other aids to vision
(B) Have successfully completed a prescribed by a physician skilled in dis-
minimum of 350 clock-hours of super- eases of the eye or an optometrist.
vised clinical practicum (or is in the
process of accumulating that super- § 440.130 Diagnostic, screening, pre-
vised clinical experience under the su- ventive, and rehabilitative services.
pervision of a qualified master or doc- (a) ‘‘Diagnostic services,’’ except as
toral-level audiologist); performed at otherwise provided under this subpart,
least 9 months of full-time audiology includes any medical procedures or
services under the supervision of a supplies recommended by a physician
qualified master or doctoral-level audi- or other licensed practitioner of the
ologist after obtaining a master’s or healing arts, within the scope of his
261
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§ 440.140 42 CFR Ch. IV (10–1–11 Edition)
practice under State law, to enable him eases’’ means nursing facility services
to identify the existence, nature, or ex- as defined in § 440.40 and in subpart B of
tent of illness, injury, or other health part 483 of this chapter that are pro-
deviation in a recipient. vided in institutions for mental dis-
(b) ‘‘Screening services’’ means the eases, as defined in § 435.1010 of this
use of standardized tests given under chapter.
medical direction in the mass examina-
tion of a designated population to de- [59 FR 56234, Nov. 10, 1994, as a amended at 71
FR 39229, July 12, 2006]
tect the existence of one or more par-
ticular diseases or health deviations or § 440.150 Intermediate care facility
to identify for more definitive studies (ICF/MR) services.
individuals suspected of having certain
diseases. (a) ‘‘ICF/MR services’’ means those
(c) ‘‘Preventive services’’ means serv- items and services furnished in an in-
ices provided by a physician or other li- termediate care facility for the men-
censed practitioner of the healing arts tally retarded if the following condi-
within the scope of his practice under tions are met:
State law to— (1) The facility fully meets the re-
(1) Prevent disease, disability, and quirements for a State license to pro-
other health conditions or their pro- vide services that are above the level of
gression; room and board;
(2) Prolong life; and (2) The primary purpose of the ICF/
(3) Promote physical and mental MR is to furnish health or rehabilita-
health and efficiency. tive services to persons with mental re-
(d) ‘‘Rehabilitative services,’’ except tardation or persons with related con-
as otherwise provided under this sub- ditions;
part, includes any medical or remedial (3) The ICF/MR meets the standards
services recommended by a physician specified in subpart I of part 483 of this
or other licensed practitioner of the chapter.
healing arts, within the scope of his (4) The recipient with mental retar-
practice under State law, for maximum dation for whom payment is requested
reduction of physical or mental dis- is receiving active treatment, as speci-
ability and restoration of a recipient to fied in § 483.440 of this chapter.
his best possible functional level. (5) The ICF/MR has been certified to
§ 440.140 Inpatient hospital services, meet the requirements of subpart C of
nursing facility services, and inter- part 442 of this chapter, as evidenced
mediate care facility services for in- by a valid agreement between the Med-
dividuals age 65 or older in institu- icaid agency and the facility for fur-
tions for mental diseases. nishing ICF/MR services and making
(a) Inpatient hospital services. ‘‘Inpa- payments for these services under the
tient hospital services for individuals plan.
age 65 or older in institutions for men- (b) ICF/MR services may be furnished
tal diseases’’ means services provided in a distinct part of a facility other
under the direction of a physician for than an ICF/MR if the distinct part—
the care and treatment of recipients in (1) Meets all requirements for an ICF/
an institution for mental diseases that MR, as specified in subpart I of part 483
meets the requirements specified in of this chapter;
§ 482.60(b), (c), and (e) of this chapter (2) Is clearly an identifiable living
and— unit, such as an entire ward, wing,
(1) Meets the requirements for utili- floor or building;
zation review in § 482.30(a), (b), (d), and (3) Consists of all beds and related
(e) of this chapter; or services in the unit;
(2) Has been granted a waiver of (4) Houses all recipients for whom
those utilization review requirements payment is being made for ICF/MR
under section 1903(i)(4) of the Act and services; and
subpart H of part 456 of this chapter.
(5) Is approved in writing by the sur-
(b) Nursing facility services. ‘‘Nursing
vey agency.
facility services for individuals age 65
or older in institutions for mental dis- [59 FR 56234, Nov. 10, 1994]
262
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Centers for Medicare & Medicaid Services, HHS § 440.160
§ 440.155 Nursing facility services, by a distinct part of a facility other
other than in institutions for men- than a nursing facility, it may not re-
tal diseases. quire transfer of a recipient within or
(a) ‘‘Nursing facility services, other between facilities if, in the opinion of
than in an institution for mental dis- the attending physician, it might be
eases’’ means services provided in a fa- harmful to the physical or mental
cility that— health of the recipient.
(1) Fully meets the requirements for (e) Nursing facility services may in-
a State license to provide, on a regular clude services provided in a swing-bed
basis, health-related services to indi- hospital that has an approval to fur-
viduals who do not require hospital nish nursing facility services.
care, but whose mental or physical
condition requires services that— [59 FR 56234, Nov. 10, 1994, as amended at 64
(i) Are above the level of room and FR 67052, Nov. 30, 1999; 68 FR 46071, Aug. 4,
board; and 2003]
(ii) Can be made available only
through institutional facilities; § 440.160 Inpatient psychiatric serv-
ices for individuals under age 21.
(2) Has been certified to meet the re-
quirements of subpart C of part 442 of ‘‘Inpatient psychiatric services for
this chapter as evidenced by a valid individuals under age 21’’ means serv-
agreement between the Medicaid agen- ices that—
cy and the facility for providing nurs- (a) Are provided under the direction
ing facility services and making pay- of a physician;
ments for services under the plan; and (b) Are provided by—
(b) ‘‘Nursing facility services’’ in- (1) A psychiatric hospital that under-
clude services— goes a State survey to determine
(1) Considered appropriate by the whether the hospital meets the re-
State and provided by a religious non- quirements for participation in Medi-
medical institution as defined in care as a psychiatric hospital as speci-
§ 440.170(b); or
fied in § 482.60 of this chapter, or is ac-
(2) Provided by a facility located on
credited by a national organization
an Indian reservation that—
(i) Furnishes, on a regular basis, whose psychiatric hospital accrediting
health-related services; and program has been approved by CMS; or
(ii) Is certified by the Secretary to a hospital with an inpatient psy-
meet the standards in subpart E of part chiatric program that undergoes a
442 of this chapter. State survey to determine whether the
(c) ‘‘Nursing facility services’’ may hospital meets the requirements for
include services provided in a distinct participation in Medicare as a hospital,
part (as defined in § 483.5(b) of this as specified in part 482 of this chapter,
chapter) of a facility other than a nurs- or is accredited by a national accred-
ing facility if the distinct part (as de- iting organization whose hospital ac-
fined in § 483.5(b) of this chapter)— crediting program has been approved
(1) Meets all requirements for a nurs- by CMS.
ing facility; (2) A psychiatric facility which is ac-
(2) Is an identifiable unit, such as an credited by the Joint Commission on
entire ward or contiguous ward, a Accreditation of Healthcare Organiza-
wing, floor, or building; tions, the Council on Accreditation of
(3) Consists of all beds and related fa- Services for Families and Children, the
cilities in the unit; Commission on Accreditation of Reha-
(4) Houses all recipients for whom bilitation Facilities, or by any other
payment is being made for nursing fa- accrediting organization, with com-
cility services, except as provided in parable standards, that is recognized
paragraph (d) of this section; by the State.
(5) Is clearly identified; and
(c) Meet the requirements in § 441.151
(6) Is approved in writing by the sur-
of this subchapter.
vey agency.
(d) If a State includes as nursing fa- [63 FR 64198, Nov. 19, 1998, as amended at 75
cility services those services provided FR 50418, Aug. 16, 2010]
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§ 440.165 42 CFR Ch. IV (10–1–11 Edition)
§ 440.165 Nurse-midwife service. nurse-midwife for a total of 12 months
(a) ‘‘Nurse-midwife services’’ means during any 18-month period from Au-
services that— gust 8, 1976 to July 16, 1982.
(1) Are furnished by a nurse-midwife [47 FR 21050, May 17, 1982; 47 FR 23448, May
within the scope of practice authorized 28, 1982, as amended at 55 FR 48611, Nov. 21,
by State law or regulation and, in the 1990; 61 FR 61486, Nov. 30, 1996]
case of inpatient or outpatient hospital
services or clinic services, are fur- § 440.166 Nurse practitioner services.
nished by or under the direction of a (a) Definition of nurse practitioner serv-
nurse-midwife to the extent permitted ices. Nurse practitioner services means
by the facility; and services that are furnished by a reg-
(2) Unless required by State law or istered professional nurse who meets a
regulations or a facility, are reim- State’s advanced educational and clin-
bursed without regard to whether the ical practice requirements, if any, be-
nurse-midwife is under the supervision yond the 2 to 4 years of basic nursing
of, or associated with, a physician or education required of all registered
other health care provider. (See § 441.21 nurses.
of this chapter for provisions on inde- (b) Requirements for certified pediatric
pendent provider agreements for nurse- nurse practitioner. The practitioner
midwives.) must be a registered professional nurse
(b) ‘‘Nurse-midwife’’ means a reg- who meets the requirements specified
istered professional nurse who meets in either paragraphs (b)(1) or (b)(2) of
the following requirements: this section.
(1) Is currently licensed to practice in (1) If the State specifies qualifica-
the State as a registered professional tions for pediatric nurse practitioners,
nurse. the practitioner must—
(2) Is legally authorized under State (i) Be currently licensed to practice
law or regulations to practice as a in the State as a registered profes-
nurse-midwife. sional nurse; and
(3) Except as provided in paragraph (ii) Meet the State requirements for
(b)(4) of this section, has completed a qualification of pediatric nurse practi-
program of study and clinical experi- tioners in the State in which he or she
ence for nurse-midwives, as specified furnishes the services.
by the State. (2) If the State does not specify, by
(4) If the State does not specify a pro- specialty, qualifications for pediatric
gram of study and clinical experience nurse practitioners, but the State does
that nurse-midwives must complete to define qualifications for nurses in ad-
practice in that State, meets one of the vanced practice or general nurse prac-
following conditions: titioners, the practitioner must—
(i) Is currently certified as a nurse- (i) Meet qualifications for nurses in
midwife by the American College of advanced practice or general nurse
Nurse-Midwives (ACNM or by the practitioners as defined by the State;
ACNM Certification Council, Inc. and
(ACC). (ii) Have a pediatric nurse practice
(ii) Has satisfactorily completed a limited to providing primary health
formal education program (of at least care to persons less than 21 years of
one academic year) that, upon comple- age.
tion qualifies the nurse to take the cer- (c) Requirements for certified family
tification examination offered by the nurse practitioner. The practitioner
American College of Nurse-Midwives must be a registered professional nurse
(ACNM) or by the ACNM Certification who meets the requirements specified
Council, Inc. (ACC). in either paragraph (c)(1) or (c)(2) of
(iii) Has successfully completed a for- this section.
mal educational program for preparing (1) If the State specifies qualifica-
registered nurses to furnish gyneco- tions for family nurse practitioners,
logical and obstetrical care to women the practitioner must—
during pregnancy, delivery, and the (i) Be currently licensed to practice
postpartum period, and care to normal in the State as a registered profes-
newborns, and was practicing as a sional nurse; and
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Centers for Medicare & Medicaid Services, HHS § 440.169
(ii) Meet the State requirements for (1) Include location, coordination,
qualification of family nurse practi- and monitoring of primary health care
tioners in the State in which he or she services; and
furnishes the services. (2) Are provided under a contract be-
(2) If the State does not specify, by tween the State and either of the fol-
specialty, qualifications for family lowing:
nurse practitioners, but the State does (i) A PCCM who is a physician or
define qualifications for nurses in ad- may, at State option, be a physician
vanced practice or general nurse prac- assistant, nurse practitioner, or cer-
titioners, the practitioner must— tified nurse-midwife.
(i) Meet qualifications for nurses in (ii) A physician group practice, or an
advanced practice or general nurse entity that employs or arranges with
practitioners as defined by the State; physicians to furnish the services.
and (b) Primary care case management
(ii) Have a family nurse practice lim- services may be offered by the State—
ited to providing primary health care (1) As a voluntary option under the
to individuals and families. State plan; or
(d) Payment for nurse practitioner serv- (2) On a mandatory basis under sec-
ices. The Medicaid agency must reim- tion 1932 (a)(1) of the Act or under sec-
burse nurse practitioners for their tion 1915(b) or section 1115 waiver au-
services in accordance with § 441.22(c) of thority.
this subchapter.
[67 FR 41115, June 14, 2002]
[60 FR 19861, Apr. 21, 1995]
§ 440.169 Case management services.
§ 440.167 Personal care services.
(a) Case management services means
Unless defined differently by a State services furnished to assist individuals,
agency for purposes of a waiver granted eligible under the State plan who re-
under part 441, subpart G of this chap- side in a community setting or are
ter— transitioning to a community setting,
(a) Personal care services means serv- in gaining access to needed medical,
ices furnished to an individual who is social, educational, and other services,
not an inpatient or resident of a hos- in accordance with § 441.18 of this chap-
pital, nursing facility, intermediate ter.
care facility for the mentally retarded, (b) Targeted case management services
or institution for mental disease that means case management services fur-
are— nished without regard to the require-
(1) Authorized for the individual by a ments of § 431.50(b) of this chapter (re-
physician in accordance with a plan of lated to statewide provision of serv-
treatment or (at the option of the ices) and § 440.240 (related to com-
State) otherwise authorized for the in- parability). Targeted case management
dividual in accordance with a service services may be offered to individuals
plan approved by the State; in any defined location of the State or
(2) Provided by an individual who is to individuals within targeted groups
qualified to provide such services and specified in the State plan.
who is not a member of the individual’s (c) [Reserved]
family; and (d) The assistance that case man-
(3) Furnished in a home, and at the agers provide in assisting eligible indi-
State’s option, in another location. viduals obtain services includes—
(b) For purposes of this section, fam- (1) Comprehensive assessment and
ily member means a legally responsible periodic reassessment of individual
relative. needs, to determine the need for any
[42 FR 47902, Sept. 11, 1997] medical, educational, social, or other
services. These assessment activities
§ 440.168 Primary care case manage- include the following:
ment services. (i) Taking client history.
(a) Primary care case management (ii) Identifying the needs of the indi-
services means case management re- vidual, and completing related docu-
lated services that— mentation.
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§ 440.170 42 CFR Ch. IV (10–1–11 Edition)
(iii) Gathering information from (e) Case management may include
other sources, such as family members, contacts with non-eligible individuals
medical providers, social workers, and that are directly related to the identi-
educators (if necessary) to form a com- fication of the eligible individual’s
plete assessment of the eligible indi- needs and care, for the purposes of
vidual. helping the eligible individual access
(2) Development (and periodic revi- services, identifying needs and sup-
sion) of a specific care plan based on ports to assist the eligible individual in
the information collected through the obtaining services, providing case man-
assessment, that includes the fol- agers with useful feedback, and alert-
lowing: ing case managers to changes in the el-
(i) Specifies the goals and actions to igible individual’s needs.
address the medical, social, edu- [72 FR 68091, Dec. 4, 2007, as amended at 74
cational, and other services needed by FR 31196, June 30, 2009]
the eligible individual.
(ii) Includes activities such as ensur- § 440.170 Any other medical care or re-
ing the active participation of the eli- medial care recognized under State
gible individual and working with the law and specified by the Secretary.
individual (or the individual’s author- (a) Transportation. (1) ‘‘Transpor-
ized health care decision maker) and tation’’ includes expenses for transpor-
others to develop those goals. tation and other related travel ex-
(iii) Identifies a course of action to penses determined to be necessary by
respond to the assessed needs of the eli- the agency to secure medical examina-
gible individual. tions and treatment for a recipient.
(3) Referral and related activities (2) Except as provided in paragraph
(such as scheduling appointments for (a)(4), transportation, as defined in this
the individual) to help the eligible indi- section, is furnished only by a provider
vidual obtain needed services, includ- to whom a direct vendor payment can
ing activities that help link the indi- appropriately be made by the agency.
vidual with medical, social, and edu- (3) ‘‘Travel expenses’’ include—
cational providers or other programs (i) The cost of transportation for the
and services that are capable of pro- recipient by ambulance, taxicab, com-
viding needed services to address iden- mon carrier, or other appropriate
tified needs and achieve goals specified means;
in the care plan. (ii) The cost of meals and lodging en
(4) Monitoring and follow-up activi- route to and from medical care, and
ties, including activities and contacts while receiving medical care; and
that are necessary to ensure that the (iii) The cost of an attendant to ac-
care plan is effectively implemented company the recipient, if necessary,
and adequately addresses the needs of and the cost of the attendant’s trans-
the eligible individual and which may portation, meals, lodging, and, if the
be with the individual, family mem- attendant is not a member of the re-
bers, service providers, or other enti- cipient’s family, salary.
ties or individuals and conducted as (4) Non-emergency medical transpor-
frequently as necessary, and including tation brokerage program. At the op-
at least one annual monitoring, to help tion of the State, and notwithstanding
determine whether the following condi- § 431.50 (statewide operation) and
tions are met: § 431.51 (freedom of choice of providers)
(i) Services are being furnished in ac- of this chapter and § 440.240 (com-
cordance with the individual’s care parability of services for groups), a
plan. State plan may provide for the estab-
(ii) Services in the care plan are ade- lishment of a non-emergency medical
quate. transportation brokerage program in
(iii) There are changes in the needs order to more cost-effectively provide
or status of the eligible individual. non-emergency medical transportation
Monitoring and follow-up activities in- services for individuals eligible for
clude making necessary adjustments in medical assistance under the State
the care plan and service arrangements plan who need access to medical care
with providers. or services, and have no other means of
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Centers for Medicare & Medicaid Services, HHS § 440.170
transportation. These transportation emergency transportation’’ substituted
services include wheelchair vans, taxis, for ‘‘DHS’’; or
stretcher cars, bus passes and tickets, (2) The broker has an immediate fam-
secured transportation containing an ily member, as defined at § 411.351 of
occupant protection system that ad- this chapter, that has a direct or indi-
dresses safety needs of disabled or spe- rect financial relationship with the
cial needs individuals, and other forms transportation provider, with the term
of transportation otherwise covered ‘‘transportation broker’’ substituted
under the state plan. for ‘‘physician.’’
(i) Non-emergency medical transpor- (B) Exceptions: The prohibitions de-
tation services may be provided under scribed at clause (A) of this paragraph
contract with individuals or entities do not apply if there is documentation
that meet the following requirements: to support the following:
(A) Is selected through a competitive (1) Transportation is provided in a
bidding process that is consistent with rural area, as defined at § 412.62(f), and
45 CFR 92.36(b) through (i) and is based there is no other available Medicaid
on the State’s evaluation of the bro- participating provider or other pro-
ker’s experience, performance, ref- vider determined by the State to be
erences, resources, qualifications, and qualified except the non-governmental
costs. broker.
(2) Transportation is so specialized
(B) Has oversight procedures to mon-
that there is no other available Med-
itor beneficiary access and complaints
icaid participating provider or other
and ensure that transportation is time-
provider determined by the State to be
ly and that transport personnel are li-
qualified except the non-governmental
censed, qualified, competent, and cour-
broker.
teous.
(3) Except for the non-governmental
(C) Is subject to regular auditing and broker, the availability of other Med-
oversight by the State in order to en- icaid participating providers or other
sure the quality and timeliness of the providers determined by the State to
transportation services provided and be qualified is insufficient to meet the
the adequacy of beneficiary access to need for transportation.
medical care and services. (4) The broker is a government entity
(D) Is subject to a written contract and the individual service is provided
that imposes the requirements related by the broker, or is referred to or sub-
to prohibitions on referrals and con- contracted with another government-
flicts of interest described at owned or operated transportation pro-
§ 440.170(a)(4)(ii), and provides for the vider generally available in the com-
broker to be liable for the full cost of munity, if the following conditions are
services resulting from a prohibited re- met:
ferral or subcontract. (i) The contract with the broker pro-
(ii) Federal financial participation is vides for payment that does not exceed
available at the medical assistance the actual costs calculated as though
rate for the cost of a written brokerage the broker were a distinct unit, and ex-
contract that: cludes from these payments any per-
(A) Except as provided in paragraph sonnel or other costs shared with or al-
(a)(4)(ii)(B) of this section, prohibits located from parent or related entities;
the broker (including contractors, own- and the governmental broker main-
ers, investors, Boards of Directors, cor- tains an accounting system such that
porate officers, and employees) from all funds allocated to the Medicaid bro-
providing non-emergency medical kerage program and all costs charged
transportation services or making a re- to the brokerage program will be com-
ferral or subcontracting to a transpor- pletely separate from any other pro-
tation service provider if: gram;
(1) The broker has a financial rela- (ii) The broker documents that, with
tionship with the transportation pro- respect to the individual’s specific
vider as defined at § 411.354(a) of this transportation needs, the government
chapter with ‘‘transportation broker’’ provider is the most appropriate and
substituted for ‘‘physician’’ and ‘‘non- lowest cost alternative; and
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§ 440.170 42 CFR Ch. IV (10–1–11 Edition)
(iii) The broker documents that the ing, examination, diagnosis, prognosis,
Medicaid program is paying no more treatment, or the administration of
for fixed route public transportation drugs) for its patients.
than the rate charged to the general (7) Is not owned by, is not under com-
public and no more for public para- mon ownership with, or does not have
transit services than the rate charged an ownership interest of 5 percent or
to other State human services agencies more in, a provider of medical treat-
for comparable services. ment or services and is not affiliated
(C) Transportation providers may not with a provider of medical treatment
offer or make any payment or other or services or with an individual who
form of remuneration, including any has an ownership interest or 5 percent
kickback, rebate, cash, gifts, or service or more in a provider of medical treat-
in kind to the broker in order to influ- ment or services. Permissible affili-
ence referrals or subcontracting for ations are described in paragraph (c) of
non-emergency medical transportation this section.
provided to a Medicaid recipient. (8) Has in effect a utilization review
(D) In referring or subcontracting for plan that meets the following criteria:
non-emergency medical transportation (i) Provides for the review of admis-
with transportation providers, a broker sions to the institution, duration of
may not withhold necessary non-emer- stays, cases of continuous extended du-
gency medical transportation from a ration, and items and services fur-
Medicaid recipient or provide non- nished by the institution.
emergency medical transportation that (ii) Requires that the reviews be
is not the most appropriate and a cost- made by a committee of the institution
effective means of transportation for that included the individuals respon-
that recipient for the purpose of finan- sible for overall administration and for
cial gain, or for any other purpose. supervision of nursing personnel at the
(b) Services furnished in a religious institution.
nonmedical health care institution. Serv- (iii) Provides that records be main-
ices furnished in a religious nonmed- tained of the meetings, decisions, and
ical health care institution are services actions of the utilization review com-
furnished in an institution that: mittee.
(1) Is an institution that is described (iv) Meets other requirements as
in (c)(3) of section 501 of the Internal CMS finds necessary to establish an ef-
Revenue Code of 1986 and is exempt fective utilization review plan.
from taxes under section 501(a) of that (9) Provides information CMS may
section. require to implement section 1821 of
(2) Is lawfully operated under all ap- the Act, including information relating
plicable Federal, State, and local laws to quality of care and coverage deter-
and regulations. minations.
(3) Furnishes only nonmedical nurs- (10) Meets other requirements as
ing items and services to patients who CMS finds necessary in the interest of
choose to rely solely upon a religious the health and safety of patients who
method of healing and for whom the receive services in the institution.
acceptance of medical health services These requirements are the conditions
would be inconsistent with their reli- of participation found at part 403, sub-
gious beliefs. part G of this chapter.
(4) Furnishes nonmedical items and (c) Affiliations. An affiliation is per-
services exclusively through nonmed- missible for purposes of paragraph
ical nursing personnel who are experi- (b)(7) of this section if it is between one
enced in caring for the physical needs of the following:
of nonmedical patients. (1) An individual serving as an un-
(5) Furnishes these nonmedical items compensated director, trustee, officer,
and services to inpatients on a 24-hour or other member of the governing body
basis. of an RNHCI and a provider of medical
(6) Does not furnish, on the basis of treatment or services.
its religious beliefs, through its per- (2) An individual who is a director,
sonnel or otherwise, medical items and trustee, officer, employee, or staff
services (including any medical screen- member of an RNHCI and an another
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Centers for Medicare & Medicaid Services, HHS § 440.180
individual, with whom he or she has a plan, that are furnished under a waiver
family relationship, who is affiliated granted under the provisions of part
with (or has an ownership interest in) a 441, subpart G of this chapter.
provider of medical treatment or serv- (1) These services may consist of any
ices. or all of the services listed in para-
(3) The RNHCI and an individual or graph (b) of this section, as those serv-
entity furnishing goods or services as a ices are defined by the agency and ap-
vendor to both providers of medical proved by CMS.
treatment or services and RNHCIs. (2) The services must meet the stand-
(d) Skilled nursing facility services for ards specified in § 441.302(a) of this
individuals under age 21. ‘‘Skilled nurs- chapter concerning health and welfare
ing facility services for individuals assurances.
under 21’’ means those services speci- (3) The services are subject to the
fied in § 440.40 that are provided to re- limits on FFP described in § 441.310 of
cipients under 21 years of age. this chapter.
(e) Emergency hospital services. (b) Included services. Home or commu-
‘‘Emergency hospital services’’ means nity-based services may include the
services that— following services, as they are defined
(1) Are necessary to prevent the by the agency and approved by CMS:
death or serious impairment of the (1) Case management services.
health of a recipient; and (2) Homemaker services.
(2) Because of the threat to the life or (3) Home health aide services.
health of the recipient necessitate the (4) Personal care services.
use of the most accessible hospital (5) Adult day health services.
available that is equipped to furnish (6) Habilitation services.
the services, even if the hospital does (7) Respite care services.
not currently meet— (8) Day treatment or other partial
(i) The conditions for participation hospitalization services, psychosocial
under Medicare; or rehabilitation services and clinic serv-
(ii) The definitions of inpatient or ices (whether or not furnished in a fa-
outpatient hospital services under cility) for individuals with chronic
§§ 440.10 and 440.20. mental illness, subject to the condi-
(f) [Reserved] tions specified in paragraph (d) of this
(g) Critical access hospital (CAH). (1) section.
CAH services means services that (i) (9) Other services requested by the
are furnished by a provider that meet agency and approved by CMS as cost
the requirements for participation in effective and necessary to avoid insti-
Medicare as a CAH (see subpart F of tutionalization.
part 485 of this chapter), and (ii) are of (c) Expanded habilitation services, ef-
a type that would be paid for by Medi- fective October 1, 1997—(1) General rule.
care when furnished to a Medicare ben- Expanded habilitation services are
eficiary. those services specified in paragraph
(2) Inpatient CAH services do not in- (c)(2) of this section.
clude nursing facility services fur- (2) Services included. The agency may
nished by a CAH with a swing-bed ap- include as expanded habilitation serv-
proval. ices the following services:
(i) Prevocational services, which
[43 FR 45224, Sept. 29, 1978, as amended at 45
means services that prepare an indi-
FR 24889, Apr. 11, 1980; 46 FR 48540, Oct. 1,
1981; 58 FR 30671, May 26, 1993; 62 FR 46037, vidual for paid or unpaid employment
Aug. 29, 1997; 64 FR 67051, Nov. 30, 1999; 72 FR and that are not job-task oriented but
73651, Dec. 28, 2007; 73 FR 77530, Dec. 19, 2008; are, instead, aimed at a generalized re-
74 FR 31196, June 30, 2009] sult. These services may include, for
example, teaching an individual such
§ 440.180 Home or community-based concepts as compliance, attendance,
services. task completion, problem solving and
(a) Description and requirements for safety. Prevocational services are dis-
services. ‘‘Home or community-based tinguishable from noncovered voca-
services’’ means services, not otherwise tional services by the following cri-
furnished under the State’s Medicaid teria:
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§ 440.181 42 CFR Ch. IV (10–1–11 Edition)
(A) The services are provided to per- individual through a program funded
sons who are not expected to be able to under section 110 of the Rehabilitation
join the general work force or partici- Act of 1973 (29 U.S.C. 730).
pate in a transitional sheltered work- (d) Services for the chronically mentally
shop within one year (excluding sup- ill—(1) Services included. Services listed
ported employment programs). in paragraph (b)(8) of this section in-
(B) If the recipients are compensated, clude those provided to individuals who
they are compensated at less than 50 have been diagnosed as being chron-
percent of the minimum wage; ically mentally ill, for which the agen-
(C) The services include activities cy has requested approval as part of ei-
which are not primarily directed at ther a new waiver request or a renewal
teaching specific job skills but at un- and which have been approved by CMS
derlying habilitative goals (for exam- on or after October 21, 1986.
ple, attention span, motor skills); and (2) Services not included. Any home
(D) The services are reflected in a and community-based service, includ-
plan of care directed to habilitative ing those indicated in paragraph (b)(8)
rather than explicit employment objec- of this section, may not be included in
tives. home and community-based service
(ii) Educational services, which waivers for the following individuals:
means special education and related (i) For individuals aged 22 through 64
services (as defined in sections 602(16)
who, absent the waiver, would be insti-
and (17) of the Education of the Handi-
tutionalized in an institution for men-
capped Act) (20 U.S.C. 1401 (16 and 17))
tal diseases (IMD); and, therefore, sub-
to the extent they are not prohibited
ject to the limitation on IMDs speci-
under paragraph (c)(3)(i) of this sec-
fied in § 435.1009(a)(2) of this chapter.
tion.
(iii) Supported employment services, (ii) For individuals, not meeting the
which facilitate paid employment, that age requirements described in para-
are— graph (d)(2)(i) of this section, who, ab-
(A) Provided to persons for whom sent the waiver, would be placed in an
competitive employment at or above IMD in those States that have not
the minimum wage is unlikely and opted to include the benefits defined in
who, because of their disabilities, need § 440.140 or § 440.160.
intensive ongoing support to perform [59 FR 37716, July 25, 1994, as amended at 65
in a work setting; FR 60107, Oct. 10, 2000; 71 FR 39229, July 12,
(B) Conducted in a variety of set- 2006]
tings, particularly worksites in which
persons without disabilities are em- § 440.181 Home and community-based
ployed; and services for individuals age 65 or
(C) Defined as any combination of older.
special supervisory services, training, (a) Description of services— Home and
transportation, and adaptive equip- community-based services for individ-
ment that the State demonstrates are uals age 65 or older means services, not
essential for persons to engage in paid otherwise furnished under the State’s
employment and that are not normally Medicaid plan, or services already fur-
required for nondisabled persons en- nished under the State’s Medicaid plan
gaged in competitive employment. but in expanded amount, duration, or
(3) Services not included. The following scope, which are furnished to individ-
services may not be included as habili- uals age 65 or older under a waiver
tation services: granted under the provisions of part
(i) Special education and related 441, subpart H of this subchapter. Ex-
services (as defined in sections 602(16) cept as provided in § 441.310, the serv-
and (17) of the Education of the Handi- ices may consist of any of the services
capped Act) (20 U.S.C. 1401 (16) and (17)) listed in paragraph (b) of this section
that are otherwise available to the in- that are requested by the State, ap-
dividual through a local educational proved by CMS, and furnished to eligi-
agency. ble recipients. Service definitions for
(ii) Vocational rehabilitation serv- each service in paragraph (b) of this
ices that are otherwise available to the section must be approved by CMS.
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Centers for Medicare & Medicaid Services, HHS § 440.210
(b) Included services. (1) Case manage- Subpart B—Requirements and
ment services. Limits Applicable to All Services
(2) Homemaker services.
(3) Home health aide services. § 440.200 Basis, purpose, and scope.
(4) Personal care services.
(5) Adult day health services. (a) This subpart implements the fol-
(6) Respite care services. lowing statutory requirements—
(7) Other medical and social services (1) Section 1902(a)(10), regarding com-
requested by the Medicaid agency and parability of services for groups of re-
approved by CMS, which will con- cipients, and the amount, duration,
tribute to the health and well-being of and scope of services described in sec-
individuals and their ability to reside tion 1905(a) of the Act that the State
in a community-based care setting. plan must provide for recipients;
(2) Section 1902(a)(22)(D), which pro-
[57 FR 29156, June 30, 1992]
vides for standards and methods to as-
§ 440.185 Respiratory care for venti- sure quality of services;
lator-dependent individuals. (3) Section 1903(v)(1), which provides
(a) ‘‘Respiratory care for ventilator- that no payment may be made to a
dependent individuals’’ means services State under this section for medical as-
that are not otherwise available under sistance furnished to an alien who is
the State’s Medicaid plan, provided on not lawfully admitted for permanent
a part-time basis in the recipient’s residence or otherwise permanently re-
home by a respiratory therapist or siding in the United States under color
other health care professional trained of law;
in respiratory therapy (as determined (4) Section 1903(v)(2) which provides
by the State) to an individual who— that FFP will be available for services
(1) Is medically dependent on a venti- necessary to treat an emergency med-
lator for life support at least 6 hours ical condition of an alien not described
per day; in paragraph (a)(3) of this section if
(2) Has been so dependent for at least that alien otherwise meets the eligi-
30 consecutive days (or the maximum bility requirements of the State plan;
number of days authorized under the (5) Section 1907 on observance of reli-
State plan, whichever is less) as an in- gious beliefs;
patient in one or more hospitals, NFs, (6) Section 1915 on exceptions to sec-
or ICFs/MR; tion 1902(a)(10) and waivers of other re-
(3) Except for the availability of res- quirements of section 1902 of the Act;
piratory care services, would require and
respiratory care as an inpatient in a (7) Sections 245A(h), 210 and 210A of
hospital, NF, or ICF/MR and would be the Immigration and Nationality Act
eligible to have payment made for in- which provide that certain aliens who
patient care under the State plan; are legalized may be eligible for Med-
(4) Has adequate social support serv- icaid.
ices to be cared for at home; (b) The requirements and limits of
(5) Wishes to be cared for at home; this subpart apply for all services de-
and fined in subpart A of this part.
(6) Receives services under the direc-
tion of a physician who is familiar with [55 FR 36822, Sept. 7, 1990]
the technical and medical components
of home ventilator support, and who § 440.210 Required services for the cat-
has medically determined that in-home egorically needy.
care is safe and feasible for the indi- (a) A State plan must specify that, at
vidual. a minimum, categorically needy recipi-
(b) For purposes of paragraphs (a)(4) ents are furnished the following serv-
and (5) of this section, a recipient’s ices:
home does not include a hospital, NF, (1) The services defined in §§ 440.10
ICF/MR or other institution as defined through 440.50, 440.70, and (to the ex-
in § 435.1010 of this chapter. tent nurse-midwives and nurse practi-
[59 FR 37717, July 25, 1994, as amended at 71 tioners are authorized to practice
FR 39229, July 12, 2006] under State law or regulation) the
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