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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

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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,

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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]

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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,

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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,

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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

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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]

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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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