CHAPTER He-W 500 MEDICAL ASSISTANCE

CHAPTER He-E 800 MEDICAL ASSISTANCE

PART He-E 801 CHOICES FOR INDEPENDENCE PROGRAM

REVISION NOTE:

Document #9969, effective 8-8-11, adopted, readopted with amendments and renumbered, and repealed the rules in Part He-E 801, formerly entitled “Home and Community-Based Care for the Elderly and Chronically Ill”, and now entitled “Choices for Independence Program.”

Document #9969 replaces all prior filings for rules in the former He-E 801. The filings affecting the former He-E 801 include the following documents:

#7488, eff 5-8-01

#7655, eff 2-28-02

#7823, eff 2-8-03

#9326, eff 11-21-08

#9858, INTERIM, eff 2-8-11

He-E 801.01 Purpose. The purpose of the rules is to describe the requirements for eligibility and the services provided through the Choices for Independence (CFI) home and community based services (HCBS-CFI) medicaid waiver program. The program serves individuals who are financially eligible for medicaid coverage and clinically eligible for long-term-services and supports (LTSS), who choose to receive care in their home or another community setting instead of care in an institutional setting.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22

He-E 801.02 Definitions.

(a) “Activities of daily living (ADLs)” means the primary activities necessary to carry out daily self-care activities that include but are not limited to eating, toileting, transferring, bathing, dressing, and continence.

(b) “Adult day services” means one or more of the services delivered by a facility licensed in accordance with He-P 818 and listed in He-E 801.16, provided for fewer than 12 hours a day. This term includes “adult medical day services”.

(c) “Adult family care (AFC)” means participant housing option for eligible participants under the CFI waiver program, which includes a combination of personal care, homemaking, and other services that are provided to a participant who is a resident in a certified residence of an unrelated individual or the CFI waiver participant’s relative in accordance with a person-centered plan.

(d) “Annual aggregate medicaid cost” means the total medicaid costs for nursing home residents, combining both the initial medicaid payments and quarterly supplemental payments.

(e) “Appeal” means a request to review a decision or action made by the department which adversely affected the individual pursuant to RSA 126-A:5, VIII.

(f) “Average aggregate payment” means the value of the annual aggregate medicaid cost of nursing facility services divided by the number of paid medicaid bed days in nursing facilities.

(g) “Authorized representative” means “authorized representative” pursuant to He-W 803.01.

(h) “Provider care plan” means a written guide that:

(1) Is developed and maintained by the service provider in consultation with the participant, his or her legal representative, if any, or both, and the participant’s primary care provider, if applicable;

(2) Is developed as a result of an assessment process which includes communication with the participant’s case manager;

(3) Is consistent with and addresses the applicable service needs identified in the participant’s comprehensive care plan; and

(4) Contains specific instructions on providing a defined service to the participant.

(i) “Case management agency” means an agency licensed under He-P 819 and enrolled as a New Hampshire medicaid provider to provide targeted case management services to CFI participants in accordance with He-E 805.

(j) “Case manager” means an individual employed by, or contracted with, a case management agency who:

(1) Meets the qualifications described in He-E 805.06;

(2) Is responsible for the ongoing assessment, person-centered planning, coordination, and monitoring of the provision of services included in the comprehensive care plan; and

(3) Does not have a conflict of interest.

(k) “Choices for Independence (CFI) waiver program” means a system of long-term services and supports (LTSS) provided under Section 1915(c) of the Social Security Act to participants who meet the eligibility requirements in He-E 801.03 and He-E 801.04.

(l) “Commissioner” means the commissioner of the New Hampshire department of health and human services, or his or her designee.

(m) “Community transition services” means non-recurring services, including case management services to support CFI participants who are transitioning from an institutional setting or another provider-operated living arrangement to a living arrangement in a private residence, in which the participant is directly responsible for his or her own living expenses in accordance with He-E 801.17.

(n) “Comprehensive care plan” means an individualized person-centered plan described in He-E 805.05(c) that is:

(1) The result of a person-centered process that identifies the strengths, capacities, preferences, and desired outcomes of the participant;

(2) Developed by the participant’s case manager; and

(3) Is an integrated plan of all the participant’s services.

(o) “Conflict of interest” means a conflict between the private interests and the official or professional responsibilities of a person, entity, agency, or organization, such as providing other direct services to the participant, being the guardian of the participant, or having a familial or financial relationship with the participant.

(p) “Congregate meals” means the provision of meals to groups of participants in a community setting.

(q) “Department” means the New Hampshire department of health and human services.

(r) “Environmental accessibility services (EAS)” means the installation of ramps, grab bars, widening of doorways, electronic aids to daily living, and other adaptations as authorized by the department, in a participant’s home or vehicle as necessary to support the participants’ health and safety.

(s) “Fading plan” means a specific plan that is developed to assist an individual to achieve maximum independence on the job through a variety of activities including cultivating natural supports.

(t) “Financial management services (FMS)” means assisting participants that elect to receive PDMS with the following:

(1) Management and disbursement of funds contained in the participant-directed budget;

(2) Performing fiscal accounting, and budget management;

(3) Creating expenditure reports;

(4) Facilitating the employment of staff, and furnishing orientation; and

(5) Conducting skills training to participants who function as the co-employer of their direct support workers.

(u) “Home-based services” means long-term services and supports provided to a participant either in a private home setting or in a mid-level residential facility, including:

(1) CFI waiver services pursuant to this part; and

(2) The following medicaid state plan services:

a. Targeted case management services pursuant to He-E 805;

b. Personal care attendant;

c. Home health aide;

d. Home health nursing;

e. Physical therapy;

f. Occupational therapy;

g. Speech therapy;

h. Adult medical day; and

i. Private duty nursing.

(v) “Home-delivered meals” means prepared meals that are provided to a participant in his or her home.

(w) “Home health aide services” means services provided by a nursing assistant licensed in accordance with RSA 326-B.

(x) “Homemaker services” means non-hands-on services to support a participant’s household management, including light housecleaning tasks, laundry, preparation of meals and snacks, and errands.

(y) “In-home care” means nonmedical non-hands on care, supervision, and socialization provided to isolated participants to prevent institutionalization. This term includes “adult in-home care”.

(z) “Instrumental Activities of Daily Living” (IADL) means basic tasks that are essential to the ability to live independently, such as light housework, laundry, meal preparation, transportation, grocery shopping, using the telephone, medication management, and money management. IADL also includes other supportive activities as specified in the comprehensive care plan which promote and support health, wellness, dignity, and autonomy within a community setting.

(aa) “Job carving” means the act of analyzing work duties performed in a given job and identifying specific tasks that may be assigned to an employee with disabilities.

(ab) “Legal representative” means one of the following individuals, duly appointed or designated in the manner required by law to act on behalf of another individual, and who is acting within the scope of his or her authority:

(1) An attorney;

(2) A guardian or conservator;

(3) An agent acting under a power of attorney;

(4) An authorized representative acting on behalf of an applicant in some or all of the aspects of initial and continuing eligibility in accordance with He-W 803.01; or

(5) A representative acting on behalf of another individual pursuant to RSA 161-I, Personal Care Services.

(ac) “Legally responsible relative” means the participant’s spouse.

(ad) “Licensed practitioner” means:

(1) Medical doctor;

(2) Physician assistant;

(3) Advanced practice registered nurse;

(4) Doctor of osteopathy;

(5) Doctor of naturopathic medicine;

(6) Physical therapist;

(7) Occupational therapist; or

(8) Anyone with diagnostic and prescriptive powers licensed by the appropriate New Hampshire licensing board.

(ae) “Medicaid bed days” means the total unduplicated number of days of nursing facility care that were paid for by the medicaid program in a 12 month period.

(af) “Non-medical transportation” means transportation provided to enable participants to access the community when personal care services are required to do so as articulated in the comprehensive care plan.

(ag) “Nursing facility” means nursing facility licensed pursuant to RSA 151 that provides for 2 or more persons’ basic domiciliary services, including board, room and laundry, continuing health supervision under competent professional medical and nursing direction, and continuous nursing care as may be individually required.

(ah) “Other qualified agencies” means those entities certified in accordance with RSA 161-I and He-P 601.

(ai) “Participant-directed and managed services (PDMS)” means services that allow CFI waiver participants to direct and manage a menu of any CFI waiver service, except for residential care facility services in accordance with He-E 801.24. PDMS allows the participant to design the services that will be provided, select service providers, decide how authorized funding is to be spent base on the needs identified in the participant’s comprehensive care plan, and perform ongoing oversight of the services provided.

(aj) “Person-centered planning” means a planning process to develop an individual support plan that is directed by the participant, his or her representative, or both, and which identifies his or her preferences, strengths, capacities, needs, and desired outcomes or goals.

(ak) “Personal care services (PCS)” means hands-on assistance with ADLs and IADLs, assisting with self-administration of oral and topical medications, performing light housekeeping, providing cueing with eating or dressing, and accompanying a participant into the community when the assistance of the personal care worker is required by the participant, as provided by staff employed by an agency licensed under He-P 809, He-P 822, or an agency certified under He-P 601.

(al) “Personal emergency response system” means an electronic device that enables participants at high risk of institutionalization and who are alone for periods of time to summon help in an emergency 24-hours per day 7 days per week. It also includes a portable help button to allow for the participant’s mobility.

(am) “Residential care facility” means an assisted living residence-residential care or assisted living-supported residential health care facility licensed in accordance with RSA 151.

(an) “Skilled professional medical personnel” means “skilled professional medical personnel” as defined in RSA 151-E:3.

(ao) “Skilled nursing services” means services listed in the comprehensive plan of care who are within the scope of RSA 326-B and are provided by a registered professional nurse, or licensed practical nurse that are within the scope of RSA 326-B.

(ap) “Specialized medical equipment” means the following:

(1) Devices, controls, or appliances that are specified in the comprehensive care plan which enable a participant to increase his or her ability to perform ADLs or IADLs;

(2) Devices, controls, or appliances that are specified in the comprehensive care plan to perceive, control, or communicate with the environment in which the participant lives;

(3) Items necessary for life support or to address physical conditions along with ancillary supplies and equipment necessary to the proper functioning of such items;

(4) Other durable and non-durable medical equipment not available under the New Hampshire Medicaid state plan that are necessary to address participant functional limitations; and

(5) Necessary medical supplies not available under the New Hampshire medicaid state plan.

(aq) “Supported employment services (SEP)” means individual employment services that help a participant who, because of his or her disabilities, require intensive on-going supports to obtain and maintain competitive employment customized employment or self-employment in an integrated work setting, and includes the following:

(1) Vocational or job-related discovery or assessment and job skill trainings necessary to assist with integration in a job setting;

(2) Job placement;

(3) Job development and negotiation with prospective employers;

(4) Job incentives planning and management;

(5) Transportation to employment; and

(6) Asset development and career advancement services.

(ar) “Supportive housing services” means services provided by a public housing authority licensed as a home health care provider or by a home health care provider contracted with a public housing authority to provide services in apartments located in publicly funded apartment buildings that include the following:

(1) Personal care services, including assistance with ADLs and IADLs;

(2) Supervision;

(3) Medication reminders; and

(4) Other supportive activities as specified in the comprehensive care plan or which promote and support health and wellness, dignity, and autonomy within a community setting.

(as) “Targeted case management” means the collaborative process of assessment, planning, facilitation, advocacy, coordination, and monitoring performed by the case manager that is accomplished with a person-centered program, and which:

(1) Assists participants to gain access to needed CFI waiver services, services contained in the medicaid state plan, and other medical, social, spiritual, vocational, educational, and community supports, regardless of the funding source; and

(2) Provides for coordination of participant service plans from all providers to assure adequacy and appropriateness of care and cost effectiveness of planned services that yield positive outcomes.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22

He-E 801.03 Eligibility.

(a) An individual shall be eligible to receive CFI waiver services if he or she meets all of the following requirements:

(1) Submission of a signed and dated application, as defined in He-W 601.01(p), to the department;

(2) Is at least 18 years of age;

(3) Meets the financial and categorical requirements for medicaid;

(4) Meets the clinical eligibility requirements for nursing facility care in RSA 151-E:3, I(a), namely, the person requires 24-hour care for one or more of the following purposes, as determined by skilled professional medical personnel:

a. Medical monitoring and nursing care when the skills of a licensed medical professional are needed to provide safe and effective services;

b. Restorative nursing or rehabilitative care with patient-specific goals;

c. Medication administration by oral, topical, intravenous, intramuscular, or subcutaneous injection, or intravenous feeding for treatment of recent or unstable conditions requiring medical or nursing intervention; or

d. Assistance with 2 or more ADLs;

(5) Requires the provision of at least one of the CFI waiver services pursuant to He-E 801.12, as documented in the identified needs list, and receives at least one of the CFI waiver services monthly; and

(6) Has chosen, or whose legal representative has chosen, by signing the application in (1) above, CFI waiver services as an alternative to institutional care.

(b) Pursuant to 42 CFR 441.301 (b)(1)(iii) and (b)(6), eligibility shall be restricted to individuals who meet the target population criteria approved by the centers for medicare and medicaid services (CMS) for the CFI waiver program and who, without the CFI waiver services, would require the level of care provided in a nursing facility as described in He-E 802.

(c) While receiving care as a resident in a nursing facility, an individual shall not be eligible for coverage of CFI waiver services listed in He-E 801.12 except for targeted case management in accordance with RSA 151-E:17.

(d) An individual shall not be considered to be a resident of a nursing facility in (c) above if he or she is a CFI participant who is admitted to a nursing facility on a temporary basis for treatment or care for an acute episode.

(e) For those CFI participants who are receiving short-term inpatient care in a hospital or nursing facility, the following shall apply:

(1) Services described in He-E 801.12(d) shall not be provided while the participant is in the facility, except for services that have been prior authorized for the purpose of enabling the participant to transition back to his or her community and targeted case management in accordance with RSA 151-E:17; and

(2) The participant’s clinical eligibility shall be maintained until such time that an eligibility redetermination is conducted in accordance with He-E 801.07 and the participant is determined ineligible.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22

He-E 801.04 Initial Clinical Eligibility Determination.

(a) The department shall make the clinical eligibility determination of the applicant as follows:

(1) Skilled professional medical personnel shall:

a. Conduct an on-site, face-to-face visit with the applicant;

b. Perform a clinical assessment of the applicant; and

c. Develop the identified needs list with the applicant;

(2) The applicant shall sign the following:

a. A consent for participation in the CFI waiver program, including whether or not he or she has a preference of a case management agency;

b. An authorization for release of information; and

c. An authorization for release of protected health information;

(3) Pursuant to RSA 151-E:3, IV, if the department is unable to determine an applicant’s clinically eligible based on the assessment in (a) above, the department shall send notice to the applicant and the applicant’s licensed practitioner(s), as applicable, requesting additional medical information within 30 calendar days of the notice and stating that the failure to submit the requested information will impede processing of the application and delay service delivery;

(4) Within the 30-day period in (3) above, if the requested information is not received within 20 calendar days, the department shall send a second notice to the applicable licensed practitioner(s), with a copy to the applicant, as a reminder to provide the requested information by the original deadline;

(5) Upon request from the treating licensed practitioner or applicant within the 30-day period in (3) above, the department shall extend the deadline in (3) above for a maximum of 30 days if the practitioner or applicant states that he or she has documentation that supports eligibility and will provide it within that time period; and

(6) If the information required by (3) above is not received by the date specified in the notice, or as extended by the department in accordance with (5) above, the applicant shall be determined to be clinically ineligible.

(b) For each applicant who meets the clinical eligibility requirements, a skilled professional medical personnel shall estimate the costs of the provision of home-based services by identifying the LTSS needed, including units, frequencies, and costs, with consideration of the applicant’s expressed needs as identified in the assessment in (a)(1).

(c) The applicant shall be determined eligible for the CFI waiver program if it is determined that the applicant meets the financial eligibility requirements described in He-W 600 and He-W 800, the clinical eligibility requirements of He-E 801.03(a)(4), and the other eligibility requirements pursuant to He-E 801.03.

(d) Upon a determination of eligibility, the applicant or his or her legal representative shall be sent an approval notice, including:

(1) The name and contact information of the case management agency chosen by the applicant or assigned to the applicant by the department, if available at the time of the notice; and

(2) The eligibility start date.

(e) Upon a determination of ineligibility, because the applicant does not meet the eligibility requirements of He-E 801.03 or because required information is not received pursuant to (a)(6) above, the applicant or his or her legal representative shall be sent a notice of denial, including:

(1) A statement regarding the reason and legal basis for the denial;

(2) Information concerning the applicant’s right of appeal pursuant to He-C 200, including the requirement that the applicant has 30 calendar days from the date of the notice of denial to file such an appeal;

(3) An explanation that an applicant who is denied services and who chooses to appeal this denial pursuant to He-C 200 shall not be entitled to medicaid payments for CFI waiver services pending the appeal hearing decision; and

(4) The medical credentials of the skilled professional medical personnel making the determination of ineligibility.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22

He-E 801.05 Development of the Comprehensive Care Plan.

(a) The case manager assigned to the participant shall develop and maintain a comprehensive care plan through a person-centered planning process in accordance with He-E 805.

(b) The participant shall review the identified needs section of the comprehensive assessment, as defined in He-E 805.02(f), indicating his or her agreement or disagreement with the identified needs.

(c) The case manager shall request authorization from the department for coverage of the CFI waiver services contained in the comprehensive care plan, including the specific service providers selected by the participant.

(d) The department shall, within 5 business days of the request for service authorization, request additional information from the case manager, including the comprehensive care plan or the section of the comprehensive care plan as needed to support the authorization.

(e) The case manager shall provide the department with the information requested in (d) above within 5 business days of the request.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22

He-E 801.06 Service Authorization.

(a) Upon review of the information provided in He-E 801.05(c) and within 6 business days, the department shall authorize services that meet the needs identified in the clinical assessment in He-E 801.04(a) and other later established needs.

(b) Service authorizations shall include specific types, units, and frequencies of the needed services.

(c) Service authorizations shall be issued to specific service providers identified by the participant and his or her case manager as a result of person-centered planning.

(d) When the service authorization does not include all the services requested, the participant shall be sent a notice, to include:

(1) The requested service;

(2) The authorized service;

(3) A statement regarding the reason and legal basis for the denial;

(4) Information regarding the participant’s option to request reconsideration pursuant to (e) below; and

(5) Information concerning the participant’s right of appeal pursuant to He-C 200, including the requirement that the participant has 30 calendar days from the date of the notice authorizing services to file such an appeal.

(e) A participant who disagrees with a denial of a service authorization may request a reconsideration of the service authorization, as follows:

(1) The participant, or his or her representative, shall submit a written request to the department within 30 days of the service authorization; and

(2) The written request shall include an explanation of the reason why a specific service authorization should be changed, including any supporting documentation.

(f) The department shall review the request in (e) above and provide a written notice to the participant, or his or her representative, of its decision based on the criteria for applicable service authorization to maintain or change the original service authorization, including the reason therefor.

(g) Requesting a service authorization reconsideration shall not:

(1) Preclude in any way a participant’s right to appeal a disputed service authorization in accordance with He-C 200;

(2) Change the timeframes established for filing an appeal; and

(3) Affect the amount or type of services authorized.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22

He-E 801.07 Redetermination of Eligibility and Service Authorization.

(a) The eligibility of each participant, as determined in accordance with He-E 801.04, shall be subject to redetermination at least annually.

(b) The redetermination shall be conducted in accordance with He-E 801.04, except that (e)(2)c.2. below shall apply.

(c) The annual redetermination required in (a) above shall not preclude earlier redetermination or reevaluation and subsequent changes to the identified needs list or service authorizations.

(d) Upon a redetermination of eligibility, the department shall review and update, as necessary, the service authorization(s).

(e) If a participant is determined ineligible, or if services are no longer requested by the participant or considered necessary by the department pursuant to He-E 801.03(a) above, the department shall either terminate the participant’s CFI eligibility or reduce the services previously authorized as follows:

(1) Payment for services shall be terminated 30 calendar days from the date of the notice described in (2) below, unless an appeal has been filed within 15 calendar days of the date of the notice; and

(2) A written notice of eligibility termination or the reduction or termination of the services previously authorized, as applicable, shall be sent to the participant, or his or her legal representative, and the participant’s case manager, including:

a. The reason and legal basis for the termination or reduction;

b. The date that service coverage shall be terminated or reduced, absent the filing of an appeal; and

c. Information concerning the participant’s right to appeal pursuant to He-C 200, as follows:

1. The participant shall have 30 calendar days to file an appeal, otherwise the department’s decision shall be final; and

2. If the participant files an appeal within 15 calendar days of the date of the notice of service coverage termination or reduction, continued payments for CFI waiver services shall be authorized until 30 calendar days after a hearing decision has been made.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22

He-E 801.08 Request for Clinical Redetermination After Clinical Denial. An applicant or participant may reapply at any time following a denial or termination of services, and eligibility shall be determined in accordance with He-E 801.03 and He-E 801.04.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22

He-E 801.09 Cost Control Methodology.

(a) The total cost of a participant’s or applicant’s home-based services shall include the costs of all LTSS services provided under the CFI waiver program.

(b) Costs associated with services rendered for acute care needs, EAS, and community transitions shall not be included in the calculation in (a) above.

(c) The average annual cost for the provision of services to a person in a nursing facility shall be calculated by adding:

(1) The basic medicaid cost, determined by dividing the total annual medicaid cost stated in the nursing facility budget line by the number of paid medicaid bed days for that budget year; and

(2) The average aggregate payment made under the medicaid quality incentive program, through the nursing facility trust fund as described in RSA 151-E:14 and 151-E:15, divided by the number of paid medicaid bed days.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22

He-E 801.10 Post-Eligibility Computation of Cost of Care for CFI Waiver Services.

(a) The amount of income that a participant is liable to contribute toward the cost of his or her CFI waiver services shall be computed as follows:

(1) The amount of the participant’s gross earned income as defined in He-W 601.04(o) shall be determined;

(2) The employment expense disregard, as specified in He-W 654.18 for old age assistance (OAA) or aid to the needy blind (ANB) recipients or the earned income disregard, as specified in He-W 854.18 for aid to the permanently and totally disabled (APTD) recipients, shall be subtracted from the participant’s gross earned income to obtain the participant’s net earned income;

(3) The total amount of the participant’s unearned income, as defined in He-W 601.08(k), shall be added to the net earned income to determine the participant’s net income;

(4) The allowable deductions, as defined in He-W 854.20 and He-W 654.21, shall be subtracted from the participant’s net income;

(5) For the maintenance needs of the participant, 300% of the maximum supplemental security income (SSI) benefit for an eligible participant as determined in accordance with 20 CFR 416.410, adjusted by cost of living increases pursuant to 20 CFR 416.405 shall be subtracted from the amount in (4) above;

(6) The cost of the following medical expenses incurred by the participant that are not subject to third-party payment shall be subtracted from the amount in (5) above:

a. Health insurance premiums, including Medicare Part A, Part B, Part C, and Part D, coinsurance payments, and deductibles;

b. Necessary and remedial care that would be covered by medical assistance except that allowable payment limits have been exceeded;

c. Necessary and remedial care that is recognized by state law, but not covered by medical assistance; and

d. Currently obligated, unpaid prior medical debt;

(7) The amount of any continuing SSI benefits, under section 1611 (e) (1) (E) and (G) of the Social Security Act, shall be subtracted from the amount in (6) above;

(8) The veterans affairs aid and attendance allowance shall be added to the amount in (6) or (7) above as required by 42 CFR 435.733 (c); and

(9) The result in (8) above shall be the amount of income for which the individual is liable to remit as payment toward the cost of his or her CFI waiver services.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22 (formerly He-E 801.11)

He-E 801.11 Covered Services and Requirements of Service Provision.

(a) CFI waiver services shall be covered for eligible participants when the services:

(1) Are provided as specified in the participant’s comprehensive care plan;

(2) Are provided in accordance with the service descriptions in He-E 801.14 through He-E 801.33; and

(3) Are authorized by the department in accordance with He-E 801.06.

(b) CFI waiver services shall be provided in accordance with the setting standards of 42 CFR 441.301(c)(4).

(c) A participant shall have the right to receive independent targeted case management services in accordance with He-E 805 while residing in a nursing facility, hospital, or rehabilitation hospital.

(d) CFI waiver services shall include one or more of the following services as described in this part:

(1) Adult family care services;

(2) In-home care services;

(3) Adult day services;

(4) EAS;

(5) Home-delivered meals services;

(6) Home health aide services;

(7) Homemaker services;

(8) Non-medical transportation services;

(9) Personal care services;

(10) Personal emergency response system services;

(11) Residential care facility service;

(12) Respite services;

(13) Skilled nursing services;

(14) Specialized medical equipment services;

(15) Supportive housing services;

(16) Community transition services;

(17) Financial management services;

(18) Participant directed and managed services;

(19) Supported employment services; and

(20) Targeted case management services pursuant to He-E 805.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22 (formerly He-E 801.12)

He-E 801.12 Non-Covered Services.

(a) No service or item shall be covered though the CFI waiver program if the service or item:

(1) Is covered through the medicaid state plan, and the participant is eligible for that coverage;

(2) Is covered through Medicare or any other insurance, and the participant is eligible for that service;

(3) Is provided as a component of any other covered service;

(4) Duplicates another service being provided to the participant;

(5) Addresses needs being met by another paid or unpaid service;

(6) Is provided by a legally responsible relative;

(7) Is primarily for the purpose of recreation;

(8) Cannot be provided in accordance with the setting requirements of 42 CFR 441.301(c)(4); or

(9) The requested service would result in the department’s inability to obtain federal financial participation.

(b) With the exception of respite care provided in an intermediate care facility or residential care facility, payment for CFI waiver services shall exclude room and board.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22 (formerly He-E 801.13)

He-E 801.13 Adult Family Care.

(a) Adult family care, as defined in He-E 801.02(c), shall be covered:

(1) When provided at a private residence in the community that is either:

a. Certified in accordance with RSA 151 and He-P 813; or

b. Not required to be licensed pursuant to RSA 151:2, II(b); and

(2) When the services are organized and managed by an adult family care oversight agency, as defined in He-P 813.03(z), as authorized by the department.

(b) Adult family care shall include the services required by He-P 813.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22 (formerly He-E 801.14)

He-E 801.14 In-Home Care Services.

(a) In-home care services, as defined in He-E 801.02(y), shall be covered when provided by an agency licensed in accordance with RSA 151:2 and either He-P 809 or He-P 822, or RSA 161-I and He-P 601.

(b) Covered services shall include socialization and supervision.

(1) Laundering the participant’s personal clothing items, towels, and bedding;

(2) Light cleaning limited to the participant’s bedroom, bathroom, common living spaces, and mobility and medical devices;

(3) Preparing non-communal meals and snacks, unless for multiple CFI participants, including cleaning the food preparation area after the food is served;

(4) Maintaining a safe environment in areas of the home used by the participant;

(5) Rearranging light-weight furniture to assure the participant can safely ambulate to reach food, water, medicine, and other essential items; and

(6) Grocery shopping and other errands for the CFI participant.

(d) In-home care shall not be covered when provided to a participant receiving residential care facility services.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22 (formerly He-E 801.15)

He-E 801.15 Adult Day Services.

(a) Adult day services, as defined in He-E 801.02(b) shall be covered for non-acute needs when provided by an adult day program licensed in accordance with RSA 151:2 and He-P 818.

(b) Covered adult day services shall include the following services, based on the participant’s needs in the provider care plan:

(1) Supervision;

(2) Personal care services;

(3) Monitoring of the participant’s condition and counseling, as appropriate, on diet, hygiene, or other related matters;

(4) Referrals, as appropriate, to other services and resources that could assist the participant, including any necessary follow-up; and

(5) The following He-P 818 services:

a. Health and safety services;

b. Dietary services;

c. Nursing services;

d. Social services;

e. Rehabilitative services; and

e. Recreational activities.

(1) Provided to a participant receiving residential care facility services; or

(2) Provided to a participant receiving adult family care services.

(d) Adult day service providers shall comply with the provider and documentation requirements specified in He-E 803 and He-P 818, in addition to the requirements in He-E 801.33.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22 (formerly He-E 801.16)

He-E 801.16 Community Transition Services.

(a) Community transition services, as defined in He-E 801.02(m), shall be covered only to the extent that they are reasonable and necessary as determined through the comprehensive care plan development process, and meet the following:

(1) The need for the community transition service is clearly identified in the comprehensive care plan;

(2) The participant is unable to meet the expenses of community transition services; and

(3) The community transition services cannot be obtained from other sources.

(b) The maximum limit for community transition services for a participant shall be $1,500 per transition.

(c) Community transition services shall be one-time services per transition and represent one-time costs as described in this part.

(d) The following shall be coverable expenses under community transition services, subject to the service limit in (c) above:

(1) A security deposit required to obtain a lease on an apartment or house;

(2) Set-up fees or deposits for utility or service access, including telephone, electricity, heat, and water;

(3) Items required to occupy and use a community domicile, such as essential household furnishings, window coverings, household appliances needed for basic food preparation, and bed and bath linens; and

(4) Services necessary for the participant’s health and safety, such as pest eradication, and one-time cleaning done prior to occupancy.

(e) Community transition services shall not include monthly rent or mortgage payments, food, monthly utility expenses, or costs for household appliances or items that are intended for entertainment, recreational or diversional purposes or use.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22

He-E 801.17 Environmental Accessibility Services.

(a) EAS, for a participant’s home or vehicle , as defined in He-E 801.02(r) shall be a covered service when:

(1) A NH medicaid-enrolled licensed practitioner has determined the need for one or more of the services in (b) below;

(2) The participant’s case manager has requested prior authorization for the service in accordance with (d) below;

(3) The department has provided the prior authorization for the service;

(4) The service is completed by an EAS provider who is enrolled with the department in accordance with (e) below; and

(5) The services are prior authorized.

(b) The following EAS shall be covered:

(1) Installation of ramps;

(2) Installation of grab bars;

(3) Widening of doorways to accommodate the participant’s wheelchair or other mobility access equipment;

(4) Electronic aids to daily living; and

(5) Other adaptations authorized by the department that are necessary for the health and safety of a participant that are not otherwise covered under the medicaid state plan.

(1) Improvements that are of general utility and do not have direct medical or remedial benefit to the participant;

(2) Adaptations which add to the square footage of the home except when necessary to complete an adaptation such as to improve the entrance or egress to the residence or to configure a bathroom to accommodate the participant’s wheelchair;

(3) Purchase of a motor vehicle;

(4) Electrical or plumbing work that is beyond what is required to support the authorized adaptation;

(5) Electrical or plumbing work, unless the EAS provider states, in writing, that the proposed adaptation can be done within the current electrical or plumbing capacity of the home; and

(6) Adaptations to a residential care facility or other licensed facility, except for adaptations in an adult family care home when approved for a specific participant.

(d) The participant’s case manager shall submit the following when requesting prior authorization for an EAS:

(1) A completed Form 3715, “Choices for Independence Prior Authorization Request Form” (January 2022);

(2) A copy of the evaluation in (a)(1) above that describes:

a. The medical or functional need for the adaptation;

b. The description and measurements required for the adaptation; and

c. The proposed training plan for the participant and as applicable, the caregiver, to ensure safe use of the adaptation;

(3) Proposals from at least 2 EAS providers for proposals that have a total cost more than $5,000, except that one proposal may be submitted with a written explanation of why only one proposal is available or appropriate or when a proposal indicates the total cost is $5,000 or less, including the following, as applicable to the project:

a. A list of supplies and materials;

b. Blueprints or scaled drawings;

c. The name(s) of any subcontractors that will be involved;

d. Written confirmation of whether or not a state or local building permit is required;

e. If electrical or plumbing work is required to support the adaptation, then:

1. A statement signed by the EAS provider stating that the requested adaptation can be done within the current electrical or plumbing capacity of the residence; and

2. A copy of the electrician or plumber’s license;

f. A statement signed by the EAS provider affirming knowledge of all applicable building codes and permit requirements, affirming that the work will meet the requirements of RSA 155-A:2, and affirming that any subcontractors involved in the work are appropriately licensed; and

g. An agreement signed by the EAS provider stating that reimbursement for the authorized service through the CFI waiver program shall be considered as payment in full;

(4) If a participant prefers one bid over the other(s), then an explanation of the preference shall be submitted to the case manager; and

(5) A notarized written statement from the property owner granting permission to complete the project if the participant is not the owner of the residence.

(e) In order to be enrolled to perform EAS, the EAS provider shall:

(1) Be licensed if the work to be completed requires licensure, such as plumbing or electrical work;

(2) Be registered with the NH secretary of state to do business in the state of NH;

(3) Be insured with general liability insurance for person and property for a minimum amount of $50,000; and

(4) Have submitted documentation of (1)-(3) above to the department’s fiscal agent.

(f) When there is a discrepancy between the recommended specifications pursuant to (a)(1) above, and the EAS provider’s quote, the case manager shall not request an authorization for the service, and the department shall not authorize the service until the discrepancy is resolved to the recommended specifications.

(g) An initial authorization shall be made for the first 50% of the expense for the modification.

(h) Final authorization for payment for EAS shall not be made until the department receives the following:

(1) A copy of any required state or local building permit(s) and written confirmation from the building inspector that the work was completed as allowed by the permit(s);

(2) A signed statement from the participant, and if the participant is not the owner of the residence, the property owner, stating that the work has been completed according to the approved bid and plans to the satisfaction of the participant and, if applicable, the property owner;

(3) A signed confirmation from the case manager stating that the work was completed; and

(4) A signed confirmation from the participant that he or she was trained as described in the training plan to ensure safe use of the adaption.

(i) Payment for EAS shall not exceed the limit specified in the HCBS-CFI waiver approved by CMS.

(j) If, within 90 days of an EAS installation:

(1) There is a discrepancy between the EAS provider’s quote and the delivered or installed materials for a participant, the EAS provider shall replace the equipment or modification;

(2) The replacement includes a restocking fee that the EAS provider will incur as a result of the needed modification or replacement, the EAS provider may provide a revised quote for the replacement at the same cost and add a restocking fee, and the case manager shall submit the revised quote that includes the restocking fee for authorization to the department. Any restocking fee shall be limited to the actual restocking fee incurred by the EAS provider; and

(3) There is a need to modify the EAS because it did not meet the local or state codes or the EAS provider’s quote, the repair, replacement, or modification shall be made at the EAS provider’s expense.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22 (formerly He-E 801.17)

He-E 801.18 Financial Management Services.

(a) FMS, as defined in He-E 801.02(t) shall be provided in accordance with the budget developed by the participant with the case manager as part of the participant’s comprehensive care plan.

(b) The FMS provider shall:

(1) Manage and direct the disbursement of funds in accordance with the PDMS budget and plan;

(2) Facilitate the employment of staff by the family or CFI participant;

(3) Provide orientation and skills training to the participant or the participant’s legal representative who is to act as co-employer of direct support staff about responsibilities as co-employers for the direct support workers employed;

(4) Provide fiscal accounting to include:

a. Disbursements for goods and services approved in the comprehensive care plan and the balance of the participant’s available funds; and

b. Ensuring separation of each participant’s budget and expenses; and

(5) Provide employer functions, including but not limited to:

a. Hiring workers chosen by the participant;

b. Verifying worker citizenship status;

c. Ensuring completion of required background checks and obtaining a waiver if necessary pursuant to He-E 801.37;

d. Processing payroll and issuing payment to employees;

e. Withholding all federal, state, and local taxes and making tax payments to the applicable tax authorities; and

f. Documenting required training.

(c) FMS providers shall enroll with NH medicaid as FMS providers and have the capabilities to perform the required tasks in accordance with 26 USC 3504 and revenue procedure 70-6.

(d) The participant’s budget shall include the following, based on the needs identified by the case manager in the comprehensive care plan:

(1) The specific PDMS components:

(2) The frequency and duration of the required services; and

(3) An itemized cost of the PDMS.

(e) The FMS provider shall prepare a budget worksheet that details how the participant intends to spend the funds allocated in the participant’s budget and the worksheet shall be reviewed monthly by the participant.

(f) Expenses that exceed the limits allowed under a participant’s PDMS budget or that exceed service limits allowed for SME or EAS, or that are not allowed under this program as authorized by CMS, shall not be paid.

(g) All FMS providers shall:

(1) Provide services as described in this part;

(2) Maintain an account for the participant for the purposes of tracking expenditures from the participant’s budget;

(3) Inform participants of procedures for payment requests for goods and services;

(4) Review and submit for payment to the department the items or services that the participant purchases based on his or her budget; and

(5) Provide the participant with a monthly statement to track expenditures and to ensure that the FMS provider is handling the participant’s budget appropriately and accurately.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22

He-E 801.19 Home-Delivered Meals Services.

(a) Home-delivered meals, as defined in He-E 801.02(v) and provided as a covered service, shall include:

(1) The delivery of nutritionally balanced meals to the participant’s home; and

(2) Concurrent with meal delivery, monitoring of the participant’s wellbeing, and the reporting of emergencies, crises, or potentially harmful situations shall be made to emergency personnel or the participant’s case manager, as appropriate.

(b) All home-delivered meals shall:

(1) Include at least one-third of the dietary reference intakes r, established by the U. S. Department of Agriculture for dietary reference intakes as specified in the United States Department of Agriculture’s, “Dietary Guidelines for Americans 2020-2025” (Ninth Edition), available as noted in Appendix A; and

(2) Meet the U.S. Department of Agriculture recommended Dietary Guidelines for Americans as specified in the United States Department of Agriculture’s, “Dietary Guidelines for Americans 2020-2025” (Ninth Edition), incorporated in (1) above and available as noted in Appendix A.

(1) Be enrolled and contracted with the department to provide home-delivered meal services to adults;

(2) Ensure that meals are prepared and delivered in compliance with the comprehensive care plan and with any applicable state, federal, or local requirements;

(3) Provide meals that accommodate diabetic or salt restricted diets, or both, as requested by the case manager;

(4) Provide visual verification that the participant is home and that there are no unusual circumstances that may cause someone to suspect harm or potential harm to the participant; and

(5) Report any observations of unusual circumstances to the designated agency supervisor or, in the case of an emergency, call emergency personnel.

(d) Home-delivered meals services shall not be a covered service when the meal is provided at an adult day program, residential care facility, or a congregate meal site.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22 (formerly He-E 801.18)

He-E 801.20 Home Health Aide Services.

(a) Home health aide services, as defined in He-E 801.02(w) shall be covered for non-acute needs when provided by a licensed nursing assistant (LNA) licensed in accordance with RSA 326-B and employed by a home health care agency licensed in accordance with RSA 151:2 and He-P 809.

(b) The following home health aide services shall be covered:

(1) Those services allowed within the LNA scope of practice, pursuant to Nur 700 that are not personal care services; and

(2) Personal care services, as described in He-E 801.25, when the participant’s provider care plan contains documentation that his or her medical condition necessitates the performance of such tasks by an LNA and not an unlicensed provider.

(c) Home health aide services shall not be covered separately when provided at an adult day program or at a residential care facility.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22 (formerly He-E 801.19)

He-E 801.21 Homemaker Services.

(a) Homemaker services, as defined in He-E 801.02(x), shall be covered when provided by employees of:

(1) Home health care providers licensed in accordance with RSA 151:2 and He-P 809;

(2) Home care service providers licensed in accordance with RSA 151:2 and He-P 822; or

(3) Other qualified agencies certified in accordance with RSA 161-I and He-P 601.

(b) Homemaker services shall be limited to the following non-hands-on general household services:

(1) Laundering the participant’s personal clothing items, towels, and bedding;

(2) Light cleaning limited to the participant’s bedroom, bathroom, and mobility and medical devices and common living spaces;

(3) When the participant lives alone, light cleaning of the kitchen and entry way areas, and common living spaces in order to maintain a safe environment;

(4) Errands for necessary tasks identified in the comprehensive care plan; and

(5) Preparation of non-communal meals and snacks, unless for multiple CFI participants, including cleaning the food preparation area after the food is served.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22 (formerly He-E 801.20)

He-E 801.22 Non-Medical Transportation Services.

(a) Non-medical transportation services, as defined in He-E 801.02(ae), provided to enable participants to access the community when personal care services shall do so as articulated in the comprehensive care plan.

(b) The participant’s case manager shall:

(1) Document in the participant’s record what public transportation resources were considered by the case manager and why these resources cannot meet the participant’s needs;

(2) Include in the authorization request the destination where the participant will be transported; and

(3) Be included in the participant’s comprehensive care plan.

(1) Home health care providers licensed in accordance with RSA 151:2 and He-P 809;

(2) Home care service providers licensed in accordance with RSA 151:2 and He-P 822;

(3) Other qualified agencies certified in accordance with RSA 161-I and He-P 601; or

(4) Agencies under contract with the department to provide services, which include the provision of transportation, funded by the Older Americans’ Act or the Social Services Block Grant.

(d) The agencies in (c) above shall ensure that:

(1) Vehicles used for providing non-medical transportation services have a current inspection sticker; and.

(2) Drivers providing non-medical transportation services:

a. Have a current and valid driver’s license;

b. Have automobile insurance that:

1. Includes uninsured motorist coverage; and

2. Is for a minimum of $100,000 per passenger per occurrence and $300,000 per occurrence; and

(3) Are 18 years of age or older.

(e) The following services shall not be covered as non-medical transportation:

(1) Transportation provided with the participant’s vehicle;

(2) Transportation to or from medical appointments or services; and

(3) Transportation provided to a participant who resides at a residential care facility or adult family care home.

(f) The prohibition on use of a participant’s vehicle in (f)(1) above, shall not preclude a licensed provider from using a participant’s vehicle in offering another authorized service, such as personal care service pursuant to He-E 801.25.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22 (formerly He-E 801.21)

He-E 801.23 Participant Directed and Managed Services.

(a) PDMS, as defined in He-E 801.02(ai), shall:

(1) Be tailored to the participant’s competencies, interest, preferences, and needs;

(2) Promote the health, safety, and emotional wellbeing of the participant;

(3) Be provided in a manner which protects the participant’s rights as described in RSA 151:21-b;

(4) Provide the degree of support a participant needs in order to direct services, increase his or her level of independence, and advocate for himself or herself; and

(5) Allow the participant to serve as co-employer along with an FMS provider for the providers serving the participant.

(b) PDMS shall allow the participant or the participant’s legal representative to define the provider qualifications that reflect sufficient training, expertise, experience and/or education to ensure delivery of safe and effective services, unless otherwise required by state or federal licensing or certification requirements.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22

He-E 801.24 Personal Care Services.

(a) PCS shall be documented in the provider care plan and covered when provided for non-acute needs by employees of:

(1) Home health care providers licensed in accordance with RSA 151:2 and He-P 809;

(2) Home care service providers licensed in accordance with RSA 151:2 and He-P 822; or

(3) Other qualified agencies certified in accordance with RSA 161-I and He-P 601.

(b) Covered personal care services shall include the following services:

(1) Hands-on assistance with the ADLs or IADLs or cuing a participant to perform a task;

(2) Assisting the participant with eating;

(3) Under the direction of the participant, assistance with self-administration of oral or topical medication as prescribed, including:

a. Reminding the participant regarding the timing and dosage of the medication, and to take his or her medication as written on the medication container;

b. Placing the medication container within reach of the participant;

c. Assisting the participant with opening the medication container;

d. Assisting the participant by steadying shaking hands; and

e. Observing the participant take the medication and recording the same in the participant’s record;

(4) Accompanying the participant in the community when:

a. The assistance of the personal care worker is required by the participant ; and

b. The need for re-direction or direct assistance, or both, is required;

(5) When non-medical transportation services are authorized, hands-on assistance at the authorized destination when the provider care plan documents that this assistance is required at the destination;

(6) General household tasks, limited to the following:

a. Laundering the participant’s personal clothing items, towels, and bedding;

b. Light cleaning limited to the participant’s bedroom, bathroom, mobility and medical devices, and common living spaces;

c. Light cleaning of the kitchen, entry way areas, and common living spaces, to maintain a safe environment for the participant;

d. Errands for necessary tasks identified in the provider care plan;

e. Preparing meals and snacks for CFI participants including cleaning the food preparation area after the food is served; and

(7) Care, grooming, or feeding of service animals as defined in 28 CFR 35.104, or assistance animals as defined by the U.S Department of Housing & Urban Development’s “Office of Fair Housing & Equal Opportunity Notice: FHEO-2020-01” (January 2020), available as noted in Appendix A.

(1) For the purpose of transportation only, when no other assistance is required;

(2) When provided in any of the following settings:

a. A residential care facility;

b. A hospital;

c. A nursing facility;

d. A rehabilitation facility;

e. An adult family care home; and

f. An adult day care; and

(3) When provided by any of the following individuals:

a. The participant’s personal care services representative, designated in accordance with (d) and (e) below;

b. The participant’s agent acting under a designated power of attorney pursuant to RSA 564-E; or

c. The participant’s legal guardian.

(d) The participant, his or her legal guardian, or a person granted authority under a power of attorney of the participant may designate a PCS representative to act on the participant’s behalf:

(1) To direct the PCS being provided; and

(2) Under the following conditions:

a. The following persons shall not serve as a PCS representative for purposes of directing personal care services:

1. The personal care worker providing services;

2. The participant’s case manager; and

3. Anyone having a financial relationship with any agency providing personal care services or intermediary services, as defined in RSA 161-I:2, VII, to the participant;

b. The PCS representative shall be designated through a written document, stating that:

1. The PCS representative’s role applies only to decisions made regarding the personal care services described in this section;

2. The appointment of a PCS representative may be revoked by the participant at any time; and

3. The responsibilities of the PCS representative shall be to:

(i) At a minimum, have weekly face-to-face contact with the participant and the personal care worker;

(ii) At a minimum, have monthly contact with the participant’s case manager concerning PCS;

(iii) Ensure that the personal care worker is taking the participant’s care preferences into consideration; and

(iv) Communicate concerns or satisfaction to the provider agency that employs that personal care worker; and

c. The written document designating the PCS representative shall be signed by the participant or his or her legal guardian or by the person granted authority under a power of attorney and a witness and be maintained by the provider agency.

(e) When a PCS representative is designated, the participant, his or her guardian, or the person granted authority under a power of attorney shall:

(1) Notify the provider agency in writing of the PCS representative’s name and scope of authority; and

(2) Notify the provider agency in writing of any changes in representation within 30 days of the date that the change occurs.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22 (formerly He-E 801.22)

He-E 801.25 Personal Emergency Response Systems Services.

(a) Personal emergency response systems (PERS), as defined in He-E 801.02(al), services shall be a covered service for participants who:

(1) Live alone, live only with someone in poor or failing health, or who are alone at home for 8 hours or more per day, and who are:

a. Ambulatory and at risk of falls as assessed by a physician, registered nurse, or occupational or physical therapist; or

b. Identified as at risk of having a medical emergency as identified in the comprehensive care plan; and

(2) Would require ongoing supervision if the PERS were not provided.

(b) PERS shall not be covered separately when provided to a participant receiving residential care services.

(1) Setting up the PERS in the participant’s home;

(2) Demonstrating to the participant how to use the PERS;

(3) Providing 24/7 monitoring, including the capacity to summon emergency assistance on behalf of the individual as needed; and

(4) Repairing and replacing faulty units.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22 (formerly He-E 801.23)

He-E 801.26 Residential Care Facility Services.

(a) The following residential care services shall be covered:

(1) Those services described in He-P 804 or He-P 805; and

(2) Transportation to medical services except when a course of prescribed treatment requires any of the following:

a. Emergency transportation;

b. Transportation more than once per week; or

c. Transportation to a treatment location that is a greater distance from the facility than the participant’s primary care physician.

(b) Residential care facility services shall be covered when provided by facilities licensed in accordance with RSA 151:2 and either He-P 804 or He-P 805.

(c) Reimbursement for all residential care facility services shall be included in one of 3 per diem rates in accordance with (d) below, established by the department in accordance with RSA 161:4, VI(a), and individual services shall not be reimbursed separately when provided in a residential care facility setting.

(d) Residential care facilities licensed under He-P 804 shall be reimbursed at the base residential care facility rate, supported residential care facilities licensed under He-P 805 shall be reimbursed at different rates depending on the needs of the participant in accordance with (e) below.

(e) Supported residential care facilities shall be reimbursed at the base residential care facility rate unless the supported residential care facility has qualified staff assess the needs of the participant using BEAS 3755, “Resident Level of Care Sheet” (January 2022).

(f) Supported residential care facilities that complete BEAS 3755 shall be reimbursed a per diem rate based on the participant’s needs as follows:

(1) The base residential care facility rate for participants with needs assessed 0-8 on BEAS 3755;

(2) Residential Care Dementia Level 1 for participants with needs assessed 9-17 on BEAS 3755; or

(3) Residential Care Dementia Level 2 for participants with needs assessed 18-39 on BEAS 3755.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22 (formerly He-E 801.24)

He-E 801.27 Respite Care Services.

(a) Respite care services shall be a covered service when provided by or in one of the following settings:

(1) A medicaid-enrolled nursing facility, licensed in accordance with RSA 151:2 and He-P 813;

(2) A medicaid-enrolled residential care facility licensed in accordance with RSA 151:2 and He-P 804 or He-P 805; or

(3) In the participant’s own residence, by:

a. Home health care providers licensed in accordance with RSA 151:2 and He-P 809;

b. Home care service providers licensed in accordance with RSA 151:2 and He-P 822; or

c. Other qualified agencies certified in accordance with RSA 161-I and He-P 601.

(b) Respite care services shall be:

(1) Provided to the participant on a short-term basis, as described in (2) below, because of the temporary absence or need for relief of those persons normally providing that participant’s care; and

(2) Limited to 30 24-hour days of care per state fiscal year.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22 (formerly He-E 801.25)

He-E 801.28 Skilled Nursing Services.

(a) Skilled nursing services, as defined in He-E 801.02(ao), shall be provided by a registered nurse (RN) or by a licensed practical nurse (LPN) who is employed by a home health care provider licensed in accordance with RSA 151:2 and He-P 809.

(b) Skilled nursing services shall be covered for non-acute needs for the provision of chronic long-term care and not short-term care.

(1) On the same day as the participant attends an adult day program if the identified need is within the scope of what would normally be provided by the program;

(2) For the purpose of nursing oversight of authorized LNA services;

(3) At a residential care facility; or

(4) When determined to be needed for the provision of acute needs under the New Hampshire medicaid state plan.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22 (formerly He-E 801.26)

He-E 801.29 Specialized Medical Equipment Services.

(a) Specialized medical equipment for non-acute needs shall be a covered service when:

(1) A NH medicaid-enrolled licensed practitioner or physical or occupational therapist has determined the clinical need for one or more of the items in (b) below;

(2) The participant’s case manager has requested prior authorization for the item in accordance with (c) below;

(3) The department has provided the prior authorization for the item; and

(4) The service is completed by a NH enrolled medicaid provider.

(b) Covered specialized medical equipment services shall include the following durable medical equipment items:

(1) Raised toilet seats;

(2) Shower/tub seats and benches;

(3) Tub lifts;

(4) Transfer benches;

(5) Bedside commodes;

(6) Dressing aids and grabbers;

(7) Non-slip grippers to pick up and reach items;

(8) Adaptive utensils;

(9) Transport wheelchairs;

(10) Wheelchair cushions;

(11) Walkers;

(12) Patient lifts;

(13) Slings;

(14) Semi-electric beds;

(15) Bed rails;

(16) Mattress overlay pads;

(17) Electronic communication devices;

(18) Seat lifts, including the chair, or seat lift mechanisms when the following criteria are met:

a. The participant has a severe condition that causes the participant to require assistance to come to a standing position;

b. The participant is completely incapable of standing up from a regular armchair or any chair in their home; and

c. The participant’s attending physician, or a consulting physician treating the participant for the disease or condition resulting in the need for a seat lift, documents that the seat lift mechanism is a part of the physician’s course of treatment to provide support for a condition that is not likely to improve and that may worsen;

(19) Medication dispensing devices, including training on their use, when the following conditions are met:

a. The participant or caregiver is able to use the device;

b. The participant does not live in a licensed facility;

c. When the use of this service is documented to either:

1. Replace another service of equal or greater cost; or

2. Avoid the addition of another service; and

d. The type of device is determined by the department’s skilled professional medical personnel to be the least costly device that is appropriate for the participant; and

(20) Other durable medical equipment items that are:

a. Specified in the comprehensive care plan which enable participants to increase their ability to perform activities of daily living;

b. Specified in the comprehensive care plan to help the participant perceive, control, or communicate with the environment in which they live;

c. Necessary for life support or to address physical conditions along with ancillary supplies and equipment necessary to the proper functioning of such items;

d. Not available under the state plan that is necessary to address the participant’s functional limitation; or

e. Necessary medical supplies not available under the state plan.

(c) The participant’s case manager shall submit the following when requesting prior authorization for specialized medical equipment:

(1) A completed Form 3715, “Choices for Independence Prior Authorization Request Form” (January 2022)

(2) A written copy of the determination in (a)(1) above that describes:

a. The medical or functional need for the equipment;

b. Any specifications necessary to meet the participant’s needs; and

c. The proposed training plan for the participant and caregiver to ensure safe use of the equipment;

(3) Proposals from at least 2 medicaid enrolled providers, except that one proposal may be submitted when the equipment costs less than $1,000, already has a set or fixed rate, or with a written explanation of why only one proposal is available or appropriate, including the following, as applicable to the equipment:

a. A list of supplies and materials; and

b. A description of the equipment, including measurements when necessary; and

(4) If a participant prefers one proposal over the other(s), then an explanation of the preference.

(d) Specialized medical equipment services shall not be covered separately for participants receiving residential care facility services if the facility is otherwise required to provide the equipment pursuant to He-P 804, He-P 805, a residential services agreement, or the specialized medical equipment is included in the residential care facility service rate.

(e) Payment for specialized medical equipment shall:

(1) Be for the most cost-effective item, as identified by the department, that would effectively meet the participant’s needs; and

(2) Not exceed the participant limit specified in the HCBs-CFI waiver approved by CMS.

(f) If, within 90 days of delivery of the specialized medical equipment:

(1) There is a discrepancy between the proposal and the delivered or installed equipment for a participant, the specialized equipment provider shall replace the equipment; and

(2) The replacement includes a restocking fee that the specialized medical equipment provider will incur as a result, the provider may submit a revised proposal for the replacement equipment at the same cost and add a restocking fee, and the case manager shall submit the revised proposal that includes the restocking fee for authorization to the department.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22 (formerly He-E 801.27)

He-E 801.30 Supportive Housing Services.

(a) Supportive housing services, as defined in He-E 801.02(ar), shall be covered when services are provided by:

(1) A public housing authority licensed as a home health care provider in accordance with RSA 151:2 and He-P 809;

(2) A home health care provider licensed in accordance with RSA 151:2 and He-P 809 that is contracted with a public housing authority to provide services; or

(3) An other qualified agency certified in accordance with RSA 161-I and He-P 601 that is contracted with a public housing authority to provide services.

(b) Supportive housing services shall be provided in federally subsidized individual apartments.

(1) Personal care services, as described in He-E 801.24;

(2) Assistance with ADLs;

(3) Assistance with the IADLs including the following activities:

a. Making telephone calls; and

b. Obtaining and keeping appointments;

(4) Home health aide services as described in He-E 801.20;

(5) Homemaker services, as described in He-E 801.21;

(6) Personal emergency response systems services as described in He-E 801.26; and

(7) Medication reminders and other supportive activities as specified in the comprehensive care plan or which promote and support health and wellness, dignity, and autonomy within a community setting.

(d) Supportive housing services shall be included in a per diem rate, established by the department in accordance with RSA 161:4, VI(a), and shall not be reimbursed as a separately covered service when provided in a supportive housing setting.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22 (formerly He-E 801.28)

He-E 801.31 Supported Employment Services.

(a) All supportive employment (SEP) services shall:

(1) Be designed in accordance with the participant’s specific needs, interests, competencies, and learning style, as described in the person-centered comprehensive care plan developed in accordance with He-E 805 and employment profile; and

(2) Assist each participant to assume as much personal responsibility in job seeking and job retention as is possible for that participant.

(b) SEP shall be provided by an employment professional.

(1) Meet one of the following criteria:

a. Have completed, or complete within the first 6 months of becoming an employment professional, training that meets the national competencies for job development and job coaching, as established by the Association of People Supporting Employment First’s (APSE) “Universal Employment Competencies” (January 2019), available as noted in Appendix A; or

b. Have obtained the designation as a certified employment services professional through the Employment Services Professional Certification Commission (ESPCC), an affiliate of APSE; and

(2) Obtain 12 hours of continuing education annually in subject areas pertinent to employment professionals including, at a minimum:

a. Employment;

b. Customized employment;

c. Task analysis/systematic instruction;

d. Marketing and job development;

e. Discovery;

f Person-centered employment planning;

g. Work incentives for individuals and employers;

h. Job accommodations;

i. Assistive technology;

j. Vocational evaluation;

k. Personal career profile development;

l. Situational assessments;

m. Writing meaningful vocational objectives;

n. Writing effective resumes and cover letters;

o. Understanding workplace culture;

p. Job carving;

q. Understanding laws, rules, and regulations;

r. Developing effective on the job training and supports;

s. Developing a fading plan and natural supports;

t. Self-employment; and

u. School to work transition.

(d) Payment for SEP shall include:

(1) All supported employment services identified in the provider care plan;

(2) Job opportunity development;

(3) Assistance, as needed, with employment including:

a. Job applications;

b. Resume-writing;

c. Obtaining references;

d. Development of a career portfolio;

e. Interview preparation; and

f. All other activities related to obtaining and maintaining employment except as described in (10) below;

(4) Training for the participant to learn the responsibilities and expectations of employment, including:

a. Acquiring or developing acceptable work standards and workplace behavior;

b. Adjusting to the job site and work culture; and

c. Using accommodations, including any customized modifications made to perform the job;

(5) Implementation of the fading plan;

(6) Consultations or contacts with the businesses and the participant, as needed to assist the participant to remain successfully employed;

(7) Outreach to employers for building relationships that lead to immediate or future job opportunities for the participant;

(8) Training for direct support staff as it relates to the participant’s employment goals;

(9) Training for employers and co-workers to support the participant by understanding his or her:

a. Learning style;

b. Environmental needs;

c. Medical needs;

d. Physical needs; and

e. Safety needs;

(10) When combined with another employment service, transportation, and training in accessing transportation, as appropriate, to and from work;

(11) Referral, evaluation, and consultation for adaptive equipment, environmental modifications, communications technology, or other forms of assistive technology, and educational opportunities related to the participant’s employment services and goals;

(12) Accessing work incentives information and work incentives planning services for the participant; and

(13) Any other employment service identified in the participant’s provider care plan.

(e) All SEPs shall be designed to:

(1) Assist the participant to obtain employment or self-employment based on the participant’s employment profile and goals in the provider care plan;

(2) Provide the participant with opportunities to participate in a comprehensive career development process that helps to identify, in a timely manner, the participant’s employment profile;

(3) Support the participant to develop appropriate skills for job searching, including:

a. Creating a resume and employment portfolio;

b. Practicing job interviews; and

c. Learning soft skills that are essential for succeeding in the workplace;

(4) Assist the participant to become as independent as possible in his or her employment, internships, and education and training opportunities by:

a. Developing accommodations;

b. Utilizing assistive technology; and

c. Creating and implementing a fading plan;

(5) Help the participant to:

a.. Meet his or her goal for the desired number of hours of work as articulated in the provider care plan; and

b. Earn wages of at least minimum wage or prevailing wage, unless the participant is pursuing income based on self-employment;

c. Assess, cultivate, and utilize natural supports within the workplace to assist the participant to achieve independence to the greatest extent possible;

d. Help the participant to learn about, and develop appropriate social skills to actively participate in, the culture of his or her workplace;

e. Understand, respect, and address the business needs of the participant’s employer, in order to support the participant to meet appropriate workplace standards and goals;

f. Maintain communication with, and provide consultations to, the employer to:

1. Address employer specific questions or concerns to enable the participant to perform and retain his or her job; and

2. Explore opportunities for further skill development and advancement for the participant;

g. Help the participant to learn, improve, and maintain a variety of life skills related to employment, such as:

1. Traveling safely in the community;

2. Managing personal funds;

3. Utilizing public transportation; and

4. Other life skills identified in the person-centered comprehensive care plan related to employment;

h. Promote the participant’s health and safety;

i. Protect the participant’s right to freedom from abuse, neglect, and exploitation; and

j. Provide opportunities for the participant to exercise personal choice and independence.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22

He-E 801.32 Provider Participation.

(a) All providers shall:

(1) Be enrolled in NH medicaid as a CFI provider;

(2) Meet the applicable licensing, certification, or other requirements of the specific service being provided; and

(3) Comply with requirements contained in 42 CFR 441.301(c)(4).

(b) All providers shall:

(1) Create and maintain an individual provider care plan for each participant served in accordance with He-E 801.33(a);

(2) Create and maintain other documentation in accordance with He-E 801.33 and as required pursuant to applicable state and federal law;

(3) Submit claims for payment in accordance with He-E 801.34;

(4) Provide services in accordance with this part, 42 CFR 455, 42 CFR 456, 42 CFR 431, and 42 CFR 1001; and

(5) Be subject to monitoring and review by the department upon request.

(c) All providers shall comply with the provisions of RSA 161-F:49 with regard to checking the names of prospective or current employees, volunteers or subcontractors against the state registry maintained by the department’s bureau of elderly and adult services.

(d) All providers shall report to the appropriate departmental authority any participant who is suspected of being abused, neglected, exploited, or self-neglecting, in accordance with the adult protection law, RSA 161-F:46.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22 (formerly He-E 801.29)

He-E 801.33 Required Documentation.

(a) All providers, with exceptions noted in (b) below, shall develop, maintain, and implement a written provider care plan and adhere to the following:

(1) The provider shall communicate with the participant’s case manager to ensure the care plan is consistent with and addresses the applicable service needs and the participant’s preferences identified in the comprehensive care plan;

(2) The provider care plan shall contain, at a minimum:

a. A description of the participant’s needs and the scope of services to be provided;

b. The dates upon which services will begin and end;

c. The frequency of the services;

d. The total number of service units authorized and the amount that will be provided on each date of service;

e. Pertinent information on the participant’s health condition, medications, allergies, and special dietary needs; and

f. The anticipated goals and outcomes of service provision;

(3) The provider care plan shall be updated at least annually and as necessary to reflect change in the participant’s need for services; and

(4) The provider shall provide a copy of the provider care plan to the participant’s case manager, upon the completion or revision of the plan, and shall make the provider care plan available to the department upon request.

(b) Providers of the following services shall not be required to develop a provider care plan:

(1) EAS;

(2) Home-delivered meals services;

(3) Non-medical transportation services;

(4) Personal emergency response system services;

(5) Financial management services;

(6) Specialized medical equipment services; and

(1) Maintain documentation in accordance with applicable licensure, certification, and all other applicable federal and state laws and regulations or other requirements;

(2) Maintain any other supporting records in accordance with He-W 520; and

(3) Maintain documentation in their records to fully support each claim billed for services including the specific service provided, the number of service units provided, the name of the employee who provided the service, and the date and time of service provision, as applicable.

(d) Failure to maintain supporting records in accordance with He-W 520 and this part shall entitle the department to recoupment of state and federal medicaid payments pursuant to 42 CFR 455, 42 CFR 447, and 42 CFR 456.

(e) In addition to (c) above, documentation of PCS shall include verification of the PCS worker’s time, including:

(1) When paper timesheets are used, the signature of the participant or PCS representative indicating the reported hours are accurate, the service was provided in accordance with the provider care plan, and the service was to the participant’s satisfaction; or

(2) Certification that the service was provided in accordance with the electronic visit verification requirement of 42 USC 1396b(l) and the provider care plan and the service was to the participant’s satisfaction.

(f) The documentation required by this section shall be made available to the department upon request.

(g) The documentation required by this section shall be maintained for a period of at least 6 years from the date of service or until the resolution of any legal action(s) commenced during the 6 year period, whichever is longer.

Source. (See Revision Note at part heading for He-E 801) #9969, eff 8-8-11; ss by #12830, INTERIM, eff 8-7-19, EXPIRED: 2-3-20

New. #13340, eff 1-29-22 (formerly He-E 801.30)

He-E 801.34 Payment for Services.

(a) Providers shall submit all initial claims to the medicaid fiscal agent, so that the fiscal agent receives the claims no later than one year from the earliest date of service on the claim.

(b) If a provider submitted a claim during the one-year billing period and the claim is subsequently rejected by the fiscal agent, the provider shall resubmit the claim within 15 months from the earliest date of service to receive reimbursement.

(c) If medicaid does not pay a provider for medicaid coverable services, supplies, or equipment due to the billing practices of the provider, the provider shall not bill the participant for the item(s), service(s) or supplies.

(d) Payment to providers of CFI waiver services shall be made in accordance with rates established by the department in accordance with RSA 161:4, VI(a) and RSA 126-A:18-a, as applicable.

Source. #12610, eff 8-23-18; ss by #12830, INTERIM,
eff 8-07-19, EXPIRED: 2-3-10

New. #13340, eff 1-29-22 (formerly He-E 801.31)

He-E 801.35 Utilization Review and Control. The department shall monitor utilization of CFI waiver services to identify, prevent, and correct potential occurrences of fraud, waste, and abuse in accordance with 42 CFR 455, 42 CFR 456, He-W 520, 42 CFR 1001, and He-E 801.

Source. #13340, eff 1-29-22 (formerly He-E 801.32)

He-E 801.36 Third Party Liability.

(a) All third party obligations shall be exhausted before medicaid is billed, in accordance with 42 CFR 433.139.

(b) All providers shall determine if third party liability exists and file a claim with the third party before billing medicaid.

(c) If third party liability exists, and the provider is not enrolled with the third party in a manner that allows the provider to submit a claim for service, the provider shall not bill medicaid or the CFI participant.

Source. #13340, eff 1-29-22 (formerly He-E 801.33)

He-E 801.37 Waivers

(a) An applicant, case manager, provider agency, participant, or guardian, may request a waiver of specific procedures outlined in this part using the form titled BEAS 3865 “Choices for Independence Program Waiver Request Form.” (January 2022) The case management agency or provider agency shall submit the request in writing to (c) below.

(b) A completed waiver request form shall be signed by:

(1) The participant or the participant’s legal representative indicating agreement with the request; and

(2) The case manager and provider agency executive director or designee recommending approval of the waiver.

Bureau of Elderly and Adult Services

Hugh J. Gallen State Office Park

105 Pleasant Street, Main Building

Concord, NH 03301

(d) No provision or procedure prescribed by statute shall be waived.

(e) The request for a waiver shall be granted by the commissioner within 30 calendar days if the alternative proposed by the requesting entity meets the objective or intent of the applicable section of this part, and it:

(1) Does not negatively impact the health or safety of the participant(s);

(2) Does not affect the quality of services provided to participants; and

(3) All required criminal records checks have been completed no earlier than a year before the date of the waiver request; and

(f) Upon receipt of approval of a waiver request, the requesting entity’s subsequent compliance with the alternative provisions or procedures approved in the waiver shall be considered compliance with the rule for which the waiver was sought.

(g) Waivers shall be granted in writing and shall not expire except as in (h) and (i) below.

(h) Those waivers which relate to other issues relative to the health, safety, or welfare of participants that require periodic reassessment shall be effective for one year only.

(i) Any waiver shall end with the closure of the related program or service.

(j) A requesting entity may request a renewal of a waiver from the department. Such request shall be made at least 90 calendar days prior to the expiration of a current waiver and shall be granted in accordance with paragraphs (a) through (f) above.

Source. #13340, eff 1-29-22 (formerly He-E 801.34)

PART He-E 802 NURSING FACILITY SERVICES

REVISION NOTE:

Document #9888-A, effective 3-19-11, adopted rules He-E 802.03, 802.05, 802.06, and 802.10, repealed rules He-E 802.06 through He-E 802.09, and readopted with amendments other rules in Part He-E 802. Document #9888-B, effective 3-19-11, adopted a new rule He-E 802.18 on required forms. Document #9888-A also renumbered certain existing rules within Part He-E 802, as follows:

Former Rule New Rule

He-E 802.03 He-E 802.08

He-E 802.04 He-E 802.09

He-E 802.05 He-E 802.04

He-E 802.10 He-E 802.11

He-E 802.11 He-E 802.12

He-E 802.12 He-E 802.13

He-E 802.13 He-E 802.14

He-E 802.14 He-E 802.15

He-E 802.15-802.17 He-E 802.16

He-E 802.18 He-E 802.17

He-E 802.19 He-E 802.07

The prior filings affecting the repealed rules He-E 802.06, 802.07 and 802.09 included the following documents:

#7751, effective 8-17-02, EXPIRED 8-17-10

#9786, INTERIM, effective 9-20-10

The prior filings affecting the repealed rule He-E 802.08 included the following documents:

#7751, effective 8-17-02

#8523, effective 1-1-06

The source notes in He-E 802 below which have been renumbered by Document #9888-A include the former rule number, and the documents cited apply to the former rule number.

PART He-E 802 NURSING FACILITY SERVICES

He-E 802.01 Definitions.

(a) “Activities of daily living (ADLs)” means the primary activities necessary to carry out daily self-care activities involving eating, toileting, transferring, bathing, dressing, and continence.

(b) “Atypical services” means services provided by a nursing facility, or a distinct part of a nursing facility, which possesses the physical characteristics and appropriate staffing for, and devotes its services exclusively to, highly specialized care.

(c) “Bed-hold” means the right of an individual to resume nursing facility residency after he or she has been away from the facility due to hospitalization or therapeutic leave.

(d) “Bureau” means the bureau of elderly and adult services (BEAS) within the NH department of health and human services that administers programs that serve elderly and disabled adults.

(e) “Centers for Medicare and Medicaid Services (CMS)” means the federal agency within the U.S. Department of Health and Human Services that administers the Medicare and Medicaid programs.

(f) “Cognitive rehabilitation” means a program for brain-injured individuals that is designed to improve physical and cognitive abilities, decrease the disabling effects, and support behavioral stability, and social reintegration.

(g) “Coma management” means a program provided for brain-injured individuals in order to increase their level of physical ability, maintain optimal health and nutrition, and, where possible, increase cognitive awareness.

(h) “Department” means the New Hampshire department of health and human services.

(i) “Discharge” means “discharge” as defined in RSA 151:19, I-a.

(j) “Division of long term supports and services” means a division within the NH department of health and human services that administers long-term care and home and community based programs that serves chronically ill and disabled persons.

(k) “Extensive specialized care” means specific therapies for the treatment of an individual experiencing an acute episode of behavioral symptoms that necessitates supervision by trained mental health professionals that is directed toward improving the resident’s problematic behavioral symptoms.

(l) “Institution for individuals with intellectual disabilities or persons with related conditions” means “institution for individuals with intellectual disabilities or persons with related conditions” as defined in 42 CFR 435.1010.

(m) “Institution for mental diseases (IMD)” means “institution for mental diseases” as defined in 42 CFR 435.1010.

(n) “Legal representative” means one of the following individuals, duly appointed or designated in the manner required by law to act on behalf of another individual, and who is acting within the scope of his/her authority:

(1) An attorney;

(2) A guardian or conservator;

(3) An agent acting under a power of attorney;

(4) An authorized representative acting on behalf of an applicant in some or all of the aspects of initial and continuing eligibility in accordance with He-W 603.01; or

(5) A representative acting on behalf of another individual pursuant to RSA 161-I, Personal Care Services.

(o) “Licensed practitioner” means:

(1) Medical doctor;

(2) Physician’s assistant;

(3) Advanced practice registered nurse (APRN);

(4) Doctor of osteopathy;

(5) Doctor of naturopathic medicine; or

(6) Anyone else with diagnostic and prescriptive powers licensed by the appropriate New Hampshire licensing board.

(p) “Long-term care” means those health-related services provided in a nursing facility that are above the level of room and board, but below the level of skilled care.

(q) “Medical monitoring and nursing care” means clinical monitoring, provided on a daily basis by a licensed nurse, of disease processes that are currently being treated, including both stable and unstable conditions, in order to assess or supervise a chronic health problem, or assess episodes of acute illness, which might include monitoring of the effects of medication, or both.

(r) “Medication administration” means provision of one or more doses of medication to a resident by a person qualified by law or rule to administer medication.

(s) “Minimum data set (MDS)” means a current version, as specified by CMS, of a minimum set of screening and assessment elements, including common definitions and coding categories that form the foundation of the comprehensive assessment provided to all residents of facilities certified to participate in Medicare or Medicaid.

(t) “Nursing facility (NF)” means an institution or a distinct part of an institution that is:

(1) Participating in the Medicaid program;

(2) Meeting the requirements of Section 1919 of the Social Security Act, 42 USC 1396r;

(3) Not primarily an IMD or an institution for individuals with intellectual disabilities or persons with related conditions; and

(4) Providing one or more of the following:

a. Skilled nursing care and related services for residents who require medical or nursing care;

b. Rehabilitative services for the rehabilitation of injured, disabled or sick individuals; or

c. Health-related care and services to individuals who, because of their mental or physical condition, require care and services that are above the level of room and board, and that can be made available to them only through an institution.

(u) “Rehabilitative services” means nursing interventions that:

(1) Promote the resident’s ability to adapt and adjust to living as independently and safely as possible;

(2) Actively focus on achieving and maintaining optimal physical, mental and, psychosocial functioning; and

(3) Include nursing interventions as set forth in the current version of the MDS.

(v) “Reserved bed day” means a 24-hour period, midnight to midnight, when the resident of a nursing facility is not present during the midnight census at the conclusion of the day, and that is chargeable to Medicaid.

(w) “Resident” means a person residing in a nursing facility.

(x) “Self-administration” means an act whereby an individual administers his or her own medications.

(y) “Skilled professional medical personnel” means “skilled professional medical personnel” as defined in RSA 151-E:3.

(z) “Skilled nursing care” means those health related services, above the level of room and board, which meet the criteria used by the Medicare program for skilled nursing care, per 42 USC 1395i3.

(aa) “Swing-bed” means a bed within a hospital or critical access hospital participating in Medicare that is approved by CMS at a skilled level of care.

(ab) “Therapeutic leave” means one or more days when the resident is absent from the nursing facility for reasons stipulated in the resident’s plan of care, but not for purposes of hospitalization or transfer to another facility.

(ac) “Transfer” means “transfer” as defined in RSA 151:19, VII.

Source. #7751, eff 8-17-02, EXPIRED: 8-17-10

New. #9786, INTERIM, eff 9-20-10; ss by #9888-A, eff
3-19-11, EXPIRED: 3-19-19

New. #12741, INTERIM, eff 3-20-19, EXPIRED: 9-16-19

New. #13130, eff 10-30-20

He-E 802.02 Provider Participation.

(a) All NFs, and all hospitals containing swing beds, shall:

(1) Be licensed pursuant to RSA 151 and He-P 803;

(2) Be enrolled as New Hampshire Medicaid providers; and

(3) Meet the Medicare certification criteria for skilled nursing care.

(b) All NFs shall inform the bureau via a “Change of Status/Transfer/Discharge Form”, incorporated by reference in He-E 802.19(a), of any change in the resident’s status, including:

(1) Source of reimbursement;

(2) Death of the resident;

(3) Transfer to a different facility;

(4) Transition to a community setting; and

(5) Admission to a nursing facility while receiving waiver services.

(c) An individual’s history and a physical shall be submitted with the “Change of Status” form if the form is completed for an individual who is admitted to a facility while receiving waiver services.

(d) The “Change of Status” form in (b) above shall be submitted within 5 business days of the change, except that a transition to a community setting shall require notification no later than 14 days prior to the discharge date from the facility.

Source. #7751, eff 8-17-02, EXPIRED: 8-17-10

New. #9786, INTERIM, eff 9-20-10; ss by #9888-A, eff
3-19-11, EXPIRED: 3-19-19

New. #12741, INTERIM, eff 3-20-19, EXPIRED: 9-16-19

New. #13130, eff 10-30-20

He-E 802.03 Eligibility.

(a) An individual shall be eligible to receive NF services if he or she:

(1) Submits a signed and dated application, as defined in He-W 601.01(p), to the department;

(2) Has been determined financially eligible as either categorically needy or medically needy;

(3) Meets the clinical eligibility requirements for nursing facility care in RSA 151-E:3, I(a), namely, the person requires 24-hour care for one or more of the following purposes, as determined by a skilled professional medical personnel appropriately trained to use an assessment instrument and employed by the department, or a designee acting on behalf of the department:

a. Medical monitoring and nursing care when the skills of a licensed medical professional are needed to provide safe and effective services;

b. Restorative nursing or rehabilitative care with patient-specific goals;

d. Assistance with 2 or more ADLs involving eating, toileting, transferring into or out of a bed or chair, bathing, dressing, and continence; and

(4) Has chosen, or whose representative has chosen, by signing the application in (1) above, NF services.

(b) An individual who requires review in accordance with He-M 1302 shall be reviewed in accordance with He-M 1302 prior to an eligibility determination being made pursuant to this rule.

Source. (See Revision Note at part heading for He-E 802) #9888-A, eff 3-19-11, EXPIRED: 3-19-19

New. #12741, INTERIM, eff 3-20-19, EXPIRED: 9-16-19

New. #13130, eff 10-30-20

He-E 802.04 Eligibility Criteria for Atypical Services.

(a) Services in a skilled nursing care or atypical services unit shall be available to individuals who meet the clinical eligibility requirements in He-E 802.03 and this section, and whose clinical assessment required by He-E 802.05(a)(1)b. includes documentation of the individual’s rehabilitative potential and goals.

(b) Eligibility for atypical services shall not begin prior to the date of the completed nursing assessment instrument pursuant to He-E 802.05(a) below.

(c) Eligibility for short-term skilled nursing care or rehabilitative services shall be determined in accordance with the following criteria:

(1) The individual requires daily skilled nursing care or rehabilitative services, or both; and

(2) The individual has or is one or more of the following:

a. An acquired, non-degenerative brain injury resulting in residual deficits and disability;

b. An injury which occurred within one year of the date of admission to the skilled nursing care or rehabilitation unit, or in the alternative, has an injury older than one year of such admission which is expected to show significant improvement with treatment based on the assessment in (a) above; or

c. Ventilator-dependent or has other specific needs that require extensive nursing or rehabilitative services 24 hours per day.

(d) Eligibility for atypical non-behavioral long-term care services shall be determined in accordance with the following criteria:

(1) The individual requires daily nursing care or rehabilitative services, or both;

(2) The individual requires one of the covered services listed in He-E 802.09; and

(3) The individual has or is one or more of the following:

a. An acquired, non-degenerative brain injury resulting in residual deficits and disability;

b. An injury which occurred within one year of the date of admission to the non-behavioral unit, or in the alternative, has an injury older than one year of such admission which will show significant improvement with treatment based on the assessment in (a) above; or

c. Ventilator-dependent or has other specific needs that require extensive nursing or rehabilitative services 24 hour per day.

(e) Eligibility for atypical behavioral long-term care services shall be determined in accordance with the following criteria:

(1) The individual meets one or both of the following criteria:

a. Has had a psychiatric evaluation completed by a psychiatrist within 30 days prior to admission to the behavioral unit, and the evaluation indicates:

1. Evidence of current behavioral symptoms; or

2. Evidence of current and severe manifestations of behavioral problems that interfere with daily living situations; or

b. Has been diagnosed with one or more diseases that:

1. Have an impact on the individual’s ability to perform ADLs, cognitive status, mood or behavior status, medical treatments, nursing monitoring or risk of death; and

2. Consist of conditions that are addressed in the current plan of care developed by the NF currently treating the individual or a prospective NF; and

(2) Based on the MDS completed upon admission in accordance with 42 CFR 483.20, has:

a. A combined score that is less than or equal to 2 on the questions relative to:

1. Ability to understand others;

2. Short-term memory; and

3. Cognitive skills for decision making; and

b. An ADL score that is less than or equal to 10.

(f) The following shall apply to eligibility for and authorization for placement in a swing bed:

(1) The bureau shall authorize placement in a swing bed on either a temporary basis or a pending placement basis when there is no NF bed available;

(2) For a temporary placement in a short-term care swing bed:

a. The individual shall meet the eligibility criteria in (b) above; and

b. The bureau shall determine, in consultation with the hospital in which the individual is currently placed, that such temporary placement is appropriate;

(3) For a pending placement in a short-term care swing bed, the individual shall meet the eligibility criteria in (b) above; and

(4) For a pending placement in a long-term care swing bed, the individual shall meet the eligibility criteria in (c) or (d) above.

Source. #7751, eff 8-17-02; amd by #8523, eff 1-1-06, amd by #9786, INTERIM, eff 9-20-10; ss and renumbered by #9888-A, eff 3-19-11, EXPIRED: 3-19-19 (formerly He-E 802.05)

New. #12741, INTERIM, eff 3-20-19, EXPIRED: 9-16-19

New. #13130, eff 10-30-20

He-E 802.05 Clinical Eligibility Determination for NF Services.

(a) The department shall make the clinical eligibility determination of the applicant as follows:

(1) Skilled professional medical personnel appropriately trained to use the assessment instrument and employed by the department or designated by the department shall:

a. Conduct an on-site, face-to-face visit with the applicant;

b. Perform a clinical assessment of the applicant; and

c. Develop a list of identified needs for the applicant; and

(2) The applicant shall sign the following:

a. A consent for receiving NF services, as applicable;

b. An authorization for release of information, as applicable; and

c. An authorization for release of protected health information, as applicable.

(b) Pursuant to RSA 151-E:3, IV, if the department is unable to determine an applicant clinically eligible based on the assessment in (a) above, the department shall send notice to the applicant and the applicant’s licensed practitioner(s), as applicable, requesting additional clinical information within 30 calendar days of the notice and stating that the failure to submit the requested information will impede processing of the application and delay service delivery.

(c) Within the 30 day period in (b) above, if the requested information is not received within 20 calendar days, the department shall send a second notice to the applicable licensed practitioner(s) with a copy to the applicant requesting the information.

(d) Upon request from the treating licensed practitioner or applicant, the department shall extend the deadline in (b) above for a maximum of 30 days if the practitioner or applicant states that he or she has documentation that supports eligibility and will provide it within that time period.

(e) If the information required by (b) above is not received by the date specified in the notice, or as extended by the department in accordance with (d) above, clinical eligibility shall be denied pursuant to RSA 541-A:29.

(f) The applicant shall be determined clinically eligible if it is determined that the applicant meets the financial eligibility requirements described in He-W 600 and the clinical eligibility requirements of He-E 802.03 and 802.04.

(g) Upon a determination of eligibility, the applicant or his or her representative and the NF shall be sent an approval notice, including:

(1) The type of services approved, based on criteria described in He-E 802.04;

(2) The name of the facility where the individual will be receiving care; and

(3) The eligibility start date and, if applicable, the service end date.

(h) Upon a determination of ineligibility, because the applicant does not meet the eligibility requirements of He-E 802.03 and He-E 802.04 or because required information is not received pursuant to (e) above, the applicant or his or her representative and the NF shall be sent a notice of denial, including:

(1) A statement regarding the reason and legal basis for the denial;

(3) An explanation that an applicant who is denied services and who chooses to appeal this denial pursuant to He-C 200 shall not be entitled to Medicaid payments for NF services pending the appeal hearing decision; and

(4) The medical credentials of the skilled professional medical personnel making the determination of ineligibility.

(i) If an administrative appeal is requested and the result is a reversal of the bureau’s decision, retroactive payment shall be made to the NF or, if the individual is occupying a swing bed, to the hospital where the swing bed is located.

Source. (See Revision Note at part heading for He-E 802) #9888-A, eff 3-19-11, EXPIRED: 3-19-19

New. #12741, INTERIM, eff 3-20-19, EXPIRED: 9-16-19

New. #13130, eff 10-30-20

He-E 802.06 Request for Clinical Redetermination After Clinical Denial. An applicant or participant may reapply at any time following a denial, termination of services, or change in level or frequency of services, and eligibility shall be determined in accordance with He-E 802.03, He-E 802.04, and He-E 802.05.

Source. (See Revision Note at part heading for He-E 802) #9888-A, eff 3-19-11, EXPIRED: 3-19-19

New. #12741, INTERIM, eff 3-20-19, EXPIRED: 9-16-19

New. #13130, eff 10-30-20

He-E 802.07 Utilization Review.

(a) The bureau shall conduct utilization reviews for continued placement as described in this section.

(b) For individuals approved to receive short-term skilled nursing care or rehabilitative services, the following shall apply:

(1) The initial authorization shall be for up to 30 days;

(2) The individual shall be eligible for up to 2 additional 30-day authorization periods, based on a utilization review conducted by the bureau;

(3) The NF shall submit to the bureau a completed “Utilization Review Form”, incorporated by reference in He-E 802.19(b), and any supporting documentation no later than 14 days prior to the end of the current authorization period; and

(4) The bureau shall determine continued placement authorization if, based on the documentation in (3) above, the eligibility criteria in He-E 802.04(b) are met.

(1) The initial authorization shall be for one year;

(2) The individual shall be eligible for additional one-year authorization periods, based on a utilization review conducted by the bureau;

(3) The NF shall submit to the bureau a completed assessment pursuant to He-E 802.05(a)(1)b. and any supporting documentation no later than 14 days prior to the end of the current authorization period; and

(4) The bureau shall determine continued placement authorization if, based on the documentation in (3) above, the eligibility criteria in He-E 802.04(c) are met.

(d) For individuals approved to receive atypical behavioral long-term care services, the following shall apply:

(1) The initial authorization shall be for 6 months;

(2) The individual shall be eligible for an additional 6-month authorization period for a total of one year, after which additional authorization periods shall be for one year, based on a utilization review conducted by the bureau;

(3) The NF shall submit to the bureau, no later than 14 days prior to the end of the current authorization period, a completed “Utilization Review Form”, incorporated by reference in He-E 802.19(b), and the following supporting documentation:

a. A psychological evaluation;

b. A behavioral plan;

c. The bureau’s “Memory and Behavior Checklist”, incorporated by reference in He-E 802.19(c); and

d. A behavior summary which:

1. Includes the same information as the bureau’s “Behavior Summary Report”, incorporated by reference in He-E 802.19(d); and

2. Describes the recommended transition plan from the behavioral unit;

(4) The supporting documentation in (3) above shall have been completed no earlier than 30 days prior to its submission;

(5) After one year, in addition to the documentation in (3) above, the facility shall also submit to the bureau a completed assessment pursuant to He-E 802.05(a)(1)b.; and

(6) The bureau shall determine continued placement authorization if, based on the documentation in (3)-(5) above, the eligibility criteria in He-E 802.04(d) are met.

(e) For individuals authorized for placement in a swing bed, the following shall apply:

(1) For residents with a temporary placement, the requirements in (b) above shall apply; and

(2) For residents with a pending placement, the following shall apply:

a. The initial authorization shall be for 30 days;

b. The individual shall be eligible for additional 30-day authorization periods, based on a utilization review conducted by the bureau;

c. The NF shall submit to the bureau a completed “Utilization Review Form”, incorporated by reference in He-E 802.19(b), and any supporting documentation no later than 14 days prior to the end of the current authorization period; and

d. The bureau shall determine continued placement authorization if, based on the documentation in c. above, the eligibility criteria in He-E 802.04(e) are met.

(f) If the NF fails to submit timely utilization review documentation and supporting documentation in accordance with this section, the authorization for services and the payment for services provided shall end.

(g) When, as a result of utilization review, the medical condition of a resident in a specific placement no longer meets the criteria specified in He-E 802.04 for the specific placement, a notice of the determination and the right to request an appeal shall be sent to the resident and the NF, pursuant to He-E 802.05(h).

Source. #7751, eff 8-17-02, EXPIRED: 8-17-10

New. #9786, INTERIM, eff 9-20-10; ss and renumbered by #9888-A, eff 3-19-11, EXPIRED: 3-19-19 (formerly He-E 802.19)

New. #12741, INTERIM, eff 3-20-19, EXPIRED: 9-16-19

New. #13130, eff 10-30-20

He-E 802.08 Covered Services.

(a) Pursuant to 42 CFR 483, the following services shall be covered NF services:

(1) Nursing services in accordance with 42 CFR 483.35, including:

a. Services provided to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident, as determined by resident assessments and individual plans of care; and

b. Services provided on a 24-hour basis in accordance with resident care plans;

(2) Food and nutrition services in accordance with 42 CFR 483.60, including:

a. Providing each resident with a nourishing, palatable, well-balanced diet that meets the daily nutritional and special dietary needs of each resident;

b. Employing a qualified dietician either full-time, part-time, or on a consultant basis; and

c. Providing therapeutic diets, as prescribed by the attending physician;

(3) Activities program services in accordance with 42 CFR 483.24(c)(2), including an ongoing program of activities directed by a qualified professional and designed to meet, in accordance with the residents’ assessments, the interests and the physical, mental, and psychosocial well-being of each resident;

(4) Medically related social services, in accordance with 42 CFR 483.40, including:

a. Services provided to attain or maintain the highest practicable physical, mental, and psychosocial well-being of each resident; and

b. Employing a qualified social worker if the NF has more than 120 beds;

(5) A non-private room;

(6) The provision of routine personal generic or over the counter (OTC) hygiene items and services as required to meet the needs of residents, including, but not limited to the following:

a. Hygiene supplies;

b. Comb;

c. Brush;

d. Bath soap;

e. Disinfecting soaps or specialized cleansing agents when indicated to treat special skin problems or to fight infection;

f. Razor, and shaving cream;

g. Toothbrush, toothpaste, and dental floss;

h. Denture adhesive and denture cleaner;

i. Lotion;

j. Tissues, cotton balls, and cotton swabs;

k. Deodorant;

l. Incontinence care and supplies;

m. Sanitary napkins and related supplies;

n. Towels, washcloths, and hospital gowns;

o. Drugs;

p. Hair and nail hygiene services;

q. Bathing assistance; and

r. Basic personal laundry;

(7) Specialized rehabilitative services in accordance with 42 CFR 483.65, including, but not limited to, physical therapy, speech-language pathology, occupational therapy, respiratory therapy including oxygen, laboratory, radiology, mental health services, and those ancillary services listed in He-E 806.06, and provided by the NF or obtained by the NF from a qualified outside provider;

(8) Dental services in accordance with 42 CFR 483.55, including:

a. Providing or obtaining from an outside providers routine dental services to the extent covered by the New Hampshire Medicaid state plan pursuant to He-W 566;

b. Providing or obtaining from an outside provider emergency dental services; and

c. Assistance with:

1. Making dental appointments;

2. Arranging for transportation to and from the dentist’s office; and

3. Prompt referrals to a dentist for lost or damaged dentures;

(9) Pharmacy services in accordance with 42 CFR 483.45 including:

a. Following procedures that assure the accurate acquiring, receiving, dispensing, and administering of all drugs and biologicals to meet the needs of each resident;

b. Medical supplies, FDA approved pharmaceutical items, and FDA approved non-legend drugs, that is, drugs prescribed by a licensed practitioner that are normally purchased OTC, which are stocked at nursing stations or on the floor in gross supply and distributed individually in small quantities to meet the needs of each resident; and

c. Pharmacy service consultation of a licensed pharmacist;

(10) Physician services in accordance with 42 CFR 483.30;

(11) Specialized services in accordance with 42 CFR 483.120 for residents with an intellectual disability or mental illness; and

(12) Behavioral health services in accordance with 42 CFR 483.40.

(b) The services in (a) above shall be covered to the extent that they are required in each resident’s care plan.

Source. #7751, eff 8-17-02, EXPIRED: 8-17-10

New. #9786, INTERIM, eff 9-20-10; ss and renumbered by #9888-A, eff 3-19-11, EXPIRED: 3-19-19 (formerly He-E 802.03)

New. #12741, INTERIM, eff 3-20-19, EXPIRED: 9-16-19

New. #13130, eff 10-30-20

He-E 802.09 Covered Atypical Services.

(a) The following shall be covered in an atypical non-behavioral long-term care unit:

(1) Coma management services;

(2) Cognitive rehabilitation service shall be available and continue for as long as progressive, significant, and measurable improvement is documented by the NF and verified by the bureau in accordance with He-E 802.07;

(3) Care, treatment, and management of residents who are ventilator-dependent;

(4) Care, treatment, and management of residents who require nursing intervention to provide enteral nutrition services; and

(5) Care, treatment, and management of residents who require nursing interventions of a highly specialized nature.

(b) An atypical behavioral long-term care unit shall provide extensive specialized care in behavioral approaches which meet the needs addressed in the resident’s behavior modification plan.

Source. #7751, eff 8-17-02, EXPIRED: 8-17-10

New. #9786, INTERIM, eff 9-20-10; ss and renumbered by #9888-A, eff 3-19-11, EXPIRED: 3-19-19 (formerly He-E 802.04)

New. #12741, INTERIM, eff 3-20-19, EXPIRED: 9-16-19

New. #13130, eff 10-30-20

He-E 802.10 Non-Covered Services.

(a) Pursuant to 42 CFR 483.10(f)(11)(ii)(A)-(L), the following items and services shall not be covered:

(1) Utilities to include telephone, internet, and cable;

(2) Television and radio for personal use;

(3) Personal comfort items, including smoking materials, lotions and novelties, and confections;

(4) Cosmetic and grooming items and services in excess of those covered under He-E 802.08(a)(6);

(5) Personal clothing;

(6) Personal reading materials;

(7) Gifts purchased on behalf of a resident;

(8) Flowers and plants;

(9) Social events and entertainment offered outside the scope of the activities program, provided under He-E 802.08(a)(3);

(10) Non-covered special care services such as privately hired nurses or aides;

(11) Private room, except when therapeutically required, for example, isolation for infection control;

(12) Specially prepared or alternative food requested instead of the food generally prepared by the facility, as required by He-E 802.08(a)(2); and

(13) Barber and beauty services.

Source. (See Revision Note at part heading for He-E 802) #9888-A, eff 3-19-11, EXPIRED: 3-19-19

New. #12741, INTERIM, eff 3-20-19, EXPIRED: 9-16-19

New. #13130, eff 10-30-20

He-E 802.11 Residents’ Rights.

(a) Prior to or upon the resident’s admission to the NF, and annually thereafter, the NF shall inform the resident and his or her legal representative both orally and in writing, and in a language that the resident understands, of his or her rights, including the rights of residents in the event of a proposed transfer or discharge from the NF, in accordance with 42 CFR 483.10 and RSA 151:26, and of all rules and regulations governing resident conduct and responsibilities during the resident’s stay in the NF.

(b) Receipt of the information in (a) above, and any amendments to it, shall be acknowledged in writing by the resident or his or her legal representative.

(c) A NF shall establish and maintain identical policies and practices for all residents, regardless of the payment source, regarding transfers, discharges, and the provision of services.

Source. #7751, eff 8-17-02, EXPIRED: 8-17-10

New. #9786, INTERIM, eff 9-20-10; ss and renumbered by #9888-A, eff 3-19-11, EXPIRED: 3-19-19 (formerly He-E 802.10)

New. #12741, INTERIM, eff 3-20-19, EXPIRED: 9-16-19

New. #13130, eff 10-30-20

He-E 802.12 Planning and Implementation of Care.

(a) The NF shall develop and implement a plan of care in accordance with 42 CFR 483.10 (c). The plan of care shall be part of the NF’s permanent resident record. The resident has the right to participate in the development and implementation of his or her plan of care.

(b) The plan of care shall be updated at least every 90 days by the physician and other personnel involved in the care of the resident.

(1) The resident’s:

a. Full name;

b. Address;

c. Gender;

d. Date of birth;

e. Identification number;

f. Admission date; and

g. Any other pertinent identifying information;

(2) Diagnosis, symptoms, complaints, and complications indicating the need for admission or continuing care;

(3) The resident’s life history, significant relationships, and personal preferences;

(4) A description of the resident’s functional level;

(5) Written objectives and approaches by responsible personnel, including the dates when goals are achieved;

(6) Orders for:

a. Medications;

b. Treatments;

c. Restorative and rehabilitative services;

d Therapies;

e. Diet;

f. Activities;

g. Social services; and

h. Special procedures designed to meet these objectives;

(7) Progress notes that shall be written at least every 90 days;

(8) Plans for continuing care, including provisions for review and necessary modifications of the plan; and

(9) Discharge planning initiated within 7 days of admission.

(d) When discharge to the community is planned, the NF shall contact the department to ensure targeted transitional case management assignment pursuant to RSA 151-E:17.

Source. #7751, eff 8-17-02, EXPIRED: 8-17-10

New. #9786, INTERIM, eff 9-20-10; ss and renumbered by #9888-A, eff 3-19-11, EXPIRED: 3-19-19 (formerly He-E 802.11)

New. #12741, INTERIM, eff 3-20-19, EXPIRED: 9-16-19

New. #13130, eff 10-30-20

He-E 802.13 Room Changes Within the Facility.

(a) The resident shall reside and receive services in the NF with reasonable accommodation of individual needs and preferences, including choice of room and roommate, pursuant to 42 CFR 483.10(e), except when the health or safety of the resident or other residents would be endangered.

(b) A resident may refuse a transfer to another room within the NF if the purpose of the transfer is one of the following:

(1) To relocate a resident of a skilled NF from the distinct part of the NF that is skilled care to a part of the NF that is not skilled care;

(2) To relocate a resident of a NF from the distinct part of the NF that is not skilled care to a part of the NF that is a skilled NF; or

(3) Solely for the convenience of staff pursuant to 42 CFR 483.10(e)(7) iii.

(c) A NF shall provide a resident with written notification before the resident’s room location is changed or before the resident’s roommate is changed.

Source. #7751, eff 8-17-02, EXPIRED: 8-17-10

New. #9786, INTERIM, eff 9-20-10; ss and renumbered by #9888-A, eff 3-19-11, EXPIRED: 3-19-19 (formerly He-E 802.12)

New. #12741, INTERIM, eff 3-20-19, EXPIRED: 9-16-19

New. #13130, eff 10-30-20

He-E 802.14 Personal Accounts Belonging to Residents.

(a) A resident shall handle his or her own personal funds unless a legal representative has been appointed in accordance with state law.

(b) The NF shall not require residents to deposit their personal funds with the NF, but when the resident and his or her legal representative chooses to do this, the NF shall manage the resident’s personal funds in accordance with 42 CFR 483.10, RSA 151:24, and He-E 806.39.

(c) The resident’s personal funds shall not be used to pay or supplement payment for any item or service already included in or coverable by Medicaid reimbursement to the NF.

(d) In the event of a resident’s death, the money in the resident’s personal account shall remain in his or her estate in accordance with RSA 151-A:15.

Source. #7751, eff 8-17-02, EXPIRED: 8-17-10

New. #9786, INTERIM, eff 9-20-10; ss and renumbered by #9888-A, eff 3-19-11, EXPIRED: 3-19-19 (formerly He-E 802.13)

New. #12741, INTERIM, eff 3-20-19, EXPIRED: 9-16-19

New. #13130, eff 10-30-20

He-E 802.15 Temporary Absence from the Nursing Facility.

(a) A NF shall establish and follow a written policy regarding bed-hold periods which is consistent with RSA 151:25 and which indicates that when a NF has not received payment for a period of temporary absence or when the absence is longer than 10 days:

(1) The resident shall have the option to return to the NF to the next available bed; and

(2) If more than one person has a right of readmission, vacancies shall be allocated on a first request made, first request honored basis, and without regard to the source of payment.

(b) If a resident leaves the NF for any reason, and there is reason to believe that the resident might be absent during the next midnight census, then the following shall apply:

(1) The NF shall provide to the resident and his or her legal representative the NF’s written policy regarding bed-hold periods;

(2) The NF shall document the notification in the resident’s record, along with the resident’s and legal representative’s written agreement to pay, or rejection of the option to pay, for the bed-hold period;

(3) The NF shall not charge an amount in excess of the Medicaid rate to hold a bed for a resident who is on Medicaid; and

(4) If a NF refuses to readmit a resident following an absence for medical treatment or therapeutic leave then a transfer or discharge shall have been deemed to have occurred and the NF shall follow the transfer discharge requirements found in He-E 802.16.

(c) When a resident leaves the NF for medical treatment, the NF shall communicate with the hospital or facility providing the medical treatment to the extent reasonably necessary in order to plan for the resident’s safe and orderly transition back to the NF.

(d) When a resident is absent from a NF due to therapeutic leave, the NF may bill for reserved bed days pursuant to 42 CFR 447.40, subject to the following conditions:

(1) Such days shall be specified in the resident’s plan of care;

(2) The plan of care shall describe provisions for continuity of care while the resident is out of the NF;

(3) Such days shall not be for hospitalization or for transferring to another facility;

(4) The NF may not bill for more than 30 reserved bed days per resident per state fiscal year; and

(5) When a recipient is on reserved bed day status, the department shall not pay separately for any services covered as part of the NF’s rate pursuant to He-E 806.

Source. #7751, eff 8-17-02; amd by #8466, eff 10-28-05; amd by #9786, INTERIM, eff 9-20-10; ss and renumbered by #9888-A, eff 3-19-11, EXPIRED: 3-19-19 (formerly He-E 802.14)

New. #12741, INTERIM, eff 3-20-19, EXPIRED: 9-16-19

New. #13130, eff 10-30-20

He-E 802.16 Transfer or Discharge of Residents.

(a) The NF shall not transfer or discharge a resident except as allowed in accordance with 42 CFR 483.10, RSA 151:21, V, and RSA 151:26.

(b) Transfer or discharge of a resident shall be preceded by written notice in accordance with RSA 151:26, II, relative to what shall be included in the notice and to whom the notice shall be sent, including the long-term care ombudsman’s office.

(c) Written notice shall also include information regarding the resident’s right to an administrative hearing pursuant to He-C 200, including:

(1) A statement that the hearing is required to be requested in writing by the resident or his or her representative within 30 days of receiving the notice;

(2) A statement indicating that if a request for a hearing is filed within 20 days of receipt of the notice:

a. The resident shall be allowed to remain in the NF until a final decision is made by the administrative appeals unit, except as may be allowable under the provisions of RSA 151:26, II(b); and

b. That if the resident receives Medicaid, payments to the NF shall continue while the appeal is pending; and

(3) With regard to transfers or discharges involving less than 30 days’ notice, a statement informing the resident of his or her right to an expedited hearing, as described in He-E 802.17(d).

(d) No resident shall be transferred or discharged with less than 30 days’ notice from the date the notice of transfer or discharge is received by the resident except as allowed by RSA 151:26, II(b).

(e) When the written notice is delivered to the resident, NF staff shall:

(1) Communicate orally to the resident, in a language he or she understands, all information contained in the written notice, or, if the resident is hearing-impaired or cannot communicate orally due to a disability, consult with the bureau on how to make reasonable accommodation for communicating with the resident;

(2) Offer to help the resident contact a family member, legal representative, the office of the state long term care ombudsman, or any of the organizations identified in the notice; and

(3) Document the date and time of the notification and offer of assistance in the resident’s record.

(f) At the time of notice, the NF shall provide the resident with written material that describes residents’ rights, including the rights of a resident in the event of a proposed transfer or discharge from the facility, and for residents who are 60 years or older, contact information of the provider(s) of legal services under 42 USC 3058 et. seq.

(g) The NF shall document delivery of the notice to the resident by:

(1) Requesting the signature of the resident on a dated statement of receipt, if the resident is able and willing to sign a receipt;

(2) Recording the date of delivery to the resident in the resident’s record; and

(3) Recording whether and when the notice was mailed to the resident’s legal representative or family members.

(h) If less than 30 days’ notice of a transfer or discharge is given as allowed by RSA 151:26, II(b), the facility, in addition to all other requirements in this section, shall:

(1) Provide verbal notice to the resident and his legal representative and to family members in accordance with any instructions or limitations given by the resident;

(2) As soon as possible, follow the verbal notice with written notice to the above-mentioned parties; and

(3) Document the date and time of the notification in the resident’s record.

(i) The NF shall make, and document in the resident’s record, reasonable efforts to work with the resident, the resident’s legal representative, or the resident’s family to resolve any payment problem prior to transfer or discharge.

(j) No resident shall be transferred or discharged unless there is a written transfer or discharge plan, which includes the following:

(1) The circumstances surrounding the discharge or transfer, including alternative interventions initiated by the NF before the facility proposed the discharge or transfer;

(2) All efforts made to locate the resident to the setting of his or her choice, and if the resident’s wishes could not be accommodated, the reasons why;

(3) The location of the new setting and, if a facility, confirmation that the facility has accepted the resident;

(4) A comprehensive description of the medical, social, and rehabilitative needs of the resident and how the resident’s needs will be met in the new setting;

(5) Documentation of consultation with the resident, family, or other interested parties, if and to the extent that this has been reasonably possible; and

(6) Documentation of consultation with the resident’s personal physician or APRN regarding the transfer or discharge.

(k) A copy of the transfer or discharge plan shall be provided to:

(1) The resident and his or her legal representative; and

(2) The office of the state long term care ombudsman.

Source. #7751, eff 8-17-02, EXPIRED: 8-17-10

New. #9786, INTERIM, eff 9-20-10; ss and renumbered by #9888-A, eff 3-19-11, EXPIRED: 3-19-19 (formerly He-E 802.15-He-E 802.17)

New. #12741, INTERIM, eff 3-20-19, EXPIRED: 9-16-19

New. #13130, eff 10-30-20

He-E 802.17 Appealing Transfers or Discharges.

(a) Any resident being transferred or discharged, including any resident who asserts that his or her bed-hold right or right to readmission under He-E 802.15 has been denied, may appeal the transfer or discharge in accordance with the provisions contained in these rules and in He-C 200.

(b) The request for an appeal shall be submitted within 30 days after the resident receives written notice of a proposed transfer or discharge, in compliance with He-E 802.17, or within 30 days of the date the resident learns of the right to appeal if the NF fails to provide the required written notice.

(c) If a resident requests a hearing within 20 days after receiving the notice from the NF, the resident’s transfer or discharge shall be suspended until after the hearing decision is issued, and the resident shall not be transferred or discharged from the NF except as allowed under the provisions of He-E 802.16(d).

(d) In the event of a transfer or discharge with less than 30 days-notice under the provisions of He-E 802.16(d), a resident may request an expedited hearing, subject to the following conditions:

(1) The request for an expedited hearing shall be made within 10 calendar days of the notice of transfer or discharge;

(2) An expedited hearing shall be held within 5 working days of the request for hearing; and

(3) The hearing decision shall be issued:

a. Within 3 working days of the hearing if the resident has been moved out of the NF and the resident requested an expedited hearing; or

b. Within 15 working days of the hearing in all other cases.

(e) A hearing may be requested by a resident, his or her legal representative, or anyone acting on behalf of a resident, including a NF, the department, a family member, or a friend.

(f) Any employee or agent of the NF or the department who becomes aware that a resident has expressed a desire to have his or her transfer or discharge reviewed shall assist the resident in writing and submit his or her request for a hearing, or shall submit the request on behalf of the resident if the resident is not able to do so.

(g) The request for a hearing shall be submitted in writing, with a copy of the NF’s notice of transfer or discharge, to:

NH Department of Health and Human Services

Administrative Appeals Unit

105 Pleasant Street

Concord, NH 03301

(h) The resident and the NF shall be considered parties to any appeal filed by a resident contesting a transfer or discharge pursuant to He-C 200.

(i) When feasible, all hearings shall be conducted at the NF where the resident is located.

(j) The resident and his or her legal representative shall:

(1) Upon an oral or written request, be given access to all records pertaining to the resident, including current clinical records, within 24 hours, excluding weekends and holidays; and

(2) After receipt of his or her records for inspection, be allowed to purchase at a cost not to exceed 25 cents per page, photocopies of the records or any portions of them upon request and after providing advance notice of 2 working days to the NF.

(k) A NF seeking to transfer or discharge a resident shall have the burden of proving by clear and convincing evidence, as described in He-C 203.14, that the transfer complies with the requirements of He-E 802.16.

(l) The following actions shall be taken following the administrative appeal unit’s decision:

(1) If the decision upholds the discharge or transfer, the resident shall be relocated;

(2) If the decision does not uphold the discharge or transfer, the resident shall not be relocated;

(3) If the decision to transfer or discharge a resident who has been transferred or discharged pursuant to the provisions of He-E 802.16 is not upheld, the resident shall be readmitted to the NF’s first available bed; and

(4) If the decision to transfer or discharge a resident is upheld, the NF shall adhere to the discharge plan.

Source. #7751, eff 8-17-02, EXPIRED: 8-17-10

New. #9786, INTERIM, eff 9-20-10; ss and renumbered by #9888-A, eff 3-19-11, EXPIRED: 3-19-19 (formerly He-E 802.18)

New. #12741, INTERIM, eff 3-20-19, EXPIRED: 9-16-19

New. #13130, eff 10-30-20

He-E 802.18 Specialized Rate Requests.

(a) General NF rate setting shall be calculated in accordance with He-E 806, and requests for specialized rate setting shall be conducted pursuant to this section.

(b) Each NF presenting a case for consideration, whether for in state or for out of state placement, for a specialized rate, shall complete and submit a “Specialized Service Rate Request Form- Nursing Facility” (September 2020) to the department along with:

(1) The individual’s:

a. History and physical;

b. Therapy notes;

c. Transitional plan; and

d. Plan of care; and

(2) Documentation showing the cost of the individual’s care.

(c) The specialized rate request shall be reviewed by a specialized medical professional employed or contracted by the department for clinical appropriateness pursuant to He-E 802.05 above.

(d) The approved specialized rate shall be subject to a periodic utilization review, as requested on the “Specialized Service Rate Request Form-Nursing Facility Services”, in 30 days, 6 months, or annual increments.

(e) Approved rates shall be communicated to the receiving facility by the department.

Source. (See Revision Note at part heading for He-E 802) #9888-B, eff 3-19-11; ss by #12741, INTERIM, eff 3-20-19, EXPIRED: 9-16-19

New. #13130, eff 10-30-20

He-E 802.19 Required Forms.

(a) Each NF informing the department under He-E 802.02(b) shall complete and submit Form 3820, “Change of Status/Transfer/Discharge Form” (September 2020).

(b) Each NF notifying the department under He-E 802.07(b)(3), (d)(3), and (e)(2)c. shall complete and submit Form 277, “Utilization Review Form” (September 2020).

(c) Each NF notifying the department under He-E 802.07(d)(3)c. shall complete and submit Form 3825, “Memory and Behavior Checklist” (September 2020).

(d) Each NF notifying the department under He-E 802.07(d)(3)d. shall submit a behavior summary which includes the same information as the bureau’s Form 3830, “Behavior Summary Report” (September 2020).

(e) Each NF requesting a specialized rate setting shall complete and submit Form “Specialized Service Rate Request Form-Nursing Facility” (September 2020) to the department.

Source. #13130, eff 10-30-20 (formerly He-E 802.18)

PART He-E 803 ADULT MEDICAL DAY CARE SERVICES

He-E 803.01 Purpose. The purpose of this rule is to describe the requirements relative to adult medical day services reimbursed under Medicaid, including:

(a) Eligibility requirements for individuals seeking adult medical day services; and

(b) Adult medical day program requirements for providing adult medical day services.

Source. #7865, eff 5-1-03; ss by #9914, INTERIM, eff 5-1-11, EXPIRES: 10-28-11; ss by #10010, eff 10-28-11, EXPIRED: 10-28-19

He-E 803.02 Definitions.

(a) “Activities of daily living (ADL)” means basic daily routine tasks such as eating, transferring, toileting, bathing, dressing and self-management of medications.

(b) “Adult medical day program” means a program of service delivery conducted at a facility that is licensed under RSA 151 and He-P 818 as an adult day program and provides adult medical day services under Medicaid in accordance with the requirements contained in this rule.

(c) “Adult medical day services” means those services provided at an adult medical day program that are described in He-E 803.06 and provided to eligible participants in accordance with a care plan.

(d) “Care plan” means a written guide developed by the adult medical day program as a result of the assessment described in He-P 818.16 and for the provision of services, based on the written orders from the participant’s licensed practitioner, and in consultation with personnel, the participant, and the participant’s guardian, agent or personal representative, if any, as a result of the assessment and for the provision of care and services.

(e) “Department” means the New Hampshire department of health and human services.

(f) “Illness or disability” means a long term recurring or short term physical, mental, or emotional condition that results in the inability of an individual to perform activities of daily living without the support of the adult medical day program.

(g) “Independent living situation” means one of the following living arrangements where the individual resides:

(1) A home or apartment;

(2) The home or apartment of a spouse/partner, relative, or friend;

(3) A motel or hotel; or

(4) A homeless shelter.

(h) “Legal representative” means one of the following individuals, duly appointed or designated in the manner required by law to act on behalf of another individual, and who is acting within the scope of his/her authority:

(1) An attorney;

(2) A guardian or conservator;

(3) An agent acting under a power of attorney;

(4) An authorized representative acting on behalf of an applicant in some or all of the aspects of initial and continuing eligibility in accordance with He-W 603.01; or

(5) A person designated in accordance with RSA 151:19.

(i) “Licensed practitioner” means:

(1) Medical doctor;

(2) Physician’s assistant;

(3) Advanced practice registered nurse;

(4) Doctor of osteopathy;

(5) Doctor of naturopathic medicine; or

(6) Any other individual with diagnostic and prescriptive powers licensed by the appropriate New Hampshire licensing board.

(j) “Maintenance level therapies” means any of the following repetitive therapeutic services required to maintain maximum functional capabilities, as assessed and established by a professional therapist and rendered by trained personnel:

(1) Physical therapy;

(2) Occupational therapy;

(3) Speech therapy; and

(4) Other therapeutic services.

(k) “Participant” means the Medicaid-eligible individual who attends the adult medical day program as an alternative to institutionalization, and as recommended by his/her licensed practitioner and who meets the eligibility requirements described in He-E 803.04.

(l) “Specialized transportation,” for purposes of this rule, and described in He-E 803.06(b), means conveying the participant from his or her residence to the adult medical day program location or from the program location back to his or her residence, but does not include ambulance or wheelchair van transport.

Source. #7865, eff 5-1-03; ss by #9914, INTERIM, eff 5-1-11, EXPIRES: 10-28-11; ss by #10010, eff 10-28-11, EXPIRED: 10-28-19 (from He-E 803.01)

He-E 803.03 Adult Medical Day Program Requirements.

(a) The adult medical day program shall:

(1) Be licensed pursuant to RSA 151 and He-P 818;

(2) Be enrolled as a New Hampshire Medicaid provider with the department;

(3) Provide adult medical day services pursuant to He-P 818 and as described in He-E 803.06;

(4) Have at least one full-time registered nurse (RN), or a licensed practical nurse (LPN), or both, available at the adult medical day program location whenever one or more participants are present;

(5) Prior to the initiation of adult medical day services, determine whether individuals requesting these services meet the eligibility requirements described in He-E 803.04;

(6) Obtain written orders that include a description of the service and the type and frequency needed, from each participant’s licensed practitioner, to be incorporated into the participant’s care plan;

(7) Ensure participants are transported to and from the adult medical day program location by:

a. Ensuring that the participant has made transportation arrangements;

b. Coordinating the participant’s transportation; or

c. Providing specialized transportation as described in He-E 803.06(b);

(8) Refer the participant as necessary to other health and social services such as maintenance level therapies, included in the licensed practitioner’s written orders for the participant, if these services are not available at the adult medical day program location;

(9) Report suspected abuse, neglect, self-neglect and/or exploitation of incapacitated adults as required by RSA 161-F: 46 of the adult protection law;

(10) Comply with provisions of RSA 161-F:49 with regard to checking the names of prospective or current employees, consultants, contractors, or volunteers who may have direct contact with participants against the bureau of elderly and adult services state registry;

(11) Maintain the records pursuant to He-P 818.16 and as described in He-E 803.07; and

(12) Develop and implement the participant’s care plan in accordance with He-P 818.16 and as follows:

a. Include a description of the type and frequency of services needed;

b. Review and update at least every 90 calendar days, or more frequently if there are significant changes in the participant’s health condition; and

c. Obtain the signature of the participant’s licensed practitioner.

Source. #7865, eff 5-1-03; ss by #9914, INTERIM, eff 5-1-11, EXPIRES: 10-28-11; ss by #10010, eff 10-28-11, EXPIRED: 10-28-19

He-E 803.04 Eligibility Requirements to Receive Adult Medical Day Services.

(a) An adult medical day program shall be available to anyone:

(1) Who is age 18 or older;

(2) Who is a Medicaid recipient;

(3) Who resides in an independent living situation;

(4) Whose licensed practitioner has:

a. Completed a physical examination on the individual within 60 days prior to the request for services; and

b. Referred the individual for adult medical day services, because the individual:

1. Has been diagnosed as having an illness or disability; and

2. Requires adult medical day services; and

(5) Requires adult medical day services for a minimum of 4 hours per day, on a regularly occurring basis.

(b) Adult medical day services shall not be available to anyone:

(1) Who resides in a nursing facility or other licensed or certified facilities;

(2) Who receives adult family care services pursuant to He-E 801.12;

(3) Whose needs cannot met by the adult medical day program; or

(4) Who is primarily seeking services to address a diagnosis of mental illness or developmental disability.

Source. #7865, eff 5-1-03; ss by #9914, INTERIM, eff 5-1-11, EXPIRES: 10-28-11; ss by #10010, eff 10-28-11, EXPIRED: 10-28-19 (from He-E 803.03)

He-E 803.05 Notice to the Participant. The adult medical day program shall notify the individual or his or her legal representative in writing as to whether or not the individual is eligible to receive adult medical day services.

Source. #7865, eff 5-1-03; ss by #9914, INTERIM, eff 5-1-11, EXPIRES: 10-28-11; ss by #10010, eff 10-28-11, EXPIRED: 10-28-19

He-E 803.06 Adult Medical Day Services.

(a) The following adult medical day services shall be provided as required by the participant’s care plan:

(1) The services described in He-P 818.15;

(2) Maintenance level therapies;

(3) Medical supplies which are for general use or first aid purposes; and

(4) Transportation services in accordance with He-E 803.03(a)(7).

(b) Specialized transportation shall:

(1) Be available on all of the days that the adult medical day program operates;

(2) Be provided in a manner that will accommodate each participant’s attendance needs within the adult medical day program location’s operating hours;

(3) Include assistance and supervision as needed and in a manner that maintains support as identified in the care plan, including, but not be limited to, the following:

a. Reminding the participant, prior to leaving his or her residence, to bring items needed for the day, such as eyeglasses, medications and clothing appropriate for the weather;

b. Physically assisting the participant to and from the vehicle;

c. Securing the participant in a seatbelt and stopping to resecure if necessary;

d. Providing reassurance as necessary and stopping to address any personal care needs that arise for the participant during the trip;

e. Physically assisting the participant from the vehicle into the adult medical day program location and back to the vehicle; and

f. Assisting the participant from the vehicle back into his or her residence;

(4) Be provided in vehicles that are:

a. Registered pursuant to Saf-C 500;

b. Inspected pursuant to Saf-C 3200; and

c. Insured for personal liability, and medical payments; and

(5) Be provided by individuals who:

a. Have a current and valid driver’s license;

b. Are employees of the adult medical day program or other transportation provider, or volunteers under the supervision of the adult medical day program;

c. Have been given training by the adult medical day program with regard to their responsibilities; and

d. Are informed about participants’ individual needs and safety concerns including those as described in (3) above.

(c) Adult medical day programs shall inform the transportation provider of any pertinent information at the time of the participant’s pick up from the program.

(d) Adult medical day programs providing specialized transportation shall document the transportation services provided to the participant, including, but not limited to:

(1) The dates of service;

(2) The starting and ending locations;

(3) The name(s) of the drivers; and

(4) For each date of service, the type(s) of assistance provided to each participant.

Source. #7865, eff 5-1-03; ss by #9914, INTERIM, eff 5-1-11, EXPIRES: 10-28-11; ss by #10010, eff 10-28-11, EXPIRED: 10-28-19

He-E 803.07 Required Documentation. The adult medical day program shall:

(a) Comply with the documentation requirements, including confidentiality and retention of records in accordance with He-P 818;

(b) Maintain supporting records in accordance with He-W 520;

(d) Maintain documentation to fully support each claim billed for services.

Source. #7865, eff 5-1-03; ss by #9914, INTERIM, eff 5-1-11, EXPIRES: 10-28-11; ss by #10010, eff 10-28-11, EXPIRED: 10-28-19 (from He-E 803.08)

He-E 803.08 Payment for Services.

(a) Adult medical day services described He-E 803.06(a) shall be reimbursed:

(1) At a daily rate for all services provided, except for specialized transportation described in He-E 803.03(a)(7)c. and He-E 803.06(b), which shall be reimbursed in accordance with (b) below; and

(2) Only for days when the participant was in attendance at the adult medical day program for a minimum of 4 hours exclusive of time spent in transit or was receiving services not included in the per diem rate.

(b) Adult medical day programs providing specialized transportation, as described in He-E 803.03(a)(7)c. and He-E 803.06(b), shall be reimbursed at a per-person, per-trip rate.

(c) Rates of payment for services described in (a) and (b) above shall be established by the department in accordance with RSA 161:4, VI(a).

(d) Transportation shall not be reimbursed when it is covered by other Medicaid reimbursement for transportation.

(e) Adult medical day programs shall submit all initial claims to the Medicaid fiscal agent, so that the fiscal agent receives the claims no later than one year from the earliest date of service on the claim.

(f) If an adult medical day program has submitted a claim during the one-year billing period, and the claim is subsequently rejected by the fiscal agent, the adult medical day program shall resubmit the claim within 15 months from the earliest date of service if the adult medical day program still wishes to receive reimbursement.

(g) Adult medical day programs participating in the Medicaid program shall be responsible for timely and accurate billing as required above, and the adult medical day program shall not bill the participant if Medicaid does not pay due to billing practices of the adult medical day program which result in non-payment for a Medicaid item, supply or service.

Source. #7865, eff 5-1-03; ss by #9914, INTERIM, eff 5-1-11, EXPIRES: 10-28-11; ss by #10010, eff 10-28-11, EXPIRED: 10-28-19 (from He-E 803.09)

He-E 803.09 Third Party Liability. All third party obligations shall be exhausted before Medicaid may be billed.

Source. #7865, eff 5-1-03; ss by #9914, INTERIM, eff 5-1-11, EXPIRES: 10-28-11; ss by #10010, eff 10-28-11, EXPIRED: 10-28-19 (from He-E 803.10)

He-E 803.10 Utilization Review. Adult medical day programs shall comply with the quality improvement and financial audit processes conducted by the department regarding adult medical day services.

Source. #7865, eff 5-1-03; ss by #9914, INTERIM, eff 5-1-11, EXPIRES: 10-28-11; ss by #10010, eff 10-28-11, EXPIRED: 10-28-19 (formerly He-E 803.11)

PART He-E 804 NURSING ASSISTANT TRAINING REIMBURSEMENT

He-E 804.01 Definitions.

(a) “Approved nursing assistant training program (training program)” means a program of study in New Hampshire, which includes training or competency testing, that has been approved by the New Hampshire board of nursing pursuant to RSA 326-B and Nur 704.

(b) “Department” means the New Hampshire department of health and human services.

(c) “Nursing assistant (NA)” means an individual who is registered by the New Hampshire board of nursing pursuant to Nur 704.

(d) “Nursing facility (NF)” means an institution or a distinct part of an institution, licensed by the department in accordance with RSA 151 as a nursing facility, that provides one or more of the following as defined in Section 1919(a) of the Social Security Act and is not primarily for the care and treatment of mental diseases:

(1) Skilled nursing care and related services for residents who require medical or nursing care;

(2) Rehabilitation services for the rehabilitation of injured, disabled, or sick individuals; or

(3) On a regular basis, health-related care and services to individuals who because of their mental or physical condition require care and services above the level of room and board which can be made available to them only through an institution.

(e) “Third party” means a person or persons other than the applicant.

Source. #7752, eff 8-17-02, EXPIRED: 8-17-10

New. #9769-A, eff 8-25-10, EXPIRED: 8-25-18

New. #12717, eff 1-26-19; ss by #13242, eff 7-24-21

He-E 804.02 Requirements, Conditions, and Limitations. The department shall reimburse for the costs of nursing assistant training or competency testing subject to the following requirements, conditions, and limitations:

(a) Costs shall have been incurred for an approved nursing assistant training program;

(b) Costs shall have been actually paid by the NA or a third party;

(c) Individuals shall have begun employment or received an offer of employment as an NA in a licensed nursing facility within 12 months of completing the training program, including passing the competency testing; and

(d) The application requirements in He-E 804.03 shall have been met.

Source. #7752, eff 8-17-02, EXPIRED: 8-17-10

New. #9769-A, eff 8-25-10, EXPIRED: 8-25-18

New. #12717, eff 1-26-19; ss by #13242, eff 7-24-21

He-E 804.03 Application Requirements.

(a) The NA shall complete an application, form BEAS 292 “Application for Reimbursement for Nursing Assistant Training and Competency Testing,” in full that includes the following:

(1) The NA’s contact information, including:

a. Name, current mailing address, and telephone number; and

b. Date of birth;

(2) The name of the nursing facility where the NA is or was employed or has received an offer of employment from;

(3) The amount requested for training program reimbursement;

(4) The start and completion dates of the training program or the date of the competency test;

(5) The name of the agency or entity that provided the training program;

(6) A disclosure statement indicating whether the NA paid for the entire training program or shared the cost of the training program with a third party and if applicable, the amount paid by the third party;

(7) The NA’s original signature as the applicant and the date of signature, attesting that the information provided in Section A of the application is accurate and that the applicant is, has been, or will be employed by the nursing facility named; and

(8) An attached, legible receipt from the agency that provided the training or competency testing, or the entity that processed the payment, that documents proof of payment by the NA. The receipt shall contain the NA’s name, the title or description of the NA training program taken, and the amount(s) that the NA paid for the training program or competency testing.

(b) If a third party is seeking reimbursement for paying for a NA’s training, the third party shall provide the following on or with the application:

(1) The name, phone number, and address of the third party;

(2) The amount requested for training program reimbursement;

(3) The third party’s original signature and date of signature attesting that the information provided in Section B of the application is accurate that the third party has paid the amount listed (b)(2) above for nursing assistant training of the applicant; and

(4) An attached, legible receipt from the agency that provided the training or competency testing, or the entity that processed the payment, that documents proof of payment by the third party. The receipt shall contain the third party’s name, the title or description of the NA training program taken, and the amount(s) that the third party paid for the training program or competency testing.

(c) The NA or third party shall submit the documentation required in (a) above and (b) above if applicable to the administrator of the employing nursing facility.

(d) The nursing facility administrator shall complete the following on the application:

(1) The name, phone number, and license number of the nursing facility;

(2) The name of the applicant and date that the applicant was hired as an NA or the date the applicant will start after receiving an offer of employment as an NA;

(3) Whether the applicant is currently, was formerly, or will be employed at the nursing facility; and

(4) The nursing facility administrator’s printed name and dated signature.

(e) The nursing facility administrator shall forward the application to the NH board of nursing by mailing it to:

New Hampshire Board of Nursing Nurse Aide Registry

7 Eagle Square

Concord, NH 03301-2431.

(f) The NH board of nursing nurse aide registry shall:

(1) Certify, by dated signature on the application, that records indicate that the named NA has successfully completed an approved NH training program or competency testing within 12 months prior to the date of hire or offer of employment, and that the NA has been duly certified and registered by the NH board of nursing nurse aide registry, by providing the NA’s registry number; and

(2) Submit the completed application to the department by mailing it to:

The Department of Health and Human Services

Office of Finance

105 Pleasant Street

Concord, NH 03301-3857.

Source. #7752, eff 8-17-02, EXPIRED: 8-17-10

New. #9769-B, eff 8-25-10; ss by #12717, eff 1-26-19; ss by #13242, eff 7-24-21

He-E 804.04 Payment.

(a) Upon receipt of a completed application and determination that the requirements in He-E 804.02 and He-E 804.03 have been met, the department shall indicate on the application the amount of reimbursement to be made, sign, and date the request for reimbursement, and make payment to the NA or third party as follows:

(1) Payment shall be made from the Medicaid administrative account in a lump sum, one-time payment;

(2) Payment for expenses paid by the NA shall be mailed to the NA at his/her address;

(3) Payment for expenses paid by a third party shall be mailed to the third party at the party’s address; and

(4) Payment shall be limited to the actual costs incurred and for the NA training program minus other amounts incurred including, but not limited to, clothing, ancillary items, and criminal record background checks.

(b) The department shall retain a copy of the application and the applicant’s receipt(s), for 3 years, and send a copy of the approved application to the NH Board of Nursing Nurse Aide Registry.

(c) If the department determines that the requirements in He-E 804.02 and He-E 804.03 have not been met, the department shall deny payment and notify the applicant in writing of the reason(s) for denial and what steps, if any, the applicant may take to receive reimbursement.

Source. #7752, eff 8-17-02, EXPIRED: 8-17-10

New. #9769-A, eff 8-25-10, EXPIRED: 8-25-18

New. #12717, eff 1-26-19; ss by #13242, eff 7-24-21

PART He-E 805 TARGETED CASE MANAGEMENT SERVICES

Statutory Authority: 42 USC § 1396n(g); RSA 151-E:12; RSA 151:9

He-E 805.01 Purpose. The purpose of this rule is to describe the requirements for targeted case management services provided to participants in the home and community based care for the elderly and chronically ill Choices for Independence (CFI) program.

Source. #9242, eff 8-26-08; ss by #11167, INTERIM, eff 8-25-16, EXPIRED: 2-21-17

New. #12115, eff 2-22-17

He-E 805.02 Definitions.

(a) “Activities of daily living” means those activities associated with personal care, including personal hygiene, bathing, eating, dressing, toilet use, walking, transferring from one surface to another, moving between locations, and bed mobility.

(b) “Biopsychosocial history” means information about a participant’s past and present functioning in the areas of:

(1) Physical health;

(2) Psychological health, including emotional/coping ability;

(3) Decision-making ability;

(4) Social environment, including interactive skills, activities and supports;

(5) Family relationships;

(6) Financial considerations;

(7) Employment;

(8) Any vocational interests and activities, including spiritual preferences; and

(9) Any other area of significance in the participant’s life, including, but not limited to, substance abuse or misuse, involvement with the behavioral health care system, developmental disability system, or legal system.

(c) “Case management agency” means an agency that is licensed in accordance with RSA 151:2, I(b), and enrolled as a New Hampshire medicaid provider to provide targeted case management services to CFI participants, and that operates without a conflict of interest. This term includes independent case management agencies.

(d) “Case manager” means an individual employed by, or contracted with, a case management agency who:

(1) Meets the qualifications described in He-E 805.06;

(2) Is responsible for the ongoing assessment, person-centered planning, coordination, and monitoring of the provision of services included in the comprehensive care plan; and

(3) Does not have a conflict of interest.

(e) “Complaint” means:

(1) Any allegation or assertion that a right of a participant has been violated;

(2) Any allegation or indication that an individual has been abused, neglected, or exploited by an employee of, or a volunteer or consultant for, a facility, provider, or program; or

(3) Any allegation or assertion that the department or a facility, agency, or service provider has acted in an illegal or unjust manner with respect to a participant or category of participants.

(f) “Comprehensive assessment” means a person-centered process of gathering information about a participant’s abilities and needs through a face-to-face interview with the participant, and other methods as needed, which culminates in a written document.

(g) “Comprehensive care plan” means an individualized plan described in He-E 805.05(c) that is the result of a person-centered process that identifies the strengths, capacities, preferences, and desired outcomes of the participant.

(h) “Conflict of interest” means a conflict between the private interests and the official or professional responsibilities of a person, such as providing other direct services to the participant, being the guardian of the participant, or having a familial or financial relationship with the participant.

(i) “Department” means the New Hampshire department of health and human services.

(j) “Home and community-based care for the elderly and chronically ill (Choices for Independence)” means a system of long-term care services provided in non-institutional settings and described in He-E 801, and provided under a waiver of Section 1902(a)(10) and 1915(c) of the Social Security Act for participants who are elderly or adults who have a disability or chronic illness.

(k) “Incident” means an occurrence or event that interrupts normal procedure, including a serious injury or other event threatening the health or safety of a participant or staff.

(l) “Individualized contingency plan” means the person-centered plan that addresses unexpected situations that could jeopardize the participant’s health or welfare, and which:

(1) Identifies alternative staffing resources in the event that normally scheduled care providers are unavailable; and

(2) Addresses special evacuation needs that require notification of the local emergency responders.

(m) “Instrumental activities of daily living” means those activities associated with home management, including grocery shopping, meal preparation, telephone use, and managing finances, and routine housework such as washing dishes, making beds, dusting, and laundry.

(n) “Medical eligibility assessment (MEA)” means an initial assessment and subsequent re-assessments conducted in accordance with RSA 151-E:3, I.

(o) “MEA needs list/support plan” means a document generated by the department that identifies participant needs to be addressed in the comprehensive care plan.

(p) “Participant” means an individual who has been found by the department to be eligible for the CFI program.

(q) “Person-centered” means a process for planning and supporting the participant receiving services that builds upon the participant’s capacity to engage in activities that promote community life and honors the participant’s preferences, choices, and abilities, and which involves families, friends, and professionals as the participant desires or requires.

(r) “Sentinel event” means an unexpected occurrence, including:

(1) The death of a participant from suicide or homicide; or

(2) A serious physical or psychological injury, or risk thereof, resulting from:

a. A sexual assault;

b. An unauthorized departure from a facility;

c. A medication error which results in paralysis, coma, permanent loss of function, or death;

d. A delay in the provision of departmental services resulting in a negative outcome; or

e. Abuse and/or neglect that results in paralysis, coma, permanent loss of function, or death, of a participant who:

1. Is receiving department funded services;

2. Has received department funded services within the preceding 30 days; or

3. Has been evaluated by a contract provider within the preceding 30 days.

(s) “Targeted case management” means the collaborative process of assessment, planning, facilitation, advocacy, coordination, and monitoring that is accomplished with a person-centered process, and which:

(2) Provides for coordination of participant service plans from all providers to assure adequacy and, appropriateness of care and cost effectiveness of planned services that yield positive outcomes.

Source. #9242, eff 8-26-08; ss by #11167, INTERIM, eff 8-25-16, EXPIRED: 2-21-17

New. #12115, eff 2-22-17

He-E 805.03 Eligibility.

(a) Targeted case management services shall be provided to all participants, except those excluded pursuant to the Laws of 2007, Chapter 263:108.

(b) Targeted case management services shall be available to participants who reside in hospitals or nursing facilities licensed in accordance with RSA 151, provided that such services:

(1) Do not exceed a total of 30 cumulative days of services provided prior to discharge to home from an aforementioned facility or combination of facilities; and

(2) Do not duplicate discharge planning services that the facility is normally expected to provide as part of inpatient services.

(c) Notwithstanding (a) above, the commissioner of the department shall grant waivers to allow case management services to be provided to the excluded beneficiaries in (a) above as necessary to protect their health and safety.

Source. #9242, eff 8-26-08; ss by #11167, INTERIM, eff 8-25-16, EXPIRED: 2-21-17

New. #12115, eff 2-22-17

He-E 805.04 Provider Agency Requirements.

(a) Case management agencies shall:

(1) Comply with the requirements contained in He-E 801.29, including the requirement to be enrolled as a medicaid provider; and

(2) Be licensed in accordance with requirements of state law, including RSA 151.

(b) Case management agencies shall employ a full-time administrator responsible for the development and implementation of the policies of the case management agency and for compliance with applicable rules.

(c) Case management agencies shall establish and maintain agency written policies and procedures regarding the following areas, and shall ensure that they are properly followed and enforced:

(1) Completion and documentation of a criminal background check for all employees pursuant to RSA 151:2-d;

(2) A process for confirming that each employee is not on the NH central registry of abuse, neglect or exploitation pursuant to RSA 169-C:35 or BEAS state registry established pursuant to RSA 161-F:49;

(3) Verification of discipline specific licensing for those employees whose profession requires licensing;

(4) The requirements for the mandated reporting of abuse, neglect, or exploitation in accordance with RSA 161-F: 46;

(5) The procedures for reported complaints, incidents, and sentinel events;

(6) Staff orientation including, at a minimum, a review of:

a. The federal and state laws and rules governing the CFI program;

b. The local community service network;

c. The procedures for crisis intervention; and

d. The philosophy governing person-centered planning, as defined in He-E 805.02(q);

(7) Staff development, including procedures for addressing performance or training needs;

(8) Staff performance evaluations, including how performance or training needs will be addressed throughout the case manager’s employment tenure;

(9) A clinical supervision protocol which includes, at a minimum:

a. Monthly meetings between the case manager and his or her supervisor; and

b. As a focus of supervision, the review of participant records to ensure compliance with the requirements described in He-E 805.04(f) and He-E 805.05(b)-(d);

(10) Participant complaints, including how participants are informed about the agency’s policies and procedures;

(11) Evaluation of participant satisfaction with the agency and the case manager, and how a participant may request a change in case manager or case management agency;

(12) Procedures for protection of participant records that govern use of records, storage, removal, conditions for release of information, and compliance with the Health Insurance Portability and Accountability Act (HIPAA); and

(13) Procedures related to quality assurance and quality improvement.

(d) Case management agencies shall accept assignments made, pursuant to He-E 805.07(b), according to the system maintained by the department’s bureau of elderly and adult services (BEAS) unless there is a conflict of interest or the agency has informed BEAS in writing that it must be temporarily removed from the list of available agencies due to staffing shortages.

(e) Case management agencies shall maintain access to a toll free number for all participants served and respond to calls as follows:

(1) Responses to calls received on Monday through Friday shall be made within 24 hours; and

(2) Responses to calls received on Saturdays, Sundays, and holidays shall be made within 48 hours.

(f) Case management agencies shall maintain an individual case record for each participant receiving case management services which includes:

(1) A face sheet describing demographic and other important information, including:

a. The participant’s name, date of birth, and address;

b. The participant’s medicaid identification number; and

c. The name, phone number, and address of the participant’s emergency contact person;

(2) The comprehensive assessment document, described in He-E 805.05(b) below;

(3) The comprehensive care plan, described in He-E 805.05(c) below;

(4) The CFI MEA assessment and MEA needs list or support plan;

(5) Medicaid financial eligibility information, including the cost share described in He-E 801.11;

(6) Release of information forms;

(7) Progress notes that reflect areas contained in the comprehensive care plan;

(8) All contact notes, including those required by He-E 805.05(d)(1) below;

(9) A written record of all monitoring and case management activities;

(10) All pertinent correspondence relating to the participant’s case management; and

(11) Any and all electronic records.

Source. #9242, eff 8-26-08; ss by #11167, INTERIM, eff 8-25-16, EXPIRED: 2-21-17

New. #12115, eff 2-22-17

He-E 805.05 Required Case Management Services.

(a) For each participant who selects or is assigned to a case management agency, the agency shall designate a case manager to provide case management services.

(b) The designated case manager shall conduct a comprehensive assessment of a participant within 15 working days of the date on which the agency receives department notification of the assignment, which shall:

(1) Utilize a formal assessment tool to evaluate the participant’s status based on information gathered at a face-to-face meeting, and through other methods as needed; and

(2) Culminate in a written document that describes the participant’s abilities and needs in the following areas:

a. Biopsychosocial history;

b. Functional ability, including activities of daily living and instrumental activities of daily living;

c. Living environment, including the participant’s in-home mobility, accessibility, and safety;

d. Social environment, including social/informal relationships and supports, activities and interests, such as avocational and spiritual;

e. Self-awareness, or the degree to which the participant is aware of his or her own medical condition(s), treatment(s), and medication regime;

f. Risk, including the potential for abuse, neglect, or exploitation by self or others, as well as health, social or behavioral issues that may indicate a risk;

g. Legal status, including guardianship, legal system involvement, and availability of advance directives, such as durable power of attorney;

h. Community participation, including the participant’s need or expressed desire to access specific resources, such as the library, educational programs, restaurants, shopping, and medical providers; and

i. Any other area identified by the participant as being important to his or her life.

(c) Within 20 working days of the date on which the agency receives BEAS notification of the assignment, the designated case manager shall develop a written comprehensive care plan for the participant, which shall:

(1) Be a person-centered agreement;

(2) Contain measurable objectives and goals, with timelines;

(3) Contain the following, based on the participant’s needs as identified in the comprehensive assessment document and the MED needs list or support plan:

a. Paid services to be provided under medicaid or other funding sources, including:

1. The needs to be met by paid services;

2. Service costs;

3. Service funding source;

4. Provider names; and

5. The beginning and ending dates of each service, and the frequency of service provision;

b. Non-paid services or supports, including the needs to be met and the names of those individuals or groups providing such services or support;

c. Unfulfilled needs and gaps in services, including those that pose a risk to the participant’s health and safety;

d. Any existing risks for abuse, neglect or exploitation, as defined in RSA 161-F:43;

e. A plan for mitigating any existing risks; and

f. An individualized contingency plan, as defined in He-E 805.02(l); and

(4) Be updated with written documentation as follows:

a. At least annually for as long as the participant is receiving CFI services;

b. Whenever changes occur in the participant’s medical condition and/or in the participant’s needs and desires; and

c. With progress notes reflecting each case management contact in (e)(1) below.

(d) The designated case manager shall monitor the services provided to a participant, as follows:

(1) Conduct the case management contacts required for each participant, as follows:

a. Case management contacts shall include no less than one monthly telephonic contact and one face-to-face contact every 60 days; and

b. Each case management contact shall be documented in a contact note;

(2) Ensure that services are adequate and appropriate for the participant’s needs, and are being provided, as described in the comprehensive care plan;

(3) Ensure that the participant is actively engaging in the services described in the comprehensive care plan;

(4) Ensure that the participant is satisfied with the comprehensive care plan; and

(5) Identify any changes in the participant’s condition, discuss these changes with the participant in order to determine whether changes to the comprehensive care plan are needed, and make changes to the comprehensive care plan as needed.

Source. #9242, eff 8-26-08; ss by #11167, INTERIM, eff 8-25-16, EXPIRED: 2-21-17

New. #12115, eff 2-22-17

He-E 805.06 Qualification Requirements for Case Managers.

(a) Case managers employed by case management agencies shall have the following minimum requirements:

(1) Have demonstrated knowledge of the local service delivery system and the resources available to participants;

(2) Have demonstrated knowledge of the development and provision of integrated, person-centered services; and

(3) Have a degree in a human-services related field and one year of supervised experience, or a similar combination of training and experience.

(b) Case manager supervisors employed by case management agencies shall have the following minimum requirements:

(1) Have a bachelor’s level degree; or

(2) Be a registered nurse with 2 years of related experience.

(1) Have a felony conviction;

(2) Have been found to have abused, neglected or exploited an individual based on a protective investigation completed by the BEAS in accordance with He-E 700 and an administrative hearing held pursuant to He-C 200, if such a hearing is requested; or

(3) Are listed in the state of NH central registry of abuse, neglect or exploitation pursuant to RSA 169-C:35 or the BEAS state registry pursuant to RSA 161-F:49.

Source. #9242, eff 8-26-08; ss by #11167, INTERIM, eff 8-25-16, EXPIRED: 2-21-17

New. #12115, eff 2-22-17

He-E 805.07 Participant Selection of Case Management Agency.

(a) After being determined eligible for CFI services in accordance with He-E 801, the participant shall select a case management agency from a list provided by BEAS.

(b) If the participant does not choose a case management agency after being determined eligible for CFI services, then the participant shall be assigned to a case management agency through a system maintained by BEAS.

(c) The participant shall be informed that the case manager selected will also be responsible for coordinating mental health and developmental disability-related services if such services are needed by the participant.

(d) The participant shall be informed in writing of the case management agency to which he or she is assigned.

(e) The participant shall be informed in writing and orally of the process to request a change in case management agency:

(1) At the time of eligibility determination and re-determination; and

(2) By the case management agency during the assessment process.

Source. #9242, eff 8-26-08; ss by #11167, INTERIM, eff 8-25-16, EXPIRED: 2-21-17

New. #12115, eff 2-22-17

He-E 805.08 Payment for Services.

(a) Providers shall submit claims for payment to the department’s fiscal agent.

(b) Providers shall meet all NH medicaid provider requirements, including those regarding timely claims submission.

(c) Providers shall not bill the applicant if medicaid does not pay due to billing practices of the provider which result in non-payment for service.

(d) Reimbursement to providers shall be made in accordance with rates established pursuant to RSA 161:4, VI.

Source. #9242, eff 8-26-08; ss by #11167, INTERIM, eff 8-25-16, EXPIRED: 2-21-17

New. #12115, eff 2-22-17

He-E 805.09 Third Party Liability. All third party obligations shall be exhausted before medicaid may be billed.

Source. #9242, eff 8-26-08; ss by #11167, INTERIM, eff 8-25-16, EXPIRED: 2-21-17

New. #12115, eff 2-22-17

He-E 805.10 Quality Management.

(a) On a quarterly basis, case management agencies shall conduct a participant record review to evaluate the delivery of services identified in the comprehensive care plan to ensure that participants’ needs are being met in the community, and shall document the results of the review in a quarterly quality management report, including:

(1) The number of records reviewed;

(2) A summary of the review results;

(3) A description of any deficiencies identified;

(4) The remedial action taken or planned to address the deficiencies identified in (3) including the dates action was taken or will be taken; and

(5) A summary of unmet service needs.

(b) On a quarterly basis, case management agencies shall conduct a review of all reported complaints, incidents, and sentinel events related to the delivery of services identified in the comprehensive care plan, and shall document the results of the review in a quarterly quality management report, including:

(1) The number of reported complaints, incidents and sentinel events;

(2) A summary of the review results;

(3) A description of the deficiencies identified; and

(4) The remedial action taken or planned to address the deficiencies identified in (3) including the dates action was taken or will be taken.

(c) Case management agencies shall plan and take any remedial action necessary to address deficiencies in service delivery identified in the quarterly quality management reports in (a) and (b) above.

(d) Case management agencies shall retain the quarterly quality management reports in (a) and (b) above for 2 years and make them available to the department upon request.

(e) Case management agencies shall retain clinical records:

(1) To support claims submitted for reimbursement for a period of at least 6 years from the date of service; or

(2) Until resolution of any legal action(s) commenced during the 6-year period.

(f) Case management agencies shall be subject to monitoring visits by BEAS to ensure that services are provided in accordance with He-E 805.

(g) Monitoring visits shall:

(1) Be announced or unannounced;

(2) Occur at least annually;

(3) Include, but not be limited to:

a. A review of participant case records;

b. A review of the portion of employee records pertinent to the provider qualification requirements of He-805; and

c. A review of the quarterly quality management reports in (a) and (b) above and

(4) Be made during the agencies regular business hours.

Source. #9242, eff 8-26-08; ss by #11167, INTERIM, eff 8-25-16, EXPIRED: 2-21-17

New. #12115, eff 2-22-17

PART He-E 806 NURSING FACILITY REIMBURSEMENT

He-E 806.01 Definitions.

(a) “Accrual method of accounting” means revenues are reported in the period when they are earned, regardless of when they are collected, and expenses are reported in the period in which they are incurred, regardless of when they are paid.

(b) “Administration function” means those duties which are necessary to the general supervision and direction of the current operations of the facility.

(c) “Allowances” means the deductions granted for damage, delay, shortage, imperfection, or other causes, excluding discounts and returns.

(d) “Approved educational activities” means formally organized or planned programs of study engaged in by a nursing facility (NF) provider and his or her staff in order to enhance the quality of resident care in a facility or to improve the administration of the facility.

(e) “Arm's length transaction” means a transaction in which one party is not associated with, affiliated with, or controlled by the other party.

(f) “Bad debts” means the amounts considered to be uncollectable from accounts and notes receivable which were created or acquired in providing services.

(g) “Bed day” means any paid day of care at a nursing facility regardless of the payer.

(h) “Centers for Medicare and Medicaid Services (CMS)” means the federal agency responsible for administering the Medicare and Medicaid programs, formerly known as the Health Care Financing Administration or HCFA.

(i) “Chain operation” means an organization which consists of a group of 2 or more health care facilities which are owned, leased or controlled by a home office.

(j) “Charity allowances” means the reductions in charges made by the provider of services because of the indigence of the resident.

(k) “Compensation” means the total benefit provided for the services rendered to the NF provider. It includes fees, salaries, wages, payroll taxes, fringe benefits, and other increments paid to, or for the benefit of, those providing the services.

(l) “Cost center” means an organizational unit, generally a department or its subunit, having a common functional purpose for which direct and indirect costs are accumulated, allocated and apportioned.

(m) “Courtesy allowances” means reductions in charges in the form of allowances to physicians, clergy, members of religious orders, or others as approved by the governing body of the facility, for services received from the NF provider.

(n) “Department” means the New Hampshire department of health and human services.

(o) “Discounts” means reductions in the cost of purchases classified as cash, trade or quantity discounts.

(p) “Fair market value” means the price that the asset would bring by bona fide bargaining between well-informed buyers and sellers at the date of acquisition.

(q) “Generally accepted accounting principles (GAAP)” means accounting principles approved by the American Institute of Certified Public Accountants or the Institute of Management Accountants.

(r) “Hill-Burton funds” means federal funds made available through the Hill-Burton Act, Title VI of the Public Health Service Act, for building or remodeling.

(s) “Historical cost” means the cost incurred by the present owner in acquiring the asset, subject to the limitations specified in 42 CFR 413.134(j).

(t) “Home office” means the controlling organization of a chain operation which furnishes central management and administrative services such as accounting, purchasing, and personnel services, but is not an NF provider.

(u) “Home office costs” means costs of a home office to furnish services to its related organizations.

(v) “Intermediate care facility for individuals with intellectual disabilities (ICF-IID)” means a nursing care facility certified to provide long term care for individuals with intellectual disabilities or individuals with related conditions, such as cerebral palsy.

(w) “Luxurious” means the aspect of any item or service which provides comfort, pleasure or enjoyment but is not essential for resident care.

(x) “Necessary interest” means interest, other than working capital interest or interest on lines of credit, which are incurred:

(1) On a loan made to satisfy a financial need of the NF provider for a purpose reasonably related to resident care; and

(2) On a loan repaid in payments over a period of time not to exceed the estimated useful life of the asset purchased with the loan.

(y) “Net cost” means the cost of approved activities less any reimbursement from grants, tuition and specific donations.

(z) “Nursing facility (NF)” means an institution or a distinct part of an institution, including ICF-IIDs, that provide one or more of the following as defined in Section 1919(a) of the Social Security Act and is not primarily for the care and treatment of mental diseases:

(1) Skilled nursing care and related services for residents who require medical or nursing care;

(2) Rehabilitation services for the rehabilitation of injured, disabled or sick individuals; or

(aa) “Nursing facility rate” means the Medicaid per diem for each certified NF as set by the department.

(ab) “Picture date” means the date on which resident data is gathered from all facilities to be used to calculate the Medicaid rate.

(ac) “Proper interest” means that interest is incurred at a rate not in excess of what a prudent borrower would have had to pay in an arm's length transaction at the time the loan was made.

(ad) “Prospective per diem rate” means a per diem amount calculated using a historical cost period as a basis and inflated forward.

(ae) “Quantity discounts” mean reductions from list prices granted because of the size of individual or aggregate purchase transactions.

(af) “Related organizations” means organizations that are associated or affiliated with, have control over, or are controlled by, each other.

(ag) “Related parties” means parties that are associated or affiliated with, have control over, or are controlled by, each other.

(ah) “Reserved bed day” means a 24-hour period, midnight to midnight, when the resident of a NF is not present during the midnight census at the conclusion of the day, and that is chargeable to Medicaid.

(ai) “Routine services” means regular room, dietary and nursing services, minor medical and surgical supplies, and the use of equipment and facilities.

(aj) “State owned and operated institutions” means the Glencliff Home for the Elderly.

(ak) “Straight-line method of depreciation” means that the cost or other basis less its estimated salvage value, if any, is determined first, and then this amount is distributed in equal amounts over the period of the estimated useful life of the asset.

(al) “Trade discounts” mean reductions from list prices granted to a certain class of customers before consideration of credit terms.

Source. #8547, eff 1-24-06 (formerly He-W 593.01); ss by #9623, eff 12-24-09, ss by #12440, INTERIM, eff 12-23-17, EXPIRED: 6-21-18

New. #12566, eff 6-29-18

He-E 806.02 Annual Cost Reports.

(a) Each NF, with the exception of state-owned and operated facilities, shall submit:

(1) An annual cost report of the costs of their operations utilizing the “Medicaid Annual Cost Report” form described in (b) below;

(2) Financial statements for the reporting period;

(3) Any certifications, opinions, or notes that are a part of (2) above;

(4) Copies of federal income tax statements pertaining to the operation of the NF only if requested by the department; and

(5) Copies of all signed lease agreements for property, buildings, and equipment unless they have previously been submitted and are unchanged.

(b) NF providers shall submit the following statements and schedules as part of the “Medicaid Annual Cost Report” described in (a)(1) above:

(1) A signed statement certifying that the information provided on the report, both in paper and electronic format, is true, accurate, and complete and acknowledging that penalties for any false statement or misrepresentation of material fact include fine or imprisonment;

(2) Resident census statistics including the numbers of residents within each level of care and revenue source for each level of care;

(3) Expenses as described in He-E 806.06 through He-E 806.30 and cost center allocations such as support services, resident care, and capital costs;

(4) Reclassification of expenses, as needed, from one cost center to another;

(5) Adjustments to expenses due to activity such as refunds, discounts, or sale of merchandise or supplies;

(6) Allocation statistics which provide information regarding square footage of the facility, meals served by the facility, pounds of laundry done, and the cost centers relevant to each;

(7) Building and general information including information regarding ownership or rental of the facility;

(8) Fixed assets and depreciation including a listing of land, buildings, major movable equipment, and motor vehicles owned by the provider or related parties, and the depreciation on these assets;

(9) Debt and interest including a listing of NF debt, related party capital debt, and the necessary interest on these debts;

(10) Rental expense detail including rental costs for buildings, fixed equipment, other equipment, and motor vehicles;

(11) Owner and officer compensation including a statement of compensation and other payments to owners, officers, directors, and trustees including their ownership interest, and average hours per week of work provided to the facility;

(12) A financial statement including a balance sheet listing current assets, current liabilities, total equity and changes in equity, cash flow from operating, investing, and financing activities, revenues from inpatient and other operating activities, and a statement of expense and profit or loss;

(13) Funded depreciation detail including a listing of fund income and payments;

(14) Resident fund including a listing of resident funds received and disbursed, interest earned, and remaining balance; and

(15) Staffing pattern including a listing of facility staff, consultants and contract staff, hours worked by position, and total salaries or other compensation paid.

(c) The “Medicaid Annual Cost Report” and all accompanying documents shall bear original signatures of the NF administrator or owner, and paid third party preparer. All accompanying documents and original signatures shall be mailed when the “Medicaid Annual Cost Report” is filed electronically.

(d) One signed copy of the “Medicaid Annual Cost Report” form and one duplicate copy shall be submitted to:

NH Department of Health and Human Services

Bureau of Improvement and Integrity

Financial Compliance Unit

Main Building

105 Pleasant Street

Concord, NH 03301-3843

(e) A complete annual cost report shall be submitted:

(1) No later than 3 months after the end of the facility's fiscal year, unless an extension has been granted by the department as described in (p) below. Home office costs shall be documented by the submission to the department of HCFA Form 287-92, or its replacement “Chain Home Office Cost Statement”, no later than 5 months after the end of the home office fiscal year, unless an extension has been granted by the department as described in (p) below; or

(2) By the former owner of the NF within 90 calendar days of the sale of the NF when a change of ownership occurs and a new rate shall be determined by the department in accordance with He-E 806.32(d).

(f) Home office costs shall be documented by the submission to the department of HCFA Form 287-92 or its replacement, “Chain Home Office Cost Statement” and necessary schedules as requested, no later than 5 months after the end of the home office fiscal year, unless an extension has been granted by the department as described in (p) below.

(g) The department shall consider an annual cost report complete unless the cost report is missing information of a material nature so as to render the document unusable for the purpose of determining a per diem rate.

(h) Any facility which submits an incomplete annual cost report shall be subject to penalties described in (q) below, unless an extension has been granted as described in (o) below.

(i) An acceptable cost report shall reflect the most recent desk audit or field audit adjustments made to the previous year’s cost report, if applicable, with the exception of items still under appeal that have not been resolved.

(j) The department shall notify the NF by registered mail of an incomplete annual cost report within 30 days of receipt of the report.

(k) The time frame for submitting a complete cost report as described in He-E 806.03 shall not change due to an incomplete report submitted by an NF.

(l) Failure to submit an annual cost report or a complete annual cost report as required shall result in penalties as stated in (q) below, unless an extension has been granted by the department as described in (o)-(p) below.

(m) NFs which have separate arrangements for caring for residents with different levels of care needs shall segregate their operational costs on the same annual cost report form.

(n) NF providers with facilities in more than one location shall submit separate balance sheets for each location.

(o) Requests for extensions for filing the annual cost report beyond the prescribed deadline shall:

(1) Be in writing;

(2) Be submitted to the department at least 10 working days prior to the due date of the annual cost report, unless one of the circumstances identified in (p) below occurs during the 10 working days prior to the due date, in which case the request shall be made by telephone within 10 working days of the occurrence;

(3) Clearly explain the necessity for the extension; and

(4) Specify the date on which the report will be submitted.

(p) Approval of extensions shall be made only if it is determined that the delay is caused by circumstances beyond the NF provider’s control, such as, but not limited to:

(1) Flood;

(2) Fire;

(3) Strikes by employees necessary for the preparation of the cost report;

(4) Earthquakes; or

(5) The death of an owner or administrator.

(q) Failure to submit the annual cost report or a complete report as required shall result in the following penalties, unless an extension has been granted by the department:

(1) The per diem rate currently in effect shall be reduced by 25% effective on the first day of the month following the due date for filing of the completed annual cost report, and for each successive month of delinquency in filing the completed annual cost report;

(2) There shall be no retroactive restoration of penalty payments or reimbursement of related working capital interest costs upon the submission of a completed cost report;

(3) No determination of a new rate for the next payment period shall be made until an acceptable cost report as described in (a) – (e) above is received; and

(4) Reinstatement of the pre-existing rate or the determination of a new rate of payment shall be made subsequent to the receipt of an acceptable annual cost report, but retroactive only to the date of receipt by the department of said report.

(r) The commissioner shall not impose the penalties in (q) above if it is determined that the reason for the NF provider not meeting the timeframes in (o)(2) above meets the criteria in (p) above.

(s) When a complete annual cost report has been submitted by the NF provider, the department shall conduct a desk review of the report and shall conduct a field audit if the NF meets one of the conditions for a field audit as described in (t) below.

(t) A field audit shall be conducted as part of the review of the annual cost report in accordance with He-E 806.30 if the NF meets one or more of the following conditions:

(1) The NF has been newly constructed or has had major capital improvements in the past year;

(2) There are items on the annual cost report which need further clarification or investigation as determined by the department; or

(3) A field audit has not been conducted on the NF during the previous 5 state fiscal years.

(u) Based on the desk review or field audit, the department shall determine allowable costs and facility compliance in accordance with the provisions of He-E 806.

(v) The department shall send a notice to the NF provider of the result of the desk review or field audit including:

(1) A listing of all adjustments to submitted costs on the cost report, if any, as determined by the department as described in (t) above; and

(2) The provider’s right to a reconsideration and an administrative appeal in accordance with He-E 806.40 and He-E 806.41.

(w) The department shall reopen cost reports only as a result of field adjustments by department staff or in the case of fraud.

(x) Cost reports shall be reopened at the request of the provider in the case of an error of a material nature until a rate has been set based on that submitted cost report.

(y) For an out-of-state provider or an out-of-state home office, any reopening by the home state or appropriate fiscal agent shall be considered a reopening for the NH Medicaid Program.

Source. #8547, eff 1-24-06 (formerly He-W 593.03); ss by #9623, eff 12-24-09; ss by #12440, INTERIM, eff 12-23-17, EXPIRED: 6-21-17

New. #12566, eff 6-29-18

He-E 806.03 Record Keeping Requirements.

(a) A NF provider shall maintain accurate financial and statistical records, which substantiate the cost reports, for a period of 6 years.

(b) The records of the NF provider described in (a) above shall include, but not be limited to, information regarding:

(1) Provider ownership, organization, operation, fiscal and other record keeping systems;

(2) Federal and state income tax information related to the operation of the facility;

(3) Asset acquisition, lease, sale or other action;

(4) Franchise or management arrangement;

(5) Patient service charge schedule;

(6) Information regarding cost of operation and amounts of income received; and

(7) Flow of funds and working capital.

(c) When the department determines that a provider is not maintaining records as required in He-E 806.03 (a) and (b) above, the department shall send a written notice to the provider of its intent to suspend payments in 30 days, together with an explanation of the deficiencies.

(d) If the provider disagrees with the department’s decision, the provider may request an appeal pursuant to He-E 806.41.

(e) Payments shall remain suspended until adequate records are maintained as specified in (a)-(b) above, or until an appeal decision is rendered pursuant to He-E 806.41.

(f) Payments shall be reinstated at the full rate retroactive to the beginning of the suspension period once the NF provider maintains adequate records in accordance with He-E 806 or if an appeal decision is rendered pursuant to He-E 806.41 in favor of the NF provider.

(g) Providers shall make the records described in (a)-(b) above available upon request to representatives of the department or the US Department of Health and Human Services, subject to the penalties described in (e) above.

Source. #8547, eff 1-24-06 (formerly He-W 593.06); ss by #10474, eff 1-24-14

He-E 806.04 Accounting Principles for Annual Cost Reports. The following accounting principles shall apply:

(a) The allowable costs shown in all annual cost reports shall follow the Generally Accepted Accounting Principles (GAAP) and the accrual method of accounting; and

(b) If a NF maintains its records on a cash basis, then it shall record such accruals as adjustments.

Source. #8547, eff 1-24-06 (formerly He-W 593.05); ss by #10474, eff 1-24-14

He-E 806.05 Reimbursement Based on Actual Allowable Costs. The department shall reimburse NFs based on actual allowable costs as follows:

(a) To be allowable, the costs, including compensation, shall be reasonable and necessary for services related to resident care and pertinent to the operation of the NF as described below:

(1) To be reasonable, the compensation shall be such as would ordinarily be paid for comparable services by comparable facilities, for example, facilities of similar size and level of care; and

(2) To be necessary, the service shall be such that had the individual not rendered the services, another person would have had to have been employed to perform the same services;

(b) Allowable costs for services and items directly related to resident care, pursuant to He-E 802, shall be included in the per diem rate unless the service or item is reimbursable under Medicare or covered by the drug rebate program through the department;

(1) Costs that are a result of inefficient operations, such as the hiring of a consultant to assist in daily operations due to management practices which could or did result in the loss of the facility’s license to operate;

(2) Costs resulting from unnecessary or luxurious care, such as purchasing a luxury sedan when a utilitarian sedan would suffice for the transportation of residents;

(3) Costs related to activities not common and accepted in a NF, as determined by the department, in comparison to other facilities, such as purchasing an airplane; and

(4) Costs or financial transactions conceived for the purpose of circumventing the provisions of He-E 806, such as listing an employee with a job title that would be reimbursable under Medicaid, but the job duties actually performed by the employee are not reimbursable under Medicaid;

(d) To be an allowable cost of compensation, services shall actually be performed by the individual and paid in full to the individual by the NF provider;

(e) If services are provided on a less than full-time basis, as determined by the NF, allowable compensation shall be based on the percentage of time for which the service is actually provided;

(f) Costs incurred to comply with changes in federal or state laws, rules or regulations for enhanced direct and indirect resident care services and improved facilities administration shall be considered allowable costs; and

(g) Allowable or non-allowable costs for specific services or items shall be determined as described in He-E 806.06 through He-E 806.30.

Source. #8547, eff 1-24-06 (formerly He-W 593.08); ss by #10474, eff 1-24-14

He-E 806.06 Routine Services.

(a) Allowable costs for routine services and items directly related to resident care shall include but not be limited to:

(1) All general nursing services including, but not limited to, administration of oxygen and related medications, hand feeding, incontinency care, and tray service;

(2) Items furnished routinely and commonly to most or all residents, such as resident gowns, water pitchers, and basins;

(3) Routine personal hygiene and grooming supplies such as deodorant, lotion, shampoo, soap and toothpaste;

(4) Medical supplies, pharmaceutical items, and non-legend drugs, that is, drugs prescribed by a licensed practitioner that are normally purchased over the counter, which are stocked at nursing stations or on the floor in gross supply and distributed individually in small quantities;

(5) Laundry services for routine NF requirements and residents’ personal clothing; and

(6) Routine and emergency dental services defined by the Medicaid State Plan rendered to NF residents.

Source. #8547, eff 1-24-06 (formerly He-W 593.09); ss by #10474, eff 1-24-14

He-E 806.07 Physician Services, Psychologist Services and Pharmacist Consultant Services.

(a) The cost of physician or psychologist services performed in rendering direct resident care shall not be allowable in the per diem rate.

(b) The cost of indirect services performed in an administrative or advisory capacity, such as the cost of a medical director or a consultant psychologist, or the cost of a pharmacist consultant rendering administrative services and drug reviews shall be included in the per diem rate.

Source. #8547, eff 1-24-06 (formerly He-W 593.22); ss by #10474, eff 1-24-14

He-E 806.08 Ancillary Services.

(a) The costs of ancillary services provided by the facility, except for prescribed drugs, shall be included in the NF rate determination.

(b) Ancillary services shall include, but not be limited to:

(1) Occupational therapy;

(2) Physical therapy;

(3) Speech therapy;

(4) Inhalation therapy, including oxygen costs;

(5) Laboratory; and

(6) Radiology.

(c) The net cost of Medicaid ancillary services not previously reimbursed by another payor source shall be included in the NF rate determination, provided that NFs maintain revenue and cost data of all ancillary services provided to Medicaid residents of the facility separately from all other ancillary services and costs.

Source. #8547, eff 1-24-06 (formerly He-W 593.27); ss by #10474, eff 1-24-14

He-E 806.09 Drugs and Institutional Pharmacy Costs. The cost of operating an institutional pharmacy and the cost or charges of prescribed legend drugs shall not be an allowable cost in the per diem rate as the NH Medicaid program reimburses these costs to the provider of these services through a direct billing process on a fee for service basis in accordance with He-W 570 Pharmacy Services.

Source. #8547, eff 1-24-06 (formerly He-W 593.28); ss by #10474, eff 1-24-14

He-E 806.10 Barber and Beauty Services.

(a) The direct costs of barber and beauty services shall be non-allowable for purposes of Medicaid reimbursement.

(b) The fixed costs for space and equipment related to providing the services described in (a) above shall be allowable.

Source. #8547, eff 1-24-06 (formerly He-W 593.31); ss by #10474, eff 1-24-14

He-E 806.11 Motor Vehicle Expense.

(a) The cost of operating a motor vehicle shall be an allowable cost if the vehicle is used solely for the provision of resident care.

(b) Motor vehicle expenses shall include:

(1) Mileage payments;

(2) Repairs;

(3) Excise taxes; and

(4) Sales taxes and other related expenses, including interest charges, insurance and depreciation.

Source. #8547, eff 1-24-06 (formerly He-W 593.24); ss by #10474, eff 1-24-14

He-E 806.12 Depreciation of Equipment and Property. Depreciation of equipment and property which has a purchase price of over $500.00 shall be an allowable cost pursuant to the following conditions:

(a) The depreciation shall be:

(1) Identifiable and recorded in the NF provider's accounting records;

(2) Based on the historical cost of the asset or fair market value at the time of donation in the case of donated assets; and

(3) Prorated over the estimated useful life of the asset using the straight line method and the guidelines specified in the American Hospital Association’s “Estimated Useful Lives of Depreciable Hospital Assets” (Revised 2013 Edition), available as noted in Appendix A;

(b) Recording of the depreciation pursuant to (a)(1) above shall encompass:

(1) The identification of the depreciable asset in use;

(2) The asset’s historical cost;

(3) The method of depreciation;

(4) The estimated useful life of the asset; and

(5) The asset’s accumulated depreciation;

(d) If an asset for which depreciation had been allowed in Medicaid reimbursement is sold at a gain, such reimbursement shall be subject to recapture as follows:

(1) Gain shall be determined to be the difference between net book value, that is, historical cost less accumulated straight line depreciation recognized for Medicaid reimbursement purposes, and the selling price;

(2) Gain shall be calculated in the aggregate without adjustment or offset for gain attributed to return on equity, inflationary increases in the market value of the remaining assets, or for increases in value due to supply and demand for the assets in the market place;

(3) Recapture shall be calculated as the depreciation paid by the program to the facility for the asset, but recapture shall not exceed the amount of the gain;

(4) The recapture provisions shall apply regardless of the seller's Medicaid provider enrollment status at the time of the gain;

(5) For recapture purposes, the transfer of stock or shares shall be recognized as a change in ownership except in the following circumstances:

a. the number of shares transferred does not exceed 25 percent of the total number of shares in any one class of stock;

b. the transferred stock or shares are those of a publicly traded corporation; or

c. The transfer has been made solely as a method of financing, not as a method of transferring management or control; and

(6) The transfer of an asset shall not be subject to recapture if the transfer occurs between family members or other related parties; and

(e) For recapture or depreciation, the department shall charge the NF provider interest when a NF provider does not pay in a timely manner or in the case of a dispute on the amount of recapture owed and the department prevails at an administrative hearing. The amount of the interest charged shall be payable to the department at the highest rate paid by the seller on loans for the facility.

Source. #8547, eff 1-24-06 (formerly He-W 593.10); ss by #10474, eff 1-24-14

He-E 806.13 Leased Facility and Equipment. Leasing arrangements for property shall be an allowable cost pursuant to the following conditions:

(a) Rent expense on facilities and equipment leased from a related organization shall be limited by substituting the lower of the following:

(1) The actual interest, depreciation, and taxes incurred for the year under review; or

(2) The price of comparable services or facilities purchased elsewhere;

(b) The existence of the following conditions shall establish that a lease is a virtual purchase:

(1) The rental charge exceeds rental charges of comparable equipment in the area;

(2) The term of the lease is less than the useful life of the equipment;

(3) The NF provider has the option to renew the lease at a reduced rental; and

(4) The NF provider has the right to purchase the equipment at a price which appears to be less than what the fair market value of the equipment would be at the time of acquisition by the provider is permitted;

(c) When a lease is a virtual purchase, as described in (b) above, allowable costs shall be subject to the following limitations:

(1) The rental charge shall be allowable only to the extent that it does not exceed the amount which would have been an allowable cost had the asset been purchased;

(2) The difference between the amount of rent paid and the amount of rent allowed as rental expense shall be considered as a deferred charge and capitalized as part of the historical costs of the asset when the asset is purchased;

(3) If the asset is returned to the owner, instead of purchased, the deferred charge shall be recorded as an expense in the year the asset is returned; and

(4) If the asset continues to be rented after the due date for the purchase, and rental has been reduced, the deferred charge shall be recorded as an expense to the extent of increasing the reduced rental to a fair market rental value; and

(d) Sale and leaseback agreements for property shall be allowable costs subject to the following conditions:

(1) Rental costs specified in sale and leaseback agreements, incurred by NFs through selling equipment, but not real property, to a purchaser not connected with or related to the NF provider, and concurrently leasing back the same equipment shall be an allowable cost if the rental charges are as specified in 42 CFR 413.134(h); and

(2) Rental charges in sale and leaseback agreements shall be allowable only to the extent that they do not exceed the amount which would have been an allowable cost had ownership of the asset been retained.

Source. #8547, eff 1-24-06 (formerly He-W 593.11); ss by #10474, eff 1-24-14

He-E 806.14 Administrator Salaries. For reimbursement purposes, administrators' salaries shall be limited to an amount that is comparable for facilities of similar size and level of care, as determined by the department, in accordance with the provisions of He-E 806.

Source. #8547, eff 1-24-06 (formerly He-W 593.19); ss by #10474, eff 1-24-14

He-E 806.15 Assistant Administrator Salaries.

(a) For facilities of 100 or more beds, assistant administrators' salaries shall be an allowable cost at the rate of one assistant for each 100 beds.

(b) The allowable cost for the salary of the assistant administrator described in (a) above shall not exceed 70% of the allowable salary of the administrator.

Source. #8547, eff 1-24-06 (formerly He-W 593.20); ss by #10474, eff 1-24-14

He-E 806.16 Social Workers. The cost of a social worker(s) shall be an allowable cost.

Source. #8547, eff 1-24-06 (formerly He-W 593.32); ss by #10474, eff 1-24-14

He-E 806.17 Owners, Operators, or Their Relatives.

(a) For reimbursement purposes, NFs which have a full-time, that is, 40 hours per week minimum, administrator shall not otherwise be allowed compensation for owners, operators or their relatives except in circumstances specified in (c) below, when the facility has a licensed capacity of more than 99 beds.

(b) Owners shall include:

(1) Any individual or organization with any equity interest in the NF’s operation;

(2) Any member of such individual's family or his/her spouse's family;

(3) Partners and all stockholders in the provider's operation; and

(4) All partners and stockholders in organizations which have an equity interest in the operation.

(c) The amount allowable for owner's compensation shall be pursuant to all applicable Medicare policies identified in Section 700 and 900 of the Provider Reimbursement Manual, Part I, HCFA-Pub. 15-1 in effect at the time.

Source. #8547, eff 1-24-06 (formerly He-W 593.21); ss by #10474, eff 1-24-14

He-E 806.18 Non-Paid Workers. If a worker does not receive remuneration for services which he/she provides on behalf of the NF, any costs to the employer such as meals and uniforms for the worker, shall be an allowable cost.

Source. #8547, eff 1-24-06 (formerly He-W 593.16); ss by #10474, eff 1-24-14

He-E 806.19 Administrative Expenses and Administrator Duties. The administration function shall be an allowable cost including, but not limited to, the following:

(a) Hiring and firing of personnel;

(b) Administrative supervision of the nursing, dietary and other personnel;

(d) Maintenance of payroll, bookkeeping and other records of the business;

(e) Supervising the maintenance and repairs of the facility; and

(f) Procuring necessary supplies and equipment.

Source. #8547, eff 1-24-06 (formerly He-W 593.18); ss by #10474, eff 1-24-14

He-E 806.20 General County Government Costs.

(a) Indirect costs associated with general county government such as, but not limited to, interest and depreciation, shall not be allowable.

(b) For county-owned and operated nursing facilities, the costs of general county government shall not be allowable costs.

(1) County commissioners;

(2) Treasurers; and

(3) Attorneys and other administrative and support staff.

Source. #8547, eff 1-24-06 (formerly He-W 593.29); ss by #10474, eff 1-24-14

He-E 806.21 Approved Educational Activities.

(a) The net cost of educational activities as approved by the entity, agency, or board having jurisdiction over the activity, shall be an allowable cost.

(b) Orientation, on-the-job training and in-service programs shall not be considered to be approved educational activities for reporting purposes.

(c) The activities listed in (b) above shall be recognized as allowable costs in accordance with the provisions of He-E 806.

Source. #8547, eff 1-24-06 (formerly He-W 593.14); ss by #10474, eff 1-24-14

He-E 806.22 Research Costs. Costs incurred for research purposes shall not be included as allowable costs.

Source. #8547, eff 1-24-06 (formerly He-W 593.15); ss by #10474, eff 1-24-14

He-E 806.23 Advertising Expense.

(a) Reasonable and necessary expense of newspaper or other public media advertisement for the purpose of securing necessary employees and volunteers shall be an allowable cost.

(b) Reasonable and necessary expense of newspaper or other public media advertisement required by local, state, and federal government shall be an allowable cost.

Source. #8547, eff 1-24-06 (formerly He-W 593.23); ss by #9623, eff 12-24-09; ss by #12440, INTERIM, eff 12-23-17, EXPIRED: 6-21-18

New. #12566, eff 6-29-18

He-E 806.24 Home Office Costs.

(a) Home office costs shall include, but not be limited to, the following:

(1) Payroll and benefit services;

(2) Personnel services, including hiring of additional personnel;

(3) Data processing;

(4) Credit and collections;

(5) Accounting; and

(6) Legal services.

(b) Home office costs shall be documented by the submission to the department a copy of HCFA Form 287-92, Chain Home Office Cost Statement, no later than 5 months after the end of the home office fiscal year, unless an extension has been granted by the department as described in He-E 806.02 (p).

(c) If a home office cost report is not submitted or an extension is not granted as in (b) above, then home office costs shall not be allowable costs.

(d) Home office costs for chain operations shall be allowed if:

(1) The costs are reasonable, as defined in He-E 806.05 (a);

(2) The costs are related to resident care; and

(3) The costs meet all reimbursement criteria set forth in He-E 806.

(e) The amount of allowable home office expenses to be included in any year’s administrative costs shall meet the criteria of allowable costs as outlined in He-E 806, and the combination of home office expenses and the expenses of related organizations shall be comparable to NF’s that do not have a home office but are providing the same level of service.

(f) Home office costs shall be limited to the lower of:

(1) The allowable cost if the cost was properly allocated to the NF provider; or

(2) The price of comparable services, facilities or supplies that could be purchased elsewhere, taking into consideration the benefits of effective purchasing that would accrue to each member provider in the chain because of aggregate purchasing.

(g) A NF’s “Medicaid Annual Cost Report” shall not include both home office cost expense and management fees.

(h) A home office cost shall not be allowed if the same cost, when incurred by a NF provider, would not be allowed as a cost pursuant to He-E 806

Source. #8547, eff 1-24-06; ss by #10474, eff 1-24-14

He-E 806.25 Services to Individuals Other Than Residents.

(a) Employee meals consumed on premises during regular working hours from the NF kitchen or food supply shall be allowable costs.

(b) If individuals other than residents are provided rooms, such services shall not be allowable costs.

Source. #8547, eff 1-24-06 (formerly He-W 593.26); ss by #10474, eff 1-24-14

He-E 806.26 Other Non-Allowable Costs.

(a) The following costs shall not be allowed:

(1) Expenditures made by a NF provider only for the protection, enhancement, or promotion of the provider's business interests, and not related to the provision of resident care;

(2) Duplicative functions or services;

(3) Expenditures in excess of approved cost controls;

(4) Political contributions or lobbying costs;

(5) Membership costs in social or fraternal organizations; and

(6) Fees and interest charged for untimely payments.

(b) NFs which include any such costs in the expenditure sections of the annual cost report shall exclude them on the appropriate schedules of the annual cost report.

Source. #8547, eff 1-24-06 (formerly He-W 593.33); ss by #10474, eff 1-24-14

He-E 806.27 Interest Expenses.

(a) Interest shall be an allowable cost subject to (b) through (e) below.

(b) Necessary interest and proper interest as defined in He-E 806.01 on both current and capital indebtedness shall be an allowed cost.

(c) To be allowable, interest expense shall be incurred on indebtedness to lenders or lending organizations not related through control, ownership, affiliation or any personal relationship to the borrower.

(d) Interest expense shall be reduced by interest income.

(e) With respect to loans receivable from an officer, related person, or organization, interest income shall include interest earned on such loan imputed at a rate equal to the highest rate payable on loans payable by the NF provider.

(f) The imputed interest described in (e) above shall not be calculated on disallowed borrowing.

Source. #8547, eff 1-24-06 (formerly He-W 593.12); ss by #10474, eff 1-24-14

He-E 806.28 Discounts, Trade Discounts and Refunds of Expenses.

(a) Discounts and allowances received on purchases of goods or services shall be reductions of the cost to which they relate.

(b) If a NF provider fails to take advantage of available discounts when able to do so, then the amount of the lost discount shall be disallowed.

Source. #8547, eff 1-24-06 (formerly He-W 593.17); ss by #10474, eff 1-24-14

He-E 806.29 Bad Debts, Charity and Courtesy Allowances. Bad debts, charity and courtesy allowances shall not be included as allowable costs.

Source. #8547, eff 1-24-06 (formerly He-W 593.13); ss by #10474, eff 1-24-14

He-E 806.30 Audit Procedures. The following auditing procedures shall apply:

(a) The department shall conduct on-site audits of the financial and statistical records of participating NFs, pursuant to the requirements of 42 CFR 447.202 and 42 CFR 447.253(g);

(b) The on-site audits as described in (a) above shall be performed to ascertain whether the cost report submitted by the NF provider meets the requirements as outlined in He-E 806; and

(c) For out-of-state NFs, the department shall accept the audit findings and adjustments of out-of-state Medicaid agencies developed in conjunction with their respective cost-related reimbursement plans.

Source. #8547, eff 1-24-06 (formerly He-W 593.07); ss by #10474, eff 1-24-14

He-E 806.31 Methodology for Determining the Per Diem Rate.

(a) A single facility-wide prospective rate shall be paid to each facility and comprised of 5 components of cost determined from nursing facility cost reports submitted to the department.

(b) The 5 components of costs shall be:

(1) Administrative costs incurred in the general management and support of the facility, including the following:

a. Compensation for owners, administrators, and consultants;

b. Management fees;

c. Accounting;

d. Legal;

e. Travel; and

f. Other similar costs;

(2) Other support costs allowable in the support group, except for plant maintenance-related costs, including the following:

a. Housekeeping;

b. Laundry;

c. Dietary;

d. Central supply;

e. Pharmacy;

f. Medical records;

g. Social service; and

h. Recreation;

(3) Plant maintenance costs allowable in the support group related to plant maintenance, including but not limited to:

a. Plant maintenance salaries and benefits;

b. Supplies;

c. Utilities; and

d. Property taxes, as well as other plant maintenance costs;

(4) Capital costs, which are depreciation and interest costs that include, but are not limited to, interest on mortgages and long-term notes and depreciation, of which depreciation and interest costs shall not be inflated; and

(5) Patient care costs shall be those costs incurred in the direct care of residents treated and include but are not limited to:

a. Salaries of RNs, LPNs, and aides;

b. Nursing supplies;

c. Ancillaries, and

d. Therapy services.

(c) Therapy service costs included in (b)(5)d. above shall be subject to a ceiling calculated based on the 85th percentile of the combined physical, occupational, and speech therapy portion of the patient care component of nursing facility rates that were effective October 1, 1998, inflated to August 1, 2006.

(d) For each of the components of cost, inflated costs per diem shall be adjusted by a factor to remove costs incurred by residents with atypical needs calculated as follows:

(1) The atypical factor shall be calculated by multiplying the atypical rate in effect by estimated atypical days to estimated total atypical costs;

(2) The number of atypical days shall be identified by actual paid claims for atypical individual residents in each facility for the year that corresponds with the facility’s cost report year;

(3) The atypical payments shall then be divided by total medicaid costs for each facility to develop a ratio of atypical costs to total costs; and

(4) Each cost component per diem shall then be reduced by this ratio to remove the costs of treating an atypical resident.

(e) Resident acuity shall be classified using the minimum data set (MDS) version 3.0 and the 48 group of the RUG-IV, version 1.03 grouper classification system, when calculated by the third party Medicaid vendor, and relative weights assigned as described below:

(1) CMS Staff Time and Resource Intensity Verification (STRIVE) wage weighted staff time nursing minutes shall be combined with New Hampshire nursing costs derived from the facilities’ base year cost reports to determine facility-specific direct care nursing costs per day for each classification;

(2) The CMS STRIVE raw national nursing minutes per day for each classification shall be “smoothed” by a ratio of smoothed to unsmoothed mean nursing wage weighted staff time, then multiplied by the New Hampshire nursing wages per minute to yield the average wages per day for each classification;

(3) Total wages per day for each classification shall then be divided by the sum of the nursing wages per day for all classifications to obtain the relative weight;

(4) The assessment types used shall be CMS required MDS assessments, which are the omnibus budget reconciliation act (OBRA) and PPS assessments, including admission, annual, significant change, quarterlies and PPS-only assessments according to the following:

a. The applicable date on the MDS used to determine inclusion shall be the last day of the fifth month prior to the Medicaid rate date;

b. These assessments shall be either an admission assessment with a date of entry (AB1) on or before the picture date depending on the adjustment period or the most recent quarterly, annual, or significant change assessment with an assessment reference date no later than 5 days past the picture date;

c. To insure inclusion in the acuity-based rate, a facility shall transmit all applicable assessments on or before the 20th of the month following the picture date, for inclusion in the data collection process; and

d. Each resident shall then be classified into one of 48 resident classifications using the 48 RUG-IV, version 1.03 grouper classification system, when calculated by the third party Medicaid vendor, and relative weights assigned as described in (6) below;

(5) The 48 RUG-IV classifications shall be described as “State of New Hampshire acuity group classifications;” and

(6) Relative weights for each classification shall then be calculated based on the weighted average relative weight of the 48 RUG-IV classifications and weighted based on the number of residents in each of the 48 RUG-IV classifications.

(f) The facility all-payor case mix index for each facility shall be calculated as follows:

(1) By multiplying the number of residents by the relative weight for each of the 48 classifications; and

(2) Dividing the sum of the values across each resident grouping by the total number of residents.

(g) Costs listed in (b)(1), (2), (3), and (5) above shall be calculated by inflating costs in the base year from the midpoint of the cost report to the midpoint of the rate period using the CMS prospective payment (PPS) skilled nursing facility input price index by expenses category index.

(h) The all-payor case mix index shall be updated to synchronize the all-payor case mix index with the medicaid cost report year.

(i) The prospective per diem rates-component amounts shall be calculated as follows:

(1) A facility-specific prospective per diem rate shall be calculated by summing 5 rate components:

a. Patient care costs;

b. Administrative costs;

c. Other support costs;

d. Plant maintenance; and

e. Capital; and

(2) Each component’s per diem amount shall be calculated as follows:

a. The patient care cost component shall be based on:

1. The lower of each facility’s case-mix adjusted direct care cost per diem amount; or

2. The statewide median value, as calculated below:

(i) The case mix adjusted direct care cost per diem for each facility shall be calculated by dividing total patient care costs including allowed physical, occupational and speech therapy costs from each facility’s cost report by resident days, based on data included in the most recently desk reviewed or field audited cost reports, inflated to the midpoint of the rate year in order to provide equity among providers with cost reports with different year end dates;

(ii) The resulting amount shall then be divided by the all payor case-mix index to determine the case-mix adjusted patient care cost component per diem amount; and

(iii) Facility-specific amounts shall be arrayed, and the statewide median determined;

b. The administrative cost component of the prospective per diem rate shall be based on the statewide median value, as calculated below:

1. Facility-specific cost per diem amounts shall be calculated by dividing the total administrative costs by resident days, based on data included in the most recently desk reviewed or field audited cost reports, inflated to the midpoint of the rate year in order to provide equity among providers with cost reports with different year end dates; and

2. Facility-specific amounts shall be arrayed, and the statewide median value determined;

c. The other support cost component of the prospective per diem rate shall be based on the statewide median value, as calculated below:

1. Facility-specific cost per diem amounts shall be calculated by dividing the total other support costs by resident days, based on data included in the most recently desk reviewed or field audited cost reports, inflated to the midpoint of the rate year, in order to provide equity among providers with cost reports with different year end dates; and

2. Facility-specific amounts shall be arrayed, and the statewide median value determined;

d. The plant maintenance component of the prospective per diem rate shall be based on the statewide median value, as calculated below:

1. Facility-specific cost per diem amounts shall be calculated by dividing the total plant maintenance costs by resident days, based on data included in the most recently desk reviewed or field audited cost reports, inflated to the midpoint of the rate year in order to provide equity among providers with cost reports with different year end dates; and

2. Facility-specific amounts shall be arrayed, and the statewide median value determined;

e. The capital cost component of the prospective per diem rate shall be based on the actual facility cost, taken from the most recently desk reviewed or field audited cost reports, subject to an aggregate 85th percentile ceiling; and

f. Administrative, other support, and plant maintenance cost components shall be reimbursed at the statewide median value, based on data included in the most recently desk reviewed or field audited cost reports.

(j) In addition to the requirements in (g)(2)a above, DHHS shall conduct a review of acuity-based rates at least every 6 months, using the most recently available MDS data submitted by the facilities after review validation.

(k) Facility-specific per diem rates shall be calculated as follows:

(1) The per diem cost components shall be summed to obtain the total facility rate per diem for each resident in the nursing facility as of a date specified by the department;

(2) The resulting rate shall be paid to the nursing facility until rates are updated with new MDS data upon rebasing, at which time the rates for all residents are summed and divided by the total number of residents in the facility; and

(3) These rates shall be reduced by a budget adjustment factor equal to 23.62% in accordance with the Medicaid State Plan.

(l) Rates shall be limited in accordance with the following requirements stipulated below:

(1) In no case shall payment exceed the provider’s customary charges to the general public for such services or the Medicare upper limit of reimbursement; and

(2) Payment shall be made at the lesser rate when an established rate is a condition to a certificate of need approval and that rate differs from the Medicaid rate established by the department.

(m) When a rate limitation is applied as a condition of the certificate of need, a provider may, if aggrieved, appeal such limitation.

(n) Acuity-based rates shall be reviewed every 6 months for possible adjustment for acuity, using the most recently reviewed and validated MDS data submitted by the facilities.

(o) An acuity adjustment shall occur at least every 6 months.

(p) The department shall review rates, and rebase nursing facility rates at least every 5 years subject to the limitations given below:

(1) Only when rates are rebased shall costs be inflated;

(2) Costs shall be inflated to the midpoint of the rate year, using the CMS prospective payment system (PPS) skilled nursing facility input price index by expenses category index; and

(3) The resulting rate shall be reduced by a budget adjustment factor equal to 23.62% in accordance with the Medicaid State Plan.

Source. #8547, eff 1-24-06 (formerly He-W 593.04); ss by #8769, EMERGENCY RULE, eff 12-1-06, EXPIRES:
5-30-07; ss by #8890, eff 5-25-07; ss by #9623, eff 12-24-09; paras. (e) & (f) amd by #12220, eff 7-1-17; paras. (a)-(d) & (g)-(o) amd by #12440, INTERIM, eff 12-23-17, EXPIRED: 6-21-18 in paras (a)-(d) & (g)-(o); paras (a)-(d) & (g)-(p) amd by #12566, eff 6-29-18; amd by #12688, EMERGENCY RULE, eff 12-7-18, EXPIRED: 6-5-19 (para (k) in #12566 effective again pursuant to RSA 541-A:18, V, I

He-E 806.32 Methodology for Determining the Per Diem Rate for New NF Providers, When Reconstruction Occurs, and When a Change in Ownership Occurs.

(a) The initial prospective per diem rate for new facilities which have completed and reported costs of operations for periods of time of less than 12 months at the time of rate setting, except when the condition exists solely as the result of a change in fiscal year end, shall be calculated as follows:

(1) The rate for variable operating costs shall be determined at a rate comparable to the most recently calculated rates for other NFs of a similar size, geographic region and level of care which have operated for a full year;

(2) The rate for fixed capital costs shall be determined at a rate based on allowable costs/statistics pursuant to RSA 151-C; and

(3) When a health services planning and review board review is not required as specified in RSA 151-C, the rate shall be based on the allowable costs/statistics submitted by the NF provider.

(b) The initial prospective per diem rate for facilities that are a reconstruction of an existing facility and which have completed and reported costs of operations for periods of time less than 6 months at the time of rate setting shall be calculated as described in (a)(1) through (3) above.

(d) When a NF has changed ownership, the rate shall be a continuation of the old rate until such time as a new rate is set.

Source. #8547, eff 1-24-06 (formerly He-W 593.04); ss by #10474, 1-24-14

He-E 806.33 Per Diem Rates and Payment for Nursing Care.

(a) A NF shall be reimbursed for direct and indirect costs as determined by the bed days of care and the NF’s prospective per diem rate.

(b) Payment rates shall be pursuant to the provisions of He-E 806.

Source. #8547, eff 1-24-06 (formerly He-W 593.35); ss by #10474, 1-24-14

He-E 806.34 Medicare Provider Reimbursement Manual. Decisions governing the allowability of costs not specifically detailed at He-E 806 shall be pursuant to the Medicare Provider Reimbursement Manual, Part I, HCFA-Pub 15-1 and Part II, HCFA-Pub 15-2 in effect at the time of such determination.

Source. #8547, eff 1-24-06 (formerly He-W 593.34); ss by #10474, 1-24-14

He-E 806.35 Rate Setting and Payment Limitations For General Nursing Facility Care.

(a) Rate setting and payment limitations for NF care shall be determined as specified in (b) through (f) below.

(b) Each facility's per diem rate shall be reviewed at least annually by the department pursuant to He-E 806 utilizing data submitted on the annual cost report.

(1) The actual days of service rendered, including reserved bed days; or

(2) The number of resident days computed at 85% of the certified bed capacity.

(d) In no case shall payment exceed the NF’s customary charges to the general public for such services, or, where applicable, the Medicare rate of reimbursement, whichever is less.

(e) When a Medicaid per diem rate is established as a condition for a health services planning and review board approval, pursuant to RSA 151-C, and that rate differs from the Medicaid rate established by the department, payment shall be made at the lesser of the 2 rates.

(f) Where a rate limitation is applied as a health services planning and review board condition, a NF provider may, if aggrieved, appeal such limitation in accordance with He-C 200.

Source. #8547, eff 1-24-06 (formerly He-W 593.37); ss by #10474, 1-24-14

He-E 806.36 Rate Setting and Payment Limitations for Atypical Nursing Care.

(a) A provider of atypical care shall be a NF or a distinct part of a NF which possesses the physical characteristics and appropriate staffing for, and devotes its services exclusively to, highly specialized care, the nature of which renders that NF or unit incomparable to other NFs for the purpose of calculating and applying cost and/or occupancy limits.

(b) Examples of such care described in (a) above shall include services for:

(1) Children with severe physical or mental disabilities;

(2) Brain/spinal injured patients;

(3) Ventilator-dependent patients; or

(4) Other specialized services.

(c) The department shall determine the rate of reimbursement utilizing cost documentation submitted by the NF provider which clearly identifies the cost of the atypical care.

(d) The rate described in (c) above shall:

(1) Include routine care costs, ancillary costs and capital costs;

(2) Take into consideration any additional amount necessary to assure access to necessary and appropriate services for NH Medicaid residents with specialized care needs; and

(3) Be exempt from comparative cost and occupancy limits.

(e) In order to qualify as a provider of atypical care, a NF provider shall make application in writing which:

(1) Requests to be considered a provider of atypical care;

(2) Describes the care or services to be provided; and

(3) Documents the costs of such care.

(f) The department shall determine if a NF is qualified to provide and be paid for atypical care based on documentation submitted by the NF, and on whether there is a documented need for these services as determined by the availability of such services in the locality.

(g) Applications for approval of atypical care providers which have been denied may be appealed pursuant to He-E 806.41.

Source. #8547, eff 1-24-06 (formerly He-W 593.38); ss by #10474, 1-24-14

He-E 806.37 Reimbursement for Out-of-State Nursing Care. Reimbursement for out-of-state nursing care shall be made as follows:

(a) The department shall base the reimbursement rate on the rate set by the Medicaid agency of the state in which the out-of-state NF is located for services at that NF; and

(b) In cases where the out-of-state Medicaid rate does not exist or is not sufficient to allow access of NH residents in need of services, a rate shall be determined by the department as described in He-E 806.

Source. #8547, eff 1-24-06 (formerly He-W 593.39); ss by #10474, 1-24-14

He-E 806.38 Bed Days.

(a) Bed days shall include the day of admission, but not the day of discharge.

(b) If admission and discharge occur on the same day, one bed day shall be allowed.

Source. #8547, eff 1-24-06 (formerly He-W 593.36); ss by #10474, 1-24-14

He-E 806.39 Maintenance of Resident Funds.

(a) NFs shall maintain residents’ personal funds such as, cash account funds and bank accounts.

(b) For cash account funds, pursuant to RSA 151, the NF shall determine the balance to be maintained as a source of ready cash for residents.

(d) A receipt shall be obtained for all cash amounts given residents from this fund or any expenditures made on their behalf.

(e) Expenditures not related to residents’ personal needs, such as the cashing of employee checks, shall be prohibited.

(f) All amounts of residents’ personal funds in excess of the cash fund may be maintained in a bank in a variety of ways, such as checking, savings accounts and certificates of deposit.

(g) Residents’ personal funds shall not be co-mingled with funds maintained for the general operations of the nursing facility.

(h) Interest accumulated by residents’ personal funds accounts shall belong to those residents whose money generates the interest.

(i) Allocation of interest income shall be made at least quarterly.

(j) All disbursements made by the NF on behalf of residents shall be supported by receipts and invoices retained in the resident’s personal needs file.

(k) Authorization by the resident or his/her authorized representative shall be obtained for all disbursements described in (j) above.

(l) Upon receipt of monthly bank statements, the residents’ funds shall be reconciled to detail ledgers and equal the checking or savings and cash fund balance.

Source. #8547, eff 1-24-06 (formerly He-W 593.40); ss by #10474, 1-24-14

He-E 806.40 Reconsiderations for Cost Report Adjustments.

(a) There shall be 2 levels for appeal of cost report adjustments as described in He-E 806.02(s) and (t) as follows:

(1) A reconsideration by the department, through the bureau administrator of the bureau of improvement and integrity, or his or her designee, as described in (b) through (e) below; and

(2) An administrative appeal as specified in He-E 806.41.

(b) Providers may use either or both the reconsideration of cost reports adjustment as outlined in (a)(1) and the appeal process as outlined in (a)(2) above.

(c) A NF provider may request reconsideration of the proposed cost report adjustment(s) within 60 calendar days of the date of notification of the rate adjustments as described in He-E 806.02(t) by submitting a request for reconsideration to:

NH Department of Health and Human Services

Bureau Administrator

Bureau of Improvement and Integrity

Main Building

105 Pleasant Street

Concord, NH 03301-3843

(d) The NF provider shall submit a statement as to why the request for reconsideration is being made and may submit any new or additional information that he or she wishes the bureau administrator to consider.

(e) At the request of the NF provider, the reconsideration may be conducted by the bureau administrator or his or her designee as an informal meeting between the NF provider and the bureau administrator or his or her designee, or as a review by the bureau administrator or his or her designee of the information described in (f)(1) and (2) below.

(f) The bureau administrator or his or her designee shall make his or her decision on the reconsideration based on:

(1) A review of all information submitted by the NF provider; and

(2) A review of the cost report adjustments proposed by the department to determine the accuracy of the adjustments.

(g) The bureau administrator or his or her designee shall send a written decision of the reconsideration to the NF provider within 10 business days of the meeting.

(h) If the provider disagrees with the decision rendered by the bureau administrator or his or her designee, the provider may utilize the administrative appeals process in accordance with He-E 806.41.

Source. #8547, eff 1-24-06; ss by #9623, eff 12-24-09; ss by #12440, INTERIM, eff 12-23-17, EXPIRED: 6-21-18

New. #12566, eff 6-29-18

He-E 806.41 Administrative Appeals.

(a) Requests for administrative appeals by NFs, with the exception of state owned and operated facilities, shall be directed to the department with a copy of the appeal sent to Bureau of Elderly and Adult Services, Rate Setting and Audit Unit.

(b) The written request for an appeal shall be received by the department within 30 calendar days of the date of the notice of the new Medicaid NF rates.

(d) Appeals shall be held and heard in accordance with He-C 200.

(e) In accordance with 42 CFR 447.253(e), a provider shall request appeals:

(1) As specified in He-E 806; and

(2) Due to the action or inaction of the department relevant to He-E 806.

(f) A NF provider may request an appeal regarding a rate set by the department.

(g) A provider shall not request an appeal regarding:

(1) The department’s internal ratesetting methodology; or

(2) Federal or state constitutional law.

(h) The hearings officer shall deny any request for an appeal which is not as described in (e) or (f) above.

Source. #8547, eff 1-24-06 (formerly He-W 593.41); ss by #10474, 1-24-14

He-E 806.42 Incorrect Payments.

(a) If a NF was paid incorrectly, interest shall not be paid on underpayments nor collected on overpayments.

(b) If an appeal decision is in favor of the NF, the department shall make the appropriate rate adjustment(s) and payments, including any necessary retroactive payments.

Source. #8547, eff 1-24-06 (formerly He-W 593.42); ss by #10474, 1-24-14

PART He-E 807 NURSING FACILITY ENFORCEMENT REMEDIES - EXPIRED

He-E 807.01 - 807.18

Source. #8177, eff 9-23-04, EXPIRED: 9-23-12

APPENDIX A: Incorporation by Reference Information

Rule	Title	Publisher; How to Obtain; and Cost
He-E 806.12(a)(3)	American Hospital Association’s “Estimated Useful Lives of Depreciable Hospital Assets” (Revised 2013 Edition)	Publisher: American Hospital Association, 155 North Wacker Drive, Chicago, Illinois 60606. Phone: (312) 422-3000. Web address: http://www.aha.org/. Available from the publisher’s on-line store at: http://ams.aha.org/EWEB/DynamicPage.aspx?WebCode=ProdDetailAdd&ivd_prc_prd_key=3591a778-8a0a-4469-afcc-8dea7c9f0512# Cost is: $69.00 (member); $86.00 (non-member).
He-E 801.20(b)	United States Department of Agriculture’s “ Dietary Guidelines for Americans 2020-2025” (Ninth Edition)	Publisher: United States Department of Agriculture Cost: Free to the Public The incorporated document is available at: https://www.dietaryguidelines.gov/sites/default/files/2021-03/Dietary_Guidelines_for_Americans-2020-2025.pdf This publication can also be ordered by calling the U.S. Government Publishing Office (GPO) at (866) 512-1800 and asking for stock number 001-000-04866-0, or by accessing the GPO Online Bookstore at http://bookstore.gpo.gov.
He-E 801.24(b)(7)	U.S. Department of Housing and Development’s “Office of Fair Housing & Equal Opportunity Notice: FHEO-2020-01” (January 2020)	Publisher: U.S. Department of Housing and Development Cost: Free to the public The incorporated document is available at: https://www.hud.gov/sites/dfiles/PA/documents/HUDAsstAnimalNC1-28-2020.pdf
He-E 801.31(c)(1)a.	Association of People Supporting Employment First’s “Universal Employment Competencies” (January 2019)	Publisher: Association of People Supporting Employment First Cost: Free to the public The incorporated document is available at: https://apse.org/wp-content/uploads/2019/03/Apse-universal-Comps-FINAL3-15-19.pdf

APPENDIX B

RULE	STATUTE/FEDERAL REGULATION

He-E 801.01	RSA 151-E:1; 42 USC 1396n(c); 42 CFR 440.180; 42 CFR 441 Subpart G
He-E 801.02	RSA 151-E:1, 2; 42 USC 1396n(c); 42 CFR 440.180; 42 CFR 441 Subpart G
He-E 801.03	42 USC 1396n(c)(1) and (2); RSA 151-E:3, 4; 42 CFR 440.180; 42 CFR 441 Subpart G
He-E 801.04	RSA 151-E:3; 42 USC 1396n(c); 42 CFR 440.180; 42 CFR 441.302(c)(1)
He-E 801.05	RSA 151-E:4; 42 USC 1396n(c); 42 CFR 440.180; 42 CFR 441 Subpart G
He-E 801.06	RSA 151-E:1; 42 USC 1396n(c); 42 CFR 440.180; 42 CFR 441 Subpart G
He-E 801.07	RSA 151-E:842 USC 1396n(c); 42 CFR 440.180; 42 CFR 441.302(c)(2)
He-E 801.08	42 USC 1396n(c)(1) and (2); RSA 151-E:3, 4
He-E 801.09	RSA 151-E:11, II-IV; 42 CFR 441.302
He-E 801.10	42 USC 1396n(c); 42 CFR 435.217; 42 CFR 435.735
He-E 801.11	42 USC 1396n(c)(4)(B); RSA 161-I
He-E 801.12	42 USC 1396n(c)(1) ; 42 CFR 433 Subpart D
He-E 801.13 - 801.31	42 USC 1396n(c)(4)(B); RSA 161-I; 42 CFR 440.180
He-E 801.32	42 USC 1396n(c);42 CFR 447.15; 42 CFR 431.107
He-E 801.33	42 USC 1396n(c); 42 CFR 431.107
He-E 801.34	42 USC 1396n(c); 42 CFR 447.50; 42 CFR 447.300; RSA 161:4, VI(a)
He-E 801.35	42 USC 1396n(c); 42 CFR 455; 42 CFR 456
He-E 801.36	42 USC 1396n(c); RSA 167:14-a, III; 42 CFR 433 Subpart D
He-E 801.37	42 USC 1396n(c)

He-E 802.01	RSA 161:4-a, IX and RSA 151
He-E 802.02	42 USC 1396r and RSA 151:2
He-E 802.03	RSA 151-E:3
He-E 802.04	42 USC 1396r; 42 CFR 483.132; RSA 151-E
He-E 802.05	RSA 151-E:3
He-E 802.06	RSA 151-E:3
He-E 802.07	42 USC 1396a and 1396r
He-E 802.08	42 USC 1396r
He-E 802.09	RSA 161:4-a, IX, 42 USC 1396r and RSA 161:4-a, IX
He-E 802.10	42 CFR 483.10(i)(F)
He-E 802.11	42 USC 1396r and RSA 151:21
He-E 802.12	42 USC 1396r
He-E 802.13	42 USC 1396r
He-E 802.14	42 USC 1396r and RSA 151:21
He-E 802.15	42 USC 1396r; 42 CFR 447.40; RSA 151:25
He-E 802.16	42 USC 1396r and RSA 151:26
He-E 802.17	42 USC 1396r and RSA 151:26
He-E 802.18	RSA 541-A:19-b
He-E 802.19	RSA 541-A:19-b

He-E 803.01	RSA 151:2,I(f); RSA 161:4-a, IX
He-E 803.02-803.03	RSA 161:2, XII
He-E 803.04	RSA 161:2, XII and 42 CFR 440.130(c) and (d)
He-E 803.05-803.10	RSA 161:2, XII

He-E 804.01	RSA 161:4-a, IX
He-E 804.02	RSA 161:4-a, IX and 42 USC 1396r
He-E 804.03	RSA 161:4-a, IX and 42 USC 1396r
He-E 804.04	RSA 161:4-a, IX

He-E 805	RSA 151-E; 42 USC 1396n(g)

He-E 806.23	RSA 161:4, VI(a); Section 1902(a)(13) of the SSA
He-E 806.23	RSA 161:4, VI(a); Section 1902(a)(13) of the SSA
He-E 806.03 - 806.22	RSA 161:4, VI(a); 1902(a)(13) of the SSA
He-E 806.23	RSA 161:4, VI(a); Section 1902(a)(13) of the SSA
He-E 806.24 - 806.30	RSA 161:4, VI(a); 1902(a)(13) of the SSA
He-E 806.31(a)-(e) and (h)-(p)	RSA 161:4, VI(a), RSA 541-A:7; Section 1902(a)(13) of the SSA
He-E 806.31(e)-(f)	RSA 161:4-a, X; RSA 541-A:7; Section 1902(a)(13) of the SSA
He-E 806.32 - 806.39	RSA 161:4, VI(a); 1902(a)(13) of the SSA
He-E 806.40	RSA 161:4, VI(a); Section 1902(a)(13) of the SSA
He-E 806.41	RSA 161-F:4; 42 CFR 447.253(e)
He-E 806.42	RSA 161:4, VI(a); 1902(a)(13) of the SSA

He-E 807 - EXPIRED	42 CFR 488.400 - 488.456