[Federal Register Volume 67, Number 105 (Friday, May 31, 2002)]
[Notices]
[Pages 38128-38132]
From the Federal Register Online via the Government Publishing Office [www.gpo.gov]
[FR Doc No: 02-13613]


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DEPARTMENT OF HEALTH AND HUMAN SERVICES

Centers for Medicare & Medicaid Services

[CMS-1209-N]


Medicare Program; Notice of Modification of Beneficiary 
Assessment Requirements for Skilled Nursing Facilities

AGENCY: Centers for Medicare & Medicaid Services (CMS), HHS.

ACTION: Notice.

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SUMMARY: As part of the Secretary's Regulatory Reform Initiative, this 
notice offers to skilled nursing facilities (SNFs) the option of using 
a modified, shorter version of the minimum data set (MDS) to satisfy 
the Medicare SNF payment and quality requirements. The Medicare SNF 
prospective payment system rates are based on the assignment of 
beneficiaries to case-mix classification groups. Beneficiaries are 
assigned to groups based on the information collected by the SNF staff 
and recorded on the MDS. The quality measures are also derived from the 
information recorded on the MDS and all of those items are included in 
this modified, shorter version. This shorter version of the MDS will 
reduce the burden on SNFs by approximately one-half, which may result 
in saving a significant amount of time that could be made available to 
staff for the provision of beneficiary care. We are offering to SNF 
providers the option of using the shorter version of the MDS to meet 
the requirements to receive payment for Part A SNF stays.

DATES: This notice is effective July 1, 2002.

FOR FURTHER INFORMATION CONTACT: Dana Burley (410) 786-4547.

SUPPLEMENTARY INFORMATION:

I. Background

    The Secretary of the Department of Health and Human Services (the 
Secretary) has made regulatory reform a priority. To further this goal, 
the Secretary established an Advisory Committee on Regulatory Reform to 
provide advice on potential administrative and regulatory changes that 
could reduce burdens and costs while maintaining or enhancing 
effectiveness and access to health care. In order to fulfill its 
mandate, among other activities, the committee has held public 
hearings, heard testimony from providers and beneficiary groups, and 
visited a skilled nursing facility (SNF) to examine the regulatory 
burdens imposed on SNFs.
    During the course of its deliberations, the Advisory Committee 
examined the minimum data set (MDS) and identified almost two dozen MDS 
areas for review. While affirming the critical contribution of the MDS 
to quality, the committee has identified some MDS issues that relate to 
the size of the instrument and the need to focus data collection on 
payment, outcome, and survey purposes. The modifications announced in 
this notice address one of the issues identified in the course of the 
activities undertaken by the Advisory Committee.
    In this notice, we are announcing the option of using a shorter MDS 
developed for use by providers to assess Medicare beneficiaries for 
purposes of

[[Page 38129]]

the SNF prospective payment system (PPS) assessment requirements during 
their Part A covered SNF stays. This is one step in our ongoing effort 
to streamline our regulatory requirements for providers who participate 
in the Medicare program and for our beneficiaries.
    The current Medicare assessment requirements are based on section 
4432(a) of the Balanced Budget Act of 1997 (BBA), that amended section 
1888(e) of the Social Security Act (the Act), which mandated 
implementation of a Medicare skilled nursing facility (SNF) prospective 
payment system. Section 1888(e)(4) of the Act provides the basis for 
establishing the per diem Federal payment rates applied under the PPS 
and sets forth the formula for the rates, including the data on which 
they are based. In addition, this section of the Act requires annual 
adjustments to the PPS rates based on geographic variation and SNF 
case-mix and prescribes the methodology for updating the rates in 
future years.
    The PPS case-mix adjustments are derived from the clinical 
information collected by providers about Medicare Part A covered 
beneficiaries during their SNF stays, using the minimum data set (MDS). 
As a result of a mandate contained in the nursing home reform 
legislation in the Omnibus Budget Reconciliation Act of 1987 (OBRA 
'87), a uniform MDS was required as a part of the comprehensive 
resident assessment for all certified long-term care facilities. The 
provisions of OBRA '87 require that certified long-term care facilities 
collect information concerning all residents to support care planning 
activities. Comprehensive assessments, using the MDS, are required at 
admission (no later than 14 days following admission), annually, and 
upon a significant change in a resident's condition. In addition, 
quarterly reviews of each resident are required. A shorter version of 
the MDS has been developed for these quarterly assessments.
    With implementation of the SNF PPS, providers were required to 
perform MDS assessments of all beneficiaries in Medicare Part A covered 
stays on days 5, 14, 30, 60, and 90 of their Medicare covered stays. 
The assessments required for the SNF PPS are in addition to those 
required by the OBRA '87, although there is often overlap in the timing 
of the required assessments so that one assessment may be used to 
satisfy both the OBRA '87 and SNF PPS requirements.
    At the time of implementation of the SNF PPS, we were aware that 
some refinements to the payment system might be required as we learned 
more during the national operational period. However, because of what 
we learned from the demonstration, and in order to have full national 
level data on Medicare beneficiaries (including their resource use 
requirements), we did not believe that a shorter version of the MDS was 
appropriate at that time.
    The SNF PPS has now been in place for more than 2 full years and we 
believe that it is now feasible to offer providers the option of using 
a shorter version of the MDS. There is no regulatory impediment to our 
making available, as an option, a shorter version of the MDS for 
purposes of Medicare payment and quality monitoring. We find that the 
information that we have collected from the full MDS since 
implementation of the Medicare SNF PPS, which is stored in the National 
MDS Repository, in addition to the continued collection of information 
from both the full MDS and the optional shorter version, are adequate 
to support payment, program integrity, quality monitoring, and provider 
and beneficiary educational activities.
    The OBRA '87 requirements remain unchanged. Only those MDS 
assessments that are performed solely for the purpose of satisfying the 
Medicare SNF PPS assessment requirements are affected by this decision 
to offer a shorter version of the MDS. For those Medicare SNF PPS 
assessments, SNFs may, at their option, use a shorter version of the 
MDS, the Medicare PPS Assessment Form, Version 2002 (MPAF). This 
shorter version of the MDS will be available for provider use beginning 
July 1, 2002 and is currently available on the SNF PPS web site at 
www.hcfa.gov/medicare/SNFPPS.htm. The MPAF contains all of the MDS 
items needed to calculate the beneficiary's RUG-III classification and 
Quality Indicators.
    The nursing home reform provisions of the OBRA '87 established the 
MDS as key to the process for ensuring the quality of care for nursing 
home residents. All current assessments address quality of care, 
although the OBRA '87-required 14-day and 90-day assessments are 
intended primarily for quality evaluation and care planning support. 
The shorter version of the MDS offered in this notice in no way 
undermines the important quality assurance and care planning support 
functions of the process. We remain committed to the ongoing collection 
of information, as specified in the OBRA '87, as a cornerstone of the 
provision of high quality care for all long term care facility 
residents.
    In addition to the quality provisions of OBRA '87, the Secretary 
has initiated a Nursing Home Quality Initiative, designed to assess the 
quality of care provided by SNFs. As an integral part of this 
initiative, we are making information about local nursing homes 
available to members of the communities in which they operate. The 
first step in this process, to pilot test quality measures and publish 
those scores, is underway in 6 States (Florida, Maryland, Ohio, Rhode 
Island, Washington, and Colorado). Quality measurement and assuring 
that high quality care is provided to all residents in certified 
nursing facilities remains a priority and will be the focus of ongoing 
research activity. Therefore, the MPAF was designed so that it includes 
all of the data elements required to derive all of the current quality 
measures.
    Due to our strong interest in quality assurance and our ongoing 
research efforts related to outcome measures for quality, as well as 
MDS accuracy, new payment and classification systems and assessment 
instruments across post-acute care settings, it is certain that, over 
time, the scope and content of items included on all MDS assessment 
instruments will change. For example, we are planning to modify the 
full MDS in order to simplify some items and update others, according 
to clinical practices. This modification will be the MDS 3.0, which we 
expect to complete in 2004. Similarly, we are engaged in a significant 
effort to develop tools to help providers educate staff and assure the 
accuracy of their MDS assessments. This work is being performed through 
a Program Safeguard contract and includes monitoring of other aspects 
of nursing facility practices, in addition to the MDS accuracy studies. 
We will also work on developing systems by which we can monitor MDS 
assessments on a national level.

II. Development of the MPAF

    Development of this new, shorter version of the MDS was based on 
the RUG-III Quarterly, Optional Version, 1997 Update. This version of 
the MDS contains almost all of the items needed to calculate the 
Medicare RUG-III case-mix classification groups and is already part of 
the State standard MDS systems. However, the RUG-III Quarterly does not 
include Sections AA8b and T of the MDS that are essential for the PPS, 
the risk adjustment items necessary for calculating the Quality 
Indicators, certain items required for the Quality Medical Review 
function of the Peer Review Organizations (PROs), or items we believed 
may be useful for refinements to the payment system.
    The addition of items to the RUG-III Quarterly from the MDS to 
satisfy the

[[Page 38130]]

requirements of ongoing Medicare payment policy research, PRO tasks, 
and quality monitoring resulted in an assessment form that is somewhat 
longer than the RUG-III Quarterly, but still significantly shorter than 
the full MDS.

III. Optional Use of the MPAF

    The MPAF will be available for use July 1, 2002. Providers may 
choose to use this shorter version of the MDS to satisfy the Medicare 
SNF PPS requirements for assessments at days 5, 14, 30, 60, and 90 of 
Medicare Part A covered stays. The requirement for an Other Medicare 
Required Assessment (OMRA) 8 to 10 days after cessation of all 
rehabilitation therapy may also be satisfied by using the MPAF.
    With the implementation of the SNF PPS, compliance with the OBRA 
'87 requirement for an Initial Admission Assessment by the 14th day and 
the Medicare SNF PPS requirements for an assessment at days 5 and 14 
has been met routinely by performing one assessment to meet both 
requirements. This has been a fairly seamless combination of 
requirements, since the SNF PPS requirements, before the implementation 
of this optional MPAF, called for a full MDS assessment and the Initial 
Admission Assessment also required the full MDS, as well as additional 
care planning activities. It will still be possible to use one 
assessment to comply with both the OBRA '87 clinical rules and the 
Medicare SNF PPS assessment requirements. The provider will be required 
to meet the more rigorous standard (comprehensive assessment to comply 
with the requirement for an initial admission assessment) and may use 
that assessment to comply with the lesser Medicare requirement.

IV. Implementation

    The items on the MPAF are the same as they appear on the full MDS. 
We have not altered wording, instructions for completion, or numbering 
in development of the MPAF. For example, MDS item I1m (hip fracture) on 
the full MDS is also item I1m (hip fracture) on the MPAF, even though 
on the MPAF this item is followed by I1r (aphasia), rather than I1n 
(missing limb), which has been removed from this shorter version of the 
assessment form. Since our intent in providing this revised, shortened 
version of the MDS is to alleviate burden on providers, we have 
maintained the ordering and numbering system of the MDS items. We 
believe that this will minimize confusion for clinical staff who are 
used to the item numbering as it exists on the full version of the MDS 
and support ease of use of the revised version.
    With the implementation of the MPAF, the burden on SNF providers 
will also be lessened. Once the MPAF is implemented, we will no longer 
require a Medicare SNF PPS assessment to be performed using the full 
MDS. Rather, only the new MPAF will be required. The MPAF will be 
essentially a RUG-III 1997 Update Quarterly assessment form with items 
added to allow evaluation of SNF quality of care.
    Beginning July 1, 2002, facilities will have the option to (1) 
submit Medicare SNF PPS records using only the MPAF items, or (2) 
continue to submit Medicare SNF PPS records using the full MDS. The 
standard MDS system used by the States will accept either type of 
record as valid. The standard system will validate and store only the 
set of MPAF items. Additional items will be ignored by the system. Some 
providers may wish to continue to send a full MDS assessment to avoid 
revising MDS data entry software. If that is the case, no submission 
errors or warnings will result.
    When a Medicare SNF PPS assessment would be coupled with a required 
clinical assessment (for example, a 14-day Medicare SNF PPS assessment 
combined with an initial admission assessment) we will require the MDS 
record to include all of the MPAF items plus any additional items 
required by the clinical assessment, in order to satisfy both sets of 
assessment requirements.
    If any Medicare SNF PPS assessment is combined with a comprehensive 
assessment (initial assessment, annual assessment, significant change 
in status assessment, or significant correction of prior full MDS 
assessment), we will require the record submitted to include all 
comprehensive assessment items.
    When a Medicare SNF PPS assessment is coupled with a quarterly 
assessment or a significant correction of a prior quarterly assessment, 
we will require the record submitted to include all MPAF items and any 
additional items required on the State's quarterly assessment. In 
States using our standard minimum quarterly or standard RUG-III 
quarterly assessment, the MPAF items will include all items on the 
quarterly assessments, and only the MPAF will be required. In States 
that require additional quarterly items, not included on the MPAF, 
those additional items will be required to be included on a combined 
Medicare SNF PPS and quarterly assessment record. For example, in the 7 
States that require a full MDS assessment as the quarterly assessment, 
a record combining a Medicare SNF PPS assessment and a quarterly 
assessment will have to include all of the full MDS items.

V. Collection of Information Requirements

    In compliance with the requirement of section 3506(c)(2)(A) of the 
Paperwork Reduction Act of 1995 (PRA), the Centers for Medicare and 
Medicaid Services (CMS) (formerly known as the Health Care Financing 
Administration (HCFA)), Department of Health and Human Services, is 
publishing the following summary of proposed collection for public 
comment. Interested persons are invited to send comments regarding this 
burden estimate or any other aspect of this collection of information, 
including any of the following subjects: (1) The necessity and utility 
of the proposed information collection for the proper functions of the 
agency's functions; (2) the accuracy of our estimate of the information 
collection burden; (3) ways to enhance the quality, utility, and 
clarity of the information to be collected; and (4) the use of 
automated collection techniques or other forms of information 
technology to minimize the information collection burden.
    We are, however, requesting an emergency review of the information 
collection referenced below. In compliance with the requirement of 
section 3506(c)(2)(A) of the PRA, we have submitted to the Office of 
Management and Budget (OMB) the following requirements for emergency 
review. We are requesting an emergency review because the collection of 
this information is needed before the expiration of the normal time 
limits under OMB's regulations at 5 CFR Part 1320. We cannot reasonable 
comply with the normal clearance procedures because the MPAF will be 
effective on July 1, 2002.
    We are requesting OMB review and approval of this collection within 
15 days of the date of this publication, with a 180-day approval 
period. Written comments and recommendations will be accepted from the 
public if received by the individuals designated below within 14 days 
of this publication. During this 180-day period, we will publish a 
separate Federal Register notice announcing the initiation of an 
extensive 60-day agency review and public comment period on these 
requirements.
    Summary: SNFs are required to submit the resident assessment data 
described at 42 CFR 483.20, in the manner necessary to administer the 
payment rate methodology described in Sec. 413.337. Pursuant to 
sections 4204(b)

[[Page 38131]]

and 4214(d) of OBRA '87, the current requirements related to the 
submission and retention of resident assessment data are not subject to 
the PRA. However, the requirement to maintain performance of patient 
assessment data for days 5, 30, and 60 following admission, necessary 
to administer the payment rate methodology described in Sec. 413.337, 
is subject to the PRA, and is approved by OMB under approval number 
0938-0739, with a current expiration date of April 30, 2003.
    Since we are now making the collection and submission of certain 
MDS items optional, as referenced in this notice, we are soliciting 
comments on the optional data elements and burden reduction associated 
with the revised reporting requirements.
    We have submitted a copy of this notice to OMB for its review of 
the information collection requirements.
    To obtain copies of the supporting statement and any related forms 
for the proposed paperwork collections referenced above, access our web 
site address at http://www.hcfa.gov/regs/prdact95.htm, or E-mail your 
request, including your address, telephone number, OMB number, and CMS 
document identifier, to [email protected], or call the Reports 
Clearance Office at (410) 786-1326.
    Interested persons are invited to send comments regarding the 
burden or any other aspect of these collections of information 
requirements. However, as noted above, comments on these information 
and recordkeeping requirements must be mailed and/or faxed to the 
designees referenced below, within 14 days of the publication of this 
notice:

Centers for Medicare & Medicaid Services, Office of Information 
Services, Standards and Security Group, Division of CMS Enterprise 
Standards, 7500 Security Boulevard, Room N2-14-26, Baltimore, MD 21244-
1850, Fax: (410) 786-0262 Attn: John Burke, CMS-1209-N, and,
Office of Information and Regulatory Affairs, Office of Management and 
Budget, New Executive Office Building, Room 10235, Washington, DC 
20503, Fax: (202) 395-6974 or (202) 395-5167, Attn: Allison Herron 
Eydt, CMS Desk Officer, CMS-1209-N.

VI. Regulatory Impact Analysis

    We have examined the impact of this notice as required by Executive 
Order 12866, the Unfunded Mandates Reform Act (UMRA, Pub. L. 104-4), 
the Regulatory Flexibility Act (RFA, Pub. L. 96-354), and the 
Federalism Executive Order 131232.
    Executive Order 12866 directs agencies to assess costs and benefits 
of available regulatory alternatives and, when regulation is necessary, 
to select regulatory approaches that maximize net benefits (including 
potential economic, environmental, public health and safety effects, 
distributive impacts, and equity). A regulatory impact analysis (RIA) 
must be prepared for major rules with economically significant effects 
($100 million or more annually). This notice is not significant as 
defined in Title 5, United States Code, section 804(2).
    The UMRA also requires (in section 202) that agencies prepare an 
assessment of anticipated costs and benefits before developing any rule 
that may result in an expenditure in any year by State, local, or 
tribal governments, in the aggregate, or by the private sector, of $110 
million or more. This notice will have no consequential effect on 
State, local, or tribal governments. We believe the private sector cost 
of this notice falls below these thresholds as well.
    Executive Order 13132 (effective November 2, 1999) establishes 
certain requirements that an agency must meet when it promulgates 
regulations that impose substantial direct compliance costs on State 
and local governments, preempt State law, or otherwise have Federalism 
implications. As stated above, this notice will have no consequential 
effect on State and local governments.
    The RFA requires agencies to analyze options for regulatory relief 
on small entities. For purposes of the RFA, small entities include 
small businesses, nonprofit organizations, and governmental agencies. 
Most SNFs and most other providers and suppliers are small entities, 
either by virtue of their nonprofit status or by having revenues of $10 
million or less annually. For purposes of the RFA, all States and 
tribal governments are not considered to be small entities, nor are 
intermediaries or carriers. Individuals are also not included in the 
definition of a small entity. The provisions of this notice, to make 
available a shorter version of the MDS to meet Medicare payment 
requirements, creates no additional regulatory burden on small 
entities.
    In addition, section 1102(b) of the Act requires us to prepare an 
RIA if a rule may have a significant impact on the operations of a 
substantial number of small rural hospitals. This analysis must conform 
to the provisions of section 604 of the RFA. For purposes of section 
1102(b) of the Act, we define a small rural hospital as a hospital that 
is located outside of a Metropolitan Statistical Area and has fewer 
than 100 beds. This notice only applies to those few small rural 
hospitals that have distinct-part skilled nursing units. For those few 
providers, the option provided by this notice decreases the regulatory 
burden and requires no action by the provider.
    We do not believe that there will be any negative effect on either 
the quality of care delivered, or on our ability to monitor the quality 
of that care, as a result of decreasing the amount of clinical 
information that will be collected for Medicare beneficiaries during 
their SNF stays. The MPAF includes all of the assessment items required 
for the resident assessment instrument by the OBRA '87, as well as all 
of the items to support current quality monitoring. Further, the 
Secretary's Advisory Committee on Regulatory Reform strongly favored a 
reduction of the amount of data collection required from nursing 
facilities, an indication of the expected reception by the public of 
this new version of the MDS.
    Facilities may be concerned about making changes to their computer 
systems in order to be able to enter and transmit the MPAF 
electronically. We note that there is no requirement for facilities to 
integrate this version of the MDS into their systems. The facility has 
complete discretion regarding when, and if, it chooses to begin use of 
this assessment form. The RAVEN grouper and MDS transmission software 
that is available at no cost from our web site at www.hcfa.gov/medicare/mds20/mdssoftw.htm will support the use of the MPAF. Also, the 
State systems will accept the MPAF beginning July 1, 2002.
    We estimate that the MPAF will require approximately half as much 
time to complete as the full MDS. Completion of the MPAF will require 
approximately 45 minutes, compared to approximately 90 minutes required 
to complete the MDS currently in use. Depending on the SNF's level of 
Medicare participation, use of the MPAF may result in saving a 
significant amount of time that could be made available to staff for 
the provision of beneficiary care.

VII. Waiver of Proposed Rulemaking

    We ordinarily publish a notice of proposed rulemaking in the 
Federal Register to provide a period for public comment before the 
provisions of a notice such as this take effect. We can waive this 
procedure, however, if we find good cause that a notice and comment 
procedure is impracticable, unnecessary, or contrary to the public 
interest and incorporate a statement of

[[Page 38132]]

the finding and its reasons in the notice issued.
    We find that it is unnecessary and contrary to the public interest 
to undertake notice and comment rulemaking because this notice merely 
provides SNFs with the option to use a shorter version of the MDS to 
satisfy the Medicare assessment requirements, thus, lessening the 
burden on the SNF providers. There is no change to the current 
practices of SNF providers in completing the MDS resident assessment 
instrument. Therefore, for good cause, we waive prior notice and 
comment procedures.

(Catalog of Federal Domestic Assistance Program No. 93.773, 
Medicare--Hospital Insurance; and Program No. 93.774, Medicare--
Supplementary Medical Insurance Program)
    Dated: March 12, 2002.
Thomas A. Scully,
Administrator, Centers for Medicare & Medicaid Services.
    Dated: April 24, 2002.
Tommy G. Thompson,
Secretary.
[FR Doc. 02-13613 Filed 5-24-02; 4:53 pm]
BILLING CODE 4120-01-P