Medicare and Medicaid Programs; Programs of All-Inclusive Care for the Elderly (PACE)

Federal RegisterNov 24, 1999

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SUMMARY: This rule establishes requirements for Programs of All-

inclusive Care for the Elderly (PACE) under Medicare and Medicaid.

These are pre-paid, capitated programs for beneficiaries who meet

special eligibility requirements and who elect to enroll. Programs must

apply for approval and are evaluated in terms of specific criteria.

Only a limited number of programs can be approved. Priority

consideration will be given to applicants that have been operating

under ongoing PACE demonstration projects.

DATES: Effective date: These regulations are effective on November 24,

1999. The incorporation by reference of the publication listed in the

rule was approved by the Director of the Federal Register as of

November 24, 1999.

Comment date: Comments will be considered if we receive them at the

appropriate address, as provided below, no later than 5 p.m. on January

24, 2000.

ADDRESSES: Mail an original and 3 copies of written comments to the

following address: Health Care Financing Administration, Department of

Health and Human Services, Attention: HCFA-1903-IFC, P.O. Box 8016,

Baltimore, MD 21244-8016.

If you prefer, you may deliver an original and 3 copies of your

written comments to one of the following addresses: Room 309-G, Hubert

H. Humphrey Building, 200 Independence Avenue, SW., Washington, D.C.

20201, or Room C5-09-26, 7500 Security Boulevard, Baltimore, Maryland

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I. Background

A. Legislative History

Section 4801 of Pub. Law 105-33, the Balanced Budget Act of 1997

(BBA), authorized coverage of PACE under the Medicare program. It

amended title XVIII of the Social Security Act (the Act) by adding

section 1894, which addresses Medicare payments to, and coverage of

benefits under, PACE. Section 4802 of BBA authorized the establishment

of PACE as a State option under Medicaid. It amended title XIX of the

Act by adding section 1934, which directly parallels the provisions of

section 1894. Section 4803 of BBA addresses implementation of PACE

under both Medicare and Medicaid, the effective date, timely issuance

of regulations, priority and special consideration in processing

applications, and transition from PACE demonstration project waiver

status.

B. Demonstration Project History

Section 603(c) of the Social Security Amendments of 1983 (Pub. Law

98-21), as extended by section 9220 of the Consolidated Omnibus Budget

Reconciliation Act (COBRA) of 1985 (Pub. Law 99-272) authorized the

original demonstration waiver for On Lok Senior Health Services in San

Francisco. Section 9412(b) of Pub. Law 99-509, the Omnibus Budget

Reconciliation Act (OBRA) of 1986, authorized HCFA to conduct a PACE

demonstration project to determine whether the model of care developed

by On Lok could be replicated across the country. (The number of sites

was originally limited to 10, but OBRA 1990 authorized an increase to

15 demonstration sites.) The PACE demonstration replicated a unique

model of managed care service delivery for a small number of very frail

community-dwelling elderly, most of whom were dually eligible for

Medicare and Medicaid coverage and all of whom were assessed as being

eligible for nursing home placement according to the standards

established by their respective States. The model of care included as

core services the provision of adult day health care and

multidisciplinary team case management, through which access to and

allocation of all health services was controlled. Physician,

therapeutic,

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ancillary and social support services were furnished in the

participant's residence or on-site at the adult day health center,

unless those locations were not feasible. Hospital, nursing home, home

health, and other specialized services were furnished under contract.

Financing of this model was accomplished through prospective capitation

of both Medicare and Medicaid payments. Demonstration sites had been

permitted by section 4118(g) of Pub. Law 100-203 (OBRA of 1987) to

assume full financial risk progressively over the initial three years,

but that authority was removed by section 4803(b)(1)(B) of the BBA.

There are currently 25 approved PACE demonstration sites.

C. Use of the PACE Protocol

Throughout this document, when we refer to ``the Protocol'' we mean

the Protocol for the Program of All-inclusive Care for the Elderly

(PACE), as published by On Lok, Inc., as of April 14, 1995, or any

successor protocol that may be agreed upon between HCFA and On Lok,

Inc. A copy of the Protocol is included at Addendum A.

We are directed by sections 1894(f)(2) and 1934(f)(2) of the Act to

incorporate the requirements applied to PACE demonstration waiver

programs under the Protocol, to the extent consistent with the

provisions of sections 1894 and 1934 of the Act. We also are authorized

to modify or waive provisions of the Protocol if the modification or

waiver is not inconsistent with and would not impair the essential

elements, objectives, and requirements of sections 1894 and 1934 of the

Act.

D. Consultation With States

Sections 4801 and 4802 of Public Law 105-33 clearly dictate a

cooperative relationship between the Secretary and the States in the

development, implementation and administration of the PACE program. In

order to fulfill these requirements we utilized the American Public

Welfare Association (APWA) as the conduit to solicit States for

volunteers to consult with HCFA staff. The participating State staff

members represented States with a range of PACE experience. Each State

staff volunteer selected a specific target area to provide information.

In order to efficiently and effectively obtain a large amount of

feedback in a short period of time, HCFA staff arranged a series of

conference calls to discuss a wide range of issues pertaining to PACE

organization requirements, the application process, enrollment, and

payment and related financial data collection. Each subject area

discussion included HCFA staff and two to three State representatives.

The feedback obtained during these meetings has been an invaluable

source of information in understanding State operational concerns, in

constructing the regulation and in the development of operational

guidelines that will be released at a later date. We believe that this

approach will minimize operational barriers that are frequently

inherent when new programs are initiated.

E. Consultations With State Agency on Aging

Under the Older Americans Act, State Agencies on Aging are charged

with the responsibility of promoting comprehensive and coordinated

service systems for older persons in their States. Consistent with this

responsibility, the State Agencies on Aging oversee important programs

for home and community-based services funded through Title III of the

Older Americans Act, State revenues, and the Medicaid home and

community-based waiver program. (Two thirds of the State agencies are

involved in administering home and community-based programs.)

The State agencies also implement and oversee important planning,

information and referral, case management, and quality assurance

functions as well as administering the State Long Term Care Ombudsman

Program through which service quality in nursing homes and board and

care homes are monitored in every State. Home care quality is monitored

in an increasing number of States.

The State agency which administers the PACE program should

regularly consult with the State Agency on Aging in overseeing the

operation of the PACE program in order to avoid service duplication in

the PACE service areas and to assure the delivery and quality of

services to PACE participants. We are considering the extent to which

the State Long Term Care Ombudsman Program would be useful in promoting

the rights of PACE participants and in monitoring the quality of care

provided by PACE organizations. Additional information on this topic is

presented in the section on ``participant rights''.

F. State Medicaid Plan Requirement

The State Medicaid plan is the contract between the States and the

Federal government whereby States agree to administer the Medicaid

program in accordance with Federal law and policy. The State plan

preprint sets forth the scope of the Medicaid program, including groups

covered, services furnished, and payment policy. When a State completes

a new State plan preprint page due to changes in its Medicaid program

(called a ``State plan amendment''), the preprint page must be approved

by HCFA in order for the State to receive Federal matching funds.

Section 1905(a)(26) of the Act, as added by section 4802(a)(1) of

BBA, provides authority for States to elect PACE as an optional

Medicaid benefit. The State plan electing the optional PACE program

must be approved before we can approve an application for a PACE

organization in that State.

We developed an interim State plan preprint for PACE. A State

Medicaid letter dated March 23, 1998, provides information and guidance

to State Medicaid agencies on how to satisfy the State plan amendment

requirement. Additional directions for completing the State plan

amendment will be provided in a State Medicaid Director letter that

will be issued at or soon after publication of this regulation.

G. Interaction With Medicare+Choice

The BBA also established a new Medicare+Choice program that

expanded the health care options available to Medicare beneficiaries.

Under the Medicare+Choice program, beneficiaries may elect to receive

Medicare benefits through enrollment in one of an array of private

health plan choices beyond the original (fee-for-service) Medicare

program or the plans previously available through managed care

organizations under section 1876 of the Act. The BBA set forth the

requirements for Medicare+Choice organizations in a new part C of title

XVIII of the Act. Interim final regulations to implement the

Medicare+Choice program were published June 26, 1998 (63 FR 34968).

Final regulations addressing some of the comments were published

February 17, 1999 (64 FR 7968).

Although the PACE program has certain fundamental similarities to

Medicare+Choice and managed care organizations, PACE is not a

Medicare+Choice plan. The BBA established distinct requirements for the

PACE program. PACE is similar to some Medicare+Choice options in these

ways: it is capitated; it is risk-based; it provides managed care; and

it is an elective option. However, PACE differs significantly from

Medicare+Choice plan in other ways such as: it is not available

nationwide (only in a limited number of sites); it includes statutory

waivers that expand the scope of Medicare covered services; it is not

available to all beneficiaries (only to a defined subset of frail

elderly); and it is a joint Medicare/Medicaid program. However, the BBA

did direct us to

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consider some of the requirements established for Medicare+Choice as we

develop regulations for PACE organizations in certain areas common to

both programs, e.g., beneficiary protections, payment rates, and

sanctions.

II. Provisions of the Interim Final Rule

General Approach

As part of the President's and Vice President's regulatory reform

initiative, we have been committed to changing current regulations to

focus on outcome of care and to eliminate unnecessary procedural

requirements. We remain committed to this regulatory reform initiative.

However, in the development of the regulations for the PACE program,

several factors have contributed to the use of a more procedural rather

than outcome-oriented approach.

As set forth in sections 4801 and 4802 of the BBA, the PACE program

includes medical as well as non-medical services for the care of the

frail elderly; this is both a new and a unique model of service

delivery. Moreover, as previously noted, sections 1894(f)(2) and

1934(f)(2) of the Act establish as the foundation for this regulation

the PACE Protocol. By imposing such a requirement, Congress assured the

use of the procedural elements contained in the PACE Protocol as a

minimum to ensure beneficiary protections and safeguards. As Congress

mandated, we are adopting the requirements of the PACE Protocol to the

extent they are consistent with the statutory provisions. We have

clarified and expanded upon certain provisions contained in the

Protocol to more clearly define the requirements and make them more

quantifiable for purposes of enforcement. We will identify and discuss

all substantive modifications made to the requirements contained in the

Protocol.

After reviewing the public comments that we receive and after we

gain some experience applying the provisions of this interim final rule

to PACE programs, we will reevaluate the provisions to determine where

we can make modifications to adopt an approach more consistent with the

regulatory reform initiative.

This interim final rule contains the first published regulations

applicable to the PACE program. To accommodate the new regulations, we

are establishing a new subchapter E (PROGRAMS OF ALL-INCLUSIVE CARE FOR

THE ELDERLY (PACE)) and a new part 460 (PROGRAMS OF ALL-INCLUSIVE CARE

FOR THE ELDERLY (PACE)). We are also redesignating subchapter D as

subchapter F (PEER REVIEW ORGANIZATIONS); we are redesignating parts

462, 466, 473, and 476 as parts 475, 476, 478, and 480, respectively;

and are revising the section numbers to conform to the new part

numbers. We are reserving the former subchapter D. In addition, we are

redesignating subchapter E as subchapter G (STANDARDS AND

CERTIFICATION) with no changes in part designations.

Subpart A--Basis, Scope and Definitions

Basis (Sec. 460.2)

We state that the regulations set forth in Subchapter E, part 460,

are based on sections 1894, 1905(a), and 1934 of the Act, which

authorize Medicare payments to, and coverage of benefits under, PACE

and authorize the establishment of PACE as a State option under

Medicaid to provide for Medicaid payments to, and coverage of benefits

under, PACE.

Scope and Purpose (Sec. 460.4)

We state that the purpose of this regulation is to set forth the

requirements that an entity must meet in order to be approved as a PACE

organization that operates a PACE program under Medicare and Medicaid.

This part also sets forth how individuals may qualify to enroll in a

PACE program, how Medicare and Medicaid payment will be made for PACE

services, provisions for Federal and State monitoring of PACE programs,

and procedures for sanctions and terminations. We state that the

purpose of a PACE program is to provide pre-paid, capitated,

comprehensive health care services that are designed to:

Enhance the quality of life and autonomy for frail, older

adults;

Maximize dignity of and respect for older adults;

Enable frail, older adults to live in their homes and in

the community as long as medically and socially feasible; and

Preserve and support the older adult's family unit.

This philosophy is based on Part I, section A, of the Protocol.

Adopting a mission or philosophy statement that includes these elements

indicates that an entity is guided by a set of values that influence

its structure, planning, and day-to-day operations that is consistent

with the purpose of PACE.

Definitions (Sec. 460.6)

We provide several definitions based on those in sections 1894(a)

and 1934(a) of the Act and add definitions of several other terms.

Sections 1894(a)(3) and 1934(a)(3) of the Act define a ``PACE

provider.'' We have changed that term to ``PACE organization'' in this

regulation for clarity. The term ``PACE provider'' would be confusing

because both Medicare (at 42 CFR 400.202) and Medicaid (at 42 CFR

400.203) define the word ``provider,'' but the definitions are

different and neither applies to entities that operate PACE programs.

Those definitions denote individual providers of individual services

under conventional fee-for-service systems. We selected the alternative

term ``PACE organization'' since ``organization'' is the term used in

both titles XVIII and XIX when referring to managed care organizations,

which are more similar to entities under PACE. In the few places where

we do use the term ``provider'' in this regulation, we are using it in

the broad generic sense to refer to an individual or an entity that

furnishes health care services. Our use of the term is not limited to

the narrow Medicare definition in 400.202. We define a PACE

organization as an entity that has in effect a PACE program agreement.

Based on sections 1894(a)(4) and 1934(a)(4) of the Act, we define a

PACE program agreement as an agreement between a PACE organization,

HCFA, and the State administering agency for the operation of a PACE

program.

In accordance with sections 1894(a)(8) and 1934(a)(8) of the Act,

we define the State administering agency as the State agency

responsible for administering the PACE program agreement.

In accordance with sections 1894(a)(9) and 1934(a)(9) of the Act,

we define a trial period as the first three contract years in which a

PACE organization operates under a PACE program agreement, including

any contract year during which the entity operated under a PACE

demonstration waiver program.

We have added a definition of a contract year as the term of a PACE

program agreement, which is a calendar year except that a PACE

organization's initial (start-up) contract year may be from 12 to 23

months as determined by HCFA. This will enable us to adjust the length

of the initial (start-up) contract year so that subsequent years are on

a standard annual calendar year cycle.

We define a Medicare beneficiary as an individual who is entitled

to Medicare Part A benefits and/or enrolled under Medicare Part B. This

term includes dually-eligible individuals who are also Medicaid

recipients.

We have defined a participant as an individual enrolled in a PACE

program. A Medicare participant is a Medicare beneficiary who is

enrolled in a PACE

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program, and a Medicaid participant is a Medicaid recipient who is

enrolled in a PACE program.

We clarify that the term ``services'' includes both items and

services.

Subpart B--PACE Organization Application and Evaluation

Purpose (Sec. 460.10)

This subpart establishes application requirements for an entity

that seeks approval from HCFA as a PACE organization.

PACE Under Both Medicare and Medicaid

We are requiring that each PACE organization must enter into a

program agreement under both sections 1894 and 1934 of the Act, i.e.,

that each organization participate in both Medicare and Medicaid. Most

of the text of those sections is identical and our analysis indicates

that key sections contemplate entities acting as PACE organizations

under both programs.

Sections 1894(f)(2) and 1934(f)(2) of the Act require that we

incorporate in regulations the requirements applied to PACE

demonstration waiver programs under the PACE Protocol, to the extent

consistent with the provisions of sections 1894 and 1934. Under the

Protocol, PACE demonstration programs operated under both Medicare and

Medicaid. We believe that the directive to incorporate the requirements

in the Protocol reflects an expectation by Congress that all PACE

organizations would participate in both Medicare and Medicaid. This

view is reinforced by paragraph (f)(2)(B) of these sections, which

permits us to modify or waive provisions of the PACE Protocol ``so long

as such modification or waiver is not inconsistent with and would not

impair the essential elements, objectives, and requirements'' of

sections 1894 and 1934, but which forbids modifying or waiving, among

others, the following provisions:

Capitated, integrated financing that allows the

organization to pool payments received from public and private programs

and individuals; and

The assumption by the organization of full financial risk.

We have concluded that both of these provisions preclude the

possibility of a Medicare-only or Medicaid-only PACE program. For

example, if a program could collect capitation payments from Medicare

but bill fee-for-service under Medicaid, not all financing would be

capitated, nor would financing be integrated, nor would the

organization assume full financial risk.

The law does not require that States offer the PACE benefit under

Medicaid. As indicated by its title, section 4802 of BBA provides for

the ``Establishment of PACE Program as Medicaid State Option.'' If an

entity attempted to become a PACE organization under Medicare in a

State which has not included PACE program services as an option under

its Medicaid program, it would not be possible for that entity to be

both a Medicare and a Medicaid PACE organization. While this would

curtail the availability of PACE programs in such States, we have

concluded that this result was intended because a Medicare-only program

could not meet the fundamental concept of an all-inclusive, integrated,

capitated, full-risk program.

Moreover, both sections 1894 and 1934 of the Act contemplate the

active collaboration of Federal and State governments in the

administration of PACE. Each State must have a State administering

agency that is responsible for administering PACE program agreements in

the State under sections 1894 and 1934 of the Act. The State

administering agency closely cooperates with HCFA in establishing

procedures for entering into, extending, and terminating PACE program

agreements. The State administering agency cooperates with HCFA and the

PACE organization in the development of participant health status and

quality of life outcome measures. The State administering agency

cooperates with HCFA in conducting oversight reviews of PACE programs

and has the authority to terminate a PACE program agreement for cause.

If Medicare-only programs had been contemplated in a State that does

not elect the PACE option, there would have been no reason to assign

such a significant role to a State administering agency. We believe

that a State which has not chosen PACE as an optional service would be

ill-prepared or unable to perform this role.

Most of the text of section 1894 of the Act is identical to text in

section 1934. Portions of that text reflect the concept of entities

acting as PACE organizations under both programs. The scope of Medicare

PACE program benefits includes ``all items and services covered under

this title (for individuals enrolled under this section [section 1894])

and all items and services covered under title XIX.'' Similarly,

section 1934 defines the Medicaid benefit package as ``all items and

services covered under title XVIII (for individuals enrolled under

section 1894) and all items and services covered under this title.'' In

addition, to be eligible for PACE, an individual must require the

nursing facility level of care covered under the State Medicaid plan.

Section 1894(e) of the Act provides that ``the Secretary, in close

cooperation with the State administering agency'' will establish

program agreements for ``entities that meet the requirements for a PACE

organization under this section, section 1934, and regulations.'' A

corresponding provision is found at section 1934(e) of the Act,

referring to ``entities that meet the requirements for a PACE

organization under this section, section 1894, and regulations.'' We

believe that the use of the correlative ``and'' indicates that PACE

entities would have to meet all three sets of requirements.

A parallel provision provides for termination of PACE program

agreements (see paragraphs (e)(5) of sections 1894 and 1934 of the

Act). Termination of an agreement under both sections 1894 and 1934 may

be accomplished by either ``the Secretary or a State administering

agency.''

On the other hand, we acknowledge that there are some portions of

the law which are inconsistent with this position. First, there is the

fact that Congress enacted Medicare and Medicaid PACE benefits through

two separate statutory sections. In addition, section 4803(c)(1) of BBA

directs us, in determining ``provider status,'' to ``give priority in

processing applications of entities to qualify as PACE programs under

section 1894 or 1934 of the Social Security Act.'' Further, section

1894(a)(4) defines a PACE program agreement as ``an agreement,

consistent with this section, section 1934 (if applicable), and

regulations promulgated to carry out such sections.'' See also section

1934(a)(4).

Nonetheless, it is highly unlikely that any entity could be a

viable PACE organization without approval under both Medicare and

Medicaid. The majority of potential participants are Medicare

beneficiaries who also are eligible for Medicaid. Those who are not

currently Medicaid-eligible may eventually exhaust their financial

resources and become eligible. Medicare participants who are not

enrolled in PACE under Medicaid must pay premiums equal to the Medicaid

capitation rate. Aside from the technicality that there would not be an

established Medicaid capitation rate in a State that does not elect the

PACE option, most of these participants would lack the ability to pay

such significant premiums.

As the above citations illustrate, some provisions of the law are

conflicting and thus ambiguous. We therefore must interpret them to

give effect to as many of the provisions as possible and to the policy

objectives that they advance. In

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keeping with the Congressional intent that the PACE Protocol guide our

implementation of the PACE program, we have determined that PACE

organizations must be approved under both Medicare and Medicaid. Based

on this interpretation, if a State should choose not to amend its State

Medicaid plan to adopt PACE as an optional Medicaid service, we would

not accept PACE applications from entities in that State. Also, if a

State has elected the optional benefit but declines to recommend a

particular entity as a PACE organization, we would not accept an

application from that entity.

Application Requirements (Sec. 460.12)

Section 1905(a)(26) of the Act provides authority for States to

elect PACE as an optional Medicaid benefit. The State plan electing the

optional PACE program must be approved before we can approve an

application for a PACE organization in that State.

We have established Sec. 460.12 to set forth the application

requirements for the PACE program. In order for HCFA to determine

whether an entity qualifies as a PACE organization, an individual

authorized to act for the entity must submit an application that

describes thoroughly how the entity meets all the requirements

specified in this regulation. In recognition of the 90-day review

timeframe specified in the statute and described below and the

numerical limit on the number of PACE program agreements, HCFA will

review and take action to approve, deny or request additional

information only on complete applications; i.e, those applications that

address all elements of the PACE program agreement. HCFA will send a

letter to each applicant indicating whether or not the application is

complete and specifying when the 90-day review period ends.

Except for entities that qualify for priority processing or special

consideration as discussed below, we will accept and begin to review

applications 90 days after the effective date of this interim final

regulation. Entities interested in obtaining specific information for

use in applying for PACE organization status should access the PACE

homepage, available through both the Medicare and Medicaid HCFA

websites (www.hcfa.gov/medicare (or medicaid) /PACE/pacehmpg.htm).

States have played a significant role in the development of PACE

demonstration projects as well as other community-based alternatives to

institutionalization. Most States have implemented home and community

based programs to provide comprehensive coordinated services to various

groups of Medicaid recipients. As a result, States have gained

extensive experience in demographic analysis and contracting with

entities that are capable of delivering a specified range of services.

Although the PACE statute does not specify the States' role in the

application approval process, many aspects of implementing PACE in

Medicare and Medicaid will necessitate extensive involvement of the

State administering agencies and the State Medicaid Agencies. With

regard to applications, we believe the States are in the best position

to work with potential organizations to develop programs that meet our

requirements and are integrated into the State's overall long-term care

delivery system.

Therefore, we are requiring in Sec. 460.12(b) that applications for

PACE organization status be accompanied by an assurance from the State

administering agency indicating that it considers the entity to be

qualified to be a PACE organization and that the State is willing to

enter into a PACE program agreement with the entity. We will not accept

applications from entities that have not obtained these assurances.

To enable a State to make such assurances, an entity would have

established to the satisfaction of the State that it is committed to

the PACE model of care, there is sufficient funding for program

development and facilities, there is adequate demand for PACE services

as shown by demographic analysis, and the entity has hired core PACE

staff and has developed contracts for referral arrangements and other

program services that the site will not furnish directly.

Entities that are interested in developing a PACE program agreement

should contact their State administering agency to determine whether

the State has submitted or plans to submit a State plan amendment to

elect PACE as an optional benefit under its State Medicaid plan and if

the State has established additional requirements for PACE

organizations.

Priority Consideration (Sec. 460.14)

We have established section 460.14 to address priority

applications. The statute requires that we give priority in processing

applications through August 5, 2000, to entities that are operating

under PACE demonstration waivers under the authority of section 603(c)

of the Social Security Amendments of 1983, as extended by section 9220

of COBRA of 1985, or section 9412(b) of the OBRA of 1986. In addition,

we are directed to give priority to entities that applied to operate

under a PACE demonstration waiver under section 9412(b) of the OBRA of

1986 as of May 1, 1997.

To give priority in processing applications from entities that meet

the criteria, we will accept applications only from these entities

beginning on the effective date of this interim final regulation and

continuing for 45 days. Applications from other entities will not be

accepted during this period. During the subsequent 45 days, extending

to 90 days after the effective date of this regulation, we will

continue to accept applications from entities that meet the priority

processing criteria and we also will accept applications from entities

that qualify for special consideration.

Special Consideration (Sec. 460.16)

In Sec. 460.16, Special Consideration, we define the qualifications

to receive special consideration of a PACE application.

The statute requires that we give special consideration in the

processing of applications through August 5, 2000, to an entity that,

as of May 1, 1997, indicated a specific intent to become a PACE

organization through formal activities, such as entering into a

contract to conduct a PACE feasibility study.

To give special consideration in processing applications from

entities that meet the criteria, we will accept applications from these

entities beginning 45 days after the effective date of this interim

final regulation. During the 45-day period that extends from 45 days

after the effective date to 90 days after the effective date, we will

accept applications only from entities that meet the priority

processing criteria or entities that qualify for special consideration.

Applications from other entities will not be accepted during this

period.

Applications from entities that believe they are entitled to

special consideration must include information regarding the formal

activities they engaged in towards becoming a PACE organization. If we

agree that special consideration is appropriate for applications

submitted after the special 45-day window, we will identify those

applicants and factor in the entity's special status in the event that

we have a greater number of applications under review than available

capacity for PACE program agreements.

HCFA Evaluation of Applications (Sec. 460.18)

We will approve entities based upon a review of the materials

submitted as part of the application, as well as information from the

State

[[Page 66239]]

administering agency and information obtained through onsite visits.

Notice of HCFA Determination (Sec. 460.20)

Sections 1894(e)(8) and 1934(e)(8) of the Act require us to approve

or deny an application for PACE organization status within 90 days

after the date of the submission of the application unless additional

information is requested. Applications are deemed approved unless we

deny PACE organization status in writing or request additional

information within the 90-day timeframe. We clarify that, for purposes

of the 90-day time limit described in this section, the date that an

application is considered to be submitted to HCFA is the date on which

the application is delivered to the address designated by HCFA.

These sections also provide that we may request in writing such

additional information as may be required in order to make a final

determination regarding the application and, after the date we receive

such information, the application shall be deemed approved unless,

within 90 days of such date, we deny such request.

Based on this authority, we may take up to 90 days to request

additional information and, once the information is received, may take

an additional 90 days to complete processing of the application. It is

important to note that there is no corresponding requirement that the

State administering agency or the PACE organization respond to HCFA's

request for additional information within a specified timeframe.

If the additional information proves insufficient to approve the

application, the application will be denied. We will notify each

applicant of our determination and the basis for the determination in

writing. If the application is denied, we will provide the basis for

the denial and the process for requesting reconsideration of the

application.

Priority and Special Consideration

Section 4803(c) of the BBA directs us to give priority in

processing applications of entities to qualify as PACE organizations

under section 1894 or 1934 of the Act first to PACE demonstration sites

and then to entities which had applied to operate a PACE demonstration

site as of May 1, 1997. In addition, section 4803(c)(3) of the BBA

requires that we give special consideration in the processing of

applications to any entity that, as of May 1, 1997, had indicated

specific intent to become a PACE organization through formal activities

such as entering into contracts for feasibility studies.

Service Area Designation (Sec. 460.22)

In Sec. 460.22, Service Area Designation, we specify that each

application must designate the service area of the program. HCFA (in

consultation with the State administering agency) may exclude from the

proposed service area designation any area that is already covered

under another PACE program agreement. This will avoid unnecessary

duplication of services and impairing the financial and service

viability of an existing PACE organization. This section implements the

provisions of sections 1894(e)(2)(B) and 1934(e)(2)(B) of the Act.

Limit on Number of PACE Program Agreements (Sec. 460.24)

Sections 1894(e)(1)(B) and 1934(e)(1)(B) of the Act establish a

limit on the number of PACE program agreements that may be in effect on

August 5 of each year, i.e., the anniversary of the enactment of the

PACE statute. Those sections state that the Secretary shall not permit

the number of PACE organizations with which agreements are in effect

under those sections or under section 9412(b) of the OBRA of 1986 to

exceed--

40 as of August 5, 1997, the date of the enactment of the

PACE statute, or

As of each succeeding anniversary of such date, the

numerical limitation for the preceding year plus 20. The annual

increase in the number of PACE program agreements is not tied to the

actual number of agreements in effect as of a previous anniversary

date.

Based on this statutory language, we may enter into up to 80 PACE

program agreements as of August 5, 1999 and the limit on the number of

PACE program agreements increases by 20 each year thereafter.

Subpart C--PACE Program Agreement

Program Agreement Requirement (Sec. 460.30)

In accordance with sections 1894(a)(4) and 1934(a)(4) of the Act we

have established Sec. 460.30 to require that each PACE organization

have an agreement with HCFA and the State administering agency for the

operation of a PACE program by the organization under Medicare and

Medicaid. This three-party agreement must be signed by an authorized

official of the organization, as well as by an authorized HCFA official

and an authorized State official.

Content and Terms of PACE Program Agreement (Sec. 460.32)

In Sec. 460.32(a), we stipulate the required content of a PACE

program agreement.

We are requiring that each PACE program agreement designate the

service area of the program, specifically identifying the area by

county, zip code, street boundaries, census tract, block, or tribal

jurisdictional area, to the extent that those identifiers are

appropriate. Any changes in the designated service area will require

advance approval by HCFA and the State administering agency. This

requirement implements the provisions of sections 1894(e)(2)(A)(I) and

1934(e)(2)(A)(I) of the Act and reflects Part I, section D of the

Protocol.

Each PACE organization must agree to meet all applicable

requirements under Federal, State, and local laws and regulations,

including provisions of the Civil Rights Act, the Age Discrimination

Act, and the Americans with Disabilities Act. This includes, but is not

limited to, all requirements contained elsewhere in these regulations.

This requirement implements in part the provisions of sections

1894(e)(2)(A)(iv) and 1934(e)(2)(A)(iv) of the Act.

We require that each agreement indicate the effective date and term

of the agreement.

We are requiring that each PACE program agreement include

information related to: organizational structure of the PACE

organization; participant rights; process for grievances and appeals;

eligibility, enrollment and disenrollment policies; service

description; quality assessment and performance improvement; capitation

rates; names and numbers of administrative contacts in the

organization; and program agreement termination procedures. These

requirements are based on sections 1894(b)(2) and 1934(b)(2) of the Act

and on Part X, section A of the Protocol.

We will identify in each PACE program agreement the levels of

performance that we require the organization to achieve on standard

quality measures and the data and information on participant care that

we and the State require the organization to collect. A detailed

discussion of the levels of performance and the standard quality

measures are contained in the preamble discussions for Secs. 460.134

and 460.202(b) of this regulation.

In Sec. 460.32(b), we specify that a PACE program agreement may

provide additional requirements for individuals to qualify as PACE

program eligible individuals. This provision implements

[[Page 66240]]

sections 1894(e)(2)(A)(ii) and 1934(e)(2)(A)(ii) of the Act. However,

the eligibility criteria in Sec. 460.150(b)(1)-(3) cannot be modified.

In addition, a PACE program agreement may contain such additional terms

and conditions as the parties agree to, if such terms and conditions

are consistent with sections 1894 and 1934 of the Act and with these

regulations. This provision implements sections 1894(e)(2)(A)(v) and

1934(e)(2)(A)(v) of the Act.

Duration of PACE Program Agreement (Sec. 460.34)

In Sec. 460.34, we specify that each agreement will be effective

for a contract year, but may be extended for additional contract years

in the absence of a notice by a party to terminate, in accordance with

sections 1894(e)(2)(A)(iii) and 1934(e)(2)(A)(iii) of the Act.

Subpart D--Sanctions, Enforcement Actions, and Terminations

Violations for Which HCFA May Impose Sanctions (Sec. 460.40)

In Sec. 460.40 we specify, based on paragraph (e)(6)(B) of sections

1894 and 1934 of the Act, that HCFA can impose, in addition to any

other remedies authorized by law, any of three types of sanctions if

HCFA determines that a PACE organization has committed any of nine

listed violations. The following PACE organization violations specified

in this section are based on provisions of sections 1857(g)(1) and

1903(m)(5)(A) of the Act:

Fails substantially to furnish to a participant medically

necessary items and services that are covered PACE services, if the

failure has adversely affected (or has substantial likelihood of

adversely affecting) the participant.

Involuntarily disenrolls a participant, in violation of

Sec. 460.164.

Discriminates in enrollment or disenrollment among

Medicare beneficiaries or Medicaid recipients, or both, who are

eligible to enroll in a PACE program, on the basis of an individual's

health status or need for health care services.

Engages in any practice that would reasonably be expected

to have the effect of denying or discouraging enrollment, except as

permitted by Sec. 460.150, by Medicare beneficiaries or Medicaid

recipients whose medical condition or history indicates a need for

substantial future medical services.

Imposes charges on participants enrolled under Medicare or

Medicaid for premiums in excess of the premiums permitted.

Misrepresents or falsifies information that is furnished

to HCFA or the State under this part; or, to an individual or any other

entity under this part.

Prohibits or otherwise restricts a covered health care

professional from advising a participant who is a patient of the

professional about the participant's health status, medical care, or

treatment for the participant's condition or disease, regardless of

whether the PACE program provides benefits for that care or treatment,

if the professional is acting within his or her lawful scope of

practice.

Operates a physician incentive plan that does not meet the

requirements of section 1876(i)(8) of the Act.

Employs or contracts with any individual who is excluded

from participation in Medicare or Medicaid under section 1128 or 1128A

of the Act (or with any entity that employs or contracts with such an

individual) for the provision of health care, utilization review,

medical social work, or administrative services.

Sanctions That HCFA Can Impose (Secs. 460.42 and 460.46)

We describe the two types of sanctions in Secs. 460.42 (suspension

of enrollment or payment by HCFA) and 460.46 (civil money penalties).

Each of the sanctions, or remedies, that are specified in these

sections for specific violations are based on provisions of sections

1857(g)(2), 1857(g)(4), and 1903(m)(5)(B) of the Act. With respect to

suspension of enrollment in PACE, HCFA may suspend enrollment of

Medicare beneficiaries after the date HCFA notifies the organization of

the violation. Suspending enrollment of Medicaid recipients is an

action taken by the State rather than HCFA. With respect to suspension

of payment, HCFA may suspend Medicare payment to the PACE organization

and deny payment to the State for medical assistance for services

furnished under the PACE program agreement.

In addition, HCFA may impose civil money penalties of $100,000 plus

$15,000 for each individual not enrolled as a result of the PACE

organization's discrimination in enrollment or disenrollment or

practice that would deny or discourage enrollment; $25,000 plus double

the excess amount above the permitted premium charged a participant by

the PACE organization; $100,000 for each misrepresentation or

falsification of information; and $25,000 for any violation specified

in Sec. 460.40.

Additional Actions by HCFA or the State (Sec. 460.48)

In Sec. 460.48 we specify, based on paragraph (e)(6)(A) of sections

1894 and 1934 of the Act, that if HCFA, after consultation with the

State administering agency, determines that a PACE organization is not

in substantial compliance with requirements in these regulations, HCFA

or the State administering agency can take one or more of the following

actions: Condition the continuation of the PACE program agreement upon

timely execution of a corrective action plan; withhold some or all

payments under the PACE program agreement until the organization

corrects the deficiency; or terminate the program agreement.

Termination of PACE Program Agreement (Sec. 460.50)

In Sec. 460.50 we specify, in accordance with paragraph (e)(5)(A)

of sections 1894 and 1934 of the Act, that HCFA or a State

administering agency may terminate at any time a PACE program agreement

for cause and that a PACE organization may terminate an agreement after

appropriate notice to HCFA, the State administering agency, and

participants. In accordance with paragraph (e)(5)(B) of sections 1894

and 1934 of the Act, we specify that HCFA or a State administering

agency may terminate a PACE program agreement with a PACE organization

if HCFA or the State administering agency determines that:

Either there are significant deficiencies in the quality

of care furnished to participants, or the PACE organization has failed

to comply substantially with conditions under these regulations or with

the terms of its PACE program agreement; and

The PACE organization has failed to develop and

successfully initiate, within 30 days of the date of the receipt of

written notice, a plan to correct the deficiencies, or has failed to

continue implementation of such a plan.

Based on the Protocol, Part IX, section A.1, we also provide for

termination if HCFA or the State administering agency determines that

the organization cannot ensure the health and safety of its

participants. This determination may result from the identification of

deficiencies which HCFA or the State administering agency determines

cannot be corrected. Based on the Protocol, Part IX, section A.2, we

also require that if the organization terminates the agreement, a

minimum of 90 days notice must be given to HCFA and the State

administering agency regarding the organization's intent and that

participants must be given a minimum of 60 days notice.

[[Page 66241]]

Transitional Care During Termination (Sec. 460.52)

Based on the Protocol, Part IX, section B, we require that the PACE

organization develop a detailed written plan for phase-down in the

event of termination which includes the following: the process for

informing participants, the community, HCFA and the State administering

agency in writing about termination and transition procedures; and

steps that will be taken to help assist participants to obtain

reinstatement of conventional Medicare and Medicaid benefits,

transition their care to other providers, and terminate marketing and

enrollment activities. Also, in accordance with paragraphs (a)(2)(C)

and (e)(5)(C) of sections 1894 and 1934 of the Act, we specify in

Sec. 460.52 that an entity whose PACE program agreement is in the

process of being terminated must provide assistance to each participant

in obtaining necessary transitional care through appropriate referrals

and making the participant's medical records available to new

providers.

Termination Procedures (Sec. 460.54)

In Sec. 460.54 we specify termination procedures based on paragraph

(e)(7) of sections 1894 and 1934 of the Act, which provide that:

The provisions of section 1857(h) of the Act apply to

termination of a PACE program agreement in the same manner as they

apply to a termination of a contract with a Medicare+Choice

organization under part C of title XVIII of the Act.

The provisions of section 1857 of the Act authorize termination of an

agreement with an organization based on the following:

We provide the organization with the reasonable

opportunity to develop and implement a corrective action plan to

correct the deficiencies that were the basis of our determination that

cause exists for termination; and

We provide the organization with reasonable notice and

opportunity for hearing (including the right to appeal an initial

decision) before terminating the agreement. However, termination is

authorized by section 1857(h)(2) of the Act without invoking these

procedures if we determine that a delay in termination, resulting from

compliance with these procedures before termination, would pose an

imminent and serious risk to the health of participants enrolled with

the organization.

Subpart E--PACE Administrative Requirements

PACE Organizational Structure (Sec. 460.60)

We have established Sec. 460.60 to specify the structural

requirements for a PACE organization. We believe that these

requirements are essential to the PACE organization's ability to ensure

the health and safety of the participants. The performance of certain

basic organizational functions is a minimum condition for an

environment in which appropriate care can occur. We have based the

organizational structure requirements on Part I of the Protocol.

We require that the PACE organization have a current organizational

chart showing officials in the PACE organization and relationships to

any other organizational entities. The chart for a corporate entity

must indicate the PACE organization's relationship to the corporate

board and to any parent, affiliate, or subsidiary corporate entities. A

PACE organization that is planning a change in organizational structure

must notify HCFA, the State administering agency, and participants, in

writing, at least 60 days before the change would take effect. Changes

in organizational structure must be approved by HCFA and the State

administering agency. In the event of a change that would constitute a

change of ownership, HCFA would apply the general provisions described

in 42 CFR 422.550. Changes in organizational structure approved by HCFA

and the State administering agency must be forwarded to the consumer

advisory committee (described later in the preamble in the section on

governing body) for dissemination to participants as appropriate. We

specifically invite comment on the extent to which changes in

organizational structure are important to participants, information on

the types of changes that have been communicated to participants, the

timing of disclosure, and the effect on participants.

The Protocol requires that a PACE organization have a project

director. We have included this requirement, but have changed the term

to program director. We have renamed this position and further defined

the role of the individual. The PACE organization must have a program

director who is responsible for the oversight and administration of the

entity. She or he would be responsible for the effective planning,

organization, administration, and evaluation of the organization's

operations. The program director would ensure that decisions about

medical, social and supportive services are not unduly influenced by

fiscal managers. The program director is responsible for ensuring that

appropriate personnel perform their functions within the organization.

The program director would inform employees and contract providers of

all organization policies and procedures. If the PACE organization is

part of a larger health system, the program director would clearly

define and inform staff (employees and contractors) of the

relationship.

We have also maintained the Protocol's requirement for a medical

director, but we have further defined the responsibilities of this

position. The PACE organization must have a medical director who is

responsible for the delivery of participant care, clinical outcomes,

and the implementation and oversight of the quality assessment and

performance improvement program. Thus, the medical director is

responsible for achieving the best clinical outcomes possible for all

participants. Under this requirement, we would expect the medical

director to use data comparing the program with other PACE

organizations, where data are available, and to use the organization's

data to demonstrate internal improvements in outcomes over time.

Governing Body (Sec. 460.62)

This section focuses on the ability of the organization's governing

body to provide effective administration in an outcome-oriented

environment. The governing body guides operations and promotes and

protects participant health and safety. The governing body is legally

and fiscally responsible for the administration of the PACE

organization. However, the specific approach to administration of the

organization is left to the discretion of the governing body. This

reflects our goal of promoting the effective management of the

organization, without limiting flexibility in determining how to

achieve that goal.

The governing body must create and foster an environment that

provides quality care that is consistent with participant needs and the

program mission. To that end, the primary requirement is that an

identifiable governing body, or designated person(s) so functioning,

have full legal authority and responsibility for the governance and

operation of the organization, the development of policies consistent

with the mission, the management and provision of all services

(including the management of contractors), fiscal operations, and the

development of

[[Page 66242]]

policies on participant health and safety. Also, the governing body

will establish personnel policies and contract provisions with respect

to employees or contractors with patient care responsibilities giving

adequate notice before leaving the PACE organization's network. These

provisions would be intended to avoid disruptions in care and permit

orderly transition of responsibilities.

We have added a requirement that the governing body be responsible

for the quality assessment and performance improvement program. The

purpose of this requirement is to link the development, implementation,

and coordination of the ongoing quality assessment and performance

improvement program with all aspects of the PACE program. We believe

this requirement will stimulate an aggressive effort by the

organization to identify and use the best practices available for all

participants. As discussed in the section on the quality assessment and

performance improvement program, the PACE organization has the

flexibility to design its own quality improvement program.

Consistent with the Protocol, we have included a requirement that

the PACE organization must ensure community representation on issues

related to participant care. This may be achieved by having a community

representative on the governing body.

We have added a requirement that a PACE organization must establish

a consumer advisory committee to provide advice to the governing body

on matters of concern to participants. Consumer participation through

advisory committees is a well accepted community organization vehicle

to maximize the involvement of consumers in a program designed to serve

them. With the use of such a committee the governing body will have the

benefit of consumer advice, including advice on quality of care.

Consumers also are likely to feel a greater stake in the operation of

the program. In order to assure appropriate representation,

participants and representatives of participants must constitute a

majority of the membership of this committee. One specific duty of the

consumer advisory committee is to receive information regarding changes

in the PACE organization's structure to determine those about which

information should be disseminated to participants.

Personnel Qualifications (Sec. 460.64)

Although the Protocol does not specify personnel requirements for

the various staff employed by or under contract with the PACE

organization, we believe that certain minimum standards must be met in

order to ensure quality of care for the frail elderly population being

served. To this end, we have established Sec. 460.64.

Our approach to personnel qualifications follows principles

described in a Federal Register publication proposing changes to the

conditions of participation for home health agencies, 62 FR 11022-23

(March 10, 1997). This is a flexible approach that relies on State

requirements as much as possible. We require that personnel meet

applicable State licensure, certification, or registration

requirements. The personnel qualifications fall into three categories:

(1) personnel for whom there are statutory qualifications; (2)

personnel for whom all States have licensure, certification, or

registration requirements; and (3) personnel for whom we have specified

requirements since not all States have licensure, certification, or

registration requirements.

The first category consists of personnel for whom the Act contains

qualifications. Section 1861(r) of the Act generally defines a

physician as a doctor of medicine or osteopathy, legally authorized to

practice medicine and surgery by the State in which such function or

action is performed, or certain other practitioners for limited

purposes. This definition is reflected in regulations at 42 CFR 410.20,

and we have adopted this definition for a physician providing services

for a PACE organization. In addition, to reflect the key role of the

primary care physician in the PACE model, we are requiring the primary

care physician to have a minimum of 1 year's experience in working with

a frail or elderly population.

In the second category of personnel qualifications, we defer to

State law. We specify that all staff (employee or contractor) of the

PACE organization must meet applicable State requirements. That is,

they must be legally authorized (currently licensed or, if applicable,

certified or registered) to practice in the State in which they perform

the function or action and must act within the scope of their authority

to practice.

The third category of personnel qualifications includes certain

professions for which not all States currently have licensing,

certification, or registration requirements. If a State does have

licensing, certification, or registration requirements for a

professional listed in this section, then the State qualifications

would apply.

We reviewed the personnel requirements of other Medicare and

Medicaid providers that serve populations similar to PACE participants

(e.g., home health agencies, nursing facilities, intermediate care

facilities), and we have established personnel requirements for PACE

organizations that are as consistent as possible with those applicable

to other providers. If a State does not have licensing, certification,

or registration requirements applicable to the following professions,

then the qualifications specified below apply.

We are requiring that the registered nurse be a graduate of a

school of professional nursing and have a minimum of one year's

experience working with a frail or elderly population.

We are requiring that the social worker (1) have a master's degree

in social work from an accredited school of social work; and (2) have a

minimum of one year's experience working with a frail or elderly

population.

We are requiring that the physical therapist (1) be a graduate of a

physical therapy curriculum approved by the American Physical Therapy

Association, the Committee on Allied Health Education and Accreditation

of the American Medical Association, or the Council on Medical

Education of the American Medical Association and the American Physical

Therapy Association; and (2) have a minimum of one year's experience

working with a frail or elderly population.

We are requiring that the occupational therapist (1) be a graduate

of an occupational therapy curriculum accredited jointly by the

Committee on Allied Health Education and Accreditation of the American

Medical Association and the American Occupational Therapy Association;

(2) be eligible for the National Registration Examination of the

American Occupational Therapy Association; (3) have 2 years of

appropriate experience as an occupational therapist and have achieved a

satisfactory grade on a proficiency examination conducted, approved, or

sponsored by the U.S. Public Health Service, except that such

determination of proficiency does not apply with respect to persons

initially licensed by a State or seeking initial qualification as an

occupational therapist after December 31, 1977; and (4) have a minimum

of one year's experience working with a frail or elderly population.

We are requiring that the recreation therapist or activities

coordinator have 2 years experience in a social or recreational program

providing and

[[Page 66243]]

coordinating services for a frail or elderly population within the last

5 years, one of which was full-time in a patient activities program in

a health care setting.

We are requiring that the dietitian (1) have a baccalaureate or

advanced degree from an accredited college with major studies in food

and nutrition or dietetics; and (2) have a minimum of one year's

experience working with a frail or elderly population.

We are requiring that all PACE center drivers (1) have a valid

driver's license to operate a van or bus in the State of operation; and

(2) be capable of and experienced in transporting individuals with

special mobility needs.

We believe that each of these persons should have experience

working with the frail or elderly population in order to better

recognize issues specific to this population.

We have not defined personnel requirements for the PACE center

manager or the home care coordinator. We are giving PACE organizations

the flexibility to determine who is best suited to fill these positions

since each PACE center may have different needs. Since the home care

coordinator is responsible for acting as the liaison between the

multidisciplinary team and the home care providers, she or he should

possess good leadership and communication skills. In addition, the home

care coordinator should be able to identify and understand

participants' medical and social needs and evaluate the home care needs

of participants. Therefore, we believe that a registered nurse or

social worker would be a good candidate to fill this position.

We have not imposed personnel requirements for personal care

attendants since these individuals will primarily be providing ``non-

skilled'', personal care services (e.g., bathing, toileting,

transferring). We are soliciting comments on whether to include

specific personnel requirements for personal care attendants. It is

important that personal care attendants possess certain basic skills

necessary to provide quality care to PACE participants. Thus, we are

requiring PACE organizations to implement a training program for each

personal care attendant to ensure that they exhibit competency in basic

skills in personal care services. The training program should include

maintenance of a clean, safe, and healthy environment; appropriate and

safe techniques in personal hygiene and grooming; safe transfer

techniques and ambulation; reading and recording temperature, pulse,

and respiration; and observation, reporting, and documentation of

patient status and the care or service furnished. In addition, the

training program developed for each personal care attendant must

include other elements consistent with their assigned duties for

specific participants.

We recognize that personal care attendants in the home environment

may furnish not only personal care services, but also home care

services. When the participant needs home care services, the PACE

organization must ensure that it has qualified staff (either employees

or contractors) that meet the requirements for home health aides to

furnish these services.

Training (Sec. 460.66)

In Sec. 460.66, we have required that the PACE organization provide

ongoing training to maintain and improve the skills and knowledge of

each staff member with respect to their specific duties. The training

should result in the staff's continued ability to demonstrate the

skills necessary for the performance of their specific positions or job

duties. The ability of the PACE organization to ensure patient safety

and to achieve patient-specific performance measures requires competent

staff. We believe there is a direct relationship between the quality of

the organization's staff and patient well-being. The training

requirement is intended to ensure that all staff are able to adapt to

new or additional job demands. The PACE organization is only

responsible for ensuring that the individual is educated and trained

for her or his specific job. The individual would continue to be

responsible for her or his own professional education and for any

continuing education needed to maintain licensure or professional

certification unless the organization chooses to assume this

responsibility. In addition, we have included a specific training

requirement for personal care attendants as described above.

Program Integrity (Sec. 460.68)

We have established Sec. 460.68 to guard against potential

conflicts of interest or other program integrity problems for PACE

organizations, based on Part I, section E of the Protocol. An

organization must not have any staff (employees or contractors) who

have been convicted of criminal offenses related to their involvement

in Medicaid, Medicare, other health insurance or health care programs,

or social service programs under Title XX of the Act. We expanded this

provision from the Protocol to prohibit an organization from having any

staff who have been excluded from participation in Medicare or

Medicaid, or having staff in any capacity where an individual's contact

with participants would pose a potential risk because the individual

has been convicted of physical, sexual, drug, or alcohol abuse. Members

of the PACE organization's governing body, and their family members,

are prohibited from having a direct or indirect interest in contracts

with the organization. (Examples of indirect interests are holdings in

the name of a spouse, dependent child, or other relative who resides

with the member of the governing body.) These requirements are intended

to protect participants and to prevent fraud under Medicare and

Medicaid.

We recognize that in rural, Tribal, or urban Indian communities

there may be limited availability of individuals willing to and capable

of performing key functions for the PACE organization. HCFA and the

State administering agency may grant a waiver of the conflict of

interest requirement for PACE organizations to allow individuals who

have a direct or indirect interest in a contract or the provision of

services to the PACE organization to recuse themselves from decisions

directly or indirectly affecting those interests, rather than barring

them entirely from serving on the PACE organization's policy making

board or as directors, officers, partners, employees, or consultants of

the PACE organization. Such a waiver may be granted if HCFA and the

State administering agency determine that there are not enough people

who could meet the requirement in the PACE organization's service area

and the proposed alternative does not adversely affect the availability

of care or the quality of care that is provided to participants.

We have also added the requirement that the PACE organization must

have a process to gather information on program integrity issues and

respond to any request from HCFA within a reasonable amount of time.

Contracted Services (Sec. 460.70)

Under the scope of benefits described in sections 1894(b)(1) and

1934(b)(1) of the Act, a PACE organization may enter into written

contracts with each outside entity to furnish services to participants.

Consequently, we require that all services, except for emergency

services as described in Sec. 460.100, not furnished directly by a PACE

organization must be obtained through contracts which meet the

requirements specified in regulations. We are adopting the contracting

provisions in Part VII, section A of the Protocol.

A PACE organization can only contract with entities that meet all

applicable Federal and State

[[Page 66244]]

requirements. We have provided some examples of the types of

requirements that contractors would be expected to meet. The contractor

must be accessible, i.e., located within or near the PACE

organization's service area.

To avoid breakdowns in communication or in the provision of care,

we require a PACE organization to designate an official liaison to

coordinate activities between contractors and the organization.

Effective coordination of services is necessary to avoid duplicative or

conflicting services. Designating an individual as liaison provides a

conduit for sharing information. The liaison would inform contractors

of PACE organization policies, changes in participants' plans of care,

information from team meetings, and quality improvement activities and

goals. Contractor staff would inform the PACE organization, through the

liaison, of updates and changes in a participant's status, personnel

changes in the contractor, and any other information necessary for the

continuity of participant care. All care must be evaluated by the PACE

organization, with particular attention to care provided by contracted

personnel. This requirement provides a mechanism to ensure that

contracted personnel are adhering to organization policies and

procedures. It also affords the organization an opportunity to identify

any education or training needs of contracted personnel.

The PACE center is required to maintain a current list of

contractors and provide a copy to anyone upon request. Copies of signed

contracts for inpatient care must be furnished to HCFA and the State

administering agency.

Under the specific contract content requirements, we require each

contract to be in writing and contain the following information:

Name of contractor.

Services furnished.

Payment rate and method.

Terms of the contract, including the beginning and ending

dates, as well as methods of extension, renegotiation and termination.

Contractor agreement to: furnish only those services

authorized by the PACE multidisciplinary team; accept payment from the

PACE organization as payment in full and not to bill participants,

HCFA, the State Medicaid agency or private insurers; hold harmless

HCFA, the State and PACE participants in the event that the PACE

organization cannot or will not pay for services performed by the

contractor pursuant to the contract; not assign or delegate duties

under the contract unless prior written approval is obtained from the

PACE organization; and submit reports as required by the PACE

organization.

We have not established a specific notice requirement for

termination of contracts. We believe that PACE organizations will

contract with individuals and entities that understand and embrace the

organization's mission and commitment to participants. As discussed

previously, the governing body is required to establish personnel

policies that address adequate notice of termination by contractors and

employees with direct patient care responsibilities to permit an

orderly transition and avoid disruptions in care. We specifically

request public comment on whether we should add a requirement for

notice before a contractor could terminate its contract.

Physical Environment (Sec. 460.72)

To ensure that the center and home are free of hazards that may

cause harm to the participants, staff, or visitors, we have established

Sec. 460.72. Because issues of adequate space, infection control, fire

prevention, dietary services, and the safety of transportation services

are important to ensure quality care, we have added requirements for

each in this condition.

We have maintained the following requirements from the PACE

Protocol with a few clarifications:

The PACE center must be designed, constructed, equipped,

and maintained to provide for the physical safety of participants,

personnel, and visitors;

The PACE center must ensure a safe, sanitary, functional,

accessible and comfortable environment for the delivery of services,

that protects the dignity and privacy of the participant; and

The PACE center must include sufficient suitable space and

equipment to provide primary medical care and suitable space for team

meetings, treatment, therapeutic recreation, restorative therapies,

socialization, personal care and dining. (We believe that a PACE

organization should furnish primary care services in the center, but

this provision allows flexibility to avoid duplicating an entire

primary care clinic if that is not necessary.)

The PACE organization must establish, implement, and maintain a

written plan to ensure that all equipment is maintained in accordance

with the manufacturer's recommendations to keep all equipment

(mechanical, electrical and patient care) free of defect. Based on the

manufacturer's experience with the equipment, we believe it has the

most knowledge about routine maintenance and recommended repair

schedules necessary to keep the equipment in good operating condition.

The Life Safety Code (LSC) is a set of fire protection requirements

designed to provide a reasonable level of safety from fire. The LSC was

developed by the National Fire Protection Association and adopted by

the Department of Health and Human Services as the standard which

ensures reasonably fire-safe facilities. The LSC specifies requirements

for building construction features such as walls and doors, exits and

exit access, and fire protection devices such as sprinklers, smoke

detectors, and fire extinguishers.

The 1997 edition of the LSC is divided into occupancy chapters,

including Business, Education, and Health Care Occupancies. Business

occupancies include clinics and offices, and educational occupancies

cover schools and day care centers. Health care occupancies include

facilities where the patients are rendered incapable of self-

preservation and where they remain overnight. Unfortunately, the LSC

does not designate a specific category for comprehensive outpatient

services provided to nursing home eligibles, so we have chosen to

stipulate that the PACE center must meet the occupancy provisions of

the 1997 edition of the LSC for the type of setting in which it is

located (i.e., hospital, office building, etc.).

Each type of LSC occupancy requires a fire alarm system. A fire

alarm system must provide three functions: (1) Initiation--a method of

initiating the alarm, such as a pullbox; (2) notifications--a method of

notifying the occupants, such as a loud bell, horn, chimes, or flashing

lights for those patients who are deaf; and (3) control--a method of

controlling other fire protection functions and features, such as air

conditioning shutdown, automatic release (closing) of fire doors, etc.

We require a PACE center to meet the requirements for a fire alarm

system in accordance with the occupancy section of the LSC that applies

to its building. Each occupancy section also requires evacuation plans,

fire exit drills, and fire procedures. The purpose of the drills is to

test the efficiency, knowledge, and response of the staff and to ensure

that safe care will be provided to participants during an emergency.

The statute and implementing regulations governing some Medicare

providers (i.e., nursing facilities, hospitals, hospices) authorize us

to accept a State code in lieu of the LSC

[[Page 66245]]

if it adequately protects patients. Likewise, under these regulations

the LSC will not apply in a State where HCFA finds that a fire and

safety code imposed by State law adequately protects PACE participants

and staff.

We recognize that it could be burdensome to require strict

adherence to all of the requirements of the LSC. PACE centers may be

established in a variety of building types (e.g., hospitals or office

buildings), which must be considered in requiring adherence to the LSC.

We also recognize that some centers may have alternative features that

provide an equivalent level of protection to that required by the

specific requirements of the LSC. In some buildings it may even be

impractical or impossible to provide a specific feature due to the

construction of the building. Therefore, we have specified that HCFA

may waive specific provisions of the LSC which, if rigidly applied,

would result in unreasonable hardship on the organization. Specific

provisions may be waived only if the waiver does not adversely affect

the health and safety of the participants and staff.

We have established four requirements that we believe are

fundamental for a PACE organization to effectively prepare for

emergency situations. The PACE organization must establish, implement,

and maintain documented procedures to manage medical and nonmedical

emergencies or disasters that are likely to threaten the health or

safety of participants, staff or the public including, but not limited

to, fire, equipment, water or power failures, care-related emergencies,

and natural disasters likely to affect their geographic location. We

also state that we do not expect organizations to develop emergency

plans for natural disasters that typically do not affect their

geographic area. For example, organizations in the Southeast would not

typically need to develop emergency procedures for earthquakes.

PACE organizations must train each staff member (employee and

contractors) on the actions necessary to address different medical and

nonmedical emergencies. This requirement is designed to ensure the

safety and security of both the participants and the staff. In

addition, the participants must be appropriately trained on the

organization's emergency procedures since they may need to take steps

to protect themselves during an emergency. PACE participants need to be

informed on what to do, where to go, and whom to contact if a center

emergency occurs. The PACE center must also provide periodic

orientation to staff and participants.

Appropriate medical practice dictates that the organization must

have trained personnel, drugs, and emergency equipment immediately

available at every center at all times to adequately support

participants until an Emergency Medical System (EMS) responds to the

center. We have defined the minimum emergency equipment that must be on

the premises and immediately available as easily portable oxygen,

airways, suction, and emergency drugs. In addition, the center must

have a documented plan to obtain EMS services from sources outside the

center when needed.

At least annually, a PACE organization must actually test,

evaluate, and document the effectiveness of its emergency and disaster

plans to ensure appropriate responses to the situations and needs that

may arise from both medical and nonmedical emergencies. Drills and

emergency episodes often reveal a weakness or flaw in the design of the

emergency plan. An annual review will allow flaws or potential problems

to be identified and corrected.

Infection Control (Sec. 460.74)

Infection control is vital to the health and safety of

participants, so we are requiring in Sec. 460.74 that the PACE

organization adhere to accepted policies and standard procedures,

including at least the standard precautions developed by and available

from the Centers for Disease Control and Prevention (CDC). These

guidelines have been developed by the CDC in collaboration with

industry representatives and have proven effective as a means of

diminishing the spread of blood-borne pathogens and other infectious

agents. The PACE organization must establish, implement, and maintain a

documented infection control plan that will assure a safe and sanitary

environment and prevent and control the transmission of disease and

infection. At a minimum, the infection control plan must include the

following:

(1) Procedures to identify, investigate, control, and prevent

infections in every center and in a participant's place of residence;

(2) Procedures to record any incidents of infection; and

(3) Procedures to analyze the incidents of infection, to identify

trends, and develop corrective actions related to the reduction of

future incidents.

Transportation Services (Sec. 460.76)

Transportation services are a critical component of PACE service

delivery, so it is crucial that the PACE organization take appropriate

steps to ensure that participants can be safely transported from their

homes to the center and to appointments. We have established

Sec. 460.76 to require that the PACE organization's transportation

services must be safe, accessible and equipped to meet the needs of

each participant. In addition, we require that the organization's

transportation program include procedures on at least the following:

(1) Maintenance of transportation vehicles according to the

manufacturer's recommendations; (2) equipping transportation vehicles

to communicate with the PACE center; (3) training transportation

personnel on the special needs of participants and appropriate

emergency response; and (4) as part of the multidisciplinary team

process, communicating relevant changes in the participants' care plans

to transportation personnel.

Dietary Services (Sec. 460.78)

It is important that each PACE center provide each participant with

a nourishing, palatable, well-balanced meal that meets the daily

nutritional and special dietary needs of each participant. Each meal

must be: prepared by methods that conserve nutritive value, flavor, and

appearance; prepared in a form designed to meet individual needs; and

prepared and served at the proper temperature. The center must provide

substitute foods or nutritional supplements that meet the daily

nutritional and special dietary needs of any participant who refuses

the food served, cannot tolerate the food served, or who does not eat

adequate amounts. In addition, the PACE organization must provide

nutrition support (that is, tube feedings, total parenteral nutrition,

or peripheral parenteral nutrition) to meet the daily nutritional needs

of a participant if indicated by his or her medical condition or

diagnosis.

It is vital to the health and safety of participants that the food

provided meets acceptable safety standards. Therefore, we are requiring

the PACE organization to:

(1) Procure foods (including nutritional supplements and items to

meet special nutrition needs) from sources approved or considered

satisfactory by Federal, State, Tribal or local authorities that have

jurisdiction over the service area of the organization;

(2) store, prepare, distribute, and serve foods (including

nutritional supplements and items to meet special nutrition needs)

under sanitary conditions; and

[[Page 66246]]

(3) dispose of garbage and refuse properly.

Fiscal Soundness (Sec. 460.80)

Part I, section F of the Protocol addresses fiscal soundness and

paragraph (e)(4)(A)(ii) of sections 1894 and 1934 of the Act requires

that during the trial period we conduct a comprehensive assessment of a

PACE organization's fiscal soundness. We have established Sec. 460.80

to address requirements for fiscal soundness.

Each PACE organization must have a fiscally sound operation as

demonstrated by total assets being greater than total unsubordinated

liabilities, sufficient cash flow and adequate liquidity to meet

obligations as they become due, and a net operating surplus or a plan

for maintaining solvency.

Each organization must have a documented insolvency plan approved

by HCFA and the State administering agency which, in the event of

insolvency, provides for: the continuation of benefits for the duration

of the period for which capitation payment has been made; the

continuation of benefits to participants who are confined in a hospital

on the date of insolvency until their discharge; and protection of

participants from liability for payment of any fees which are the legal

obligation of the PACE organization.

Each organization must have adequate arrangements to cover expenses

in the event it becomes insolvent. To this end, we have specified

requirements in this section that are consistent with the Protocol.

Marketing (Sec. 460.82)

Based on Part III, section B of the Protocol, we have established

Sec. 460.82 to address marketing of PACE programs. PACE organizations

must conduct marketing activities that inform the general public about

their programs.

All marketing material must be approved by HCFA and the State

administering agency. Initial marketing material is reviewed as part of

the application process. After an organization is under a PACE program

agreement, any new or revised marketing materials must be submitted for

review by HCFA and the State administering agency. We will complete our

review within 45 days after we receive the information from the

organization or the material will be deemed approved. We have added the

requirement for review and approval of revised marketing materials

since revisions could potentially introduce false or misleading

information. Although the Protocol includes a 30-day review and

approval timeframe, we adopted a 45-day period to be consistent with

the process used by HCFA for review of changes to Medicare+Choice

organization marketing materials.

Printed marketing materials must meet participants' special

language requirements. Marketing materials must provide complete and

clear information regarding the requirement that all services (other

than emergency services), including primary care and specialist

physician services, be furnished by or authorized by the PACE

organization and that participants may be fully and personally liable

for the costs of unauthorized or out-of-PACE program agreement

services.

PACE organizations must ensure that their employees or agents do

not conduct prohibited marketing activities such as discrimination of

any kind among individuals who meet PACE eligibility standards;

activities that could mislead or confuse potential participants or

misrepresent the PACE organization, HCFA, or the State administering

agency; activities that involve gifts or payments to induce enrollment;

contracting outreach efforts to individuals or organizations whose sole

responsibility involves direct contact with the elderly to solicit

enrollment; or unsolicited door-to-door marketing.

Each PACE organization must establish, implement, and maintain a

documented marketing plan with measurable enrollment objectives and a

system for tracking its effectiveness.

Subpart F--PACE Services

PACE Benefits Under Medicare and Medicaid (Sec. 460.90)

Pursuant to sections 1894(a)(2)(B) and (b)(1) and 1934(a)(2)(B) and

(b)(1) of the Act, we have established Sec. 460.90 to specify that

Medicare and Medicaid benefit limitations and conditions relating to

amount, duration, scope of services, deductibles, copayments,

coinsurance, or other cost sharing do not apply to PACE benefits. In

addition, we have specified that, in accordance with sections

1894(a)(1)(B)(i) and 1934(a)(1)(A) of the Act, the PACE participant

shall receive Medicare and Medicaid benefits solely through the PACE

organization.

Required Services (Sec. 460.92)

Based on the provisions of sections 1894(b)(1)(A) and 1934(b)(1)(A)

of the Act, we are requiring in Sec. 460.92 that each PACE benefit

package include for all participants, regardless of source of payment,

all Medicaid covered services as specified in the State's approved

Medicaid plan, a variety of services specified in the Protocol, and

other services determined necessary by the multidisciplinary team to

meet the participant's needs (e.g., respite care). As specified in Part

IV, section A.3 of the Protocol, at a minimum the PACE organization

must provide the following benefit package:

Multidisciplinary assessment and treatment planning;

Primary care services including physician and nursing

services;

Social work services;

Restorative therapies, including physical therapy,

occupational therapy and speech-language pathology;

Personal care and supportive services;

Nutritional counseling;

Recreational therapy;

Transportation;

Meals;

Medical specialty services including, but not limited to:

anesthesiology, audiology, cardiology, dentistry, dermatology,

gastroenterology, gynecology, internal medicine, nephrology,

neurosurgery, oncology, ophthalmology, oral surgery, orthopedic

surgery, otorhinolaryngology, plastic surgery, pharmacy consulting

services, podiatry, psychiatry, pulmonary disease, radiology,

rheumatology, surgery, thoracic and vascular surgery, and urology;

Laboratory tests, x-rays and other diagnostic procedures;

Drugs and biologicals;

Prosthetics and durable medical equipment, corrective

vision devices such as eyeglasses and lenses, hearing aids, dentures,

and repairs and maintenance for these items;

Acute inpatient care: ambulance; emergency room care and

treatment room services; semi-private room and board; general medical

and nursing services; medical surgical/intensive care/coronary care

unit, as necessary; laboratory tests, x-rays and other diagnostic

procedures; drugs and biologicals; blood and blood derivatives;

surgical care, including the use of anesthesia; use of oxygen;

physical, occupational, and respiratory therapies; speech-language

pathology; and social services.

Nursing facility care: semi-private room and board;

physician and skilled nursing services; custodial care; personal care

and assistance; drugs and biologicals; physical, occupational, and

recreational therapies and speech-language pathology, if necessary;

social services; and medical supplies and appliances.

[[Page 66247]]

Required Services for Medicare Participants (Sec. 460.94)

In accordance with paragraph (b)(1)(A)(i) of sections 1894 and 1934

of the Act, we specify that the PACE benefit package for Medicare

participants must include, in addition to the services required by

Sec. 460.92, the scope of hospital insurance benefits described in 42

CFR part 409 and the scope of supplemental medical insurance benefits

described in 42 CFR part 410.

This provision is based on explicit statutory wording that requires

the inclusion of Medicare covered services only for individuals

enrolled under section 1894 of the Act. Those individuals include

Medicare-only participants and dually-eligible Medicare/Medicaid

participants. The PACE organization may choose to include coverage of

these services for other participants, but is not required to do so.

In accordance with section 1894(g) of the Act, we specify that the

following requirements of title XVIII of the Act (and regulations

relating to such requirements) are waived and do not apply to services

under the PACE program:

The provisions of subpart F of part 409 of 42 CFR that

limit coverage of institutional services;

The provisions of subparts G and H of 42 CFR part 409 and

parts 412 through 414 that relate to rules for payment for benefits;

The provisions of subparts D and E of 42 CFR part 409 that

limit coverage of extended care services or home health services;

The provisions of subpart D of 42 CFR part 409 that impose

a 3-day prior hospitalization requirement for coverage of extended care

services; and

The provisions of 42 CFR 411.15(g) and (k) that may

prevent payment for PACE program services to individuals enrolled in

the PACE program.

Excluded Services (Sec. 460.96)

We provide a list of excluded services based on Part IV, section

A.6 of the Protocol. The services that are excluded from coverage under

the PACE program are as follows:

Any service that is not authorized by the

multidisciplinary team, even if it is listed as a required service,

unless it is an emergency service .

For services in inpatient facilities, private room and

private duty nursing services, unless medically necessary, and non-

medical items for personal convenience such as telephone, radio or

television rental, unless specifically authorized by the

multidisciplinary team as part of a participant's plan of care.

Cosmetic surgery, which does not include surgery required

for improved functioning of a malformed part of the body resulting from

an accidental injury or for reconstruction following mastectomy.

Experimental medical, surgical or other health procedures.

Services rendered outside the United States, except as may

be permitted in accordance with 42 CFR 424.122 and 424.124 or as may be

permitted under the State's approved Medicaid Plan. While the Protocol

did not recognize any exceptions, the required inclusion of Medicare

and Medicaid covered services results in certain limited exceptions

being possible. For example, a State that borders another country might

include some Medicaid coverage across the border, and Medicare covers

some emergency hospital, ambulance, and physician services outside the

United States. (As defined in 42 CFR 400.200, the United States

includes the Commonwealth of Puerto Rico, the Virgin Islands, Guam,

American Samoa, and the Northern Mariana Islands.)

Service Delivery (Sec. 460.98)

We are requiring in Sec. 460.98 that the PACE organization must

establish and implement a written plan to provide care that meets the

needs of its participants across all care settings on a 24 hour basis,

each day of the year. The PACE organization must furnish comprehensive

medical, health, and social services that integrate acute and long-term

care. These services must be furnished at least in the PACE center, the

participant's home, and inpatient facilities. The PACE organization

must not discriminate against any participant in the delivery of

required PACE services based on race, ethnicity, national origin,

religion, sex, age, mental or physical disability, or source of

payment.

The requirements in this section implement provisions in Part IV,

section B of the Protocol and ensure the availability of and access to

services as a PACE organization grows. The following requirements are

based on the Protocol:

At least the following services must be furnished at every

PACE center: primary care (including physician and nursing services);

social services; restorative therapies (including physical and

occupational therapy); personal care and supportive services;

nutritional counseling; recreational therapy; and meals.

The PACE organization must operate at least one PACE

center either in or contiguous to its designated service area, with

sufficient capacity for routine attendance by its participants.

The PACE organization must ensure accessible and adequate

services to meet the needs of all its participants. When necessary, the

organization must increase the number of centers, staff, and other PACE

services.

The frequency of a participant's attendance at the center

is determined by the multidisciplinary team based on the needs and

desires of each participant.

We added the requirement that, if there is more than one center,

each center must offer the full range of services and have sufficient

staff to meet the needs of participants.

Emergency Care (Sec. 460.100)

We expanded on and clarified the provisions in Part IV, section A

of the Protocol to ensure access to necessary services and to adopt a

beneficiary-centered approach.

We require a PACE organization to establish and maintain a written

plan for handling emergency health care needs. The organization must

ensure that the participants and caregivers know when and how to access

emergency services and ensure that HCFA, the State, and PACE

participants are held harmless if the PACE organization does not pay

for emergency services.

Emergency care is appropriate when services are needed immediately

because of an injury or sudden illness and the time required to reach

the PACE organization or a network provider would cause risk of

permanent damage to the participant's health. Thus, emergency care

services include inpatient and outpatient services, furnished by a

qualified emergency services provider (other than the PACE organization

or one of its contract providers) either in or out of the PACE

organization's service area, that are needed to evaluate or stabilize

an emergency medical condition. An emergency medical condition means a

condition manifesting itself by acute symptoms of sufficient severity

(including severe pain) such that a prudent layperson, with an average

knowledge of health and medicine, could reasonably expect the absence

of immediate medical attention to result in: serious jeopardy to the

health of the participant; serious impairment to bodily functions; or

serious dysfunction of any bodily organ or part.

Emergency services that fall within this description do not require

prior

[[Page 66248]]

authorization by the PACE organization. We believe that relying on the

prudent layperson standard in establishing a participant's need for

emergency services is more clear than the definition of emergency care

in the Protocol. We adopted the prudent layperson standard from the

Consumer's Bill of Rights and Responsibilities (discussed in detail in

the section on participant rights). The same standard is used in the

Medicare+Choice definition of emergency medical condition. This

standard encompasses a slightly broader range of circumstances than

does the Protocol language, by including some situations that could fit

under the Protocol description of ``urgent care'' or ``urgently needed

services.'' We think this clarification is helpful because the Protocol

wording does not clearly distinguish between emergency and urgent care.

Other services a participant may need while temporarily absent from

the PACE organization's service area, that are not emergency services

but cannot be delayed until the participant returns, would need prior

authorization. The fact that these services may be ``urgently needed''

means that the PACE organization would be expected to authorize a

participant to obtain them from a non-contract provider outside of the

service area, but it does not exempt them from the requirement for

prior authorization. This approach differs from that applied to

Medicare+Choice organizations, where prior authorization for urgently

needed services is not required. We believe that the differences in the

population served by PACE organizations warrant different treatment of

urgent, though not emergency, care needs. Due to the relative frailty,

more limited mobility, and more complex health status of PACE

participants, we believe the need to maintain coordination of care by

the multidisciplinary team justifies contact with and authorization by

the PACE organization prior to receipt of non-emergency care outside

the PACE network.

The emergency services plan must provide for the availability of

appropriate on-call providers. We expanded this requirement from the

Protocol to provide a safety net for unanticipated health incidents, so

participants do not encounter difficulty obtaining care when they are

away from the PACE center, when they are away from the PACE

organization's service area and require services that cannot be delayed

until they return, or when they require post-stabilization care

services following emergency services. An on-call provider must be

available 24-hours per day to address any participant questions about

accessing emergency services and respond to requests for authorization

of urgently needed out-of-network services or post-stabilization care

services following emergency services.

We believe that PACE organizations are organized to be responsive

to all participant care needs, including the need for urgently needed

or post-stabilization services. However, in order to ensure that

unforeseen circumstances do not result in delays in needed care, we

have clarified that the PACE organization must cover urgently needed

out-of-network or post-stabilization care services if it does not

respond to a request for approval within 1 hour after being contacted

or cannot be contacted for approval.

Multidisciplinary Team (Sec. 460.102)

This section is based on provisions in Part IV, section B of the

Protocol. The Protocol requires that the PACE organization assign each

participant to a multidisciplinary team based at the PACE center where

the participant attends. We have included a requirement that the PACE

organization must establish a multidisciplinary team at each center to

comprehensively assess and meet the individual needs of each

participant. We believe that a well-functioning multidisciplinary team

is critical to the success of the PACE program, as the team is

instrumental in controlling the delivery, quality, and continuity of

care. Members of the multidisciplinary team should be knowledgeable

about the overall needs of the patient, not just the needs which relate

to their individual disciplines. In order to meet all of the health,

psychosocial, and functional needs of the participant, team members

must view the participant in a holistic manner and focus on a

comprehensive care approach.

Based on the Protocol, we are requiring that the multidisciplinary

team be composed of at least the following members:

a. Primary Care Physician--We considered expanding this to include

nurse practitioners but decided to retain the requirement in the

Protocol. While it would be acceptable for a PACE organization to

include a nurse practitioner on the multidisciplinary team, we believe

that this should be in addition to rather than instead of the primary

care physician. The physician is an integral part of the team serving

as a gatekeeper for the participant's medical care, and we feel it is

important to retain this standard in order to ensure quality care.

b. Registered Nurse--The Protocol requires the inclusion of a

``nurse.'' We are specifying that this team member be a registered

nurse. The nurse represented on the multidisciplinary team must exhibit

leadership and management skills that are more consistent with the

training received by registered nurses, as opposed to licensed

practical nurses. In addition, we believe that a registered nurse would

be better able to determine and respond to the health care needs of the

frail population, particularly for home care services. We welcome

comments on this issue.

c. Social Worker;

d. Physical Therapist;

e. Occupational Therapist;

f. Recreational Therapist or Activity Coordinator;

g. Dietitian;

h. PACE Center Manager--We have changed the Protocol terminology

from ``PACE Center Supervisor'' to ``PACE Center Manager''. The center

manager is responsible for overall operation of the PACE center and

ensuring service delivery. The individual who holds this position

should be a good facilitator and should possess good communication

skills. She or he could be the leader of the multidisciplinary team,

but we are not requiring this. We are giving the PACE organization and

the multidisciplinary team the flexibility to decide who should lead

the team and facilitate the discussions.

i. Home Care Coordinator--Since PACE services may be furnished in

the home, the coordination of in-home services with PACE center and

primary care services is critical to effective service delivery. This

coordination is especially important if the PACE organization has

contractors providing the home care services. The PACE organization

must designate a home care coordinator to supervise and coordinate home

care services, whether these services are furnished by a PACE employee

or through a contractor. We are changing the Protocol's term ``home

care liaison'' to ``home care coordinator'', because ``home care

liaison'' has another meaning in Medicare and we want to avoid

confusion.

j. Personal care attendants or their representatives--We have

changed the Protocol term ``health care worker/aide'' to ``personal

care attendant'', as we believe this term more accurately describes

this type of worker. We believe that ``health care worker'' is too

general and could apply to other members of the team.

[[Page 66249]]

k. Drivers or their representatives--This requirement remains

unchanged from the Protocol.

Due to the age of PACE participants, a geriatrician could be a

valuable member of the multidisciplinary team. As one option, the

primary care physician could be a geriatrician. However, physicians who

specialize in geriatrics are relatively rare and availability might be

a serious problem. We have not required the involvement of a

geriatrician but we welcome comments about whether such a requirement

would be desirable and, if so, whether the geriatrician should be

employed by the PACE organization and should primarily serve PACE

participants.

Consistent with the Protocol, we are requiring that primary medical

care for all participants be furnished by the PACE primary care

physician(s). The primary care physician must serve as the gatekeeper

to the participant's use of medical specialists and inpatient care, and

he or she must be an integral member of the multidisciplinary team.

Ultimate responsibility for management of medical situations must rest

with the PACE primary care physician.

The multidisciplinary team is responsible for the initial

assessment, periodic reassessments, the plan of care, and coordinating

24-hour care delivery. A critical element of the success of the

multidisciplinary team is the degree to which team members share

information and communicate with one another. The Protocol requires the

physician to keep the multidisciplinary team informed of the medical

condition of each participant and to remain alert to pertinent input

from other team members. We feel this should be the responsibility of

each member of the team rather than just the physician, as it is

critical to timely intervention to address potential problems. We are

modifying the requirement to reflect this; i.e., each member of the

team must regularly inform the multidisciplinary team of the medical,

functional, and psychosocial condition of each participant and remain

alert to pertinent input from other team members, participants, and

caregivers. This communication can take place through formal measures

such as team meetings and written documentation in participants'

medical records, but should not be limited to formal mechanisms;

informal communication between team members (e.g., CARDEX systems,

informal updates during shift changes and as different personnel report

to work) should be encouraged as well. It is critical that personal

care attendants be involved in the communication process. Since they

often have the first contact with the participant, it is important that

they regularly share information on the participant's mood, activities,

daily habits, etc. Each team member must document changes in the

participant's condition in the participant's medical record.

We are retaining the Protocol requirement that members of the

multidisciplinary team must serve primarily PACE participants, unless a

waiver is granted. After considering this issue, we concluded that for

a frail elderly population, such as is served by the PACE program, it

is important to support and retain measures that promote quality and

continuity of care. If team members serve primarily PACE participants,

they are able to develop a rapport with participants and are better

able to plan for and provide their care. We recognize that team members

may have other patients, but this must not interfere with the provision

of services for PACE participants. HCFA and the State administering

agency may grant a waiver of this requirement if they determine that--

There are not enough individuals available in the PACE

organization's service area who meet the requirement; and

The proposed alternative does not adversely affect the

availability of care or the quality of care that is provided to

participants.

If an applicant seeking approval as a PACE organization believes a

waiver is warranted, it must include a request for the waiver in its

application and describe in detail the circumstances supporting the

request. For example, in a rural, Tribal, or urban Indian community the

number of PACE participants, or the availability of appropriate

multidisciplinary team members in some categories, may be insufficient

for some team members to primarily serve PACE participants. Such an

applicant would need to demonstrate that the alternative it proposes

will maintain the continuity of care and assure sufficient availability

of services so that participants receive prompt, effective care.

We are requiring that the PACE organization establish, implement

and maintain documented internal procedures governing the exchange of

information between team members, contractors, and participants and

their caregivers consistent with the requirements for confidentiality

in Sec. 460.200(e). It is important for the organization to develop

these procedures to avoid breakdowns in communication which would be

detrimental to the success of the PACE program. We also want to

emphasize the importance of regular communication from family members

and other caregivers and health care workers in the home. It is

critical that these individuals routinely report changes in participant

status to the multidisciplinary team.

Consistent with the Protocol, we are requiring that the following

members of the team be employees of the PACE organization: primary care

physician (unless an exception is granted), registered nurse, social

worker, recreational therapist or activity coordinator, PACE center

manager, home care coordinator, and PACE center personal care

attendants. It is important to note that ``personal care attendants''

in this context refers to individuals who work in the PACE center to

provide assistance to participants while they are at the center (e.g.,

assist medical staff, escort participants, bathe and toilet

participants) and does not refer to personal care attendants who

provide care to participants outside of the PACE center. Personal care

attendants who work in the home are not required to be employees of the

PACE organization.

HCFA and the State administering agency may grant a waiver of the

requirement that the primary care physician be employed by the PACE

organization if they determine that--

There are not enough physicians in the PACE organization's

service area who meet the PACE requirements or State licensing laws

make it inappropriate for the organization to employ physicians; and

The proposed alternative does not adversely affect the

availability or the quality of care that is provided to participants.

If an applicant seeking approval as a PACE organization believes a

waiver is warranted, it must include a request for the waiver in its

application and describe in detail the circumstances supporting the

request. For example, in a rural, Tribal, or urban Indian community the

number of PACE participants, or the availability of primary care

physicians, may be insufficient to make employment by the organization

a feasible option. As another example, some State licensing laws

prohibit the corporate practice of medicine, making it inappropriate

for the organization to employ physicians. Such applicants would need

to demonstrate that their contracts with physicians will maintain the

continuity of care and assure sufficient availability of services so

that participants receive prompt, effective care. We invite

[[Page 66250]]

comments on whether this waiver provision is too broadly defined.

Participant Assessment (Sec. 460.104)

The information obtained through the participant assessment is the

basis for the treatment plan developed by the multidisciplinary team.

As such, it is important that the assessment be as comprehensive as

possible, in order to capture all of the information necessary for the

multidisciplinary team to develop a plan of care that will adequately

address all of the participant's functional, psychosocial, and health

care needs.

The assessment process begins before enrollment, as set forth in

Sec. 460.152, when the PACE organization evaluates whether a potential

participant can be cared for appropriately in the program. Often,

current PACE demonstration programs present a proposed plan of care to

the potential participant as part of the enrollment process. The

initial comprehensive assessment must be completed promptly following

enrollment, but individual team members' in-person assessment of the

participant should be scheduled at appropriate intervals based on the

participant's level of health. Because the initial assessments are

thorough, this will ensure that the participant is not overwhelmed with

several team members conducting assessments at one time. However, the

initial comprehensive assessment must be completed quickly so that the

plan of care can be completed and implemented without delay. This often

has been accomplished by the effective date of enrollment and should

never be delayed more than a few days beyond that date. With the team

concept, the goal is to obtain input from each discipline, as well as

from the participant, to perform an assessment that identifies the

services necessary to address the participant's needs and care

preferences.

As part of the initial comprehensive assessment, each of the

following members of the multidisciplinary team must individually

evaluate the participant in person and develop a discipline-specific

assessment of the participant's health and social status:

Primary care physician;

Registered nurse;

Social worker;

Physical therapist or occupational therapist, or both;

Recreational therapist or activity coordinator;

Dietitian; and

Home care coordinator.

These individuals represent the most vital components of the

participant's treatment and psychosocial development. These disciplines

are the core needed to determine the specific needs of the participant.

At the recommendation of individual team members, other professional

disciplines (e.g., speech-language pathology, dentistry, or audiology)

may participate in the initial comprehensive assessment if the

participant's needs warrant their inclusion.

HCFA is currently in the preliminary stages of developing a

standardized core assessment instrument to be used by PACE

organizations for continuous quality improvement. Until such time as

this instrument is completed, we are requiring that the participant's

assessment include, at a minimum, the following information:

physical and cognitive function and ability;

medication use;

participant and caregiver preferences for treatment;

socialization and availability of family support;

current health status and treatment needs;

nutritional status;

home environment, including home access and egress;

participant behavior;

psychosocial status;

medical and dental status; and

participant language.

We believe that this information will provide a basic framework

from which a comprehensive plan of care can be developed. This

assessment is appropriate for every participant, and ensures that the

plan of care focuses on the participant's medical, psychosocial, and

functional needs. However, this list represents the minimum information

to be included in the comprehensive assessment, and the PACE

organization is encouraged to include other assessment items as

necessary. HCFA may impose additional or more specific assessment

requirements upon development of the standardized core assessment

instrument.

The Protocol requires that the discipline-specific plans be

consolidated into a single plan of care for the participant. The

development of the plan of care must occur through discussion and

consensus of the entire multidisciplinary team. We are clarifying this

requirement by stating that the discussion must take place during team

meetings, in order to facilitate group discussion of the plan of care

and ensure that all members of the team are actively involved in the

decision-making process, and that the plan of care must be completed

promptly.

In developing the plan of care, the PACE multidisciplinary team is

also required to inform female participants that they are entitled to

choose a women's health specialist from the network of PACE providers.

We have included this requirement to be in compliance with the

Consumer's Bill of Rights and Responsibilities (discussed in more

detail later in this preamble in the section on participant rights).

This requirement is intended to ensure that female participants are

able to select providers who specialize in women's health for routine

and preventive care.

Reassessments are necessary to provide information to adjust

participants' plans of care. Periodic reassessments ensure the

continued accuracy and effectiveness of the participant's plan of care.

Consistent with the Protocol, we are requiring the following members of

the multidisciplinary team to conduct an in-person reassessment on at

least a semi-annual basis:

Primary care physician;

Registered nurse;

Social worker;

Recreational therapist or activity coordinator; and

Other team members actively involved in the development or

implementation of the participant's plan of care, for example, home

care coordinator, physical therapist, occupational therapist, or

dietitian.

The primary care physician, registered nurse, social worker, and

recreational therapist/activity coordinator are required to provide

assessments at least semi-annually as they are the most critical in

terms of defining outcomes of care. Other team members actively

involved in the participant's plan of care must also reassess

semiannually, as they have an impact on the care the participant is

receiving. If the participant is not receiving these other services

(e.g., home care, physical therapy, occupational therapy, dietitian

services), these members of the team would not be required to conduct a

semi-annual assessment.

Consistent with the Protocol, we are requiring the following

members of the multidisciplinary team to conduct an in-person

reassessment on at least an annual basis:

Physical therapist and/or occupational therapist;

Dietitian; and

Home care coordinator.

It is important for the multidisciplinary team to monitor and

respond to any changes in a participant's condition or family situation

or any concerns raised by the

[[Page 66251]]

participant or his or her designated representative. The Protocol

requires that the participant be reassessed by the team or by selected

members of the team to develop a new plan of care when the health

status or psychosocial situation of a participant changes. We believe

that at least all members of the multidisciplinary team that are

required to perform the initial comprehensive assessment should

reassess the participant. If fewer members participate in this

reassessment, a critical component of a participant's care might be

overlooked.

If a participant's health or psychosocial status has changed or if

a participant (or his or her designated representative) believes that a

particular service needs to be initiated, continued, or eliminated for

the participant, the appropriate multidisciplinary team members must

reassess the participant. The purpose of this reassessment is to

evaluate whether it is necessary to increase, continue, reduce, or

terminate particular services and whether a different course of

treatment is needed. A complete reassessment should ensure that the

participant is receiving a continuing program of care that meets his or

her current needs. Requiring a reassessment based on the concerns of

the participant emphasizes the active role the participant plays in the

assessment process and subsequent development of the plan of care. The

participant's adherence to the plan is critical to the successful

delivery of services. Therefore, permitting the participant (or

designated representative) to trigger a reassessment gives participants

the opportunity to express any dissatisfaction with the manner in which

any care or services will be furnished.

The PACE organization is required to have explicit procedures for

timely resolution of requests from participants (or designated

representatives) to initiate, continue, or terminate a particular

service. Unless an extension is granted, the multidisciplinary team

must notify the participant (or designated representative) of its

decision to approve or deny the request as expeditiously as the

participant's condition requires, but no later than 72 hours after the

multidisciplinary team receives the request. We considered establishing

both a standard process and an expedited process for responding to a

participant request; however, because of the frailty of this

population, we concluded that every request is urgent and requires a

quick response. We want to ensure that a participant's health is not

adversely affected due to a delay in reassessing the participant's

condition. The goal of the program is to maximize the participant's

functioning, and a quick response is meant to ensure that all factors

are evaluated, all necessary services are being furnished, and

participant health is not compromised. A timely notification also

allows participants adequate time to consider appeal rights, if

necessary, without compromising their health.

The multidisciplinary team may extend the 72-hour timeframe by no

more than 5 additional days if the participant or designated

representative requests the extension, or the team documents its need

for additional information and how the delay is in the interest of the

participant. An extension could be warranted because not all the

appropriate members of the multidisciplinary team may always be able to

meet with the participant, conduct a discipline-specific reassessment,

discuss the results of the reassessment with the entire

multidisciplinary team, and develop a response to the request within 72

hours. The PACE organization retains the flexibility to determine the

most appropriate manner in which to provide notification to the

participant (or designated representative).

If, based on the reassessment, the multidisciplinary team decides

to deny the participant's request, the denial must be explained to the

participant (or designated representative) orally and in writing. The

PACE organization must provide the specific reasons for the denial in

understandable language.

If the participant (or designated representative) is dissatisfied

with the outcome of the reassessment, the participant may appeal the

decision in accordance with Sec. 460.122. Specifically, the PACE

organization must: (1) Inform the participant or designated

representative of his or her right to appeal the decision; (2) describe

both the standard and expedited appeals processes, including the right

to and conditions for obtaining an expedited appeal of a denial of

services; and (3) describe the right to and conditions for continuation

of contested services through the period of the appeal.

If the multidisciplinary team fails to provide the participant with

timely notice of the resolution of the request for reassessment or does

not furnish the services required by the revised plan of care, this

failure constitutes an adverse decision, and the participant's request

must be automatically processed as an appeal by the PACE organization

in accordance with Sec. 460.122.

Team members who reassess a participant must reevaluate the plan of

care. Any changes in the plan of care must be discussed and approved by

the multidisciplinary team and the participant (or designated

representative). The plan of care reflects the team's and participant's

goals for the participant's care. Obtaining the participant's approval

of the proposed plan of care is important to the successful delivery of

services and the participant's adherence to the plan.

In addition, we also require that any services included in the

revised plan of care as a result of a reassessment must be furnished to

the participant as expeditiously as the participant's health condition

requires. It is critical that care not be delayed and that the

participant receive comprehensive care that maintains his or her

functional status. Because we recognize that some changes in the

participant's plan of care (e.g., installing a wheelchair ramp at the

participant's home) may require more time to accomplish, we have chosen

not to specify a timeframe for delivering services. However, we are

soliciting comment on the necessity of requiring a specific timeframe.

Whenever a participant assessment or reassessment occurs, the

information must be documented in the participant's medical record.

Plan of Care (Sec. 460.106)

Based on Part IV, section B of the Protocol, we developed

requirements for the participant's plan of care. We are requiring that

the multidisciplinary team promptly develop a comprehensive plan of

care that specifies the care needed to meet the participant's medical,

physical, emotional, and social needs, as identified in the initial

comprehensive assessment. The plan of care must identify measurable

outcomes to be achieved and must be developed in collaboration with the

participant and her or his caregiver. The specified outcomes need not

be discipline-specific. Instead, these are team goals for the

participant's care. Involving the participant in the plan of care is

important to the successful delivery of services and the participant's

adherence to the plan.

We are requiring the team to implement, coordinate, and monitor the

plan of care by providing services directly and supervising the

delivery of services furnished by contract providers. The participant's

health and psychosocial status, as well as the effectiveness of the

plan of care, must be monitored continuously through the provision of

services, informal observation, input from participants and caregivers,

and communications among

[[Page 66252]]

members of the multidisciplinary team and other providers.

We are requiring that, on at least a semiannual basis, the

multidisciplinary team reevaluate the participant plan of care,

including the defined outcomes, and make changes as necessary.

Semiannual review of the participant's plan of care ensures that the

needs of the participant are being met. It allows the team to determine

if the participant's level of health has changed thus dictating a

change in the level of services or even the setting in which care must

be provided.

We are requiring that participant plans of care be developed,

reviewed, and reevaluated in collaboration with the participants or

caregivers. The purpose of participant/caregiver involvement is to

assure that they approve of the care plan and that participant concerns

are addressed. We are giving PACE organizations the flexibility to

determine how often care plans should be reviewed with the participant.

We welcome comments on the issue of whether or not to impose a

timeframe for this activity.

The participant's plan of care and any changes in the plan must be

documented in the participant's medical record.

Subpart G--Participant Rights

(Sections 460.110-460.118)

Introduction

In accordance with sections 1894(b)(2)(B) and 1934(b)(2)(B) of the

Act, the PACE program agreement requires the PACE organization to have

in effect, ``written safeguards of the rights of enrolled participants

(including a patient bill of rights and procedures for grievances and

appeals) in accordance with regulations and with other requirements of

this title and Federal and State law that are designed for the

protection of patients.'' In addition, sections 1894(f)(3) and

1934(f)(3) of the Act give us the discretion to apply such requirements

of part C of title XVIII and sections 1903(m) and 1932 of the Act

relating to protection of beneficiaries and program integrity as would

apply to Medicare+Choice organizations under part C and to Medicaid

managed care organizations under prepaid capitation agreements under

section 1903(m). Moreover, sections 1894(f)(2) and 1934(f)(2) of the

Act require us to incorporate the requirements in the PACE protocol

which includes a patient bill of rights.

We also have made every effort to assure that the rights and

protections established in the PACE agreement are in substantial

compliance with the Presidential Advisory Commission's (The Commission)

Consumer Bill of Rights and Responsibilities (CBRR), which appears as

an addendum to The Commission's Final Report to the President, entitled

Quality First: Better Health Care for All Americans (March 1998). (A

copy of the Final Report can be obtained by calling the Agency for

Health Care Policy and Research, Department of Health and Human

Services at 1-800-358-9295.) The President issued an Executive

Memorandum to the Secretary of the Department of Health and Human

Services dated February 20, 1998, which requires that, by December 31,

1999, Medicare and Medicaid health care programs be brought into

substantial compliance with the CBRR. The PACE program is included

within that framework.

In considering how to apply these patient protections, the statute

requires that we take into account the differences between the

populations served and benefits provided under PACE, Medicare+Choice,

and Medicaid managed care. We believe that the PACE program is unique

in its approach to meeting the needs of the frail elderly. Unlike most

managed care organizations which are responsible for meeting health

care needs alone, the PACE program is an integrated partnership between

the individual, the community, and the PACE organization, which is

dedicated to providing all-inclusive care to meet all medical and

social needs to enable the participant to remain in the community.

We believe it is important to establish participant rights that

reflect the differences in the PACE delivery approach from that of

other managed care systems. For example, since PACE participants

receive services most days of the week, either at the PACE center or

through home visits, PACE organizations are able to monitor changes in

a participant's medical condition and social service needs on a daily

basis. When PACE participants are referred to contracted specialists,

in most cases, the PACE organization makes the appointment, provides

transportation, and often provides an aide or other staff member to

accompany the participant. While managed care organizations may provide

this level of care management to some enrollees, PACE organizations do

so routinely for their entire participant census. Also, while managed

care organizations furnish a selected array of medical services, they

do not furnish all-inclusive care, including social and recreational

services intended to enhance participants' quality of life.

To reiterate the philosophy set forth in the PACE Protocol, the

PACE organization furnishes comprehensive services designed to: (1)

enhance the quality of life and autonomy for frail, older adults; (2)

maximize dignity and respect of older adults; (3) enable frail, older

adults to live in their homes and in the community as long as medically

and socially feasible; and (4) preserve and support the older adult's

family unit. The bill of rights for PACE participants must complement

and maintain this philosophy. We have relied on the PACE Protocol and

incorporated the basic rights that it identifies. However, we are also

guided by the Medicare+Choice regulations and by the CBRR.

We also recognize that the statute directs us to consider State

law. We have interpreted this to mean that a PACE organization's

participant bill of rights may include additional rights and

protections as required by State or local laws and regulations or

ethical considerations of particular concern, but only if these

additions or modifications provide stronger rights and protections than

those established in this regulation. Regardless, it is up to the PACE

organization to establish appropriate policies and procedures for

assuring that the participant bill of rights is fully operational

throughout the PACE organization.

Consistent with the Protocol and the CBRR, we have retained the

concept that participants can choose to be represented by family

members, caregivers, or other representatives. We intend that a

participant may designate a representative to exercise any or all of

the rights to which the participant is entitled.

We are requiring, as did the Protocol, the PACE organization to

provide encouragement and assistance to participants in understanding

and exercising their rights and in recommending changes in PACE

policies and services. In addition, it is likely that many of the frail

elderly or their chosen representatives will need guidance in

navigating the pre-enrollment, enrollment, and post-enrollment

processes of PACE. In the previous discussion on consultations with the

State Administration on Aging, we referred to the State Long Term Care

Ombudsman Programs. These State programs promote and monitor the

quality of care in nursing homes, including identifying and resolving

complaints, making regular visits to nursing homes, and generally,

improving the quality of care and

[[Page 66253]]

quality of life of nursing home residents. The role of the ombudsman is

to engage in a variety of activities designed to encompass both active

advocacy and representation of residents' interests. We are

specifically requesting public comment on whether the ombudsman program

could play a role in consumer assistance to potential PACE

participants, as well as to those who have disenrolled and need

assistance in organizing their care. With regard to PACE participants,

we are also interested in receiving public input as to whether an

ombudsman could provide one-on-one consumer assistance to PACE

participants and their designated representatives to exercise their

rights and work effectively with the multidisciplinary team.

In Sec. 460.110, we require a PACE organization to have a written

participant bill of rights that is designed to protect and promote the

rights of each participant. The organization is required to inform

participants upon enrollment, in writing, of their rights and

responsibilities, and all rules and regulations governing

participation. In addition, the organization must protect participants'

rights and provide for the exercise of those rights.

Finally, there are numerous references throughout the regulations

to the PACE organization furnishing various kinds of information to

participants in writing. In order for this information to be

understandable and useful, it must be presented in a legible format.

The frail elderly PACE population would be expected to have vision

problems that make the use of sufficiently large, clear type

particularly important in written communications. While we are not

mandating the use of a particular typeface or font size, we expect PACE

organizations to ensure that documents are legible for their intended

audience.

Specific Participant Rights

Right #1--Respect and nondiscrimination. Each participant

has the right to considerate, respectful care from all PACE employees

and contractors at all times and under all circumstances. Each

participant has the right not to be discriminated against in the

delivery of required PACE services based on race, ethnicity, national

origin, religion, sex, age, mental or physical disability, or source of

payment.

The individual's right to respect and nondiscrimination is embedded

in the basic philosophy of the PACE program. Within this context, it is

essential that PACE participants are assured of the following rights:

(1) To receive comprehensive health care in a safe and clean

environment and in an accessible manner.

(2) To be treated with dignity and respect, be afforded privacy and

confidentiality in all aspects of care, and be provided humane care.

(3) Not to be required to perform services for the PACE

organization.

(4) To have reasonable access to a telephone.

(5) To be free from harm, including physical or mental abuse,

neglect, corporeal punishment, involuntary seclusion, excessive

medication, and any physical or chemical restraint imposed for purposes

of discipline or convenience and not required to treat the

participant's medical symptoms.

(6) To be encouraged and assisted to exercise rights as a

participant, including the Medicare and Medicaid appeals processes as

well as civil and other legal rights.

(7) To be encouraged and assisted to recommend changes in policies

and services to PACE staff.

The following discussion provides the rationale for inclusion of

these rights. In keeping with the PACE model, we recognize the

participant's right to receive comprehensive care in a safe and clean

environment and in an accessible manner. The Protocol states that a

PACE participant must receive treatment and rehabilitative services. We

have expanded this requirement to state that the participant has a

right to receive comprehensive health care. The PACE organization must

offer and manage all health, medical, and social services needed to

restore or preserve the participant's independence. The PACE

multidisciplinary team must arrange for preventive, rehabilitative,

curative, and supportive services in adult day health centers,

participant homes, hospitals, and nursing homes. The revised language

addresses the complete range of services in each setting that a

participant is entitled to, once enrolled in the PACE organization.

The Protocol stipulates that the participant has the right to have

dignity, privacy, and humane care. For purposes of clarification, we

require the PACE organization to treat the participant with dignity and

respect, to afford the participant privacy and confidentiality in all

aspects of care, and to provide humane care. The PACE organization must

assure that a participant's dignity and privacy are respected not only

in its own facilities but also in affiliated or contract providers.

Staff should be instructed that any discussions with participants

regarding treatment, the participant care plan, and medical conditions

should be held in private and kept confidential. While recognizing the

participant's right to privacy and confidentiality, we are not

advocating physical barriers because participants should be in the view

of the staff at all times to ensure safety. However, in situations

where there is participant body exposure during treatment, the staff

should be instructed to provide temporary screens or curtains.

We have adopted from the Protocol the right to be free from harm,

including physical or mental abuse, neglect, corporeal punishment,

involuntary seclusion, excessive medication, and inappropriate use of

physical or chemical restraints. We have revised the wording used in

the Protocol regarding the use of restraints. We do not view this as a

policy change from the protocol, but felt the rewording was necessary

to emphasize that the use of restraints must be limited to those

situations with adequate, appropriate clinical justification. The use

of restraints must be based on the assessed needs of the patient, be

monitored and reassessed appropriately, and be ordered for a defined

and limited period of time. The least restrictive and most effective

method available must be utilized and it must conform to the patient's

plan of care. Restraints may only be used as a last resort and must be

removed or ended at the earliest possible time. We do not believe that

restraints of any kind should ever be used as a preferred approach to

care and we expect PACE organizations to ensure that their programs are

``restraint free'' to the greatest extent possible. Specific

requirements regarding the use of restraints are established in

Sec. 460.114.

We are in the midst of examining our seclusion and restraint policy

for all HCFA-covered providers. We call your attention to the

discussion of the use of seclusion and restraints in the HCFA interim

final rule with comment concerning the conditions of participation for

hospitals (HCFA-3018-IFC, published July 2, 1999, 64 FR 36070). In that

regulation, we have established very explicit standards for the use of

seclusion and restraints both in medical/surgical care and for behavior

management (see Sec. 482.13(e) and (f)). While the standards are not

identical to those we have included in Sec. 460.114, they share the

common principle that patients have the right to be free from

restraints of any form that are not medically or psychiatrically

necessary or are used as means of coercion, discipline, convenience, or

retaliation by staff. In the preamble for the hospital conditions of

participation, we indicate our intent to examine the

[[Page 66254]]

applicability of the hospital restraint and seclusion standards to

other providers. Therefore, we formally ask for comments about how best

to extend the protections proposed for hospital patients to

participants in the PACE program.

We have also adopted the rights established in the Protocol to

encourage and assist the participant to exercise his or her rights,

including the Medicare and Medicaid appeals processes, as well as civil

and legal rights and we have maintained the right to telephone access.

On the other hand, we have altered the right not to be required to

perform services for the organization unless the services are included

for therapeutic purposes in the plan of care. Upon reflection, it is

our belief that a therapeutic program should not be tied to performing

services for the PACE organization.

The CBRR specifies that organizations should not discriminate on

the basis of race, ethnicity, national origin, religion, sex, age,

mental or physical disability, or source of payment. PACE organizations

are required to comply with all Federal, State, and local laws,

including discrimination statutes with regard to marketing, enrollment,

and provision of services. However, we recognize that, with regard to

health status considerations, PACE organizations are required as part

of the intake process to assess whether a potential participant is

appropriate for PACE, that is, meets the State's nursing home

eligibility standard but can be cared for in the community. Meeting

required certification standards within the PACE context is not deemed

a violation of antidiscrimination laws. Still, in order to ensure that

the qualification decision is free from other, illegal forms of

discrimination, we are requiring PACE organizations to retain

information on individuals who are assessed but, for whatever reason,

are not enrolled.

Right #2--Information disclosure. Each PACE participant

has the right to receive accurate, easily understood information and to

receive assistance in making informed health care decisions.

Specifically, each participant has the right:

(1) To be fully informed in writing of the services available from

the PACE organization, including identification of all services that

are delivered through contracts, rather than furnished directly by the

PACE organization--

(A) Before enrollment;

(B) At enrollment; and

(C) When there is a change in services.

(2) To have the enrollment agreement, described in Sec. 460.154,

fully explained in a manner understood by the participant.

(3) To examine, or upon reasonable request, to be assisted to

examine the results of the most recent review of the PACE organization

conducted by HCFA or the State administering agency and any plan of

correction in effect.

In order for consumers, independently or in concert with their

designated representatives, to make rational decisions, they need

accurate, reliable information that will allow them to assess

differences in their health care options, including information

critical to their initial decision to enroll in PACE and whether to

remain in PACE. The CBRR provides for comprehensive information to be

provided to consumers in three basic categories: health plan

information; health professional information; and health care

facilities. Topics addressed include benefits, cost-sharing, dispute

resolution, consumer satisfaction and plan performance information,

network characteristics, care management information, corporate

organization, etc. The CBRR indicates that certain information should

be provided routinely with the remaining information available upon

request.

Information that is provided to potential enrollees is addressed in

more detail in the sections on marketing (Sec. 460.82) and enrollment

(Sec. 460.154). With regard to participant rights, we have linked the

right to information disclosure to the information that is included in

the enrollment agreement. The PACE organization must explain the

enrollment agreement in a manner understood by the participant to

ensure that all participants fully comprehend their rights and

responsibilities from the beginning of their relationship with the PACE

organization. Among the items in the enrollment agreement are: an

acknowledgment that the participant understands that the PACE

organization is the participant's sole service provider; a description

of PACE services available and how services are obtained from the PACE

organization; the procedures for obtaining emergency and urgently

needed out-of-network services; information on the grievance and

appeals processes; conditions for disenrollment; description of

participant premiums, if any, and procedures for payment of premiums.

We are requiring that the PACE organization inform participants

whenever changes occur in the services available from the PACE

organization.

The enrollment agreement also indicates that the PACE organization

has a program agreement with HCFA and the State administering agency

that is subject to renewal on a periodic basis. In order to provide

participants with information on the status of their organization's

agreement, PACE participants have the right to examine the results of

the most recent review of the PACE organization conducted by HCFA and

the State administering agency and any plan of correction in effect.

We are also requiring in Sec. 460.60(d), that changes in the

organizational structure of the PACE provider be approved in advance by

HCFA and the State administering agency. Once approved, information

about changes in organizational structure will be forwarded to the

consumer advisory committee for dissemination to participants as

appropriate. In this way, participants will be kept informed about the

organizational structure of the PACE provider and may determine if any

organizational changes made by the PACE organization affect their

continued enrollment in PACE.

Right #3--Choice of providers. Each participant has the

right to a choice of health care providers, within the PACE

organization's network, that is sufficient to ensure access to

appropriate high-quality health care. Specifically, each participant

has the right:

(1) To choose his or her primary care physician and specialists

from within the PACE network.

(2) To request that a qualified specialist for women's health

services provide routine or preventive women's health services.

(3) To disenroll from the program at any time.

The right to access specialists must be seen in the context of the

PACE model. Active involvement by participants in care planning in

conjunction with a multidisciplinary team approach to care management

and service delivery are fundamental aspects of the PACE model of care.

In fact, although sections 1894(f)(2)(B) and 1934(f)(2)(B) of the Act

provide for waiver of certain provisions of the protocol, use of the

multidisciplinary team approach may not be waived. Development of a

participant's plan of care begins with a comprehensive assessment.

Participant preferences for care are identified components of the

assessment. Once the plan of care is developed, the team is required to

continuously monitor the effectiveness of the plan in collaboration

with participants.

Moreover, the team is required to develop, review, and reevaluate

the plan of care in collaboration with the participant to ensure there

is agreement

[[Page 66255]]

with the plan of care and that participant concerns are addressed.

These provisions complement the participant rights to participate in

treatment decisions, to be fully informed of his or her functional

status by the multidisciplinary team, to participate in the development

and implementation of the plan of care, and to make health care

decisions, including the right to refuse treatment and to be informed

of the consequences of the decisions.

It is in this context that the determination with regard to the

need for specialty care is made by the multidisciplinary team and the

participant. If there is disagreement, then the participant has the

right to engage the dispute resolution process. Regardless, the

multidisciplinary team is expected to give ample consideration to a

participant's request to see a specialist and to objectively determine

whether such visits are necessary to meet the needs described in the

plan of care. To further emphasize access to a woman's health care

specialist within the context of the PACE model, we have identified

such a request as one of the participant preferences that must be

considered in developing the plan of care.

The CBRR asserts that consumers with complex or serious medical

conditions who require frequent specialty care should have direct

access to a qualified specialist of their choice within a plan's

network of providers. Authorizations, when required, should be for an

adequate number of direct access visits under an approved treatment

plan. We believe that central to the PACE model, with its reliance on

an all-inclusive plan of care that is derived by a multidisciplinary

team in collaboration with the participant, is the organization's

interest in ensuring that participants obtain the care they need,

including specialty care, in the easiest and most efficient manner

possible. A participant who needs a course of therapy with a specialist

will have that need reflected in his or her plan of care and would

receive that care for the duration and number of visits specified in

the plan. In light of the requirements elsewhere in this rule

concerning the development and management of the plan of care, we

believe it would be redundant to include an explicit requirement that

would mirror this CBRR provision, and have, therefore, not included

such a requirement.

With regard to having a choice of primary care physician and

specialists, the PACE organization is required to maintain sufficient

staff and contractors to meet the needs of its participants. Given the

participant census of PACE organizations, it is most likely that choice

will be limited. PACE organizations likely will start out with one of

each type of specialist and perhaps only one primary care physician.

Although CBRR includes the right to choose among physicians in the

provider's network, it was aimed at managed care organizations with

thousands of patients and numerous providers. Such is not the case with

the PACE model. Potential participants must weigh the limited network

of PACE organizations with the benefits of a comprehensive, all-

inclusive delivery system in choosing to enroll.

CBRR provides a right to transitional care for patients who are

undergoing an extensive course of treatment for a chronic or disabling

condition. As we discuss in greater detail in the section on the

enrollment process, potential participants must be advised that the

PACE organization is the participant's sole source provider and that

the organization guarantees access to services, but not to a specific

provider. As a result, PACE employees and specialists under contract

are expected to provide as much advance notice as possible of their

decision to terminate their relationship with the PACE organization in

order to provide sufficient time for the organization to secure a

replacement. In addition, the PACE organization and its contractors are

expected to provide as much advance notice as possible of a decision to

terminate a contract in order to provide for an orderly transition for

participants. We are requesting public input on the propriety of

establishing a contract requirement to ensure a minimum transition

period.

Right #4--Access to emergency services. Each participant

has the right to access emergency health care services when and where

the need arises without prior authorization by the PACE

multidisciplinary team.

In addition to establishing a participant right to emergency

services without prior authorization, we have described emergency care,

emergency medical condition, urgently needed services and post-

stabilization care services previously in the preamble in the section

regarding emergency care and in Sec. 460.100, consistent with the CBRR.

Right #5--Participation in treatment decisions. Each

participant has the right to fully participate in all decisions related

to his or her care. A participant who is unable to fully participate in

treatment decisions has the right to designate a representative.

Specifically, each participant has the right:

(1) To have all treatment options explained in a culturally

competent manner, and to make health care decisions, including the

right to refuse treatment, and be informed of the consequences of the

decisions.

(2) To have the PACE organization explain advance directives and to

establish them, if the participant so desires, in accordance with

Secs. 489.100 and 489.102 of this chapter.

(3) To be fully informed of his or her health and functional status

by the multidisciplinary team.

(4) To participate in the development and implementation of the

plan of care.

(5) To request a reassessment by the multidisciplinary team.

(6) To be given reasonable advance notice, in writing, of any

transfer to another treatment setting and the justification for the

transfer (i.e., due to medical reasons or for the participant's welfare

or that of other participants). The PACE organization must document the

justification in the participant's medical record.

As noted previously, active involvement by participants and their

designated representatives in care planning is fundamental to the PACE

model of care. As a result, we have retained the rights in the Protocol

related to participant involvement in the development and

implementation of the plan of care. We retained the participant's right

to be fully informed by the multidisciplinary team of his or her health

and functional status. In support of this right, the PACE participant

must have, upon written request, access to all records pertaining to

herself or himself. Moreover, the team must provide care information in

a manner that is responsive to the culturally diverse populations whom

they serve. The PACE organization may need to develop strategies for

enhancing cultural competence in its staff such as increased use of

interpreters, incorporating in-house training programs, recruiting

culturally diverse staff or contractors, or establishing relationships

with organizations that provide technical assistance regarding cultural

aspects of health care.

The Protocol states that a participant has the right to refuse

treatment and be informed of the consequences of such refusal. The

Protocol also states that PACE participants can establish advance

directives and make health care decisions. We restructured these two

requirements in order to place greater emphasis on the participant's

right to make health care decisions and to clarify that the right to

refuse treatment

[[Page 66256]]

is a type of health care decision. We have maintained the participant's

right to make ad

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Medicare and Medicaid Programs; Programs of All-Inclusive Care for the Elderly (PACE) · 64 FR 66234 | Frix