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DDES Memo Series 2004-18

February 2, 2005

STATE OF WISCONSIN
Department of Health and Family Services
Division of Disability and Elder Services

To:
Area Administrators/ Human Services Area Coordinators
Bureau Directors
County Departments of Community Programs Directors
County Departments of Developmental Disabilities Services Directors
County Departments of Human Services Directors
County Departments of Social Services Directors
Facilities Serving People with Developmental Disabilities
Hospitals
Licensing Chiefs/Section Chiefs
Nursing Homes
Tribal Chairpersons/Human Services Facilitators

From: 
Sinikka Santala
Administrator

Document Summary

This numbered memo details changes in Wisconsin ’s interpretation of the federal PASARR regulations regarding “specialized services” and “services of a lesser intensity” for persons who have a mental illness.  For persons who have a developmental disability, there is no change in interpretation or policy regarding specialized services.

Background

Federal PASARR regulations:
42 CFR 483.120 (federal PASARR regulations) Specialized services.
(a) Definition-(1) For mental illness, specialized services means the services specified by the State which, combined with services provided by the NF, results in the continuous and aggressive implementation of an individualized plan of care that-

(i) Is developed and supervised by an interdisciplinary team, which includes a physician, qualified mental health professionals and, as appropriate, other professionals.

(ii) Prescribes specific therapies and activities for the treatment of persons experiencing an acute episode of serious mental illness, which necessitates supervision by trained mental health personnel; and

(iii) Is directed toward diagnosing and reducing the resident's behavioral symptoms that necessitated institutionalization, improving his or her level of independent functioning, and achieving a functioning level that permits reduction in the intensity of mental health services to below the level of specialized services at the earliest possible time.

(2) For mental retardation, specialized services means the services specified by the State which, combined with services provided by the NF or other service providers, results in treatment which meets the requirements of § 483.440(a)(1).

(b) Who must receive specialized services.
The State must provide or arrange for the provision of specialized services, in accordance with this subpart, to all NF residents with MI or MR whose needs are such that continuous supervision, treatment and training by qualified mental health or mental retardation personnel is necessary, as identified by the screening provided in § 483.130 or §§ 483.134 and 483.136.

(c) Services of lesser intensity than specialized services. 
The NF must provide mental health or mental retardation services which are of a lesser intensity than specialized services to all residents who need such services.

Federal ICF/MR regulation's definition of active treatment:
42 CFR 483.440 Condition of participation: Active treatment services.
(a) Standard: Active treatment. (1) Each client must receive a continuous active treatment program, which includes aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services described in this subpart, that is directed toward -

(i) The acquisition of the behaviors necessary for the client to function with as much self determination and independence as possible; and

(ii) The prevention or deceleration of regression or loss of current optimal functional status.

(2) Active treatment does not include services to maintain generally independent clients who are able to function with little supervision or in the absence of a continuous active treatment program.

DHS interpretation of the federal definition of specialized services for persons who have a developmental disability:
The federal PASARR definition of specialized services for persons who have a developmental disability is unambiguous by cross-referencing to the ICF/MR requirement for active treatment. Ch. HFS 132.695, Wis. Admin. Code, provides specific requirements for nursing facilities to meet regarding active treatment for persons who have a developmental disability.

Current interpretations of the federal definition of specialized services for persons who have a serious mental illness:
The Department's current interpretation of specialized services for persons who have a serious mental illness is more stringent than is required by the federal PASARR regulations. The federal PASARR definition of specialized services for persons who have a serious mental illness essentially is the same as the ICF/MR definition of active treatment. We did not make a distinction in the needs of persons who have a serious mental illness and who require inpatient psychiatric hospitalization versus persons who have a serious mental illness and who have significant impairments to their ability to function independently but do not require inpatient hospitalization.

CMS staff and most other states have interpreted the federal definition of specialized services for persons who have a serious mental illness to mean that a person's mental illness symptoms are so intense as to require inpatient psychiatric hospitalization until the intensity of the symptoms is reduced to a level no longer requiring this level of care. This interpretation is supported by the dictionary definition of the word "acute", which in the Merriam-Webster Online Dictionary is defined, in part, as:

1 a (1) : characterized by sharpness or severity <acute pain> (2) : having a sudden onset, sharp rise, and short course <acute disease> b : lasting a short time <acute experiments>
5 : felt, perceived, or experienced intensely <acute distress>
6 : seriously demanding urgent attention

Based on text in the preamble to the PASARR regulations and a desire to have the meaning of specialized services the same for both persons who have a developmental disability and a serious mental illness, Wisconsin chose to interpret the definition of specialized services for persons who have a serious mental illness more broadly/stringently. This interpretation also is supported by the dictionary definition of "acute" (see #5 and 6 above).

Proposed policy change:
We will amend our PASARR policies and documents to permit three options:

1. Specialized services, which will mean the person requires inpatient psychiatric hospitalization, consistent with the CMS interpretation of the PASARR regulations.

2. Specialized psychiatric rehabilitation services (SPRS), which will mean the services determined by the comprehensive assessment and the (SPRS) care plan necessary to prevent avoidable physical and mental deterioration and to assist clients in obtaining or maintaining their highest practicable level of functional and psycho-social well being. SPRS shall include:

a) The client's regular participation, in accordance with their SPRS care plan, in professionally developed and supervised activities, experiences and therapies; and

b) Activities, experiences and therapies that reduce the resident's psychiatric and behavioral symptoms, improve the level of independent functioning, and achieve a functional level that permits reduction in the need for intensive mental health services.

3. Neither specialized services nor specialized psychiatric rehabilitation services.

Implications of the policy change:
The impact of this change in terms and policies on individuals is dependent on the prior results of their PASARR process (see Attachment 1 for definitions):

Under this change, a nursing facility resident who has a serious mental illness and is identified as needing specialized services may be involuntarily relocated if the individual has resided in a nursing facility for less than 30 months. Federal regulations prohibit states from involuntarily relocating an individual who has resided in a nursing facility for more than 30 months and needs specialized services. However, individuals may voluntarily place themselves in a hospital, or an emergency detention, or a third party may involuntarily commit such individuals. The Department estimates that no current nursing facility residents need acute inpatient psychiatric hospitalization.

Certain nursing facility residents whose specialized services will become specialized psychiatric rehabilitative services under this change may have to be involuntarily relocated from the nursing facility to the community because they do not need nursing facility level of care. The Department previously identified only seven individuals who might be affected by this policy change. These residents have been allowed to remain in a nursing facility because they currently receive specialized services and have resided in the nursing facility for more than 30 months. However, under the proposed change, these nursing facility residents will likely be determined to need specialized psychiatric rehabilitative services, not specialized services, and thus will lose their right to remain in the nursing facility under federal regulations. The Department will ensure that these individuals will be given due process including the opportunity to appeal a PASARR determination that results in a recommendation of relocation.

Currently, some nursing facilities categorically refuse to admit any person who requires specialized services, which is permitted under federal Medicaid regulations because the state, not a nursing facility, is responsible for the provision of specialized services. However, the federal Medicaid regulations identify the nursing facility as responsible for providing "services of a lesser intensity" or specialized psychiatric rehabilitative services. A nursing facility is permitted to refuse to admit or involuntarily relocate an individual whose needs cannot be met by the nursing facility, but this must be done based on an assessment of the individual's needs and an assessment of the facility's capacity (i.e., knowledge, skills, and resources) to meet the individual's needs.

CENTRAL OFFICE CONTACT: 
Dan Zimmerman
PASARR Contract Administrator
Bureau of Mental Health and Substance Abuse Services
1 West Wilson Street, room 850
P. O. Box 7851
Madison, WI 53707-7851
(608) 266-7072
(608) 267-7793 - fax
zimmeds@wisconsin.gov (E-mail address)

MEMO WEB SITE: 
http://www.dhs.wisconsin.gov/partners/local.htm

Attachments

____________________________________________________
Attachment 1

Definitions

Abbreviated Level II Screen. An abbreviated Level II screen is permissible when the PASARR contractor determines that a person has a severe medical condition, listed below, that so substantially affects the person's functioning that he/she is unable to participate in or benefit from specialized services at that time. A determination that a severe impairment exists will exempt the person from specialized services. The medical conditions are:

1) Terminal illness, meaning the individual has a medical prognosis that his/her life expectancy is 6 months or less if the illness runs its course;

2) Severe physical illnesses that result in a level of impairment so severe that the individual could not be expected to actively participate or benefit from specialized services, including, but not limited to coma, ventilator dependence, functioning at a brain stem level, chronic obstructive pulmonary disease, Parkinson's disease, Huntington's disease, amyotrophic lateral sclerosis, and congestive heart failure; and

3) Severe dementia (including Alzheimer's disease or a related disorder) that results in a level of impairment so severe that the individual could not be expected to actively participate in or benefit from specialized services.

Full Level II screen. A full Level II screen is a screen that completes all sections of the Level II screen, identifies the client's strengths and needs, provides treatment recommendations, and indicates the determination of the client's need for nursing facility placement and the client's need for specialized services.

Partial Level II Screen. A partial Level II screen is noted by the contractor when the contractor determines, after reviewing information submitted about an individual or after performing a face-to-face observation or evaluation, that one or more of the criteria in the federal definition of a serious mental illness or a developmental disability is not met. This determination may be made as soon as there is sufficient reliable data to warrant the determination. The determinations of the person's need for nursing facility placement and for specialized services are not made for persons who receive a Partial Level II screen as these determinations only apply to persons who are found to have a serious mental illness or a developmental disability.

No screen is needed. The contractor is not to complete a Level II screen for inappropriate referrals based on incorrectly completed Level I Screens. For example, if a facility refers a person for a Level II screen because the person receives Trazadone 50 mg. (an antidepressant) at bedtime. If it is determined that the medication is used to promote sleep and that other signs or symptoms of major depression are not evident, then the contractor should tell the facility to correct the Level I screen with a "no" response to question #2 in Section A.

Need for nursing facility placement. The determination that a person needs nursing facility placement is based applying the evaluation information of the person's strengths and needs to the following criteria:

1) The individual's total needs are such that they cannot be met in the community with supports and can be met only on an inpatient basis (i.e., a hospital, an institution for mental diseases (IMD), an intermediate care facility for the mentally retarded (ICF/MR), or a nursing facility); and

2) Among all types of inpatient placements, a nursing facility can best meet the individual's needs.

Specialized services for persons with a developmental disability. This term means services that meet the requirements of 42 CFR 483.440(a)(1) & (2), the definition of active treatment in the federal regulations for Intermediate Care Facilities for the Mentally Retarded (ICFs/MR):

Each client must receive a continuous active treatment program, which includes aggressive, consistent implementation of a program of specialized and generic training, treatment, health services and related services described in this subpart [ed. note: the subpart includes the entirety of the ICF/MR regulations], that is directed toward the acquisition of the behaviors necessary for the client to function with as much self determination and independence as possible; and the prevention or deceleration of regression or loss of current optimal functional status. Active treatment does not include services to maintain generally independent clients who are able to function with little supervision or in the absence of a continuous active treatment program.

Specialized services for persons with serious mental illness. This term means the services specified by the State which results in the continuous and assertive implementation of an individual plan of care that--

1) Is developed and supervised by an interdisciplinary team, which includes a physician, qualified mental health professionals and, as appropriate, other professionals;

2) Prescribes specific therapies and activities for the treatment of persons experiencing severe and persistent symptoms of a serious mental illness, which necessitates supervision by trained mental health personnel; and

3) Is directed toward diagnosing and reducing the individual's psychiatric/behavioral symptoms that necessitated institutionalization, improving his or her level of independent functioning, and achieving a functional level that permits reduction in the intensity of mental health services to below the level of specialized services at the earliest possible time.

Specialized psychiatric rehabilitative services (SPRS). This term means the services determined by the comprehensive assessment and the (SPRS) care plan necessary to prevent avoidable physical and mental deterioration and to assist clients in obtaining or maintaining their highest practicable level of functional and psycho-social well being. SPRS shall include:

1) The client's regular participation, in accordance with their SPRS care plan, in professionally developed and supervised activities, experiences and therapies; and

2) Activities, experiences and therapies that reduce the resident's psychiatric and behavioral symptoms, improve the level of independent functioning, and achieve a functional level that permits reduction in the need for intensive mental health services.

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