[Code of Federal Regulations]
[Title 42, Volume 3]
[Revised as of October 1, 2004]
From the U.S. Government Printing Office via GPO Access
[CITE: 42CFR442.40]

[Page 288-289]
 
                         TITLE 42--PUBLIC HEALTH
 
  CHAPTER IV--CENTERS FOR MEDICARE & MEDICAID SERVICES, DEPARTMENT OF 
                  HEALTH AND HUMAN SERVICES (CONTINUED)
 
PART 442_STANDARDS FOR PAYMENT TO NURSING FACILITIES AND INTERMEDIATE CARE 
FACILITIES FOR THE MENTALLY RETARDED--Table of Contents
 
                      Subpart B_Provider Agreements
 
Sec. 442.40  Availability of FFP during appeals for ICFs/MR.

    (a) Definitions. As used in this section--
    Effective date of expiration means the date of expiration originally 
specified in the provider agreement, or the later date specified if the 
agreement is extended under Sec. 442.16; and
    Effective date of termination means a date earlier than the 
expiration date, set by the Medicaid agency when continuing 
participation until the expiration date is not justified, because the 
facility no longer meets the requirements for participation.
    (b) Scope, applicability, and effective date--(1) Scope. This 
section sets forth the extent of FFP in State Medicaid payments to an 
ICF/MR after its provider agreement has been terminated or has expired 
and not been renewed.
    (2) Applicability. (i) This section and Sec. 442.42 apply only when 
the Medicaid agency, of its own volition, terminates or does not a renew 
a provider agreement, and only when the survey agency certifies that 
there is no jeopardy to recipient health and safety. When the survey 
agency certifies that there is jeopardy to recipient health and safety, 
or when it fails to certify that there is no jeopardy, FFP ends on the 
effective date of termination or expiration.
    (ii) When the State acts under instructions from CMS, FFP ends on 
the date specified by CMS (CMS instructs the State to terminate the 
Medicaid provider agreement when CMS in validating a State survey agency 
certification, determines that an ICF/MR does not meet the requirements 
for participation.)
    (3) Effective date. This section and Sec. 442.42 apply to 
terminations or expirations that are effective on or after September 28, 
1987. For terminations or nonrenewals that were effective before that 
date, FFP may continue for up to 120 days from September 28, 1987, or 12 
months from the effective date of termination or nonrenewal, whichever 
is earlier.
    (c) Basic rules. (1) Except as provided in paragraphs (d) and (e) of 
this section, FFP in payments to an ICF/MR ends on the effective date of 
termination of the facility's provider agreement, or if the agreement is 
not terminated, on the effective date of expiration.
    (2) If State law, or a Federal or State court order or injunction, 
requires the agency to extend the provider agreement or continue 
payments to a facility after the dates specified in paragraph (d) of 
this section, FFP is not available in those payments.
    (d) Exception: Continuation of FFP after termination or expiration 
of provider agreement--(1) Conditions for continuation. FFP is available 
after the effective date of termination or expiration only if--
    (i) The evidentiary hearing required under Sec. 431.153 of this 
chapter is provided by the State agency after the effective date of 
termination or expiration (or, if begun before termination or 
expiration, is not completed until after that date); and
    (ii) Termination or nonrenewal action is based on a survey agency 
certification that there is no jeopardy to recipients' health and 
safety.

[[Page 289]]

    (2) Extent of continuation. FFP is available only through the 
earlier of the following:
    (i) The date of issuance of an administrative hearing decision that 
upholds the agency's termination or nonrenewal action.
    (ii) The 120th day after the effective date of termination of the 
facility's provider agreement or, if the agreement is not terminated, 
the 120th day after the effective date of expiration. (If a hearing 
decision that upholds the facility is issued after the end of the 120-
day period, when FFP has already been discontinued, the rules of Sec. 
442.42 on retroactive agreements apply).
    (e) Applicability of Sec. 441.11. If FFP is continued during appeal 
under paragraph (d) of this section, the 30-day period provided by Sec. 
441.11 of this chapter would not begin to run until issuance of a 
hearing decision that upholds the agency's termination or nonrenewal 
action.

[52 FR 32551, Aug. 28, 1987, as amended at 56 FR 48865, Sept. 26, 1991; 
59 FR 56236, Nov. 10, 1994]