[Code of Federal Regulations]

[Title 42, Volume 3]

[Revised as of October 1, 2005]

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.



[[Page 289]]



    (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.

    (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]