E. Persons other than small businesses, non-small businesses, state, or local government entities ("person" means any individual, partnership, corporation, association, governmental entity, or public or private organization of any character other than an agency):
The department does not expect any fiscal impact on other persons or entities as a result of this amendment because this amendment clarifies existing level of care criteria for nursing facility patients.
This clarification neither affects current patient services nor payments to providers.
F. Compliance costs for affected persons:
The department does not expect any compliance costs for affected persons as a result of this amendment because this amendment clarifies existing level of care criteria for nursing facility patients.
This clarification neither affects current patient services nor payments to providers.
G. Regulatory Impact Summary Table (This table includes only fiscal impacts the agency was able to measure. If the agency could not estimate an impact, it is excluded from this table but described in boxes A through F.)
Regulatory Impact Summary Table
H. Department head comments on fiscal impact and approval of regulatory impact analysis:
The Commissioner of the Department of Health and Human Services, Tracy S. Gruber, has reviewed and approved this regulatory impact analysis.
Citation Information
7. Provide citations to the statutory authority for the rule. If there is also a federal requirement for the rule, provide a citation to that requirement:
Public Notice Information
9. The public may submit written or oral comments to the agency identified in box 1.
A. Comments will be accepted until:
10. This rule change MAY become effective on:
NOTE: The date above is the date the agency anticipates making the rule or its changes effective. It is NOT the effective date.
Agency Authorization Information
Agency head or
designee and title:
Tracy S. Gruber, Commissioner
R414. Health and Human Services, Integrated Healthcare.
R414-502. Nursing Facility Levels of Care.
R414-502-2. Definitions.
[The definitions]Terms used in this rule are defined in Sections R414-1-2 and [Section ]R414-501-2[ apply to this rule]. Additionally: (1) "Attending provider" means a medical doctor or doctor of osteopathic medicine, physician assistant, advanced practice registered nurse, or nurse practitioner who is: (a) duly licensed or certified; and (b) responsible for the overall care of the patient including diagnosis, treatment, and follow-up. (2)(a) "Cognitive testing" means testing used to diagnose a condition that includes questions about memory, executive function, language, visuospatial abilities, or orientation.(b) Cognitive testing may include a Mini-Mental Status Examination or Montreal Cognitive Assessment. (3) "Orientation" means a person's ability to understand and be aware of: (a) person, including recognizing themselves and others around them; (b) place, including understanding where the person is located; and (c) time, including knowing the current date, day of the week, and time of day. R414-502-3. Approval of Level of Care.
(1) The [D]department shall document that at least two of the [following ]factors listed in Subsections (1)(a) through (1)(c) exist when [it determines]determining whether an applicant has a [mental]cognitive or physical condition[s] that requires the level of care provided in a nursing facility or equivalent care provided through a Medicaid home and community-based services (HCBS) waiver program[:]. (a)(i) [d]Due to a diagnosed medical condition[s], the applicant requires substantial ongoing physical assistance with multiple categories of activities of daily living[ activities] above the level of verbal prompting, supervising, or setting up[;]. (ii) Each program using level of care criteria shall determine a list of activities of daily living that would qualify an applicant for that program based on the type of setting. (b) [t]The attending [physician]provider has [determined]diagnosed and documented that the applicant's [level of]ongoing cognitive dysfunction [in orientation to person, place, or time]is not related to an acute condition and requires long-term nursing facility care[,] or equivalent care provided through a Medicaid home and community-based waiver program. (i) The attending provider shall evidence any cognitive dysfunction by conducting current cognitive testing and documentation. (ii) Cognitive dysfunction may include disorientation.[; or] (c) [t]The applicant's medical condition and intensity of services indicate that the long-term care needs of the applicant cannot be safely met in a less structured setting[,] or without the services and supports of a Medicaid home and community-based waiver program. (2)(a) The [D]department shall determine whether at least two of the factors described in Subsection (1) exist by reviewing [the following ]clinical documentation. (b) Required clinical documentation varies between specific programs based on the type of setting. (c) Required documentation for an HCBS waiver program is described in waiver implementation plans approved by the Centers for Medicare and Medicaid Services (CMS). (d) A nursing facility provider shall include in the required clinical documentation: ([a]i) an applicant's current history and physical examination completed by an attending [physician]provider; ([b]ii) a comprehensive resident assessment for an applicant, completed, coordinated, and certified by a registered nurse; ([c]iii) a social services evaluation of an applicant that meets the criteria in 42 CFR 456.370[ and], completed by a person licensed as a social worker, or with a higher degree of training and licensure; ([d]iv) a written plan of care for an applicant established by an attending [physician]provider; ([e]v) an attending [physician's]provider's written certification that [the]an applicant requires nursing facility placement;[ and] (vi) weekly narrative nursing summaries that outline the care required and include the three factors of level of care criteria; (vii) daily documentation of physical assistance given to an applicant for activities of daily living; (viii) applicable and current cognitive testing with associated narrative charting related to an applicant's cognitive need with examples of impact; (ix) any applicable pre-admission screening and resident review evaluation, in accordance with Rule R414-503; ([f]x) documentation indicating that less restrictive alternatives or services to prevent or defer nursing facility care for an applicant have been explored; (xi) the cognitive dysfunction attestation form published by the department; and (xii) any other pertinent documentation related to the factors described in Subsection (1). (3) If the [D]department finds that at least two of the factors described in Subsection (1) exist, the [D]department shall determine whether the applicant meets criteria for nursing facility level of care and is medically approved for Medicaid reimbursement of nursing facility services or equivalent care provided through a Medicaid home and community-based waiver program. (a) Meeting medical eligibility for nursing facility services does not guarantee Medicaid payment. (b) Financial eligibility and other home and community-based waiver targeting criteria apply. KEY: Medicaid
Date of Last Change: [July 28, 2025]2026 Notice of Continuation: May 29, 2024
Authorizing, and Implemented or Interpreted Law: 26B-1-213; 26B-3-108
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