The Honorable George Wimberly State Representative No. 15 Brickton Place Little Rock, AR 72205
Dear Representative Wimberly:
This is in response to your request for an opinion on the following specific questions:
1. Under Sec. 4202, Survey and Certification Process (a) State Requirements for Process — Title XVIII of the Social Security Act is Amended "(b) Educational Program — Each State shall conduct periodic educational programs for the staff and residents and their representatives of skilled nursing facilities in order to present current regulations, procedures and policies under this section."
Is the State to provide this information to Nursing Home staff and residents?
2. We would also appreciate an opinion on 488.110 procedural guidelines. This is found in the Federal Register Vol. 43, No. 117 / Friday, June 17, 1988. This is the published procedural guidelines for surveying. It states "A secondary role for the surveyor is to provide general consultation to the provider/community. This includes meeting with the provider/consumer association and other groups as well as participating in seminars. It also includes informational activities —".
Our question is does this mean that the State Survey Agency is to inform providers of changes and new regulations?
Your first question involved Section 4202 of the Omnibus Reconciliation Act of 1987 which states in pertinent part as follows:
(a) State Requirement for Process. — Title XVIII of the Social Security Act is amended . . . (2) in section 1819 as added by section 4201(a)(3) of this Act by adding at the end the following new subsection: (g) Survey and Certification Process. — (1) State and Federal Responsibility. — (A) In general — Pursuant to an agreement under section 1864, each State shall be responsible for certifying, in accordance with surveys conducted under paragraph (2), the compliance of skilled nursing facilities (other than facilities of the State) with the requirements of sub-sections (b), (c), and (d). The Secretary shall be responsible for certifying, in accordance with surveys conducted under paragraph (2), the compliance of State skilled nursing facilities with the requirements of such subsections. (B) Education Program. — Each State shall conduct periodic educational programs for the staff and residents (and their representatives) of skilled nursing facilities in order to present current regulations, procedures, and policies under this section.
These provisions are codified at 42 U.S.C. § 1395i-3(g) (Supp. 1988).
The Act thus clearly imposes a requirement that the State conduct such "periodic educational programs." The time frame applicable to this requirement should, however, be recognized. Section 4204(a) of the Act (Pub.L. 100-203, Dec. 22, 1987, P. 1330-182) provided that this section, as amended, shall apply to extended care services furnished on or after October 1, 1990. It thus appears that Section 4202 imposes no current requirement in this regard. Of course, consideration should also be given to any applicable agreement entered between the provider and the appropriate state agency.
It is my opinion that the answer to your second question is, generally, yes, to the extent provision of this information is indicated in connection with the particular "consultation," "seminar," or "informational activities." The procedural guidelines referenced in your inquiry were added during the rule-making process to the proposed rule which was published in the Federal Register on July 1, 1987 at 52 FR 24752. Specifically, 488.110 was added to Subpart C to include these guidelines used in long term care surveys. The specific language in question is found at Vol. 53 of the Federal Register, No. 117 at p. 22961, under subsection (m) of 488.110, entitled "Role of Surveyor." the pertinent language is as follows:
A secondary role for the surveyor is to provide general consultation to the provider/consumer community. This includes meeting with provider/consumer associations and other groups as well as participating in seminars. It also includes informational activities, whereby you respond to oral or written inquiries about required outcomes in care and services.
Thus, to the extent there are changes in the law or new regulations impacting procedures or action required of providers, it may be concluded that the surveyor would properly provide such information during the consultation process.
The foregoing opinion, which I hereby approve, was prepared by Assistant Attorney General Elisabeth A. Walker.