Section 471-44-003 - LEVEL OF CARE003.01NURSING FACILITY LEVEL OF CARE (NF LOC) CRITERIA. The person or his or her legal representative must provide information needed to determine nursing facility level of care (NF LOC). In order to make a determination, the person or representative must be addressed on the basis of activities of daily living (ADL), risk factors, medical conditions and interventions, and cognitive function, to be determined via discussion and observation of the person; reports from caregivers, family, and providers; and current medical records. 003.01(A)LEVEL OF CARE DETERMINATION FOR ADULTS AGE 18 OR OLDER. A person must satisfy one of the four following categories to meet nursing facility level of care (NF LOC) eligibility: (1) A limitation in at least three activities of daily living (ADL) and one or more risk factors;(2) A limitation in at least three activities of daily living (ADL) and one or more medical conditions and treatments;(3) A limitation in at least three activities of daily living (ADL) and one or more areas of cognitive limitation; or(4) A limitation in at least one activity of daily living (ADL) and at least one risk factor and at least one area of cognitive limitation.003.01(A)(i)ACTIVITIES OF DAILY LIVING (ADL). Information about limitations in activities of daily living (ADL) is obtained from observation of the person in the home setting, reports from guardians or caregivers, current medical records, school records, and standardized assessments. Activities in daily living (ADL) are considered a limitation when the person, due to their physical disabilities, requires physical assistance from another person on a daily basis, or supervision, monitoring, or direction to complete the tasks associated with each activity of daily living (ADL) defined in this section. For the purposes of this section, the term "ability" must be interpreted to include the physical ability, cognitive ability, and endurance necessary to complete identified activities. The following activities of daily living (ADL) are considered for nursing facility level of care (NF LOC) eligibility: (3) Dressing or grooming;003.01(A)(ii)RISK FACTORS. Risk factors must cause significant impact to the person's life and functional abilities and require significant intervention in a timely manner. Risk factors to be considered are: (1)Behavior: The inability to act on one's own behalf, including but not limited to lack of interest or motivation to eat, not taking medications, not caring for one's self, not maintaining personal safety, wandering, avoiding social activities, and relating to others in a socially-inappropriate manner;(2)Frailty: The inability to function independently without the presence of a support person, including but not limited to mismanaging finances or using poor judgment in understanding abilities and health factors to safeguard wellbeing and avoid inappropriate safety risk such as risk of falling; and(3)Safety: The lack of adequate housing, including the absence of home modification or adaptive equipment to assure safety and accessibility, the lack of a formal or informal support system, or presence of abuse, neglect, or exploitation in the home.003.01(A)(iii)MEDICAL CONDITIONS AND TREATMENTS. Medical conditions and treatments to be considered are: (1) A medical condition is present which requires observation and assessment to evaluate the person's need for treatment modification or additional medical procedures to prevent destabilization when a person has demonstrated an inability to self-observe or evaluate the need to contact skilled medical professionals;(2) Due to the complexity created by multiple, interrelated medical conditions, there exists potential for the person's medical condition to be unstable; and(3) The person requires at least one ongoing medical or nursing service.003.01(A)(iv)COGNITIVE FUNCTION. Limitations in cognitive function to be considered are: (1)Memory: Lack of short-term recall, unable to perform all or almost all steps in a multitask sequence without cues, inability to recognize frequently encountered caregivers' names or faces or know location of regularly visited places in residential setting;(2)Orientation: Easily distracted, episodes of disorganized speech, or variation in mental function over the course of a day; behavior must be inconsistent with usual functioning;(3)Communication: Inability to make oneself understood, including inability to express information content, both verbal and nonverbal, or the inability to understand information conveyed;(4)Judgment: Inability to independently make decisions regarding tasks of daily life, except in new situations with only some difficulty; and(5)Dementia: Dementia diagnosis, including Alzheimer's disease.003.02PERSONS ELIGIBLE. A Level of Care (LOC) determination will be completed when a person is: (1) Determined to be eligible for Medicaid, or is under consideration for Medicaid eligibility; and(2) Requesting Medicaid funding to cover nursing facility (NF) service or Home and Community-Based Waiver Services for Aged Persons or Adults or Children with Disabilities. 003.02(A)SPECIAL CIRCUMSTANCES NOT EVALUATED OR SCREENED. Level of care (LOC) will not be evaluated or reevaluated for Medicaid recipients who: (i) Have previously been determined to meet nursing facility level of care (NF LOC) and return to the same nursing facility (NF) after discharge to a hospital, other nursing facility (NF), or swing bed. This exception does not apply for persons who have previously been discharged to an alternative level of care, or to the community;(ii) Are Medicaid-eligible persons who admit to the nursing facility (NF) under hospice care;(iii) Are nursing facility (NF) residents who elect hospice upon becoming Medicaid eligible;(iv) Are receiving nursing facility (NF) care which is currently being paid by Medicare;(v) Direct transfer from one nursing facility (NF) to another nursing facility (NF);(vi) Have a preadmission screening and resident review (PASRR) Level II level of care (LOC) determination indicating the resident meets nursing facility level of care (NF LOC);(vii) Are currently, or were previously eligible the month prior to nursing facility (NF) admission, for the Aged and Disabled Waiver program through the Department;(viii) Are admitted to a special needs nursing facility (NF) unit;(ix) Are currently eligible for the Program of All-Inclusive Care for the Elderly (PACE) through the Department; or(x) Are seeking out-of-state nursing facility (NF) admission.003.02(B)EVALUATION FORMAT. Evaluations will be conducted using common evaluation tools. The evaluation tools reflect each area of nursing facility level of care (NF LOC) criteria, the amount of assistance required and the complexity of the care.003.02(C)REFERRAL.003.02(C)(i)MINIMUM REFERRAL INFORMATION. The following is the minimum information required to process a referral for level of care (LOC) determination: (1) The name, position, and telephone number of the person making the referral;(2) The name of the nursing facility (NF) involved, if different than the referral source;(3) The name, date of birth, and social security number of the person to be evaluated; and(4) The date and time the referral is being made.003.02(C)(ii)RECEIVING REFERRALS. When the Department or its agent receives a referral to evaluate an applicant for admission to a nursing facility (NF), they will begin to collect the information and supporting documentation established in the evaluation tool. Information may be collected either in person or through telephone interviews. Based on the information gathered through the evaluation, the Department determines whether the applicant meets nursing facility level of care (NF LOC) criteria.003.02(C)(iii)APPLICABLE TIME FRAMES. A referral will only be accepted if it is verified by the Department that an application has been received and is under consideration or if an individual is determined eligible for Medicaid. The Department must complete a level of care (LOC) evaluation within forty-eight (48) hours. If the evaluation is not completed by the Department within forty-eight (48) hours, the applicant for admission must be deemed by the Department to be appropriate for admission until a level of care (LOC) determination is completed and any required notice is given. 003.02(C)(iii)(1)RETROACTIVE MEDICAID LEVEL OF CARE (LOC) DETERMINATION. If a current nursing facility (NF) resident applies for Medicaid without informing the nursing facility (NF) and a level of care (LOC) referral is not completed during the Medicaid eligibility consideration period, the nursing facility (NF) must make an immediate referral to the Department when information is received that Medicaid has been approved. If the following conditions are met, Medicaid coverage will be retroactive to the date of Medicaid eligibility: (a) The nursing facility (NF) has in place a process to inform private pay clients and their families that the nursing facility (NF) must be informed when a Medicaid application is made;(b) The nursing facility (NF) makes a referral to the Department immediately upon receipt of information about the opening of the Medicaid case. At the time of this referral, the nursing facility (NF) must provide information on the date and means by which information about Medicaid eligibility was obtained; and(c) The resident meets the nursing facility level of care (NF LOC) criteria.003.02(C)(iii)(2)LEVEL OF CARE (LOC) REFERRAL 14-DAY POST-MEDICAID DETERMINATION. A level of care (LOC) approval determination will be effective as of the date of Medicaid eligibility if the referral is completed by the 14th calendar day following the Medicaid eligibility determination date.003.02(C)(iii)(3)REFERRAL AFTER DEATH OR DISCHARGE. A level of care (LOC) referral will also be accepted and a medical records-based level of care (LOC) determination will be completed if Medicaid eligibility is not approved until after the person dies or is discharged from the facility. To qualify, the referral must be completed within 14 days of the Medicaid eligibility determination date, and the person must meet level of care (LOC) criteria. If the required conditions are met, the level of care (LOC) determination will be effective to the date of Medicaid eligibility.003.02(C)(iii)(4)PROGRAM OF ALL-INCLUSIVE CARE FOR THE ELDERLY (PACE) LEVEL OF CARE (LOC) DETERMINATION. A Program of All-inclusive Care for the Elderly (PACE) level of care (LOC) determination may be used to substantiate nursing facility level of care (NF LOC) in the following cases: (a) A Program of All-inclusive Care for the Elderly (PACE) recipient immediately admits to, or already resides in, a nursing facility (NF) following their disenrollment from the Program of All-inclusive Care for the Elderly (PACE); or(b) A Program of All-inclusive Care for the Elderly (PACE) recipient admits to a nursing facility (NF) the month after disenrollment from the Program of All-inclusive Care for the Elderly (PACE).003.02(C)(iii)(5)DETERMINATION OTHERWISE REQUIRED. A level of care (LOC) determination will be required in all other cases for nursing facility (NF) admission.003.02(D)OUTCOMES OF THE EVALUATION.003.02(D)(i)NURSING FACILITY LEVEL OF CARE (NF LOC) MET. If the Department determines that the applicant meets nursing facility level of care (NF LOC) criteria and the person chooses to receive nursing facility (NF) services, the Department will make appropriate notifications.003.02(D)(ii)NURSING FACILITY LEVEL OF CARE (NF LOC) NOT MET. If the Department determines that the applicant does not meet nursing facility level of care (NF LOC), notification of the determination is issued to the applicant, the facility, and the managed care organization. Persons who are found to be ineligible for Medicaid reimbursement for nursing facility (NF) services will be sent a notice of denial by the Department.003.02(D)(iii)POSSIBLE OPTIONS. Medicaid payment for nursing facility (NF) services will only be available to those persons who are determined to require nursing facility level of care (NF LOC). They will have the option of entering a nursing facility (NF) or exploring home and community-based care services. If the evaluation determines that there is a need for post-hospitalization rehabilitative or convalescent care, the Department may indicate that short-term or time-limited nursing facility (NF) care is medically necessary. Prior to the end of the short-term or time-limited stay, the nursing facility (NF) must contact Medicaid to review the person's condition and determine future nursing facility level of care (NF LOC).003.02(E)NOTICES AND APPEALS.003.02(E)(i)LEVEL OF CARE (LOC) DETERMINATION NOTIFICATION. Medicaid staff send notification to each person, family, or applicable parties, to inform the person of the level of care (LOC) decision. Nursing facility (NF) residents with Medicaid funding, who no longer meet the criteria for nursing facility level of care (NF LOC), must be allowed to remain in the facility up to 30 days from the date of the notice.003.02(E)(ii)APPEALS. The person or his or her authorized representative may appeal any action or inaction of the Department by following standard Medicaid appeal procedures as defined in 465 NAC 6.471 Neb. Admin. Code, ch. 44, § 003
Adopted effective 6/26/2021Amended effective 5/11/2022