(i) Numbers end categories of personnel are determined by the number of patients and their particular needs in accordance with accepted policies of effective nursing care and guidelines issued by the Social and Rehabilitation Service; (ii) Nursing and auxiliary personnel are employed and assigned on the basis of their experience or qualifications to perform designated duties;

(iii) The amount of nursing time is sufficient to assure that each patient: (a) Receives treatments, medications, and diet as prescribed;

(b) Receives proper care to prevent decubiti and is kept comfortable, clean, and well-groomed;

(c) Is protected from accident and injury by the adoption of appropriate safety measures;

(d) Is encouraged to perform out-of-bed activities as permitted;

(e) Receives assistant to maintain optimal physical and mental function.

(4) Professional planning and supervision of menus and meal service. The phrase "professional planning and supervision," when used in relation to menus and meal service for patients for whom special diets or dietary restrictions are medically prescribed means that:

(i) Menus are planned and supervised by professional personnel meeting the following qualifications:

(a) A dietitian who meets the American Dietetic Association's standards for qualification as a dietitian; or

(b) A graduate holding at least a bachelor's degree from a university program with major study in food and nutrition; or

(c) A trained food service supervisor, an associate degree dietary technician, or a professional registered nurse, with frequent and regularly scheduled consultation from a dietitian or nutritionist meeting the qualifications stated in subdivisions (a) and (b) of this subparagrapu (4)(i);

(ii) Special and restricted diet menus are kept on file for at least 30 days, notations are made of any substitutions or variations in the meal actually served, and the patients to whom the diets were actually served are identified in the dietary records;

(iii) Procedures are established and regularly followed which assure that the serving of meals to patients for whom special or restricted diets have been medically prescribed is supervised and their acceptance by the patient is observed and recorded in the patient's medical record.

(5) Satisfactory policies and procedures relating to maintenance of medical records. Satisfactory policies and procedures relating to the maintenance of medical records means the standards set forth in 20 CFR 405.1132 pertaiping to extended care facilities under title XVIII.

(6) Satisfactory policies and procedures relating to dispensing and administering of drugs and biologicals. Satisfactory policies and procedures relating to dispensing and administering of drugs and biologicals means the standards set forth in 20 CFR 405.1127 pertaining to extended care facilities under title XVIII.

(7) Satisfactory policies and procedures relating to physician coverage. Satisfactory policies and procedures relating to physician coverage and emergency medical attention means the standards set forth in 20 CFR 405.1123 pertaining to extended care facilities under title XVIII.

(8) Arrangements with one or more general hospitals. Arrangements with one or more general hospitals means:

(i) Written agreements providing a basis for effective working arrangements under which inpatient hospital care is available promptly to the skilled nursing home's patients when needed, which include as a minimum:

(a) Procedures for transfer of acutely ill patients to the hospital ensuring timely admission,

(b) Provisions for continuity in the care of the patient and for the transfer of pertinent medical and other information between the skilled nursing home and the hospital.

(ii) Written agreements containing provisions for the prompt availability of diagnostic and other medical services.

(9) Conditions relating to environment and sanitation. Conditions relating to environment and sanitation applicable to extended care facilities under title XVIII means standards set forth in 20 CFR 405.1125(i), and 405.1134, 405.1135, and 405.1136.

(c) Conditions under which the single State agencies may waive certain requirements. (1) The requirements for arrangements with one or more general hospitals may be waived wholly or in part if by reason of remote location or other good and

sufficient reason a skilled nursing home is unable to effect such an arrangement with a hospital. However, this requirement may not be waived in whole if it can be satisfied in part. A finding of remote location or other good and sufficient reason may be made when the single State agency finds that:

(i) There is no general hospital serving the area in which the skilled nursing home is located; or

(ii) There are one or more general hospitals serving the area and the skilled nursing home has attempted in good faith and has exhausted all reasonable possibilities to enter into an agreement with such hospital or hospitals, and

(a) The nursing home has provided copies of letters, records of conferences, or other evidence to support its claim that it has attempted in good faith to enter into an agreement, and

(b) Hospitals in the area have, in fact, refused to enter into an agreement with the skilled nursing home in question.

(b) Hospitals in the area have, in fact, refused to enter into an agreement with the skilled nursing home in question.

(2) The single State agency may waive the application to a skilled nursing home of one or more specific provisions of 20 CFR 405.1125(i), 405.1134, 405.1135, or 405.1136 or one or more specific provisions of the fire and safety code applied pursuant to paragraph (a)(1)(vii) of this section if it finds on the basis of documented evidence derived from a survey that:

(i) Such provisions(s), if rigidly applied, would result in unreasonable hardship upon the skilled nursing home;

(ii) The waiver of the specific provision (s) does not adversely affect the health and safety of the patients in the facility and a written justification of such deermination is maintained on file;

(iii) Where structural changes in the facility are necessary to meet a provision; the change is of such magnitude as to be infeasible, or economically impracticable delay in making such changes would not adversely affect the health and safety of patients; and an explanation of this finding is maintained on file;

and upon assurance that:

(iv) The conditions of waiver in subdivisions (i), (ii), and (iii) of this subparagraph are redetermined at the time of each survey and written evidence of such redetermination is maintained on file;

(v) The waiver of requirements is rescinded at any time any of the conditions of subdivisions (i), (ii), and (ii) of this subparagraph are found no longer to apply. (d) Federal financial participation. (1) Federal financial participation is available at 75 per centum in expenditures of the single State agency for compensation (or training) of its skilled professional medical personnel and staff directly supporting such personnel, with are necessary to carry out these regulations.

(2) Federal financial participation at applicable rates also is available for the single State agency to enter into a written contract (under the supervision of the Medical Assistance Unit) with the State licensing authority, the agency of the State designated pursuant to section 1864 of the Social Security Act or other appropriate State agencies providing for at least:

(i) On-site surveys and resurveys of skilled nursing homes applying to participate or participating as providers of service under the medical assistance plan to be performed at appropriate intervals by properly qualified personnel,

(ii) Timely furnishing to the single State agency of all information and records herein required, and

(iii) Methods and procedures acceptable to the Secretary for determining an agency's expenditures in which Federal financial participation is available. Such Federal financial participation is available only for those expenditures of the State licensing authority or other appropriate State agencies which are not attributable to the overall cost of meeting responsibilities under State law and regulations for establishing and maintaining standards but which are necessary and proper for carrying out these regulations.

(Secs. 1102 and 1902(a) (28), 49 Stat. 647 and 81 Stat. 906; 42 U.S.C. 1302 and 1396a (a) (28))

Effective date. The regulations in this section shall be effective on the date of their publication in the FEDERAL REGISTER. Dated: January 28, 1970.

Approved: April 22, 1970.
ROBERT H. FINCH,
Secretary.

MARY E. SWITZER,

Administrator, Social and Rehabilitation Service.

[F.R. Doc. 70-5147; Filed, Apr. 28, 1970; 8:45 a.m.]

APPENDIX 2

PHASING OUT MEDICARE: CHANGING DEFINITIONS OF
SKILLED NURSING CARE AND CUSTODIAL CARE*

MICHAEL B. MILLER, M.D., F.A.C.P.**

White Plains Center for Nursing Care, White Plains, N.Y.

ABSTRACT: Increasingly restrictive definitions of skilled nursing care versus custodial (or non-covered) care by the Social Security Administration with respect to the Medicare program are now being implemented by fiscal intermediaries. If continued, the constructive intentions of Congress in behalf of the ill aged will be effectively frustrated and, in the name of economy, the national health care program for the aged will soon disappear.

The new synthetic definitions require evaluation and reappraisal in clinical terms if the welfare of the ill aged is to be served.

Section 1861 of the Social Security Act (1) intended to provide to in-patients of extended care facilities:

"A. Skilled nursing care and related services for patients who require medical and nursing care, or

B. Rehabilitation services for rehabilitation of injured, disabled or sick persons."

All those interested in the health needs of the chronically ill aged recognize these goals as substantial and constructive. Two years after the implementation of the Medicare Law, and faced with the unanticipated, sharply rising costs of health care services in the United States in general plus the high cost of Medicare in particular, the Social Security Administration of the Department of Health, Education, and Welfare reacted sharply to curtail costs and, in effect, limited the distribution of services to those entitled to receive covered care.

In attempts to conserve dollars rather than enhance the quality of care received by Medicare recipients, the Social Security Administration initiated in January 1968 and continued to introduce thereafter, a series of

Presented at a conference on "Comprehensive Management of Long Term Illness," Glen Park Auxiliary Hospital, Calgary, Alberta, Canada. The conference was co-sponsored by Bethany Auxiliary Hospital and Nursing Home District No. 7, and the University of Calgary. Division of Continuing Medical Education. Program approved for 14 hours of category-1 credit, by the College of Family Physicians of Canada.

** Medical Director, White Plains Center for Nursing Care, 220 West Post Road, White Plains, N.Y.

Address: Medical Director, Nursing Home & Extended Care Facility of White Plains, Inc., 37 DeKalb Avenue, White Plains, N.Y. 10605.

41-304 O 71 pt. 8 6

(699)

increasingly more stringent definitions of skilled nursing care which, although conserving Federal funds, virtually emasculated the program.

If the more recent definitions of skilled care (2, 3) and custodial care promulgated by the Social Security Administration and implemented by fiscal intermediaries (Aetna Life and Casualty, Travelers Insurance, and others) continue to be applied in their present restrictive forms, the Social Security Administration will have effectively distorted, and perhaps foreclosed, the intentions of Congress and the Medicare Law.

EXPERIENCE AT WHITE PLAINS CENTER

In 1968 the Medicare-patient occupancy at the White Plains Center for Nursing Care-an approved extended care facility was 46 per cent of the total occupancy, whereas in August and September of 1969, Medicare occupancy was approximately 10-12 per cent.' This sharp reduction in Medicare experience occurred even as the total occupancy rate continued in excess of 93 per cent of capacity. The need of the ill aged for skilled services obviously continues.

This paper describes the injudicious use of synthetic definitions of "continuous skilled nursing care" and "custodial care," as promulgated by the government agencies for health care.

"Extended care" has been defined thus: "Extended care is the level of care provided in those cases in which the patient's condition upon his discharge from the hospital requires him to be in an institution for the primary purpose of receiving continuous skilled services" (4).

In a 20-month study (5) conducted at the 88-bed White Plains Center for Nursing Care (1967-1968), new Medicare admissions averaged 20-25 patients per month. With the implementation of the new stringent definitions of continuous skilled nursing care promulgated by the Social Security Administration and applicable to that period, during June 1969 the number of new admissions to the same institution averaged only 1-2 patients per month.

Approximately 36 per cent of all patients admitted were capable of substantial self-care but, because of physical and emotional disabilities, still required skilled nursing care for full attainment of the activities of daily living, as certified by the attending physician. Of all those admitted, 64 per cent had major physical or psychiatric disabilities, or a combination of both, requiring major continuous skilled nursing care for effective medical, psychiatric and social management (5).

In a previous study, criteria for determining the degree of disability in relation to physical and psychiatric causes were described.

The Medicare population of patients was typical of the population of chronically ill aged whose average age was 80 in the pre-Medicare period.

1 In August 1970 it was 5.6 per cent.

Such patients usually have a multiplicity of somatic disabilities, and the majority (60-70 per cent) exhibit behavioral abnormalities due to cerebral arteriosclerosis with or without pre-existing psychopathology.

During the 20-month study period (5) the average length of stay was 51 days. Of this group, 34.4 per cent improved in some aspect of daily living; 41 per cent remained the same; 5.5 per cent lost function; and 18.9 per cent died in the nursing home. Of the total admitted, 349 were discharged to their own homes, to hospitals, to other nursing homes, or to other living arrangements. It is clear that when 75 per cent of these chronically ill aged either improved or remained the same despite chronic progressive disease, Medicare benefits provided them with a substantial service. Many patients were discharged with significant residual disabilities, physical and psychiatric. They were obviously in need of further care but were without any organized means of obtaining it under prevailing conditions.

In effect, there is a substantial reservoir of chronically ill aged in the community who require first-rate medical and nursing care on a continuous basis but, because of lack of funds, are not receiving it.

THE NEW DEFINITIONS

The application of the new definitions to be described can only aggravate an existing deficit in health care coverage for this disadvantaged population of patients. The law as initially written related to "skilled nursing care and related services," but unfortunately did not define "skilled nursing care."

Underlying the current conflict on definitions of skilled nursing care is the fact that neither the medical nor the nursing profession has established a generally accepted definition on a clinical basis. It is hardly to be expected that an administrative government group-either Social Security or other government agency can successfully describe or define skilled nursing care when their prime motivation is exclusion of certain of the ill aged, with the essential thesis being conservation of dollars.

In a fine monograph (7), a warm generous physician of thirty years. past, wrote: "Some of the younger members of the profession, although having enormously greater knowledge of the science of medicine, have less acquaintance than many of their elders with the art of medical practice ." "Primarily it depends upon devotion to the patient rather than to his disease."

Perhaps the dilemma of defining skilled and non-skilled care is due to the relegation of the patient's treatment in modern times to the nursing profession. In my experience, the scientific physician participates little in treatment. The nursing profession has been attempting to fill the gap, but the results are far from satisfactory for themselves, the patients, and the medical profession.