(iii) An institution for the mentally retarded is not an institution for mental diseases;

(iv) An individual on conditional release or convalescent leave from an institution for mental diseases is not considered to be a patient in such institution except that such an individual under age 22 who was previously receiving inpatient psychiatric facility services pursuant to § 449.10(b)(16) of this chapter may be considered to be a patient in such institution until he is unconditionally released or, if earlier, the date such individual attains age 22.

(h) Definitions. For purposes of Federal financial participation under paragraph (a) of this section: (1) "Institution" means an establishment which furnishes (in single or multiple facilities) food and shelter to four or more persons unrelated to the proprietor, and in addition, provides some treatment or services which meet some need beyond the basic provision of food and shelter.

(2) "In an institution" refers to an individual who is admitted to participate in the living arrangements and to receive treatment or services provided there which are appropriate to his requirements.

(3) "Public institution" means an institution that is the responsibility of a governmental unit or over which a governmental unit exercises administrative control.

(4) "Inmate of a public institution" means a person who is living in a public institution. An individual is not considered an inmate when:

(i) He is in a public educational or vocational training institution, for purposes of securing education or vocational training, or

(ii) He is in a public institution for a temporary emergent period pending other arrangements appropriate to his needs.

(5) "Medical institution" means an institution which:

(i) Is organized to provide medical care, including nursing and convalescent care;

(ii) Has the necessary professional personnel, equipment, and facilities to manage the medical, nursing, and other health needs of patients on a

continuing basis in accordance with accepted standards;

(iii) Is authorized under State law to provide medical care;

(iv) Is staffed by professional personnel who have clear and definite responsibility to the institution in the provision of professional medical and nursing services including adequate and continual medical care and supervision by a physician; sufficient registered nurse or licensed practical nurse supervision and services and nurse aid services to meet nursing care needs; and appropriate guidance by a physician(s) on the professional aspects of operating the facility.

(6) "Institution for tuberculosis" means an institution which is primarily engaged in providing diagnosis, treatment, or care of persons with tuberculosis, including medical attention, nursing care, and related services.

(7) "Institution for mental diseases" means an institution which is primarily engaged in providing diagnosis, treatment or care of persons with mental diseases, including medical attention, nursing care and related services.

(8) "Patient" means an individual who is in need of and receiving professional services directed by a licensed practitioner of the healing arts toward maintenance, improvement or protection of health, or alleviation of illness, disability, or pain.

(9) "Resident" of an intermediate care facility is a patient or other individual who has been admitted to an intermediate care facility (including an institution for the mentally retarded or persons with related conditions or distinct part thereof) prior to the effective date of these regulations, or after that date in accordance with § 450.24 of this chapter and is receiving room and board, and, is under a planned program of care and supervision on a continuous 24-hour-a-day basis, and in the case of institutions for the mentally retarded or persons with related conditions is also receiving active treatment (see § 449.10(d)(1)(v) of this chapter). (10) "Institution for the mentally retarded or persons with related conditions" means an institution (or distinct part thereof) primarily for the diagno

sis, treatment, or rehabilitation of the mentally retarded or persons with related conditions, which provides in a protected residential setting, individualized ongoing evaluation, planning, 24 hour supervision, coordination and integration of health or rehabilitative services to help each individual reach his maximum of functioning capabilities.

[36 FR 3872, Feb. 27, 1971; as amended at 38 FR 33383. Dec. 3, 1973; 39 FR 2221, Jan. 17, 1974; 41 FR 22055, June 1, 1976. Redesignated at 42 FR 52827, Sept. 30, 1977]

§ 448.70 Blindness.

(a) State plan requirements. A State plan under title XIX of the Social Security Act must:

(1) Contain a definition of blindness in terms of ophthalmic measurement. This may be the same definition as is used in the Supplemental Security Income program under title XVI of the Act, or a more restrictive definition; however it may not be more restrictive than the definition used by the State in its approved title XIX plan as in effect on January 1, 1972. The definition may be broader than the title XVI definition only for blind individuals who, for the month of December 1973, were eligible for medical assistance by reason of their having been previously determined to meet the criteria for blindness established by a State plan under title X or XVI of the Act, (see §§ 448.1(b)(2)(vi) and 448.1(d)(2)); and in Guam, Puerto Rico and the Virgin Islands where the definition contained in the State plan approved under titles X or XVI will apply.

(2) Provide, in any instance in which a determination is to be made whether an individual is blind or continues to be blind as defined under the State plan, that there will be an initial examination or re-examination performed by either a physician skilled in the diseases of the eye or by an optometrist, whichever the individual so selects.

(i) No examination is necessary when both eyes are missing.

(ii) Where an initial eye examination or re-examination is necessary, the physician or optometrist conducting such examination will submit to the

State agency a report thereof, on such forms and in such manner, as may be prescribed for such purpose. A determination whether the individual meets the State's definition of blindness under the State plan will be based upon a review of such eye examination report as provided for in paragraph (a)(3) of this section, and other information or additional examination reports as the State deems necessary.

(3) Provide that each initial eye examination report and any subsequent reexamination report will be reviewed by a State reviewing physician skilled in the diseases of the eye (e.g., an opthalmologist or an eye, ear, nose and throat specialist). Such physician is responsible for making the agency's decision that the applicant or recipient does or does not meet the State's definition of blindness, and for determining if and when reexaminations are necessary in periodic reviews of eligibility, as required in 45 CFR 206.10(a)(9)(iii).

(b) Exception. The requirements of paragraph (a) (2) and (3) of this section are waived for individuals who are determined to be eligible for payments under title XVI on the basis of blindness unless the State's title XIX plan includes a different definition of blindness as described in paragraph (a)(1) of this section.

(c) Federal financial participation— (1) Assistance payments. Federal financial participation is available in medical assistance provided to any otherwise eligible person who is blind under the State's title XIX plan. Blindness may be considered as continuing until a determination by the reviewing physician establishes the fact that the recipient's vision has improved beyond the State's definition of blindness set forth under its State title XIX plan. (See § 448.4(b)(7) for Federal financial participation with respect to medical assistance for persons determined by the Social Security Administration as no longer eligible for title XVI benefits on the basis of blindness.)

(2) Administrative expenses. Federal financial participation is available in any expenditures incident to the eye examination necessary to determine whether an individual is blind.

[39 FR 9518, Mar. 11, 1974, as amended at 40 FR 25819, June 19, 1975. Redesignated at 42 FR 52827, Sept. 30, 1977]

§ 448.80 Disability.

(a) State plan requirements. A State plan under title XIX of the Social Security Act must:

(1) Contain a definition of disability. This may be the same definition as is used in the Supplemental Security Income program under title XVI of the Act, or a more restrictive definition; however it may not be more restrictive than the definition used by the State in its approved title XIX plan as in effect on January 1, 1972. The definition may be broader than the title XVI definition only for disabled individuals who, for the month of December 1973, were eligible for medical assistance by reason of their having been previously determined to meet the criteria for disability established by a State plan under title XIV or XVI of the Act (see §§ 448.1(b)(2)(vi) and 448.1(d)(2); and in Guam, Puerto Rico and the Virgin Islands where the definition contained in the State plan approved under titles XIV or XVI will apply.

(2) Provide for the review of each medical report and social history by technically competent persons-not less than a physician and a social worker qualified by professional training and pertinent experience-acting cooperatively, who are responsible for the agency's decision that the applicant does or does not meet the State's definition of disability. Under this requirement:

(i) The medical report must include a substantiated diagnosis, based either on existing medical evidence or upon current medical examination;

(ii) The social history must contain sufficient information to make it possible to relate the medical findings to the activities of the "useful occupation" and to determine whether the individual is totally disabled; and

(iii) The review physician is responsible for setting dates for reexamination; the review team is responsible for reviewing reexamination reports in conjunction with the social data, to determine whether disabled recipients whose health condition may improve

continue to meet the State's definition of disability.

(b) Exception. The requirements of paragraph (a)(2) of this section are waived for individuals who are determined to be eligible for payments under title XVI on the basis of disability unless the State's title XIX plan includes a different definition of disability as described in paragraph (a)(1) of this section.

(c) Federal financial participation— (1) Assistance payments. Federal financial participation is available in medical assistance provided to any otherwise eligible individual who is disabled. Disability may be considered as continuing until the review team establishes the fact that the recipient's disability is no longer within the State's definition of permanent total disability, except that a determination by the Social Security Administration that a title XVI recipient's disability is no longer within the Federal definition of disability may be utilized by the State in lieu of a State review team's determination for individuals who are determined to be eligible for payments under title XVI on the basis of disability unless the State's title XIX plan includes a different definition of disability as described in paragraph (a)(1) of this section.

(2) Administrative expenses. Federal financial participation is available in any expenditures incident to the medical examination necessary to determine whether an individual is disabled.

(Sec. 1102, 49 Stat. 647 (42 U.S.C. 1302).)

[39 FR 9518, Mar. 11, 1974, as amended at 39 FR 10253, Apr. 19, 1974. Redesignated at 42 FR 52827, Sept. 30, 1977]

PART 449-SERVICES AND PAYMENT IN MEDICAL ASSISTANCE PRO

GRAMS

Sec.

449.10 Amount, duration, and scope of

medical assistance.

449.12 Standards for intermediate care fa

cilities.

449.13 Standards for intermediate care facility services in institutions for the mentally retarded or persons with related conditions.

449.20 Free choice of providers of medical services: State plan requirement.

Sec.

449.31 Prohibition against reassignment of

claims to benefits.

449.32 Direct payment to certain recipients for physicians' or dentists' services. 449.33 Standards for payment for skilled nursing facility and intermediate care facility services.

449.40 Cost sharing and similar charges. 449.41 Coordination of title XIX with part B of title XVIII, Social Security Act. 449.70 Liens and recoveries.

449.81

Time limitations for Federal financial participation in medical assistance payments.

449.82 Contracts with fiscal agents, health care project grant centers and providers reimbursed on a prepaid capitation basis.

AUTHORITY: Sec. 1102, 49 Stat. 647; 42 U.S.C. 1302.

NOTE: Nomenclature changes affecting this Part 449 appear at 42 FR 65117, Dec. 29, 1977.

§ 449.10 Amount, duration, and scope of medical assistance.

(a) State plan requirements. A State plan for medical assistance under title XIX of the Social Security Act must:

(1) Specify that at least the first five items of medical and remedial care and services, as set forth in paragraphs (b)(1) through (5) of this section, will be provided to the categorically needy.

(2) Specify that, if the plan includes the medically needy, at least the following items of medical and remedial care and services will be provided to the medically needy:

(i) The first five items as set forth in paragraph (b) (1) through (5) of this section; or

(ii) (A) Any seven of the items as set forth in paragraph (b)(1) through (16) of this section; and

(B) If the plan includes inpatient hospital services or skilled nursing facility services, physicians' services to eligible individuals when they are patients in a hospital or skilled nursing facility, even though physicians' services as defined in paragraph (b)(5) of this section are not otherwise included for the medically needy.

(3) In carrying out the requirements in paragraphs (a) (1) and (2) of this section with respect to the item of care set forth in paragraph (b)(4)(ii) of this section, provide:

(i) For establishment of administrative mechanisms to identify available

screening and diagnostic facilities, to assure that individuals under 21 years of age who are eligible for medical assistance may receive the services of such facilities, and to make available such services as may be included under the State plan;

(ii) For identification of all eligible individuals, including those who are in need of medical or remedial care and services furnished through title V grantees, and for assuring that individuals eligible for title V services are informed of such services and are referred to title V grantees for care and services, as appropriate;

(iii) For agreements to assure maximum utilization of existing screening, diagnostic, and treatment services provided by other public and voluntary agencies such as child health clinics, OEO Neighborhood Health Centers, day care centers, nursery schools, school health programs, family planning clinics, maternity clinics, and similar facilities;

(iv) That early and periodic screening and diagnosis to ascertain physical and mental defects, and treatment of conditions discovered within the limits of the State plan on the amount, duration, and scope of care and services, will be available to all eligible individuals under 21 years of age; and that, in addition, eyeglasses, hearing aids, and other kinds of treatment for visual and hearing defects, and at least such dental care as is necessary for relief of pain and infection and for restoration of teeth and maintenance of dental health, will be available, whether or not otherwise included under the State plan, subject, however, to such utilization controls as may be imposed by the State agency. See 45 CFR 205.146(c) relating to reduction in Federal financial participation under title IV-A of the Act for failure to provide early and periodic screening, diagnosis, and treatment of children.

(4) Provide for the inclusion of home health services which, as a minimum, shall include nursing services, home health aide services, and medical supplies, equipment and appliances, as specified in paragraph (b)(7) of this section. Under this requirement, home health services must be provided to all categorically needy individuals 21

years of age or over; to all categorically needy individuals under 21 years of age if the State plan provides for skilled nursing facility services for such individuals; and to all corresponding groups of medically needy individuals to whom skilled nursing facility services are available under the plan. Eligibility of any individual to receive home health services available under the plan shall not depend upon his need for, or discharge from, institutional care.

(5)(i) Specify the amount and/or duration of each item of medical and remedial care and services that will be provided to the categorically needy and to the medically needy, if the plan includes this latter group. Such items must be sufficient in amount, duration and scope to reasonably achieve their purpose. With respect to the required services for the categorically needy (paragraph (a)(1) of this section) and the medically needy (paragraph (a)(2) of this section), the State may not arbitrarily deny or reduce the amount, duration, or scope of, such services to an otherwise eligible individual solely because of the diagnosis, type of illness or condition. Appropriate limits may be placed on services based on such criteria as medical necessity or those contained in utilization or medical review procedures.

(ii) Specify that there will be provision for assuring necessary transportation of recipients to and from providers of services and describe the methods that will be used.

(6) Provide that the medical and remedial care and services made available to any categorically needy individual included under the plan will not be less in amount, duration, or scope than those made available to other individuals included under the program, except that:

(i) Skilled nursing facility services may be limited to persons 21 years of age or older;

(ii) Services to persons in institutions for tuberculosis or mental diseases may be limited to persons 65 years of age or over;

(iii) Inpatient psychiatric facility services as provided in section 1905(a)(16) of the act may be limited to individuals under age 21 (or under

age 22 for individuals receiving such services immediately prior to attaining age 21), as specified in section 1905(a)(16) of the act and paragraph (b)(16) of this section;

(iv) Early and periodic screening and diagnosis for individuals, and treatment of conditions found, as provided in section 1905(a)(4)(B) of the act, may be limited to individuals under 21 years of age;

(v) Benefits under part B of title XVIII of the Social Security Act made available to individuals through a "buy-in" agreement or payment of the premiums, or the payment of part or all of the deductibles, cost sharing or similar charges under part B, may be limited to such individuals for whom, by virtue of such action, these benefits are included as part of the plan;

(vi) Family planning services and supplies may be limited to individuals of child bearing age (including minors who can be considered to be sexually active) who desire such services and supplies; and

(vii) Care and services which are additional to those offered under the State plan and which are made available under a contract between the State (or a political subdivision thereof) and an organization providing comprehensive health services may be limited to individuals who reside in the geographic area served by the contracting organization and elect to obtain care and services from it.

(7) Provide that the medical and remedial care and services made available to a group (i.e., either the categorically needy or the medically needy) will be equal in amount, duration, and scope for all individuals within the group, with the permissible exceptions specified in paragraph (a)(6) of this section.

(8) Include a description of the methods that will be used to assure that the medical and remedial care and services are of high quality, and a description of the standards established by the State to assure high quality care.

(9) With respect to individuals eligible under the plan for family planning services and supplies, provide that there shall be freedom from coercion or pressure of mind and conscience,