Over the last several decades, the Social Security Act (SSA) has been amended several times to help reduce the institutional bias in Medicaid long-term care. These amendments have given states increasing authority to create community-based systems of care and still receive federal financial participation (FFP) for the home and community-based services (HCBS) they provide. Under Section 1915(c) of the SSA, states can ask the Secretary of Health and Human Services (HHS) – via the Centers for Medicare and Medicaid Services (CMS) – to waive certain statutory requirements of the SSA, including the requirement to provide the same services to everyone whose needs and income make them eligible ("comparability") and the requirement to provide the same services throughout the state ("statewideness"). Under Section 1915(i), States can amend their Medicaid plans to provide HCBS based on needs-based criteria, rather than diagnosis, and to individuals whose needs do not necessarily rise to institutional level of care. Under Section 1915(j), states can amend their plans to give individuals the power to self-direct their personal assistance services (PAS). Finally, under Section 1115, states can create so-called "demonstration" programs to deliver community-based care in innovative ways.
By giving individuals an alternative to life in a nursing home, these programs have helped states rebalance long-term care away from institutions and toward communities. They work very well for people who are actively looking for community options – individuals and families who have already decided that institutional care is not appropriate – but they do little by themselves to improve access to HCBS for individuals who apply to, or already live in, nursing facilities (NFs). For many people, placement in a NF is the best way to care for their chronic medical needs. For others, however, NF placement may not be appropriate, especially if they have needs that the NF is not equipped to meet, such as those that accompany a serious mental illness or intellectual disability/developmental disability. Preadmission Screening and Resident Review (PASRR) was designed to ensure that individuals are not admitted to or retained in NFs when there are superior alternatives.
PASRR was created in 1987 through language in the Omnibus Budget Reconciliation Act (OBRA). It has three goals:
- to identify individuals with mental illness (MI) and/or intellectual disability (ID. Previously termed mental retardation, or MR)
- to ensure they are placed appropriately, whether in the community or in a NF; and
- to ensure that they receive the services they require for their MI or ID (wherever they are placed).
The authors of the PASRR legislation required that individuals be assessed when they apply to a NF (the Preadmission Screen, or PAS), and again on a systematic basis after admission (the Resident Review, or RR, initially an annual requirement, changed by subsequent legislation to follow changes in resident status). Though the enabling legislation was passed prior to the 1990 Americans with Disabilities Act (ADA), the regulations that govern PASRR were written post-ADA and reflect the intent of that law. The PASRR regulations also prefigure the person-centered, community-focused ruling of Olmstead v. L.C. (1999), in which the Supreme Court found that the requirements of Title II of the ADA apply to persons with mental disabilities, and that states must serve qualified individuals "in the most integrated setting appropriate" to their needs.
Properly tied to other programs such as Money Follows the Person (MFP), PASRR can serve as the gateway to community services, however they are structured or funded (whether with local resources, state-only funds, or Medicaid dollars). Indeed, PASRR has a power unique in all of Title XIX: to ensure that individuals are appropriately placed, and thereby to help states achieve compliance with the requirements of Olmstead.
As a process, PASRR has two core components. The Level I screen, given to all NF applicants, should yield a positive result if the individual might have MI and/or ID (i.e., it should produce no false negatives). The Level II evaluation is meant to "look behind" the diagnosis of record to confirm or disconfirm a positive Level I or prior Level II; to determine whether placement or continued stay in the requested or current NF is appropriate; and to enumerate the MI/ID services the individual needs, including services the NF can provide under its per diem and services that must be arranged separately (so-called "specialized services").
Despite its power and special status in Medicaid law, PASRR has generally not fulfilled its promise. This is in part because responsibility for PASRR is shared by three different state agencies:
- the Medicaid agency, which has ultimate oversight;
- the state mental health authority (SMHA), which can issue Level II determinations but cannot perform Level II evaluations; and
- the state intellectual disability authority (SIDA), which can perform Level II evaluations and determinations, but can choose to delegate either.
Even though the Medicaid agency has legal and financial responsibility for PASRR, it cannot countermand the determinations of the other two agencies, which have legal implications and are intended to serve as the basis for plans of care.
The PASRR regulations themselves often create barriers to successful implementation. They are at once dauntingly complex and (by design) open to state interpretation. One source of complexity involves the nature of specialized services (SS). SS are sometimes defined as services that must be provided in the NF; at other times, they are defined as services that cannot be provided in the NF and must therefore be provided in another kind of facility, such as an ICF/ID or an inpatient psychiatric unit. In addition, states are not required to use specific instruments to diagnose MI or ID. They are required only to use instruments that have been validated. The regulations also give states considerable freedom to define the qualifications of their Level II evaluators. For PASRR/MI, the history and physical must be performed by a physician (or under physician review); the remainder of the evaluation can be performed by anyone the state deems to be qualified. Likewise, for PASRR/ID, the test of intellectual functioning must be performed by a licensed PhD psychologist, but – again – the rest of the evaluation can be performed by any qualified professional.