C.F.R. » Title 42 » CHAPTER IV—CENTERS FOR MEDICARE & MEDICAID SERVICES, DEPARTMENT OF HEALTH AND HUMAN SERVICES › SUBCHAPTER C—MEDICAL ASSISTANCE PROGRAMS › PART 456—UTILIZATION CONTROL › Subpart J—Penalty for Failure To Make a Satisfactory Showing of an Effective Institutional Utilization Control Program

42 C.F.R. § 456.653

Acceptable reasons for not meeting requirements for annual on-site review

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The Administrator will find an agency's showing satisfactory, even if it failed to meet the annual review requirements of § 456.652(a)(4), if—

(a) The agency demonstrates that—

(1) It completed reviews by the end of the quarter in at least 98 percent of all facilities requiring review by the end of the quarter;

(2) It completed reviews by the end of the quarter in all facilities with 200 or more certified Medicaid beds requiring review by the end of the quarter; and

(3) With respect to all unreviewed facilities, the agency exercised good faith and due diligence by attempting to review those facilities and would have succeeded but for events beyond its control which it could not have reasonably anticipated; or

(b) The agency demonstrates that it failed to meet the standard in paragraph (a) (1) and (2) of this section by the close of the quarter for technical reasons, but met the standard within 30 days after the close of the quarter. Technical reasons are circumstances within the agency's control.

(c) Facilities that are reviewed under paragraph (b) of this section, after the quarter in which they were due for review, retain their original anniversary quarter due date for purposes of subsequent reviews.

Notes of Decisions
Cited in 5 cases, 1987–1992 · leading case: Delaware Div. of Health & Soc. Servs. v. United States Dep't of Health & Human Servs., 665 F. Supp. 1104 (D. Del. 1987).
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Delaware Div. of Health & Soc. Servs. v. United States Dep't of Health & Human Servs., 665 F. Supp. 1104 (D. Del. 1987). · cites it 10× “Even if not every patient in every State facility is inspected, the State’s quarterly showing may be satisfactory if one or another statutory exception is satisfied.”
Commonwealth of Pennsylvania v. United States Dep't of Health & Human Servs., 928 F.2d 1378 (3d Cir. 1991). · cites it 6× “See 42 C.F.R. § 456.653 (1989). The regulation pertinent here provides that the “good faith and due diligence” exception is available only if the state would have completed the review of all facilities “but for events beyond its control which it could not have reasonably…”
Colorado Dep't of Soc. Servs. v. Dep't of Health & Human Servs., 928 F.2d 961 (10th Cir. 1991). · cites it 7× “The Secretary’s regulation implementing section 1396b(g)(4)(B) is found at 42 C.F.R. § 456.653 . This regulation explains a state has exercised “good faith and due diligence” and thus will not be subject to a penalty if the state “would have succeeded [in inspecting 100% of all…”
Johnson v. Sullivan, 758 F. Supp. 1496 (N.D. Ga. 1991). · cites it 2× “42 C.F.R. § 456.653 (1989). Under the Secretary’s regulations, because the State chooses to utilize only facility generated lists of Medicaid patients, which is a matter within its control, it does not qualify for the good faith and due diligence exception.”
Arkansas ex rel. Yamauchi v. Sullivan, 969 F.2d 622 (8th Cir. 1992). “42 C.F.R. § 456.653 . The regulation at issue in the present case provides that the good faith and due diligence exception is available only if the state would have completed reviews of all facilities requiring review “but for events beyond its control which it could not have…”
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