HF 827

as introduced - 87th Legislature (2011 - 2012) Posted on 03/03/2011 11:09am

A bill for an act
relating to human services; placing a sunset on the nursing facility equal rates
provision; amending Minnesota Statutes 2010, section 256B.48, subdivision 1.

BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF MINNESOTA:

Section 1.

Minnesota Statutes 2010, section 256B.48, subdivision 1, is amended to read:

Subdivision 1.

Prohibited practices.

A nursing facility is not eligible to receive
medical assistance payments unless it refrains from all of the following:

(a) Charging private paying residents rates for similar services which exceed those
which are approved by the state agency for medical assistance recipients as determined by
the prospective desk audit rate, except under the following circumstances: the nursing
facility may (1) charge private paying residents a higher rate for a private room, and (2)
charge for special services which are not included in the daily rate if medical assistance
residents are charged separately at the same rate for the same services in addition to
the daily rate paid by the commissioner. Services covered by the payment rate must be
the same regardless of payment source. Special services, if offered, must be available
to all residents in all areas of the nursing facility and charged separately at the same
rate. Residents are free to select or decline special services. Special services must not
include services which must be provided by the nursing facility in order to comply with
licensure or certification standards and that if not provided would result in a deficiency
or violation by the nursing facility. Services beyond those required to comply with
licensure or certification standards must not be charged separately as a special service if
they were included in the payment rate for the previous reporting year. A nursing facility
that charges a private paying resident a rate in violation of this clause is subject to an
action by the state of Minnesota or any of its subdivisions or agencies for civil damages.
A private paying resident or the resident's legal representative has a cause of action for
civil damages against a nursing facility that charges the resident rates in violation of this
clause. The damages awarded shall include three times the payments that result from the
violation, together with costs and disbursements, including reasonable attorneys' fees or
their equivalent. A private paying resident or the resident's legal representative, the state,
subdivision or agency, or a nursing facility may request a hearing to determine the allowed
rate or rates at issue in the cause of action. Within 15 calendar days after receiving a
request for such a hearing, the commissioner shall request assignment of an administrative
law judge under sections 14.48 to 14.56 to conduct the hearing as soon as possible or
according to agreement by the parties. The administrative law judge shall issue a report
within 15 calendar days following the close of the hearing. The prohibition set forth in
this clause shall deleted text begin not apply to facilities licensed as boarding care facilities which are not
certified as skilled or intermediate care facilities level I or II for reimbursement through
medical assistance deleted text end new text begin expire effective July 1, 2011 new text end .

(b)(1) Charging, soliciting, accepting, or receiving from an applicant for admission
to the facility, or from anyone acting in behalf of the applicant, as a condition of
admission, expediting the admission, or as a requirement for the individual's continued
stay, any fee, deposit, gift, money, donation, or other consideration not otherwise required
as payment under the state plan;

(2) requiring an individual, or anyone acting in behalf of the individual, to loan
any money to the nursing facility;

(3) requiring an individual, or anyone acting in behalf of the individual, to promise
to leave all or part of the individual's estate to the facility; or

(4) requiring a third-party guarantee of payment to the facility as a condition of
admission, expedited admission, or continued stay in the facility.

Nothing in this paragraph would prohibit discharge for nonpayment of services in
accordance with state and federal regulations.

(c) Requiring any resident of the nursing facility to utilize a vendor of health care
services chosen by the nursing facility. A nursing facility may require a resident to use
pharmacies that utilize unit dose packing systems approved by the Minnesota Board of
Pharmacy, and may require a resident to use pharmacies that are able to meet the federal
regulations for safe and timely administration of medications such as systems with specific
number of doses, prompt delivery of medications, or access to medications on a 24-hour
basis. Notwithstanding the provisions of this paragraph, nursing facilities shall not restrict
a resident's choice of pharmacy because the pharmacy utilizes a specific system of unit
dose drug packing.

(d) Providing differential treatment on the basis of status with regard to public
assistance.

(e) Discriminating in admissions, services offered, or room assignment on the
basis of status with regard to public assistance or refusal to purchase special services.
Admissions discrimination shall include, but is not limited to:

(1) basing admissions decisions upon assurance by the applicant to the nursing
facility, or the applicant's guardian or conservator, that the applicant is neither eligible for
nor will seek public assistance for payment of nursing facility care costs; and

(2) engaging in preferential selection from waiting lists based on an applicant's
ability to pay privately or an applicant's refusal to pay for a special service.

The collection and use by a nursing facility of financial information of any applicant
pursuant to a preadmission screening program established by law shall not raise an
inference that the nursing facility is utilizing that information for any purpose prohibited
by this paragraph.

(f) Requiring any vendor of medical care as defined by section 256B.02, subdivision
7, who is reimbursed by medical assistance under a separate fee schedule, to pay any
amount based on utilization or service levels or any portion of the vendor's fee to the
nursing facility except as payment for renting or leasing space or equipment or purchasing
support services from the nursing facility as limited by section 256B.433. All agreements
must be disclosed to the commissioner upon request of the commissioner. Nursing
facilities and vendors of ancillary services that are found to be in violation of this provision
shall each be subject to an action by the state of Minnesota or any of its subdivisions or
agencies for treble civil damages on the portion of the fee in excess of that allowed by
this provision and section 256B.433. Damages awarded must include three times the
excess payments together with costs and disbursements including reasonable attorney's
fees or their equivalent.

(g) Refusing, for more than 24 hours, to accept a resident returning to the same
bed or a bed certified for the same level of care, in accordance with a physician's order
authorizing transfer, after receiving inpatient hospital services.

For a period not to exceed 180 days, the commissioner may continue to make
medical assistance payments to a nursing facility or boarding care home which is in
violation of this section if extreme hardship to the residents would result. In these cases
the commissioner shall issue an order requiring the nursing facility to correct the violation.
The nursing facility shall have 20 days from its receipt of the order to correct the violation.
If the violation is not corrected within the 20-day period the commissioner may reduce
the payment rate to the nursing facility by up to 20 percent. The amount of the payment
rate reduction shall be related to the severity of the violation and shall remain in effect
until the violation is corrected. The nursing facility or boarding care home may appeal the
commissioner's action pursuant to the provisions of chapter 14 pertaining to contested
cases. An appeal shall be considered timely if written notice of appeal is received by the
commissioner within 20 days of notice of the commissioner's proposed action.

In the event that the commissioner determines that a nursing facility is not eligible
for reimbursement for a resident who is eligible for medical assistance, the commissioner
may authorize the nursing facility to receive reimbursement on a temporary basis until the
resident can be relocated to a participating nursing facility.

Certified beds in facilities which do not allow medical assistance intake on July 1,
1984, or after shall be deemed to be decertified for purposes of section 144A.071 only.

new text begin EFFECTIVE DATE. new text end

new text begin This section is effective July 1, 2011.
new text end