HF 1321

as introduced - 89th Legislature (2015 - 2016) Posted on 03/02/2015 01:20pm

A bill for an act
relating to human services; phasing out nursing facility rate equalization;
amending Minnesota Statutes 2014, sections 256.9657, subdivision 1; 256B.433,
subdivision 3; 256B.48, subdivisions 1, 1b.

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

Section 1.

Minnesota Statutes 2014, section 256.9657, subdivision 1, is amended to read:

Subdivision 1.

Nursing home license surcharge.

(a) Effective July 1, 1993,
each non-state-operated nursing home licensed under chapter 144A shall pay to the
commissioner an annual surcharge according to the schedule in subdivision 4. The
surcharge shall be calculated as $620 per licensed bed. If the number of licensed beds
is reduced, the surcharge shall be based on the number of remaining licensed beds the
second month following the receipt of timely notice by the commissioner of human
services that beds have been delicensed. The nursing home must notify the commissioner
of health in writing when beds are delicensed. The commissioner of health must notify
the commissioner of human services within ten working days after receiving written
notification. If the notification is received by the commissioner of human services by
the 15th of the month, the invoice for the second following month must be reduced
to recognize the delicensing of beds. Beds on layaway status continue to be subject to
the surcharge. The commissioner of human services must acknowledge a medical care
surcharge appeal within 30 days of receipt of the written appeal from the provider.

(b) Effective July 1, 1994, the surcharge in paragraph (a) shall be increased to $625.

(c) Effective August 15, 2002, the surcharge under paragraph (b) shall be increased
to $990.

(d) Effective July 15, 2003, the surcharge under paragraph (c) shall be increased
to $2,815.

(e) The commissioner may reduce, and may subsequently restore, the surcharge
under paragraph (d) based on the commissioner's determination of a permissible surcharge.

deleted text begin (f) Between April 1, 2002, and August 15, 2004, a facility governed by this
subdivision may elect to assume full participation in the medical assistance program
by agreeing to comply with all of the requirements of the medical assistance program,
including the rate equalization law in section 256B.48, subdivision 1, paragraph (a), and
all other requirements established in law or rule, and to begin intake of new medical
assistance recipients. Rates will be determined under Minnesota Rules, parts 9549.0010
to 9549.0080. Rate calculations will be subject to limits as prescribed in rule and law.
Other than the adjustments in sections 256B.431, subdivisions 30 and 32; 256B.437,
subdivision 3, paragraph (b), Minnesota Rules, part 9549.0057, and any other applicable
legislation enacted prior to the finalization of rates, facilities assuming full participation
in medical assistance under this paragraph are not eligible for any rate adjustments until
the July 1 following their settle-up period.
deleted text end

Sec. 2.

Minnesota Statutes 2014, section 256B.433, subdivision 3, is amended to read:

Subd. 3.

Separate billings for therapy services.

Until new procedures are
developed under subdivision 4, payment for therapy services provided to nursing facility
residents that are billed separate from nursing facility's payment rate or according to
Minnesota Rules, parts 9505.0170 to 9505.0475, shall be subject to the following
requirements:

(a) The practitioner invoice must include, in a format specified by the commissioner,
the provider number of the nursing facility where the medical assistance recipient resides
regardless of the service setting.

(b) Nursing facilities that are related by ownership, control, affiliation, or
employment status to the vendor of therapy services shall report, in a format specified by
the commissioner, the revenues received during the reporting year for therapy services
provided to residents of the nursing facility. For rate years beginning on or after July 1,
1988, the commissioner shall offset the revenues received during the reporting year for
therapy services provided to residents of the nursing facility to the total payment rate of
the nursing facility by dividing the amount of offset by the nursing facility's actual resident
days. Except as specified in paragraphs (d) and (f), the amount of offset shall be the
revenue in excess of 108 percent of the cost removed from the cost report resulting from the
requirement of the commissioner to ensure the avoidance of double payments as determined
by section 256B.47. Therapy revenues that are specific to mental health services shall be
subject to this paragraph for rate years beginning after June 30, 1993. In establishing a
new base period for the purpose of setting operating cost payment rate limits and rates, the
commissioner shall not include the revenues offset in accordance with this section.

(c) For rate years beginning on or after July 1, 1987, nursing facilities shall limit
charges in total to vendors of therapy services for renting space, equipment, or obtaining
other services during the rate year to 108 percent of the annualized cost removed from the
reporting year cost report resulting from the requirement of the commissioner to ensure
the avoidance of double payments as determined by section 256B.47. If the arrangement
for therapy services is changed so that a nursing facility is subject to this paragraph instead
of paragraph (b), the cost that is used to determine rent must be adjusted to exclude the
annualized costs for therapy services that are not provided in the rate year. The maximum
charges to the vendors shall be based on the commissioner's determination of annualized
cost and may be subsequently adjusted upon resolution of appeals. Mental health services
shall be subject to this paragraph for rate years beginning after June 30, 1993.

(d) The commissioner shall require reporting of all revenues relating to the provision
of therapy services and shall establish a therapy cost, as determined by section 256B.47, to
revenue ratio for the reporting year ending in 1986. For subsequent reporting years, the
ratio may increase five percentage points in total until a new base year is established under
paragraph (e). Increases in excess of five percentage points may be allowed if adequate
justification is provided to and accepted by the commissioner. Unless an exception is
allowed by the commissioner, the amount of offset in paragraph (b) is the greater of the
amount determined in paragraph (b) or the amount of offset that is imputed based on one
minus the lesser of (1) the actual reporting year ratio or (2) the base reporting year ratio
increased by five percentage points, multiplied by the revenues.

(e) The commissioner may establish a new reporting year base for determining
the cost to revenue ratio.

(f) If the arrangement for therapy services is changed so that a nursing facility is
subject to the provisions of paragraph (b) instead of paragraph (c), an average cost to
revenue ratio based on the ratios of nursing facilities that are subject to the provisions of
paragraph (b) shall be imputed for paragraph (d).

(g) This section does not allow unrelated nursing facilities to reorganize related
organization therapy services and provide services among themselves to avoid offsetting
revenues. Nursing facilities that are found to be in violation of this provision shall be
subject to the penalty requirements of section 256B.48, subdivision 1, paragraph deleted text begin (f) deleted text end new text begin (h) new text end .

Sec. 3.

Minnesota Statutes 2014, section 256B.48, subdivision 1, is amended to read:

Subdivision 1.

Prohibited practices.

new text begin (a) new text end A nursing facility is not eligible to receive
medical assistance payments unless it deleted text begin refrains from all of the following: deleted text end new text begin complies with the
prohibitions and requirements in this subdivision.
new text end

deleted text begin (a) Charging deleted text end new text begin (b) A nursing facility must not charge new text end 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:

new text begin (1) new text end the nursing facility may deleted text begin (1) deleted text end new text begin (i) new text end charge private paying residents a higher rate for a
private room, and deleted text begin (2) deleted text end new text begin (ii) new text end charge new text begin private paying residents new text end for special services deleted text begin which deleted text end new text begin that new text end
are not included in the daily rate if new text begin , in addition to the daily rate paid by the commissioner, new text end
medical assistance residents are charged separately at the same rate for the same new text begin special
new text end services deleted text begin in addition to the daily rate paid by the commissioner. deleted text end new text begin ; new text end

new text begin (2) effective October 1, 2015, nursing facilities may charge private paying residents
rates up to two percent higher than the sum of the medical assistance allowable payment rate
in effect on September 30, 2015, and an adjustment equal to the incremental increase of any
other rate increase provided in law, for the RUGs group currently assigned to the resident;
new text end

new text begin (3) effective October 1, 2016, nursing facilities may charge private paying residents
rates up to four percent higher than the sum of the medical assistance allowable payment
rate in effect on September 30, 2016, and an adjustment equal to the incremental increase
of any other rate increase provided in law, for the RUGs group currently assigned to the
resident;
new text end

new text begin (4) effective October 1, 2017, nursing facilities may charge private paying residents
rates up to six percent higher than the sum of the medical assistance allowable payment
rate in effect on September 30, 2017, and an adjustment equal to the incremental increase
of any other rate increase provided in law, for the RUGs group currently assigned to the
resident; and
new text end

new text begin (5) effective October 1, 2018, nursing facilities may charge private paying residents
rates up to eight percent higher than the sum of the medical assistance allowable payment
rate in effect on September 30, 2018, and an adjustment equal to the incremental increase
of any other rate increase provided in law, for the RUGs group currently assigned to the
resident.
new text end

new text begin Nothing in this paragraph precludes a nursing facility from charging a rate allowable under
the nursing facility's single room election option under Minnesota Rules, part 9549.0060,
subpart 11, or the enhanced rates under section 256B.431, subdivision 32.
new text end

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 deleted text begin clause deleted text end new text begin paragraph new text end 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 deleted text begin clause deleted text end new text begin paragraph new text end . The damages
awarded shall include three times the payments that result from the violation, together with
costs and disbursements, including reasonable attorney 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 deleted text begin clause deleted text end new text begin paragraph new text end shall
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 begin (b) deleted text end new text begin (c) Effective October 1, 2019, paragraph (b) no longer applies, except that special
services, if offered, must be available to all residents 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 that 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. Nothing in this paragraph precludes a
nursing facility from charging a rate allowable under the nursing facility's single room
election option under Minnesota Rules, part 9549.0060, subpart 11, or the enhanced rates
under section 256B.431, subdivision 32.
new text end

new text begin (d) A nursing facility shall refrain from all of the following:
new text end

(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 new text begin . For residents on medical assistance, payment of the medical
assistance rate according to the state plan must be accepted as payment in full for services
included in the daily rate for continued stay, except where otherwise provided for in statute new text end ;

(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.

deleted text begin (c) Requiring deleted text end new text begin (e) A nursing facility must not require new text end 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.

deleted text begin (d) Providing deleted text end new text begin (f) A nursing facility must not provide new text end differential treatment on the
basis of status with regard to public assistance.

deleted text begin (e) Discriminating deleted text end new text begin (g) A nursing facility must not discriminate new text end in admissions,
services offered, or room assignment on the basis of status with regard to public assistance deleted text begin
or refusal to purchase special services deleted text end . new text begin Discrimination in new text end admissions deleted text begin discrimination deleted text end shall
include, but is not limited to deleted text begin :
deleted text end

deleted text begin (1) deleted text end basing admissions decisions upon deleted text begin 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 deleted text end new text begin information or assurances regarding current or future eligibility for new text end public
assistance for payment of nursing facility care deleted text begin costs; and deleted text end new text begin .
new text end

deleted text begin (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.
deleted text end

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.

deleted text begin (f) Requiring deleted text end new text begin (h) A nursing facility must not require new text end 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 fees or their equivalent.

deleted text begin (g) Refusing deleted text end new text begin (i) A nursing facility must not refuse new text end , 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.

new text begin (j) new text end 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 deleted text begin which deleted text end new text begin that new text end is in
violation of this deleted text begin section deleted text end new text begin subdivision new text end 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 deleted text begin which deleted text end new text begin that new text end 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.

Sec. 4.

Minnesota Statutes 2014, section 256B.48, subdivision 1b, is amended to read:

Subd. 1b.

Exception.

Notwithstanding any agreement between a nursing facility and
the Department of Human Services or the provisions of this section or section 256B.411,
other than subdivision 1a, the commissioner may authorize continued medical assistance
payments to a nursing facility which ceased intake of medical assistance recipients prior to
July 1, 1983, and which charges private paying residents rates that exceed those permitted
by subdivision 1, paragraph deleted text begin (a) deleted text end new text begin (b) new text end , for (i) residents who resided in the nursing facility
before July 1, 1983, or (ii) residents for whom the commissioner or any predecessors of the
commissioner granted a permanent individual waiver prior to October 1, 1983. Nursing
facilities seeking continued medical assistance payments under this subdivision shall make
the reports required under subdivision 2, except that on or after December 31, 1985, the
financial statements required need not be audited by or contain the opinion of a certified
public accountant or licensed public accountant, but need only be reviewed by a certified
public accountant or licensed public accountant. In the event that the state is determined
by the federal government to be no longer eligible for the federal share of medical
assistance payments made to a nursing facility under this subdivision, the commissioner
may cease medical assistance payments, under this subdivision, to that nursing facility.