SF 1758

as introduced - 85th Legislature (2007 - 2008) Posted on 12/15/2009 12:00am

A bill for an act
relating to human services; changing the rate a nursing facility may charge a
private pay resident; amending Minnesota Statutes 2006, section 256B.48,
subdivision 1.

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

Section 1.

Minnesota Statutes 2006, 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:

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 deleted text begin , deleted text end new text begin ; new text end and deleted text begin (2) deleted text end new text begin (ii) new text end 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 deleted text begin . deleted text end new text begin ;
new text end

new text begin (2) effective July 1, 2007, nursing facilities may charge private paying residents
rates up to two percent higher than the allowable payment rate in effect on June 30, 2007,
plus an adjustment equal to any other rate increase provided in law, for the RUGs group
currently assigned to the resident;
new text end

new text begin (3) effective July 1, 2008, nursing facilities may charge private paying residents
rates up to four percent higher than the allowable payment rate in effect on June 30,
2007, plus an adjustment equal to any other rate increase provided in law, for the RUGs
group currently assigned to the resident;
new text end

new text begin (4) effective July 1, 2009, nursing facilities may charge private paying residents
rates up to six percent higher than the allowable payment rate in effect on June 30, 2007,
plus an adjustment equal to 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 July 1, 2010, nursing facilities may charge private paying residents
rates up to eight percent higher than the allowable payment rate in effect on June 30,
2007, plus an adjustment equal to any other rate increase provided in law, for the RUGs
group currently assigned to the resident.
new text end

new text begin For purposes of this subdivision, the allowable payment rate under section 256B.434
includes adjustments for enhanced rates during the first 30 days under section 256B.431,
subdivision 32, and private room differentials under clause (1), item (i), and Minnesota
Rules, part 9549.0060, subpart 11, item C. Nothing in this section precludes a nursing
facility from charging a rate allowable under the facility's single room election option
under Minnesota Rules, part 9549.0060, subpart 11. 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 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 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.

(b) new text begin Effective July 1, 2011, paragraph (a) 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 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.
new text end

new text begin (c) 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 deleted text begin ; deleted text end new text begin . For residents on medical assistance, medical assistance payment
according to the state plan must be accepted as payment in full for continued stay, except
where otherwise provided for under 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) deleted text end new text begin (d) new text end 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.

deleted text begin (d) deleted text end new text begin (e) new text end Providing differential treatment on the basis of status with regard to public
assistance.

deleted text begin (e) deleted text end new text begin (f) new text end Discriminating 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

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) deleted text end new text begin (g) new text end 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.

deleted text begin (g) deleted text end new text begin (h) new text end 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.

new text begin (i) 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 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.