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S.F. No. 1948,  as introduced - 87th Legislative Session (2011-2012)   Posted on Feb 16, 2012

1.1A bill for an act
1.2relating to human services; modifying nursing facility rate equalization;
1.3amending Minnesota Statutes 2010, section 256B.48, subdivision 1.

1.5    Section 1. Minnesota Statutes 2010, section 256B.48, subdivision 1, is amended to read:
1.6    Subdivision 1. Prohibited practices. A nursing facility is not eligible to receive
1.7medical assistance payments unless it refrains from all of the following:.
1.8(a) Charging private paying residents rates for similar services which exceed those
1.9which are approved by the state agency for medical assistance recipients as determined by
1.10the prospective desk audit rate, except under the following circumstances:
1.11(1) the nursing facility may:
1.12(1) (i) charge private paying residents a higher rate for a private room,; and
1.13(2) (ii) charge for special services which are not included in the daily rate if medical
1.14assistance residents are charged separately at the same rate for the same services in
1.15addition to the daily rate paid by the commissioner.;
1.16(2) effective July 1, 2012, through September 30, 2013, nursing facilities may
1.17charge private paying residents rates up to two percent higher than the allowable medical
1.18assistance payment rate determined by the commissioner for the RUGS group currently
1.19assigned to the resident; and
1.20(3) effective for rate years beginning October 1, 2013, and after, nursing facilities
1.21may charge private paying residents rates greater than the allowable medical assistance
1.22payment rate determined by the commissioner for the RUGS group currently assigned
1.23to the resident by up to two percent more than the differential in effect on the prior
1.24September 30. Nothing in this section precludes a nursing facility from charging a rate
2.1allowable under the facility's single room election option under Minnesota Rules, part
2.29549.0060, subpart 11, or the enhanced rates under section 256B.431, subdivision 32.
2.3Services covered by the payment rate must be the same regardless of payment source.
2.4Special services, if offered, must be available to all residents in all areas of the nursing
2.5facility and charged separately at the same rate. Residents are free to select or decline
2.6special services. Special services must not include services which must be provided by
2.7the nursing facility in order to comply with licensure or certification standards and that
2.8if not provided would result in a deficiency or violation by the nursing facility. Services
2.9beyond those required to comply with licensure or certification standards must not be
2.10charged separately as a special service if they were included in the payment rate for the
2.11previous reporting year. A nursing facility that charges a private paying resident a rate in
2.12violation of this clause paragraph is subject to an action by the state of Minnesota or any of
2.13its subdivisions or agencies for civil damages. A private paying resident or the resident's
2.14legal representative has a cause of action for civil damages against a nursing facility that
2.15charges the resident rates in violation of this clause paragraph. The damages awarded shall
2.16include three times the payments that result from the violation, together with costs and
2.17disbursements, including reasonable attorneys' attorney fees or their equivalent. A private
2.18paying resident or the resident's legal representative, the state, subdivision or agency, or a
2.19nursing facility may request a hearing to determine the allowed rate or rates at issue in
2.20the cause of action. Within 15 calendar days after receiving a request for such a hearing,
2.21the commissioner shall request assignment of an administrative law judge under sections
2.2214.48 to 14.56 to conduct the hearing as soon as possible or according to agreement by
2.23the parties. The administrative law judge shall issue a report within 15 calendar days
2.24following the close of the hearing. The prohibition set forth in this clause paragraph shall
2.25not apply to facilities licensed as boarding care facilities which are not certified as skilled
2.26or intermediate care facilities level I or II for reimbursement through medical assistance.
2.27(b)(1) Charging, soliciting, accepting, or receiving from an applicant for admission
2.28to the facility, or from anyone acting in behalf of the applicant, as a condition of admission,
2.29expediting the admission, or as a requirement for the individual's continued stay, any fee,
2.30deposit, gift, money, donation, or other consideration not otherwise required as payment
2.31under the state plan. For residents on medical assistance, medical assistance payments
2.32according to the state plan must be accepted as payment in full for continued stay, except
2.33where otherwise provided for under statute;
2.34(2) requiring an individual, or anyone acting in behalf of the individual, to loan
2.35any money to the nursing facility;
3.1(3) requiring an individual, or anyone acting in behalf of the individual, to promise
3.2to leave all or part of the individual's estate to the facility; or
3.3(4) requiring a third-party guarantee of payment to the facility as a condition of
3.4admission, expedited admission, or continued stay in the facility.
3.5Nothing in this paragraph would prohibit discharge for nonpayment of services in
3.6accordance with state and federal regulations.
3.7(c) Requiring any resident of the nursing facility to utilize a vendor of health care
3.8services chosen by the nursing facility. A nursing facility may require a resident to use
3.9pharmacies that utilize unit dose packing systems approved by the Minnesota Board of
3.10Pharmacy, and may require a resident to use pharmacies that are able to meet the federal
3.11regulations for safe and timely administration of medications such as systems with specific
3.12number of doses, prompt delivery of medications, or access to medications on a 24-hour
3.13basis. Notwithstanding the provisions of this paragraph, nursing facilities shall not restrict
3.14a resident's choice of pharmacy because the pharmacy utilizes a specific system of unit
3.15dose drug packing.
3.16(d) Providing differential treatment on the basis of status with regard to public
3.18(e) Discriminating in admissions, services offered, or room assignment on the
3.19basis of status with regard to public assistance or refusal to purchase special services.
3.20Discrimination in admissions discrimination, services offered, or room assignment shall
3.21include, but is not limited to:
3.22(1) basing admissions decisions upon assurance by the applicant to the nursing
3.23facility, or the applicant's guardian or conservator, that the applicant is neither eligible for
3.24nor will seek information or assurances regarding current or future eligibility for public
3.25assistance for payment of nursing facility care costs; and
3.26(2) engaging in preferential selection from waiting lists based on an applicant's
3.27ability to pay privately or an applicant's refusal to pay for a special service.
3.28The collection and use by a nursing facility of financial information of any applicant
3.29pursuant to a preadmission screening program established by law shall not raise an
3.30inference that the nursing facility is utilizing that information for any purpose prohibited
3.31by this paragraph.
3.32(f) Requiring any vendor of medical care as defined by section 256B.02, subdivision
, who is reimbursed by medical assistance under a separate fee schedule, to pay any
3.34amount based on utilization or service levels or any portion of the vendor's fee to the
3.35nursing facility except as payment for renting or leasing space or equipment or purchasing
3.36support services from the nursing facility as limited by section 256B.433. All agreements
4.1must be disclosed to the commissioner upon request of the commissioner. Nursing
4.2facilities and vendors of ancillary services that are found to be in violation of this provision
4.3shall each be subject to an action by the state of Minnesota or any of its subdivisions or
4.4agencies for treble civil damages on the portion of the fee in excess of that allowed by
4.5this provision and section 256B.433. Damages awarded must include three times the
4.6excess payments together with costs and disbursements including reasonable attorney's
4.7fees or their equivalent.
4.8(g) Refusing, for more than 24 hours, to accept a resident returning to the same
4.9bed or a bed certified for the same level of care, in accordance with a physician's order
4.10authorizing transfer, after receiving inpatient hospital services.
4.11(h) For a period not to exceed 180 days, the commissioner may continue to make
4.12medical assistance payments to a nursing facility or boarding care home which is in
4.13violation of this section if extreme hardship to the residents would result. In these cases
4.14the commissioner shall issue an order requiring the nursing facility to correct the violation.
4.15The nursing facility shall have 20 days from its receipt of the order to correct the violation.
4.16If the violation is not corrected within the 20-day period the commissioner may reduce
4.17the payment rate to the nursing facility by up to 20 percent. The amount of the payment
4.18rate reduction shall be related to the severity of the violation and shall remain in effect
4.19until the violation is corrected. The nursing facility or boarding care home may appeal the
4.20commissioner's action pursuant to the provisions of chapter 14 pertaining to contested
4.21cases. An appeal shall be considered timely if written notice of appeal is received by the
4.22commissioner within 20 days of notice of the commissioner's proposed action.
4.23In the event that the commissioner determines that a nursing facility is not eligible
4.24for reimbursement for a resident who is eligible for medical assistance, the commissioner
4.25may authorize the nursing facility to receive reimbursement on a temporary basis until the
4.26resident can be relocated to a participating nursing facility.
4.27Certified beds in facilities which do not allow medical assistance intake on July 1,
4.281984, or after shall be deemed to be decertified for purposes of section 144A.071 only.