Rep. Norm Thurston — Voting Record

Bill

Number

H.B. 369 (2020GS)

Sponsor

Rep. Eliason, S.

Final action

House/ filed 3/12/2020

Outcome

Failed / filed without passage

Summary

What it does

• This bill:
• places a moratorium on Medicaid certification of new or additional beds in intermediate care facilities for people with an intellectual disability; and
• makes technical changes.

Every vote on this bill

Bill text

MEDICAID AMENDMENTS
GENERAL SESSION
STATE OF UTAH
Chief Sponsor: Steve Eliason
Senate Sponsor: 
____________
LONG TITLE
General Description:
This bill places a moratorium on Medicaid certification of beds in certain intermediate
care facilities.
Highlighted Provisions:
This bill:
▸ places a moratorium on Medicaid certification of new or additional beds in
intermediate care facilities for people with an intellectual disability; and
▸ makes technical changes.
Money Appropriated in this Bill:
None
Other Special Clauses:
None
Utah Code Sections Affected:
AMENDS:
26-18-502
, as last amended by Laws of Utah 2016, Chapter 276
26-18-503
, as last amended by Laws of Utah 2019, Chapters 136 and 393
Be it enacted by the Legislature of the state of Utah:
Section 1. Section 
26-18-502
 is amended to read:
26-18-502.
Purpose -- Medicaid certification of nursing care facilities --
Moratorium on beds.
(1) The Legislature finds:
(a) that an oversupply of nursing care facilities in the state adversely affects the state
Medicaid program and the health of the people in the state;
(b) it is in the best interest of the state to prohibit nursing care facilities from receiving
Medicaid certification, except as provided by this part; and
(c) it is in the best interest of the state to encourage aging nursing care facilities with
Medicaid certification to renovate the nursing care facilities' physical facilities so that the
quality of life and clinical services for Medicaid residents are preserved.
(2) Medicaid reimbursement of nursing care facility programs is limited to:
(a) the number of nursing care facility programs with Medicaid certification as of May
9, 2016; and
(b) additional nursing care facility programs approved for Medicaid certification under
the provisions of Subsections 
26-18-503
(5) and (7).
(3) The division may not:
(a) except as authorized by Section 
26-18-503
:
(i) process initial applications for Medicaid certification or execute provider
agreements with nursing care facility programs; or
(ii) reinstate Medicaid certification for a nursing care facility whose certification
expired or was terminated by action of the federal or state government; [
or
]
(b) execute a Medicaid provider agreement with a certified program that moves to a
different physical facility, except as authorized by Subsection 
26-18-503
(3)[
.
]
; or
(c) notwithstanding Section 
26-18-503
, approve, after May 11, 2020, a new or
additional bed in an intermediate care facility for people with an intellectual disability for
Medicaid certification, unless Medicaid certification of the bed does not increase the total
number of Medicaid certified beds in intermediate care facilities for people with an intellectual
disability in the state.
Section 2. Section 
26-18-503
 is amended to read:
26-18-503.
Authorization to renew, transfer, or increase Medicaid certified
programs -- Reimbursement methodology.
(1) (a) The division may renew Medicaid certification of a certified program if the
program, without lapse in service to Medicaid recipients, has its nursing care facility program
certified by the division at the same physical facility as long as the licensed and certified bed
capacity at the facility has not been expanded, unless the director has approved additional beds
in accordance with Subsection (5).
(b) The division may renew Medicaid certification of a nursing care facility program
that is not currently certified if:
(i) since the day on which the program last operated with Medicaid certification:
(A) the physical facility where the program operated has functioned solely and
continuously as a nursing care facility; and
(B) the owner of the program has not, under this section or Section 
26-18-505
,
transferred to another nursing care facility program the license for any of the Medicaid beds in
the program; and
(ii) 
subject to Subsection 
26-18-503
(3)(c),
 the number of beds granted renewed
Medicaid certification does not exceed the number of beds certified at the time the program last
operated with Medicaid certification, excluding a period of time where the program operated
with temporary certification under Subsection 
26-18-504
(3).
(2) (a) The division may issue a Medicaid certification for a new nursing care facility
program if a current owner of the Medicaid certified program transfers its ownership of the
Medicaid certification to the new nursing care facility program and the new nursing care
facility program meets all of the following conditions:
(i) the new nursing care facility program operates at the same physical facility as the
previous Medicaid certified program;
(ii) the new nursing care facility program gives a written assurance to the director in
accordance with Subsection (4);
(iii) the new nursing care facility program receives the Medicaid certification within
one year of the date the previously certified program ceased to provide medical assistance to a
Medicaid recipient; and
(iv) the licensed and certified bed capacity at the facility has not been expanded, unless
the director has approved additional beds in accordance with Subsection (5).
(b) A nursing care facility program that receives Medicaid certification under the
provisions of Subsection (2)(a) does not assume the Medicaid liabilities of the previous nursing
care facility program if the new nursing care facility program:
(i) is not owned in whole or in part by the previous nursing care facility program; or
(ii) is not a successor in interest of the previous nursing care facility program.
(3) The division may issue a Medicaid certification to a nursing care facility program
that was previously a certified program but now resides in a new or renovated physical facility
if the nursing care facility program meets all of the following:
(a) the nursing care facility program met all applicable requirements for Medicaid
certification at the time of closure;
(b) the new or renovated physical facility is in the same county or within a five-mile
radius of the original physical facility;
(c) the time between which the certified program ceased to operate in the original
facility and will begin to operate in the new physical facility is not more than three years;
(d) if Subsection (3)(c) applies, the certified program notifies the department within 90
days after ceasing operations in its original facility, of its intent to retain its Medicaid
certification;
(e) the provider gives written assurance to the director in accordance with Subsection
(4) that no third party has a legitimate claim to operate a certified program at the previous
physical facility; and
(f) the bed capacity in the physical facility has not been expanded unless the director
has approved additional beds in accordance with Subsection (5).
(4) (a) The entity requesting Medicaid certification under Subsections (2) and (3) shall
give written assurances satisfactory to the director or the director's designee that:
(i) no third party has a legitimate claim to operate the certified program;
(ii) the requesting entity agrees to defend and indemnify the department against any
claims by a third party who may assert a right to operate the certified program; and
(iii) if a third party is found, by final agency action of the department after exhaustion
of all administrative and judicial appeal rights, to be entitled to operate a certified program at
the physical facility the certified program shall voluntarily comply with Subsection (4)(b).
(b) If a finding is made under the provisions of Subsection (4)(a)(iii):
(i) the certified program shall immediately surrender its Medicaid certification and
comply with division rules regarding billing for Medicaid and the provision of services to
Medicaid patients; and
(ii) the department shall transfer the surrendered Medicaid certification to the third
party who prevailed under Subsection (4)(a)(iii).
(5) (a) [
As provided in Subsection 
26-18-502
(2)(b),
] 
Except as provided in Subsection
26-18-502
(3)(c),
 the director may
, as provided in Subsection 
26-18-502
(2)(b),
 approve
additional nursing care facility programs for Medicaid certification, or additional beds for
Medicaid certification within an existing nursing care facility program, if a nursing care facility
or other interested party requests Medicaid certification for a nursing care facility program or
additional beds within an existing nursing care facility program, and the nursing care facility
program or other interested party complies with this section.
(b) The nursing care facility or other interested party requesting Medicaid certification
for a nursing care facility program or additional beds within an existing nursing care facility
program under Subsection (5)(a) shall submit to the director:
(i) proof of the following as reasonable evidence that bed capacity provided by
Medicaid certified programs within the county or group of counties impacted by the requested
additional Medicaid certification is insufficient:
(A) nursing care facility occupancy levels for all existing and proposed facilities will
be at least 90% for the next three years;
(B) current nursing care facility occupancy is 90% or more; or
(C) there is no other nursing care facility within a 35-mile radius of the nursing care
facility requesting the additional certification; and
(ii) an independent analysis demonstrating that at projected occupancy rates the nursing
care facility's after-tax net income is sufficient for the facility to be financially viable.
(c) Any request for additional beds as part of a renovation project are limited to the
maximum number of beds allowed in Subsection (7).
(d) The director shall determine whether to issue additional Medicaid certification by
considering:
(i) whether bed capacity provided by certified programs within the county or group of
counties impacted by the requested additional Medicaid certification is insufficient, based on
the information submitted to the director under Subsection (5)(b);
(ii) whether the county or group of counties impacted by the requested additional
Medicaid certification is underserved by specialized or unique services that would be provided
by the nursing care facility;
(iii) whether any Medicaid certified beds are subject to a claim by a previous certified
program that may reopen under the provisions of Subsections (2) and (3);
(iv) how additional bed capacity should be added to the long-term care delivery system
to best meet the needs of Medicaid recipients; and
(v) (A) whether the existing certified programs within the county or group of counties
have provided services of sufficient quality to merit at least a two-star rating in the Medicare
Five-Star Quality Rating System over the previous three-year period; and
(B) information obtained under Subsection (9).
(6) The department shall adopt administrative rules in accordance with Title 63G,
Chapter 3, Utah Administrative Rulemaking Act, to adjust the Medicaid nursing care facility
property reimbursement methodology to:
(a) only pay that portion of the property component of rates, representing actual bed
usage by Medicaid clients as a percentage of the greater of:
(i) actual occupancy; or
(ii) (A) for a nursing care facility other than a facility described in Subsection
(6)(a)(ii)(B), 85% of total bed capacity; or
(B) for a rural nursing care facility, 65% of total bed capacity; and
(b) not allow for increases in reimbursement for property values without major
renovation or replacement projects as defined by the department by rule.
(7) (a) [
Notwithstanding Subsection 
26-18-504
(3),
] 
Except as provided in Subsection
26-18-502
(3)(c),
 if a nursing care facility does not seek Medicaid certification for a bed under
Subsections (1) through (6), the department shall
, notwithstanding Subsections 
26-18-504
(3)(a)
and (b),
 grant Medicaid certification for additional beds in an existing Medicaid certified
nursing care facility that has 90 or fewer licensed beds, including Medicaid certified beds, in
the facility if:
(i) the nursing care facility program was previously a certified program for all beds but
now resides in a new facility or in a facility that underwent major renovations involving major
structural changes, with 50% or greater facility square footage design changes, requiring review
and approval by the department;
(ii) the nursing care facility meets the quality of care regulations issued by CMS; and
(iii) the total number of additional beds in the facility granted Medicaid certification
under this section does not exceed 10% of the number of licensed beds in the facility.
(b) The department may not revoke the Medicaid certification of a bed under this
Subsection (7) as long as the provisions of Subsection (7)(a)(ii) are met.
(8) (a) If a nursing care facility or other interested party indicates in its request for
additional Medicaid certification under Subsection (5)(a) that the facility will offer specialized
or unique services, but the facility does not offer those services after receiving additional
Medicaid certification, the director shall revoke the additional Medicaid certification.
(b) The nursing care facility program shall obtain Medicaid certification for any
additional Medicaid beds approved under Subsection (5) or (7) within three years of the date of
the director's approval, or the approval is void.
(9) (a) If the director makes an initial determination that quality standards under
Subsection (5)(d)(v) have not been met in a rural county or group of rural counties over the
previous three-year period, the director shall, before approving certification of additional
Medicaid beds in the rural county or group of counties:
(i) notify the certified program that has not met the quality standards in Subsection
(5)(d)(v) that the director intends to certify additional Medicaid beds under the provisions of
Subsection (5)(d)(v); and
(ii) consider additional information submitted to the director by the certified program
in a rural county that has not met the quality standards under Subsection (5)(d)(v).
(b) The notice under Subsection (9)(a) does not give the certified program that has not
met the quality standards under Subsection (5)(d)(v), the right to legally challenge or appeal the
director's decision to certify additional Medicaid beds under Subsection (5)(d)(v).