As Passed by the Senate

128th General Assembly Regular Session 2009-2010

Am. Sub. H. B. No. 398

Representatives Newcomb, Lehner 

Cosponsors: Representatives Harwood, Derickson, Domenick, Grossman, Garland, Hagan, Evans, Snitchler, Phillips, Williams, B., Dyer, Fende, Wachtmann, Ruhl, Hackett, Letson, Stebelton, Harris, Bubp, Hottinger, Stautberg, Pillich, Murray, Driehaus, Brown, McClain, Weddington, Mallory, Goyal, Baker, Blessing, Dolan, Yuko, Okey, Foley, Adams, R., Amstutz, Bacon, Balderson, Batchelder, Beck, Belcher, Boose, Boyd, Burke, Carney, Celeste, Chandler, Combs, Daniels, DeBose, DeGeeter, Gardner, Gerberry, Goodwin, Hall, Heard, Hite, Koziura, Luckie, Lundy, Maag, Martin, Mecklenborg, Moran, Morgan, Oelslager, Otterman, Patten, Pryor, Reece, Sayre, Sears, Skindell, Slesnick, Stewart, Szollosi, Uecker, Walter, Winburn, Zehringer 

Senators Carey, Miller, D., Sawyer, Kearney, Buehrer, Cafaro, Gibbs, Gillmor, Grendell, Harris, Hughes, Miller, R., Morano, Schaffer, Seitz, Fedor, Turner 

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A BILL

To amend sections 173.401, 173.501, 3702.51, 3702.59,

1

5111.65, 5111.651, 5111.68, 5111.681, 5111.685,

2

5111.686, 5111.688, 5111.874, 5111.875, and

3

5111.894; to amend, for the purpose of adopting a

4

new section number as indicated in parentheses,

5

section 5111.688 (5111.689); and to enact new

6

section 5111.688 and section 173.404 of the

7

Revised Code; and to amend Section 209.20 of Am.

8

Sub. H.B. 1 of the 128th General Assembly to

9

revise the waiting list provisions of the

10

PASSPORT, PACE, and Assisted Living programs, to

11

revise the law governing the collection of

12

long-term care facilities' Medicaid debts, and to

13

revise the law governing the reasons for denying a

14

Certificate of Need application.

15

BE IT ENACTED BY THE GENERAL ASSEMBLY OF THE STATE OF OHIO:

Section 1. That sections 173.401, 173.501, 3702.51, 3702.59,	16
5111.65, 5111.651, 5111.68, 5111.681, 5111.685, 5111.686,	17
5111.688, 5111.874, 5111.875, and 5111.894 be amended; section	18
5111.688 (5111.689) be amended for the purpose of adopting a new	19
section number as indicated in parentheses; and new section	20
5111.688 and section 173.404 of the Revised Code be enacted to	21
read as follows:	22

Sec. 173.401.  (A) As used in this section:

23

"Area agency on aging" has the same meaning as in section	24
173.14 of the Revised Code.	25

"Long-term care consultation program" means the program the	26
department of aging is required to develop under section 173.42 of	27
the Revised Code.	28

"Long-term care consultation program administrator" or	29
"administrator" means the department of aging or, if the	30
department contracts with an area agency on aging or other entity	31
to administer the long-term care consultation program for a	32
particular area, that agency or entity.	33

"Nursing facility" has the same meaning as in section 5111.20	34
of the Revised Code.	35

"PASSPORT waiver" means the federal medicaid waiver granted	36
by the United States secretary of health and human services that	37
authorizes the PASSPORT program.	38

(B) The director of job and family services shall submit to	39
the United States secretary of health and human services an	40
amendment to the PASSPORT waiver that authorizes additional	41
enrollments in the PASSPORT program pursuant to this section.	42
Beginning with the month following the month in which the United	43
States secretary approves the amendment and eachThe department	44
shall establish a home first component of the PASSPORT program	45
under which eligible individuals may be enrolled in the PASSPORT	46
program in accordance with this section. An individual is eligible	47
for the PASSPORT program's home first component if all of the	48
following apply:	49

(1) The individual is eligible for the PASSPORT program.

50

(2) The individual is on the unified waiting list established	51
under section 173.404 of the Revised Code.	52

(3) At least one of the following applies:

53

(a) The individual has been admitted to a nursing facility.

54

(b) A physician has determined and documented in writing that	55
the individual has a medical condition that, unless the individual	56
is enrolled in home and community-based services such as the	57
PASSPORT program, will require the individual to be admitted to a	58
nursing facility within thirty days of the physician's	59
determination.	60

(c) The individual has been hospitalized and a physician has	61
determined and documented in writing that, unless the individual	62
is enrolled in home and community-based services such as the	63
PASSPORT program, the individual is to be transported directly	64
from the hospital to a nursing facility and admitted.	65

(d) Both of the following apply:

66

(i) The individual is the subject of a report made under	67
section 5101.61 of the Revised Code regarding abuse, neglect, or	68
exploitation or such a report referred to a county department of	69
job and family services under section 5126.31 of the Revised Code	70
or has made a request to a county department for protective	71
services as defined in section 5101.60 of the Revised Code.	72

(ii) A county department of job and family services and an	73
area agency on aging have jointly documented in writing that,	74
unless the individual is enrolled in home and community-based	75
services such as the PASSPORT program, the individual should be	76
admitted to a nursing facility.	77

(C) Each month thereafter, each area agency on aging shall	78
determine whetheridentify individuals who resideresiding in the	79
area that the area agency on aging serves andwho are on a waiting	80
listeligible for the home first component of the PASSPORT program	81
have been admitted to a nursing facility. IfWhen an area agency	82
on aging determines thatidentifies such an individual has been	83
admitted to a nursing facility, the agency shall notify the	84
long-term care consultation program administrator serving the area	85
in which the individual resides about the determination. The	86
administrator shall determine whether the PASSPORT program is	87
appropriate for the individual and whether the individual would	88
rather participate in the PASSPORT program than continue residing	89
or begin to reside in thea nursing facility. If the	90
administrator determines that the PASSPORT program is appropriate	91
for the individual and the individual would rather participate in	92
the PASSPORT program than continue residingor begin to reside in	93
thea nursing facility, the administrator shall so notify the	94
department of aging. On receipt of the notice from the	95
administrator, the department of aging shall approve the	96
individual's enrollment in the PASSPORT program regardless of the	97
PASSPORT program'sunified waiting list and even though the	98
enrollment causes enrollment in the program to exceed the limit	99
that would otherwise applyestablished under section 173.404 of	100
the Revised Code, unless the enrollment would cause the PASSPORT	101
program to exceed any limit on the number of individuals who may	102
be enrolled in the program as set by the United States secretary	103
of health and human services in the PASSPORT waiver.	104

(D) Each quarter, the department of aging shall certify to	105
the director of budget and management the estimated increase in	106
costs of the PASSPORT program resulting from enrollment of	107
individuals in the PASSPORT program pursuant to this section.	108

Sec. 173.404.  (A) As used in this section:

109

(1) "Department of aging-administered medicaid waiver	110
component" means each of the following:	111

(a) The PASSPORT program created under section 173.40 of the	112
Revised Code;	113

(b) The choices program created under section 173.403 of the	114
Revised Code;	115

(c) The assisted living program created under section 5111.89	116
of the Revised Code.	117

(2) "PACE program" means the component of the medicaid	118
program the department of aging administers pursuant to section	119
173.50 of the Revised Code.	120

(B) The department of aging shall establish a unified waiting	121
list for department of aging-administered medicaid waiver	122
components and the PACE program. Only individuals eligible for a	123
department of aging-administered medicaid waiver component or the	124
PACE program may be placed on the unified waiting list.	125

Sec. 173.501.  (A) As used in this section:

126

"Nursing facility" has the same meaning as in section 5111.20	127
of the Revised Code.	128

"PACE provider" has the same meaning as in 42 U.S.C.	129
1396u-4(a)(3).	130

(B) The department of aging shall establish a home first	131
component of the PACE program under which eligible individuals may	132
be enrolled in the PACE program in accordance with this section.	133
An individual is eligible for the PACE program's home first	134
component if all of the following apply:	135

(1) The individual is eligible for the PACE program.

136

(2) The individual is on the unified waiting list established	137
under section 173.404 of the Revised Code.	138

(3) At least one of the following applies:

139

(a) The individual has been admitted to a nursing facility.

140

(b) A physician has determined and documented in writing that	141
the individual has a medical condition that, unless the individual	142
is enrolled in home and community-based services such as the PACE	143
program, will require the individual to be admitted to a nursing	144
facility within thirty days of the physician's determination.	145

(c) The individual has been hospitalized and a physician has	146
determined and documented in writing that, unless the individual	147
is enrolled in home and community-based services such as the PACE	148
program, the individual is to be transported directly from the	149
hospital to a nursing facility and admitted.	150

(d) Both of the following apply:

151

(i) The individual is the subject of a report made under	152
section 5101.61 of the Revised Code regarding abuse, neglect, or	153
exploitation or such a report referred to a county department of	154
job and family services under section 5126.31 of the Revised Code	155
or has made a request to a county department for protective	156
services as defined in section 5101.60 of the Revised Code.	157

(ii) A county department of job and family services and an	158
area agency on aging have jointly documented in writing that,	159
unless the individual is enrolled in home and community-based	160
services such as the PACE program, the individual should be	161
admitted to a nursing facility.	162

(C) Each month, the department of aging shall determine	163
whetheridentify individuals who are on a waiting listeligible	164
for the home first component of the PACE program have been	165
admitted to a nursing facility. IfWhen the department determines	166
thatidentifies such an individual has been admitted to a nursing	167
facility, the department shall notify the PACE provider serving	168
the area in which the individual resides about the determination.	169
The PACE provider shall determine whether the PACE program is	170
appropriate for the individual and whether the individual would	171
rather participate in the PACE program than continue residingor	172
begin to reside in thea nursing facility. If the PACE provider	173
determines that the PACE program is appropriate for the individual	174
and the individual would rather participate in the PACE program	175
than continue residingor begin to reside in thea nursing	176
facility, the PACE provider shall so notify the department of	177
aging. On receipt of the notice from the PACE provider, the	178
department of aging shall approve the individual's enrollment in	179
the PACE program in accordance with priorities established in	180
rules adopted under section 173.50 of the Revised Code. Each	181

(D) Each quarter, the department of aging shall certify to	182
the director of budget and management the estimated increase in	183
costs of the PACE program resulting from enrollment of individuals	184
in the PACE program pursuant to this section.	185

Sec. 3702.51.  As used in sections 3702.51 to 3702.62 of the	186
Revised Code:	187

(A) "Applicant" means any person that submits an application	188
for a certificate of need and who is designated in the application	189
as the applicant.	190

(B) "Person" means any individual, corporation, business	191
trust, estate, firm, partnership, association, joint stock	192
company, insurance company, government unit, or other entity.	193

(C) "Certificate of need" means a written approval granted by	194
the director of health to an applicant to authorize conducting a	195
reviewable activity.	196

(D) "Health service area" means a geographic region	197
designated by the director of health under section 3702.58 of the	198
Revised Code.	199

(E) "Health service" means a clinically related service, such	200
as a diagnostic, treatment, rehabilitative, or preventive service.	201

(F) "Health service agency" means an agency designated to	202
serve a health service area in accordance with section 3702.58 of	203
the Revised Code.	204

(G) "Health care facility" means:

205

(1) A hospital registered under section 3701.07 of the	206
Revised Code;	207

(2) A nursing home licensed under section 3721.02 of the	208
Revised Code, or by a political subdivision certified under	209
section 3721.09 of the Revised Code;	210

(3) A county home or a county nursing home as defined in	211
section 5155.31 of the Revised Code that is certified under Title	212
XVIII or XIX of the "Social Security Act," 49 Stat. 620 (1935), 42	213
U.S.C.A. 301, as amended;	214

(4) A freestanding dialysis center;

215

(5) A freestanding inpatient rehabilitation facility;

216

(6) An ambulatory surgical facility;

217

(7) A freestanding cardiac catheterization facility;

218

(8) A freestanding birthing center;

219

(9) A freestanding or mobile diagnostic imaging center;

220

(10) A freestanding radiation therapy center.

221

A health care facility does not include the offices of	222
private physicians and dentists whether for individual or group	223
practice, residential facilities licensed under section 5123.19 of	224
the Revised Code, or an institution for the sick that is operated	225
exclusively for patients who use spiritual means for healing and	226
for whom the acceptance of medical care is inconsistent with their	227
religious beliefs, accredited by a national accrediting	228
organization, exempt from federal income taxation under section	229
501 of the Internal Revenue Code of 1986, 100 Stat. 2085, 26	230
U.S.C.A. 1, as amended, and providing twenty-four hour nursing	231
care pursuant to the exemption in division (E) of section 4723.32	232
of the Revised Code from the licensing requirements of Chapter	233
4723. of the Revised Code.	234

(H) "Medical equipment" means a single unit of medical	235
equipment or a single system of components with related functions	236
that is used to provide health services.	237

(I) "Third-party payer" means a health insuring corporation	238
licensed under Chapter 1751. of the Revised Code, a health	239
maintenance organization as defined in division (K) of this	240
section, an insurance company that issues sickness and accident	241
insurance in conformity with Chapter 3923. of the Revised Code, a	242
state-financed health insurance program under Chapter 3701.,	243
4123., or 5111. of the Revised Code, or any self-insurance plan.	244

(J) "Government unit" means the state and any county,	245
municipal corporation, township, or other political subdivision of	246
the state, or any department, division, board, or other agency of	247
the state or a political subdivision.	248

(K) "Health maintenance organization" means a public or	249
private organization organized under the law of any state that is	250
qualified under section 1310(d) of Title XIII of the "Public	251
Health Service Act," 87 Stat. 931 (1973), 42 U.S.C. 300e-9.	252

(L) "Existing health care facility" means either of the	253
following:	254

(1) A health care facility that is licensed or otherwise	255
authorized to operate in this state in accordance with applicable	256
law, including a county home or a county nursing home that is	257
certified as of February 1, 2008, under Title XVIII or Title XIX	258
of the "Social Security Act," 49 Stat. 620 (1935), 42 U.S.C. 301,	259
as amended, is staffed and equipped to provide health care	260
services, and is actively providing health services;	261

(2) A health care facility that is licensed or otherwise	262
authorized to operate in this state in accordance with applicable	263
law, including a county home or a county nursing home that is	264
certified as of February 1, 2008, under Title XVIII or Title XIX	265
of the "Social Security Act," 49 Stat. 620 (1935), 42 U.S.C. 301,	266
as amended, or that has beds registered under section 3701.07 of	267
the Revised Code as skilled nursing beds or long-term care beds	268
and has provided services for at least three hundred sixty-five	269
consecutive days within the twenty-four months immediately	270
preceding the date a certificate of need application is filed with	271
the director of health.	272

(M) "State" means the state of Ohio, including, but not	273
limited to, the general assembly, the supreme court, the offices	274
of all elected state officers, and all departments, boards,	275
offices, commissions, agencies, institutions, and other	276
instrumentalities of the state of Ohio. "State" does not include	277
political subdivisions.	278

(N) "Political subdivision" means a municipal corporation,	279
township, county, school district, and all other bodies corporate	280
and politic responsible for governmental activities only in	281
geographic areas smaller than that of the state to which the	282
sovereign immunity of the state attaches.	283

(O) "Affected person" means:

284

(1) An applicant for a certificate of need, including an	285
applicant whose application was reviewed comparatively with the	286
application in question;	287

(2) The person that requested the reviewability ruling in	288
question;	289

(3) Any person that resides or regularly uses health care	290
facilities within the geographic area served or to be served by	291
the health care services that would be provided under the	292
certificate of need or reviewability ruling in question;	293

(4) Any health care facility that is located in the health	294
service area where the health care services would be provided	295
under the certificate of need or reviewability ruling in question;	296

(5) Third-party payers that reimburse health care facilities	297
for services in the health service area where the health care	298
services would be provided under the certificate of need or	299
reviewability ruling in question;	300

(6) Any other person who testified at a public hearing held	301
under division (B) of section 3702.52 of the Revised Code or	302
submitted written comments in the course of review of the	303
certificate of need application in question.	304

(P) "Osteopathic hospital" means a hospital registered under	305
section 3701.07 of the Revised Code that advocates osteopathic	306
principles and the practice and perpetuation of osteopathic	307
medicine by doing any of the following:	308

(1) Maintaining a department or service of osteopathic	309
medicine or a committee on the utilization of osteopathic	310
principles and methods, under the supervision of an osteopathic	311
physician;	312

(2) Maintaining an active medical staff, the majority of	313
which is comprised of osteopathic physicians;	314

(3) Maintaining a medical staff executive committee that has	315
osteopathic physicians as a majority of its members.	316

(Q) "Ambulatory surgical facility" has the same meaning as in	317
section 3702.30 of the Revised Code.	318

(R) Except as provided in division (S) of this section,	319
"reviewable activity" means any of the following activities:	320

(1) The establishment, development, or construction of a new	321
long-term care facility;	322

(2) The replacement of an existing long-term care facility;

323

(3) The renovation of a long-term care facility that involves	324
a capital expenditure of two million dollars or more, not	325
including expenditures for equipment, staffing, or operational	326
costs;	327

(4) Either of the following changes in long-term care bed	328
capacity:	329

(a) An increase in bed capacity;

330

(b) A relocation of beds from one physical facility or site	331
to another, excluding the relocation of beds within a long-term	332
care facility or among buildings of a long-term care facility at	333
the same site.	334

(5) Any change in the health services, bed capacity, or site,	335
or any other failure to conduct the reviewable activity in	336
substantial accordance with the approved application for which a	337
certificate of need concerning long-term care beds was granted, if	338
the change is made within five years after the implementation of	339
the reviewable activity for which the certificate was granted;	340

(6) The expenditure of more than one hundred ten per cent of	341
the maximum expenditure specified in a certificate of need	342
concerning long-term care beds.	343

(S) "Reviewable activity" does not include any of the	344
following activities:	345

(1) Acquisition of computer hardware or software;

346

(2) Acquisition of a telephone system;

347

(3) Construction or acquisition of parking facilities;

348

(4) Correction of cited deficiencies that are in violation of	349
federal, state, or local fire, building, or safety laws and rules	350
and that constitute an imminent threat to public health or safety;	351

(5) Acquisition of an existing health care facility that does	352
not involve a change in the number of the beds, by service, or in	353
the number or type of health services;	354

(6) Correction of cited deficiencies identified by	355
accreditation surveys of the joint commission on accreditation of	356
healthcare organizations or of the American osteopathic	357
association;	358

(7) Acquisition of medical equipment to replace the same or	359
similar equipment for which a certificate of need has been issued	360
if the replaced equipment is removed from service;	361

(8) Mergers, consolidations, or other corporate	362
reorganizations of health care facilities that do not involve a	363
change in the number of beds, by service, or in the number or type	364
of health services;	365

(9) Construction, repair, or renovation of bathroom	366
facilities;	367

(10) Construction of laundry facilities, waste disposal	368
facilities, dietary department projects, heating and air	369
conditioning projects, administrative offices, and portions of	370
medical office buildings used exclusively for physician services;	371

(11) Acquisition of medical equipment to conduct research	372
required by the United States food and drug administration or	373
clinical trials sponsored by the national institute of health. Use	374
of medical equipment that was acquired without a certificate of	375
need under division (S)(11) of this section and for which	376
premarket approval has been granted by the United States food and	377
drug administration to provide services for which patients or	378
reimbursement entities will be charged shall be a reviewable	379
activity.	380

(12) Removal of asbestos from a health care facility.

381

Only that portion of a project that meets the requirements of	382
this division is not a reviewable activity.	383

(T) "Small rural hospital" means a hospital that is located	384
within a rural area, has fewer than one hundred beds, and to which	385
fewer than four thousand persons were admitted during the most	386
recent calendar year.	387

(U) "Children's hospital" means any of the following:

388

(1) A hospital registered under section 3701.07 of the	389
Revised Code that provides general pediatric medical and surgical	390
care, and in which at least seventy-five per cent of annual	391
inpatient discharges for the preceding two calendar years were	392
individuals less than eighteen years of age;	393

(2) A distinct portion of a hospital registered under section	394
3701.07 of the Revised Code that provides general pediatric	395
medical and surgical care, has a total of at least one hundred	396
fifty registered pediatric special care and pediatric acute care	397
beds, and in which at least seventy-five per cent of annual	398
inpatient discharges for the preceding two calendar years were	399
individuals less than eighteen years of age;	400

(3) A distinct portion of a hospital, if the hospital is	401
registered under section 3701.07 of the Revised Code as a	402
children's hospital and the children's hospital meets all the	403
requirements of division (U)(1) of this section.	404

(V) "Long-term care facility" means any of the following:

405

(1) A nursing home licensed under section 3721.02 of the	406
Revised Code or by a political subdivision certified under section	407
3721.09 of the Revised Code;	408

(2) The portion of any facility, including a county home or	409
county nursing home, that is certified as a skilled nursing	410
facility or a nursing facility under Title XVIII or XIX of the	411
"Social Security Act";	412

(3) The portion of any hospital that contains beds registered	413
under section 3701.07 of the Revised Code as skilled nursing beds	414
or long-term care beds.	415

(W) "Long-term care bed" means a bed in a long-term care	416
facility.	417

(X) "Freestanding birthing center" means any facility in	418
which deliveries routinely occur, regardless of whether the	419
facility is located on the campus of another health care facility,	420
and which is not licensed under Chapter 3711. of the Revised Code	421
as a level one, two, or three maternity unit or a limited	422
maternity unit.	423

(Y)(1) "Reviewability ruling" means a ruling issued by the	424
director of health under division (A) of section 3702.52 of the	425
Revised Code as to whether a particular proposed project is or is	426
not a reviewable activity.	427

(2) "Nonreviewability ruling" means a ruling issued under	428
that division that a particular proposed project is not a	429
reviewable activity.	430

(Z)(1) "Metropolitan statistical area" means an area of this	431
state designated a metropolitan statistical area or primary	432
metropolitan statistical area in United States office of	433
management and budget bulletin no. 93-17, June 30, 1993, and its	434
attachments.	435

(2) "Rural area" means any area of this state not located	436
within a metropolitan statistical area.	437

(AA) "County nursing home" has the same meaning as in section	438
5155.31 of the Revised Code.	439

(BB) "Principal participant" means both of the following:

440

(1) A person who has an ownership or controlling interest of	441
at least five per cent in an applicant, in a health care facility	442
that is the subject of an application for a certificate of need,	443
or in the owner or operator of the applicant or such a facility;	444

(2) An officer, director, trustee, or general partner of an	445
applicant, of a health care facility that is the subject of an	446
application for a certificate of need, or of the owner or operator	447
of the applicant or such a facility.	448

(CC) "Actual harm but not immediate jeopardy deficiency"	449
means a deficiency that, under 42 C.F.R. 488.404, either	450
constitutes a pattern of deficiencies resulting in actual harm	451
that is not immediate jeopardy or represents widespread	452
deficiencies resulting in actual harm that is not immediate	453
jeopardy.	454

(DD) "Immediate jeopardy deficiency" means a deficiency that,	455
under 42 C.F.R. 488.404, either constitutes a pattern of	456
deficiencies resulting in immediate jeopardy to resident health or	457
safety or represents widespread deficiencies resulting in	458
immediate jeopardy to resident health or safety.	459

Sec. 3702.59.  (A) The director of health shall accept for	460
review certificate of need applications as provided in sections	461
3702.592, 3702.593, and 3702.594 of the Revised Code.	462

(B)(1) The director shall not approve an application for a	463
certificate of need for the addition of long-term care beds to an	464
existing health care facility or for the development of a new	465
health care facility if any of the following apply:	466

(1)(a) The existing health care facility in which the beds	467
are being placed has one or more waivers for life safety code	468
deficiencies, one or more state fire code violations, or one or	469
more state building code violations, and the project identified in	470
the application does not propose to correct all life safety code	471
deficiencies for which a waiver has been granted, all state fire	472
code violations, and all state building code violations at the	473
existing health care facility in which the beds are being placed;	474

(2)(b) During the sixty-month period preceding the filing of	475
the application, a notice of proposed license revocation was	476
issued under section 3721.03 of the Revised Code for the existing	477
health care facility in which the beds are being placed or a	478
nursing home owned or operated by the applicant or the corporation	479
or other business that operates or seeks to operate the health	480
care facility in which the beds are being placeda principal	481
participant.	482

(3)(c) During the period that precedes the filing of the	483
application and is encompassed by the three most recent standard	484
surveys of the existing health care facility in which the beds are	485
being placed, theany of the following occurred:	486

(i) The facility was cited on three or more separate	487
occasions for final, nonappealable actual harm but not immediate	488
jeopardy deficiencies that, under 42 C.F.R. 488.404, either	489
constitute a pattern of deficiencies resulting in actual harm that	490
is not immediate jeopardy or are widespread deficiencies resulting	491
in actual harm that is not immediate jeopardy.	492

(4) During the period that precedes the filing of the	493
application and is encompassed by the three most recent standard	494
surveys of the existing health care facility in which the beds are	495
being placed, the(ii) The facility was cited on two or more	496
separate occasions for final, nonappealable immediate jeopardy	497
deficiencies that, under 42 C.F.R. 488.404, either constitute a	498
pattern of deficiencies resulting in immediate jeopardy to	499
resident health or safety or are widespread deficiencies resulting	500
in immediate jeopardy to resident health or safety.	501

(5) During the period that precedes the filing of the	502
application and is encompassed by the three most recent standard	503
surveys of the existing health care facility in which the beds are	504
being placed, more(iii) The facility was cited on two separate	505
occasions for final, nonappealable actual harm but not immediate	506
jeopardy deficiencies and on one occasion for a final,	507
nonappealable immediate jeopardy deficiency.	508

(d) More than two nursing homes owned or operated in this	509
state by the applicant or the person who operates the facility in	510
which the beds are being placeda principal participant or, if the	511
applicant or persona principal participant owns or operates more	512
than twenty nursing homes in this state, more than ten per cent of	513
those nursing homes, were each cited onduring the period that	514
precedes the filing of the application for the certificate of need	515
and is encompassed by the three most recent standard surveys of	516
the nursing homes that were so cited in any of the following	517
manners:	518

(i) On three or more separate occasions for final,	519
nonappealable actual harm but not immediate jeopardy deficiencies	520
that, under 42 C.F.R. 488.404, either constitute a pattern of	521
deficiencies resulting in actual harm that is not immediate	522
jeopardy or are widespread deficiencies resulting in actual harm	523
that is not immediate jeopardy.	524

(6) During the period that precedes the filing of the	525
application and is encompassed by the three most recent standard	526
surveys of the existing health care facility in which the beds are	527
being placed, more than two nursing homes operated in this state	528
by the applicant or the person who operates the facility in which	529
the beds are being placed or, if the applicant or person operates	530
more than twenty nursing homes in this state, more than ten per	531
cent of those nursing homes, were each cited on;	532

(ii) On two or more separate occasions for final,	533
nonappealable immediate jeopardy deficiencies that, under 42	534
C.F.R. 488.404, either constitute a pattern of deficiencies	535
resulting in immediate jeopardy to resident health or safety or	536
are widespread deficiencies resulting in immediate jeopardy to	537
resident health or safety;	538

(iii) On two separate occasions for final, nonappealable	539
actual harm but not immediate jeopardy deficiencies and on one	540
occasion for a final, nonappealable immediate jeopardy deficiency.	541

(7) During the sixty-month period preceding the filing of the	542
application, the applicant has violated this chapter on two or	543
more separate occasions.	544

(2) In applying divisions (B)(1)(a) to (6)(d) of this	545
section, the director shall not consider deficiencies or	546
violations cited before the current operatorapplicant or a	547
principal participant acquired or began to own or operate the	548
health care facility at which the deficiencies or violations were	549
cited. The director may disregard deficiencies and violations	550
cited after the health care facility was acquired or began to be	551
operated by the current operatorapplicant or a principal	552
participant if the deficiencies or violations were attributable to	553
circumstances that arose under the previous owner or operator and	554
the current operatorapplicant or principal participant has	555
implemented measures to alleviate the circumstances. In the case	556
of an application proposing development of a new health care	557
facility by relocation of beds, the director shall not consider	558
deficiencies or violations that were solely attributable to the	559
physical plant of the existing health care facility from which the	560
beds are being relocated.	561

(C) The director also shall accept for review any application	562
for the conversion of infirmary beds to long-term care beds if the	563
infirmary meets all of the following conditions:	564

(1) Is operated exclusively by a religious order;

565

(2) Provides care exclusively to members of religious orders	566
who take vows of celibacy and live by virtue of their vows within	567
the orders as if related;	568

(3) Was providing care exclusively to members of such a	569
religious order on January 1, 1994.	570

At no time shall individuals other than those described in	571
division (C)(2) of this section be admitted to a facility to use	572
beds for which a certificate of need is approved under this	573
division.	574

Sec. 5111.65.  As used in sections 5111.65 to 5111.688	575
5111.689 of the Revised Code:	576

(A) "Affiliated operator" means an operator affiliated with	577
either of the following:	578

(1) The exiting operator for whom the affiliated operator is	579
to assume liability for the entire amount of the exiting	580
operator's debt under the medicaid program or the portion of the	581
debt that represents the franchise permit fee the exiting operator	582
owes;	583

(2) The entering operator involved in the change of operator	584
with the exiting operator specified in division (A)(1) of this	585
section.	586

(B) "Change of operator" means an entering operator becoming	587
the operator of a nursing facility or intermediate care facility	588
for the mentally retarded in the place of the exiting operator.	589

(1) Actions that constitute a change of operator include the	590
following:	591

(a) A change in an exiting operator's form of legal	592
organization, including the formation of a partnership or	593
corporation from a sole proprietorship;	594

(b) A transfer of all the exiting operator's ownership	595
interest in the operation of the facility to the entering	596
operator, regardless of whether ownership of any or all of the	597
real property or personal property associated with the facility is	598
also transferred;	599

(c) A lease of the facility to the entering operator or the	600
exiting operator's termination of the exiting operator's lease;	601

(d) If the exiting operator is a partnership, dissolution of	602
the partnership;	603

(e) If the exiting operator is a partnership, a change in	604
composition of the partnership unless both of the following apply:	605

(i) The change in composition does not cause the	606
partnership's dissolution under state law.	607

(ii) The partners agree that the change in composition does	608
not constitute a change in operator.	609

(f) If the operator is a corporation, dissolution of the	610
corporation, a merger of the corporation into another corporation	611
that is the survivor of the merger, or a consolidation of one or	612
more other corporations to form a new corporation.	613

(2) The following, alone, do not constitute a change of	614
operator:	615

(a) A contract for an entity to manage a nursing facility or	616
intermediate care facility for the mentally retarded as the	617
operator's agent, subject to the operator's approval of daily	618
operating and management decisions;	619

(b) A change of ownership, lease, or termination of a lease	620
of real property or personal property associated with a nursing	621
facility or intermediate care facility for the mentally retarded	622
if an entering operator does not become the operator in place of	623
an exiting operator;	624

(c) If the operator is a corporation, a change of one or more	625
members of the corporation's governing body or transfer of	626
ownership of one or more shares of the corporation's stock, if the	627
same corporation continues to be the operator.	628

(B)(C) "Effective date of a change of operator" means the day	629
the entering operator becomes the operator of the nursing facility	630
or intermediate care facility for the mentally retarded.	631

(C)(D) "Effective date of a facility closure" means the last	632
day that the last of the residents of the nursing facility or	633
intermediate care facility for the mentally retarded resides in	634
the facility.	635

(D)(E) "Effective date of a voluntary termination" means the	636
day the intermediate care facility for the mentally retarded	637
ceases to accept medicaid patients.	638

(E)(F) "Effective date of a voluntary withdrawal of	639
participation" means the day the nursing facility ceases to accept	640
new medicaid patients other than the individuals who reside in the	641
nursing facility on the day before the effective date of the	642
voluntary withdrawal of participation.	643

(F)(G) "Entering operator" means the person or government	644
entity that will become the operator of a nursing facility or	645
intermediate care facility for the mentally retarded when a change	646
of operator occurs.	647

(G)(H) "Exiting operator" means any of the following:

648

(1) An operator that will cease to be the operator of a	649
nursing facility or intermediate care facility for the mentally	650
retarded on the effective date of a change of operator;	651

(2) An operator that will cease to be the operator of a	652
nursing facility or intermediate care facility for the mentally	653
retarded on the effective date of a facility closure;	654

(3) An operator of an intermediate care facility for the	655
mentally retarded that is undergoing or has undergone a voluntary	656
termination;	657

(4) An operator of a nursing facility that is undergoing or	658
has undergone a voluntary withdrawal of participation.	659

(H)(I)(1) "Facility closure" means discontinuance of the use	660
of the building, or part of the building, that houses the facility	661
as a nursing facility or intermediate care facility for the	662
mentally retarded that results in the relocation of all of the	663
facility's residents. A facility closure occurs regardless of any	664
of the following:	665

(a) The operator completely or partially replacing the	666
facility by constructing a new facility or transferring the	667
facility's license to another facility;	668

(b) The facility's residents relocating to another of the	669
operator's facilities;	670

(c) Any action the department of health takes regarding the	671
facility's certification under Title XIX of the "Social Security	672
Act," 79 Stat. 286 (1965), 42 U.S.C. 1396, as amended, that may	673
result in the transfer of part of the facility's survey findings	674
to another of the operator's facilities;	675

(d) Any action the department of health takes regarding the	676
facility's license under Chapter 3721. of the Revised Code;	677

(e) Any action the department of developmental disabilities	678
takes regarding the facility's license under section 5123.19 of	679
the Revised Code.	680

(2) A facility closure does not occur if all of the	681
facility's residents are relocated due to an emergency evacuation	682
and one or more of the residents return to a medicaid-certified	683
bed in the facility not later than thirty days after the	684
evacuation occurs.	685

(I)(J) "Fiscal year," "franchise permit fee," "intermediate	686
care facility for the mentally retarded," "nursing facility,"	687
"operator," "owner," and "provider agreement" have the same	688
meanings as in section 5111.20 of the Revised Code.	689

(J)(K) "Voluntary termination" means an operator's voluntary	690
election to terminate the participation of an intermediate care	691
facility for the mentally retarded in the medicaid program but to	692
continue to provide service of the type provided by a residential	693
facility as defined in section 5123.19 of the Revised Code.	694

(K)(L)"Voluntary withdrawal of participation" means an	695
operator's voluntary election to terminate the participation of a	696
nursing facility in the medicaid program but to continue to	697
provide service of the type provided by a nursing facility.	698

Sec. 5111.651. Sections 5111.65 to 5111.6885111.689 of the	699
Revised Code do not apply to a nursing facility or intermediate	700
care facility for the mentally retarded that undergoes a facility	701
closure, voluntary termination, voluntary withdrawal of	702
participation, or change of operator on or before September 30,	703
2005, if the exiting operator provided written notice of the	704
facility closure, voluntary termination, voluntary withdrawal of	705
participation, or change of operator to the department of job and	706
family services on or before June 30, 2005.	707

Sec. 5111.68. (A) On receipt of a written notice under	708
section 5111.66 of the Revised Code of a facility closure,	709
voluntary termination, or voluntary withdrawal of participation or	710
a written notice under section 5111.67 of the Revised Code of a	711
change of operator, the department of job and family services	712
shall determineestimate the amount of any overpayments made under	713
the medicaid program to the exiting operator, including	714
overpayments the exiting operator disputes, and other actual and	715
potential debts the exiting operator owes or may owe to the	716
department and United States centers for medicare and medicaid	717
services under the medicaid program, including a franchise permit	718
fee. In determining	719

(B) In estimating the exiting operator's other actual and	720
potential debts to the department and the United States centers	721
for medicare and medicaid services under the medicaid program, the	722
department shall includeuse a debt estimation methodology the	723
director of job and family services shall establish in rules	724
adopted under section 5111.689 of the Revised Code. The	725
methodology shall provide for estimating all of the following that	726
the department determines isare applicable:	727

(1) Refunds due the department under section 5111.27 of the	728
Revised Code;	729

(2) Interest owed to the department and United States centers	730
for medicare and medicaid services;	731

(3) Final civil monetary and other penalties for which all	732
right of appeal has been exhausted;	733

(4) Money owed the department and United States centers for	734
medicare and medicaid services from any outstanding final fiscal	735
audit, including a final fiscal audit for the last fiscal year or	736
portion thereof in which the exiting operator participated in the	737
medicaid program;	738

(5) Other amounts the department determines are applicable.

739

(B) If the department is unable to determine the amount of	740
the overpayments and other debts for any period before the	741
effective date of the entering operator's provider agreement or	742
the effective date of the facility closure, voluntary termination,	743
or voluntary withdrawal of participation, the department shall	744
make a reasonable estimate of the overpayments and other debts for	745
the period. The department shall make the estimate using	746
information available to the department, including prior	747
determinations of overpayments and other debts.	748

(C) The department shall provide the exiting operator written	749
notice of the department's estimate under division (A) of this	750
section not later than thirty days after the department receives	751
the notice under section 5111.66 of the Revised Code of the	752
facility closure, voluntary termination, or voluntary withdrawal	753
of participation or the notice under section 5111.67 of the	754
Revised Code of the change of operator. The department's written	755
notice shall include the basis for the estimate.	756

Sec. 5111.681. (A) Except as provided in divisiondivisions	757
(B) and (C) of this section, the department of job and family	758
services shallmay withhold the greater of the following from	759
payment due an exiting operator under the medicaid program:	760

(1) Thethe total amount of any overpayments made under the	761
medicaid program to the exiting operator, including overpayments	762
the exiting operator disputes, and other actual and potential	763
debts, including any unpaid penalties,specified in the notice	764
provided under division (C) of section 5111.68 of the Revised Code	765
that the exiting operator owes or may owe to the department and	766
United States centers for medicare and medicaid services under the	767
medicaid program;	768

(2) An amount equal to the average amount of monthly payments	769
to the exiting operator under the medicaid program for the	770
twelve-month period immediately preceding the month that includes	771
the last day the exiting operator's provider agreement is in	772
effect or, in the case of a voluntary withdrawal of participation,	773
the effective date of the voluntary withdrawal of participation.	774

(B) TheIn the case of a change of operator and subject to	775
division (D) of this section, the following shall apply regarding	776
a withholding under division (A) of this section if the exiting	777
operator or entering operator or an affiliated operator executes a	778
successor liability agreement meeting the requirements of division	779
(E) of this section:	780

(1) If the exiting operator, entering operator, or affiliated	781
operator assumes liability for the total, actual amount of debt	782
the exiting operator owes the department and the United States	783
centers for medicare and medicaid services under the medicaid	784
program as determined under section 5111.685 of the Revised Code,	785
the department may chooseshall not to make the withholding under	786
division (A) of this section if an entering operator does both of	787
the following:	788

(1) Enters into a nontransferable, unconditional, written	789
agreement with the department to pay the department any debt the	790
exiting operator owes the department under the medicaid program;	791

(2) Provides the department a copy of the entering operator's	792
balance sheet that assists the department in determining whether	793
to make the withholding under division (A) of this section.	794

(2) If the exiting operator, entering operator, or affiliated	795
operator assumes liability for only the portion of the amount	796
specified in division (B)(1) of this section that represents the	797
franchise permit fee the exiting operator owes, the department	798
shall withhold not more than the difference between the total	799
amount specified in the notice provided under division (C) of	800
section 5111.68 of the Revised Code and the amount for which the	801
exiting operator, entering operator, or affiliated operator	802
assumes liability.	803

(C) In the case of a voluntary termination, voluntary	804
withdrawal of participation, or facility closure and subject to	805
division (D) of this section, the following shall apply regarding	806
a withholding under division (A) of this section if the exiting	807
operator or an affiliated operator executes a successor liability	808
agreement meeting the requirements of division (E) of this	809
section:	810

(1) If the exiting operator or affiliated operator assumes	811
liability for the total, actual amount of debt the exiting	812
operator owes the department and the United States centers for	813
medicare and medicaid services under the medicaid program as	814
determined under section 5111.685 of the Revised Code, the	815
department shall not make the withholding.	816

(2) If the exiting operator or affiliated operator assumes	817
liability for only the portion of the amount specified in division	818
(C)(1) of this section that represents the franchise permit fee	819
the exiting operator owes, the department shall withhold not more	820
than the difference between the total amount specified in the	821
notice provided under division (C) of section 5111.68 of the	822
Revised Code and the amount for which the exiting operator or	823
affiliated operator assumes liability.	824

(D) For an exiting operator or affiliated operator to be	825
eligible to enter into a successor liability agreement under	826
division (B) or (C) of this section, both of the following must	827
apply:	828

(1) The exiting operator or affiliated operator must have one	829
or more valid provider agreements, other than the provider	830
agreement for the nursing facility or intermediate care facility	831
for the mentally retarded that is the subject of the voluntary	832
termination, voluntary withdrawal of participation, facility	833
closure, or change of operator;	834

(2) During the twelve-month period preceding the month in	835
which the department receives the notice of the voluntary	836
termination, voluntary withdrawal of participation, or facility	837
closure under section 5111.66 of the Revised Code or the notice of	838
the change of operator under section 5111.67 of the Revised Code,	839
the average monthly medicaid payment made to the exiting operator	840
or affiliated operator pursuant to the exiting operator's or	841
affiliated operator's one or more provider agreements, other than	842
the provider agreement for the nursing facility or intermediate	843
care facility for the mentally retarded that is the subject of the	844
voluntary termination, voluntary withdrawal of participation,	845
facility closure, or change of operator, must equal at least	846
ninety per cent of the sum of the following:	847

(a) The average monthly medicaid payment made to the exiting	848
operator pursuant to the exiting operator's provider agreement for	849
the nursing facility or intermediate care facility for the	850
mentally retarded that is the subject of the voluntary	851
termination, voluntary withdrawal of participation, facility	852
closure, or change of operator;	853

(b) Whichever of the following apply:

854

(i) If the exiting operator or affiliated operator has	855
assumed liability under one or more other successor liability	856
agreements, the total amount for which the exiting operator or	857
affiliated operator has assumed liability under the other	858
successor liability agreements;	859

(ii) If the exiting operator or affiliated operator has not	860
assumed liability under any other successor liability agreements,	861
zero.	862

(E) A successor liability agreement executed under this	863
section must comply with all of the following:	864

(1) It must provide for the operator who executes the	865
successor liability agreement to assume liability for either of	866
the following as specified in the agreement:	867

(a) The total, actual amount of debt the exiting operator	868
owes the department and the United States centers for medicare and	869
medicaid services under the medicaid program as determined under	870
section 5111.685 of the Revised Code;	871

(b) The portion of the amount specified in division (E)(1)(a)	872
of this section that represents the franchise permit fee the	873
exiting operator owes.	874

(2) It may not require the operator who executes the	875
successor liability agreement to furnish a surety bond.	876

(3) It must provide that the department, after determining	877
under section 5111.685 of the Revised Code the actual amount of	878
debt the exiting operator owes the department and United States	879
centers for medicare and medicaid services under the medicaid	880
program, may deduct the lesser of the following from medicaid	881
payments made to the operator who executes the successor liability	882
agreement:	883

(a) The total, actual amount of debt the exiting operator	884
owes the department and the United States centers for medicare and	885
medicaid services under the medicaid program as determined under	886
section 5111.685 of the Revised Code;	887

(b) The amount for which the operator who executes the	888
successor liability agreement assumes liability under the	889
agreement.	890

(4) It must provide that the deductions authorized by	891
division (E)(3) of this section are to be made for a number of	892
months, not to exceed six, agreed to by the operator who executes	893
the successor liability agreement and the department or, if the	894
operator who executes the successor liability agreement and	895
department cannot agree on a number of months that is less than	896
six, a greater number of months determined by the attorney general	897
pursuant to a claims collection process authorized by statute of	898
this state.	899

(5) It must provide that, if the attorney general determines	900
the number of months for which the deductions authorized by	901
division (E)(3) of this section are to be made, the operator who	902
executes the successor liability agreement shall pay, in addition	903
to the amount collected pursuant to the attorney general's claims	904
collection process, the part of the amount so collected that, if	905
not for division (G) of this section, would be required by section	906
109.081 of the Revised Code to be paid into the attorney general	907
claims fund.	908

(F) Execution of a successor liability agreement does not	909
waive an exiting operator's right to contest the amount specified	910
in the notice the department provides the exiting operator under	911
division (C) of section 5111.68 of the Revised Code.	912

(G) Notwithstanding section 109.081 of the Revised Code, the	913
entire amount that the attorney general, whether by employees or	914
agents of the attorney general or by special counsel appointed	915
pursuant to section 109.08 of the Revised Code, collects under a	916
successor liability agreement, other than the additional amount	917
the operator who executes the agreement is required by division	918
(E)(5) of this section to pay, shall be paid to the department of	919
job and family services for deposit into the appropriate fund. The	920
additional amount that the operator is required to pay shall be	921
paid into the state treasury to the credit of the attorney general	922
claims fund created under section 109.081 of the Revised Code.	923

Sec. 5111.685. The department of job and family services	924
shall determine the actual amount of debt an exiting operator owes	925
the department and the United States centers for medicare and	926
medicaid services under the medicaid program by completing all	927
final fiscal audits not already completed and performing all other	928
appropriate actions the department determines to be necessary. The	929
department shall issue aan initial debt summary report on this	930
matter not later than ninetysixty days after the date the exiting	931
operator files the properly completed cost report required by	932
section 5111.682 of the Revised Code with the department or, if	933
the department waives the cost report requirement for the exiting	934
operator, ninetysixty days after the date the department waives	935
the cost report requirement. The report shall include the	936
department's findings and the amount of debt the department	937
determines the exiting operator owes the department and United	938
States centers for medicare and medicaid services under the	939
medicaid program. Only the parts of the report that are subject to	940
an adjudication as specified in section 5111.30 of the Revised	941
Code are subject to an adjudication conductedThe initial debt	942
summary report becomes the final debt summary report thirty-one	943
days after the department issues the initial debt summary report	944
unless the exiting operator, or an affiliated operator who	945
executes a successor liability agreement under section 5111.681 of	946
the Revised Code, requests a review before that date.	947

The exiting operator, and an affiliated operator who executes	948
a successor liability agreement under section 5111.681 of the	949
Revised Code, may request a review to contest any of the	950
department's findings included in the initial debt summary report.	951
The request for the review must be submitted to the department not	952
later than thirty days after the date the department issues the	953
initial debt summary report. The department shall conduct the	954
review on receipt of a timely request and issue a revised debt	955
summary report. If the department has withheld money from payment	956
due the exiting operator under division (A) of section 5111.681 of	957
the Revised Code, the department shall issue the revised debt	958
summary report not later than ninety days after the date the	959
department receives the timely request for the review unless the	960
department and exiting operator or affiliated operator agree to a	961
later date. The exiting operator or affiliated operator may submit	962
information to the department explaining what the operator	963
contests before and during the review, including documentation of	964
the amount of any debt the department owes the operator. The	965
exiting operator or affiliated operator may submit additional	966
information to the department not later than thirty days after the	967
department issues the revised debt summary report. The revised	968
debt summary report becomes the final debt summary report	969
thirty-one days after the department issues the revised debt	970
summary report unless the exiting operator or affiliated operator	971
timely submits additional information to the department. If the	972
exiting operator or affiliated operator timely submits additional	973
information to the department, the department shall consider the	974
additional information and issue a final debt summary report not	975
later than sixty days after the department issues the revised debt	976
summary report unless the department and exiting operator or	977
affiliated operator agree to a later date.	978

Each debt summary report the department issues under this	979
section shall include the department's findings and the amount of	980
debt the department determines the exiting operator owes the	981
department and United States centers for medicare and medicaid	982
services under the medicaid program. The department shall explain	983
its findings and determination in each debt summary report.	984

The exiting operator, and an affiliated operator who executes	985
a successor liability agreement under section 5111.681 of the	986
Revised Code, may request, in accordance with Chapter 119. of the	987
Revised Code, an adjudication regarding a finding in a final debt	988
summary report that pertains to an audit or alleged overpayment	989
made under the medicaid program to the exiting operator. The	990
adjudication shall be consolidated with any other uncompleted	991
adjudication that concerns a matter addressed in the final debt	992
summary report.	993

Sec. 5111.686. The department of job and family services	994
shall release the actual amount withheld under division (A) of	995
section 5111.681 of the Revised Code, less any amount the exiting	996
operator owes the department and United States centers for	997
medicare and medicaid services under the medicaid program, as	998
follows:	999

(A) Ninety-one days after the date the exiting operator files	1000
a properly completed cost report required by section 5111.682 of	1001
the Revised Code unlessUnless the department issues the initial	1002
debt summary report required by section 5111.685 of the Revised	1003
Code not later than ninetysixty days after the date the exiting	1004
operator files the properly completed cost report required by	1005
section 5111.682 of the Revised Code, sixty-one days after the	1006
date the exiting operator files the properly completed cost	1007
report;	1008

(B) Not later than thirty days after the exiting operator	1009
agrees to a final fiscal audit resulting from the report required	1010
by section 5111.685 of the Revised Code ifIf the department	1011
issues the initial debt summary report required by section	1012
5111.685 of the Revised Code not later than ninetysixty days	1013
after the date the exiting operator files a properly completed	1014
cost report required by section 5111.682 of the Revised Code, not	1015
later than the following:	1016

(1) Thirty days after the deadline for requesting an	1017
adjudication under section 5111.685 of the Revised Code regarding	1018
the final debt summary report if the exiting operator, and an	1019
affiliated operator who executes a successor liability agreement	1020
under section 5111.681 of the Revised Code, fail to request the	1021
adjudication on or before the deadline;	1022

(2) Thirty days after the completion of an adjudication of	1023
the final debt summary report if the exiting operator, or an	1024
affiliated operator who executes a successor liability agreement	1025
under section 5111.681 of the Revised Code, requests the	1026
adjudication on or before the deadline for requesting the	1027
adjudication.	1028

(C) Ninety-one days after the date the department waives the	1029
cost report requirement of section 5111.682 of the Revised Code	1030
unlessUnless the department issues the initial debt summary	1031
report required by section 5111.685 of the Revised Code not later	1032
than ninetysixty days after the date the department waives the	1033
cost report requirement of section 5111.682 of the Revised Code,	1034
sixty-one days after the date the department waives the cost	1035
report requirement;	1036

(D) Not later than thirty days after the exiting operator	1037
agrees to a final fiscal audit resulting from the report required	1038
by section 5111.685 of the Revised Code ifIf the department	1039
issues the initial debt summary report required by section	1040
5111.685 of the Revised Code not later than ninetysixty days	1041
after the date the department waives the cost report requirement	1042
of section 5111.682 of the Revised Code, not later than the	1043
following:	1044

(1) Thirty days after the deadline for requesting an	1045
adjudication under section 5111.685 of the Revised Code regarding	1046
the final debt summary report if the exiting operator, and an	1047
affiliated operator who executes a successor liability agreement	1048
under section 5111.681 of the Revised Code, fail to request the	1049
adjudication on or before the deadline;	1050

(2) Thirty days after the completion of an adjudication of	1051
the final debt summary report if the exiting operator, or an	1052
affiliated operator who executes a successor liability agreement	1053
under section 5111.681 of the Revised Code, requests the	1054
adjudication on or before the deadline for requesting the	1055
adjudication.	1056

Sec. 5111.688. (A) All amounts withheld under section	1057
5111.681 of the Revised Code from payment due an exiting operator	1058
under the medicaid program shall be deposited into the medicaid	1059
payment withholding fund created by the controlling board pursuant	1060
to section 131.35 of the Revised Code. Money in the fund shall be	1061
used as follows:	1062

(1) To pay an exiting operator when a withholding is released	1063
to the exiting operator under section 5111.686 or 5111.687 of the	1064
Revised Code;	1065

(2) To pay the department of job and family services and	1066
United States centers for medicare and medicaid services the	1067
amount an exiting operator owes the department and United States	1068
centers under the medicaid program.	1069

(B) Amounts paid from the medicaid payment withholding fund	1070
pursuant to division (A)(2) of this section shall be deposited	1071
into the appropriate department fund.	1072

Sec. 5111.688.        Sec. 5111.689.  The director of job and family	1073
services shall adopt rules under section 5111.02 of the Revised	1074
Code to implement sections 5111.65 to 5111.6885111.689 of the	1075
Revised Code, including rules applicable to an exiting operator	1076
that provides written notification under section 5111.66 of the	1077
Revised Code of a voluntary withdrawal of participation. Rules	1078
adopted under this section shall comply with section 1919(c)(2)(F)	1079
of the "Social Security Act," 79 Stat. 286 (1965), 42 U.S.C.	1080
1396r(c)(2)(F), regarding restrictions on transfers or discharges	1081
of nursing facility residents in the case of a voluntary	1082
withdrawal of participation. The rules may prescribe a medicaid	1083
reimbursement methodology and other procedures that are applicable	1084
after the effective date of a voluntary withdrawal of	1085
participation that differ from the reimbursement methodology and	1086
other procedures that would otherwise apply.	1087

Sec. 5111.874.  (A) As used in sections 5111.874 to 5111.8710	1088
of the Revised Code:	1089

"Home and community-based services" has the same meaning as	1090
in section 5123.01 of the Revised Code.	1091

"ICF/MR services" means intermediate care facility for the	1092
mentally retarded services covered by the medicaid program that an	1093
intermediate care facility for the mentally retarded provides to a	1094
resident of the facility who is a medicaid recipient eligible for	1095
medicaid-covered intermediate care facility for the mentally	1096
retarded services.	1097

"Intermediate care facility for the mentally retarded" means	1098
an intermediate care facility for the mentally retarded that is	1099
certified as in compliance with applicable standards for the	1100
medicaid program by the director of health in accordance with	1101
Title XIX of the "Social Security Act," 79 Stat. 286 (1965), 42	1102
U.S.C. 1396, as amended, and licensed as a residential facility	1103
under section 5123.19 of the Revised Code.	1104

"Residential facility" has the same meaning as in section	1105
5123.19 of the Revised Code.	1106

(B) For the purpose of increasing the number of slots	1107
available for home and community-based services and subject to	1108
sections 5111.877 and 5111.878 of the Revised Code, the operator	1109
of an intermediate care facility for the mentally retarded may	1110
convert all of the beds in the facility from providing ICF/MR	1111
services to providing home and community-based services if all of	1112
the following requirements are met:	1113

(1) The operator provides the directors of health, job and	1114
family services, and developmental disabilities at least ninety	1115
days' notice of the operator's intent to relinquish the facility's	1116
certification as an intermediate care facility for the mentally	1117
retarded and to begin providing home and community-based services.	1118

(2) The operator complies with the requirements of sections	1119
5111.65 to 5111.6885111.689 of the Revised Code regarding a	1120
voluntary termination as defined in section 5111.65 of the Revised	1121
Code if those requirements are applicable.	1122

(3) The operator notifies each of the facility's residents	1123
that the facility is to cease providing ICF/MR services and inform	1124
each resident that the resident may do either of the following:	1125

(a) Continue to receive ICF/MR services by transferring to	1126
another facility that is an intermediate care facility for the	1127
mentally retarded willing and able to accept the resident if the	1128
resident continues to qualify for ICF/MR services;	1129

(b) Begin to receive home and community-based services	1130
instead of ICF/MR services from any provider of home and	1131
community-based services that is willing and able to provide the	1132
services to the resident if the resident is eligible for the	1133
services and a slot for the services is available to the resident.	1134

(4) The operator meets the requirements for providing home	1135
and community-based services, including the following:	1136

(a) Such requirements applicable to a residential facility if	1137
the operator maintains the facility's license as a residential	1138
facility;	1139

(b) Such requirements applicable to a facility that is not	1140
licensed as a residential facility if the operator surrenders the	1141
facility's residential facility license under section 5123.19 of	1142
the Revised Code.	1143

(5) The director of developmental disabilities approves the	1144
conversion.	1145

(C) The notice to the director of developmental disabilities	1146
under division (B)(1) of this section shall specify whether the	1147
operator wishes to surrender the facility's license as a	1148
residential facility under section 5123.19 of the Revised Code.	1149

(D) If the director of developmental disabilities approves a	1150
conversion under division (B) of this section, the director of	1151
health shall terminate the certification of the intermediate care	1152
facility for the mentally retarded to be converted. The director	1153
of health shall notify the director of job and family services of	1154
the termination. On receipt of the director of health's notice,	1155
the director of job and family services shall terminate the	1156
operator's medicaid provider agreement that authorizes the	1157
operator to provide ICF/MR services at the facility. The operator	1158
is not entitled to notice or a hearing under Chapter 119. of the	1159
Revised Code before the director of job and family services	1160
terminates the medicaid provider agreement.	1161

Sec. 5111.875. (A) For the purpose of increasing the number	1162
of slots available for home and community-based services and	1163
subject to sections 5111.877 and 5111.878 of the Revised Code, a	1164
person who acquires, through a request for proposals issued by the	1165
director of developmental disabilities, a residential facility	1166
that is an intermediate care facility for the mentally retarded	1167
and for which the license as a residential facility was previously	1168
surrendered or revoked may convert some or all of the facility's	1169
beds from providing ICF/MR services to providing home and	1170
community-based services if all of the following requirements are	1171
met:	1172

(1) The person provides the directors of health, job and	1173
family services, and developmental disabilities at least ninety	1174
days' notice of the person's intent to make the conversion.	1175

(2) The person complies with the requirements of sections	1176
5111.65 to 5111.6885111.689 of the Revised Code regarding a	1177
voluntary termination as defined in section 5111.65 of the Revised	1178
Code if those requirements are applicable.	1179

(3) If the person intends to convert all of the facility's	1180
beds, the person notifies each of the facility's residents that	1181
the facility is to cease providing ICF/MR services and informs	1182
each resident that the resident may do either of the following:	1183

(a) Continue to receive ICF/MR services by transferring to	1184
another facility that is an intermediate care facility for the	1185
mentally retarded willing and able to accept the resident if the	1186
resident continues to qualify for ICF/MR services;	1187

(b) Begin to receive home and community-based services	1188
instead of ICF/MR services from any provider of home and	1189
community-based services that is willing and able to provide the	1190
services to the resident if the resident is eligible for the	1191
services and a slot for the services is available to the resident.	1192

(4) If the person intends to convert some but not all of the	1193
facility's beds, the person notifies each of the facility's	1194
residents that the facility is to convert some of its beds from	1195
providing ICF/MR services to providing home and community-based	1196
services and inform each resident that the resident may do either	1197
of the following:	1198

(a) Continue to receive ICF/MR services from any provider of	1199
ICF/MR services that is willing and able to provide the services	1200
to the resident if the resident continues to qualify for ICF/MR	1201
services;	1202

(b) Begin to receive home and community-based services	1203
instead of ICF/MR services from any provider of home and	1204
community-based services that is willing and able to provide the	1205
services to the resident if the resident is eligible for the	1206
services and a slot for the services is available to the resident.	1207

(5) The person meets the requirements for providing home and	1208
community-based services at a residential facility.	1209

(B) The notice provided to the directors under division	1210
(A)(1) of this section shall specify whether some or all of the	1211
facility's beds are to be converted. If some but not all of the	1212
beds are to be converted, the notice shall specify how many of the	1213
facility's beds are to be converted and how many of the beds are	1214
to continue to provide ICF/MR services.	1215

(C) On receipt of a notice under division (A)(1) of this	1216
section, the director of health shall do the following:	1217

(1) Terminate the certification of the intermediate care	1218
facility for the mentally retarded if the notice specifies that	1219
all of the facility's beds are to be converted;	1220

(2) Reduce the facility's certified capacity by the number of	1221
beds being converted if the notice specifies that some but not all	1222
of the beds are to be converted.	1223

(D) The director of health shall notify the director of job	1224
and family services of the termination or reduction under division	1225
(C) of this section. On receipt of the director of health's	1226
notice, the director of job and family services shall do the	1227
following:	1228

(1) Terminate the person's medicaid provider agreement that	1229
authorizes the person to provide ICF/MR services at the facility	1230
if the facility's certification was terminated;	1231

(2) Amend the person's medicaid provider agreement to reflect	1232
the facility's reduced certified capacity if the facility's	1233
certified capacity is reduced.	1234

The person is not entitled to notice or a hearing under	1235
Chapter 119. of the Revised Code before the director of job and	1236
family services terminates or amends the medicaid provider	1237
agreement.	1238

Sec. 5111.894. The state administrative agency may establish	1239
one or more waiting lists for the assisted living program. Only	1240
individuals eligible for the medicaid program may be placed on a	1241
waiting list.(A) The state administrative agency shall establish	1242
a home first component of the assisted living program under which	1243
eligible individuals may be enrolled in the assisted living	1244
program in accordance with this section. An individual is eligible	1245
for the assisted living program's home first component if all of	1246
the following apply:	1247

(1) The individual is eligible for the assisted living	1248
program.	1249

(2) The individual is on the unified waiting list established	1250
under section 173.404 of the Revised Code.	1251

(3) At least one of the following applies:

1252

(a) The individual has been admitted to a nursing facility.

1253

(b) A physician has determined and documented in writing that	1254
the individual has a medical condition that, unless the individual	1255
is enrolled in home and community-based services such as the	1256
assisted living program, will require the individual to be	1257
admitted to a nursing facility within thirty days of the	1258
physician's determination.	1259

(c) The individual has been hospitalized and a physician has	1260
determined and documented in writing that, unless the individual	1261
is enrolled in home and community-based services such as the	1262
assisted living program, the individual is to be transported	1263
directly from the hospital to a nursing facility admitted.	1264

(d) Both of the following apply:

1265

(i) The individual is the subject of a report made under	1266
section 5101.61 of the Revised Code regarding abuse, neglect, or	1267
exploitation or such a report referred to a county department of	1268
job and family services under section 5126.31 of the Revised Code	1269
or has made a request to a county department for protective	1270
services as defined in section 5101.60 of the Revised Code.	1271

(ii) A county department of job and family services and an	1272
area agency on aging have jointly documented in writing that,	1273
unless the individual is enrolled in home and community-based	1274
services such as the assisted living program, the individual	1275
should be admitted to a nursing facility.	1276

(e) The individual resided in a residential care facility for	1277
at least six months immediately before applying for the assisted	1278
living program and is at risk of imminent admission to a nursing	1279
facility because the costs of residing in the residential care	1280
facility have depleted the individual's resources such that the	1281
individual is unable to continue to afford the cost of residing in	1282
the residential care facility.	1283

(B) Each month, each area agency on aging shall determine	1284
whether any individual who residesidentify individuals residing	1285
in the area that the area agency on aging serves and is on a	1286
waiting listwho are eligible for the home first component of the	1287
assisted living program has been admitted to a nursing facility.	1288
IfWhen an area agency on aging determines thatidentifies such	1289
an individual has been admitted to a nursing facility and	1290
determines that there is a vacancy in a residential care facility	1291
participating in the assisted living program that is acceptable to	1292
the individual, the agency shall notify the long-term care	1293
consultation program administrator serving the area in which the	1294
individual resides about the determination. The administrator	1295
shall determine whether the assisted living program is appropriate	1296
for the individual and whether the individual would rather	1297
participate in the assisted living program than continue residing	1298
or begin to reside in thea nursing facility. If the administrator	1299
determines that the assisted living program is appropriate for the	1300
individual and the individual would rather participate in the	1301
assisted living program than continue residingor begin to reside	1302
in thea nursing facility, the administrator shall so notify the	1303
state administrative agency.	1304

Onagency. On receipt of the notice from the administrator,	1305
the state administrative agency shall approve the individual's	1306
enrollment in the assisted living program regardless of anythe	1307
unified waiting list for the assisted living programestablished	1308
under section 173.404 of the Revised Code, unless the enrollment	1309
would cause the assisted living program to exceed any limit on the	1310
number of individuals who may participate in the program as set by	1311
the United States secretary of health and human services when the	1312
medicaid waiver authorizing the program is approved. Each	1313

(C) Each quarter, the state administrative agency shall	1314
certify to the director of budget and management the estimated	1315
increase in costs of the assisted living program resulting from	1316
enrollment of individuals in the assisted living program pursuant	1317
to this section.	1318

Section 2. That existing sections 173.401, 173.501, 3702.51,	1319
3702.59, 5111.65, 5111.651, 5111.68, 5111.681, 5111.685, 5111.686,	1320
5111.688, 5111.874, 5111.875, and 5111.894 of the Revised Code are	1321
hereby repealed.	1322

Section 3. That Section 209.20 of Am. Sub. H.B. 1 of the	1323
128th General Assembly be amended to read as follows:	1324

Sec. 209.20. LONG-TERM CARE

1325

Pursuant to an interagency agreement, the Department of Job	1326
and Family Services shall designate the Department of Aging to	1327
perform assessments under section 5111.204 of the Revised Code.	1328
The Department of Aging shall provide long-term care consultations	1329
under section 173.42 of the Revised Code to assist individuals in	1330
planning for their long-term health care needs. The foregoing	1331
appropriation items 490423, Long Term Care Budget – State, and	1332
490623, Long Term Care Budget, may be used to provide the	1333
preadmission screening and resident review (PASRR), which includes	1334
screening, assessments, and determinations made under sections	1335
5111.02, 5111.204, 5119.061, and 5123.021 of the Revised Code.	1336

The foregoing appropriation items 490423, Long Term Care	1337
Budget - State, and 490623, Long Term Care Budget, may be used to	1338
assess and provide long-term care consultations to clients	1339
regardless of Medicaid eligibility.	1340

The Director of Aging shall adopt rules under section 111.15	1341
of the Revised Code governing the nonwaiver funded PASSPORT	1342
program, including client eligibility. The foregoing appropriation	1343
item 490423, Long Term Care Budget - State, may be used by the	1344
Department of Aging to provide nonwaiver funded PASSPORT services	1345
to persons the Department has determined to be eligible to	1346
participate in the nonwaiver funded PASSPORT Program, including	1347
those persons not yet determined to be financially eligible to	1348
participate in the Medicaid waiver component of the PASSPORT	1349
Program by a county department of job and family services.	1350

The Department of Aging shall administer the Medicaid	1351
waiver-funded PASSPORT Home Care Program, the Choices Program, the	1352
Assisted Living Program, and the PACE Program as delegated by the	1353
Department of Job and Family Services in an interagency agreement.	1354
The foregoing appropriation item 490423, Long Term Care Budget -	1355
State, shall be used to provide the required state match for	1356
federal Medicaid funds supporting the Medicaid Waiver-funded	1357
PASSPORT Home Care Program, the Choices Program, the Assisted	1358
Living Program, and the PACE Program. The foregoing appropriation	1359
items 490423, Long Term Care Budget - State, and 490623, Long Term	1360
Care Budget, may also be used to support the Department of Aging's	1361
administrative costs associated with operating the PASSPORT,	1362
Choices, Assisted Living, and PACE programs.	1363

The foregoing appropriation item 490623, Long Term Care	1364
Budget, shall be used to provide the federal matching share for	1365
all program costs determined by the Department of Job and Family	1366
Services to be eligible for Medicaid reimbursement.	1367

HOME FIRST PROGRAM

1368

(A) As used in this section, "Long Term Care Budget Services"	1369
includes the following existing programs: PASSPORT, Assisted	1370
Living, Residential State Supplement, and PACE.	1371

(B) On a quarterly basis, on receipt of the certified	1372
expenditures related to sections 173.401, 173.351, 173.501, and	1373
5111.894 of the Revised Code, the Director of Budget and	1374
Management, in consultation with the Directors of Aging and Job	1375
and Family Services, may do all of the following for fiscal years	1376
2010 and 2011:	1377

(1) Transfer cash from the Nursing Facility Stabilization	1378
Fund (Fund 5R20), used by the Department of Job and Family	1379
Services, to the PASSPORT/Residential State Supplement Fund (Fund	1380
4J40), used by the Department of Aging. The	1381

The transferred cash is hereby appropriated to appropriation	1382
item 490610, PASSPORT/Residential State Supplement.	1383

(2) If receipts credited toAuthorize expenditures from the	1384
PASSPORT Fund (Fund 3C40) for amounts that exceed the amounts	1385
appropriated from receipts credited to the fund, the Director of	1386
Aging may request the Director of Budget and Management to	1387
authorize expenditures from the fund in excess of the amounts	1388
appropriated. Upon the approval of the Director of Budget and	1389
Management, theAny additional authorized amounts are hereby	1390
appropriated.	1391

(3) If receipts credited toAuthorize expenditures from the	1392
Interagency Reimbursement Fund (Fund 3G50) for amounts that exceed	1393
the amounts appropriated from receipts credited to the fund, the	1394
Director of Job and Family Services may request the Director of	1395
Budget and Management to authorize expenditures from the fund in	1396
excess of the amounts appropriated. Upon the approval of the	1397
Director of Budget and Management, theAny additional authorized	1398
amounts are hereby appropriated.	1399

(C) Not later than thirty days after the Director of Budget	1400
and Management receives certification of expenditures specified in	1401
division (B) of this section, the Executive Director of Executive	1402
Medicaid Management Administration shall submit a report to the	1403
General Assembly in accordance with section 101.68 of the Revised	1404
Code and to the chairs and ranking minority members of the	1405
committees of the House of Representatives and Senate to which the	1406
biennial budget bill is referred. The report shall describe and	1407
document the criteria and data the Department of Aging, Department	1408
of Job and Family Services, and Office of Budget and Management	1409
use to justify a transfer of funds under division (B) of this	1410
section, including spending and utilization trends for PASSPORT,	1411
PACE, assisted living, and nursing facility services. In addition	1412
to providing the information for the transfer of funds, the report	1413
shall include the following:	1414

(1) In the case of reports for transfers that occur during	1416
fiscal year 2010, the descriptions and documents of the criteria	1417
and data used to justify other such transfers that previously	1418
occurred during that fiscal year;	1419

(2) In the case of reports for transfers that occur during	1420
fiscal year 2011, the descriptions and documents of the criteria	1421
and data used to justify other such transfers that previously	1422
occurred during that fiscal year and fiscal year 2010.	1423

The Directors of Aging, Job and Family Services, and Budget	1424
and Management shall provide the Executive Director of the	1425
Executive Medicaid Management Administration with all information	1426
the Executive Director needs to prepare the reports required by	1427
this division.	1428

(D) The individuals placed in Long Term Care Budget Services	1429
pursuant to this section shall be in addition to the individuals	1430
placed in Long Term Care Budget Services during fiscal years 2010	1431
and 2011 before any transfers to appropriation item 490423, Long	1432
Term Care Budget-State, are made under this section.	1433

ALLOCATION OF PACE SLOTS

1434

In order to effectively administer and manage growth within	1435
the PACE Program, the Director of Aging may, as the director deems	1436
appropriate and to the extent funding is available, expand the	1437
PACE Program to regions of Ohio beyond those currently served by	1438
the PACE Program. In implementing the expansion, the Director may	1439
not decrease the number of residents of Cuyahoga and Hamilton	1440
counties and parts of Butler, Clermont, and Warren counties who	1441
are participating in the PACE Program below the number of	1442
residents of those counties and parts of counties who were	1443
enrolled in the PACE Program on July 1, 2008.	1444

Section 4. That existing Section 209.20 of Am. Sub. H.B. 1 of	1445
the 128th General Assembly is hereby repealed.	1446

Section 5. During fiscal years 2012 and 2013, on receipt of	1447
certified expenditures related to sections 173.401, 173.351,	1448
173.501, and 5111.894 of the Revised Code, the Director of Budget	1449
and Management shall transfer cash from the Nursing Facility	1450
Stabilization Fund (Fund 5R20), used by the Department of Job and	1451
Family Services, to the PASSPORT/Residential State Supplement Fund	1452
(Fund 4J40), used by the Department of Aging.	1453

If receipts credited to the PASSPORT Fund (Fund 3C40) exceed	1454
the amounts appropriated from the fund in fiscal years 2012 and	1455
2013, the Director of Aging shall request the Director of Budget	1456
and Management to authorize expenditures from the fund in excess	1457
of the amounts appropriated.	1458

If receipts credited to the Interagency Reimbursement Fund	1459
(Fund 3G50) exceed the amounts appropriated from the fund in	1460
fiscal years 2012 and 2013, the Director of Job and Family	1461
Services shall request the Director of Budget and Management to	1462
authorize expenditures from the fund in excess of the amounts	1463
appropriated.	1464

Section 6. (A) As used in this section, "population" means	1465
that shown by the 2000 regular federal census.	1466

(B) Until December 31, 2010, the Director of Health shall	1467
accept, for review under section 3702.52 of the Revised Code,	1468
certificate of need applications for an increase in beds in an	1469
existing nursing home if all of the following conditions are met:	1470

(1) The proposed increase is attributable solely to a	1471
relocation of beds registered under section 3701.07 of the Revised	1472
Code as long-term care beds from an existing hospital located in a	1473
county with a population of at least forty thousand persons and	1474
not more than forty-five thousand persons to an existing nursing	1475
home located in a county that has a population of at least one	1476
million persons and not more than one million one hundred thousand	1477
persons and is contiguous to the county from which the beds are to	1478
be relocated.	1479

(2) Not more than fifteen beds are proposed for relocation.

1480

(3) After the proposed relocation, there will be existing	1481
long-term care beds, as defined in section 3702.51 of the Revised	1482
Code, remaining in the county from which the beds are relocated.	1483

(4) The beds are proposed to be licensed as nursing home beds	1484
under Chapter 3721. of the Revised Code.	1485

(C) In reviewing a certificate of need application accepted	1486
under this section, the Director shall not deny the application on	1487
the grounds that the existing hospital from which the beds are to	1488
be relocated is not providing services in all or part of the	1489
long-term care beds at the hospital or has not provided services	1490
in all or part of those long-term care beds for at least three	1491
hundred sixty-five days within the twenty-four months immediately	1492
preceding the date the certificate of need application is filed	1493
with the Director, as otherwise required by a rule adopted under	1494
section 3702.57 of the Revised Code.	1495