As Reported by the Senate Finance and Financial Institutions Committee

128th General Assembly Regular Session 2009-2010

Sub. S. B. No. 214

Senators Carey, Miller, D. 

Cosponsors: Senators Grendell, Schaffer, Seitz, Miller, R., Turner, Strahorn, Morano, Cafaro, Gillmor, Sawyer, Kearney 

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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, to

13

authorize a Certificate of Need for the relocation

14

of long-term care beds from an existing hospital

15

to an existing nursing home in a contiguous county

16

if certain conditions are met, and to revise the

17

law governing the reasons for denying a

18

Certificate of Need application.

19

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

Section 1. That sections 173.401, 173.501, 3702.51, 3702.59,	20
5111.65, 5111.651, 5111.68, 5111.681, 5111.685, 5111.686,	21
5111.688, 5111.874, 5111.875, and 5111.894 be amended; section	22
5111.688 (5111.689) be amended for the purpose of adopting a new	23
section number as indicated in parentheses; and new section	24
5111.688 and section 173.404 of the Revised Code be enacted to	25
read as follows:	26

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

27

"Area agency on aging" has the same meaning as in section	28
173.14 of the Revised Code.	29

"Long-term care consultation program" means the program the	30
department of aging is required to develop under section 173.42 of	31
the Revised Code.	32

"Long-term care consultation program administrator" or	33
"administrator" means the department of aging or, if the	34
department contracts with an area agency on aging or other entity	35
to administer the long-term care consultation program for a	36
particular area, that agency or entity.	37

"Nursing facility" has the same meaning as in section 5111.20	38
of the Revised Code.	39

"PASSPORT waiver" means the federal medicaid waiver granted	40
by the United States secretary of health and human services that	41
authorizes the PASSPORT program.	42

(B) The director of job and family services shall submit to	43
the United States secretary of health and human services an	44
amendment to the PASSPORT waiver that authorizes additional	45
enrollments in the PASSPORT program pursuant to this section.	46
Beginning with the month following the month in which the United	47
States secretary approves the amendment and eachThe department	48
shall establish a home first component of the PASSPORT program	49
under which eligible individuals may be enrolled in the PASSPORT	50
program in accordance with this section. An individual is eligible	51
for the PASSPORT program's home first component if all of the	52
following apply:	53

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

54

(2) The individual is on the unified waiting list established	55
under section 173.404 of the Revised Code.	56

(3) At least one of the following applies:

57

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

58

(b) A physician has determined and documented in writing that	59
the individual has a medical condition that, unless the individual	60
is enrolled in home and community-based services such as the	61
PASSPORT program, will require the individual to be admitted to a	62
nursing facility within thirty days of the physician's	63
determination.	64

(c) The individual has been hospitalized and a physician has	65
determined and documented in writing that, unless the individual	66
is enrolled in home and community-based services such as the	67
PASSPORT program, the individual is to be transported directly	68
from the hospital to a nursing facility and admitted.	69

(d) Both of the following apply:

70

(i) The individual is the subject of a report made under	71
section 5101.61 of the Revised Code regarding abuse, neglect, or	72
exploitation or such a report referred to a county department of	73
job and family services under section 5126.31 of the Revised Code	74
or has made a request to a county department for protective	75
services as defined in section 5101.60 of the Revised Code.	76

(ii) A county department of job and family services and an	77
area agency on aging have jointly documented in writing that,	78
unless the individual is enrolled in home and community-based	79
services such as the PASSPORT program, the individual should be	80
admitted to a nursing facility.	81

(C) Each month thereafter, each area agency on aging shall	82
determine whetheridentify individuals who resideresiding in the	83
area that the area agency on aging serves andwho are on a waiting	84
listeligible for the home first component of the PASSPORT program	85
have been admitted to a nursing facility. IfWhen an area agency	86
on aging determines thatidentifies such an individual has been	87
admitted to a nursing facility, the agency shall notify the	88
long-term care consultation program administrator serving the area	89
in which the individual resides about the determination. The	90
administrator shall determine whether the PASSPORT program is	91
appropriate for the individual and whether the individual would	92
rather participate in the PASSPORT program than continue residing	93
or begin to reside in thea nursing facility. If the	94
administrator determines that the PASSPORT program is appropriate	95
for the individual and the individual would rather participate in	96
the PASSPORT program than continue residingor begin to reside in	97
thea nursing facility, the administrator shall so notify the	98
department of aging. On receipt of the notice from the	99
administrator, the department of aging shall approve the	100
individual's enrollment in the PASSPORT program regardless of the	101
PASSPORT program'sunified waiting list and even though the	102
enrollment causes enrollment in the program to exceed the limit	103
that would otherwise applyestablished under section 173.404 of	104
the Revised Code, unless the enrollment would cause the PASSPORT	105
program to exceed any limit on the number of individuals who may	106
be enrolled in the program as set by the United States secretary	107
of health and human services in the PASSPORT waiver.	108

(D) Each quarter, the department of aging shall certify to	109
the director of budget and management the estimated increase in	110
costs of the PASSPORT program resulting from enrollment of	111
individuals in the PASSPORT program pursuant to this section.	112

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

113

(1) "Department of aging-administered medicaid waiver	114
component" means each of the following:	115

(a) The PASSPORT program created under section 173.40 of the	116
Revised Code;	117

(b) The choices program created under section 173.403 of the	118
Revised Code;	119

(c) The assisted living program created under section 5111.89	120
of the Revised Code.	121

(2) "PACE program" means the component of the medicaid	122
program the department of aging administers pursuant to section	123
173.50 of the Revised Code.	124

(B) The department of aging shall establish a unified waiting	125
list for department of aging-administered medicaid waiver	126
components and the PACE program. Only individuals eligible for a	127
department of aging-administered medicaid waiver component or the	128
PACE program may be placed on the unified waiting list.	129

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

130

"Nursing facility" has the same meaning as in section 5111.20	131
of the Revised Code.	132

"PACE provider" has the same meaning as in 42 U.S.C.	133
1396u-4(a)(3).	134

(B) The department of aging shall establish a home first	135
component of the PACE program under which eligible individuals may	136
be enrolled in the PACE program in accordance with this section.	137
An individual is eligible for the PACE program's home first	138
component if all of the following apply:	139

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

140

(2) The individual is on the unified waiting list established	141
under section 173.404 of the Revised Code.	142

(3) At least one of the following applies:

143

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

144

(b) A physician has determined and documented in writing that	145
the individual has a medical condition that, unless the individual	146
is enrolled in home and community-based services such as the PACE	147
program, will require the individual to be admitted to a nursing	148
facility within thirty days of the physician's determination.	149

(c) The individual has been hospitalized and a physician has	150
determined and documented in writing that, unless the individual	151
is enrolled in home and community-based services such as the PACE	152
program, the individual is to be transported directly from the	153
hospital to a nursing facility and admitted.	154

(d) Both of the following apply:

155

(i) The individual is the subject of a report made under	156
section 5101.61 of the Revised Code regarding abuse, neglect, or	157
exploitation or such a report referred to a county department of	158
job and family services under section 5126.31 of the Revised Code	159
or has made a request to a county department for protective	160
services as defined in section 5101.60 of the Revised Code.	161

(ii) A county department of job and family services and an	162
area agency on aging have jointly documented in writing that,	163
unless the individual is enrolled in home and community-based	164
services such as the PACE program, the individual should be	165
admitted to a nursing facility.	166

(C) Each month, the department of aging shall determine	167
whetheridentify individuals who are on a waiting listeligible	168
for the home first component of the PACE program have been	169
admitted to a nursing facility. IfWhen the department determines	170
thatidentifies such an individual has been admitted to a nursing	171
facility, the department shall notify the PACE provider serving	172
the area in which the individual resides about the determination.	173
The PACE provider shall determine whether the PACE program is	174
appropriate for the individual and whether the individual would	175
rather participate in the PACE program than continue residingor	176
begin to reside in thea nursing facility. If the PACE provider	177
determines that the PACE program is appropriate for the individual	178
and the individual would rather participate in the PACE program	179
than continue residingor begin to reside in thea nursing	180
facility, the PACE provider shall so notify the department of	181
aging. On receipt of the notice from the PACE provider, the	182
department of aging shall approve the individual's enrollment in	183
the PACE program in accordance with priorities established in	184
rules adopted under section 173.50 of the Revised Code. Each	185

(D) Each quarter, the department of aging shall certify to	186
the director of budget and management the estimated increase in	187
costs of the PACE program resulting from enrollment of individuals	188
in the PACE program pursuant to this section.	189

Sec. 3702.51.  As used in sections 3702.51 to 3702.62 of the	190
Revised Code:	191

(A) "Applicant" means any person that submits an application	192
for a certificate of need and who is designated in the application	193
as the applicant.	194

(B) "Person" means any individual, corporation, business	195
trust, estate, firm, partnership, association, joint stock	196
company, insurance company, government unit, or other entity.	197

(C) "Certificate of need" means a written approval granted by	198
the director of health to an applicant to authorize conducting a	199
reviewable activity.	200

(D) "Health service area" means a geographic region	201
designated by the director of health under section 3702.58 of the	202
Revised Code.	203

(E) "Health service" means a clinically related service, such	204
as a diagnostic, treatment, rehabilitative, or preventive service.	205

(F) "Health service agency" means an agency designated to	206
serve a health service area in accordance with section 3702.58 of	207
the Revised Code.	208

(G) "Health care facility" means:

209

(1) A hospital registered under section 3701.07 of the	210
Revised Code;	211

(2) A nursing home licensed under section 3721.02 of the	212
Revised Code, or by a political subdivision certified under	213
section 3721.09 of the Revised Code;	214

(3) A county home or a county nursing home as defined in	215
section 5155.31 of the Revised Code that is certified under Title	216
XVIII or XIX of the "Social Security Act," 49 Stat. 620 (1935), 42	217
U.S.C.A. 301, as amended;	218

(4) A freestanding dialysis center;

219

(5) A freestanding inpatient rehabilitation facility;

220

(6) An ambulatory surgical facility;

221

(7) A freestanding cardiac catheterization facility;

222

(8) A freestanding birthing center;

223

(9) A freestanding or mobile diagnostic imaging center;

224

(10) A freestanding radiation therapy center.

225

A health care facility does not include the offices of	226
private physicians and dentists whether for individual or group	227
practice, residential facilities licensed under section 5123.19 of	228
the Revised Code, or an institution for the sick that is operated	229
exclusively for patients who use spiritual means for healing and	230
for whom the acceptance of medical care is inconsistent with their	231
religious beliefs, accredited by a national accrediting	232
organization, exempt from federal income taxation under section	233
501 of the Internal Revenue Code of 1986, 100 Stat. 2085, 26	234
U.S.C.A. 1, as amended, and providing twenty-four hour nursing	235
care pursuant to the exemption in division (E) of section 4723.32	236
of the Revised Code from the licensing requirements of Chapter	237
4723. of the Revised Code.	238

(H) "Medical equipment" means a single unit of medical	239
equipment or a single system of components with related functions	240
that is used to provide health services.	241

(I) "Third-party payer" means a health insuring corporation	242
licensed under Chapter 1751. of the Revised Code, a health	243
maintenance organization as defined in division (K) of this	244
section, an insurance company that issues sickness and accident	245
insurance in conformity with Chapter 3923. of the Revised Code, a	246
state-financed health insurance program under Chapter 3701.,	247
4123., or 5111. of the Revised Code, or any self-insurance plan.	248

(J) "Government unit" means the state and any county,	249
municipal corporation, township, or other political subdivision of	250
the state, or any department, division, board, or other agency of	251
the state or a political subdivision.	252

(K) "Health maintenance organization" means a public or	253
private organization organized under the law of any state that is	254
qualified under section 1310(d) of Title XIII of the "Public	255
Health Service Act," 87 Stat. 931 (1973), 42 U.S.C. 300e-9.	256

(L) "Existing health care facility" means either of the	257
following:	258

(1) A health care facility that is licensed or otherwise	259
authorized to operate in this state in accordance with applicable	260
law, including a county home or a county nursing home that is	261
certified as of February 1, 2008, under Title XVIII or Title XIX	262
of the "Social Security Act," 49 Stat. 620 (1935), 42 U.S.C. 301,	263
as amended, is staffed and equipped to provide health care	264
services, and is actively providing health services;	265

(2) A health care facility that is licensed or otherwise	266
authorized to operate in this state in accordance with applicable	267
law, including a county home or a county nursing home that is	268
certified as of February 1, 2008, under Title XVIII or Title XIX	269
of the "Social Security Act," 49 Stat. 620 (1935), 42 U.S.C. 301,	270
as amended, or that has beds registered under section 3701.07 of	271
the Revised Code as skilled nursing beds or long-term care beds	272
and has provided services for at least three hundred sixty-five	273
consecutive days within the twenty-four months immediately	274
preceding the date a certificate of need application is filed with	275
the director of health.	276

(M) "State" means the state of Ohio, including, but not	277
limited to, the general assembly, the supreme court, the offices	278
of all elected state officers, and all departments, boards,	279
offices, commissions, agencies, institutions, and other	280
instrumentalities of the state of Ohio. "State" does not include	281
political subdivisions.	282

(N) "Political subdivision" means a municipal corporation,	283
township, county, school district, and all other bodies corporate	284
and politic responsible for governmental activities only in	285
geographic areas smaller than that of the state to which the	286
sovereign immunity of the state attaches.	287

(O) "Affected person" means:

288

(1) An applicant for a certificate of need, including an	289
applicant whose application was reviewed comparatively with the	290
application in question;	291

(2) The person that requested the reviewability ruling in	292
question;	293

(3) Any person that resides or regularly uses health care	294
facilities within the geographic area served or to be served by	295
the health care services that would be provided under the	296
certificate of need or reviewability ruling in question;	297

(4) Any health care facility that is located in the health	298
service area where the health care services would be provided	299
under the certificate of need or reviewability ruling in question;	300

(5) Third-party payers that reimburse health care facilities	301
for services in the health service area where the health care	302
services would be provided under the certificate of need or	303
reviewability ruling in question;	304

(6) Any other person who testified at a public hearing held	305
under division (B) of section 3702.52 of the Revised Code or	306
submitted written comments in the course of review of the	307
certificate of need application in question.	308

(P) "Osteopathic hospital" means a hospital registered under	309
section 3701.07 of the Revised Code that advocates osteopathic	310
principles and the practice and perpetuation of osteopathic	311
medicine by doing any of the following:	312

(1) Maintaining a department or service of osteopathic	313
medicine or a committee on the utilization of osteopathic	314
principles and methods, under the supervision of an osteopathic	315
physician;	316

(2) Maintaining an active medical staff, the majority of	317
which is comprised of osteopathic physicians;	318

(3) Maintaining a medical staff executive committee that has	319
osteopathic physicians as a majority of its members.	320

(Q) "Ambulatory surgical facility" has the same meaning as in	321
section 3702.30 of the Revised Code.	322

(R) Except as provided in division (S) of this section,	323
"reviewable activity" means any of the following activities:	324

(1) The establishment, development, or construction of a new	325
long-term care facility;	326

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

327

(3) The renovation of a long-term care facility that involves	328
a capital expenditure of two million dollars or more, not	329
including expenditures for equipment, staffing, or operational	330
costs;	331

(4) Either of the following changes in long-term care bed	332
capacity:	333

(a) An increase in bed capacity;

334

(b) A relocation of beds from one physical facility or site	335
to another, excluding the relocation of beds within a long-term	336
care facility or among buildings of a long-term care facility at	337
the same site.	338

(5) Any change in the health services, bed capacity, or site,	339
or any other failure to conduct the reviewable activity in	340
substantial accordance with the approved application for which a	341
certificate of need concerning long-term care beds was granted, if	342
the change is made within five years after the implementation of	343
the reviewable activity for which the certificate was granted;	344

(6) The expenditure of more than one hundred ten per cent of	345
the maximum expenditure specified in a certificate of need	346
concerning long-term care beds.	347

(S) "Reviewable activity" does not include any of the	348
following activities:	349

(1) Acquisition of computer hardware or software;

350

(2) Acquisition of a telephone system;

351

(3) Construction or acquisition of parking facilities;

352

(4) Correction of cited deficiencies that are in violation of	353
federal, state, or local fire, building, or safety laws and rules	354
and that constitute an imminent threat to public health or safety;	355

(5) Acquisition of an existing health care facility that does	356
not involve a change in the number of the beds, by service, or in	357
the number or type of health services;	358

(6) Correction of cited deficiencies identified by	359
accreditation surveys of the joint commission on accreditation of	360
healthcare organizations or of the American osteopathic	361
association;	362

(7) Acquisition of medical equipment to replace the same or	363
similar equipment for which a certificate of need has been issued	364
if the replaced equipment is removed from service;	365

(8) Mergers, consolidations, or other corporate	366
reorganizations of health care facilities that do not involve a	367
change in the number of beds, by service, or in the number or type	368
of health services;	369

(9) Construction, repair, or renovation of bathroom	370
facilities;	371

(10) Construction of laundry facilities, waste disposal	372
facilities, dietary department projects, heating and air	373
conditioning projects, administrative offices, and portions of	374
medical office buildings used exclusively for physician services;	375

(11) Acquisition of medical equipment to conduct research	376
required by the United States food and drug administration or	377
clinical trials sponsored by the national institute of health. Use	378
of medical equipment that was acquired without a certificate of	379
need under division (S)(11) of this section and for which	380
premarket approval has been granted by the United States food and	381
drug administration to provide services for which patients or	382
reimbursement entities will be charged shall be a reviewable	383
activity.	384

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

385

Only that portion of a project that meets the requirements of	386
this division is not a reviewable activity.	387

(T) "Small rural hospital" means a hospital that is located	388
within a rural area, has fewer than one hundred beds, and to which	389
fewer than four thousand persons were admitted during the most	390
recent calendar year.	391

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

392

(1) A hospital registered under section 3701.07 of the	393
Revised Code that provides general pediatric medical and surgical	394
care, and in which at least seventy-five per cent of annual	395
inpatient discharges for the preceding two calendar years were	396
individuals less than eighteen years of age;	397

(2) A distinct portion of a hospital registered under section	398
3701.07 of the Revised Code that provides general pediatric	399
medical and surgical care, has a total of at least one hundred	400
fifty registered pediatric special care and pediatric acute care	401
beds, and in which at least seventy-five per cent of annual	402
inpatient discharges for the preceding two calendar years were	403
individuals less than eighteen years of age;	404

(3) A distinct portion of a hospital, if the hospital is	405
registered under section 3701.07 of the Revised Code as a	406
children's hospital and the children's hospital meets all the	407
requirements of division (U)(1) of this section.	408

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

409

(1) A nursing home licensed under section 3721.02 of the	410
Revised Code or by a political subdivision certified under section	411
3721.09 of the Revised Code;	412

(2) The portion of any facility, including a county home or	413
county nursing home, that is certified as a skilled nursing	414
facility or a nursing facility under Title XVIII or XIX of the	415
"Social Security Act";	416

(3) The portion of any hospital that contains beds registered	417
under section 3701.07 of the Revised Code as skilled nursing beds	418
or long-term care beds.	419

(W) "Long-term care bed" means a bed in a long-term care	420
facility.	421

(X) "Freestanding birthing center" means any facility in	422
which deliveries routinely occur, regardless of whether the	423
facility is located on the campus of another health care facility,	424
and which is not licensed under Chapter 3711. of the Revised Code	425
as a level one, two, or three maternity unit or a limited	426
maternity unit.	427

(Y)(1) "Reviewability ruling" means a ruling issued by the	428
director of health under division (A) of section 3702.52 of the	429
Revised Code as to whether a particular proposed project is or is	430
not a reviewable activity.	431

(2) "Nonreviewability ruling" means a ruling issued under	432
that division that a particular proposed project is not a	433
reviewable activity.	434

(Z)(1) "Metropolitan statistical area" means an area of this	435
state designated a metropolitan statistical area or primary	436
metropolitan statistical area in United States office of	437
management and budget bulletin no. 93-17, June 30, 1993, and its	438
attachments.	439

(2) "Rural area" means any area of this state not located	440
within a metropolitan statistical area.	441

(AA) "County nursing home" has the same meaning as in section	442
5155.31 of the Revised Code.	443

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

444

(1) A person who has an ownership or controlling interest of	445
at least five per cent in an applicant, in a health care facility	446
that is the subject of an application for a certificate of need,	447
or in the owner or operator of the applicant or such a facility;	448

(2) An officer, director, trustee, or general partner of an	449
applicant, of a health care facility that is the subject of an	450
application for a certificate of need, or of the owner or operator	451
of the applicant or such a facility.	452

(CC) "Actual harm but not immediate jeopardy deficiency"	453
means a deficiency that, under 42 C.F.R. 488.404, either	454
constitutes a pattern of deficiencies resulting in actual harm	455
that is not immediate jeopardy or represents widespread	456
deficiencies resulting in actual harm that is not immediate	457
jeopardy.	458

(DD) "Immediate jeopardy deficiency" means a deficiency that,	459
under 42 C.F.R. 488.404, either constitutes a pattern of	460
deficiencies resulting in immediate jeopardy to resident health or	461
safety or represents widespread deficiencies resulting in	462
immediate jeopardy to resident health or safety.	463

Sec. 3702.59.  (A) The director of health shall accept for	464
review certificate of need applications as provided in sections	465
3702.592, 3702.593, and 3702.594 of the Revised Code.	466

(B)(1) The director shall not approve an application for a	467
certificate of need for the addition of long-term care beds to an	468
existing health care facility or for the development of a new	469
health care facility if any of the following apply:	470

(1)(a) The existing health care facility in which the beds	471
are being placed has one or more waivers for life safety code	472
deficiencies, one or more state fire code violations, or one or	473
more state building code violations, and the project identified in	474
the application does not propose to correct all life safety code	475
deficiencies for which a waiver has been granted, all state fire	476
code violations, and all state building code violations at the	477
existing health care facility in which the beds are being placed;	478

(2)(b) During the sixty-month period preceding the filing of	479
the application, a notice of proposed license revocation was	480
issued under section 3721.03 of the Revised Code for the existing	481
health care facility in which the beds are being placed or a	482
nursing home owned or operated by the applicant or the corporation	483
or other business that operates or seeks to operate the health	484
care facility in which the beds are being placeda principal	485
participant.	486

(3)(c) During the period that precedes the filing of the	487
application and is encompassed by the three most recent standard	488
surveys of the existing health care facility in which the beds are	489
being placed, theany of the following occurred:	490

(i) The facility was cited on three or more separate	491
occasions for final, nonappealable actual harm but not immediate	492
jeopardy deficiencies that, under 42 C.F.R. 488.404, either	493
constitute a pattern of deficiencies resulting in actual harm that	494
is not immediate jeopardy or are widespread deficiencies resulting	495
in actual harm that is not immediate jeopardy.	496

(4) During the period that precedes the filing of the	497
application and is encompassed by the three most recent standard	498
surveys of the existing health care facility in which the beds are	499
being placed, the(ii) The facility was cited on two or more	500
separate occasions for final, nonappealable immediate jeopardy	501
deficiencies that, under 42 C.F.R. 488.404, either constitute a	502
pattern of deficiencies resulting in immediate jeopardy to	503
resident health or safety or are widespread deficiencies resulting	504
in immediate jeopardy to resident health or safety.	505

(5) During the period that precedes the filing of the	506
application and is encompassed by the three most recent standard	507
surveys of the existing health care facility in which the beds are	508
being placed, more(iii) The facility was cited on two separate	509
occasions for final, nonappealable actual harm but not immediate	510
jeopardy deficiencies and on one occasion for a final,	511
nonappealable immediate jeopardy deficiency.	512

(d) More than two nursing homes owned or operated in this	513
state by the applicant or the person who operates the facility in	514
which the beds are being placeda principal participant or, if the	515
applicant or persona principal participant owns or operates more	516
than twenty nursing homes in this state, more than ten per cent of	517
those nursing homes, were each cited onduring the period that	518
precedes the filing of the application for the certificate of need	519
and is encompassed by the three most recent standard surveys of	520
the nursing homes that were so cited in any of the following	521
manners:	522

(i) On three or more separate occasions for final,	523
nonappealable actual harm but not immediate jeopardy deficiencies	524
that, under 42 C.F.R. 488.404, either constitute a pattern of	525
deficiencies resulting in actual harm that is not immediate	526
jeopardy or are widespread deficiencies resulting in actual harm	527
that is not immediate jeopardy.	528

(6) During the period that precedes the filing of the	529
application and is encompassed by the three most recent standard	530
surveys of the existing health care facility in which the beds are	531
being placed, more than two nursing homes operated in this state	532
by the applicant or the person who operates the facility in which	533
the beds are being placed or, if the applicant or person operates	534
more than twenty nursing homes in this state, more than ten per	535
cent of those nursing homes, were each cited on;	536

(ii) On two or more separate occasions for final,	537
nonappealable immediate jeopardy deficiencies that, under 42	538
C.F.R. 488.404, either constitute a pattern of deficiencies	539
resulting in immediate jeopardy to resident health or safety or	540
are widespread deficiencies resulting in immediate jeopardy to	541
resident health or safety;	542

(iii) On two separate occasions for final, nonappealable	543
actual harm but not immediate jeopardy deficiencies and on one	544
occasion for a final, nonappealable immediate jeopardy deficiency.	545

(7) During the sixty-month period preceding the filing of the	546
application, the applicant has violated this chapter on two or	547
more separate occasions.	548

(2) In applying divisions (B)(1)(a) to (6)(d) of this	549
section, the director shall not consider deficiencies or	550
violations cited before the current operatorapplicant or a	551
principal participant acquired or began to own or operate the	552
health care facility at which the deficiencies or violations were	553
cited. The director may disregard deficiencies and violations	554
cited after the health care facility was acquired or began to be	555
operated by the current operatorapplicant or a principal	556
participant if the deficiencies or violations were attributable to	557
circumstances that arose under the previous owner or operator and	558
the current operatorapplicant or principal participant has	559
implemented measures to alleviate the circumstances. In the case	560
of an application proposing development of a new health care	561
facility by relocation of beds, the director shall not consider	562
deficiencies or violations that were solely attributable to the	563
physical plant of the existing health care facility from which the	564
beds are being relocated.	565

(C) The director also shall accept for review any application	566
for the conversion of infirmary beds to long-term care beds if the	567
infirmary meets all of the following conditions:	568

(1) Is operated exclusively by a religious order;

569

(2) Provides care exclusively to members of religious orders	570
who take vows of celibacy and live by virtue of their vows within	571
the orders as if related;	572

(3) Was providing care exclusively to members of such a	573
religious order on January 1, 1994.	574

At no time shall individuals other than those described in	575
division (C)(2) of this section be admitted to a facility to use	576
beds for which a certificate of need is approved under this	577
division.	578

Sec. 5111.65.  As used in sections 5111.65 to 5111.688	579
5111.689 of the Revised Code:	580

(A) "Affiliated operator" means an operator affiliated with	581
either of the following:	582

(1) The exiting operator for whom the affiliated operator is	583
to assume liability for the entire amount of the exiting	584
operator's debt under the medicaid program or the portion of the	585
debt that represents the franchise permit fee the exiting operator	586
owes;	587

(2) The entering operator involved in the change of operator	588
with the exiting operator specified in division (A)(1) of this	589
section.	590

(B) "Change of operator" means an entering operator becoming	591
the operator of a nursing facility or intermediate care facility	592
for the mentally retarded in the place of the exiting operator.	593

(1) Actions that constitute a change of operator include the	594
following:	595

(a) A change in an exiting operator's form of legal	596
organization, including the formation of a partnership or	597
corporation from a sole proprietorship;	598

(b) A transfer of all the exiting operator's ownership	599
interest in the operation of the facility to the entering	600
operator, regardless of whether ownership of any or all of the	601
real property or personal property associated with the facility is	602
also transferred;	603

(c) A lease of the facility to the entering operator or the	604
exiting operator's termination of the exiting operator's lease;	605

(d) If the exiting operator is a partnership, dissolution of	606
the partnership;	607

(e) If the exiting operator is a partnership, a change in	608
composition of the partnership unless both of the following apply:	609

(i) The change in composition does not cause the	610
partnership's dissolution under state law.	611

(ii) The partners agree that the change in composition does	612
not constitute a change in operator.	613

(f) If the operator is a corporation, dissolution of the	614
corporation, a merger of the corporation into another corporation	615
that is the survivor of the merger, or a consolidation of one or	616
more other corporations to form a new corporation.	617

(2) The following, alone, do not constitute a change of	618
operator:	619

(a) A contract for an entity to manage a nursing facility or	620
intermediate care facility for the mentally retarded as the	621
operator's agent, subject to the operator's approval of daily	622
operating and management decisions;	623

(b) A change of ownership, lease, or termination of a lease	624
of real property or personal property associated with a nursing	625
facility or intermediate care facility for the mentally retarded	626
if an entering operator does not become the operator in place of	627
an exiting operator;	628

(c) If the operator is a corporation, a change of one or more	629
members of the corporation's governing body or transfer of	630
ownership of one or more shares of the corporation's stock, if the	631
same corporation continues to be the operator.	632

(B)(C) "Effective date of a change of operator" means the day	633
the entering operator becomes the operator of the nursing facility	634
or intermediate care facility for the mentally retarded.	635

(C)(D) "Effective date of a facility closure" means the last	636
day that the last of the residents of the nursing facility or	637
intermediate care facility for the mentally retarded resides in	638
the facility.	639

(D)(E) "Effective date of a voluntary termination" means the	640
day the intermediate care facility for the mentally retarded	641
ceases to accept medicaid patients.	642

(E)(F) "Effective date of a voluntary withdrawal of	643
participation" means the day the nursing facility ceases to accept	644
new medicaid patients other than the individuals who reside in the	645
nursing facility on the day before the effective date of the	646
voluntary withdrawal of participation.	647

(F)(G) "Entering operator" means the person or government	648
entity that will become the operator of a nursing facility or	649
intermediate care facility for the mentally retarded when a change	650
of operator occurs.	651

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

652

(1) An operator that will cease to be the operator of a	653
nursing facility or intermediate care facility for the mentally	654
retarded on the effective date of a change of operator;	655

(2) An operator that will cease to be the operator of a	656
nursing facility or intermediate care facility for the mentally	657
retarded on the effective date of a facility closure;	658

(3) An operator of an intermediate care facility for the	659
mentally retarded that is undergoing or has undergone a voluntary	660
termination;	661

(4) An operator of a nursing facility that is undergoing or	662
has undergone a voluntary withdrawal of participation.	663

(H)(I)(1) "Facility closure" means discontinuance of the use	664
of the building, or part of the building, that houses the facility	665
as a nursing facility or intermediate care facility for the	666
mentally retarded that results in the relocation of all of the	667
facility's residents. A facility closure occurs regardless of any	668
of the following:	669

(a) The operator completely or partially replacing the	670
facility by constructing a new facility or transferring the	671
facility's license to another facility;	672

(b) The facility's residents relocating to another of the	673
operator's facilities;	674

(c) Any action the department of health takes regarding the	675
facility's certification under Title XIX of the "Social Security	676
Act," 79 Stat. 286 (1965), 42 U.S.C. 1396, as amended, that may	677
result in the transfer of part of the facility's survey findings	678
to another of the operator's facilities;	679

(d) Any action the department of health takes regarding the	680
facility's license under Chapter 3721. of the Revised Code;	681

(e) Any action the department of developmental disabilities	682
takes regarding the facility's license under section 5123.19 of	683
the Revised Code.	684

(2) A facility closure does not occur if all of the	685
facility's residents are relocated due to an emergency evacuation	686
and one or more of the residents return to a medicaid-certified	687
bed in the facility not later than thirty days after the	688
evacuation occurs.	689

(I)(J) "Fiscal year," "franchise permit fee," "intermediate	690
care facility for the mentally retarded," "nursing facility,"	691
"operator," "owner," and "provider agreement" have the same	692
meanings as in section 5111.20 of the Revised Code.	693

(J)(K) "Voluntary termination" means an operator's voluntary	694
election to terminate the participation of an intermediate care	695
facility for the mentally retarded in the medicaid program but to	696
continue to provide service of the type provided by a residential	697
facility as defined in section 5123.19 of the Revised Code.	698

(K)(L)"Voluntary withdrawal of participation" means an	699
operator's voluntary election to terminate the participation of a	700
nursing facility in the medicaid program but to continue to	701
provide service of the type provided by a nursing facility.	702

Sec. 5111.651. Sections 5111.65 to 5111.6885111.689 of the	703
Revised Code do not apply to a nursing facility or intermediate	704
care facility for the mentally retarded that undergoes a facility	705
closure, voluntary termination, voluntary withdrawal of	706
participation, or change of operator on or before September 30,	707
2005, if the exiting operator provided written notice of the	708
facility closure, voluntary termination, voluntary withdrawal of	709
participation, or change of operator to the department of job and	710
family services on or before June 30, 2005.	711

Sec. 5111.68. (A) On receipt of a written notice under	712
section 5111.66 of the Revised Code of a facility closure,	713
voluntary termination, or voluntary withdrawal of participation or	714
a written notice under section 5111.67 of the Revised Code of a	715
change of operator, the department of job and family services	716
shall determineestimate the amount of any overpayments made under	717
the medicaid program to the exiting operator, including	718
overpayments the exiting operator disputes, and other actual and	719
potential debts the exiting operator owes or may owe to the	720
department and United States centers for medicare and medicaid	721
services under the medicaid program, including a franchise permit	722
fee. In determining	723

(B) In estimating the exiting operator's other actual and	724
potential debts to the department and the United States centers	725
for medicare and medicaid services under the medicaid program, the	726
department shall includeuse a debt estimation methodology the	727
director of job and family services shall establish in rules	728
adopted under section 5111.689 of the Revised Code. The	729
methodology shall provide for estimating all of the following that	730
the department determines isare applicable:	731

(1) Refunds due the department under section 5111.27 of the	732
Revised Code;	733

(2) Interest owed to the department and United States centers	734
for medicare and medicaid services;	735

(3) Final civil monetary and other penalties for which all	736
right of appeal has been exhausted;	737

(4) Money owed the department and United States centers for	738
medicare and medicaid services from any outstanding final fiscal	739
audit, including a final fiscal audit for the last fiscal year or	740
portion thereof in which the exiting operator participated in the	741
medicaid program;	742

(5) Other amounts the department determines are applicable.

743

(B) If the department is unable to determine the amount of	744
the overpayments and other debts for any period before the	745
effective date of the entering operator's provider agreement or	746
the effective date of the facility closure, voluntary termination,	747
or voluntary withdrawal of participation, the department shall	748
make a reasonable estimate of the overpayments and other debts for	749
the period. The department shall make the estimate using	750
information available to the department, including prior	751
determinations of overpayments and other debts.	752

(C) The department shall provide the exiting operator written	753
notice of the department's estimate under division (A) of this	754
section not later than thirty days after the department receives	755
the notice under section 5111.66 of the Revised Code of the	756
facility closure, voluntary termination, or voluntary withdrawal	757
of participation or the notice under section 5111.67 of the	758
Revised Code of the change of operator. The department's written	759
notice shall include the basis for the estimate.	760

Sec. 5111.681. (A) Except as provided in divisiondivisions	761
(B) and (C) of this section, the department of job and family	762
services shallmay withhold the greater of the following from	763
payment due an exiting operator under the medicaid program:	764

(1) Thethe total amount of any overpayments made under the	765
medicaid program to the exiting operator, including overpayments	766
the exiting operator disputes, and other actual and potential	767
debts, including any unpaid penalties,specified in the notice	768
provided under division (C) of section 5111.68 of the Revised Code	769
that the exiting operator owes or may owe to the department and	770
United States centers for medicare and medicaid services under the	771
medicaid program;	772

(2) An amount equal to the average amount of monthly payments	773
to the exiting operator under the medicaid program for the	774
twelve-month period immediately preceding the month that includes	775
the last day the exiting operator's provider agreement is in	776
effect or, in the case of a voluntary withdrawal of participation,	777
the effective date of the voluntary withdrawal of participation.	778

(B) TheIn the case of a change of operator and subject to	779
division (D) of this section, the following shall apply regarding	780
a withholding under division (A) of this section if the exiting	781
operator or entering operator or an affiliated operator executes a	782
successor liability agreement meeting the requirements of division	783
(E) of this section:	784

(1) If the exiting operator, entering operator, or affiliated	785
operator assumes liability for the total, actual amount of debt	786
the exiting operator owes the department and the United States	787
centers for medicare and medicaid services under the medicaid	788
program as determined under section 5111.685 of the Revised Code,	789
the department may chooseshall not to make the withholding under	790
division (A) of this section if an entering operator does both of	791
the following:	792

(1) Enters into a nontransferable, unconditional, written	793
agreement with the department to pay the department any debt the	794
exiting operator owes the department under the medicaid program;	795

(2) Provides the department a copy of the entering operator's	796
balance sheet that assists the department in determining whether	797
to make the withholding under division (A) of this section.	798

(2) If the exiting operator, entering operator, or affiliated	799
operator assumes liability for only the portion of the amount	800
specified in division (B)(1) of this section that represents the	801
franchise permit fee the exiting operator owes, the department	802
shall withhold not more than the difference between the total	803
amount specified in the notice provided under division (C) of	804
section 5111.68 of the Revised Code and the amount for which the	805
exiting operator, entering operator, or affiliated operator	806
assumes liability.	807

(C) In the case of a voluntary termination, voluntary	808
withdrawal of participation, or facility closure and subject to	809
division (D) of this section, the following shall apply regarding	810
a withholding under division (A) of this section if the exiting	811
operator or an affiliated operator executes a successor liability	812
agreement meeting the requirements of division (E) of this	813
section:	814

(1) If the exiting operator or affiliated operator assumes	815
liability for the total, actual amount of debt the exiting	816
operator owes the department and the United States centers for	817
medicare and medicaid services under the medicaid program as	818
determined under section 5111.685 of the Revised Code, the	819
department shall not make the withholding.	820

(2) If the exiting operator or affiliated operator assumes	821
liability for only the portion of the amount specified in division	822
(C)(1) of this section that represents the franchise permit fee	823
the exiting operator owes, the department shall withhold not more	824
than the difference between the total amount specified in the	825
notice provided under division (C) of section 5111.68 of the	826
Revised Code and the amount for which the exiting operator or	827
affiliated operator assumes liability.	828

(D) For an exiting operator or affiliated operator to be	829
eligible to enter into a successor liability agreement under	830
division (B) or (C) of this section, both of the following must	831
apply:	832

(1) The exiting operator or affiliated operator must have one	833
or more valid provider agreements, other than the provider	834
agreement for the nursing facility or intermediate care facility	835
for the mentally retarded that is the subject of the voluntary	836
termination, voluntary withdrawal of participation, facility	837
closure, or change of operator;	838

(2) During the twelve-month period preceding the month in	839
which the department receives the notice of the voluntary	840
termination, voluntary withdrawal of participation, or facility	841
closure under section 5111.66 of the Revised Code or the notice of	842
the change of operator under section 5111.67 of the Revised Code,	843
the average monthly medicaid payment made to the exiting operator	844
or affiliated operator pursuant to the exiting operator's or	845
affiliated operator's one or more provider agreements, other than	846
the provider agreement for the nursing facility or intermediate	847
care facility for the mentally retarded that is the subject of the	848
voluntary termination, voluntary withdrawal of participation,	849
facility closure, or change of operator, must equal at least	850
ninety per cent of the sum of the following:	851

(a) The average monthly medicaid payment made to the exiting	852
operator pursuant to the exiting operator's provider agreement for	853
the nursing facility or intermediate care facility for the	854
mentally retarded that is the subject of the voluntary	855
termination, voluntary withdrawal of participation, facility	856
closure, or change of operator;	857

(b) Whichever of the following apply:

858

(i) If the exiting operator or affiliated operator has	859
assumed liability under one or more other successor liability	860
agreements, the total amount for which the exiting operator or	861
affiliated operator has assumed liability under the other	862
successor liability agreements;	863

(ii) If the exiting operator or affiliated operator has not	864
assumed liability under any other successor liability agreements,	865
zero.	866

(E) A successor liability agreement executed under this	867
section must comply with all of the following:	868

(1) It must provide for the operator who executes the	869
successor liability agreement to assume liability for either of	870
the following as specified in the agreement:	871

(a) The total, actual amount of debt the exiting operator	872
owes the department and the United States centers for medicare and	873
medicaid services under the medicaid program as determined under	874
section 5111.685 of the Revised Code;	875

(b) The portion of the amount specified in division (E)(1)(a)	876
of this section that represents the franchise permit fee the	877
exiting operator owes.	878

(2) It may not require the operator who executes the	879
successor liability agreement to furnish a surety bond.	880

(3) It must provide that the department, after determining	881
under section 5111.685 of the Revised Code the actual amount of	882
debt the exiting operator owes the department and United States	883
centers for medicare and medicaid services under the medicaid	884
program, may deduct the lesser of the following from medicaid	885
payments made to the operator who executes the successor liability	886
agreement:	887

(a) The total, actual amount of debt the exiting operator	888
owes the department and the United States centers for medicare and	889
medicaid services under the medicaid program as determined under	890
section 5111.685 of the Revised Code;	891

(b) The amount for which the operator who executes the	892
successor liability agreement assumes liability under the	893
agreement.	894

(4) It must provide that the deductions authorized by	895
division (E)(3) of this section are to be made for a number of	896
months, not to exceed six, agreed to by the operator who executes	897
the successor liability agreement and the department or, if the	898
operator who executes the successor liability agreement and	899
department cannot agree on a number of months that is less than	900
six, a greater number of months determined by the attorney general	901
pursuant to a claims collection process authorized by statute of	902
this state.	903

(5) It must provide that, if the attorney general determines	904
the number of months for which the deductions authorized by	905
division (E)(3) of this section are to be made, the operator who	906
executes the successor liability agreement shall pay, in addition	907
to the amount collected pursuant to the attorney general's claims	908
collection process, the part of the amount so collected that, if	909
not for division (G) of this section, would be required by section	910
109.081 of the Revised Code to be paid into the attorney general	911
claims fund.	912

(F) Execution of a successor liability agreement does not	913
waive an exiting operator's right to contest the amount specified	914
in the notice the department provides the exiting operator under	915
division (C) of section 5111.68 of the Revised Code.	916

(G) Notwithstanding section 109.081 of the Revised Code, the	917
entire amount that the attorney general, whether by employees or	918
agents of the attorney general or by special counsel appointed	919
pursuant to section 109.08 of the Revised Code, collects under a	920
successor liability agreement, other than the additional amount	921
the operator who executes the agreement is required by division	922
(E)(5) of this section to pay, shall be paid to the department of	923
job and family services for deposit into the appropriate fund. The	924
additional amount that the operator is required to pay shall be	925
paid into the state treasury to the credit of the attorney general	926
claims fund created under section 109.081 of the Revised Code.	927

Sec. 5111.685. The department of job and family services	928
shall determine the actual amount of debt an exiting operator owes	929
the department and the United States centers for medicare and	930
medicaid services under the medicaid program by completing all	931
final fiscal audits not already completed and performing all other	932
appropriate actions the department determines to be necessary. The	933
department shall issue aan initial debt summary report on this	934
matter not later than ninetysixty days after the date the exiting	935
operator files the properly completed cost report required by	936
section 5111.682 of the Revised Code with the department or, if	937
the department waives the cost report requirement for the exiting	938
operator, ninetysixty days after the date the department waives	939
the cost report requirement. The report shall include the	940
department's findings and the amount of debt the department	941
determines the exiting operator owes the department and United	942
States centers for medicare and medicaid services under the	943
medicaid program. Only the parts of the report that are subject to	944
an adjudication as specified in section 5111.30 of the Revised	945
Code are subject to an adjudication conductedThe initial debt	946
summary report becomes the final debt summary report thirty-one	947
days after the department issues the initial debt summary report	948
unless the exiting operator, or an affiliated operator who	949
executes a successor liability agreement under section 5111.681 of	950
the Revised Code, requests a review before that date.	951

The exiting operator, and an affiliated operator who executes	952
a successor liability agreement under section 5111.681 of the	953
Revised Code, may request a review to contest any of the	954
department's findings included in the initial debt summary report.	955
The request for the review must be submitted to the department not	956
later than thirty days after the date the department issues the	957
initial debt summary report. The department shall conduct the	958
review on receipt of a timely request and issue a revised debt	959
summary report. If the department has withheld money from payment	960
due the exiting operator under division (A) of section 5111.681 of	961
the Revised Code, the department shall issue the revised debt	962
summary report not later than ninety days after the date the	963
department receives the timely request for the review unless the	964
department and exiting operator or affiliated operator agree to a	965
later date. The exiting operator or affiliated operator may	966
submit information to the department explaining what the operator	967
contests before and during the review, including documentation of	968
the amount of any debt the department owes the operator. The	969
exiting operator or affiliated operator may submit additional	970
information to the department not later than thirty days after the	971
department issues the revised debt summary report. The revised	972
debt summary report becomes the final debt summary report	973
thirty-one days after the department issues the revised debt	974
summary report unless the exiting operator or affiliated operator	975
timely submits additional information to the department. If the	976
exiting operator or affiliated operator timely submits additional	977
information to the department, the department shall consider the	978
additional information and issue a final debt summary report not	979
later than sixty days after the department issues the revised debt	980
summary report unless the department and exiting operator or	981
affiliated operator agree to a later date.	982

Each debt summary report the department issues under this	983
section shall include the department's findings and the amount of	984
debt the department determines the exiting operator owes the	985
department and United States centers for medicare and medicaid	986
services under the medicaid program. The department shall explain	987
its findings and determination in each debt summary report.	988

The exiting operator, and an affiliated operator who executes	989
a successor liability agreement under section 5111.681 of the	990
Revised Code, may request, in accordance with Chapter 119. of the	991
Revised Code, an adjudication regarding a finding in a final debt	992
summary report that pertains to an audit or alleged overpayment	993
made under the medicaid program to the exiting operator. The	994
adjudication shall be consolidated with any other uncompleted	995
adjudication that concerns a matter addressed in the final debt	996
summary report.	997

Sec. 5111.686. The department of job and family services	998
shall release the actual amount withheld under division (A) of	999
section 5111.681 of the Revised Code, less any amount the exiting	1000
operator owes the department and United States centers for	1001
medicare and medicaid services under the medicaid program, as	1002
follows:	1003

(A) Ninety-one days after the date the exiting operator files	1004
a properly completed cost report required by section 5111.682 of	1005
the Revised Code unlessUnless the department issues the initial	1006
debt summary report required by section 5111.685 of the Revised	1007
Code not later than ninetysixty days after the date the exiting	1008
operator files the properly completed cost report required by	1009
section 5111.682 of the Revised Code, sixty-one days after the	1010
date the exiting operator files the properly completed cost	1011
report;	1012

(B) Not later than thirty days after the exiting operator	1013
agrees to a final fiscal audit resulting from the report required	1014
by section 5111.685 of the Revised Code ifIf the department	1015
issues the initial debt summary report required by section	1016
5111.685 of the Revised Code not later than ninetysixty days	1017
after the date the exiting operator files a properly completed	1018
cost report required by section 5111.682 of the Revised Code, not	1019
later than the following:	1020

(1) Thirty days after the deadline for requesting an	1021
adjudication under section 5111.685 of the Revised Code regarding	1022
the final debt summary report if the exiting operator, and an	1023
affiliated operator who executes a successor liability agreement	1024
under section 5111.681 of the Revised Code, fail to request the	1025
adjudication on or before the deadline;	1026

(2) Thirty days after the completion of an adjudication of	1027
the final debt summary report if the exiting operator, or an	1028
affiliated operator who executes a successor liability agreement	1029
under section 5111.681 of the Revised Code, requests the	1030
adjudication on or before the deadline for requesting the	1031
adjudication.	1032

(C) Ninety-one days after the date the department waives the	1033
cost report requirement of section 5111.682 of the Revised Code	1034
unlessUnless the department issues the initial debt summary	1035
report required by section 5111.685 of the Revised Code not later	1036
than ninetysixty days after the date the department waives the	1037
cost report requirement of section 5111.682 of the Revised Code,	1038
sixty-one days after the date the department waives the cost	1039
report requirement;	1040

(D) Not later than thirty days after the exiting operator	1041
agrees to a final fiscal audit resulting from the report required	1042
by section 5111.685 of the Revised Code ifIf the department	1043
issues the initial debt summary report required by section	1044
5111.685 of the Revised Code not later than ninetysixty days	1045
after the date the department waives the cost report requirement	1046
of section 5111.682 of the Revised Code, not later than the	1047
following:	1048

(1) Thirty days after the deadline for requesting an	1049
adjudication under section 5111.685 of the Revised Code regarding	1050
the final debt summary report if the exiting operator, and an	1051
affiliated operator who executes a successor liability agreement	1052
under section 5111.681 of the Revised Code, fail to request the	1053
adjudication on or before the deadline;	1054

(2) Thirty days after the completion of an adjudication of	1055
the final debt summary report if the exiting operator, or an	1056
affiliated operator who executes a successor liability agreement	1057
under section 5111.681 of the Revised Code, requests the	1058
adjudication on or before the deadline for requesting the	1059
adjudication.	1060

Sec. 5111.688. (A) All amounts withheld under section	1061
5111.681 of the Revised Code from payment due an exiting operator	1062
under the medicaid program shall be deposited into the medicaid	1063
payment withholding fund created by the controlling board pursuant	1064
to section 131.35 of the Revised Code. Money in the fund shall be	1065
used as follows:	1066

(1) To pay an exiting operator when a withholding is released	1067
to the exiting operator under section 5111.686 or 5111.687 of the	1068
Revised Code;	1069

(2) To pay the department of job and family services and	1070
United States centers for medicare and medicaid services the	1071
amount an exiting operator owes the department and United States	1072
centers under the medicaid program.	1073

(B) Amounts paid from the medicaid payment withholding fund	1074
pursuant to division (A)(2) of this section shall be deposited	1075
into the appropriate department fund.	1076

Sec. 5111.688.        Sec. 5111.689.  The director of job and family	1077
services shall adopt rules under section 5111.02 of the Revised	1078
Code to implement sections 5111.65 to 5111.6885111.689 of the	1079
Revised Code, including rules applicable to an exiting operator	1080
that provides written notification under section 5111.66 of the	1081
Revised Code of a voluntary withdrawal of participation. Rules	1082
adopted under this section shall comply with section 1919(c)(2)(F)	1083
of the "Social Security Act," 79 Stat. 286 (1965), 42 U.S.C.	1084
1396r(c)(2)(F), regarding restrictions on transfers or discharges	1085
of nursing facility residents in the case of a voluntary	1086
withdrawal of participation. The rules may prescribe a medicaid	1087
reimbursement methodology and other procedures that are applicable	1088
after the effective date of a voluntary withdrawal of	1089
participation that differ from the reimbursement methodology and	1090
other procedures that would otherwise apply.	1091

Sec. 5111.874.  (A) As used in sections 5111.874 to 5111.8710	1092
of the Revised Code:	1093

"Home and community-based services" has the same meaning as	1094
in section 5123.01 of the Revised Code.	1095

"ICF/MR services" means intermediate care facility for the	1096
mentally retarded services covered by the medicaid program that an	1097
intermediate care facility for the mentally retarded provides to a	1098
resident of the facility who is a medicaid recipient eligible for	1099
medicaid-covered intermediate care facility for the mentally	1100
retarded services.	1101

"Intermediate care facility for the mentally retarded" means	1102
an intermediate care facility for the mentally retarded that is	1103
certified as in compliance with applicable standards for the	1104
medicaid program by the director of health in accordance with	1105
Title XIX of the "Social Security Act," 79 Stat. 286 (1965), 42	1106
U.S.C. 1396, as amended, and licensed as a residential facility	1107
under section 5123.19 of the Revised Code.	1108

"Residential facility" has the same meaning as in section	1109
5123.19 of the Revised Code.	1110

(B) For the purpose of increasing the number of slots	1111
available for home and community-based services and subject to	1112
sections 5111.877 and 5111.878 of the Revised Code, the operator	1113
of an intermediate care facility for the mentally retarded may	1114
convert all of the beds in the facility from providing ICF/MR	1115
services to providing home and community-based services if all of	1116
the following requirements are met:	1117

(1) The operator provides the directors of health, job and	1118
family services, and developmental disabilities at least ninety	1119
days' notice of the operator's intent to relinquish the facility's	1120
certification as an intermediate care facility for the mentally	1121
retarded and to begin providing home and community-based services.	1122

(2) The operator complies with the requirements of sections	1123
5111.65 to 5111.6885111.689 of the Revised Code regarding a	1124
voluntary termination as defined in section 5111.65 of the Revised	1125
Code if those requirements are applicable.	1126

(3) The operator notifies each of the facility's residents	1127
that the facility is to cease providing ICF/MR services and inform	1128
each resident that the resident may do either of the following:	1129

(a) Continue to receive ICF/MR services by transferring to	1130
another facility that is an intermediate care facility for the	1131
mentally retarded willing and able to accept the resident if the	1132
resident continues to qualify for ICF/MR services;	1133

(b) Begin to receive home and community-based services	1134
instead of ICF/MR services from any provider of home and	1135
community-based services that is willing and able to provide the	1136
services to the resident if the resident is eligible for the	1137
services and a slot for the services is available to the resident.	1138

(4) The operator meets the requirements for providing home	1139
and community-based services, including the following:	1140

(a) Such requirements applicable to a residential facility if	1141
the operator maintains the facility's license as a residential	1142
facility;	1143

(b) Such requirements applicable to a facility that is not	1144
licensed as a residential facility if the operator surrenders the	1145
facility's residential facility license under section 5123.19 of	1146
the Revised Code.	1147

(5) The director of developmental disabilities approves the	1148
conversion.	1149

(C) The notice to the director of developmental disabilities	1150
under division (B)(1) of this section shall specify whether the	1151
operator wishes to surrender the facility's license as a	1152
residential facility under section 5123.19 of the Revised Code.	1153

(D) If the director of developmental disabilities approves a	1154
conversion under division (B) of this section, the director of	1155
health shall terminate the certification of the intermediate care	1156
facility for the mentally retarded to be converted. The director	1157
of health shall notify the director of job and family services of	1158
the termination. On receipt of the director of health's notice,	1159
the director of job and family services shall terminate the	1160
operator's medicaid provider agreement that authorizes the	1161
operator to provide ICF/MR services at the facility. The operator	1162
is not entitled to notice or a hearing under Chapter 119. of the	1163
Revised Code before the director of job and family services	1164
terminates the medicaid provider agreement.	1165

Sec. 5111.875. (A) For the purpose of increasing the number	1166
of slots available for home and community-based services and	1167
subject to sections 5111.877 and 5111.878 of the Revised Code, a	1168
person who acquires, through a request for proposals issued by the	1169
director of developmental disabilities, a residential facility	1170
that is an intermediate care facility for the mentally retarded	1171
and for which the license as a residential facility was previously	1172
surrendered or revoked may convert some or all of the facility's	1173
beds from providing ICF/MR services to providing home and	1174
community-based services if all of the following requirements are	1175
met:	1176

(1) The person provides the directors of health, job and	1177
family services, and developmental disabilities at least ninety	1178
days' notice of the person's intent to make the conversion.	1179

(2) The person complies with the requirements of sections	1180
5111.65 to 5111.6885111.689 of the Revised Code regarding a	1181
voluntary termination as defined in section 5111.65 of the Revised	1182
Code if those requirements are applicable.	1183

(3) If the person intends to convert all of the facility's	1184
beds, the person notifies each of the facility's residents that	1185
the facility is to cease providing ICF/MR services and informs	1186
each resident that the resident may do either of the following:	1187

(a) Continue to receive ICF/MR services by transferring to	1188
another facility that is an intermediate care facility for the	1189
mentally retarded willing and able to accept the resident if the	1190
resident continues to qualify for ICF/MR services;	1191

(b) Begin to receive home and community-based services	1192
instead of ICF/MR services from any provider of home and	1193
community-based services that is willing and able to provide the	1194
services to the resident if the resident is eligible for the	1195
services and a slot for the services is available to the resident.	1196

(4) If the person intends to convert some but not all of the	1197
facility's beds, the person notifies each of the facility's	1198
residents that the facility is to convert some of its beds from	1199
providing ICF/MR services to providing home and community-based	1200
services and inform each resident that the resident may do either	1201
of the following:	1202

(a) Continue to receive ICF/MR services from any provider of	1203
ICF/MR services that is willing and able to provide the services	1204
to the resident if the resident continues to qualify for ICF/MR	1205
services;	1206

(b) Begin to receive home and community-based services	1207
instead of ICF/MR services from any provider of home and	1208
community-based services that is willing and able to provide the	1209
services to the resident if the resident is eligible for the	1210
services and a slot for the services is available to the resident.	1211

(5) The person meets the requirements for providing home and	1212
community-based services at a residential facility.	1213

(B) The notice provided to the directors under division	1214
(A)(1) of this section shall specify whether some or all of the	1215
facility's beds are to be converted. If some but not all of the	1216
beds are to be converted, the notice shall specify how many of the	1217
facility's beds are to be converted and how many of the beds are	1218
to continue to provide ICF/MR services.	1219

(C) On receipt of a notice under division (A)(1) of this	1220
section, the director of health shall do the following:	1221

(1) Terminate the certification of the intermediate care	1222
facility for the mentally retarded if the notice specifies that	1223
all of the facility's beds are to be converted;	1224

(2) Reduce the facility's certified capacity by the number of	1225
beds being converted if the notice specifies that some but not all	1226
of the beds are to be converted.	1227

(D) The director of health shall notify the director of job	1228
and family services of the termination or reduction under division	1229
(C) of this section. On receipt of the director of health's	1230
notice, the director of job and family services shall do the	1231
following:	1232

(1) Terminate the person's medicaid provider agreement that	1233
authorizes the person to provide ICF/MR services at the facility	1234
if the facility's certification was terminated;	1235

(2) Amend the person's medicaid provider agreement to reflect	1236
the facility's reduced certified capacity if the facility's	1237
certified capacity is reduced.	1238

The person is not entitled to notice or a hearing under	1239
Chapter 119. of the Revised Code before the director of job and	1240
family services terminates or amends the medicaid provider	1241
agreement.	1242

Sec. 5111.894. The state administrative agency may establish	1243
one or more waiting lists for the assisted living program. Only	1244
individuals eligible for the medicaid program may be placed on a	1245
waiting list.(A) The state administrative agency shall establish	1246
a home first component of the assisted living program under which	1247
eligible individuals may be enrolled in the assisted living	1248
program in accordance with this section. An individual is eligible	1249
for the assisted living program's home first component if all of	1250
the following apply:	1251

(1) The individual is eligible for the assisted living	1252
program.	1253

(2) The individual is on the unified waiting list established	1254
under section 173.404 of the Revised Code.	1255

(3) At least one of the following applies:

1256

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

1257

(b) A physician has determined and documented in writing that	1258
the individual has a medical condition that, unless the individual	1259
is enrolled in home and community-based services such as the	1260
assisted living program, will require the individual to be	1261
admitted to a nursing facility within thirty days of the	1262
physician's determination.	1263

(c) The individual has been hospitalized and a physician has	1264
determined and documented in writing that, unless the individual	1265
is enrolled in home and community-based services such as the	1266
assisted living program, the individual is to be transported	1267
directly from the hospital to a nursing facility admitted.	1268

(d) Both of the following apply:

1269

(i) The individual is the subject of a report made under	1270
section 5101.61 of the Revised Code regarding abuse, neglect, or	1271
exploitation or such a report referred to a county department of	1272
job and family services under section 5126.31 of the Revised Code	1273
or has made a request to a county department for protective	1274
services as defined in section 5101.60 of the Revised Code.	1275

(ii) A county department of job and family services and an	1276
area agency on aging have jointly documented in writing that,	1277
unless the individual is enrolled in home and community-based	1278
services such as the assisted living program, the individual	1279
should be admitted to a nursing facility.	1280

(e) The individual resided in a residential care facility for	1281
at least six months immediately before applying for the assisted	1282
living program and is at risk of imminent admission to a nursing	1283
facility because the costs of residing in the residential care	1284
facility have depleted the individual's resources such that the	1285
individual is unable to continue to afford the cost of residing in	1286
the residential care facility.	1287

(B) Each month, each area agency on aging shall determine	1288
whether any individual who residesidentify individuals residing	1289
in the area that the area agency on aging serves and is on a	1290
waiting listwho are eligible for the home first component of the	1291
assisted living program has been admitted to a nursing facility.	1292
IfWhen an area agency on aging determines thatidentifies such	1293
an individual has been admitted to a nursing facility and	1294
determines that there is a vacancy in a residential care facility	1295
participating in the assisted living program that is acceptable to	1296
the individual, the agency shall notify the long-term care	1297
consultation program administrator serving the area in which the	1298
individual resides about the determination. The administrator	1299
shall determine whether the assisted living program is appropriate	1300
for the individual and whether the individual would rather	1301
participate in the assisted living program than continue residing	1302
or begin to reside in thea nursing facility. If the administrator	1303
determines that the assisted living program is appropriate for the	1304
individual and the individual would rather participate in the	1305
assisted living program than continue residingor begin to reside	1306
in thea nursing facility, the administrator shall so notify the	1307
state administrative agency.	1308

Onagency. On receipt of the notice from the administrator,	1309
the state administrative agency shall approve the individual's	1310
enrollment in the assisted living program regardless of anythe	1311
unified waiting list for the assisted living programestablished	1312
under section 173.404 of the Revised Code, unless the enrollment	1313
would cause the assisted living program to exceed any limit on the	1314
number of individuals who may participate in the program as set by	1315
the United States secretary of health and human services when the	1316
medicaid waiver authorizing the program is approved. Each	1317

(C) Each quarter, the state administrative agency shall	1318
certify to the director of budget and management the estimated	1319
increase in costs of the assisted living program resulting from	1320
enrollment of individuals in the assisted living program pursuant	1321
to this section.	1322

Section 2. That existing sections 173.401, 173.501, 3702.51,	1323
3702.59, 5111.65, 5111.651, 5111.68, 5111.681, 5111.685, 5111.686,	1324
5111.688, 5111.874, 5111.875, and 5111.894 of the Revised Code are	1325
hereby repealed.	1326

Section 3. That Section 209.20 of Am. Sub. H.B. 1 of the	1327
128th General Assembly be amended to read as follows:	1328

Sec. 209.20. LONG-TERM CARE

1329

Pursuant to an interagency agreement, the Department of Job	1330
and Family Services shall designate the Department of Aging to	1331
perform assessments under section 5111.204 of the Revised Code.	1332
The Department of Aging shall provide long-term care consultations	1333
under section 173.42 of the Revised Code to assist individuals in	1334
planning for their long-term health care needs. The foregoing	1335
appropriation items 490423, Long Term Care Budget – State, and	1336
490623, Long Term Care Budget, may be used to provide the	1337
preadmission screening and resident review (PASRR), which includes	1338
screening, assessments, and determinations made under sections	1339
5111.02, 5111.204, 5119.061, and 5123.021 of the Revised Code.	1340

The foregoing appropriation items 490423, Long Term Care	1341
Budget - State, and 490623, Long Term Care Budget, may be used to	1342
assess and provide long-term care consultations to clients	1343
regardless of Medicaid eligibility.	1344

The Director of Aging shall adopt rules under section 111.15	1345
of the Revised Code governing the nonwaiver funded PASSPORT	1346
program, including client eligibility. The foregoing appropriation	1347
item 490423, Long Term Care Budget - State, may be used by the	1348
Department of Aging to provide nonwaiver funded PASSPORT services	1349
to persons the Department has determined to be eligible to	1350
participate in the nonwaiver funded PASSPORT Program, including	1351
those persons not yet determined to be financially eligible to	1352
participate in the Medicaid waiver component of the PASSPORT	1353
Program by a county department of job and family services.	1354

The Department of Aging shall administer the Medicaid	1355
waiver-funded PASSPORT Home Care Program, the Choices Program, the	1356
Assisted Living Program, and the PACE Program as delegated by the	1357
Department of Job and Family Services in an interagency agreement.	1358
The foregoing appropriation item 490423, Long Term Care Budget -	1359
State, shall be used to provide the required state match for	1360
federal Medicaid funds supporting the Medicaid Waiver-funded	1361
PASSPORT Home Care Program, the Choices Program, the Assisted	1362
Living Program, and the PACE Program. The foregoing appropriation	1363
items 490423, Long Term Care Budget - State, and 490623, Long Term	1364
Care Budget, may also be used to support the Department of Aging's	1365
administrative costs associated with operating the PASSPORT,	1366
Choices, Assisted Living, and PACE programs.	1367

The foregoing appropriation item 490623, Long Term Care	1368
Budget, shall be used to provide the federal matching share for	1369
all program costs determined by the Department of Job and Family	1370
Services to be eligible for Medicaid reimbursement.	1371

HOME FIRST PROGRAM

1372

(A) As used in this section, "Long Term Care Budget Services"	1373
includes the following existing programs: PASSPORT, Assisted	1374
Living, Residential State Supplement, and PACE.	1375

(B) On a quarterly basis, on receipt of the certified	1376
expenditures related to sections 173.401, 173.351, 173.501, and	1377
5111.894 of the Revised Code, the Director of Budget and	1378
Management, in consultation with the Directors of Aging and Job	1379
and Family Services, may do all of the following for fiscal years	1380
2010 and 2011:	1381

(1) Transfer cash from the Nursing Facility Stabilization	1382
Fund (Fund 5R20), used by the Department of Job and Family	1383
Services, to the PASSPORT/Residential State Supplement Fund (Fund	1384
4J40), used by the Department of Aging. The	1385

The transferred cash is hereby appropriated to appropriation	1386
item 490610, PASSPORT/Residential State Supplement.	1387

(2) If receipts credited toAuthorize expenditures from the	1388
PASSPORT Fund (Fund 3C40) for amounts that exceed the amounts	1389
appropriated from receipts credited to the fund, the Director of	1390
Aging may request the Director of Budget and Management to	1391
authorize expenditures from the fund in excess of the amounts	1392
appropriated. Upon the approval of the Director of Budget and	1393
Management, theAny additional authorized amounts are hereby	1394
appropriated.	1395

(3) If receipts credited toAuthorize expenditures from the	1396
Interagency Reimbursement Fund (Fund 3G50) for amounts that exceed	1397
the amounts appropriated from receipts credited to the fund, the	1398
Director of Job and Family Services may request the Director of	1399
Budget and Management to authorize expenditures from the fund in	1400
excess of the amounts appropriated. Upon the approval of the	1401
Director of Budget and Management, theAny additional authorized	1402
amounts are hereby appropriated.	1403

(C) Not later than thirty days after the Director of Budget	1404
and Management receives certification of expenditures specified in	1405
division (B) of this section, the Executive Director of Executive	1406
Medicaid Management Administration shall submit a report to the	1407
General Assembly in accordance with section 101.68 of the Revised	1408
Code and to the chairs and ranking minority members of the	1409
committees of the House of Representatives and Senate to which the	1410
biennial budget bill is referred. The report shall describe and	1411
document the criteria and data the Department of Aging, Department	1412
of Job and Family Services, and Office of Budget and Management	1413
use to justify a transfer of funds under division (B) of this	1414
section, including spending and utilization trends for PASSPORT,	1415
PACE, assisted living, and nursing facility services. In addition	1416
to providing the information for the transfer of funds, the report	1417
shall include the following:	1418

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

(2) In the case of reports for transfers that occur during	1424
fiscal year 2011, the descriptions and documents of the criteria	1425
and data used to justify other such transfers that previously	1426
occurred during that fiscal year and fiscal year 2010.	1427

The Directors of Aging, Job and Family Services, and Budget	1428
and Management shall provide the Executive Director of the	1429
Executive Medicaid Management Administration with all information	1430
the Executive Director needs to prepare the reports required by	1431
this division.	1432

(D) The individuals placed in Long Term Care Budget Services	1433
pursuant to this section shall be in addition to the individuals	1434
placed in Long Term Care Budget Services during fiscal years 2010	1435
and 2011 before any transfers to appropriation item 490423, Long	1436
Term Care Budget-State, are made under this section.	1437

ALLOCATION OF PACE SLOTS

1438

In order to effectively administer and manage growth within	1439
the PACE Program, the Director of Aging may, as the director deems	1440
appropriate and to the extent funding is available, expand the	1441
PACE Program to regions of Ohio beyond those currently served by	1442
the PACE Program. In implementing the expansion, the Director may	1443
not decrease the number of residents of Cuyahoga and Hamilton	1444
counties and parts of Butler, Clermont, and Warren counties who	1445
are participating in the PACE Program below the number of	1446
residents of those counties and parts of counties who were	1447
enrolled in the PACE Program on July 1, 2008.	1448

Section 4. That existing Section 209.20 of Am. Sub. H.B. 1 of	1449
the 128th General Assembly is hereby repealed.	1450

Section 5. During fiscal years 2012 and 2013, on receipt of	1451
certified expenditures related to sections 173.401, 173.351,	1452
173.501, and 5111.894 of the Revised Code, the Director of Budget	1453
and Management shall transfer cash from the Nursing Facility	1454
Stabilization Fund (Fund 5R20), used by the Department of Job and	1455
Family Services, to the PASSPORT/Residential State Supplement Fund	1456
(Fund 4J40), used by the Department of Aging.	1457

If receipts credited to the PASSPORT Fund (Fund 3C40) exceed	1458
the amounts appropriated from the fund in fiscal years 2012 and	1459
2013, the Director of Aging shall request the Director of Budget	1460
and Management to authorize expenditures from the fund in excess	1461
of the amounts appropriated.	1462

If receipts credited to the Interagency Reimbursement Fund	1463
(Fund 3G50) exceed the amounts appropriated from the fund in	1464
fiscal years 2012 and 2013, the Director of Job and Family	1465
Services shall request the Director of Budget and Management to	1466
authorize expenditures from the fund in excess of the amounts	1467
appropriated.	1468

Section 6. Until December 31, 2010, the Director of Health	1469
shall accept, for review under section 3702.52 of the Revised	1470
Code, certificate of need applications for an increase in beds in	1471
an existing nursing home if all of the following conditions are	1472
met:	1473

(A) The proposed increase is attributable solely to a	1474
relocation of beds registered under section 3701.07 of the Revised	1475
Code as long-term care beds from an existing hospital located in a	1476
county with a population of at least forty thousand persons and	1477
not more than forty-five thousand persons to an existing nursing	1478
home located in a county that has a population of at least one	1479
million persons and not more than one million one hundred thousand	1480
persons and is contiguous to the county from which the beds are to	1481
be relocated.	1482

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

1483

(C) After the proposed relocation, there will be existing	1484
long-term care beds, as defined in section 3702.51 of the Revised	1485
Code, remaining in the county from which the beds are relocated.	1486

(D) The beds are proposed to be licensed as nursing home beds	1487
under Chapter 3721. of the Revised Code.	1488