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To amend section 5165.01 of the Revised Code to | 1 |
remove behavioral and mental health services from | 2 |
nursing facilities' bundled services for purposes | 3 |
of Medicaid payments. | 4 |
Section 1. That section 5165.01 of the Revised Code be | 5 |
amended to read as follows: | 6 |
Sec. 5165.01. As used in this chapter: | 7 |
(A) "Affiliated operator" means an operator affiliated with | 8 |
either of the following: | 9 |
(1) The exiting operator for whom the affiliated operator is | 10 |
to assume liability for the entire amount of the exiting | 11 |
operator's debt under the medicaid program or the portion of the | 12 |
debt that represents the franchise permit fee the exiting operator | 13 |
owes; | 14 |
(2) The entering operator involved in the change of operator | 15 |
with the exiting operator specified in division (A)(1) of this | 16 |
section. | 17 |
(B) "Allowable costs" are a nursing facility's costs that the | 18 |
department of medicaid determines are reasonable. Fines paid under | 19 |
sections 5165.60 to 5165.89 and section 5165.99 of the Revised | 20 |
Code are not allowable costs. | 21 |
(C) "Ancillary and support costs" means all reasonable costs | 22 |
incurred by a nursing facility other than direct care costs, tax | 23 |
costs, or capital costs. "Ancillary and support costs" includes, | 24 |
but is not limited to, costs of activities, social services, | 25 |
pharmacy consultants, habilitation supervisors, qualified mental | 26 |
retardation professionals, program directors, medical and | 27 |
habilitation records, program supplies, incontinence supplies, | 28 |
food, enterals, dietary supplies and personnel, laundry, | 29 |
housekeeping, security, administration, medical equipment, | 30 |
utilities, liability insurance, bookkeeping, purchasing | 31 |
department, human resources, communications, travel, dues, license | 32 |
fees, subscriptions, home office costs not otherwise allocated, | 33 |
legal services, accounting services, minor equipment, maintenance | 34 |
and repairs, help-wanted advertising, informational advertising, | 35 |
start-up costs, organizational expenses, other interest, property | 36 |
insurance, employee training and staff development, employee | 37 |
benefits, payroll taxes, and workers' compensation premiums or | 38 |
costs for self-insurance claims and related costs as specified in | 39 |
rules adopted under section 5165.02 of the Revised Code, for | 40 |
personnel listed in this division. "Ancillary and support costs" | 41 |
also means the cost of equipment, including vehicles, acquired by | 42 |
operating lease executed before December 1, 1992, if the costs are | 43 |
reported as administrative and general costs on the nursing | 44 |
facility's cost report for the cost reporting period ending | 45 |
December 31, 1992. | 46 |
(D)(1) "Capital costs" means the actual expense incurred by a | 47 |
nursing facility for all of the following: | 48 |
(a) Depreciation and interest on any capital assets that cost | 49 |
five hundred dollars or more per item, including the following: | 50 |
(i) Buildings; | 51 |
(ii) Building improvements; | 52 |
(iii) Except as provided in division (C) of this section, | 53 |
equipment; | 54 |
(iv) Transportation equipment. | 55 |
(b) Amortization and interest on land improvements and | 56 |
leasehold improvements; | 57 |
(c) Amortization of financing costs; | 58 |
(d) Lease and rent of land, buildings, and equipment. | 59 |
(2) The costs of capital assets of less than five hundred | 60 |
dollars per item may be considered capital costs in accordance | 61 |
with a provider's practice. | 62 |
(E) "Capital lease" and "operating lease" shall be construed | 63 |
in accordance with generally accepted accounting principles. | 64 |
(F) "Case-mix score" means a measure determined under section | 65 |
5165.192 of the Revised Code of the relative direct-care resources | 66 |
needed to provide care and habilitation to a nursing facility | 67 |
resident. | 68 |
(G) "Change of operator" means an entering operator becoming | 69 |
the operator of a nursing facility in the place of the exiting | 70 |
operator. | 71 |
(1) Actions that constitute a change of operator include the | 72 |
following: | 73 |
(a) A change in an exiting operator's form of legal | 74 |
organization, including the formation of a partnership or | 75 |
corporation from a sole proprietorship; | 76 |
(b) A transfer of all the exiting operator's ownership | 77 |
interest in the operation of the nursing facility to the entering | 78 |
operator, regardless of whether ownership of any or all of the | 79 |
real property or personal property associated with the nursing | 80 |
facility is also transferred; | 81 |
(c) A lease of the nursing facility to the entering operator | 82 |
or the exiting operator's termination of the exiting operator's | 83 |
lease; | 84 |
(d) If the exiting operator is a partnership, dissolution of | 85 |
the partnership; | 86 |
(e) If the exiting operator is a partnership, a change in | 87 |
composition of the partnership unless both of the following apply: | 88 |
(i) The change in composition does not cause the | 89 |
partnership's dissolution under state law. | 90 |
(ii) The partners agree that the change in composition does | 91 |
not constitute a change in operator. | 92 |
(f) If the operator is a corporation, dissolution of the | 93 |
corporation, a merger of the corporation into another corporation | 94 |
that is the survivor of the merger, or a consolidation of one or | 95 |
more other corporations to form a new corporation. | 96 |
(2) The following, alone, do not constitute a change of | 97 |
operator: | 98 |
(a) A contract for an entity to manage a nursing facility as | 99 |
the operator's agent, subject to the operator's approval of daily | 100 |
operating and management decisions; | 101 |
(b) A change of ownership, lease, or termination of a lease | 102 |
of real property or personal property associated with a nursing | 103 |
facility if an entering operator does not become the operator in | 104 |
place of an exiting operator; | 105 |
(c) If the operator is a corporation, a change of one or more | 106 |
members of the corporation's governing body or transfer of | 107 |
ownership of one or more shares of the corporation's stock, if the | 108 |
same corporation continues to be the operator. | 109 |
(H) "Cost center" means the following: | 110 |
(1) Ancillary and support costs; | 111 |
(2) Capital costs; | 112 |
(3) Direct care costs; | 113 |
(4) Tax costs. | 114 |
(I) "Custom wheelchair" means a wheelchair to which both of | 115 |
the following apply: | 116 |
(1) It has been measured, fitted, or adapted in consideration | 117 |
of either of the following: | 118 |
(a) The body size or disability of the individual who is to | 119 |
use the wheelchair; | 120 |
(b) The individual's period of need for, or intended use of, | 121 |
the wheelchair. | 122 |
(2) It has customized features, modifications, or components, | 123 |
such as adaptive seating and positioning systems, that the | 124 |
supplier who assembled the wheelchair, or the manufacturer from | 125 |
which the wheelchair was ordered, added or made in accordance with | 126 |
the instructions of the physician of the individual who is to use | 127 |
the wheelchair. | 128 |
(J)(1) "Date of licensure" means the following: | 129 |
(a) In the case of a nursing facility that was required by | 130 |
law to be licensed as a nursing home under Chapter 3721. of the | 131 |
Revised Code when it originally began to be operated as a nursing | 132 |
home, the date the nursing facility was originally so licensed; | 133 |
(b) In the case of a nursing facility that was not required | 134 |
by law to be licensed as a nursing home when it originally began | 135 |
to be operated as a nursing home, the date it first began to be | 136 |
operated as a nursing home, regardless of the date the nursing | 137 |
facility was first licensed as a nursing home. | 138 |
(2) If, after a nursing facility's original date of | 139 |
licensure, more nursing home beds are added to the nursing | 140 |
facility, the nursing facility has a different date of licensure | 141 |
for the additional beds. This does not apply, however, to | 142 |
additional beds when both of the following apply: | 143 |
(a) The additional beds are located in a part of the nursing | 144 |
facility that was constructed at the same time as the continuing | 145 |
beds already located in that part of the nursing facility; | 146 |
(b) The part of the nursing facility in which the additional | 147 |
beds are located was constructed as part of the nursing facility | 148 |
at a time when the nursing facility was not required by law to be | 149 |
licensed as a nursing home. | 150 |
(3) The definition of "date of licensure" in this section | 151 |
applies in determinations of nursing facilities' medicaid payment | 152 |
rates but does not apply in determinations of nursing facilities' | 153 |
franchise permit fees. | 154 |
(K) "Desk-reviewed" means that a nursing facility's costs as | 155 |
reported on a cost report submitted under section 5165.10 of the | 156 |
Revised Code have been subjected to a desk review under section | 157 |
5165.108 of the Revised Code and preliminarily determined to be | 158 |
allowable costs. | 159 |
(L) "Direct care costs" means all of the following costs | 160 |
incurred by a nursing facility: | 161 |
(1) Costs for registered nurses, licensed practical nurses, | 162 |
and nurse aides employed by the nursing facility; | 163 |
(2) Costs for direct care staff, administrative nursing | 164 |
staff, medical directors, respiratory therapists, and except as | 165 |
provided in division (L)(8) of this section, other persons holding | 166 |
degrees qualifying them to provide therapy; | 167 |
(3) Costs of purchased nursing services; | 168 |
(4) Costs of quality assurance; | 169 |
(5) Costs of training and staff development, employee | 170 |
benefits, payroll taxes, and workers' compensation premiums or | 171 |
costs for self-insurance claims and related costs as specified in | 172 |
rules adopted under section 5165.02 of the Revised Code, for | 173 |
personnel listed in divisions (L)(1), (2), (4), and (8) of this | 174 |
section; | 175 |
(6) Costs of consulting and management fees related to direct | 176 |
care; | 177 |
(7) Allocated direct care home office costs; | 178 |
(8) Costs of habilitation staff (other than habilitation | 179 |
supervisors), medical supplies, | 180 |
pharmacy products, | 181 |
therapists, physical therapy assistants, occupational therapists, | 182 |
occupational therapy assistants, speech therapists, audiologists, | 183 |
habilitation supplies, and universal precautions supplies; | 184 |
(9) Until January 1, 2014, costs of oxygen, wheelchairs, and | 185 |
resident transportation; | 186 |
(10) Beginning January 1, 2014, costs of both of the | 187 |
following: | 188 |
(a) Emergency oxygen; | 189 |
(b) Wheelchairs other than the following: | 190 |
(i) Custom wheelchairs; | 191 |
(ii) Repairs to and replacements of custom wheelchairs and | 192 |
parts that are made in accordance with the instructions of the | 193 |
physician of the individual who uses the custom wheelchair. | 194 |
(11) Until July 1, 2014, costs of behavioral and mental | 195 |
health services; | 196 |
(12) Costs of other direct-care resources that are specified | 197 |
as direct care costs in rules adopted under section 5165.02 of the | 198 |
Revised Code. | 199 |
(M) "Dual eligible individual" has the same meaning as in | 200 |
section 5160.01 of the Revised Code. | 201 |
(N) "Effective date of a change of operator" means the day | 202 |
the entering operator becomes the operator of the nursing | 203 |
facility. | 204 |
(O) "Effective date of a facility closure" means the last day | 205 |
that the last of the residents of the nursing facility resides in | 206 |
the nursing facility. | 207 |
(P) "Effective date of an involuntary termination" means the | 208 |
date the department of medicaid terminates the operator's provider | 209 |
agreement for the nursing facility. | 210 |
(Q) "Effective date of a voluntary withdrawal of | 211 |
participation" means the day the nursing facility ceases to accept | 212 |
new medicaid residents other than the individuals who reside in | 213 |
the nursing facility on the day before the effective date of the | 214 |
voluntary withdrawal of participation. | 215 |
(R) "Entering operator" means the person or government entity | 216 |
that will become the operator of a nursing facility when a change | 217 |
of operator occurs or following an involuntary termination. | 218 |
(S) "Exiting operator" means any of the following: | 219 |
(1) An operator that will cease to be the operator of a | 220 |
nursing facility on the effective date of a change of operator; | 221 |
(2) An operator that will cease to be the operator of a | 222 |
nursing facility on the effective date of a facility closure; | 223 |
(3) An operator of a nursing facility that is undergoing or | 224 |
has undergone a voluntary withdrawal of participation; | 225 |
(4) An operator of a nursing facility that is undergoing or | 226 |
has undergone an involuntary termination. | 227 |
(T)(1) Subject to divisions (T)(2) and (3) of this section, | 228 |
"facility closure" means either of the following: | 229 |
(a) Discontinuance of the use of the building, or part of the | 230 |
building, that houses the facility as a nursing facility that | 231 |
results in the relocation of all of the nursing facility's | 232 |
residents; | 233 |
(b) Conversion of the building, or part of the building, that | 234 |
houses a nursing facility to a different use with any necessary | 235 |
license or other approval needed for that use being obtained and | 236 |
one or more of the nursing facility's residents remaining in the | 237 |
building, or part of the building, to receive services under the | 238 |
new use. | 239 |
(2) A facility closure occurs regardless of any of the | 240 |
following: | 241 |
(a) The operator completely or partially replacing the | 242 |
nursing facility by constructing a new nursing facility or | 243 |
transferring the nursing facility's license to another nursing | 244 |
facility; | 245 |
(b) The nursing facility's residents relocating to another of | 246 |
the operator's nursing facilities; | 247 |
(c) Any action the department of health takes regarding the | 248 |
nursing facility's medicaid certification that may result in the | 249 |
transfer of part of the nursing facility's survey findings to | 250 |
another of the operator's nursing facilities; | 251 |
(d) Any action the department of health takes regarding the | 252 |
nursing facility's license under Chapter 3721. of the Revised | 253 |
Code. | 254 |
(3) A facility closure does not occur if all of the nursing | 255 |
facility's residents are relocated due to an emergency evacuation | 256 |
and one or more of the residents return to a medicaid-certified | 257 |
bed in the nursing facility not later than thirty days after the | 258 |
evacuation occurs. | 259 |
(U) "Fiscal year" means the fiscal year of this state, as | 260 |
specified in section 9.34 of the Revised Code. | 261 |
(V) "Franchise permit fee" means the fee imposed by sections | 262 |
5168.40 to 5168.56 of the Revised Code. | 263 |
(W) "Inpatient days" means both of the following: | 264 |
(1) All days during which a resident, regardless of payment | 265 |
source, occupies a bed in a nursing facility that is included in | 266 |
the nursing facility's medicaid-certified capacity; | 267 |
(2) Fifty per cent of the days for which payment is made | 268 |
under section 5165.34 of the Revised Code. | 269 |
(X) "Involuntary termination" means the department of | 270 |
medicaid's termination of the operator's provider agreement for | 271 |
the nursing facility when the termination is not taken at the | 272 |
operator's request. | 273 |
(Y) "Low resource utilization resident" means a medicaid | 274 |
recipient residing in a nursing facility who, for purposes of | 275 |
calculating the nursing facility's medicaid payment rate for | 276 |
direct care costs, is placed in either of the two lowest resource | 277 |
utilization groups, excluding any resource utilization group that | 278 |
is a default group used for residents with incomplete assessment | 279 |
data. | 280 |
(Z) "Maintenance and repair expenses" means a nursing | 281 |
facility's expenditures that are necessary and proper to maintain | 282 |
an asset in a normally efficient working condition and that do not | 283 |
extend the useful life of the asset two years or more. | 284 |
"Maintenance and repair expenses" includes but is not limited to | 285 |
the costs of ordinary repairs such as painting and wallpapering. | 286 |
(AA) "Medicaid-certified capacity" means the number of a | 287 |
nursing facility's beds that are certified for participation in | 288 |
medicaid as nursing facility beds. | 289 |
(BB) "Medicaid days" means both of the following: | 290 |
(1) All days during which a resident who is a medicaid | 291 |
recipient eligible for nursing facility services occupies a bed in | 292 |
a nursing facility that is included in the nursing facility's | 293 |
medicaid-certified capacity; | 294 |
(2) Fifty per cent of the days for which payment is made | 295 |
under section 5165.34 of the Revised Code. | 296 |
(CC)(1) "New nursing facility" means a nursing facility for | 297 |
which the provider obtains an initial provider agreement following | 298 |
medicaid certification of the nursing facility by the director of | 299 |
health, including such a nursing facility that replaces one or | 300 |
more nursing facilities for which a provider previously held a | 301 |
provider agreement. | 302 |
(2) "New nursing facility" does not mean a nursing facility | 303 |
for which the entering operator seeks a provider agreement | 304 |
pursuant to section 5165.511 or 5165.512 or (pursuant to section | 305 |
5165.515) section 5165.07 of the Revised Code. | 306 |
(DD) "Nursing facility" has the same meaning as in the | 307 |
"Social Security Act," section 1919(a), 42 U.S.C. 1396r(a). | 308 |
(EE) "Nursing facility services" has the same meaning as in | 309 |
the "Social Security Act," section 1905(f), 42 U.S.C. 1396d(f). | 310 |
(FF) "Nursing home" has the same meaning as in section | 311 |
3721.01 of the Revised Code. | 312 |
(GG) "Operator" means the person or government entity | 313 |
responsible for the daily operating and management decisions for a | 314 |
nursing facility. | 315 |
(HH)(1) "Owner" means any person or government entity that | 316 |
has at least five per cent ownership or interest, either directly, | 317 |
indirectly, or in any combination, in any of the following | 318 |
regarding a nursing facility: | 319 |
(a) The land on which the nursing facility is located; | 320 |
(b) The structure in which the nursing facility is located; | 321 |
(c) Any mortgage, contract for deed, or other obligation | 322 |
secured in whole or in part by the land or structure on or in | 323 |
which the nursing facility is located; | 324 |
(d) Any lease or sublease of the land or structure on or in | 325 |
which the nursing facility is located. | 326 |
(2) "Owner" does not mean a holder of a debenture or bond | 327 |
related to the nursing facility and purchased at public issue or a | 328 |
regulated lender that has made a loan related to the nursing | 329 |
facility unless the holder or lender operates the nursing facility | 330 |
directly or through a subsidiary. | 331 |
(II) "Per diem" means a nursing facility's actual, allowable | 332 |
costs in a given cost center in a cost reporting period, divided | 333 |
by the nursing facility's inpatient days for that cost reporting | 334 |
period. | 335 |
(JJ) "Provider" means an operator with a provider agreement. | 336 |
(KK) "Provider agreement" means a provider agreement, as | 337 |
defined in section 5164.01 of the Revised Code, that is between | 338 |
the department of medicaid and the operator of a nursing facility | 339 |
for the provision of nursing facility services under the medicaid | 340 |
program. | 341 |
(LL) "Purchased nursing services" means services that are | 342 |
provided in a nursing facility by registered nurses, licensed | 343 |
practical nurses, or nurse aides who are not employees of the | 344 |
nursing facility. | 345 |
(MM) "Reasonable" means that a cost is an actual cost that is | 346 |
appropriate and helpful to develop and maintain the operation of | 347 |
patient care facilities and activities, including normal standby | 348 |
costs, and that does not exceed what a prudent buyer pays for a | 349 |
given item or services. Reasonable costs may vary from provider to | 350 |
provider and from time to time for the same provider. | 351 |
(NN) "Related party" means an individual or organization | 352 |
that, to a significant extent, has common ownership with, is | 353 |
associated or affiliated with, has control of, or is controlled | 354 |
by, the provider. | 355 |
(1) An individual who is a relative of an owner is a related | 356 |
party. | 357 |
(2) Common ownership exists when an individual or individuals | 358 |
possess significant ownership or equity in both the provider and | 359 |
the other organization. Significant ownership or equity exists | 360 |
when an individual or individuals possess five per cent ownership | 361 |
or equity in both the provider and a supplier. Significant | 362 |
ownership or equity is presumed to exist when an individual or | 363 |
individuals possess ten per cent ownership or equity in both the | 364 |
provider and another organization from which the provider | 365 |
purchases or leases real property. | 366 |
(3) Control exists when an individual or organization has the | 367 |
power, directly or indirectly, to significantly influence or | 368 |
direct the actions or policies of an organization. | 369 |
(4) An individual or organization that supplies goods or | 370 |
services to a provider shall not be considered a related party if | 371 |
all of the following conditions are met: | 372 |
(a) The supplier is a separate bona fide organization. | 373 |
(b) A substantial part of the supplier's business activity of | 374 |
the type carried on with the provider is transacted with others | 375 |
than the provider and there is an open, competitive market for the | 376 |
types of goods or services the supplier furnishes. | 377 |
(c) The types of goods or services are commonly obtained by | 378 |
other nursing facilities from outside organizations and are not a | 379 |
basic element of patient care ordinarily furnished directly to | 380 |
patients by nursing facilities. | 381 |
(d) The charge to the provider is in line with the charge for | 382 |
the goods or services in the open market and no more than the | 383 |
charge made under comparable circumstances to others by the | 384 |
supplier. | 385 |
(OO) "Relative of owner" means an individual who is related | 386 |
to an owner of a nursing facility by one of the following | 387 |
relationships: | 388 |
(1) Spouse; | 389 |
(2) Natural parent, child, or sibling; | 390 |
(3) Adopted parent, child, or sibling; | 391 |
(4) Stepparent, stepchild, stepbrother, or stepsister; | 392 |
(5) Father-in-law, mother-in-law, son-in-law, | 393 |
daughter-in-law, brother-in-law, or sister-in-law; | 394 |
(6) Grandparent or grandchild; | 395 |
(7) Foster caregiver, foster child, foster brother, or foster | 396 |
sister. | 397 |
(PP) "Residents' rights advocate" has the same meaning as in | 398 |
section 3721.10 of the Revised Code. | 399 |
(QQ) "Skilled nursing facility" has the same meaning as in | 400 |
the "Social Security Act," section 1819(a), 42 U.S.C. 1395i-3(a). | 401 |
(RR) "Sponsor" has the same meaning as in section 3721.10 of | 402 |
the Revised Code. | 403 |
(SS) "Tax costs" means the costs of taxes imposed under | 404 |
Chapter 5751. of the Revised Code, real estate taxes, personal | 405 |
property taxes, and corporate franchise taxes. | 406 |
(TT) "Title XIX" means Title XIX of the "Social Security | 407 |
Act," 42 U.S.C. 1396 et seq. | 408 |
(UU) "Title XVIII" means Title XVIII of the "Social Security | 409 |
Act," 42 U.S.C. 1395 et seq. | 410 |
(VV) "Voluntary withdrawal of participation" means an | 411 |
operator's voluntary election to terminate the participation of a | 412 |
nursing facility in the medicaid program but to continue to | 413 |
provide service of the type provided by a nursing facility. | 414 |
Section 2. That existing section 5165.01 of the Revised Code | 415 |
is hereby repealed. | 416 |