55 Pa. Code § 1187.113b - Capital cost reimbursement waivers-statement of policy
(a)
Scope. This section
applies to any participating provider of nursing facility services that intends
to seek capital component payments under this chapter for existing
postmoratorium beds in a nursing facility. This section also applies to
participating providers who were granted moratorium waivers under Chapter 1181
(relating to nursing facility care).
(b)
Purpose. The purpose of
this section is to announce the criteria that the Department will apply to
evaluate and approve applications for capital cost reimbursement waivers of
§
1187.113(a)
(relating to capital component payment limitation) and to reaffirm that nursing
facilities that were granted waivers under Chapter 1181 continue to receive
capital component payments under this chapter. Waivers of §
1187.113(a) will
not otherwise be granted except as provided in this section.
(c)
Submission and content of
applications.
(1) An applicant
seeking a waiver of §
1187.113(a) shall
submit a written application and two copies to the Department at the following
address:
Bureau of Long Term Care
P. O. Box 2675
Harrisburg, PA 17105-2675
ATTN: MORATORIUM WAIVER REVIEW
(2) The written application shall address the
criteria in subsections (d) and (e). If necessary, the application should
include supporting documentation.
(d)
Policy regarding additional
capital reimbursement waivers. Section
1187.113(b)
authorizes the Department to grant waivers of §
1187.113(a) to
permit capital reimbursement as the Department in its sole discretion
determines necessary and appropriate. The Department has determined that a
waiver of §
1187.113(a) will
only be necessary and appropriate when the Secretary or a designee finds that
the waiver is in the Department 's best interests and will serve to promote the
Commonwealth's policy to encourage the growth of home and community-based
services available to MA recipients.
(1) The
Department will find that a waiver serves to promote the Commonwealth's policy
to encourage the growth of MA home and community-based services only if the
Department concludes that the following criteria are met:
(i) The application for a waiver is made by
or on behalf of a person who has been the legal entity of two MA participating
nursing facilities that meet the following conditions:
(A) Have both been owned by the legal entity
for at least 3 consecutive years prior to the date of application.
(B) Serve residents from the same primary
service area.
(C) Have each
maintained an average MA occupancy rate that exceeds the Statewide MA occupancy
rate for 3 consecutive years prior to the date of the application.
(D) Are identified in the
application.
(ii) The
applicant agrees to permanently decertify all beds in and close one of the two
nursing facilities identified in its application in consideration of obtaining
a waiver to permit capital component payments to the remaining nursing facility
identified in the application.
(iii) Closing the nursing facility will not
create an access to care problem for day-one MA eligible recipients in the
nursing facility's primary service area.
(iv) One or more of the beds decertified as a
result of the closing of the nursing facility is a premoratorium bed.
(v) The legal entity is willing and able to
transfer all residents that are displaced by the closing of the nursing
facility to the legal entity's remaining nursing facility, unless the residents
choose and are able to be transferred elsewhere.
(vi) The remaining nursing facility has one
or more existing postmoratorium beds.
(vii) The applicant agrees that, as a
condition of both obtaining and receiving continuing payment pursuant to the
waiver, the remaining nursing facility will achieve and maintain an MA
occupancy rate equal to or greater than the county average MA occupancy rate or
the combined average MA occupancy rate (over the past 3 years) of the closed
nursing facility and the remaining nursing facility, whichever is
higher.
(viii) The applicant agrees
that, if the waiver is granted, it will notify the Department in writing at
least 90 days prior to the sale, transfer or assignment of a 5% or more
ownership interest, as defined in section 1124(a)(3) of the Social Security Act
(42 U.S.C.A. §
1320a-3(a)(3)), in the
remaining nursing facility.
(ix)
The legal entity is not disqualified from receiving a waiver under subsection
(e).
(x) The applicant agrees that
the waiver is subject to revocation under the conditions specified in
subsection (f).
(xi) The applicant
agrees that the Bureau of Hearings and Appeals affords an adequate, and
appropriate forum in which to resolve disputes and claims with respect to the
remaining nursing facility's participation in, and payment under, the MA
Program , including claims or disputes arising under the applicant 's provider
agreement or addendum thereto, and that, in accordance with applicable
provisions of
2 Pa.C.S. §§
501-508 and
701-704 (relating to
administrative agency law) and §§
1101.84 and
1187.141 (relating to provider
right of appeal; and missing facility's right to appeal and to a hearing), the
applicant will litigate claims pertaining to its remaining facility exclusively
in the Bureau of Hearings and Appeals, subject to its right to seek appellate
judicial review.
(xii) The
applicant agrees that it will not challenge the Department 's denial of capital
component payments to postmoratorium beds in the remaining nursing
facility.
(xiii) The MA Program
will experience overall cost savings if the waiver is granted.
(xiv) The proposal is otherwise in the best
interests of the Department . In determining whether the proposal is in its best
interests, the Department may consider the following:
(A) Whether the legal entity has demonstrated
a commitment to serve MA recipients. In making this determination, the
Department will consider the MA occupancy rate of all nursing facilities
related by ownership or control to the legal entity.
(B) Whether the legal entity has demonstrated
a commitment to provide and develop alternatives to nursing facility services,
such as home and community-based services.
(C) Whether the legal entity is willing to
refer all persons (including private pay applicants) who seek admission to the
remaining nursing facility to the Department or an independent assessor for
pre-admission screening, and to agree to admit only those persons who are
determined by that screening to be clinically eligible for nursing facility
care.
(D) Other information that
the Department deems relevant.
(2) If the Department concludes that the
criteria specified in paragraph (1) have been met, the Department will grant a
waiver to permit capital component payments to the remaining nursing facility.
Capital component payments made pursuant to the waiver shall be limited to the
number of postmoratorium beds in the remaining nursing facility as of the date
the waiver is granted, or the number of premoratorium beds decertified as a
result of the closure of the other nursing facility, whichever number is
less.
(e)
Disqualification for past history of serious program
deficiencies. The Department will not grant a waiver of §
1187.113(a) if:
(1) The legal entity, any owner of the legal
entity or the nursing facility is currently precluded from participating in the
Medicare Program or any state Medicaid Program .
(2) The legal entity or any owner of the
legal entity, owned, operated or managed a nursing facility at any time during
the 3-year period prior to the date of the application and one of the following
applies:
(i) The nursing facility was
precluded from participating in the Medicare Program or any state Medicaid
Program .
(ii) The nursing facility
had its license to operate revoked or suspended.
(iii) The nursing facility was subject to the
imposition of sanctions or remedies for residents' rights violations.
(iv) The nursing facility was subject to the
imposition of remedies based on the failure to meet applicable Medicare and
Medicaid Program participation requirements, and the nursing facility's
deficiencies immediately jeopardized the health and safety of the nursing
facility's residents; or the nursing facility was designated a poor performing
nursing facility.
(f)
Waiver revocation. The
Department will revoke a waiver, recover any funds paid under the waiver, or
take other actions as it deems appropriate if it determines that:
(1) The applicant failed to disclose
information on its waiver application that would have rendered the legal entity
or nursing facility ineligible to receive a waiver under subsections (d) and
(e).
(2) The legal entity or
nursing facility violate any one or more of the agreements in subsection
(d)(1)(ii), (v) and (vii)-(xii).
(g)
Policy regarding capital
component payments to participating nursing facilities granted waivers under
Chapter 1181. Waivers of the moratorium regulations granted to nursing
facilities under Chapter 1181 remain valid, subject to the same terms and
conditions under which they were granted, under the successor regulation in
§
1187.113(a).
(h)
Effectiveness of waivers granted
under this section. Waivers authorized under this section will remain
valid only during the time period in which this section is in effect.
(i)
Definitions. The
following words and terms, when used in this section, have the following
meanings, unless the content clearly indicate otherwise:
Day-one MA eligible-An individual who meets one of the following conditions:
(i) Is or becomes eligible for MA within 60
days of the first day of the month of admission.
(ii) Will become eligible for MA upon
conversion from payment under Medicare or a Medicare supplement policy, if
applicable.
(iii) Is determined by
the Department , or an independent assessor , based upon information available at
the time of assessment, as likely to become eligible within 60 days of the
first day of the month of admission or upon conversion to MA from payment under
Medicare, or a Medicare supplement policy, if applicable.
Owner-A person having an ownership
interest in a nursing facility enrolled in the MA
Legal entity-A person authorized as the
licensee by the
Person-An individual, corporation, partnership, organization, association or a local governmental unit, authority or agency thereof.
Post-moratorium beds-Nursing facility beds that were built with an approved CON or letter of nonreviewability dated after August 31, 1982, or nursing facility beds built without an approved CON or letter of nonreviewability after December 18, 1996.
Pre-moratorium beds-Nursing facility beds
that were built under an approved CON or letter of nonreviewability dated on or
before August 31, 1982, and for which the
Primary service area-The county in which
the nursing facility is physically located. If the
Notes
This section cited in 55 Pa. Code § 1187.108 (relating to gross adjustments to nursing facility payments).
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