NOTICES
DEPARTMENT OF
PUBLIC WELFARE
Nursing Facility Assessment Program for Fiscal Year 2007-2008
[38 Pa.B. 1895]
[Saturday, April 19, 2008]This notice announces the amount of the assessment that the Department of Public Welfare (Department) is implementing for Fiscal Year (FY) 2007-2008, provides an explanation of the assessment methodology that the Department is using in FY 2007-2008 and identifies the estimated aggregate impact on nursing facilities that will be subject to the assessment.
Background
The act of September 30, 2003 (P. L. 169, No. 25) (Act 25)1 , known as the Nursing Facility Assessment Law, directs the Department to ''implement a monetary assessment'' on nonpublic licensed nursing facilities beginning July 1, 2003, and ending June 30, 2007 (Assessment Program). See sections 802-A and 815-A of Act 25 (62 P. S. §§ 802-A and 815-A). Act 25 further specifies that the Department may implement an Assessment Program ''only to the extent that the revenues generated therefrom will qualify as the State share of [Medical Assistance] program expenditures eligible for Federal financial participation.'' See section 803-A of Act 25 (62 P. S. § 803-A). To guarantee that the assessment amounts qualify for matching Federal funds, Act 25 directs the Department to seek such waivers from the Federal Centers for Medicare and Medicaid Services (CMS) as may be necessary to implement the Assessment Program in conformity with Federal law. See section 812-A of Act 25 (62 P. S. § 812-A). The Department submitted a waiver request to the CMS, and the CMS subsequently granted the waiver and approved implementation of the Assessment Program.
The act of June 30, 2007 (P. L. 49 No. 16) (Act 16) directed the Department to continue the Assessment Program beginning FY 2007-2008--2011-2012 and also provided the Department with the authority to include the county nursing facilities in the Assessment Program beginning July 1, 2007. See sections 801-A, 802-A, 813-A and 815-A of Act 16.
As directed by Act 16, the Department submitted a request to CMS on September 11, 2007, seeking a waiver of both the uniform and broad-based requirements. In this submission, the Department requested approval to modify the Assessment Program effective July 1, 2007, that will: (i) add county nursing facilities to the Assessment Program; and, (ii) increase the assessment rate from $1.97 to $2.40 per non-Medicare day for nonexempt nursing facilities that participate within a licensed Continuing Care Retirement Community (CCRC) or that have 50 licensed beds or less (county nursing facilities will also be assessed at this rate); (iii) and increase the assessment rate from $20.35 to $24.83 per non-Medicare day for all other nonexempt nursing facilities. By letter dated November 28, 2007, CMS approved the Department's waiver request.
For each fiscal year that the Assessment Program is implemented, the Secretary of the Department (Secretary), in consultation with the Secretary of the Budget, must determine the aggregate amount of the assessment and the annual assessment rate. The aggregate amount and rate of assessment must be approved by the Governor's Office. The annual assessment rates must be sufficient to generate at least $50 million in additional revenue, subject to the maximum aggregate assessment amount that qualifies for Federal matching funds. See section 804-A of Act 25 (62 P. S. § 804-A).
Before implementing the Assessment Program in a fiscal year, the Secretary must publish a notice in the Pennsylvania Bulletin that specifies the amount of the assessment being proposed, provides an explanation of the assessment methodology and assessment amount and identifies the aggregate impact on nursing facilities subject to the assessment. See section 805-A of Act 25 (62 P. S. § 805-A). After consideration of any comments received during the 30-day comment period, the Secretary must publish a second notice announcing the rate of assessment for the fiscal year. Id.
The Secretary published a notice at 38 Pa.B. 410 (January 19,2008) announcing the proposed assessment rates, the aggregate amount and the impact for FY 2007-2008. The Department received two public comments following publication of the proposed notice. The Department considered and took into account the comments when composing this final assessment notice.
Assessment Methodology and Rates for FY 2007-2008
The Secretary published a notice at 38 Pa.B. 410 announcing the proposed nursing facility assessment methodology and rates for FY 2007-2008.
The following nursing facilities will be exempt from the Assessment Program in FY 2007-2008:
1. State owned and operated nursing facilities.
2. Veterans Administration nursing facilities.
3. Nursing facilities that have not been licensed and operated by the current or previous owner for the full calendar quarter prior to the calendar quarter for which an assessment is collected.
4. Nursing facilities that provide nursing facility services free of charge to all residents.
Under the proposed rate structure, the Department will assess nonexempt nursing facilities at two rates. One rate will apply to county nursing facilities, to facilities that have 50 or fewer beds, and to nursing facilities that participate in a CCRC. The other rate will apply to all other nonexempt facilities. Each nonexempt facility's quarterly assessment amount will continue to be calculated by multiplying its assessment rate by the facility's non-Medicare resident days during the calendar quarter that immediately precedes the assessment quarter. But for the inclusion of the county nursing facilities, this proposed rate structure is the same structure that was used in previous years.
Although the Department intends to maintain the same basic rate structure for FY 2007-2008, the Department is proposing to increase the assessment rates for nonexempt nursing facilities from FY 2006-2007. Specifically, the Department proposes to implement the following assessment rates during FY 2007-2008:
(1) The proposed assessment rate for county nursing facilities and for nonexempt facilities that either have 50 or fewer beds or participate in a CCRC will be $2.40 per non-Medicare resident day.
(2) The proposed assessment rate for all other nonexempt nursing facilities will be $24.83 per non-Medicare resident day.
For FY 2007-2008, the Department will consider a nursing facility to qualify for the CCRC assessment rate if the nursing facility satisfies the following criteria:
1. The nursing facility is owned or controlled by an entity that is certified as a CCRC by the Insurance Department (for purposes of this guideline, ''control'' means the power to direct or cause to direct the management and policies of the nursing facility, whether through equitable ownership of voting securities or otherwise).
2. The CCRC provides a continuum of care during the assessment period that includes residential living units that are either occupied or available for immediate occupancy.
3. The nursing facility is: (a) located on the same campus as the CCRC's residential living units; or (b) identified in the CCRC's Disclosure Statement and Resident Agreement under the Continuing-Care Provider Registration and Disclosure Act (40 P. S. §§ 3201--3225) and located no more than 30 miles from the campus on which the CCRC's residential living units are located.
Under these criteria, a nursing facility that is owned or controlled by a CCRC which is planning to construct residential living units in the future, or is constructing residential units, but which has no residential units occupied or available for immediate occupancy, would not qualify for the CCRC assessment rate. Additionally, the residential living units must be occupied or available for immediate occupancy for the entire assessment period for the nursing facility to qualify for the CCRC rate for that assessment period.
If a nonexempt nursing facility either satisfies the previously listed criteria after the commencement of the Assessment Program or does not satisfy the criteria but believes that it otherwise qualifies for the CCRC rate, then the nursing facility may submit a written request to the Department that it be assessed at the CCRC rate. The written request should include supporting documentation demonstrating that the nursing facility participates within a licensed CCRC. The Department will not unilaterally classify nursing facilities for the CCRC rate without a written request.
All requests relating to CCRC designation should be submitted to the Department of Public Welfare, Office of Long-Term Living, P. O. Box 2675, Harrisburg, PA 17105, Attention: NH Assessment Unit.
Assessment payments are due the last day of the Assessment quarter or the 30th day from the date of publication of this final notice, whichever is later.
The Assessment Program due dates, along with supplemental payment dates, will be available on the Department's web site at www.dpw.state.pa.us/omap/provinf/ltc/nsgfacass.asp.
Aggregate Assessment Amount and Fiscal Impact
As a result of the implementation of the Assessment Program, the Department estimates that the annual aggregate assessment fees for nonexempt nursing facilities will total $413.643 million for FY 2007-2008. All of the revenue derived from the assessment fees and associated Federal matching funds will be used to make payments to qualified Medical Assistance nursing facility providers in accordance with applicable law and regulations.
Public Comment
Interested persons are invited to submit written comments regarding the contents of this notice to Gail Weidman, Department of Public Welfare, Office of Long-Term Living, P. O. Box 2675, Harrisburg, PA 17105. Comments received within 30 days will be reviewed and considered for any subsequent revision of the notice.
Persons with a disability who require an auxiliary aid or service may submit comments using the AT&T Relay Service at (800) 654-5984 (TDD users) or (800) 654-5988 (voice users).
ESTELLE B. RICHMAN,
SecretaryFiscal Note: 14-NOT-548. No fiscal impact; (8) recommends adoption. Adoption of this regulation is expected to generate $413,643,000 in revenue for FY 2008-2009.
[Pa.B. Doc. No. 08-758. Filed for public inspection April 18, 2008, 9:00 a.m.]
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1 Act 25 is codified in Article VIII-A of the Public Welfare Code, 62 P. S. §§ 801-A--815-A.
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