Subchapter H. PAYMENT CONDITIONS, LIMITATIONS AND ADJUSTMENTS
Sec.
1187.101. General payment policy.
1187.102. Utilizing Medicare as a resource.
1187.103. Cost finding and allocation of costs.
1187.104. Limitations on payment for reserved beds.
1187.105. Limitations on payment for prescription drugs.
1187.106. Limitations on payment during strike or disaster situations requiring resident evacuation.
1187.107. Limitations on resident care and other resident related cost centers.
1187.108. Gross adjustments to nursing facility payments.
1187.109. Medicare upper limit on payment.
1187.110. Private pay rate adjustment.
1187.111. Disproportionate share incentive payments.
1187.112. [Reserved].
1187.113. Capital component payment limitation.
1187.113a. Nursing facility replacement beds—statement of policy.
1187.113b. Capital cost reimbursement waivers—statement of policy.
1187.114. Adjustments relating to sanctions and fines.
1187.115. Adjustments relating to errors and corrections of nursing facility payments.
1187.116. [Reserved].
1187.117. Supplemental ventilator care and tracheostomy care payments.§ 1187.101. General payment policy.
(a) Payment for nursing facility services will be subject to the following conditions and limitations:
(1) This chapter and Chapter 1101 (relating to general provisions).
(2) Applicable State statutes.
(3) Applicable Federal statutes and regulations and the Commonwealth’s approved State Plan.
(b) Payment will not be made for nursing facility services at the MA per diem rate if full payment is available from another public agency, another insurance or health program or the resident’s resources.
(c) Payment will not be made in whole or in part for nursing facility services provided during a period in which the nursing facility’s participation in the MA Program is terminated.
(d) Claims submitted for payment under the MA Program are subject to the utilization review procedures established in Chapter 1101. In addition, the Department will perform the reviews specified in this chapter for controlling the utilization of nursing facility services.
Cross References This section cited in 55 Pa. Code § 1187.21 (relating to nursing facility participation requirements).
§ 1187.102. Utilizing Medicare as a resource.
(a) An eligible resident who is a Medicare beneficiary, is receiving care in a Medicare certified nursing facility and is authorized by the Medicare Program to receive nursing facility services shall utilize available Medicare benefits before payment will be made by the MA Program. If the Medicare payment is less than the nursing facility’s MA per diem rate for nursing facility services, the Department will participate in payment of the coinsurance charge to the extent that the total of the Medicare payment and the Department’s and other coinsurance payments do not exceed the MA per diem rate for the nursing facility. The Department will not pay more than the maximum coinsurance amount.
(b) If a resident has Medicare Part B coverage, the nursing facility shall use available Medicare Part B resources for Medicare Part B services before payment is made by the MA Program.
(c) The nursing facility may not seek or accept payment from a source other than Medicare for any portion of the Medicare coinsurance amount that is not paid by the Department on behalf of an eligible resident because of the limit of the nursing facility’s MA per diem rate.
(d) The Department will recognize the Medicare payment as payment in full for each day that a Medicare payment is made during the Medicare-only benefit period.
(e) The cost of providing Medicare Part B type services to MA recipients not eligible for Medicare Part B services which are otherwise allowable costs under this part are reported in accordance with § 1187.72 (relating to cost reporting for Medicare Part B type services).
Cross References This section cited in 55 Pa. Code § 1187.72 (relating to cost reporting for Medicare Part B type services).
§ 1187.103. Cost finding and allocation of costs.
(a) A nursing facility shall use the direct allocation method of cost finding. The costs will be apportioned directly to the nursing facility and residential or other facility, based on appropriate financial and statistical data.
(b) Allowable operating cost for nursing facilities will be determined subject to this chapter and the Medicare Provider Reimbursement Manual, CMS Pub. 15-1, except that if this chapter and CMS Pub. 15-1 differ, this chapter applies.
Authority The provisions of this § 1187.103 amended under sections 201(2), 206(2), 403(b) and 443.1(5) of the Public Welfare Code (62 P.S. § § 201(2), 206(2), 403(b) and 443.1(5)).
Source The provisions of this § 1187.103 amended June 23, 2006, effective July 1, 2006, 36 Pa.B. 3207. Immediately preceding text appears at serial page (287050).
§ 1187.104. Limitations on payment for reserved beds.
(a) The Department will make payment to a nursing facility for a reserved bed when the resident is absent from the nursing facility for a continuous 24-hour period because of hospitalization or therapeutic leave subject to the limits in subsection (b). A nursing facility shall record each reserved bed for therapeutic leave on the nursing facility’s daily census record and MA invoice. When the bed reserved for a resident who is hospitalized is temporarily occupied by another resident, a nursing facility shall record the occupied bed on the nursing facility’s daily MA census record and the MA invoice. During the reserved bed period the same bed shall be available for the resident upon the resident’s return to the nursing facility.
(b) The payment for reserved bed days is subject to the following limits:
(1) Hospitalization.
(i) A resident receiving nursing facility services is eligible for a maximum of 15 consecutive reserved bed days per hospitalization. The Department will pay a nursing facility at a rate of 1/3 of the nursing facility’s current per diem rate on file with the Department for a hospital reserved bed day if the nursing facility meets the overall occupancy requirements of subparagraph (ii).
(ii) A nursing facility’s overall occupancy rate shall equal or exceed the following:
(A) During the rate year 2009-2010, the nursing facility’s overall occupancy rate for the rate quarter in which the hospital reserved bed day occurs must equal or exceed 75%.
(B) Beginning with the rate year 2010-2011 and thereafter, the nursing facility’s overall occupancy rate for the rate quarter in which the hospital reserved bed day occurs must equal or exceed 85%.
(iii) The Department will calculate a nursing facility’s overall occupancy rate for a rate quarter as follows:
(A) The Department will identify the picture date for the rate quarter as specified in § 1187.96(a)(5) (relating to price- and rate-setting computations) and the two picture dates immediately preceding this picture date.
(B) The Department will calculate the nursing facility’s occupancy rate for each of the picture dates identified in clause (A) by dividing the total number of assessments listed in the facility’s CMI report for that picture date by the number of the facility’s certified beds on file with the Department on the picture date and multiplying the result by 100%. The Department will assign the highest of the three picture date occupancy rates as the nursing facility’s overall occupancy rate for the rate quarter.
(C) The Department will only use information contained on a valid CMI report to calculate a nursing facility’s overall occupancy rate. If a nursing facility did not submit a valid CMI report for a picture date identified in clause (A), the Department will calculate the nursing facility’s overall occupancy rate based upon the valid CMI reports that are available for the identified picture dates. If no valid CMI reports are available for the picture dates identified in clause (A), the nursing facility is not eligible to receive payment for hospital reserve bed days in the rate quarter.
(D) For purposes of this subsection, a valid CMI report is a CMI report that meets the requirements of § 1187.33(a)(5) and (6) (relating to resident data and picture date reporting requirements).
(iv) If the resident’s hospital stay exceeds 15 consecutive days, the nursing facility shall readmit the resident to the nursing facility upon the first availability of a bed in the nursing facility if, at the time of readmission, the resident requires the services provided by the nursing facility.
(v) If the resident’s hospital stay is less than or equal to 15 consecutive days, the nursing facility shall readmit the resident to the same bed the resident occupied before the hospital stay regardless whether the nursing facility is eligible for payment for hospital reserved beds under subparagraph (b)(1)(i), if, at the time of readmission, the resident requires the services provided by the nursing facility.
(vi) Hospital reserved bed days may not be billed as therapeutic leave days and may not be billed to the resident if the resident’s hospital stay is less than or equal to 15 consecutive days regardless whether the nursing facility is eligible for payment for hospital reserved beds under subparagraph (b)(1)(i).
(2) Therapeutic leave. A resident receiving nursing facility services is eligible for a maximum of 30 days per calendar year of therapeutic leave outside the nursing facility if the leave is included in the resident’s plan of care and is ordered by the attending physician. The Department will pay a nursing facility the nursing facility’s current per diem rate on file with the Department for a therapeutic leave day.
Source The provisions of this § 1187.104 amended November 26, 2010, effective November 27, 2010, 40 Pa.B. 6782. Immediately preceding text appears at serial pages (320657) to (320658).
Cross References This section cited in 55 Pa. Code § 1187.33 (relating to resident data and picture date reporting requirements); 55 Pa. Code § 1187.93 (relating to CMI calculations); and 55 Pa. Code § 1187.97 (relating to rates for new nursing facilities, nursing facilities with a change of ownership, reorganized nursing facilities and former prospective payment nursing facilities).
§ 1187.105. Limitations on payment for prescription drugs.
The Department’s per diem rate for nursing facility services does not include prescription drugs. Prescribed drugs for the categorically needy and medically needy are reimbursable directly to a licensed pharmacy in accordance with Chapter 1121 (relating to pharmaceutical services).
§ 1187.106. Limitations on payment during strike or disaster situations requiring resident evacuation.
Payment may continue to be made to a nursing facility that has temporarily transferred residents, as the result or threat of a strike or disaster situation, to the closest medical institution able to meet the residents’ needs, if the institution receiving the residents is licensed and certified to provide the required services. If the nursing facility transferring the residents can demonstrate that there is no certified nursing facility available for the safe and orderly transfer of the residents, the payments may be made so long as the institution receiving the residents is certifiable and licensed to provide the services required. The resident assessment submissions for the transferring nursing facility residents shall be maintained under the transferring nursing facility provider number as long as the transferring nursing facility is receiving payment for those residents. If the nursing facility to which the residents are transferred has a different per diem rate, the transferring nursing facility shall be reimbursed at the lower rate. The per diem rate established on the date of transfer will not be adjusted during the period that the residents are temporarily transferred. The nursing facility shall immediately notify the Department in writing of an impending strike or a disaster situation and follow with a listing of MA residents and the nursing facility to which they will be or were transferred.
§ 1187.107. Limitations on resident care and other resident related cost centers.
(a) The Department will set a limit on the resident care peer group price for each nursing facility for each year, using the NIS database as specified in § 1187.91 (relating to database), to the lower of:
(1) The nursing facility resident care peer group price.
(2) One hundred three percent of the nursing facility’s average case-mix neutralized resident care cost per diem plus 30% of the difference between the 103% calculation and the nursing facility resident care peer group price.
(b) The Department will set a limit on the other resident related peer group price for each nursing facility for each base year, using the NIS database as specified in § 1187.91 to the lower of:
(1) The nursing facility other resident related peer group price.
(2) One hundred three percent of the nursing facility average other resident related cost per diem plus 30% of the difference between the 103% calculation and the nursing facility other resident related peer group price.
Cross References This section cited in 55 Pa. Code § 1187.95 (relating to general principles for rate and price setting); and 55 Pa. Code § 1187.96 (relating to price- and rate-setting computations).
§ 1187.108. Gross adjustments to nursing facility payments.
(a) The case-mix payment system is a prospective system. There is no cost settlement under the case-mix payment system.
(b) Certain adjustments may be made which increase or decrease the payment which a nursing facility may have otherwise received. Gross adjustments to nursing facility payments are based on one or more of the following general provisions:
(1) If audit findings result in changing the peer group median and the peer group price, a retrospective gross adjustment is made for each nursing facility in the peer group where the change occurred.
(2) If a nursing facility’s MA CMI changes as a result of UMR resident assessment audit adjustments, retrospective gross adjustments shall be made for the nursing facility involved.
(c) Specific adjustments of the gross payments received by a nursing facility may be required by § § 1187.109—1187.115.
Cross References This section cited in 55 Pa. Code § 1187.141 (relating to nursing facility’s right to appeal and to a hearing).
§ 1187.109. Medicare upper limit on payment.
Nursing facilities shall submit Medicare information on the MA-11. MA payments will not exceed in the aggregate the comparable amount that Medicare would have paid had the Medicare Program reimbursed for the services rendered.
Cross References This section cited in 55 Pa. Code § 1187.108 (relating to gross adjustments to nursing facility payments).
§ 1187.110. Private pay rate adjustment.
The MA rate is limited by the nursing facility’s private pay rate for the comparable rate period.
Cross References This section cited in 55 Pa. Code § 1187.108 (relating to gross adjustments to nursing facility payments).
§ 1187.111. Disproportionate share incentive payments.
(a) A disproportionate share incentive payment will be made based on MA paid days of care times the per diem incentive to facilities meeting the following criteria for a 12-month facility cost reporting period:
(1) The nursing facility shall have an annual overall occupancy rate of at least 90% of the total available bed days.
(2) The nursing facility shall have an MA occupancy rate of at least 80%. The MA occupancy rate is calculated by dividing the MA days of care paid by the Department by the total actual days of care.
(b) The disproportionate share incentive payments will be based on the following for year 1 of implementation:
Overall
OccupancyMA
Occupancy
(y)Per Diem
IncentiveGroup A 90% ›= 90% y $2.50 Group B 90% 88%‹= y ‹90% $1.70 Group C 90% 86%‹= y ‹88% $1.00 Group D 90% 84%‹= y ‹86% $0.60 Group E 90% 82%‹= y ‹84% $0.30 Group F 90% 80%‹= y ‹82% $0.20 (c) For each year subsequent to year 1 of implementation, disproportionate share incentive payments as described in subsection (b) will be inflated forward using the Health Care Financing Administration Nursing Home Without Capital Market Basket Index to the end point of the rate setting year for which the payments are made.
(d) These payments will be made annually within 120 days after the submission of an acceptable cost report provided that payment will not be made before 210 days of the close of the nursing facility fiscal year.
(e) For the period July 1, 2005, to June 30, 2009, the disproportionate share incentive payment to qualified nursing facilities shall be increased to equal two times the disproportionate share per diem incentive calculated in accordance with subsection (c).
(1) For the period commencing July 1, 2005, through June 30, 2006, the increased incentive shall apply to cost reports filed for the fiscal period ending December 31, 2005, or June 30, 2006.
(2) For the period commencing July 1, 2006, through June 30, 2007, the increased incentive shall apply to cost reports filed for the fiscal period ending December 31, 2006, or June 30, 2007.
(3) For the period commencing July 1, 2007, through June 30, 2008, the increased incentive shall apply to cost reports filed for the fiscal period ending December 31, 2007, or June 30, 2008.
(4) For the period commencing July 1, 2008, through June 30, 2009, the increased incentive shall apply to cost reports filed for the fiscal period ending December 31, 2008, or June 30, 2009.
Authority The provisions of this § 1187.111 amended under sections 201(2), 206(2), 403(b) and 443.1(5) of the Public Welfare Code (62 P.S. § § 201(2), 206(2), 403(b) and 443.1(5)).
Source The provisions of this § 1187.111 amended November 2, 2001, effective January 1, 1999, 31 Pa.B. 6046; amended June 23, 2006, effective July 1, 2006, 36 Pa.B. 3207. Immediately preceding text appears at serial pages (287053) to (287055).
Cross References This section cited in 55 Pa. Code § 1187.23 (relating to nursing facility incentives and adjustments); and 55 Pa. Code § 1187.108 (relating to gross adjustments to nursing facility payments).
§ 1187.112. [Reserved].
Source The provisions of this § 1187.112 adopted October 13, 1995, effective October 14, 1995, except subsection (b) effective July 1, 1996, 25 Pa.B. 4477; amended February 8, 2002, effective July 1, 2001, 32 Pa.B. 734; reserved November 26, 2010, effective November 27, 2010, 40 Pa.B. 6782. Immediately preceding text appears at serial pages (320661) to (320662).
Cross References This section cited in 55 Pa. Code § 1187.108 (relating to gross adjustments to nursing facility payments).
§ 1187.113. Capital component payment limitation.
(a) Conditions. The capital component payment for fixed property is subject to the following conditions:
(1) The Department will make the capital component payment for fixed property on new or additional beds only if one of the following applies:
(i) The nursing facility was issued either a Section 1122 approval or letter of nonreviewability under 28 Pa. Code Chapter 301 (relating to limitation on Federal participation for capital expenditures) or a Certificate of Need or letter of nonreviewability under 28 Pa. Code Chapter 401 (relating to Certificate of Need Program) for the project by the Department of Health by August 31, 1982.
(ii) The nursing facility was issued a Certificate of Need or letter of nonreviewability under 28 Pa. Code Chapter 401 for the construction of a nursing facility and there was no nursing facility located within the county.
(2) The Department will not make the capital component payment unless the nursing facility substantially implements the project under 28 Pa. Code Chapter 401 within the effective period of the original Section 1122 approval or the original Certificate of Need.
(3) The capital component payment for replacement beds is allowed only if the nursing facility was issued a Certificate of Need or a letter of nonreviewability for the project by the Department of Health.
(4) The Department will not make the capital component payment unless written approval was received from the Department prior to the construction of the new beds.
(b) Capital cost reimbursement waivers. The Department may grant waivers of subsection (a) to permit capital cost reimbursement as the Department in its sole discretion determines necessary and appropriate. The Department will publish a statement of policy under § 9.12 (relating to statements of policy) specifying the criteria that it will apply to evaluate and approve applications for capital cost reimbursement waivers.
Source The provisions of this § 1187.113 amended February 8, 2002, effective July 1, 2001, 32 Pa.B. 734. Immediately preceding text appears at serial pages (257357) to (257358).
Cross References This section cited in 55 Pa. Code § 1187.2 (relating to definitions); 55 Pa. Code § 1187.21a (relating to nursing facility exception requests—statement of policy); 55 Pa. Code § 1187.108 (relating to gross adjustments to nursing facility payments); 55 Pa. Code § 1187.113a (relating to nursing facility replacement beds—statement of policy); and 55 Pa. Code § 1187.113b (relating to capital cost reimbursement waivers—statement of policy).
§ 1187.113a. Nursing facility replacement beds—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 replacement beds constructed, licensed or certified after November 29, 1997.
(b) Purpose.
(1) Department regulations relating to capital component payments for nursing facilities enrolled and participating in the Commonwealth’s Medical Assistance (MA) Program state that capital component payments for replacement beds are allowed only if the nursing facility was ‘‘issued a Certificate of Need or a letter of nonreviewability for the project by the Department of Health.’’ See § 1187.113(a)(3) (relating to capital component payment limitations).
(2) Chapter 7 and all other portions of the Health Care Facilities Act (35 P. S. § § 448.701—448.712) pertaining to Certificates of Need (CON) sunsetted on December 18, 1996. To allow the Department to continue to make capital component payments for replacement beds for which a nursing facility does not have a CON or letter of nonreviewability, the Department will amend its regulations to specify the conditions under which it will recognize beds as replacement beds for purposes of making capital component payments. Pending the promulgation of these regulations, the Department has issued this section to specify instances in which the Department will make capital component payments for replacement beds.
(c) Requests for approval of replacement beds. A nursing facility provider that intends to seek capital component payments under § 1187.113(a)(3) for nursing facility beds constructed, licensed or certified after November 29, 1997, shall submit a written request to the Department for approval of the beds as replacement beds.
(1) The facility shall submit an original and two copies of its request prior to beginning construction of the beds. If a facility began construction of the beds prior to November 29, 1997, the facility shall submit an original and two copies of its request by February 27, 1998, or the date on which the facility requested the Department of Health to issue a license for the beds, whichever date is earlier.
(2) A facility that fails to submit a request under paragraph (1) may not receive capital component payments for the beds.
(d) Policy regarding approval of replacement beds.
(1) Nursing facility beds authorized under a CON dated on or before December 18, 1996.
(i) The Department will approve replacement beds as qualifying for capital component payments under § 1187.113(a) if the following conditions are met:
(A) The facility has a CON or letter of nonreviewability dated on or before December 18, 1996, authorizing the replacement bed project.
(B) The facility has ‘‘substantially implemented’’ its project, as defined in 28 Pa. Code § 401.2 (relating to definitions).
(C) The beds that are being replaced:
(I) Are currently certified.
(II) Are premoratorium beds.
(III) Will be decertified and closed permanently effective on the same date that the replacement beds are certified.
(ii) If a facility has a CON dated on or before December 18, 1996 authorizing a replacement bed project, but the facility fails to substantially implement its project as defined in 28 Pa. Code § 401.2, the Department will treat the facility as though it does not have a CON, and consider the facility’s request under paragraph (2).
(2) Nursing facility beds not authorized by a CON dated on or before December 18, 1996. The Department will approve replacement beds as qualifying for capital component payments under § 1187.113(a) if, after applying the guidelines set forth in subsection (e), the Department determines that the following conditions are met:
(i) Construction of the replacement beds is necessary to assure that MA recipients have access to nursing facility services consistent with applicable law. If the Department determines that some, but not all, of the replacement beds are necessary to assure that MA recipients have appropriate access to nursing facility services, the Department may limit its approval to the number of beds it determines are necessary. If the Department limits its approval to some of the beds, the remaining unapproved beds will not qualify for capital component payments.
(ii) Unless the Department finds that exceptional circumstances exist that require the replacement beds to be located at a further distance from the existing structure, the replacement beds will be constructed within a 1-mile radius of the existing structure in which the beds that are being replaced are situated.
(iii) Unless the Department finds that exceptional circumstances exist that require the replacement beds to be located at a further distance from the existing structure, the replacement beds will be attached or immediately adjacent to the existing structure in which beds that are being replaced are situated if the replacement beds will replace only a portion of the beds in the existing structure.
(iv) The beds that are being replaced:
(A) Are currently certified.
(B) Are premoratorium beds.
(C) Will be decertified and closed permanently effective on the same date that the replacement beds are certified.
(e) Guidelines for evaluation of requests to construct replacement beds. The Department will use the following guidelines, and will consider the following information, as relevant in determining whether to approve replacement beds under subsection (d)(2).
(1) Whether, and to what extent, construction of all the replacement beds is required to ensure the health, safety and welfare of the residents of the facility.
(2) Whether, and to what extent, building code violations or other regulatory violations exist at the facility requiring the construction of all of the replacement beds. If the provider alleges these violations, it shall attach waivers from the relevant regulatory agencies, and explain why the waivers of code violations may not continue indefinitely.
(3) Whether, and to what extent, the facility has considered the development of home and community-based services in lieu of replacing some or all of its beds.
(4) Whether other support services for MA recipients, including home and community-based services, are available in lieu of nursing facility services.
(5) Whether the overall total occupancy and MA occupancy levels of the facility and facilities in the county indicate that there is a need for all or a portion of the replacement beds.
(6) If the provider is proposing to construct a new facility or wing, whether the provider has satisfactorily demonstrated that it would be more costly to renovate the provider’s current facility rather than to construct the new facility or wing.
(7) Whether the facility, or section of the facility, which currently contains the beds to be replaced is able to be utilized for another purpose.
(f) Definitions. The following words and terms, when used in this section, have the following meanings, unless the context clearly indicates otherwise:
Premoratorium beds—Nursing facility beds that were built under an approved CON dated on or before August 31, 1982, and for which the Department is making a capital component payment under these regulations.
Replacement beds—Nursing facility beds constructed in a new building or structure that take the place of existing beds located in a separate or attached building or structure; or reconstructed or renovated beds within an existing building or structure when the cost of the reconstruction or renovation equals or exceeds 50% of the total facility’s appraised value in effect for the rate period in which the request is made.
Source The provisions of this § 1187.113a adopted November 28, 1997, effective November 29, 1997, 27 Pa.B. 6238.
Cross References This section cited in 55 Pa. Code § 1187.108 (relating to gross adjustments to nursing facility payments).
§ 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:
Department of Human Services Bureau of Long Term Care Programs 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:
Applicant—A person with authority to bind the legal entity who submits a request to the Department to waive § 1187.113(a) to permit capital component payments to a nursing facility provider for postmoratorium beds.
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 Program, as defined in section 1124(a) of the Social Security Act.
Legal entity—A person authorized as the licensee by the Department of Health to operate a nursing facility that participates in the MA Program.
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 Department is making capital component payments.
Primary service area—The county in which the nursing facility is physically located. If the provider demonstrates to the Department’s satisfaction that at least 75% of its residents originate from another geographic area, the Department will consider that geographic area to be the provider’s primary service area.
Source The provisions of this § 1187.113b adopted June 25, 1999, effective April 17, 1999 or the effective date of an amendment to the Commonwealth’s Medicaid State Plan incorporating this statement of policy into the Commonwealth’s approved State Plan, whichever date is later, 29 Pa.B. 3218.
Cross References This section cited in 55 Pa. Code § 1187.108 (relating to gross adjustments to nursing facility payments).
§ 1187.114. Adjustments relating to sanctions and fines.
Nursing facility payments shall be withheld, offset, reduced or recouped as a result of sanctions and fines in accordance with Subchapter I (relating to enforcement of compliance for nursing facilities with deficiencies).
Cross References This section cited in 55 Pa. Code § 1187.108 (relating to gross adjustments to nursing facility payments).
§ 1187.115. Adjustments relating to errors and corrections of nursing facility payments.
Nursing facility payments shall be withheld, offset, increased, reduced or recouped as a result of errors, fraud and abuse or appeals under Subchapter I (relating to enforcement of compliance for nursing facilities with deficiencies) and § 1187.141 (relating to nursing facility’s right to appeal and to a hearing).
Cross References This section cited in 55 Pa. Code § 1187.108 (relating to gross adjustments to nursing facility payments).
§ 1187.116. [Reserved].
Source The provisions of this § 1187.116 adopted May 30, 1997, effective May 31, 1997, and apply retroactively to January 1, 1996, 27 Pa.B. 2636; reserved June 23, 2006, effective July 1, 2006, 36 Pa.B. 3207. Immediately preceding text appears at serial pages (287064) to (287065).
§ 1187.117. Supplemental ventilator care and tracheostomy care payments.
(a) Supplemental ventilator care payments.
(1) A supplemental ventilator care payment will be made each calendar quarter, effective July 1, 2012, through June 30, 2014, to nursing facilities subject to the following:
(i) To qualify for the supplemental ventilator care payment, the nursing facility shall satisfy both of the following threshold criteria on the applicable picture date:
(A) The nursing facility shall have a minimum of ten MA-recipient residents who receive medically necessary ventilator care.
(B) The nursing facility shall have a minimum of 10% of their MA-recipient resident population receiving medically necessary ventilator care.
(ii) Under subparagraph (i), the percentage of the nursing facility’s MA-recipient residents who require medically necessary ventilator care will be calculated by dividing the total number of MA-recipient residents who receive medically necessary ventilator care by the total number of MA-recipient residents as described in paragraph (2)(i). The result of this calculation will be rounded to two percentage decimal points. (For example, 0.0945 will be rounded to 0.09 (or 9%); 0.1262 will be rounded to 0.13 (or 13%).)
(iii) To qualify as an MA-recipient resident who receives medically necessary ventilator care, the resident shall be listed as an MA resident and have a positive response for the MDS item for ventilator use on the Federally-approved PA-specific MDS assessment listed on the nursing facility’s CMI report for the applicable picture date.
(iv) The number of total MA-recipient residents is the number of MA-recipient residents listed on the nursing facility’s CMI report for the applicable picture date. MA-pending individuals or those individuals found to be MA eligible after the nursing facility submits a valid CMI report for the picture date as provided under § 1187.33(a)(5) (relating to resident data and picture date reporting requirements) may not be included in the count and may not result in an adjustment of the percent of ventilator dependent MA residents.
(v) The applicable picture dates and the authorization of a quarterly supplemental ventilator care payment are as follows:
Picture Dates Authorization Schedule February 1 September May 1 December August 1 March November 1 June (vi) If a nursing facility fails to submit a valid CMI report for the picture date as provided under § 1187.33(a)(5), the facility cannot qualify for a supplemental ventilator care payment.
(2) A nursing facility’s supplemental ventilator care payment is calculated as follows:
(i) The supplemental ventilator care per diem is ((number of MA-recipient residents who receive medically necessary ventilator care/total MA-recipient residents) x $69) x (the number of MA-recipient residents who receive medically necessary ventilator care/total MA-recipient residents).
(ii) The amount of the total supplemental ventilator care payment is the supplemental ventilator care per diem multiplied by the number of paid MA facility and therapeutic leave days.
(b) Supplemental ventilator care and tracheostomy care payment.
(1) A supplemental ventilator care and tracheostomy care payment will be made each calendar quarter, effective July 1, 2014, to nursing facilities subject to the following:
(i) To qualify for the supplemental ventilator care and tracheostomy care payment, the nursing facility shall satisfy both of the following threshold criteria on the applicable picture date:
(A) The nursing facility shall have a minimum of ten MA-recipient residents who receive medically necessary ventilator care or tracheostomy care.
(B) The nursing facility shall have a minimum of 10% of their MA-recipient resident population receiving medically necessary ventilator care or tracheostomy care.
(ii) Under subparagraph (i), the percentage of the nursing facility’s MA-recipient residents who require medically necessary ventilator care or tracheostomy care will be calculated by dividing the total number of MA-recipient residents who receive medically necessary ventilator care or tracheostomy care by the total number of MA-recipient residents as described in paragraph (2)(i). The result of this calculation will be rounded to two percentage decimal points. (For example, 0.0945 will be rounded to 0.09 (or 9%); 0.1262 will be rounded to 0.13 (or 13%).)
(iii) To qualify as an MA-recipient resident who receives medically necessary ventilator care or tracheostomy care, the resident shall be listed as an MA resident and have a positive response for the MDS item for ventilator use or tracheostomy care on the Federally-approved PA-specific MDS assessment listed on the nursing facility’s CMI report for the applicable picture date.
(iv) The number of total MA-recipient residents is the number of MA-recipient residents listed on the nursing facility’s CMI report for the applicable picture date. MA-pending individuals or those individuals found to be MA eligible after the nursing facility submits a valid CMI report for the picture date as provided under § 1187.33(a)(5) may not be included in the count and may not result in an adjustment of the percent of ventilator dependent or tracheostomy care MA residents.
(v) The applicable picture dates and the authorization of a quarterly supplemental ventilator care and tracheostomy care payment are as follows:
Picture Dates Authorization Schedule February 1 September May 1 December August 1 March November 1 June (vi) If a nursing facility fails to submit a valid CMI report for the picture date as provided under § 1187.33(a)(5), the facility cannot qualify for a supplemental ventilator care and tracheostomy care payment.
(2) A nursing facility’s supplemental ventilator care and tracheostomy care payment is calculated as follows:
(i) The supplemental ventilator care and tracheostomy care per diem is ((number of MA-recipient residents who receive medically necessary ventilator care or tracheostomy care/total MA-recipient residents) x $69) x (the number of MA-recipient residents who receive medically necessary ventilator care or tracheostomy care/total MA-recipient residents).
(ii) The amount of the total supplemental ventilator care and tracheostomy care payment is the supplemental ventilator care and tracheostomy care per diem multiplied by the number of paid MA facility and therapeutic leave days.
(c) Waiver to 180-day billing requirement. If the Department grants a nursing facility a waiver to the 180-day billing requirement, then the MA-paid days that may be billed under the waiver and after the authorization date of the waiver will not be included in the calculation of the supplemental ventilator care payment under subsection (a) or the supplemental ventilator care and tracheostomy care payment under subsection (b). The Department will not retroactively revise the supplemental payment amount under subsections (a) and (b).
(d) Calculation of quarterly payments. The paid MA facility and therapeutic leave days used to calculate a qualifying facility’s supplemental ventilator care or supplemental ventilator care and tracheostomy care payments under subsections (a)(2)(ii) and (b)(2)(ii) will be obtained from the calendar quarter that contains the picture date used in the qualifying criteria as described in subsections (a) and (b).
(e) Quarterly payments. The supplemental ventilator care or supplemental ventilator care and tracheostomy care payments will be made quarterly in each month listed in subsections (a) and (b).
Authority The provisions of this § 1187.117 issued under sections 201(2), 206(2), 403(b) and 443.1 of the Public Welfare Code (62 P. S. § § 201(2), 206(2), 403(b) and 443.1).
Source The provisions of this § 1187.117 adopted June 13, 2014, section 1187(a) shall take effect upon publication and apply retroactively from July 1, 2012, through June 30, 2014, section 1187.117(c)—(e) shall take effect upon publication and apply retroactively from July 1, 2012, section 1187.117(b) takes effect July 1, 2014, 44 Pa.B. 3565.
No part of the information on this site may be reproduced for profit or sold for profit.
This material has been drawn directly from the official Pennsylvania Code full text database. Due to the limitations of HTML or differences in display capabilities of different browsers, this version may differ slightly from the official printed version.
