Current through Register Vol. 50, No. 9, March 1, 2024
RELATES TO:
42 U.S.C.
1396a(a)(13)(A),
42 U.S.C.
1396a(a)(30)(A), 42 C.F.R.
Part 413,
42
C.F.R. 447.204
NECESSITY, FUNCTION, AND CONFORMITY: The Cabinet for Health and
Family Services, Department for Medicaid Services has responsibility to
administer the Medicaid Program.
KRS
205.520(3) authorizes the
cabinet, by administrative regulation, to comply with any requirement that may
be imposed, or opportunity presented, by federal law to qualify for federal
Medicaid funds. This administrative regulation establishes the Department for
Medicaid Services' reimbursement provisions and requirements regarding Veterans
Affairs nursing facility services in Kentucky.
Section 1. Provider Participation. To be
eligible to be reimbursed for services and drugs under this administrative
regulation, a VA NF shall be currently:
(1)
Enrolled in the Kentucky Medicaid Program in accordance with
907
KAR 1:672;
(2) Participating in the Kentucky Medicaid
Program in accordance with 907 1:671;
(3) Licensed by the Cabinet for Health and
Family Services, Office of Inspector General as a nursing facility;
and
(4) Certified as a state
veterans home by the United States Department of Veterans Affairs.
Section 2. General Requirements.
To be reimbursable by the department, a service shall be:
(1) Medically necessary;
(2) Provided to a recipient who is eligible
for nursing facility services in accordance with
907
KAR 1:022;
(3) Provided in accordance with
907
KAR 1:022; and
(4) Provided by a VA NF.
Section 3. Covered Services and Drugs. The
following, if provided by a VA NF in accordance with this administrative
regulation, shall be covered under this administrative regulation:
(1) Nursing facility services;
(2) Ancillary services;
(3) Laboratory procedures or radiological
services if ordered by:
(a) A
physician;
(b) An advanced practice
registered nurse if the laboratory test or radiological service is within the
scope of the advance practice registered nurse's practice; or
(c) A physician assistant if the laboratory
test or radiological service is:
1. Authorized
by the supervising physician; and
2. Within the scope of the physician
assistant's practice;
(4) Psychological or psychiatric therapy;
or
(5) Drugs.
Section 4. Reimbursement.
(1) The department shall reimburse a VA NF
for services and drugs under this administrative regulation on a cost
basis.
(2)
(a) The cost basis shall include reimbursing:
1. A VA NF for services and drugs on an
interim basis during a state fiscal year using a prospective payment rate;
and
2. A final reimbursement to a
VA NF for services and drugs for a state fiscal year:
a. Equal to the VA NF's Medicaid allowable
cost for the state fiscal year; and
b. That results from a reconciliation of the:
(i) Interim prospective reimbursement paid by
the department to the VA NF for the state fiscal year; and
(ii) Actual Medicaid allowable costs
experienced by the VA NF for the state fiscal year as reflected on the cost
report that has been desk reviewed and approved by the department for the state
fiscal year.
(b)
1.
Except as provided by subsection (3)(b) of this section, the prospective
payment rate referenced in paragraph (a)1 of this subsection shall be:
a. Established using the most recently
submitted cost report available to the department as of May 16 prior to the
beginning of the state fiscal year; and
b. Trended and indexed to the midpoint of the
state fiscal year.
2.
For example, to set a prospective payment for a VA NF effective July 1, 2014,
for the state fiscal year beginning July 1, 2014, the department shall:
a. Use the most recently submitted cost
report available to the department as of May 16, 2014; and
b. Trend and index the prospective payment
rate to December 31, 2014.
(3)
(a) A
prospective payment rate for services and drugs shall:
1. Be specific to the VA NF;
2. Not be subject to retroactive adjustment
except as specified in this section;
3. Be determined by the department on a cost
basis annually; and
4. Except as
established in paragraph (b) of this subsection, be based on a VA NF's
Medi-caid allowable costs.
(b)
1. If no
cost report containing a full state fiscal year of cost data for a VA NF is
available as of May 16, to set a prospective payment rate for the VA NF, the
department shall:
a. If at least six (6)
months of cost data is available, use pro forma cost data:
(i) Submitted to the department by the VA NF;
and
(ii) Approved by the
department; or
b. If less
than six (6) months of cost data is available, establish a prospective payment
rate equal to the statewide average prospective payment rate of existing VA NFs
until the department receives pro forma cost data including at least six (6)
months of cost data.
2.
Pro forma cost data shall be trended and indexed in the same way as established
in subsection (2)(b) of this section.
(c) The department shall adjust a prospective
payment rate during the state fiscal year if the prospective payment rate that
was established appears likely to result in a substantial cost settlement that
could be avoided by adjusting the prospective payment rate.
(d)
1. If
the latest available cost report data has not been audited or desk-reviewed
prior to rate setting for the universal year beginning July 1, a prospective
rate based on a cost report which has not been audited or desk-reviewed shall
be subject to adjustment when the audit or desk review is completed.
2. An unaudited cost report shall be subject
to an adjustment to the audited amount after auditing has occurred.
(e)
1. If the department has made a separate rate
adjustment as compensation to a VA NF for a minimum wage update, the department
shall:
a. Not pay the VA NF twice for the
same costs; and
b. Adjust downward
the trending and indexing factors to the extent necessary to remove from the
factors costs relating to the minimum wage updates already provided for by the
separate rate adjustment.
2. If the trending and indexing factors
include costs related to a minimum wage increase:
a. The department shall not make a separate
rate adjustment; and
b. The minimum
wage costs shall not be deleted from the trending and indexing
factors.
(4) The department shall consider an
adjustment to a VA NF's prospective rate (subject to the upper payment limit)
if:
(a) The VA NF's increased costs are
attributable to:
1. A governmentally imposed
minimum wage increase, staffing ratio increase, or a level of service increase;
and
2. The increase was not
included in the Global Insight Index;
(b) A new licensure requirement or new
interpretation of an existing requirement by the appropriate governmental
agency as issued in an administrative regulation results in changes that affect
all VA NFs; or
(c) The VA NF
experiences a governmentally-imposed displacement of residents.
(5) The amount of any prospective
payment rate adjustment resulting from a governmental-ly-imposed minimum wage
increase or licensure requirement change or interpretation as cited in
subsection (4) of this section shall not exceed the amount by which the cost
increase resulting directly from the governmental action exceeds on an
annualized basis the inflation allowance amount included in the prospective
rate for the general cost area in which the increase occurs.
(a) For purposes of this determination, costs
shall be classified as either:
1. Salaries;
or
2. Other.
(b) The effective date of an interim rate
adjustment shall be the first day of the month in which the adjustment is
requested or in which the cost increase occurred, whichever is later.
(6) A year-end adjustment of a
prospective rate and a retroactive cost settlement adjustment shall be made if:
(a) An incorrect payment has been made due to
a computational error (other than an omission of cost data) discovered in the
cost basis or establishment of the prospective rate;
(b) An incorrect payment has been made due to
a misrepresentation on the part of a facility (whether intentional or
unintentional);
(c) A facility is
sold and the funded depreciation account is not transferred to the purchaser;
or
(d) The prospective rate has
been set based on unaudited cost reports and the prospective rate is to be
adjusted based on audited reports with the appropriate cost settlement made to
adjust the unaudited prospective payment amounts to the correct audited
prospective payment amounts.
(7)
(a) The
department shall retroactively cost settle reimbursement for services and
drugs.
(b) Retroactive settlement
shall entail:
1. Comparing interim prospective
payments with the properly apportioned cost of Medicaid services and drugs
rendered;
2. A tentative cost
report settlement based upon:
a. Eighty (80)
percent of any amount due the facility after a preliminary review is performed;
or
b. 100 percent settlement of any
liability due the department; and
3. A final cost report settlement after the
allowed billing period has elapsed for the dates of service and drugs
identified within the cost report.
(c) To be considered final, a cost report
shall have been reviewed and approved by the department.
Section 5. Allowable and
Non-allowable Costs.
(1) Nursing facility
services' and drugs' costs shall be the direct costs associated with nursing
facility services and drugs.
(2)
(a) Except as provided in paragraph (d) of
this subsection, interest expense used in setting a prospective rate shall be
an allowable cost if:
1. Permitted pursuant to
42 C.F.R.
413.153; and
2. The interest expense:
a. Represents interest on:
(i) Long term debt existing at the time the
provider enters the program; or
(ii) New long-term debt, if the proceeds are
used to purchase fixed assets relating to the provision of the appropriate
level of care; or
b. Is
for working capital and operating needs that directly relate to providing
patient care.
(b) The forms of indebtedness may include:
1. Notes, advances, and various types of
receivable financing; or
2.
Mortgages, bonds, and debentures if the principal is to be repaid over a period
in excess of one (1) year.
(c) If a debt is subject to variable interest
rates found in balloon-type financing, renegotiated interest rates shall be
allowable.
(d) Interest on a
principal amount used to purchase goodwill or other intangible assets shall not
be considered an allowable cost.
(3)
(a) The
allowable cost for a service or good purchased by a VA NF from a related
organization shall be the cost to the related organization unless it can be
demonstrated that the related organization is equivalent to a second party
supplier.
(b) Except as provided in
paragraph (c) of this subsection, an organization shall be considered a related
organization if an individual possesses five (5) percent or more of ownership
or equity in the facility and the supplying business.
(c) An organization shall not be considered a
related organization if fifty-one (51) percent or more of the supplier's
business activity of the type carried on with the VA NF is transacted with
persons and organizations other than the VA NF and its related
organizations.
(4) The
amount allowable for leasing costs shall not exceed the amount which would be
allowable based on the computation of historical costs.
(5) A cost shall be allowable and eligible
for reimbursement if the cost is:
(a)
Reflective of the provider's actual expenses of providing a service;
and
(b) Related to Medicaid patient
care pursuant to
42 C.F.R.
413.9.
(6) The following costs shall be allowable:
(a) Costs to related organizations pursuant
to
42 C.F.R.
413.17;
(b) Costs of educational activities pursuant
to
42
C.F.R. 413.85;
(c) Research costs pursuant to
42 C.F.R.
413.90;
(d) Value of services of nonpaid workers
pursuant to
42 C.F.R.
413.94;
(e) Purchase discounts and allowances
pursuant to
42
C.F.R. 413.98;
(f) Refunds of expenses pursuant to
42
C.F.R. 413.98;
(g) Depreciation on buildings and equipment
if a cost is:
1. Identifiable and recorded in
the provider's accounting records;
2. Based on historical cost of the asset or,
if donated, the fair market value; or
3. Prorated over the estimated useful life of
the asset using the straight-line method, which is a method that depreciates
the value of an asset evenly over the life of the asset;
(h) Interest on current and capital
indebtedness;
(i) Professional
costs of services of full-time or regular part-time employees not to exceed
what a prudent buyer would pay for comparable services; or
(j) A provider tax on a VA
NF.
(7) The following
costs shall not be allowable:
(a) The value of
services provided by nonpaid members of an organization if there is an
agreement with the provider to furnish the services at no cost;
(b) Political contributions;
(c) Legal fees for unsuccessful lawsuits
against the Cabinet for Health and Family Services;
(d) Travel and associated costs outside of
the Commonwealth of Kentucky to conventions, meetings, assemblies, conferences,
or any related activities that are not related to NF training or educational
purposes; or
(e) Costs related to
lobbying.
(8) For a bona
fide change of ownership, the depreciation and interest costs shall be
increased in valuation in accordance with
42
U.S.C.
1395x(v)(1)(O)(i).
(9)
(a)
Maximum allowable costs shall be the maximum amount which may be allowed to a
VA NF as reasonable cost for the provision of a supply, drug, or service while
complying with limitations expressed in related federal or state
regulations.
(b) Costs shall be
subject to allowable cost limits pursuant to
42
C.F.R. 413.106.
Section 6. Cost Report
Requirements.
(1)
(a) A VA NF shall, no later than five (5)
months following the end of a state fiscal year, submit to the department a
cost report stating the VA NF's costs for the state fiscal year.
(b) The time limit stated in paragraph (a) of
this subsection shall be extended at the specific request of the facility with
the department's concurrence.
(2) If the VA NF experienced a new item or
expansion representing a departure from current service levels and for which
the VA NF requested prior approval by the department, the VA NF shall submit a
supplement to the cost report to the department which:
(a) Describes the new item or expansion;
and
(b) States the rationale for
the new item or expansion.
(3)
(a)
Department approval or rejection of a projection of the cost of a new item or
expansion shall be made on a prospective basis in the context that if a new
item or an expansion and related costs are approved they shall be considered
when actually incurred as an allowable cost.
(b) Rejection of an item or costs shall
represent notice that the costs shall not be considered as part of the cost
basis for reimbursement.
(c) Unless
otherwise specified, approval shall relate to the substance and intent rather
than the cost projection.
(d) If a
request for prior approval of a projection or expansion is made, absence of a
response by the department shall not be construed as approval of the item or
expansion.
(4)
(a) The department shall perform a desk
review of each cost report to determine whether an audit is necessary and, if
so, the scope of the audit.
(b) If
the department determines that an audit is not necessary, the cost report shall
be settled without an audit.
(c) A
desk review or audit shall be used for purposes of verifying costs to be used
in setting the prospective rate or for purposes of adjusting prospective rates
which have been set based on unaudited data.
(d) An audit shall be conducted annually or
at less frequent intervals.
(5)
(a) A VA
NF shall maintain and make available any records and data necessary to justify
and document:
1. Costs to the VA NF;
and
2. Services performed and drugs
provided by the VA NF.
(b) The department shall have unlimited
on-site access to all of a VA NF's fiscal and service records for the purpose
of:
1. Accounting;
2. Auditing;
3. Medical review;
4. Utilization control; or
5. Program planning.
Section 7. Preadmission
Screening Resident Review (PASRR).
(1) Prior
to an admission of an individual to a VA NF, a VA NF shall conduct a level I
PASRR in accordance with
907 KAR
1:755.
(2)
(a) The department shall not reimburse a VA
NF for a service delivered to an individual if the VA NF did not comply with
the requirements of
907 KAR
1:755.
(b)
Failure to comply with
907 KAR
1:755 may be grounds for termination of a VA NF's
participation in the Medicaid Program.
Section 8. No Duplication of Service. The
department shall not reimburse for a service provided by a VA NF to a recipient
if the same service is provided at the same time to the recipient by another
Medicaid program provider.
Section
9. Records Maintenance, Protection, and Security.
(1)
(a) A
VA NF shall maintain a current health record for each recipient.
(b)
1. A
health record shall document each service provided to the recipient including
the date of the service and the signature of the individual who provided the
service.
2. The individual who
provided the service shall date and sign the health record on the date that the
individual provided the service.
(2)
(a) A VA
NF shall maintain a health record regarding a recipient for at least five (5)
years from the date of the service.
(b) If the United States Department of Health
and Human Services secretary requires a longer document retention period than
the period referenced in paragraph (a) of this subsection, pursuant to
42 C.F.R.
431.17, the period established by the
secretary shall be the required period.
(3) A VA NF shall comply with 45 C.F.R. Part
164 .
Section 10.
Medicaid Program Participation Compliance.
(1)
A VA NF shall comply with:
(a)
907
KAR 1:671;
(b)
907
KAR 1:672; and
(c) All applicable state and federal
laws.
(2)
(a) If a VA NF receives any duplicate payment
or overpayment from the department, regardless of reason, the VA NF shall
return the payment to the department.
(b) Failure to return a payment to the
department in accordance with paragraph (a) of this subsection may be:
1. Interpreted to be fraud or abuse;
and
2. Prosecuted in accordance
with applicable federal or state law.
Section 11. Third Party Liability.
A VA NF shall comply with
KRS
205.622.
Section 12. Use of Electronic Signatures.
(1) The creation, transmission, storage, and
other use of electronic signatures and documents shall comply with the
requirements established in
KRS
369.101 to
369.120.
(2) A VA NF that chooses to use electronic
signatures shall:
(a) Develop and implement a
written security policy that shall:
1. Be
adhered to by each of the VA NF's employees, officers, agents, or
contractors;
2. Identify each
electronic signature for which an individual has access; and
3. Ensure that each electronic signature is
created, transmitted, and stored in a secure fashion;
(b) Develop a consent form that shall:
1. Be completed and executed by each
individual using an electronic signature;
2. Attest to the signature's authenticity;
and
3. Include a statement
indicating that the individual has been notified of his or her responsibility
in allowing the use of the electronic signature; and
(c) Provide the department, immediately upon
request, with:
1. A copy of the VA NF's
electronic signature policy;
2. The
signed consent form; and
3. The
original filed signature.
Section 13. Auditing Authority. The
department shall have the authority to audit any claim, medical record, or
documentation associated with any claim or medical record.
Section 14. Federal Approval and Federal
Financial Participation. The department's reimbursement and coverage of
services and drugs pursuant to this administrative regulation shall be
contingent upon:
(1) Receipt of federal
financial participation for the reimbursement and coverage; and
(2) Centers for Medicare and Medicaid
Services' approval for the reimbursement and coverage.
Section 15. Appeal Rights. A participating VA
NF may appeal a department decision as to the application of this
administrative regulation as it impacts the VA NF's reimbursement in accordance
with
907
KAR 1:671.
STATUTORY AUTHORITY:
KRS
194A.030(2),
194A.050(1),
205.520(3)