Current through Register Vol. 54, No. 12, March 23, 2024
(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.
This section cited in 55 Pa. Code §
1187.108 (relating to gross
adjustments to nursing facility
payments).
