Current through Reg. 49, No. 38; September 20, 2024
(a) Direct care
staff cost center. This cost center will include compensation for employee and
contract labor Registered Nurses (RNs), including Directors of Nursing (DONs)
and Assistant Directors of Nursing (ADONs); Licensed Vocational Nurses (LVNs),
including DONs and ADONs; medication aides; and nurse aides performing
nursing-related duties for Medicaid contracted beds.
(1) Compensation to be included for these
employee staff types is the allowable compensation defined in §
355.103(b)(1) of
this title (relating to Specifications for Allowable and Unallowable Costs)
that is reported as either salaries and/or wages (including payroll taxes and
workers' compensation) or employee benefits. Benefits required by §
355.103(b)(1)(A)(iii)
of this title to be reported as costs applicable to specific cost report line
items are not to be included in this cost center.
(2) Direct care staff who also have
administrative duties not related to nursing must properly direct charge their
compensation to each type of function performed based upon daily time sheets
maintained throughout the entire reporting period.
(3) Nurse aides must meet the qualifications
enumerated under 26 TAC §
556.3(relating to Nurse Aide
Training and Competency Evaluation Program (NATCEP) Requirements) to be
included in this cost center. Nurse aides include certified nurse aides and
nurse aides in training.
(4)
Contract labor refers to personnel for whom the contracted provider is not
responsible for the payment of payroll taxes (such as FICA, Medicare, and
federal and state unemployment insurance) and who perform tasks routinely
performed by employees. Allowable contract labor costs are defined in §
355.103(b)(3) of
this title.
(5) For facilities
receiving supplemental reimbursement for children with tracheostomies requiring
daily care as described in §
355.307(b)(3)(F)
of this title (relating to Reimbursement Setting Methodology), staff required
by 26 TAC §
554.901(15)(C)(iii)
(relating to Quality of Care) performing nursing-related duties for Medicaid
contracted beds are included in the direct care staff cost center.
(6) For facilities receiving supplemental
reimbursement for qualifying ventilator-dependent residents as described in
§
355.307(b)(3)(E)
of this title, Registered Respiratory Therapists and Certified Respiratory
Therapy Technicians are included in the direct care staff cost
center.
(7) Nursing facility
administrators and assistant administrators are not included in the direct care
staff cost center.
(8) Staff
members performing more than one function in a facility without a differential
in pay between functions are categorized at the highest level of licensure or
certification they possess. If this highest level of licensure or certification
is not that of an RN, LVN, medication aide, or certified nurse aide, the staff
member is not to be included in the direct care staff cost center but rather in
the cost center where staff members with that licensure or certification status
are typically reported.
(9) Paid
feeding assistants are not included in the direct care staff cost center and
are not to be counted toward the staffing requirements described in subsection
(j) of this section. Paid feeding assistants are intended to supplement
certified nurse aides, not to be a substitute for certified or licensed nursing
staff.
(b) Rate year. The
standard rate year begins on the first day of September and ends on the last
day of August of the following year.
(c) Open enrollment. Open enrollment for the
enhanced direct care staff rates will begin on the first day of July and end on
the last day of that same July preceding the rate year for which payments are
being determined. HHSC notifies providers of open enrollment by electronic mail
(e-mail) to an authorized representative per the signature authority
designation form applicable to the provider's contract or ownership type. If
open enrollment has been postponed or cancelled, the Texas Health and Human
Services Commission (HHSC) will notify providers by e-mail prior to the first
day of July. Should conditions warrant, HHSC may conduct additional enrollment
periods during a rate year.
(d)
Enrollment contract amendment. An initial enrollment contract amendment is
required from each facility choosing to participate in the enhanced direct care
staff rate. Participating and nonparticipating facilities may request to modify
their enrollment status (i.e., a nonparticipant can request to become a
participant, a participant can request to become a nonparticipant, a
participant can request to change its enhancement level) during any open
enrollment period. Nonparticipants and participants requesting to increase
their enrollment levels will be limited to requesting increases of three or
fewer enhancement levels during any single open enrollment period unless such
limits are waived by HHSC. Requests to modify a facility's enrollment status
during an open enrollment period must be received by HHSC by the last day of
the open enrollment period as per subsection (c) of this section. If the last
day of the open enrollment period falls on a weekend, a national holiday, or a
state holiday, then the first business day following the last day of the open
enrollment period is the final day the receipt of the enrollment contract
amendment will be accepted. An enrollment contract amendment that is not
received by the stated deadline will not be accepted. A facility from which
HHSC has not received an acceptable request to modify their enrollment by the
last day of the open enrollment period will continue at the level of
participation in effect during the open enrollment period within available
funds until the facility notifies HHSC in accordance with subsection (r) of
this section that it no longer wishes to participate or until the facility's
enrollment is limited in accordance with subsection (i) of this section. If
HHSC determines that funds are not available to continue participation at the
level of participation in effect during the open enrollment period, facilities
will be notified as per subsection (dd) of this section. To be acceptable, an
enrollment contract amendment must be completed according to instructions,
signed by an authorized representative as per the HHSC signature authority
designation form applicable to the provider's contract or ownership type, and
be legible.
(e) New facilities. For
purposes of this section, for each rate year a new facility is defined as a
facility delivering its first day of service to a Medicaid recipient after the
first day of the open enrollment period, as defined in subsection (c) of this
section, for that rate year. Facilities that underwent an ownership change are
not considered new facilities. For purposes of this subsection, an acceptable
enrollment contract amendment is defined as a legible enrollment contract
amendment that has been completed according to instructions, signed by an
authorized representative as per the HHSC signature authority designation form
applicable to the provider's contract or ownership type, and received by HHSC
within 30 days of the notification to the facility by HHSC that such an
enrollment contract amendment must be submitted. New facilities will receive
the direct care staff base rate as determined in subsection (k) of this section
with no enhancements. For new facilities specifying their desire to participate
on an acceptable enrollment contract amendment, the direct care staff rate is
adjusted as specified in subsection (l) of this section, effective on the first
day of the month following receipt by HHSC of the acceptable enrollment
contract amendment. If the granting of newly requested enhancements was limited
as per subsection (j)(3) of this section during the most recent enrollment,
enrollment for new facilities will be subject to that same
limitation.
(f) Staffing and
Compensation Report submittal requirements.
(1) Annual Staffing and Compensation Report.
For services delivered on or before August 31, 2009, providers must file
Staffing and Compensation Reports as follows. All participating facilities will
provide HHSC, in a method specified by HHSC, an Annual Staffing and
Compensation Report reflecting the activities of the facility while delivering
contracted services from the first day of the rate year through the last day of
the rate year. This report will be used as the basis for determining compliance
with the staffing requirements and recoupment amounts as described in
subsection (n) of this section, and as the basis for determining the spending
requirements and recoupment amounts as described in subsection (o) of this
section. Participating facilities failing to submit an acceptable Annual
Staffing and Compensation Report within 60 days of the end of the rate year
will be placed on vendor hold until such time as an acceptable report is
received and processed by HHSC.
(A) When a
participating facility changes ownership, the prior owner must submit a
Staffing and Compensation Report covering the period from the beginning of the
rate year to the date recognized by HHSC or its designee as the
ownership-change effective date. This report will be used as the basis for
determining any recoupment amounts as described in subsections (n) and (o) of
this section. The new owner will be required to submit a Staffing and
Compensation Report covering the period from the day after the date recognized
by HHSC or its designee as the ownership-change effective date to the end of
the rate year.
(B) Participating
facilities whose contracts are terminated either voluntarily or involuntarily
must submit a Staffing and Compensation Report covering the period from the
beginning of the rate year to the date recognized by HHSC or its designee as
the contract termination date. This report will be used as the basis for
determining any recoupment amounts as described in subsections (n) and (o) of
this section.
(C) Participating
facilities who voluntarily withdraw from participation as per subsection (r) of
this section must submit a Staffing and Compensation Report within 60 days of
the date of withdrawal as determined by HHSC, covering the period from the
beginning of the rate year to the date of withdrawal as determined by HHSC.
This report will be used as the basis for determining any recoupment amounts as
described in subsections (n) and (o) of this section.
(D) Participating facilities whose cost
report year coincides with the state of Texas fiscal year as per §
355.105(b)(5) of
this title (relating to General Reporting and Documentation Requirements,
Methods, and Procedures) are exempt from the requirement to submit a separate
Annual Staffing and Compensation Report. For these facilities, their cost
report will be considered their Annual Staffing and Compensation
Report.
(2) For services
delivered on September 1, 2009, and thereafter, cost reports as described in
§
355.105(b) of this
title will replace the Staffing and Compensation Report with the following
exceptions:
(A) For services delivered from
September 1, 2009, to August 31, 2010, participating facilities may be required
to submit Transition Staffing and Compensation Reports in addition to required
cost reports. The Transition Staffing and Compensation Report reporting period
will include those days in calendar years 2009 and 2010 not included in either
the 2009 Staffing and Compensation report or the facility's 2010 cost
report.
(B) When a participating
facility changes ownership, the prior owner must submit a Staffing and
Compensation Report covering the period from the beginning of the facility's
cost reporting period to the date recognized by HHSC or its designee as the
ownership-change effective date. This report will be used as the basis for
determining any recoupment amounts as described in subsections (n) and (o) of
this section. The new owner will be required to submit a cost report covering
the period from the day after the date recognized by HHSC or its designee as
the ownership-change effective date to the end of the facility's fiscal
year.
(C) Participating facilities
whose contracts are terminated either voluntarily or involuntarily must submit
a Staffing and Compensation Report covering the period from the beginning of
the facility's cost reporting period to the date recognized by HHSC or its
designee as the contract termination date. This report will be used as the
basis for determining any recoupment amounts as described in subsections (n)
and (o) of this section.
(D)
Participating facilities who voluntarily withdraw from participation as per
subsection (r) of this section must submit a Staffing and Compensation Report
within 60 days of the date of withdrawal as determined by HHSC, covering the
period from the beginning of the facility's cost reporting period to the date
of withdrawal as determined by HHSC. This report will be used as the basis for
determining any recoupment amounts as described in subsections (n) and (o) of
this section. These facilities must still submit a cost report covering the
entire cost reporting period. The cost report will not be used for determining
any recoupment amounts.
(E) For new
facilities as defined in subsection (e) of this section, the cost reporting
period will begin with the effective date of participation in
enhancement.
(F) Existing
facilities which become participants in the enhancement as a result of the open
enrollment process described in subsection (c) of this section on any day other
than the first day of their fiscal year are required to submit a Staffing and
Compensation Report with a reporting period that begins on their first day of
participation in the enhancement and ends on the last day of the facility's
fiscal year. This report will be used as the basis for determining any
recoupment amounts as described in subsections (n) and (o) of this section.
These facilities must still submit a cost report covering the entire cost
reporting period. The cost report will not be used for determining any
recoupment amounts.
(G) A
participating provider that is required to submit a cost report or Attendant
Compensation Report under this paragraph will be excused from the requirement
to submit a report if the provider did not provide any billable services to
DADS recipients during the reporting period.
(3) Other reports. HHSC may require other
Staffing and Compensation Reports from all facilities as needed.
(4) Vendor hold. HHSC or its designee will
place on hold the vendor payments for any participating facility that does not
submit a timely report as described in paragraph (1) of this subsection, or for
services delivered on or after September 1, 2009, a timely report as described
in paragraph (2) of this subsection completed in accordance with all applicable
rules and instructions. This vendor hold will remain in effect until HHSC
receives an acceptable report.
(A)
Participating facilities that do not submit an acceptable report completed in
accordance with all applicable rules and instructions within 60 days of the due
dates described in this subsection or, for cost reports, the due dates
described in §
355.105(b) of this
title, will become nonparticipants retroactive to the first day of the
reporting period in question and will be subject to an immediate recoupment of
funds related to participation paid to the facility for services provided
during the reporting period in question. These facilities will remain
nonparticipants and recouped funds will not be restored until they submit an
acceptable report and repay to HHSC, or its designee, funds identified for
recoupment from subsections (n) and/or (o) of this section. If an acceptable
report is not received within 365 days of the due date, the recoupment will
become permanent and, if all funds associated with participation during the
reporting period in question have been recouped by HHSC or its designee, the
vendor hold associated with the report will be released.
(B) Participating facilities with an
ownership change or contract termination that do not submit an acceptable
report completed in accordance with all applicable rules and instructions
within 60 days of the change in ownership or contract termination will become
nonparticipants retroactive to the first day of the reporting period in
question and will be subject to an immediate recoupment of funds related to
participation paid to the facility for services provided during the reporting
period in question. These facilities will remain nonparticipants and recouped
funds will not be restored until they submit an acceptable report and repay to
HHSC or its designee funds identified for recoupment from subsections (n)
and/or (o) of this section. If an acceptable report is not received within 365
days of the change of ownership or contract termination date, the recoupment
will become permanent and if all funds associated with participation during the
reporting period in question have been recouped by HHSC or its designee, the
vendor hold associated with the report will be released.
(5) Provider-initiated amended accountability
reports and cost reports functioning as Staffing and Compensation Reports.
Reports must be received prior to the date the provider is notified of
compliance with spending and/or staffing requirements for the report in
question as per subsections (n) and/or (o) of this section.
(g) Report contents. Annual
Staffing and Compensation Reports and cost reports functioning as Staffing and
Compensation Reports will include any information required by HHSC to implement
this enhanced direct care staff rate.
(h) Completion of Reports. All Staffing and
Compensation Reports and cost reports functioning as Staffing and Compensation
Reports must be completed in accordance with the provisions of §§
355.102-
355.105 of this title (relating to
General Principles of Allowable and Unallowable Costs; Specifications for
Allowable and Unallowable Costs; Revenues; and General Reporting and
Documentation Requirements, Methods, and Procedures) and may be reviewed or
audited in accordance with §
355.106 of this title (relating to
Basic Objectives and Criteria for Audit and Desk Review of Cost Reports).
Beginning with the state fiscal year 2002 report, all Staffing and Compensation
Reports and cost reports functioning as Staffing and Compensation Reports must
be completed by preparers who have attended the required nursing facility cost
report training as per §
355.102(d) of this
title.
(i) Enrollment limitations.
A facility will not be enrolled in the enhanced direct care staff rate at a
level higher than the level it achieved on its most recently available, audited
Staffing and Compensation Report or cost report functioning as its Staffing and
Compensation Report. HHSC will notify a facility of its enrollment limitations
(if any) prior to the first day of the open enrollment period.
(1) Notification of enrollment limitations.
The enrollment limitation level is indicated in the State of Texas Automated
Information Reporting System (STAIRS), the online application for submitting
cost reports and accountability reports. STAIRS will generate an e-mail to the
entity contact, indicating that the facility's enrollment limitation level is
available for review. The entity contact is the provider's authorized
representative per the signature authority designation form applicable to the
provider's contract or ownership type.
(2) At no time will a facility be allowed to
enroll in the enhancement program at a level higher than its current level of
enrollment plus three additional levels unless otherwise instructed by
HHSC.
(3) New owners after a change
of ownership. Enhancement levels for a new owner after a change of ownership
will be determined in accordance with subsection (y) of this section. A new
owner will not be subject to enrollment limitations based upon the prior
owner's performance. This exemption from enrollment limitations does not apply
in cases where HHSC or its designee has approved a
successor-liability-agreement that transfers responsibility from the former
owner to the new owner.
(4) New
facilities. A new facility's enrollment will be determined in accordance with
subsection (e) of this section.
(j) Determination of staffing requirements
for participants. Facilities choosing to participate in the enhanced direct
care staff rate agree to maintain certain direct care staffing levels above the
minimum staffing levels described in paragraph (1) of this subsection. In order
to permit facilities the flexibility to substitute RN, LVN and aide (Medication
Aide and nurse aide) staff resources and, at the same time, comply with an
overall nursing staff requirement, total nursing staff requirements are
expressed in terms of LVN equivalent minutes. Conversion factors to convert RN
and aide minutes into LVN equivalent minutes are based upon most recently
available, reliable relative compensation levels for the different staff types.
(1) Minimum staffing levels. HHSC determines,
for each participating facility, minimum LVN equivalent staffing levels as
follows.
(A) Determine minimum required LVN
equivalent minutes per resident day of service for various types of residents
using time study data, cost report information, and other appropriate data
sources.
(i) Determine LVN equivalent minutes
associated with Medicare residents based on the data sources from this
subparagraph adjusted for estimated acuity differences between Medicare and
Medicaid residents.
(ii) Determine
minimum required LVN equivalent minutes per resident day of service associated
with each Resource Utilization Group (RUG-III) case mix group and additional
minimum required minutes for Medicaid residents reimbursed under the RUG-III
system who also qualify for supplemental reimbursement for ventilator care or
pediatric tracheostomy care as described in §
355.307 of this title (relating to
Reimbursement Setting Methodology) based on the data sources from this
subparagraph adjusted for acuity differences between Medicare and Medicaid
residents and other factors.
(B) Based on most recently available,
reliable utilization data, determine for each facility the total days of
service by RUG-III group, days of service provided to Medicaid residents
qualifying for Medicaid supplemental reimbursement for ventilator or
tracheostomy care, total days of service for Medicare Part A residents in
Medicaid-contracted beds, and total days of service for all other residents in
Medicaid-contracted beds.
(C)
Multiply the minimum required LVN equivalent minutes for each RUG-III group and
supplemental reimbursement group from subparagraph (A) of this paragraph by the
facility's Medicaid days of service in each RUG-III group and supplemental
reimbursement group from subparagraph (B) of this paragraph and sum the
products.
(D) Multiply the minimum
required LVN equivalent minutes for Medicare residents by the facility's
Medicare Part A days of service in Medicaid-contracted beds.
(E) Divide the sum from subparagraph (C) of
this paragraph by the facility's total Medicaid days of service, with a day of
service for a Medicaid RUG-III recipient who also qualifies for a supplemental
reimbursement counted as one day of service, compare this result to the minimum
required LVN-equivalent minutes for a RUG-III PD1 and multiply the lower of the
two figures by the facility's other resident days of service in
Medicaid-contracted beds.
(F) Sum
the results of subparagraphs (C), (D) and (E) of this paragraph, divide the sum
by the facility's total days of service in Medicaid-contracted beds, with a day
of service for a Medicaid recipient who also qualifies for a supplemental
reimbursement counted as one day of service. The results of these calculations
are the minimum LVN equivalent minutes per resident day a participating
facility must provide.
(G) In cases
where the minimum required LVN-equivalent minutes per resident day of service
associated with a RUG-III case mix group or supplemental reimbursement group
change during the reporting period, the minimum required LVN-equivalent minutes
for the RUG-III case mix group or supplemental reimbursement group for the
reporting period will be equal to the weighted average LVN-equivalent minutes
in effect during the reporting period for that group calculated as follows:
(i) Multiply the first minimum required LVN
equivalent minutes per resident day of service associated with the RUG-III case
mix group or supplemental reimbursement group in effect during the reporting
period by the most recently available, reliable Medicaid days of service
utilization data for the time period the first minimum required LVN equivalent
minutes were in effect.
(ii)
Multiply the second minimum required LVN equivalent minutes per resident day of
service associated with the RUG-III case mix group or supplemental
reimbursement group in effect during the reporting period by the most recently
available, reliable Medicaid days of service utilization data for the time
period the second minimum required LVN equivalent minutes were in
effect.
(iii) Sum the products from
clauses (i) and (ii) of this subparagraph.
(iv) Divide the sum from clause (iii) of this
subparagraph by the sum of the most recently available, reliable Medicaid days
of service utilization data for the entire reporting period used in clauses (i)
and (ii) of this subparagraph.
(2) Enhanced staffing levels. Facilities
desiring to participate in the enhanced direct care staff rate are required to
staff above the minimum requirements from paragraph (1) of this subsection.
These facilities may request LVN-equivalent staffing enhancements from an array
of LVN-equivalent enhanced staffing options and associated add-on payments
during open enrollment under subsection (d) of this section.
(3) Granting of staffing enhancements. HHSC
divides all requested enhancements, after applying any enrollment limitations
from subsection (i) of this section, into two groups: pre-existing enhancements
that facilities request to carry over from the prior year and newly-requested
enhancements. Newly-requested enhancements may be enhancements requested by
facilities that were nonparticipants in the prior year or by facilities that
were participants in the prior year desiring to be granted additional
enhancements. Using the process described herein, HHSC first determines the
distribution of carry-over enhancements. If HHSC determines that funds are not
available to carry over some or all pre-existing enhancements, facilities will
be notified as per subsection (dd) of this section. If funds are available
after the distribution of carry-over enhancements, HHSC then determines the
distribution of newly requested enhancements. HHSC may not distribute newly
requested enhancements to facilities owing funds identified for recoupment from
subsections (n) and/or (o) of this section.
(A) HHSC determines projected Medicaid units
of service for facilities requesting each enhancement option and multiplies
this number by the rate add-on associated with that enhancement option as
determined in subsection (l) of this section.
(B) HHSC compares the sum of the products
from subparagraph (A) of this paragraph to available funds.
(i) If the product is less than or equal to
available funds, all requested enhancements are granted.
(ii) If the product is greater than available
funds, enhancements are granted beginning with the lowest level of enhancement
and granting each successive level of enhancement until requested enhancements
are granted within available funds. Based upon an examination of existing
staffing levels and staffing needs, HHSC may grant certain enhancement options
priority for distribution.
(4) Notification of granting of enhancements.
Participating facilities are notified, in a manner determined by HHSC, as to
the disposition of their request for staffing enhancements.
(5) In cases where more than one enhanced
staffing level is in effect during the reporting period, the staffing
requirement will be based on the weighted average enhanced staffing level in
effect during the reporting period calculated as follows:
(A) Multiply the first enhanced staffing
level in effect during the reporting period by the most recently available,
reliable Medicaid days of service utilization data for the time period the
first enhanced staffing level was in effect.
(B) Multiply the second enhanced staffing
level in effect during the reporting period by the most recently available,
reliable Medicaid days of service utilization data for the time period the
second enhanced staffing level was in effect.
(C) Sum the products from subparagraphs (A)
and (B) of this paragraph.
(D)
Divide the sum from subparagraph (C) of this paragraph by the sum of the most
recently available, reliable Medicaid days of service utilization data for the
entire reporting period used in subparagraphs (A) and (B) of this
paragraph.
(k)
Determination of direct care staff base rate.
(1) Determine the sum of recipient care costs
from the direct care staff cost center in subsection (a) of this section in all
nursing facilities included in the most recently available Texas Nursing
Facility Cost Report database (hereinafter referred to as the initial
database).
(2) Adjust the sum from
paragraph (1) of this subsection as specified in §
355.108 of this title (relating to
Determination of Inflation Indices) to inflate the costs to the prospective
rate year.
(3) Divide the result
from paragraph (2) of this subsection by the sum of recipient days of service
in all facilities in the initial database and multiply the result by 1.07. The
result is the average direct care staff base rate component for all
facilities.
(4) For rates effective
September 1, 2009 and thereafter, to calculate the direct care staff per diem
base rate component for all facilities for each of the RUG-III case mix groups
and for the default groups, divide each RUG-III index from §
355.307(b)(3)(C)
of this title (relating to Reimbursement Setting Methodology) by 0.9908, which
is the weighted average Texas Index for Level of Effort (TILE) case mix index
associated with the initial database, and then multiply each of the resulting
quotients by the average direct care staff base rate component from paragraph
(3) of this subsection.
(5) The
direct care staff per diem base rates will be limited to available levels of
appropriated state and federal funds as specified in §
355.201 of this chapter. HHSC may
also recommend adjustments to the rates in accordance with §
355.109 of this title (relating to
Adjusting Reimbursement When New Legislation, Regulations, or Economic Factors
Affect Costs).
(l)
Determine each participating facility's total direct care staff rate. Each
participating facility's total direct care staff rate will be equal to the
direct care staff base rate from subsection (k) of this section plus any add-on
payments associated with enhanced staffing levels selected by and awarded to
the facility during open enrollment. HHSC will determine a per diem add-on
payment for each enhanced staffing level taking into consideration the most
recently available, reliable data relating to LVN equivalent compensation
levels.
(m) Staffing requirements
for participating facilities. Each participating facility will be required to
maintain adjusted LVN-equivalent minutes equal to those determined in
subsection (j) of this section. Each participating facility's adjusted
LVN-equivalent minutes maintained during the reporting period will be
determined as follows.
(1) Determine
unadjusted LVN-equivalent minutes maintained. Upon receipt of the staffing and
spending information described in subsection (f) of this section, HHSC will
determine the unadjusted LVN-equivalent minutes maintained by each facility
during the reporting period.
(2)
Determine adjusted LVN-equivalent minutes maintained. Compare the unadjusted
LVN-equivalent minutes maintained by the facility during the reporting period
from paragraph (1) of this subsection to the LVN-equivalent minutes required of
the facility as determined in subsection (j) of this section. The adjusted
LVN-equivalent minutes are determined as follows:
(A) If the number of unadjusted
LVN-equivalent minutes maintained by the facility during the reporting period
is greater than or equal to the number of LVN-equivalent minutes required for
the facility or less than the minimum LVN-equivalent minutes required for
participation as determined in subsection (j)(1) of this section; the
facility's adjusted LVN-equivalent minutes maintained is equal to its
unadjusted LVN-equivalent minutes; or
(B) If the number of unadjusted
LVN-equivalent minutes maintained by the facility during the reporting period
is less than the number of LVN-equivalent minutes required of the facility, but
greater than or equal to the minimum LVN-equivalent minutes required for
participation as determined in subsection (j)(1) of this section, the following
steps are performed.
(i) Determine what the
facility's accrued Medicaid fee-for-service direct care revenue for the
reporting period would have been if their staffing requirement had been set at
a level consistent with the highest LVN-equivalent minutes that the facility
actually maintained, as defined in subsection (j) of this section.
(ii) Determine the facility's adjusted
accrued direct care revenue by multiplying the accrued direct care revenue from
clause (i) of this subparagraph by 0.85.
(iii) Determine the facility's accrued
allowable Medicaid fee-for-service direct care staff expenses for the rate
year.
(iv) Determine the facility's
direct care spending surplus for the reporting period by subtracting the
facility's adjusted accrued direct care revenue from clause (ii) of this
subparagraph from the facility's accrued allowable direct care expenses from
clause (iii) of this subparagraph.
(v) If the facility's direct care spending
surplus from clause (iv) of this subparagraph is less than or equal to zero,
the facility's adjusted LVN-equivalent minutes maintained is equal to the
unadjusted LVN-equivalent minutes maintained as calculated in paragraph (1) of
this subsection.
(vi) If the
facility's direct care spending surplus from clause (iv) of this subparagraph
is greater than zero, the adjusted LVN-equivalent minutes maintained by the
facility during the reporting period is set equal to the facility's direct care
spending surplus from clause (iv) of this subparagraph divided by the per diem
enhancement add-on as determined in subsection (l) of this section plus the
unadjusted LVN-equivalent minutes maintained by the facility during the
reporting period from paragraph (1) of this subsection according to the
following formula: (Direct Care Spending Surplus/Per Diem Enhancement Add-on
for One LVN-equivalent Minute) + Unadjusted LVN-equivalent Minutes.
(C) For adjusted LVN-equivalent
minutes calculated on or after March 1, 2004, requirements relating to the
minimum LVN-equivalent minutes required for participation in subparagraphs (A)
and (B) of this paragraph do not apply.
(n) Staffing accountability. Participating
facilities will be responsible for maintaining the staffing levels determined
in subsection (j) of this section. HHSC will determine the adjusted
LVN-equivalent minutes maintained by each facility during the reporting period
by the method described in subsection (m) of this section. HHSC or its designee
will recoup all direct care staff revenues associated with unmet staffing goals
from participating facilities that fail to meet their staffing requirements
during the reporting period.
(o)
Spending requirements for participants. Participating facilities are subject to
a direct care staff spending requirement with recoupment calculated as follows.
(1) Effective September 1, 2023, HHSC will
complete calculations associated with the direct care rate increases and
spending requirements in accordance with §
355.304 of this subchapter
(relating to Direct Care Staff Spending Requirement on or after September 1,
2023).
(2) At the end of the rate
year, a spending floor will be calculated by multiplying accrued Medicaid
fee-for-service and managed care direct care staff revenues by 0.70.
(3) Accrued allowable Medicaid direct care
staff fee-for-service expenses for the rate year will be compared to the
spending floor from paragraph (2) of this subsection. HHSC or its designee will
recoup the difference between the spending floor and accrued allowable Medicaid
direct care staff fee-for-service expenses from facilities whose Medicaid
direct care staff spending is less than their spending floor.
(4) At no time will a participating
facility's direct care rates after spending recoupment be less than the direct
care base rates.
(p)
Dietary and Fixed Capital Mitigation. Recoupment of funds described in
subsection (o) of this section may be mitigated by high dietary and/or fixed
capital expenses as follows.
(1) Calculate
dietary cost deficit. At the end of the facility's rate year, accrued Medicaid
dietary per diem revenues will be compared to accrued, allowable Medicaid
dietary per diem costs. If costs are greater than revenues, the dietary per
diem cost deficit will be equal to the difference between accrued, allowable
Medicaid dietary per diem costs and accrued Medicaid dietary per diem revenues.
If costs are less than revenues, the dietary cost deficit will be equal to
zero.
(2) Calculate dietary revenue
surplus. At the end of the facility's rate, accrued Medicaid dietary per diem
revenues will be compared to accrued, allowable Medicaid dietary per diem
costs. If revenues are greater than costs, the dietary per diem revenue surplus
will be equal to the difference between accrued Medicaid dietary per diem
revenues and accrued, allowable Medicaid dietary per diem costs. If revenues
are less than costs, the dietary revenue surplus will be equal to
zero.
(3) Calculate fixed capital
cost deficit. At the end of the facility's rate year, accrued Medicaid fixed
capital per diem revenues will be compared to accrued, allowable Medicaid fixed
capital per diem costs as defined in §
355.306(b)(2)(A)
of this title (relating to Cost Finding Methodology). If costs are greater than
revenues, the fixed capital cost per diem deficit will be equal to the
difference between accrued, allowable Medicaid fixed capital per diem costs and
accrued Medicaid fixed capital per diem revenues. If costs are less than
revenues, the fixed capital cost deficit will be equal to zero. For purposes of
this paragraph, fixed capital per diem costs of facilities with occupancy rates
below 85% are adjusted to the cost per diem the facility would have accrued had
it maintained an 85% occupancy rate throughout the rate year.
(4) Calculate fixed capital revenue surplus.
At the end of the facility's rate year, accrued Medicaid fixed capital per diem
revenues will be compared to accrued, allowable Medicaid fixed capital per diem
costs as defined in §
355.306(b)(2)(A)
of this title. If revenues are greater than costs, the fixed capital revenue
per diem surplus will be equal to the difference between accrued Medicaid fixed
capital per diem revenues and accrued, allowable Medicaid fixed capital per
diem costs. If revenues are less than costs, the fixed capital revenue surplus
will be equal to zero. For purposes of this paragraph, fixed capital per diem
costs of facilities with occupancy rates below 85% are adjusted to the cost per
diem the facility would have accrued had it maintained an 85% occupancy rate
throughout the rate year.
(5)
Facilities with a dietary per diem cost deficit will have their dietary per
diem cost deficit reduced by their fixed capital per diem revenue surplus, if
any. Any remaining dietary per diem cost deficit will be capped at $2.00 per
diem.
(6) Facilities with a fixed
capital cost per diem deficit will have their fixed capital cost per diem
deficit reduced by their dietary revenue per diem surplus, if any. Any
remaining fixed capital per diem cost deficit will be capped at $2.00 per
diem.
(7) Each facility's
recoupment, as calculated in subsection (o) of this section, will be reduced by
the sum of that facility's dietary per diem cost deficit as calculated in
paragraph (5) of this subsection and its fixed capital per diem cost deficit as
calculated in paragraph (6) of this subsection.
(q) Adjusting staffing requirements.
Facilities that determine that they will not be able to meet their staffing
requirements from subsection (m) of this section may request a reduction in
their staffing requirements and associated rate add-on. These requests will be
effective on the first day of the month following approval of the
request.
(r) Voluntary withdrawal.
Facilities wishing to withdraw from participation must notify HHSC in writing
by certified mail and the request must be signed by an authorized
representative as designated per the HHSC signature authority designation form
applicable to the provider's contract or ownership type. Facilities voluntarily
withdrawing must remain nonparticipants for the remainder of the rate year.
Facilities that voluntarily withdraw from participation will have their
participation end effective on the date of the withdrawal, as determined by
HHSC.
(s) Notification of
recoupment based on Annual Staffing and Compensation Report or cost report. The
estimated amount to be recouped is indicated in STAIRS. STAIRS will generate an
e-mail to the entity contact, indicating that the facility's estimated
recoupment is available for review. If a subsequent review by HHSC or audit
results in adjustments to the Annual Staffing and Compensation Report or cost
report as described in subsection (f) of this section that changes the amount
to be repaid to HHSC or its designee, the facility will be notified by e-mail
to the entity contact that the adjustments and the adjusted amount to be repaid
are available in STAIRS for review. HHSC or its designee will recoup any amount
owed from a facility's vendor payment(s) following the date of the initial or
subsequent notification.
(t) Change
of ownership and contract terminations. Facilities required to submit a
Staffing and Compensation Report due to a change of ownership or contract
termination as described in subsection (f) of this section will have funds held
as per 26 TAC §
554.210(relating to Change of
Ownership and Notice of Changes) until an acceptable Staffing and Compensation
Report is received by HHSC and funds identified for recoupment from subsections
(n) and/or (o) of this section are repaid to HHSC or its designee. Informal
reviews and formal appeals relating to these reports are governed by §
355.110 of this title (relating to
Informal Reviews and Formal Appeals). HHSC or its designee will recoup any
amount owed from the facility's vendor payments that are being held. In cases
where funds identified for recoupment cannot be repaid from the held vendor
payments, the responsible entity from subsection (x) of this section will be
jointly and severally liable for any additional payment due to HHSC or its
designee. Failure to repay the amount due or submit an acceptable payment plan
within 60 days of notification will result in the recoupment of the owed funds
from other Medicaid contracts controlled by the responsible entity, placement
of a vendor hold on all Medicaid contracts controlled by the responsible entity
and will bar the responsible entity from receiving any new contracts with HHSC
or its designees until repayment is made in full. The responsible entity for
these contracts will be notified as described in subsection (s) of this section
prior to the recoupment of owed funds, placement of vendor hold and barring of
new contracts.
(u) Failure to
document staff time and spending. Undocumented direct care staff and contract
labor time and compensation costs will be disallowed and will not be used in
the determination of direct care staff time and costs per unit of
service.
(v) All other rate
components. All other rate components will be calculated as specified in §
355.307 of this title (relating to
Reimbursement Setting Methodology) and will be uniform for all
providers.
(w) Appeals. Subject
matter of informal reviews and formal appeals is limited as per §
355.110(a)(3) of
this title (relating to Informal Reviews and Formal Appeals).
(x) Responsible entities. The contracted
provider, owner, or legal entity that received the revenue to be recouped upon
is responsible for the repayment of any recoupment amount.
(y) Change of ownership. Participation in the
enhanced direct care staff rate confers to the new owner as defined in 26 TAC
§
554.210(relating to Change of
Ownership and Notice of Changes) when there is a change of ownership. The new
owner is responsible for the reporting requirements in subsection (f) of this
section for any reporting period days occurring after the change. If the change
of ownership occurs during an open enrollment period as defined in subsection
(c) of this section, then the owner recognized by HHSC or its designee on the
last day of the enrollment period may request to modify the enrollment status
of the facility in accordance with subsection (d) of this section.
(z) Contract cancellations. If a facility's
Medicaid contract is cancelled before the first day of an open enrollment
period as defined in subsection (c) of this section and the facility is not
granted a new contract until after the last day of the open enrollment period,
participation in the enhanced direct care staff rate as it existed prior to the
date when the facility's contract was cancelled will be reinstated when the
facility is granted a new contract, if it remains under the same ownership,
subject to the availability of funding. Any enrollment limitations from
subsection (i) of this section that would have applied to the cancelled
contract will apply to the new contract.
(aa) Determination of compliance with
spending requirements in the aggregate.
(1)
Definitions. The following words and terms have the following meanings when
used in this subsection.
(A) Commonly owned
corporations--two or more corporations where five or fewer identical persons
who are individuals, estates, or trusts control greater than 50 percent of the
total voting power in each corporation.
(B) Entity--a parent company, sole member,
individual, limited partnership, or group of limited partnerships controlled by
the same general partner.
(C)
Combined entity--one or more commonly owned corporations and one or more
limited partnerships where the general partner is controlled by the same
person(s) as the commonly owned corporation(s).
(D) Control--greater than 50 percent
ownership by the entity.
(2) Aggregation. For an entity, commonly
owned corporation, or combined entity that controls more than one participating
nursing facility contract, compliance with the spending requirements detailed
in subsection (o) of this section can be determined in the aggregate for all
participating nursing facility contracts controlled by the entity, commonly
owned corporations, or combined entity at the end of the rate year, the
effective date of the change of ownership of its last participating NF
contract, or the effective date of the termination of its last participating NF
contract rather than requiring each contract to meet its spending requirement
individually. Corporations that do not meet the definitions under paragraph
(1)(A) - (C) of this subsection are not eligible for aggregation to meet
spending requirements.
(A) Aggregation
Request. To exercise aggregation, the entity, combined entity, or commonly
owned corporations must submit an aggregation request, in a manner prescribed
by HHSC, at the time each Staffing and Compensation Report or cost report is
submitted. In limited partnerships in which the same single general partner
controls all the limited partnerships, the single general partner must make
this request. Other such aggregation requests will be reviewed on a
case-by-case basis.
(B) Frequency
of Aggregation Requests. The entity, combined entity, or commonly owned
corporations must submit a separate request for aggregation for each reporting
period.
(C) Ownership changes or
terminations. Nursing facility contracts that change ownership or terminate
effective after the end of the applicable reporting period, but prior to the
determination of compliance with spending requirements as per subsection (o) of
this section, are excluded from all aggregate spending calculations. These
contracts' compliance with spending requirements will be determined on an
individual basis and the costs and revenues will not be included in the
aggregate spending calculation.
(bb) Medicaid Swing Bed Program for Rural
Hospitals. When a rural hospital participating in the Medicaid swing bed
program furnishes NF nursing care to a Medicaid recipient under 26 TAC §
554.2326(relating to Medicaid
Swing Bed Program for Rural Hospitals), HHSC or its designee makes payment to
the hospital using the same procedures, the same case-mix methodology, and the
same RUG-III rates that HHSC authorizes for reimbursing NFs receiving the
direct care staff base rate with no enhancement levels. These hospitals are not
subject to the staffing and spending requirements detailed in this
section.
(cc) Disclaimer. Nothing
in these rules should be construed as preventing facilities from adding direct
care staff in addition to those funded by the enhanced direct care staff
rate.
(dd) Notification of lack of
available funds. If HHSC determines that funds are not available to continue
participation for facilities from which it has not received an acceptable
request to modify their enrollment by the last day of an enrollment period as
per subsection (d) of this section or to fund carry-over enhancements as per
subsection (j)(3) of this section, HHSC will notify providers in a manner
determined by HHSC that such funds are not available.
