Second Substitute H.B. 397

This document includes House Floor Amendments incorporated into the bill on Fri, Mar 5, 2010 at 4:14 PM by lerror. --> This document includes Senate 3rd Reading Floor Amendments incorporated into the bill on Tue, Mar 9, 2010 at 10:28 AM by lwells. -->

Representative John Dougall proposes the following substitute bill:

1 MEDICAID PROGRAM AMENDMENTS
2 2010 GENERAL SESSION
3 STATE OF UTAH
4 Chief Sponsor: John Dougall
5 Senate Sponsor: Daniel R. Liljenquist
6
7 LONG TITLE
8 General Description:
9 This bill amends Medicaid provisions of the Utah Code.
10 Highlighted Provisions:
11 This bill:
12 . requires the Department of Health to conduct a certain level of internal audits of the
13 Medicaid program;
14 . requires the Department of Health to study and report:
15 . direct contracting for primary care services; and
16 . the feasibility of establishing a medical homes model;
16a H. . requires the Department of Human Services to report to the Legislature when
16b changes to the state Medicaid plan, or a Medicaid waiver effect the care of children and youth
16c in custody of the Division of Child and Family Services or the Division of Juvenile Justice
16d Services; .H
17 . allows the Department of Health to apply for and, if approved, implement a
18 program for health opportunity accounts;
19 . requires certain funds to be deposited in the Medicaid Restricted Account; and
20 . expands the use of the Nursing Care Facilities Account, which was established to
21 assist nursing care facilities providing services under the Medicaid program.
22 Monies Appropriated in this Bill:
23 None
24 Other Special Clauses:
25 None

26 Utah Code Sections Affected:
27 AMENDS:
28 26-18-3, as last amended by Laws of Utah 2008, Chapters 62 and 382
29 26-18-402, as last amended by Laws of Utah 2009, Chapters 13 and 199
30 26-35a-106, as last amended by Laws of Utah 2008, Chapter 382
31 RENUMBERS AND AMENDS:
32 26-10-101, (Renumbered from 26-18-301, as last amended by Laws of Utah 2008,
33 Chapter 159)
34 26-10-102, (Renumbered from 26-18-302, as last amended by Laws of Utah 2008,
35 Chapter 159)
36 26-10-103, (Renumbered from 26-18-303, as enacted by Laws of Utah 1993, Chapter
37 255)
38 26-10-104, (Renumbered from 26-18-304, as last amended by Laws of Utah 2008,
39 Chapters 159 and 382)
40 26-10-105, (Renumbered from 26-18-305, as last amended by Laws of Utah 2006,
41 Chapter 116)
42
43 Be it enacted by the Legislature of the state of Utah:
44 Section 1. Section 26-10-101 , which is renumbered from Section 26-18-301 is
45 renumbered and amended to read:
46 [26-18-301]. 26-10-101. Definitions.
47 As used in this part:
48 (1) "Community based organization":
49 (a) means a private entity; and
50 (b) includes for profit and not for profit entities.
51 (2) "Cultural competence" means a set of congruent behaviors, attitudes, and policies
52 that come together in a system, agency, or profession and enables that system, agency, or
53 profession to work effectively in cross-cultural situations.
54 (3) "Health literacy" means the degree to which an individual has the capacity to
55 obtain, process, and understand health information and services needed to make appropriate
56 health decisions.

57 (4) "Institutional capacity" means the ability of a community based organization to
58 implement public and private contracts.
59 (5) "Medically underserved population" means the population of an urban or rural area
60 or a population group designated by the department as having a shortage of primary health care
61 services.
62 (6) "Primary health care" means:
63 (a) basic and general health care services given when a person seeks assistance to
64 screen for or to prevent illness and disease, or for simple and common illnesses and injuries;
65 and
66 (b) care given for the management of chronic diseases.
67 (7) "Primary health care services" include[, but are not limited to]:
68 (a) services of physicians, nurses, physician's assistants, and dentists licensed to
69 practice in this state under Title 58, Occupations and Professions;
70 (b) diagnostic and radiologic services;
71 (c) preventive health services including, [but not limited to,] perinatal services,
72 well-child services, and other services that seek to prevent disease or its consequences;
73 (d) emergency medical services;
74 (e) preventive dental services; and
75 (f) pharmaceutical services.
76 Section 2. Section 26-10-102 , which is renumbered from Section 26-18-302 is
77 renumbered and amended to read:
78 [26-18-302]. 26-10-102. Department to award grants and contracts --
79 Applications.
80 (1) (a) Within appropriations specified by the Legislature for this purpose, the
81 department may make grants to public and nonprofit entities for the cost of operation of
82 providing primary health care services to medically underserved populations.
83 (b) The department may, as funding permits, contract with community based
84 organizations for the purpose of developing culturally and linguistically appropriate programs
85 and services for low income and medically underserved populations through a pilot program to
86 accomplish one or more of the following:
87 (i) to educate individuals:

88 (A) to use private and public health care coverage programs, products, services, and
89 resources in a timely, effective, and responsible manner;
90 (B) to make prudent use of private and public health care resources;
91 (C) to pursue preventive health care, health screenings, and disease management; and
92 (D) to locate health care programs and services;
93 (ii) to assist individuals to develop:
94 (A) personal health management;
95 (B) self-sufficiency in daily care; and
96 (C) life and disease management skills;
97 (iii) to support translation of health materials and information;
98 (iv) to facilitate an individual's access to primary care services and providers, including
99 mental health services; and
100 (v) to measure and report empirical results of the pilot project.
101 (2) (a) Grants by the department shall be awarded based on:
102 (i) applications submitted to the department in the manner and form prescribed by the
103 department; and
104 (ii) the criteria established in Section [ 26-18-303 ] 26-10-103 .
105 (b) The application for a grant under Subsection (2)(a) shall contain:
106 (i) a requested award amount;
107 (ii) a budget; and
108 (iii) a narrative plan of the manner in which the applicant intends to provide the
109 primary health care services described in Subsection [ 26-18-301 ] 26-10-101 (7).
110 (c) A contract bid for a service under Subsection (1)(b):
111 (i) shall be awarded in accordance with Title 63G, Chapter 6, Utah Procurement Code;
112 (ii) must include the information described in Section [ 26-18-303 ] 26-10-103 ; and
113 (iii) is subject to Subsection (3) of this section.
114 (3) (a) An applicant under this chapter must demonstrate to the department that the
115 applicant will not deny services to a person because of the person's inability to pay for the
116 services.
117 (b) Subsection (3)(a) does not preclude an applicant from seeking payment from the
118 person receiving services, a third party, or a government agency if:

119 (i) the applicant is authorized to charge for the services; and
120 (ii) the person, third party, or government agency is under legal obligation to pay the
121 charges.
122 (4) The department shall maximize the use of federal matching funds received for
123 services under Subsection (1)(b) to fund additional contracts under Subsection (1)(b).
124 Section 3. Section 26-10-103 , which is renumbered from Section 26-18-303 is
125 renumbered and amended to read:
126 [26-18-303]. 26-10-103. Content of applications.
127 Applications for grants under this chapter shall include:
128 (1) a statement of specific, measurable objectives, and the methods to be used to assess
129 the achievement of those objectives;
130 (2) the precise boundaries of the area to be served by the entity making the application,
131 including a description of the medically underserved population to be served by the grant;
132 (3) the results of an assessment of need demonstrating that the population to be served
133 has a need for the services provided by the applicant;
134 (4) a description of the personnel responsible for carrying out the activities of the grant
135 along with a statement justifying the use of any grant funds for the personnel;
136 (5) letters and other forms of evidence showing that efforts have been made to secure
137 financial and professional assistance and support for the services to be provided under the
138 grant;
139 (6) a list of services to be provided by the applicant;
140 (7) the schedule of fees to be charged by the applicant;
141 (8) the estimated number of medically underserved persons to be served with the grant
142 award; and
143 (9) other provisions as determined by the department.
144 Section 4. Section 26-10-104 , which is renumbered from Section 26-18-304 is
145 renumbered and amended to read:
146 [26-18-304]. 26-10-104. Process and criteria for awarding grants and
147 contracts.
148 (1) The department shall establish rules in accordance with Title 63G, Chapter 3, Utah
149 Administrative Rulemaking Act, governing the application form, process, and criteria it will

150 use in awarding grants and contracts under this chapter.
151 (2) When awarding a primary care grant under Subsection [ 26-18-302 ]
152 26-10-102 (1)(a), the department shall consider the extent to which the applicant:
153 (a) demonstrates that the area or a population group to be served under the application
154 has a shortage of primary health care and that the services will be located so that they will
155 provide assistance to the greatest number of persons residing in the area or included in the
156 population group;
157 (b) utilizes other sources of funding, including private funding, to provide primary
158 health care;
159 (c) demonstrates the ability and expertise to serve traditionally medically underserved
160 populations including persons of limited English-speaking ability, single heads of households,
161 the elderly, persons with low incomes, and persons with chronic diseases;
162 (d) demonstrates that it will assume financial risk for a specified number of medically
163 underserved persons within its catchment area for a predetermined level of care on a prepaid
164 capitation basis; and
165 (e) meets other criteria determined by the department.
166 (3) When awarding a contract for community based services under Subsection
167 [ 26-18-302 ] 26-10-102 (1)(b), the department shall:
168 (a) consider the extent to which the applicant:
169 (i) demonstrates that the area or a population group to be served under the application
170 is a medically underserved area or population and that the services will be located so that they
171 will provide assistance to the greatest number of persons residing in the area or included in the
172 population group;
173 (ii) utilizes other sources of funding, including private funding, to provide the services
174 described in Subsection [ 26-18-302 ] 26-10-102 (1)(b);
175 (iii) demonstrates the ability and expertise to serve traditionally medically underserved
176 populations including persons of limited English-speaking ability, single heads of households,
177 the elderly, persons with low incomes, and persons with chronic diseases;
178 (iv) meets other criteria determined by the department; and
179 (v) demonstrates the ability to empirically measure and report the results of all contract
180 supported activities;

181 (b) consider the extent to which the contract increases the applicant's institutional
182 capacity;
183 (c) consult with the state's:
184 (i) Medicaid program;
185 (ii) Children's Health Insurance Program; and
186 (iii) other assistance programs within the Department of Workforce Services and the
187 Department of Human Services; and
188 (d) as funding permits, implement the community based service contract as a pilot
189 program for which the department shall enter into contracts for services as follows:
190 (i) two contracts in the amount of $50,000 each to be awarded to experienced and
191 established applicants; and
192 (ii) three contracts in the amount of $30,000 each to be awarded to applicants that:
193 (A) are not as established or experienced as the applicants under Subsection (3)(d)(i);
194 or
195 (B) represent smaller community based approaches than the applicants described in
196 Subsection (3)(d)(i).
197 (4) Once a contract has been awarded under Subsection (3), the department shall
198 provide technical assistance to the contractee to familiarize the contractee with public and
199 private resources available to support wellness, health promotion, and disease management.
200 Section 5. Section 26-10-105 , which is renumbered from Section 26-18-305 is
201 renumbered and amended to read:
202 [26-18-305]. 26-10-105. Report on implementation.
203 The department shall report to the Health and Human Services Interim Committee by
204 November 1, 1994, and every year thereafter on the implementation of the grant program for
205 primary care services. The report shall include a description of the scope and level of coverage
206 provided to low-income persons by primary care grant programs.
207 Section 6. Section 26-18-3 is amended to read:
208 26-18-3. Administration of Medicaid program by department -- Reporting to the
209 Legislature -- Disciplinary measures and sanctions -- Funds collected -- Eligibility
210 standards -- Internal audits -- Studies -- Health opportunity accounts.
211 (1) The department shall be the single state agency responsible for the administration

212 of the Medicaid program in connection with the United States Department of Health and
213 Human Services pursuant to Title XIX of the Social Security Act.
214 (2) (a) The department shall implement the Medicaid program through administrative
215 rules in conformity with this chapter, Title 63G, Chapter 3, Utah Administrative Rulemaking
216 Act, the requirements of Title XIX, and applicable federal regulations.
217 (b) The rules adopted under Subsection (2)(a) shall include, in addition to other rules
218 necessary to implement the program:
219 (i) the standards used by the department for determining eligibility for Medicaid
220 services;
221 (ii) the services and benefits to be covered by the Medicaid program; and
222 (iii) reimbursement methodologies for providers under the Medicaid program.
223 (3) (a) The department shall, in accordance with Subsection (3)(b), report to either the
224 Legislative Executive Appropriations Committee or the Legislative Health and Human
225 Services Appropriations Subcommittee when the department:
226 (i) implements a change in the Medicaid State Plan;
227 (ii) initiates a new Medicaid waiver;
228 (iii) initiates an amendment to an existing Medicaid waiver; or
229 (iv) initiates a rate change that requires public notice under state or federal law.
230 (b) The report required by Subsection (3)(a) shall:
231 (i) be submitted to the Legislature's Executive Appropriations Committee or the
232 legislative Health and Human Services Appropriations Subcommittee prior to the department
233 implementing the proposed change; and
234 (ii) shall include:
235 (A) a description of the department's current practice or policy that the department is
236 proposing to change;
237 (B) an explanation of why the department is proposing the change;
238 (C) the proposed change in services or reimbursement, including a description of the
239 effect of the change;
240 (D) the effect of an increase or decrease in services or benefits on individuals and
241 families;
242 (E) the degree to which any proposed cut may result in cost-shifting to more expensive

243 services in health or human service programs; and
244 (F) the fiscal impact of the proposed change, including:
245 (I) the effect of the proposed change on current or future appropriations from the
246 Legislature to the department;
247 (II) the effect the proposed change may have on federal matching dollars received by
248 the state Medicaid program;
249 (III) any cost shifting or cost savings within the department's budget that may result
250 from the proposed change; and
251 (IV) identification of the funds that will be used for the proposed change, including any
252 transfer of funds within the department's budget.
252a H. (4)(a) The Department of Human Services shall report to the Legislative Health
252b and Human Services Appropriations Subcommittee no later that December 31, S. [ 2012 ]
252c 2010 .S in
252c accordance with Subsection (b).
252d (b) The report required by Subsection (a) shall include:
252e (i) changes made by the division or the department beginning July 1, 2010 that effect
252f the Medicaid program, a waiver under the Medicaid program, or an interpretation of
252g Medicaid services or funding, that relate to care for children and youth in the custody of the
252h Division of Child and Family Services or the Division of Juvenile Justice Services;
252i (ii) the history and impact of the changes under Subsection (b)(i);
252j (iii) the Department of Human Service's plans for addressing the impact of the changes
252k under Subsection (b)(i); and
252l (iv) ways to consolidate administrative functions within the Department of Human
252m Services, the Department of Health, the Division of Child and Family Services, and the
252n Division of Juvenile Justice Services to more efficiently meet the needs of children and youth
252o with mental health and substance disorder treatment needs.
253 [ (4) ] 5 .H Any rules adopted by the department under Subsection (2) are subject to
253a review and
254 reauthorization by the Legislature in accordance with Section 63G-3-502 .
255 H. [ (5) ] 6 .H The department may, in its discretion, contract with the Department of
255a Human
256 Services or other qualified agencies for services in connection with the administration of the
257 Medicaid program, including:
258 (a) the determination of the eligibility of individuals for the program;
259 (b) recovery of overpayments; and

260 (c) consistent with Section 26-20-13 , and to the extent permitted by law and quality
261 control services, enforcement of fraud and abuse laws.
262 H. [ (6) ] 7 .H The department shall provide, by rule, disciplinary measures and sanctions
262a for
263 Medicaid providers who fail to comply with the rules and procedures of the program, provided
264 that sanctions imposed administratively may not extend beyond:
265 (a) termination from the program;
266 (b) recovery of claim reimbursements incorrectly paid; and
267 (c) those specified in Section 1919 of Title XIX of the federal Social Security Act.
268 H. [ (7) ] 8 .H Funds collected as a result of a sanction imposed under Section 1919 of
268a Title XIX
269 of the federal Social Security Act shall be deposited in the General Fund as nonlapsing
270 dedicated credits to be used by the division in accordance with the requirements of Section
271 1919 of Title XIX of the federal Social Security Act.
272 H. [ (8) ] 9 .H (a) In determining whether an applicant or recipient is eligible for a service
272a or
273 benefit under this part or Chapter 40, Utah Children's Health Insurance Act, the department

274 shall, if Subsection (8)(b) is satisfied, exclude from consideration one passenger vehicle
275 designated by the applicant or recipient.
276 (b) Before Subsection (8)(a) may be applied:
277 (i) the federal government must:
278 (A) determine that Subsection (8)(a) may be implemented within the state's existing
279 public assistance-related waivers as of January 1, 1999;
280 (B) extend a waiver to the state permitting the implementation of Subsection (8)(a); or
281 (C) determine that the state's waivers that permit dual eligibility determinations for
282 cash assistance and Medicaid are no longer valid; and
283 (ii) the department must determine that Subsection H. [ (8) ] 9 .H (a) can be implemented
283a within
284 existing funding.
285 H. [ (9) ] 10 .H (a) For purposes of this Subsection H. [ (9) ] 10 .H :
286 (i) "aged, blind, or disabled" shall be defined by administrative rule; and
287 (ii) "spend down" means an amount of income in excess of the allowable income
288 standard that must be paid in cash to the department or incurred through the medical services
289 not paid by Medicaid.
290 (b) In determining whether an applicant or recipient who is aged, blind, or disabled is
291 eligible for a service or benefit under this chapter, the department shall use 100% of the federal
292 poverty level as:
293 (i) the allowable income standard for eligibility for services or benefits; and
294 (ii) the allowable income standard for eligibility as a result of spend down.
295 H. [ (10) ] 11 .H The department shall conduct internal audits of the Medicaid program, in
296 proportion to at least the level of funding it receives from Medicaid to conduct internal audits.
297 H. [ (11) ] 12 .H In order to determine the feasibility of contracting for direct Medicaid
297a providers
298 for primary care services, the department shall:
299 (a) issue a request for information for direct contracting for primary services that shall
300 provide that a provider shall exclusively serve all Medicaid clients:
301 (i) in a geographic area;
302 (ii) for a defined range of primary care services; and
303 (iii) for a predetermined total contracted amount; and
304 (b) by February 1, 2011, report to the Health and Human Services Appropriations

305 Subcommittee on the response to the request for information under Subsection (11)(a).
306 H. [ (12) ] 13 .H (a) By December 31, 2010, the department shall:
307 (i) determine the feasibility of implementing a three year patient-centered medical
308 home demonstration project in an area of the state using existing budget funds; and
309 (ii) report the department's findings and recommendations under
309a Subsection H. [ (12) ] 13 .H (a)(i)
310 to the Health and Human Services Appropriations Subcommittee.
311 (b) If the department determines that the medical home demonstration project
312 described in Subsection H. [ (12) ] 13 .H (a) is feasible, and the Health and Human Services
312a Appropriations
313 Subcommittee recommends that the demonstration project be implemented, the department
314 shall:
315 (i) implement the demonstration project; and
316 (ii) by December 1, 2012, make recommendations to the Health and Human Services
317 Appropriations Subcommittee regarding the:
318 (A) continuation of the demonstration project;
319 (B) expansion of the demonstration project to other areas of the state; and
320 (C) cost savings incurred by the implementation of the demonstration project.
321 H. [ (13) ] 14 .H (a) The department may apply for and, if approved, implement a
321a demonstration
322 program for health opportunity accounts, as provided for in 42 U.S.C. Sec. 1396u-8.
323 (b) A health opportunity account established under Subsection H. [ (13) ] 14 .H (a) shall
323a be an
324 alternative to the existing benefits received by an individual eligible to receive Medicaid under
325 this chapter.
326 (c) Subsection H. [ (13) ] 14 .H (a) is not intended to expand the coverage of the Medicaid
326a program.
327 Section 7. Section 26-18-402 is amended to read:
328 26-18-402. Medicaid Restricted Account.
329 (1) There is created a restricted account in the General Fund known as the Medicaid
330 Restricted Account.
331 (2) (a) Except as provided in Subsection (3), the following shall be deposited into the
332 Medicaid Restricted Account:
333 (i) any general funds appropriated to the department for the state plan for medical
334 assistance or for the Division of Health Care Financing that are not expended by the
335 department in the fiscal year for which the general funds were appropriated and which are not

336 otherwise designated as nonlapsing shall lapse into the Medicaid Restricted Account; [and]
337 (ii) any unused state funds that are associated with the Medicaid program, as defined in
338 Section 26-18-2 , from the Department of Workforce Services and the Department of Human
339 Services; and
340 [(ii)] (iii) any penalties imposed and collected under:
341 (A) Section 17B-2a-818.5 ;
342 (B) Section 19-1-206 ;
343 (C) Section 79-2-404 ;
344 (D) Section 63A-5-205 ;
345 (E) Section 63C-9-403 ; or
346 (F) Section 72-6-107.5 .
347 (b) The account shall earn interest and all interest earned shall be deposited into the
348 account.
349 (c) The Legislature may appropriate monies in the restricted account to fund programs
350 that expand medical assistance coverage and private health insurance plans to low income
351 persons who have not traditionally been served by Medicaid, including the Utah Children's
352 Health Insurance Program created in Chapter 40.
353 (3) For fiscal years 2008-09, 2009-10, and 2010-11, the following funds are
354 nonlapsing:
355 (a) any general funds appropriated to the department for the state plan for medical
356 assistance, or for the Division of Health Care Financing that are not expended by the
357 department in the fiscal year in which the general funds were appropriated [are nonlapsing.];
358 and
359 (b) funds described in Subsection (2)(a)(ii).
360 Section 8. Section 26-35a-106 is amended to read:
361 26-35a-106. Restricted account -- Creation -- Deposits.
362 (1) (a) There is created a restricted account in the General Fund known as the "Nursing
363 Care Facilities Account" consisting of:
364 (i) proceeds from the assessment imposed by Section 26-35a-104 which shall be
365 deposited in the restricted account to be used for the purpose described in Subsection (1)(b);
366 (ii) money appropriated or otherwise made available by the Legislature; and

367 (iii) any interest earned on the account.
368 (b) (i) Money in the account shall only be used:
369 (A) to the extent authorized by federal law, to obtain federal financial participation in
370 the Medicaid program; [and]
371 (B) to provide the increased level of hospice reimbursement resulting from the nursing
372 care facilities assessment imposed under Section 26-35a-104 ; and
373 [(B)] (C) in the manner described in Subsection (1)(b)(ii).
374 (ii) The money appropriated from the restricted account to the department:
375 (A) shall be used only to increase the rates paid prior to the effective date of this act to
376 nursing care facilities for providing services pursuant to the Medicaid program and for
377 administrative expenses as described in Subsection (1)(b)(ii)(C);
378 (B) may not be used to replace existing state expenditures paid to nursing care facilities
379 for providing services pursuant to the Medicaid program, except for increased costs due to
380 hospice reimbursement under Subsection (1)(b)(i)(B); and
381 (C) may be used for administrative expenses [for implementation of this act], if the
382 administrative expenses for the fiscal year do not exceed 3% of the money deposited into the
383 restricted account during the fiscal year.
384 (2) Money shall be appropriated from the restricted account to the department for the
385 purposes described in Subsection (1)(b) in accordance with Title 63J, Chapter 1, Budgetary
386 Procedures Act.