1     
MEDICAID AMENDMENTS

2     
2021 GENERAL SESSION

3     
STATE OF UTAH

4     
Chief Sponsor: Steve Eliason

5     
Senate Sponsor: Michael K. McKell

6     

7     LONG TITLE
8     General Description:
9          This bill amends provisions relating to the certification of beds by the Medicaid
10     program for intermediate care facilities for individuals with intellectual disabilities.
11     Highlighted Provisions:
12          This bill:
13          ▸     creates limitations on the number of beds that can be certified by the Medicaid
14     program at intermediate care facilities for individuals with intellectual disabilities;
15          ▸     creates an exception for certain time limits in a state or national emergency that
16     affects an intermediate care facility for individuals with intellectual disabilities; and
17          ▸     makes technical changes.
18     Money Appropriated in this Bill:
19          None
20     Other Special Clauses:
21          None
22     Utah Code Sections Affected:
23     AMENDS:
24          26-18-502, as last amended by Laws of Utah 2016, Chapter 276
25          26-18-503, as last amended by Laws of Utah 2019, Chapters 136 and 393
26     

27     Be it enacted by the Legislature of the state of Utah:
28          Section 1. Section 26-18-502 is amended to read:
29          26-18-502. Purpose -- Medicaid certification of nursing care facilities.

30          (1) The Legislature finds:
31          (a) that an oversupply of nursing care facilities in the state adversely affects the state
32     Medicaid program and the health of the people in the state;
33          (b) it is in the best interest of the state to prohibit nursing care facilities from receiving
34     Medicaid certification, except as provided by this part; and
35          (c) it is in the best interest of the state to encourage aging nursing care facilities with
36     Medicaid certification to renovate the nursing care facilities' physical facilities so that the
37     quality of life and clinical services for Medicaid residents are preserved.
38          (2) Medicaid reimbursement of nursing care facility programs is limited to:
39          (a) the number of nursing care facility programs with Medicaid certification as of May
40     9, 2016; and
41          (b) additional nursing care facility programs approved for Medicaid certification under
42     the provisions of Subsections 26-18-503(5) and (7).
43          (3) The division may not:
44          (a) except as authorized by Section 26-18-503:
45          (i) process initial applications for Medicaid certification or execute provider
46     agreements with nursing care facility programs; or
47          (ii) reinstate Medicaid certification for a nursing care facility whose certification
48     expired or was terminated by action of the federal or state government; or
49          (b) execute a Medicaid provider agreement with a certified program that moves to a
50     different physical facility, except as authorized by Subsection 26-18-503(3).
51          (4) Notwithstanding Section 26-18-503, beginning May 4, 2021, the division may not
52     approve a new or additional bed in an intermediate care facility for individuals with an
53     intellectual disability for Medicaid certification, unless certification of the bed by the division
54     does not increase the total number in the state of Medicaid-certified beds in intermediate care
55     facilities for individuals with an intellectual disability.
56          Section 2. Section 26-18-503 is amended to read:
57          26-18-503. Authorization to renew, transfer, or increase Medicaid certified

58     programs -- Reimbursement methodology.
59          (1) (a) The division may renew Medicaid certification of a certified program if the
60     program, without lapse in service to Medicaid recipients, has its nursing care facility program
61     certified by the division at the same physical facility as long as the licensed and certified bed
62     capacity at the facility has not been expanded, unless the director has approved additional beds
63     in accordance with Subsection (5).
64          (b) The division may renew Medicaid certification of a nursing care facility program
65     that is not currently certified if:
66          (i) since the day on which the program last operated with Medicaid certification:
67          (A) the physical facility where the program operated has functioned solely and
68     continuously as a nursing care facility; and
69          (B) the owner of the program has not, under this section or Section 26-18-505,
70     transferred to another nursing care facility program the license for any of the Medicaid beds in
71     the program; and
72          (ii) except as provided in Subsection 26-18-502(4), the number of beds granted
73     renewed Medicaid certification does not exceed the number of beds certified at the time the
74     program last operated with Medicaid certification, excluding a period of time where the
75     program operated with temporary certification under Subsection 26-18-504(3).
76          (2) (a) The division may issue a Medicaid certification for a new nursing care facility
77     program if a current owner of the Medicaid certified program transfers its ownership of the
78     Medicaid certification to the new nursing care facility program and the new nursing care
79     facility program meets all of the following conditions:
80          (i) the new nursing care facility program operates at the same physical facility as the
81     previous Medicaid certified program;
82          (ii) the new nursing care facility program gives a written assurance to the director in
83     accordance with Subsection (4);
84          (iii) the new nursing care facility program receives the Medicaid certification within
85     one year of the date the previously certified program ceased to provide medical assistance to a

86     Medicaid recipient; and
87          (iv) the licensed and certified bed capacity at the facility has not been expanded, unless
88     the director has approved additional beds in accordance with Subsection (5).
89          (b) A nursing care facility program that receives Medicaid certification under the
90     provisions of Subsection (2)(a) does not assume the Medicaid liabilities of the previous nursing
91     care facility program if the new nursing care facility program:
92          (i) is not owned in whole or in part by the previous nursing care facility program; or
93          (ii) is not a successor in interest of the previous nursing care facility program.
94          (3) The division may issue a Medicaid certification to a nursing care facility program
95     that was previously a certified program but now resides in a new or renovated physical facility
96     if the nursing care facility program meets all of the following:
97          (a) the nursing care facility program met all applicable requirements for Medicaid
98     certification at the time of closure;
99          (b) the new or renovated physical facility is in the same county or within a five-mile
100     radius of the original physical facility;
101          (c) the time between which the certified program ceased to operate in the original
102     facility and will begin to operate in the new physical facility is not more than three years[;],
103     unless:
104          (i) an emergency is declared by the president of the United States or the governor,
105     affecting the building or renovation of the physical facility;
106          (ii) the director approves an exception to the three-year requirement for any nursing
107     care facility program within the three-year requirement;
108          (iii) the provider submits documentation supporting a request for an extension to the
109     director that demonstrates a need for an extension; and
110          (iv) the exception does not extend for more than two years beyond the three-year
111     requirement;
112          (d) if Subsection (3)(c) applies, the certified program notifies the department within 90
113     days after ceasing operations in its original facility, of its intent to retain its Medicaid

114     certification;
115          (e) the provider gives written assurance to the director in accordance with Subsection
116     (4) that no third party has a legitimate claim to operate a certified program at the previous
117     physical facility; and
118          (f) the bed capacity in the physical facility has not been expanded unless the director
119     has approved additional beds in accordance with Subsection (5).
120          (4) (a) The entity requesting Medicaid certification under Subsections (2) and (3) shall
121     give written assurances satisfactory to the director or the director's designee that:
122          (i) no third party has a legitimate claim to operate the certified program;
123          (ii) the requesting entity agrees to defend and indemnify the department against any
124     claims by a third party who may assert a right to operate the certified program; and
125          (iii) if a third party is found, by final agency action of the department after exhaustion
126     of all administrative and judicial appeal rights, to be entitled to operate a certified program at
127     the physical facility the certified program shall voluntarily comply with Subsection (4)(b).
128          (b) If a finding is made under the provisions of Subsection (4)(a)(iii):
129          (i) the certified program shall immediately surrender its Medicaid certification and
130     comply with division rules regarding billing for Medicaid and the provision of services to
131     Medicaid patients; and
132          (ii) the department shall transfer the surrendered Medicaid certification to the third
133     party who prevailed under Subsection (4)(a)(iii).
134          (5) (a) [As provided in Subsection 26-18-502(2)(b), the] The director may approve
135     additional nursing care facility programs for Medicaid certification, or additional beds for
136     Medicaid certification within an existing nursing care facility program, if a nursing care facility
137     or other interested party requests Medicaid certification for a nursing care facility program or
138     additional beds within an existing nursing care facility program, and the nursing care facility
139     program or other interested party complies with this section.
140          (b) The nursing care facility or other interested party requesting Medicaid certification
141     for a nursing care facility program or additional beds within an existing nursing care facility

142     program under Subsection (5)(a) shall submit to the director:
143          (i) proof of the following as reasonable evidence that bed capacity provided by
144     Medicaid certified programs within the county or group of counties impacted by the requested
145     additional Medicaid certification is insufficient:
146          (A) nursing care facility occupancy levels for all existing and proposed facilities will
147     be at least 90% for the next three years;
148          (B) current nursing care facility occupancy is 90% or more; or
149          (C) there is no other nursing care facility within a 35-mile radius of the nursing care
150     facility requesting the additional certification; and
151          (ii) an independent analysis demonstrating that at projected occupancy rates the nursing
152     care facility's after-tax net income is sufficient for the facility to be financially viable.
153          (c) Any request for additional beds as part of a renovation project are limited to the
154     maximum number of beds allowed in Subsection (7).
155          (d) The director shall determine whether to issue additional Medicaid certification by
156     considering:
157          (i) whether bed capacity provided by certified programs within the county or group of
158     counties impacted by the requested additional Medicaid certification is insufficient, based on
159     the information submitted to the director under Subsection (5)(b);
160          (ii) whether the county or group of counties impacted by the requested additional
161     Medicaid certification is underserved by specialized or unique services that would be provided
162     by the nursing care facility;
163          (iii) whether any Medicaid certified beds are subject to a claim by a previous certified
164     program that may reopen under the provisions of Subsections (2) and (3);
165          (iv) how additional bed capacity should be added to the long-term care delivery system
166     to best meet the needs of Medicaid recipients; and
167          (v) (A) whether the existing certified programs within the county or group of counties
168     have provided services of sufficient quality to merit at least a two-star rating in the Medicare
169     Five-Star Quality Rating System over the previous three-year period; and

170          (B) information obtained under Subsection (9).
171          (6) The department shall adopt administrative rules in accordance with Title 63G,
172     Chapter 3, Utah Administrative Rulemaking Act, to adjust the Medicaid nursing care facility
173     property reimbursement methodology to:
174          (a) only pay that portion of the property component of rates, representing actual bed
175     usage by Medicaid clients as a percentage of the greater of:
176          (i) actual occupancy; or
177          (ii) (A) for a nursing care facility other than a facility described in Subsection
178     (6)(a)(ii)(B), 85% of total bed capacity; or
179          (B) for a rural nursing care facility, 65% of total bed capacity; and
180          (b) not allow for increases in reimbursement for property values without major
181     renovation or replacement projects as defined by the department by rule.
182          (7) (a) [Notwithstanding Subsection 26-18-504(3)] Except as provided in Subsection
183     26-18-502(3)(c), if a nursing care facility does not seek Medicaid certification for a bed under
184     Subsections (1) through (6), the department shall, notwithstanding Subsections 26-18-504(3)(a)
185     and (b), grant Medicaid certification for additional beds in an existing Medicaid certified
186     nursing care facility that has 90 or fewer licensed beds, including Medicaid certified beds, in
187     the facility if:
188          (i) the nursing care facility program was previously a certified program for all beds but
189     now resides in a new facility or in a facility that underwent major renovations involving major
190     structural changes, with 50% or greater facility square footage design changes, requiring review
191     and approval by the department;
192          (ii) the nursing care facility meets the quality of care regulations issued by CMS; and
193          (iii) the total number of additional beds in the facility granted Medicaid certification
194     under this section does not exceed 10% of the number of licensed beds in the facility.
195          (b) The department may not revoke the Medicaid certification of a bed under this
196     Subsection (7) as long as the provisions of Subsection (7)(a)(ii) are met.
197          (8) (a) If a nursing care facility or other interested party indicates in its request for

198     additional Medicaid certification under Subsection (5)(a) that the facility will offer specialized
199     or unique services, but the facility does not offer those services after receiving additional
200     Medicaid certification, the director shall revoke the additional Medicaid certification.
201          (b) The nursing care facility program shall obtain Medicaid certification for any
202     additional Medicaid beds approved under Subsection (5) or (7) within three years of the date of
203     the director's approval, or the approval is void.
204          (9) (a) If the director makes an initial determination that quality standards under
205     Subsection (5)(d)(v) have not been met in a rural county or group of rural counties over the
206     previous three-year period, the director shall, before approving certification of additional
207     Medicaid beds in the rural county or group of counties:
208          (i) notify the certified program that has not met the quality standards in Subsection
209     (5)(d)(v) that the director intends to certify additional Medicaid beds under the provisions of
210     Subsection (5)(d)(v); and
211          (ii) consider additional information submitted to the director by the certified program
212     in a rural county that has not met the quality standards under Subsection (5)(d)(v).
213          (b) The notice under Subsection (9)(a) does not give the certified program that has not
214     met the quality standards under Subsection (5)(d)(v), the right to legally challenge or appeal the
215     director's decision to certify additional Medicaid beds under Subsection (5)(d)(v).