ARTICLE 12 SUBSTITUTE A AS AMENDED

RELATING TO NURSING FACILITIES

SECTION 1. Section 40-8-19 and 40-8-20.1 of the General Laws in Chapter 40-8 entitled “Medical Assistance” are hereby amended to read as follows:

40-8-19. Rates of payment to nursing facilities. – (a) Rate reform. The rates to be paid by the state to nursing facilities licensed pursuant to chapter 17 of title 23, and certified to participate in the Title XIX Medicaid program for services rendered to Medicaid-eligible residents, shall be reasonable and adequate to meet the costs which must be incurred by efficiently and economically operated facilities in accordance with 42 U.S.C. § 1396a(a)(13). The department of human services shall promulgate or modify the principles of reimbursement for nursing facilities currently in effect on July 1, 2003 to be consistent with the provisions of this section and Title XIX, 42 U.S.C. § 1396 et seq., of the Social Security Act.

(b) Rate reform. Subject to the phase-in provisions in subsections (c) and (d), the department shall, on or before October 1, 2005, modify the principles of reimbursement for nursing facilities to include the following elements:

(1) Annual base years;

(2) Four (4) cost centers: direct labor, property, other operating, and pass through items;

(3) Re-array of costs of all facilities in the labor and other operating cost centers every three (3) years beginning with calendar year 2002;

(4) A ceiling maximum for allowable costs in the direct labor cost center to be established by the department between one hundred ten percent (110%) and one hundred twenty-five percent (125%) of the median for all facilities for the most recent array year.

(5) A ceiling maximum for allowable costs in the other operating cost center to be established by the department between ninety percent (90%) and one hundred fifteen percent (115%) of the median for all facilities for the most recent array year;

(6) Adjustment of costs and ceiling maximums by the increase in the National Nursing Home Price Index ("NNHPI") for the direct labor cost center and the other operating cost center for year between array years; such adjustments to be applied on October 1st of each year beginning October 1, 2003 for the direct labor cost center and October 1, 2005 for the other operating cost center, except for the fiscal year beginning July 1, 2006 for which the price index shall be applied on February 1, 2007 and for the fiscal year beginning October 1, 2007 for which the adjustment of costs and ceiling maximums shall be 1.1 percent.

(7) Application of a fair rental value system to be developed by the department for calculating allowable reimbursement for the property cost center;

(8) Such quality of care and cost containment incentives as may be established by departmental regulations.

(c) Phase I Implementation. The department shall file a state plan amendment with the U.S. Department of Health and Human Services on or before August 1, 2003 to modify the principles of reimbursement for nursing facilities, to be effective on October 1, 2003, or as soon thereafter as is authorized by an approved state plan amendment, to establish the direct labor cost center and the pass through items cost center utilizing calendar year 2002 cost data, and to apply the ceiling maximums in subsections (b)(4) and (b)(5). Nursing facilities whose allowable 2002 direct labor costs are below the median in the direct labor cost center may make application to the department for a direct labor cost interim payment adjustment equal to twenty-five percent (25%) of the amount such allowable 2002 direct labor costs are below the median in the direct labor cost center, provided that the interim payment adjustment granted by the department on or after October 1, 2003 must be expended by the facility on expenses allowable within the direct labor cost center, and any portion of the interim payment not expended on allowable direct labor cost center expenses shall be subject to retroactive adjustment and recoupment by the department upon the department's determination of a final direct labor payment adjustment after review of the facility's actual direct labor expenditures. The final direct labor payment adjustment will be included in the facility's October 1, 2004 rate until the facility's next base year.

(d) Phase II Implementation. The department shall file a state plan amendment with the U.S. Department of Health and Human Services to modify the principles of reimbursement for nursing facilities, to be effective on September 1, 2004, or as soon thereafter as is authorized by an approved state plan amendment, to establish a fair rental value system for calculating allowable reimbursement for the property cost center in accordance with subsection (b)(7); provided, however, that no facility shall receive a payment as of September 1, 2004 for property-related expenses pursuant to the fair rental value system that is less than the property-related payment they would have received for the other property-related ("OPR") cost center system in effect as of June 30, 2004.

40-8-20.1. Prospective rate increments. -- The department may consider the granting of a prospective rate that reflects demonstrated cost increases in excess of the rate that has been established by the application of the percentage increase. In order to qualify for the rate increment, demonstrated increased costs must be the result of:

(a) Demonstrated errors made during the rate determination process;

(b) Significant increases in operating costs resulting from the implementation of new or additional programs, services or staff specifically mandated by the Rhode Island department of health;

(c) Significant increases in operating costs resulting from capital renovations, expansion, or replacement required for compliance with fire safety codes and/or certification requirements of the Rhode Island department of health, as well as increased energy costs which the facility can demonstrate are a result of the facility having expended funds for heating, lighting, hot water, and similar costs associated with the consumption of energy provided by public utilities;

(d) Significant increases in workers' compensation and/or health insurance premiums which cannot be accommodated within the nursing facility's assigned aggregate per diem rate, if cost justified; provided, that assigned per diem rate in the labor and payroll related expenses cost center does not exceed two percent (2%) of the cost center ceiling; or

(e) Extraordinary circumstances, including, but not limited to, acts of God, and inordinate increases in energy costs (e.g. federal BTU tax, regional or national energy crisis). Inordinate increases in energy costs will be immediately reflected in increased rates above the energy cost center ceiling maximum. Provided, however, that such increases will be rescinded immediately upon cessation of the extraordinary circumstance. All requests for rate increments shall be limited to one request per nursing facility for the factors set forth in subsections (b) and (c); provided, additional requests involving a per diem increase in excess of one percent of the nursing facility's previously assigned aggregate per diem rate shall also be reviewed. Before a nursing facility shall be permitted to file for a rate increment, increases in operating costs set forth in subsections (b) and (c) must have been incurred for a period of not less than three (3) months in order to establish proof of the increase. Rate adjustments granted as a result of a request filed within one hundred twenty (120) days after the costs were first incurred shall be made effective retroactively to the date the costs were actually incurred; provided, further, any adjustments granted as a result of requests filed more than one hundred twenty (120) days after the costs were first incurred will be effective on the first day of the month following the filing of the request.

SECTION 2. Chapter 40-8 of the General Laws entitled "Medical Assistance" is hereby amended by adding thereto the following section:

40-8-20.2. Best energy practices for licensed nursing facilities - Energy conservation retention credit. – (a) In order to reduce overall energy consumption and to slow the rate of the growth in state Medicaid expenditures, the state of Rhode Island shall adopt an energy conservation retention credit for licensed nursing facilities that meet the criteria set forth herein. Every licensed nursing facility participating in the Medicaid medical assistance program that: (1) expends funds for energy conservation measures and the use of renewable fuels, energy sources, and so-called "green" sources of energy that result in a reduction of energy consumption; and (2) which methods the facility can demonstrate, to the satisfaction of the department, result in the facility's "pass through" per diem cost being reduced in the next base year in comparison to the immediately preceding base year, shall be permitted to retain the difference in the previous per diem and the new per diem for a period of up to twenty-four (24) months. Provided, that such retained funds shall be utilized by the nursing facility solely for either: (1) costs directly associated with employing labor at the facility; or (2) to pay down any debt of said nursing facility incurred directly through the purchases of energy saving, conservation and renewable energy or so-called "green" devices.

(b) The department of human services shall convene a working group of interested parties, including, but not limited to, public utilities, provider trades associations, labor unions representing nursing home employees, and environmental advocates, to establish best energy practices for this industry.

SECTION 3. This article shall take effect upon passage.