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General Assembly Substitute Bill No. 290
February Session, 2022
AN ACT CONCERNING CERTIFICATES OF NEED FOR LONG -TERM
CARE FACILITIES.
Be it enacted by the Senate and House of Representatives in General
Assembly convened:
Section 1. Section 17b-352 of the general statutes is repealed and the 1
following is substituted in lieu thereof (Effective July 1, 2022): 2
(a) For the purposes of this section and section 17b-353, as amended 3
by this act, "facility" means a residential facility for persons with 4
intellectual disability licensed pursuant to section 17a-277 and certified 5
to participate in the Title XIX Medicaid program as an intermediate care 6
facility for individuals with intellectual disabilities, a nursing home, rest 7
home or residential care home, as defined in section 19a-490. "Facility" 8
does not include a nursing home that does not participate in the 9
Medicaid program and is associated with a continuing care facility as 10
described in section 17b-520. 11
(b) Any facility which intends to (1) transfer all or part of its 12
ownership or control prior to being initially licensed; (2) introduce any 13
additional function or service into its program of care or expand an 14
existing function or service; (3) terminate a service or decrease 15
substantially its total licensed bed capacity; or (4) relocate all or a portion 16
of such facility's licensed beds, to a new facility or replacement facility, 17
shall submit a complete request for permission to implement such 18 Substitute Bill No. 290
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transfer, addition, expansion, increase, termination, decrease or 19
relocation of facility beds to the Department of Social Services with such 20
information as the department requires, provided no permission or 21
request for permission to close a facility is required when a facility in 22
receivership is closed by order of the Superior Court pursuant to section 23
19a-545. The Commissioner of Social Services shall consider the criteria 24
in subdivisions (3) and (4) of subsection (a) of section 17b-354, as 25
amended by this act, when evaluating a certificate of need request to 26
relocate licensed nursing facility beds from an existing facility to another 27
licensed nursing facility or to a new facility or replacement facility. The 28
Office of the Long-Term Care Ombudsman pursuant to section 17a-405 29
shall be notified by the facility of any proposed actions pursuant to this 30
subsection at the same time the request for permission is submitted to 31
the department and when a facility in receivership is closed by order of 32
the Superior Court pursuant to section 19a-545. 33
(c) A facility may submit a petition for closure to the Department of 34
Social Services. The Department of Social Services may authorize the 35
closure of a facility if the facility's management demonstrates to the 36
satisfaction of the Commissioner of Social Services in the petition for 37
closure that the facility (1) is not viable based on actual and projected 38
operating losses; (2) has an occupancy rate of less than seventy per cent 39
of the facility's licensed bed capacity; (3) closure is consistent with the 40
strategic rebalancing plan developed in accordance with section 17b-41
369, including bed need by geographical region; (4) is in compliance 42
with the requirements of Sections 1128I(h) and 1819(h)(4) of the Social 43
Security Act and 42 CFR 483.75; and (5) is not providing special services 44
that would go unmet if the facility closes. The department shall review 45
a petition for closure to the extent it deems necessary and the facility 46
shall submit information the department requests or deems necessary 47
to substantiate that the facility closure is consistent with the provisions 48
of this subsection. The facility shall submit information the department 49
requests or deems necessary to allow the department to provide 50
oversight during this process. The Office of the Long-Term Care 51
Ombudsman shall be notified by the facility at the same time as a 52 Substitute Bill No. 290
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petition for closure is submitted to the department. Any facility acting 53
pursuant to this subsection shall provide written notice, on the same 54
date that the facility submits its petition for closure, to all patients, 55
guardians or conservators, if any, or legally liable relatives or other 56
responsible parties, if known, and shall post such notice in a 57
conspicuous location at the facility. The facility's written notice shall be 58
accompanied by an informational letter issued jointly from the Office of 59
the Long-Term Care Ombudsman and the Department of Rehabilitation 60
Services on patients' rights and services available as they relate to the 61
petition for closure. The informational letter shall also state the date and 62
time that the Office of the Long-Term Care Ombudsman and the 63
Department of Public Health will hold an informational session at the 64
facility for patients, guardians or conservators, if any, and legally liable 65
relatives or other responsible parties, if known, about their rights and 66
the process concerning a petition for closure. The notice shall state: (A) 67
The date the facility submitted the petition for closure, (B) that only the 68
Department of Social Services has the authority to either grant or deny 69
the petition for closure, (C) that the Department of Social Services has 70
up to thirty days to grant or deny the petition for closure, (D) a brief 71
description of the reason or reasons for submitting the petition for 72
closure, (E) that no patient shall be involuntarily transferred or 73
discharged within or from a facility pursuant to state and federal law 74
because of the filing of a petition for closure, (F) that all patients have a 75
right to appeal any proposed transfer or discharge, and (G) the name, 76
mailing address and telephone number of the Office of the Long-Term 77
Care Ombudsman and local legal aid office. The commissioner shall 78
grant or deny a petition for closure within thirty days of receiving such 79
request. 80
(d) An applicant, prior to submitting a certificate of need application, 81
shall request, in writing, application forms and instructions from the 82
department. The request shall include: (1) The name of the applicant or 83
applicants; (2) a statement indicating whether the application is for (A) 84
a new, additional, expanded or replacement facility, service or function 85
or relocation of facility beds, (B) a termination or reduction in a 86 Substitute Bill No. 290
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presently authorized service or bed capacity, or (C) any new, additional 87
or terminated beds and their type; (3) the estimated capital cost; (4) the 88
town where the project is or will be located; and (5) a brief description 89
of the proposed project. Such request shall be deemed a letter of intent. 90
No certificate of need application shall be considered submitted to the 91
department unless a current letter of intent, specific to the proposal and 92
in accordance with the provisions of this subsection, has been on file 93
with the department for not less than ten business days. For purposes of 94
this subsection, "a current letter of intent" means a letter of intent on file 95
with the department for not more than one hundred eighty days. A 96
certificate of need application shall be deemed withdrawn by the 97
department, if a department completeness letter is not responded to 98
within one hundred eighty days. The Office of the Long-Term Care 99
Ombudsman shall be notified by the facility at the same time as the letter 100
of intent is submitted to the department. 101
(e) Any facility acting pursuant to subdivision (3) of subsection (b) of 102
this section shall provide written notice, at the same time it submits its 103
letter of intent, to all patients, guardians or conservators, if any, or 104
legally liable relatives or other responsible parties, if known, and shall 105
post such notice in a conspicuous location at the facility. The facility's 106
written notice shall be accompanied by an informational letter issued 107
jointly from the Office of the Long-Term Care Ombudsman and the 108
Department of Aging and Disability Services on patients' rights and 109
services available as they relate to the letter of intent. The notice shall 110
state the following: (1) The projected date the facility will be submitting 111
its certificate of need application, (2) that only the Department of Social 112
Services has the authority to either grant, modify or deny the 113
application, (3) that the Department of Social Services has up to ninety 114
days to grant, modify or deny the certificate of need application, (4) a 115
brief description of the reason or reasons for submitting a request for 116
permission, (5) that no patient shall be involuntarily transferred or 117
discharged within or from a facility pursuant to state and federal law 118
because of the filing of the certificate of need application, (6) that all 119
patients have a right to appeal any proposed transfer or discharge, and 120 Substitute Bill No. 290
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(7) the name, mailing address and telephone number of the Office of the 121
Long-Term Care Ombudsman and local legal aid office. 122
(f) The [department] Department of Social Services shall review a 123
request made pursuant to subsection (b) of this section to the extent it 124
deems necessary, including, but not limited to, in the case of a proposed 125
transfer of ownership or control prior to initial licensure, the financial 126
responsibility and business interests of the transferee and the ability of 127
the facility to continue to provide needed services, or in the case of the 128
addition or expansion of a function or service, ascertaining the 129
availability of the function or service at other facilities within the area to 130
be served, the need for the service or function within the area and any 131
other factors the department deems relevant to a determination of 132
whether the facility is justified in adding or expanding the function or 133
service. During the review, the department may hold an informal 134
conference with the facility to discuss the certificate of need application. 135
The [commissioner] Commissioner of Social Services shall grant, modify 136
or deny the request within ninety days of receipt thereof, except as 137
otherwise provided in this section. The commissioner may place 138
conditions, as the commissioner deems necessary to address specified 139
concerns, on any decision approving or modifying a request for a 140
certificate of need filed pursuant to this section. Conditions may include, 141
but are not limited to, project and Medicaid reimbursement details and 142
applicant requirements for summary and audit purposes. If the 143
commissioner modifies the request, the commissioner shall notify the 144
facility of such modification prior to issuing the decision and provide 145
the applicant with an opportunity for an informal conference to discuss 146
the modifications. Upon the request of the applicant, the review period 147
may be extended for an additional fifteen days if the department has 148
requested additional information subsequent to the commencement of 149
the commissioner's review period. The director of the office of certificate 150
of need and rate setting may extend the review period for a maximum 151
of thirty days if the applicant has not filed in a timely manner 152
information deemed necessary by the department. The applicant may 153
request and shall receive a hearing in accordance with section 4-177 if 154 Substitute Bill No. 290
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aggrieved by a decision of the commissioner. 155
(g) The Commissioner of Social Services shall not approve any 156
requests for beds in residential facilities for persons with intellectual 157
disability which are licensed pursuant to section 17a-227 and are 158
certified to participate in the Title XIX Medicaid Program as 159
intermediate care facilities for individuals with intellectual disabilities, 160
except those beds necessary to implement the residential placement 161
goals of the Department of Developmental Services which are within 162
available appropriations. 163
(h) The Commissioner of Social Services shall adopt regulations, in 164
accordance with chapter 54, to implement the provisions of this section. 165
Sec. 2. Subsections (c) and (d) of section 17b-353 of the general statutes 166
are repealed and the following is substituted in lieu thereof (Effective July 167
1, 2022): 168
(c) In conducting its activities pursuant to this section, section 17b-169
352, as amended by this act, or both, except as provided for in subsection 170
(d) of this section, the Commissioner of Social Services or said 171
commissioner's designee may hold a public hearing on an application 172
or on more than one application, if such applications are of a similar 173
nature with respect to the request. At least two weeks' notice of the 174
hearing shall be given to the facility by certified mail and to the public 175
by publication in a newspaper having a substantial circulation in the 176
area served by the facility. Such hearing shall be held at the discretion 177
of the commissioner in Hartford or in the area so served. Prior to the 178
hearing, the department may hold an informal conference with the 179
facility to discuss the certificate of need application. The commissioner 180
or the commissioner's designee shall consider such request in relation to 181
the community or regional need for such capital program or purchase 182
of land, the possible effect on the operating costs of the facility and such 183
other relevant factors as the commissioner or the commissioner's 184
designee deems necessary. In approving or modifying such request, the 185
commissioner or the commissioner's designee may not prescribe any 186 Substitute Bill No. 290
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condition, such as, but not limited to, any condition or limitation on the 187
indebtedness of the facility in connection with a bond issued, the 188
principal amount of any bond issued or any other details or particulars 189
related to the financing of such capital expenditure, not directly related 190
to the scope of such capital program and within the control of the 191
facility. If the hearing is conducted by a designee of the commissioner, 192
the designee shall submit any findings and recommendations to the 193
commissioner. If the designee recommends denial of the request, the 194
designee shall issue a proposed final decision in accordance with section 195
4-179. The commissioner shall grant, modify or deny such request 196
within ninety days, except as provided for in this section. The 197
commissioner may place conditions, as the commissioner deems 198
necessary to address specified concerns, on any decision approving or 199
modifying a request for a certificate of need filed pursuant to this 200
section. Conditions may include, but are not limited to, project and 201
Medicaid reimbursement details and applicant requirements for 202
summary and audit purposes. Upon the request of the applicant, the 203
review period may be extended for an additional fifteen days if the 204
commissioner or the commissioner's designee has requested additional 205
information subsequent to the commencement of the review period. The 206
commissioner or the commissioner's designee may extend the review 207
period for a maximum of thirty days if the applicant has not filed in a 208
timely manner information deemed necessary by the commissioner or 209
the commissioner's designee. 210
(d) Except as provided in this subsection, no facility shall be allowed 211
to close or decrease substantially its licensed total bed capacity until 212
such time as a public hearing has been held in accordance with the 213
provisions of this subsection and the Commissioner of Social Services 214
has approved the facility's request unless such decrease is associated 215
with a census reduction. The commissioner may impose a civil penalty 216
of not more than five thousand dollars on any facility that fails to 217
comply with the provisions of this subsection. Penalty payments 218
received by the commissioner pursuant to this subsection shall be 219
deposited in the special fund established by the department pursuant to 220 Substitute Bill No. 290
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subsection (c) of section 17b-357 and used for the purposes specified in 221
said subsection (c). The commissioner or the commissioner's designee 222
shall hold a public hearing [upon the earliest occurrence of: (1) Receipt 223
of any letter of intent submitted by a facility to the department, or (2)] 224
not later than thirty days after the receipt of any certificate of need 225
application. Such hearing shall be held at the facility for which the [letter 226
of intent or] certificate of need application was submitted. [not later than 227
thirty days after the date on which such letter or application was 228
received by the commissioner.] The commissioner or the 229
commissioner's designee shall provide both the facility and the public 230
with notice of the date of the hearing not less than [fourteen] ten days in 231
advance of such date. Notice to the facility shall be [by certified mail] 232
sent via electronic mail or first-class mail and notice to the public shall 233
be by publication in a newspaper having a substantial circulation in the 234
area served by the facility. The provisions of this subsection shall not 235
apply to any certificate of need approval requested for the relocation of 236
a facility, or a portion of a facility's licensed beds, to a new or 237
replacement facility. 238
Sec. 3. Subsection (a) of section 17b-354 of the general statutes is 239
repealed and the following is substituted in lieu thereof (Effective July 1, 240
2022): 241
(a) The Department of Social Services shall not accept or approve any 242
requests for additional nursing home beds, except (1) beds restricted to 243
use by patients with acquired immune deficiency syndrome or by 244
patients requiring neurological rehabilitation; (2) beds associated with a 245
continuing care facility, as described in section 17b-520, provided such 246
beds are not used in the Medicaid program. [and the ratio of proposed 247
nursing home beds to the continuing care facility's independent living 248
units is within applicable industry standards.] For the purpose of this 249
subsection, beds associated with a continuing care facility are not subject 250
to the certificate of need provisions pursuant to sections 17b-352, as 251
amended by this act, and 17b-353, as amended by this act; (3) Medicaid 252
certified beds to be relocated from one licensed nursing facility to 253 Substitute Bill No. 290
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another licensed nursing facility to meet a priority need identified in the 254
strategic plan developed pursuant to subsection (c) of section 17b-369; 255
[and] (4) licensed Medicaid nursing facility beds to be relocated from 256
one or more existing nursing facilities to a new nursing facility, 257
including a replacement facility, provided (A) no new Medicaid 258
certified beds are added, (B) at least one currently licensed facility is 259
closed in the transaction as a result of the relocation, (C) the relocation 260
is done within available appropriations, (D) the facility participates in 261
the Money Follows the Person demonstration project pursuant to 262
section 17b-369, (E) the availability of beds in the area of need will not 263
be adversely affected, (F) the certificate of need approval for such new 264
facility or facility relocation and the associated capital expenditures are 265
obtained pursuant to sections 17b-352, as amended by this act, and 17b-266
353, as amended by this act, and (G) the facilities included in the bed 267
relocation and closure shall be in accordance with the strategic plan 268
developed pursuant to subsection (c) of section 17b-369; and (5) 269
proposals to build a nontraditional, small-house style nursing home 270
designed to enhance the quality of life for nursing facility residents, 271
provided that the nursing facility agrees to reduce its total number of 272
licensed beds by a percentage determined by the Commissioner of 273
Social Services in accordance with the department's strategic plan for 274
long-term care. 275
Sec. 4. Section 17b-355 of the general statutes is repealed and the 276
following is substituted in lieu thereof (Effective July 1, 2022): 277
In determining whether a request submitted pursuant to sections 278
17b-352 to 17b-354, inclusive, as amended by this act, will be granted, 279
modified or denied, the Commissioner of Social Services shall consider 280
the following: The [relationship of the request to the state health plan, 281
the] financial feasibility of the request and its impact on the applicant's 282
rates and financial condition, the contribution of the request to the 283
quality, accessibility and cost-effectiveness of [health care delivery] the 284
delivery of long-term care in the region, whether there is clear public 285
need for the request, the relationship of any proposed change to the 286 Substitute Bill No. 290
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applicant's current utilization statistics and the effect of the proposal on 287
the utilization statistics of other facilities in the applicant's service area, 288
the business interests of all owners, partners, associates, incorporators, 289
directors, sponsors, stockholders and operators and the personal 290
background of such persons, and any other factor which the 291
[department] Department of Social Services deems relevant. [Whenever 292
the granting, modification or denial of a request is inconsistent with the 293
state health plan, a written explanation of the reasons for the 294
inconsistency shall be included in the decision. In considering whether 295
there is clear public need for any request for additional nursing home 296
beds associated with a continuing care facility submitted pursuant to 297
section 17b-354, the commissioner shall only consider the need for beds 298
for current and prospective residents of the continuing care facility.] In 299
considering whether there is clear public need for any request for the 300
relocation of beds to a replacement facility, the commissioner shall 301
consider whether there is a demonstrated bed need in the towns within 302
a fifteen-mile radius of the town in which the beds are proposed to be 303
located and whether the availability of beds in the applicant's service 304
area will be adversely affected. Any proposal to relocate nursing home 305
beds from an existing facility to a new facility shall not increase the 306
number of Medicaid certified beds and shall result in the closure of at 307
least one currently licensed facility other than the facility that is being 308
replaced. The commissioner may request that any applicant seeking to 309
replace an existing facility reduce the number of beds in the new facility 310
by a percentage that is consistent with the department's strategic plan 311
for long-term care. If an applicant seeking to replace an existing facility 312
with a new facility owns or operates more than one nursing facility, the 313
commissioner may request that the applicant close two or more facilities 314
before approving the proposal to build a new facility. The commissioner 315
shall also consider whether an application to establish a new or 316
replacement nursing facility proposes a nontraditional, small-house 317
style nursing facility and incorporates goals for nursing facilities 318
referenced in the department's strategic plan for long-term care, 319
including, but not limited to, (1) promoting person-centered care, (2) 320
providing enhanced quality of care, (3) creating community space for all 321 Substitute Bill No. 290
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nursing facility residents, and (4) developing stronger connections 322
between the nursing facility residents and the surrounding community. 323
Bed need shall be based on the recent occupancy percentage of area 324
nursing facilities and the projected bed need for no more than five years 325
into the future at ninety-seven and one-half per cent occupancy using 326
the latest official population projections by town and age as published 327
by the Office of Policy and Management and the latest available state-328
wide nursing facility utilization statistics by age cohort from the 329
Department of Public Health. The commissioner may also consider area 330
specific utilization and reductions in utilization rates to account for the 331
increased use of less institutional alternatives. 332
This act shall take effect as follows and shall amend the following
sections:
Section 1 July 1, 2022 17b-352
Sec. 2 July 1, 2022 17b-353(c) and (d)
Sec. 3 July 1, 2022 17b-354(a)
Sec. 4 July 1, 2022 17b-355
Statement of Legislative Commissioners:
In Section 1(b), "nursing facility beds" was changed to "licensed nursing
facility beds" for consistency.
HS Joint Favorable Subst.