Researcher: MF Page 1 4/11/22
OLR Bill Analysis
sSB 290
AN ACT CONCERNING CERTIFICATES OF NEED FOR LONG -TERM
CARE FACILITIES.
SUMMARY
This bill makes various changes to the Department of Social Services’
(DSS) certificate of need (CON) process for certain long-term care
facilities. By law, nursing homes, residential care homes, rest homes,
and intermediate care facilities for people with intellectual disabilities
must generally receive DSS approval when (1) introducing new
services, (2) changing ownership, (3) relocating licensed beds or
decreasing bed capacity, (4) terminating a service, or (5) incurring
certain capital expenditures.
Among other things, the bill allows DSS to approve requests to build
nontraditional, small-house style nursing homes under certain
conditions and establishes factors DSS must consider when deciding on
these requests. It also broadens other exemptions to the general
moratorium on nursing home beds.
The bill adds additional criteria that DSS must consider when
evaluating certain types of CON requests, including requests to relocate
beds.
The bill allows the DSS commissioner to place conditions on any
decision approving or modifying a CON request as she deems
necessary. It also allows DSS to hold an informal conference with the
facility when reviewing a request to discuss the CON application. If the
commissioner modifies the request, the bill requires her to notify the
facility before issuing the decision and provide an opportunity for an
informal conference to discuss the modifications.
The bill subjects adverse CON decisions to provisions on proposed
final decisions under the state’s Uniform Administrative Procedures Act 2022SB-00290-R000399-BA.DOCX
Researcher: MF Page 2 4/11/22
(UAPA).
The bill also makes minor changes to timing and notification
requirements for public hearings and makes other technical and
conforming changes.
By law, the DSS commissioner must adopt regulations to implement
the CON process provisions and may adopt regulations on the nursing
home bed moratorium provisions.
EFFECTIVE DATE: July 1, 2022
NURSING HOME BED MORATORIUM
Existing law establishes a nursing home bed moratorium that
generally prohibits DSS from accepting or approving requests for
additional nursing home beds, with certain exceptions. The bill adds a
new exception that allows DSS to approve a proposal to build a
nontraditional, small-house style nursing home designed to enhance the
quality of life for residents as long as the facility agrees to reduce its total
number of licensed beds by a percentage the DSS commissioner
determines in accordance with DSS’s strategic plan for long-term care.
The bill also broadens two existing exceptions. One exception allows
DSS to approve beds associated with a continuing care facility that are
not used in the Medicaid program. For this exception, the bill eliminates
a requirement that the ratio of proposed nursing home beds to the
continuing care facility’s independent living units is within applicable
industry standards. For these facilities, the bill also eliminates a
requirement that DSS only consider the need for beds for current and
prospective continuing care facility residents when considering whether
there is clear public need for additional nursing home beds.
Another exception allows DSS to approve licensed Medicaid nursing
facility beds that will be relocated from existing facilities to a new facility
under certain criteria (see below). The bill additionally allows DSS to
approve facilities relocated to a replacement facility under this
exception. 2022SB-00290-R000399-BA.DOCX
Researcher: MF Page 3 4/11/22
By law, the moratorium exception that allows DSS to approve
relocation of nursing home beds only applies if:
1. no new Medicaid certified beds are added;
2. due to the relocation, at least one currently licensed facility is
closed in the transaction;
3. the relocation is done within available appropriations;
4. the facility participates in the Money Follows the Person
demonstration project;
5. the relocation will not adversely affect bed availability in the area
of need;
6. the facility receives an approved CON and obtains associated
capital expenditures; and
7. the facilities included in the bed relocation and closure are in
accordance with the long-term care strategic plan.
Under the bill, as is generally the case under the moratorium, a
proposal to relocate a nursing home bed from an existing facility to a
new facility may not increase the number of Medicaid certified beds.
The bill also requires that the proposal result in a closure of at least one
currently licensed facility in addition to the one that is being replaced.
Additionally, the bill requires the DSS commissioner to consider the
above criteria when evaluating a CON request to relocate licensed
nursing facility beds from an existing facility to another licensed facility
or a new or replacement facility. Under the bill, she must also consider
priority needs identified in the long-term care strategic plan.
FACTORS CONSIDERED IN CON DECISIONS
By law, when determining whether to grant, modify, or deny a CON
application, the DSS commissioner must consider several factors,
including: 2022SB-00290-R000399-BA.DOCX
Researcher: MF Page 4 4/11/22
1. the request’s financial feasibility and impact on the applicant’s
rates and financial condition;
2. whether there is a clear public need for the request;
3. the relationship of any proposed change to the applicant’s
current utilization statistics;
4. the business interests and personal background of all owners,
partners, associates, incorporators, directors, sponsors,
stockholders, and operators; and
5. any other factor DSS deems relevant.
The bill requires DSS to consider how the request contributes to the
quality, accessibility, and cost-effectiveness of long-term care delivery,
rather than health care delivery, and additionally requires DSS to
consider the proposal’s effect on utilization statistics for other facilities
in the applicant’s service area. The bill eliminates requirements that DSS
consider the request’s relationship to the state health plan and include a
written explanation in its decision when the decision conflicts with the
plan.
Current law requires DSS, when determining whether there is a
public need for a request to relocate beds, to consider whether there is a
demonstrated bed need in the towns within a 15-mile radius of the town
where the proposal would relocate beds. The bill specifies that this only
applies to a request to relocate beds to a replacement facility, and
additionally requires DSS to consider whether the proposal will
adversely affect bed availability in the applicant’s service area.
For applications to establish a new or replacement nursing facility,
the bill requires DSS to consider whether the proposed facility is a
nontraditional, small-house style nursing facility and incorporates goals
for nursing facilities under the long-term care strategic plan, including:
1. promoting person-centered care,
2. providing enhanced quality of care, 2022SB-00290-R000399-BA.DOCX
Researcher: MF Page 5 4/11/22
3. creating community space for residents, and
4. developing stronger connections between residents and the
surrounding community.
CON REQUEST REVIEW AND APPROVAL PROCESS
Informal Conferences and Approval Conditions
By law, the DSS commissioner must grant, modify, or deny a CON
request within 90 days after receiving it, with certain exceptions. The bill
allows DSS to hold an informal conference with the facility while it
reviews the request to discuss the CON application. Under the bill, if the
DSS commissioner modifies the request, she must notify the facility
before issuing the decision and provide the applicant with an
opportunity for an informal conference to discuss the modifications.
The bill also allows the DSS commissioner to place conditions on any
decision approving or modifying a CON request as she deems
necessary, including project and Medicaid reimbursement details and
applicant requirements for summary and audit purposes.
CON Process for Capital Expenditures
Existing law establishes a similar process for facilities to request a
CON from DSS to incur capital expenditures over $2 million or over $1
million if the expenditure increases the facility’s square footage by 5,000
square feet or 5% of the existing square footage, whichever is larger.
Like the process described above, the DSS commissioner must grant,
modify, or deny a request within 90 days, with certain exceptions. The
bill allows her to place conditions on any decision approving or
modifying a request as she deems necessary to address specified
concerns, including project and Medicaid reimbursement details and
applicant requirements for summary and audit purposes. However,
existing law, unchanged by the bill, prohibits the commissioner, or her
designee, from prescribing any condition not directly related to the
capital program’s scope and within the facility’s control. The law
explicitly prohibits any condition or limitation on the facility’s
indebtedness in connection with a bond issued, the principal amount of 2022SB-00290-R000399-BA.DOCX
Researcher: MF Page 6 4/11/22
any bond issued, or any other details or particulars related to the capital
expenditure’s financing.
Additional DSS Stipulations
For CON applications, the bill allows the DSS commissioner to
request that any applicant seeking to replace an existing facility reduce
the number of beds in the new facility by a percentage consistent with
the long-term care strategic plan. If the applicant owns or operates more
than one nursing facility and seeks to replace an existing facility with a
new facility, the bill allows the DSS commissioner to request that the
applicant close two or more facilities before approving a proposal to
build a new one.
ADVERSE PROPOSED FINAL DECISIONS
Under the bill, for all CON requests, if the DSS commissioner’s
designee recommends denying the request, the decision is subject to
provisions on proposed final decisions under the state’s Uniform
Administrative Procedure Act (UAPA).
Under these UAPA provisions, if a majority of agency members who
will render a final decision have not heard the matter or read the record,
the decision, if adverse to the facility, may not be rendered until a
proposed final decision is served on the parties and each has an
opportunity to file exceptions and present briefs and oral argument to
agency members who will render the final decision. These proposed
final decisions must be in writing and include reasons for the decision,
finding of facts, and a legal conclusion on each issue of fact or law
necessary to the decision (CGS § 4-179).
PUBLIC HEARING NOTICE AND TIMING
For CON requests other than those to relocate beds, existing law
requires that the DSS commissioner or her designee hold a public
hearing. Current law requires her to do so within 30 days after receiving
either a letter of intent or a CON application, whichever is received first.
The bill instead requires her to do so within 30 days after receiving a
CON application. 2022SB-00290-R000399-BA.DOCX
Researcher: MF Page 7 4/11/22
Additionally, the bill (1) decreases, from 14 to 10 days, the amount of
advance notice DSS must provide the facility and the public before the
hearing and (2) requires DSS to notify the facility by email or first-class
mail rather than certified mail.
COMMITTEE ACTION
Human Services Committee
Joint Favorable Substitute
Yea 20 Nay 0 (03/24/2022)