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HOUSE OF REPRESENTATIVES - FLOOR VERSION
STATE OF OKLAHOMA
1st Session of the 59th Legislature (2023)
COMMITTEE SUBSTITUTE
FOR
HOUSE BILL NO. 1659 By: McEntire of the House
and
Rosino of the Senate
COMMITTEE SUBSTITUTE
An Act relating to public health and safety; amending
63 O.S. 2021, Section 1-1925.2, which relates to
recalculation and reimbursement from the Nursing
Facility Quality Care Fund ; removing the advisory
committee; removing the purpose of the committee; and
providing an effective date.
BE IT ENACTED BY THE PEOPLE OF THE STATE OF OKLA HOMA:
SECTION 1. AMENDATORY 63 O.S. 202 1, Section 1-1925.2, is
amended to read as follows:
Section 1-1925.2 A. The Oklahoma Health Care Authority shall
fully recalculate and reimburse nursing facilities and Intermediate
Care Facilities for Individuals with Intellectual Disabilities
(ICFs/IID) from the Nursing Facility Quality of Care Fund beginning
October 1, 2000, the average actual, audited costs reflected in
previously submitted cost reports for the cost -reporting period that
began July 1, 1998, and ended June 30, 1999, inflated by the
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federally published inflationa ry factors for the two (2) years
appropriate to reflect present -day costs at the midpoint of the July
1, 2000, through June 30, 2001, rate year.
1. The recalculations provi ded for in this subsection shall be
consistent for both nursing facilities and Inte rmediate Care
Facilities for Individual s with Intellectual Disabilities
(ICFs/IID).
2. The recalculated r eimbursement rate shall be implemented
September 1, 2000.
B. 1. From September 1, 2000, through August 31, 2001, all
nursing facilities subject to t he Nursing Home Care Act, in addition
to other state and federal requirements related to the staffing of
nursing facilities, shall maintain the following minimum direct -
care-staff-to-resident ratios:
a. from 7:00 a.m. to 3:00 p.m., one direct -care staff to
every eight residents, or major fracti on thereof,
b. from 3:00 p.m. to 11:00 p.m., one direct -care staff to
every twelve residents, or major fraction thereof, and
c. from 11:00 p.m. to 7:00 a.m., one direct-care staff to
every seventeen residents, or majo r fraction thereof.
2. From September 1, 2001, through August 31, 2003, nursing
facilities subject to the Nursing Home Care Act and Intermediate
Care Facilities for Individ uals with Intellectual Disabilities
(ICFs/IID) with seventeen or more beds shall ma intain, in addition
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to other state and federal requirements related to the staffing of
nursing facilities, the following minimum direct-care-staff-to-
resident ratios:
a. from 7:00 a.m. to 3:00 p.m., one direct-care staff to
every seven residents, or major fraction thereof,
b. from 3:00 p.m. to 11:00 p.m., one direct -care staff to
every ten residents, or major fraction thereof, and
c. from 11:00 p.m. to 7:00 a.m., one direct -care staff to
every seventeen residents, or major fraction thereof.
3. On and after October 1, 2019, nursing facilities su bject to
the Nursing Home Care Act and Intermediate Care Facilities for
Individuals with Intellectual Disabilities (ICFs/IID) with sev enteen
or more beds shall maintain, in addition to other state and federal
requirements related to the staffing of nursing facilities, the
following minimum direct -care-staff-to-resident ratios:
a. from 7:00 a.m. to 3:00 p.m., one direct -care staff to
every six residents, or major fraction thereof,
b. from 3:00 p.m. to 11:00 p.m., one di rect-care staff to
every eight resident s, or major fraction thereof, and
c. from 11:00 p.m. to 7:00 a.m., one direct-care staff to
every fifteen residents, or major fraction thereof.
4. Effective immediately, facilities shall have the option of
varying the starting times for the eight -hour shifts by one (1) hour
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before or one (1) hour after the times designat ed in this section
without overlapping shifts.
5. a. On and after January 1, 2020, a facility may implement
twenty-four-hour-based staff scheduling; p rovided,
however, such facility shall c ontinue to maintain a
direct-care service rate of at least two and nine
tenths (2.9) ninety one-hundredths (2.90) hours of
direct-care service per resident per day, the same to
be calculated based on average direct care staff
maintained over a tw enty-four-hour period.
b. At no time shall direct-care staffing ratios in a
facility with twenty-four-hour-based staff-scheduling
privileges fall below one direct-care staff to every
fifteen residents or major fraction thereof, and at
least two direct-care staff shall be on duty and awake
at all times.
c. As used in this paragraph, "twenty-four-hour-based-
staff scheduling" means maintaining:
(1) a direct-care-staff-to-resident ratio based on
overall hours of direct-care service per resident
per day rate of not le ss than two and ninety one -
hundredths (2.90) hours per day,
(2) a direct-care-staff-to-resident ratio of at least
one direct-care staff person on duty to every
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fifteen residents or major fraction t hereof at
all times, and
(3) at least two direct-care staff persons on duty
and awake at all times .
6. a. On and after January 1, 2004, the State Department of
Health shall require a facility to m aintain the shift-
based, staff-to-resident ratios provided i n paragraph
3 of this subsection if the facility has been
determined by the Department to be defic ient with
regard to:
(1) the provisions of paragraph 3 of this subse ction,
(2) fraudulent reporting of staffing on the Quality
of Care Report, or
(3) a complaint or survey investigation that has
determined substandard quality of care as a
result of insufficient staffing.
b. The Department shall require a facility described in
subparagraph a of this par agraph to achieve and
maintain the shift-based, staff-to-resident ratios
provided in paragraph 3 of this subsection for a
minimum of three (3) months before b eing considered
eligible to implement twenty-four-hour-based staff
scheduling as defined in subpar agraph c of paragraph 5
of this subsection.
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c. Upon a subsequent determination by the Department that
the facility has achieved and maintained for at least
three (3) months the shift -based, staff-to-resident
ratios described in paragraph 3 of this subsecti on,
and has corrected any deficiency described in
subparagraph a of this paragraph, the Department shall
notify the facility of its eligibility to implement
twenty-four-hour-based staff-scheduling privileges.
7. a. For facilities that utilize twenty -four-hour-based
staff-scheduling privileges, the Department shall
monitor and evaluate facility compliance with the
twenty-four-hour-based staff-scheduling staffing
provisions of paragraph 5 of t his subsection through
reviews of monthly staffing reports, results of
complaint investigations and inspections.
b. If the Department identifies any quality -of-care
problems related to i nsufficient staffing in such
facility, the Department shall issue a di rected plan
of correction to the faci lity found to be out of
compliance with the provisions of this subsection.
c. In a directed plan of correction, the Department shall
require a facility described in subparagraph b of this
paragraph to maintain shift -based, staff-to-resident
ratios for the following periods of time:
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(1) the first determination shall require that shift -
based, staff-to-resident ratios be maintained
until full compliance i s achieved,
(2) the second determinatio n within a two-year period
shall require that shift-based, staff-to-resident
ratios be maintained for a minimum period of
twelve (12) months, and
(3) the third determination within a two -year period
shall require that shift-based, staff-to-resident
ratios be maintained. The facility ma y apply for
permission to use twenty -four-hour staffing
methodology after two (2) years.
C. Effective September 1, 2002, facil ities shall post the names
and titles of direct -care staff on duty each day in a conspicuous
place, including the name and title of the supervising nurse.
D. The State Commissioner of Health shal l promulgate rules
prescribing staffing requirements for Int ermediate Care Facilities
for Individuals with Intellectual Disabilities serving six or fewer
clients (ICFs/IID-6) and for Intermediate Care Facilities for
Individuals with Intellectual Disabiliti es serving sixteen or fewer
clients (ICFs/IID-16).
E. Facilities shall have the right to appeal and to the
informal dispute resolution process with regard to penalties and
sanctions imposed due to staffing noncompliance.
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F. 1. When the state Medicaid pr ogram reimbursement rate
reflects the sum of Ninety -four Dollars and eleven cents ($94.11),
plus the increases in actua l audited costs over and above the actu al
audited costs reflected in t he cost reports submitted for the mos t
current cost-reporting period and the costs estimated by the
Oklahoma Health Care Author ity to increase the direct -care, flexible
staff-scheduling staffing level from two and eighty -six one-
hundredths (2.86) hours per day per occupied bed to three and tw o-
tenths (3.2) hours per day p er occupied bed, all nursing facilities
subject to the provi sions of the Nursing Home Care Act and
Intermediate Care Fa cilities for Individuals with Intellect ual
Disabilities (ICFs/IID) wit h seventeen or more beds, in addition to
other state and federal re quirements related to the staffing of
nursing facilities, sh all maintain direct-care, flexible staff -
scheduling staffing levels based on an overall three and two-tenths
(3.2) hours per day per occupied bed.
2. When the state Medicaid program reimbursement rate reflects
the sum of Ninety-four Dollars and eleven cen ts ($94.11), plus the
increases in actual audited costs ove r and above the actual audited
costs reflected in the cost reports sub mitted for the most current
cost-reporting period and the costs est imated by the Oklahoma Health
Care Authority to increase the direct-care flexible staff-scheduling
staffing level from three and two-tenths (3.2) hours per da y per
occupied bed to three and eight-tenths (3.8) hours per day per
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occupied bed, all nursing fac ilities subject to the provisions of
the Nursing Home Care A ct and Intermediate Care Facilities for
Individuals with Intellectual Disabilities (ICFs/IID) with seventeen
or more beds, in add ition to other state and federal requ irements
related to the staffi ng of nursing facilities, shall maintain
direct-care, flexible staff-scheduling staffing levels based on an
overall three and eight-tenths (3.8) hours per day per occupied bed.
3. When the state Medicaid program reimbursement rate reflects
the sum of Ninety-four Dollars and eleven cents ($94.11), plus the
increases in actual audited costs over and above the actual audited
costs reflected in the cost reports su bmitted for the most current
cost-reporting period and the costs est imated by the Oklahoma Health
Care Authority to increase the direct-care, flexible staff -
scheduling staffing level from three and eight -tenths (3.8) hours
per day per occupied bed to four and one-tenth (4.1) hours per d ay
per occupied bed, all nursing faci lities subject to the provisio ns
of the Nursing Home Care Act and Intermediate Care Facili ties for
Individuals with Intellectual Disabilities (ICFs/I ID) with seventeen
or more beds, in add ition to other state and federa l requirements
related to the staffin g of nursing facilities, shall maintain
direct-care, flexible staff -scheduling staffing le vels based on an
overall four and one -tenth (4.1) hours per day per occupied bed.
4. The Commissioner shall promulgate rules for shift-based,
staff-to-resident ratios for noncompliant facilities denoting the
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incremental increases reflected in direct -care, flexible staff-
scheduling staffing levels.
5. In the event that the state Medicaid program reimb ursement
rate for facilities su bject to the Nursing Home Care Act, a nd
Intermediate Care Facilitie s for Individuals with Intellectual
Disabilities (ICFs/IID) having with seventeen or more beds is
reduced below actual audit ed costs, the requirements for staffing
ratio levels shall be adj usted to the appropriate levels provided i n
paragraphs 1 through 4 of this subsection.
G. For purposes of this subsection:
1. "Direct-care staff" means any nursing or therapy staff who
provides direct, hands-on care to residents in a nursing facility;
2. Prior to September 1, 2003, activity and social services
staff who are not providing direct, hands-on care to residents may
be included in the direct-care-staff-to-resident ratio in any shi ft.
On and after September 1, 2003, su ch persons shall not be in cluded
in the direct-care-staff-to-resident ratio, regardless of th eir
licensure or certification status; and
3. The administrator shall not be counted in the direct -care-
staff-to-resident ratio regardless of the administrator 's licensure
or certification status.
H. 1. The Oklahoma Health Care Authority shall require a ll
nursing facilities subject to the provisions of the Nursing Ho me
Care Act and Intermediate Care Facilities for Individual s with
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Intellectual Disabilities (ICFs/ IID) with seventeen or mor e beds to
submit a monthly report on staff ing ratios on a form that the
Authority shall develop.
2. The report shall document the e xtent to which such
facilities are meeting or are failing t o meet the minimum direct -
care-staff-to-resident ratios specified by this section. Such
report shall be available to the public upo n request.
3. The Authority may assess administrative penalties for the
failure of any facility to submit the report as req uired by the
Authority. Provided, howe ver:
a. administrative penalties shall not accrue until the
Authority notifies the facility i n writing that the
report was not timely submitted as required, a nd
b. a minimum of a one-day penalty shall be assessed in
all instances.
4. Administrative penalt ies shall not be assessed for
computational errors made in preparing the report.
5. Monies collected from administrative penalties shall be
deposited in the Nursing Facility Quality of Care Fund and utilized
for the purposes specified in the Oklahoma Heal thcare Initiative
Act.
I. 1. All entities regulated by this state that provide long-
term care services shall utilize a single assessment tool to
determine client services needs. The tool shall be developed by the
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Oklahoma Health Care Authority in consul tation with the State
Department of Health.
2. a. The Oklahoma Nursing Facility Funding Advis ory
Committee is hereby created and shall consist of the
following:
(1) four members selected by the Oklahoma Association
of Health Care Providers,
(2) three members selected by the Oklahom a
Association of Homes and Services for th e Aging,
and
(3) two members selected by the State Council on
Aging.
The Chair shall be el ected by the committee. No state
employees may be appointe d to serve.
b. The purpose of the advis ory committee will be to
develop a new methodology for calculating s tate
Medicaid program rei mbursements to nursing facilities
by implementing facility -specific rates based on
expenditures relating to direct care staf fing. No
nursing home will receive les s than the current rate
at the time of implementation of facility -specific
rates pursuant to this subparagraph.
c. The advisory committee shall be staffed and advised by
the Oklahoma Health Care Authority.
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d. The new methodology will be submitted for appr oval to
the Board of the Oklahoma Health Care Authority by
January 15, 2005, and shall be f inalized by July 1,
2005. The new methodology will apply only to new
funds that become available for Medicaid nursing
facility reimbursement after the methodology o f this
paragraph has been f inalized. Existing funds paid to
nursing homes will not be subj ect to the methodology
of this paragraph. The methodology as out lined in
this paragraph will only be applied to any new fundi ng
for nursing facilities appropriated above and beyond
the funding amounts effective on January 15, 2005.
e. The new methodology shall divide the payment into two
components:
(1) direct care which includes allowable costs for
registered nurses, licensed p ractical nurses,
certified medication a ides and certified nurse
aides. The direct care component of the rat e
shall be a facility-specific rate, directly
related to each facility 's actual expenditures on
direct care, and
(2) other costs.
f.
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a. The Oklahoma Health Care Authority, in calculating the
base year prospective d irect care rate component,
shall use the following criteria:
(1) to construct an array of facility per diem
allowable expenditures on direct care, the
Authority shall use the most recent data
available. The limit on this array shal l be no
less than the ninetieth percentile,
(2) each facility's direct care base-year component
of the rate shall be the lesser of the facility 's
allowable expenditures on direct care or the
limit,
(3) other rate components shall be determined by the
Oklahoma Nursing Facility Fun ding Advisory
Committee in accordance with fe deral regulations
and requirements,
(4) prior to July 1, 2020, the Authority shal l seek
federal approval to calculate the upper payment
limit under the authority of Centers for Medicare
and Medicaid Services (CMS) utilizing the
Medicare equivalent payment rate, and
(5)
(4) if Medicaid payment rates to providers are
adjusted, nursing home rates and Intermediate
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Care Facilities for Ind ividuals with Intellectual
Disabilities (ICFs/IID) rates shall not be
adjusted less favorably than the average
percentage-rate reduction or in crease applicable
to the majority of other provider groups.
g.
b. (1) Effective October 1, 2019, if sufficient fun ding
is appropriated for a rate increase, a new
average rate for nursi ng facilities shall be
established. The rate shall be equal to the
statewide average cost as derived from audited
cost reports for SFY 2018, ending June 30, 2018,
after adjustment for i nflation. After such new
average rate has been established, the facil ity
specific reimbursement rate shall be as follows:
(a) amounts up to the existing base rate amount
shall continue to be distributed as a part
of the base rate in accordance with the
existing State Plan, and
(b) to the extent the new rate exceeds the rate
effective before the effective date of this
act, fifty percent (50%) of the resulting
increase on October 1, 2019, shall be
allocated toward an increase of the existing
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base reimbursement rate and distributed
accordingly. The remaining fifty percent
(50%) of the increase shall be allocated in
accordance with the currently ap proved 70/30
reimbursement rate methodology as outlined
in the existing State Plan.
(2) Any subsequent rate increa ses, as determined
based on the provisions set forth in this
subparagraph, shall be allocated in accordance
with the currently approved 70/30 reimbursement
rate methodology. The rate shall not exceed the
upper payment limit established by the Medicare
rate equivalent established by the federal CMS.
h.
c. Effective October 1, 2 019, in coordination with the
rate adjustments identified in the prec eding section,
a portion of the funds shall be utilized as follows:
(1) effective October 1, 2019, the Oklahoma He alth
Care Authority shall increase the personal needs
allowance for residents of nursing homes and
Intermediate Care Facilities for Individual s with
Intellectual Disabilities (ICFs/IID) from Fifty
Dollars ($50.00) per month to Seventy -five
Dollars ($75.00) per month per resident. The
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increase shall be funded by Medicaid nursin g home
providers, by way of a reduction of eighty-two
cents ($0.82) per day deducted from the base
rate. Any additional cost shall be funded by the
Nursing Facility Quality of Care F und, and
(2) effective January 1, 2020, all clinical employees
working in a licensed nursing facility shall be
required to receive at least fo ur (4) hours
annually of Alzheimer's or dementia training, to
be provided and paid for by the facilities.
3. 2. The Department of Human Services shall expand its
statewide, toll-free, Senior-Info Line for senior citizen services
to include assistance with or information on long-term care services
in this state.
4. 3. The Oklahoma Health Care Authority shall develop a
nursing facility cost -reporting system that reflects the most
current costs experienced by nursing and specialized fa cilities.
The Oklahoma Health Care Authority shall utilize the most current
cost report data to estimate costs in determining daily per d iem
rates.
5. 4. The Oklahoma Health Care Authority shall provide access
to the detailed Medicaid payment audit adjustme nts and implement an
appeal process for disputed payment audit adjust ments to the
provider. Additionally, the Oklahoma Health Care Aut hority shall
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make sufficient revisions to the nursing facility cost reporting
forms and electronic data input system so a s to clarify what
expenses are allowable and appropriate for inclusio n in cost
calculations.
J. 1. When the state Medicaid program re imbursement rate
reflects the sum of Ninety -four Dollars and eleven cents ($94.1 1),
plus the increases in actual audited costs, over and abov e the
actual audited costs reflected in the cost reports submitted for the
most current cost-reporting period, and the direct-care, flexible
staff-scheduling staffing level has been prospectively funded at
four and one-tenth (4.1) hours per day per occupied bed, the
Authority may apportion funds for the implementation of the
provisions of this section.
2. The Authority shall make application to the United States
Centers for Medicare and Medica id Service Services for a waiver of
the uniform requirement on health-care-related taxes as permitted by
Section 433.72 of 42 C.F.R., Section 433.72.
3. Upon approval of the waiver, the Authority shall develop a
program to implement the provisions of the waiver as it relates to
all nursing facilities.
SECTION 2. This act shall become effective November 1, 2023.
COMMITTEE REPORT BY: COMMITTEE ON ADMINISTRATIVE RULES, dated
03/02/2023 - DO PASS, As Amended and Coauthored.