By: Sheffield, Zerwas, Miller, White, H.B. No. 2766
Raymond, et al.
A BILL TO BE ENTITLED
AN ACT
relating to the creation and administration of a reinvestment
allowance for certain long-term care facilities.
BE IT ENACTED BY THE LEGISLATURE OF THE STATE OF TEXAS:
SECTION 1. Chapter 242, Health and Safety Code, is amended
by adding Subchapter P to read as follows:
SUBCHAPTER P. REINVESTMENT ALLOWANCE
Sec. 242.701. DEFINITIONS. In this subchapter:
(1) "Gross receipts" means the gross inpatient revenue
received by a facility from services provided to facility
residents. Gross receipts exclude revenue from nonresident care,
including beauty and barber services, vending facilities,
interest, charitable contributions, the sale of meals, and
outpatient services.
(2) "Non-Medicare patient day" means a day on which
the primary payer for a facility resident is not Medicare Part A or
a Medicare Advantage or special needs plan.
Sec. 242.702. APPLICABILITY. This subchapter does not
apply to:
(1) a state-owned veterans nursing facility; or
(2) a facility that provides on a single campus a
combination of services, which may include independent living
services, licensed assisted living services, or licensed nursing
facility care services, and that either:
(A) holds a certificate of authority to operate a
continuing care retirement community under Chapter 246; or
(B) had during the previous 12 months a combined
number of patient days of service provided to independent living
and assisted living residents, excluding services provided to
persons occupying facility beds in a licensed nursing facility,
that exceeded the number of patient days of service provided to
nursing facility residents.
Sec. 242.703. REINVESTMENT ALLOWANCE; COMPUTATION. (a)
The commission shall impose a reinvestment allowance on each
facility licensed under this chapter. The reinvestment allowance
is:
(1) the product of the amount established under
Subsection (b) multiplied by the number of a facility's
non-Medicare patient days calculated under Section 242.704;
(2) payable monthly; and
(3) in addition to other amounts imposed under this
chapter.
(b) The executive commissioner shall establish for each
non-Medicare patient day an amount for use in calculating the
reinvestment allowance sufficient to produce annual revenues from
all facilities not to exceed the maximum amount that may be assessed
within the indirect guarantee threshold provided under 42 C.F.R.
Section 433.68(f)(3)(i).
(c) The commission shall determine the amount described by
Subsection (b) using non-Medicare patient days and gross receipts:
(1) reported to the commission; and
(2) covering a period of at least six months.
(d) A facility may not list the reinvestment allowance as a
separate charge on a resident's billing statement or otherwise
directly or indirectly attempt to charge the reinvestment allowance
to a resident.
Sec. 242.704. PATIENT DAYS. For each calendar day, a
facility shall determine the number of non-Medicare patient days by
adding:
(1) the number of non-Medicare residents occupying a
bed in the facility immediately before midnight of that day plus the
number of residents admitted that day, less the number of residents
discharged that day, except a resident is included in the count
under this subdivision if:
(A) the resident is admitted and discharged on
the same day; or
(B) the resident is discharged that day because
of the resident's death; and
(2) the number of beds that are on hold that day and
that have been placed on hold for a period not to exceed three
consecutive calendar days during which a resident is:
(A) in the hospital; or
(B) on therapeutic home leave.
Sec. 242.705. COLLECTION AND REPORTING. (a) The
commission shall collect the reinvestment allowance.
(b) Not later than the 25th day after the last day of a
month, each facility shall:
(1) file with the commission a report stating the
total non-Medicare patient days for the month; and
(2) pay the reinvestment allowance.
Sec. 242.706. RULES; ADMINISTRATIVE PENALTY. (a) The
executive commissioner shall adopt rules to administer this
subchapter, including rules related to imposing and collecting the
reinvestment allowance.
(b) Notwithstanding Section 242.066, an administrative
penalty assessed under that section for a violation of this
subchapter may not exceed the greater of:
(1) one-half of the amount of the facility's
outstanding reinvestment allowance; or
(2) $20,000.
(c) An administrative penalty assessed for a violation of
this subchapter is in addition to the facility's outstanding
reinvestment allowance.
Sec. 242.707. NURSING FACILITY REINVESTMENT ALLOWANCE
TRUST FUND. (a) The nursing facility reinvestment allowance trust
fund is established as a trust fund to be held by the comptroller
outside of the state treasury and administered by the commission as
trustee. Interest and income from the assets of the trust fund
shall be credited to and deposited in the trust fund. The commission
may use money in the fund only as provided by Section 242.708.
(b) The commission shall remit the reinvestment allowance
collected under this subchapter and federal matching funds received
by this state to the comptroller for deposit in the trust fund.
Sec. 242.708. REIMBURSEMENT OF FACILITIES. (a) The
commission may use money in the nursing facility reinvestment
allowance trust fund, including any federal matching funds, only
for the following purposes:
(1) paying any commission cost to develop and
administer systems for managing the reinvestment allowance;
(2) reimbursing the Medicaid share of the reinvestment
allowance as an allowable cost in the Medicaid daily rate; and
(3) increasing reimbursement rates paid under the
state Medicaid program to facilities.
(b) The commission shall allocate 50 percent of the money
described by Subsection (a)(3) for increased reimbursement rate
payments based on the total rating of the Centers for Medicare and
Medicaid Services five-star quality rating system.
(c) The commission shall devise a formula by which amounts
received under this subchapter increase the reimbursement rates
paid to facilities under the state Medicaid program, including a
phase-in of the program described by Subsection (b) beginning on
September 1, 2018. The commission must include in the formula
consideration of the total rating described by Subsection (b).
(d) Money in the nursing facility reinvestment allowance
trust fund may not be used to expand Medicaid eligibility under the
Patient Protection and Affordable Care Act (Pub. L. No. 111-148) as
amended by the Health Care and Education Reconciliation Act of 2010
(Pub. L. No. 111-152).
Sec. 242.709. INVALIDITY; FEDERAL FUNDS. If any provision
of or procedure under this subchapter is held invalid by a final
court order that is not subject to appeal, or if the commission
determines that the imposition of the reinvestment allowance and
the expenditure of amounts collected as prescribed by this
subchapter will not entitle the state to receive federal matching
funds under the Medicaid program or will be inconsistent with the
objectives described by Section 537.002(b)(7), Government Code,
the commission shall:
(1) stop collection of the reinvestment allowance; and
(2) not later than the 30th day after the date
collection is stopped, return to each facility, in proportion to
the total amount paid by the facility, any money deposited to the
credit of the nursing facility reinvestment allowance trust fund
but not spent.
Sec. 242.710. AUTHORITY TO ACCOMPLISH PURPOSES OF
SUBCHAPTER. The executive commissioner by rule may adopt a
definition, a method of computation, or a rate that differs from
those expressly provided by or expressly authorized by this
subchapter to the extent the difference is necessary to accomplish
the purposes of this subchapter.
Sec. 242.711. ANNUAL REPORT. Not later than January 1 of
each year, the commission shall prepare and deliver to the
governor, the lieutenant governor, and the speaker of the house of
representatives a report relating to the status of the nursing
facility reinvestment allowance program, including fees collected,
federal funding applied for and received, quality-based payments
made, information on the overall quality of care in the Texas
nursing home system, whether quality-based payments are
contributing to quality improvements, and any other relevant
information necessary for assessing the effectiveness of the
nursing facility reinvestment allowance program. The report should
include any information associated with the role of the comptroller
and the Medicaid managed care participating plans. The report must
be posted on the commission's Internet website.
Sec. 242.712. PROGRAM EVALUATION. Not later than November
1, 2020, the commission shall prepare and deliver to the governor,
the lieutenant governor, and the speaker of the house of
representatives a report that assesses whether and to what degree
payments associated with quality-based care are resulting in
improvements to overall nursing home quality.
Sec. 242.713. EXPIRATION. This subchapter expires August
31, 2021.
SECTION 2. (a) As soon as practicable after the effective
date of this Act, the executive commissioner of the Health and Human
Services Commission shall:
(1) adopt the rules necessary to implement Subchapter
P, Chapter 242, Health and Safety Code, as added by this Act; and
(2) notwithstanding Section 242.703, Health and
Safety Code, as added by this Act, establish the amount of the
initial reinvestment allowance imposed under Subchapter P, Chapter
242, Health and Safety Code, as added by this Act, based on
available revenue and patient day information.
(b) The amount of the initial reinvestment allowance
established under Subsection (a) of this section remains in effect
until the Health and Human Services Commission obtains the
information necessary to set the amount of the reinvestment
allowance under Section 242.703, Health and Safety Code, as added
by this Act.
SECTION 3. If before implementing any provision of this Act
a state agency determines that a waiver or authorization from a
federal agency is necessary for implementation of that provision,
the agency affected by the provision shall request the waiver or
authorization and may delay implementing that provision until the
waiver or authorization is granted.
SECTION 4. Notwithstanding any other law, a reinvestment
allowance may not be imposed under Section 242.703, Health and
Safety Code, as added by this Act, or collected under Section
242.705, Health and Safety Code, as added by this Act, until an
amendment to the state Medicaid plan that increases the rates paid
to long-term care facilities licensed under Chapter 242, Health and
Safety Code, for providing services under the state Medicaid
program is approved by the Centers for Medicare and Medicaid
Services or another applicable federal government agency.
SECTION 5. The Health and Human Services Commission shall
retroactively compensate long-term care facilities licensed under
Chapter 242, Health and Safety Code, at the increased rate for
services provided under the state Medicaid program:
(1) beginning on the date the state Medicaid plan
amendment is approved by the Centers for Medicare and Medicaid
Services or another applicable federal government agency; and
(2) only for the period for which the reinvestment
allowance has been imposed and collected pursuant to the approval
described by Subdivision (1).
SECTION 6. The Health and Human Services Commission shall
discontinue the reinvestment allowance imposed under Subchapter P,
Chapter 242, Health and Safety Code, as added by this Act, if the
commission reduces Medicaid reimbursement rates, including rates
that increased due to funds from the nursing facility reinvestment
allowance trust fund or federal matching funds, below the rates in
effect on September 1, 2017.
SECTION 7. This Act takes effect immediately if it receives
a vote of two-thirds of all the members elected to each house, as
provided by Section 39, Article III, Texas Constitution. If this
Act does not receive the vote necessary for immediate effect, this
Act takes effect September 1, 2017.