86R4872 LED-F
By: Sheffield H.B. No. 3342
A BILL TO BE ENTITLED
AN ACT
relating to the creation and operation of a health care quality
provider participation program; authorizing an administrative
penalty.
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. QUALITY PROVIDER PARTICIPATION PROGRAM
Sec. 242.701. PURPOSE. The purpose of this subchapter is to
authorize the commission to administer a long-term care quality
provider participation program that provides additional
compensation to nursing facilities that meet quality requirements
and to increase Medicaid reimbursement rates by collecting payments
from certain nursing facilities. The payments must be used to pay
the nonfederal share of the quality provider participation program
and for other purposes authorized by this subchapter.
Sec. 242.702. DEFINITION. In this subchapter,
"non-Medicare resident day" means a day on which the primary payer
for a nursing facility resident is not Medicare Part A or a Medicare
Advantage or special needs plan.
Sec. 242.703. APPLICABILITY. This subchapter does not
apply to:
(1) a state-owned veterans nursing facility;
(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:
(i) a combined number of non-Medicare
resident 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 non-Medicare resident days of service
provided to nursing facility residents; and
(ii) on a contiguous campus of a facility, a
minimum ratio of two licensed independent or assisted living beds
for each one nursing facility bed; or
(3) a nonprofit corporation governed by Chapter 22,
Business Organizations Code.
Sec. 242.704. CALCULATION OF PAYMENTS. (a) Each nursing
facility to which this subchapter applies shall pay a quality
provider participation payment. The amount of the payment may not
be uniform to satisfy the redistributive requirements of 42 C.F.R.
Section 433.68(e)(2)(i).
(b) The commission annually shall calculate the quality
provider participation payment. The payment must be set in
accordance with the maximum rate allowed under 42 C.F.R. Section
433.68(f)(3)(i).
(c) If, during the course of the state fiscal year, the
commission determines that the total amount of quality provider
participation payment revenue differs significantly from the
amount previously estimated, the commission may recalculate and
prospectively modify the payment amount to reflect the
recalculation.
(d) A nursing facility may not list the quality provider
participation payment as a separate charge on a resident's billing
statement or otherwise directly or indirectly attempt to charge the
payment to a resident.
Sec. 242.705. RESIDENT DAYS. For each calendar day, a
nursing facility shall determine the number of non-Medicare
resident days by adding the number of non-Medicare residents
occupying a bed in the nursing 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 section if:
(1) the resident is admitted and discharged on the
same day; or
(2) the resident is discharged that day because of the
resident's death.
Sec. 242.706. COLLECTION AND REPORTING. (a) The
commission shall impose and collect the quality provider
participation payment.
(b) Not later than the 25th day after the last day of a
month, each nursing facility shall:
(1) file with the commission a report stating the
total non-Medicare resident days for the month; and
(2) pay the quality provider participation payment.
Sec. 242.707. RULES; ADMINISTRATIVE PENALTY. (a) The
executive commissioner shall adopt rules to administer this
subchapter, including rules related to imposing and collecting the
quality provider participation payment.
(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 nursing facility's
outstanding quality provider participation payment; or
(2) $20,000.
(c) An administrative penalty assessed for a violation of
this subchapter is in addition to the nursing facility's
outstanding quality provider participation payment.
(d) A facility described by Section 242.703 is not subject
to an administrative penalty under this subchapter.
Sec. 242.708. QUALITY PROVIDER PARTICIPATION PROGRAM TRUST
FUND. (a) The quality provider participation program 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 242.709.
(b) The commission shall remit the quality provider
participation payment collected under this subchapter to the
comptroller for deposit in the trust fund.
Sec. 242.709. REIMBURSEMENT OF FACILITIES. (a) The
commission shall use money in the quality provider participation
program trust fund, along with any corresponding federal matching
funds, only for the following purposes:
(1) paying any reasonable and necessary commission
cost to develop and administer systems for managing the quality
provider participation payment;
(2) reimbursing the Medicaid share of the payment as
an allowable cost in the Medicaid daily rate; and
(3) allocating the remainder to improve resident care
and quality of life and to be distributed as follows:
(A) 50 percent of the remainder must be
distributed through increased reimbursement rates to nursing
facilities that participate in the state Medicaid program and
demonstrate historical expenditures for capital improvements,
renovations, or other enhancements designed to create a more
home-like environment, wages and benefits, or other direct care
services; and
(B) 50 percent of the remainder must be
distributed to nursing facilities based on the following in order
of importance:
(i) performance under the Centers for
Medicare and Medicaid Services five-star quality rating system;
(ii) increases in direct care staffing and
revenue enhancements program funding for participating facilities
under Sections 32.028(g) and (i), Human Resources Code, to the
maximum level achieved and allowed for those facilities on
September 1, 2019; and
(iii) development and funding of additional
quality payments for unique, long-term care needs that are not
funded separately, including Alzheimer's disease, dementia,
obesity, and other conditions or initiatives identified by the
commission.
(a-1) Notwithstanding Subsection (a)(3), before September
1, 2020, the commission shall allocate 100 percent of the remainder
of the money described by that subsection for distribution to
nursing facilities that participate in the state Medicaid program.
(a-2) The programs described by Subsection (a)(3) may not
begin earlier than September 1, 2020. This subsection and
Subsection (a-1) expire September 1, 2023.
(b) In consultation with the advisory committee established
under Section 242.712, the commission shall devise a formula by
which amounts received under this subchapter increase the
reimbursement rates paid to nursing facilities under the state
Medicaid program consistent with Subsection (a)(3) and with the
goal of improving resident care and quality. The commission, in
consultation with the advisory committee, shall develop a weighted
formula for distributing the money described by Subsection
(a)(3)(B).
(c) The commission shall distribute unearned money for the
programs described by Subsection (a)(3) to all nursing facilities
that qualify for a distribution in proportion to the amount of the
total earned money each qualifying nursing facility receives.
(d) Money in the quality provider participation program
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. 242.710. 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 quality provider
participation payment 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 payment; and
(2) not later than the 30th day after the date
collection is stopped, return to each nursing facility, in
proportion to the total amount paid by each facility compared to the
total amount paid by all facilities, any unspent money deposited to
the credit of the quality provider participation program trust
fund.
Sec. 242.711. AUTHORITY TO ACCOMPLISH PURPOSES OF
SUBCHAPTER. (a) Subject to Subsection (b), 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.
(b) The executive commissioner may not modify the
applicability of this subchapter under Section 242.703.
Sec. 242.712. ADVISORY COMMITTEE. (a) The commission
shall establish an advisory committee of interested persons to make
recommendations to the commission before the adoption of a rule,
policy, or procedure affecting persons regulated under this
subchapter. The advisory committee has the purposes, powers, and
duties prescribed by the commission.
(b) Chapter 2110, Government Code, does not apply to the
advisory committee.
(c) The commission shall appoint to the advisory committee
individuals who:
(1) are selected from a list provided by the executive
commissioner;
(2) have knowledge about and interests in the work of
the advisory committee; and
(3) represent a broad range of viewpoints on the work
of the advisory committee.
(d) The advisory committee must include a member of the
public if the commission determines that is appropriate and
beneficial.
(e) A member of the advisory committee may not receive
compensation for serving on the committee and may not be reimbursed
for travel expenses incurred while conducting the business of the
committee.
(f) Meetings of the committee are subject to Chapter 551,
Government Code.
Sec. 242.713. EXPIRATION. This subchapter expires August
31, 2029.
SECTION 2. (a) Not later than January 1, 2020, the
executive commissioner of the Health and Human Services Commission
shall establish the advisory committee as required by Section
242.712, Health and Safety Code, as added by this Act.
(b) As soon as practicable after the effective date of this
Act, the executive commissioner of the Health and Human Services
Commission shall:
(1) in consultation with the advisory committee
established by Section 242.712, Health and Safety Code, as added by
this Act, adopt the rules necessary to implement Subchapter P,
Chapter 242, Health and Safety Code, as added by this Act; and
(2) notwithstanding Section 242.704, Health and
Safety Code, as added by this Act, establish the amount of the
initial payment imposed under Subchapter P, Chapter 242, Health and
Safety Code, as added by this Act, based on available revenue and
resident day information.
(c) The amount of the initial payment established under
Subsection (b) of this section remains in effect until the Health
and Human Services Commission obtains the information necessary to
set the amount of the payment under Section 242.704, 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 shall delay implementing that provision until the
waiver or authorization is granted. The agency shall begin
implementing the provision on the date the waiver or authorization
is granted.
SECTION 4. Notwithstanding any other law, a payment may not
be imposed under Section 242.704, Health and Safety Code, as added
by this Act, or collected under Section 242.706, 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 payment has been
imposed and collected.
SECTION 6. The Health and Human Services Commission shall
discontinue the payment imposed under Subchapter P, Chapter 242,
Health and Safety Code, as added by this Act, if the commission
reduces Medicaid reimbursement rates below the sum of:
(1) the rates in effect on September 1, 2019; and
(2) the rates that increased due to funds from the
quality provider participation program trust fund and federal
matching funds.
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, 2019.