Chapter 5165: MEDICAID COVERAGE OF NURSING FACILITY SERVICES

5165.01 [Renumbered from 5111.20] Definitions.

As used in this chapter:

(A) "Affiliated operator" means an operator affiliated with either of the following:

(1) The exiting operator for whom the affiliated operator is to assume liability for the entire amount of the exiting operator's debt under the medicaid program or the portion of the debt that represents the franchise permit fee the exiting operator owes;

(2) The entering operator involved in the change of operator with the exiting operator specified in division (A)(1) of this section.

(B) "Allowable costs" are a nursing facility's costs that the department of medicaid determines are reasonable . Fines paid under sections 5165.60 to 5165.89 and section 5165.99 of the Revised Code are not allowable costs.

(C) "Ancillary and support costs" means all reasonable costs incurred by a nursing facility other than direct care costs, tax costs, or capital costs. "Ancillary and support costs" includes, but is not limited to, costs of activities, social services, pharmacy consultants, habilitation supervisors, qualified mental retardation professionals, program directors, medical and habilitation records, program supplies, incontinence supplies, food, enterals, dietary supplies and personnel, laundry, housekeeping, security, administration, medical equipment, utilities, liability insurance, bookkeeping, purchasing department, human resources, communications, travel, dues, license fees, subscriptions, home office costs not otherwise allocated, legal services, accounting services, minor equipment, maintenance and repairs, help-wanted advertising, informational advertising, start-up costs, organizational expenses, other interest, property insurance, employee training and staff development, employee benefits, payroll taxes, and workers' compensation premiums or costs for self-insurance claims and related costs as specified in rules adopted under section 5165.02 of the Revised Code, for personnel listed in this division. "Ancillary and support costs" also means the cost of equipment, including vehicles, acquired by operating lease executed before December 1, 1992, if the costs are reported as administrative and general costs on the nursing facility's cost report for the cost reporting period ending December 31, 1992.

(D)

(1) "Capital costs" means the actual expense incurred by a nursing facility for all of the following:

(a) Depreciation and interest on any capital assets that cost five hundred dollars or more per item, including the following:

(i) Buildings;

(ii) Building improvements;

(iii) Except as provided in division (C) of this section, equipment;

(iv) Transportation equipment.

(b) Amortization and interest on land improvements and leasehold improvements;

(c) Amortization of financing costs;

(d) Lease and rent of land, buildings, and equipment.

(2) The costs of capital assets of less than five hundred dollars per item may be considered capital costs in accordance with a provider's practice.

(E) "Capital lease" and "operating lease" shall be construed in accordance with generally accepted accounting principles.

(F) "Case-mix score" means a measure determined under section 5165.192 of the Revised Code of the relative direct-care resources needed to provide care and habilitation to a nursing facility resident.

(G) "Change of operator" means an entering operator becoming the operator of a nursing facility in the place of the exiting operator.

(1) Actions that constitute a change of operator include the following:

(a) A change in an exiting operator's form of legal organization, including the formation of a partnership or corporation from a sole proprietorship;

(b) A transfer of all the exiting operator's ownership interest in the operation of the nursing facility to the entering operator, regardless of whether ownership of any or all of the real property or personal property associated with the nursing facility is also transferred;

(c) A lease of the nursing facility to the entering operator or the exiting operator's termination of the exiting operator's lease;

(d) If the exiting operator is a partnership, dissolution of the partnership;

(e) If the exiting operator is a partnership, a change in composition of the partnership unless both of the following apply:

(i) The change in composition does not cause the partnership's dissolution under state law.

(ii) The partners agree that the change in composition does not constitute a change in operator.

(f) If the operator is a corporation, dissolution of the corporation, a merger of the corporation into another corporation that is the survivor of the merger, or a consolidation of one or more other corporations to form a new corporation.

(2) The following, alone, do not constitute a change of operator:

(a) A contract for an entity to manage a nursing facility as the operator's agent, subject to the operator's approval of daily operating and management decisions;

(b) A change of ownership, lease, or termination of a lease of real property or personal property associated with a nursing facility if an entering operator does not become the operator in place of an exiting operator;

(c) If the operator is a corporation, a change of one or more members of the corporation's governing body or transfer of ownership of one or more shares of the corporation's stock, if the same corporation continues to be the operator.

(H) "Cost center" means the following:

(1) Ancillary and support costs;

(2) Capital costs;

(3) Direct care costs;

(4) Tax costs.

(I) "Custom wheelchair" means a wheelchair to which both of the following apply:

(1) It has been measured, fitted, or adapted in consideration of either of the following:

(a) The body size or disability of the individual who is to use the wheelchair;

(b) The individual's period of need for, or intended use of, the wheelchair.

(2) It has customized features, modifications, or components, such as adaptive seating and positioning systems, that the supplier who assembled the wheelchair, or the manufacturer from which the wheelchair was ordered, added or made in accordance with the instructions of the physician of the individual who is to use the wheelchair.

(J)

(1) "Date of licensure" means the following:

(a) In the case of a nursing facility that was required by law to be licensed as a nursing home under Chapter 3721. of the Revised Code when it originally began to be operated as a nursing home, the date the nursing facility was originally so licensed ;

(b) In the case of a nursing facility that was not required by law to be licensed as a nursing home when it originally began to be operated as a nursing home , the date it first began to be operated as a nursing home , regardless of the date the nursing facility was first licensed as a nursing home.

(2) If , after a nursing facility's original date of licensure, more nursing home beds are added to the nursing facility, the nursing facility has a different date of licensure for the additional beds . This does not apply, however, to additional beds when both of the following apply:

(a) The additional beds are located in a part of the nursing facility that was constructed at the same time as the continuing beds already located in that part of the nursing facility;

(b) The part of the nursing facility in which the additional beds are located was constructed as part of the nursing facility at a time when the nursing facility was not required by law to be licensed as a nursing home.

(3) The definition of "date of licensure" in this section applies in determinations of nursing facilities' medicaid payment rates but does not apply in determinations of nursing facilities' franchise permit fees.

(K) "Desk-reviewed" means that a nursing facility's costs as reported on a cost report submitted under section 5165.10 of the Revised Code have been subjected to a desk review under section 5165.108 of the Revised Code and preliminarily determined to be allowable costs.

(L) "Direct care costs" means all of the following costs incurred by a nursing facility:

(1) Costs for registered nurses, licensed practical nurses, and nurse aides employed by the nursing facility;

(2) Costs for direct care staff, administrative nursing staff, medical directors, respiratory therapists, and except as provided in division (L)(8) of this section, other persons holding degrees qualifying them to provide therapy;

(3) Costs of purchased nursing services;

(4) Costs of quality assurance;

(5) Costs of training and staff development, employee benefits, payroll taxes, and workers' compensation premiums or costs for self-insurance claims and related costs as specified in rules adopted under section 5165.02 of the Revised Code, for personnel listed in divisions (L)(1), (2), (4), and (8) of this section;

(6) Costs of consulting and management fees related to direct care;

(7) Allocated direct care home office costs

;

(8) Costs of habilitation staff (other than habilitation supervisors), medical supplies, emergency oxygen, over-the-counter pharmacy products, behavioral and mental health services, physical therapists, physical therapy assistants, occupational therapists, occupational therapy assistants, speech therapists, audiologists, habilitation supplies, and universal precautions supplies ;

(9) Until January 1, 2014, costs of oxygen, wheelchairs, and resident transportation;

(10) Beginning January 1, 2014, costs of both of the following:

(a) Emergency oxygen;

(b) Wheelchairs other than the following:

(i) Custom wheelchairs;

(ii) Repairs to and replacements of custom wheelchairs and parts that are made in accordance with the instructions of the physician of the individual who uses the custom wheelchair.

(11) Costs of other direct-care resources that are specified as direct care costs in rules adopted under section 5165.02 of the Revised Code.

(M) "Dual eligible individual" has the same meaning as in section 5160.01 of the Revised Code.

(N) "Effective date of a change of operator" means the day the entering operator becomes the operator of the nursing facility.

(O) "Effective date of a facility closure" means the last day that the last of the residents of the nursing facility resides in the nursing facility.

(P) "Effective date of an involuntary termination" means the date the department of medicaid terminates the operator's provider agreement for the nursing facility.

(Q) "Effective date of a voluntary withdrawal of participation" means the day the nursing facility ceases to accept new medicaid residents other than the individuals who reside in the nursing facility on the day before the effective date of the voluntary withdrawal of participation.

(R) "Entering operator" means the person or government entity that will become the operator of a nursing facility when a change of operator occurs or following an involuntary termination.

(S) "Exiting operator" means any of the following:

(1) An operator that will cease to be the operator of a nursing facility on the effective date of a change of operator;

(2) An operator that will cease to be the operator of a nursing facility on the effective date of a facility closure;

(3) An operator of a nursing facility that is undergoing or has undergone a voluntary withdrawal of participation;

(4) An operator of a nursing facility that is undergoing or has undergone an involuntary termination.

(T)

(1) Subject to divisions (T)(2) and (3) of this section, "facility closure" means either of the following:

(a) Discontinuance of the use of the building, or part of the building, that houses the facility as a nursing facility that results in the relocation of all of the nursing facility's residents;

(b) Conversion of the building, or part of the building, that houses a nursing facility to a different use with any necessary license or other approval needed for that use being obtained and one or more of the nursing facility's residents remaining in the building, or part of the building, to receive services under the new use.

(2) A facility closure occurs regardless of any of the following:

(a) The operator completely or partially replacing the nursing facility by constructing a new nursing facility or transferring the nursing facility's license to another nursing facility;

(b) The nursing facility's residents relocating to another of the operator's nursing facilities;

(c) Any action the department of health takes regarding the nursing facility's medicaid certification that may result in the transfer of part of the nursing facility's survey findings to another of the operator's nursing facilities;

(d) Any action the department of health takes regarding the nursing facility's license under Chapter 3721. of the Revised Code.

(3) A facility closure does not occur if all of the nursing facility's residents are relocated due to an emergency evacuation and one or more of the residents return to a medicaid-certified bed in the nursing facility not later than thirty days after the evacuation occurs.

(U) "Fiscal year" means the fiscal year of this state, as specified in section 9.34 of the Revised Code.

(V) "Franchise permit fee" means

the fee imposed by sections 5168.40 to 5168.56 of the Revised Code

.

(W) "Inpatient days" means

both of the following:

(1) All days during which a resident, regardless of payment source, occupies a bed in a nursing facility that is included in the nursing facility's medicaid-certified capacity ;

(2) Fifty per cent of the days for which payment is made under section 5165.34 of the Revised Code.

(X) "Involuntary termination" means the department of medicaid's termination of the operator's provider agreement for the nursing facility when the termination is not taken at the operator's request.

(Y) "Low resource utilization resident" means a medicaid recipient residing in a nursing facility who, for purposes of calculating the nursing facility's medicaid payment rate for direct care costs, is placed in either of the two lowest resource utilization groups, excluding any resource utilization group that is a default group used for residents with incomplete assessment data.

(Z) "Maintenance and repair expenses" means a nursing facility's expenditures that are necessary and proper to maintain an asset in a normally efficient working condition and that do not extend the useful life of the asset two years or more. "Maintenance and repair expenses" includes but is not limited to the costs of ordinary repairs such as painting and wallpapering.

(AA) "Medicaid-certified capacity" means the number of a nursing facility's beds that are certified for participation in medicaid as nursing facility beds.

(BB) "Medicaid days" means

both of the following:

(1) All days during which a resident who is a medicaid recipient eligible for nursing facility services occupies a bed in a nursing facility that is included in the nursing facility's medicaid-certified capacity ;

(2) Fifty per cent of the days for which payment is made under section 5165.34 of the Revised Code.

(CC)

(1) "New nursing facility" means a nursing facility for which the provider obtains an initial provider agreement following medicaid certification of the nursing facility by the director of health, including such a nursing facility that replaces one or more nursing facilities for which a provider previously held a provider agreement.

(2) "New nursing facility" does not mean a nursing facility for which the entering operator seeks a provider agreement pursuant to section 5165.511 or 5165.512 or (pursuant to section 5165.515) section 5165.07 of the Revised Code.

(DD) "Nursing facility" has the same meaning as in the "Social Security Act," section 1919(a), 42 U.S.C. 1396r(a).

(EE) "Nursing facility services" has the same meaning as in the "Social Security Act," section 1905(f), 42 U.S.C. 1396d(f).

(FF) "Nursing home" has the same meaning as in section 3721.01 of the Revised Code.

(GG) "Operator" means the person or government entity responsible for the daily operating and management decisions for a nursing facility .

(HH) (1) "Owner" means any person or government entity that has at least five per cent ownership or interest, either directly, indirectly, or in any combination, in any of the following regarding a nursing facility :

(a) The land on which the nursing facility is located;

(b) The structure in which the nursing facility is located;

(c) Any mortgage, contract for deed, or other obligation secured in whole or in part by the land or structure on or in which the nursing facility is located;

(d) Any lease or sublease of the land or structure on or in which the nursing facility is located.

(2) "Owner" does not mean a holder of a debenture or bond related to the nursing facility and purchased at public issue or a regulated lender that has made a loan related to the nursing facility unless the holder or lender operates the nursing facility directly or through a subsidiary.

(II) "Per diem" means a nursing facility's actual, allowable costs in a given cost center in a cost reporting period, divided by the nursing facility's inpatient days for that cost reporting period.

(JJ) "Provider" means an operator with a provider agreement.

(KK) "Provider agreement" means a provider agreement, as defined in section 5164.01 of the Revised Code, that is between the department of medicaid and the operator of a nursing facility for the provision of nursing facility services under the medicaid program.

(LL) "Purchased nursing services" means services that are provided in a nursing facility by registered nurses, licensed practical nurses, or nurse aides who are not employees of the nursing facility.

(MM) "Reasonable" means that a cost is an actual cost that is appropriate and helpful to develop and maintain the operation of patient care facilities and activities, including normal standby costs, and that does not exceed what a prudent buyer pays for a given item or services. Reasonable costs may vary from provider to provider and from time to time for the same provider.

(NN) "Related party" means an individual or organization that, to a significant extent, has common ownership with, is associated or affiliated with, has control of, or is controlled by, the provider.

(1) An individual who is a relative of an owner is a related party.

(2) Common ownership exists when an individual or individuals possess significant ownership or equity in both the provider and the other organization. Significant ownership or equity exists when an individual or individuals possess five per cent ownership or equity in both the provider and a supplier. Significant ownership or equity is presumed to exist when an individual or individuals possess ten per cent ownership or equity in both the provider and another organization from which the provider purchases or leases real property.

(3) Control exists when an individual or organization has the power, directly or indirectly, to significantly influence or direct the actions or policies of an organization.

(4) An individual or organization that supplies goods or services to a provider shall not be considered a related party if all of the following conditions are met:

(a) The supplier is a separate bona fide organization.

(b) A substantial part of the supplier's business activity of the type carried on with the provider is transacted with others than the provider and there is an open, competitive market for the types of goods or services the supplier furnishes.

(c) The types of goods or services are commonly obtained by other nursing facilities from outside organizations and are not a basic element of patient care ordinarily furnished directly to patients by nursing facilities.

(d) The charge to the provider is in line with the charge for the goods or services in the open market and no more than the charge made under comparable circumstances to others by the supplier.

(OO) "Relative of owner" means an individual who is related to an owner of a nursing facility by one of the following relationships:

(1) Spouse;

(2) Natural parent, child, or sibling;

(3) Adopted parent, child, or sibling;

(4) Stepparent, stepchild, stepbrother, or stepsister;

(5) Father-in-law, mother-in-law, son-in-law, daughter-in-law, brother-in-law, or sister-in-law;

(6) Grandparent or grandchild;

(7) Foster caregiver, foster child, foster brother, or foster sister.

(PP) "Residents' rights advocate" has the same meaning as in section 3721.10 of the Revised Code.

(QQ) "Skilled nursing facility" has the same meaning as in the "Social Security Act," section 1819(a), 42 U.S.C. 1395i-3(a).

(RR) "Sponsor" has the same meaning as in section 3721.10 of the Revised Code.

(SS) "Tax costs" means the costs of taxes imposed under Chapter 5751. of the Revised Code, real estate taxes, personal property taxes, and corporate franchise taxes.

(TT) "Title XIX" means Title XIX of the "Social Security Act," 42 U.S.C. 1396 et seq.

(UU) "Title XVIII" means Title XVIII of the "Social Security Act," 42 U.S.C. 1395 et seq.

(VV) "Voluntary withdrawal of participation" means an operator's voluntary election to terminate the participation of a nursing facility in the medicaid program but to continue to provide service of the type provided by a nursing facility.

Renumbered from § 5111.20 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Amended by 128th General AssemblyFile No.9, HB 1, §101.01, eff. 7/1/2009, op. 7/17/2009.

Effective Date: 06-26-2003; 07-01-2005; 03-30-2006; 2007 HB119 09-29-2007

5165.011 [Renumbered from 5111.201] Nursing facility references.

(A) Except as provided in division (B) of this section, whenever "skilled nursing facility," "intermediate care facility," or "dual skilled nursing and intermediate care facility" is referred to or designated in any statute, rule, contract, provider agreement, or other document pertaining to the medicaid program, the reference or designation is deemed to refer to a nursing facility .

(B) A reference to or designation of an "intermediate care facility for individuals with intellectual disabilities" or "ICF/IID" is not deemed to refer to a nursing facility.

Renumbered from § 5111.201 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 12-13-1990

5165.02 Rules.

The medicaid director shall adopt rules as necessary to implement this chapter. The rules shall be adopted in accordance with Chapter 119. of the Revised Code.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5165.03 [Renumbered from 5111.202] Admission of mentally ill person to nursing facility.

(A) As used in this section:

(1) "Dementia" includes Alzheimer's disease or a related disorder.

(2) "Serious mental illness" means "serious mental illness," as defined by the United States department of health and human services in regulations adopted under the "Social Security Act," section 1919(e)(7)(G)(i), 42 U.S.C. 1396r(e)(7)(G)(i).

(3) "Mentally ill individual" means an individual who has a serious mental illness other than either of the following:

(a) A primary diagnosis of dementia;

(b) A primary diagnosis that is not a primary diagnosis of dementia and a primary diagnosis of something other than a serious mental illness.

(4) "Mentally retarded individual" means an individual who is mentally retarded or has a related condition, as described in the "Social Security Act ," section 1905(d), 42 U.S.C. 1396d(d).

(5) "Specialized services" means the services specified by the United States department of health and human services in regulations adopted under the "Social Security Act ," section 1919(e)(7)(G)(iii), 42 U.S.C. 1396r(e)(7)(G)(iii).

(B)

(1) Except as provided in division (D) of this section, no nursing facility shall admit as a resident any mentally ill individual unless the facility has received evidence that the department of mental health and addiction services has determined both of the following under section 5119.40 of the Revised Code:

(a) That the individual requires the level of services provided by a nursing facility because of the individual's physical and mental condition;

(b) Whether the individual requires specialized services for mental illness.

(2) Except as provided in division (D) of this section, no nursing facility shall admit as a resident any mentally retarded individual unless the facility has received evidence that the department of developmental disabilities has determined both of the following under section 5123.021 of the Revised Code:

(a) That the individual requires the level of services provided by a nursing facility because of the individual's physical and mental condition;

(b) Whether the individual requires specialized services for mental retardation.

(C) The department of medicaid shall not make medicaid payments to a nursing facility on behalf of any individual who is admitted to the facility in violation of division (B) of this section for the period beginning on the date of admission and ending on the date the requirements of division (B) of this section are met.

(D) A determination under division (B) of this section is not required for any individual who is exempted from the requirement that a determination be made by division (B)(2) of section 5119.40 of the Revised Code or rules adopted by the department of mental health and addiction services under division (E)(3) of that section, or by division (B)(2) of section 5123.021 of the Revised Code or rules adopted by the department of developmental disabilities under division (E)(3) of that section.

Renumbered from § 5111.202 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 128th General Assemblych.9, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-2000

5165.031 [Renumbered from 5111.203] Hearing.

An individual who applies for admission to or resides in a nursing facility job and family services shall provide notice and an opportunity for a hearing to any applicant for admission to a nursing facility or resident of a nursing facility who is may appeal if adversely affected by a determination made by the department of mental health and addiction services under section 5119.40 of the Revised Code or by the department of developmental disabilities under section 5123.021 of the Revised Code. If the individual is an applicant for or recipient of medicaid, the individual may appeal pursuant to section 5160.31 of the Revised Code. If the individual is not an applicant for or recipient of medicaid, the individual may appeal pursuant to a process the department of medicaid shall establish, which shall be similar to the appeals process established by section 5101.35 of the Revised Code. The department of medicaid shall provide notice of the right to appeal to individuals adversely affected by determinations made under sections 5119.40 and 5123.021 of the Revised Code. Any decision made on the basis of such an appeal is binding on the department of mental health and addiction services and the department of developmental disabilities.

Renumbered from § 5111.203 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 128th General Assemblych.9, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-2000

5165.04 [Renumbered from 5111.204] Assessment to determine level of care.

(A) As used in this section, "representative" means a person acting on behalf of an applicant for or recipient of medicaid. A representative may be a family member, attorney, hospital social worker, or any other person chosen to act on behalf of an applicant or recipient.

(B) The department of medicaid may require each applicant for or recipient of medicaid who applies or intends to apply for admission to a nursing facility or resides in a nursing facility to undergo an assessment to determine whether the applicant or recipient needs the level of care provided by a nursing facility. The assessment may be performed concurrently with a long-term care consultation provided under section 173.42 of the Revised Code.

To the maximum extent possible, the assessment shall be based on information from the resident assessment instrument specified in rules authorized by section 5165.191 of the Revised Code. The assessment shall also be based on criteria and procedures established in rules authorized by division (F) of this section and information provided by the person being assessed or the person's representative.

The department of medicaid, or if the assessment is performed by an agency under contract with the department pursuant to division (G) of this section, the agency, shall, not later than the time the level of care determination based on the assessment is required to be provided under division (C) of this section, give written notice of its conclusions and the basis for them to the person assessed and, if the department or agency under contract with the department has been informed that the person has a representative, to the representative.

(C) The department or agency under contract with the department, whichever performs the assessment, shall provide a level of care determination based on the assessment as follows:

(1) In the case of a person applying or intending to apply for admission to a nursing facility while hospitalized, not later than one of the following:

(a) One working day after the person or the person's representative submits the application or notifies the department of the person's intention to apply and submits all information required for providing the level of care determination, as specified in rules authorized by division (F)(2) of this section;

(b) A later date requested by the person or the person's representative.

(2) In the case of a person applying or intending to apply for admission to a nursing facility who is not hospitalized, not later than one of the following:

(a) Five calendar days after the person or the person's representative submits the application or notifies the department of the person's intention to apply and submits all information required for providing the level of care determination, as specified in rules authorized by division (F)(2) of this section;

(b) A later date requested by the person or the person's representative.

(3) In the case of a person who resides in a nursing facility, not later than one of the following:

(a) Five calendar days after the person or the person's representative submits an application for medicaid and submits all information required for providing the level of care determination, as specified in rules authorized by division (F)(2) of this section;

(b) A later date requested by the person or the person's representative.

(4) In the case of an emergency, as specified in rules authorized by division (F)(4) of this section, within the number of days specified in the rules.

(D) A person assessed under this section or the person's representative may appeal the conclusions reached by the department or agency under contract with the department on the basis of the assessment. The appeal shall be made pursuant to section 5160.31 of the Revised Code. The department or agency under contract with the department shall provide to the person or the person's representative and the nursing facility written notice of the person's right to request a state hearing. The notice shall include an explanation of the procedure for requesting a state hearing. If a state hearing is requested, the state shall be represented in the hearing by the department or the agency under contract with the department, whichever performed the assessment.

(E) A nursing facility that admits or retains a person determined pursuant to an assessment required under this section not to need the level of care provided by the nursing facility shall not be paid under the medicaid program for the person's care.

(F) The medicaid director shall adopt rules under section 5165.02 of the Revised Code to implement and administer this section. The rules shall include all of the following:

(1) Criteria and procedures to be used in determining whether admission to a nursing facility or continued stay in a nursing facility is appropriate for the person being assessed;

(2) Information the person being assessed or the person's representative must provide to the department or agency under contract with the department for purposes of the assessment and providing a level of care determination based on the assessment;

(3) Circumstances under which a person is not required to be assessed;

(4) Circumstances that constitute an emergency for purposes of division (C)(4) of this section and the number of days within which a level of care determination must be provided in the case of an emergency.

(G) Pursuant to section 5162.35 of the Revised Code, the department of medicaid may enter into contracts in the form of interagency agreements with one or more other state agencies to perform the assessments required under this section. The interagency agreements shall specify the responsibilities of each agency in the performance of the assessments.

Renumbered from § 5111.204 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000; 09-29-2005

5165.06 [Renumbered from 5111.21] Nursing facility eligibility.

Subject to section 5165.072 of the Revised Code, an operator is eligible to enter into a provider agreement for a nursing facility if all of the following apply:

(A) The nursing facility is certified by the director of health for participation in medicaid;

(B) The nursing facility is licensed by the director of health as a nursing home if so required by law;

(C) The operator and nursing facility comply with all applicable state and federal laws and rules.

Renumbered from § 5111.21 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Amended by 128th General AssemblyFile No.54, HB 449, §1, eff. 9/17/2010.

Amended by 128th General AssemblyFile No.9, HB 1, §101.01, eff. 7/17/2009.

Effective Date: 06-26-2003; 07-01-2005

5165.07 [Renumbered from 5111.22] Provider agreement requirements.

(A) Except as provided in section 5165.072 of the Revised Code, the department of medicaid shall enter into a provider agreement with a nursing facility operator who applies, and is eligible, for the provider agreement.

(B) A provider agreement shall require the

department to make medicaid payments to the provider in accordance with this chapter for nursing facility services the nursing facility provides to its residents who are medicaid recipients eligible for nursing facility services.

(C) A provider agreement shall require the provider to do all of the following:

(1) Maintain eligibility for the provider agreement as provided in section 5165.06 of the Revised Code;

(2) Keep records relating to a cost reporting period for the greater of seven years after the cost report is filed or, if the department issues an audit report in accordance with section 5165.109 of the Revised Code, six years after all appeal rights relating to the audit report are exhausted;

(3) File reports as required by the department;

(4) Open all records relating to the costs of the nursing facility's services for inspection and audit by the department;

(5) Open its premises for inspection by the department, the department of health, and any other state or local authority having authority to inspect;

(6) Supply to the department such information as it requires concerning the nursing facility's services to residents who are, or are eligible to be, medicaid recipients;

(7) Comply with section 5165.08 of the Revised Code.

(D) A provider agreement may contain other provisions that are consistent with law and considered necessary by the department.

Renumbered from § 5111.22 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 06-26-2003; 07-01-2005

5165.071 [Renumbered from 5111.223] Facility operator may contract with more than one provider.

A nursing facility operator may enter into provider agreements for more than one nursing facility .

Renumbered from § 5111.223 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2005

5165.072 Revalidation.

The department of medicaid shall not revalidate a nursing facility provider agreement if the provider fails to maintain eligibility for the provider agreement as provided in section 5165.06 of the Revised Code.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5165.073 [Renumbered from 5111.30] Termination for non-compliance with installation of fire extinguishing and fire alarm systems.

The department of medicaid shall terminate the provider agreement with a nursing facility provider that does not comply with the requirements of section 3721.071 of the Revised Code for the installation of fire extinguishing and fire alarm systems.

Renumbered from § 5111.30 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000; 07-01-2005

5165.08 [Renumbered from 5111.31] [Effective Until 1/1/2015] Nursing facilities' provider agreement terms.

(A) As used in this section:

"Bed need" means the number of long-term care beds a county needs as determined by the director of health pursuant to division (B)(3) of section 3702.593 of the Revised Code.

"Bed need excess" means that a county's bed need is such that one or more long-term care beds may be relocated from the county according to the director's determination of the county's bed need.

(B) Every provider agreement with a nursing facility provider shall do both of the following:

(1) Permit the provider to exclude one or more parts of the nursing facility from the provider agreement, even though those parts meet federal and state standards for medicaid certification, if all of the following apply:

(a) The nursing facility initially obtained both its nursing home license under Chapter 3721. of the Revised Code and medicaid certification on or after January 1, 2008.

(b) The nursing facility is located in a county that has a bed need excess at the time the provider excludes the parts from the provider agreement.

(c) Federal law permits the provider to exclude the parts from the provider agreement.

(d) The provider gives the department of medicaid written notice of the exclusion not less than forty-five days before the first day of the calendar quarter in which the exclusion is to occur.

(2) Prohibit the provider from doing either of the following:

(a) Discriminating against a resident on the basis of race, color, sex, creed, or national origin;

(b) Subject to division (D) of this section, failing or refusing to do either of the following:

(i) Except as otherwise prohibited under section 5165.82 of the Revised Code, admit as a resident of the nursing facility an individual because the individual is, or may (as a resident of the nursing facility) become, a medicaid recipient unless at least twenty-five per cent of the nursing facility's medicaid-certified beds are occupied by medicaid recipients at the time the person would otherwise be admitted;

(ii) Retain as a resident of the nursing facility an individual because the individual is, or may (as a resident of the nursing facility) become, a medicaid recipient.

(C) For the purpose of division (B)(2)(b)(ii) of this section, a medicaid recipient who is a resident of a nursing facility shall be considered a resident of the nursing facility during any hospital stays totaling less than twenty-five days during any twelve-month period.

(D) Nothing in this section shall bar a provider from doing any of the following:

(1) If the provider is a religious organization operating a religious or denominational nursing facility from giving preference to persons of the same religion or denomination ;

(2) Giving preference to persons with whom the provider has contracted to provide continuing care

;

(3) If the nursing facility is a county home organized under Chapter 5155. of the Revised Code , admitting residents exclusively from the county in which the county home is located

;

(4) Retaining residents who have resided in the provider's nursing facility for not less than one year as private pay patients and who subsequently become medicaid recipients, but refusing to accept as a resident any person who is, or may (as a resident of the nursing facility ) become a medicaid recipient, if all of the following apply:

(a) The provider does not refuse to retain any resident who has resided in the provider's nursing facility for not less than one year as a private pay resident because the resident becomes a medicaid recipient, except as necessary to comply with division (D)(4)(b) of this section;

(b) The number of medicaid recipients retained under division (D)(4) of this section does not at any time exceed ten per cent of all the residents in the nursing facility;

(c) On July 1, 1980, all the residents in the nursing facility were private pay residents.

(E) No provider shall violate the provider agreement obligations imposed by this section.

(F) A nursing facility provider who excludes one or more parts of the nursing facility from a provider agreement pursuant to division (B)(1) of this section does not violate division (C) of section 3702.53 of the Revised Code.

Renumbered from § 5111.31 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000; 07-01-2005; 06-30-2006; 2008 HB562 06-24-2008

5165.08 [Effective 1/1/2015] Nursing facilities' provider agreement terms.

(A) Every provider agreement with a nursing facility provider shall prohibit the provider from doing either of the following:

(1) Discriminating against a resident on the basis of race, color, sex, creed, or national origin;

(2) Subject to division (C) of this section, failing or refusing to do either of the following:

(a) Except as otherwise prohibited under section 5165.82 of the Revised Code, admit as a resident of the nursing facility an individual because the individual is, or may (as a resident of the nursing facility) become, a medicaid recipient unless at least eighty per cent of the nursing facility's medicaid-certified beds are occupied by medicaid recipients at the time the person would otherwise be admitted;

(b) Retain as a resident of the nursing facility an individual because the individual is, or may (as a resident of the nursing facility) become, a medicaid recipient.

(B) For the purpose of division (A)(2)(b) of this section, a medicaid recipient who is a resident of a nursing facility shall be considered a resident of the nursing facility during any hospital stays totaling less than twenty-five days during any twelve-month period.

(C) Nothing in this section shall bar a provider from doing any of the following:

(1) If the provider is a religious organization operating a religious or denominational nursing facility from giving preference to persons of the same religion or denomination;

(2) Giving preference to persons with whom the provider has contracted to provide continuing care;

(3) If the nursing facility is a county home organized under Chapter 5155. of the Revised Code, admitting residents exclusively from the county in which the county home is located;

(4) Retaining residents who have resided in the provider's nursing facility for not less than one year as private pay patients and who subsequently become medicaid recipients, but refusing to accept as a resident any person who is, or may (as a resident of the nursing facility) become a medicaid recipient, if all of the following apply:

(a) The provider does not refuse to retain any resident who has resided in the provider's nursing facility for not less than one year as a private pay resident because the resident becomes a medicaid recipient, except as necessary to comply with division (C)(4)(b) of this section;

(b) The number of medicaid recipients retained under division (C)(4) of this section does not at any time exceed ten per cent of all the residents in the nursing facility;

(c) On July 1, 1980, all the residents in the nursing facility were private pay residents.

(D) No provider shall violate the provider agreement obligations imposed by this section.

Amended by 130th General Assembly File No. 25, HB 59, §110.25, eff. 1/1/2015.

Renumbered from § 5111.31 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000; 07-01-2005; 06-30-2006; 2008 HB562 06-24-2008

5165.081 [Renumbered from 5111.32] Action against facility for breach of provider agreement or other duties.

A nursing facility resident has a cause of action against a nursing facility provider for breach of the provider agreement obligations or other duties imposed by section 5165.08 of the Revised Code. The action may be commenced by the resident, or on the resident's behalf by the resident's sponsor or a residents' rights advocate, by the filing of a civil action in the court of common pleas of the county in which the nursing facility is located, or in the court of common pleas of Franklin county.

If a court of common pleas finds that a provider has breached a provider agreement obligation or other duty imposed by section 5165.08 of the Revised Code , the court may do one or more of the following:

(A) Enjoin the provider from engaging in the practice ;

(B) Order such affirmative relief as may be necessary ;

(C) Award to a resident and a sponsor or government entity that brings the action on behalf of a resident actual damages, costs, and reasonable attorney's fees.

Renumbered from § 5111.32 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 12-13-1990; 07-01-2005

5165.082 Qualification of beds.

(A) Except as provided in division (B) of this section, the operator of a nursing facility that elects to have the nursing facility participate in the medicaid program shall qualify all of the nursing facility's medicaid-certified beds in the medicare program. The medicaid director may adopt rules under section 5165.02 of the Revised Code to establish the time frame in which a nursing facility must comply with this requirement.

(B) The department of veterans services is not required to qualify all of the medicaid-certified beds in a nursing facility the department maintains and operates under section 5907.01 of the Revised Code in the medicare program.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5165.10 [Renumbered from 5111.26] Annual cost report.

(A) Except as provided in division (D) of this section, each nursing facility provider shall file with the department of medicaid an annual cost report for each of the provider's nursing facilities that participate in the medicaid program. The cost report for a year shall cover the calendar year or the portion of the calendar year during which the nursing facility participated in the medicaid program. Except as provided in division (E) of this section, the cost report is due not later than ninety days after the end of the calendar year, or portion of the calendar year, that the cost report covers.

(B) If a nursing facility undergoes a change of provider that the department determines, in accordance with rules adopted under section 5165.02 of the Revised Code, is not an arm's length transaction, the new provider shall file the nursing facility's cost report in accordance with division (A) of this section and the cost report shall cover the portion of the calendar year during which the new provider operated the nursing facility and the portion of the calendar year during which the previous provider operated the nursing facility.

(C) If the medicaid payment rate for a new nursing facility was most recently determined in accordance with section 5165.151 of the Revised Code, the provider shall file with the department a cost report for the new nursing facility not later than, except as provided in division (E) of this section, ninety days after the end of the new nursing facility's first three full calendar months of operation. The cost report shall cover the period that begins with the nursing facility's first day of operation and ends on the first day of the month immediately following the first three full months of operation.

(D) A nursing facility provider is not required to file a cost report for a nursing facility for a calendar year in accordance with division (A) of this section if the provider files a cost report for the nursing facility under division (C) of this section and that cost report covers a period that begins after the first day of October of that calendar year. The provider shall file a cost report for the nursing facility in accordance with division (A) of this section for the immediately following calendar year.

(E) The department may grant to a provider a fourteen-day extension to file a cost report under this section if the provider provides the department a written request for the extension and the department determines that there is good cause for the extension.

Renumbered from § 5111.26 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000; 07-01-2005

5165.1010 [Renumbered from 5111.271] Nursing facility fines.

(A) Subject to division (D) of this section, the department of medicaid shall fine the provider of a nursing facility if the report of an audit conducted under section 5165.109 of the Revised Code regarding a cost report for the nursing facility includes either of the following:

(1) Adverse findings that exceed three per cent of the total amount of medicaid-allowable costs reported in the cost report;

(2) Adverse findings that exceed twenty per cent of medicaid-allowable costs for a particular cost center reported in the cost report.

(B) A fine issued under this section shall equal the greatest of the following:

(1) If the adverse findings exceed three per cent but do not exceed ten per cent of the total amount of medicaid-allowable costs reported in the cost report, the greater of three per cent of those reported costs or ten thousand dollars;

(2) If the adverse findings exceed ten per cent but do not exceed twenty per cent of the total amount of medicaid-allowable costs reported in the cost report, the greater of six per cent of those reported costs or twenty-five thousand dollars;

(3) If the adverse findings exceed twenty per cent of the total amount of medicaid-allowable costs reported in the cost report, the greater of ten per cent of those reported costs or fifty thousand dollars;

(4) If the adverse findings exceed twenty per cent but do not exceed twenty-five per cent of medicaid-allowable costs for a particular cost center reported in the cost report, the greater of three per cent of the total amount of medicaid-allowable costs reported in the cost report or ten thousand dollars;

(5) If the adverse findings exceed twenty-five per cent but do not exceed thirty per cent of medicaid-allowable costs for a particular cost center reported in the cost report, the greater of six per cent of the total amount of medicaid-allowable costs reported in the cost report or twenty-five thousand dollars;

(6) If the adverse findings exceed thirty per cent of medicaid-allowable costs for a particular cost center reported in the cost report, the greater of ten per cent of the total amount of medicaid-allowable costs reported in the cost report or fifty thousand dollars.

(C) Fines paid under this section shall be deposited into the health care services administration fund created under section 5162.54 of the Revised Code.

(D) The department may not collect a fine under this section until all appeal rights relating to the audit report that is the basis for the fine are exhausted.

Renumbered from § 5111.271 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Added by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

5165.101 [Renumbered from 5111.266] Cost of franchise permit fee not reimbursable expense.

A nursing facility provider filing the nursing facility's cost report with the department of medicaid under section 5165.10 or 5165.522 of the Revised Code shall report as a nonreimbursable expense the cost of the nursing facility's franchise permit fee.

Renumbered from § 5111.266 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2005

5165.102 Fines excluded from cost report.

No nursing facility provider shall report fines paid under sections 5165.60 to 5165.89 or section 5165.99 of the Revised Code in a cost report filed under section 5165.10 or 5165.522 of the Revised Code.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5165.103 Completion of cost reports.

Cost reports shall be completed using the form prescribed under section 5165.104 of the Revised Code and in accordance with the guidelines established under that section.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5165.104 Form of cost reports; guidelines.

The department of medicaid shall do all of the following:

(A) Prescribe the form to be used for completing a cost report and a uniform chart of accounts for the purpose of reporting costs on the form;

(B) Distribute a paper copy of the form, or computer software for electronic submission of the form, to each provider at least sixty days before the date the cost report is due;

(C) Establish guidelines for completing the form.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5165.105 Addendum for disputed costs.

The department of medicaid shall develop an addendum to the cost report form that a nursing facility provider may use to set forth costs that the provider believes the department may dispute. The department may consider such costs in determining a nursing facility's medicaid payment rate. If the department does not consider such costs in determining a nursing facility's medicaid payment rate, the provider may seek reconsideration of the determination in accordance with section 5165.38 of the Revised Code. If the department subsequently includes such costs in a nursing facility's medicaid payment rate, the department shall pay the provider interest at a reasonable rate established in rules adopted under section 5165.02 of the Revised Code for the period that the rate excluded the costs.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5165.106 Termination for failure to file report.

If a nursing facility provider required by section 5165.10 of the Revised Code to file a cost report for the nursing facility fails to file the cost report by the date it is due or the date, if any, to which the due date is extended pursuant to division (E) of that section, or files an incomplete or inadequate report for the nursing facility under that section, the department of medicaid shall provide immediate written notice to the provider that the provider agreement for the nursing facility will be terminated in thirty days unless the provider submits a complete and adequate cost report for the nursing facility within thirty days. During the thirty-day termination period or any additional time allowed for an appeal of the proposed termination of a provider agreement, the provider shall be paid the nursing facility's then current per medicaid day payment rate, minus the dollar amount by which nursing facility's per medicaid day payment rates are reduced during fiscal year 2013 in accordance with division (A)(2) of section 5111.26 of the Revised Code (renumbered as section 5165.10 of the Revised Code by H.B. 59 of the 130th general assembly) as that section existed on the day immediately preceding the effective date of this section. On the first day of each July, the department shall adjust the amount of the reduction in effect during the previous twelve months to reflect the rate of inflation during the preceding twelve months, as shown in the consumer price index for all items for all urban consumers for the north central region, published by the United States bureau of labor statistics.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5165.107 [Renumbered from 5111.261] Amendments to cost reports.

(A) Except as provided in division (B) of this section and not later than three years after a nursing facility provider files a cost report with the department of medicaid under section 5165.10 of the Revised Code, the provider may amend the cost report if the provider discovers a material error in the cost report or additional information to be included in the cost report. The department shall review the amended cost report for accuracy and notify the provider of its determination.

(B) A provider may not amend a cost report if the department has notified the provider that an audit of the cost report or a cost report of the provider for a subsequent cost reporting period is to be conducted under section 5165.109 of the Revised Code. The provider may, however, provide the department information that affects the costs included in the cost report. Such information may not be provided after the adjudication of the final settlement of the cost report.

Renumbered from § 5111.261 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Added by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

5165.108 [Renumbered from 5111.27] Desk review of cost report.

(A) The department of medicaid shall conduct a desk review of each cost report it receives under section 5165.10 or 5165.522 of the Revised Code. Based on the desk review, the department shall make a preliminary determination of whether the reported costs are allowable costs. The department shall notify each nursing facility provider of whether any of the reported costs are preliminarily determined not to be allowable, the medicaid payment rate determined under this chapter that results from that determination, and the reasons for the determination and resulting rate. The department shall allow the provider to verify the calculation and submit additional information.

Renumbered from § 5111.27 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 07-01-2000; 07-01-2005; 03-30-2006

5165.109 Audit.

(A) The department of medicaid may conduct an audit, as defined in rules adopted under section 5165.02 of the Revised Code, of any cost report filed under section 5165.10 or 5165.522 of the Revised Code. The decision whether to conduct an audit and the scope of the audit, which may be a desk or field audit, may be determined based on prior performance of the provider, a risk analysis, or other evidence that gives the department reason to believe that the provider has reported costs improperly. A desk or field audit may be performed annually, but is required whenever a provider does not pass the risk analysis tolerance factors.

(B) Audits shall be conducted by auditors under contract with the department, auditors working for firms under contract with the department, or auditors employed by the department.

The department may establish a contract for the auditing of nursing facilities by outside firms. Each contract entered into by bidding shall be effective for one to two years.

(C) The department shall notify a provider of the findings of an audit of a cost report by issuing an audit report. The audit report shall include notice of any fine imposed under section 5165.1010 of the Revised Code. The department shall issue the audit report not later than three years after the earlier of the following:

(1) The date the cost report is filed;

(2) The date a desk or field audit of the cost report or a cost report for a subsequent cost reporting period is completed.

(D) The department shall prepare a written summary of any audit disallowance that is made after the effective date of the rate that is based on the cost. Where the provider is pursuing judicial or administrative remedies in good faith regarding the disallowance, the department shall not withhold from the provider's current payments any amounts the department claims to be due from the provider pursuant to section 5165.41 of the Revised Code.

(E)

(1) The department shall establish an audit manual and program for field audits conducted under this section. Each auditor conducting a field audit under this section shall follow the audit manual and program, regardless of whether the auditor is under contract with the department, works for a firm under contract with the department, or is employed by the department. The manual and program shall do both of the following:

(a) Require each field audit to be conducted by an auditor to whom all of the following apply:

(i) During the period of the auditor's contract, firm's contract, or auditor's employment with the department, the auditor or firm does not have and is not committed to acquire any direct or indirect financial interest in the ownership, financing, or operation of nursing facilities in this state.

(ii) The auditor does not audit any provider that has been a client of the auditor or the auditor's firm.

(iii) The auditor is otherwise independent as determined by the standards of independence included in the government auditing standards produced by the United States government accountability office.

(b) Require each auditor conducting a field audit to do all of the following:

(i) Comply with applicable rules prescribed pursuant to Title XVIII and Title XIX;

(ii) Consider generally accepted auditing standards prescribed by the American institute of certified public accountants;

(iii) Include a written summary as to whether the costs included in the cost report examined during the audit are allowable and are presented in accordance with state and federal laws and regulations, and whether, in all material respects, allowable costs are documented, reasonable, and related to patient care;

(iv) Complete the audit within the time period specified by the department;

(v) Provide to the provider complete written interpretations that explain in detail the application of all relevant contract provisions, regulations, auditing standards, rate formulae, and departmental policies, with explanations and examples, that are sufficient to permit the provider to calculate with reasonable certainty those costs that are allowable and the rate to which the provider's nursing facility is entitled.

(2) For the purpose of division (E)(1)(a)(i) of this section, employment of a member of an auditor's family by a nursing facility that the auditor does not audit does not constitute a direct or indirect financial interest in the ownership, financing, or operation of the nursing facility.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5165.15 [Renumbered from 5111.222] Calculation of payments to nursing facility providers; quality bonus.

(A) Except as otherwise provided by sections 5165.151 to 5165.156 and 5165.34 of the Revised Code , the total per medicaid day payment rate that the department of medicaid shall pay a nursing facility provider for nursing facility services the provider's nursing facility provides during a fiscal year shall equal the sum of all of the following:

(1)

The per medicaid day payment rate for ancillary and support costs determined for the nursing facility under section 5165.16 of the Revised Code;

(2) The per medicaid day payment rate for capital costs determined for the nursing facility under section 5165.17 of the Revised Code;

(3) The per medicaid day payment rate for direct care costs determined for the nursing facility under section 5165.19 of the Revised Code;

(4) The per medicaid day payment rate for tax costs determined for the nursing facility under section 5165.21 of the Revised Code;

(5) If the nursing facility qualifies as a critical access nursing facility, the nursing facility's critical access incentive payment paid under section 5165.23 of the Revised Code;

(6) The quality incentive payment paid to the nursing facility under section 5165.25 of the Revised Code.

(B) In addition to paying a nursing facility provider the nursing facility's total rate determined under division (A) of this section for a fiscal year, the department shall pay the provider a quality bonus under section 5165.26 of the Revised Code for that fiscal year if the provider's nursing facility is a qualifying nursing facility, as defined in that section, for that fiscal year. The quality bonus shall not be part of the total rate.

Renumbered from § 5111.222 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.194, HB 303, §1, eff. 7/1/2013.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 129th General AssemblyFile No.60, SB 264, §1, eff. 7/1/2012.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 7/1/2011.

Effective Date: 07-01-2005; 06-30-2006

5165.151 [Renumbered from 5111.254] Initial rates for new nursing facilities.

(A) The total per medicaid day payment rate determined under section 5165.15 of the Revised Code shall not be the initial rate for nursing facility services provided by a new nursing facility. Instead, the initial total per medicaid day payment rate for nursing facility services provided by a new nursing facility shall be determined in the following manner:

(1) The initial rate for ancillary and support costs shall be the rate for the new nursing facility's peer group determined under division (D) of section 5165.16 of the Revised Code.

(2) The initial rate for capital costs shall be the rate for the new nursing facility's peer group determined under division (D) of section 5165.17 of the Revised Code;

(3) The initial rate for direct care costs shall be the product of the cost per case-mix unit determined under division (D) of section 5165.19 of the Revised Code for the new nursing facility's peer group and the new nursing facility's case-mix score determined under division (B) of this section.

(4) The initial rate for tax costs shall be the median rate for tax costs for the new nursing facility's peer group in which the nursing facility is placed under division (C) of section 5165.16 of the Revised Code.

(5) The quality incentive payment shall be the mean payment made to nursing facilities under section 5165.25 of the Revised Code.

(B) For the purpose of division (A)(3) of this section, a new nursing facility's case-mix score shall be the following:

(1) Unless the new nursing facility replaces an existing nursing facility that participated in the medicaid program immediately before the new nursing facility begins participating in the medicaid program, the median annual average case-mix score for the new nursing facility's peer group;

(2) If the nursing facility replaces an existing nursing facility that participated in the medicaid program immediately before the new nursing facility begins participating in the medicaid program, the semiannual case-mix score most recently determined under section 5165.192 of the Revised Code for the replaced nursing facility as adjusted, if necessary, to reflect any difference in the number of beds in the replaced and new nursing facilities.

(C) Subject to division (D) of this section, the department shall adjust the rates established under division (A) of this section effective the first day of July, to reflect new rate calculations for all nursing facilities under this chapter.

(D) If a rate for direct care costs is determined under this section for a new nursing facility using the median annual average case-mix score for the new nursing facility's peer group, the rate shall be redetermined to reflect the new nursing facility's actual semiannual average case-mix score determined under section 5165.192 of the Revised Code after the new nursing facility submits its first two quarterly assessment data that qualify for use in calculating a case-mix score in accordance with rules authorized by section 5165.192 of the Revised Code. If the new nursing facility's quarterly submissions do not qualify for use in calculating a case-mix score, the department shall continue to use the median annual average case-mix score for the new nursing facility's peer group in lieu of the new nursing facility's semiannual case-mix score until the new nursing facility submits two consecutive quarterly assessment data that qualify for use in calculating a case-mix score.

Renumbered from § 5111.254 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 7/1/2011.

Effective Date: 07-01-2005

5165.152 Payments for services provided to low resource utilization residents.

The total per medicaid day payment rate determined under section 5165.15 of the Revised Code shall not be paid for nursing facility services provided to low resource utilization residents. Instead, the total rate for such nursing facility services shall be one hundred thirty dollars per medicaid day.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5165.153 [Renumbered from 5111.258] Rates for outlier facilities or units.

(A) The total per medicaid day payment rate determined under section 5165.15 of the Revised Code shall not be paid for nursing facility services provided by a nursing facility, or discrete unit of a nursing facility, designated by the department of medicaid as an outlier nursing facility or unit. Instead, the provider of a designated outlier nursing facility or unit shall be paid each fiscal year a total per medicaid day payment rate that the department shall prospectively determine in accordance with a methodology established in rules authorized by this section.

(B) The department may designate a nursing facility, or discrete unit of a nursing facility, as an outlier nursing facility or unit if the nursing facility or unit serves residents who have either of the following:

(1) Diagnoses or special care needs that require direct care resources that are not measured adequately by the resident assessment instrument specified in rules authorized by section 5165.191 of the Revised Code ;

(2) Diagnoses or special care needs specified in rules authorized by this section as otherwise qualifying for consideration under this section.

(C) Notwithstanding any other provision of this chapter (except section 5165.156 of the Revised Code), the costs incurred by a designated outlier nursing facility or unit shall not be considered in establishing medicaid payment rates for other nursing facilities or units.

(D) The medicaid director shall adopt rules under section 5165.02 of the Revised Code as necessary to implement this section.

(1)

(a) The rules shall do both of the following:

(i) Specify the criteria and procedures the department will apply when designating a nursing facility, or discrete unit of a nursing facility, as an outlier nursing facility or unit;

(ii) Establish a methodology for prospectively determining the total per medicaid day payment rate that will be paid each fiscal year for nursing facility services provided by a designated outlier nursing facility or unit.

(b) The rules authorized by division (D)(1)(a)(i) of this section regarding the criteria for designating outlier nursing facilities and units shall do both of the following:

(i) Provide for consideration of whether all of the allowable costs of a nursing facility, or discrete unit of a nursing facility, would be paid by a rate determined under section 5165.15 of the Revised Code ;

(ii) Specify the minimum number of nursing facility beds that a nursing facility, or discrete unit of a nursing facility, must have to be designated an outlier nursing facility or unit, which may vary based on the diagnoses or special care needs of the residents served by the nursing facility or unit.

(c) The rules authorized by division (D)(1)(a)(i) of this section regarding the criteria for designating outlier nursing facilities and units shall not limit the designation to nursing facilities, or discrete units of nursing facilities, located in large cities.

(d) The rules authorized by division (D)(1)(a)(ii) of this section regarding the methodology for prospectively determining the rates of designated outlier nursing facilities and units shall provide for the methodology to consider the historical costs of providing nursing facility services to the residents of designated outlier nursing facilities and units.

(2)

(a) The rules may do both of the following:

(i) Include for designation as an outlier nursing facility or unit, a nursing facility, or discrete unit of a nursing facility, that serves medically fragile pediatric residents; residents who are dependent on ventilators; residents who have severe traumatic brain injury, end-stage Alzheimer's disease, or end-stage acquired immunodeficiency syndrome; or residents with other diagnoses or special care needs specified in the rules;

(ii) Require that a designated outlier nursing facility receive authorization from the department before admitting or retaining a resident .

(b) If the director adopts rules authorized by division (D)(2)(a)(ii) of this section regarding the authorization of a designated outlier nursing facility or unit to admit or retain a resident, the rules shall specify the criteria and procedures the department will apply when granting that authorization.

Renumbered from § 5111.258 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 07-01-2000; 07-01-2005

5165.154 Calculating prospective rates for facilities with residents whose care costs are not adequately measured.

(A) To the extent, if any, provided for in rules authorized by this section, the total per medicaid day payment rate determined under section 5165.15 of the Revised Code shall not be paid for nursing facility services that a nursing facility not designated as an outlier nursing facility or unit provides to a resident who meets the criteria for admission to a designated outlier nursing facility or unit, as specified in rules authorized by section 5165.153 of the Revised Code. Instead, the provider of a nursing facility providing nursing facility services to such a resident shall be paid each fiscal year a total per medicaid day payment rate that the department of medicaid shall prospectively determine in accordance with a methodology established in rules authorized by this section.

(B) The medicaid director may adopt rules under section 5165.02 of the Revised Code to implement this section. The rules may require that a nursing facility receive authorization from the department before admitting or retaining a resident who meets the criteria for admission to a designated outlier nursing facility or unit. If the director adopts such rules, the rules shall specify the criteria and procedures the department will apply when granting the authorization.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5165.155 [Renumbered from 5111.225] Amount of payments for dual eligible individuals.

(A) As used in this section , "medicaid maximum allowable amount" means one hundred per cent of a nursing facility's total per medicaid day payment rate .

(B) Instead of paying the total per medicaid day payment rate determined under section 5165.15 of the Revised Code, the department of medicaid shall pay the provider of a nursing facility the lesser of the following for nursing facility services the nursing facility provides on or after January 1, 2012, to a dual eligible individual who is eligible for nursing facility services under the medicaid program and post-hospital extended care services under Part A of Title XVIII:

(1) The coinsurance amount for the services as provided under Part A of Title XVIII;

(2) The medicaid maximum allowable amount for the services, less the amount paid under Part A of Title XVIII for the services.

Renumbered from § 5111.225 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Added by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

5165.156 [Renumbered from 5111.259] Centers of excellence component.

The medicaid director may establish a centers of excellence component of the medicaid program. The purpose of the centers of excellence component is to increase the efficiency and quality of nursing facility services provided to medicaid recipients with complex nursing facility service needs. The director may adopt rules under section 5165.02 of the Revised Code governing the component, including rules that establish a method of determining the medicaid payment rates for nursing facilities providing nursing facility services to medicaid recipients participating in the component. The rules may specify the extent to which, if any, of the provisions of sections 5165.153 and 5165.154 of the Revised Code are to apply to the centers of excellence component. If such rules are adopted, the nursing facilities that provide nursing facility services to medicaid recipients participating in the centers of excellence component shall be paid for those services in accordance with the method established in the rules instead of the total per medicaid day payment rate determined under section 5165.15 of the Revised Code.

Renumbered from § 5111.259 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Added by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

5165.16 [Renumbered from 5111.24] Per medicaid day payment rate for ancillary and support costs; peer groups.

(A) As used in this section:

(1) "Applicable calendar year" means the following:

(a) For the purpose of the department of medicaid's initial determination under division (D) of this section of each peer group's rate for ancillary and support costs, calendar year 2003;

(b) For the purpose of the department's rebasings, the calendar year the department selects.

(2) "Rebasing" means a redetermination under division (D) of this section of each peer group's rate for ancillary and support costs using information from cost reports for an applicable calendar year that is later than the applicable calendar year used for the previous determination of such rates.

(B) The department of medicaid shall determine each nursing facility's per medicaid day payment rate for ancillary and support costs . A nursing facility's rate shall be the rate determined under division (D) of this section for the nursing facility's peer group. However, for the period beginning October 1, 2013, and ending on the first day of the first rebasing, the rate for a nursing facility located in Mahoning or Stark county shall be the rate determined for the following:

(1) If the nursing facility has fewer than one hundred beds, the nursing facilities in peer group three;

(2) If the nursing facility has one hundred or more beds, the nursing facilities in peer group four.

(C) For the purpose of determining nursing facilities' rates for ancillary and support costs, the department shall establish six peer groups.

(1) Until the first rebasing occurs, the peer groups shall be composed as follows:

(a) Each nursing facility located in any of the following counties shall be placed in peer group one or two: Brown, Butler, Clermont, Clinton, Hamilton, and Warren. Each nursing facility located in any of those counties that has fewer than one hundred beds shall be placed in peer group one. Each nursing facility located in any of those counties that has one hundred or more beds shall be placed in peer group two.

(b) Each nursing facility located in any of the following counties shall be placed in peer group three or four: Ashtabula, Champaign, Clark, Cuyahoga, Darke, Delaware, Fairfield, Fayette, Franklin, Fulton, Geauga, Greene, Hancock, Knox, Lake, Licking, Lorain, Lucas, Madison, Marion, Medina, Miami, Montgomery, Morrow, Ottawa, Pickaway, Portage, Preble, Ross, Sandusky, Seneca, Summit, Union, and Wood. Each nursing facility located in any of those counties that has fewer than one hundred beds shall be placed in peer group three. Each nursing facility located in any of those counties that has one hundred or more beds shall be placed in peer group four.

(c) Each nursing facility located in any of the following counties shall be placed in peer group five or six: Adams, Allen, Ashland, Athens, Auglaize, Belmont, Carroll, Columbiana, Coshocton, Crawford, Defiance, Erie, Gallia, Guernsey, Hardin, Harrison, Henry, Highland, Hocking, Holmes, Huron, Jackson, Jefferson, Lawrence, Logan, Mahoning, Meigs, Mercer, Monroe, Morgan, Muskingum, Noble, Paulding, Perry, Pike, Putnam, Richland, Scioto, Shelby, Stark, Trumbull, Tuscarawas, Van Wert, Vinton, Washington, Wayne, Williams, and Wyandot. Each nursing facility located in any of those counties that has fewer than one hundred beds shall be placed in peer group five. Each nursing facility located in any of those counties that has one hundred or more beds shall be placed in peer group six.

(2) Beginning with the first rebasing, the peer groups shall be composed as they are under division (C)(1) of this section except as follows:

(a) Each nursing facility that has fewer than one hundred beds and is located in Mahoning or Stark county shall be placed in peer group three rather than peer group five.

(b) Each nursing facility that has one hundred or more beds and is located in Mahoning or Stark county shall be placed in peer group four rather than peer group six.

(D)

(1) The department shall determine the rate for ancillary and support costs for each peer group established under division (C) of this section. The department is not required to conduct a rebasing more than once every ten years. Except as necessary to implement the amendments made to this section by Am. Sub. H.B. 153 and Sub. H.B. 303, both of the 129th general assembly, the rate for ancillary and support costs determined under this division for a peer group shall be used for subsequent years until the department conducts a rebasing. To determine a peer group's rate for ancillary and support costs, the department shall do all of the following:

(a) Subject to division (D)(2) of this section, determine the rate for ancillary and support costs for each nursing facility in the peer group for the applicable calendar year by using the greater of the nursing facility's actual inpatient days for the applicable calendar year or the inpatient days the nursing facility would have had for the applicable calendar year if its occupancy rate had been ninety per cent;

(b) Subject to division (D)(3) of this section, identify which nursing facility in the peer group is at the twenty-fifth percentile of the rate for ancillary and support costs for the applicable calendar year determined under division (D)(1)(a) of this section;

(c) Multiply the rate for ancillary and support costs determined under division (D)(1)(a) of this section for the nursing facility identified under division (D)(1)(b) of this section by the rate of inflation for the eighteen-month period beginning on the first day of July of the applicable calendar year and ending the last day of December of the calendar year immediately following the applicable calendar year using the following:

(i) Until the first rebasing occurs, the consumer price index for all items for all urban consumers for the north central region, published by the United States bureau of labor statistics, as that index existed on July 1, 2005;

(ii) Effective with the first rebasing and except as provided in division (D)(1)(c)(iii) of this section, the consumer price index for all items for all urban consumers for the midwest region, published by the United States bureau of labor statistics;

(iii) If the United States bureau of labor statistics ceases to publish the index specified in division (D)(1)(c)(ii) of this section, the index the bureau subsequently publishes that covers urban consumers' prices for items for the region that includes this state.

(d) Until the first rebasing occurs, increase the amount calculated under division (D)(1)(c) of this section by five and eight hundredths per cent.

(2) For the purpose of determining a nursing facility's occupancy rate under division (D)(1)(a) of this section, the department shall include any beds that the nursing facility removes from its medicaid-certified capacity unless the nursing facility also removes the beds from its licensed bed capacity.

(3) In making the identification under division (D)(1)(b) of this section, the department shall exclude both of the following:

(a) Nursing facilities that participated in the medicaid program under the same provider for less than twelve months in the applicable calendar year;

(b) Nursing facilities whose ancillary and support costs are more than one standard deviation from the mean desk-reviewed, actual, allowable, per diem ancillary and support cost for all nursing facilities in the nursing facility's peer group for the applicable calendar year.

(4) The department shall not redetermine a peer group's rate for ancillary and support costs under this division based on additional information that it receives after the rate is determined. The department shall redetermine a peer group's rate for ancillary and support costs only if the department made an error in determining the rate based on information available to the department at the time of the original determination.

Renumbered from § 5111.24 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.194, HB 303, §1, eff. 7/1/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 7/1/2011.

Amended by 128th General AssemblyFile No.9, HB 1, §101.01, eff. 7/1/2009, op. 7/17/2009.

Effective Date: 07-01-2000; 07-01-2005

5165.17 [Renumbered from 5111.25] Per medicaid day payment rate for reasonable capital costs.

(A) As used in this section:

(1) "Applicable calendar year" means the following:

(a) For the purpose of the department of medicaid's initial determination under division (D) of this section of each peer group's rate for capital costs, calendar year 2003;

(b) For the purpose of the department's rebasings, the calendar year the department selects.

(2) "Rebasing" means a redetermination under division (D) of this section of each peer group's rate for capital costs using information from cost reports for an applicable calendar year that is later than the applicable calendar year used for the previous determination of such rates.

(B) The department of medicaid shall determine each nursing facility's per medicaid day payment rate for capital costs . A nursing facility's rate shall be the rate determined under division (D) of this section. However, for the period beginning October 1, 2013, and ending on the first day of the first rebasing, the rate for a nursing facility located in Mahoning or Stark county shall be the rate determined for the following:

(1) If the nursing facility has fewer than one hundred beds, the nursing facilities in peer group three;

(2) If the nursing facility has one hundred or more beds, the nursing facilities in peer group four.

(C) For the purpose of determining nursing facilities' rates for capital costs, the department shall establish six peer groups.

(1) Until the first rebasing occurs, the peer groups shall be composed as follows:

(a) Each nursing facility located in any of the following counties shall be placed in peer group one or two: Brown, Butler, Clermont, Clinton, Hamilton, and Warren. Each nursing facility located in any of those counties that has fewer than one hundred beds shall be placed in peer group one. Each nursing facility located in any of those counties that has one hundred or more beds shall be placed in peer group two.

(b) Each nursing facility located in any of the following counties shall be placed in peer group three or four: Ashtabula, Champaign, Clark, Cuyahoga, Darke, Delaware, Fairfield, Fayette, Franklin, Fulton, Geauga, Greene, Hancock, Knox, Lake, Licking, Lorain, Lucas, Madison, Marion, Medina, Miami, Montgomery, Morrow, Ottawa, Pickaway, Portage, Preble, Ross, Sandusky, Seneca, Summit, Union, and Wood. Each nursing facility located in any of those counties that has fewer than one hundred beds shall be placed in peer group three. Each nursing facility located in any of those counties that has one hundred or more beds shall be placed in peer group four.

(c) Each nursing facility located in any of the following counties shall be placed in peer group five or six: Adams, Allen, Ashland, Athens, Auglaize, Belmont, Carroll, Columbiana, Coshocton, Crawford, Defiance, Erie, Gallia, Guernsey, Hardin, Harrison, Henry, Highland, Hocking, Holmes, Huron, Jackson, Jefferson, Lawrence, Logan, Mahoning, Meigs, Mercer, Monroe, Morgan, Muskingum, Noble, Paulding, Perry, Pike, Putnam, Richland, Scioto, Shelby, Stark, Trumbull, Tuscarawas, Van Wert, Vinton, Washington, Wayne, Williams, and Wyandot. Each nursing facility located in any of those counties that has fewer than one hundred beds shall be placed in peer group five. Each nursing facility located in any of those counties that has one hundred or more beds shall be placed in peer group six.

(2) Beginning with the first rebasing, the peer groups shall be composed as they are under division (C)(1) of this section except as follows:

(a) Each nursing facility that has fewer than one hundred beds and is located in Mahoning or Stark county shall be placed in peer group three rather than peer group five.

(b) Each nursing facility that has one hundred or more beds and is located in Mahoning or Stark county shall be placed in peer group four rather than peer group six.

(D)

(1) The department shall determine the rate for capital costs for each peer group established under division (C) of this section. The department is not required to conduct a rebasing more than once every ten years. Except as necessary to implement the amendments made to this section by Am. Sub. H.B. 153 and Sub. H.B. 303, both of the 129th general assembly, the rate for capital costs determined under this division for a peer group shall be used for subsequent years until the department conducts a rebasing. To determine a peer group's rate for capital costs, the department shall do both of the following:

(a) Determine the rate for capital costs for the nursing facility in the peer group that is at the twenty-fifth percentile of the rate for capital costs for the applicable calendar year;

(b) Until the first rebasing occurs, increase the amount calculated under division (D)(1)(a) of this section by five and eight hundredths per cent.

(2) To identify the nursing facility in a peer group that is at the twenty-fifth percentile of the rate for capital costs for the applicable calendar year, the department shall do both of the following:

(a) Subject to division (D)(3) of this section, use the greater of each nursing facility's actual inpatient days for the applicable calendar year or the inpatient days the nursing facility would have had for the applicable calendar year if its occupancy rate had been one hundred per cent;

(b) Exclude both of the following:

(i) Nursing facilities that participated in the medicaid program under the same provider for less than twelve months in the applicable calendar year;

(ii) Nursing facilities whose capital costs are more than one standard deviation from the mean desk-reviewed, actual, allowable, per diem capital cost for all nursing facilities in the nursing facility's peer group for the applicable calendar year.

(3) For the purpose of determining a nursing facility's occupancy rate under division (D)(2)(a) of this section, the department shall include any beds that the nursing facility removes from its medicaid-certified capacity after June 30, 2005, unless the nursing facility also removes the beds from its licensed bed capacity.

(4) The department shall not redetermine a peer group's rate for capital costs under this division based on additional information that it receives after the rate is determined. The department shall redetermine a peer group's rate for capital costs only if the department made an error in determining the rate based on information available to the department at the time of the original determination.

(E) Buildings shall be depreciated using the straight line method over forty years or over a different period approved by the department. Components and equipment shall be depreciated using the straight-line method over a period designated in rules adopted under section 5165.02 of the Revised Code, consistent with the guidelines of the American hospital association, or over a different period approved by the department. Any rules authorized by this division that specify useful lives of buildings, components, or equipment apply only to assets acquired on or after July 1, 1993. Depreciation for costs paid or reimbursed by any government agency shall not be included in capital costs unless that part of the payment under this chapter is used to reimburse the government agency.

(F) The capital cost basis of nursing facility assets shall be determined in the following manner:

(1) Except as provided in division (F)(3) of this section, for purposes of calculating the rates to be paid for facilities with dates of licensure on or before June 30, 1993, the capital cost basis of each asset shall be equal to the desk-reviewed, actual, allowable, capital cost basis that is listed on the facility's cost report for the calendar year preceding the fiscal year during which the rate will be paid.

(2) For facilities with dates of licensure after June 30, 1993, the capital cost basis shall be determined in accordance with the principles of the medicare program , except as otherwise provided in this chapter.

(3) Except as provided in division (F)(4) of this section, if a provider transfers an interest in a facility to another provider after June 30, 1993, there shall be no increase in the capital cost basis of the asset if the providers are related parties or the provider to which the interest is transferred authorizes the provider that transferred the interest to continue to operate the facility under a lease, management agreement, or other arrangement. If the previous sentence does not prohibit the adjustment of the capital cost basis under this division, the basis of the asset shall be adjusted by one-half of the change in the consumer price index for all items for all urban consumers, as published by the United States bureau of labor statistics, during the time that the transferor held the asset.

(4) If a provider transfers an interest in a facility to another provider who is a related party, the capital cost basis of the asset shall be adjusted as specified in division (F)(3) of this section if all of the following conditions are met:

(a) The related party is a relative of owner;

(b) Except as provided in division (F)(4)(c)(ii) of this section, the provider making the transfer retains no ownership interest in the facility;

(c) The department determines that the transfer is an arm's length transaction pursuant to rules adopted under section 5165.02 of the Revised Code. The rules shall provide that a transfer is an arm's length transaction if all of the following apply:

(i) Once the transfer goes into effect, the provider that made the transfer has no direct or indirect interest in the provider that acquires the facility or the facility itself, including interest as an owner, officer, director, employee, independent contractor, or consultant, but excluding interest as a creditor.

(ii) The provider that made the transfer does not reacquire an interest in the facility except through the exercise of a creditor's rights in the event of a default. If the provider reacquires an interest in the facility in this manner, the department shall treat the facility as if the transfer never occurred when the department calculates its reimbursement rates for capital costs.

(iii) The transfer satisfies any other criteria specified in the rules.

(d) Except in the case of hardship caused by a catastrophic event, as determined by the department, or in the case of a provider making the transfer who is at least sixty-five years of age, not less than twenty years have elapsed since, for the same facility, the capital cost basis was adjusted most recently under division (F)(4) of this section or actual, allowable capital costs was determined most recently under division (G)(9) of this section.

(G) As used in this division:

"Imputed interest" means the lesser of the prime rate plus two per cent or ten per cent.

"Lease expense" means lease payments in the case of an operating lease and depreciation expense and interest expense in the case of a capital lease.

"New lease" means a lease, to a different lessee, of a nursing facility that previously was operated under a lease.

(1) Subject to division (B) of this section, for a lease of a facility that was effective on May 27, 1992, the entire lease expense is an actual, allowable capital cost during the term of the existing lease. The entire lease expense also is an actual, allowable capital cost if a lease in existence on May 27, 1992, is renewed under either of the following circumstances:

(a) The renewal is pursuant to a renewal option that was in existence on May 27, 1992;

(b) The renewal is for the same lease payment amount and between the same parties as the lease in existence on May 27, 1992.

(2) Subject to division (B) of this section, for a lease of a facility that was in existence but not operated under a lease on May 27, 1992, actual, allowable capital costs shall include the lesser of the annual lease expense or the annual depreciation expense and imputed interest expense that would be calculated at the inception of the lease using the lessor's entire historical capital asset cost basis, adjusted by one-half of the change in the consumer price index for all items for all urban consumers, as published by the United States bureau of labor statistics, during the time the lessor held each asset until the beginning of the lease.

(3) Subject to division (B) of this section, for a lease of a facility with a date of licensure on or after May 27, 1992, that is initially operated under a lease, actual, allowable capital costs shall include the annual lease expense if there was a substantial commitment of money for construction of the facility after December 22, 1992, and before July 1, 1993. If there was not a substantial commitment of money after December 22, 1992, and before July 1, 1993, actual, allowable capital costs shall include the lesser of the annual lease expense or the sum of the following:

(a) The annual depreciation expense that would be calculated at the inception of the lease using the lessor's entire historical capital asset cost basis;

(b) The greater of the lessor's actual annual amortization of financing costs and interest expense at the inception of the lease or the imputed interest expense calculated at the inception of the lease using seventy per cent of the lessor's historical capital asset cost basis.

(4) Subject to division (B) of this section, for a lease of a facility with a date of licensure on or after May 27, 1992, that was not initially operated under a lease and has been in existence for ten years, actual, allowable capital costs shall include the lesser of the annual lease expense or the annual depreciation expense and imputed interest expense that would be calculated at the inception of the lease using the entire historical capital asset cost basis of one-half of the change in the consumer price index for all items for all urban consumers, as published by the United States bureau of labor statistics, during the time the lessor held each asset until the beginning of the lease.

(5) Subject to division (B) of this section, for a new lease of a facility that was operated under a lease on May 27, 1992, actual, allowable capital costs shall include the lesser of the annual new lease expense or the annual old lease payment. If the old lease was in effect for ten years or longer, the old lease payment from the beginning of the old lease shall be adjusted by one-half of the change in the consumer price index for all items for all urban consumers, as published by the United States bureau of labor statistics, from the beginning of the old lease to the beginning of the new lease.

(6) Subject to division (B) of this section, for a new lease of a facility that was not in existence or that was in existence but not operated under a lease on May 27, 1992, actual, allowable capital costs shall include the lesser of annual new lease expense or the annual amount calculated for the old lease under division (G)(2), (3), (4), or (6) of this section, as applicable. If the old lease was in effect for ten years or longer, the lessor's historical capital asset cost basis shall be, for purposes of calculating the annual amount under division (G)(2), (3), (4), or (6) of this section, adjusted by one-half of the change in the consumer price index for all items for all urban consumers, as published by the United States bureau of labor statistics, from the beginning of the old lease to the beginning of the new lease.

In the case of a lease under division (G)(3) of this section of a facility for which a substantial commitment of money was made after December 22, 1992, and before July 1, 1993, the old lease payment shall be adjusted for the purpose of determining the annual amount.

(7) For any revision of a lease described in division (G)(1), (2), (3), (4), (5), or (6) of this section, or for any subsequent lease of a facility operated under such a lease, other than execution of a new lease, the portion of actual, allowable capital costs attributable to the lease shall be the same as before the revision or subsequent lease.

(8) Except as provided in division (G)(9) of this section, if a provider leases an interest in a facility to another provider who is a related party or previously operated the facility, the related party's or previous operator's actual, allowable capital costs shall include the lesser of the annual lease expense or the reasonable cost to the lessor.

(9) If a provider leases an interest in a facility to another provider who is a related party, regardless of the date of the lease, the related party's actual, allowable capital costs shall include the annual lease expense, subject to the limitations specified in divisions (G)(1) to (7) of this section, if all of the following conditions are met:

(a) The related party is a relative of owner;

(b) If the lessor retains an ownership interest, it is, except as provided in division (G)(9)(c)(ii) of this section, in only the real property and any improvements on the real property;

(c) The department determines that the lease is an arm's length transaction pursuant to rules adopted under section 5165.02 of the Revised Code. The rules shall provide that a lease is an arm's length transaction if all of the following apply:

(i) Once the lease goes into effect, the lessor has no direct or indirect interest in the lessee or, except as provided in division (G)(9)(b) of this section, the facility itself, including interest as an owner, officer, director, employee, independent contractor, or consultant, but excluding interest as a lessor.

(ii) The lessor does not reacquire an interest in the facility except through the exercise of a lessor's rights in the event of a default. If the lessor reacquires an interest in the facility in this manner, the department shall treat the facility as if the lease never occurred when the department calculates its reimbursement rates for capital costs.

(iii) The lease satisfies any other criteria specified in the rules.

(d) Except in the case of hardship caused by a catastrophic event, as determined by the department, or in the case of a lessor who is at least sixty-five years of age, not less than twenty years have elapsed since, for the same facility, the capital cost basis was adjusted most recently under division (F)(4) of this section or actual, allowable capital costs were determined most recently under division (G)(9) of this section.

(10) This division does not apply to leases of specific items of equipment.

Renumbered from § 5111.25 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.194, HB 303, §1, eff. 7/1/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 7/1/2011.

Amended by 128th General AssemblyFile No.9, HB 1, §101.01, eff. 7/1/2009, op. 7/17/2009.

Effective Date: 06-06-2001; 07-01-2005

5165.19 [Renumbered from 5111.231] Per medicaid day payment rate for direct care costs.

(A) As used in this section:

(1) "Applicable calendar year" means the following:

(a) For the purpose of the department of medicaid's initial determination under division (D) of this section of each peer group's cost per case-mix unit, calendar year 2003;

(b) For the purpose of the department's rebasings, the calendar year the department selects.

(2) "Rebasing" means a redetermination under division (D) of this section of each peer group's cost per case-mix unit using information from cost reports for an applicable calendar year that is later than the applicable calendar year used for the previous determination of such costs.

(B) Semiannually, the department of medicaid shall determine each nursing facility's per medicaid day payment rate for direct care costs by multiplying the facility's semiannual case-mix score determined under section 5165.192 of the Revised Code by the cost per case-mix unit determined under division (D) of this section for the facility's peer group. However, for the period beginning October 1, 2013, and ending on the first day of the first rebasing, the rate for a nursing facility located in Mahoning or Stark county shall be determined semiannually by multiplying the facility's semiannual case-mix score determined under section 5165.192 of the Revised Code by the cost per case-mix unit determined under division (D) of this section for the nursing facilities in peer group two.

(C) For the purpose of determining nursing facilities' rates for direct care costs, the department shall establish three peer groups.

(1) Until the first rebasing occurs, the peer groups shall be composed as follows:

(a) Each nursing facility located in any of the following counties shall be placed in peer group one: Brown, Butler, Clermont, Clinton, Hamilton, and Warren.

(b) Each nursing facility located in any of the following counties shall be placed in peer group two: Ashtabula, Champaign, Clark, Cuyahoga, Darke, Delaware, Fairfield, Fayette, Franklin, Fulton, Geauga, Greene, Hancock, Knox, Lake, Licking, Lorain, Lucas, Madison, Marion, Medina, Miami, Montgomery, Morrow, Ottawa, Pickaway, Portage, Preble, Ross, Sandusky, Seneca, Summit, Union, and Wood.

(c) Each nursing facility located in any of the following counties shall be placed in peer group three: Adams, Allen, Ashland, Athens, Auglaize, Belmont, Carroll, Columbiana, Coshocton, Crawford, Defiance, Erie, Gallia, Guernsey, Hardin, Harrison, Henry, Highland, Hocking, Holmes, Huron, Jackson, Jefferson, Lawrence, Logan, Mahoning, Meigs, Mercer, Monroe, Morgan, Muskingum, Noble, Paulding, Perry, Pike, Putnam, Richland, Scioto, Shelby, Stark, Trumbull, Tuscarawas, Van Wert, Vinton, Washington, Wayne, Williams, and Wyandot.

(2) Beginning with the first rebasing, the peer groups shall be composed as they are under division (C)(1) of this section except that each nursing facility located in Mahoning or Stark county shall be placed in peer group two rather than peer group three.

(D)

(1) The department shall determine a cost per case-mix unit for each peer group established under division (C) of this section. The department is not required to conduct a rebasing more than once every ten years. Except as necessary to implement the amendments made to this section by Am. Sub. H.B. 153 and Sub. H.B. 303, both of the 129th general assembly, and H.B. 59 of the 130th general assembly, the cost per case-mix unit determined under this division for a peer group shall be used for subsequent years until the department conducts a rebasing. To determine a peer group's cost per case-mix unit, the department shall do all of the following:

(a) Determine the cost per case-mix unit for each nursing facility in the peer group for the applicable calendar year by dividing each facility's desk-reviewed, actual, allowable, per diem direct care costs for the applicable calendar year by the facility's annual average case-mix score determined under section 5165.192 of the Revised Code for the applicable calendar year;

(b) Subject to division (D)(2) of this section, identify which nursing facility in the peer group is at the twenty-fifth percentile of the cost per case-mix units determined under division (D)(1)(a) of this section;

(c) Calculate the amount that is two per cent above the cost per case-mix unit determined under division (D)(1)(a) of this section for the nursing facility identified under division (D)(1)(b) of this section;

(d) Using the index specified in division (D)(3) of this section, multiply the rate of inflation for the eighteen-month period beginning on the first day of July of the applicable calendar year and ending the last day of December of the calendar year immediately following the applicable calendar year by the amount calculated under division (D)(1)(c) of this section;

(e) Add the following to the amount calculated under division (D)(1)(d) of this section:

(i) Until the earlier of January 1, 2014, or when the first rebasing occurs, one dollar and eighty-eight cents ;

(ii) Unless the first rebasing occurs before January 1, 2014, beginning January 1, 2014, and until the first rebasing occurs, eighty-six cents.

(f) Until the first rebasing occurs, increase the amount calculated under division (D)(1)(e) of this section by five and eight hundredths per cent.

(2) In making the identification under division (D)(1)(b) of this section, the department shall exclude both of the following:

(a) Nursing facilities that participated in the medicaid program under the same provider for less than twelve months in the applicable calendar year;

(b) Nursing facilities whose cost per case-mix unit is more than one standard deviation from the mean cost per case-mix unit for all nursing facilities in the nursing facility's peer group for the applicable calendar year.

(3) The following index shall be used for the purpose of the calculation made under division (D)(1)(d) of this section:

(a) Until the first rebasing occurs, the employment cost index for total compensation, health services component, published by the United States bureau of labor statistics, as the index existed on July 1, 2005;

(b) Effective with the first rebasing and except as provided in division (D)(3)(c) of this section, the employment cost index for total compensation, nursing and residential care facilities occupational group, published by the United States bureau of labor statistics;

(c) If the United States bureau of labor statistics ceases to publish the index specified in division (D)(3)(b) of this section, the index the bureau subsequently publishes that covers nursing facilities' staff costs.

(4) The department shall not redetermine a peer group's cost per case-mix unit under this division based on additional information that it receives after the peer group's per case-mix unit is determined. The department shall redetermine a peer group's cost per case-mix unit only if it made an error in determining the peer group's cost per case-mix unit based on information available to the department at the time of the original determination.

Renumbered from § 5111.231 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.194, HB 303, §1, eff. 7/1/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 7/1/2011.

Amended by 128th General AssemblyFile No.9, HB 1, §101.01, eff. 7/1/2009, op. 7/17/2009.

Effective Date: 06-06-2001; 07-01-2005; 03-30-2006

5165.191 Resident assessment data.

Each calendar quarter, each nursing facility provider shall compile complete assessment data for each resident of each of the provider's nursing facilities, regardless of payment source, who is in the nursing facility, or on hospital or therapeutic leave from the nursing facility, on the last day of the quarter. A resident assessment instrument specified in rules authorized by this section shall be used to compile the resident assessment data. Each provider shall submit the resident assessment data to the department of health and, if required by the rules, the department of medicaid. The resident assessment data shall be submitted not later than fifteen days after the end of the calendar quarter for which the data is compiled. If the resident assessment data is to be submitted to the department of medicaid, it shall be submitted to the department through the medium or media specified in the rules.

Rules adopted under section 5165.02 of the Revised Code shall do all of the following:

(A) In a manner consistent with the "Social Security Act," section 1919(e)(5), 42 U.S.C. 1396r(e)(5), specify a resident assessment instrument to be used by nursing facility providers under this section;

(B) Specify whether nursing facility providers must submit the resident assessment data to the department of medicaid;

(C) If the rules specify that nursing facility providers must submit the resident assessment data to the department, specify the medium or media through which the data is to be submitted.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5165.192 [Renumbered from 5111.232] Case-mix scores for nursing facilities.

(A)

(1) Except as provided in division (B) of this section and in accordance with the process specified in rules authorized by this section, the department of medicaid shall do all of the following:

(a) Every quarter, determine the following two case-mix scores for each nursing facility:

(i) A quarterly case-mix score that includes each resident who is a medicaid recipient and is not a low resource utilization resident;

(ii) A quarterly case-mix score that includes each resident regardless of payment source.

(b) Every six months, determine a semiannual average case-mix score for each nursing facility by using the quarterly case-mix scores determined for the nursing facility pursuant to division (A)(1)(a)(i) of this section;

(c) After the end of each calendar year, determine an annual average case-mix score for each nursing facility by using the quarterly case-mix scores determined for the nursing facility pursuant to division (A)(1)(a)(ii) of this section.

(2) When determining case-mix scores under division (A)(1) of this section, the department shall use all of the following:

(a) Data from a resident assessment instrument specified in rules authorized by section 5165.191 of the Revised Code

;

(b) Except as provided in rules authorized by this section, the case-mix values established by the United States department of health and human services;

(c) Except as modified in rules authorized by this section, the grouper methodology used on June 30, 1999, by the United States department of health and human services for prospective payment of skilled nursing facilities under the medicare program .

(B) Providers of an intermediate care facility for the mentally retarded shall submit the data to the department of job and family services. The data shall be submitted not later than fifteen days after the end of the calendar quarter for which the data is compiled.

department, every six months and after the end of each calendar year, shall calculate a semiannual and annual average case-mix score for each nursing facility using the facility's quarterly case-mix scores for that six-month period or calendar year. The department shall make the calculations pursuant to procedures specified in rules adopted under section 5111.02 of the Revised Code.

(1) Subject to division (B)(2) of this section, the department, for one or more months of a calendar quarter, may assign to a nursing facility a case-mix score that is five per cent less than the nursing facility's case-mix score for the immediately preceding calendar quarter if any of the following apply:

(a) The provider does not timely submit complete and accurate resident assessment data necessary to determine the nursing facility's case-mix score for the calendar quarter ;

(b) The nursing facility was subject to an exception review under section 5165.193 of the Revised Code for the immediately preceding calendar quarter ;

(c) The nursing facility was assigned a case-mix score for the immediately preceding calendar quarter.

5111.23 or 5111.231 of the Revised Code for one or more months, as specified in rules authorized by division (E) of this section, of the quarter for which the rate established under section 5111.231 of the Revised Code will be paid.

(2) Before assigning a case-mix score to a nursing facility due to the submission of incorrect resident assessment data, the department shall permit the provider to correct the data. The department may assign the case-mix score if the provider fails to submit the corrected resident assessment data not later than the earlier of the forty-fifth day after the end of the calendar quarter to which the data pertains or the deadline for submission of such corrections established by regulations adopted by the United States department of health and human services under Title XVIII and Title XIX.

(3) If, for more than six months in a calendar year, a provider is paid a rate determined for a nursing facility using a case-mix score assigned to the nursing facility under division (B)(1) of this section , the department may assign the nursing facility a cost per case-mix unit that is five per cent less than the nursing facility's actual or assigned cost per case-mix unit for the immediately preceding calendar year. The department may use the assigned cost per case-mix unit, instead of determining the nursing facility's actual cost per case-mix unit in accordance with section 5165.19 of the Revised Code, to establish the nursing facility's rate for direct care costs for the fiscal year immediately following the calendar year for which the cost per case-mix unit is assigned.

(4) The department shall take action under division (B)(1) , (2), or (3) of this section only in accordance with rules authorized by this section. The department shall not take an action that affects rates for prior payment periods except in accordance with sections 5165.41 and 5165.42 of the Revised Code.

(C) The medicaid director shall adopt rules under section 5165.02 of the Revised Code as necessary to implement this section.

(1) The rules shall do all of the following:

(a) Specify the process for determining the semiannual and annual average case-mix scores for nursing facilities;

(b) Adjust the case-mix values specified in division (A)(2)(b) of this section to reflect changes in relative wage differentials that are specific to this state;

(c) Express all of those case-mix values in numeric terms that are different from the terms specified by the United States department of health and human services but that do not alter the relationship of the case-mix values to one another;

(d) Modify the grouper methodology specified in division (A)(2)(c) of this section as follows:

(i) Establish a different hierarchy for assigning residents to case-mix categories under the methodology;

(ii) Prohibit the use of the index maximizer element of the methodology;

(iii) Incorporate changes to the methodology the United States department of health and human services makes after June 30, 1999;

(iv) Make other changes the department determines are necessary.

(e) Establish procedures under which resident assessment data shall be reviewed for accuracy and providers shall be notified of any data that requires correction;

(f) Establish procedures for providers to correct resident assessment data and specify a reasonable period of time by which providers shall submit the corrections. The procedures may limit the content of corrections in the manner required by regulations adopted by the United States department of health and human services under Title XVIII and Title XIX.

(g) Specify when and how the department will assign case-mix scores or costs per case-mix unit to a nursing facility under division (B) of this section if information necessary to calculate the nursing facility's case-mix score is not provided or corrected in accordance with the procedures established by the rules.

(2) Notwithstanding any other provision of this chapter, the rules may provide for the

exclusion of case-mix scores assigned to a nursing facility under division (B) of this section from the determination of the nursing facility's semiannual or annual average case-mix score and the cost per case-mix unit for the nursing facility's peer group.

Renumbered from § 5111.232 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Amended by 128th General AssemblyFile No.9, HB 1, §101.01, eff. 10/16/2009.

Effective Date: 07-01-2005

5165.193 Exception review of assessment data.

(A) The department of medicaid may, pursuant to rules authorized by this section, conduct an exception review of resident assessment data submitted by a nursing facility provider under section 5165.191 of the Revised Code. The department may conduct an exception review based on the findings of a medicaid certification survey conducted by the department of health, a risk analysis, or prior performance of the provider.

Exception reviews shall be conducted at the nursing facility by appropriate health professionals under contract with or employed by the department. The professionals may review resident assessment forms and supporting documentation, conduct interviews, and observe residents to identify any patterns or trends of inaccurate resident assessments and resulting inaccurate case-mix scores.

(B) If an exception review is conducted before the effective date of a nursing facility's rate for direct care costs that is based on the resident assessment data being reviewed and the review results in findings that exceed tolerance levels specified in the rules authorized by this section, the department, in accordance with those rules, may use the findings to redetermine individual resident case-mix scores, the nursing facility's case-mix score for the quarter, and the nursing facility's annual average case-mix score. The department may use the nursing facility's redetermined quarterly and annual average case-mix scores to determine the nursing facility's rate for direct care costs for the appropriate calendar quarter or quarters.

(C) The department shall prepare a written summary of any exception review finding that is made after the effective date of a nursing facility's rate for direct care costs that is based on the resident assessment data that was reviewed. Where the provider is pursuing judicial or administrative remedies in good faith regarding the finding, the department shall not withhold from the provider's current payments any amounts the department claims to be due from the provider pursuant to section 5165.41 of the Revised Code.

(D)

(1) The medicaid director shall adopt rules under section 5165.02 of the Revised Code as necessary to implement this section. The rules shall establish an exception review program that does all of the following:

(a) Requires each exception review to comply with Title XVIII and Title XIX;

(b) Requires a written summary for each exception review that states whether resident assessment forms have been completed accurately;

(c) Prohibits each health professional who conducts an exception review from doing either of the following:

(i) During the period of the professional's contract or employment with the department, having or being committed to acquire any direct or indirect financial interest in the ownership, financing, or operation of nursing facilities in this state;

(ii) Reviewing any provider that has been a client of the professional.

(2) For the purposes of division (D)(1)(c)(i) of this section, employment of a member of a health professional's family by a nursing facility that the professional does not review does not constitute a direct or indirect financial interest in the ownership, financing, or operation of the nursing facility.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5165.21 [Renumbered from 5111.242] Per resident per medicaid day payment rate for tax costs.

(A) As used in this section:

(1) "Applicable calendar year" means the following:

(a) For the purpose of the department of medicaid's initial determination under this section of nursing facilities' rate for tax costs, calendar year 2003;

(b) For the purpose of the department's rebasings, the calendar year the department selects.

(2) "Rebasing" means a redetermination under division (B) of this section of each nursing facility's rate for tax costs using information from cost reports for an applicable calendar year that is later than the applicable calendar year used for the previous determination of such rates.

(B) The department of medicaid shall determine each nursing facility's per medicaid day payment rate for tax costs . The department is not required to conduct a rebasing more than once every ten years. Except as necessary to implement the amendments made to this section by Sub. H.B. 303 of the 129th general assembly, the rate for tax costs determined under this division for a nursing facility shall be used for subsequent years until the department conducts a rebasing. To determine a nursing facility's rate for tax costs and except as provided in division (C) of this section, the department shall do both of the following:

(1) Divide the nursing facility's desk-reviewed, actual, allowable tax costs paid for the applicable calendar year by the number of inpatient days the nursing facility would have had if its occupancy rate had been one hundred per cent during the applicable calendar year;

(2) Until the first rebasing occurs, increase the amount calculated under division (B)(1) of this section by five and eight hundredths per cent.

(C) If a nursing facility had a credit regarding its real estate taxes reflected on its cost report for calendar year 2003, the department shall determine, as follows, its rate for tax costs for the period beginning on July 1, 2010, and ending on the first day of the fiscal year for which the department first conducts a rebasing:

(1) Divide the nursing facility's desk-reviewed, actual, allowable tax costs paid for calendar year 2004 by the number of inpatient days the nursing facility would have had if its occupancy rate had been one hundred per cent during calendar year 2004;

(2) Until the first rebasing occurs, increase the amount calculated under division (C)(1) of this section by five and eight hundredths per cent.

Renumbered from § 5111.242 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.194, HB 303, §1, eff. 7/1/2013.

Amended by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

Amended by 128th General AssemblyFile No.36, HB 198, §1, eff. 6/8/2010.

Effective Date: 07-01-2005

5165.23 [Renumbered from 5111.246] Critical access incentive payments to qualified facilities.

(A) Each fiscal year, the department of medicaid shall determine the critical access incentive payment for each nursing facility that qualifies as a critical access nursing facility. To qualify as a critical access nursing facility for a fiscal year, a nursing facility must meet all of the following requirements:

(1) The nursing facility must be located in an area that, on December 31, 2011, was designated an empowerment zone under the "Internal Revenue Code of 1986," section 1391, 26 U.S.C. 1391.

(2) The nursing facility must have an occupancy rate of at least eighty-five per cent as of the last day of the calendar year immediately preceding the fiscal year.

(3) The nursing facility must have a medicaid utilization rate of at least sixty-five per cent as of the last day of the calendar year immediately preceding the fiscal year.

(4) The nursing facility must have been awarded at least five points for meeting accountability measures under section 5165.25 of the Revised Code for the fiscal year and at least one of the five points must have been awarded for meeting the following:

(a) For fiscal year 2014, the accountability measures identified in divisions (C)(10), (11), (12), and (13) of section 5165.25 of the Revised Code;

(b) For fiscal year 2015 and each fiscal year thereafter, the accountability measures identified in divisions (D)(9), (10), (11), (12), and (14) of section 5165.25 of the Revised Code.

(B) A critical access nursing facility's critical access incentive payment for a fiscal year shall equal five per cent of the portion of the nursing facility's total rate for the fiscal year that is the sum of the rates and payment identified in divisions (A)(1) to (4) and (6) of section 5165.15 of the Revised Code.

Renumbered from § 5111.246 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.194, HB 303, §1, eff. 7/1/2013.

Added by 129th General AssemblyFile No.127, HB 487, §101.01, eff. 9/10/2012.

5165.25 [Renumbered from 5111.244] Quality incentive payments for qualifying nursing facilities.

(A) As used in this section:

(1) "Complaint surveys" has the same meaning as in 42 C.F.R. 488.30.

(2) "Customer satisfaction survey" means the annual survey of long-term care facilities required by section 173.47 of the Revised Code.

(3) "Deficiency" has the same meaning as in 42 C.F.R. 488.301.

(4) "Exempted hospital discharge" has the same meaning as in 42 C.F.R. 483.106(b)(2)(i).

(5) "Family satisfaction survey" means a customer satisfaction survey, or part of a customer satisfaction survey, that contains the results of information obtained from the families of a nursing facility's residents.

(6) "Minimum data set" means the standardized, uniform comprehensive assessment of nursing facility residents that is used to identify potential problems, strengths, and preferences of residents and is part of the resident assessment instrument required by the "Social Security Act," section 1919(e)(5), 42 U.S.C. 1396r(e)(5).

(7)

"Nurse aide" has the same meaning as in section 3721.21 of the Revised Code.

(8) "Resident satisfaction survey" means a customer satisfaction survey, or part of a customer satisfaction survey, that contains the results of information obtained from a nursing facility's residents.

(9) "Room mirror" means a mirror that is located in either of the following rooms:

(a) A resident bathroom if the sink used by a resident after the resident uses the resident bathroom is in the resident bathroom;

(b) A resident's room if the sink used by a resident after the resident uses the resident bathroom is in the resident's room.

(10) "Room sink" means a sink that is located in either of the following rooms:

(a) A resident bathroom if the sink used by a resident after the resident uses the resident bathroom is in the resident bathroom;

(b) A resident's room if the sink used by a resident after the resident uses the resident bathroom is in the resident's room.

(11) "Standard survey" has the same meaning as in 42 C.F.R. 488.301.

(12) "Special focus facility list" means the list of nursing facilities that the United States department of health and human services creates under the special focus facility program required by the "Social Security Act," section 1919(f)(10), 42 U.S.C. 1396r(f)(10).

(13) "Substantial wall" means a permanent structure that reaches from floor to ceiling and divides a semiprivate room into two distinct living spaces, each with its own window.

(14) "Table B of the special focus facility list" means the table included in the special focus facility list that identifies nursing facilities that have not improved.

(B)

(1) Each fiscal year, the department of medicaid shall determine each nursing facility's quality incentive payment . Subject to divisions (B)(2) and (3) of this section, the per medicaid day amount of a quality incentive payment paid to a nursing facility provider shall be the product of the following:

(a) The number of points the provider's nursing facility is awarded for meeting accountability measures under this section;

(b) Three dollars and twenty-nine cents.

(2) The maximum quality incentive payment that may be paid to a nursing facility provider for fiscal year 2014 shall be sixteen dollars and forty-four cents per medicaid day.

(3) The maximum quality incentive payment that may be paid to a nursing facility provider for fiscal year 2015 and each fiscal year thereafter shall be the following:

(a) Sixteen dollars and forty-four cents if at least one of the points awarded to the nursing facility for meeting accountability measures is for an accountability measure identified in division (D)(9), (10), (11), (12), or (14) of this section;

(b) Thirteen dollars and sixteen cents if division (B)(3)(a) of this section does not apply.

(C) For fiscal year 2014 only and subject to division (E) of this section, the department shall award each nursing facility participating in the medicaid program one point for each of the following accountability measures the facility meets:

(1) The facility's overall score on its resident satisfaction survey is at least eighty-six.

(2) The facility's overall score on its family satisfaction survey is at least eighty-eight.

(3) The facility satisfies the requirements for participation in the advancing excellence in America's nursing homes campaign.

(4) The facility had neither of the following on the facility's most recent standard survey conducted not later than the last day of the calendar year immediately preceding the fiscal year for which the point is to be awarded or any complaint surveys conducted in the calendar year immediately preceding the fiscal year for which the point is to be awarded:

(a) A health deficiency with a scope and severity level greater than F;

(b) A deficiency that constitutes a substandard quality of care.

(5) The facility offers at least fifty per cent of its residents at least one of the following dining choices for at least one meal each day:

(a) Restaurant-style dining in which food is brought from the food preparation area to residents per the residents' orders;

(b) Buffet-style dining in which residents obtain their own food, or have the facility's staff bring food to them per the residents' directions, from the buffet;

(c) Family-style dining in which food is customarily served on a serving dish and shared by residents;

(d) Open dining in which residents have at least a two-hour period to choose when to have a meal;

(e) Twenty-four-hour dining in which residents may order meals from the facility any time of the day.

(6) At least fifty per cent of the facility's residents are able to take a bath or shower as often as they choose.

(7) The facility has at least both of the following scores on its resident satisfaction survey:

(a) With regard to the question in the survey regarding residents' ability to choose when to go to bed in the evening, at least eighty-nine;

(b) With regard to the question in the survey regarding residents' ability to choose when to get out of bed in the morning, at least seventy-six.

(8) The facility has at least both of the following scores on its family satisfaction survey:

(a) With regard to the question in the survey regarding residents' ability to choose when to go to bed in the evening, at least eighty-eight;

(b) With regard to the question in the survey regarding residents' ability to choose when to get out of bed in the morning, at least seventy-five.

(9) All of the following apply to the facility:

(a) At least seventy-five per cent of the facility's residents have the opportunity, following admission to the facility and before completing or quarterly updating their individual plans of care, to discuss their goals for the care they are to receive at the facility, including their preferences for advance care planning, with a member of the residents' health care teams that the facility, residents, and residents' sponsors consider appropriate.

(b) The facility records the residents' care goals, including the residents' advance care planning preferences, in their medical records.

(c) The facility uses the residents' care goals, including the residents' advance care planning preferences, in the development of the residents' individual plans of care.

(10) Not more than thirteen and thirty-five hundredths per cent of the facility's long-stay residents report severe to moderate pain during the minimum data set assessment process.

(11) Not more than five and seventy-three hundredths per cent of the facility's long-stay, high-risk residents have been assessed as having one or more stage two, three, or four pressure ulcers during the minimum data set assessment process.

(12) Not more than one and fifty-two hundredths per cent of the facility's long-stay residents were physically restrained as reported during the minimum data set assessment process.

(13) Less than seven and seventy-eight hundredths per cent of the facility's long-stay residents had a urinary tract infection as reported during the minimum data set assessment process.

(14) The facility uses a tool for tracking residents' admissions to hospitals.

(15) An average of at least fifty per cent of the facility's medicaid-certified beds are in private rooms.

(16) The facility has accessible resident bathrooms, all of which meet at least two of the following standards and at least some of which meet all of the following standards:

(a) There are room mirrors that are accessible to residents in wheelchairs, can be adjusted so as to be visible to residents who are seated or standing, or both.

(b) There are room sinks that are accessible to residents in wheelchairs and have clearance for wheelchairs.

(c) There are room sinks that have faucets with adaptive or easy-to-use lever or paddle handles.

(17) The facility does both of the following:

(a) Maintains a written policy that prohibits the use of overhead paging systems or limits the use of overhead paging systems to emergencies, as defined in the policy;

(b) Communicates the policy to its staff, residents, and families of residents.

(18) The facility has a score of at least ninety on its resident satisfaction survey with regard to the question in the survey regarding residents' ability to personalize their rooms with personal belongings.

(19) The facility has a score of at least ninety-five on its family satisfaction survey with regard to the question in the survey regarding residents' ability to personalize their rooms with personal belongings.

(20) The facility does both of the following:

(a) Maintains a written policy that requires consistent assignment of nurse aides and specifies the goal of having a resident receive nurse aide care from not more than eight different nurse aides during a thirty-day period;

(b) Communicates the policy to its staff, residents, and families of residents.

(21) The facility's staff retention rate is at least seventy-five per cent.

(22) The facility's turnover rate for nurse aides is not higher than sixty-five per cent.

(23) For at least fifty per cent of the resident care conferences in the facility, a nurse aide who is a primary caregiver for the resident attends and participates in the conference.

(D) For fiscal year 2015 and each fiscal year thereafter and subject to division (E) of this section, the department shall award each nursing facility participating in the medicaid program one point for each of the following accountability measures the facility meets:

(1) The facility's overall score on its resident satisfaction survey is at least eighty-seven and five-tenths.

(2) The facility's overall score on its family satisfaction survey is at least eighty-five and nine-tenths.

(3) The facility satisfies the requirements for participation in the advancing excellence in America's nursing homes campaign.

(4) Both of the following apply to the facility:

(a) The facility had not been listed on table B of the special focus facility list for eighteen or more consecutive months during any time during the calendar year immediately preceding the fiscal year for which the point is to be awarded.

(b) The facility had neither of the following on the facility's most recent standard survey conducted not later than the last day of the calendar year immediately preceding the fiscal year for which the point is to be awarded or any complaint surveys conducted in the calendar year immediately preceding the fiscal year for which the point is to be awarded:

(i) A health deficiency with a scope and severity level greater than F;

(ii) A deficiency that constitutes a substandard quality of care.

(5) The facility does all of the following:

(a) Offers at least fifty per cent of its residents at least one of the following dining choices for at least two meals each day:

(i) Restaurant-style dining in which food is brought from the food preparation area to residents per the residents' orders;

(ii) Buffet-style dining in which residents obtain their own food, or have the facility's staff bring food to them per the residents' directions, from the buffet;

(iii) Family-style dining in which food is customarily served on a serving dish and shared by residents;

(iv) Open dining in which residents have at least a two-hour period to choose when to have a meal;

(v) Twenty-four-hour dining in which residents may order meals from the facility any time of the day.

(b) Maintains a written policy specifying the manner or manners in which residents' dining choices for meals are offered;

(c) Communicates the policy to its staff, residents, and families of residents.

(6) The facility does all of the following:

(a) Enables at least fifty per cent of the facility's residents to take a bath or shower when they choose;

(b) Maintains a written policy regarding residents' choices in bathing;

(c) Communicates the policy to its staff, residents, and families of residents.

(7) The facility has at least both of the following scores on its resident satisfaction survey:

(a) With regard to the question in the survey regarding residents' ability to choose when to go to bed in the evening, at least eighty-nine;

(b) With regard to the question in the survey regarding residents' ability to choose when to get out of bed in the morning, at least seventy-six.

(8) The facility has at least both of the following scores on its family satisfaction survey:

(a) With regard to the question in the survey regarding residents' ability to choose when to go to bed in the evening, at least eighty-eight;

(b) With regard to the question in the survey regarding residents' ability to choose when to get out of bed in the morning, at least seventy-five.

(9) Not more than thirteen and thirty-five hundredths per cent of the facility's long-stay residents report severe to moderate pain during the minimum data set assessment process.

(10) Not more than five and sixteen hundredths per cent of the facility's long-stay, high-risk residents have been assessed as having one or more stage two, three, or four pressure ulcers during the minimum data set assessment process.

(11) Not more than one and fifty-two hundredths per cent of the facility's long-stay residents were physically restrained as reported during the minimum data set assessment process.

(12) Less than seven per cent of the facility's long-stay residents had a urinary tract infection as reported during the minimum data set assessment process.

(13) The facility does both of the following:

(a) Uses a tool for tracking residents' admissions to hospitals;

(b) Annually reports to the department data on hospital admissions by month for all residents.

(14) Both of the following apply:

(a) At least ninety-five per cent of the facility's long-stay residents are vaccinated against pneumococcal pneumonia, decline the vaccination, or are not vaccinated because the vaccination is medically contraindicated.

(b) At least ninety-three per cent of the facility's long-stay residents are vaccinated against seasonal influenza, decline the vaccination, or are not vaccinated because the vaccination is medically contraindicated.

(15) An average of at least fifty per cent of the facility's medicaid-certified beds are in either, or in a combination of both, of the following:

(a) Private rooms;

(b) Semiprivate rooms to which all of the following apply:

(i) Each room provides a distinct territory for each resident occupying the room.

(ii) Each distinct territory has a window and is separated by a substantial wall from the other distinct territories in the room.

(iii) Each resident is able to enter and exit the distinct territory of the resident's room without entering or exiting another resident's distinct territory.

(iv) Complete visual privacy for each distinct territory may be obtained by drawing a curtain or other screen.

(16) The facility obtains at least a ninety-five per cent compliance rate with requesting resident reviews required by 42 C.F.R. 483.106(b)(2)(ii) for individuals who are exempted hospital discharges.

(17) The facility does both of the following:

(a) Maintains a written policy that requires consistent assignment of nurse aides and specifies the goal of having a resident receive nurse aide care from not more than twelve different nurse aides during a thirty-day period;

(b) Communicates the policy to its staff, residents, and families of residents.

(18) The facility's staff retention rate is at least seventy-five per cent.

(19) The facility's turnover rate for nurse aides is not higher than sixty-five per cent.

(20) For at least fifty per cent of the resident care conferences in the facility, a nurse aide who is a primary caregiver for the resident attends and participates in the conference.

(21) All of the following apply to the facility:

(a) At least seventy-five per cent of the facility's residents have the opportunity, following admission to the facility and before completing or quarterly updating their individual plans of care, to discuss their goals for the care they are to receive at the facility, including their preferences for advance care planning, with a member of the residents' health care teams that the facility, residents, and residents' sponsors consider appropriate.

(b) The facility records the residents' care goals, including the residents' advance care planning preferences, in their medical records.

(c) The facility uses the residents' care goals, including the residents' advance care planning preferences, in the development of the residents' individual plans of care.

(22) The facility does both of the following:

(a) Maintains a written policy that prohibits the use of overhead paging systems or limits the use of overhead paging systems to emergencies, as defined in the policy;

(b) Communicates the policy to its staff, residents, and families of residents.

(E)

(1) To be awarded a point for meeting an accountability measure under division (C) or (D) of this section other than the accountability measure identified in divisions (C)(4) and (D)(4)(b) of this section, a nursing facility must meet the accountability measure in the calendar year immediately preceding the fiscal year for which the point is to be awarded.

(2) The department shall award points pursuant to divisions (C)(1), (7), and (18) and (D)(1) and (7) of this section to a nursing facility only if a resident satisfaction survey was initiated under section 173.47 of the Revised Code for the nursing facility in the calendar year immediately preceding the fiscal year for which the points are to be awarded.

(3) The department shall award points pursuant to divisions (C)(2), (8), and (19) and (D)(2) and (8) of this section to a nursing facility only if a family satisfaction survey was initiated under section 173.47 of the Revised Code for the nursing facility in the calendar year immediately preceding the fiscal year for which the points are to be awarded.

(4) The department shall award points pursuant to divisions (D)(21) and (22) of this section only for fiscal year 2015.

(5) Not later than July 1, 2013, the department shall adjust the score used for the purpose of division (C)(8)(b) of this section in a manner that causes at least fifty per cent of nursing facilities to meet division (C)(8)(b) of this section.

(F)

Not later than July 1, 2014, the department shall submit, in accordance with section 101.68 of the Revised Code, recommendations to the general assembly for accountability measures to replace the accountability measures identified in divisions (D)(21) and (22) of this section.

(G)

Rules adopted under section 5165.02 of the Revised Code may specify what is meant by "some" as that word is used in division (C)(16) of this section.

Renumbered from § 5111.244 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.60, SB 264, §1, eff. 7/1/2012.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 7/1/2011.

Effective Date: 07-01-2005; 06-30-2006

5165.26 [Renumbered from 5111.245] Payment of quality bonus.

(A) As used in this section:

(1) "Budgeted amount for quality incentive payments for a fiscal year" means the amount determined for a fiscal year as follows:

(a) Multiply the total number of medicaid days in the immediately preceding fiscal year by sixteen dollars and forty-four cents;

(b) Determine the total amount of quality incentive payments that was paid under section 5165.25 of the Revised Code to all nursing facility providers for the immediately preceding fiscal year;

(c) Subtract the amount determined under division (A)(1)(b) of this section from the product calculated under division (A)(1)(a) of this section;

(2) "Point days for a fiscal year" means the product of the following:

(a) A qualifying nursing facility's quality bonus points for the fiscal year;

(b) The number of the qualifying nursing facility's medicaid days in the fiscal year.

(3) "Qualifying nursing facility" means a nursing facility that qualifies for a quality bonus for a fiscal year as determined under division (B) of this section.

(4) "Quality bonus points for a fiscal year" means the amount determined by subtracting five from the number of points awarded to a qualifying nursing facility for meeting accountability measures under section 5165.25 of the Revised Code for a fiscal year.

(B) The department of medicaid shall pay a nursing facility provider a quality bonus for the fiscal year if both of the following apply:

(1) The provider's nursing facility is awarded more than five points for meeting accountability measures under section 5165.25 of the Revised Code for the fiscal year

(2) the budgeted amount for quality incentive payments for the fiscal year is greater than zero.

(C) The total quality bonus to be paid to the provider of a qualifying nursing facility for a fiscal year shall equal the product of the following:

(1) The quality bonus per medicaid day for the fiscal year determined for the provider's qualifying nursing facility under division (D) of this section;

(2) The number of the qualifying nursing facility's medicaid days in the fiscal year.

(D) A qualifying nursing facility's quality bonus per medicaid day for a fiscal year shall be the product of the following:

(1) The nursing facility's quality bonus points for the fiscal year;

(2) The quality bonus per point for the fiscal year determined under division (E) of this section.

(E) The quality bonus per point for a fiscal year shall be determined as follows:

(1) Determine the number of each qualifying nursing facility's point days for the fiscal year;

(2) Determine the sum of all qualifying nursing facilities' point days for the fiscal year;

(3) Divide the budgeted amount for quality incentive payments for the fiscal year by the sum determined under division (E)(2) of this section.

(F) The calculation of a qualifying nursing facility's bonus payment is not subject to appeal under Chapter 119. of the Revised Code.

Renumbered from § 5111.245 by 130th General Assembly File No. 25, HB 59, §101.01 (Vetoed Provisions), eff. 9/29/2013.

Added by 129th General AssemblyFile No.60, SB 264, §1, eff. 7/1/2012.

5165.28 [Renumbered from 5111.257] Rate for added, replaced, or renovated beds.

If a provider of a nursing facility adds or replaces one or more medicaid certified beds to or at the nursing facility, or renovates one or more of the nursing facility's beds, the medicaid payment rate for the added, replaced, or renovated beds shall be the same as the medicaid payment rate for the nursing facility's existing beds.

Renumbered from § 5111.257 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2005

5165.29 [Renumbered from 5111.265] Cost of operating rights for relocated beds not allowable cost.

If one or more medicaid-certified beds are relocated from one nursing facility to another nursing facility owned by a different person or government entity and the application for the certificate of need authorizing the relocation is filed with the director of health on or after July 1, 2005, amortization of the cost of acquiring operating rights for the relocated beds is not an allowable cost for the purpose of determining the nursing facility's medicaid payment rate.

Renumbered from § 5111.265 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2005

5165.30 [Renumbered from 5111.264] Related party costs to pass through.

Except as provided in section 5165.17 of the Revised Code, the costs of goods, services, and facilities, furnished to a nursing facility provider by a related party are includable in the allowable costs of the provider at the reasonable cost to the related party.

Renumbered from § 5111.264 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 03-22-1999; 07-01-2005

5165.32 Reduction in rate not permitted.

The department of medicaid shall not reduce a nursing facility's medicaid payment rate determined under this chapter on the basis that the provider charges a lower rate to any resident who is not eligible for medicaid.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5165.33 No payment for discharge date.

No medicaid payment shall be made to a nursing facility provider for the day a medicaid recipient is discharged from the nursing facility.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5165.34 [Renumbered from 5111.331] Payments made to reserve bed during temporary absence.

(A) The department of medicaid may make medicaid payments to a nursing facility provider under this chapter to reserve a bed for a recipient during a temporary absence under conditions prescribed by the department, to include hospitalization for an acute condition, visits with relatives and friends, and participation in therapeutic programs outside the facility, when the resident's plan of care provides for such absence and federal financial participation for the payments is available.

(B) The maximum period for which payments may be made to reserve a bed in a nursing facility shall not exceed thirty days in a calendar year.

(C) The department shall establish the per medicaid day payment rates for reserving beds under this section. In establishing the per medicaid day payment rates, the department shall

set the per medicaid day payment rate at an amount equal to the following:

(1) In the case of a nursing facility that had an occupancy rate exceeding ninety-five per cent, an amount not exceeding fifty per cent of the per medicaid day payment rate the provider would be paid if the recipient were not absent from the nursing facility that day;

(2) In the case of a nursing facility that had an occupancy rate not exceeding ninety-five per cent, an amount not exceeding eighteen per cent of the per medicaid day payment rate the provider would be paid if the recipient were not absent from the nursing facility that day.

(D) For the purpose of setting a nursing facility's per medicaid day payment rate to reserve a bed for a day during the period beginning on the effective date of this amendment and ending December 31, 2013, the department shall determine the nursing facility's occupancy rate by using information reported on the nursing facility's cost report for calendar year 2012. For the purpose of setting a nursing facility's per medicaid day payment rate to reserve a bed for January 1, 2014, or thereafter, the department shall determine the nursing facility's occupancy rate by using information reported on the nursing facility's cost report for the calendar year preceding the fiscal year in which the reservation falls.

Renumbered from § 5111.331 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Added by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

5165.35 [Renumbered from 5111.212] Payments made to facility for services provided after involuntary termination.

Medicaid payments may be made for nursing facility services provided not later than thirty days after the effective date of an involuntary termination of the nursing facility that provides the services if the services are provided to a medicaid recipient who is eligible for the services and resided in the nursing facility before the effective date of the involuntary termination.

Renumbered from § 5111.212 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Added by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

5165.37 [Renumbered from 5111.221] Calculating rates and making payments.

The department of medicaid shall make its best efforts each year to calculate nursing facilities' medicaid payment rates under this chapter in time to pay the rates by the fifteenth day of August of each fiscal year. If the department is unable to calculate the rates so that they can be paid by that date, the department shall pay each provider the rate calculated for the provider's nursing facilities under this chapter at the end of the previous fiscal year. If the department also is unable to calculate the rates to pay the rates by the fifteenth day of September and the fifteenth day of October, the department shall pay the previous fiscal year's rate to make those payments. The department may increase by five per cent the previous fiscal year's rate paid for any nursing facility pursuant to this section at the request of the provider. The department shall use rates calculated for the current fiscal year to make the payments due by the fifteenth day of November.

If the rate paid to a provider for a nursing facility pursuant to this section is lower than the rate calculated for the nursing facility for the current fiscal year, the department shall pay the provider the difference between the two rates for the number of days for which the provider was paid for the nursing facility pursuant to this section. If the rate paid for a nursing facility pursuant to this section is higher than the rate calculated for it for the current fiscal year, the provider shall refund to the department the difference between the two rates for the number of days for which the provider was paid for the nursing facility pursuant to this section.

Renumbered from § 5111.221 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 07-01-2000; 07-01-2005

5165.38 [Renumbered from 5111.29] Reconsideration of rate.

The medicaid director shall adopt rules under section 5165.02 of the Revised Code that establish a process under which a nursing facility provider, or a group or association of nursing facility providers, may seek reconsideration of medicaid payment rates established under this chapter, including a rate for direct care costs recalculated before the effective date of the rate as a result of an exception review of resident assessment data conducted under section 5165.193 of the Revised Code. The

only issue that a provider, group, or association may raise in the rate reconsideration shall be whether the rate was calculated in accordance with this chapter and the rules adopted under section 5165.02 of the Revised Code. The provider, group, or association may submit written arguments or other materials that support its position. The provider, group, or association and department of medicaid shall take actions regarding the rate reconsideration within time frames specified in rules authorized by this section.

If the department determines, as a result of the rate reconsideration, that the rate determined for one or more nursing facilities is less than the rate to which the nursing facility is entitled, the department shall increase the rate. If the department has paid the incorrect rate for a period of time, the department shall pay the provider the difference between the amount the provider was paid for that period for the nursing facility and the amount the provider should have been paid for the nursing facility.

Renumbered from § 5111.29 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 06-06-2001; 07-01-2005

5165.40 [Renumbered from 5111.28] Adjustment of rates.

If a nursing facility provider properly amends a cost report for the nursing facility under section 5165.107 of the Revised Code and the amended report shows that the provider received a lower medicaid payment rate under the original cost report than the provider was entitled to receive, the department of medicaid shall adjust the provider's rate for the nursing facility prospectively to reflect the corrected information. The department shall pay the adjusted rate beginning two months after the first day of the month after the provider files the amended cost report.

If the department finds, from an exception review of resident assessment data conducted pursuant to section 5165.193 of the Revised Code after the effective date of a nursing facility's rate for direct care costs that is based on the resident assessment data, that inaccurate resident assessment data resulted in the provider receiving a lower rate for the nursing facility than it was entitled to receive, the department prospectively shall adjust the provider's rate accordingly . The department shall make payments to the provider using the adjusted rate for the remainder of the six-month period for which the resident assessment data is used to determine the rate, beginning one month after the first day of the month after the exception review is completed.

.

department to the provider. The and the provider may enter into an agreement under which the amount, together with interest, is deducted in installments from payments from the to the provider.

department shall request a written statement of the average bank prime rate from the federal reserve bank of Cleveland or the federal reserve board.

Renumbered from § 5111.28 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 06-06-2001; 07-01-2005

5165.41 Redetermination of rates.

(A) The department of medicaid shall redetermine a provider's medicaid payment rate for a nursing facility using revised information if any of the following results in a determination that the provider received a higher medicaid payment rate for the nursing facility than the provider was entitled to receive:

(1) The provider properly amends a cost report for the nursing facility under section 5165.107 of the Revised Code;

(2) The department makes a finding based on an audit under section 5165.109 of the Revised Code;

(3) The department makes a finding based on an exception review of resident assessment data conducted under section 5165.193 of the Revised Code after the effective date of the nursing facility's rate for direct care costs that is based on the resident assessment data;

(4) The department makes a finding based on a post-payment review conducted under section 5165.49 of the Revised Code.

(B) The department shall apply the redetermined rate to the periods when the provider received the incorrect rate to determine the amount of the overpayment. The provider shall refund the amount of the overpayment. The department may charge the provider the following amount of interest from the time the overpayment was made:

(1) If the overpayment resulted from costs reported for calendar year 1993, the interest shall be no greater than one and one-half times the current average bank prime rate.

(2) If the overpayment resulted from costs reported for a subsequent calendar year:

(a) The interest shall be no greater than two times the current average bank prime rate if the overpayment was no more than one per cent of the total medicaid payments to the provider for the fiscal year for which the overpayment was made.

(b) The interest shall be no greater than two and one-half times the current average bank prime rate if the overpayment was more than one per cent of the total medicaid payments to the provider for the fiscal year for which the overpayment was made.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5165.42 Additional penalties.

In addition to the other penalties authorized by this chapter, the department of medicaid may impose the following penalties on a nursing facility provider:

(A) If the provider does not furnish invoices or other documentation that the department requests during an audit within sixty days after the request, a fine of no more than the greater of the following:

(1) One thousand dollars per audit;

(2) Twenty-five per cent of the cumulative amount by which the costs for which documentation was not furnished increased the total medicaid payments to the provider during the fiscal year for which the costs were used to determine a rate.

(B) If an exiting operator or owner fails to provide notice of a facility closure or voluntary withdrawal of participation in the medicaid program as required by section 5165.50 of the Revised Code, or an exiting operator or owner and entering operator fail to provide notice of a change of operator as required by section 5165.51 of the Revised Code, a fine of not more than the current average bank prime rate plus four per cent of the last two monthly payments.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5165.43 Determination of interest rate.

For the purposes of sections 5165.41 and 5165.42 of the Revised Code, the department of medicaid shall determine the current average bank prime rate using statistical release H.15, "selected interest rates," a weekly publication of the federal reserve board, or any successor publication. If statistical release H.15, or its successor, ceases to contain the bank prime rate information or ceases to be published, the department shall request a written statement of the average bank prime rate from the federal reserve bank of Cleveland or the federal reserve board.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5165.44 Deductions.

(A) Except as provided in division (B) of this section, the department of medicaid shall deduct the following from the next available medicaid payment the department makes to a nursing facility provider who continues to participate in medicaid:

(1) Any amount the provider is required to refund, and any interest charged, under section 5165.41 of the Revised Code;

(2) The amount of any penalty imposed on the provider under section 5165.42 of the Revised Code.

(B) The department and a nursing facility provider may enter into an agreement under which a deduction required by division (A) of this section is taken in installments from payments the department makes to the provider.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5165.45 Deposits to general revenue fund.

The department of medicaid shall transmit to the treasurer of state for deposit in the general revenue fund amounts collected from the following:

(A) Refunds required by, and interest charged under, section 5165.41 of the Revised Code;

(B) Amounts collected from penalties imposed under section 5165.42 of the Revised Code.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5165.46 Administrative adjudication.

All of the following are subject to an adjudication conducted in accordance with Chapter 119. of the Revised Code:

(A) Any audit disallowance that the department of medicaid makes as the result of an audit under section 5165.109 of the Revised Code;

(B) Any adverse finding that results from an exception review of resident assessment data conducted for a nursing facility under section 5165.193 of the Revised Code after the effective date of the nursing facility's medicaid payment rate for direct care costs that is based on the resident assessment data;

(C) Any medicaid payment deemed an overpayment under section 5165.523 of the Revised Code;

(D) Any penalty the department imposes under section 5165.42 of the Revised Code or section 5165.523 of the Revised Code.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5165.47 [Renumbered from 5111.262] Claim for medicaid payment for service provided to nursing facility resident.

No person, other than a nursing facility provider , shall submit a claim for medicaid payment for a service provided to a nursing facility resident if the service is included in a medicaid payment made to the nursing facility provider under this chapter or in the allowable expenses reported on a provider's cost report for a nursing facility. No nursing facility provider shall submit a separate claim for medicaid payment for a service provided to a resident of the nursing facility if the service is included in a medicaid payment made to the provider under this chapter or in the allowable expenses on the provider's cost report for the nursing facility.

Renumbered from § 5111.262 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Amended by 128th General AssemblyFile No.9, HB 1, §101.01, eff. 7/1/2009, op. 7/17/2009.

Effective Date: 06-06-2001; 06-30-2005

5165.48 [Renumbered from 5111.0211] Nursing facility not required to submit Medicaid claim for Medicare cost-sharing expenses under certain circumstances.

The provider of a nursing facility is not required to submit a claim to the department of medicaid regarding the medicare cost-sharing expenses of a resident of the nursing facility who, under federal law, is eligible to have the medicaid program pay for a part of the cost-sharing expenses if the provider determines that, under rules adopted under section 5165.02 of the Revised Code, the nursing facility would not receive a medicaid payment for any part of the medicare cost-sharing expenses. In such a situation, a claim for the medicare cost-sharing expenses shall be considered to have been adjudicated at no payment.

Renumbered from § 5111.0211 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Added by 128th General AssemblyFile No.44, HB 215, §1, eff. 9/13/2010.

5165.49 Post-payment reviews of nursing facility Medicaid claims.

The department of medicaid may conduct a post-payment review of a claim submitted by a nursing facility provider and paid by the medicaid program to determine whether the provider was overpaid. The department shall provide the provider a written summary of the review's results. The review's results are not subject to an adjudication under Chapter 119. of the Revised Code; however, the provider may request that the medicaid director reconsider the review's results. The director shall reconsider the review's results on receipt of a request made in good faith. The department shall not deduct any amounts the department claims to be due from the provider as a result of the review from the provider's medicaid payments pursuant to section 5165.44 of the Revised Code until the conclusion of the director's reconsideration, if any, of the review.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5165.50 [Renumbered from 5111.66] Notice of facility closure or withdrawal of participation.

An exiting operator or owner of a nursing facility participating in the medicaid program shall provide the department of medicaid written notice of a facility closure or voluntary withdrawal of participation not less than ninety days before the effective date of the facility closure or voluntary withdrawal of participation. The written notice shall be provided to the department in accordance with the method specified in rules authorized by section 5165.53 of the Revised Code.

The written notice shall include all of the following:

(A) The name of the exiting operator and, if any, the exiting operator's authorized agent;

(B) The name of the nursing facility that is the subject of the written notice;

(C) The exiting operator's medicaid provider agreement number for the nursing facility that is the subject of the written notice;

(D) The effective date of the facility closure or voluntary withdrawal of participation;

(E) The signature of the exiting operator's or owner's representative.

Renumbered from § 5111.66 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 07-01-2005

5165.501 [Renumbered from 5111.661] Compliance with Social Security Act required.

An operator shall comply with the "Social Security Act," section 1919(c)(2)(F), 42 U.S.C. 1396r(c)(2)(F) if the operator's nursing facility undergoes a voluntary withdrawal of participation.

Renumbered from § 5111.661 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2005

5165.51 [Renumbered from 5111.67] Notice of change of operator.

(A) An exiting operator or owner and entering operator shall provide the department of medicaid written notice of a change of operator if the nursing facility participates in the medicaid program and the entering operator seeks to continue the nursing facility's participation. The written notice shall be provided to the department in accordance with the method specified in rules authorized by section 5165.53 of the Revised Code. The written notice shall be provided to the department not later than forty-five days before the effective date of the change of operator if the change of operator does not entail the relocation of residents. The written notice shall be provided to the department not later than ninety days before the effective date of the change of operator if the change of operator entails the relocation of residents.

The written notice shall include all of the following:

(1) The name of the exiting operator and, if any, the exiting operator's authorized agent;

(2) The name of the nursing facility that is the subject of the change of operator;

(3) The exiting operator's seven-digit medicaid legacy number and ten-digit national provider identifier number for the nursing facility that is the subject of the change of operator;

(4) The name of the entering operator;

(5) The effective date of the change of operator;

(6) The manner in which the entering operator becomes the nursing facility's operator, including through sale, lease, merger, or other action;

(7) If the manner in which the entering operator becomes the nursing facility's operator involves more than one step, a description of each step;

(8) Written authorization from the exiting operator or owner and entering operator for the department to process a provider agreement for the entering operator;

(9) The names and addresses of the persons to whom the department should send initial correspondence regarding the change of operator;

(10) If the nursing facility also participates in the medicare program, notification of whether the entering operator intends to accept assignment of the exiting operator's medicare provider agreement;

(11) The signature of the exiting operator's or owner's representative.

(B) An exiting operator or owner and entering operator immediately shall provide the department written notice of any changes to information included in a written notice of a change of operator that occur after that notice is provided to the department. The notice of the changes shall be provided to the department in accordance with the method specified in rules authorized by section 5165.53 of the Revised Code.

Renumbered from § 5111.67 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 07-01-2005

5165.511 [Renumbered from 5111.671] Agreements with entering operators effective on date of change of operator.

The department of medicaid may enter into a provider agreement with an entering operator that goes into effect at 12:01 a.m. on the effective date of the change of operator if all of the following requirements are met:

(A) The department receives a properly completed written notice required by section 5165.51 of the Revised Code on or before the date required by that section.

(B) The department receives both of the following in accordance with the method specified in rules authorized by section 5165.53 of the Revised Code and not later than ten days after the effective date of the change of operator:

(1) From the entering operator, a completed application for a provider agreement and all other forms and documents specified in rules authorized by section 5165.53 of the Revised Code;

(2) From the exiting operator or owner, all forms and documents specified in rules authorized by section 5165.53 of the Revised Code.

(C) The entering operator is eligible for medicaid payments as provided in section 5165.06 of the Revised Code.

Renumbered from § 5111.671 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 07-01-2005

5165.512 [Renumbered from 5111.672] Agreements with entering operators effective on a later date.

(A) The department of medicaid may enter into a provider agreement with an entering operator that goes into effect at 12:01 a.m. on the date determined under division (B) of this section if all of the following are the case:

(1) The department receives a properly completed written notice required by section 5165.51 of the Revised Code.

(2) The department receives, from the entering operator and in accordance with the method specified in rules authorized by section 5165.53 of the Revised Code, a completed application for a provider agreement and all other forms and documents specified in rules adopted under that section.

(3) The department receives, from the exiting operator or owner and in accordance with the method specified in rules authorized by section 5165.53 of the Revised Code, all forms and documents specified in rules adopted under that section.

(4) One or more of the following apply:

(a) The requirement of division (A)(1) of this section is met after the time required by section 5165.51 of the Revised Code;

(b) The requirement of division (A)(2) of this section is met more than ten days after the effective date of the change of operator;

(c) The requirement of division (A)(3) of this section is met more than ten days after the effective date of the change of operator.

(5) The entering operator is eligible for medicaid payments as provided in section 5165.06 of the Revised Code.

(B) The department shall determine the date a provider agreement entered into under this section is to go into effect as follows:

(1) The effective date shall give the department sufficient time to process the change of operator, assure no duplicate payments are made, and make the withholding required by section 5165.521 of the Revised Code.

(2) The effective date shall be not earlier than the latest of the following:

(a) The effective date of the change of operator;

(b) The date that the entering operator complies with section 5165.51 of the Revised Code and division (A)(2) of this section;

(c) The date that the exiting operator or owner complies with section 5165.51 of the Revised Code and division (A)(3) of this section.

(3) The effective date shall be not later than the following after the later of the dates specified in division (B)(2) of this section:

(a) Forty-five days if the change of operator does not entail the relocation of residents;

(b) Ninety days if the change of operator entails the relocation of residents.

Renumbered from § 5111.672 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 07-01-2005

5165.513 [Renumbered from 5111.673] [Effective Until 1/1/2015] Entering operator duties under provider agreement.

(A) A provider that enters into a provider agreement with the department of medicaid under section 5165.511 or 5165.512 of the Revised Code shall do all of the following:

(1) Comply with all applicable federal statutes and regulations;

(2) Comply with section 5165.07 of the Revised Code and all other applicable state statutes and rules;

(3) Subject to division (B) of this section, comply with all the terms and conditions of the exiting operator's provider agreement, including, but not limited to, all of the following:

(a) Any plan of correction;

(b) Compliance with health and safety standards;

(c) Compliance with the ownership and financial interest disclosure requirements of 42 C.F.R. 455.104, 455.105, and 1002.3;

(d) Compliance with the civil rights requirements of 45 C.F.R. parts 80, 84, and 90;

(e) Compliance with additional requirements imposed by the department;

(f) Any sanctions relating to remedies for violation of the provider agreement, including deficiencies, compliance periods, accountability periods, monetary penalties, notification for correction of contract violations, and history of deficiencies.

(B) Division (A)(3) of this section does not prohibit a nursing facility provider from excluding one or more parts of the nursing facility from the provider agreement pursuant to division (B)(1) of section 5165.08 of the Revised Code.

Renumbered from § 5111.673 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2005

5165.513 [Effective 1/1/2015] Entering operator duties under provider agreement.

A provider that enters into a provider agreement with the department of medicaid under section 5165.511 or 5165.512 of the Revised Code shall do all of the following:

(A) Comply with all applicable federal statutes and regulations;

(B) Comply with section 5165.07 of the Revised Code and all other applicable state statutes and rules;

(C) Subject to division (B) of this section, comply with all the terms and conditions of the exiting operator's provider agreement, including, but not limited to, all of the following:

(1) Any plan of correction;

(2) Compliance with health and safety standards;

(3) Compliance with the ownership and financial interest disclosure requirements of 42 C.F.R. 455.104, 455.105, and 1002.3;

(4) Compliance with the civil rights requirements of 45 C.F.R. parts 80, 84, and 90;

(5) Compliance with additional requirements imposed by the department;

(6) Any sanctions relating to remedies for violation of the provider agreement, including deficiencies, compliance periods, accountability periods, monetary penalties, notification for correction of contract violations, and history of deficiencies.

Amended by 130th General Assembly File No. 25, HB 59, §110.25, eff. 1/1/2015.

Renumbered from § 5111.673 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2005

5165.514 [Renumbered from 5111.674] Exiting operator deemed operator pending change.

In the case of a change of operator, the exiting operator shall be considered to be the operator of the nursing facility for purposes of the medicaid program, including medicaid payments, until the effective date of the entering operator's provider agreement if the provider agreement is entered into under section 5165.511 or 5165.512 of the Revised Code.

Renumbered from § 5111.674 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2005

5165.515 [Renumbered from 5111.675] [Effective Until 1/1/2015] Provider agreement with operator not complying with prior agreement.

The department of medicaid may enter into a provider agreement as provided in section 5165.07 of the Revised Code, rather than section 5165.511 or 5165.512 of the Revised Code, with an entering operator if the entering operator does not agree to a provider agreement that satisfies the requirements of division (A)(3) of section 5165.513 of the Revised Code. The department may not enter into the provider agreement unless the department of health certifies the nursing facility for participation in medicaid. The effective date of the provider agreement shall not precede any of the following:

(A) The date that the department of health certifies the nursing facility;

(B) The effective date of the change of operator;

(C) The date the requirement of section 5165.51 of the Revised Code is satisfied.

Renumbered from § 5111.675 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2005

5165.515 [Effective 1/1/2015] Provider agreement with operator not complying with prior agreement.

The department of medicaid may enter into a provider agreement as provided in section 5165.07 of the Revised Code, rather than section 5165.511 or 5165.512 of the Revised Code, with an entering operator if the entering operator does not agree to a provider agreement that satisfies the requirements of division (C) of section 5165.513 of the Revised Code. The department may not enter into the provider agreement unless the department of health certifies the nursing facility for participation in medicaid. The effective date of the provider agreement shall not precede any of the following:

(A) The date that the department of health certifies the nursing facility;

(B) The effective date of the change of operator;

(C) The date the requirement of section 5165.51 of the Revised Code is satisfied.

Amended by 130th General Assembly File No. 25, HB 59, §110.25, eff. 1/1/2015.

Renumbered from § 5111.675 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2005

5165.516 [Renumbered from 5111.676] Medicaid reimbursement adjustments; change of operator.

The medicaid director may adopt rules under section 5165.02 of the Revised Code governing adjustments to the medicaid payment rate for a nursing facility that undergoes a change of operator. No rate adjustment resulting from a change of operator shall be effective before the effective date of the entering operator's provider agreement. This is the case regardless of whether the provider agreement is entered into under section 5165.511, section 5165.512, or, pursuant to section 5165.515, section 5165.07 of the Revised Code.

Renumbered from § 5111.676 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2005

5165.517 [Renumbered from 5111.677] Determination of change of operator for purposes of licensure not controlling.

The department of health's determination that a change of operator has or has not occurred for purposes of licensure under Chapter 3721. of the Revised Code shall not affect the department of medicaid's determination of whether or when a change of operator occurs or the effective date of an entering operator's provider agreement under section 5165.511, section 5165.512, or, pursuant to section 5165.515, section 5165.07 of the Revised Code

.

Renumbered from § 5111.677 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 128th General Assemblych.28, SB 79, §1, eff. 10/6/2009.

Effective Date: 07-01-2005

5165.52 [Renumbered from 5111.68] Overpayment amounts determined following notice of closure, etc.

(A) On receipt of a written notice under section 5165.50 of the Revised Code of a facility closure or voluntary withdrawal of participation, on receipt of a written notice under section 5165.51 of the Revised Code of a change of operator, or on the effective date of an involuntary termination, the department of medicaid shall estimate the amount of any overpayments made under the medicaid program to the exiting operator, including overpayments the exiting operator disputes, and other actual and potential debts the exiting operator owes or may owe to the department and United States centers for medicare and medicaid services under the medicaid program, including a franchise permit fee.

(B) In estimating the exiting operator's other actual and potential debts to the department and the United States centers for medicare and medicaid services under the medicaid program, the department shall use a debt estimation methodology the medicaid director shall establish in rules authorized by section 5165.53 of the Revised Code. The methodology shall provide for estimating all of the following that the department determines are applicable:

(1) Refunds due the department under section 5165.41 of the Revised Code;

(2) Interest owed to the department and United States centers for medicare and medicaid services;

(3) Final civil monetary and other penalties for which all right of appeal has been exhausted;

(4) Money owed the department and United States centers for medicare and medicaid services from any outstanding final fiscal audit, including a final fiscal audit for the last fiscal year or portion thereof in which the exiting operator participated in the medicaid program;

(5) Other amounts the department determines are applicable.

(C) The department shall provide the exiting operator written notice of the department's estimate under division (A) of this section not later than thirty days after the department receives the notice under section 5165.50 of the Revised Code of the facility closure or voluntary withdrawal of participation; the department receives the notice under section 5165.51 of the Revised Code of the change of operator; or the effective date of the involuntary termination. The department's written notice shall include the basis for the estimate.

Renumbered from § 5111.68 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Amended by 128th General AssemblyFile No.33, HB 398, §1, eff. 8/31/2010.

Amended by 128th General AssemblyFile No.9, HB 1, §101.01, eff. 10/16/2009.

Effective Date: 07-01-2005

5165.521 [Renumbered from 5111.681] Withholding amounts owed from medicaid payments to exiting operator.

(A) Except as provided in divisions (B), (C), and (D) of this section, the department of medicaid may withhold from payment due an exiting operator under the medicaid program the total amount specified in the notice provided under division (C) of section 5165.52 of the Revised Code that the exiting operator owes or may owe to the department and United States centers for medicare and medicaid services under the medicaid program.

(B) In the case of a change of operator and subject to division (E) of this section, the following shall apply regarding a withholding under division (A) of this section if the exiting operator or entering operator or an affiliated operator executes a successor liability agreement meeting the requirements of division (F) of this section:

(1) If the exiting operator, entering operator, or affiliated operator assumes liability for the total, actual amount of debt the exiting operator owes the department and the United States centers for medicare and medicaid services under the medicaid program as determined under section 5165.525 of the Revised Code, the department shall not make the withholding.

(2) If the exiting operator, entering operator, or affiliated operator assumes liability for only the portion of the amount specified in division (B)(1) of this section that represents the franchise permit fee the exiting operator owes, the department shall withhold not more than the difference between the total amount specified in the notice provided under division (C) of section 5165.52 of the Revised Code and the amount for which the exiting operator, entering operator, or affiliated operator assumes liability.

(C) In the case of a voluntary withdrawal of participation or facility closure and subject to division (E) of this section, the following shall apply regarding a withholding under division (A) of this section if the exiting operator or an affiliated operator executes a successor liability agreement meeting the requirements of division (F) of this section:

(1) If the exiting operator or affiliated operator assumes liability for the total, actual amount of debt the exiting operator owes the department and the United States centers for medicare and medicaid services under the medicaid program as determined under section 5165.525 of the Revised Code, the department shall not make the withholding.

(2) If the exiting operator or affiliated operator assumes liability for only the portion of the amount specified in division (C)(1) of this section that represents the franchise permit fee the exiting operator owes, the department shall withhold not more than the difference between the total amount specified in the notice provided under division (C) of section 5165.52 of the Revised Code and the amount for which the exiting operator or affiliated operator assumes liability.

(D) In the case of an involuntary termination and subject to division (E) of this section, the following shall apply regarding a withholding under division (A) of this section if the exiting operator, the entering operator, or an affiliated operator executes a successor liability agreement meeting the requirements of division (F) of this section and the department approves the successor liability agreement:

(1) If the exiting operator, entering operator, or affiliated operator assumes liability for the total, actual amount of debt the exiting operator owes the department and the United States centers for medicare and medicaid services under the medicaid program as determined under section 5165.525 of the Revised Code, the department shall not make the withholding.

(2) If the exiting operator, entering operator, or affiliated operator assumes liability for only the portion of the amount specified in division (D)(1) of this section that represents the franchise permit fee the exiting operator owes, the department shall withhold not more than the difference between the total amount specified in the notice provided under division (C) of section 5165.52 of the Revised Code and the amount for which the exiting operator, entering operator, or affiliated operator assumes liability.

(E) For an exiting operator or affiliated operator to be eligible to enter into a successor liability agreement under division (B), (C), or (D) of this section, both of the following must apply:

(1) The exiting operator or affiliated operator must have one or more valid provider agreements, other than the provider agreement for the nursing facility that is the subject of the involuntary termination, voluntary withdrawal of participation, facility closure, or change of operator;

(2) During the twelve-month period preceding either the effective date of the involuntary termination or the month in which the department receives the notice of the voluntary withdrawal of participation or facility closure under section 5165.50 of the Revised Code or the notice of the change of operator under section 5165.51 of the Revised Code, the average monthly medicaid payment made to the exiting operator or affiliated operator pursuant to the exiting operator's or affiliated operator's one or more provider agreements, other than the provider agreement for the nursing facility that is the subject of the involuntary termination, voluntary withdrawal of participation, facility closure, or change of operator, must equal at least ninety per cent of the sum of the following:

(a) The average monthly medicaid payment made to the exiting operator pursuant to the exiting operator's provider agreement for the nursing facility that is the subject of the involuntary termination, voluntary withdrawal of participation, facility closure, or change of operator;

(b) Whichever of the following apply:

(i) If the exiting operator or affiliated operator has assumed liability under one or more other successor liability agreements, the total amount for which the exiting operator or affiliated operator has assumed liability under the other successor liability agreements;

(ii) If the exiting operator or affiliated operator has not assumed liability under any other successor liability agreements, zero.

(F) A successor liability agreement executed under this section must comply with all of the following:

(1) It must provide for the operator who executes the successor liability agreement to assume liability for either of the following as specified in the agreement:

(a) The total, actual amount of debt the exiting operator owes the department and the United States centers for medicare and medicaid services under the medicaid program as determined under section 5165.525 of the Revised Code;

(b) The portion of the amount specified in division (F)(1)(a) of this section that represents the franchise permit fee the exiting operator owes.

(2) It may not require the operator who executes the successor liability agreement to furnish a surety bond.

(3) It must provide that the department, after determining under section 5165.525 of the Revised Code the actual amount of debt the exiting operator owes the department and United States centers for medicare and medicaid services under the medicaid program, may deduct the lesser of the following from medicaid payments made to the operator who executes the successor liability agreement:

(a) The total, actual amount of debt the exiting operator owes the department and the United States centers for medicare and medicaid services under the medicaid program as determined under section 5165.525 of the Revised Code;

(b) The amount for which the operator who executes the successor liability agreement assumes liability under the agreement.

(4) It must provide that the deductions authorized by division (F)(3) of this section are to be made for a number of months, not to exceed six, agreed to by the operator who executes the successor liability agreement and the department or, if the operator who executes the successor liability agreement and department cannot agree on a number of months that is less than six, a greater number of months determined by the attorney general pursuant to a claims collection process authorized by statute of this state.

(5) It must provide that, if the attorney general determines the number of months for which the deductions authorized by division (F)(3) of this section are to be made, the operator who executes the successor liability agreement shall pay, in addition to the amount collected pursuant to the attorney general's claims collection process, the part of the amount so collected that, if not for division (H) of this section, would be required by section 109.081 of the Revised Code to be paid into the attorney general claims fund.

(G) Execution of a successor liability agreement does not waive an exiting operator's right to contest the amount specified in the notice the department provides the exiting operator under division (C) of section 5165.52 of the Revised Code.

(H) Notwithstanding section 109.081 of the Revised Code, the entire amount that the attorney general, whether by employees or agents of the attorney general or by special counsel appointed pursuant to section 109.08 of the Revised Code, collects under a successor liability agreement, other than the additional amount the operator who executes the agreement is required by division (F)(5) of this section to pay, shall be paid to the department of medicaid for deposit into the appropriate fund. The additional amount that the operator is required to pay shall be paid into the state treasury to the credit of the attorney general claims fund created under section 109.081 of the Revised Code.

Renumbered from § 5111.681 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Amended by 128th General AssemblyFile No.33, HB 398, §1, eff. 8/31/2010.

Amended by 128th General AssemblyFile No.9, HB 1, §101.01, eff. 10/16/2009.

Effective Date: 07-01-2005

5165.522 [Renumbered from 5111.682] Cost report by exiting operator; waiver.

(A) Except as provided in division (B) of this section, an exiting operator shall file with the department of medicaid a cost report not later than ninety days after the last day the exiting operator's provider agreement is in effect or, in the case of a voluntary withdrawal of participation, the effective date of the voluntary withdrawal of participation. The cost report shall cover the period that begins with the day after the last day covered by the operator's most recent previous cost report required by section 5165.10 of the Revised Code and ends on the last day the exiting operator's provider agreement is in effect or, in the case of a voluntary withdrawal of participation, the effective date of the voluntary withdrawal of participation. The cost report shall include, as applicable, all of the following:

(1) The sale price of the nursing facility ;

(2) A final depreciation schedule that shows which assets are transferred to the buyer and which assets are not transferred to the buyer;

(3) Any other information the department requires.

(B) The department, at its sole discretion, may waive the requirement that an exiting operator file a cost report in accordance with division (A) of this section.

Renumbered from § 5111.682 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2005

5165.523 [Renumbered from 5111.683] Failure to file cost report; payments deemed overpayments.

If an exiting operator required by section 5165.522 of the Revised Code to file a cost report with the department of medicaid fails to file the cost report in accordance with that section, all payments under the medicaid program for the period the cost report is required to cover are deemed overpayments until the date the department receives the properly completed cost report. The department may impose on the exiting operator a penalty of one hundred dollars for each calendar day the properly completed cost report is late.

Renumbered from § 5111.683 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2005

5165.524 [Renumbered from 5111.684] Final payment withheld pending receipt of cost reports.

The department of medicaid may not provide an exiting operator final payment under the medicaid program until the department receives all properly completed cost reports the exiting operator is required to file under sections 5165.10 and 5165.522 of the Revised Code.

Renumbered from § 5111.684 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2005

5165.525 [Renumbered from 5111.685] Determination of debt of exiting operator; summary report.

The department of medicaid shall determine the actual amount of debt an exiting operator owes the department and the United States centers for medicare and medicaid services under the medicaid program by completing all final fiscal audits not already completed and performing all other appropriate actions the department determines to be necessary. The department shall issue an initial debt summary report on this matter not later than sixty days after the date the exiting operator files the properly completed cost report required by section 5165.522 of the Revised Code with the department or, if the department waives the cost report requirement for the exiting operator, sixty days after the date the department waives the cost report requirement. The initial debt summary report becomes the final debt summary report thirty-one days after the department issues the initial debt summary report unless the exiting operator, or an affiliated operator who executes a successor liability agreement under section 5165.521 of the Revised Code, requests a review before that date.

The exiting operator, and an affiliated operator who executes a successor liability agreement under section 5165.521 of the Revised Code, may request a review to contest any of the department's findings included in the initial debt summary report. The request for the review must be submitted to the department not later than thirty days after the date the department issues the initial debt summary report. The department shall conduct the review on receipt of a timely request and issue a revised debt summary report. If the department has withheld money from payment due the exiting operator under division (A) of section 5165.521 of the Revised Code, the department shall issue the revised debt summary report not later than ninety days after the date the department receives the timely request for the review unless the department and exiting operator or affiliated operator agree to a later date. The exiting operator or affiliated operator may submit information to the department explaining what the operator contests before and during the review, including documentation of the amount of any debt the department owes the operator. The exiting operator or affiliated operator may submit additional information to the department not later than thirty days after the department issues the revised debt summary report. The revised debt summary report becomes the final debt summary report thirty-one days after the department issues the revised debt summary report unless the exiting operator or affiliated operator timely submits additional information to the department. If the exiting operator or affiliated operator timely submits additional information to the department, the department shall consider the additional information and issue a final debt summary report not later than sixty days after the department issues the revised debt summary report unless the department and exiting operator or affiliated operator agree to a later date.

Each debt summary report the department issues under this section shall include the department's findings and the amount of debt the department determines the exiting operator owes the department and United States centers for medicare and medicaid services under the medicaid program. The department shall explain its findings and determination in each debt summary report.

The exiting operator, and an affiliated operator who executes a successor liability agreement under section 5165.521 of the Revised Code, may request, in accordance with Chapter 119. of the Revised Code, an adjudication regarding a finding in a final debt summary report that pertains to an audit or alleged overpayment made under the medicaid program to the exiting operator. The adjudication shall be consolidated with any other uncompleted adjudication that concerns a matter addressed in the final debt summary report.

Renumbered from § 5111.685 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 128th General AssemblyFile No.33, HB 398, §1, eff. 8/31/2010.

Amended by 128th General AssemblyFile No.9, HB 1, §101.01, eff. 10/16/2009.

Effective Date: 07-01-2005

5165.526 [Renumbered from 5111.686] Release of amount withheld less amounts owed.

The department of medicaid shall release the actual amount withheld under division (A) of section 5165.521 of the Revised Code, less any amount the exiting operator owes the department and United States centers for medicare and medicaid services under the medicaid program, as follows:

(A) Unless the department issues the initial debt summary report required by section 5165.525 of the Revised Code not later than sixty days after the date the exiting operator files the properly completed cost report required by section 5165.522 of the Revised Code, sixty-one days after the date the exiting operator files the properly completed cost report;

(B) If the department issues the initial debt summary report required by section 5165.525 of the Revised Code not later than sixty days after the date the exiting operator files a properly completed cost report required by section 5165.522 of the Revised Code, not later than the following:

(1) Thirty days after the deadline for requesting an adjudication under section 5165.525 of the Revised Code regarding the final debt summary report if the exiting operator, and an affiliated operator who executes a successor liability agreement under section 5165.521 of the Revised Code, fail to request the adjudication on or before the deadline;

(2) Thirty days after the completion of an adjudication of the final debt summary report if the exiting operator, or an affiliated operator who executes a successor liability agreement under section 5165.521 of the Revised Code, requests the adjudication on or before the deadline for requesting the adjudication.

(C) Unless the department issues the initial debt summary report required by section 5165.525 of the Revised Code not later than sixty days after the date the department waives the cost report requirement of section 5165.522 of the Revised Code, sixty-one days after the date the department waives the cost report requirement;

(D) If the department issues the initial debt summary report required by section 5165.525 of the Revised Code not later than sixty days after the date the department waives the cost report requirement of section 5165.522 of the Revised Code, not later than the following:

(1) Thirty days after the deadline for requesting an adjudication under section 5165.525 of the Revised Code regarding the final debt summary report if the exiting operator, and an affiliated operator who executes a successor liability agreement under section 5165.521 of the Revised Code, fail to request the adjudication on or before the deadline;

(2) Thirty days after the completion of an adjudication of the final debt summary report if the exiting operator, or an affiliated operator who executes a successor liability agreement under section 5165.521 of the Revised Code, requests the adjudication on or before the deadline for requesting the adjudication.

Renumbered from § 5111.686 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 128th General AssemblyFile No.33, HB 398, §1, eff. 8/31/2010.

Amended by 128th General AssemblyFile No.9, HB 1, §101.01, eff. 10/16/2009.

Effective Date: 07-01-2005

5165.527 [Renumbered from 5111.687] Release of amount withheld on postponement of change of operator.

The department of medicaid, at its sole discretion, may release the amount withheld under division (A) of section 5165.521 of the Revised Code if the exiting operator submits to the department written notice of a postponement of a change of operator, facility closure, or voluntary withdrawal of participation and the transactions leading to the change of operator, facility closure, or voluntary withdrawal of participation are postponed for at least thirty days but less than ninety days after the date originally proposed for the change of operator, facility closure, or voluntary withdrawal of participation as reported in the written notice required by section 5165.50 or 5165.51 of the Revised Code. The department shall release the amount withheld if the exiting operator submits to the department written notice of a cancellation or postponement of a change of operator, facility closure, or voluntary withdrawal of participation and the transactions leading to the change of operator, facility closure, or voluntary withdrawal of participation are canceled or postponed for more than ninety days after the date originally proposed for the change of operator, facility closure, or voluntary withdrawal of participation as reported in the written notice required by section 5165.50 or 5165.51 of the Revised Code. A written notice shall be provided to the department in accordance with the method specified in rules authorized by section 5165.53 of the Revised Code.

After the department receives a written notice regarding a cancellation or postponement of a facility closure or voluntary withdrawal of participation, the exiting operator or owner shall provide new written notice to the department under section 5165.50 of the Revised Code regarding any transactions leading to a facility closure or voluntary withdrawal of participation at a future time. After the department receives a written notice regarding a cancellation or postponement of a change of operator, the exiting operator or owner and entering operator shall provide new written notice to the department under section 5165.51 of the Revised Code regarding any transactions leading to a change of operator at a future time.

Renumbered from § 5111.687 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 07-01-2005

5165.528 [Renumbered from 5111.688] Disposition of amounts withheld from payment due an exiting operator.

(A) All amounts withheld under section 5165.521 of the Revised Code from payment due an exiting operator under the medicaid program shall be deposited into the medicaid payment withholding fund created by the controlling board pursuant to section 131.35 of the Revised Code. Money in the fund shall be used as follows:

(1) To pay an exiting operator when a withholding is released to the exiting operator under section 5165.526 or 5165.527 of the Revised Code;

(2) To pay the department of medicaid and United States centers for medicare and medicaid services the amount an exiting operator owes the department and United States centers under the medicaid program.

(B) Amounts paid from the medicaid payment withholding fund pursuant to division (A)(2) of this section shall be deposited into the appropriate department fund.

Renumbered from § 5111.688 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Added by 128th General AssemblyFile No.33, HB 398, §1, eff. 8/31/2010.

Former section 5111.688 amended and renumbered as § 5111.6891 by 128th General AssemblyFile No.33, HB 398, §1, eff. 8/31/2010.

5165.53 [Renumbered from 5111.689] Adoption of rules regarding change in operators.

The medicaid director shall adopt rules under section 5165.02 of the Revised Code to implement sections 5165.50 to 5165.53 of the Revised Code, including rules applicable to an exiting operator that provides written notification under section 5165.50 of the Revised Code of a voluntary withdrawal of participation. Rules adopted under this section shall comply with the "Social Security Act," section 1919(c)(2)(F), 42 U.S.C. 1396r(c)(2)(F), regarding restrictions on transfers or discharges of nursing facility residents in the case of a voluntary withdrawal of participation. The rules may prescribe a medicaid payment methodology and other procedures that are applicable after the effective date of a voluntary withdrawal of participation that differ from the payment methodology and other procedures that would otherwise apply. The rules shall specify all of the following:

(A) The method by which written notices to the department required by sections 5165.50 to 5165.53 of the Revised Code are to be provided;

(B) The forms and documents that are to be provided to the department of medicaid under sections 5165.511 and 5165.512 of the Revised Code, which shall include, in the case of such forms and documents provided by entering operators, all the fully executed leases, management agreements, merger agreements and supporting documents, and fully executed sales contracts and any other supporting documents culminating in the change of operator;

(C) The method by which the forms and documents identified in division (B) of this section are to be provided to the department.

Renumbered from § 5111.689 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Amended and renumbered from § 5111.6881 by 128th General AssemblyFile No.33, HB 398, §1, eff. 8/31/2010.

5165.60 [Renumbered from 5111.35] Definitions for sections 5165.60 to 5165.89.

As used in this section, "a resident's rights" means the rights of a nursing facility resident under sections 3721.10 to 3721.17 of the Revised Code , the "Social Security Act," sections 1819(c) and 1919(c), 42 U.S.C. 1395i-3(c) and 1396r(c), and federal regulations issued under those sections of the "Social Security Act."

As used in sections 5165.60 to 5165.89 of the Revised Code:

(A) "Certification requirements" means the requirements for nursing facilities established under the "Social Security Act ," sections 1819 and 1919, 42 U.S.C. 1395i-3 and 1396r.

(B) "Compliance" means substantially meeting all applicable certification requirements.

(C) "Contracting agency" means a state agency that has entered into a contract with the department of medicaid under section 5165.63 of the Revised Code.

(D)

(1) "Deficiency" means a finding cited by the department of health during a survey, on the basis of one or more actions, practices, situations, or incidents occurring at a nursing facility, that constitutes a severity level three finding, severity level four finding, scope level three finding, or scope level four finding. Whenever the finding is a repeat finding, "deficiency" also includes any finding that is a severity level two and scope level one finding, a severity level two and scope level two finding, or a severity level one and scope level two finding.

(2) "Cluster of deficiencies" means deficiencies that result from noncompliance with two or more certification requirements and are causing or resulting from the same action, practice, situation, or incident.

(E) "Emergency" means either of the following:

(1) A deficiency or cluster of deficiencies that creates a condition of immediate jeopardy;

(2) An unexpected situation or sudden occurrence of a serious or urgent nature that creates a substantial likelihood that one or more residents of a nursing facility may be seriously harmed if allowed to remain in the facility, including the following:

(a) A flood or other natural disaster, civil disaster, or similar event;

(b) A labor strike that suddenly causes the number of staff members in a nursing facility to be below that necessary for resident care.

(F) "Finding" means a finding of noncompliance with certification requirements determined by the department of health under section 5165.66 of the Revised Code.

(G) "Immediate jeopardy" means that one or more residents of a nursing facility are in imminent danger of serious physical or life-threatening harm.

(H) "Medicaid eligible resident" means a person who is a resident of a nursing facility, or is applying for admission to a nursing facility, and is eligible for nursing facility services under the medicaid program .

(I) "Noncompliance" means failure to substantially meet all applicable certification requirements.

(J) "Nursing facility" includes a skilled nursing facility to the extent the context requires.

(K)

"Repeat finding" or "repeat deficiency" means a finding or deficiency cited pursuant to a survey, to which both of the following apply:

(1) The finding or deficiency involves noncompliance with the same certification requirement, and the same kind of actions, practices, situations, or incidents caused by or resulting from the noncompliance, as were cited in the immediately preceding standard survey or another survey conducted subsequent to the immediately preceding standard survey of the facility. For purposes of this division, actions, practices, situations, or incidents may be of the same kind even though they involve different residents, staff, or parts of the facility.

(2) The finding or deficiency is cited subsequent to a determination by the department of health that the finding or deficiency cited on the immediately preceding standard survey, or another survey conducted subsequent to the immediately preceding standard survey, had been corrected.

(L)

(1) "Scope level one finding" means a finding of noncompliance by a nursing facility in which the actions, situations, practices, or incidents causing or resulting from the noncompliance affect one or a very limited number of facility residents and involve one or a very limited number of facility staff members.

(2) "Scope level two finding" means a finding of noncompliance by a nursing facility in which the actions, situations, practices, or incidents causing or resulting from the noncompliance affect more than a limited number of facility residents or involve more than a limited number of facility staff members, but the number or percentage of facility residents affected or staff members involved and the number or frequency of the actions, situations, practices, or incidents in short succession does not establish any reasonable degree of predictability of similar actions, situations, practices, or incidents occurring in the future.

(3) "Scope level three finding" means a finding of noncompliance by a nursing facility in which the actions, situations, practices, or incidents causing or resulting from the noncompliance affect more than a limited number of facility residents or involve more than a limited number of facility staff members, and the number or percentage of facility residents affected or staff members involved or the number or frequency of the actions, situations, practices, or incidents in short succession establishes a reasonable degree of predictability of similar actions, situations, practices, or incidents occurring in the future.

(4) "Scope level four finding" means a finding of noncompliance by a nursing facility causing or resulting from actions, situations, practices, or incidents that involve a sufficient number or percentage of facility residents or staff members or occur with sufficient regularity over time that the noncompliance can be considered systemic or pervasive in the facility.

(M)

(1) "Severity level one finding" means a finding of noncompliance by a nursing facility that has not caused and, if continued, is unlikely to cause physical harm to a facility resident, mental or emotional harm to a resident, or a violation of a resident's rights that results in physical, mental, or emotional harm to the resident.

(2) "Severity level two finding" means a finding of noncompliance by a nursing facility that, if continued over time, will cause, or is likely to cause, physical harm to a facility resident, mental or emotional harm to a resident, or a violation of a resident's rights that results in physical, mental, or emotional harm to the resident.

(3) "Severity level three finding" means a finding of noncompliance by a nursing facility that has caused physical harm to a facility resident, mental or emotional harm to a resident, or a violation of a resident's rights that results in physical, mental, or emotional harm to the resident.

(4) "Severity level four finding" means a finding of noncompliance by a nursing facility that has caused life-threatening harm to a facility resident or caused a resident's death.

(N) "State agency" has the same meaning as in section 1.60 of the Revised Code.

(O) "Substandard care" means care furnished in a facility in which the department of health has cited a deficiency or deficiencies that constitute one of the following:

(1) A severity level four finding, regardless of scope;

(2) A severity level three and scope level four finding, in the quality of care provided to residents;

(3) A severity level three and scope level three finding, in the quality of care provided to residents.

(P)

(1) "Survey" means a survey of a nursing facility conducted under section 5165.64 of the Revised Code.

(2) "Standard survey" means a survey conducted by the department of health under division (A) of section 5165.64 of the Revised Code and includes an extended survey.

(3) "Follow-up survey" means a survey conducted by the department of health to determine whether a nursing facility has substantially corrected deficiencies cited in a previous survey.

Renumbered from § 5111.35 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 07-01-2000

5165.61 [Renumbered from 5111.36] Adoption of rules.

The medicaid director may adopt rules under section 5165.02 of the Revised Code that are consistent with regulations, guidelines, and procedures issued by the United States secretary of health and human services under the "Social Security Act," sections 1819 and 1919, 42 U.S.C. 1395i-3 and 1396r, and necessary for administration and enforcement of sections 5165.60 to 5165.89 of the Revised Code. If the secretary does not issue appropriate regulations for enforcement of those sections of the "Social Security Act" on or before December 13, 1990, the medicaid director may adopt, under section 5165.02 of the Revised Code, rules that are consistent with those sections and with sections 5165.60 to 5165.89 of the Revised Code.

Renumbered from § 5111.36 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000

5165.62 [Renumbered from 5111.37] Enforcement of provisions.

The department of medicaid is hereby authorized to enforce sections 5165.60 to 5165.89 of the Revised Code. The department may enforce the sections directly or through contracting agencies. The department and agencies shall enforce the sections in accordance with the requirements of the "Social Security Act," sections 1819 and 1919, 42 U.S.C. 1395i-3 and 1396r, that apply to nursing facilities; with regulations, guidelines, and procedures adopted by the United States secretary of health and human services for the enforcement of those sections of the "Social Security Act"; and with the rules authorized by section 5165.61 of the Revised Code. The department and agencies shall enforce sections 5165.60 to 5165.89 of the Revised Code for purposes of the medicare program only to the extent prescribed by the regulations, guidelines, and procedures issued by the secretary under the "Social Security Act," section 1819, 42 U.S.C. 1395i-3.

Renumbered from § 5111.37 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000

5165.63 [Renumbered from 5111.38] Contracts with state agencies for enforcement.

The department of medicaid may enter into contracts with other state agencies pursuant to section 5162.35 of the Revised Code that authorize the agencies to perform all or part of the duties assigned to the department of medicaid under sections 5165.60 to 5165.89 of the Revised Code. Each contract shall specify the duties the agency is authorized to perform and the sections of the Revised Code under which the agency is authorized to perform those duties.

Renumbered from § 5111.38 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000

5165.64 [Renumbered from 5111.39] Annual standard surveys.

(A) The department of health shall conduct a survey, titled a standard survey, of every nursing facility in this state on a statewide average of not more than once every twelve months. Each nursing facility shall undergo a standard survey at least once every fifteen months as a condition of meeting certification requirements. The department may extend a standard survey; such a survey is titled an extended survey.

(B) The department may conduct surveys in addition to standard surveys when it considers them necessary.

(C) The department shall conduct surveys in accordance with the regulations, guidelines, and procedures issued by the United States secretary of health and human services under Title XVIII and Title XIX , sections 5165.65 to 5165.68 of the Revised Code, and rules adopted under section 3721.022 of the Revised Code.

Renumbered from § 5111.39 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 12-13-1990

5165.65 [Renumbered from 5111.40] Exit interview with administrator.

(A) At the conclusion of each survey, the department of health survey team shall conduct an exit interview with the administrator or other person in charge of the nursing facility and any other facility staff members designated by the administrator or person in charge of the facility. During the exit interview, at the request of the administrator or other person in charge of the facility, the survey team shall provide one of the following, as selected by the survey team:

(1) Copies of all survey notes and any other written materials created during the survey;

(2) A written summary of the survey team's recommendations regarding findings of noncompliance with certification requirements;

(3) An audio or audiovisual recording of the interview. If the survey team selects this option, at least two copies of the recording shall be made and the survey team shall select one copy to be kept by the survey team for use by the department of health.

(B) All expenses of copying under division (A)(1) of this section or recording under division (A)(3) of this section, including the cost of the copy of the recording kept by the survey team, shall be paid by the facility.

Renumbered from § 5111.40 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 12-13-1990

5165.66 [Renumbered from 5111.41] Citations for failure to comply with one or more certification requirements.

(A) Except as provided in section 3721.17 of the Revised Code, a finding shall be cited only on the basis of a survey and a determination that one or more actions, practices, situations, or incidents at a nursing facility caused or resulted from the facility's failure to comply with one or more certification requirements. The department of health shall determine whether the actions, practices, situations, or incidents can be justified by either of the following:

(1) The actions, practices, situations, or incidents resulted from a resident exercising the resident's rights guaranteed under the laws of the United States or of this state;

(2) The actions, practices, situations, or incidents resulted from a facility following the orders of a person licensed under Chapter 4731. of the Revised Code to practice medicine or surgery or osteopathic medicine and surgery.

(B) If the department of health determines both that the actions, practices, situations, or incidents cannot be justified by the factors identified in division (A) of this section and that one or more of the following are applicable, the department shall declare that the actions, practices, situations, or incidents constitute a finding:

(1) The actions, practices, situations, or incidents could have been prevented by one or more persons involved in the facility's operation;

(2) No person involved in the facility's operation identified the actions, practices, situations, or incidents prior to the survey;

(3) Prior to the survey, no person involved in the facility's operation initiated action to correct the noncompliance caused by or resulting in the actions, practices, situations, or incidents;

(4) The facility does not have in effect, if needed, a contingency plan that is reasonably calculated to prevent physical, mental, or emotional harm to residents while permanent corrective action is being taken.

(C) The department of health shall determine the severity level and scope level of each finding.

(D) A deficiency that is substantially corrected within the time limits specified in sections 5165.79 to 5165.83 of the Revised Code and for which no remedy is imposed, shall be counted as a deficiency for the purpose of determining whether a deficiency is a repeat deficiency.

(E) Whenever the department of health determines that during the period between two surveys a finding existed at the facility, but the facility substantially corrected it prior to the second survey, the department shall cite it. However, the department of medicaid or a contracting agency shall impose a remedy only as provided in division (C) of section 5165.72 of the Revised Code.

(F) Immediately upon determining the severity and scope of a finding at a nursing facility, the department of health shall notify the department of medicaid and any contracting agency of the finding, the severity and scope of the finding, and whether the finding creates immediate jeopardy. Immediately upon determining that an emergency exists at a facility that does not result from a deficiency that creates immediate jeopardy, the department of health shall notify the department of medicaid and any contracting agency.

Renumbered from § 5111.41 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000

5165.67 [Renumbered from 5111.411] Survey results.

The results of a survey of a nursing facility that is conducted under section 5165.64 of the Revised Code, including any statement of deficiencies and all findings and deficiencies cited in the statement on the basis of the survey, shall be used solely to determine the nursing facility's compliance with certification requirements or with this chapter or another chapter of the Revised Code. Those results of a survey, that statement of deficiencies, and the findings and deficiencies cited in that statement shall not be used in any court or in any action or proceeding that is pending in any court and are not admissible in evidence in any action or proceeding unless that action or proceeding is an appeal of an administrative action by the department of medicaid or contracting agency under this chapter or is an action by any department or agency of the state to enforce this chapter or another chapter of the Revised Code.

Nothing in this section prohibits the results of a survey, a statement of deficiencies, or the findings and deficiencies cited in that statement on the basis of the survey under this section from being used in a criminal investigation or prosecution.

Renumbered from § 5111.411 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 11-07-2002

5165.68 [Renumbered from 5111.42] Statement of deficiencies.

(A) Not later than ten days after an exit interview, the department of health shall deliver to the nursing facility a detailed statement, titled a statement of deficiencies, setting forth all findings and deficiencies cited on the basis of the survey, including any finding cited pursuant to division (E) of section 5165.66 of the Revised Code. The statement shall indicate the severity and scope level of each finding and fully describe the incidents or other facts that form the basis of the department's determination of the existence of each finding and deficiency. A failure by the survey team to completely disclose in the exit interview every finding that may result from the survey does not affect the validity of any finding or deficiency cited in the statement of deficiencies. On request of the facility, the department shall provide a copy of any written worksheet or other document produced by the survey team in making recommendations regarding scope and severity levels of findings and deficiencies.

(B) At the same time the department of health delivers a statement of deficiencies, it also shall deliver to the facility a separate written notice that states all of the following:

(1) That the department of medicaid or a contracting agency will issue an order under section 5165.84 of the Revised Code denying payment for any medicaid eligible residents admitted on and after the effective date of the order if the facility does not substantially correct, within ninety days after the exit interview, the deficiency or deficiencies cited in the statement of deficiencies in accordance with the plan of correction it submitted under section 5165.69 of the Revised Code;

(2) If a condition of substandard care has been cited on the basis of a standard survey and a condition of substandard care was also cited on the immediately preceding standard survey, that the department of medicaid or a contracting agency will issue an order under section 5165.84 of the Revised Code denying payment for any medicaid eligible residents admitted on and after the effective date of the order if a condition of substandard care is cited on the basis of the next standard survey;

(3) That the department of medicaid or a contracting agency will issue an order under section 5165.88 of the Revised Code terminating the facility's participation in the medicaid program if either of the following applies:

(a) The facility does not substantially correct the deficiency or deficiencies in accordance with the plan of correction it submitted under section 5165.69 of the Revised Code within six months after the exit interview.

(b) The facility substantially corrects the deficiency or deficiencies within the six-month period, but after correcting it, the department of health, based on a follow-up survey conducted during the remainder of the six-month period, determines that the facility has failed to maintain compliance with certification requirements.

Renumbered from § 5111.42 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000

5165.69 [Renumbered from 5111.43] Plan of correction.

(A) Whenever a nursing facility receives a statement of deficiencies under section 5165.68 of the Revised Code, the facility shall submit to the department of health for its approval a plan of correction for each finding cited in the statement. The plan shall include all of the following:

(1) Detailed descriptions of the actions the facility will take to correct each finding , including actions the facility will take to protect residents situated similarly to the residents affected by the causes of the findings;

(2) The date by which each finding will be corrected ;

(3) A detailed description of an ongoing monitoring and improvement process to be used at the facility that is focused on preventing any recurrence of the causes of the findings;

(4) If the plan concerns a finding assigned a severity level indicating that a resident was harmed or immediate jeopardy exists, all of the following:

(a) Detailed analyses of the facts and circumstances of the finding, including identification of its cause;

(b) A detailed explanation of how the corrective actions described pursuant to division (A)(1) of this section relate to the cause of the finding identified pursuant to division (A)(4)(a) of this section;

(c) A detailed explanation of the relationship between the ongoing monitoring and improvement process described pursuant to division (A)(3) of this section and the cause of the finding identified pursuant to division (A)(4)(a) of this section.

(5) If the plan concerns a finding cited pursuant to division (E) of section 5165.66 of the Revised Code, a description of the actions the facility took to correct the finding and the date on which it was corrected.

(B)

(1) The department shall approve any plan, and any modification of an existing plan a nursing facility submits to the department, that does both of the following:

(a) Conforms to the requirements for approval of plans of corrections, and modifications, established in the regulations, guidelines, and procedures issued by the United States secretary of health and human services under Title XVIII and Title XIX ;

(b) Includes all the information required by division (A) of this section.

(2) The department may consult with the department of medicaid, department of aging, and office of the state long-term care ombudsman program when determining whether a plan, or modification of an existing plan, to which division (A)(4) of this section applies conforms to the requirements for approval. The department of health has sole authority to make the determination regardless of whether it consults with the other departments or office. The department shall not reject a facility's plan of correction or modification on the ground that the facility disputes the finding, if the plan or modification is reasonably calculated to correct the finding.

(C) A facility that complies with this section shall not be considered to have admitted the existence of a finding cited by the department.

Renumbered from § 5111.43 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 12-13-1990

5165.70 [Renumbered from 5111.44] On-site monitoring.

The department of health may appoint employees of the department to conduct on-site monitoring of a nursing facility whenever a finding is cited, including any finding cited pursuant to division (E) of section 5165.66 of the Revised Code, or an emergency is found to exist. Appointment of monitors under this section is not subject to appeal under section 5165.87 or any other section of the Revised Code. No employee of a facility for which monitors are appointed, no person employed by the facility within the previous two years, and no person who currently has a consulting or other contract with the department or the facility, shall be appointed as a monitor under this section. Every monitor appointed under this section shall have the professional qualifications necessary to monitor correction of the finding or elimination of the emergency.

Renumbered from § 5111.44 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 12-13-1990

5165.71 [Renumbered from 5111.45] Deficiencies not substantially corrected.

(A) If the department of health cites a deficiency or deficiencies that was not substantially corrected before a survey and that does not constitute a severity level four finding or create immediate jeopardy, the department of medicaid or a contracting agency shall permit the nursing facility to continue participating in the medicaid program for up to six months after the exit interview, if all of the following apply:

(1) The facility meets the requirements, established in regulations issued by the United States secretary of health and human services under Title XIX for certification of nursing facilities that have a deficiency.

(2) The department of health has approved a plan of correction submitted by the facility under section 5165.69 of the Revised Code for each deficiency.

(3) The provider agrees to repay the department of medicaid, in accordance with section 5165.85 of the Revised Code, the federal share of all payments made by the department to the facility during the six-month period following the exit interview if the facility does not within the six-month period substantially correct the deficiency or deficiencies in accordance with the plan of correction submitted under section 5165.69 of the Revised Code.

(B) If any of the conditions in divisions (A)(1) to (3) of this section do not apply, the department of medicaid or contracting agency shall issue an order terminating the facility's participation in the medicaid program. An order issued under this division is subject to appeal under Chapter 119. of the Revised Code. The order shall not take effect prior to the later of the thirtieth day after it is delivered to the facility or, if the order is appealed, the date on which a final adjudication order upholding the termination becomes effective pursuant to Chapter 119. of the Revised Code.

(C) At the time the department of medicaid or contracting agency issues an order under division (B) of this section terminating a nursing facility's participation in the medicaid program, it may also impose, subject to section 5165.76 of the Revised Code, other remedies under sections 5165.72 to 5165.74 of the Revised Code.

Renumbered from § 5111.45 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000

5165.72 [Renumbered from 5111.46] Uncorrected deficiencies constituting severity level four findings.

(A) If the department of health cites a deficiency, or cluster of deficiencies, that was not substantially corrected before a survey and constitutes a severity level four finding, the department of medicaid or contracting agency shall, subject to sections 5165.79 to 5165.83 of the Revised Code, impose a remedy for the deficiency or cluster of deficiencies. The department or agency may act under either division (A)(1) or (2) of this section:

(1) The department or agency may impose one or more of the following remedies:

(a) Issue an order terminating the nursing facility's participation in the medicaid program.

(b) Do either of the following:

(i) Regardless of whether the provider consents, appoint a temporary manager of the facility.

(ii) Apply to the common pleas court of the county in which the facility is located for such injunctive or other equitable relief as is necessary for the appointment of a special master with such powers and authority over the facility and length of appointment as the court considers necessary.

(c) Do either of the following:

(i) Issue an order denying medicaid payments to the facility for all medicaid eligible residents admitted after the effective date of the order;

(ii) Impose a fine.

(d) Issue an order denying medicaid payments to the facility for medicaid eligible residents admitted after the effective date of the order who have certain diagnoses or special care needs specified by the department or agency.

(2) The department or agency may impose one or more of the following remedies:

(a) Appoint, subject to the continuing consent of the provider, a temporary manager of the facility;

(b) Do either of the following:

(i) Regardless of whether the provider consents, appoint a temporary manager of the facility;

(ii) Apply to the common pleas court of the county in which the facility is located for such injunctive or other equitable relief as is necessary for the appointment of a special master with such powers and authority over the facility and length of appointment as the court considers necessary.

(c) Do either of the following:

(i) Issue an order denying medicaid payments to the facility for all medicaid eligible residents admitted after the effective date of the order;

(ii) Impose a fine.

(d) Issue an order denying medicaid payments to the facility for medicaid eligible residents admitted after the effective date of the order who have certain diagnoses or special care needs specified by the department or agency;

(e) Issue an order requiring the facility to correct the deficiency or cluster of deficiencies under the plan of correction submitted by the facility and approved by the department of health under section 5165.69 of the Revised Code.

(B) The department of medicaid or contracting agency shall deliver a written order issued under division (A)(1) of this section terminating a nursing facility's participation in the medicaid program to the facility within five days after the exit interview. If the facility alleges, at any time prior to the later of the twentieth day after the exit interview or the fifteenth day after it receives the order, that the deficiency or cluster of deficiencies for which the order was issued has been substantially corrected, the department of health shall conduct a follow-up survey to determine whether the deficiency or cluster of deficiencies has been substantially corrected. The order shall take effect and the facility's participation shall terminate on the twentieth day after the exit interview, unless the facility has substantially corrected the deficiency or cluster of deficiencies that constituted a severity level four finding or did not receive notice from the department of medicaid or contracting agency within five days after the exit interview. In the latter case, the order shall take effect and the facility's participation shall terminate on the fifteenth day after the facility received the order.

(C) If the department of health cites a deficiency or cluster of deficiencies pursuant to division (E) of section 5165.66 of the Revised Code that constituted a severity level four finding, the department of medicaid or a contracting agency shall, subject to section 5165.83 of the Revised Code, impose a fine. The fine shall be in effect for a period equal to the number of days the deficiency or cluster of deficiencies existed at the facility.

Renumbered from § 5111.46 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000

5165.73 [Renumbered from 5111.47] Uncorrected deficiencies constituting severity level three and scope level three or four findings.

If the department of health cites a deficiency, or cluster of deficiencies, that was not substantially corrected before a survey and constitutes a severity level three and scope level three or four finding, the department of medicaid or a contracting agency may, subject to sections 5165.82 and 5165.83 of the Revised Code, impose one or more of the following remedies:

(A) Do either of the following:

(1) Issue an order denying medicaid payments to the facility for all medicaid eligible residents admitted after the effective date of the order;

(2) Impose a fine.

(B) Issue an order denying medicaid payments to the facility for medicaid eligible residents admitted after the effective date of the order who have certain diagnoses or special care needs specified by the department or agency;

(C) Issue an order requiring the facility to correct the deficiency or cluster of deficiencies under the plan of correction submitted by the facility and approved by the department of health under section 5165.69 of the Revised Code.

Renumbered from § 5111.47 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000

5165.74 [Renumbered from 5111.48] Uncorrected deficiencies constituting severity level one or two or severity level three, scope level two finding.

(A) If the department of health cites a deficiency, or cluster of deficiencies, that was not substantially corrected before a survey and constitutes a severity level three and scope level two finding, the department of medicaid or a contracting agency may, subject to sections 5165.82 and 5165.83 of the Revised Code, impose one or more of the following remedies:

(1) Do either of the following:

(a) Issue an order denying medicaid payments to the facility for all medicaid eligible residents admitted after the effective date of the order;

(b) Impose a fine.

(2) Issue an order denying medicaid payments to the facility for medicaid eligible residents admitted after the effective date of the order who have certain diagnoses or special care needs specified by the department or agency;

(3) Issue an order requiring the facility to correct the deficiency or cluster of deficiencies under the plan of correction proposed by the facility and approved by the department of health under section 5165.69 of the Revised Code.

(B) If the department of health cites a deficiency, or cluster of deficiencies, that was not substantially corrected before a survey and constitutes a severity level three and scope level one finding, the department of medicaid or a contracting agency may, subject to sections 5165.82 and 5165.83 of the Revised Code, impose one or more of the following remedies:

(1) Impose a fine;

(2) Issue an order denying medicaid payments to the facility for medicaid eligible residents admitted after the effective date of the order who have certain diagnoses or special care needs specified by the department or agency;

(3) Issue an order requiring the facility to correct the deficiency or cluster of deficiencies under the plan of correction proposed by the facility and approved by the department of health under section 5165.69 of the Revised Code.

(C) If the department of health cites a deficiency, or cluster of deficiencies, that was not substantially corrected before a survey and constitutes a severity level two and a scope level three or four finding, the department of medicaid or a contracting agency may, subject to sections 5165.82 and 5165.83 of the Revised Code, impose one or more of the following remedies:

(1) Impose a fine;

(2) Issue an order denying medicaid payments to the facility for medicaid eligible residents admitted after the effective date of the order who have certain diagnoses or special care needs specified by the department or agency;

(3) Issue an order requiring the facility to correct the deficiency or cluster of deficiencies under the plan of correction submitted by the facility and approved by the department of health under section 5165.69 of the Revised Code.

(D) If the department of health cites a deficiency, or cluster of deficiencies, that was not substantially corrected before a survey, constitutes a severity level two and scope level one or two finding, and is a repeat finding, the department of medicaid or a contracting agency may issue an order requiring the facility to correct the deficiency or cluster of deficiencies under the plan of correction submitted by the facility and approved by the department of health under section 5165.69 of the Revised Code.

(E) If the department of health cites a deficiency, or cluster of deficiencies, that was not substantially corrected before a survey and constitutes a severity level one and scope level three or four finding, the department of medicaid or a contracting agency may issue an order requiring the facility to correct the deficiency or cluster of deficiencies under the plan of correction submitted by the facility and approved by the department of health under section 5165.69 of the Revised Code.

(F) If the department of health cites a deficiency, or cluster of deficiencies, that was not substantially corrected before a survey, constitutes a severity level one and scope level two finding, and is a repeat finding, the department of medicaid or a contracting agency may issue an order requiring the facility to correct the deficiency or cluster of deficiencies under the plan of correction submitted by the facility and approved by the department of health under section 5165.69 of the Revised Code.

Renumbered from § 5111.48 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000

5165.75 [Renumbered from 5111.49] Imposing remedies and fines.

(A) In determining which remedies to impose under section 5165.72, 5165.73, or 5165.74 of the Revised Code, including whether a fine should be imposed, the department of medicaid or a contracting agency shall do both of the following:

(1) Impose the remedies that are most likely to achieve correction of deficiencies, encourage sustained compliance with certification requirements, and protect the health, safety, and rights of facility residents, but that are not directed at punishment of the facility;

(2) Consider all of the following:

(a) The presence or absence of immediate jeopardy;

(b) The relationships of groups of deficiencies to each other;

(c) The facility's history of compliance with certification requirements generally and in the specific area of the deficiency or deficiencies;

(d) Whether the deficiency or deficiencies are directly related to resident care;

(e) The corrective, long-term compliance, resident protective, and nonpunitive outcomes sought by the department or agency;

(f) The nature, scope, and duration of the noncompliance with certification requirements;

(g) The existence of repeat deficiencies;

(h) The category of certification requirements with which the facility is out of compliance;

(i) Any period of noncompliance with certification requirements that occurred between two certifications by the department of health that the facility was in compliance with certification requirements;

(j) The facility's degree of culpability;

(k) The accuracy, extent, and availability of facility records;

(l) The facility's financial condition, exclusive of any moneys donated to a facility that is an organization described in subsection 501(c)(3) and is tax exempt under subsection 501(a) of the "Internal Revenue Code of 1986," 100 Stat. 2085, 26 U.S.C.A. 1;

(m) Any adverse effect that the action or fine would have on the health and safety of facility residents;

(n) If the noncompliance that resulted in the citation of a deficiency or cluster of deficiencies existed before a change in ownership of the facility, whether the new owner or owners have had sufficient time to correct the noncompliance.

(B) Whenever the department or agency imposes remedies under section 5165.72, 5165.73, or 5165.74 of the Revised Code, it shall provide a written statement to the nursing facility that specifies all of the following:

(1) The effective date of each remedy;

(2) The deficiency or cluster of deficiencies for which each remedy is imposed;

(3) The severity and scope of the deficiency or cluster of deficiencies;

(4) The rationale, including all applicable factors specified in division (A) of this section, for imposing the remedies.

Renumbered from § 5111.49 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000

5165.76 [Renumbered from 5111.50] Fine collected if termination order does not take effect.

At the time the department of medicaid or a contracting agency, under section 5165.71, 5165.72, or 5165.77 of the Revised Code, issues an order terminating a nursing facility's participation in the medicaid program, the department or agency may also impose a fine, in accordance with sections 5165.72 to 5165.74 and 5165.83 of the Revised Code, to be collected in the event the termination order does not take effect. The department or agency shall not collect this fine if the termination order takes effect.

Renumbered from § 5111.50 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000

5165.77 [Renumbered from 5111.51] Emergency remedies.

(A) If the department of health finds during a survey that an emergency exists at a nursing facility, as the result of a deficiency or cluster of deficiencies that creates immediate jeopardy, the department of medicaid or a contracting agency shall impose one or more of the remedies described in division (A)(1) of this section and, in addition, may take one or both of the actions described in division (A)(2) of this section.

(1) The department or agency shall impose one or more of the following remedies:

(a) Appoint, subject to the continuing consent of the provider, a temporary manager of the facility;

(b) Apply to the common pleas court of the county in which the facility is located for a temporary restraining order, preliminary injunction, or such other injunctive or equitable relief as is necessary to close the facility, transfer one or more residents to other nursing facilities or other appropriate care settings, or otherwise eliminate the condition of immediate jeopardy. If the court grants such an order, injunction, or relief, it may appoint a special master empowered to implement the court's judgment under the court's direct supervision.

(c) Issue an order terminating the facility's participation in the medicaid program;

(d) Regardless of whether the provider consents, appoint a temporary manager of the facility.

(2) The department or agency may do one or both of the following:

(a) Issue an order denying medicaid payments to the facility for all medicaid eligible residents admitted after the effective date of the order;

(b) Impose remedies under sections 5165.72 to 5165.74 of the Revised Code appropriate to the severity and scope of the deficiency or cluster of deficiencies, except that the department or agency shall not impose a fine for the same deficiency for which the department or agency has issued an order under division (A)(2)(a) of this section.

(B) If the department of health, department of medicaid, or a contracting agency finds on the basis of a survey or other visit to the facility by representatives of that department or agency that an emergency exists at a facility that is not the result of a deficiency or cluster of deficiencies that constitutes immediate jeopardy, the department of medicaid or contracting agency may do either of the following:

(1) Appoint, subject to the continuing consent of the provider, a temporary manager of the facility;

(2) Apply to the common pleas court of the county in which the facility is located for a temporary restraining order, preliminary injunction, or such other injunctive or equitable relief as is necessary to close the facility, transfer one or more residents to other nursing facilities or other appropriate care settings, or otherwise eliminate the emergency. If the court grants such an order, injunction, or relief, it may appoint a special master empowered to implement the court's judgment under the court's direct supervision.

(C)

(1) Prior to acting under division (A)(1)(b), (c), (d), or (2), or (B)(2) of this section, the department of medicaid or contracting agency shall give written notice to the facility specifying all of the following:

(a) The nature of the emergency, including the nature of any deficiency or deficiencies that caused the emergency;

(b) The nature of the action the department or agency intends to take unless the department of health determines that the facility, in the absence of state intervention, possesses the capacity to eliminate the emergency;

(c) The rationale for taking the action.

(2) If the department of health determines that the facility does not possess the capacity to eliminate the emergency in the absence of state intervention, the department of medicaid or contracting agency may immediately take action under division (A) or (B) of this section. If the department of health determines that the facility possesses the capacity to eliminate the emergency, the department of medicaid or contracting agency shall direct the facility to eliminate the emergency within five days after the facility's receipt of the notice. At the end of the five-day period, the department of health shall conduct a follow-up survey that focuses on the emergency. If the department of health determines that the facility has eliminated the emergency within the time period, the department of medicaid or contracting agency shall not act under division (A)(1)(b), (c), (d), or (2)(a), or (B)(2) of this section. If the department of health determines that the facility has failed to eliminate the emergency within the five-day period, the department of medicaid or contracting agency shall take appropriate action under division (A)(1)(b), (c), (d), or (2), or (B)(2) of this section.

(3) Until the written notice required by division (C)(1) of this section is actually delivered, no action taken by the department of medicaid or contracting agency under division (A)(1)(b), (c), (d), or (2), or (B)(2) of this section shall have any legal effect. In addition to the written notice, the department of health survey team shall give oral notice to the facility, at the time of the survey, concerning any recommendations the survey team intends to make that could form the basis of a determination that an emergency exists.

(D) The department of medicaid or contracting agency shall deliver a written order issued under division (A)(1) of this section terminating a nursing facility's participation in the medicaid program to the facility within five days after the exit interview. If the facility alleges, at any time prior to the later of the twentieth day after the exit interview or the fifteenth day after it receives the order, that the condition of immediate jeopardy for which the order was issued has been eliminated, the department of health shall conduct a follow-up survey to determine whether the immediate jeopardy has been eliminated. The order shall take effect and the facility's participation shall terminate on the twentieth day after the exit interview, unless the facility has eliminated the immediate jeopardy or did not receive notice from the department of medicaid or contracting agency within five days after the exit interview. In the latter case, the order shall take effect and the facility's participation shall terminate on the fifteenth day after the facility received the order.

(E) Any action taken by the department of medicaid or a contracting agency under division (A)(1)(c), (d), or (2)(a) of this section is subject to appeal under Chapter 119. of the Revised Code, except that the department or agency may take such action prior to and during the pendency of any proceeding under that chapter. No action taken by a facility under division (C) of this section to eliminate an emergency cited by the department of health shall be considered an admission by the facility of the existence of an emergency.

Renumbered from § 5111.51 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000

5165.771 Special focus facility program.

(A) As used in this section:

"SFF list" means the list of nursing facilities that the United States department of health and human services creates under the special focus facility program.

"Special focus facility program" means the program conducted by the United States secretary of health and human services pursuant to the "Social Security Act," section 1919(f)(10), 42 U.S.C. 1396r(f)(10).

"Table A" means the table included in the SFF list that identifies nursing facilities that are newly added to the SFF list.

"Table B" means the table included in the SFF list that identifies nursing facilities that have not improved.

"Table C" means the table included in the SFF list that identifies nursing facilities that have shown improvement.

"Table D" means the table included in the SFF list that identifies nursing facilities that have recently graduated from the special focus facility program.

(B) The department of medicaid shall issue an order terminating a nursing facility's participation in the medicaid program if any of the following apply:

(1) The nursing facility is listed in table A or table B on the effective date of this section and fails to be placed in table C not later than twelve months after the effective date of this section.

(2) The nursing facility is listed in table A, table B, or table C on the effective date of this section and fails to be placed in table D not later than twenty-four months after the effective date of this section.

(3) The nursing facility is placed in table A after the effective date of this section and fails to be placed in table C not later than twelve months after the nursing facility is placed in table A.

(4) The nursing facility is placed in table A after the effective date of this section and fails to be placed in table D not later than twenty-four months after the nursing facility is placed in table A.

(C) An order issued under this section is not subject to appeal under Chapter 119. of the Revised Code.

(D) To help a nursing facility avoid having its participation in the medicaid program terminated pursuant to division (B) of this section, the department of aging shall provide the nursing facility technical assistance through the nursing home quality initiative established under section 173.60 of the Revised Code at least four months before the department of medicaid would be required to terminate the nursing facility's participation.

Added by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

5165.78 [Renumbered from 5111.511] Appointment of temporary resident safety assurance manager.

(A) If the department of medicaid determines that a nursing facility is experiencing or is likely to experience a serious financial loss or failure that jeopardizes or is likely to jeopardize the health, safety, and welfare of its residents, the department, subject to the provider's consent, may appoint a temporary resident safety assurance manager in the nursing facility to take actions the department determines are appropriate to ensure the health, safety, and welfare of the residents.

(B) A temporary resident safety assurance manager appointed under this section is vested with the authority necessary to take actions the department of medicaid determines are appropriate to ensure the health, safety, and welfare of the residents.

(C) A temporary resident safety assurance manager appointed under this section may use any of the following funds to pay for costs the manager incurs on behalf of the nursing facility:

(1) Medicaid payments made in accordance with the provider agreement for the nursing facility;

(2) Funds from the residents protection fund that the department provides the manager under section 5162.66 of the Revised Code;

(3) Other funds the department determines are appropriate if such use of the funds is consistent with the appropriations that authorize the use of the funds and all other state and federal laws governing the use of the funds.

(D) The provider is liable to the department for the amount of any payments the department makes to the temporary resident safety assurance manager, other than payments specified in division (C)(1) of this section. The department may recover the amount the provider owes the department by doing any of the following:

(1) Offsetting medicaid payments made to the provider in accordance with the provider agreement;

(2) Placing a lien on any of the provider's real and personal property;

(3) Initiating other collection actions.

(E) No action the department takes under this section is subject to appeal under Chapter 119. of the Revised Code.

(F) In rules authorized by section 5165.61 of the Revised Code, the medicaid director may establish all of the following:

(1) Qualifications persons must meet to be appointed temporary resident safety assurance managers under this section;

(2) Procedures for maintaining a list of qualified temporary resident safety assurance managers;

(3) Procedures consistent with federal law for paying for the services of temporary resident safety assurance managers;

(4) Accounting and reporting requirements for temporary resident safety assurance managers;

(5) Other procedures and requirements the director determines are necessary to implement this section.

Renumbered from § 5111.511 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Added by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

5165.79 [Renumbered from 5111.52] Terminating provider agreements.

(A) As used in this section, "terminating" includes not renewing.

(B) A nursing facility's participation in the medicaid program shall be terminated under sections 5165.60 to 5165.89 of the Revised Code as follows:

(1) If the department of medicaid is terminating the facility's participation, it shall issue an order terminating the facility's provider agreement.

(2) If the department of health, acting as a contracting agency, is terminating the facility's participation, it shall issue an order terminating certification of the facility's compliance with certification requirements. When the department of health terminates certification, the department of medicaid shall terminate the facility's provider agreement. The department of medicaid is not required to provide an adjudication hearing when it terminates a provider agreement following termination of certification by the department of health.

(3) If a state agency other than the department of health, acting as a contracting agency, is terminating the facility's participation, it shall notify the department of medicaid, and the department of medicaid shall issue an order terminating the facility's provider agreement. The contracting agency shall conduct any administrative proceedings concerning the order.

(C) If the following conditions are met, the department of medicaid may make medicaid payments to a nursing facility for a period not exceeding thirty days after the effective date of termination under sections 5165.60 to 5165.89 of the Revised Code of the facility's participation in the medicaid program:

(1) The payments are for medicaid eligible residents admitted to the facility prior to the effective date of the termination;

(2) The provider is making reasonable efforts to transfer medicaid eligible residents to other care settings.

The period during which payments may be made under this division begins on the later of the effective date of the termination or, if the facility has appealed a termination order, the date of issuance of the adjudication order upholding termination.

Renumbered from § 5111.52 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 07-01-2000

5165.80 [Renumbered from 5111.53] Transfer of residents to other appropriate care settings.

(A) Whenever a nursing facility is closed under sections 5165.60 to 5165.89 of the Revised Code, the department of medicaid or contracting agency shall arrange for the safe and orderly transfer of all residents, including residents who are not medicaid eligible residents, to other appropriate care settings. Whenever a nursing facility's participation in the medicaid program is terminated under sections 5165.60 to 5165.89 of the Revised Code, the department or agency shall arrange for the safe and orderly transfer of all medicaid eligible residents or, if the termination results in the closure of the facility, of all residents. The provider and all persons involved in the facility's operation shall cooperate with and assist in the transfer of residents.

(B) After a nursing facility's participation in the medicaid program is terminated under section 5165.71, 5165.72, 5165.77, 5165.771, or 5165.85 of the Revised Code, the department of medicaid or contracting agency may appoint a temporary manager subject to the continuing consent of the provider, or may apply to the common pleas court of the county in which the facility is located for such injunctive relief as is necessary for the appointment of a special master, to ensure the transfer of medicaid eligible residents to other appropriate care settings and, if applicable, the orderly closure of the facility.

Renumbered from § 5111.53 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000

5165.81 [Renumbered from 5111.54] Qualifications of temporary manager of nursing facility.

(A) A temporary manager of a nursing facility appointed by the department of medicaid or a contracting agency under sections 5165.60 to 5165.89 of the Revised Code shall meet all of the following qualifications:

(1) Be licensed as a nursing home administrator under Chapter 4751. of the Revised Code;

(2) Have demonstrated competence as a nursing home administrator;

(3) Have had no disciplinary action taken against the temporary manager by any licensing board or professional society in this state.

(B) The salary of a temporary manager or special master appointed under sections 5165.60 to 5165.89 of the Revised Code shall be paid by the facility and set by the department of medicaid or contracting agency, in the case of a temporary manager, or by the court, in the case of a special master, at a rate not to exceed the maximum allowable compensation for an administrator under the medicaid program. The extent to which this compensation is allowable under the medicaid program is subject to and limited by this chapter and rules adopted under section 5165.02 of the Revised Code.

Subject to division (C) of this section, any costs incurred on behalf of a nursing facility by a temporary manager or special master appointed under sections 5165.60 to 5165.89 of the Revised Code shall be paid by the facility. The allowability of these costs under the medicaid program shall be subject to and governed by this chapter and rules adopted under section 5165.02 of the Revised Code. This division does not prohibit a facility from applying for or receiving any waiver of cost ceilings available under the rules .

(C) No temporary manager or special master appointed under sections 5165.60 to 5165.89 of the Revised Code shall enter into any employment contract on behalf of a facility, or purchase any capital goods using facility funds totaling more than ten thousand dollars, unless the temporary manager or special master has obtained prior approval for the contract or purchase from either the provider or the court.

(D)

(1) A temporary manager appointed for a nursing facility under section 5165.72 of the Revised Code is hereby vested, subject to division (C) of this section, with the legal authority necessary to correct any deficiency or cluster of deficiencies at a facility, bring the facility into compliance with certification requirements, and otherwise ensure the health and safety of the residents.

(2) A temporary manager appointed under section 5165.77 of the Revised Code is hereby vested, subject to division (C) of this section, with the authority necessary to eliminate the emergency, bring the facility into compliance with certification requirements, and otherwise ensure the health and safety of the residents.

(3) A temporary manager appointed under section 5165.80 of the Revised Code is hereby vested, subject to division (C) of this section, with the authority necessary to ensure the transfer of medicaid eligible residents to other appropriate care settings and, if applicable, the orderly closure of the facility, and to otherwise ensure the health and safety of the residents.

(E) Prior to acting under division (A)(1)(b) or (2)(b) of section 5165.72 of the Revised Code to appoint a temporary manager or apply for a special master, the department of medicaid or contracting agency shall order the facility to substantially correct the deficiency or deficiencies within five days after receiving the statement and inform the facility, in the statement it provides pursuant to division (B) of section 5165.75 of the Revised Code, of the order and that it will not take that action unless the facility fails to substantially correct the deficiency or deficiencies within that five-day period. At the end of the five-day period, the department of health shall conduct a follow-up survey that focuses on the deficiency or deficiencies. If the department of health determines that the facility has substantially corrected the deficiency or deficiencies within that time, the department of medicaid or contracting agency shall not appoint a temporary manager or apply for a special master. If the department of health determines that the facility has failed to substantially correct the deficiency or deficiencies within that time, the department of medicaid or contracting agency may proceed with appointment of the temporary manager or application for a special master. Until the statement required under division (B) of section 5165.75 of the Revised Code is actually delivered, no action taken by the department or agency to appoint a temporary manager or apply for a temporary manager under division (A)(1)(b) or (2)(b) of section 5165.72 of the Revised Code shall have any legal effect. No action taken by a facility under this division to substantially correct a deficiency or deficiencies shall be considered an admission by the facility of the existence of a deficiency or deficiencies.

(F) Appointment of a temporary manager under division (A)(1)(b) or (2)(b) of section 5165.72 or division (A)(1)(d) of section 5165.77 of the Revised Code shall expire at the end of the seventh day following the appointment. If the department of medicaid or contracting agency finds that the deficiency or deficiencies that prompted the appointment under division (A)(1)(b) or (2)(b) of section 5165.72 of the Revised Code cannot be substantially corrected, or the condition of immediate jeopardy that prompted the appointment under division (A)(1)(d) of section 5165.77 of the Revised Code cannot be eliminated, prior to the expiration of the appointment, it may take one of the following actions:

(1) Appoint, subject to the continuing consent of the provider, a temporary manager for the facility;

(2) Apply to the common pleas court of the county in which the facility is located for an order appointing a special master who, under the authority and direct supervision of the court and subject to divisions (B) and (C) of this section, may take such additional actions as are necessary to correct the deficiency or deficiencies or eliminate the condition of immediate jeopardy and bring the facility into compliance with certification requirements.

(G) The court, on finding that the deficiency or deficiencies for which a special master was appointed under division (F)(2) of this section or division (A)(1)(b) or (2)(b) of section 5165.72 of the Revised Code has been substantially corrected, or the emergency for which a special master was appointed under division (F)(2) of this section or division (A)(1)(b) or (B)(2) of section 5165.77 of the Revised Code has been eliminated, that the facility has been brought into compliance with certification requirements, and that the provider has established the management capability to ensure continued compliance with the certification requirements, shall immediately terminate its jurisdiction over the facility and return control and management of the facility to the provider. If the deficiency or deficiencies cannot be substantially corrected, or the emergency cannot be eliminated practicably within a reasonable time following appointment of the special master, the court may order the special master to close the facility and transfer all residents to other nursing facilities or other appropriate care settings.

(H) This section does not apply to temporary resident safety assurance managers appointed under section 5165.78 of the Revised Code.

Renumbered from § 5111.54 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Amended by 129th General AssemblyFile No.28, HB 153, §101.01, eff. 9/29/2011.

Effective Date: 07-01-2000

5165.82 [Renumbered from 5111.55] Residents to whom denial of medicaid payments applies.

(A) An order issued under section 5165.72, 5165.73, 5165.74, 5165.77, or 5165.84 of the Revised Code denying medicaid payments to a nursing facility for all medicaid eligible residents admitted after its effective date, or an order issued under section 5165.72, 5165.73, or 5165.74 of the Revised Code denying medicaid payments to a nursing facility for medicaid eligible residents admitted after the effective date of the order who have specified diagnoses or special care needs, shall also apply to individuals admitted to the facility on and after the effective date of the order who are not medicaid eligible residents but become medicaid eligible residents after admission. Such an order shall not apply to any of the following:

(1) An individual who was a medicaid eligible resident of the facility on the day immediately preceding the effective date of the order and continues to be a medicaid eligible resident on and after that date;

(2) An individual who was a resident of the facility on the day immediately preceding the effective date of the order, continues to be a resident on and after that date, and becomes medicaid eligible on or after that date;

(3) An individual who was a medicaid eligible resident of the facility prior to the effective date of the order, is temporarily absent from the facility on that or a subsequent date due to hospitalization or participation in therapeutic programs outside the facility, and chooses to return to the facility;

(4) An individual who was a resident of the facility prior to the effective date of the order, is temporarily absent from the facility on that or a subsequent date due to hospitalization or participation in therapeutic programs outside the facility, becomes medicaid eligible on or after that date, and chooses to return to the facility.

(B) An order issued under section 5165.72 of the Revised Code denying medicaid payments to a nursing facility for all medicaid eligible residents admitted after its effective date, or denying medicaid payments to a facility for medicaid eligible residents admitted after the effective date of the order who have specified diagnoses or special care needs shall not take effect prior to the fifth day after the order is delivered to the facility. Such an order issued under section 5165.73 or 5165.74 of the Revised Code shall not take effect prior to the twentieth day after it is delivered to the facility.

(C) No nursing facility that has received an order under section 5165.72, 5165.73, 5165.74, 5165.77, or 5165.84 of the Revised Code denying medicaid payments for all new admissions of medicaid eligible residents shall admit a medicaid eligible resident on or after the effective date of the order, unless the resident is described in division (A)(3) or (4) of this section, until the order is terminated pursuant to this section. No nursing facility that has received an order under section 5165.72, 5165.73, or 5165.74 of the Revised Code denying medicaid payments to a nursing facility for new admissions of medicaid eligible residents with specified diagnoses or special care needs shall admit such a resident on or after the effective date of the order, unless the resident is described in division (A)(3) or (4) of this section, until the order is terminated pursuant to this section.

(D) In the case of an order imposed under division (B) of section 5165.84 of the Revised Code, the department or agency shall appoint monitors in accordance with section 5165.70 of the Revised Code to conduct on-site monitoring.

(E)

(1) A facility may give written notice to the department of health whenever any of the following apply:

(a) With respect to an order denying payment issued under section 5165.72, 5165.73, or 5165.74 of the Revised Code, either of the following is the case:

(i) The facility has completed implementation of the plan of correction it submitted under section 5165.69 of the Revised Code and substantially corrected all deficiencies for which the order was issued.

(ii) The facility has reduced the severity or scope of all of the deficiencies to a level at which sections 5165.72 to 5165.74 of the Revised Code do not authorize the order.

(b) With respect to an order denying payment issued under section 5165.77 of the Revised Code, the facility has eliminated the immediate jeopardy.

(c) With respect to an order denying medicaid payments issued under division (A) of section 5165.84 of the Revised Code, the facility has completed implementation of the plan of correction it submitted under section 5165.69 of the Revised Code and substantially corrected all deficiencies for which the order was issued.

(d) With respect to an order denying medicaid payments issued under division (B) of section 5165.84 of the Revised Code, both of the following are the case:

(i) The facility has completed implementation of the plan of correction it submitted under section 5165.69 of the Revised Code and substantially corrected all deficiencies for which the order was issued.

(ii) The facility is in compliance with certification requirements and has provided adequate assurance that it will remain in compliance with them.

(2) Within ten working days after it receives the notice under division (E)(1) of this section, the department of health shall conduct a follow-up survey that focuses on the cited deficiency or deficiencies, unless the department is able to determine, on the basis of documentation provided by the facility, that the facility has completed the applicable action described in divisions (E)(1)(a) to (d) of this section. If the department of health makes that determination on the basis of the documentation, the department of medicaid or contracting agency shall terminate the order denying medicaid payments as of the date the facility completed the applicable action, as subsequently verified by the department of health. If the department of health conducts a follow-up survey, the department of medicaid or contracting agency shall terminate the order denying medicaid payments as of the date the department of health makes the determination that the facility completed the applicable action.

(F) The department of medicaid or contracting agency shall provide public notice implementing an order under section 5165.72, 5165.73, 5165.74, 5165.77, or 5165.84 of the Revised Code denying medicaid payments to a nursing facility for all medicaid eligible residents by publishing in a newspaper of general circulation in the county in which the facility is located an announcement stating: "By order of the (Ohio Department of Medicaid or name of contracting agency), effective on and after (effective date of order), (name of facility) is no longer authorized to admit Medicaid eligible residents." Immediately following termination of any such order, the department or agency shall publish in a newspaper of general circulation in the county in which the facility is located an announcement stating: "By order of the (Ohio Department of Medicaid or name of contracting agency), effective on and after (effective date of termination), (name of facility) is hereby authorized to admit Medicaid eligible residents." Neither the department nor the contracting agency shall issue public notice of an order under section 5165.72, 5165.73, or 5165.74 of the Revised Code denying payment to a nursing facility for medicaid eligible residents with specified diagnoses or special care needs; public notice is not required for such an order to take effect.

(G) A facility that complies with division (E) of this section shall not be considered to have admitted to the existence of the deficiency that constitutes the basis of the department's or agency's order.

Renumbered from § 5111.55 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000

5165.83 [Renumbered from 5111.56] Fines.

(A) As used in this section, "certified beds" means beds certified under Title XVIII or Title XIX .

(B) If the department of medicaid or a contracting agency imposes a fine on a nursing facility under section 5165.72, 5165.73, or 5165.74 of the Revised Code, it may impose one or more of the following:

(1) One hundred sixty per cent of the amount calculated under division (C) of this section for any deficiency or cluster of deficiencies that constitutes a severity level four and scope level four finding;

(2) One hundred forty per cent of the amount calculated under division (C) of this section for any deficiency or cluster of deficiencies that constitutes a severity level four and scope level three finding;

(3) One hundred twenty per cent of the amount calculated under division (C) of this section for any deficiency or cluster of deficiencies that constitutes a severity level four and scope level two finding;

(4) The amount calculated under division (C) of this section for any deficiency or cluster of deficiencies that constitutes a severity level four and scope level one finding or any deficiency or cluster of deficiencies that constitutes a severity level three and scope level four finding;

(5) Ninety per cent of the amount calculated under division (C) of this section for any deficiency or cluster of deficiencies that constitutes a severity level three and scope level three finding;

(6) Eighty per cent of the amount calculated under division (C) of this section for any deficiency or cluster of deficiencies that constitutes a severity level three and scope level two finding;

(7) Seventy per cent of the amount calculated under division (C) of this section for any deficiency or cluster of deficiencies that constitutes a severity level three and scope level one finding;

(8) Fifty per cent of the amount calculated under division (C) of this section for any deficiency or cluster of deficiencies that constitutes a severity level two and scope level four finding;

(9) Forty per cent of the amount calculated under division (C) of this section for any deficiency or cluster of deficiencies that constitutes a severity level two and scope level three finding.

(C) The amount subject to division (B) of this section shall be the product of multiplying two dollars and fifty cents for each day the fine is in effect by the total number of licensed nursing home beds or certified beds, whichever is greater, in the facility as of the date the deficiency or cluster of deficiencies that is the reason for the fine was cited.

(D)

(1) The department of medicaid or contracting agency shall not impose on a facility, at any one time, more than four fines as a result of any one survey.

(2) The department of medicaid or contracting agency shall not impose more than one fine based on a deficiency or cluster of deficiencies. However, if the department of health, in a follow-up or other subsequent survey, finds a change in the scope or severity of the deficiency or cluster of deficiencies, the department of medicaid or contracting agency may increase or decrease the fine in accordance with division (B) of this section to reflect the change in scope or severity. The department or agency shall give the facility written notice of the change in the amount of the fine. The change shall take effect on the date the follow-up or other subsequent survey is completed.

If the department of health finds that a deficiency is a repeat deficiency, the department of medicaid or contracting agency may impose a fine that is one hundred per cent greater than the fine specified in division (B) of this section for the deficiency.

(E) The total amount of fines the department of medicaid or contracting agency may impose on a facility in a single calendar year shall not exceed five hundred dollars for each licensed nursing home bed or certified bed, whichever is greater in number, in the facility.

(F)

(1) Except as provided in division (F)(2) of this section, the department of medicaid or contracting agency shall not impose a fine under section 5165.72, 5165.73, or 5165.74 of the Revised Code if the deficiency or cluster of deficiencies is substantially corrected within twenty days after the nursing facility receives the statement provided under division (B) of section 5165.75 of the Revised Code. The department or agency shall inform the nursing facility in that statement that the fine will not be imposed if the deficiency or cluster of deficiencies is substantially corrected within the twenty-day period.

(2) If a nursing facility has substantially corrected a deficiency or cluster of deficiencies within six months after the exit interview of a survey that was the basis for citing a deficiency or cluster of deficiencies, but after correcting it has been cited for the same deficiency or cluster of deficiencies by the department of health on the basis of a subsequent survey conducted during the remainder of the six-month period, the department of medicaid or contracting agency may impose a fine beginning on the date of the exit interview of the subsequent survey.

(G) Whenever a facility believes that it has completed implementation of the plan of correction it submitted under section 5165.69 of the Revised Code and substantially corrected the cited deficiency or cluster of deficiencies that is the basis for a fine, it may give written notice to that effect to the department of health. After receiving the notice, the department shall conduct a follow-up survey of the facility that focuses on the deficiency or cluster, unless the department is able to determine, on the basis of documentation provided by the facility, that the facility has substantially corrected the deficiency or cluster. If, based on the follow-up survey, the department establishes that the facility had not completed implementation of the plan of correction at the time the department received the notice, any fine based on the deficiency or cluster shall be doubled effective from the date the department received the notice. A facility that complies with this division shall not be considered to have admitted the existence of the deficiency or cluster that is the basis for the fine.

(H) Except for a fine imposed under division (C) of section 5165.72 of the Revised Code and as provided in division (F)(2) of this section, the department of medicaid or contracting agency shall impose a fine only if the facility fails to give notice under division (G) of this section within twenty days after it receives the statement required by division (B) of section 5165.75 of the Revised Code or if the department of health determines, based on a follow-up survey, that the deficiency or cluster of deficiencies for which the fine is proposed has not been substantially corrected within the twenty-day period. The fine shall be imposed effective on the twenty-first day after the facility receives the statement under division (B) of section 5165.75 of the Revised Code. The fine shall remain in effect until the earliest of the following:

(1) The date the department of health receives notice under division (G) of this section, unless the department determines, on the basis of a follow-up survey, that the deficiency or cluster of deficiencies that is the basis for the fine has not been substantially corrected as of that date;

(2) The date on which the department of health makes a determination, on the basis of a follow-up survey, that the deficiency or cluster of deficiencies has been substantially corrected;

(3) The date the facility substantially corrected the deficiency or cluster, as subsequently determined by the department of health on the basis of documentation provided by the facility.

(I) Any fine imposed by the department of medicaid or contracting agency under this section is subject to appeal under Chapter 119. of the Revised Code. If the facility does not request a hearing under Chapter 119. of the Revised Code and either pays or agrees in writing to pay the fine when payment becomes due under division (J) of this section, the department or agency shall reduce the fine by fifty per cent. The department or agency may compromise any claim for payment of a fine under sections 5165.60 to 5165.89 of the Revised Code.

(J) The department of medicaid or contracting agency shall collect interest on fines, at the rate per calendar month that equals one-twelfth of the rate per year prescribed by section 5703.47 of the Revised Code for the calendar year that includes the month for which the interest charge accrues. Payment of a fine is due, and interest begins to accrue on the unpaid fine or balance, on the thirty-first day after the department or agency issues a final adjudication order imposing the fine. If the deficiency or deficiencies on which the fine is based have not been corrected when the final adjudication order is issued, the payment is due, and interest begins to accrue on the unpaid fine or balance, on the thirty-first day after the deficiency or deficiencies are corrected and the department or agency mails a notice specifying the amount of the fine to the facility.

(K) The department of medicaid or contracting agency shall collect fines and interest imposed under this section through one of the following means:

(1) A lump sum payment from the provider;

(2) Periodic payments for a period not to exceed twelve months, in accordance with a schedule approved by the department or agency;

(3) Appropriately reducing the amounts of medicaid payments made to the facility for nursing facility services provided to medicaid eligible residents for a period not to exceed twelve months following the date on which payment of the fine becomes due under division (J) of this section. An amount equal to the amount by which each payment is reduced shall be deposited to the credit of the residents protection fund in accordance with section 5162.66 of the Revised Code.

Renumbered from § 5111.56 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000

5165.84 [Renumbered from 5111.57] Order denying payment when deficiency is not corrected within time limits.

(A) The department of medicaid or a contracting agency shall issue an order denying medicaid payments to a nursing facility for all medicaid eligible residents admitted to the facility on or after the effective date of the order, if the facility has failed to substantially correct within ninety days after the exit interview a deficiency or cluster of deficiencies in accordance with the plan of correction it submitted under section 5165.69 of the Revised Code, as determined by the department of health on the basis of a follow-up survey.

(B) The department of medicaid or contracting agency shall issue an order denying medicaid payments to a nursing facility for all medicaid eligible residents admitted to the facility on or after the effective date of the order, if during three consecutive standard surveys conducted after December 13, 1990, the department of health has found a condition of substandard care in a facility.

(C) An order issued under division (A) or (B) of this section shall take effect on the later of the date the facility receives the order or the date the public notice required under division (F) of section 5165.82 of the Revised Code is published. The order is subject to appeal under Chapter 119. of the Revised Code; however the order may take effect prior to or during the pendency of any hearing under that chapter. In that case, the department or agency shall provide the facility an opportunity for a hearing in accordance with section 5165.87 of the Revised Code.

Renumbered from § 5111.57 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000

5165.85 [Renumbered from 5111.58] Termination of participation for failure to correct deficiency within six months.

(A) If a nursing facility notifies the department of medicaid or a contracting agency, at any time during the six-month period following the exit interview of a survey that was the basis for citing a deficiency or deficiencies, that the deficiency or deficiencies have been substantially corrected in accordance with the plan of correction submitted and approved under section 5165.69 of the Revised Code, the department of health shall conduct a follow-up survey to determine whether the deficiency or deficiencies have been substantially corrected in accordance with the plan.

(B) The department of medicaid or a contracting agency shall terminate a nursing facility's participation in the medicaid program whenever the facility has not substantially corrected, within six months after the exit interview of the survey on the basis of which it was cited, a deficiency or deficiencies in accordance with the plan of correction submitted under section 5165.69 of the Revised Code, as determined by the department of health on the basis of a follow-up survey.

(C) Unless the facility has substantially corrected the deficiency or deficiencies in accordance with the plan of correction, as determined by the department of health on the basis of a follow-up survey, the department of medicaid or contracting agency shall deliver to the facility, at least thirty days prior to the day that is six months after the exit interview, a written order terminating the facility's participation in the medicaid program. The order shall take effect and the facility's participation shall terminate on the day that is six months after the exit interview. The order shall not take effect if, after it is delivered to the facility and prior to the effective date of the order, the department of health determines on the basis of a follow-up survey that the facility has corrected the deficiency or deficiencies.

An order issued under this section is subject to appeal under Chapter 119. of the Revised Code; however, the order may take effect prior to or during the pendency of any hearing under that chapter. In that case, the department of medicaid or contracting agency shall provide the facility an opportunity for a hearing in accordance with section 5165.87 of the Revised Code.

(D) Except as provided in division (E) of this section, whenever the department of medicaid or a contracting agency terminates a facility's participation in the medicaid program pursuant to this section, the provider shall repay the department the federal share of all medicaid payments made by the department to the facility during the six-month period following the exit interview of the survey that was the basis for citing the deficiency or cluster of deficiencies. The provider shall repay the department within thirty days after the department repays to the federal government the federal share of medicaid payments made to the facility during that six-month period.

(E) A provider is not required to repay the department of medicaid if either of the following is the case:

(1) The facility has brought an appeal under Chapter 119. of the Revised Code of termination of its participation in the medicaid program, except that the provider shall repay the department of medicaid within thirty days after the facility exhausts its right to appeal under that chapter.

(2) The facility complied with the plan of correction approved by the department of health and the obligation to repay resulted from the department's failure to provide timely verification to the United States department of health and human services of the facility's compliance with the plan of correction.

(F) If a provider's obligation to repay the department of medicaid under division (D) of this section results from disallowance of federal financial participation by the United States department of health and human services, the provider shall not be required to repay the department of medicaid until the federal disallowance becomes final.

(G) Any fines paid under sections 5165.60 to 5165.89 of the Revised Code during any period for which the facility is required to repay the department of medicaid under division (D) of this section shall be offset against the amount the provider is required to repay the department for that period.

(H) Prior to a change of ownership of a facility for which a provider has an obligation to repay the department of medicaid under division (D) of this section that has not become final, or has become final but not been paid, the department may do one or more of the following:

(1) Require the provider to place money in escrow, or obtain a bond, in sufficient amount to indemnify the state against the provider's failure to repay the department after the change of ownership occurs;

(2) Place a lien on the facility's real property;

(3) Use any method to recover the medicaid payments that is available to the attorney general to recover payments on behalf of the department of medicaid.

Renumbered from § 5111.58 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000

5165.86 [Renumbered from 5111.59] Delivery of notices.

The department of medicaid, the department of health, and any contracting agency shall deliver a written notice, statement, or order to a nursing facility under sections 5165.60 to 5165.66 and 5165.69 to 5165.89 of the Revised Code by certified mail or hand delivery. If the notice, statement, or order is mailed, it shall be addressed to the administrator of the facility as indicated in the department's or agency's records. If it is hand delivered, it shall be delivered to a person at the facility who would appear to the average prudent person to have authority to accept it.

Delivery of written notice by a nursing facility to the department of health, the department of medicaid, or a contracting agency under sections 5165.60 to 5165.89 of the Revised Code shall be by certified mail or hand delivery to the appropriate department or the agency.

Renumbered from § 5111.59 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000

5165.87 [Renumbered from 5111.60] Appeals.

(A) Except as provided in division (B) of this section, the following remedies are subject to appeal under Chapter 119. of the Revised Code:

(1) An order issued under section 5165.71, 5165.72, 5165.77, or 5165.85 of the Revised Code terminating a nursing facility's participation in the medicaid program;

(2) Appointment of a temporary manager of a facility under division (A)(1)(b) or (2)(b) of section 5165.72, or division (A)(1)(d) of section 5165.77 of the Revised Code;

(3) An order issued under section 5165.72, 5165.73, 5165.74, 5165.77, or 5165.84 of the Revised Code denying medicaid payments to a facility for all medicaid eligible residents admitted after the effective date of the order;

(4) An order issued under section 5165.72, 5165.73, or 5165.74 of the Revised Code denying medicaid payments to a facility for medicaid eligible residents admitted after the effective date of the order who have certain diagnoses or special care needs specified by the department or agency;

(5) A fine imposed under section 5165.72, 5165.73, or 5165.74 of the Revised Code.

(B) The department of medicaid or contracting agency may do any of the following prior to or during the pendency of any proceeding under Chapter 119. of the Revised Code:

(1) Issue and execute an order under section 5165.72, 5165.77, or 5165.85 of the Revised Code terminating a nursing facility's participation in the medicaid program;

(2) Appoint a temporary manager under division (A)(1)(b) or (2)(b) of section 5165.72 or division (A)(1)(d) of section 5165.77 of the Revised Code;

(3) Issue and execute an order under section 5165.72, 5165.73, 5165.77, or 5165.84 of the Revised Code denying medicaid payments to a facility for all medicaid eligible residents admitted after the effective date of the order;

(4) Issue and execute an order under section 5165.72 or 5165.73 or division (A), (B), or (C) of section 5165.74 of the Revised Code denying medicaid payments to a facility for medicaid eligible residents admitted after the effective date of the order who have specified diagnoses or special care needs.

(C) Whenever the department or agency imposes a remedy listed in division (B) of this section prior to or during the pendency of a proceeding, all of the following apply:

(1) The provider against whom the action is taken shall have ten days after the date the facility actually receives the notice specified in section 119.07 of the Revised Code to request a hearing.

(2) The hearing shall commence within thirty days after the date the department or agency receives the provider's request for a hearing.

(3) The hearing shall continue uninterrupted from day to day, except for Saturdays, Sundays, and legal holidays, unless other interruptions are agreed to by the provider and the department or agency.

(4) If the hearing is conducted by a hearing examiner, the hearing examiner shall file a report and recommendations within ten days after the close of the hearing.

(5) The provider shall have five days after the date the hearing officer files the report and recommendations within which to file objections to the report and recommendations.

(6) Not later than fifteen days after the date the hearing officer files the report and recommendations, the medicaid director or the director of the contracting agency shall issue an order approving, modifying, or disapproving the report and recommendations of the hearing examiner.

(D) If the department or agency imposes more than one remedy as the result of deficiencies cited in a single survey, the proceedings for all of the remedies shall be consolidated. If any of the remedies are imposed during the pendency of a hearing, as permitted by division (B) of this section, the consolidated hearing shall be conducted in accordance with division (C) of this section. The consolidation of the remedies for purposes of a hearing does not affect the effective dates prescribed in sections 5165.60 to 2165.85 of the Revised Code.

(E) If a contracting agency conducts administrative proceedings pertaining to remedies imposed under sections 5165.60 to 5165.89 of the Revised Code, the department of medicaid shall not be considered a party to the proceedings.

Renumbered from § 5111.60 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000

5165.88 [Renumbered from 5111.61] Confidentiality.

(A)

(1) Except as required by court order, as necessary for the administration or enforcement of any statute relating to nursing facilities, or as provided in division (C) of this section, the department of medicaid and any contracting agency shall not release any of the following information without the permission of the individual or the individual's legal representative:

(a) The identity of any resident of a nursing facility;

(b) The identity of any individual who submits a complaint about a nursing facility;

(c) The identity of any individual who provides the department or agency with information about a nursing facility and has requested confidentiality;

(d) Any information that reasonably would tend to disclose the identity of any individual described in division (A)(1)(a) to (c) of this section.

(2) An agency or individual to whom the department or contracting agency is required, by court order or for the administration or enforcement of a statute relating to nursing facilities, to release information described in division (A)(1) of this section shall not release the information without the permission of the individual who would be or would reasonably tend to be identified, or of the individual's legal representative, unless the agency or individual is required to release it by division (C) of this section, by court order, or for the administration or enforcement of a statute relating to nursing facilities.

(B) Except as provided in division (C) of this section, any record that identifies an individual described in division (A)(1) of this section or that reasonably would tend to identify such an individual is not a public record for the purposes of section 149.43 of the Revised Code, and is not subject to inspection and copying under section 1347.08 of the Revised Code.

(C) If the department or a contracting agency, or an agency or individual to whom the department or contracting agency was required by court order or for administration or enforcement of a statute relating to nursing facilities to release information described in division (A)(1) of this section, uses information in any administrative or judicial proceeding against a facility that reasonably would tend to identify an individual described in division (A)(1) of this section, the department, agency, or individual shall disclose that information to the facility. However, the department, agency, or individual shall not disclose information that directly identifies an individual described in divisions (A)(1)(a) to (c) of this section, unless the individual is to testify in the proceedings.

(D) No person shall knowingly register a false complaint about a nursing facility with the department or a contracting agency, or knowingly swear or affirm the truth of a false complaint, when the allegation is made for the purpose of incriminating another.

Renumbered from § 5111.61 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 07-01-2000

5165.89 [Renumbered from 5111.63] Hearing on transfer or discharge of resident who medicaid or medicare beneficiary.

The department of health shall be the designee of the department of medicaid for the purpose of conducting a hearing pursuant to section 3721.162 of the Revised Code concerning a nursing facility's decision to transfer or discharge a resident if the resident is a medicaid recipient or medicare beneficiary.

Renumbered from § 5111.63 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 09-05-2001

5165.99 [Renumbered from 5111.99] [Effective Until 1/1/2015] Penalties.

(A) Whoever violates section 5165.102 or division (E) of section 5165.08 of the Revised Code shall be fined not less than five hundred dollars nor more than one thousand dollars for the first offense and not less than one thousand dollars nor more than five thousand dollars for each subsequent offense. Fines paid under this section shall be deposited in the state treasury to the credit of the general revenue fund.

(B) Whoever violates division (D) of section 5165.88 of the Revised Code is guilty of registering a false complaint, a misdemeanor of the first degree.

Renumbered from § 5111.99 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 12-13-1990; 09-29-2005

5165.99 [Effective 1/1/2015] [Renumbered from 5111.99] Penalties.

(A) Whoever violates section 5165.102 or division (D) of section 5165.08 of the Revised Code shall be fined not less than five hundred dollars nor more than one thousand dollars for the first offense and not less than one thousand dollars nor more than five thousand dollars for each subsequent offense. Fines paid under this section shall be deposited in the state treasury to the credit of the general revenue fund.

(B) Whoever violates division (D) of section 5165.88 of the Revised Code is guilty of registering a false complaint, a misdemeanor of the first degree.

Amended by 130th General Assembly File No. 25, HB 59, §110.25, eff. 1/1/2015.

Renumbered from § 5111.99 by 130th General Assembly File No. 25, HB 59, §101.01, eff. 9/29/2013.

Effective Date: 12-13-1990; 09-29-2005