Title of Regulation: 12VAC30-90. Methods and Standards for Establishing Payment Rates for Long-Term Care (adding 12VAC30-90-21).

Statutory Authority: § 32.1-325 of the Code of Virginia; 42 USC § 1396 et seq.

Public Hearing Information: No public hearings are scheduled.

Public Comment Deadline: September 5, 2018.

Effective Date: September 20, 2018.

Agency Contact: Emily McClellan, Regulatory Supervisor, Policy Division, Department of Medical Assistance Services, 600 East Broad Street, Suite 1300, Richmond, VA 23219, telephone (804) 371-4300, FAX (804) 786-1680, or email emily.mcclellan@dmas.virginia.gov.

Basis: Section 32.1-325 of the Code of Virginia grants to the Board of Medical Assistance Services the authority to administer and amend the State Plan for Medical Assistance. Section 32.1-324 of the Code of Virginia authorizes the Director of the Department of Medical Assistance Services (DMAS) to administer and amend the State Plan for Medical Assistance according to the board's requirements. The Medicaid authority as established by § 1902(a) of the Social Security Act (42 USC § 1396a) provides governing authority for payments for services.

Purpose: In the event of a disaster resulting in an evacuation, nursing facilities seek to relocate individuals to nursing facilities in safer areas. Therefore, the purpose of this action is to clarify reimbursement provisions relating to reimbursement to the disaster struck nursing facility.

Rationale for Using Fast-Track Rulemaking Process: This regulatory action is being promulgated as a fast-track rulemaking action because it is not expected to be controversial. Further, there will be no fiscal or budgetary impact to DMAS as the funds for this amendment are already provided in the agency's appropriations. As this action coordinates reimbursement requirements to nursing facilities, which service primarily older adults and individuals with complex care needs, members of the public are expected to support these regulatory changes that may positively impact a disadvantaged population.

Substance: The Centers for Medicare and Medicaid Services announced a final rule in November 2016, entitled "Emergency Preparedness" (42 CFR 483.73), which requires long-term care facilities to establish and maintain an emergency preparedness program.

The Virginia Department of Health, the Virginia Department of Emergency Management, the Virginia Hospital and Healthcare Association, and the long-term care provider community worked to establish a Long Term Care Mutual Aid Plan, which includes a Memorandum of Understanding (MOU) for all facilities to sign. Most nursing facilities in Virginia have signed this MOU, which details their responsibilities in the event of a disaster.

Reimbursement to a disaster struck nursing facility for individuals who have to be temporarily evacuated to another facility (resident accepting nursing facility) may continue up to 30 calendar days after the disaster event. The disaster struck nursing facility must also meet specific conditions, which are outlined in the regulations.

Issues: The primary advantage to the agency and to the public, including Medicaid providers and Medicaid members, is the alignment of Virginia requirements with federal regulations so that the reimbursement requirements for such nursing facilities are clear and put into practice. There are no disadvantages to the agency or the public.

Department of Planning and Budget's Economic Impact Analysis:

Summary of the Proposed Amendments to Regulation. The proposed regulation clarifies Medicaid reimbursement to disaster struck nursing facilities.

Result of Analysis. The benefits likely exceed the costs for all proposed changes.

Estimated Economic Impact. In November 2016, the Centers for Medicare and Medicaid Servicers announced a final rule entitled "Emergency Preparedness" (42 CFR 483.73), which requires long term care facilities to establish and maintain an emergency preparedness program. The Virginia Department of Health, the Virginia Department of Emergency Management, the Virginia Hospital and Healthcare Association, and the nursing facility provider community worked to establish a Long Term Care Mutual Aid Plan, which includes a Memorandum of Understanding for all facilities to sign. As a part of the overall plan, this regulatory action clarifies Medicaid reimbursement to disaster struck nursing facilities.

The proposed regulation allows a disaster struck facility to temporarily transfer its residents to an accepting facility up to 30 days without having to discharge its residents. Sending and receiving facilities must have a contract or must have signed the Memorandum of Understanding contained in the Long Term Care Mutual Aid Plan. The disaster struck facility must determine within 15 days whether individuals will be able to return to the facility within 30 days. The standard reimbursement for the residents transferred to another facility will continue to be made to the disaster struck facility. The disaster struck facility will pass on the payments to the receiving facility according to the contract between them. No other reimbursement will be made to either the sending or the receiving facility. If the sending facility determines that it is unable to reopen within 30 days, it must discharge its residents at which point it will no longer receive reimbursement. Thus, no fiscal impact is expected from this change.

The proposed change is beneficial because it would help avoid some potential administrative costs. Under the proposed regulations, the disaster struck facility will not be required to discharge its residents if it can be reopened within 30 days. According to the Department of Medical Assistance Services (DMAS), the discharge and intake procedures at nursing facilities are administratively cumbersome and may take up to 15 days. In addition, by avoiding discharge and intake procedures, the regulators, the facilities, the residents, and the family members will know which residents are moving to which facilities fairly quickly.

Businesses and Entities Affected. The proposed amendments potentially affect the 275 nursing homes providing services to Medicaid recipients.¹

Localities Particularly Affected. The proposed changes do not disproportionately affect particular localities.

Projected Impact on Employment. No impact on employment is expected.

Effects on the Use and Value of Private Property. No impact on the use and value of private property is expected.

Real Estate Development Costs. No impact on real estate development costs is expected.

Small Businesses:

Definition. Pursuant to § 2.2-4007.04 of the Code of Virginia, small business is defined as "a business entity, including its affiliates, that (i) is independently owned and operated and (ii) employs fewer than 500 full-time employees or has gross annual sales of less than $6 million."

Costs and Other Effects. Approximately 50 of the nursing homes are small businesses.² The proposed regulation does not impose costs on them, but will likely help avoid potential administrative costs in case of an emergency.

Alternative Method that Minimizes Adverse Impact. No adverse impact on small businesses is expected.

Adverse Impacts:

Businesses. The proposed amendments do not have an adverse impact on non-small businesses.

Localities. The proposed amendments will not adversely affect localities.

Other Entities. The proposed amendments will not adversely affect other entities.

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¹Source: DMAS.

²Source: DMAS.

Agency's Response to Economic Impact Analysis: The agency has reviewed the economic impact analysis prepared by the Department of Planning and Budget, and the agency concurs with this analysis.

Summary:

The action conforms requirements relating to reimbursement to disaster struck nursing facilities to a federal Centers for Medicare and Medicaid Services final rule, which requires long-term care facilities to establish and maintain an emergency preparedness program (November 2016, "Emergency Preparedness" 42 CFR 483.73). The action (i) allows a disaster struck nursing facility to temporarily transfer its residents to an accepting facility for up to 30 days without having to discharge its residents; (ii) requires the sending and receiving facilities to have a contract or have signed the Memorandum of Understanding contained in the Long Term Care Mutual Aid Plan; (iii) requires the disaster struck nursing facility to determine within 15 days whether individuals will be able to return to the facility within 30 days; and (iv) provides that the standard reimbursement for the residents transferred to another nursing facility will continue to be made to the disaster struck nursing facility, which will then pass on the payments to the receiving facility according to the contract between them.

12VAC30-90-21. Reimbursement for individuals in a disaster struck nursing facility.

Reimbursement to a disaster struck nursing facility for individuals who must be temporarily evacuated to another facility (resident accepting nursing facility) may continue for up to 30 days after the disaster event. Reimbursement will be the same as if the individual was residing in the disaster struck nursing facility. No other reimbursement will be made to either the disaster struck nursing facility or the resident accepting nursing facility. The disaster struck nursing facility must meet the following conditions:

1. The disaster struck nursing facility must have a contract with the resident accepting nursing facility. The contract must include (i) terms of reimbursement and mechanisms to resolve any contract disputes, (ii) protocols for sharing care and treatment information between the two facilities, and (iii) requirements that both facilities meet all conditions of Medicaid participation determined by the Virginia Department of Health. The Virginia Long-Term Mutual Aid Plan, which includes a Memorandum of Understanding, is an acceptable contract.

2. The disaster struck nursing facility must notify the Department of Medical Assistance Services (DMAS) of the disaster event; maintain records of evacuated individuals with names, dates, and destinations of evacuated residents; and update DMAS on the status of the repairs.

3. The disaster struck nursing facility must determine within 15 days of the event whether individuals will be able to return to the facility within 30 days of the disaster event. If the disaster struck nursing facility determines that it is not able to reopen within 30 days, it must discharge the individuals and work with them to choose admission to other facilities or alternative placements. Nothing shall preclude an individual from asking to be discharged and admitted to another facility or alternative placement. Reimbursement to the disaster struck nursing facility shall cease when an individual is discharged.