PRINTER'S NO. 2538
No. 1942 Session of 2003
INTRODUCED BY VEON AND DeWEESE, SEPTEMBER 8, 2003
REFERRED TO COMMITTEE ON FINANCE, SEPTEMBER 8, 2003
AN ACT
1 Amending the act of April 9, 1929 (P.L.177, No.175), entitled
2 "An act providing for and reorganizing the conduct of the
3 executive and administrative work of the Commonwealth by the
4 Executive Department thereof and the administrative
5 departments, boards, commissions, and officers thereof,
6 including the boards of trustees of State Normal Schools, or
7 Teachers Colleges; abolishing, creating, reorganizing or
8 authorizing the reorganization of certain administrative
9 departments, boards, and commissions; defining the powers and
10 duties of the Governor and other executive and administrative
11 officers, and of the several administrative departments,
12 boards, commissions, and officers; fixing the salaries of the
13 Governor, Lieutenant Governor, and certain other executive
14 and administrative officers; providing for the appointment of
15 certain administrative officers, and of all deputies and
16 other assistants and employes in certain departments, boards,
17 and commissions; and prescribing the manner in which the
18 number and compensation of the deputies and all other
19 assistants and employes of certain departments, boards and
20 commissions shall be determined," providing for nursing
21 facility assessments.
22 The General Assembly of the Commonwealth of Pennsylvania
23 hereby enacts as follows:
24 Section 1. The act of April 9, 1929 (P.L.177, No.175), known
25 as The Administrative Code of 1929, is amended by adding a
26 section to read:
27 Section 2336. Nursing Facility Assessments.--(a) In order
1 to generate additional revenues for medical assistance 2 recipients to have access to medically necessary nursing 3 facility services, the department may implement a monetary 4 assessment on each nursing facility subject to the conditions 5 and requirements specified in this section. 6 (b) The assessment shall be implemented on an annual basis 7 as a health care-related fee as defined in section 1903(w)(3)(B) 8 of the Social Security Act (49 Stat. 620, 42 U.S.C. § 9 1396b(w)(3)(B)) or any amendments thereto and may be imposed 10 only to the extent that the revenues generated therefrom will 11 qualify as the State share of program expenditures eligible for 12 Federal financial participation. 13 (c) The aggregate amount of the assessment and the 14 assessment rate shall be determined in accordance with this 15 section and implemented on an annual basis by the secretary, in 16 consultation with the Secretary of the Budget, and shall be 17 approved by the Governor. In each year in which the assessment 18 is implemented, the assessment rate shall be fixed so as to 19 generate at least fifty million dollars ($50,000,000) in 20 additional revenue subject to the maximum aggregate amount that 21 may be assessed pursuant to the six per centum (6%) indirect 22 guarantee threshold set forth in 42 CFR 433.68(f)(3)(i) 23 (relating to permissible health care-related taxes after the 24 transition period). 25 (d) The secretary, before implementing an assessment in each 26 fiscal year, shall publish a notice in the Pennsylvania Bulletin 27 that specifies the amount of the assessment being proposed and 28 an explanation of the assessment methodology and amount 29 determination that identifies the aggregate impact on nursing 30 facilities subject to the assessment. Interested parties shall 20030H1942B2538 - 2 -
1 have thirty (30) days in which to submit comments to the 2 secretary. Upon expiration of the thirty-day comment period, the 3 secretary, after consideration of the comments, shall publish a 4 second notice in the Pennsylvania Bulletin announcing the rate 5 of the assessment. 6 (e) Except as permitted under subsection (i), the 7 secretary's determination of the aggregate amount and rate of 8 the assessment pursuant to subsection (d) shall not be subject 9 to administrative or judicial review under 2 Pa.C.S. Chs. 5 10 Subch. A (relating to practice and procedure of Commonwealth 11 agencies) and 7 Subch. A (relating to judicial review of 12 Commonwealth agency action), or any other provision of law; nor 13 shall any assessments implemented under this section or forms or 14 reports required to be completed by nursing facilities pursuant 15 to this section be subject to the act of July 31, 1968 (P.L.769, 16 No.240), referred to as the Commonwealth Documents Law, the act 17 of October 15, 1980 (P.L.950, No.164), known as the Commonwealth 18 Attorneys Act, and the act of June 25, 1982 (P.L.633, No.181), 19 known as the "Regulatory Review Act." 20 (f) There is hereby created a restricted account in the 21 General Fund for the receipt and deposit of moneys from the 22 assessment, any Federal financial participation received by the 23 Commonwealth as a direct result of the assessments and any 24 penalties and interest received under subsection (j). Moneys in 25 the account are hereby appropriated to the department to fund 26 nursing facility services provided by medical assistance nursing 27 facility providers to the extent permitted by section 1903(w) of 28 the Social Security Act. 29 (g) Using the assessment rates implemented by the secretary 30 pursuant to subsection (d), each nursing facility shall 20030H1942B2538 - 3 -
1 calculate the assessment amount it owes for a calendar quarter 2 on a form specified by the department, and shall submit the form 3 and the amount owed to the department no later than the last day 4 of that calendar quarter or thirty (30) days from the date of 5 the second notice published pursuant to subsection (d), 6 whichever is later. A nursing facility's calculation of the 7 assessment amount owed in any quarter is subject to verification 8 by the department pursuant to subsection (h). 9 (h) Upon request by the department, a nursing facility shall 10 furnish to the department such records as the department may 11 specify in order to determine the assessment for a fiscal year 12 or the amount of the assessment due from the nursing facility or 13 to verify that the nursing facility has paid the correct amount 14 due. In the event that the department determines that a nursing 15 facility has failed to pay an assessment or that it has 16 underpaid an assessment, the department shall notify the nursing 17 facility in writing of the amount due, including interest, and 18 the date on which the amount due must be paid, which shall not 19 be less than thirty (30) days from the date of the notice. In 20 the event that the department determines that a nursing facility 21 has overpaid an assessment, the department shall notify the 22 nursing facility in writing of the overpayment and, within 23 thirty (30) days of the date of the notice of the overpayment, 24 shall either refund the amount of the overpayment or offset the 25 amount of the overpayment against any amount that may be owed to 26 the department from the facility. 27 (i) A nursing facility that is aggrieved by a determination 28 of the department as to the amount of the assessment due from 29 the nursing facility or a remedy imposed pursuant to subsection 30 (j) may file a request for review of the decision of the 20030H1942B2538 - 4 -
1 department by the Bureau of Hearings and Appeals, which shall 2 have exclusive jurisdiction in such matters. The procedures and 3 requirements of 67 Pa.C.S. Ch. 11 (relating to medical 4 assistance hearings and appeals) shall apply to requests for 5 review filed pursuant to this section except that, in any such 6 request for review, a nursing facility may not challenge the 7 assessment rate determined by the secretary, but only whether 8 the department correctly determined the assessment amount due 9 from the nursing facility using the assessment rate in effect 10 for the fiscal year. 11 (j) In addition to any other remedy provided by law, the 12 department may enforce this section by imposing one or more of 13 the following remedies: 14 (1) When a nursing facility fails to pay an assessment or 15 penalty in the amount or on the date required by this section, 16 the department shall add interest at the rate provided in 17 section 806 of the act of April 9, 1929 (P.L.343, No.176), known 18 as "The Fiscal Code," to the unpaid amount of the assessment or 19 penalty from the date prescribed for its payment until the date 20 it is paid. 21 (2) When a nursing facility fails to file a report or to 22 furnish records to the department as required by this section, 23 the department shall impose a penalty against the nursing 24 facility in the amount of one thousand dollars ($1,000), plus an 25 additional amount of two hundred dollars ($200) per day for each 26 additional day that the failure to file the report or furnish 27 the records continues. 28 (3) When a nursing facility that is a medical assistance 29 provider or that is related through common ownership or control 30 as defined in 42 CFR 413.17(b) (relating to cost to related 20030H1942B2538 - 5 -
1 organizations) to a medical assistance provider fails to pay all 2 or part of an assessment or penalty within sixty (60) days of 3 the date that payment is due, the department may deduct the 4 unpaid assessment or penalty and any interest owed thereon from 5 any medical assistance payments due to the nursing facility or 6 to any related medical assistance provider until the full amount 7 is recovered. Any such deduction shall be made only after 8 written notice to the medical assistance provider and may be 9 taken in amounts over a period of time taking into account the 10 financial condition of the medical assistance provider. 11 (4) Within sixty (60) days after the end of each calendar 12 quarter, the department shall notify the Department of Health of 13 any nursing facility that has assessment, penalty or interest 14 amounts that have remained unpaid for ninety (90) days or more. 15 The Department of Health shall not renew the license of any such 16 nursing facility until the department notifies the Department of 17 Health that the nursing facility has paid the outstanding amount 18 in its entirety or that the department has agreed to permit the 19 nursing facility to repay the outstanding amount in installments 20 and that, to date, the nursing facility has paid the 21 installments in the amount and by the date required by the 22 department. 23 (5) The secretary may waive all or part of the interest or 24 penalties assessed against a nursing facility pursuant to this 25 subsection for good cause as shown by the nursing facility. 26 (k) Any assessments implemented and interest and penalties 27 assessed against a nursing facility pursuant to this section 28 shall be a lien on the real and personal property of the nursing 29 facility in the manner provided by section 1401 of "The Fiscal 30 Code," may be entered by the department in the manner provided 20030H1942B2538 - 6 -
1 by section 1404 of "The Fiscal Code" and shall continue and 2 retain priority in the manner provided in section 1404.1 of "The 3 Fiscal Code." 4 (l) The department shall seek a waiver pursuant to 42 CFR 5 433.68(e) from the Centers for Medicare and Medicaid Services of 6 the United States Department of Health and Human Services. 7 (m) No nursing facility shall be directly guaranteed a 8 repayment of its assessment in derogation of 42 CFR 433.68(f): 9 Provided, however, That in each fiscal year in which an 10 assessment is implemented, the department shall use the State 11 revenue collected from the assessment and any Federal funds 12 received by the Commonwealth as a direct result of the 13 assessments to maintain and increase program payments to medical 14 assistance nursing facility providers to the extent permissible 15 under Federal and State law or regulation and without creating 16 an indirect guarantee to hold harmless, as those terms are used 17 in 42 CFR 433.68(f)(3)(i). The secretary shall submit any State 18 Medicaid plan amendments to the United States Department of 19 Health and Human Services that are necessary to make the payment 20 increases. 21 (n) The department may issue such regulations and orders as 22 may be necessary to implement the nursing facility assessment 23 program in accordance with the requirements of this section. 24 (o) During each fiscal year in which an assessment is 25 implemented pursuant to this section, the department shall not 26 adopt new regulations or revise existing regulations that limit, 27 restrict or reduce eligibility for medical assistance nursing 28 facility services or program participation or reimbursement for 29 medical assistance nursing facility providers without publishing 30 a notice of proposed rulemaking and adopting a final-form 20030H1942B2538 - 7 -
1 regulation after public notice and comment in accordance with 45 2 Pa.C.S. (relating to legal notices) and the Commonwealth 3 Documents Law and subject to review pursuant to the "Regulatory 4 Review Act." Notice of purposed rulemaking shall not be omitted 5 pursuant to section 204 of the Commonwealth Documents Law, and 6 no final-form regulation subject to this subsection may take 7 effect pursuant to emergency certification by the Governor under 8 section 6(d) of the "Regulatory Review Act." 9 (p) The assessment authorized in this section shall not be 10 imposed prior to July 1, 2003, or after June 30, 2007. 11 (q) As used in this section, the following words and phrases 12 shall have the meanings given to them in this subsection: 13 "Assessment" means the fee implemented pursuant to this 14 section on every nursing facility. 15 "Department" means the Department of Public Welfare of the 16 Commonwealth. 17 "Medical assistance provider" means a person or entity 18 enrolled by the Department of Public Welfare as a provider of 19 services in the medical assistance program. 20 "Nursing facility" means a non-Federal, nonpublic long-term 21 care nursing facility licensed by the Department of Health 22 pursuant to the act of July 19, 1979 (P.L.130, No.48), known as 23 the "Health Care Facilities Act." The term does not include 24 intermediate care facilities for the mentally retarded. 25 "Program" means the medical assistance program. 26 "Secretary" means the Secretary of Public Welfare of the 27 Commonwealth. 28 Section 2. The addition of section 2336 of the act shall be 29 retroactive to July 1, 2003. 30 Section 3. This act shall take effect immediately. H4L71BIL/20030H1942B2538 - 8 -