sb 0376

CHAPTER 260

SB 376-FN-A – FINAL VERSION

AN ACT relative to pharmaceutical purchases for receiving facilities and nonprofit hospitals, relative to the medicaid enhancement tax, relative to nursing facility quality assessments, relative to certain medicaid programs, and relative to rural hospitals.

SPONSORS: Sen. D’Allesandro, Dist 20; Sen. Martel, Dist 18; Sen. Clegg, Dist 14; Sen. Gatsas, Dist 16; Rep. Emerton, Hills 48

I. Authorizes the director of plant and property management or any other appropriate purchasing authority to purchase pharmaceuticals and allied products and services for any receiving facility as defined in RSA 135-C or any nonprofit hospital.

II. Changes the medicaid enhancement tax to be imposed on net patient services revenue rather than gross patient services revenue.

III. Amends the statutes relative to county nursing homes and proportionate share payments.

IV. Clarifies the nursing facility quality assessment law and changes the method of how funds are expended from the nursing facility trust fund.

VII. Requires that certain amendments to the state plan for providing medical or other remedial assistance be approved by the fiscal committee of the general court.

IX. Limits the authority of the health services planning and review board relative to rehabilitation beds and services.

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Matter which is either (a) all new or (b) repealed and reenacted appears in regular type.

Be it Enacted by the Senate and House of Representatives in General Court convened:

260:1 New Paragraph; Administrative Services; Additional Purchasing Authority; Pharmaceuticals. Amend RSA 21-I:17 by inserting after paragraph II the following new paragraph:

III. The state through the director of plant and property management or any other appropriate purchasing authority may purchase pharmaceuticals and allied products and services for any receiving facility as defined in RSA 135-C or any nonprofit hospital, whenever the governing body thereof so desires and the director or other authority deems that he or she can make such purchases advantageously. Any savings realized from the state’s purchase of pharmaceuticals and allied products and services for a receiving facility or nonprofit hospital shall be allocated to the receiving facility or nonprofit hospital. No liability shall accrue to the state or the state purchasing authority for any loss, damage, death, or injury resulting from the use of any pharmaceuticals or allied products or services purchased by the state for any nonprofit hospital.

260:2 Medicaid Enhancement Tax; Imposition of Tax. Amend RSA 84-A:2 to read as follows:

84-A:2 Imposition of Tax. A tax is imposed at a rate of 6 percent upon the [~~gross~~] net patient services revenue of every hospital for the hospital’s fiscal year ending during the first full calendar year preceding the taxable period.

260:3 New Paragraph; Medicaid Enhancement Tax; “Gross” changed to “Net.” Amend RSA 84-A:1 by inserting after paragraph IV the following new paragraph:

IV-a. “Net patient services revenue” means the gross charges of the hospital less any deducted amounts for bad debts, charity care, and payor discounts.

260:4 Medicaid Enhancement Tax; “Gross” Changed to “Net.” Amend RSA 84-A:1, IV to read as follows:

IV. “Medicaid enhancement tax” means the tax imposed upon [~~gross~~] net patient services revenue pursuant to this chapter.

260:5 Medicaid Enhancement Tax; “Gross” Changed to “Net.” Amend RSA 84-A:4 to read as follows:

84-A:4 Returns. Every hospital shall on or before the tenth day of the month following the expiration of the taxable period make a return to the commissioner. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to the form of such return and the data which it must contain for the correct computation of [~~gross~~] net patient services revenue and the tax assessed upon such amount. All returns shall be signed by the taxpayer or by its authorized representative, subject to the pains and penalties of perjury. If such return shows an overpayment of the tax due, the commissioner shall refund or credit the overpayment to the hospital in accordance with RSA 21-J:28-a.

260:6 Medicaid Enhancement Tax; “Gross” Changed to “Net.” Amend RSA 84-A:6 to read as follows:

84-A:6 Additional Returns. When the commissioner has reason to believe that a hospital has failed to file a return or to include any part of its [~~gross~~] net patient services revenue in a filed return, the commissioner may require the hospital to file a return or a supplementary return showing such additional information as the commissioner prescribes. Upon the receipt of the supplementary return, or if none is received within the time set by the commissioner, the commissioner may find and assess the amount due upon the information that is available. The making of such additional return does not relieve the hospital of any penalty for failure to make a correct original return or relieve it from liability for interest imposed under RSA 21-J:28 or any other additional charges imposed by the commissioner. This section shall not be construed to modify the statute of limitations provided in RSA 21-J:29.

260:7 County Nursing Homes; Proportionate Share Payments. RSA 167:18-h is repealed and reenacted to read as follows:

I. Proportionate share payments to county nursing homes shall be made each state fiscal year in an amount equal to the maximum permissible by federal regulations. All payments shall be apportioned to each facility in a percentage equal to that facility’s proportion of total county nursing home medicaid utilization. If the federal government makes adjustments to any proportionate share payments that have been made by the state, the amounts due under this section shall be amended accordingly and adjusted payments shall be made to or from the state as necessary.

II. Notwithstanding any provision of law to the contrary, each county government shall reimburse the state for 50 percent of the total cost of proportionate share payments made to the county pursuant to paragraph I.

260:8 Repeal. RSA 167:18-b, V, relative to recalculations of total payments by counties, is repealed.

260:9 Effective Date of Repeal Changed; Reimbursement of Funds for Persons Eligible to Receive Nursing Home Services; Limitation on County Payments. Amend 1998, 388:17, II as amended by 2003, 223:8 to read as follows:

II. Paragraphs I and II of section 16 of this act shall take effect on July 1, [~~2004~~] 2005.

260:10 Repeal. RSA 84-A:1, II, relative to the definition of gross patient services revenue, is repealed.

260:11 Nursing Facility Quality Assessment; Definitions. Amend RSA 84-C:1, IV to read as follows:

IV. “Net patient services revenues” means revenues earned on an accrual basis of accounting, net of deducted amounts for bad debts, charity care, and payer discounts, by a nursing facility for services provided to residents as provided for in 42 CFR 433.68(d)(1)(iii).

260:12 Nursing Facility Quality Assessment; Imposition of Fee. Amend RSA 84-C:2 to read as follows:

84-C:2 Imposition of Fee. An assessment of [~~up to~~] 6 percent of [~~aggregated~~] net patient services revenues is hereby imposed on all nursing facilities on the basis of [~~non-medicare~~] patient days in each nursing facility. The fee shall be implemented in accordance with the provisions of 42 C.F.R. part 433.

260:13 Nursing Facility Quality Assessment; Returns. Amend RSA 84-C:4 to read as follows:

84-C:4 Returns. Every nursing facility shall on or before the tenth day of the month following the expiration of the assessment period make a return to the commissioner and to the commissioner of the department of health and human services. The commissioner shall adopt rules, pursuant to RSA 541-A, relative to the form of such return and the date which it must contain for the correct computation of facility net patient services revenues and the assessment upon such amount. All returns shall be signed by the authorized representative of the nursing facility, subject to the pains and penalties of perjury. If such return shows an overpayment of the assessment due, the commissioner shall refund or credit the overpayment to the nursing facility.

260:14 Nursing Facility Quality Assessment; Additional Returns. Amend RSA 84-C:6 to read as follows:

84-C:6 Additional Returns. When the commissioner has reason to believe that a nursing facility has failed to file a return or to include any part of its net patient services revenue in a filed return, the commissioner may require the nursing facility to file a return or a supplementary return showing such additional information as the commissioner prescribes. Upon the receipt of the supplementary return, or if none is received within the time set by the commissioner, the commissioner may find and assess the amount due upon the information that is available. The making of such additional return does not relieve the nursing facility of any penalty for failure to make a correct original return or relieve it from liability for interest imposed under RSA 21-J:28 or any other additional charges imposed by the commissioner. This section shall not be construed to modify the statute of limitations provided in RSA 21-J:29.

260:15 Nursing Facility Quality Assessment; Contingencies. Amend RSA 84-C:11, I(a) to read as follows:

(a) Aggregate medicaid reimbursement for nursing facilities through PAU 05-01-10-04-01 class 90 is reduced below the level in effect as of February 1, 2003, increased by the funds expended from the nursing facility trust fund established under RSA 151-E:14 and matched by corresponding federal funds.

260:16 Nursing Facility Quality Assessment; Contingencies. Amend RSA 84-C:11, I(d) to read as follows:

(d) Any proceeds from the nursing facility quality assessment established in this chapter are expended by the state or any state agency for any purpose other than funding nursing facility expenditures through the [~~medicaid quality incentive program under RSA 151-E:13~~] nursing facility trust fund under RSA 151-E:14.

260:17 Nursing Facility Quality Assessment; Contingencies. Amend RSA 84-C:11, III to read as follows:

III. The nursing facility quality assessment under this chapter shall not be assessed or collected [~~and the medicaid quality incentive program authorized by RSA 151-E:13 shall not be paid~~] and payments from the nursing facility trust fund authorized by RSA 151-E:14 shall not be made until after the commissioner of health and human services certifies to the commissioner that the department of health and human services has obtained all necessary federal [approval of the assessment in RSA 84-C:2, the state plan uniformity waiver in RSA 84-C:11, I(e), the medicaid quality incentive program in RSA 151-E:13, and payments have commenced under the medicaid quality incentive program. Such payments under the medicaid quality incentive program shall commence 45 days after such certification and shall be effective for the period beginning May 1, 2003 or the effective date of the federal authorization for the nursing facility quality assessment, the uniformity waiver, and the medicaid quality incentive program, whichever is later] approvals. Payments under RSA 151-E:15 shall be effective for the period beginning May 1, 2003.

260:18 Expenditure of Funds From Nursing Facility Trust Fund. RSA 151-E:15 is repealed and reenacted to read as follows:

151-E:15 Expenditure of Funds From Nursing Facility Trust Fund. Notwithstanding any other provision of law, moneys in the nursing facility trust fund shall be expended in the following manner:

I. All moneys in the fund shall be paid out no less frequently than on a quarterly basis and shall be disbursed as follows:

(a) The moneys in the fund shall be used to eliminate or reduce to the maximum extent possible the difference between the allowable medicaid costs, derived from the nursing facility medicaid acuity rate setting system, which nursing facilities incur in providing care to medicaid residents, and the amount which the state has budgeted in order to fund that care.

(b) If after the disbursement required in subparagraph (a) there are still any moneys remaining in the fund, the nursing facility rate setting system shall be adjusted to insure that all moneys in the fund are expended for nursing facility care.

II. The state treasurer shall transfer from the nursing facility trust fund to the general fund on the first business day of each quarter the amount necessary to fund the payments under paragraph I.

III. The state treasurer shall transfer, and the commissioner of health and human services shall fund the full amount of the nursing facility trust fund in each quarter.

IV. Notwithstanding the provisions of RSA 167:18-b, I, no county shall be required to make any contribution to the distribution under this section.

260:19 Initial Assessment Period; Nursing Facility Quality Assessment. Amend 2003, 223:13 to read as follows:

223:13 Initial Assessment Period; Nursing Facility Quality Assessment. Notwithstanding RSA 84-C:1, II the initial assessment period shall be the period beginning [~~with the effective date of federal authorization and ending on June 30, 2003~~] May 1, 2003 and ending on April 30, 2004.

260:20 Applicability. Nothing in this act shall be construed to create a new right or entitlement on behalf of any person to receive a service provided by the state.

I. RSA 84-C:11, I(e), relative to a certain contingency regarding the nursing facility quality assessment law.

(a) Three members of the house, appointed by the speaker of the house of representatives.

(e) Two members representing the interests of private nursing homes, appointed by the New Hampshire Health Care Association.

(g) Two members representing the interests of mid-level care, one appointed by the Northern New England Association of Homes and Services for the Aging and one appointed by the New Hampshire Association of Residential Care Homes.

(h) Two members representing the interests of home health care, appointed by the Home Care Association of New Hampshire.

III. Legislative members of the commission shall receive mileage at the legislative rate when attending to the duties of the commission.

IV. The commission shall study the funding of long-term care medicaid costs and funding sources in New Hampshire as they affect county and state government. The study shall include, but not be limited to the following:

(a) The appropriate role of property taxes in funding the non-federal share of medicaid.

(b) Possible establishment of an equitable statewide medicaid property tax rate.

(d) The role of tobacco master settlement agreement contribution to funding of the county portion of long-term care.

V. The members of the commission shall elect a chairperson from among the members. The first meeting of the commission shall be called by the first-named house member. The first meeting of the commission shall be held within 45 days of the effective date of this section. Six members of the commission shall constitute a quorum.

VI. The commission shall report its findings and any recommendations for proposed legislation to the speaker of the house of representatives, the president of the senate, the house clerk, the senate clerk, the governor, and the state library on or before November 30, 2004.

260:23 Purpose. The purpose of section 24 of this act is to facilitate legislative involvement in any efforts at so-called “Medicaid Modernization.”

260:24 Medical Care; State Plan; Amendments. Amend RSA 161:2, VI to read as follows:

VI. MEDICAL CARE. In cooperation with state health authorities and county and local officials, develop and administer a state plan for providing medical or other remedial assistance. The department of health and human services shall not amend nor seek to amend, nor gain nor seek to gain approval of waivers to, the state medicaid plan in any way that would consolidate federal grants or allotments or would cap the federal portion of medicaid spending or would in any way result in a change to the state-federal proportional share of medicaid spending or any component thereof, without the prior approval of the fiscal committee of the general court.

260:25 Health Services Planning and Review; Exemption Added. Amend RSA 151-C:13, I(g) to read as follows:

(h) Notwithstanding any other provision of this chapter, a skilled nursing facility distinct part unit established by Androscoggin Valley Hospital or Franklin Regional Hospital in order to qualify as a critical access hospital under 42 U.S.C. Section 1395i-4 and 42 CFR Part 485, Subpart F; provided, that the number of beds in the skilled nursing facility distinct part unit shall not exceed the hospital’s existing skilled nursing patient capacity. For purposes of this subparagraph, the term “existing skilled nursing patient capacity” means with respect to each month, the number of skilled nursing patient days for such month divided by the number of days in such month, and shall be the highest such number from the 12-month period ending immediately prior to the filing of the federal request for approval of the distinct part unit; provided, however, that the number determined under this subparagraph shall not exceed 10 beds.

260:26 Severability. If any provision of this act or the application thereof to any person or circumstance is held to be invalid, the invalidity does not affect other provisions or applications of the act which can be given effect without the invalid provisions or applications, and to this end the provisions of this act are severable.

260:27 Health Services Planning and Review Board; Rehabilitation Beds and Services. Through the period ending December 31, 2006 unless sooner authorized by the general court, the health services planning and review board shall not authorize changes regarding the licensure or certification of any rehabilitation beds in any type of facility, shall not authorize the addition of any rehabilitation beds in any type of facility, and shall not grant any certificate of need related to the board’s administrative standards for comprehensive physical rehabilitation services. This section shall not prohibit the voluntary transfer of rehabilitation beds between 2 licensed health care facilities; provided, that any such transaction does not result in an increase in the number of any type of rehabilitation beds in the state.

(Approved: Enacted in accordance with Article 44, Part II of N.H. Constitution, without signature of Governor, June 16, 2004)

(Effective Date: I. Sections 2-7 and 10 of this act shall take effect July 1, 2005.