PLEASE NOTE: Legislative Information cannot perform research, provide legal advice, or interpret Maine law. For legal assistance, please contact a qualified attorney.
An Act To Amend the Maine Certificate of Need Act of 2002 for Nursing Facility Projects
Be it enacted by the People of the State of Maine as follows:
Sec. 1. 22 MRSA §328, sub-§18-A, as enacted by PL 2007, c. 440, §1, is repealed.
Sec. 2. 22 MRSA §329, sub-§6, as repealed and replaced by PL 2009, c. 652, Pt. A, §29, is amended to read:
 
6. Nursing facilities.   The obligation by a nursing facility, when related to nursing services provided by the nursing facility, of any capital expenditures of $510,000$2,500,000 or more and, beginning January 1, 2010, the obligation by a nursing facility, when related to nursing services provided by the nursing facility, of any capital expenditures of $1,000,000 or more. Beginning January 1, 2012 and annually thereafter, the threshold amount for review must be updated by the commissioner to reflect the change in the Consumer Price Index medical index, with an effective date of January 1st.
 
A certificate of need is not required for the following:
 
A. A nursing facility converting beds used for the provision of nursing services to beds to be used for the provision of residential care services. If such a conversion occurs, MaineCare and other public funds may not be obligated for payment of services provided in the converted beds unless approved by the department pursuant to the provisions of sections 333-A and 334-A;
 
B. Capital expenditures in the case of a natural disaster, major accident or equipment failure;
 
C. Replacement equipment, other than major medical equipment as defined in section 328, subsection 16; and
 
D. Information systems, communication systems, parking lots and garages; and.
 
E. Certain energy-efficient improvements, as described in section 334-A334-B, subsection 4.
Sec. 3. 22 MRSA §333, sub-§1, as amended by PL 2007, c. 440, §8, is further amended to read:
 
1. Procedures.   A nursing facility that voluntarily reduces the number of its licensed beds at any time prior to July 1, 2007, for any reason except to create private rooms may convert the beds back and thereby increase the number of nursing facility beds to no more than the previously licensed number of nursing facility beds, after obtaining a certificate of need in accordance with this section, as long as the nursing facility has been in continuous operation without material change of ownership. For purposes of this section and sections 333-A and 334-A, beds voluntarily removed from service prior to July 1, 2007 and available to be reinstated under this section are referred to as "reserved beds." Reserved beds remain facility property until they lapse as provided for in this section or are transferred. To reinstate reserved beds under this subsection, the nursing facility must:
 
A.  Give notice of the number of beds it is reserving no later than 30 days after the effective date of the license reduction;
 
A-1. Beginning with anniversary dates occurring after July 1, 2007, annually provide notice to the department no later than 30 days after the anniversary date of the effective date of the license reduction of the nursing facility's intent to retain these reserved beds, subject to the time limitations set forth in subsection 2, paragraph B; and
 
B.  Obtain a certificate of need to convert beds back under section 335, except that, if no construction is required for the conversion of beds back, the application must be processed in accordance with subsection 2.
Sec. 4. 22 MRSA §333, sub-§2, ¶B, as amended by PL 2007, c. 440, §9, is further amended to read:
 
B.  Conversion of beds back under this section must be requested within 4 years of the effective date of the license reduction. If the nursing facility fails to provide the annual notices required by subsection 1, paragraph B, the nursing facility's ability to convert beds back under this section lapses, and the beds must be treated as lapsed beds for purposes of this section and sections 333-A and 334-A.
Sec. 5. 22 MRSA §333-A, as amended by PL 2009, c. 429, §2, is repealed.
Sec. 6. 22 MRSA §334-A, as amended by PL 2009, c. 430, §§2 to 5, is repealed.
Sec. 7.  22 MRSA §334-B  is enacted to read:
§ 334-B. Nursing facility project
 
1.  Nursing facility projects.     The commissioner must review and approve applications for nursing facility projects consistent with the criteria in section 335. Nursing facility projects are not required to demonstrate MaineCare budget neutrality.
 
2.  Emergencies and necessary nursing facility projects.     The department may determine an emergency exists and may approve a necessary nursing facility certificate of need application on an expedited basis when the applicant proposes capital expenditures for renovations and improvements that are necessary:
 
A.  To achieve compliance with code and related regulatory requirements;
 
B.  To comply with the federal Health Insurance Portability and Accountability Act of 1996 and related patient privacy standards;
 
C.  To address other patient safety requirements and standards, consistent with any applicable priorities set forth in the State Health Plan; or
 
D.  To address other necessary and time-sensitive patient safety or compliance issues.
 
3.  Evaluating costs.      In evaluating whether a nursing facility project is subject to certificate of need review, the department shall:
 
A.  Allow gross square footage per licensed bed of not less than 500 square feet unless the applicant specifies a smaller allowance for the project;
 
B.  Exclude the projected incremental cost associated with replacement of equipment; and
 
C.  Exclude the incremental cost of energy-efficient improvements as defined in the rules governing MaineCare reimbursement for nursing facilities.
 
4.  Cost associated with energy-efficient improvements.     The cost associated with energy-efficient improvements in nursing facilities, as set forth in rules governing special reimbursement provisions for energy-efficient improvements adopted by the department, must be excluded from the cost of a project in determining whether the project is subject to review.
 
5.  Rulemaking.     The department may establish rules to implement this section. Rules adopted pursuant to this subsection are routine technical rules as defined in Title 5, chapter 375, subchapter 2-A.
Sec. 8. 22 MRSA §335, sub-§1, as amended by PL 2007, c. 440, §14, is further amended to read:
 
1. Basis for decision.   Based solely on a review of the record maintained under subsection 6, the commissioner shall approve an application for a certificate of need if the commissioner determines that the project:
 
A.  Meets the conditions set forth in subsection 7;
 
B.  Is consistent with and furthers the goals of the State Health Plan when the State Health Plan has provisions directly applicable to the application;
 
C.  Ensures high-quality outcomes and does not negatively affect the quality of care delivered by existing service providers; and
 
D.  Does not result in inappropriate increases in service utilization, according to the principles of evidence-based medicine adopted by the Maine Quality Forum, as established in Title 24-A, section 6951; andwhen the principles adopted by the Maine Quality Forum are directly applicable to the application.
 
E.   Can be funded within the capital investment fund or, in the case of a nursing facility, is consistent with the nursing facility MaineCare funding pool and other provisions of sections 333-A and 334-A.
Sec. 9. 22 MRSA §339, sub-§5, as enacted by PL 2001, c. 664, §2, is amended to read:
 
5. Reviews.   To the extent practicable, a review must be completed and the commissioner shall make a decision within 90 days after the application has been certified as complete by the applicantdepartment. The department shall establish criteria for determining when it is not practicable to complete a review within 90 days. Whenever it is not practicable to complete a review within 90 days, the department may extend the review period for up to an additional 60 days. Failure to issue the decision on or before the 150th day after the application has been determined complete for review results in the automatic approval of the application.
 
SUMMARY
This bill amends the Certificate of Need Act of 2002 as it affects nursing facility projects in several respects.
1. It increases the review threshold for nursing facility projects from $1,000,000 to $2,500,000 and restores an inflation adjustment factor.
2. It repeals the nursing facility MaineCare funding pool.
3. It removes the so-called MaineCare budget neutrality requirement.
4. It makes nursing facility projects subject to all certificate of need approval criteria and requirements.
5. It retains provisions of existing law that permit expedited approval of certain nursing facility projects.
6. It requires the Department of Health and Human Services to complete the review process for a project application for a certificate of need in a timely fashion. When a decision has not been issued within 150 days after the department declares an application complete, the application is automatically approved.