2014 Louisiana Laws
Revised Statutes
TITLE 40 - Public Health and Safety
RS 40:2116 - Facility need review

PART II-A. FACILITY NEED REVIEW

§2116. Facility need review

A. The Department of Health and Hospitals, in accordance with the Administrative Procedure Act, shall establish a facility need review process consistent with the regulations for licensure and for Title XIX of the Social Security Act.

B. The department shall promulgate rules and regulations in accordance with the Administrative Procedure Act to provide for facility need review. The rules and regulations shall include but not be limited to the following:

(1) Criteria for review of beds for Level 4 adult residential care providers as defined in R.S. 40:2166.3 and identified in R.S. 40:2166.5, and community and group home beds for persons with developmental disabilities, to determine if there is a need for additional beds to enroll and participate in the Title XIX program.

(2) Criteria for review of nursing facility beds to determine if there is a need for additional beds.

(3) Specific duties of the department to review proposals for new facilities and determine the need therefor.

(4) Appropriate methodology for the collection of data necessary for the administration of the program.

(5) Procedures to grant and revoke approvals.

(6) Establishment of application fees.

(7) Procedures for review of applications by the department.

(8) Procedures to request a fair hearing from a determination made by the department.

(9) Provisions for judicial review from the decision rendered after a fair hearing.

(10) Criteria for review of beds issued pursuant to a department waiver to determine if there is a need for such beds to be licensed and enrolled in the Title XIX program. Provided, however, that providers of services may be enrolled and participate in such a Title XIX program only if and when the department develops a cost-effective plan for medical residential care services that is cost neutral with respect to existing Medicaid long-term care services and expenditures, or the legislature specifically provides funding for such services.

C. No new facility, service, or beds as described in Paragraphs (B)(1) and (2) of this Section shall be certified to participate in the Title XIX program without the approval of the department based upon a determination of a need therefor in accordance with the provisions of this Part. Any person establishing, managing, or operating a new facility, service, or bed without the approval required by this Part shall be prohibited from participating in the Title XIX program.

D.(1) In order to accomplish cost effectiveness of beds issued pursuant to a department waiver, the department may promulgate rules that include but are not limited to the following:

(a) A bed abeyance program to reduce nursing facility beds by ten percent or more. Such an abeyance program shall include a time frame in which a determination is made as to whether beds should be brought out of abeyance based upon a ninety-three percent occupancy rate within a service area.

(b) An increase in the minimum occupancy level required for a nursing facility to fully recover its capital cost.

(c) In order to achieve a reduction in long-term care institutional costs, a program for reduction of certificates of need for nursing facility beds, which may include a buy-back program, provided such a buy-back program is approved by the Center for Medicaid and Medicare Services and is eligible for federal funds participation.

(d) A bed exchange program that allows a nursing facility to create adult residential care beds based on the permanent elimination of existing nursing facility beds.

(2) The Department of Health and Hospitals shall implement a moratorium on additional beds for nursing facilities. The Department of Health and Hospitals shall not approve any additional nursing facilities or additional beds in nursing facilities through facility need review. This prohibition shall apply only to applications for new beds not approved prior to July 1, 1996. Such prohibition shall become enforceable on July 1, 1996, and shall remain in effect until July 1, 2016. This prohibition shall not apply to the replacement of existing facilities, provided that there is no increase in existing nursing home beds at the replacement facility.

(3) Repealed by Acts 2008, No. 187, §2, eff. June 13, 2008.

(4) Notwithstanding any other provision of law to the contrary, any nursing facility in Lafourche Parish located in an area designated a flood zone that has commenced construction on a replacement facility during the period of the moratorium on replacement facilities shall be eligible to apply for licensure after June 30, 2008, provided the replacement facility is in an area outside a flood zone in such parish and south of the Company Canal. The buildings and grounds constituting the original nursing facility to be vacated may be offered by donation to the state, political subdivision, or other public entity for uses consistent with public purposes.

(5) The moratorium on additional beds for nursing facilities imposed pursuant to Paragraph (2) of this Subsection shall not apply to a nursing facility that seeks to license additional beds if the following criteria are met:

(a) The nursing facility is a nonprofit corporation formed pursuant to Louisiana law.

(b) The total number of additional beds shall not exceed ten.

(c) The additional beds shall be occupied only by persons who meet one of the following criteria:

(i) Prior to admission to the nursing facility, the person resided in an adult residential care facility, as defined in R.S. 40:2153, owned by the same legal entity which owns the nursing facility.

(ii) Prior to admission to the nursing facility, the person resided in a living unit of a provider of continuing care, as defined in R.S. 51:2173, owned by the same legal entity which owns the nursing facility.

(iii) The person was previously a resident of the same nursing facility.

(d) The additional beds shall not be enrolled and participate in the Title XIX program.

(e) Tentative approval of the plans and specifications for additional beds was received by the division of engineering and architectural services of the Department of Health and Hospitals prior to August 15, 2006.

(f) Construction of the additional beds commenced prior to August 15, 2006.

(g) Construction was completed on or before April 1, 2007.

(6)(a) Notwithstanding any other provision of law to the contrary, the department may license, but not certify for Medicaid participation, up to thirty additional beds for a continuing care retirement community, registered in accordance with R.S. 51:2171 et seq., and found to be in compliance with said statutes on May 3, 2002 by the Louisiana Department of Health and Hospitals during the existence of the moratorium imposed pursuant to Paragraph (2) of this Subsection.

(b) At the discretion of the continuing care retirement community provider, the licensed beds may be used for persons who are not residents of the continuing care retirement community and who are not parties to a continuing care contract for a period of up to five years after the receipt of the certification of occupancy for a registered continuing care retirement community. After that period, the licensed beds may be used only by owners of a continuing care contract with the continuing care retirement community provider.

(7), (8) Repealed by Acts 2011, No. 179, §1.

E.(1) Except as provided in Paragraphs (2), (3), and (4) of this Subsection, the Department of Health and Hospitals shall suspend approval, certification, and enrollment of nursing facility beds which were previously approved to participate in the Title XIX program under a facility need review process, Section 1122 process, or any predecessor needs review process, unless such beds are certified and enrolled in the Title XIX program by December 31, 1997. Such suspension shall be for the length of the moratorium imposed pursuant to Subsection D of this Section.

(2) The suspension shall not apply to existing approvals for replacement of existing nursing facilities, or approvals which are under judicial review, on August 15, 1997. The suspension shall not apply to approvals for alternate use of previously approved beds.

(3) In the case of previously approved but unbuilt nursing facilities or beds, the department shall not suspend approval, certification, and enrollment if construction has actually begun by June 30, 1998, and construction is completed and such facilities or beds are actually certified and enrolled in the Title XIX program by December 31, 1999. In said cases, the department shall suspend approval, certification, and enrollment of previously approved beds not certified and enrolled by December 31, 1999.

(4) In the case of previously approved but unbuilt nursing facilities or beds, if construction has actually begun by June 30, 1998, and construction is not completed and the facilities or beds are not actually certified and enrolled in the Title XIX program by December 31, 1999, the secretary of the Department of Health and Hospitals may authorize the certification and enrollment of the beds by December 31, 2001. However, the extension shall not be granted unless the secretary determines that construction has not been completed due to circumstances beyond the control of the applicant, a written request for an extension was made prior to December 31, 1999, and financing has been approved for the beds. These provisions shall only be applicable in the case of a facility, the primary purpose of which is to replace an existing facility, but also in so doing, enrolling additional beds.

F.(1) Except as provided in Paragraph (2) of this Subsection, the Department of Health and Hospitals shall revoke all approvals for community and group home beds which were previously approved to participate in the Title XIX program under a facility need review process, Section 1122 process, or any predecessor needs review process, unless such beds are certified and enrolled in the Title XIX program by December 31, 1997.

(2) In the case of unbuilt community and group home facilities, the department shall not revoke approvals if construction has actually begun by December 31, 1997, and construction is completed and such facilities or beds are actually certified and enrolled in the Title XIX program by June 30, 1999. In said cases, the department shall revoke all approved beds not certified and enrolled by June 30, 1999.

G. Any intermediate care facility for people with developmental disabilities, which serves children or adults with intellectual disabilities, autism, or behavioral problems, with no less than one hundred fifty and no more than one hundred eighty beds, shall be eligible for the facility need review process as set forth in this Section and in rules and regulations promulgated by the Department of Health and Hospitals as authorized in Subsections A and B of this Section. The exemption shall exist for a maximum of fifty additional beds.

H. In the case of nursing facility beds currently approved, any nursing facility provider may replace any existing beds with adult residential care home beds, either through new construction or through renovation and conversion. Such replacement shall be subject to licensing regulations, but not to additional facility need review process approval, subject to budget neutrality provisions and rules and regulations promulgated by the Department of Health and Hospitals.

I. The Department of Health and Hospitals shall develop and implement policies and procedures to require nursing facilities and ICF/DD providers to notify new residents and their families and guardians of sex offenders living in their facilities upon admission. The notification shall continue for as long as the information is considered a public record. During the annual licensing process, health standards surveyors shall verify providers' compliance with the policy.

J.(1) Notwithstanding any other provision of law to the contrary, the facility need review approval for licensed intermediate care facilities for people with developmental disabilities (ICF/DD) located in an area or areas which have been affected by an executive order or proclamation of emergency or disaster and which were operating at the time the executive order or proclamation was issued under R.S. 29:724 shall remain in effect and shall not be terminated, considered to have expired, or revoked until January 1, 2012. For this exception to apply, the emergency or disaster shall be the sole causal factor in the interruption of the provision of services. This exception shall not apply if any one of the following occurs:

(a) The approval is voluntarily surrendered by the provider.

(b) The provider fails to notify in writing the health standards section of the Department of Health and Hospitals of its intention to avail itself of the continuation of facility need review approval no later than December 31, 2005.

(c) The provider fails to recommence providing services prior to January 1, 2012.

(2) Nothing in this Subsection shall be construed to accomplish either of the following:

(a) To permit a nursing home which has relocated, as the result of an executive order or declaration of emergency or disaster issued in accordance with R.S. 29:724, to relocate such facility outside of the geographic area for which the original facility need review approval was granted.

(b) To permit a nursing home which has relocated, as the result of an executive order or declaration of emergency or disaster issued in accordance with R.S. 29:724, to obviate the provisions of R.S. 40:2116(D)(2).

(3)(a) Notwithstanding any other law to the contrary, any nursing home provider located in a parish with a population between sixty-five thousand and seventy thousand according to the latest federal decennial census, which parish was affected by Hurricane Katrina or Rita, and who ceased operations solely because of the damage occasioned by the events which were the subject of an order or proclamation of emergency or disaster issued pursuant to R.S. 29:724, and whose operations have not been resumed as of July 1, 2008, shall have their pre-storm facility need review approval reinstated for the sole purpose of rebuilding or replacing the facility, upon meeting the following conditions:

(i) The nursing home provider shall submit a reinstatement request to the health standards section of the Department of Health and Hospitals in writing by December 31, 2008.

(ii) The reinstatement request shall state the provider's intent to rebuild the nursing home and resume providing nursing home services in that parish.

(iii) The nursing home provider shall resume operation as a nursing home provider in that parish no later than January 1, 2010.

(iv) The nursing home provider shall submit all fees, costs, and cost reports due and owing to the Department of Health and Hospitals.

(b) The facility need review approval reinstated to the facility shall encompass all rights and responsibilities afforded the facility at the time it ceased providing services as a result of Hurricanes Katrina and Rita.

(c) The provisions of this Subsection shall not apply to a nursing home provider who has voluntarily surrendered its facility need review approval.

K. The department shall adopt a rule to allow a nursing home located in a service area which has less than ninety-three percent occupancy to temporarily convert a number of licensed beds to an alternate use. The beds may be converted for alternate health care use until such time as the average annual occupancy in the service area exceeds ninety-three percent and an adjoining service area exceeds ninety-three percent based on the department's LTC-2 Report and the facility is notified of the same. The facility shall then either re-license the beds as nursing home beds within one year of receipt of the notice from the department, or the beds will be deemed expired. Nothing herein shall be construed to preclude nursing homes from taking beds out of alternate use at any time and using them as licensed beds unless deemed expired. The prohibition contained in Paragraph (D)(2) of this Section shall not apply to certain nursing beds in alternate use. Any nursing home bed in alternate health care use as of August 15, 2006, may be voluntarily taken out of alternate use and re-licensed as a nursing home bed, unless those beds are otherwise deemed expired, revoked, or surrendered.

Acts 1990, No. 300, §1, eff. July 6, 1990; Acts 1995, No. 1236, §1, eff. July 1, 1996; Acts 1997, No. 583, §2, eff. July 3, 1997; Acts 1997, No. 1429, §1; Acts 1999, No. 336, §1; Acts 2000, 1st Ex. Sess., No. 5, §1, eff. April 12, 2000; Acts 2001, No. 336, §1, eff. June 7, 2001; Acts 2003, No. 900, §1; Acts 2003, No. 1191, §2, eff. July 3, 2003; Acts 2004, No. 184, §1; Acts 2005, No. 341, §1; Acts 2005, 1st Ex. Sess., No. 7, §1, eff. Nov. 23, 2005; Acts 2006, No. 163, §2; Acts 2006, No. 433, §1, eff. June 15, 2006; Acts 2006, No. 847, §1; Acts 2007, No. 165, §1, eff. June 27, 2007; Acts 2007, No. 253, §1, eff. July 6, 2007; Acts 2007, No. 378, §1, eff. July 10, 2007; S.C.R. No. 16, 2008 R.S.; Acts 2008, No. 187, §§1, 2, eff. June 13, 2008; Acts 2008, No. 341, §1, eff. June 21, 2008; Acts 2008, No. 393, §1, eff. June 21, 2008; Acts 2008, No. 412, §1, eff. June 21, 2008; Acts 2008, No. 795, §1; Acts 2009, No. 381, §2, eff. July 1, 2010; Acts 2010, No. 278, §1, eff. June 17, 2010; Acts 2011, No. 179, §1; Acts 2014, No. 811, §22, eff. June 23, 2014.