Ohio Administrative Code|Rule 3701-12-23 | Long-term care facilities and beds and bed review criteria; state and county bed need.

                                                
(A) Except as otherwise specifically
		  provided in this rule or in another rule of this chapter, the director shall
		  apply all of the criteria prescribed by this rule when reviewing an application
		  for a certificate of need that relates to an existing or proposed long-term
		  care facility, including an application for:
(1) The establishment,
			 development, or construction of a new long-term care facility;
(2) The replacement of an
			 existing long-term care facility.
(3) The renovation of or
			 addition to a long-term care facility that involves a capital expenditure of
			 two million dollars or more, not including expenditures for equipment,
			 staffing, or operational costs;
(4) An increase in
			 long-term care bed capacity;
(5) A relocation of
			 long-term care beds from one physical facility or site to another, excluding
			 relocation of beds within a long-term care facility or among buildings of a
			 long-term care facility at the same site;
(6) The expenditure of
			 more than one hundred ten per cent of the maximum expenditure specified in a
			 certificate of need concerning long-term care beds.
(B) Contiguous county relocations.
		  Applications for certificate of need that propose an increase in beds that is
		  attributable to a relocation of existing beds from an existing long-term care
		  facility as defined in division (A) of section 3702.594 of the Revised Code to
		  another existing long-term care facility located within a county that is
		  contiguous to the county from which the beds are to be relocated that meet all
		  of the following conditions may be submitted at any time:
(1) Not more than a total
			 of thirty long-term care facility beds are proposed for relocation to the same
			 existing long-term care facility regardless of the number of applications
			 filed. Once the cumulative total of beds relocated under section 3702.594 of
			 the Revised Code to a long-term care facility reaches thirty, no further
			 applications under this paragraph will be accepted until a period of five years
			 has elapsed since the implementation of the most recent reviewable activity
			 implemented under section 3702.594 of the Revised Code has expired;
			 and
(2) After the proposed
			 relocation, there will be existing nursing home long-term care facility beds
			 remaining in the county from which the beds are relocated.
(C) The director shall not grant a
		  certificate of need under this rule unless the application contains
		  documentation that the project will comply with the following requirements as
		  applicable:
(1) For homes required to
			 be licensed under Chapter 3721. of the Revised Code, the requirements for
			 licensure under Chapter 3721. of the Revised Code and Chapter 3701-17 of the
			 Administrative Code;
(2) For hospital
			 long-term care beds, beds in county homes as defined in section 5155.31 of the
			 Revised Code that are long-term care facilities as defined in this chapter, and
			 long-term care beds in a long-term care facility, the requirements for
			 certification as a nursing facility or skilled nursing facility under Title
			 XVIII or XIX of the Social Security Act. 49 Stat. 620 (1935), 42 U.S.C. 301, as
			 amended (1981).
(D) The director shall consider the
		  long-term care bed capacity of proposed projects for the establishment,
		  construction, or development of new long-term care facilities, including
		  replacement facilities. The director may consider the following
		  criteria:
(1) Whether the proposed
			 facility's size is essential to serve a special health care need that
			 otherwise will not be served, or will serve a special health care need in
			 accordance with current, evidence-based standards of care;
(2) Whether the proposed
			 facility is the only feasible alternative for cost-effective correction of
			 physical plant deficiencies; or
(3) Whether the proposed
			 facility is part of a continuing care retirement or life care community and the
			 application demonstrates the following:
(a) The applicant will be contractually obligated to
				provide long-term care to current residents of the continuing care retirement
				or life care community; and
(b) The continuing care retirement or life care community
				currently provides and will continue to provide preference in admission to
				contractual residents of the community.
(E) In reviewing a certificate of need
		  application under this rule, the director may examine and consider, in
		  accordance with this paragraph, any state or federal records relating to the
		  licensure under Chapter 3721. of the Revised Code or, if applicable, the
		  participation as a provider under Title XVIII or XIX of the Social Security
		  Act, 49 Stat. 620 (1935), 42 U.S.C. 301, as amended (1981), of any long-term
		  care facilities owned, operated, or managed by the applicant, the owner or the
		  operator of the long-term care facility to which the application relates, or by
		  any principal participant, as defined in paragraph (V) of rule 3701-12-01 of
		  the Administrative Code, in an entity which is or will be the applicant, owner,
		  or operator. The application shall contain a list of all relevant long-term
		  care facilities with dates of ownership, operation, or management. The director
		  also may consider records pertaining to ownership or operation by these persons
		  of long-term care facilities in other states.
(1) The director shall
			 deny the certificate of need if the provisions of division (B) of section
			 3702.59 of the Revised Code apply to an application for the addition of
			 long-term care beds to an existing long-term care facility or an application
			 for the development of a new long-term care facility.
(2) The director also may
			 deny the certificate of need if the applicant, owner, operator, or any
			 principal participant has been the subject of a final determination of medicare
			 or medicaid fraud or abuse.
(F) Comparative review applications. In
		  determining which applications should receive preference in a comparative
		  review process, the director shall consider, in conjunction with all other
		  applicable criteria prescribed by this chapter, all of the following as
		  weighted priorities. Applications that meet all applicable criteria for
		  certificate of need approval and that receive the most points under this
		  paragraph will be given preference. When applications that meet all applicable
		  criteria for certificate of need approval and that are under a comparative
		  review process for the same county receive an equal number of points under this
		  paragraph, the director shall give preference to the application that
		  demonstrates the greatest need for the reviewable activity. The director may
		  approve all or part of a proposed activity.
(1) Whether the project,
			 as described in the application, is or will be part of a continuing care
			 retirement community (CCRC) that complies with paragraph (J)(3) of this rule
			 upon completion of the reviewable activity. This criterion is weighted with
			 four points for a CCRC with at least a four to one ratio of alternative beds to
			 long-term care beds, three points with at least a three to one ratio, two
			 points with at least a two to one ratio and one point with at least a one to
			 one ratio. No points will be given if the ratio is less than one to
			 one.
(a) The alternative beds shall be available to the
				residents and potential residents of the long-term care facility.
(b) Appropriate agreements shall exist between the
				long-term care facility and the alternative facility for transfer of
				residents.
(c) The applicant shall certify that the capital
				expenditure for the proposed alternative facility will be obligated, within the
				meaning of paragraph (A)(1)(b) of rule 3701-12-18 of the Administrative Code,
				at the same time as the capital expenditure for the portion of the project
				involving the long-term care facility.
(d) The applicant shall certify that no application will be
				filed by any person for a certificate of need for conversion of the alternative
				beds to long-term care beds for at least two years after the proposed
				alternative beds are occupied by residents.
(e) The application shall contain a certification that if
				for any reason the alternatives to inpatient long-term care cannot be developed
				or provided, development of the portion of the project involving the long-term
				care facility will be discontinued and the director will be notified
				immediately.
(f) The application shall contain documentation of how the
				long-term care facility and the alternative beds proposed will be integrated
				into the existing and projected community system for caring for elderly and
				individuals with disabilities. This documentation shall include at
				least:
(i) A thorough inventory
				  of existing and projected alternative beds to inpatient long-term care within
				  the county;
(ii) A description of the
				  planning process leading to selection of the alternative beds proposed in the
				  application, including discussions with appropriate community groups such as
				  local aging agencies regarding the community's needs for alternative
				  services; and
(iii) An analysis of the
				  need in the community for the proposed alternative beds, taking into account
				  the needs of the target population, the existing and projected alternative
				  services and beds in the community, the ability of the target population to
				  assume the cost for an alternative bed, and the expected effect of the
				  alternative beds on utilization of long-term care facilities. The application
				  also shall contain a demonstration of the economic viability of the proposed
				  alternative beds.
(2) Whether the beds will
			 serve a medically underserved population such as low-income individuals,
			 individuals with disabilities, or individuals who are members of racial or
			 ethnic minority groups.
(a) If the project in which the beds will be included will
				serve low-income individuals or individuals who are members of racial or ethnic
				minority groups, this criterion is weighted with one point for each medically
				underserved population to be served by the project that is documented as being
				greater than or equal to twenty-five per cent of the population of the defined
				service area.
(b) If the project in which the beds will be included will
				primarily serve individuals with special health care needs such as traumatic or
				acquired brain injury, cerebral palsy, spinal cord injury or disability,
				multiple sclerosis, acquired immune deficiency syndrome or other similar
				conditions. This criterion is weighted three points.
(3) Whether the project
			 in which the beds will be included will provide alternatives to institutional
			 care, such as adult day-care, home health care, respite or hospice care, mobile
			 meals, residential care, independent living, or congregate living services.
			 This criterion is weighted with two points. 
(4) Whether the long-term
			 care facility's owner or operator will participate in medicaid waiver
			 programs for alternatives to institutional care. This criterion is weighted
			 with two points.
(5) Whether the project
			 in which the beds will be included will reduce alternatives to institutional
			 care by converting residential care beds or other alternative care beds to
			 long-term care beds. This criterion is weighted with negative two
			 points.
(6) Whether the long-term
			 care facility in which the beds will be placed has positive resident and family
			 satisfaction surveys. This criterion is weighted with one point.
(7) Whether the long-term
			 care facility in which the beds will be placed has fewer than fifty long-term
			 care beds. This criterion is weighted with one point.
(8) Whether the long-term
			 care facility in which the beds will be placed is located within the service
			 area of a hospital and is or will be designed to accept patients for
			 rehabilitation after an in-patient hospital stay. This criterion is weighted
			 with two points.
(9) Whether the long-term
			 care facility in which the beds will be placed is or proposes to become a nurse
			 aide training and testing site. This criterion is weighted with one
			 point.
(10) The rating, under
			 the centers for medicare and medicaid services' five star nursing home
			 quality rating system, of the long-term care facility in which the beds will be
			 placed. This criterion is weighted with one point for a four star rating and
			 two points for a five star rating at the time the application is declared
			 complete.
(G) Applications submitted under section
		  3702.593 of the Revised Code. The director shall:
(1) Limit the number of
			 beds approved for a county to no more than the number of beds determined to be
			 needed in the receiving county;
(2) Maintain, after the
			 relocation, the number of beds in the source facility's service area at
			 least equal to the state bed need rate. For purposes of this paragraph, a
			 facility's service area shall be either of the following:
(a) The census tract in which the facility is located, if
				the facility is located in an area designated by the United States secretary of
				health and human services as a health professional shortage area under the
				"Public Health Service Act," 88 Stat. 682 (1944), 42 U.S.C. 254 (e),
				as amended;
(b) The area that is within a fifteen mile radius of the
				facility's location, if the facility is not located in a health
				professional shortage area;
(i) For the purpose of
				  this rule, "fifteen mile radius" means the circular area extending
				  fifteen and zero tenths of a mile from the facilitys main
				  entrance;
(ii) The fifteen mile
				  radius from the facility's main entrance shall be determined utilizing
				  global positioning system ("GPS") data.
(3) Require the operator
			 of the long-term care facility from which beds were relocated to reduce the
			 number of beds operated in the facility by a number of beds equal to at least
			 ten per cent of the number of beds relocated. If these beds are in a home
			 licensed under Chapter 3721. of the Revised Code, the long-term care facility
			 shall have the beds removed from the license. If the beds are in a facility
			 that is certified as a skilled nursing facility or nursing facility under Title
			 XVIII or XIX of the "Social Security Act," the facility shall
			 surrender the certification of those beds. If the beds are registered as
			 long-term care beds under section 3701.07 of the Revised Code, the long-term
			 care facility shall surrender the registration of these beds. In calculating
			 the number of beds to be surrendered to the director, the number of beds shall
			 be rounded up to the nearest whole number.
(a) This reduction shall be completed not later than the
				implementation date of the project for which the beds were
				relocated.
(b) If the director has not received evidence from the
				facility from which the beds are relocated, of the reduction of the required
				number of beds on or before the date of the completion of the project, the
				director shall remove those beds from the facility license, certification, or
				registration.
(H) When a certificate of need
		  application is approved during the four year review process, upon completion of
		  the project for which the certificate of need was granted a number of beds
		  equal to the number of beds relocated shall cease to be operated in the
		  long-term care facility from which the beds were relocated, except that the
		  beds may continue to be operated for not more than fifteen days to allow
		  relocation of residents to the facility to which the beds have been relocated.
		  Effective fifteen days after the beds are relocated:
(1) If the relocated beds
			 are in a home licensed under Chapter 3721. of the Revised Code, the
			 facilitys license will be automatically reduced by the number of beds
			 relocated;
(2) If the beds are in a
			 facility that is certified as a skilled nursing facility or nursing facility
			 under Title XVII or XIX of the "Social Security Act," the certificate
			 shall be surrendered; or 
(3) If the beds are
			 registered under section 3701.07 of the Revised Code as long-term care beds,
			 the director shall remove those beds from registration.
(I) For applications that propose an
		  increase in beds that is attributable to a replacement or relocation of
		  existing beds from an existing long-term care facility within the same county,
		  the director shall authorize no additional beds beyond those being replaced or
		  relocated.
(J) The director shall utilize the
		  following formula when determining the number of long-term care beds needed for
		  each county for the review process prescribed in division (B) of section
		  3702.593 of the Revised Code: 
(1) State bed need rate
			 calculation: 
Total statewide inpatient days  total
			 bed days available of these facilities = statewide long-term care bed occupancy
			 rate 
Statewide long-term care bed occupancy rate x
			 total statewide long-term care bed supply = total statewide number of beds
			 occupied
Total statewide number of beds occupied
			  ninety per cent = total statewide number of beds needed
Total statewide number of beds needed 
			 projected statewide population aged sixty-five and older) x one thousand =
			 state bed need rate 
For purposes of this rule: 
Total statewide inpatient days means: the sum
			 of inpatient days for all facilities identified by facility type as
			 "Nursing Facility" that filed a medicaid cost report for the calendar
			 year that is two years prior to the year in which a bed need is published for
			 the first review process and the first phase of a four year review
			 process.
Total bed days available of these facilities
			 means: the sum of the long-term care bed capacity for each nursing facility
			 that is multiplied by the number of calendar days in the reporting year. The
			 reporting year for each facility will include only the number of calendar days
			 that the facility was authorized to provide care and was providing
			 services.
Total statewide long-term care bed supply
			 means: utilize the most recent long-term care bed supply per county that is
			 determined by the director. The long-term care bed supply per county shall
			 include all of the following:
(a) Licensed nursing home beds; 
(b) Beds certified as nursing facility or skilled nursing
				facility under Title XVIII or XIX of the Social Security Act. 49 Stat. 620
				(1935), 42 U.S.C. 301, as amended (1981); 
(c) Beds in any portion of a hospital that are properly
				registered under section 3701.07 of the Revised Code as long-term care beds,
				excepting beds recategorized pursuant to section 3702.521 of the Revised Code;
				
(d) Beds in a county home or county nursing home as defined
				in section 5155.31 of the Revised Code that were timely and properly reported
				as long-term care beds pursuant to section 5155.38 of the Revised Code; and
				
(e) Beds held as "approved" beds under an
				approved certificate of need. 
Projected statewide population aged
				sixty-five and over means: based on the Ohio department of development's
				projections for the year that is at least five years after the year in which a
				bed need is published for the four year review process.
(2) County bed need
			 calculation;
Projected county population aged sixty-five and
			 older  one thousand) x state bed need rate = number of beds needed for
			 the county
Number of beds needed for the county - bed
			 supply for the county = bed need or excess for the county
For purposes of this rule:
Projected county population aged sixty-five and
			 older means: the projections for each county that were used in determining the
			 projected statewide population aged sixty-five and over.
Bed supply for the county means: the bed supply
			 for each county that was used in determining the total statewide long-term care
			 bed supply.
(K) If the formula projects a bed need
		  for a county with an average annual occupancy rate of less than eighty-five per
		  cent, the director shall find that there is no bed need. 
(L) If the formula projects a bed excess
		  for a county with an average annual occupancy rate of greater than ninety per
		  cent, the director may approve an increase in beds equal to up to ten per cent
		  of the long-term care bed supply for that county. 
(M) Except as provided in paragraph (L)
		  of this rule, if the formula projects a bed excess of one hundred beds or less
		  for a county, the director shall find that there is no excess or, if the
		  formula projects a bed excess of more than one hundred beds, the director shall
		  find that there is a bed excess for the projected number of beds less one
		  hundred. 
(N) Not later than October 1, 2023 and
		  every four years thereafter, the director shall publish on the department of
		  health's website the following: 
(1) Each county with a
			 bed need and the number of beds needed for the county; and 
(2) Each county with a
			 bed excess and the number of excess beds for the county.


Last updated April 8, 2021 at 12:08 PM