§ 144A.071 — MORATORIUM ON CERTIFICATION OF NURSING HOME BEDS

Minnesota § 144A.071

• Jurisdiction: Minnesota
• Part: HEALTH
• Ch. 144A: NURSING HOMES AND HOME CARE

Text

Subdivision 1.Findings.
The legislature declares that a moratorium on the licensure and medical assistance certification of new nursing home beds and construction projects that exceed $1,000,000 is necessary to control nursing home expenditure growth and enable the state to meet the needs of its elderly by providing high quality services in the most appropriate manner along a continuum of care.

Subd. 1a.Definitions.
For purposes of sections144A.071to144A.073, the following terms have the meanings given them:
(a) "Attached fixtures" has the meaning given in Minnesota Rules, part9549.0020, subpart 6.
(b) "Building" has the meaning given in section256R.261, subdivision 4.
(c) "Capital assets" has the meaning given in section256R.02, subdivision 8.
(d) "Commenced construction" means that all of the following conditions were met: the final working drawings and specifications were approved by the commissioner of health; the construction contracts were let; a timely construction schedule was developed, stipulating dates for beginning, achieving various stages, and completing construction; and all zoning and building permits were applied for.
(e) "Completion date" means the date on which clearance for the construction project is issued, or if a clearance for the construction project is not required, the date on which the construction project assets are available for facility use.
(f) "Construction" means any erection, building, alteration, reconstruction, modernization, or improvement necessary to comply with the nursing home licensure rules.
(g) "Construction project" means:
(1) a capital asset addition to, or replacement of a nursing home or certified boarding care home that results in new space or the remodeling of or renovations to existing facility space; and
(2) the remodeling or renovation of existing facility space the use of which is modified as a result of the project described in clause (1). This existing space and the project described in clause (1) must be used for the functions as designated on the construction plans on completion of the project described in clause (1) for a period of not less than 24 months.
(h) "Depreciation guidelines" has the meaning given in section256R.261, subdivision 11.
(i) "New licensed" or "new certified beds" means:
(1) newly constructed beds in a facility or the construction of a new facility that would increase the total number of licensed nursing home beds or certified boarding care or nursing home beds in the state; or
(2) newly licensed nursing home beds or newly certified boarding care or nursing home beds that result from remodeling of the facility that involves relocation of beds but does not result in an increase in the total number of beds, except when the project involves the upgrade of boarding care beds to nursing home beds, as defined in section144A.073, subdivision 1. "Remodeling" includes any of the type of conversion, renovation, replacement, or upgrading projects as defined in section144A.073, subdivision 1.

Subd. 2.Moratorium.
(a) The commissioner of health, in coordination with the commissioner of human services, shall deny each request for new licensed or certified nursing home or certified boarding care beds except as provided in subdivision 3 or 4a, or section144A.073. "Certified bed" means a nursing home bed or a boarding care bed certified by the commissioner of health for the purposes of the medical assistance program, under United States Code, title 42, sections 1396 et seq. Certified beds in facilities which do not allow medical assistance intake shall be deemed to be decertified for purposes of this section only.
(b) The commissioner of human services, in coordination with the commissioner of health, shall deny any request to issue a license under section252.28and chapter 245A to a nursing home or boarding care home, if that license would result in an increase in the medical assistance reimbursement amount.
(c) In addition, the commissioner of health must not approve any construction project whose cost exceeds $1,000,000, unless:
(1) any construction costs exceeding $1,000,000 are not added to the facility's appraised value and are not included in the facility's payment rate for reimbursement under the medical assistance program; or
(2) the project:
(i) has been approved through the process described in section144A.073;
(ii) meets an exception in subdivision 3 or 4a;
(iii) is necessary to correct violations of state or federal law issued by the commissioner of health;
(iv) is necessary to repair or replace a portion of the facility that was damaged by fire, lightning, ground shifts, or other such hazards, including environmental hazards, provided that the provisions of subdivision 4a, clause (a), are met; or
(v) is being proposed by a licensed nursing facility that is not certified to participate in the medical assistance program and will not result in new licensed or certified beds.
(d) Prior to the final plan approval of any construction project, the commissioners of health and human services shall be provided with an itemized cost estimate for the project construction costs. If a construction project is anticipated to be completed in phases, the total estimated cost of all phases of the project shall be submitted to the commissioners and shall be considered as one construction project. Once the construction project is completed and prior to the final clearance by the commissioners, the total project construction costs for the construction project shall be submitted to the commissioners. If the final project construction cost exceeds the dollar threshold in this subdivision, the commissioner of human services shall not recognize any of the project construction costs or the related financing costs in excess of this threshold in establishing the facility's property-related payment rate.
(e) The dollar thresholds for construction projects are as follows: for construction projects other than those authorized in paragraph (c), clause (2), items (i) to (v), the dollar threshold is $1,000,000. For projects authorized after July 1, 1993, under paragraph (c), clause (2), item (i), the dollar threshold is the cost estimate submitted with a proposal for an exception under section144A.073, plus inflation as calculated according to section256B.431, subdivision 3f, paragraph (a). For projects authorized under paragraph (c), clause (2), items (ii) to (iv), the dollar threshold is the itemized estimate project construction costs submitted to the commissioner of health at the time of final plan approval, plus inflation as calculated according to section256B.431, subdivision 3f, paragraph (a).
(f) The commissioner of health shall adopt rules to implement this section or to amend the emergency rules for granting exceptions to the moratorium on nursing homes under section144A.073.
(g) All construction projects approved through section144A.073, subdivision 3, after March 1, 2020, are subject to the fair rental value property rate as described in section256R.26.

Subd. 3.Exceptions authorizing increase in beds; hardship areas.
(a) The commissioner of health, in coordination with the commissioner of human services, may approve the addition of new licensed and Medicare and Medicaid certified nursing home beds, using the criteria and process set forth in this subdivision.
(b) The commissioner, in cooperation with the commissioner of human services, shall consider the following criteria when determining that an area of the state is a hardship area with regard to access to nursing facility services:
(1) a low number of beds per thousand in a specified area using as a standard the beds per thousand people age 65 and older, in five year age groups, using data from the most recent census and population projections, weighted by each group's most recent nursing home utilization, of the county at the 20th percentile, as determined by the commissioner of human services;
(2) a high level of out-migration for nursing facility services associated with a described area from the county or counties of residence to other Minnesota counties, as determined by the commissioner of human services, using as a standard an amount greater than the out-migration of the county ranked at the 50th percentile;
(3) an adequate level of availability of noninstitutional long-term care services measured as public spending for home and community-based long-term care services per individual age 65 and older, in five year age groups, using data from the most recent census and population projections, weighted by each group's most recent nursing home utilization, as determined by the commissioner of human services using as a standard an amount greater than the 50th percentile of counties;
(4) there must be a declaration of hardship resulting from insufficient access to nursing home beds by local county agencies and area agencies on aging; and
(5) other factors that may demonstrate the need to add new nursing facility beds.
(c) On August 15 of odd-numbered years, the commissioner, in cooperation with the commissioner of human services, may publish in the State Register a request for information in which interested parties, using the data provided under section144A.351, along with any other relevant data, demonstrate that a specified area is a hardship area with regard to access to nursing facility services. For a response to be considered, the commissioner must receive it by November 15. The commissioner shall make responses to the request for information available to the public and shall allow 30 days for comment. The commissioner shall review responses and comments and determine if any areas of the state are to be declared hardship areas.
(d) For each designated hardship area determined in paragraph (c), the commissioner shall publish a request for proposals in accordance with section144A.073and Minnesota Rules, parts4655.1070to4655.1098. The request for proposals must be published in the State Register by March 15 following receipt of responses to the request for information. The request for proposals must specify the number of new beds which may be added in the designated hardship area, which must not exceed the number which, if added to the existing number of beds in the area, including beds in layaway status, would have prevented it from being determined to be a hardship area under paragraph (b), clause (1). Beginning July 1, 2011, the number of new beds approved must not exceed 200 beds statewide per biennium. After June 30, 2019, the number of new beds that may be approved in a biennium must not exceed 300 statewide. For a proposal to be considered, the commissioner must receive it within six months of the publication of the request for proposals. The commissioner shall review responses to the request for proposals and shall approve or disapprove each proposal by the following July 15, in accordance with section144A.073and Minnesota Rules, parts4655.1070to4655.1098. The commissioner shall base approvals or disapprovals on a comparison and ranking of proposals using only the criteria in subdivision 4a. Approval of a proposal expires after 18 months unless the facility has added the new beds using existing space, subject to approval by the commissioner, or has commenced construction as defined in subdivision 1a, paragraph (d). If, after the approved beds have been added, fewer than 50 percent of the beds in a facility are newly licensed, the operating payment rates previously in effect shall remain. If, after the approved beds have been added, 50 percent or more of the beds in a facility are newly licensed, operating and external fixed payment rates shall be determined according to section256R.21, subdivision 5. Property payment rates for facilities with beds added under this subdivision must be determined under section256R.26.
(e) The commissioner may:
(1) certify or license new beds in a new facility that is to be operated by the commissioner of veterans affairs or when the costs of constructing and operating the new beds are to be reimbursed by the commissioner of veterans affairs or the United States Veterans Administration; and
(2) license or certify beds in a facility that has been involuntarily delicensed or decertified for participation in the medical assistance program, provided that an application for relicensure or recertification is submitted to the commissioner by an organization that is not a related organization as defined in section256R.02, subdivision 43, to the prior licensee within 120 days after delicensure or decertification.

Subd. 3a.
[Repealed,1992 c 513 art 7 s 135]

Subd. 4.Monitoring exceptions for replacement beds.
The commissioner of health, in coordination with the commissioner of human services, shall implement mechanisms to monitor and analyze the effect of the moratorium in the different geographic areas of the state. The commissioner of health shall submit to the legislature, no later than January 15, 1984, and annually thereafter, an assessment of the impact of the moratorium by geographic area, with particular attention to service deficits or problems and a corrective action plan.

Subd. 4a.Exceptions for replacement beds.
It is in the best interest of the state to ensure that nursing homes and boarding care homes continue to meet the physical plant licensing and certification requirements by permitting certain construction projects. Facilities should be maintained in condition to satisfy the physical and emotional needs of residents while allowing the state to maintain control over nursing home expenditure growth.
The commissioner of health in coordination with the commissioner of human services, may approve the renovation, replacement, upgrading, or relocation of a nursing home or boarding care home, under the following conditions:
(a) to license or certify beds in a new facility constructed to replace a facility or to make repairs in an existing facility that was destroyed or damaged after June 30, 1987, by fire, lightning, or other hazard provided:
(i) destruction was not caused by the intentional act of or at the direction of a controlling person of the facility;
(ii) at the time the facility was destroyed or damaged the controlling persons of the facility maintained insurance coverage for the type of hazard that occurred in an amount that a reasonable person would conclude was adequate;
(iii) the net proceeds from an insurance settlement for the damages caused by the hazard are applied to the cost of the new facility or repairs;
(iv) the number of licensed and certified beds in the new facility does not exceed the number of licensed and certified beds in the destroyed facility; and
(v) the commissioner determines that the replacement beds are needed to prevent an inadequate supply of beds.
Project construction costs incurred for repairs authorized under this clause shall not be considered in the dollar threshold amount defined in subdivision 2;
(b) to license or certify beds that are moved from one location to another within a nursing home facility, provided the total costs of remodeling performed in conjunction with the relocation of beds does not exceed $1,000,000;
(c) to license or certify beds in a project recommended for approval under section144A.073;
(d) to license or certify beds that are moved from an existing state nursing home to a different state facility, provided there is no net increase in the number of state nursing home beds;
(e) to certify and license as nursing home beds boarding care beds in a certified boarding care facility if the beds meet the standards for nursing home licensure, or in a facility that was granted an exception to the moratorium under section144A.073, and if the cost of any remodeling of the facility does not exceed $1,000,000. If boarding care beds are licensed as nursing home beds, the number of boarding care beds in the facility must not increase beyond the number remaining at the time of the upgrade in licensure. The provisions contained in section144A.073regarding the upgrading of the facilities do not apply to facilities that satisfy these requirements;
(f) to license and certify nursing home beds to replace currently licensed and certified boarding care beds which may be located either in a remodeled or renovated boarding care or nursing home facility or in a remodeled, renovated, newly constructed, or replacement nursing home facility within the identifiable complex of health care facilities in which the currently licensed boarding care beds are presently located, provided that the number of boarding care beds in the facility or complex are decreased by the number to be licensed as nursing home beds and further provided that, if the total costs of new construction, replacement, remodeling, or renovation exceed ten percent of the appraised value of the facility or $200,000, whichever is less, the facility makes a written commitment to the commissioner of human services that it will not seek to receive an increase in its property-related payment rate by reason of the new construction, replacement, remodeling, or renovation. The provisions contained in section144A.073regarding the upgrading of facilities do not apply to facilities that satisfy these requirements;
(g) to license as a nursing home and certify as a nursing facility a facility that is licensed as a boarding care facility but not certified under the medical assistance program, but only if the commissioner of human services certifies to the commissioner of health that licensing the facility as a nursing home and certifying the facility as a nursing facility will result in a net annual savings to the state general fund of $200,000 or more;
(h) to license or certify beds in renovation, replacement, or upgrading projects as defined in section144A.073, subdivision 1, so long as the cumulative total costs of the facility's remodeling projects do not exceed $1,000,000;
(i) to allow a facility that on April 16, 1993, was a 368-bed licensed and certified nursing facility located in Minneapolis to layaway, upon 30 days prior written notice to the commissioner, up to 30 of the facility's licensed and certified beds by converting three-bed wards to single or double occupancy. Beds on layaway status shall have the same status as voluntarily delicensed and decertified beds except that beds on layaway status remain subject to the surcharge in section256.9657, remain subject to the license application and renewal fees under section144A.07and shall be subject to a $100 per bed reactivation fee;
(j) to allow 16 licensed and certified beds located on July 1, 1994, in a 142-bed nursing home and 21-bed boarding care home facility in Minneapolis, notwithstanding the licensure and certification after July 1, 1995, of the Minneapolis facility as a 147-bed nursing home facility after completion of a construction project approved in 1993 under section144A.073, to be laid away upon 30 days' prior written notice to the commissioner. Beds on layaway status shall have the same status as voluntarily delicensed or decertified beds except that they shall remain subject to the surcharge in section256.9657;
(k) to license and certify four beds in a 16-bed certified boarding care home in Minneapolis to replace beds that were voluntarily delicensed and decertified on or before March 31, 1992. The licensure and certification is conditional upon the facility periodically assessing and adjusting its resident mix and other factors which may contribute to a potential institution for mental disease declaration. The commissioner of human services shall retain the authority to audit the facility at any time and shall require the facility to comply with any requirements necessary to prevent an institution for mental disease declaration, including delicensure and decertification of beds, if necessary;
(l) to license and certify beds in a facility that has undergone replacement or remodeling as part of a planned closure under section256R.40; or
(m) to license or certify beds under the provisions previously coded as Minnesota Statutes 2024, section144A.071, subdivision 4a, paragraphs (f), (i) to (k), (m) to (bb), and (dd) to (ii).

Subd. 4b.Licensed beds on layaway status.
A licensed and certified nursing facility may lay away, upon prior written notice to the commissioner of health, licensed and certified beds. A nursing facility may not discharge a resident in order to lay away a bed. Notice to the commissioner shall be given 60 days prior to the effective date of the layaway. Beds on layaway shall have the same status as voluntarily delicensed and decertified beds and shall not be subject to license fees and license surcharge fees. In addition, beds on layaway may be removed from layaway at any time on or after six months after the effective date of layaway in the facility of origin, with a 60-day notice to the commissioner. A nursing facility that removes beds from layaway may not place beds on layaway status for six months after the effective date of the removal from layaway. The commissioner may approve the immediate removal of beds from layaway if necessary to provide access to those nursing home beds to residents relocated from other nursing homes due to emergency situations or closure. In the event approval is granted, the six-month restriction on placing beds on layaway after a removal of beds from layaway shall not apply. Beds may remain on layaway for up to ten years. The commissioner may approve placing and removing beds on layaway at any time during renovation or construction related to a moratorium project approved under this section or section144A.073. Nursing facilities are not required to comply with any licensure or certification requirements for beds on layaway status.

Subd. 4c.
MS 2024 [Repealed,2025 c 38 art 1 s 31]

Subd. 4d.Consolidation of nursing facilities.
(a) The commissioner of health, in consultation with the commissioner of human services, may approve a request for net savings from a consolidation of nursing facilities to be applied to reduce the costs of a moratorium exception project application under section144A.073, subdivision 2. For purposes of this subdivision, "consolidation" means the closure of one or more facilities and the upgrading of the physical plant of the remaining nursing facility or facilities.
(b) For purposes of calculating the net savings, the commissioner shall consider clauses (1) to (6):
(1) the annual savings from estimated medical assistance payments from the net number of beds closed taking into consideration only beds that are in active service on the date of the request and that have been in active service for at least three years;
(2) the estimated annual cost of increased case load of individuals receiving services under the elderly waiver;
(3) the estimated annual cost of elderly waiver recipients receiving support under housing support under chapter 256I;
(4) the estimated annual cost of increased case load of individuals receiving services under the alternative care program;
(5) the annual loss of license surcharge payments on closed beds; and
(6) the savings from not providing a rate adjustment from submission of renovation costs that would otherwise be eligible as threshold projects under section256B.434, subdivision 4f.
(c) For purposes of calculating net savings in paragraph (b), the average occupancy percentages will be those on the facility's or facilities' most recent nursing facility statistical and cost report filed before the plan of closure is submitted, and the average payment rates shall be calculated based on the approved payment rates in effect at the time the consolidation request is submitted.
(d) The county or counties in which a facility or facilities are closed under this subdivision shall not be eligible for designation as a hardship area under subdivision 3 for five years from the date of the approval of the proposed consolidation. The applicant shall notify the county of this limitation and the county shall acknowledge this in a letter of support.
(e) Sixty-five percent of the projected net savings calculated in paragraph (b) must be applied to the moratorium cost of the project and the remainder must be added to the moratorium funding under section144A.073, subdivision 11.
(f) Consolidation project applications not approved by the commissioner prior to March 1, 2020, are subject to the moratorium process under section144A.073, subdivision 2.

Subd. 5.
[Repealed,1Sp2003 c 14 art 2 s 57]

Subd. 5a.Cost estimate of a moratorium exception project.
For the purposes of this section and section144A.073, the cost estimate of a moratorium exception project shall include the effects of the proposed project on the costs of the state subsidy for community-based services, nursing services, and housing in institutional and noninstitutional settings. The commissioner of health, in cooperation with the commissioner of human services, shall define the method for estimating these costs in the permanent rule implementing section144A.073. The commissioner of human services shall prepare an estimate of the property payment rate to be established upon completion of the project and the total state annual long-term costs of each moratorium exception proposal. The property payment rate estimate shall be based upon the estimated costs and total building valuation to be used in the total property payment rate calculation under section256R.26. For the purposes of determining the actual total property payment rate under section256R.26upon completion of the project, the final building valuation is the lesser of the limited depreciated replacement cost as determined under section256R.26, subdivision 3, following a physical building appraisal or 105 percent of the estimated total building valuation from the moratorium application.

Subd. 6.Property-related payment rates of new beds.
The property-related payment rates of nursing home or boarding care home beds certified or recertified under subdivision 3 or 4a, shall be adjusted according to Minnesota nursing facility reimbursement laws and rules unless the facility has made a commitment in writing to the commissioner of human services not to seek adjustments to these rates due to property-related expenses incurred as a result of the certification or recertification. Any licensure or certification action authorized under repealed statutes which were approved by the commissioner of health prior to July 1, 1993, shall remain in effect. Any conditions pertaining to property rate reimbursement covered by these repealed statutes prior to July 1, 1993, remain in effect.

Subd. 7.Submission of cost information.
Before approval of final construction plans for a nursing home or a certified boarding care home construction project, the licensee shall submit to the commissioner of health an itemized statement of the project construction cost estimates.
If the construction project includes a capital asset addition, replacement, remodeling, or renovation of space such as a hospital, apartment, or shared or common areas, the facility must submit to the commissioner an allocation of capital asset costs, soft costs, and debt information prepared according to Minnesota Rules, chapter 9549.
Project construction cost estimates must be prepared by a contractor or architect and other licensed participants in the development of the project.

Subd. 8.Final approval.
Before conducting the final inspection of the construction project required by Minnesota Rules, part4660.0100, and issuing final clearances for use, the licensee shall provide to the commissioner of health the total project construction costs of the construction project. If total costs are not available, the most recent cost figures shall be provided. Final cost figures shall be submitted to the commissioner when available. The commissioner shall provide a copy of this information to the commissioner of human services.

Legislative History

1983 c 199 s 1;1983 c 289 s 115subd 1;1984 c 654 art 5 s 58;1984 c 655 art 1 s 28;1Sp1985 c 3 s 10-12;1987 c 186 s 15;1987 c 403 art 4 s 3;1Sp1987 c 4 art 2 s 1;1988 c 689 art 2 s 36;1989 c 209 art 2 s 1;1989 c 282 art 3 s 11;1990 c 472 s 1;1990 c 612 s 6;1991 c 93 s 1;1991 c 292 art 4 s 1,2; art 7 s 25 subd 1,3;1992 c 513 art 7 s 2,3;1993 c 4 s 22;1Sp1993 c 1 art 5 s 2;1994 c 625 art 8 s 46;1995 c 207 art 7 s 9-12;1995 c 263 s 2;1996 c 305 art 2 s 28;1996 c 451 art 3 s 1,2;1997 c 105 s 1;1997 c 203 art 3 s 1,2,15;1998 c 407 art 3 s 2;2000 c 449 s 16;2000 c 488 art 9 s 2,;1Sp2001 c 9 art 5 s 3-6;2002 c 240 s 1;2002 c 277 s 32;2002 c 375 art 2 s 1;2002 c 379 art 1 s 113;2003 c 16 s 1;1Sp2003 c 14 art 2 s 9;2004 c 218 s 1;2005 c 56 s 1;2005 c 68 art 1 s 1;2006 c 282 art 20 s 3-5;2008 c 285 s 1;2010 c 329 art 1 s 1;2010 c 352 art 1 s 2;2011 c 22 art 1 s 2,3; art 2 s 1;2012 c 216 art 9 s 1,2; art 14 s 1;2013 c 63 s 3;2013 c 108 art 7 s 2;2015 c 71 art 6 s 2;2016 c 99 art 2 s 1;2016 c 140 s 1,2;2017 c 40 art 1 s 22-25;1Sp2017 c 6 art 2 s 39; art 3 s 4; art 14 s 2-4;1Sp2019 c 9 art 4 s 1-7;2023 c 70 art 3 s 30;2025 c 38 art 1 s 2,3