You Asked:
Has there been any additional clarification on how the HB 169 funds can be used by nursing facilities? Specifically, is there a timeframe within which we can use them? What is the definition of “direct care”?
We Answered:
LeadingAge Ohio advocated for ODM to be very permissive with their definition to include a wide variety of positions that members were competing for, including housekeeping and dietary. The rule reflects this flexibility. For the purposes of these funds only, “direct care” includes any employee that is not explicitly excluded, which would include laundry, dietary, maintenance, and others.
Both the rule and legislative text are silent on the timeframe within which funds should be used– there are no deadlines, nor requirements that the funds be spent on “new” direct care expenses.
The emergency rule states:
“(C) Payments made pursuant to this rule are to be used exclusively for compensation for nursing facility direct care staff, which includes all nursing facility staff except for those specifically excluded pursuant to paragraph B of Section 220.60 of Amended Substitute House Bill 169 of the 134th General Assembly.”
Section 220.60 of the Revised code states:
“NURSING FACILITY WORKFORCE INCENTIVE PAYMENTS Notwithstanding section 5164.48 of the Revised Code, the Medicaid Director may make payments to nursing facilities, as defined in section 5165.01 of the Revised Code, that are in good standing, in the manner and for the purposes described in this section. Nursing facilities shall use the payments received pursuant to this section exclusively for direct care staff compensation, which may include staff retention bonus payments, overtime pay and shift differential payments, staff recruitment costs, and new hire incentive payments. (A) All funds distributed under this section shall be in addition to the nursing facility Medicaid day payment rate set forth in Chapter 5165. of the Revised Code or any Medicaid payment rates determined under Chapter 5164. of the Revised Code. (B) No funds under this section shall be paid to any of the following: (1) Contract workers; (2) Staff supplied through or by staffing agencies; (3) Facility administrators; (4) Facility executive staff; (5) Facility owners. (C) The Medicaid Director may recover any funds that are used for any purpose other than as specified in this section. (D) Any nursing facility that receives funds under this section that sells any of its business or bed licenses on or before June 30, 2023, shall reimburse the state, from the proceeds of the sale, the funds distributed under this section. (E) The Medicaid Director may adopt rules under section 5160.02 of the Revised Code as necessary to define terms and adopt procedures and other provisions necessary to implement this section.” [emphasis added]
Furthermore, the Ohio Department of Medicaid (ODM) has confirmed that there are no targeted audit activities planned for these specific funds. That said, the use of the funds could be scrutinized as part of a cost report audit or other audit, so LeadingAge Ohio encourages providers to clearly attribute the funds to allowable expenses as spelled out.