Demonstration of Need for Long-Term Care Services (Certificate of Need)
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Temporary amendments to OAR chapter 333, division 610 governing how applicants demonstrate need for long-term care (nursing facility) beds in Oregon; affects Certificate of Need applicants and OHA reviewers.
Updates terminology from "nursing home beds" to "nursing facility beds" and updates rule references in OAR 333-610-0000.
Updates definitions in OAR 333-610-0010 to cross-reference ODHS statutory definitions and removes definitions no longer applicable or relevant.
Removes out-of-date dates and adds more relevant data sources applicants must analyze in OAR 333-610-0020.
Updates terminology and replaces outdated references to 'Seniors and People with Disabilities' and other divisions with 'Oregon Department of Human Services' or 'Oregon Health Authority' in multiple OAR 333-610 rules.
Suspends OAR 333-610-0090 because it is significantly out-of-date.
Clarifies review requirements for hospitals proposing swing long-term care (swing beds) and related certificate-of-need considerations.
Need Evaluation and Review Criteria
Need evaluation principles (OAR 333-610-0020 and related)
Principles and methods the Oregon Health Authority will apply when evaluating need in Certificate of Need reviews for nursing facility beds (OAR 333-610-0020 and related):
Need-analysis criteria
Criteria and analytical steps applicants must follow to demonstrate need for additional or relocated nursing facility beds:
ALL of the following
- Default service area is the county where the nursing facility is located; applicants proposing an alternative multi-county service area must demonstrate it using hospital referral patterns, patient origin/discharge data, travel-time/access, rural health availability, and post-acute care patterns supported by data.
ALL of the following
- Submit historical patient days (total, short-stay ≤90 days, long-stay >90 days) and set-up bed inventories for the service area for the past five years; obtain additional historical bed counts for up to ten years where required.
ALL of the following
- Obtain population estimates for age cohorts (including age 65+ and 75+) using accepted sources (e.g., Portland State University CPRC) or demonstrate acceptable alternative methods if established projections are invalid.
ALL of the following
- Compute use-rates as number of patient days per 1,000 persons age 65 and over using the service-area population denominator and historical patient days (10-year series where applicable).
ALL of the following
- Count only set-up beds as operational capacity; compute average occupancy by dividing historical patient days by potential patient days (set-up beds × 365) and evaluate occupancy against the 95% threshold (90% may be acceptable if justified).
ALL of the following
- Forecast long-stay and short-stay demand separately (long-stay using historical long-stay rates, HCBS utilization, and expected changes) and project demand to the year three years after the calendar year of application (exceptions for low-density or special circumstances may allow different horizons).
ALL of the following
- Demonstrate localized access issues (e.g., hospital discharge delays, excessive travel times, inadequate specialty beds or workforce constraints) to justify additional beds beyond general benchmarks.
ALL of the following
- Make adjustments for future inventory (including beds with existing CONs and beds committed to delicensure within three years) and apply smoothing/statistical adjustments to mitigate distortion from anomalous events (for example, temporary closures or COVID-19 era anomalies).
ALL of the following
- If average occupancy <95%, applicant must demonstrate a combination of factors that will assure 95% occupancy if approved; if 95% cannot be demonstrated but 90% can, the applicant must show approval would maintain access at reasonable cost.
ALL of the following
- Prepare multi-year tables (including columns covering five years from the letter of intent) showing historical and projected utilization, multiple use-rate projections, potential patient days, and standard bed-supply figures (e.g., 30–45 beds per 1,000 persons age 65+) to support conclusions about shortfalls or sufficiency.
Certificate of need and review criteria
Review and need considerations for proposals involving hospital long-term care beds, swing beds, and reconversion or residential care licensing:
ALL of the following
- Hospitals proposing to use licensed acute beds intermittently as skilled nursing facility (swing) beds must submit a letter of intent to the Oregon Health Authority; organized and regular provision of skilled nursing within a hospital's licensed physical plant may be reviewed as a new long-term care facility.
- Such proposals are not subject to county-specific nursing facility bed need criteria when they do not create permanent new nursing facility beds, but OHA will review need and alternative resource use under applicable rules and health policy considerations.
ALL of the following
Trigger for CON review
- Proposals to create a new long-term care facility in a hospital or to increase long-term care beds by more than 10 beds or more than 10% of existing capacity are subject to certificate of need review.
ALL of the following
- In financial feasibility reviews, OHA will consider conservative Medicare utilization projections, the potential diversion of funds from alternative or acute care into facility-based long-term care, comparative costs between hospital and licensed long-term care facility care (including feasibility of contracting with existing facilities), and potential impacts on Medicare costs per illness episode.
ALL of the following
- When a long-term care facility obtains a residential care license from the Oregon Department of Human Services for part or all of its capacity, future reconversion of those beds to long-term care (nursing facility) beds is considered an expansion and may be subject to certificate of need and county-specific bed-need criteria; evaluations will weigh comparative costs and quality of care.
ALL of the following
- Rule 333-610-0090 (Intermediate Care Facilities for the Mentally Retarded) is suspended as out-of-date and will not apply during the suspension period noted in these rule changes.
Data, Metrics, and Thresholds
| MDS | Minimum Data Set (MDS) data identifying short-stay (<=90 days) and long-stay (>90 days) utilization patterns |
| Annual nursing facility cost reports | Annual nursing facility cost reports or other publicly available utilization reports showing resident days, admissions, discharges, and set-up bed availability |
| Set-up bed inventories | Set-up bed inventories for all facilities in the service area |
| Historical nursing home patient days | Historical nursing home patient days for each of the last 10 years from Annual Reports for nursing homes and hospital-based long-term care facilities |
| Population estimates (CPRC/Inter-Censal) | Estimates for total service area population using CPRC's Inter-Censal Estimates and interpolation methods for specified years |
| No codes listed |
Application & Hospital Proposal Requirements
Certificate of Need application must analyze current, relevant data
Submit a Certificate of Need application that analyzes current, relevant data, methods, and timelines as required by the amended OAR chapter 333, division 610; the amendments update outdated data references so applications use data within the relevant window for review.
- Provide analyses using current, relevant data, methods, and timelines per amended rules.
Hospital creation or large increases in long-term care beds trigger CON review
If a hospital proposes to create a new long-term care facility in or associated with the hospital, or to increase long-term care beds in such a facility by more than 10 beds or more than 10% of the facility’s bed capacity (whichever is less), the project is subject to Certificate of Need review under OAR 333-610-0000 to 333-610-0030.
- Creation of a hospital-associated long-term care facility is treated as establishment of a new health care facility and subject to CON review.
- Additions greater than 10% of existing capacity or greater than 10 beds (whichever is less) trigger review.
Letter of intent required for hospital swing-bed proposals
Hospitals proposing to use licensed acute beds intermittently as skilled nursing facility swing beds must submit a letter of intent to the Oregon Health Authority; organized and regular provision of skilled nursing within the hospital’s licensed physical plant may be reviewed as a new long-term care facility.
- Submit a letter of intent to the Oregon Health Authority before implementing swing-bed use.
- Be aware that regular organized provision of skilled nursing services in-hospital may be reviewed as establishment of a new long-term care facility.
CON review applies when hospital long-term care beds exceed thresholds; swing beds treated differently
Projects that create new hospital-associated long-term care facilities or increase long-term care beds beyond thresholds (more than 10 beds or more than 10% of capacity, whichever is less) are subject to Certificate of Need review under OAR 333-610-0000 to 333-610-0030; temporary swing-bed use is not subject to county-specific nursing home bed need criteria because it does not create permanent new nursing home beds.
- Permanent additions or relocations of long-term care beds meeting the thresholds are treated like freestanding nursing home projects for CON purposes.
- Swing-bed proposals will be reviewed for need and alternative use of resources but are exempt from county-specific bed-need criteria when they do not create permanent beds.
Key Definitions and Operational Terms
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