NY Pub Health L § 2828 (2021)
2021 New York Laws PBH - Public Health Article 28 - Hospitals 2828 - Residential Health Care Facilities; Minimum Direct Resident Care Spending.

§  2828.  Residential  health care facilities; minimum direct resident care spending. 1. (a) Notwithstanding  any  law  to  the  contrary,  the department  shall  promulgate  regulations  governing the disposition of revenue in excess of expenses for  residential  health  care  facilities consistent  with this section. Beginning on and after January first, two thousand twenty-two, every residential health care facility shall  spend a  minimum  of  seventy  percent of revenue on direct resident care, and forty percent of revenue shall be  spent  on  resident-facing  staffing, provided  that  amounts  spent  on  resident-facing  staffing  shall  be included as a part of amounts spent on direct resident care.  (b) Fifteen percent of costs associated with resident-facing  staffing contracted  out  by  a  facility  for  services  provided  by registered professional nurses or licensed practical nurses  licensed  pursuant  to article  one hundred thirty-nine of the education law or certified nurse aides who have completed certification  and  training  approved  by  the department shall be deducted from the calculation of the amount spent on resident-facing staffing and direct resident care.  (c)  Such  regulations  shall  further  include  at a minimum that any residential health care  facility  for  which  total  operating  revenue exceeds  total  operating  and  non-operating expenses by more than five percent of total operating and non-operating expenses or that  fails  to spend  the  minimum amount necessary to comply with the minimum spending standards  for  resident-facing  staffing  or  direct   resident   care, calculated  on  an annual basis, shall remit such excess revenue, or the difference between the  minimum  spending  requirement  and  the  actual amount  of spending on resident-facing staffing or direct care staffing, as the case may be, to the state, with such excess revenue  which  shall be  payable,  in  a  manner  to  be  determined  by such regulations, by November first in the year following the year in which the expenses  are incurred.   The  department  shall  collect  such  payments  by  methods including, but not limited to, bringing suit in  a  court  of  competent jurisdiction  on  its own behalf after giving notice of such suit to the attorney general, deductions or offsets from payments made  pursuant  to the  Medicaid  program,  and  shall deposit such recouped funds into the nursing home quality pool, as set forth in paragraph  d  of  subdivision two-c  of  section  two  thousand  eight  hundred eight of this article. Provided further that such  payments  of  excess  revenue  shall  be  in addition  to  and  shall not affect a residential health care facility's obligations to make any other payments required by state or federal  law into  the  nursing  home  quality  pool,  including  but  not limited to medicaid rate reductions required pursuant to paragraph g of subdivision two-c of section two thousand eight hundred eight of  this  article  and department regulations promulgated pursuant thereto. The commissioner or their  designees  shall  have  authority to audit the residential health care facilities' reports for compliance in accordance with this section.   2. For the purposes of this section the following terms shall have the following meanings:  (a) "Revenue" shall mean the total operating revenue from or on behalf of residents of the residential health care facility, government payers, or third-party  payers,  to  pay  for  a  resident's  occupancy  of  the residential  health  care  facility, resident care, and the operation of the residential health care facility  as  reported  in  the  residential health care facility cost reports submitted to the department; provided, however,  that revenue shall exclude the average increase in the capital portion of the Medicaid reimbursement rate from the prior three years.  (b) "Expenses" shall include all operating and non-operating expenses, before extraordinary gains, reported in cost reports submitted  pursuant to  section  twenty-eight  hundred  five-e  of  this  article, except as  expressly excluded by regulations and/or this section.  Such  exclusions shall  include,  but not be limited to, any related party transaction or compensation to the extent that the value of such transaction is greater than  fair  market  value, and the payment of compensation for employees who are not actively engaged in or providing services at the facility.  (c) "Direct resident care" includes the following cost centers in  the residential  health  care  facility  cost report: (i) Nonrevenue Support Services  -  Plant  Operation  &   Maintenance,   Laundry   and   Linen, Housekeeping,  Patient  Food Service, Nursing Administration, Activities Program, Nonphysician Education, Medical Education,  Medical  Director's Office, Housing, Social Service, Transportation; (ii) Ancillary Services - Laboratory Services, Electrocardiology, Electroencephalogy, Radiology, Inhalation  Therapy,  Podiatry,  Dental,  Psychiatric, Physical Therapy, Occupational Therapy, Speech/Hearing Therapy, Pharmacy, Central Services Supply,  Medical  Staff  Services  provided  by  licensed  or  certified professionals   including  and  without  limitation  Registered  Nurses, Licensed Practical Nurses, and Certified Nursing  Assistant;  and  (iii) Program   Services   -  Residential  Health  Care  Facility,  Pediatric, Traumatic Brain Injury (TBI),  Autoimmune  Deficiency  Syndrome  (AIDS), Long     Term     Ventilator,    Respite,    Behavioral    Intervention, Neurodegenerative, Adult Care Facility,  Intermediate  Care  Facilities, Independent  Living,  Outpatient  Clinics,  Adult  Day Health Care, Home Health Care, Meals on Wheels, Barber & Beauty Shop,  and  Other  similar program  services  that  directly  address  the  physical  conditions of residents. Direct resident care does  not  include,  at  a  minimum  and without    limitation,    administrative   costs   (other   than   nurse administration), capital costs, debt service, taxes  (other  than  sales taxes  or  payroll  taxes),  capital  depreciation, rent and leases, and fiscal services.  (d) "Resident-facing staffing" shall include all staffing expenses  in the  ancillary  and  program  services  categories  on  exhibit h of the residential health care reports as in effect on February fifteenth,  two thousand twenty-one.  (e)  "Cost  Report"  shall  mean  the annual financial and statistical report submitted to the department pursuant  to  sections  two  thousand eight  hundred  five-e  and  two  thousand eight hundred eight-b of this article, and regulations promulgated pursuant  thereto,  which  includes the  residential  health  care  facility's  revenues,  expenses, assets, liabilities and statistical information.   3.  For  the  purposes  of  this  section,  residential  health   care facilities  shall  not include (a) facilities that are authorized by the department to primarily care for medically fragile children, people with HIV/AIDS, persons requiring behavioral intervention,  persons  requiring neurodegenerative  services,  and other specialized populations that the commissioner deems appropriate  to  exclude;  and  (b)  continuing  care retirement  communities  licensed pursuant to article forty-six or forty six-a of this chapter.   4. The commissioner may waive the requirements of this  section  on  a case-by-case  basis  with respect to a nursing home that demonstrates to the  commissioner's  satisfaction  that  it  experienced  unexpected  or exceptional  circumstances  that  prevented compliance. The commissioner may also exclude from revenues and expenses, on  a  case-by-case  basis, extraordinary  revenues  and capital expenses, incurred due to a natural disaster or  other  circumstances  set  forth  by  the  commissioner  in regulation.  At  least thirty days before any action by the commissioner under this subdivision, the commissioner  shall  transmit  the  proposed action  to  the  state  office  of  the long-term care ombudsman and the  chairs of the senate and assembly health committees, and post it on  the department's website.   5.  The  commissioner  shall issue regulations, seek amendments to the state plan for medical assistance, seek waivers from the federal Centers for Medicare and Medicaid Services,  and  take  such  other  actions  as reasonably necessary to implement this section.   6.  The  commissioner  shall,  if  necessary,  update  reporting forms completed by residential health care facilities  under  section  twenty- eight  hundred  five-e  of this article to include information to ensure all items referred to in this  section  and  organize  such  information consistent with the terms of this section.