NY Pub Health L § 2808 (2021)
2021 New York Laws PBH - Public Health Article 28 - Hospitals 2808 - Residential Health Care Facilities; Rates of Payment.

§ 2808. Residential health care facilities; rates of payment.   1-a.  Notwithstanding  sections  one  hundred  twelve  and one hundred sixty-three  of  the  state  finance  law  and  any  other  inconsistent provision   of  law,  the  commissioner  shall  make  grants  to  public residential health care facilities without a competitive bid or  request for  proposal  process  for  the  purposes  of  addressing  the  overall increases in input costs borne by such  facilities.  Such  modifications shall  also  be  primarily  intended to promote the provision of quality health care, quality operation, updated technology  and  improved  staff development  and support by such facilities. Such grants shall be in the following aggregate amounts for the following periods: five million  for the period April first, two thousand six through March thirty-first, two thousand seven; fifteen million for the period April first, two thousand seven  through  March  thirty-first, two thousand eight; and ten million for  the  period  April  first,  two  thousand   eight   through   March thirty-first, two thousand nine.   The  amount  allocated to each eligible public residential health care facility for each period shall be calculated as the result  of  (i)  the total  payment  for  each period multiplied by (ii) the ratio of patient days for patients eligible for  medical  assistance  pursuant  to  title eleven of article five of the social services law provided by the public residential  health  care facility, divided by the total of such patient days summed for all eligible public residential health care  facilities. Grants under this subdivision shall be made on a quarterly basis.   * 2.  (a)  The  commissioner,  with the approval of the state hospital review  and  planning  council,  shall  promulgate  regulations  to   be effective  the  first  day  of  January, nineteen hundred seventy-eight, relating the rate of payment for each residential health  care  facility to real property costs.  (b)  Such  regulations  may  differentiate  based  upon  the  form  of ownership of the facility, and shall provide for consideration  of  such factors as the age, size, location and condition of the facility.  (c)  For  facilities  granted  operating  certificates  prior to March tenth, nineteen hundred seventy-five, the real property costs  shall  be computed  upon  a  cost valuation basis of the facility as determined by the commissioner, who, subject to the approval of the  director  of  the budget,  may  provide  exceptions  in  circumstances where he finds that application of the regulations would result in  excessive  reimbursement or   in   severe  economic  hardship  to  the  facility  not  caused  by circumstances reasonably under the control of the facility.  (d) For facilities granted operating certificates on  or  after  March tenth, nineteen hundred seventy-five, recognition of real property costs in such regulations shall be based upon historical costs to the owner of the facility, provided that payment for real property costs shall not be in  excess of the actual debt service, including principal and interest, and payment with  respect  to  owner's  equity.  For  purposes  of  this subdivision,  owner's  equity  shall be calculated without regard to any surplus created by revaluation of assets and shall not  include  amounts resulting from mortgage amortization where the payment therefor has been provided by real property cost reimbursement.  (e)  All  transactions,  including leases and mortgages, which are not bona fide and reasonable shall be disregarded.   * NB Expired December 31, 1978   2-a. (a) The commissioner, with the approval  of  the  state  hospital review   and  planning  council,  shall  promulgate  regulations  to  be effective the first  day  of  January,  nineteen  hundred  seventy-nine, relating  the  rate of payment for each residential health care facility to real property costs.  (b)  Such  regulations  may  differentiate  based  upon  the  form  of ownership  of  the facility, and shall provide for consideration of such factors as the age, size, location and condition of the facility.  (c)  For  facilities  granted  operating  certificates  prior to March tenth, nineteen hundred seventy-five, the real property costs  shall  be computed  upon  a  cost valuation basis of the facility as determined by the commissioner, who, subject to the approval of the  director  of  the budget,  may  provide  exceptions  in  circumstances where he finds that application of the regulations would result in  excessive  reimbursement or   in   severe  economic  hardship  to  the  facility  not  caused  by circumstances reasonably under the control of the facility.   * (d) For facilities granted operating certificates on or after  March tenth, nineteen hundred seventy-five, recognition of real property costs in such regulations shall be based upon historical costs to the owner of the facility, provided that payment for real property costs shall not be in  excess of the actual debt service, including principal and interest, and payment with respect to owner's equity, and further  provided  that, subject  to federal financial participation, and subject to the approval of the commissioner, effective April first, two  thousand  fifteen,  the commissioner  may  modify  such  payments  for  real  property costs for purposes of effectuating a shared savings  program,  whereby  facilities share  a  minimum of fifty percent of savings, for facilities that elect to refinance their mortgage loans. For  purposes  of  this  subdivision, owner's equity shall be calculated without regard to any surplus created by  revaluation  of  assets and shall not include amounts resulting from mortgage amortization where the payment therefor has  been  provided  by real property cost reimbursement.   * NB Effective until March 31, 2025   * (d)  For facilities granted operating certificates on or after March tenth, nineteen hundred seventy-five, recognition of real property costs in such regulations shall be based upon historical costs to the owner of the facility, provided that payment for real property costs shall not be in excess of the actual debt service, including principal and  interest, and  payment  with  respect  to  owner's  equity.  For  purposes of this subdivision, owner's equity shall be calculated without  regard  to  any surplus  created  by revaluation of assets and shall not include amounts resulting from mortgage amortization where the payment therefor has been provided by real property cost reimbursement.   * NB Effective March 31, 2025  (e) All transactions, including leases and mortgages,  which  are  not bona fide and reasonable shall be disregarded.   2-b.  Notwithstanding  any  inconsistent provision of this section, or any other contrary provision of law and subject to the  availability  of federal  financial  participation, the operating cost component of rates of payment by governmental agencies for inpatient services  provided  on and  after  January first, two thousand seven by residential health care facilities shall be in accordance with the following:  (a) (i) Subject to the provisions of subparagraphs (ii)  through  (vi) of  this paragraph, for the two thousand seven rate period the operating cost component of rates of payment  shall  reflect  the  operating  cost component  of  rates  effective  for October first, two thousand six, as adjusted for inflation in accordance with paragraph (c)  of  subdivision ten of section twenty-eight hundred seven-c of this article; and for the January  first,  two  thousand  eight  through  March  thirty-first, two thousand nine rate period the  operating  cost  component  of  rates  of payment  shall  reflect  the operating cost component of rates effective for December thirty-first, two thousand six, as adjusted  for  inflation  in   accordance  with  paragraph  (c)  of  subdivision  ten  of  section twenty-eight hundred seven-c of this article.  (ii)  Rates  for the periods two thousand seven and two thousand eight shall be further adjusted by a per diem add-on amount, as determined  by the  commissioner, reflecting the proportional amount of each facility's projected Medicaid benefit to the total projected Medicaid  benefit  for all  facilities  of  the imputed use of the rate-setting methodology set forth in paragraph (b) of this subdivision, provided, however, that  for those  facilities  that  do  not  receive  a  per diem add-on adjustment pursuant to this  subparagraph,  rates  shall  be  further  adjusted  to include the proportionate benefit, as determined by the commissioner, of the expiration of the opening paragraph and paragraph (a) of subdivision sixteen  of this section and of paragraph (a) of subdivision fourteen of this section, provided, further, however, that the  aggregate  total  of the rate adjustments made pursuant to this subparagraph shall not exceed one  hundred  thirty-seven million five hundred thousand dollars for the two thousand seven rate period and one hundred sixty-seven million  five hundred  thousand  dollars  for  the  two thousand eight rate period and provided further, however, that such rate adjustments as  made  pursuant to  this  subparagraph prior to two thousand twelve shall not be subject to subsequent adjustment or reconciliation.  (iii) Revisions to two thousand  six  rates  occurring  on  and  after January  first,  two  thousand  seven,  shall  be annually incorporated, retroactively  and  prospectively,  into  two  thousand  seven  and  two thousand  eight rates on or about November thirtieth, two thousand seven and November thirtieth, two thousand eight, respectively.  (iv) The capital cost component of rates pursuant  to  this  paragraph shall  fully  reflect the cost of local property taxes and payments made in lieu of local property taxes, as reported  in  each  facility's  cost report submitted for the year two years prior to the rate year.  (v)  Rates  for  the  two  thousand  seven and two thousand eight rate periods, as computed pursuant to this paragraph, shall not be subject to case  mix  adjustment,  provided,  however,  that  a  facility  may,  in accordance  with  its  existing  full  house  schedule  of submission of patient review instruments, submit data in support of a  request  for  a rate  adjustment  to  reflect an increased facility case mix equal to or greater than .05, provided further, however, that such a  facility  will be  required  to  continue  to  make  such  full  house  submissions  in accordance with its existing submission schedule  for  rate  periods  up through December thirty-first, two thousand eight.  (vi) For the period January first, two thousand seven through December thirty-first, two thousand eight, notwithstanding any contrary provision of  law  or  regulation,  voluntary  facilities shall not be required to deposit  reimbursement  received  for  depreciation  expenses   into   a segregated depreciation fund account.  (b)  (i)  (A)  Subject to the provisions of subparagraphs (ii) through (xiv) of this paragraph, for periods  on  and  after  April  first,  two thousand  nine  the  operating  cost component of rates of payment shall reflect allowable operating costs as reported in  each  facility's  cost report for the two thousand two calendar year, as adjusted for inflation on  an  annual  basis  in  accordance  with the methodology set forth in paragraph (c) of subdivision ten of section twenty-eight hundred seven-c of this article, provided, however, that for those facilities which  are determined by the commissioner to be qualifying facilities in accordance with  the  provisions of clause (B) of this subparagraph, rates shall be further adjusted to include the proportionate benefit, as determined  by the  commissioner,  of  the  expiration  of  the  opening  paragraph and paragraph (a) of subdivision sixteen of this section  and  of  paragraph  (a)  of  subdivision fourteen of this section, and provided further that the operating cost component of rates of payment  for  those  facilities which  are determined by the commissioner to be qualifying facilities in accordance  with the provisions of clause (B) of this subparagraph shall not be less than the operating component such facilities received in the two thousand eight rate period, as adjusted for inflation on  an  annual basis  in  accordance with the methodology set forth in paragraph (c) of subdivision ten of section twenty-eight hundred seven-c of this  article and further provided, however, that rates for facilities whose operating cost component reflects base year costs subsequent to January first, two thousand   two  shall  have  rates  computed  in  accordance  with  this paragraph, utilizing allowable  operating  costs  as  reported  in  such subsequent  base  year  period,  and trended forward to the rate year in accordance with applicable inflation factors.  (B) For the purposes of this subparagraph  qualifying  facilities  are those  facilities  for  which  the  commissioner  determines  that their reported two thousand two base year operating cost component, as defined in accordance with the regulations of the department as set forth in  10 NYCRR   86-2.10(a)(7);   is  less  than  the  operating  component  such facilities received in the two thousand eight rate period,  as  adjusted by applicable trend factors.  (ii)  The  operating  component  of rates shall be subject to case mix adjustment through application  of  the  relative  resource  utilization groups  system  of  patient  classification  (RUG-III)  employed  by the federal government with regard to payments to skilled nursing facilities pursuant to title XVIII of the federal social security  act  (Medicare), as  revised  by  regulation  to  reflect New York state wages and fringe benefits, provided, however, that  such  RUG-III  classification  system weights  shall  be  increased in the following amounts for the following categories of residents: (A) thirty minutes for the impaired cognition A category, (B) forty minutes for the impaired cognition B  category,  and (C)  twenty-five  minutes for the reduced physical functions B category. Such adjustments shall be made in January  and  July  of  each  calendar year.  Such  adjustments  and  related  patient  classifications in each facility shall be subject to audit review in accordance with regulations promulgated by the commissioner.  (iii) Specified adjustments to the operating  component  of  rates  in effect  for  periods  prior  to  January  first, two thousand nine, with regard to extended care for persons with traumatic brain injury and  for the  cost  of  providing  hepatitis B vaccinations shall continue on and after January first, two thousand nine.  (iv) The capital cost component of rates on and after  January  first, two  thousand  nine  shall: (A) fully reflect the cost of local property taxes and payments made in lieu of local property taxes, as reported  in each  facility's  cost  report submitted for the year two years prior to the rate year; (B) provided, however, notwithstanding  any  inconsistent provision  of  this article, commencing April first, two thousand twenty for rates of payment for patients eligible for payments  made  by  state governmental   agencies,   the  capital  cost  component  determined  in accordance with this subparagraph and inclusive of  any  shared  savings for  eligible  facilities  that  elect to refinance their mortgage loans pursuant to paragraph (d) of subdivision two-a of this section, shall be reduced by the commissioner by five percent.  (v) The direct component  of  the  operating  component  of  rates  of payment  shall  include  allowable  direct  therapy costs and associated overhead costs and shall exclude administrative overhead  costs  related to  pharmacy  services  and  the  costs  of  non-prescription  drugs and  supplies, which shall be reflected in facility rates  as  non-comparable costs.  (vi) For purposes of computing peer group cost ceilings for the direct and  indirect  component of the operating component of rates, facilities shall be organized into peer groups  consisting  of:  (A)  free-standing facilities  with  certified  bed  capacities  of less than three hundred beds; (B) free-standing facilities  with  certified  bed  capacities  of three hundred beds or more; and (C) hospital based facilities.  (vii)  In  determining the operating cost component of rates, for each peer group, a corridor shall be  developed  around  the  statewide  mean direct  and indirect price per day, provided, however, that the corridor around each mean direct and indirect price per day shall have a base  no less than eighty-five percent and no greater than ninety percent of each mean direct and indirect price per day and a ceiling no greater than one hundred fifteen percent and no less than one hundred ten percent of each mean  direct  and indirect price per day, and further provided, however, that the total financial impact of the application of the ceiling  shall be  substantially equal to the total financial impact of the application of the base.  (viii) The operating component of rates shall be adjusted to reflect a per diem add-on amount of eight  dollars,  trended  forward  to  reflect applicable  inflation factors from two thousand six to two thousand nine and prospectively thereafter, for each patient who: (A) qualifies  under both   the  RUG-III  impaired  cognition  and  the  behavioral  problems categories, or (B)  has  been  diagnosed  with  Alzheimer's  disease  or dementia,  is classified in the reduced physical functions A, B or C, or in behavioral problems A or B categories, and has an activities of daily living index score of ten or less.  (ix) The operating component of rates shall be adjusted to  reflect  a per  diem add-on amount of seventeen dollars, trended forward to reflect applicable inflation factors from two thousand six to two thousand  nine and  prospectively thereafter, for each patient whose body mass index is greater than thirty-five.  (x) For periods  on  and  after  January  first,  two  thousand  nine, notwithstanding  any  contrary provision of law or regulation, voluntary facilities shall not be required to deposit reimbursement  received  for depreciation expenses into a segregated depreciation fund account.  (xi)  Public  facilities,  and  non-public  facilities with fewer than eighty certified beds, which have a facility  specific  direct  adjusted payment  price  per  day equal to the ceiling direct price per day shall have such direct adjusted payment price per day further adjusted through the addition of fifty percent of the difference between  the  facility's specific  direct  cost  per  day  and  the ceiling direct price per day. Public facilities, and non-public  facilities  with  fewer  than  eighty certified beds, which have a facility specific indirect adjusted payment price  per  day  equal  to the ceiling indirect price per day shall have such indirect adjusted payment price per day  further  adjusted  through the  addition  of fifty percent of the difference between the facility's specific indirect cost per day and the ceiling indirect price  per  day. Such  adjustments to direct and indirect adjusted payment prices per day shall be increased to the rate year by  application  of  the  applicable inflation  factor and adjusted by the regional direct and indirect input price adjustment factors calculated pursuant to subdivision seventeen of this section.  (xii) Public facilities shall receive rates that are  consistent  with the  provisions  of  this paragraph, provided, however, that in no event shall such rates,  in  aggregate,  exceed  the  amount  permitted  under federal  upper  payment  limits  applicable to public facilities. In the  event such public facilities are, pursuant to this subparagraph, subject to limitations on such rates, the commissioner shall  make  grants  from state  funds  to  such  facilities  equal  to one-half of the additional amount  that such facilities would have received if such limitations had not been applied.  (xiii) The appointment of a receiver or the  establishment  of  a  new operator  or  replacement  or  renovation  of an existing facility on or after January first, two thousand seven shall not result in  a  revision to  the  operating component of the facility's rates for any rate period through December thirty-first, two thousand eleven,  provided,  however, that  the  provisions of this subparagraph shall not apply to a facility which has a certificate of need application filed with the department as of December  thirty-first,  two  thousand  six,  which  is  subsequently approved  and which otherwise meets existing department criteria for the establishment of a new base year for rate-setting purposes.  (xiv) The commissioner may promulgate regulations, including emergency regulations, to implement the provisions of this paragraph.  (c) In order to ensure that the quality of resident care is maintained and improved for rate periods on and after January first,  two  thousand seven,  no  less  than  sixty-five  percent  of  the additional Medicaid reimbursement received by a residential health  care  facility  that  is attributable   to  the  per-diem  add-on  amount  received  pursuant  to subparagraph (ii) of paragraph (a) of  this  subdivision  or,  for  rate periods  on  and after January first, two thousand nine, that is related to utilization of two thousand two reported base year costs, as compared to the reimbursement each such facility would  have  received  had  such facility's  Medicaid  reimbursement rates continued to reflect base year costs used with regard to such facility's two thousand six rates,  shall be   allocated   for   the  purpose  of  recruitment  and  retention  of non-supervisory  workers  or  any  worker  with  direct  resident   care responsibility or for purposes authorized under the nursing home quality improvement demonstration program as established by section twenty-eight hundred  eight-d  of this article, provided, however, in no circumstance shall facilities be required to spend more than seventy-five percent  of such funds for these purposes, and provided further, the commissioner is authorized  to  audit  each  such  facility  for the purpose of ensuring compliance with the provisions of this paragraph and  shall  recoup  any amount  determined  to have been in contravention of the requirements of this paragraph, provided, however, that, upon application of a facility, the commissioner  may,  after  determining  that  other  funds  are  not available,  waive  the  application  of  this paragraph insofar as it is determined by the commissioner that additional funds must be expended by such facility to  correct  deficiencies  that  constitute  a  threat  to resident safety.  (d)  Cost  reports submitted by residential health care facilities for the  two  thousand  two  calendar  year  or  any  part  thereof   shall, notwithstanding  any  contrary  provision  of  law,  be subject to audit through December thirty-first,  two  thousand  eighteen  and  facilities shall  retain  for the purpose of such audits all fiscal and statistical records relevant to such cost reports, provided, however, that any  such audit  commenced  on  or  before  December  thirty-first,  two  thousand eighteen, may be completed and used for the  purpose  of  adjusting  any Medicaid rates which utilize such costs.  (e)  For  rate  periods  subsequent to two thousand nine which utilize reported costs from a base year subsequent  to  two  thousand  two,  the following   categories   of   facilities,  as  established  pursuant  to applicable regulations, shall  receive  rates  that  are  no  less  than equivalent, as determined by the commissioner, to the rates that were in  effect  for  such facilities on December thirty-first, two thousand six, trended forward for inflation to the applicable rate  period:  (A)  AIDS facilities  or discrete AIDS units within facilities, (B) discrete units for  residents  receiving  care  in a long term inpatient rehabilitation program for traumatic brain injured persons, (C) discrete units for long term  ventilator  dependent  residents,  (D)  discrete  units  providing specialized  programs  for residents requiring behavioral interventions, and (E) facilities or discrete  units  within  facilities  that  provide extensive   nursing,   medical,  psychological  and  counseling  support services solely to children.  (f) The operating component of Medicaid rates of payment shall, by  no later  than  the  two thousand twelve rate period, be based on allowable costs, as reported on annual facility cost reports,  from  a  base  year period  no  earlier than three years prior to the initial rate year, and then trended forward by applicable inflation  factors.  Thereafter,  the base  year  utilized  for  rate-setting  purposes shall be updated to be current no less frequently than every six years provided, however,  that for  the  purposes  of  this  paragraph,  current  shall  mean  that the operating components of the initial rate  year  utilizing  such  updated base  year  shall reflect allowable costs as reported in annual facility cost reports for periods no earlier  than  three  years  prior  to  such initial  rate  year  and  then  trended  forward  to  the  rate  year in accordance with applicable inflation factors.  (g) Notwithstanding any contrary provision of this subdivision or  any other  contrary  provision  of law, rule or regulation, rates of payment for inpatient services provided on and after April first,  two  thousand nine  by  residential  health  care  facilities  shall,  except  for the establishment of any statewide or any peer group base, mean  or  ceiling prices  per  day,  be  calculated  utilizing only the number of patients properly assessed and reported in each patient classification group  and eligible for medical assistance pursuant to title eleven of article five of the social services law.  (h)  Notwithstanding  any contrary provision of law and subject to the availability of federal financial participation, for  the  period  April first,  two thousand eleven through June thirtieth, two thousand eleven, the non-capital components of  rates  shall  be  subject  to  a  uniform percentage  reduction  sufficient  to  reduce such rates by an aggregate amount  of  twenty-seven  million  one  hundred  thousand  dollars,  and provided  further, however, that such reductions shall be disregarded in computations  made  pursuant  to  section  two  of  part  D  of  chapter fifty-eight of the laws of two thousand nine, as amended.   2-c. (a) Notwithstanding any inconsistent provision of this section or any  other  contrary provision of law and subject to the availability of federal financial participation, the non-capital component of  rates  of payment  by  governmental  agencies  for  inpatient services provided by residential health care  facilities  on  or  after  October  first,  two thousand  eleven,  but no later than January first, two thousand twelve, shall reflect a direct statewide price component, and indirect statewide price component,  and  a  facility  specific  non-comparable  component, utilizing allowable operating costs for a base year as determined by the commissioner  by  regulation. Such rate components shall be periodically updated to reflect changes in operating costs.  (b) The direct  and  indirect  statewide  price  components  shall  be adjusted  by  a  wage  equalization  factor  and  such  other factors as determined to be appropriate to recognize legitimate cost  differentials and  the direct statewide price component shall be subject to a case mix adjustment  utilizing  the  patients  that  are  eligible  for   medical assistance  pursuant  to  title  eleven  of  article  five of the social  services law.  Such  wage  equalization  factor  shall  be  periodically updated to reflect current labor market conditions.  (c) The non-capital component of the rates for: (i) AIDS facilities or discrete AIDS units within facilities; (ii) discrete units for residents receiving  care  in  a  long-term  inpatient  rehabilitation program for traumatic  brain  injured  persons;  (iii)  discrete   units   providing specialized  programs  for residents requiring behavioral interventions; (iv) discrete units for long-term ventilator  dependent  residents;  and (v)   facilities  or  discrete  units  within  facilities  that  provide extensive  nursing,  medical,  psychological  and   counseling   support services  solely  to children shall reflect the rates in effect for such facilities  on  January  first,  two  thousand  nine,  as  adjusted  for inflation  and  rate  appeals  in  accordance  with applicable statutes, provided,  however,  that  such  rates  for  facilities   described   in subparagraph  (i) of this paragraph shall reflect the application of the provisions of section twelve of part D of  chapter  fifty-eight  of  the laws  of  two thousand nine, and provided further, however, that insofar as such rates reflect trend adjustments for trend  factors  attributable to  the  two  thousand  eight  and  two thousand nine calendar years the aggregate amount of such trend factor adjustments shall  be  subject  to the  provisions  of  section two of part D of chapter fifty-eight of the laws of two thousand nine, as amended.  (d) The commissioner shall promulgate regulations, and may  promulgate emergency  regulations, to implement the provisions of this subdivision. Such regulations shall be developed in  consultation  with  the  nursing home  industry  and  advocates  for  residential  health  care  facility residents and, further,  the  commissioner  shall  provide  notification concerning  such  regulations  to  the chairs of the senate and assembly health committees, the chair of the senate  finance  committee  and  the chair  of  the assembly ways and means committee. Such regulations shall include provisions for  rate  adjustments  or  payment  enhancements  to facilitate   a   minimum  four-year  transition  of  facilities  to  the rate-setting methodology established by this subdivision  and  may  also include,  but  not  be  limited  to, provisions for facilitating quality improvements in residential health  care  facilities.  For  purposes  of facilitating quality improvements through the establishment of a nursing home quality pool, those facilities that contribute to the quality pool, but are deemed ineligible for quality pool payments due exclusively to a specific case of employee misconduct, shall nevertheless be eligible for a  quality  pool payment if the facility properly reported the incident, did not receive a survey citation from the commissioner or  the  Centers for   Medicare   and   Medicaid  Services  establishing  the  facility's culpability with regard to such misconduct and,  but  for  the  specific case  of employee misconduct, the facility would have otherwise received a quality pool payment. Regulations pertaining to  the  facilitation  of quality  improvement  may  be  made  effective  for periods on and after January first, two thousand thirteen.  (e) With the exception of those enrollees covered under a payment rate methodology  agreement  negotiated  with  a  residential   health   care facility,  payments  for  inpatient  residential  health  care  facility services provided to patients eligible for medical  assistance  pursuant to  title  eleven  of  article  five  of the social services law made by organizations operating in accordance with  the  provisions  of  article forty-four  of  this  chapter  or  by  health  maintenance organizations organized and operating in accordance with article  forty-three  of  the insurance law, shall be the rates of payment that would be paid for such patients  under the medical assistance program as determined pursuant to this section and subdivision ten of section twenty-eight hundred seven-d  of this article and  as  in  effect  at  the  time  such  services  were provided.  The  provisions of this paragraph shall not apply to payments for patients whose placement in a residential health  care  facility  is for the purpose of receiving time-limited rehabilitation, to be followed by  discharge  from  the  facility,  during the period such time-limited services are provided.  (f) The commissioner shall establish a prospective per diem adjustment for all nursing homes,  other  than  nursing  homes  providing  services primarily  to  children  under  the  age  of twenty-one, beginning April first, two thousand seventeen and each  year  thereafter  sufficient  to achieve eighteen million dollars in savings in each state fiscal year.   * (g)  Notwithstanding any other provision of law or regulation to the contrary, any residential health care facility established  pursuant  to this  article  located  in  a  county  with  a  population  of more than seventy-two thousand and less then seventy-five thousand  persons  based on  the  two  thousand  ten  federal  census,  and operating between one hundred ten and  one  hundred  thirty  beds,  being  reimbursed  by  the department on a fee-for-services basis, shall be reimbursed at a rate of no  less  than one hundred seventeen percent of the fee-for-service rate of reimbursement calculated pursuant to this section for  that  facility for  inpatient  services  provided on or after March first, two thousand eighteen.   * NB There are 2 par (g)'s   * (g) The commissioner shall reduce Medicaid revenue to a  residential health  care facility in a payment year by two percent if in each of the two most recent payment years for which  New  York  state  nursing  home quality  initiative  data  is  available, the facility was ranked in the lowest two quintiles of facilities based on  its  nursing  home  quality initiative  performance,  and  was  ranked in the lowest quintile in the most recent payment year. The commissioner shall waive  the  application of  this paragraph to a facility if the commissioner determines that the facility is in financial distress.   * NB There are 2 par (g)'s   2-d.  Residential  health   care   facility   supplemental   payments. Notwithstanding  any  inconsistent  provision of law, rule or regulation and subject to the availability of federal financial participation,  for the  period May first, two thousand eleven through May thirty-first, two thousand eleven, the commissioner shall adjust inpatient medicaid  rates of payment established pursuant to this article for eligible residential health care facilities in accordance with the following:  (a) Rate adjustments made pursuant to this subdivision shall be in the form  of  rate  add-ons  and shall not exceed an aggregate amount of two hundred twenty-one million three hundred thousand dollars.  (b) Eligible facilities are those facilities  which  the  commissioner determines  have experienced a net reduction in their inpatient Medicaid reimbursement for the period April  first,  two  thousand  nine  through March thirty-first, two thousand eleven as a result of the following:  (i)  inpatient  rate  adjustments  made  pursuant  to paragraph (b) of subdivision two-b of this section;  (ii) use of the case mix methodology described  in  paragraph  (g)  of subdivision two-b of this section;  (iii)  inpatient rate adjustments made pursuant to section two of part D of chapter fifty-eight of the laws of two thousand nine, as amended.  (c) The following eligible facilities shall receive  rate  adjustments pursuant  to  this subdivision equal to one hundred percent of their net reimbursement reduction as computed by the  commissioner  in  accordance with paragraph (b) of this subdivision:  (i)  facilities that have been determined by the commissioner as being eligible for distributions of amounts available  for  the  two  thousand nine period as provided in subdivision twenty-one of this section;  (ii)  non-public  facilities  whose  total  operating  losses equal or exceed five percent  of  total  operating  revenue  and  whose  medicaid utilization equals or exceeds seventy percent, based on either their two thousand  nine  cost  report  or  based  on  the otherwise most recently available cost report, as determined by the commissioner;  (iii) facilities or distinct units of facilities  providing  inpatient services primarily to children under the age of twenty-one.  (d)  Eligible  facilities, other than eligible facilities described in paragraph (c)  of  this  subdivision,  shall  receive  rate  adjustments pursuant  to  this  subdivision  equal  to  fifty  percent  of their net reimbursement reduction as computed by the  commissioner  in  accordance with paragraph (b) of this subdivision.  (e)  Eligible  facilities  as  described  in  paragraph  (d)  of  this subdivision which, as determined by the commissioner, after  application of the rate adjustments authorized by paragraph (d) of this subdivision, remain  subject  to  a net reduction in their inpatient Medicaid revenue that is in excess of  two  percent,  as  measured  with  regard  to  the non-capital  components  of  facility inpatient rates in effect on March thirty-first, two thousand nine as computed prior to the application  of trend  factor adjustments attributable to the two thousand eight and two thousand nine calendar years, shall have their  rates  further  adjusted such that such net reduction does not exceed such two percent.  (f)  Eligible  facilities  as  described  in  paragraph  (d)  of  this subdivision which, as determined by the commissioner, have experienced a net reduction in their inpatient rates of more than six million  dollars as  a  result of the application of the factor described in subparagraph (iii) of paragraph (b) of this subdivision shall  after  application  of the  provisions  of  paragraph (e) of this subdivision, have their rates further adjusted such that any such net reduction  remaining  after  the application  of  the  other provisions of this subdivision is reduced to zero.  (g) In computing net reductions of medicaid reimbursement pursuant  to paragraph (b) of this subdivision the commissioner shall:  (i)  disregard  the  impact  of  case  mix  adjustments  as  otherwise scheduled for July first, two thousand ten; and,  (ii) disregard the impact of any rate adjustments issued on  or  after January  first,  two  thousand  eleven,  including  adjustments  to rate periods prior to January first, two thousand eleven.  (h) Payments made pursuant to this subdivision shall not be subject to subsequent adjustment or reconciliation and,  further,  the  computation and application of limitations on medicaid rates of payment as described in  section  two  of  part  D  of chapter fifty-eight of the laws of two thousand nine, as  amended,  and  as  applicable  to  the  rate  periods described in paragraph (a) of this subdivision, shall disregard payments made pursuant to this subdivision.  (i)  Additional  rate  adjustments  shall  be  made  pursuant  to this subdivision to eligible facilities in the form of rate add-ons  for  the period  May  first,  two  thousand  eleven through May thirty-first, two thousand eleven which shall in aggregate be equal to twenty-five percent of the aggregate amount described in paragraph (a) of  this  subdivision and  which  shall  be  distributed to each eligible facility in the same proportion  as  the  total  distributions  otherwise  received  by  each facility pursuant to this subdivision.  (j)  The  commissioner  may,  with the approval of the director of the budget, and subject to the identification  of  sufficient  nursing  home  related  medicaid  savings to offset the expenditures authorized by this paragraph, make additional rate adjustments pursuant to this subdivision to eligible facilities in the  form  of  rate  add-ons  for  the  period December  first,  two thousand eleven through December thirty-first, two thousand eleven  which  shall  in  aggregate  be  equal  to  twelve  and five-tenths  percent  of the aggregate amount described in paragraph (a) of this subdivision and which shall  be  distributed  to  each  eligible facility  in  the  same  proportion as the total distributions otherwise received by each facility pursuant to this subdivision.   3. The commissioner, with the approval of the  state  hospital  review and  planning  council, shall promulgate regulations to be effective the first day of January, nineteen hundred seventy-eight, which shall relate the rate of payment to the efficient operation and program management of the facility, as well as to the quality of patient care provided by  the facility.  Such regulations shall be consistent with the requirements of subdivision three of section twenty-eight hundred seven of this  chapter and with federal laws and regulations.   4.  The commissioner, in determining and certifying to the director of the budget the rates of payment to residential health  care  facilities, shall  exclude  the following costs: (a) contributions or other payments to  political  parties,  candidates  or  organizations;  (b)  direct  or indirect  costs  incurred for advertising or promotion except as allowed by the commissioner; (c) costs incurred for the promotion or opposition, directly or indirectly, of the passage of bills or  resolutions  pending before  or  passed  by a legislative body of any jurisdiction; (d) costs which principally afford diversion, entertainment or amusement to  their owners,  operators  or employees not properly related to patient care or treatment; (e) any penalty imposed by governmental agencies  or  courts, and  the  costs  of  policies  obtained  solely  to  insure  against the imposition of such a penalty; and (f) costs incurred by the  residential health   care  facility  to  obtain  the  security  required  under  the provisions of section twenty-eight hundred nine of this chapter.   5. (a) Any operator withdrawing  equity  or  assets  from  a  hospital operated  for profit so as to create or increase a negative net worth or when the hospital is  in  a  negative  net  worth  position,  calculated without  regard  to  any  surplus created by revaluation of assets, must obtain the  prior  approval  of  the  commissioner  in  accordance  with regulations  promulgated  by  the  commissioner with the approval of the state hospital review and planning council. The commissioner shall  make a  determination  to  approve  or disapprove a request for withdrawal of equity or assets under this subdivision within sixty days of the date of the receipt of such  a  request.  Requests  shall  be  made  in  a  form acceptable  to  the  department  by  certified  or  registered  mail. In addition to any other remedy or penalty available  under  this  chapter, and  after  opportunity  for  a  hearing,  the  commissioner may require replacement of the withdrawn equity or assets and may impose  a  penalty for  violation  of  the  provisions  of  this  subdivision,  relating to withdrawing equity or assets, or the regulations promulgated thereunder, in an amount not to exceed ten percent of any amount  withdrawn  without prior approval. No facility shall enter into a real property mortgage or lease  transaction  without  thirty  days prior notice in writing to the commissioner.  (b) On  and  after  April  first,  two  thousand  ten,  no  non-public residential  health care facility may withdraw equity or transfer assets which in the aggregate exceed three percent  of  such  facility's  total reported  annual  revenue  for  patient  care  services,  based  on  the facility's most recently available reported data, without prior  written  notification  to  the commissioner. Notification shall be made in a form acceptable to the department by certified or registered mail.  (c) Notwithstanding any inconsistent provision of this subdivision, on and  after  April  first,  two  thousand  ten, no non-public residential health care facility, whether operated as a for-profit facility or as  a not-for-profit facility, may withdraw equity or transfer assets which in the  aggregate  exceed  three  percent of such facility's total reported annual revenue for patient care services, based on the  facility's  most recently  available reported data, without the prior written approval of the commissioner. The commissioner shall make a determination to approve or disapprove a request for withdrawal of equity or  assets  under  this subdivision  within  sixty  days of the date of the receipt of a written request from the facility. Requests shall be made in a  form  acceptable to  the  department  by  certified or registered mail. In reviewing such requests  the  commissioner  shall  consider  the   facility's   overall financial  condition, any indications of financial distress, whether the facility is delinquent in any payment owed to  the  department,  whether the  facility  has  been  cited  for  immediate  jeopardy or substandard quality of care, and  such  other  factors  as  the  commissioner  deems appropriate.  In addition to any other remedy or penalty available under this chapter, and after opportunity for a hearing, the commissioner  may require  replacement  of the withdrawn equity or assets and may impose a penalty for violation of the provisions of this subdivision in an amount not to  exceed  ten  percent  of  any  amount  withdrawn  without  prior approval.   * 6.  Prior  to the approval by the state hospital review and planning council of any regulations promulgated pursuant  to  this  section,  the commissioner  shall  convene  a public hearing, upon at least seven days notice, to consider the proposed  regulations.  The  commissioner  shall include  a  summary  of the comments made at such hearing in a report to the state hospital review and planning council at the meeting  at  which it considers the regulations for approval.   * NB Expired December 31, 1985   * 7.  The  commissioner  may  assess an annual fee on each residential health care  facility  to  be  used  to  reimburse  any  first  instance appropriation  for  the purpose of making payments to receivers pursuant to subdivision  three  of  section  twenty-eight  hundred  ten  of  this article.  Such  fee  shall  not  exceed thirty dollars per bed certified pursuant to this article, and shall be a reimbursable  expense  for  the purposes  of  determining  rates of payment made by government agencies. The reimbursement rate for a facility  must  reflect  the  cost  of  the annual  fee  prior  to  requiring  that  the  facility  pay the fee. The commissioner shall seek to obtain federal approval to include  such  fee as  a reimbursable expense for purposes of computing reimbursement rates pursuant to title XVIII of the federal social security act.   * NB (Effective pending Federal Law - Expired December 31, 1983)   8. Every lease or lease renewal executed on or after September  first, nineteen  hundred  eighty-six  between  a landlord and the operator of a residential health care facility shall contain a  provision  terminating any  interest  the  operator  of  such facility may have in any lease of premises used for the operation of such facility after the public health council has approved the establishment of a new operator. Nothing herein shall be construed to affect any interest such operator may have in  any movable  equipment located on the premises of the facility. In the event any lease or  lease  renewal  executed  on  or  after  September  first, nineteen  hundred  eighty-six fails to contain the termination provision required by this subdivision, the lease or lease renewal shall be deemed to be terminated upon the  public  health  council  approval  of  a  new  operator.  The  commissioner, the landlord, or the new operator shall be entitled to maintain a summary proceeding to recover possession  of  the real   property  in  any  court  of  competent  jurisdiction  upon  such termination.   9.  Trend  factors.  (a)  The  commissioner,  in  accordance  with the methodology developed by the consultants pursuant to  paragraph  (b)  of this  subdivision,  shall  establish  trend  factors  to project for the effect of inflation. The factors shall be  applied  to  the  appropriate portion of reimbursable costs of residential health care facilities. The methodology   for   developing   the  trend  factor  shall  include  the appropriate external price indicators and shall also  include  the  data from major collective bargaining agreements as reported quarterly by the federal   department   of   labor,   bureau  of  labor  statistics,  for nonsupervisory employees.  (b) The methodology shall be developed by four independent consultants with  expertise  in  health  economics  appointed  by  the  commissioner pursuant  to  paragraph  (b)  of subdivision ten of section twenty-eight hundred seven-c of this chapter. On or about  September  first  of  each year  following  the effective date of this subdivision, the consultants shall provide to the commissioner and the council the methodology to  be used  to  determine  the trend factors for subsequent rate periods only, beginning with the nine month period commencing  April  first,  nineteen hundred  ninety-one  and  for subsequent twelve month periods commencing January  first,  nineteen  hundred  ninety-two   and   thereafter.   The commissioner  shall  monitor  the  actual  price  movements during these periods of the external price indicators used in the methodology,  shall report  the  results  of  the  monitoring  to  the consultants and shall implement the recommendations of the  consultants  for  one  prospective interim  annual  adjustment  to  the trend factors to reflect such price movements and to be effective on  January  first,  one  year  after  the initial  trend  factor  was established and one prospective final annual adjustment to the trend factors to reflect such price movements  and  to be  effective on January first, two years after the initial trend factor was established.   11. Residential health care facility reimbursement rate  promulgation. With  regard  to  a  residential health care facility, the provisions of subdivision seven of section twenty-eight hundred seven of this  article relating to advance notification of rates shall not apply to prospective or retroactive adjustments to rates that are based on rate appeals filed by  such  facility,  audits,  changes  in  patient  conditions or acuity levels, the correction of errors or omissions of data or errors  in  the computations  of  such  rates,  the  submission of cost report data from facilities without an established cost basis, the judicial annulment  or invalidation  of  existing  rates  or changes in the methodology used to compute rates which  changes  are  promulgated  following  the  judicial annulment  or  invalidation of existing rates or as otherwise authorized by law. Notwithstanding any inconsistent provision of law or regulation, as of April first, two thousand nine, with regard to administrative rate appeals, the department will  only  review  such  appeals  for  (a)  the correction   of  computational  errors  or  omissions  of  data  by  the department in determining the operating rate based upon the  information provided  to  the  department  prior to the computation of the rate, (b) capital cost reimbursement, or (c)  such  reasons  as  the  commissioner determines  are  appropriate.  The  department  will  not  consider  any revisions made to a facility's annual cost  report  for  operating  rate adjustment   purpose   later  than  the  due  date  established  by  the commissioner.    12.  (a)  Notwithstanding  any  inconsistent  provision  of   law   or regulation, the commissioner shall increase rates of payment established pursuant  to  this  article  for  non-state  operated public residential health care facilities in an aggregate amount not to exceed one  hundred million  dollars  in  additional reimbursement for payments for services provided during the period  July  first,  nineteen  hundred  ninety-five through   March   thirty-first,   nineteen   hundred   ninety-six.   The commissioner may adopt rules and regulations necessary to implement this paragraph.  (b) Notwithstanding any inconsistent provision of law  or  regulation, the  commissioner  shall  provide,  in  addition to payments established pursuant  to  this  article  prior  to  application  of  this   section, additional  payments  under  the  medical assistance program pursuant to title eleven of article five of the social services  law  for  non-state operated  public  residential  health  care facilities, excluding public residential health care facilities operated by a town or city  within  a county,  in  an  aggregate  amount  of  two  hundred fifty-seven million dollars in additional payments in  the  period  August  first,  nineteen hundred   ninety-six   through   March  thirty-first,  nineteen  hundred ninety-seven.  (c) Notwithstanding any inconsistent provision of law  or  regulation, the  commissioner  shall  provide,  in  addition to payments established pursuant  to  this  article  prior  to  application  of  this   section, additional  payments  under  the  medical assistance program pursuant to title eleven of article five of the social services  law  for  non-state operated  public  residential  health  care facilities, including public residential health care facilities located in the county of  Nassau  and the  county of Westchester, but excluding public residential health care facilities operated by a town or city within a county, in  an  aggregate amount  of  $631.1  million  in  additional payments in the period April first,  nineteen  hundred  ninety-seven  through   March   thirty-first, nineteen  hundred  ninety-eight,  and  a like amount in the period April first,  nineteen  hundred  ninety-eight  through   March   thirty-first, nineteen hundred ninety-nine.  (d)  Notwithstanding  any inconsistent provision of law or regulation, the commissioner shall provide,  in  addition  to  payments  established pursuant   to  this  article  prior  to  application  of  this  section, additional payments under the medical  assistance  program  pursuant  to title  eleven  of  article five of the social services law for non-state operated public residential health  care  facilities,  including  public residential  health  care facilities located in the county of Nassau and the county of Westchester, but excluding public residential health  care facilities  operated  by a town or city within a county, in an aggregate amount of $914.5 million in additional  payments  in  the  period  April first,  nineteen  hundred  ninety-nine  through  March thirty-first, two thousand.  (e) Notwithstanding any inconsistent provision of law  or  regulation, the  commissioner  shall  provide,  in  addition to payments established pursuant  to  this  article  prior  to  application  of  this   section, additional  payments  under  the  medical assistance program pursuant to title eleven of article five of the social services  law  for  non-state operated  public  residential  health  care facilities, including public residential health care facilities located in the county of  Nassau  and the  county of Westchester, but excluding public residential health care facilities operated by a town or city within a county, in  an  aggregate amount  of up to $991.5 million in additional payments each state fiscal year for the period beginning April first, two  thousand  through  March thirty-first, two thousand five.  (e-1) Notwithstanding any inconsistent provision of law or regulation, the  commissioner  shall  provide,  in  addition to payments established pursuant  to  this  article  prior  to  application  of  this   section, additional  payments  under  the  medical assistance program pursuant to title  eleven  of  article five of the social services law for non-state operated public residential health  care  facilities,  including  public residential  health care facilities located in the county of Nassau, the county of Westchester and the  county  of  Erie,  but  excluding  public residential  health  care facilities operated by a town or city within a county, in aggregate annual amounts of up to one hundred  fifty  million dollars in additional payments for the state fiscal year beginning April first,  two  thousand  six and for the state fiscal year beginning April first, two thousand seven and for the state fiscal year beginning  April first,  two thousand eight and of up to three hundred million dollars in such aggregate annual additional payments  for  the  state  fiscal  year beginning  April first, two thousand nine, and for the state fiscal year beginning April first, two thousand ten and for the  state  fiscal  year beginning  April  first,  two  thousand eleven, and for the state fiscal years beginning April first, two thousand twelve and  April  first,  two thousand  thirteen,  and  of  up to five hundred million dollars in such aggregate  annual  additional  payments  for  the  state  fiscal   years beginning  April first, two thousand fourteen, April first, two thousand fifteen and April first, two thousand sixteen and of up to five  hundred million  dollars  in  such  aggregate annual additional payments for the state fiscal years beginning April first, two thousand seventeen,  April first,  two  thousand  eighteen, and April first, two thousand nineteen, and of up to five hundred  million  dollars  in  such  aggregate  annual additional  payments  for  the state fiscal years beginning April first, two thousand twenty, April first, two  thousand  twenty-one,  and  April first,  two  thousand  twenty-two. The amount allocated to each eligible public residential  health  care  facility  for  this  period  shall  be computed  in  accordance  with  the  provisions of paragraph (f) of this subdivision, provided, however, that patient days shall be utilized  for such  computation reflecting actual reported data for two thousand three and each representative succeeding  year  as  applicable,  and  provided further,  however, that, in consultation with impacted providers, of the funds allocated for distribution in  the  state  fiscal  year  beginning April first, two thousand thirteen, up to thirty-two million dollars may be allocated in accordance with paragraph (f-1) of this subdivision.  (f)  The  amount  allocated to each eligible public residential health care facility for each period shall be calculated as the result  of  (A) the total payment for each period multiplied by (B) the ratio of patient days  for  patients  eligible  for  medical assistance pursuant to title eleven of article five of the social services law provided by the public residential health care facility, divided by the total of  such  patient days  summed for all eligible public residential health care facilities. For the period August first, nineteen hundred ninety-six  through  March thirty-first,    nineteen   hundred   ninety-seven,   nineteen   hundred ninety-four patient days shall be utilized; for the period April  first, nineteen  hundred  ninety-seven  through  March  thirty-first,  nineteen hundred ninety-eight, nineteen hundred ninety-five patient days shall be utilized; for the period  April  first,  nineteen  hundred  ninety-eight through  March  thirty-first,  nineteen  hundred  ninety-nine,  nineteen hundred ninety-six patient days shall be utilized; for the period  April first,  nineteen  hundred  ninety-nine  through  March thirty-first, two thousand, nineteen hundred ninety-seven patient days shall be  utilized; for the period April first, two thousand through March thirty-first, two thousand  one,  nineteen  hundred  ninety-eight  patient  days  shall be  utilized; for the period April first, two  thousand  one  through  March thirty-first,  two  thousand  two,  nineteen hundred ninety-nine patient days shall be utilized; for the period April  first,  two  thousand  two through  March  thirty-first,  two  thousand three, two thousand patient days shall be utilized; for the period April first, two  thousand  three through  March thirty-first, two thousand four, two thousand one patient days shall be utilized; for the period April first,  two  thousand  four through  March thirty-first, two thousand five, two thousand two patient days shall be utilized.  (f-1) Funds allocated by the provisions of  paragraph  (e-1)  of  this subdivision  for  distribution  pursuant  to  this  paragraph,  shall be allocated  proportionally  to  those  public  residential  health   care facilities which were subject to retroactive reductions in payments made pursuant  to  this  subdivision  for state fiscal year periods beginning April first, two thousand six.  (g) Payments may be made based on adjustments to rates of payment  for services  provided  during the applicable period or as lump sum payments to an eligible residential health care facility.   13. Notwithstanding any inconsistent provision of law or regulation to the  contrary,  residential  health  care  facility  rates  of   payment determined  pursuant  to  this  article  for  governmental  agencies for services provided on or after July first, nineteen  hundred  ninety-five through March thirty-first, nineteen hundred ninety-six shall be reduced by   the   commissioner,  to  reflect  the  elimination  of  operational requirements  previously  mandated  by  law  or,  consistent  with   the standards  specified in subparagraph (v) of paragraph (a) of subdivision two of section twenty-eight hundred three of this article, regulation or the commissioner or other governmental agency, by a factor determined as follows:  (i) an aggregate reduction shall be calculated  for  each  residential health  care  facility as the result of (A) fifty-six million dollars on an annualized basis for nineteen hundred  ninety-five,  trended  to  the rate  year  by  the trend factor for projection of reimbursable costs to the rate year, multiplied by (B) the ratio of patient days for  patients eligible  for  payments made by governmental agencies provided in a base year two years prior to the rate  year  by  a  residential  health  care facility,  divided  by  the  total  of  such patient days summed for all residential health care facilities; and  (ii) the result for each residential health  care  facility  shall  be divided  by  such  patient  days provided in the residential health care facility, for a  per  diem  reduction  in  rates  of  payment  for  such residential health care facility for patients eligible for payments made by governmental agencies.   14.   (a)   Notwithstanding  any  inconsistent  provision  of  law  or regulation to the  contrary,  for  purposes  of  establishing  rates  of payment  by governmental agencies for residential health care facilities for  services  provided  on  or  after  April  first,  nineteen  hundred ninety-five through March thirty-first, nineteen hundred ninety-nine and for   services  provided  on  or  after  July  first,  nineteen  hundred ninety-nine through March thirty-first, two thousand and  on  and  after April first, two thousand through March thirty-first, two thousand three and  on  and  after  April  first,  two  thousand  three  through  March thirty-first, two thousand  six  and  on  and  after  April  first,  two thousand  six  through  December  thirty-first,  two  thousand  six, the reimbursable base  year  administrative  services  and  fiscal  services costs, as defined in the New York state residential health care facility accounting  and reporting manual, of a residential health care facility, excluding a provider of services reimbursed on an initial budget  basis,  shall,  except as otherwise provided in this subdivision, not exceed the statewide average of total reimbursable  base  year  administrative  and fiscal  services  costs  of  residential health care facilities. For the purposes  of this subdivision, reimbursable base year administrative and fiscal services costs shall mean  those  base  year  administrative  and fiscal   services   costs  remaining  after  application  of  all  other efficiency standards, including but not  limited  to,  peer  group  cost ceilings or guidelines.  (b)  A  separate  statewide  average  of  total reimbursable base year administrative and fiscal services costs shall be determined for each of those facilities wherein eighty percent or  more  of  its  patients  are classified with a patient acuity equal to or less than .83 which is used as  the  basis for a facility's case mix adjustment. For the period July first, two thousand through March thirty-first, two  thousand  one,  the total reimbursable base year administrative and fiscal services costs of such  facilities  shall  not exceed such separate statewide average plus one and  one-half  percentage  points.  For  annual  periods  thereafter through  December thirty-first, two thousand six, the total reimbursable base year administrative and fiscal services costs  of  such  facilities shall  not exceed such separate statewide average. In no event shall the calculation of such separate statewide average result in a change in the statewide average determined under paragraph (a) of this subdivision.  (c) The limitation on reimbursement for  provider  administrative  and fiscal  expenses  provided  by  this subdivision shall be expressed as a percentage reduction  of  the  operating  cost  component  of  the  rate promulgated  by  the  commissioner  for  each  residential  health  care facility.   15. Notwithstanding any inconsistent provision of law or regulation to the  contrary,  for  services  provided  by  residential   health   care facilities  for  the  period  April  first, nineteen hundred ninety-five through   March   thirty-first,   nineteen   hundred   ninety-six,   the commissioner shall not be required to revise a certified rate of payment established  pursuant  to  this  article  based on consideration of rate appeals filed by a residential health care facility. In cases where  the commissioner determines that a significant financial hardship exists, he or  she  may,  subject  to  the  approval of the director of the budget, consider an  exemption  to  this  subdivision.  Beginning  April  first, nineteen  hundred  ninety-six  and  thereafter,  the  commissioner shall consider such rate appeals  within  a  reasonable  period.  After  April first, nineteen hundred ninety-six, through March thirty-first, nineteen hundred  ninety-seven,  the commissioner shall revise certified rates of payment not to  exceed  an  aggregate  payment  of  forty-seven  million dollars, state share medical assistance.   16. Notwithstanding any inconsistent provision of law or regulation to the   contrary,  residential  health  care  facility  rates  of  payment determined pursuant  to  this  article  for  governmental  agencies  for services  provided  on or after April first, nineteen hundred ninety-six through March thirty-first, nineteen hundred ninety-nine and on or after July first, nineteen hundred ninety-nine through March thirty-first, two thousand and on and  after  April  first,  two  thousand  through  March thirty-first,  two  thousand  three  and  on  and after April first, two thousand three through March thirty-first, two thousand six and  on  and after  April  first, two thousand six through December thirty-first, two thousand six, shall be further reduced by the commissioner to  encourage improved productivity and efficiency by providers by a factor determined as follows:  (a)  an  aggregate  reduction shall be calculated for each residential health care facility commencing April first, nineteen hundred ninety-six  through March thirty-first, nineteen hundred ninety-nine and on or after July first, nineteen hundred ninety-nine through March thirty-first, two thousand and on and  after  April  first,  two  thousand  through  March thirty-first,  two  thousand  three  and  on  and after April first, two thousand three through March thirty-first, two thousand six and  on  and after  April  first, two thousand six through December thirty-first, two thousand six as the result  of  (i)  fifty-six  million  dollars  on  an annualized  basis  multiplied  by  (ii)  the  ratio  of patient days for patients eligible for payments made by governmental agencies provided in a base year two years prior to the rate year  by  a  residential  health care facility, or for residential health care facility beds not fully in operation  in such base year by an estimate of projected utilization for the rate year, divided by the total of such patient days summed for  all residential health care facilities; and  (b)  the  result  for  each  residential health care facility shall be divided by such patient days provided in  the  residential  health  care facility,  for  a  per  diem  reduction  in  rates  of  payment for such residential health care facility for patients eligible for payments made by governmental agencies.   17.  (a)  Notwithstanding  any  inconsistent  provision  of   law   or regulation to the contrary, for the period April first, nineteen hundred ninety-seven  through March thirty-first, nineteen hundred ninety-eight, the commissioner shall not be required to revise  a  certified  rate  of payment  established  pursuant to this article based on consideration of rate appeals filed by a residential health care facility or  based  upon adjustments to capital cost reimbursement as a result of approval by the commissioner   of   an   application   for  construction  under  section twenty-eight hundred two of this article. For the  period  April  first, nineteen  hundred  ninety-eight,  through  March  thirty-first, nineteen hundred ninety-nine, the commissioner shall revise  certified  rates  of payment  in  an  aggregate  amount not to exceed twenty million dollars, state  share  medical  assistance.  In  cases  where  the   commissioner determines  that a significant financial hardship exists, he or she may, subject to the approval of the  director  of  the  budget,  consider  an exemption  to  this subdivision. Beginning April first, nineteen hundred ninety-nine and thereafter, the commissioner shall  consider  such  rate appeals within a reasonable period.  (b) Notwithstanding any inconsistent provision of law or regulation to the  contrary,  for  the  state  fiscal years beginning April first, two thousand ten and ending March thirty-first, two  thousand  twenty-three, the  commissioner  shall  not  be  required to revise certified rates of payment established pursuant to this article for rate periods  prior  to April  first,  two thousand twenty-three, based on consideration of rate appeals filed by  residential  health  care  facilities  or  based  upon adjustments to capital cost reimbursement as a result of approval by the commissioner   of   an   application   for  construction  under  section twenty-eight hundred two of this article,  in  excess  of  an  aggregate annual  amount of eighty million dollars for each such state fiscal year provided, however, that for the period April first, two thousand  eleven through  March  thirty-first,  two thousand twelve such aggregate annual amount shall be fifty million dollars. In  revising  such  rates  within such  fiscal  limit,  the  commissioner shall, in prioritizing such rate appeals, include consideration  of  which  facilities  the  commissioner determines  are  facing  significant  financial hardship as well as such other considerations as the commissioner deems appropriate and, further, the commissioner is  authorized  to  enter  into  agreements  with  such facilities  or  any  other  facility  to  resolve  multiple pending rate appeals based upon a negotiated aggregate amount  and  may  offset  such  negotiated aggregate amounts against any amounts owed by the facility to the  department, including, but not limited to, amounts owed pursuant to section twenty-eight hundred seven-d of this article; provided, however, that the commissioner's authority to negotiate such agreements resolving multiple  pending  rate appeals as hereinbefore described shall continue on and after April first, two thousand  twenty-three.  Rate  adjustments made  pursuant to this paragraph remain fully subject to approval by the director of the budget in accordance with the provisions of  subdivision two of section twenty-eight hundred seven of this article.  (c)  Notwithstanding  any  other  contrary  provision  of law, rule or regulation, for periods on and after April first,  two  thousand  eleven the  commissioner  shall  promulgate  regulations,  and  may  promulgate emergency regulations,  establishing  priorities  and  time  frames  for processing  rate  appeals,  including  rate appeals filed prior to April first, two thousand eleven, within available  administrative  resources; provided,  however, that such regulations shall not be inconsistent with the provisions of paragraph (b) of this subdivision.   17-a. Notwithstanding any inconsistent provision of law or  regulation to  the  contrary,  for  purposes  of  establishing  rates of payment by governmental  agencies  for  residential  health  care  facilities   for services   provided   on  and  after  January  first,  nineteen  hundred ninety-eight, the regional direct and indirect  input  price  adjustment factors  to  be applied to any such facility's rate calculation shall be based upon the utilization  of  either  nineteen  hundred  eighty-three, nineteen  hundred eighty-seven or nineteen hundred ninety-three calendar year financial and statistical data  and  for  periods  beginning  April first,  two  thousand four through March thirty-first, two thousand nine based  on  either  nineteen  hundred  eighty-three,   nineteen   hundred eighty-seven, nineteen hundred ninety-three or two thousand one calendar year  financial and statistical data; provided, however, the state share amount for the utilization of two thousand one calendar year data  shall be  no  more  than  twenty-two  million  dollars on a pro rata basis per calendar year. The  determination  of  which  calendar  year's  data  to utilize  shall  be  based  upon  a  methodology  that  ensures  that the particular year chosen by each facility results in a factor that  yields no  less reimbursement to the facility than would result from the use of any of the other three years' data. Such methodology shall  utilize  the nineteen hundred eighty-three and nineteen hundred eighty-seven regional direct  and  indirect input price adjustment factor corridor percentages in existence on January first, nineteen hundred ninety-seven as well  as nineteen  hundred  ninety-three regional direct and indirect input price adjustment factor corridor percentage in existence on January first, two thousand four as well as a two thousand one regional direct and indirect input price adjustment factor corridor percentage calculated in the same manner as the nineteen hundred ninety-three direct  and  indirect  input price  adjustment  factor  corridor  percentages in existence on January first, two thousand four; provided, however, for  rate  periods  on  and after   April  first,  two  thousand  nine,  the  regional  input  price adjustment factors shall be based on the case mix predicted staffing for registered nurses, licensed practical nurses,  nurses'  aides,  licensed therapists  and  therapist  aides.  For  the rate period beginning April first, two thousand nine through the day immediately prior  to  the  day the  provisions  of  subdivision  two-c of this section take effect, the regional direct and  indirect  input  price  adjustment  factors  to  be applied  to  a  facility's  rate  calculation  shall  be  based upon the utilization of two thousand two calendar year financial and  statistical data.  Such  methodology  shall utilize two thousand two regional direct and  indirect  input  price  adjustment  factor   corridor   percentages  calculated  in  the  same manner as the two thousand one regional direct and indirect input  price  adjustment  factor  corridor  percentages  in existence  on  December thirty-first, two thousand six except that every region shall receive a corridor to reflect the region's actual variation subject  to  a maximum statewide average variable corridor percentage of ten percent.   18. Residential health care  facility  recruitment  and  retention  of health  care workers. Notwithstanding any inconsistent provision of law, rule or regulation and subject to the availability of federal  financial participation:  (a)  (i)  The  commissioner  shall adjust inpatient medical assistance rates of payment established pursuant to  this  article  for  non-public residential  health care facilities in accordance with subparagraph (ii) of this paragraph for purposes of recruitment and  retention  of  health care  workers  in  the  following  aggregate  amounts  for the following periods:  (A) fifty-three million five hundred thousand dollars on an annualized basis for the period April first,  two  thousand  two  through  December thirty-first,  two  thousand  two;  eighty-three  million  three hundred thousand dollars on an annualized basis for the  period  January  first, two  thousand  three  through December thirty-first, two thousand three; one hundred  fifteen  million  eight  hundred  thousand  dollars  on  an annualized basis for the period January first, two thousand four through December  thirty-first,  two  thousand  six;  fifty-seven  million  nine hundred thousand dollars for the  period  January  first,  two  thousand seven  through  June  thirtieth, two thousand seven, fifty-seven million nine hundred thousand dollars for the period July  first,  two  thousand seven  through  March  thirty-first,  two thousand eight, and fifty-nine million four hundred thousand dollars for the period  April  first,  two thousand eight through March thirty-first, two thousand nine.  (ii)  Such  increases  shall be allocated proportionally based on each non-public residential  health  care  facility's  reported  total  gross salary  and  fringe benefit costs on exhibit H of the 1999 RHCF - 4 cost report or exhibit 11 of the 1999 institutional cost report submitted  as of  November  first, two thousand one, where applicable, to the total of such  reported  costs  for  all  non-public  residential   health   care facilities, provided, however, that for periods on and after July first, two  thousand  seven, fifty percent of such increases shall be allocated proportionally,  based  on  each  non-public  residential  health   care facility's  reported  total  gross  salary  and  fringe benefit costs on exhibit H of the nineteen hundred ninety-nine RHFC - 4  cost  report  or exhibit 11 of the nineteen hundred ninety-nine institutional cost report submitted  to  the department prior to November first, two thousand one, where applicable, to the total of such reported costs for all non-public residential health care facilities, and fifty percent of such  increases shall  be  allocated  proportionately,  based  on  each  such non-public facility's reported Medicaid revenue, as reported in the applicable  two thousand  five  cost  report  as  submitted  to  the department prior to November first, two thousand six, to the total of such Medicaid  revenue reported  by  all  such  non-public  facilities.  These amounts shall be included as a reimbursable cost add-on to medical  assistance  inpatient rates  of  payment  established  pursuant to this article for non-public residential  health  care  facilities,  based  on   medical   assistance utilization  data  in  each  facility's annual cost report submitted two years prior to the rate year. Such amounts shall not  be  reconciled  to reflect  changes  in medical assistance utilization between the year two years prior to the rate year and the rate year.  (b) (i) Notwithstanding sections one hundred twelve  and  one  hundred sixty-three  of  the  state  finance  law  and  any  other  inconsistent provision  of  law,  the  commissioner  shall  make  grants  to   public residential  health care facilities without a competitive bid or request for proposal process for purposes of recruitment and retention of health care  workers  in  the  following  aggregate  amounts  for the following periods:  (A) seven million five hundred thousand dollars on an annualized basis for  the  period  April  first,  two  thousand  two   through   December thirty-first,  two  thousand  two; eleven million seven hundred thousand dollars on an  annualized  basis  for  the  period  January  first,  two thousand  three  through  December  thirty-first,  two  thousand  three; sixteen million two hundred thousand dollars on an annualized basis  for the   period   January   first,   two  thousand  four  through  December thirty-first, two thousand six; and eight million one  hundred  thousand dollars  for  the  period January first, two thousand seven through June thirtieth, two  thousand  seven,  eight  million  one  hundred  thousand dollars  for  the  period  July  first, two thousand seven through March thirty-first,  two  thousand  eight,  six  million  six  hundred  ninety thousand  dollars for the period April first, two thousand eight through March thirty-first, two thousand nine.  (ii) Such grants shall  be  allocated  proportionally  based  on  each public  residential  health  care facility's reported total gross salary and fringe benefit costs on exhibit H of the 1999 RHCF - 4  cost  report or  exhibit  11  of  the  1999 institutional cost report submitted as of November first, two thousand one, where applicable, to the total of such reported costs for all public residential health care facilities.  (c) (i) Non-public and public residential health  care  facilities  in operation  as  of  the  effective  date of this paragraph which have not submitted 1999 RHCF-4 cost reports or 1999  institutional  cost  reports but which have submitted such reports for cost years subsequent to 1999, shall have distributions authorized in subparagraph (i) of paragraph (a) of  this  subdivision  or  in  subparagraph (i) of paragraph (b) of this subdivision allocated based on total gross  salary  and  fringe  benefit costs  on  exhibit  H of the earliest subsequently submitted RHCF-4 cost report  or  exhibit  11   of   the   earliest   subsequently   submitted institutional  cost  report,  as  trended  downward  to 1999 using trend factors  authorized  in  accordance  with  the  provisions  of   section twenty-one of chapter one of the laws of nineteen hundred ninety-nine.  (ii)  Non-public  and  public  residential  health  care facilities in operation as of the effective date of  this  paragraph  which  have  not submitted  1999  or subsequent RHCF-4 cost reports or institutional cost reports, shall have distributions  authorized  in  subparagraph  (i)  of paragraph  (a)  of  this subdivision or in subparagraph (i) of paragraph (b) of this subdivision allocated based on imputed  total  gross  salary and  fringe  benefit  costs  reflecting the average of such costs in the region in which each such facility is located, provided,  however,  that for periods on and after July first, two thousand seven, facilities that have   not   submitted   two  thousand  five  cost  reports  shall  have distributions allocated based  on  imputed  days  of  care  to  patients eligible for medical assistance, reflecting the average of such medicaid days of care in the region in which such facilities are located.  (iii)  Non-public  and public residential health care facilities which received allocations pursuant to subparagraph (ii) of this paragraph and which subsequently submit RHCF-4  cost  reports  or  institutional  cost reports  shall,  for  the purpose of setting medical assistance rates of payment, have such allocations adjusted  to  reflect  costs  which  were  incurred  in connection with such allocations and which are contained in such cost reports.  (d) Residential health care facilities which have their rates adjusted or  receive  grants  pursuant  to  paragraphs  (a),  (b) and (c) of this subdivision, respectively, shall use  such  funds  for  the  purpose  of recruitment  and  retention  of  non-supervisory  workers at health care facilities or any worker with direct patient care responsibility and are prohibited from using such funds for any other purpose. Funds under this subdivision are not intended to supplant support  provided  by  a  local government.  Each such residential health care facility shall submit, at a time and in a manner to be determined by the commissioner,  a  written certification  attesting  that  such  funds  will be used solely for the purpose of recruitment  and  retention  of  non-supervisory  workers  at health   care   facilities  or  any  worker  with  direct  patient  care responsibility. The commissioner is authorized to audit each residential health care facility to ensure compliance with the written certification required by this paragraph and shall recoup any funds determined to have been  used  for  purposes  other  than  recruitment  and  retention   of non-supervisory  workers  at  health  care facilities or any worker with direct patient care responsibility. Such recoupment shall be in addition to applicable penalties under  sections  twelve  and  twelve-b  of  this chapter.  (e) Residential health care facilities which have their rates adjusted or  receive  grants  pursuant  to  paragraphs  (a),  (b) and (c) of this subdivision, respectively, shall use  such  funds  for  the  purpose  of recruitment  and  retention  of  non-supervisory  workers at health care facilities or any worker with direct patient care responsibility and are prohibited from using such funds for any other purpose. Funds under this subdivision are not intended to supplant support  provided  by  a  local government.  Each such residential health care facility shall submit, at a time and in a manner to be determined by the commissioner,  a  written certification  attesting  that  such  funds  will be used solely for the purpose of recruitment  and  retention  of  non-supervisory  workers  at health   care   facilities  or  any  worker  with  direct  patient  care responsibility. The commissioner is authorized to audit each residential health care facility to ensure compliance with the written certification required by this paragraph and shall recoup any funds determined to have been  used  for  purposes  other  than  recruitment  and  retention   of non-supervisory  workers  at  health  care facilities or any worker with direct patient care responsibility. Such recoupment shall be in addition to applicable penalties under  sections  twelve  and  twelve-b  of  this chapter.   19.  Notwithstanding  any law, rule or regulation to the contrary, the commissioner shall within amounts allocated pursuant to  paragraph  (hh) of  subdivision  one  of  section  twenty-eight  hundred seven-v of this article, make adjustments to the medical assistance rates of payment  to residential   health  care  facilities  to  assist  certain  financially disadvantaged nursing homes, in order to promote financial stability and quality  improvement.  Such  adjustments  shall  be  made  pursuant   to subdivision twenty-one of this section.   20.   a.  The  commissioner  shall  timely  develop  and  implement  a standardized process for assessing the feasibility of  capital  mortgage re-financings, including a standard formula for determining the net cost benefit of re-financing, inclusive of all transaction and closing costs. On  or  before  September first, two thousand three or thirty days after the commissioner makes the standard  formula  available  to  facilities, each residential health care facility established under this article and certified  as  a  provider  pursuant  to title XIX of the federal social  security act (Medicaid), except for those facilities  established  under the  nursing  home  companies law or the hospital loan construction law, shall review its existing capital  debt  structure  using  the  standard formula  to  evaluate  whether  or  not a material cost benefit could be derived by re-financing its capital mortgage  or  mortgages,  and  shall forward the results of such review to the commissioner. The commissioner may  request  and  such facilities shall submit descriptions of existing mortgage arrangements and  debt  service  reserve  funds  as  needed  to implement  paragraph b of this subdivision. Facilities established under the nursing home companies law or the  hospital  loan  construction  law shall  submit  to  the  dormitory  authority, the housing finance agency and/or the state of New York mortgage  agency  such  information  as  is required  by  such  agency  to  evaluate  potential re-financing of such capital mortgages.   b. the commissioner shall review each facility's submission and make a written  determination  as  to  whether  or  not  the  facility   should re-finance  its  capital  mortgage  or  mortgages,  and  if so, for what amount, within sixty days of the date of the facility's submission based on the following parameters:  (i) the mortgage re-financing must result  in  a  present  value  cost benefit  that  "materially  exceeds",  as  such  term  is defined by the commissioner, the amount of all transaction and closing costs associated with the re-financing, including any  pre-payment  penalties  associated with  the  current mortgage or mortgages. The commissioner shall do such calculations in a manner consistent with comparable calculations in  the state finance law;  (ii)  mortgages  may  be  re-financed  for  a  term  greater  than the remaining term of the existing debt within certain limits, if  doing  so would result in the present value cost benefit specified in subparagraph (i) of this paragraph;  (iii)  mortgages  may  be re-financed utilizing variable rate mortgage loans, if doing so would  result  in  the  present  value  cost  benefit specified  in  subparagraph  (i)  of  this paragraph. In such cases, for purposes  of  determining  the  reimbursable  capital  interest  expense included  in  the  capital cost component of rates of payment determined pursuant to this article, the average interest rate over the life of the re-financed mortgage shall not exceed the interest rate in effect on the previous mortgage debt immediately prior to the re-financing;  (iv)  not-for-profit  and   governmental   residential   health   care facilities  may  utilize  taxable  mortgage  loans  to  re-finance their existing debts, if doing so would  result  in  the  present  value  cost benefit specified in subparagraph (i) of this paragraph;  (v)  moneys  contained  in  facility debt service reserve funds may be considered in the evaluation of amounts necessary to be re-financed, but only to the extent such moneys total more than the debt service reserves needed to establish the successor capital mortgage financing;  (vi) in no event shall funded depreciation accounts, or building funds accumulated  through  donor-restricted  contributions  or   unrestricted contributions,  gifts,  bequests,  or  legacies,  be  considered  in the evaluation of amounts necessary to be re-financed; and  (vii) notwithstanding any inconsistent provision of law or  regulation to  the  contrary,  the  principal amount, including all transaction and closing costs and any pre-payment penalties associated with the previous mortgage  or  mortgages,  that  is  thereby  deemed  necessary   to   be re-financed  by  the commissioner, as approved by the public authorities control board and the United States  department  of  housing  and  urban development  where  appropriate, shall be considered the final, approved  mortgage amount  for  capital  cost  reimbursement  under  the  relevant provisions of this article.   c.  Notwithstanding any inconsistent provision of law or regulation to the contrary, the  capital  cost  component  of  rates  of  payment  for services  provided  for the period beginning October first, two thousand three or one hundred eighty  days  after  the  effective  date  of  this subdivision,   whichever  is  later,  through  March  thirty-first,  two thousand four for residential health care facilities  established  under this  article  and  certified  as providers pursuant to title XIX of the federal social security act  (Medicaid),  except  for  those  facilities established  under  the  nursing home companies law or the hospital loan construction law, that have  been  identified  by  the  commissioner  as refinancing candidates pursuant to paragraph b of this subdivision shall reflect capital interest costs equivalent to the lower of the prevailing market  borrowing  rates  available on or about July first, two thousand three or ninety days after  the  effective  date  of  this  subdivision, whichever   is  later,  for  refinancing  capital  mortgages  for  their remaining term plus two hundred basis points, or the existing rate being paid by the facility on its capital mortgage or  mortgages  as  of  that date.  The  commissioner  shall determine, in consultation with mortgage financing experts, the prevailing market borrowing  rates  available  to not-for-profit  and  governmental  residential health care facilities to re-finance capital mortgages on a tax-exempt fixed rate  basis,  and  to proprietary  residential  health  care  facilities to re-finance capital mortgages  on  a  tax-exempt  fixed  rate  basis,  and  to   proprietary residential  health care facilities to re-finance capital mortgages on a taxable fixed rate basis, for this purpose. Exceptions  to  this  policy shall  be  provided  by  the  commissioner  to  each  such facility that demonstrates, prior to October first, two thousand three or thirty  days after  receipt  of the commissioner's written determination specified in paragraph (b) of this subdivision, whichever occurs later, that:  (i) it has initiated or completed  the  process  of  re-financing  the mortgage  or  mortgages  in  question,  in  which  case the capital cost component of rates of payment shall be timely revised to reflect capital interest costs associated with a re-financed mortgage that  conforms  to the  standards in paragraph (b) of this subdivision. For this purpose, a facility that has applied for approval by the  commissioner,  the  state hospital review and planning council and/or the public health council to re-finance  its  existing  mortgage  debt  as  part  of a larger project involving facility  replacement,  expansion,  renovation  or  change  of ownership  is  considered to have initiated the process of re-financing; or  (ii) it can not  re-finance  its  capital  mortgage  or  mortgages  to achieve   the   relevant   present   value  cost  benefit  specified  in subparagraphs (i) and (ii) of paragraph (b) of this subdivision due to a "lock out" or similar provision in its current mortgage  agreement  that prevents  re-financing;  due  to some other type of genuine re-financing obstacle, such as an inability of the facility to obtain credit approval from a lender or mortgage insurer, or due to an  intervening  change  in credit  market conditions or other relevant circumstances, in which case the capital cost component of rates of payment shall continue to reflect capital  interest  costs  associated  with  the  existing  mortgage   or mortgages,  together  with  reasonable costs incurred in connection with the facility's attempt to re-finance its existing mortgage debt.   d. Notwithstanding any contrary provision of law, rule or  regulation, for  rate  periods  on  and  after April first, two thousand eleven, the commissioner may reduce or eliminate the payment factor for return on or return of equity in the capital cost  component  of  Medicaid  rates  of  payment for services provided by residential health care facilities, and for  rate  periods  on and after April first, two thousand twenty, there shall be no payment factor for  residual  equity  reimbursement  in  the capital  cost  component  of  Medicaid  rates  of  payment  for services provided by residential health care facilities.   e. Notwithstanding any other provision of law  or  regulation  to  the contrary,  the  commissioner  shall adopt or amend on an emergency basis any regulation the commissioner determines necessary  to  implement  any provision of this subdivision.   21.   (a)   Notwithstanding  any  inconsistent  provision  of  law  or regulation to the contrary, for the purposes  specified  in  subdivision nineteen   of  this  section,  the  commissioner  shall  adjust  medical assistance rates of payment established pursuant  to  this  article  for services  provided on and after October first, two thousand four through December thirty-first, two thousand four  and  annually  thereafter  for services  provided on and after January first, two thousand five through April thirtieth, two thousand eleven and on and  after  May  first,  two thousand  twelve,  to  include  a  rate  adjustment to assist qualifying facilities pursuant to this subdivision, provided, however, that  public residential  health  care  facilities  shall  not  be  eligible for rate adjustments pursuant to this subdivision for rate periods on  and  after April   first,  two  thousand  nine,  provided  further,  however,  that notwithstanding any  contrary  provision  of  law  and  subject  to  the availability  of  federal  financial  participation,  each facility that receives a rate adjustment pursuant to this subdivision for  the  period May first, two thousand ten through April thirtieth, two thousand eleven shall  have  its  medicaid  rates  reduced  for the rate period December first, two thousand eleven through December thirty-first,  two  thousand eleven  by  an  amount equal in aggregate to the aggregate amount of the funds such facility received pursuant to this subdivision for the period May first, two  thousand  ten  through  April  thirtieth,  two  thousand eleven.  (b)  Eligibility  for such rate adjustments shall be determined on the basis of each residential health care facility's operating  margin  over the most recent three-year period for which financial data are available from  the  RHCF-4  cost  report  or  the  institutional cost report. For purposes of the adjustments made  for  the  period  October  first,  two thousand   four   through  December  thirty-first,  two  thousand  four, financial information for the calendar years two  thousand  through  two thousand  two  shall  be  utilized.  For  each subsequent rate year, the financial data for the three-year period ending two years prior  to  the applicable rate year shall be utilized for this purpose.  (c)  Each  facility's operating margin for the three-year period shall be calculated by subtracting total operating expenses for the three-year period from total operating revenues  for  the  three-year  period,  and dividing  the  result by the total operating revenues for the three-year period, with the result expressed as a  percentage.  For  hospital-based residential  health care facilities for which an operating margin cannot be calculated on the basis of the submitted cost reports, the sponsoring hospital's overall three-year  operating  margin,  as  reported  in  the institutional  cost  report,  shall  be  utilized  for this purpose. All facilities with negative operating margins calculated in this  way  over the  three-year  period  shall  be  arrayed  into quartiles based on the magnitude  of  the  operating  margin.  Any  facility  with  a  positive operating  margin  for  the  most  recent  three-year period, a negative operating margin that places the facility in the quartile of  facilities with the smallest negative operating margins, a positive total margin in the  most  recent  year of the three year period, or an average Medicaid  utilization percentage of fifty percent or less during the  most  recent year  of  the  three-year period shall be disqualified from receiving an adjustment pursuant to this subdivision,  provided,  however,  that  for rate  periods  on  and  after  April  first,  two  thousand  nine,  such disqualification:  (i) shall not be applied solely on the basis of a facility's having  a positive total margin in the most recent year of such three-year period;  (ii)  shall  be  extended  to  those  facilities  in  the  quartile of facilities with the second smallest negative operating margins; and  (iii) shall also be extended  to  those  facilities  with  an  average Medicaid  utilization percentage of less than seventy percent during the most recent year of the three-year period.  (d) For each facility remaining after the exclusions made pursuant  to paragraph  (c) of this subdivision, the commissioner shall calculate the average annual operating loss for the three-year period  by  subtracting total  operating expenses for the three-year period from total operating revenues for the three-year period, and dividing the  result  by  three, provided,  however,  that  for  periods  on  and  after April first, two thousand nine, the amount of such average annual operating loss shall be reduced by an amount equal to  the  amount  received  by  such  facility pursuant  to  subparagraph (ii) of paragraph (a) of subdivision two-b of this section. For this purpose, for  hospital-based  residential  health care  facilities  for  which the average annual operating loss cannot be calculated on the basis of the submitted cost  reports,  the  sponsoring hospital's  overall  average  annual  operating  loss for the three-year period shall be apportioned to  the  residential  health  care  facility based  on  the  proportion  the residential health care facility's total revenues for the period bears to the  total  revenues  reported  by  the sponsoring  hospital, and such apportioned average annual operating loss shall then be reduced by an amount equal to the amount received by  such facility  pursuant  to subparagraph (ii) of paragraph (a) of subdivision two-b of this section.  (e) For periods prior to April first, two  thousand  nine,  each  such facility's  qualifying operating loss shall be determined by multiplying the facility's average annual operating loss for the  three-year  period as  calculated  pursuant  to  paragraph  (d)  of this subdivision by the applicable percentage shown in the tables below for the quartile  within which the facility's negative operating margin for the three-year period is assigned.   i.  For  a facility located in a county with a total population of two hundred thousand or more as determined by the two thousand U.S. Census:  First Quartile (lowest operating margins): 30 percent     Second Quartile: 15 percent     Third Quartile: 7.5 percent  ii. For a facility located in a county with a total population of  fewer than two hundred thousand as determined by the two thousand U.S. Census:  First Quartile (lowest operating margins): 35 percent    Second Quartile: 20 percent    Third Quartile: 12.5 percent  (f)  The  amount of any facility's financially disadvantaged residential health care facility distribution calculated  in  accordance  with  this subdivision  shall  be  reduced  by  the  facility's estimated rate year benefit of the two thousand one  update  to  the  regional  input  price adjustment  factors  authorized pursuant to former subdivision seventeen  of this section as amended by section 24 of part C of chapter 58 of  the laws  of  2004,  or  as  authorized  by  subdivision seventeen-a of this section, as added by section 56 of part C of chapter 58 of the  laws  of 2007,  if  any,  provided,  however,  that  such  reduction shall not be applied with regard to rate  periods  on  and  after  April  first,  two thousand  nine.  After all other adjustments to a facility's financially disadvantaged residential health care facility  distribution  have  been made  in accordance with this subdivision, the amount of each facility's distribution shall be limited to no  more  than  four  hundred  thousand dollars  during  the  period  October  first,  two thousand four through December thirty-first, two thousand four and, on  an  annualized  basis, for  rate  periods through March thirty-first, two thousand nine, and no more than one million dollars for the period April first,  two  thousand nine  through  December  thirty-first,  two  thousand  nine and for each annual rate period thereafter.  (g)  The  adjustment  made  to  each  qualifying  facility's   medical assistance  rate of payment determined pursuant to this article shall be calculated  by  dividing  the   facility's   financially   disadvantaged residential  health  care facility distribution calculated in accordance with this subdivision by the facility's total medical assistance patient days reported in the cost report submitted two years prior to  the  rate year,  provided  however,  that  such  rate  adjustments  for the period October first, two thousand  four  through  December  thirty-first,  two thousand  four  shall be calculated based on twenty-five percent of each facility's reported total medical assistance patient days as reported in the applicable two thousand two cost report. Such amounts shall  not  be reconciled  to reflect changes in medical assistance utilization between the year two years prior to the rate year and the rate year.  (h) The total amount of funds  to  be  allocated  and  distributed  as medical assistance for financially disadvantaged residential health care facility  rate  adjustments  to eligible facilities for a rate period in accordance with this subdivision shall be thirty million dollars for the period October first, two thousand four through  December  thirty-first, two  thousand four and thirty million dollars on an annualized basis for rate periods on and after  January  first,  two  thousand  five  through December  thirty-first, two thousand eight and thirty million dollars on an annualized basis on and  after  January  first,  two  thousand  nine, provided  that, subject to all necessary federal approvals, on and after January  first,  two  thousand  thirteen  funds  allocated  under   this paragraph  shall  be  distributed  pursuant  to  10  NYCRR  86-2.39. The nonfederal share of such rate adjustments shall be paid  by  the  state, with no local share, from allocations made pursuant to paragraph (hh) of subdivision one of section twenty-eight hundred seven-v of this article. In  the  event  the  statewide  total  of  the  annual  rate adjustments determined pursuant to paragraph (g) of this subdivision varies from the amounts set forth in this paragraph,  each  qualifying  facility's  rate adjustment shall be proportionately increased or decreased such that the total  of  the annual rate adjustments made pursuant to this subdivision is equal to the amounts set forth  in  this  paragraph  on  a  statewide basis.  (i)  This  subdivision  shall be effective if, and as long as, federal financial  participation  is  available  for   expenditures   made   for beneficiaries  eligible  for  medical  assistance under title XIX of the federal social security act  for  the  rate  adjustments  determined  in accordance with this subdivision.  (j)  For  periods  on  and  after  April  first,  two  thousand  nine, residential health care facilities which are otherwise eligible for rate adjustments pursuant to this subdivision shall also, as a condition  for  receipt  of  such rate adjustments, submit to the commissioner a written restructuring plan that is acceptable to the commissioner and  which  is in accord with the following:  (i)  such  an  acceptable  plan shall be submitted to the commissioner within sixty days of the facility's receipt of rate adjustments pursuant to this subdivision for a rate period subsequent to March  thirty-first, two  thousand  eight,  provided,  however,  that  facilities  which  are allocated four hundred thousand dollars or less on an  annualized  basis shall  be  required to submit such plans within one hundred twenty days, and  further  provided  that  these  periods  may  be  extended  by  the commissioner by no more than thirty days, for good cause shown; and  (ii)  such  plan shall provide a detailed description of the steps the facility will take to  improve  operational  efficiency  and  align  its expenditures  with  its revenues, and shall include a projected schedule of quantifiable benchmarks to be achieved in the implementation  of  the plan; and  (iii) such plan shall require periodic reports to the commissioner, in accordance with a schedule acceptable to the commissioner, setting forth the progress the facility has made in implementing its plan; and  (iv)  such  plan  may  include the facility's retention of a qualified chief restructuring officer to assist in the implementation of the plan, provided,  however,  that  this  requirement  may  be  waived   by   the commissioner,  for  good  cause  shown,  upon written application by the facility.  (k)  If  a  residential  health  care  facility  fails  to  submit  an acceptable  restructuring  plan  in  accordance  with  the provisions of paragraph (j) of this subdivision, the facility shall,  from  that  time forward,  be precluded from receipt of all further rate adjustments made pursuant to this subdivision and shall be  deemed  ineligible  from  any future re-application for such adjustments. Further, if the commissioner determines  that  a  facility has failed to make substantial progress in implementing its plan or in achieving the benchmarks set forth  in  such plan,  then  the  commissioner  may,  upon  thirty  days  notice to that facility, disqualify the facility from further participation in the rate adjustments authorized by this  subdivision  and  the  commissioner  may require  the  facility  to  repay  some  or  all  of  the  previous rate adjustments.   22. Nursing home incentives for improved performance in patient  care. Pursuant  to  such  program,  and  within  amounts  as  are appropriated therefor, the commissioner shall investigate adjusted quality indicators and quality measures including those defined by the federal centers  for medicare and medicaid service (CMS) with respect to nursing home quality and  quality  benchmarks. The commissioner shall award rate enhancements to those residential health  care  facilities  who  demonstrate  to  the satisfaction  of  the commissioner, they can meet or exceed such defined quality measures. Such quality measures may include, but not be  limited to,  outcomes from state survey data, performance measures, and resident outcomes  based  upon  Minimum  Data  Sets  as  defined  by   CMS.   The commissioner  shall  consult  with associations representing residential health  care  facilities  and  associations  representing  nursing  home residents,  and shall by July first, two thousand seven, adopt rules and regulations that incorporate payment incentives, related to such quality indicators and measures, including,  but  not  limited  to  programs  to improve  patient  care  outcomes and performance outcomes. Such programs may include but not be limited to, clinician-centric electronic  medical records  implementation,  automation  of  assessments  and  care  plans, improved data collection,  and  the  provision  of  accessible  consumer information as well as patient satisfaction, into rates of payment.    22-a. Modifications. (a) Notwithstanding any inconsistent provision of law  or  regulation to the contrary, effective April first, two thousand six and thereafter, residential health care facility  rates  of  payment determined  pursuant  to  this section for payments made by governmental agencies  shall  not  contain  a  payment factor for interest on current indebtedness  if  the  residential  health  care  facility  cost  report utilized  to  determine  such  payment factor also shows a withdrawal of equity, a transfer of assets, or a positive net income.  (b) Notwithstanding any inconsistent provision of law or regulation to the contrary, for residential health  care  facility  rates  of  payment determined  pursuant  to this article for services provided on and after April first, two thousand six, the annual  cost  report  filed  by  each residential health care facility for two thousand five and for each year thereafter  shall  be  examined  and  in  the  event the operating costs reported by each such facility in any such  cost  report  is  less  than ninety  percent of the operating costs reported in the cost report which is being utilized to set  such  facility's  existing  rates  of  payment trended  to  two thousand five and each year thereafter, then such rates of payment shall be recalculated  utilizing  the  more  recent  reported operating cost data.  (c) Notwithstanding any inconsistent provision of law or regulation to the  contrary, effective on and after April first, two thousand six, for purposes of establishing rates of payment by governmental  agencies  for residential  health  care  facilities licensed pursuant to this article, the operating component of the rate  for  any  residential  health  care facility  that  did  not  or  does not achieve ninety percent or greater occupancy for any year within five  calendar  years  from  the  date  of commencing  operation,  shall  be  recalculated utilizing the facility's most recently available reported allowable costs divided by patient days imputed at ninety percent occupancy. Such recalculated rates of  payment shall  be  effective  January first of the sixth calendar year following the date the facility commenced operations or April first, two  thousand six, whichever is later.  (d)  (i)  Notwithstanding  any inconsistent provisions of subdivisions two-b or two-c of this section or any other contrary provision  of  law, and  subject to the availability of federal financial participation, for inpatient services provided by residential health care facilities on and after April first, two thousand eleven, the commissioner may, subject to the approval of  the  director  of  the  budget,  grant  approval  of  a temporary  adjustment  to  Medicaid  rates  for  eligible facilities, as determined in accordance with this paragraph.  (ii) Eligible  facilities  shall  be  those  residential  health  care facilities  which, as determined by the commissioner, require short-term assistance  to  accommodate  additional  patient  services  requirements stemming  from  the  closure of other facilities in the area, including, but not  limited  to,  additional  staff,  service  reconfiguration  and enhanced information technology capability.  (iii) Eligible facilities shall submit written proposals demonstrating the  need  for  additional  short-term resources and how such additional resources will result in improvements to:  (A) the cost effectiveness of service delivery;  (B) quality of care; and  (C) other factors deemed appropriate by the commissioner.  (iv) Such written proposals shall be submitted to  the  department  at least  sixty days prior to the requested effective date of the temporary rate adjustment. The temporary rate adjustment shall be in effect for  a specified  period  of time as determined by the commissioner. At the end of  the  specified  timeframe,  the  facility  will  be  reimbursed   in  accordance  with  otherwise  applicable  rate-setting methodologies. The commissioner may establish, as a condition of receiving such a temporary rate adjustment, benchmarks and goals to be achieved in accordance  with the facility's approved proposals and may also require that the facility submit   such  periodic  reports  concerning  the  achievement  of  such benchmarks and goals as the commissioner  deems  necessary.  Failure  to achieve  satisfactory  progress,  as  determined by the commissioner, in accomplishing such benchmarks and goals shall be a basis for ending  the facility's  temporary  rate adjustment prior to the end of the specified timeframe.   23. Notwithstanding any inconsistent provision of law or regulation to the contrary:  (a) (i) For adult day health care  services  provided  by  residential health  care  facilities,  effective April first, two thousand seven and thereafter, the operating component of the rate of  payment  established pursuant  to this article for an adult day health care program which has achieved an occupancy percentage of ninety  percent  or  greater  for  a calendar  year  prior  to  April  first,  two  thousand  seven, shall be calculated utilizing allowable costs reported in the two thousand  four, two  thousand five, or two thousand six calendar year residential health care facility cost report filed by  the  sponsoring  residential  health care  facility,  whichever  is  the  earliest of such calendar year cost reports in which the program has achieved  an  occupancy  percentage  of ninety  percent  or  greater,  except  that  programs receiving rates of payment based on allowable costs for a period prior to April first,  two thousand  seven shall continue to receive rates of payment based on such period.  (ii) For such programs  which  achieved  an  occupancy  percentage  of ninety  percent  or greater prior to calendar year two thousand four, so long as approved capacity in that year is the same as in  calendar  year two  thousand  four,  but  which  did  not  maintain occupancy of ninety percent or greater in calendar years two  thousand  four,  two  thousand five,  or  two  thousand  six,  the  operating  component of the rate of payment  established  pursuant  to  this  article  shall  be  calculated utilizing  allowable  costs  reported  in the two thousand four calendar year cost report divided by visits imputed at ninety percent occupancy.  (iii)  For  such  programs  which  have  not  achieved  an   occupancy percentage  of  ninety  percent  or greater for a calendar year prior to April first, two thousand seven, the operating component of the rate  of payment  established  pursuant  to  this  article  shall  be  calculated utilizing allowable costs reported in the first calendar year after  two thousand six in which such a program achieves an occupancy percentage of ninety  percent or greater effective January first of such calendar year except for calendar year two thousand seven, effective no  earlier  than April  first  of  such  year,  provided, however, that effective January first, two thousand  nine,  for  programs  that  have  not  achieved  an occupancy  percentage  of  ninety percent or greater for a calendar year prior to January first, two thousand nine, the  operating  component  of the  rate  of  payment  established  pursuant  to  this article shall be calculated utilizing allowable costs reported in the two  thousand  nine cost  report  filed  by  the sponsoring residential health care facility divided by  visits  imputed  at  actual  or  ninety  percent  occupancy, whichever  is  greater.  This  subparagraph shall also apply to programs which achieved an occupancy percentage  of  ninety  percent  or  greater prior  to  calendar  year  two  thousand  four  but  in such year had an approved capacity that was not the same as in calendar year two thousand four.  (b) For a residential health care  facility  approved  to  operate  an adult  day  health  care  program  on or after April first, two thousand seven, rates of payment for such programs shall be computed  based  upon annual  budgeted allowable costs, as submitted by the residential health care  facility,  and  total  estimated annual visits by adult day health care registrants of not less than ninety percent of licensed  occupancy, and in accordance with the following:  (i)  Each  program  shall  be required to submit an individual budget. Multiple programs operated by the same residential health care  facility shall  submit  a  separate  budget  for  each program. Multiple programs operated by  the  same  residential  health  care  facility  shall  have separate rates of payment.  (ii)  Rates developed based upon budgets shall remain in effect for no longer than two calendar years from the earlier of:  (A) the date the program commences operations; or  (B) the date the sponsoring residential health care facility submits a full calendar year residential health care facility cost report in which the program has achieved ninety  percent  or  greater  occupancy.  If  a sponsoring  residential  health care facility submits such a cost report within two years of the date  the  program  commences  operation,  rates shall then be computed utilizing such cost report.  (iii)  If  a  program  fails  to  achieve  ninety  percent  or greater occupancy within two calendar  years  of  the  date  of  its  commencing operations, rates shall be calculated utilizing allowable costs reported in  such  second  calendar  year residential health care facility's cost report for the applicable sponsoring residential  health  care  facility divided by visits imputed at ninety percent occupancy.  (c) Effective January first, two thousand eight, allowable costs shall not include the costs of transportation.  (d)  All rates of payment established pursuant to this subdivision are subject to the maximum daily rate provided by law.  Such  maximum  daily rate  of  payment  for  adult  day  health  care  programs  operated  by residential health care facilities that undergo a  change  of  ownership subsequent  to  nineteen hundred ninety shall be determined by utilizing the inpatient rate of payment of the prior  operator  as  in  effect  on January  first,  nineteen  hundred  ninety.  In  the event a residential health care facility establishes  an  off-site  adult  day  health  care program  outside  the regional input price adjustment region in which it is located, the computation of the maximum daily  rate  of  payment  for such  program  shall utilize the weighted average of the inpatient rates of payments for residential health care  facilities  in  the  region  in which  the  program  is located, as in effect on January first, nineteen hundred ninety, in place  of  the  sponsoring  residential  health  care facility's inpatient rate of payment.  (e)   Notwithstanding   any   inconsistent   provision  of  the  state administrative procedure act or any  other  law  or  regulation  to  the contrary,  the  commissioner  shall adopt or amend on an emergency basis any regulations the commissioner shall determine necessary to  implement any provision of this subdivision.   24. Notwithstanding any other provisions of this section and any other law,  rule  or regulation to the contrary, for periods on and after July first, two thousand seven, the  operating  component  of  all  rates  of payment  made  by  governmental  agencies  for  services  to individuals eligible for medical assistance pursuant to title eleven of article five of the social services law and provided by  a  residential  health  care facility  with  fewer  than  sixty  beds  as of July first, two thousand seven, which provides  services  primarily  to  neurologically  impaired individuals  and  is  located  in a county with a population between two  hundred ninety thousand and three hundred ten thousand as of July first, two thousand seven shall be based solely  on  the  methodology  used  to establish rates for facilities which provide extensive nursing, medical, psychological  and  counseling  support  services  solely  to  children; provided, however, this subdivision shall not apply if  the  application would  result  in  a  lesser rate of payment than otherwise provided for under this section. Nothing in this subdivision shall  be  construed  to limit  the  application  to such facility of rate adjustments applied to other residential health care facilities.   25. Reserved bed  days.  (a)  For  purposes  of  this  subdivision,  a "reserved  bed  day"  is  a  day  for which a governmental agency pays a residential health care facility to reserve a bed for a person  eligible for  medical  assistance pursuant to title eleven of article five of the social services law while he or she is on therapeutic leave  of  absence from the facility.  (b)  Notwithstanding any other provisions of this section or any other law or regulation to the contrary, for reserved  bed  days  provided  on behalf of persons twenty-one years of age or older:  (i)  payments  for  reserved  bed  days  shall  be made at ninety-five percent of the Medicaid rate  otherwise  payable  to  the  facility  for services provided on behalf of such person; and  (ii) payment to a facility for reserved bed days provided on behalf of such person for therapeutic leaves of absence may not exceed ten days in any twelve month period.   26.  Notwithstanding  any  inconsistent  provision  of  law,  for rate periods on and after April first, two thousand ten,  residential  health care  facility Medicaid rates of payment shall not include reimbursement for the cost of prescription  drugs.  Such  reimbursement  shall  be  in accordance with otherwise applicable provisions of section three hundred sixty-seven-a of the social services law.   * 27. The commissioner is authorized to conduct an energy audit and/or disaster preparedness review of residential health care facilities. Such audit  or  review  shall  explore  the energy efficiency and/or disaster preparedness of the real property capital aspects of each  facility  and develop  a  cost/benefit  analysis  of  potential modifications for each facility. Such audit or review shall serve as the basis  for  an  energy efficiency  and/or  disaster preparedness program to be developed by the department in regulations. Participation in such audit or  review  shall be  a  condition  to  participation  in  any such program developed as a result thereof, and shall also be a condition to receipt of any  funding available  under such program. Such program shall only be implemented if it is in the best financial interests of the state, as determined by the commissioner. At  least  forty-five  days  prior  to  implementing  such program,  the  department shall report to the senate and assembly health committees, the assembly ways and means committee and the senate finance committee the results of the energy  audit  authorized  herein  and  the proposed  eligibility  criteria,  funding  sources,  the manner in which savings may be shared between the state and  facilities  and  any  other information requested by such committees about such program prior to the transmittal of the report.   * NB Repealed July 1, 2024