S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5685
 
                        2021-2022 Regular Sessions
 
                           I N  A S S E M B L Y
 
                             February 23, 2021
                                ___________
 
 Introduced by M. of A. GOTTFRIED, GUNTHER, GALEF, CLARK, TAYLOR, PAULIN,
   ABINANTI,   BICHOTTE HERMELYN,  McDONALD,  HEVESI,  BRONSON,  WALLACE,
   STECK, DINOWITZ, THIELE, PERRY  --  read  once  and  referred  to  the
   Committee on Health
 
 AN  ACT  to  amend  the public health law, in relation to establishing a
   required resident care spending ratio for nursing homes
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.  The  public health law is amended by adding a new section
 2805-ee to read as follows:
   § 2805-EE. NURSING HOME DIRECT CARE RATIO. 1. AS USED IN THIS SECTION,
 THE FOLLOWING TERMS HAVE THE FOLLOWING MEANINGS:
   (A) "RESIDENT CARE" MEANS: (I) DIRECT CARE BY CERTIFIED  NURSE  AIDES,
 LICENSED  PRACTICAL NURSES, AND REGISTERED NURSES; (II) SUPPORT SERVICES
 INCLUDING HOUSING, LAUNDRY, HOUSEKEEPING, FOOD SERVICE,  NURSE  ADMINIS-
 TRATION, ACTIVITY PROGRAM, SOCIAL SERVICES AND TRANSPORTATION AS IDENTI-
 FIED  IN  REPORTS  REQUIRED  BY  THE DEPARTMENT; (III) ANCILLARY PROGRAM
 SERVICES INCLUDING MEDICAL, DENTAL, PODIATRIC AND  LABORATORY  SERVICES,
 INHALATION  AND  OTHER  PHYSICAL,  MENTAL,  OCCUPATIONAL THERAPEUTICS AS
 IDENTIFIED IN REPORTS REQUIRED  BY  THE  DEPARTMENT;  AND  (IV)  PROGRAM
 SERVICES  FOR  RESIDENTS  INCLUDING  PERSONAL GROOMING, AS IDENTIFIED IN
 REPORTS REQUIRED BY THE  DEPARTMENT.  RESIDENT  CARE  DOES  NOT  INCLUDE
 ADMINISTRATIVE  COSTS  OTHER  THAN  NURSE ADMINISTRATION, CAPITAL COSTS,
 RENT, OR DEBT SERVICE.
   (B) "RESIDENT CARE AMOUNT" MEANS THE AMOUNT SPENT BY THE NURSING  HOME
 FOR  CARE OF RESIDENTS OF THE NURSING HOME; PROVIDED THAT FOR ANY AMOUNT
 SPENT FOR CONTRACTED OR PURCHASED PERSONAL SERVICES, ONLY EIGHTY PERCENT
 OF THAT AMOUNT SHALL COUNT AS SPENDING ON RESIDENT CARE.
   (C) "TOTAL OPERATING REVENUE" MEANS THE REVENUE RECEIVED BY THE  NURS-
 ING  HOME FROM OR ON BEHALF OF RESIDENTS OF THE NURSING HOME, GOVERNMENT
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD09825-02-1
              

 A. 5685                             2
 
 PAYERS, OR THIRD-PARTY PAYERS, TO PAY FOR A RESIDENT'S OCCUPANCY OF  THE
 NURSING HOME, RESIDENT CARE, AND THE OPERATION OF THE NURSING HOME.
   (D)  "REQUIRED  RESIDENT CARE PERCENTAGE" MEANS THE RATIO OF A NURSING
 HOME'S RESIDENT CARE AMOUNT TO ITS TOTAL OPERATING REVENUE, EXPRESSED AS
 A PERCENTAGE, FOR A CALENDAR YEAR, REQUIRED BY SUBDIVISION TWO  OF  THIS
 SECTION.
   (E)  "DIRECT  CARE  SERVICE  AMOUNT" MEANS THE PORTION OF THE RESIDENT
 CARE AMOUNT ATTRIBUTABLE TO COSTS UNDER SUBPARAGRAPH  (I)  OF  PARAGRAPH
 (A) OF THIS SUBDIVISION.
   (F) "RESIDENT CARE DEFICIT" MEANS THE AMOUNT, IN DOLLARS, BY WHICH THE
 NURSING HOME'S RESIDENT CARE AMOUNT IS LESS THAN THE AMOUNT NECESSARY TO
 ACHIEVE THE REQUIRED RESIDENT CARE PERCENTAGE, WHERE IT IS LESS.
   (G)  "DIRECT  CARE  SERVICE  DEFICIT" MEANS THE AMOUNT, IN DOLLARS, BY
 WHICH THE NURSING HOME'S  DIRECT  SERVICE  AMOUNT  IS  LESS  THAN  SIXTY
 PERCENT  OF  THE  RESIDENT CARE AMOUNT, IN DOLLARS, NECESSARY TO ACHIEVE
 THE REQUIRED RESIDENT CARE PERCENTAGE, WHERE IT IS LESS.
   2. EVERY NURSING HOME SHALL, IN EVERY CALENDAR YEAR,  SPEND  AT  LEAST
 (A)  THE RESIDENT CARE AMOUNT NECESSARY TO ACHIEVE THE REQUIRED RESIDENT
 CARE PERCENTAGE AND (B) A SUFFICIENT DIRECT CARE SERVICE  AMOUNT  SO  IT
 DOES  NOT  HAVE A DIRECT CARE SERVICE DEFICIT. FOR THE CALENDAR YEAR TWO
 THOUSAND TWENTY-TWO, THE REQUIRED  RESIDENT  CARE  PERCENTAGE  SHALL  BE
 SEVENTY  PERCENT.   FOR THE CALENDAR YEAR TWO THOUSAND TWENTY-THREE, THE
 REQUIRED RESIDENT CARE PERCENTAGE  SHALL  BE  EIGHTY  PERCENT.  FOR  THE
 CALENDAR  YEAR  TWO  THOUSAND TWENTY-FOUR AND EVERY YEAR THEREAFTER, THE
 REQUIRED RESIDENT CARE PERCENTAGE SHALL BE NINETY PERCENT.
   3. FOR ANY CALENDAR YEAR IN WHICH A NURSING HOME HAS A  RESIDENT  CARE
 DEFICIT  OR  DIRECT CARE SERVICE DEFICIT, IT SHALL PAY TO THE DEPARTMENT
 AN AMOUNT EQUAL TO WHAT THE NURSING HOME WOULD  HAVE  HAD  TO  SPEND  TO
 AVOID  HAVING EITHER DEFICIT, PAYABLE IN A MANNER AND TIME DETERMINED BY
 THE COMMISSIONER IN REGULATIONS. WHERE A NURSING HOME DOES  NOT  PAY  AS
 REQUIRED  BY  THIS  SUBDIVISION,  THE COMMISSIONER SHALL SUE THE NURSING
 HOME TO OBTAIN THE UNPAID AMOUNT, DEDUCT THE UNPAID AMOUNT FROM  MEDICAL
 ASSISTANCE  PAYMENTS OTHERWISE DUE TO THE NURSING HOME, OR A COMBINATION
 OF THOSE METHODS. MONEYS SO COLLECTED SHALL BE TRANSFERRED TO THE  NURS-
 ING  HOME  QUALITY  IMPROVEMENT  DEMONSTRATION PROGRAM, TO BE USED UNDER
 SUBDIVISION SIX OF SECTION TWENTY-EIGHT HUNDRED EIGHT-D OF THIS  ARTICLE
 IN SUPPORT OF PROJECTS OR PROGRAMS DESIGNED TO IMPROVE SPECIFIC AREAS OF
 QUALITY OF CARE.
   4.  FOR  PURPOSES  OF THIS SECTION, A NURSING HOME'S SPENDING, REVENUE
 AND PERCENTAGES OF VARIOUS AMOUNTS SHALL BE  CALCULATED  ON  AN  ACCRUAL
 BASIS, UNDER REGULATIONS OF THE COMMISSIONER.
   5.  THE  COMMISSIONER  SHALL MAKE REGULATIONS, MAKE MEDICAL ASSISTANCE
 STATE PLAN AMENDMENTS, SEEK WAIVERS FROM THE FEDERAL CENTERS  FOR  MEDI-
 CARE  AND MEDICAID SERVICES, AND TAKE OTHER ACTIONS REASONABLY NECESSARY
 TO IMPLEMENT THIS SECTION.
   6. THE COMMISSIONER SHALL, BY REGULATIONS  AND  OTHERWISE,  MAKE  SURE
 THAT  REPORTS BY NURSING HOMES UNDER SECTION TWENTY-EIGHT HUNDRED FIVE-E
 OF THIS ARTICLE INCLUDE INFORMATION AS TO ALL ITEMS REFERRED TO IN  THIS
 SECTION  AND ORGANIZE THAT INFORMATION CONSISTENT WITH THE TERMS OF THIS
 SECTION.
   § 2. This act shall take effect immediately.