S T A T E O F N E W Y O R K
________________________________________________________________________
5905--B
2023-2024 Regular Sessions
I N A S S E M B L Y
March 24, 2023
___________
Introduced by M. of A. WOERNER, McDONALD, STIRPE, MAGNARELLI, CLARK,
THIELE, JENSEN, FAHY, HUNTER, LUNSFORD, LUPARDO, WEPRIN, STERN,
LAVINE, SOLAGES, SMITH, DURSO, J. A. GIGLIO, FITZPATRICK, FLOOD, McDO-
NOUGH, SIMPSON, JONES, MANKTELOW -- read once and referred to the
Committee on Health -- committee discharged, bill amended, ordered
reprinted as amended and recommitted to said committee -- reported and
referred to the Committee on Ways and Means -- recommitted to the
Committee on Ways and Means in accordance with Assembly Rule 3, sec. 2
-- committee discharged, bill amended, ordered reprinted as amended
and recommitted to said committee
AN ACT to amend the public health law, in relation to residential health
care facility rates
THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
BLY, DO ENACT AS FOLLOWS:
Section 1. Paragraphs (a), (b), (c) and (d) of subdivision 2-c of
section 2808 of the public health law, paragraphs (a), (b) and (c) as
added by section 95 of part H of chapter 59 of the laws of 2011, para-
graph (d) as amended by section 2 of part M of chapter 57 of the laws of
2022, are amended and a new paragraph (b-1) is added to read as follows:
(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 thou-
sand 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 commis-
sioner by regulation. Such rate components shall be periodically updated
to reflect changes in operating costs, PROVIDED HOWEVER THAT SUCH RATE
COMPONENTS SHALL BE UPDATED NO LATER THAN APRIL FIRST, TWO THOUSAND
EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
[ ] is old law to be omitted.
LBD10005-09-4
A. 5905--B 2
TWENTY-FIVE AND AT LEAST EVERY FIVE YEARS THEREAFTER, USING THE MOST
CURRENTLY AVAILABLE COST REPORT DATA, WHICH UPDATES SHALL INCLUDE BUT
NOT BE LIMITED TO AN UPDATE OF RATE COMPONENTS TO REFLECT ACTUAL BASE
YEAR COSTS.
(b) The direct and indirect statewide price components shall be
adjusted by a wage equalization factor and such other factors as deter-
mined 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 assist-
ance pursuant to title eleven of article five of the social services
law. Such wage equalization factor AND OTHER FACTORS shall be period-
ically updated to reflect current labor market AND OTHER conditions,
PROVIDED HOWEVER THAT SUCH UPDATES SHALL BE IMPLEMENTED NO LATER THAN
APRIL FIRST, TWO THOUSAND TWENTY-FIVE, AND AT LEAST EVERY FIVE YEARS
THEREAFTER, BASED ON THE MOST CURRENTLY AVAILABLE COST REPORT DATA.
(B-1) FOR PURPOSES OF THE UPDATES REQUIRED BY PARAGRAPHS (A) AND (B)
OF THIS SUBDIVISION AND ASSOCIATED CHANGES IN THE RATE-SETTING METHODOL-
OGY, THE DEPARTMENT SHALL ESTABLISH AND CONSULT WITH A TECHNICAL ASSIST-
ANCE WORKGROUP THAT INCLUDES EXTERNAL EXPERTS WITH PROFESSIONAL EXPER-
TISE IN NURSING HOME RATE SETTING.
(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 trau-
matic 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 chil-
dren 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 thou-
sand 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.
NOTWITHSTANDING THE ELIMINATION OF A TREND FACTOR FROM RATES OF PAYMENT
PAID TO OTHER RESIDENTIAL HEALTH CARE FACILITIES OR ANY OTHER INCONSIST-
ENT PROVISION OF LAW, COMMENCING ON AND AFTER APRIL FIRST, TWO THOUSAND
TWENTY-FIVE, THE NON-CAPITAL COMPONENT OF RATES ESTABLISHED PURSUANT TO
THIS PARAGRAPH SHALL BE ADJUSTED FOR INFLATION.
(d) The commissioner shall promulgate regulations, and may promulgate
emergency regulations, to implement the provisions of this subdivision,
INCLUDING REGULATIONS TO IMPLEMENT THE UPDATES TO THE RATE COMPONENTS
AND ASSOCIATED CHANGES IN THE METHODOLOGY AS SET FORTH IN PARAGRAPHS (A)
AND (B) OF THIS SUBDIVISION. Such regulations shall be developed in
consultation with the nursing home industry and advocates for residen-
tial 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
A. 5905--B 3
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, PROVIDED HOWEVER
THAT REGULATIONS GOVERNING THE UPDATES SET FORTH IN PARAGRAPHS (A) AND
(B) OF THIS SUBDIVISION AND ASSOCIATED CHANGES IN THE METHODOLOGY MAY
INCLUDE A TRANSITION PERIOD AS DETERMINED BY THE COMMISSIONER IN CONSUL-
TATION WITH THE STAKEHOLDERS DESCRIBED IN THIS PARAGRAPH AND THE WORK-
GROUP SET FORTH IN PARAGRAPH (B-1) OF THIS SUBDIVISION. For purposes of
facilitating quality improvements through the establishment of a nursing
home quality pool to be funded at the discretion of the commissioner by
(i) adjustments in medical assistance rates, (ii) funds made available
through state appropriations, or (iii) a combination thereof, those
facilities that contribute to the quality pool, but are deemed ineligi-
ble 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. Regu-
lations pertaining to the facilitation of quality improvement may be
made effective for periods on and after January first, two thousand
thirteen.
§ 2. This act shall take effect immediately.