STATE OF NEW YORK ________________________________________________________________________ 5905--A 2023-2024 Regular Sessions IN ASSEMBLY March 24, 2023 ___________ Introduced by M. of A. WOERNER, McDONALD -- read once and referred to the Committee on Health -- 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: 1 Section 1. Paragraphs (a), (b), (c) and (d) of subdivision 2-c of 2 section 2808 of the public health law, paragraphs (a), (b) and (c) as 3 added by section 95 of part H of chapter 59 of the laws of 2011, para- 4 graph (d) as amended by section 2 of part M of chapter 57 of the laws of 5 2022, are amended and new paragraph (b-1) is added to read as follows: 6 (a) Notwithstanding any inconsistent provision of this section or any 7 other contrary provision of law and subject to the availability of 8 federal financial participation, the non-capital component of rates of 9 payment by governmental agencies for inpatient services provided by 10 residential health care facilities on or after October first, two thou- 11 sand eleven, but no later than January first, two thousand twelve, shall 12 reflect a direct statewide price component, and indirect statewide price 13 component, and a facility specific non-comparable component, utilizing 14 allowable operating costs for a base year as determined by the commis- 15 sioner by regulation. Such rate components shall be periodically updated 16 to reflect changes in operating costs, provided however that such rate 17 components shall be updated no later than January first, two thousand 18 twenty-five and no less than every five years thereafter, using the most 19 currently available cost report data, which updates shall include but 20 not be limited to an update of rate components to reflect actual base 21 year costs. 22 (b) The direct and indirect statewide price components shall be 23 adjusted by a wage equalization factor and such other factors as deter- 24 mined to be appropriate to recognize legitimate cost differentials and EXPLANATION--Matter in italics (underscored) is new; matter in brackets [] is old law to be omitted. LBD10005-02-3A. 5905--A 2 1 the direct statewide price component shall be subject to a case mix 2 adjustment utilizing the patients that are eligible for medical assist- 3 ance pursuant to title eleven of article five of the social services 4 law. Such wage equalization factor and other factors shall be period- 5 ically updated to reflect current labor market and other conditions, 6 provided however that such updates shall be implemented no later than 7 January first, two thousand twenty-five, and no less than every five 8 years thereafter, based on the most currently available cost report 9 data. 10 (b-1) For purposes of the updates required by paragraphs (a) and (b) 11 of this subdivision and associated changes in the rate-setting methodol- 12 ogy, the department shall establish and consult with a technical assist- 13 ance workgroup that includes external experts with professional exper- 14 tise in nursing home rate setting. 15 (c) The non-capital component of the rates for: (i) AIDS facilities or 16 discrete AIDS units within facilities; (ii) discrete units for residents 17 receiving care in a long-term inpatient rehabilitation program for trau- 18 matic brain injured persons; (iii) discrete units providing specialized 19 programs for residents requiring behavioral interventions; (iv) discrete 20 units for long-term ventilator dependent residents; and (v) facilities 21 or discrete units within facilities that provide extensive nursing, 22 medical, psychological and counseling support services solely to chil- 23 dren shall reflect the rates in effect for such facilities on January 24 first, two thousand nine, as adjusted for inflation and rate appeals in 25 accordance with applicable statutes, provided, however, that such rates 26 for facilities described in subparagraph (i) of this paragraph shall 27 reflect the application of the provisions of section twelve of part D of 28 chapter fifty-eight of the laws of two thousand nine, and provided 29 further, however, that insofar as such rates reflect trend adjustments 30 for trend factors attributable to the two thousand eight and two thou- 31 sand nine calendar years the aggregate amount of such trend factor 32 adjustments shall be subject to the provisions of section two of part D 33 of chapter fifty-eight of the laws of two thousand nine, as amended. 34 Notwithstanding the elimination of a trend factor from rates of payment 35 paid to other residential health care facilities or any other inconsist- 36 ent provision of law, commencing on and after January first, two thou- 37 sand twenty-five, the non-capital component of rates established pursu- 38 ant to this paragraph shall be adjusted for inflation. 39 (d) The commissioner shall promulgate regulations, and may promulgate 40 emergency regulations, to implement the provisions of this subdivision, 41 including regulations to implement the updates to the rate components 42 and associated changes in the methodology as set forth in paragraphs (a) 43 and (b) of this subdivision. Such regulations shall be developed in 44 consultation with the nursing home industry and advocates for residen- 45 tial health care facility residents and, further, the commissioner shall 46 provide notification concerning such regulations to the chairs of the 47 senate and assembly health committees, the chair of the senate finance 48 committee and the chair of the assembly ways and means committee. Such 49 regulations shall include provisions for rate adjustments or payment 50 enhancements to facilitate a minimum four-year transition of facilities 51 to the rate-setting methodology established by this subdivision and may 52 also include, but not be limited to, provisions for facilitating quality 53 improvements in residential health care facilities, provided however 54 that regulations governing the updates set forth in paragraphs (a) and 55 (b) of this subdivision and associated changes in the methodology may 56 include a transition period as determined by the commissioner in consul-A. 5905--A 3 1 tation with the stakeholders described in this paragraph and the work- 2 group set forth in paragraph (b-1) of this subdivision. For purposes of 3 facilitating quality improvements through the establishment of a nursing 4 home quality pool to be funded at the discretion of the commissioner by 5 (i) adjustments in medical assistance rates, (ii) funds made available 6 through state appropriations, or (iii) a combination thereof, those 7 facilities that contribute to the quality pool, but are deemed ineligi- 8 ble for quality pool payments due exclusively to a specific case of 9 employee misconduct, shall nevertheless be eligible for a quality pool 10 payment if the facility properly reported the incident, did not receive 11 a survey citation from the commissioner or the Centers for Medicare and 12 Medicaid Services establishing the facility's culpability with regard to 13 such misconduct and, but for the specific case of employee misconduct, 14 the facility would have otherwise received a quality pool payment. Regu- 15 lations pertaining to the facilitation of quality improvement may be 16 made effective for periods on and after January first, two thousand 17 thirteen. 18 § 2. This act shall take effect immediately.