S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   5905
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                              March 24, 2023
                                ___________
 
 Introduced  by M. of A. WOERNER -- read once and referred to the Commit-
   tee on Health
 
 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 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 JANUARY  FIRST,  TWO  THOUSAND
 TWENTY-FIVE AND NO LESS THAN 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
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD10005-01-3
              

 A. 5905                             2
 
 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
 JANUARY  FIRST,  TWO  THOUSAND  TWENTY-FIVE, AND NO LESS THAN 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 JANUARY FIRST,  TWO  THOU-
 SAND TWENTY-THREE, THE NON-CAPITAL COMPONENT OF RATES ESTABLISHED PURSU-
 ANT 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
 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-
 A. 5905                             3
 
 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.

                             
                     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.