S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   7328
 
                        2023-2024 Regular Sessions
 
                           I N  A S S E M B L Y
 
                               May 17, 2023
                                ___________
 
 Introduced by M. of A. PAULIN -- read once and referred to the Committee
   on Health
 
 AN  ACT  to  amend  the public health law, in relation to establishing a
   four-year demonstration project and workgroup to  reduce  the  use  of
   temporary staffing agencies in residential healthcare facilities

   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1. Paragraph (c) of subdivision 1 and paragraph (a) of  subdi-
 vision  2  of  section  2828  of the public health law, paragraph (c) of
 subdivision 1 as amended by section 4 and paragraph (a) of subdivision 2
 as amended by section 1 of part M of chapter 57 of the laws of 2022, are
 amended to read as follows:
   (c) [Such] (I) EXCEPT AS PROVIDED IN SUBPARAGRAPH (II) OF  THIS  PARA-
 GRAPH,  SUCH  regulations  shall  further  include at a minimum that any
 residential health care  facility  for  which  total  operating  revenue
 exceeds  total  operating  and  non-operating expenses by more than five
 percent of total operating and non-operating expenses or that  fails  to
 spend  the  minimum amount necessary to comply with the minimum spending
 standards for resident-facing staffing or direct resident  care,  calcu-
 lated  on an annual basis, or for the year two thousand twenty-two, on a
 pro-rata basis for only that portion of the year during which the  fail-
 ure  of a residential health care facility to spend a minimum of seventy
 percent of revenue on direct resident care, and forty percent of revenue
 on resident-facing staffing, may be held to be a violation of this chap-
 ter, shall remit such excess revenue,  or  the  difference  between  the
 minimum  spending requirement and the actual amount of spending on resi-
 dent-facing staffing or direct care staffing, as the case may be, to the
 state, with such excess revenue which shall be payable, in a  manner  to
 be determined by such regulations, by November first in the year follow-
 ing  the  year  in which the expenses are incurred. The department shall
 collect such payments by methods including, but not limited to, bringing
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD11118-02-3
              

 A. 7328                             2
 
 suit in a court of competent jurisdiction on its own behalf after giving
 notice of such suit to the attorney general, deductions or offsets  from
 payments  made  pursuant to the Medicaid program, and shall deposit such
 recouped funds into the nursing home quality pool, as set forth in para-
 graph  [d]  (D)  of  subdivision  two-c  of  section [two thousand eight
 hundred eight] TWENTY-EIGHT HUNDRED  EIGHT  of  this  article.  Provided
 further that such payments of excess revenue shall be in addition to and
 shall  not  affect  a  residential health care facility's obligations to
 make any other payments required by state or federal law into the  nurs-
 ing  home  quality  pool,  including  but  not  limited to medicaid rate
 reductions required pursuant to paragraph [g] (G) of  subdivision  two-c
 of section [two thousand eight hundred eight] TWENTY-EIGHT HUNDRED EIGHT
 of this article and department regulations promulgated pursuant thereto.
 The  commissioner  or  their designees shall have authority to audit the
 residential health care facilities' reports for compliance in accordance
 with this section.
   (II) THE COMMISSIONER SHALL ESTABLISH A FOUR-YEAR (JANUARY FIRST,  TWO
 THOUSAND TWENTY-THREE -- DECEMBER THIRTY-FIRST, TWO THOUSAND TWENTY-SIX)
 DEMONSTRATION  PROJECT TO REDUCE THE USE OF TEMPORARY STAFFING AGENCIES.
 ANY REMITTANCE OR AMOUNTS OWED TO THE STATE PURSUANT TO SUBPARAGRAPH (I)
 OF THIS PARAGRAPH, INCLUDING, BUT NOT LIMITED TO, AMOUNTS OWED  RELATING
 TO  EXCESS  REVENUE,  OR  THE  DIFFERENCE  BETWEEN  THE MINIMUM SPENDING
 REQUIREMENT AND THE ACTUAL AMOUNT OF SPENDING ON RESIDENT-FACING  STAFF-
 ING  OR  DIRECT  CARE  STAFFING, AS THE CASE MAY BE, SHALL BE REDUCED AS
 FOLLOWS FOR REPORTING PERIODS BEGINNING ON JANUARY FIRST,  TWO  THOUSAND
 TWENTY-THREE  AND  ENDING ON DECEMBER THIRTY-FIRST, TWO THOUSAND TWENTY-
 SIX, AND, TO THE EXTENT THE DEMONSTRATION PROJECT CONTINUES, YEARS THER-
 EAFTER:
   (A) A FIFTY PERCENT REDUCTION, IF A  RESIDENTIAL  HEALTHCARE  FACILITY
 WHICH  HAS  A  FIFTY  PERCENT  OR  LOWER USE OF RESIDENT-FACING STAFFING
 CONTRACTED OUT TO A TEMPORARY STAFFING AGENCY FOR SERVICES  PROVIDED  BY
 REGISTERED  PROFESSIONAL NURSES, LICENSED PRACTICAL NURSES, OR CERTIFIED
 NURSE AIDS, HAS REDUCED ITS USE OF SUCH CONTRACTED AGENCY SERVICES BY AT
 LEAST THIRTY PERCENT DURING ANY YEAR IN WHICH SUCH REMITTANCE OR AMOUNTS
 OWED TO THE STATE ARE PAYABLE, AS MEASURED BY SUBPARAGRAPH (III) OF THIS
 PARAGRAPH.
   (B) A TWENTY-FIVE  PERCENT  REDUCTION,  IF  A  RESIDENTIAL  HEALTHCARE
 FACILITY  WHICH  HAS  A  FIFTY  PERCENT  OR LOWER USE OF RESIDENT-FACING
 STAFFING CONTRACTED OUT TO A  TEMPORARY  STAFFING  AGENCY  FOR  SERVICES
 PROVIDED  BY  REGISTERED PROFESSIONAL NURSES, LICENSED PRACTICAL NURSES,
 OR CERTIFIED NURSE AIDES, HAS REDUCED ITS USE OF SUCH CONTRACTED  AGENCY
 SERVICES  BY  AT  LEAST  TWENTY  PERCENT,  BUT LESS THAN THIRTY PERCENT,
 DURING ANY YEAR IN WHICH SUCH REMITTANCE OR AMOUNTS OWED  TO  THE  STATE
 ARE PAYABLE, AS MEASURED BY SUBPARAGRAPH (III) OF THIS PARAGRAPH.
   (III)  IN  MEASURING  TEMPORARY  STAFFING AGENCY USAGE FOR PURPOSES OF
 DETERMINING THE REDUCTIONS PROVIDED  FOR  IN  CLAUSES  (A)  AND  (B)  OF
 SUBPARAGRAPH  (II)  OF  THIS  PARAGRAPH, THE FOLLOWING MEASURING PERIODS
 SHALL APPLY: IN TWO THOUSAND TWENTY-THREE, THE FOURTH  CALENDAR  QUARTER
 OF  TWO  THOUSAND  TWENTY-TWO  SHALL  BE COMPARED TO THE FOURTH CALENDAR
 QUARTER OF TWO THOUSAND TWENTY-THREE; FOR TWO THOUSAND  TWENTY-FOUR  AND
 YEARS  THEREAFTER,  THE  AVERAGE  OF  THE  FOUR CALENDAR QUARTERS OF THE
 PREVIOUS YEAR SHALL BE COMPARED TO THE  AVERAGE  OF  THE  FOUR  CALENDAR
 QUARTERS OF THE CURRENT YEAR. TEMPORARY STAFFING SHALL BE MEASURED USING
 THE  PUBLICLY  AVAILABLE U.S. CENTERS FOR MEDICARE AND MEDICAID SERVICES
 (CMS) PAYROLL BASED JOURNAL (PBJ) FACILITY-REPORTED DATA.
 A. 7328                             3
 
   (a) "Revenue" shall mean the total operating revenue from or on behalf
 of residents of the residential health care facility, government payers,
 or third-party payers, to pay for a resident's occupancy of the residen-
 tial health care facility, resident care, and the operation of the resi-
 dential  health care facility as reported in the residential health care
 facility cost reports submitted to the  department;  provided,  however,
 that revenue shall exclude:
   (i)  [the  average  increase  in]  the capital portion of the Medicaid
 reimbursement rate [from the prior three years];
   (ii) funding  received  as  reimbursement  for  the  assessment  under
 subparagraph  (vi)  of paragraph (b) of subdivision two of section twen-
 ty-eight hundred seven-d of this  article,  as  reconciled  pursuant  to
 paragraph (c) of subdivision ten of section twenty-eight hundred seven-d
 of this article;
   (iii)  [the  capital  per  diem  portion of the reimbursement rate for
 nursing homes that have an overall four- or  five-star  rating  assigned
 pursuant  to  the inspection rating system of the U.S. Centers for Medi-
 care and Medicaid Services (CMS  rating),  provided  however  that  such
 exclusion  shall not apply to any amount of the capital per diem portion
 of the reimbursement rate that is attributable to a capital  expenditure
 made  to  a  corporation,  other entity, or individual, with a common or
 familial ownership to the operator or the  facility  as  reported  under
 subdivision one of section twenty-eight hundred three-x of this chapter;
 and
   (iv)] any grant funds from the federal government for reimbursement of
 COVID-19  pandemic-related  expenses, including but not limited to funds
 received  from  the  federal  emergency  management  agency  or   health
 resources and services administration;
   (IV)  FOR  THE  FIRST  YEAR  OF  THE DEMONSTRATION PROJECT ESTABLISHED
 PURSUANT TO SUBPARAGRAPH (II) OF PARAGRAPH (C)  OF  SUBDIVISION  ONE  OF
 THIS  SECTION, ALL REVENUE, OTHER THAN TOTAL MEDICAID OPERATING REVENUE,
 IF, IN THE FOURTH QUARTER OF TWO THOUSAND  TWENTY-THREE,  A  RESIDENTIAL
 HEALTH  CARE  FACILITY  USES  TEN PERCENT OR LESS OF ITS RESIDENT-FACING
 STAFFING WHO ARE CONTRACTED OUT  TO  A  TEMPORARY  STAFFING  AGENCY  FOR
 SERVICES  PROVIDED BY REGISTERED PROFESSIONAL NURSES, LICENSED PRACTICAL
 NURSES, OR CERTIFIED NURSE AIDES;
   (V) FOR THE SECOND  YEAR  OF  THE  DEMONSTRATION  PROJECT  ESTABLISHED
 PURSUANT  TO  SUBPARAGRAPH  (II)  OF PARAGRAPH (C) OF SUBDIVISION ONE OF
 THIS SECTION, ALL REVENUE, OTHER THAN TOTAL MEDICAID OPERATING  REVENUE,
 IF, IN TWO THOUSAND TWENTY-FOUR, A RESIDENTIAL HEALTH CARE FACILITY USES
 NINE  PERCENT OR LESS OF ITS RESIDENT-FACING STAFFING WHO ARE CONTRACTED
 OUT TO A TEMPORARY STAFFING AGENCY FOR SERVICES PROVIDED  BY  REGISTERED
 PROFESSIONAL NURSES, LICENSED PRACTICAL NURSES, OR CERTIFIED NURSE AIDS;
 AND
   (VI)  FOR THE THIRD AND FOURTH YEARS, RESPECTIVELY, AND, TO THE EXTENT
 THE DEMONSTRATION PROJECT CONTINUES, YEARS THEREAFTER, RESPECTIVELY,  OF
 THE  DEMONSTRATION  PROJECT ESTABLISHED PURSUANT TO SUBPARAGRAPH (II) OF
 PARAGRAPH (C) OF SUBDIVISION ONE OF THIS  SECTION,  ALL  REVENUE,  OTHER
 THAN  TOTAL  MEDICAID OPERATING REVENUE, IF, IN TWO THOUSAND TWENTY-FIVE
 AND TWO THOUSAND TWENTY-SIX, RESPECTIVELY, AND, TO THE EXTENT THE DEMON-
 STRATION PROJECT CONTINUES, YEARS THEREAFTER, RESPECTIVELY,  A  RESIDEN-
 TIAL  HEALTH  CARE  FACILITY USES EIGHT PERCENT OR LESS OF ITS RESIDENT-
 FACING STAFFING WHO ARE CONTRACTED OUT TO A  TEMPORARY  STAFFING  AGENCY
 FOR  SERVICES PROVIDED BY REGISTERED PROFESSIONAL NURSES, LICENSED PRAC-
 TICAL NURSES, OR CERTIFIED NURSE AIDES.
 A. 7328                             4
 
   § 2. Joint labor-management nursing home staffing workgroup. Beginning
 no later than July 1, 2025, the commissioner shall convene an eight-mem-
 ber labor-management nursing home staffing workgroup that  shall  review
 and  assess the impact of the demonstration program. The workgroup shall
 consist of an equal number of nursing home operators and representatives
 of  organized  labor  who represent nursing home staff. The four nursing
 home operator appointees shall consist of a proportionate representation
 of operators, including: (i) both for-profit and  not-for-profit  opera-
 tors;  and  (ii) appointees from various regions of the state. In making
 such nursing home operator appointments,  the  commissioner  shall  seek
 recommendations  from  regional  or  statewide associations representing
 predominantly for-profit and not-for-profit nursing home operators.  The
 commissioner  and  a  representative  of  the  office  of long-term care
 ombudsman shall also be members of the workgroup as ex-officio, non-vot-
 ing members.
   The workgroup shall study, evaluate,  and  make  recommendations  with
 respect  to  the  demonstration  program,  including  whether  or not to
 continue or modify the program. The workgroup shall also assess at least
 the following issues: (i) the impact of  the  demonstration  program  on
 reducing the use of staffing agencies; (ii) the impact of reduced staff-
 ing agencies on continued staffing shortages and meeting required staff-
 ing  levels  in  various  regions  of the state; and (iii) the impact of
 reduced staffing agency employees on quality of care  and  nursing  home
 operations.   In conducting its duties the workgroup shall solicit input
 and recommendations from representatives of consumers, and persons  with
 experience in nursing home data.
   The  workgroup  shall  prepare  a  report reflecting a majority of the
 voting members' recommendations no later than October 1, 2026.
   § 3. This act shall take effect immediately.