S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   8497
 
                           I N  A S S E M B L Y
 
                              January 4, 2024
                                ___________
 
 Introduced by M. of A. PAULIN -- read once and referred to the Committee
   on Health
 
 AN  ACT to amend the public health law and a chapter of the laws of 2023
   amending the public health law relating to  establishing  a  four-year
   demonstration  project  and  workgroup  to reduce the use of temporary
   staffing agencies in residential healthcare facilities, as proposed in
   legislative bills numbers S. 6897 and A. 7328, in relation to a demon-
   stration project 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. Subparagraphs (ii) and (iii) of paragraph (c)  of  subdivi-
 sion  1  of section 2828 of the public health law, as added by a chapter
 of the laws of 2023 amending the public health law  relating  to  estab-
 lishing  a  four-year  demonstration project and workgroup to reduce the
 use of temporary staffing agencies in residential healthcare facilities,
 as proposed in legislative bills  numbers  S.  6897  and  A.  7328,  are
 amended to read as follows:
   (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

  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
              

                                                            LBD11118-03-4
 A. 8497                             2

 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.] NOTWITHSTAND-
 ING  THE  REQUIREMENTS PRESCRIBED BY SUBPARAGRAPH (I) OF THIS PARAGRAPH,
 THE PROVISIONS OF A DEMONSTRATION  PROJECT  ESTABLISHED  PURSUANT  TO  A
 CHAPTER  OF  THE  LAWS  OF  TWO  THOUSAND TWENTY-THREE THAT AMENDED THIS
 SUBPARAGRAPH SHALL APPLY TO THOSE RESIDENTIAL HEALTH CARE FACILITIES WHO
 QUALIFY FOR SUCH DEMONSTRATION PROJECT.
   § 2. Paragraph (a) of subdivision 2 of  section  2828  of  the  public
 health  law,  as  amended  by a chapter of the laws of 2023 amending the
 public health law relating to  establishing  a  four-year  demonstration
 project  and  workgroup to reduce the use of temporary staffing agencies
 in residential healthcare facilities, as proposed in  legislative  bills
 numbers S. 6897 and A. 7328, is amended to read as follows:
   (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 capital portion of the Medicaid reimbursement rate;
   (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; AND
   (iii) 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
 A. 8497                             3

 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].
   §  3.  Section  2 of a chapter of the laws of 2023 amending the public
 health law relating to establishing a  four-year  demonstration  project
 and  workgroup to reduce the use of temporary staffing agencies in resi-
 dential healthcare facilities, as proposed in legislative bills  numbers
 S. 6897 and A. 7328, is amended to read as follows:
   §  2.  [Joint labor-management nursing home staffing workgroup. Begin-
 ning no later than July 1,  2025,  the  commissioner  shall  convene  an
 eight-member 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 represen-
 tatives  of  organized  labor who represent nursing home staff. The four
 nursing home operator appointees shall consist of a proportionate repre-
 sentation of operators, including: (i) both for-profit and  not-for-pro-
 fit operators; 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  represent-
 ing  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.] 1.
 NOTWITHSTANDING THE REQUIREMENTS OF PARAGRAPH (C) OF SUBDIVISION  1  AND
 A. 8497                             4
 
 PARAGRAPH (A) OF SUBDIVISION 2 OF SECTION 2828 OF THE PUBLIC HEALTH LAW,
 THE  COMMISSIONER OF HEALTH SHALL ESTABLISH A FOUR-YEAR (JANUARY 1, 2023
 THROUGH DECEMBER 31, 2026) DEMONSTRATION PROJECT TO REDUCE  THE  USE  OF
 TEMPORARY STAFFING AGENCIES. ANY REMITTANCE OR AMOUNTS OWED TO THE STATE
 PURSUANT TO SUBPARAGRAPH (I) OF PARAGRAPH (C) OF SUBDIVISION 1 AND PARA-
 GRAPH  (A)  OF  SUBDIVISION  2 OF SECTION 2828 OF THE PUBLIC HEALTH LAW,
 INCLUDING, BUT NOT LIMITED TO, AMOUNTS OWED RELATING TO EXCESS  REVENUE,
 OR THE DIFFERENCE BETWEEN THE MINIMUM SPENDING REQUIREMENT AND THE ACTU-
 AL  AMOUNT OF SPENDING ON RESIDENT-FACING STAFFING OR DIRECT CARE STAFF-
 ING, AS THE CASE MAY BE, SHALL BE REDUCED AS FOLLOWS FOR REPORTING PERI-
 ODS BEGINNING ON JANUARY 1, 2023 AND ENDING ON DECEMBER 31,  2026,  AND,
 TO THE EXTENT THE DEMONSTRATION PROJECT CONTINUES, YEARS THEREAFTER:
   (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  AIDES,  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 PARAGRAPH (C) OF
 THIS SUBDIVISION.
   (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 PARAGRAPH (C) OF THIS SUBDIVISION.
   (C)  IN  MEASURING  TEMPORARY  STAFFING  AGENCY  USAGE FOR PURPOSES OF
 DETERMINING THE REDUCTIONS PROVIDED FOR IN THIS SECTION,  THE  FOLLOWING
 MEASURING  PERIODS  SHALL APPLY: IN 2023, THE FOURTH CALENDAR QUARTER OF
 2022 SHALL BE COMPARED TO THE FOURTH CALENDAR QUARTER OF 2023; FOR  2024
 AND  YEARS  THEREAFTER,  THE  AVERAGE  OF THE 4 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.
   2. (A) FOR THE FIRST YEAR OF  THE  DEMONSTRATION  PROJECT  ESTABLISHED
 PURSUANT  TO  THIS  SECTION,  THE  DEFINITION OF "REVENUE" AS DEFINED IN
 PARAGRAPH (A) OF SUBDIVISION 2 OF SECTION 2828 OF THE PUBLIC HEALTH  LAW
 SHALL  EXCLUDE ALL REVENUE, OTHER THAN TOTAL MEDICAID OPERATING REVENUE,
 IF, IN THE FOURTH QUARTER OF 2023, 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.
   (B) FOR THE SECOND  YEAR  OF  THE  DEMONSTRATION  PROJECT  ESTABLISHED
 PURSUANT TO THIS SECTION, ALL REVENUE, OTHER THAN TOTAL MEDICAID OPERAT-
 ING  REVENUE,  IF, IN 2024, 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
 AIDES; AND
   (C)  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 THIS SECTION, ALL
 A. 8497                             5
 
 REVENUE, OTHER THAN TOTAL MEDICAID OPERATING REVENUE, IF,  IN  2025  AND
 2026  RESPECTIVELY, AND, TO THE EXTENT THE DEMONSTRATION PROJECT CONTIN-
 UES, YEARS THEREAFTER, RESPECTIVELY, A RESIDENTIAL 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 PRACTICAL NURSES, OR CERTIFIED
 NURSE AIDES.
   3. FOR PURPOSES OF IMPLEMENTING THE  DEMONSTRATION  PROGRAM,  AFTER  A
 DETERMINATION  BY  THE  COMMISSIONER OF HEALTH THAT A RESIDENTIAL HEALTH
 CARE FACILITY IS NOT IN COMPLIANCE WITH PARAGRAPH (C) OF  SUBDIVISION  1
 OF SECTION 2828 OF THE PUBLIC HEALTH LAW, BUT PRIOR TO THE REMITTANCE OR
 PAYMENT OF ANY FUNDS BY SUCH FACILITY, A RESIDENTIAL HEALTH CARE FACILI-
 TY  SHALL SUBMIT DOCUMENTATION TO THE COMMISSIONER OF HEALTH THAT IT HAS
 MET THE PROVISIONS OF  THE  DEMONSTRATION  PROJECT.  SUCH  DOCUMENTATION
 SHALL  BE  SUPPORTED  BY A VERIFICATION BY A CERTIFIED PUBLIC ACCOUNTANT
 THAT, BASED ON THE  PBJ  FACILITY  REPORTED  DATA  AND  OTHER  NECESSARY
 SUPPORTING  DOCUMENTATION,  SUCH FACILITY IS ELIGIBLE FOR A REDUCTION IN
 PAYMENTS PURSUANT TO THIS SECTION. UPON RECEIPT  OF  SUCH  DOCUMENTATION
 AND  VERIFICATION, THE COMMISSIONER WILL REDUCE ANY PAYMENTS PURSUANT TO
 THIS SECTION.
   § 4. This act shall take effect on the  same  date  and  in  the  same
 manner  as  a chapter of the laws of 2023 amending the public health law
 relating to establishing a four-year demonstration project and workgroup
 to reduce the use of temporary staffing agencies in residential  health-
 care facilities, as proposed in legislative bills numbers S. 6897 and A.
 7328, takes effect.