NY State Senate Bill 2025-S4883A

Senate Bill S4883A

2025-2026 Legislative Session

Relates to the calculation of operating revenue for purposes of minimum direct resident care spending by residential health care facilities

download bill text pdf

Current Bill Status - In Senate Committee Health Committee

Introduced
- In Committee Assembly
- In Committee Senate
- On Floor Calendar Assembly
- On Floor Calendar Senate
- Passed Assembly
- Passed Senate
Delivered to Governor
Signed By Governor

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	Assembly Actions - Lowercase Senate Actions - UPPERCASE
Feb 21, 2025	print number 4883a
Feb 21, 2025	amend and recommit to health
Feb 13, 2025	referred to health

Bill Amendments

Original

A (Active)

2025-S4883 - Details

Current Committee:: Senate Health
Law Section:: Public Health Law
Laws Affected:: Amd §2828, Pub Health L

2025-S4883 - Summary

Excludes one-time federal assistance in the calculation of operating revenue for purposes of minimum direct resident care spending by residential health care facilities.

2025-S4883 - Sponsor Memo

                                 
BILL NUMBER: S4883

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to amend the public health law, in relation to minimum direct
resident care spending by residential health care facilities

 
PURPOSE OR GENERAL IDEA OF BILL:

To conform the calculation of revenue for the 5% profit cap test for
nursing homes with the 70/40 minimum spend test for staffing funding
eligibility.

 
SUMMARY OF PROVISIONS:

Section 1 amends Public Health Law Section 2828 to clarify that COVID-19
pandemic-related expenses and such other one-time federal assistance
should be excluded from the definition of total operating revenue for
purposes of the 5% profit cap test.

Section 2 provides for an immediate effective date; provided, however,

for purposes of distribution of the supplemental payment to nursing
homes authorized by chapter 53 of the laws of 2022 (Aid to Localities)
and pursuant to the Medicaid State Plan Amendment 22-0007, this act
shall be deemed to have taken effect on January 1, 2020.

 
JUSTIFICATION:

The 2022-23 State Budget included $187 million in funding to help defray
the cost of the nursing home staffing mandate. The distribution of this
"safe staffing" funding required federal approval of the associated
Medicaid State Plan Amendment. In March of 2023, the Department of
Health released the state share of that funding to eligible free-stand-
ing nursing homes. To determine eligibility for this additional funding,
the state used provisions of the law to distribute funding to providers
that spend at least 70 percent of revenue on direct care and 40 percent
or more on resident facing staffing based on 2020 Medicaid Cost Report
Data (the "minimum funding statute" or "70/40 test").

CMS approved the safe staffing Medicaid State Plan Amendment in 2024.
As approved by CMS, the calculation of funding eligibility includes both
the 70/40 test, as well as the 5% profit cap test included in the mini-
mum spending statute. While COVID-19 relief and other one-time federal
funding (e.g. FEMA funds) is excluded for the 70/40 calculation, it is
unclear whether the one-time funding is to also be excluded from the 5%
profit cap test.

CMS and DOH determined that the COVID-19 relief and FEMA were not
excluded from the definition of "operating revenue" for purposes of the
5% margin cap. Due to this determination, many not for profit nursing
homes who historically experience operating losses actually exceeded the
5% profit cap test in 2020 due to the one-time federal COVID-related
assistance. As a result, these nursing homes incurred a reduction and
recoupment of the staffing assistance funds.  Nursing homes in New York
State are in dire need of funding due to years of inadequate Medicaid
rates, healthcare staffing shortages, and little new investment in long-
term care by the State. This bill will ensure that no nursing home loses
the financial assistance they so desperately need, solely due to the
inadvertent consequences of receiving one-time funding during the
COVID-19 pandemic.

 
PRIOR LEGISLATIVE HISTORY:

None

 
FISCAL IMPLICATIONS:

Amending the calculation of the "safe staffing" funding will increase
the number of nursing homes eligible for such assistance. Preliminary
estimates reflect that 11 not for profit nursing homes are subject to
the increased payment totaling approximately $2.7 million.

 
EFFECTIVE DATE:
Immediately; provided, however, for purposes of distribution of the
supplemental payment to qualified facilities authorized by chapter 53 of
the laws of 2022 (Aid to Localities) and pursuant to the Medicaid State
Plan Amendment 22-0007, this act shall be deemed to have taken effect on
January 1, 2020.

2025-S4883 - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                   4883
 
                        2025-2026 Regular Sessions
 
                             I N  S E N A T E
 
                             February 13, 2025
                                ___________
 
 Introduced by Sen. GOUNARDES -- read twice and ordered printed, and when
   printed to be committed to the Committee on Health
 
 AN  ACT  to  amend  the public health law, in relation to minimum direct
   resident care spending by residential health care facilities
 
   THE PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND  ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section  1.    Subparagraph  (i)  of paragraph (c) of subdivision 1 of
 section 2828 of the public health law, as amended by chapter 747 of  the
 laws of 2023, is amended to read as follows:
   (i)  Except  as  provided in subparagraph (ii) of this paragraph, such
 regulations shall further include at  a  minimum  that  any  residential
 health care facility for which THE CALCULATION OF total operating reven-
 ue,  AS SUCH TERM IS LIMITED BY PARAGRAPH (A) OF SUBDIVISION TWO OF THIS
 SECTION, 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  spend-
 ing  standards  for  resident-facing  staffing  or direct resident care,
 calculated 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
 failure 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 chapter, shall remit such excess revenue, or the difference between
 the minimum spending requirement and the actual amount  of  spending  on
 resident-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
 following  the  year  in which the expenses are incurred. The department
 shall collect such payments by methods including, but  not  limited  to,
 bringing  suit  in  a  court of competent jurisdiction on its own behalf
 after giving notice of such suit to the attorney general, deductions  or
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD09626-01-5

 S. 4883                             2
 
 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  paragraph  (d)  of  subdivision two-c of section 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  residen-
 tial  health  care  facility's  obligations  to  make any other payments
 required by state or federal law into the  nursing  home  quality  pool,
 including  but not limited to medicaid rate reductions required pursuant
 to paragraph (g) of subdivision two-c of  section  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.
   § 2. Paragraph (a) of subdivision 2 of  section  2828  of  the  public
 health  law, as amended by chapter 27 of the laws of 2024, 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 TOTAL OPERATING 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 AND SUCH OTHER ONE-TIME FEDERAL
 FINANCIAL ASSISTANCE.
   § 3. This act shall take effect immediately;  provided,  however,  for
 purposes of distribution of the supplemental payment to qualified facil-
 ities  authorized by chapter 53 of the laws of 2022, enacting the aid to
 localities budget, and pursuant to the  Medicaid  State  Plan  Amendment
 22-0007,  this act shall be deemed to have been in full force and effect
 on and after January 1, 2020.

2025-S4883A (ACTIVE) - Details

Current Committee:: Senate Health
Law Section:: Public Health Law
Laws Affected:: Amd §2828, Pub Health L

2025-S4883A (ACTIVE) - Summary

Excludes one-time federal assistance in the calculation of operating revenue for purposes of minimum direct resident care spending by residential health care facilities.

2025-S4883A (ACTIVE) - Sponsor Memo

                                 
BILL NUMBER: S4883A

SPONSOR: GOUNARDES
 
TITLE OF BILL:

An act to amend the public health law, in relation to minimum direct
resident care spending by residential health care facilities

 
PURPOSE OR GENERAL IDEA OF BILL:

To conform the calculation of revenue for the 5% profit cap test for
nonprofit nursing homes with the 70/40 minimum spend test for staffing
funding eligibility.

 
SUMMARY OF PROVISIONS:

Sections one and two amend Public Health Law Section 2828 to clarify
that COVID-19 pandemic-related expenses and such other one-time federal
assistance should be excluded from the definition of total operating
revenue for purposes of the 5% profit cap test for nonprofit nursing
homes.

Section three provides for an immediate effective date; provided, howev-
er, for purposes of distribution of the supplemental payment to nonpro-
fit nursing homes authorized by chapter 53 of the laws of 2022 (Aid to
Localities) and pursuant to the Medicaid State Plan Amendment 22-0007,
this act shall be deemed to have taken effect on January 1, 2020.

 
JUSTIFICATION:

The 2022-23 State Budget included $187 million in funding to help defray
the cost of the nursing home staffing mandate. The distribution of this
"safe staffing" funding required federal approval of the associated
Medicaid State Plan Amendment.

In March of 2023, the Department of Health released the state share of
that funding to eligible free-standing nursing homes. To determine
eligibility for this additional funding, the state used provisions of
the law to distribute funding to providers that spend at least 70
percent of revenue on direct care and 40 percent or more on resident-
facing staffing based on 2020 Medicaid Cost Report Data (the "minimum
funding statute" or "70/40 test").

CMS approved the safe staffing Medicaid State Plan Amendment in 2024.
As approved by CMS, the calculation of funding eligibility includes both
the 70/40 test, as well as the 5% profit cap test included in the mini-
mum spending statute. While COVID-19 relief and other one-time federal
funding (e.g. FEMA funds) is excluded for the 70/40 calculation, it is
unclear whether the one-time funding is to also be excluded from the 5%
profit cap test.

CMS and DOH determined that the COVID-19 relief and FEMA were not
excluded from the definition of "operating revenue" for purposes of the
5% margin cap. Due to this determination, many not for profit nursing
homes who historically experience operating losses actually exceeded the
5% profit cap test in 2020 due to the one-time federal COVID-related
assistance. As a result, these nursing homes incurred a reduction and
recoupment of the staffing assistance funds.

Nursing homes in New York State are in dire need of funding due to years
of inadequate Medicaid rates, healthcare staffing shortages, and little
new investment in long-term care by the State. This bill will ensure
that no nursing home loses the financial assistance they so desperately
need, solely due to the inadvertent consequences of receiving one-time
funding during the COVID-19 pandemic.

 
PRIOR LEGISLATIVE HISTORY:

None

 
FISCAL IMPLICATIONS:

Amending the calculation of the "safe staffing" funding will increase
the number of nursing homes eligible for such assistance. Preliminary
estimates reflect that 11 not for profit nursing homes are subject to
the increased payment totaling approximately $2.7 million.

 
EFFECTIVE DATE:
Immediately; provided, however, for purposes of distribution of the
supplemental payment to qualified nonprofit facilities authorized by
chapter 53 of the laws of 2022 (Aid to Localities) and pursuant to the
Medicaid State Plan Amendment 22-0007, this act shall be deemed to have
taken effect on January 1, 2020.

2025-S4883A (ACTIVE) - Bill Text download pdf

                             
                     S T A T E   O F   N E W   Y O R K
 ________________________________________________________________________
 
                                  4883--A
 
                        2025-2026 Regular Sessions
 
                             I N  S E N A T E
 
                             February 13, 2025
                                ___________
 
 Introduced by Sen. GOUNARDES -- read twice and ordered printed, and when
   printed  to  be  committed  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  minimum  direct
   resident care spending by residential health care facilities
 
   THE  PEOPLE OF THE STATE OF NEW YORK, REPRESENTED IN SENATE AND ASSEM-
 BLY, DO ENACT AS FOLLOWS:
 
   Section 1.   Subparagraph (i) of paragraph (c)  of  subdivision  1  of
 section  2828 of the public health law, as amended by chapter 747 of the
 laws of 2023, is amended to read as follows:
   (i) Except as provided in subparagraph (ii) of  this  paragraph,  such
 regulations  shall  further  include  at  a minimum that any residential
 health care facility for which THE CALCULATION OF total operating reven-
 ue, AS SUCH TERM IS LIMITED BY SUBPARAGRAPH (III) OF  PARAGRAPH  (A)  OF
 SUBDIVISION TWO OF THIS SECTION, exceeds total operating and non-operat-
 ing  expenses by more than five percent of total operating and non-oper-
 ating 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, calculated 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 failure 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 chapter, shall remit such 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, 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 following the year in which the expenses  are
 incurred.  The department shall collect such payments by methods includ-
 
  EXPLANATION--Matter in ITALICS (underscored) is new; matter in brackets
                       [ ] is old law to be omitted.
                                                            LBD09626-02-5

 S. 4883--A                          2
 
 ing, but not limited to, bringing suit in a court of competent jurisdic-
 tion on its own behalf after giving notice of such suit to the  attorney
 general,  deductions or offsets from payments made pursuant to the Medi-
 caid  program,  and  shall  deposit such recouped funds into the nursing
 home quality pool, as set forth in paragraph (d) of subdivision two-c of
 section 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 nursing home
 quality pool, including but not  limited  to  medicaid  rate  reductions
 required pursuant to paragraph (g) of subdivision two-c of section twen-
 ty-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.
   § 2. Paragraph (a) of subdivision 2 of  section  2828  of  the  public
 health  law, as amended by chapter 27 of the laws of 2024, 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 TOTAL OPERATING 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 AND SUCH OTHER ONE-TIME FEDERAL
 FINANCIAL ASSISTANCE.
   § 3. This act shall take effect immediately;  provided,  however,  for
 purposes  of  distribution of the supplemental payment to qualified not-
 for-profit facilities authorized by chapter 53  of  the  laws  of  2022,
 enacting  the  aid  to  localities  budget, and pursuant to the Medicaid
 State Plan Amendment 22-0007, this act shall be deemed to have  been  in
 full force and effect on and after January 1, 2020.

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