New York Codes, Rules and Regulations
Title 10 - DEPARTMENT OF HEALTH
Chapter V - Medical Facilities
Subchapter A - Medical Facilities-minimum Standards
Article 3 - Residential Care Facilities
Part 415 - Nursing Homes-minimum Standards
Administrative
Section 415.34 - Minimum Direct Resident Care Spending
Universal Citation: 10 NY Comp Codes Rules and Regs ยง 415.34
Current through Register Vol. 46, No. 39, September 25, 2024
(a) Purpose. This Section sets forth the requirements of the minimum direct resident care spending law set forth in Section 2828 of the Public Health Law and applies to all residential health care facilities licensed pursuant to this Part, except as provided in subdivision (c) of this Section.
(b) Definitions. The definitions of this Section shall have the same meaning as those terms set forth in subdivision (2) of Section 2828 of the Public Health Law. Additionally, the following terms shall have the following meanings:
(1) "Contracted out" shall mean
services provided by registered professional nurses, licensed practical nurses,
or certified nurse aides who provide services in a residential health care
facility through contractual or other employment agreement, whether such
agreement is entered into by the individual practitioner or by an employment
agency on behalf of the individual practitioner. Such agreement may be oral or
in writing.
(2) "Direct resident
care" shall mean the following cost centers in the residential health care
facility cost report:
(i) Nonrevenue Support
Services - Plant Operation & Maintenance, Laundry and Linen, Housekeeping,
Patient Food Service, Nursing Administration, Activities Program, Nonphysician
Education, Medical Education, Medical Director's Office, Housing, Social
Service, Transportation;
(ii)
Ancillary Services - Laboratory Services, Electrocardiology,
Electroencephalogy, Radiology, Inhalation Therapy, Podiatry, Dental,
Psychiatric, Physical Therapy, Occupational Therapy, Speech/Hearing Therapy,
Pharmacy, Central Services Supply, Medical Staff Services provided by licensed
or certified professionals including and without limitation Registered Nurses,
Licensed Practical Nurses, and Certified Nursing Assistant; and
(iii) Program Services - Residential Health
Care Facility, Pediatric, Traumatic Brain Injury (TBI), Autoimmune Deficiency
Syndrome (AIDS), Long Term Ventilator, Respite, Behavioral Intervention,
Neurode-generative, Adult Care Facility, Intermediate Care Facilities,
Independent Living, Outpatient Clinics, Adult Day Health Care, Home Health
Care, Meals on Wheels, Barber & Beauty Shop, and Other similar program
services that directly address the physical conditions of residents. Direct
resident care does not include, at a minimum and without limitation,
administrative costs (other than nurse administration), capital costs, debt
service, taxes (other than sales taxes or payroll taxes), capital depreciation,
rent and leases, and fiscal services.
(3) "Resident-facing staffing" shall mean all
staffing expenses in the ancillary and program services categories on Exhibit H
of the residential health care facility cost reports.
(4) "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 residential health care facility, resident care, and the operation of the
residential 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 Public Health Law section
2807 d(2)(b)(vi), as reconciled pursuant to Public Health Law section 2807
d(10)(c);
(iii) the capital per
diem portion of the reimbursement rate for nursing homes; provided, however,
that such exclusion shall not apply:
(a) for
nursing homes that have an overall one-, two-, or three-star rating assigned
pursuant to the inspection rating system of the U.S. Centers for Medicare and
Medicaid Services (CMS rating); or
(b) 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 Public Health Law
section 2803 x(1); 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.
(c) Applicability.
(1) For the purposes of this Section,
residential health care facilities shall not include:
(i) facilities that are authorized by the
Department to primarily care for medically fragile children or young adults,
people with HIV/AIDS, persons requiring behavioral intervention, or persons
requiring neurode-generative services. For the purposes of this subparagraph, a
facility shall be considered to primarily care for such specialized populations
if at least 51 percent of certified beds are designated for persons with such
specialty health care needs; or
(ii)
continuing care retirement communities licensed pursuant to Article 46 or 46-A
of the Public Health Law.
(iii) A
facility may apply to the Commissioner for a waiver of applicability of this
Section on the basis of providing specialty care services if such facility
primarily provides care to a specialized population other than one listed in
subparagraph (i) of this paragraph. Such application shall detail what
specialty services the facility provides, the percentage of the resident
population needing such specialty services, and whether any other residential
health care facilities licensed by the Department provide such specialty
services. The Commissioner shall have discretion to approve or reject
applications submitted pursuant to this subparagraph, and shall provide the
facility with the basis for the Commissioner's determination within a
reasonable timeframe upon receipt of a complete application. Factors the
Commissioner will assess in determining whether to grant or deny a waiver
application based on provision of services to a specialty population include,
but are not limited to, the following:
(a)
the number of other residential health care facilities licensed by the
Department that provide the services identified by the facility as specialized
services;
(b) whether a majority of
current facility residents have special health care needs as identified by the
facility; and
(c) the unique
training or licensing required of facility staff to provide services to the
identified specialized population.
(iv) In the event a facility no longer
provides care for a specialty population, as identified under subparagraphs (i)
and (iii) of this paragraph, the facility shall comply with this Section by
January first of the first year following the date on which the facility ceased
operating as a specialty residential health care facility, as determined by the
Commissioner.
(2)
Additional Waivers. A facility may apply to the Commissioner for a waiver of
applicability of this Section on the basis of unexpected or exceptional
circumstances that prevented compliance. Such application shall detail the
specific unexpected or exceptional circumstance experienced by the facility;
when the facility first learned of such circumstances; why the facility could
not have anticipated such circumstances arising; actions the facility took to
address such circumstances; expenses incurred as a result of addressing such
circumstances; when the facility expects such circumstances to be resolved; and
what preventive steps the facility is taking to ensure that such circumstances
do not unexpectedly arise in the future. The Commissioner shall have discretion
to approve or reject applications submitted pursuant to this paragraph, and
shall provide the facility with the basis for the Commissioner's determination
within a reasonable timeframe upon receipt of a complete application. Factors
the Commissioner will assess in determining whether to grant or deny a waiver
application based on unexpected or exceptional circumstances include, but are
not limited to, the following:
(i) whether
the facility should have anticipated such events occurring;
(ii) whether any other residential health
care facilities licensed by the Department experienced similar circumstances
but have not applied for a waiver under this paragraph;
(iii) whether the facility has implemented
sufficient policies and procedures to ensure such events do not
recur.
(d) Minimum Spending Requirements. By January 1, 2022, residential health care facilities shall comply with the following minimum expenditures:
(1) 70 percent of revenue shall be spent on
direct resident care; and
(2) 40
percent of revenue shall be spent on resident-facing staffing.
(i) All amounts spent on resident-facing
staffing shall be included as a part of amounts spent on direct resident care;
and
(ii) 15 percent of costs
associated with resident-facing staffing that are contracted out by a facility
for services provided by registered professional nurses, licensed practical
nurses, or certified nurse aides shall be deducted from the calculation of the
amount spent on resident-facing staffing and direct resident
care.
(3) For the
purposes of assessing whether a facility has met the minimum spending
requirements, a facility may apply to the Commissioner to have certain revenues
and expenses excluded from the calculation of the facility's total revenue and
total expenditures, where the facility has satisfactorily demonstrated to the
Commissioner that such revenues and expenses were incurred due to the following
circumstances:
(i) a natural disaster, where a
federal, State, or local declaration of emergency has been issued; or
(ii) the facility has received extraordinary,
non-recurring revenue which, in the discretion of the Commissioner, does not
accurately reflect operating revenue for the purposes of this rule, including
but not limited to revenue received through insurance or legal
settlements.
(e) Recoupment.
(1) A residential health care
facility shall be subject to recoupment for excessive total operating revenue
if:
(i) the facility's total operating
revenue exceeds total operating and non-operating expenses by more than five
percent of total operating revenue; or
(ii) the facility fails to spend the minimum
amount necessary to comply with the minimum spending standards for
resident-facing staffing or direct resident care, as set forth in subdivision
(d) of this Section, as calculated on an annual basis, or for 2022, on a
pro-rata basis for April 1, 2022 through December 31, 2022.
(2) Remission of excess revenue.
(i) The Department shall issue a notice of
noncompliance to a facility subject to recoupment for excessive total operating
revenue, which indicates the amount to be remitted based on the amount of
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 applicable, as well as acceptable forms of payment.
(ii) Upon receipt of a notice of
noncompliance pursuant to subparagraph (i), the facility shall remit the total
amount indicated in the notice of noncompliance by November first in the year
following the year in which the expenses are incurred.
(3) Penalties. Failure to remit the total
required fee by the due date may result in adverse action by the Department,
including but not limited to: bringing suit in a court of competent
jurisdiction, taking deductions or offsets from payments made pursuant to the
Medicaid program, and imposition of penalties pursuant to Section
12 of the
Public Health Law.
(4) Recouped
funds shall be deposited by the Department into the Nursing Home Quality Pool,
pursuant to Section
2808
(2-c)(d) of the Public Health
Law.
(f) Residential Health Care Facility Cost Reports.
(1) The
Department shall, no less frequently than annually, audit the residential
health care facilities' cost reports for compliance in accordance with this
Section.
(2) If a facility did not
report data in the 2019 residential health care facility cost report, they must
promptly provide the Department with data on the facility's direct resident
care and resident facing staffing expenses in accordance with this Section and
Section
2828 of the
Public Health Law. This data must be submitted with a written certification by
the operator, officer, or public official responsible for the operation of the
facility, in a form and format determined acceptable by the Department,
attesting that all data reported by the facility is complete and accurate. If
the data is not submitted within a reasonable timeframe, as determined by the
Department, the Department shall use the previous available cost report data
applicable to such facility.
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