Bill Text: NY A07328 | 2023-2024 | General Assembly | Introduced

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Bill Title: Establishes a four-year demonstration project to reduce the use of temporary staffing agencies in residential healthcare facilities and a joint labor-management nursing home staffing workgroup to review and assess the impact of such demonstration project.

Spectrum: Partisan Bill (Democrat 5-0)

Status: (Passed) 2023-12-22 - approval memo.70 [A07328 Detail]

Download: New_York-2023-A07328-Introduced.html

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                STATE OF NEW YORK
        ________________________________________________________________________

                                          7328

                               2023-2024 Regular Sessions

                   IN ASSEMBLY

                                      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:

     1    Section 1. Paragraph (c) of subdivision 1 and paragraph (a) of  subdi-
     2  vision  2  of  section  2828  of the public health law, paragraph (c) of
     3  subdivision 1 as amended by section 4 and paragraph (a) of subdivision 2
     4  as amended by section 1 of part M of chapter 57 of the laws of 2022, are
     5  amended to read as follows:
     6    (c) [Such] (i) Except as provided in subparagraph (ii) of  this  para-
     7  graph,  such  regulations  shall  further  include at a minimum that any
     8  residential health care  facility  for  which  total  operating  revenue
     9  exceeds  total  operating  and  non-operating expenses by more than five
    10  percent of total operating and non-operating expenses or that  fails  to
    11  spend  the  minimum amount necessary to comply with the minimum spending
    12  standards for resident-facing staffing or direct resident  care,  calcu-
    13  lated  on an annual basis, or for the year two thousand twenty-two, on a
    14  pro-rata basis for only that portion of the year during which the  fail-
    15  ure  of a residential health care facility to spend a minimum of seventy
    16  percent of revenue on direct resident care, and forty percent of revenue
    17  on resident-facing staffing, may be held to be a violation of this chap-
    18  ter, shall remit such excess revenue,  or  the  difference  between  the
    19  minimum  spending requirement and the actual amount of spending on resi-
    20  dent-facing staffing or direct care staffing, as the case may be, to the
    21  state, with such excess revenue which shall be payable, in a  manner  to
    22  be determined by such regulations, by November first in the year follow-
    23  ing  the  year  in which the expenses are incurred. The department shall
    24  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

     1  suit in a court of competent jurisdiction on its own behalf after giving
     2  notice of such suit to the attorney general, deductions or offsets  from
     3  payments  made  pursuant to the Medicaid program, and shall deposit such
     4  recouped funds into the nursing home quality pool, as set forth in para-
     5  graph  [d]  (d)  of  subdivision  two-c  of  section [two thousand eight
     6  hundred eight] twenty-eight hundred  eight  of  this  article.  Provided
     7  further that such payments of excess revenue shall be in addition to and
     8  shall  not  affect  a  residential health care facility's obligations to
     9  make any other payments required by state or federal law into the  nurs-
    10  ing  home  quality  pool,  including  but  not  limited to medicaid rate
    11  reductions required pursuant to paragraph [g] (g) of  subdivision  two-c
    12  of section [two thousand eight hundred eight] twenty-eight hundred eight
    13  of this article and department regulations promulgated pursuant thereto.
    14  The  commissioner  or  their designees shall have authority to audit the
    15  residential health care facilities' reports for compliance in accordance
    16  with this section.
    17    (ii) The commissioner shall establish a four-year (January first,  two
    18  thousand twenty-three -- December thirty-first, two thousand twenty-six)
    19  demonstration  project to reduce the use of temporary staffing agencies.
    20  Any remittance or amounts owed to the state pursuant to subparagraph (i)
    21  of this paragraph, including, but not limited to, amounts owed  relating
    22  to  excess  revenue,  or  the  difference  between  the minimum spending
    23  requirement and the actual amount of spending on resident-facing  staff-
    24  ing  or  direct  care  staffing, as the case may be, shall be reduced as
    25  follows for reporting periods beginning on January first,  two  thousand
    26  twenty-three  and  ending on December thirty-first, two thousand twenty-
    27  six, and, to the extent the demonstration project continues, years ther-
    28  eafter:
    29    (A) a fifty percent reduction, if a  residential  healthcare  facility
    30  which  has  a  fifty  percent  or  lower use of resident-facing staffing
    31  contracted out to a temporary staffing agency for services  provided  by
    32  registered  professional nurses, licensed practical nurses, or certified
    33  nurse aids, has reduced its use of such contracted agency services by at
    34  least thirty percent during any year in which such remittance or amounts
    35  owed to the state are payable, as measured by subparagraph (iii) of this
    36  paragraph.
    37    (B) a twenty-five  percent  reduction,  if  a  residential  healthcare
    38  facility  which  has  a  fifty  percent  or lower use of resident-facing
    39  staffing contracted out to a  temporary  staffing  agency  for  services
    40  provided  by  registered professional nurses, licensed practical nurses,
    41  or certified nurse aides, has reduced its use of such contracted  agency
    42  services  by  at  least  twenty  percent,  but less than thirty percent,
    43  during any year in which such remittance or amounts owed  to  the  state
    44  are payable, as measured by subparagraph (iii) of this paragraph.
    45    (iii)  In  measuring  temporary  staffing agency usage for purposes of
    46  determining the reductions provided  for  in  clauses  (A)  and  (B)  of
    47  subparagraph  (ii)  of  this  paragraph, the following measuring periods
    48  shall apply: in two thousand twenty-three, the fourth  calendar  quarter
    49  of  two  thousand  twenty-two  shall  be compared to the fourth calendar
    50  quarter of two thousand twenty-three; for two thousand  twenty-four  and
    51  years  thereafter,  the  average  of  the  four calendar quarters of the
    52  previous year shall be compared to the  average  of  the  four  calendar
    53  quarters of the current year. Temporary staffing shall be measured using
    54  the  publicly  available U.S. Centers for Medicare and Medicaid Services
    55  (CMS) Payroll Based Journal (PBJ) facility-reported data.
        A. 7328                             3

     1    (a) "Revenue" shall mean the total operating revenue from or on behalf
     2  of residents of the residential health care facility, government payers,
     3  or third-party payers, to pay for a resident's occupancy of the residen-
     4  tial health care facility, resident care, and the operation of the resi-
     5  dential  health care facility as reported in the residential health care
     6  facility cost reports submitted to the  department;  provided,  however,
     7  that revenue shall exclude:
     8    (i)  [the  average  increase  in]  the capital portion of the Medicaid
     9  reimbursement rate [from the prior three years];
    10    (ii) funding  received  as  reimbursement  for  the  assessment  under
    11  subparagraph  (vi)  of paragraph (b) of subdivision two of section twen-
    12  ty-eight hundred seven-d of this  article,  as  reconciled  pursuant  to
    13  paragraph (c) of subdivision ten of section twenty-eight hundred seven-d
    14  of this article;
    15    (iii)  [the  capital  per  diem  portion of the reimbursement rate for
    16  nursing homes that have an overall four- or  five-star  rating  assigned
    17  pursuant  to  the inspection rating system of the U.S. Centers for Medi-
    18  care and Medicaid Services (CMS  rating),  provided  however  that  such
    19  exclusion  shall not apply to any amount of the capital per diem portion
    20  of the reimbursement rate that is attributable to a capital  expenditure
    21  made  to  a  corporation,  other entity, or individual, with a common or
    22  familial ownership to the operator or the  facility  as  reported  under
    23  subdivision one of section twenty-eight hundred three-x of this chapter;
    24  and
    25    (iv)] any grant funds from the federal government for reimbursement of
    26  COVID-19  pandemic-related  expenses, including but not limited to funds
    27  received  from  the  federal  emergency  management  agency  or   health
    28  resources and services administration;
    29    (iv)  for  the  first  year  of  the demonstration project established
    30  pursuant to subparagraph (ii) of paragraph (c)  of  subdivision  one  of
    31  this  section, all revenue, other than total Medicaid operating revenue,
    32  if, in the fourth quarter of two thousand  twenty-three,  a  residential
    33  health  care  facility  uses  ten percent or less of its resident-facing
    34  staffing who are contracted out  to  a  temporary  staffing  agency  for
    35  services  provided by registered professional nurses, licensed practical
    36  nurses, or certified nurse aides;
    37    (v) for the second  year  of  the  demonstration  project  established
    38  pursuant  to  subparagraph  (ii)  of paragraph (c) of subdivision one of
    39  this section, all revenue, other than total Medicaid operating  revenue,
    40  if, in two thousand twenty-four, a residential health care facility uses
    41  nine  percent or less of its resident-facing staffing who are contracted
    42  out to a temporary staffing agency for services provided  by  registered
    43  professional nurses, licensed practical nurses, or certified nurse aids;
    44  and
    45    (vi)  for the third and fourth years, respectively, and, to the extent
    46  the demonstration project continues, years thereafter, respectively,  of
    47  the  demonstration  project established pursuant to subparagraph (ii) of
    48  paragraph (c) of subdivision one of this  section,  all  revenue,  other
    49  than  total  Medicaid operating revenue, if, in two thousand twenty-five
    50  and two thousand twenty-six, respectively, and, to the extent the demon-
    51  stration project continues, years thereafter, respectively,  a  residen-
    52  tial  health  care  facility uses eight percent or less of its resident-
    53  facing staffing who are contracted out to a  temporary  staffing  agency
    54  for  services provided by registered professional nurses, licensed prac-
    55  tical nurses, or certified nurse aides.
        A. 7328                             4

     1    § 2. Joint labor-management nursing home staffing workgroup. Beginning
     2  no later than July 1, 2025, the commissioner shall convene an eight-mem-
     3  ber labor-management nursing home staffing workgroup that  shall  review
     4  and  assess the impact of the demonstration program. The workgroup shall
     5  consist of an equal number of nursing home operators and representatives
     6  of  organized  labor  who represent nursing home staff. The four nursing
     7  home operator appointees shall consist of a proportionate representation
     8  of operators, including: (i) both for-profit and  not-for-profit  opera-
     9  tors;  and  (ii) appointees from various regions of the state. In making
    10  such nursing home operator appointments,  the  commissioner  shall  seek
    11  recommendations  from  regional  or  statewide associations representing
    12  predominantly for-profit and not-for-profit nursing home operators.  The
    13  commissioner  and  a  representative  of  the  office  of long-term care
    14  ombudsman shall also be members of the workgroup as ex-officio, non-vot-
    15  ing members.
    16    The workgroup shall study, evaluate,  and  make  recommendations  with
    17  respect  to  the  demonstration  program,  including  whether  or not to
    18  continue or modify the program. The workgroup shall also assess at least
    19  the following issues: (i) the impact of  the  demonstration  program  on
    20  reducing the use of staffing agencies; (ii) the impact of reduced staff-
    21  ing agencies on continued staffing shortages and meeting required staff-
    22  ing  levels  in  various  regions  of the state; and (iii) the impact of
    23  reduced staffing agency employees on quality of care  and  nursing  home
    24  operations.   In conducting its duties the workgroup shall solicit input
    25  and recommendations from representatives of consumers, and persons  with
    26  experience in nursing home data.
    27    The  workgroup  shall  prepare  a  report reflecting a majority of the
    28  voting members' recommendations no later than October 1, 2026.
    29    § 3. This act shall take effect immediately.