Amd §2828, Pub Health L; amd §2, Chap of 2023 (as proposed in S.6897 & A.7328)
 
Relates to a four-year demonstration project to reduce the use of temporary staffing agencies in residential healthcare facilities; removes provisions regarding a joint labor-management nursing home staffing workgroup to review and assess the impact of such demonstration project.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A8497
SPONSOR: Paulin
 
TITLE OF BILL:
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
 
PURPOSE:
To ensure nursing home residents receive high-quality care and reduce
reliance on costly staffing agencies.
 
SUMMARY OF PROVISIONS:
This bill amends Chapter 747 of the Laws of 2023 by moving the four-year
nursing home demonstration program from the public health law to uncon-
solidated law. These changes also repeal a workgroup which was previous-
ly included in the demonstration program. Additionally, this bill will
provide the Department of Health (DOH) with administrative relief in
establishing and administering the four-year nursing home demonstration
program by requiring qualifying residential health care facilities to
submit documentation to DOH that it has met the provisions of the demon-
stration project; this includes a verification by a CPA that, based on
the federally-available PBJ data and other necessary supporting documen-
tation, the facility is eligible for a reduction in penalty payments.
 
JUSTIFICATION:
In 2021, the State enacted a law requiring nursing homes to spend at
least 700 of revenue on resident-facing care and 4096 on direct care
staff. To meet these standards, providers must increase their workforce,
however, the State is facing a healthcare workforce shortage crisis (as
set forth in Executive Order 4). To meet the requirements of this law
and safeguard the financial viability of nursing homes in the face of
this crisis, providers have been forced to rely on temporary staffing
agencies for CNAs, LPNs, and RNs.
Many temporary staffing agencies charge more than four times the amount
for facility-employed full-time CNA, LPN, and RN direct care staff. The
utilization of temporary staffing agencies in nursing homes is unsus-
tainable for providers and is detrimental to the recruitment and
retention of full time CNA, LPN, and RN employees.
This demonstration program will incentivize a reduction in the use of
temporary agency staff and better focus resources on full-time staff
continuity through, among other things, recruiting, hiring, and training
new employees. Ultimately, staff retention can contribute to increased
job satisfaction and reduced staff turnover, improve overall quality of
care, and build familiarity and trust between residents and staff, which
is paramount to resident health and well-being.
These amendments maintain the core tenants of the four-year demon-
stration program, while enabling administrative relief for the Depart-
ment of Health in establishing and operating the program by shifting the
burden of proving eligibility from the Department of Health to the
facilities who wish to qualify. The facilities will be required to have
a CPA verify the information they wish to submit based on federally-a-
vailable PBJ data and other supporting documentation that confirm that a
facility is eligible for a reduction in penalty payments. The new proc-
ess for the will require DOH to continue to process the "70/40" rule and
determine the facilities that aren't in compliance, require DOH to noti-
fy the facility of non-compliance, require the facility to submit
documentation verified by a CPA that they qualify for a penalty
reduction due to the reduced use of temporary staff, and then the
Department of Health will execute the reduction in payments. These
amendments will address the staffing challenges associated with the
pandemic that have driven an increase in the use of temporary agency
staff throughout health care, while providing reasonable administrative
relief to the Department of Health.
 
LEGISLATIVE HISTORY:
This is a new bill.
 
BUDGET IMPLICATIONS:
None noted.
 
EFFECTIVE DATE:
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 healthcare facili-
ties, as proposed in legislative bills numbers S.6897 and A.7328, takes
effect.
STATE OF NEW YORK
________________________________________________________________________
8497
IN ASSEMBLY
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:
1 Section 1. Subparagraphs (ii) and (iii) of paragraph (c) of subdivi-
2 sion 1 of section 2828 of the public health law, as added by a chapter
3 of the laws of 2023 amending the public health law relating to estab-
4 lishing a four-year demonstration project and workgroup to reduce the
5 use of temporary staffing agencies in residential healthcare facilities,
6 as proposed in legislative bills numbers S. 6897 and A. 7328, are
7 amended to read as follows:
8 (ii) [The commissioner shall establish a four-year (January first, two
9 thousand twenty-three -- December thirty-first, two thousand twenty-six)
10 demonstration project to reduce the use of temporary staffing agencies.
11 Any remittance or amounts owed to the state pursuant to subparagraph (i)
12 of this paragraph, including, but not limited to, amounts owed relating
13 to excess revenue, or the difference between the minimum spending
14 requirement and the actual amount of spending on resident-facing staff-
15 ing or direct care staffing, as the case may be, shall be reduced as
16 follows for reporting periods beginning on January first, two thousand
17 twenty-three and ending on December thirty-first, two thousand twenty-
18 six, and, to the extent the demonstration project continues, years ther-
19 eafter:
20 (A) a fifty percent reduction, if a residential healthcare facility
21 which has a fifty percent or lower use of resident-facing staffing
22 contracted out to a temporary staffing agency for services provided by
23 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
1 nurse aids, has reduced its use of such contracted agency services by at
2 least thirty percent during any year in which such remittance or amounts
3 owed to the state are payable, as measured by subparagraph (iii) of this
4 paragraph.
5 (B) a twenty-five percent reduction, if a residential healthcare
6 facility which has a fifty percent or lower use of resident-facing
7 staffing contracted out to a temporary staffing agency for services
8 provided by registered professional nurses, licensed practical nurses,
9 or certified nurse aides, has reduced its use of such contracted agency
10 services by at least twenty percent, but less than thirty percent,
11 during any year in which such remittance or amounts owed to the state
12 are payable, as measured by subparagraph (iii) of this paragraph.
13 (iii) In measuring temporary staffing agency usage for purposes of
14 determining the reductions provided for in clauses (A) and (B) of
15 subparagraph (ii) of this paragraph, the following measuring periods
16 shall apply: in two thousand twenty-three, the fourth calendar quarter
17 of two thousand twenty-two shall be compared to the fourth calendar
18 quarter of two thousand twenty-three; for two thousand twenty-four and
19 years thereafter, the average of the four calendar quarters of the
20 previous year shall be compared to the average of the four calendar
21 quarters of the current year. Temporary staffing shall be measured using
22 the publicly available U.S. Centers for Medicare and Medicaid Services
23 (CMS) Payroll Based Journal (PBJ) facility-reported data.] Notwithstand-
24 ing the requirements prescribed by subparagraph (i) of this paragraph,
25 the provisions of a demonstration project established pursuant to a
26 chapter of the laws of two thousand twenty-three that amended this
27 subparagraph shall apply to those residential health care facilities who
28 qualify for such demonstration project.
29 § 2. Paragraph (a) of subdivision 2 of section 2828 of the public
30 health law, as amended by a chapter of the laws of 2023 amending the
31 public health law relating to establishing a four-year demonstration
32 project and workgroup to reduce the use of temporary staffing agencies
33 in residential healthcare facilities, as proposed in legislative bills
34 numbers S. 6897 and A. 7328, is amended to read as follows:
35 (a) "Revenue" shall mean the total operating revenue from or on behalf
36 of residents of the residential health care facility, government payers,
37 or third-party payers, to pay for a resident's occupancy of the residen-
38 tial health care facility, resident care, and the operation of the resi-
39 dential health care facility as reported in the residential health care
40 facility cost reports submitted to the department; provided, however,
41 that revenue shall exclude:
42 (i) the capital portion of the Medicaid reimbursement rate;
43 (ii) funding received as reimbursement for the assessment under
44 subparagraph (vi) of paragraph (b) of subdivision two of section twen-
45 ty-eight hundred seven-d of this article, as reconciled pursuant to
46 paragraph (c) of subdivision ten of section twenty-eight hundred seven-d
47 of this article; and
48 (iii) any grant funds from the federal government for reimbursement of
49 COVID-19 pandemic-related expenses, including but not limited to funds
50 received from the federal emergency management agency or health
51 resources and services administration[;
52 (iv) for the first year of the demonstration project established
53 pursuant to subparagraph (ii) of paragraph (c) of subdivision one of
54 this section, all revenue, other than total Medicaid operating revenue,
55 if, in the fourth quarter of two thousand twenty-three, a residential
56 health care facility uses ten percent or less of its resident-facing
A. 8497 3
1 staffing who are contracted out to a temporary staffing agency for
2 services provided by registered professional nurses, licensed practical
3 nurses, or certified nurse aides;
4 (v) for the second year of the demonstration project established
5 pursuant to subparagraph (ii) of paragraph (c) of subdivision one of
6 this section, all revenue, other than total Medicaid operating revenue,
7 if, in two thousand twenty-four, a residential health care facility uses
8 nine percent or less of its resident-facing staffing who are contracted
9 out to a temporary staffing agency for services provided by registered
10 professional nurses, licensed practical nurses, or certified nurse aids;
11 and
12 (vi) for the third and fourth years, respectively, and, to the extent
13 the demonstration project continues, years thereafter, respectively, of
14 the demonstration project established pursuant to subparagraph (ii) of
15 paragraph (c) of subdivision one of this section, all revenue, other
16 than total Medicaid operating revenue, if, in two thousand twenty-five
17 and two thousand twenty-six, respectively, and, to the extent the demon-
18 stration project continues, years thereafter, respectively, a residen-
19 tial health care facility uses eight percent or less of its resident-
20 facing staffing who are contracted out to a temporary staffing agency
21 for services provided by registered professional nurses, licensed prac-
22 tical nurses, or certified nurse aides].
23 § 3. Section 2 of a chapter of the laws of 2023 amending the public
24 health law relating to establishing a four-year demonstration project
25 and workgroup to reduce the use of temporary staffing agencies in resi-
26 dential healthcare facilities, as proposed in legislative bills numbers
27 S. 6897 and A. 7328, is amended to read as follows:
28 § 2. [Joint labor-management nursing home staffing workgroup. Begin-
29 ning no later than July 1, 2025, the commissioner shall convene an
30 eight-member labor-management nursing home staffing workgroup that shall
31 review and assess the impact of the demonstration program. The workgroup
32 shall consist of an equal number of nursing home operators and represen-
33 tatives of organized labor who represent nursing home staff. The four
34 nursing home operator appointees shall consist of a proportionate repre-
35 sentation of operators, including: (i) both for-profit and not-for-pro-
36 fit operators; and (ii) appointees from various regions of the state. In
37 making such nursing home operator appointments, the commissioner shall
38 seek recommendations from regional or statewide associations represent-
39 ing predominantly for-profit and not-for-profit nursing home operators.
40 The commissioner and a representative of the office of long-term care
41 ombudsman shall also be members of the workgroup as ex-officio, non-vot-
42 ing members.
43 The workgroup shall study, evaluate, and make recommendations with
44 respect to the demonstration program, including whether or not to
45 continue or modify the program. The workgroup shall also assess at least
46 the following issues: (i) the impact of the demonstration program on
47 reducing the use of staffing agencies; (ii) the impact of reduced staff-
48 ing agencies on continued staffing shortages and meeting required staff-
49 ing levels in various regions of the state; and (iii) the impact of
50 reduced staffing agency employees on quality of care and nursing home
51 operations. In conducting its duties the workgroup shall solicit input
52 and recommendations from representatives of consumers, and persons with
53 experience in nursing home data.
54 The workgroup shall prepare a report reflecting a majority of the
55 voting members' recommendations no later than October 1, 2026.] 1.
56 Notwithstanding the requirements of paragraph (c) of subdivision 1 and
A. 8497 4
1 paragraph (a) of subdivision 2 of section 2828 of the public health law,
2 the commissioner of health shall establish a four-year (January 1, 2023
3 through December 31, 2026) demonstration project to reduce the use of
4 temporary staffing agencies. Any remittance or amounts owed to the state
5 pursuant to subparagraph (i) of paragraph (c) of subdivision 1 and para-
6 graph (a) of subdivision 2 of section 2828 of the public health law,
7 including, but not limited to, amounts owed relating to excess revenue,
8 or the difference between the minimum spending requirement and the actu-
9 al amount of spending on resident-facing staffing or direct care staff-
10 ing, as the case may be, shall be reduced as follows for reporting peri-
11 ods beginning on January 1, 2023 and ending on December 31, 2026, and,
12 to the extent the demonstration project continues, years thereafter:
13 (A) a fifty percent reduction, if a residential healthcare facility
14 which has a fifty percent or lower use of resident-facing staffing
15 contracted out to a temporary staffing agency for services provided by
16 registered professional nurses, licensed practical nurses, or certified
17 nurse aides, has reduced its use of such contracted agency services by
18 at least thirty percent during any year in which such remittance or
19 amounts owed to the state are payable, as measured by paragraph (C) of
20 this subdivision.
21 (B) a twenty-five percent reduction, if a residential healthcare
22 facility which has a fifty percent or lower use of resident-facing
23 staffing contracted out to a temporary staffing agency for services
24 provided by registered professional nurses, licensed practical nurses,
25 or certified nurse aides, has reduced its use of such contracted agency
26 services by at least twenty percent, but less than thirty percent,
27 during any year in which such remittance or amounts owed to the state
28 are payable, as measured by paragraph (C) of this subdivision.
29 (C) In measuring temporary staffing agency usage for purposes of
30 determining the reductions provided for in this section, the following
31 measuring periods shall apply: in 2023, the fourth calendar quarter of
32 2022 shall be compared to the fourth calendar quarter of 2023; for 2024
33 and years thereafter, the average of the 4 calendar quarters of the
34 previous year shall be compared to the average of the four calendar
35 quarters of the current year. Temporary staffing shall be measured using
36 the publicly available U.S. Centers for Medicare and Medicaid Services
37 (CMS) Payroll Based Journal (PBJ) facility reported data.
38 2. (A) For the first year of the demonstration project established
39 pursuant to this section, the definition of "revenue" as defined in
40 paragraph (a) of subdivision 2 of section 2828 of the public health law
41 shall exclude all revenue, other than total Medicaid operating revenue,
42 if, in the fourth quarter of 2023, a residential health care facility
43 uses ten percent or less of its resident-facing staffing who are
44 contracted out to a temporary staffing agency for services provided by
45 registered professional nurses, licensed practical nurses, or certified
46 nurse aides.
47 (B) For the second year of the demonstration project established
48 pursuant to this section, all revenue, other than total Medicaid operat-
49 ing revenue, if, in 2024, a residential health care facility uses nine
50 percent or less of its resident-facing staffing who are contracted out
51 to a temporary staffing agency for services provided by registered
52 professional nurses, licensed practical nurses, or certified nurse
53 aides; and
54 (C) for the third and fourth years, respectively, and, to the extent
55 the demonstration project continues, years thereafter, respectively, of
56 the demonstration project established pursuant to this section, all
A. 8497 5
1 revenue, other than total Medicaid operating revenue, if, in 2025 and
2 2026 respectively, and, to the extent the demonstration project contin-
3 ues, years thereafter, respectively, a residential health care facility
4 uses eight percent or less of its resident-facing staffing who are
5 contracted out to a temporary staffing agency for services provided by
6 registered professional nurses, licensed practical nurses, or certified
7 nurse aides.
8 3. For purposes of implementing the demonstration program, after a
9 determination by the commissioner of health that a residential health
10 care facility is not in compliance with paragraph (c) of subdivision 1
11 of section 2828 of the public health law, but prior to the remittance or
12 payment of any funds by such facility, a residential health care facili-
13 ty shall submit documentation to the commissioner of health that it has
14 met the provisions of the demonstration project. Such documentation
15 shall be supported by a verification by a certified public accountant
16 that, based on the PBJ facility reported data and other necessary
17 supporting documentation, such facility is eligible for a reduction in
18 payments pursuant to this section. Upon receipt of such documentation
19 and verification, the commissioner will reduce any payments pursuant to
20 this section.
21 § 4. This act shall take effect on the same date and in the same
22 manner as a chapter of the laws of 2023 amending the public health law
23 relating to establishing a four-year demonstration project and workgroup
24 to reduce the use of temporary staffing agencies in residential health-
25 care facilities, as proposed in legislative bills numbers S. 6897 and A.
26 7328, takes effect.