N.Y. Public Health Law Section 2828
Residential health care facilities

  • minimum direct resident care spending

1.

(a) Notwithstanding any law to the contrary, the department shall promulgate regulations governing the disposition of revenue in excess of expenses for residential health care facilities consistent with this section. Beginning on and after January first, two thousand twenty-two, every residential health care facility shall spend a minimum of seventy percent of revenue on direct resident care, and forty percent of revenue shall be spent on resident-facing staffing, provided that amounts spent on resident-facing staffing shall be included as a part of amounts spent on direct resident care.

(b)

Fifteen percent of costs associated with resident-facing staffing contracted out by a facility for services provided by registered professional nurses or licensed practical nurses licensed pursuant to article one hundred thirty-nine of the education law or certified nurse aides who have completed certification and training approved by the department shall be deducted from the calculation of the amount spent on resident-facing staffing and direct resident care.

(c)

(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 total operating revenue 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 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 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 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 § 2808 (Residential health care facilities)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 § 2808 (Residential health care facilities)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.

(ii)

Notwithstanding 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.

For the purposes of this section the following terms shall have the following meanings:

(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 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 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 § 2807-D (Hospital assessments)section twenty-eight hundred seven-d of this article, as reconciled pursuant to paragraph (c) of subdivision ten of § 2807-D (Hospital assessments)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.

(b)

“Expenses” shall include all operating and non-operating expenses, before extraordinary gains, reported in cost reports submitted pursuant to § 2805-E (Reports of residential health care facilities)section twenty-eight hundred five-e of this article, except as expressly excluded by regulations and/or this section. Such exclusions shall include, but not be limited to, any related party transaction or compensation to the extent that the value of such transaction is greater than fair market value, and the payment of compensation for employees who are not actively engaged in or providing services at the facility.

(c)

“Direct resident care” includes 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, Neurodegenerative, 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.

(d)

“Resident-facing staffing” shall include all staffing expenses in the ancillary and program services categories on exhibit h of the residential health care reports as in effect on February fifteenth, two thousand twenty-one.

(e)

“Cost Report” shall mean the annual financial and statistical report submitted to the department pursuant to sections two thousand eight hundred five-e and two thousand eight hundred eight-b of this article, and regulations promulgated pursuant thereto, which includes the residential health care facility’s revenues, expenses, assets, liabilities and statistical information.

3.

For the purposes of this section, residential health care facilities shall not include (a) facilities that are authorized by the department to primarily care for medically fragile children, people with HIV/AIDS, persons requiring behavioral intervention, persons requiring neurodegenerative services, and other specialized populations that the commissioner deems appropriate to exclude; and

(b)

continuing care retirement communities licensed pursuant to article forty-six or forty six-a of this chapter.

4.

The commissioner may waive the requirements of this section on a case-by-case basis with respect to a nursing home that demonstrates to the commissioner’s satisfaction that it experienced unexpected or exceptional circumstances that prevented compliance. The commissioner may also exclude from revenues and expenses, on a case-by-case basis, extraordinary revenues and capital expenses, incurred due to a natural disaster or other circumstances set forth by the commissioner in regulation. At least thirty days before any action by the commissioner under this subdivision, the commissioner shall transmit the proposed action to the state office of the long-term care ombudsman and the chairs of the senate and assembly health committees, and post it on the department’s website.

5.

The commissioner shall issue regulations, seek amendments to the state plan for medical assistance, seek waivers from the federal Centers for Medicare and Medicaid Services, and take such other actions as reasonably necessary to implement this section.

6.

The commissioner shall, if necessary, update reporting forms completed by residential health care facilities under section twenty- eight hundred five-e of this article to include information to ensure all items referred to in this section and organize such information consistent with the terms of this section. * NB There are 2 § 2828’s

Source: Section 2828 — Residential health care facilities; minimum direct resident care spending, https://www.­nysenate.­gov/legislation/laws/PBH/2828 (updated Feb. 9, 2024; accessed Jun. 15, 2024).

2800
Declaration of policy and statement of purpose
2801
Definitions
2801‑A
Establishment or incorporation of hospitals
2801‑B
Improper practices in hospital staff appointments and extension of professional privileges prohibited
2801‑C
Injunctions
2801‑D
Private actions by patients of residential health care facilities
2801‑E
Voluntary residential health care facility rightsizing demonstration program
2801‑F
Residential health care facility quality incentive payment program
2801‑G
Community forum on hospital closure
2801‑H
Personal caregiving and compassionate caregiving visitors to nursing home residents during declared local or state health emergencies
2802
Approval of construction
2802‑A
Transitional care unit demonstration program
2802‑B
Health equity impact assessments
2803
Commissioner and council
2803‑A
Authority to contract
2803‑AA
Sickle cell disease information distribution
2803‑AA*2
Nursing home infection control competency audit
2803‑B
Uniform reports and accounting systems for hospital costs
2803‑C
Rights of patients in certain medical facilities
2803‑C‑1
Rights of patients in certain medical facilities
2803‑C‑2
Lesbian, gay, bisexual and transgender, and people living with HIV long-term care facility residents’ bill of rights
2803‑D
Reporting abuses of persons receiving care or services in residential health care facilities
2803‑E
Residential health care facilities
2803‑E*2
Reporting incidents of possible professional misconduct
2803‑F
Respite projects
2803‑G
Board of visitors in county owned residential health care facility
2803‑H
Health related facility
2803‑I
General hospital inpatient discharge review program
2803‑J
Information for maternity patients
2803‑J*2
Nursing home nurse aide registry
2803‑K
In-patient nasogastric feeding procedures
2803‑L
Community service plans
2803‑M
Discharge of hospital patients to adult homes
2803‑N
Hospital care for maternity patients
2803‑O
Hospital care for mastectomy, lumpectomy, and lymph node dissection patients
2803‑O‑1
Required protocols for fetal demise
2803‑P
Disclosure of information concerning family violence
2803‑Q
Family councils in residential health care facilities
2803‑R
Dissemination of information about the abandoned infant protection act
2803‑S
Access to product recall information
2803‑T
Preadmission information
2803‑U
Hospital substance use disorder policies and procedures
2803‑V
Lymphedema information distribution
2803‑V*2
Standing orders for newborn care in a hospital
2803‑W
Independent quality monitors for residential health care facilities
2803‑W*2
Disclosure of information concerning pregnancy complications
2803‑X
Requirements related to nursing homes and related assets and operations
2803‑Y
Provision of residency agreement
2803‑Z
Transfer, discharge and voluntary discharge requirements for residential health care facilities
2803‑Z*2
Antimicrobial resistance prevention and education
2804
Units for hospital and health-related affairs
2804‑A
State task force on clinical practice guidelines and medical technology assessment
2805
Approval of hospitals
2805‑A
Disclosure of financial transactions
2805‑B
Admission of patients and emergency treatment of nonadmitted patients
2805‑C
Every private proprietary nursing home having a capacity of eighty patients or more may have a licensed medical doctor in attendance, upo...
2805‑D
Limitation of medical, dental or podiatric malpractice action based on lack of informed consent
2805‑E
Reports of residential health care facilities
2805‑F
Money deposited or advanced for admittance to nursing homes
2805‑G
Maintenance of records
2805‑H
Immunizations
2805‑I
Treatment of sexual offense victims and maintenance of evidence in a sexual offense
2805‑J
Medical, dental and podiatric malpractice prevention program
2805‑K
Investigations prior to granting or renewing privileges
2805‑L
Adverse event reporting
2805‑M
Confidentiality
2805‑N
Child abuse prevention
2805‑O
Identification of veterans and their spouses by nursing homes, residential health care facilities, and adult care facilities
2805‑P
Emergency treatment of rape survivors
2805‑Q
Hospital visitation by domestic partner
2805‑R
Patients unable to verbally communicate
2805‑S
Circulating nurse required
2805‑T
Clinical staffing committees and disclosure of nursing quality indicators
2805‑U
Credentialing and privileging of health care practitioners providing telemedicine services
2805‑V
Observation services
2805‑W
Patient notice of observation services
2805‑X
Hospital-home care-physician collaboration program
2805‑Y
Identification and assessment of human trafficking victims
2805‑Z
Hospital domestic violence policies and procedures
2806
Hospital operating certificates
2806‑A
Temporary operator
2806‑B
Residential health care facilities
2807
Hospital reimbursement provisions
2807‑A
General hospital nineteen hundred eighty-six and nineteen hundred eighty-seven inpatient rates and charges
2807‑AA
Nurse loan repayment program
2807‑B
Outstanding payments and reports due under subdivision eighteen of section twenty-eight hundred seven-c, sections twenty-eight hundred se...
2807‑C
General hospital inpatient reimbursement for annual rate periods beginning on or after January first, nineteen hundred eighty-eight
2807‑D
Hospital assessments
2807‑D‑1
Hospital quality contributions
2807‑DD
Temporary nursing home stability contributions
2807‑E
Uniform bills
2807‑F
Health maintenance organization payment factor
2807‑FF
New York managed care organization provider tax
2807‑I
Service and quality improvement grants
2807‑J
Patient services payments
2807‑K
General hospital indigent care pool
2807‑L
Health care initiatives pool distributions
2807‑M
Distribution of the professional education pools
2807‑N
Palliative care education and training
2807‑O
Early intervention services pool
2807‑P
Comprehensive diagnostic and treatment centers indigent care program
2807‑R
Funding for expansion of cancer services
2807‑S
Professional education pool funding
2807‑T
Assessments on covered lives
2807‑U
Transfers for tax credits
2807‑V
Tobacco control and insurance initiatives pool distributions
2807‑W
High need indigent care adjustment pool
2807‑X
Grants for long term care demonstration projects
2807‑Y
Pool administration
2807‑Z
Review of eligible federally qualified health center capital projects
2808
Residential health care facilities
2808‑A
Liability of certain persons
2808‑B
Certification of financial statements and financial information
2808‑C
Reimbursement of general hospital inpatient services
2808‑D
Nursing home quality improvement demonstration program
2808‑E
Residential health care for children with medical fragility in transition to young adults and young adults with medical fragility demonst...
2808‑E*2
Nursing home ratings
2809
Residential health care facilities
2810
Residential health care facilities
2811
Discounts and splitting fees with medical referral services
2812
Construction
2813
Separability
2814
Health networks, global budgeting, and health care demonstrations
2815
Health facility restructuring program
2815‑A
Community health care revolving capital fund
2816
Statewide planning and research cooperative system
2816‑A
Cardiac services information
2817
Community health centers capital program
2818
Health care efficiency and affordability law of New Yorkers (HEAL NY) capital grant program
2819
Hospital acquired infection reporting
2820
Home based primary care for the elderly demonstration project
2821
State electronic health records (EHR) loan program
2822
Residential care off-site facility demonstration project
2823
Supportive housing development program
2824
Central service technicians
2824*2
Surgical technology and surgical technologists
2825
Capital restructuring financing program
2825‑A
Health care facility transformation program: Kings county project
2825‑B
Oneida county health care facility transformation program: Oneida county project
2825‑C
Essential health care provider support program
2825‑D
Health care facility transformation program: statewide
2825‑E
Health care facility transformation program: statewide II
2825‑F
Health care facility transformation program: statewide III
2825‑G
Health care facility transformation program: statewide IV
2825‑H
Health care facility transformation program: statewide V
2825‑I
Healthcare safety net transformation program
2826
Temporary adjustment to reimbursement rates
2827
Plant-based food options
2828
Residential health care facilities
2828*2
Essential support persons allowed for individuals with disabilities during a state of emergency
2829
Nursing homes
2830
Surgical smoke evacuation
2830*2
Regulation of the billing of facility fees

Accessed:
Jun. 15, 2024

Last modified:
Feb. 9, 2024

§ 2828’s source at nysenate​.gov

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