STATE OF NEW YORK ________________________________________________________________________ 8047 IN SENATE January 5, 2024 ___________ Introduced by Sen. RIVERA -- read twice and ordered printed, and when printed to be committed to the Committee on Rules 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
S. 8047 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
S. 8047 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
S. 8047 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
S. 8047 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.