Legislative & Regulatory Summary

Esq. Stephen B. Hanse in Legislative

To date, 2013 has been a very active year for NYSHFA/NYSCAL from both a legislative and regulatory perspective. The following is a brief summary of some of the more significant legislative and regulatory issues NYSHFA/NYSCAL has been addressing on behalf of its Members.


Minimum Wage

When Governor Cuomo unveiled his 2013-2014 Executive Budget, he proposed to increase the State’s minimum wage to $8.75 on July 1, 2013. Recognizing that the Legislature had agreed in principle to increase the minimum wage, NYSHFA/NYSCAL worked with the Legislature to phase in the implementation over a period of time instead of having it increase automatically on July 1, 2013. Working with the Legislature, key staff, other organizations and associations, these efforts were successful and the final budget increased the minimum wage in three steps starting with an increase to $8.00 on December 31, 2013, $8.75 on December 31, 2014, and $9.00 on December 31, 2015.  Additionally, the final budget provided a minimum wage reimbursement credit for eligible employers employing students between the ages of 16 and 19.

Prevailing Wage

The budget bills initially proposed by the Governor and the Assembly included statutory language that would require managed care contracts for in-patient nursing home services to provide “standard” (i.e. prevailing) rates of compensation “to ensure the retention of a qualified workforce.” These budget proposals sought to legislatively establish a floor for nursing home wage compensation throughout the State, but without a commitment to provide the necessary funding.

NYSHFA/NYSCAL worked tirelessly with legislators, policymakers and affected associations in an effort to exclude this proposal from the final 2013-14 budget. From numerous meetings, discussions, legislative visitation efforts, telephone calls, to letter writing campaigns, opposition memos, and many other proactive efforts, NYSHFA/NYSCAL employed all possible means to exclude this damaging proposal from being enacted. NYSHFA/NYSCAL’s efforts were successful and the standard wage proposal was excluded from the 2013-14 enacted budget.

Nurse Staffing Ratios

The New York State Nurses Association (“NYSNA”), working with several other unions made passage of the minimum nurse staffing legislation (S.3691-A/A.6571) their top priority during the 2013 Legislative Session.  This legislation, which has over 75 sponsors in the Assembly, would mandate specific nurse-to-patient staffing ratios for residential health care facilities and hospitals throughout New York.  Specifically, this legislation requires a staffing ratio at residential health care facilities equal to at least the following:

 

  • 2.8 hours of care per resident per day by a CNA;
  • 1.3 hours of care per resident per day by an LPN or RN; and
  • 0.75 hours of care per resident per day by an RN.


Additionally, the legislation requires residential health care facilities that care for subacute patients must maintain a minimum nurse-to-patient ratio of one nurse to five patients.


NYSHFA/NYSCAL worked closely with the sponsors of this legislation, numerous legislators, key staff and other affected organizations to oppose this initiative and were successful in preventing the enactment of this extremely detrimental legislation.

Safe Patient Handling

NYSNA’s second priority initiative this legislative session was a bill referred to as the “safe patient handling” bill (S.1123-B/A.2180-B). This legislation mandates the purchase and utilization of mechanical lifts through the establishment of a statewide safe patient handling policy as well as facility specific safe patient handling committees. Among other things, this legislation fails to ensure that a resident’s plan of care plan would supersede the patient handling policy mandated by the bill.

As with the nurse staffing ratio legislation, NYSHFA/NYSCAL actively worked with the sponsors of this legislation, other legislators, key staff and affected organizations to oppose this initiative and were successful in preventing the enactment of this legislation.

Observation Stay Notification

Under current law, Medicare only covers post-acute care if a patient has had three consecutive days of hospitalization classified as an inpatient.  The use of observation status often results in Medicare beneficiaries needing post-acute care to either face thousands of dollars in unreimbursed charges or choose to forego needed care.  NYSHFA/NYSCAL and its Members, working with the AHCA,  have taken the lead in Washington D.C. in advancing S.569/H.R.1179 which would address this problem by allowing observation stays to be counted toward the three-day mandatory inpatient stay for Medicare coverage.

As recently as today, Senator Schumer (co-sponsor of S.569 along with Senator Sherrod Brown of Ohio) visited with Denise Johnson, Administrator of Vestal Park Rehabilitation & Nursing Center and Shannon Cayea-Delker, VP Administrator of Susquehanna Nursing & Rehabilitation Center, among others, to raise awareness and support for S.569/H.R. 1179. See photo below:


While federal legislation is necessary to cure this problem, in an effort to inform patients of the consequences of observation stays in New York, NYSHFA/NYSCAL supported legislation (S.3926-A/A.7257-A), that was passed by both houses of the Legislature, which requires hospitals to provide patients placed into observation status with both oral and written notice within 24 hours of such placement that the patient is not admitted to the hospital and is under observation status.  The written notification required by this legislation must be signed by the patient or his or her legal guardian and must include, among other things, information detailing how observation status affects the patient’s Medicare, Medicaid and/or private insurance coverage. 

Executive Compensation

In January 2012, Governor Cuomo unveiled a legislative proposal to limit compensation paid to $199,000 for certain executives of covered providers that contract with a state agency to provide program services.  Governor Cuomo subsequently enacted Executive Order #38 to implement his proposal and the State promulgated regulations, which take effect today, July 1, 2013, in order to execute the requirements of Executive Order #38. NYSHFA/NYSCAL provided extensive comments on three separate occasions during the public comment period for these regulations which impact both nursing homes and assisted living residences.

NYSHFA/NYSCAL has been working with the Department of Health, among others, and has been informed that the State will soon be releasing guidance documents in an effort to provide clarity as to the scope and impact of these regulations. To date, two separate legal actions have been brought challenging these regulations. NYSHFA’s Legal Action Committee is presently reviewing the regulations and awaiting the State’s guidance documents.

Case Mix Funding

As you are aware, the January 2012 CMI increases of approximately $140M was only partially paid this past spring. The remaining balance ($70M) had been delayed subject to OMIG provider audits for facilities whose CMI increase is greater than 5%. NYSHFA/NYSCAL has been in constant contact with DOH and has been strongly advocating for the final release of the CMI monies due to Members.

As a consequence of NYSHFA and other provider association efforts, the DOH recently announced that the Department would be releasing rate adjustments reflecting the full case mix above the 5% associated with the January 2012 census collection, effective with the July 2012 rates.

The Department has indicated that the rates should be processed by late July and will be paid in checks dated July 29, 2013 with a release date of August 14, 2013.

Streamlined Application Process

Legislation supported by NYSHFA/NYSCAL passed both the Senate and the Assembly (S.5628-A; Hannon/A.7835-A; Gottfried) that will expedite the review and approval of license applications as well as streamline the process for existing adult care and assisted living facility operators in good standing. The passage of this legislation coincides with the Department of Health’s newly created workgroup reviewing the application process and all the various components of the application. The legislation requires the Department to complete the streamlining process and be effective on or before January 1, 2014.

Chairfast ALP Eligibility

Legislation supported by NYSHFA/NYSCAL affecting assisted living program (ALP) providers and the ability to retain residents who are considered chairfast under certain circumstances passed both the Senate and Assembly during the 2013 Legislative Session. Specifically, this legislation (A.7755; Gottfried/S.5096; Golden) amends the Social Services Law to include persons who are chronically chairfast to the definition of “eligible person” in an ALP facility. By doing so, the legislation authorizes an ALP to admit or retain such an individual so long as the facility is staffed to meet the needs of the resident and the individual’s physician approves the placement. The resident must otherwise be in “stable medical condition” and not in need of continuous nursing care. The legislation requires ALP providers to notify the Department of its intention and capacity to admit and or retain chairfast residents prior to doing so.
   

Please feel free to contact Stephen Hanse if you have questions or need additional information regarding these or any other legislative or regulatory matters.

NYSHFA CONTACT:

 

Stephen B. Hanse, Esq.
Vice President, Governmental Affairs
518-462-4800 x25