Issue: October 17, 2013

Published on October 17, 2013

Articles in this issue:

Withdrawal of Equity Court of Appeals Decision

Author: Esq. Stephen B. Hanse* Published in Legal


On October 15th, the Court of Appeals, New York’s highest court, issued a unanimous decision upholding the constitutionality of a 2010 statute that prohibits the withdrawal or transfer of equity or assets from a residential health care facility in an aggregate amount exceeding 3 percent of the facility’s most recently reported annual revenue without the prior approval of the Commissioner of Health. (See §2808(5)(c) of the Public Health Law).

In reversing the decisions of two lower courts, the Court of Appeals held that the statute did not violate the substantive due process protections afforded individuals under the Due Process Clause. The doctrine of Substantive Due Process holds that the Due Process Clause not only requires "due process," that is, basic procedural rights, but that it also protects basic substantive rights. "Substantive" rights are those general rights that reserve to the individual the power to possess or to do certain things, despite the government’s desire to the contrary.

In finding that the plaintiffs failed to meet their burden of proving beyond a reasonable doubt that the statute violated the substantive due process protections of providers, the Court stated that “nursing homes are…pervasively regulated and…the additional regulatory increment…cannot be viewed as a constitutionally untoward assault upon the private property interests of facility owners.”

The Court also held that the statute’s “catch-all” provision that authorizes the Commissioner to approve or disapprove a request for the withdrawal of equity or assets based on “such other factors as the commissioner deems appropriate” is not an unconstitutional delegation of legislative-policy making power to the Commissioner. The Court supported this holding by concluding, among other things, that the Commissioner’s determination of whether or not to approve a request for a withdrawal or transfer of equity or assets must be tied to “the financial condition of the facility and its quality of care record.”

The NYSHFA/NYSCAL Legal Action Committee will be examining the implications of this decision on Friday, October 18th.

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

MDS "Look Back" Period Approaching

Author: Carl Pucci and Nancy Leveille* Published in Finance & Reimbursement

The next census roster date is expected to be on Wednesday, January 29, 2014.  Hence, the 92 day look back period would commence Wednesday, October 30, 2013.  Since the bi-annual case mix data is used to determine future Medicaid rate adjustments, it is vital that facilities ensure the accuracy and timeliness of their MDS data submission.

Director, Finance & Reimbursement
518-462-4800 x36
  Nancy Leveille, RN, MS
Sr. Director, Member Operational Support
518-462-4800 x20

DOH: UPDATED Required Healthcare Personnel Influenza Vaccination Report

Author: Nancy Leveille and Karen Morris* Published in Clinical & Quality


The NYSDOH sent out a notice this week in preparation of the Influenza reporting requirements for Nov 1, 2013.

They want you to ensure that the person who will be responsible for completing this report and your facilitys HCS Coordinator both receive and read this message. DOH is clarifying their September 26, 2013 memo as follows:

The September 26, 2013 informational message stated that the individual responsible for completing the report will need to be assigned the role of HERDS Data Reporter in order to access HERDS. To clarify, there are three roles that are able to complete the report. Any of the following roles will be able to access the report on HERDS.

HERDS Data Reporter
Data Reporter
Nursing Home Data Reporter

Please ensure that the individual responsible for completing the report at your facility or agency has an HCS account and is assigned one of the roles listed above prior to November 1, 2013 in order to complete this required report in compliance with New York State regulations.

Click here to see original notice.

Sr. Director, Member Operational Support
518-462-4800 x20
  Karen Morris, RN, MS
Director, Clinical & Quality Services
518-462-4800 x15



DOH Releases Additional Training Dates for e-FINDS in October, 2013

Author: Karen Morris and Nancy Leveille* Published in Clinical & Quality


DOH has set up additional training dates for those facilities that have not been able to attend training on the E-Finds system.The new dates started on Oct 8 and will end with one on Oct 30, 2013.

The eFINDS application is the Health Commerce System (HCS) platform for sharing of patient/resident location information when facilities need to relocate their patients or residents.  The application captures minimal amounts of data, and allows facilities to track the patient/resident movement to other facilities, facility types or temporary shelters.  This information is shared in real time by Health Commerce System authorized users statewide, and was designed to document patient/resident location, as well as provide day to day or hourly updates as needed.

Staff from the NYSDOH Office of Health Systems Management and the Office of Health Emergency Preparedness will be following up with those facilities that have not yet completed the training.

Facilities that have already had a sufficient number of staff complete the e-FINDS training may disregard this announcement.

Please see attached memo for specific dates and registration information.

Director, Clinical & Quality Services
518-462-4800 x15
  Nancy Leveille, RN, MS
Sr. Director, Member Operational Support
518-462-4800 x20


2013 CD Library

Author: Scott Jackson CMP* Published in Education

NYSHFAs 2013 CD Library -

In need of CEUs?  Up to ten (10) CEUs are available for LNHAs.  Five (5) audio conferences are in the NYSHFA Library and are available separately or at a special discount price when you buy all five.  Each audio conference comes with a Post Test that, when passed, will provide you with CEUs.

CD Library Order Form

NYSHFA Contact: Scott Jackson, CMP  (518) 462-4800 ext. 27
Director, Education & Conference Planning