Provides a waiver for the nursing home ninety percent occupancy calculation for periods where there is a state disaster emergency affecting occupancy, and for two thousand twenty and two thousand twenty-one specifically.
NEW YORK STATE ASSEMBLY MEMORANDUM IN SUPPORT OF LEGISLATION submitted in accordance with Assembly Rule III, Sec 1(f)
 
BILL NUMBER: A8944
SPONSOR: Woerner
 
TITLE OF BILL:
An act to amend the public health law, in relation to providing a waiver
for the nursing home occupancy calculation for certain years
 
PURPOSE:
To waive the ninety percent occupancy reimbursement calculation for
residential health care facilities from January 1, 2021 to December 31,
2022.
 
SUMMARY OF PROVISIONS:
Section 1: amends Public Health Law § 2308(22-a) by adding new para-
graphs (e) and (f) to waive the imputed occupancy calculation during
future public health emergencies and during the height of the COVID
epidemic.
Section 2: establishes the effective date.
 
JUSTIFICATION:
This bill provides immediate relief from the "90% Imputation Rule"
relating to reimbursement for residential health care facilities. That
rule calculates nursing home reimbursement based on "patient days" as
determined by the higher number of 90% certified bed occupancy or the
actual patient care days provided by the facility. Until the COVID
pandemic hit, the formula effectively created a "floor" under which
reimbursement calculations did not fall. However, once COVID-19 infil-
trated nursing homes throughout the state, nursing home occupancy rates
fell drastically due to reduced hospital and community referrals, staff-
ing challenges, and stringent emergency requirements implemented by the
DOH, including a directive that required a nursing home to isolate COVID
patients in separate cohorts using "part of a unit, dedicated floor or
wing in the facility or a group of rooms at the end of the unit, such as
at the end of a hallway" (DAL NH-20-09, Required Annual Emergency
Pandemic Plan for All Nursing Homes).. As a result of these changing
conditions, the "90% Imputation Rule" effectively began punishing nurs-
ing homes for separating and protecting non-COVID residents from resi-
dents with COVID, as the 90% "floor" flipped to be a "ceiling.
For many nursing homes, especially those in upstate New York, occupancy
rates dropped during the pandemic years from 2020 to 2022. Now because
the imputed occupancy rule involves a two-year look back utilizing nurs-
ing home cost reports, nursing homes that failed to realize a 90% occu-
pancy rate during the pandemic years will incur a cut to their capital
reimbursement. Such cut would be in addition to the 5% cut in capital
reimbursement that already became effective on April 1, 2020. With Medi-
caid rates failing to cover facility operating costs, a failure to waive
the imputed occupancy rule for 2021 and 2022 will result in nursing
homes facing yet another cut to their reimbursement, negatively impact-
ing their ability to recruit and retain staff, pay mortgages and
vendors, and much more.
This bill seeks to immediately waive the imputed occupancy rule for the
pandemic years of 2021 and 2022. Nursing homes should not be punished
for protecting residents during the pandemic. It also waives the rule in
future state disaster emergencies.
 
PRIOR LEGISLATIVE HISTORY:
This is a new bill.
 
FISCAL IMPLICATIONS:
To be determined.
 
EFFECTIVE DATE:
This act shall take effect immediately.
STATE OF NEW YORK
________________________________________________________________________
8944
IN ASSEMBLY
January 30, 2024
___________
Introduced by M. of A. WOERNER -- read once and referred to the Commit-
tee on Health
AN ACT to amend the public health law, in relation to providing a waiver
for the nursing home occupancy calculation for certain years
The People of the State of New York, represented in Senate and Assem-bly, do enact as follows:
1 Section 1. Subdivision 22-a of section 2808 of the public health law
2 is amended by adding two new paragraphs (e) and (f) to read as follows:
3 (e) Notwithstanding any inconsistent provisions of law or regulation
4 to the contrary, the provisions of paragraphs (c) and (d) of this subdi-
5 vision shall not apply where a state disaster emergency, as defined in
6 section twenty of the executive law, affecting the occupancy of such
7 program, occurs within such two year period.
8 (f) Notwithstanding any inconsistent provisions of law or regulation
9 to the contrary, a failure to achieve ninety percent occupancy during
10 the period from January first, two thousand twenty to December thirty-
11 first, two thousand twenty-one, shall not reduce the reimbursement rate
12 for any residential health care facility.
13 § 2. This act shall take effect immediately.
EXPLANATION--Matter in italics (underscored) is new; matter in brackets
[] is old law to be omitted.
LBD14050-03-4