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Nursing Home Spending and Minimum Staffing Mandates

This blog was written and produced by Margaret Lally and Robert Nasso, CPA at The Bonadio Group. Looking to get in touch with Margaret or Robert? Reach out today: Margaret Lally mlally@bonadio.com, Robert Nasso rnasso@bonadio.com.

BACKGROUND

The New York State Fiscal Year 2022 budget passed the legislature on April 7th and included provisions that require skilled nursing facilities to spend 70% of operating revenue on direct patient care. 40% of operating revenue must be spent on resident-facing wages (these wages are included in the direct patient care total). If providers fail to meet these standards, they will have to remit the shortfall to the state. Additionally, providers whose operating revenues exceed operating and non-operating expenses by more than 5% of operating revenue must remit the amount over 5% to the state. Draft regulations were released on November 17, 2021 but did not clarify the vague language that makes determining the final impacts of the bill on the industry difficult. Providers are encouraged to participate in the comment period which runs through January 18, 2022 to ensure the state hears what a devastating impact this will have on an industry already dealing with the coronavirus pandemic and associated staffing shortages. The penalties will go into effect for expenses incurred in 2022 with the first penalties being due November 1, 2023.

METHODOLOGY

The state will be utilizing cost report data to calculate the penalties so accurate cost reporting will be more important than ever. Direct Resident Care expense excludes capital expenses reported on Exhibit H of the RHCF-4 on lines 001 – 003. It also excludes Administration, Fiscal Services, Grounds, Security, Cafeteria, Medical Records, and Utilization Review. Resident-Facing Wages are limited to Salaries, Wages, and Employee Benefits reported in the Ancillary Services and Program Services sections of Exhibit H. Contracted RN, LPN and CNA wages are allowable, but must be discounted by 15%. It is unclear if other contracted services are allowable in the Resident-Facing Wages calculation as the bill only explicitly refers to the nursing staff, however, it would seem unreasonable if the intent was to exclude contracted therapists and other staff in the ancillary and program services groups. Presumably, operating revenue, expense, and non-operating expense will be derived from Exhibit E for the profit penalty calculation, but this could be problematic for entities that report consolidated numbers on those exhibits. It is also uncertain how penalties will be calculated for hospital-based providers and providers with a change of ownership in the middle of a cost-reporting year.

AREAS OF CONCERN

Aside from the obvious negative impact to the industry this bill will have, there are several specific issues that make the bill problematic. The exclusion of capital expenditures hurt providers who have invested in their facilities and may make future investment untenable. There are also providers who may have difficulty making mortgage payments based on the state formula. The final bill did include a provision that would reduce revenue by “the average increase in the capital portion of the Medicaid reimbursement rate from the prior three years”, but this language is confusing and various interpretations result in widely different impacts. The Cash Receipts Assessment revenue is often included in Operating Revenue and this bill would compel providers to spend 70% of that revenue on direct patient care even though much of it is paid to the state and only a portion is reimbursable. The bill also does not consider the underfunding of the Medicaid program as providers have not had a trend factor update in several years and the operating rate direct component is based on 2007 costs. It also does not address the current staffing shortage.

NURSING HOME MINIMUM STAFFING STANDARDS

The New York Legislature has also passed “safe staffing” legislation impacting nursing homes. According to the legislation, nursing homes must average 3.5 hours of nursing care per resident per day. Of that 3.5 hours, 2.2 must be provided by certified nurse assistants, and 1.1 hours must be provided by LPNs or RNs. Payroll Based Journal (PBJ) data will be used to determine compliance with the mandate. Unlike the PBJ calculation, the Director of Nursing, RNs with administrative duties, and LPNs with administrative duties will not be included in the state’s minimum standard calculation. These requirements would go into effect on January 1, 2022 with civil penalties associated with non-compliance enforced starting April 1, 2022.

ACTION ITEMS

Providers are encouraged to review the impact of the bills on their facility. Providers should also review their cost reporting allocations and groupings to ensure all resident care costs are captured and accurately reported. For example, some facilities report floor managers who provide direct patient care in the nursing administration category. Items such as sales tax should also be directly assigned to the applicable cost center instead of accumulated in administration and general. Providers should ensure that all patient care expense is allocated to the correct category to minimize potential penalties. Providers should also review their CMS five-star staffing rating to see how it compares to the upcoming nursing hours requirements. A review of the job descriptions included in nursing with administrative duties categories should also be scrutinized to determine if they are correctly categorized.

If you have questions or need additional assistance, please reach out — Bonadio’s experienced Healthcare Team is here to help.

This material has been prepared for general, informational purposes only and is not intended to provide, and should not be relied on for, tax, legal or accounting advice. Should you require any such advice, please contact us directly. The information contained herein does not create, and your review or use of the information does not constitute, an accountant-client relationship.