§ 2808 — Residential health care facilities; rates of payment

New York § 2808

• Jurisdiction: New York
• Law PBH: Public Health
• Art. 28: Hospitals

Text

§ 2808. Residential health care facilities; rates of payment.\n 1-a. Notwithstanding sections one hundred twelve and one hundred\nsixty-three of the state finance law and any other inconsistent\nprovision of law, the commissioner shall make grants to public\nresidential health care facilities without a competitive bid or request\nfor proposal process for the purposes of addressing the overall\nincreases in input costs borne by such facilities. Such modifications\nshall also be primarily intended to promote the provision of quality\nhealth care, quality operation, updated technology and improved staff\ndevelopment and support by such facilities. Such grants shall be in the\nfollowing aggregate amounts for the following periods: five million for\nthe period April first, two thousand six through March thirty-first, two\nthousand seven; fifteen million for the period April first, two thousand\nseven through March thirty-first, two thousand eight; and ten million\nfor the period April first, two thousand eight through March\nthirty-first, two thousand nine.\n The amount allocated to each eligible public residential health care\nfacility for each period shall be calculated as the result of (i) the\ntotal payment for each period multiplied by (ii) the ratio of patient\ndays for patients eligible for medical assistance pursuant to title\neleven of article five of the social services law provided by the public\nresidential health care facility, divided by the total of such patient\ndays summed for all eligible public residential health care facilities.\nGrants under this subdivision shall be made on a quarterly basis.\n * 2. (a) The commissioner, with the approval of the state hospital\nreview and planning council, shall promulgate regulations to be\neffective the first day of January, nineteen hundred seventy-eight,\nrelating the rate of payment for each residential health care facility\nto real property costs.\n (b) Such regulations may differentiate based upon the form of\nownership of the facility, and shall provide for consideration of such\nfactors as the age, size, location and condition of the facility.\n (c) For facilities granted operating certificates prior to March\ntenth, nineteen hundred seventy-five, the real property costs shall be\ncomputed upon a cost valuation basis of the facility as determined by\nthe commissioner, who, subject to the approval of the director of the\nbudget, may provide exceptions in circumstances where he finds that\napplication of the regulations would result in excessive reimbursement\nor in severe economic hardship to the facility not caused by\ncircumstances reasonably under the control of the facility.\n (d) For facilities granted operating certificates on or after March\ntenth, nineteen hundred seventy-five, recognition of real property costs\nin such regulations shall be based upon historical costs to the owner of\nthe facility, provided that payment for real property costs shall not be\nin excess of the actual debt service, including principal and interest,\nand payment with respect to owner's equity. For purposes of this\nsubdivision, owner's equity shall be calculated without regard to any\nsurplus created by revaluation of assets and shall not include amounts\nresulting from mortgage amortization where the payment therefor has been\nprovided by real property cost reimbursement.\n (e) All transactions, including leases and mortgages, which are not\nbona fide and reasonable shall be disregarded.\n * NB Expired December 31, 1978\n 2-a. (a) The commissioner, with the approval of the state hospital\nreview and planning council, shall promulgate regulations to be\neffective the first day of January, nineteen hundred seventy-nine,\nrelating the rate of payment for each residential health care facility\nto real property costs.\n (b) Such regulations may differentiate based upon the form of\nownership of the facility, and shall provide for consideration of such\nfactors as the age, size, location and condition of the facility.\n (c) For facilities granted operating certificates prior to March\ntenth, nineteen hundred seventy-five, the real property costs shall be\ncomputed upon a cost valuation basis of the facility as determined by\nthe commissioner, who, subject to the approval of the director of the\nbudget, may provide exceptions in circumstances where he finds that\napplication of the regulations would result in excessive reimbursement\nor in severe economic hardship to the facility not caused by\ncircumstances reasonably under the control of the facility.\n * (d) For facilities granted operating certificates on or after March\ntenth, nineteen hundred seventy-five, recognition of real property costs\nin such regulations shall be based upon historical costs to the owner of\nthe facility, provided that payment for real property costs shall not be\nin excess of the actual debt service, including principal and interest,\nand payment with respect to owner's equity, and further provided that,\nsubject to federal financial participation, and subject to the approval\nof the commissioner, effective April first, two thousand fifteen, the\ncommissioner may modify such payments for real property costs for\npurposes of effectuating a shared savings program, whereby facilities\nshare a minimum of fifty percent of savings, for facilities that elect\nto refinance their mortgage loans. For purposes of this subdivision,\nowner's equity shall be calculated without regard to any surplus created\nby revaluation of assets and shall not include amounts resulting from\nmortgage amortization where the payment therefor has been provided by\nreal property cost reimbursement.\n * NB Effective until March 31, 2030\n * (d) For facilities granted operating certificates on or after March\ntenth, nineteen hundred seventy-five, recognition of real property costs\nin such regulations shall be based upon historical costs to the owner of\nthe facility, provided that payment for real property costs shall not be\nin excess of the actual debt service, including principal and interest,\nand payment with respect to owner's equity. For purposes of this\nsubdivision, owner's equity shall be calculated without regard to any\nsurplus created by revaluation of assets and shall not include amounts\nresulting from mortgage amortization where the payment therefor has been\nprovided by real property cost reimbursement.\n * NB Effective March 31, 2030\n (e) All transactions, including leases and mortgages, which are not\nbona fide and reasonable shall be disregarded.\n 2-b. Notwithstanding any inconsistent provision of this section, or\nany other contrary provision of law and subject to the availability of\nfederal financial participation, the operating cost component of rates\nof payment by governmental agencies for inpatient services provided on\nand after January first, two thousand seven by residential health care\nfacilities shall be in accordance with the following:\n (a) (i) Subject to the provisions of subparagraphs (ii) through (vi)\nof this paragraph, for the two thousand seven rate period the operating\ncost component of rates of payment shall reflect the operating cost\ncomponent of rates effective for October first, two thousand six, as\nadjusted for inflation in accordance with paragraph (c) of subdivision\nten of section twenty-eight hundred seven-c of this article; and for the\nJanuary first, two thousand eight through March thirty-first, two\nthousand nine rate period the operating cost component of rates of\npayment shall reflect the operating cost component of rates effective\nfor December thirty-first, two thousand six, as adjusted for inflation\nin accordance with paragraph (c) of subdivision ten of section\ntwenty-eight hundred seven-c of this article.\n (ii) Rates for the periods two thousand seven and two thousand eight\nshall be further adjusted by a per diem add-on amount, as determined by\nthe commissioner, reflecting the proportional amount of each facility's\nprojected Medicaid benefit to the total projected Medicaid benefit for\nall facilities of the imputed use of the rate-setting methodology set\nforth in paragraph (b) of this subdivision, provided, however, that for\nthose facilities that do not receive a per diem add-on adjustment\npursuant to this subparagraph, rates shall be further adjusted to\ninclude the proportionate benefit, as determined by the commissioner, of\nthe expiration of the opening paragraph and paragraph (a) of subdivision\nsixteen of this section and of paragraph (a) of subdivision fourteen of\nthis section, provided, further, however, that the aggregate total of\nthe rate adjustments made pursuant to this subparagraph shall not exceed\none hundred thirty-seven million five hundred thousand dollars for the\ntwo thousand seven rate period and one hundred sixty-seven million five\nhundred thousand dollars for the two thousand eight rate period and\nprovided further, however, that such rate adjustments as made pursuant\nto this subparagraph prior to two thousand twelve shall not be subject\nto subsequent adjustment or reconciliation.\n (iii) Revisions to two thousand six rates occurring on and after\nJanuary first, two thousand seven, shall be annually incorporated,\nretroactively and prospectively, into two thousand seven and two\nthousand eight rates on or about November thirtieth, two thousand seven\nand November thirtieth, two thousand eight, respectively.\n (iv) The capital cost component of rates pursuant to this paragraph\nshall fully reflect the cost of local property taxes and payments made\nin lieu of local property taxes, as reported in each facility's cost\nreport submitted for the year two years prior to the rate year.\n (v) Rates for the two thousand seven and two thousand eight rate\nperiods, as computed pursuant to this paragraph, shall not be subject to\ncase mix adjustment, provided, however, that a facility may, in\naccordance with its existing full house schedule of submission of\npatient review instruments, submit data in support of a request for a\nrate adjustment to reflect an increased facility case mix equal to or\ngreater than .05, provided further, however, that such a facility will\nbe required to continue to make such full house submissions in\naccordance with its existing submission schedule for rate periods up\nthrough December thirty-first, two thousand eight.\n (vi) For the period January first, two thousand seven through December\nthirty-first, two thousand eight, notwithstanding any contrary provision\nof law or regulation, voluntary facilities shall not be required to\ndeposit reimbursement received for depreciation expenses into a\nsegregated depreciation fund account.\n (b) (i) (A) Subject to the provisions of subparagraphs (ii) through\n(xiv) of this paragraph, for periods on and after April first, two\nthousand nine the operating cost component of rates of payment shall\nreflect allowable operating costs as reported in each facility's cost\nreport for the two thousand two calendar year, as adjusted for inflation\non an annual basis in accordance with the methodology set forth in\nparagraph (c) of subdivision ten of section twenty-eight hundred seven-c\nof this article, provided, however, that for those facilities which are\ndetermined by the commissioner to be qualifying facilities in accordance\nwith the provisions of clause (B) of this subparagraph, rates shall be\nfurther adjusted to include the proportionate benefit, as determined by\nthe commissioner, of the expiration of the opening paragraph and\nparagraph (a) of subdivision sixteen of this section and of paragraph\n(a) of subdivision fourteen of this section, and provided further that\nthe operating cost component of rates of payment for those facilities\nwhich are determined by the commissioner to be qualifying facilities in\naccordance with the provisions of clause (B) of this subparagraph shall\nnot be less than the operating component such facilities received in the\ntwo thousand eight rate period, as adjusted for inflation on an annual\nbasis in accordance with the methodology set forth in paragraph (c) of\nsubdivision ten of section twenty-eight hundred seven-c of this article\nand further provided, however, that rates for facilities whose operating\ncost component reflects base year costs subsequent to January first, two\nthousand two shall have rates computed in accordance with this\nparagraph, utilizing allowable operating costs as reported in such\nsubsequent base year period, and trended forward to the rate year in\naccordance with applicable inflation factors.\n (B) For the purposes of this subparagraph qualifying facilities are\nthose facilities for which the commissioner determines that their\nreported two thousand two base year operating cost component, as defined\nin accordance with the regulations of the department as set forth in 10\nNYCRR 86-2.10(a)(7); is less than the operating component such\nfacilities received in the two thousand eight rate period, as adjusted\nby applicable trend factors.\n (ii) (A) The operating component of rates shall be subject to case mix\nadjustment through application of the relative resource utilization\ngroups system of patient classification (RUG-III) employed by the\nfederal government with regard to payments to skilled nursing facilities\npursuant to title XVIII of the federal social security act (Medicare),\nas revised by regulation to reflect New York state wages and fringe\nbenefits, provided, however, that such RUG-III classification system\nweights shall be increased in the following amounts for the following\ncategories of residents: (1) thirty minutes for the impaired cognition A\ncategory, (2) forty minutes for the impaired cognition B category, and\n(3) twenty-five minutes for the reduced physical functions B category.\nSuch adjustments shall be made in January and July of each calendar\nyear. Such adjustments and related patient classifications in each\nfacility shall be subject to audit review in accordance with regulations\npromulgated by the commissioner.\n (B) Effective April first, two thousand twenty-four, the case mix\nadjustment from the operating component of the rates for skilled nursing\nfacilities shall remain unchanged from the July two thousand\ntwenty-three rates during the development and until full implementation\nof a case mix methodology using the Patient Driven Payment Model.\n (iii) Specified adjustments to the operating component of rates in\neffect for periods prior to January first, two thousand nine, with\nregard to extended care for persons with traumatic brain injury and for\nthe cost of providing hepatitis B vaccinations shall continue on and\nafter January first, two thousand nine.\n (iv) The capital cost component of rates on and after January first,\ntwo thousand nine shall: (A) fully reflect the cost of local property\ntaxes and payments made in lieu of local property taxes, as reported in\neach facility's cost report submitted for the year two years prior to\nthe rate year; (B) provided, however, notwithstanding any inconsistent\nprovision of this article, commencing April first, two thousand twenty\nfor rates of payment for patients eligible for payments made by state\ngovernmental agencies, the capital cost component determined in\naccordance with this subparagraph and inclusive of any shared savings\nfor eligible facilities that elect to refinance their mortgage loans\npursuant to paragraph (d) of subdivision two-a of this section, shall be\nreduced by the commissioner by five percent; and (C) provided, however,\nnotwithstanding any inconsistent provision of this article, commencing\nApril first, two thousand twenty-four for rates of payment for patients\neligible for payments made by state governmental agencies, the capital\ncost component determined in accordance with this subparagraph and\ninclusive of any shared savings for eligible facilities that elect to\nrefinance their mortgage loans pursuant to paragraph (d) of subdivision\ntwo-a of this section, shall be reduced by the commissioner by an\nadditional ten percent, provided, however, that such reduction shall not\napply to rates of payment for patients in pediatric residential health\ncare facilities as defined in paragraph (c) of subdivision two of\nsection twenty-eight hundred eight-e of this article.\n (v) The direct component of the operating component of rates of\npayment shall include allowable direct therapy costs and associated\noverhead costs and shall exclude administrative overhead costs related\nto pharmacy services and the costs of non-prescription drugs and\nsupplies, which shall be reflected in facility rates as non-comparable\ncosts.\n (vi) For purposes of computing peer group cost ceilings for the direct\nand indirect component of the operating component of rates, facilities\nshall be organized into peer groups consisting of: (A) free-standing\nfacilities with certified bed capacities of less than three hundred\nbeds; (B) free-standing facilities with certified bed capacities of\nthree hundred beds or more; and (C) hospital based facilities.\n (vii) In determining the operating cost component of rates, for each\npeer group, a corridor shall be developed around the statewide mean\ndirect and indirect price per day, provided, however, that the corridor\naround each mean direct and indirect price per day shall have a base no\nless than eighty-five percent and no greater than ninety percent of each\nmean direct and indirect price per day and a ceiling no greater than one\nhundred fifteen percent and no less than one hundred ten percent of each\nmean direct and indirect price per day, and further provided, however,\nthat the total financial impact of the application of the ceiling shall\nbe substantially equal to the total financial impact of the application\nof the base.\n (viii) The operating component of rates shall be adjusted to reflect a\nper diem add-on amount of eight dollars, trended forward to reflect\napplicable inflation factors from two thousand six to two thousand nine\nand prospectively thereafter, for each patient who: (A) qualifies under\nboth the RUG-III impaired cognition and the behavioral problems\ncategories, or (B) has been diagnosed with Alzheimer's disease or\ndementia, is classified in the reduced physical functions A, B or C, or\nin behavioral problems A or B categories, and has an activities of daily\nliving index score of ten or less.\n (ix) The operating component of rates shall be adjusted to reflect a\nper diem add-on amount of seventeen dollars, trended forward to reflect\napplicable inflation factors from two thousand six to two thousand nine\nand prospectively thereafter, for each patient whose body mass index is\ngreater than thirty-five.\n (x) For periods on and after January first, two thousand nine,\nnotwithstanding any contrary provision of law or regulation, voluntary\nfacilities shall not be required to deposit reimbursement received for\ndepreciation expenses into a segregated depreciation fund account.\n (xi) Public facilities, and non-public facilities with fewer than\neighty certified beds, which have a facility specific direct adjusted\npayment price per day equal to the ceiling direct price per day shall\nhave such direct adjusted payment price per day further adjusted through\nthe addition of fifty percent of the difference between the facility's\nspecific direct cost per day and the ceiling direct price per day.\nPublic facilities, and non-public facilities with fewer than eighty\ncertified beds, which have a facility specific indirect adjusted payment\nprice per day equal to the ceiling indirect price per day shall have\nsuch indirect adjusted payment price per day further adjusted through\nthe addition of fifty percent of the difference between the facility's\nspecific indirect cost per day and the ceiling indirect price per day.\nSuch adjustments to direct and indirect adjusted payment prices per day\nshall be increased to the rate year by application of the applicable\ninflation factor and adjusted by the regional direct and indirect input\nprice adjustment factors calculated pursuant to subdivision seventeen of\nthis section.\n (xii) Public facilities shall receive rates that are consistent with\nthe provisions of this paragraph, provided, however, that in no event\nshall such rates, in aggregate, exceed the amount permitted under\nfederal upper payment limits applicable to public facilities. In the\nevent such public facilities are, pursuant to this subparagraph, subject\nto limitations on such rates, the commissioner shall make grants from\nstate funds to such facilities equal to one-half of the additional\namount that such facilities would have received if such limitations had\nnot been applied.\n (xiii) The appointment of a receiver or the establishment of a new\noperator or replacement or renovation of an existing facility on or\nafter January first, two thousand seven shall not result in a revision\nto the operating component of the facility's rates for any rate period\nthrough December thirty-first, two thousand eleven, provided, however,\nthat the provisions of this subparagraph shall not apply to a facility\nwhich has a certificate of need application filed with the department as\nof December thirty-first, two thousand six, which is subsequently\napproved and which otherwise meets existing department criteria for the\nestablishment of a new base year for rate-setting purposes.\n (xiv) The commissioner may promulgate regulations, including emergency\nregulations, to implement the provisions of this paragraph.\n (c) In order to ensure that the quality of resident care is maintained\nand improved for rate periods on and after January first, two thousand\nseven, no less than sixty-five percent of the additional Medicaid\nreimbursement received by a residential health care facility that is\nattributable to the per-diem add-on amount received pursuant to\nsubparagraph (ii) of paragraph (a) of this subdivision or, for rate\nperiods on and after January first, two thousand nine, that is related\nto utilization of two thousand two reported base year costs, as compared\nto the reimbursement each such facility would have received had such\nfacility's Medicaid reimbursement rates continued to reflect base year\ncosts used with regard to such facility's two thousand six rates, shall\nbe allocated for the purpose of recruitment and retention of\nnon-supervisory workers or any worker with direct resident care\nresponsibility or for purposes authorized under the nursing home quality\nimprovement demonstration program as established by section twenty-eight\nhundred eight-d of this article, provided, however, in no circumstance\nshall facilities be required to spend more than seventy-five percent of\nsuch funds for these purposes, and provided further, the commissioner is\nauthorized to audit each such facility for the purpose of ensuring\ncompliance with the provisions of this paragraph and shall recoup any\namount determined to have been in contravention of the requirements of\nthis paragraph, provided, however, that, upon application of a facility,\nthe commissioner may, after determining that other funds are not\navailable, waive the application of this paragraph insofar as it is\ndetermined by the commissioner that additional funds must be expended by\nsuch facility to correct deficiencies that constitute a threat to\nresident safety.\n (d) Cost reports submitted by residential health care facilities for\nthe two thousand two calendar year or any part thereof shall,\nnotwithstanding any contrary provision of law, be subject to audit\nthrough December thirty-first, two thousand eighteen and facilities\nshall retain for the purpose of such audits all fiscal and statistical\nrecords relevant to such cost reports, provided, however, that any such\naudit commenced on or before December thirty-first, two thousand\neighteen, may be completed and used for the purpose of adjusting any\nMedicaid rates which utilize such costs.\n (e) For rate periods subsequent to two thousand nine which utilize\nreported costs from a base year subsequent to two thousand two, the\nfollowing categories of facilities, as established pursuant to\napplicable regulations, shall receive rates that are no less than\nequivalent, as determined by the commissioner, to the rates that were in\neffect for such facilities on December thirty-first, two thousand six,\ntrended forward for inflation to the applicable rate period: (A) AIDS\nfacilities or discrete AIDS units within facilities, (B) discrete units\nfor residents receiving care in a long term inpatient rehabilitation\nprogram for traumatic brain injured persons, (C) discrete units for long\nterm ventilator dependent residents, (D) discrete units providing\nspecialized programs for residents requiring behavioral interventions,\nand (E) facilities or discrete units within facilities that provide\nextensive nursing, medical, psychological and counseling support\nservices solely to children.\n (f) The operating component of Medicaid rates of payment shall, by no\nlater than the two thousand twelve rate period, be based on allowable\ncosts, as reported on annual facility cost reports, from a base year\nperiod no earlier than three years prior to the initial rate year, and\nthen trended forward by applicable inflation factors. Thereafter, the\nbase year utilized for rate-setting purposes shall be updated to be\ncurrent no less frequently than every six years provided, however, that\nfor the purposes of this paragraph, current shall mean that the\noperating components of the initial rate year utilizing such updated\nbase year shall reflect allowable costs as reported in annual facility\ncost reports for periods no earlier than three years prior to such\ninitial rate year and then trended forward to the rate year in\naccordance with applicable inflation factors.\n (g) Notwithstanding any contrary provision of this subdivision or any\nother contrary provision of law, rule or regulation, rates of payment\nfor inpatient services provided on and after April first, two thousand\nnine by residential health care facilities shall, except for the\nestablishment of any statewide or any peer group base, mean or ceiling\nprices per day, be calculated utilizing only the number of patients\nproperly assessed and reported in each patient classification group and\neligible for medical assistance pursuant to title eleven of article five\nof the social services law.\n (h) Notwithstanding any contrary provision of law and subject to the\navailability of federal financial participation, for the period April\nfirst, two thousand eleven through June thirtieth, two thousand eleven,\nthe non-capital components of rates shall be subject to a uniform\npercentage reduction sufficient to reduce such rates by an aggregate\namount of twenty-seven million one hundred thousand dollars, and\nprovided further, however, that such reductions shall be disregarded in\ncomputations made pursuant to section two of part D of chapter\nfifty-eight of the laws of two thousand nine, as amended.\n 2-c. (a) Notwithstanding any inconsistent provision of this section or\nany other contrary provision of law and subject to the availability of\nfederal financial participation, the non-capital component of rates of\npayment by governmental agencies for inpatient services provided by\nresidential health care facilities on or after October first, two\nthousand eleven, but no later than January first, two thousand twelve,\nshall reflect a direct statewide price component, and indirect statewide\nprice component, and a facility specific non-comparable component,\nutilizing allowable operating costs for a base year as determined by the\ncommissioner by regulation. Such rate components shall be periodically\nupdated to reflect changes in operating costs.\n (b) The direct and indirect statewide price components shall be\nadjusted by a wage equalization factor and such other factors as\ndetermined to be appropriate to recognize legitimate cost differentials\nand the direct statewide price component shall be subject to a case mix\nadjustment utilizing the patients that are eligible for medical\nassistance pursuant to title eleven of article five of the social\nservices law. Such wage equalization factor shall be periodically\nupdated to reflect current labor market conditions.\n (c) The non-capital component of the rates for: (i) AIDS facilities or\ndiscrete AIDS units within facilities; (ii) discrete units for residents\nreceiving care in a long-term inpatient rehabilitation program for\ntraumatic brain injured persons; (iii) discrete units providing\nspecialized programs for residents requiring behavioral interventions;\n(iv) discrete units for long-term ventilator dependent residents; and\n(v) facilities or discrete units within facilities that provide\nextensive nursing, medical, psychological and counseling support\nservices solely to children shall reflect the rates in effect for such\nfacilities on January first, two thousand nine, as adjusted for\ninflation and rate appeals in accordance with applicable statutes,\nprovided, however, that such rates for facilities described in\nsubparagraph (i) of this paragraph shall reflect the application of the\nprovisions of section twelve of part D of chapter fifty-eight of the\nlaws of two thousand nine, and provided further, however, that insofar\nas such rates reflect trend adjustments for trend factors attributable\nto the two thousand eight and two thousand nine calendar years the\naggregate amount of such trend factor adjustments shall be subject to\nthe provisions of section two of part D of chapter fifty-eight of the\nlaws of two thousand nine, as amended.\n (d) The commissioner shall promulgate regulations, and may promulgate\nemergency regulations, to implement the provisions of this subdivision.\nSuch regulations shall be developed in consultation with the nursing\nhome industry and advocates for residential health care facility\nresidents and, further, the commissioner shall provide notification\nconcerning such regulations to the chairs of the senate and assembly\nhealth committees, the chair of the senate finance committee and the\nchair of the assembly ways and means committee. Such regulations shall\ninclude provisions for rate adjustments or payment enhancements to\nfacilitate a minimum four-year transition of facilities to the\nrate-setting methodology established by this subdivision and may also\ninclude, but not be limited to, provisions for facilitating quality\nimprovements in residential health care facilities. For purposes of\nfacilitating quality improvements through the establishment of a nursing\nhome quality pool to be funded at the discretion of the commissioner by\n(i) adjustments in medical assistance rates, (ii) funds made available\nthrough state appropriations, or (iii) a combination thereof, those\nfacilities that contribute to the quality pool, but are deemed\nineligible for quality pool payments due exclusively to a specific case\nof employee misconduct, shall nevertheless be eligible for a quality\npool payment if the facility properly reported the incident, did not\nreceive a survey citation from the commissioner or the Centers for\nMedicare and Medicaid Services establishing the facility's culpability\nwith regard to such misconduct and, but for the specific case of\nemployee misconduct, the facility would have otherwise received a\nquality pool payment. Regulations pertaining to the facilitation of\nquality improvement may be made effective for periods on and after\nJanuary first, two thousand thirteen.\n (e) With the exception of those enrollees covered under a payment rate\nmethodology agreement negotiated with a residential health care\nfacility, payments for inpatient residential health care facility\nservices provided to patients eligible for medical assistance pursuant\nto title eleven of article five of the social services law made by\norganizations operating in accordance with the provisions of article\nforty-four of this chapter or by health maintenance organizations\norganized and operating in accordance with article forty-three of the\ninsurance law, shall be the rates of payment that would be paid for such\npatients under the medical assistance program as determined pursuant to\nthis section and subdivision ten of section twenty-eight hundred seven-d\nof this article and as in effect at the time such services were\nprovided. The provisions of this paragraph shall not apply to payments\nfor patients whose placement in a residential health care facility is\nfor the purpose of receiving time-limited rehabilitation, to be followed\nby discharge from the facility, during the period such time-limited\nservices are provided.\n (f) The commissioner shall establish a prospective per diem adjustment\nfor all nursing homes, other than nursing homes providing services\nprimarily to children under the age of twenty-one, beginning April\nfirst, two thousand seventeen and each year thereafter sufficient to\nachieve eighteen million dollars in savings in each state fiscal year.\n * (g) Notwithstanding any other provision of law or regulation to the\ncontrary, any residential health care facility established pursuant to\nthis article located in a county with a population of more than\nseventy-two thousand and less then seventy-five thousand persons based\non the two thousand ten federal census, and operating between one\nhundred ten and one hundred thirty beds, being reimbursed by the\ndepartment on a fee-for-services basis, shall be reimbursed at a rate of\nno less than one hundred seventeen percent of the fee-for-service rate\nof reimbursement calculated pursuant to this section for that facility\nfor inpatient services provided on or after March first, two thousand\neighteen.\n * NB There are 2 par (g)'s\n * (g) The commissioner shall reduce Medicaid revenue to a residential\nhealth care facility in a payment year by two percent if in each of the\ntwo most recent payment years for which New York state nursing home\nquality initiative data is available, the facility was ranked in the\nlowest two quintiles of facilities based on its nursing home quality\ninitiative performance, and was ranked in the lowest quintile in the\nmost recent payment year. The commissioner shall waive the application\nof this paragraph to a facility if the commissioner determines that the\nfacility is in financial distress.\n * NB There are 2 par (g)'s\n 2-d. Residential health care facility supplemental payments.\nNotwithstanding any inconsistent provision of law, rule or regulation\nand subject to the availability of federal financial participation, for\nthe period May first, two thousand eleven through May thirty-first, two\nthousand eleven, the commissioner shall adjust inpatient medicaid rates\nof payment established pursuant to this article for eligible residential\nhealth care facilities in accordance with the following:\n (a) Rate adjustments made pursuant to this subdivision shall be in the\nform of rate add-ons and shall not exceed an aggregate amount of two\nhundred twenty-one million three hundred thousand dollars.\n (b) Eligible facilities are those facilities which the commissioner\ndetermines have experienced a net reduction in their inpatient Medicaid\nreimbursement for the period April first, two thousand nine through\nMarch thirty-first, two thousand eleven as a result of the following:\n (i) inpatient rate adjustments made pursuant to paragraph (b) of\nsubdivision two-b of this section;\n (ii) use of the case mix methodology described in paragraph (g) of\nsubdivision two-b of this section;\n (iii) inpatient rate adjustments made pursuant to section two of part\nD of chapter fifty-eight of the laws of two thousand nine, as amended.\n (c) The following eligible facilities shall receive rate adjustments\npursuant to this subdivision equal to one hundred percent of their net\nreimbursement reduction as computed by the commissioner in accordance\nwith paragraph (b) of this subdivision:\n (i) facilities that have been determined by the commissioner as being\neligible for distributions of amounts available for the two thousand\nnine period as provided in subdivision twenty-one of this section;\n (ii) non-public facilities whose total operating losses equal or\nexceed five percent of total operating revenue and whose medicaid\nutilization equals or exceeds seventy percent, based on either their two\nthousand nine cost report or based on the otherwise most recently\navailable cost report, as determined by the commissioner;\n (iii) facilities or distinct units of facilities providing inpatient\nservices primarily to children under the age of twenty-one.\n (d) Eligible facilities, other than eligible facilities described in\nparagraph (c) of this subdivision, shall receive rate adjustments\npursuant to this subdivision equal to fifty percent of their net\nreimbursement reduction as computed by the commissioner in accordance\nwith paragraph (b) of this subdivision.\n (e) Eligible facilities as described in paragraph (d) of this\nsubdivision which, as determined by the commissioner, after application\nof the rate adjustments authorized by paragraph (d) of this subdivision,\nremain subject to a net reduction in their inpatient Medicaid revenue\nthat is in excess of two percent, as measured with regard to the\nnon-capital components of facility inpatient rates in effect on March\nthirty-first, two thousand nine as computed prior to the application of\ntrend factor adjustments attributable to the two thousand eight and two\nthousand nine calendar years, shall have their rates further adjusted\nsuch that such net reduction does not exceed such two percent.\n (f) Eligible facilities as described in paragraph (d) of this\nsubdivision which, as determined by the commissioner, have experienced a\nnet reduction in their inpatient rates of more than six million dollars\nas a result of the application of the factor described in subparagraph\n(iii) of paragraph (b) of this subdivision shall after application of\nthe provisions of paragraph (e) of this subdivision, have their rates\nfurther adjusted such that any such net reduction remaining after the\napplication of the other provisions of this subdivision is reduced to\nzero.\n (g) In computing net reductions of medicaid reimbursement pursuant to\nparagraph (b) of this subdivision the commissioner shall:\n (i) disregard the impact of case mix adjustments as otherwise\nscheduled for July first, two thousand ten; and,\n (ii) disregard the impact of any rate adjustments issued on or after\nJanuary first, two thousand eleven, including adjustments to rate\nperiods prior to January first, two thousand eleven.\n (h) Payments made pursuant to this subdivision shall not be subject to\nsubsequent adjustment or reconciliation and, further, the computation\nand application of limitations on medicaid rates of payment as described\nin section two of part D of chapter fifty-eight of the laws of two\nthousand nine, as amended, and as applicable to the rate periods\ndescribed in paragraph (a) of this subdivision, shall disregard payments\nmade pursuant to this subdivision.\n (i) Additional rate adjustments shall be made pursuant to this\nsubdivision to eligible facilities in the form of rate add-ons for the\nperiod May first, two thousand eleven through May thirty-first, two\nthousand eleven which shall in aggregate be equal to twenty-five percent\nof the aggregate amount described in paragraph (a) of this subdivision\nand which shall be distributed to each eligible facility in the same\nproportion as the total distributions otherwise received by each\nfacility pursuant to this subdivision.\n (j) The commissioner may, with the approval of the director of the\nbudget, and subject to the identification of sufficient nursing home\nrelated medicaid savings to offset the expenditures authorized by this\nparagraph, make additional rate adjustments pursuant to this subdivision\nto eligible facilities in the form of rate add-ons for the period\nDecember first, two thousand eleven through December thirty-first, two\nthousand eleven which shall in aggregate be equal to twelve and\nfive-tenths percent of the aggregate amount described in paragraph (a)\nof this subdivision and which shall be distributed to each eligible\nfacility in the same proportion as the total distributions otherwise\nreceived by each facility pursuant to this subdivision.\n 3. The commissioner, with the approval of the state hospital review\nand planning council, shall promulgate regulations to be effective the\nfirst day of January, nineteen hundred seventy-eight, which shall relate\nthe rate of payment to the efficient operation and program management of\nthe facility, as well as to the quality of patient care provided by the\nfacility. Such regulations shall be consistent with the requirements of\nsubdivision three of section twenty-eight hundred seven of this chapter\nand with federal laws and regulations.\n 4. The commissioner, in determining and certifying to the director of\nthe budget the rates of payment to residential health care facilities,\nshall exclude the following costs: (a) contributions or other payments\nto political parties, candidates or organizations; (b) direct or\nindirect costs incurred for advertising or promotion except as allowed\nby the commissioner; (c) costs incurred for the promotion or opposition,\ndirectly or indirectly, of the passage of bills or resolutions pending\nbefore or passed by a legislative body of any jurisdiction; (d) costs\nwhich principally afford diversion, entertainment or amusement to their\nowners, operators or employees not properly related to patient care or\ntreatment; (e) any penalty imposed by governmental agencies or courts,\nand the costs of policies obtained solely to insure against the\nimposition of such a penalty; and (f) costs incurred by the residential\nhealth care facility to obtain the security required under the\nprovisions of section twenty-eight hundred nine of this chapter.\n 5. (a) Any operator withdrawing equity or assets from a hospital\noperated for profit so as to create or increase a negative net worth or\nwhen the hospital is in a negative net worth position, calculated\nwithout regard to any surplus created by revaluation of assets, must\nobtain the prior approval of the commissioner in accordance with\nregulations promulgated by the commissioner with the approval of the\nstate hospital review and planning council. The commissioner shall make\na determination to approve or disapprove a request for withdrawal of\nequity or assets under this subdivision within sixty days of the date of\nthe receipt of such a request. Requests shall be made in a form\nacceptable to the department by certified or registered mail. In\naddition to any other remedy or penalty available under this chapter,\nand after opportunity for a hearing, the commissioner may require\nreplacement of the withdrawn equity or assets and may impose a penalty\nfor violation of the provisions of this subdivision, relating to\nwithdrawing equity or assets, or the regulations promulgated thereunder,\nin an amount not to exceed ten percent of any amount withdrawn without\nprior approval. No facility shall enter into a real property mortgage or\nlease transaction without thirty days prior notice in writing to the\ncommissioner.\n (b) On and after April first, two thousand ten, no non-public\nresidential health care facility may withdraw equity or transfer assets\nwhich in the aggregate exceed:\n (i) three percent of such facility's total reported annual revenue for\npatient care services, based on the facility's most recently available\nreported data, without prior written notification to the commissioner;\nor\n (ii) in the case of a residential health care facility which, over the\ntwo immediately preceding successive quarters, has been compliant with\nthe minimum staffing level requirements prescribed by section\ntwenty-eight hundred ninety-five-b of this chapter, five percent of such\nfacility's total reported annual revenue for patient care services,\nbased on the facility's most recently available reported data, without\nprior written notification to the commissioner. Notification shall be\nmade in a form acceptable to the department by certified or registered\nmail.\n (c) Notwithstanding any inconsistent provision of this subdivision, on\nand after April first, two thousand ten, no non-public residential\nhealth care facility, whether operated as a for-profit facility or as a\nnot-for-profit facility, may withdraw equity or transfer assets which in\nthe aggregate exceed:\n (i) three percent of such facility's total reported annual revenue for\npatient care services, based on the facility's most recently available\nreported data, without the prior written approval of the commissioner;\nor\n (ii) in the case of a residential health care facility which, over the\ntwo immediately preceding successive quarters, has been compliant with\nthe minimum staffing level requirements prescribed by section\ntwenty-eight hundred ninety-five-b of this chapter, five percent of such\nfacility's total reported annual revenue for patient care services,\nbased on the facility's most recently available reported data, without\nprior written notification to the commissioner. The commissioner shall\nmake a determination to approve or disapprove a request for withdrawal\nof equity or assets under this subdivision within sixty days of the date\nof the receipt of a written request from the facility. Requests shall be\nmade in a form acceptable to the department by certified or registered\nmail. In reviewing such requests the commissioner shall consider the\nfacility's overall financial condition, any indications of financial\ndistress, whether the facility is delinquent in any payment owed to the\ndepartment, whether the facility has been cited for immediate jeopardy\nor substandard quality of care, and such other factors as the\ncommissioner deems appropriate. In addition to any other remedy or\npenalty available under this chapter, and after opportunity for a\nhearing, the commissioner may require replacement of the withdrawn\nequity or assets and may impose a penalty for violation of the\nprovisions of this subdivision in an amount not to exceed ten percent of\nany amount withdrawn without prior approval.\n * 6. Prior to the approval by the state hospital review and planning\ncouncil of any regulations promulgated pursuant to this section, the\ncommissioner shall convene a public hearing, upon at least seven days\nnotice, to consider the proposed regulations. The commissioner shall\ninclude a summary of the comments made at such hearing in a report to\nthe state hospital review and planning council at the meeting at which\nit considers the regulations for approval.\n * NB Expired December 31, 1985\n * 7. The commissioner may assess an annual fee on each residential\nhealth care facility to be used to reimburse any first instance\nappropriation for the purpose of making payments to receivers pursuant\nto subdivision three of section twenty-eight hundred ten of this\narticle. Such fee shall not exceed thirty dollars per bed certified\npursuant to this article, and shall be a reimbursable expense for the\npurposes of determining rates of payment made by government agencies.\nThe reimbursement rate for a facility must reflect the cost of the\nannual fee prior to requiring that the facility pay the fee. The\ncommissioner shall seek to obtain federal approval to include such fee\nas a reimbursable expense for purposes of computing reimbursement rates\npursuant to title XVIII of the federal social security act.\n * NB (Effective pending Federal Law - Expired December 31, 1983)\n 8. Every lease or lease renewal executed on or after September first,\nnineteen hundred eighty-six between a landlord and the operator of a\nresidential health care facility shall contain a provision terminating\nany interest the operator of such facility may have in any lease of\npremises used for the operation of such facility after the public health\ncouncil has approved the establishment of a new operator. Nothing herein\nshall be construed to affect any interest such operator may have in any\nmovable equipment located on the premises of the facility. In the event\nany lease or lease renewal executed on or after September first,\nnineteen hundred eighty-six fails to contain the termination provision\nrequired by this subdivision, the lease or lease renewal shall be deemed\nto be terminated upon the public health council approval of a new\noperator. The commissioner, the landlord, or the new operator shall be\nentitled to maintain a summary proceeding to recover possession of the\nreal property in any court of competent jurisdiction upon such\ntermination.\n 9. Trend factors. (a) The commissioner, in accordance with the\nmethodology developed by the consultants pursuant to paragraph (b) of\nthis subdivision, shall establish trend factors to project for the\neffect of inflation. The factors shall be applied to the appropriate\nportion of reimbursable costs of residential health care facilities. The\nmethodology for developing the trend factor shall include the\nappropriate external price indicators and shall also include the data\nfrom major collective bargaining agreements as reported quarterly by the\nfederal department of labor, bureau of labor statistics, for\nnonsupervisory employees.\n (b) The methodology shall be developed by four independent consultants\nwith expertise in health economics appointed by the commissioner\npursuant to paragraph (b) of subdivision ten of section twenty-eight\nhundred seven-c of this chapter. On or about September first of each\nyear following the effective date of this subdivision, the consultants\nshall provide to the commissioner and the council the methodology to be\nused to determine the trend factors for subsequent rate periods only,\nbeginning with the nine month period commencing April first, nineteen\nhundred ninety-one and for subsequent twelve month periods commencing\nJanuary first, nineteen hundred ninety-two and thereafter. The\ncommissioner shall monitor the actual price movements during these\nperiods of the external price indicators used in the methodology, shall\nreport the results of the monitoring to the consultants and shall\nimplement the recommendations of the consultants for one prospective\ninterim annual adjustment to the trend factors to reflect such price\nmovements and to be effective on January first, one year after the\ninitial trend factor was established and one prospective final annual\nadjustment to the trend factors to reflect such price movements and to\nbe effective on January first, two years after the initial trend factor\nwas established.\n 11. Residential health care facility reimbursement rate promulgation.\nWith regard to a residential health care facility, the provisions of\nsubdivision seven of section twenty-eight hundred seven of this article\nrelating to advance notification of rates shall not apply to prospective\nor retroactive adjustments to rates that are based on rate appeals filed\nby such facility, audits, changes in patient conditions or acuity\nlevels, the correction of errors or omissions of data or errors in the\ncomputations of such rates, the submission of cost report data from\nfacilities without an established cost basis, the judicial annulment or\ninvalidation of existing rates or changes in the methodology used to\ncompute rates which changes are promulgated following the judicial\nannulment or invalidation of existing rates or as otherwise authorized\nby law. Notwithstanding any inconsistent provision of law or regulation,\nas of April first, two thousand nine, with regard to administrative rate\nappeals, the department will only review such appeals for (a) the\ncorrection of computational errors or omissions of data by the\ndepartment in determining the operating rate based upon the information\nprovided to the department prior to the computation of the rate, (b)\ncapital cost reimbursement, or (c) such reasons as the commissioner\ndetermines are appropriate. The department will not consider any\nrevisions made to a facility's annual cost report for operating rate\nadjustment purpose later than the due date established by the\ncommissioner.\n 12. (a) Notwithstanding any inconsistent provision of law or\nregulation, the commissioner shall increase rates of payment established\npursuant to this article for non-state operated public residential\nhealth care facilities in an aggregate amount not to exceed one hundred\nmillion dollars in additional reimbursement for payments for services\nprovided during the period July first, nineteen hundred ninety-five\nthrough March thirty-first, nineteen hundred ninety-six. The\ncommissioner may adopt rules and regulations necessary to implement this\nparagraph.\n (b) Notwithstanding any inconsistent provision of law or regulation,\nthe commissioner shall provide, in addition to payments established\npursuant to this article prior to application of this section,\nadditional payments under the medical assistance program pursuant to\ntitle eleven of article five of the social services law for non-state\noperated public residential health care facilities, excluding public\nresidential health care facilities operated by a town or city within a\ncounty, in an aggregate amount of two hundred fifty-seven million\ndollars in additional payments in the period August first, nineteen\nhundred ninety-six through March thirty-first, nineteen hundred\nninety-seven.\n (c) Notwithstanding any inconsistent provision of law or regulation,\nthe commissioner shall provide, in addition to payments established\npursuant to this article prior to application of this section,\nadditional payments under the medical assistance program pursuant to\ntitle eleven of article five of the social services law for non-state\noperated public residential health care facilities, including public\nresidential health care facilities located in the county of Nassau and\nthe county of Westchester, but excluding public residential health care\nfacilities operated by a town or city within a county, in an aggregate\namount of $631.1 million in additional payments in the period April\nfirst, nineteen hundred ninety-seven through March thirty-first,\nnineteen hundred ninety-eight, and a like amount in the period April\nfirst, nineteen hundred ninety-eight through March thirty-first,\nnineteen hundred ninety-nine.\n (d) Notwithstanding any inconsistent provision of law or regulation,\nthe commissioner shall provide, in addition to payments established\npursuant to this article prior to application of this section,\nadditional payments under the medical assistance program pursuant to\ntitle eleven of article five of the social services law for non-state\noperated public residential health care facilities, including public\nresidential health care facilities located in the county of Nassau and\nthe county of Westchester, but excluding public residential health care\nfacilities operated by a town or city within a county, in an aggregate\namount of $914.5 million in additional payments in the period April\nfirst, nineteen hundred ninety-nine through March thirty-first, two\nthousand.\n (e) Notwithstanding any inconsistent provision of law or regulation,\nthe commissioner shall provide, in addition to payments established\npursuant to this article prior to application of this section,\nadditional payments under the medical assistance program pursuant to\ntitle eleven of article five of the social services law for non-state\noperated public residential health care facilities, including public\nresidential health care facilities located in the county of Nassau and\nthe county of Westchester, but excluding public residential health care\nfacilities operated by a town or city within a county, in an aggregate\namount of up to $991.5 million in additional payments each state fiscal\nyear for the period beginning April first, two thousand through March\nthirty-first, two thousand five.\n (e-1) Notwithstanding any inconsistent provision of law or regulation,\nthe commissioner shall provide, in addition to payments established\npursuant to this article prior to application of this section,\nadditional payments under the medical assistance program pursuant to\ntitle eleven of article five of the social services law for non-state\noperated public residential health care facilities, including public\nresidential health care facilities located in the county of Nassau, the\ncounty of Westchester and the county of Erie, but excluding public\nresidential health care facilities operated by a town or city within a\ncounty, in aggregate annual amounts of up to one hundred fifty million\ndollars in additional payments for the state fiscal year beginning April\nfirst, two thousand six and for the state fiscal year beginning April\nfirst, two thousand seven and for the state fiscal year beginning April\nfirst, two thousand eight and of up to three hundred million dollars in\nsuch aggregate annual additional payments for the state fiscal year\nbeginning April first, two thousand nine, and for the state fiscal year\nbeginning April first, two thousand ten and for the state fiscal year\nbeginning April first, two thousand eleven, and for the state fiscal\nyears beginning April first, two thousand twelve and April first, two\nthousand thirteen, and of up to five hundred million dollars in such\naggregate annual additional payments for the state fiscal years\nbeginning April first, two thousand fourteen, April first, two thousand\nfifteen and April first, two thousand sixteen and of up to five hundred\nmillion dollars in such aggregate annual additional payments for the\nstate fiscal years beginning April first, two thousand seventeen, April\nfirst, two thousand eighteen, and April first, two thousand nineteen,\nand of up to five hundred million dollars in such aggregate annual\nadditional payments for the state fiscal years beginning April first,\ntwo thousand twenty, April first, two thousand twenty-one, and April\nfirst, two thousand twenty-two, and of up to five hundred million\ndollars in such aggregate annual additional payments for the state\nfiscal years beginning April first, two thousand twenty-three, and from\nApril first, two thousand twenty-four until December thirty-first, two\nthousand twenty-four, and for the calendar year January first, two\nthousand twenty-five through December thirty-first, two thousand\ntwenty-five, and for each calendar year thereafter. The amount allocated\nto each eligible public residential health care facility for this period\nshall be computed in accordance with the provisions of paragraph (f) of\nthis subdivision, provided, however, that patient days shall be utilized\nfor such computation reflecting actual reported data for two thousand\nthree and each representative succeeding year as applicable, and\nprovided further, however, that, in consultation with impacted\nproviders, of the funds allocated for distribution in the state fiscal\nyear beginning April first, two thousand thirteen, up to thirty-two\nmillion dollars may be allocated in accordance with paragraph (f-1) of\nthis subdivision.\n (f) The amount allocated to each eligible public residential health\ncare facility for each period shall be calculated as the result of (A)\nthe total payment for each period multiplied by (B) the ratio of patient\ndays for patients eligible for medical assistance pursuant to title\neleven of article five of the social services law provided by the public\nresidential health care facility, divided by the total of such patient\ndays summed for all eligible public residential health care facilities.\nFor the period August first, nineteen hundred ninety-six through March\nthirty-first, nineteen hundred ninety-seven, nineteen hundred\nninety-four patient days shall be utilized; for the period April first,\nnineteen hundred ninety-seven through March thirty-first, nineteen\nhundred ninety-eight, nineteen hundred ninety-five patient days shall be\nutilized; for the period April first, nineteen hundred ninety-eight\nthrough March thirty-first, nineteen hundred ninety-nine, nineteen\nhundred ninety-six patient days shall be utilized; for the period April\nfirst, nineteen hundred ninety-nine through March thirty-first, two\nthousand, nineteen hundred ninety-seven patient days shall be utilized;\nfor the period April first, two thousand through March thirty-first, two\nthousand one, nineteen hundred ninety-eight patient days shall be\nutilized; for the period April first, two thousand one through March\nthirty-first, two thousand two, nineteen hundred ninety-nine patient\ndays shall be utilized; for the period April first, two thousand two\nthrough March thirty-first, two thousand three, two thousand patient\ndays shall be utilized; for the period April first, two thousand three\nthrough March thirty-first, two thousand four, two thousand one patient\ndays shall be utilized; for the period April first, two thousand four\nthrough March thirty-first, two thousand five, two thousand two patient\ndays shall be utilized.\n (f-1) Funds allocated by the provisions of paragraph (e-1) of this\nsubdivision for distribution pursuant to this paragraph, shall be\nallocated proportionally to those public residential health care\nfacilities which were subject to retroactive reductions in payments made\npursuant to this subdivision for state fiscal year periods beginning\nApril first, two thousand six.\n (g) Payments may be made based on adjustments to rates of payment for\nservices provided during the applicable period or as lump sum payments\nto an eligible residential health care facility.\n 13. Notwithstanding any inconsistent provision of law or regulation to\nthe contrary, residential health care facility rates of payment\ndetermined pursuant to this article for governmental agencies for\nservices provided on or after July first, nineteen hundred ninety-five\nthrough March thirty-first, nineteen hundred ninety-six shall be reduced\nby the commissioner, to reflect the elimination of operational\nrequirements previously mandated by law or, consistent with the\nstandards specified in subparagraph (v) of paragraph (a) of subdivision\ntwo of section twenty-eight hundred three of this article, regulation or\nthe commissioner or other governmental agency, by a factor determined as\nfollows:\n (i) an aggregate reduction shall be calculated for each residential\nhealth care facility as the result of (A) fifty-six million dollars on\nan annualized basis for nineteen hundred ninety-five, trended to the\nrate year by the trend factor for projection of reimbursable costs to\nthe rate year, multiplied by (B) the ratio of patient days for patients\neligible for payments made by governmental agencies provided in a base\nyear two years prior to the rate year by a residential health care\nfacility, divided by the total of such patient days summed for all\nresidential health care facilities; and\n (ii) the result for each residential health care facility shall be\ndivided by such patient days provided in the residential health care\nfacility, for a per diem reduction in rates of payment for such\nresidential health care facility for patients eligible for payments made\nby governmental agencies.\n 14. (a) Notwithstanding any inconsistent provision of law or\nregulation to the contrary, for purposes of establishing rates of\npayment by governmental agencies for residential health care facilities\nfor services provided on or after April first, nineteen hundred\nninety-five through March thirty-first, nineteen hundred ninety-nine and\nfor services provided on or after July first, nineteen hundred\nninety-nine through March thirty-first, two thousand and on and after\nApril first, two thousand through March thirty-first, two thousand three\nand on and after April first, two thousand three through March\nthirty-first, two thousand six and on and after April first, two\nthousand six through December thirty-first, two thousand six, the\nreimbursable base year administrative services and fiscal services\ncosts, as defined in the New York state residential health care facility\naccounting and reporting manual, of a residential health care facility,\nexcluding a provider of services reimbursed on an initial budget basis,\nshall, except as otherwise provided in this subdivision, not exceed the\nstatewide average of total reimbursable base year administrative and\nfiscal services costs of residential health care facilities. For the\npurposes of this subdivision, reimbursable base year administrative and\nfiscal services costs shall mean those base year administrative and\nfiscal services costs remaining after application of all other\nefficiency standards, including but not limited to, peer group cost\nceilings or guidelines.\n (b) A separate statewide average of total reimbursable base year\nadministrative and fiscal services costs shall be determined for each of\nthose facilities wherein eighty percent or more of its patients are\nclassified with a patient acuity equal to or less than .83 which is used\nas the basis for a facility's case mix adjustment. For the period July\nfirst, two thousand through March thirty-first, two thousand one, the\ntotal reimbursable base year administrative and fiscal services costs of\nsuch facilities shall not exceed such separate statewide average plus\none and one-half percentage points. For annual periods thereafter\nthrough December thirty-first, two thousand six, the total reimbursable\nbase year administrative and fiscal services costs of such facilities\nshall not exceed such separate statewide average. In no event shall the\ncalculation of such separate statewide average result in a change in the\nstatewide average determined under paragraph (a) of this subdivision.\n (c) The limitation on reimbursement for provider administrative and\nfiscal expenses provided by this subdivision shall be expressed as a\npercentage reduction of the operating cost component of the rate\npromulgated by the commissioner for each residential health care\nfacility.\n 15. Notwithstanding any inconsistent provision of law or regulation to\nthe contrary, for services provided by residential health care\nfacilities for the period April first, nineteen hundred ninety-five\nthrough March thirty-first, nineteen hundred ninety-six, the\ncommissioner shall not be required to revise a certified rate of payment\nestablished pursuant to this article based on consideration of rate\nappeals filed by a residential health care facility. In cases where the\ncommissioner determines that a significant financial hardship exists, he\nor she may, subject to the approval of the director of the budget,\nconsider an exemption to this subdivision. Beginning April first,\nnineteen hundred ninety-six and thereafter, the commissioner shall\nconsider such rate appeals within a reasonable period. After April\nfirst, nineteen hundred ninety-six, through March thirty-first, nineteen\nhundred ninety-seven, the commissioner shall revise certified rates of\npayment not to exceed an aggregate payment of forty-seven million\ndollars, state share medical assistance.\n 16. Notwithstanding any inconsistent provision of law or regulation to\nthe contrary, residential health care facility rates of payment\ndetermined pursuant to this article for governmental agencies for\nservices provided on or after April first, nineteen hundred ninety-six\nthrough March thirty-first, nineteen hundred ninety-nine and on or after\nJuly first, nineteen hundred ninety-nine through March thirty-first, two\nthousand and on and after April first, two thousand through March\nthirty-first, two thousand three and on and after April first, two\nthousand three through March thirty-first, two thousand six and on and\nafter April first, two thousand six through December thirty-first, two\nthousand six, shall be further reduced by the commissioner to encourage\nimproved productivity and efficiency by providers by a factor determined\nas follows:\n (a) an aggregate reduction shall be calculated for each residential\nhealth care facility commencing April first, nineteen hundred ninety-six\nthrough March thirty-first, nineteen hundred ninety-nine and on or after\nJuly first, nineteen hundred ninety-nine through March thirty-first, two\nthousand and on and after April first, two thousand through March\nthirty-first, two thousand three and on and after April first, two\nthousand three through March thirty-first, two thousand six and on and\nafter April first, two thousand six through December thirty-first, two\nthousand six as the result of (i) fifty-six million dollars on an\nannualized basis multiplied by (ii) the ratio of patient days for\npatients eligible for payments made by governmental agencies provided in\na base year two years prior to the rate year by a residential health\ncare facility, or for residential health care facility beds not fully in\noperation in such base year by an estimate of projected utilization for\nthe rate year, divided by the total of such patient days summed for all\nresidential health care facilities; and\n (b) the result for each residential health care facility shall be\ndivided by such patient days provided in the residential health care\nfacility, for a per diem reduction in rates of payment for such\nresidential health care facility for patients eligible for payments made\nby governmental agencies.\n 17. (a) Notwithstanding any inconsistent provision of law or\nregulation to the contrary, for the period April first, nineteen hundred\nninety-seven through March thirty-first, nineteen hundred ninety-eight,\nthe commissioner shall not be required to revise a certified rate of\npayment established pursuant to this article based on consideration of\nrate appeals filed by a residential health care facility or based upon\nadjustments to capital cost reimbursement as a result of approval by the\ncommissioner of an application for construction under section\ntwenty-eight hundred two of this article. For the period April first,\nnineteen hundred ninety-eight, through March thirty-first, nineteen\nhundred ninety-nine, the commissioner shall revise certified rates of\npayment in an aggregate amount not to exceed twenty million dollars,\nstate share medical assistance. In cases where the commissioner\ndetermines that a significant financial hardship exists, he or she may,\nsubject to the approval of the director of the budget, consider an\nexemption to this subdivision. Beginning April first, nineteen hundred\nninety-nine and thereafter, the commissioner shall consider such rate\nappeals within a reasonable period.\n (b) Notwithstanding any inconsistent provision of law or regulation to\nthe contrary, for the state fiscal years beginning April first, two\nthousand ten and ending March thirty-first, two thousand twenty-nine,\nthe commissioner shall not be required to revise certified rates of\npayment established pursuant to this article for rate periods prior to\nApril first, two thousand twenty-nine, based on consideration of rate\nappeals filed by residential health care facilities or based upon\nadjustments to capital cost reimbursement as a result of approval by the\ncommissioner of an application for construction under section\ntwenty-eight hundred two of this article, in excess of an aggregate\nannual amount of eighty million dollars for each such state fiscal year\nprovided, however, that for the period April first, two thousand eleven\nthrough March thirty-first, two thousand twelve such aggregate annual\namount shall be fifty million dollars. In revising such rates within\nsuch fiscal limit, the commissioner shall, in prioritizing such rate\nappeals, include consideration of which facilities the commissioner\ndetermines are facing significant financial hardship as well as such\nother considerations as the commissioner deems appropriate and, further,\nthe commissioner is authorized to enter into agreements with such\nfacilities or any other facility to resolve multiple pending rate\nappeals based upon a negotiated aggregate amount and may offset such\nnegotiated aggregate amounts against any amounts owed by the facility to\nthe department, including, but not limited to, amounts owed pursuant to\nsection twenty-eight hundred seven-d of this article; provided, however,\nthat the commissioner's authority to negotiate such agreements resolving\nmultiple pending rate appeals as hereinbefore described shall continue\non and after April first, two thousand twenty-nine. Rate adjustments\nmade pursuant to this paragraph remain fully subject to approval by the\ndirector of the budget in accordance with the provisions of subdivision\ntwo of section twenty-eight hundred seven of this article.\n (c) Notwithstanding any other contrary provision of law, rule or\nregulation, for periods on and after April first, two thousand eleven\nthe commissioner shall promulgate regulations, and may promulgate\nemergency regulations, establishing priorities and time frames for\nprocessing rate appeals, including rate appeals filed prior to April\nfirst, two thousand eleven, within available administrative resources;\nprovided, however, that such regulations shall not be inconsistent with\nthe provisions of paragraph (b) of this subdivision.\n 17-a. Notwithstanding any inconsistent provision of law or regulation\nto the contrary, for purposes of establishing rates of payment by\ngovernmental agencies for residential health care facilities for\nservices provided on and after January first, nineteen hundred\nninety-eight, the regional direct and indirect input price adjustment\nfactors to be applied to any such facility's rate calculation shall be\nbased upon the utilization of either nineteen hundred eighty-three,\nnineteen hundred eighty-seven or nineteen hundred ninety-three calendar\nyear financial and statistical data and for periods beginning April\nfirst, two thousand four through March thirty-first, two thousand nine\nbased on either nineteen hundred eighty-three, nineteen hundred\neighty-seven, nineteen hundred ninety-three or two thousand one calendar\nyear financial and statistical data; provided, however, the state share\namount for the utilization of two thousand one calendar year data shall\nbe no more than twenty-two million dollars on a pro rata basis per\ncalendar year. The determination of which calendar year's data to\nutilize shall be based upon a methodology that ensures that the\nparticular year chosen by each facility results in a factor that yields\nno less reimbursement to the facility than would result from the use of\nany of the other three years' data. Such methodology shall utilize the\nnineteen hundred eighty-three and nineteen hundred eighty-seven regional\ndirect and indirect input price adjustment factor corridor percentages\nin existence on January first, nineteen hundred ninety-seven as well as\nnineteen hundred ninety-three regional direct and indirect input price\nadjustment factor corridor percentage in existence on January first, two\nthousand four as well as a two thousand one regional direct and indirect\ninput price adjustment factor corridor percentage calculated in the same\nmanner as the nineteen hundred ninety-three direct and indirect input\nprice adjustment factor corridor percentages in existence on January\nfirst, two thousand four; provided, however, for rate periods on and\nafter April first, two thousand nine, the regional input price\nadjustment factors shall be based on the case mix predicted staffing for\nregistered nurses, licensed practical nurses, nurses' aides, licensed\ntherapists and therapist aides. For the rate period beginning April\nfirst, two thousand nine through the day immediately prior to the day\nthe provisions of subdivision two-c of this section take effect, the\nregional direct and indirect input price adjustment factors to be\napplied to a facility's rate calculation shall be based upon the\nutilization of two thousand two calendar year financial and statistical\ndata. Such methodology shall utilize two thousand two regional direct\nand indirect input price adjustment factor corridor percentages\ncalculated in the same manner as the two thousand one regional direct\nand indirect input price adjustment factor corridor percentages in\nexistence on December thirty-first, two thousand six except that every\nregion shall receive a corridor to reflect the region's actual variation\nsubject to a maximum statewide average variable corridor percentage of\nten percent.\n 18. Residential health care facility recruitment and retention of\nhealth care workers. Notwithstanding any inconsistent provision of law,\nrule or regulation and subject to the availability of federal financial\nparticipation:\n (a) (i) The commissioner shall adjust inpatient medical assistance\nrates of payment established pursuant to this article for non-public\nresidential health care facilities in accordance with subparagraph (ii)\nof this paragraph for purposes of recruitment and retention of health\ncare workers in the following aggregate amounts for the following\nperiods:\n (A) fifty-three million five hundred thousand dollars on an annualized\nbasis for the period April first, two thousand two through December\nthirty-first, two thousand two; eighty-three million three hundred\nthousand dollars on an annualized basis for the period January first,\ntwo thousand three through December thirty-first, two thousand three;\none hundred fifteen million eight hundred thousand dollars on an\nannualized basis for the period January first, two thousand four through\nDecember thirty-first, two thousand six; fifty-seven million nine\nhundred thousand dollars for the period January first, two thousand\nseven through June thirtieth, two thousand seven, fifty-seven million\nnine hundred thousand dollars for the period July first, two thousand\nseven through March thirty-first, two thousand eight, and fifty-nine\nmillion four hundred thousand dollars for the period April first, two\nthousand eight through March thirty-first, two thousand nine.\n (ii) Such increases shall be allocated proportionally based on each\nnon-public residential health care facility's reported total gross\nsalary and fringe benefit costs on exhibit H of the 1999 RHCF - 4 cost\nreport or exhibit 11 of the 1999 institutional cost report submitted as\nof November first, two thousand one, where applicable, to the total of\nsuch reported costs for all non-public residential health care\nfacilities, provided, however, that for periods on and after July first,\ntwo thousand seven, fifty percent of such increases shall be allocated\nproportionally, based on each non-public residential health care\nfacility's reported total gross salary and fringe benefit costs on\nexhibit H of the nineteen hundred ninety-nine RHFC - 4 cost report or\nexhibit 11 of the nineteen hundred ninety-nine institutional cost report\nsubmitted to the department prior to November first, two thousand one,\nwhere applicable, to the total of such reported costs for all non-public\nresidential health care facilities, and fifty percent of such increases\nshall be allocated proportionately, based on each such non-public\nfacility's reported Medicaid revenue, as reported in the applicable two\nthousand five cost report as submitted to the department prior to\nNovember first, two thousand six, to the total of such Medicaid revenue\nreported by all such non-public facilities. These amounts shall be\nincluded as a reimbursable cost add-on to medical assistance inpatient\nrates of payment established pursuant to this article for non-public\nresidential health care facilities, based on medical assistance\nutilization data in each facility's annual cost report submitted two\nyears prior to the rate year. Such amounts shall not be reconciled to\nreflect changes in medical assistance utilization between the year two\nyears prior to the rate year and the rate year.\n (b) (i) Notwithstanding sections one hundred twelve and one hundred\nsixty-three of the state finance law and any other inconsistent\nprovision of law, the commissioner shall make grants to public\nresidential health care facilities without a competitive bid or request\nfor proposal process for purposes of recruitment and retention of health\ncare workers in the following aggregate amounts for the following\nperiods:\n (A) seven million five hundred thousand dollars on an annualized basis\nfor the period April first, two thousand two through December\nthirty-first, two thousand two; eleven million seven hundred thousand\ndollars on an annualized basis for the period January first, two\nthousand three through December thirty-first, two thousand three;\nsixteen million two hundred thousand dollars on an annualized basis for\nthe period January first, two thousand four through December\nthirty-first, two thousand six; and eight million one hundred thousand\ndollars for the period January first, two thousand seven through June\nthirtieth, two thousand seven, eight million one hundred thousand\ndollars for the period July first, two thousand seven through March\nthirty-first, two thousand eight, six million six hundred ninety\nthousand dollars for the period April first, two thousand eight through\nMarch thirty-first, two thousand nine.\n (ii) Such grants shall be allocated proportionally based on each\npublic residential health care facility's reported total gross salary\nand fringe benefit costs on exhibit H of the 1999 RHCF - 4 cost report\nor exhibit 11 of the 1999 institutional cost report submitted as of\nNovember first, two thousand one, where applicable, to the total of such\nreported costs for all public residential health care facilities.\n (c) (i) Non-public and public residential health care facilities in\noperation as of the effective date of this paragraph which have not\nsubmitted 1999 RHCF-4 cost reports or 1999 institutional cost reports\nbut which have submitted such reports for cost years subsequent to 1999,\nshall have distributions authorized in subparagraph (i) of paragraph (a)\nof this subdivision or in subparagraph (i) of paragraph (b) of this\nsubdivision allocated based on total gross salary and fringe benefit\ncosts on exhibit H of the earliest subsequently submitted RHCF-4 cost\nreport or exhibit 11 of the earliest subsequently submitted\ninstitutional cost report, as trended downward to 1999 using trend\nfactors authorized in accordance with the provisions of section\ntwenty-one of chapter one of the laws of nineteen hundred ninety-nine.\n (ii) Non-public and public residential health care facilities in\noperation as of the effective date of this paragraph which have not\nsubmitted 1999 or subsequent RHCF-4 cost reports or institutional cost\nreports, shall have distributions authorized in subparagraph (i) of\nparagraph (a) of this subdivision or in subparagraph (i) of paragraph\n(b) of this subdivision allocated based on imputed total gross salary\nand fringe benefit costs reflecting the average of such costs in the\nregion in which each such facility is located, provided, however, that\nfor periods on and after July first, two thousand seven, facilities that\nhave not submitted two thousand five cost reports shall have\ndistributions allocated based on imputed days of care to patients\neligible for medical assistance, reflecting the average of such medicaid\ndays of care in the region in which such facilities are located.\n (iii) Non-public and public residential health care facilities which\nreceived allocations pursuant to subparagraph (ii) of this paragraph and\nwhich subsequently submit RHCF-4 cost reports or institutional cost\nreports shall, for the purpose of setting medical assistance rates of\npayment, have such allocations adjusted to reflect costs which were\nincurred in connection with such allocations and which are contained in\nsuch cost reports.\n (d) Residential health care facilities which have their rates adjusted\nor receive grants pursuant to paragraphs (a), (b) and (c) of this\nsubdivision, respectively, shall use such funds for the purpose of\nrecruitment and retention of non-supervisory workers at health care\nfacilities or any worker with direct patient care responsibility and are\nprohibited from using such funds for any other purpose. Funds under this\nsubdivision are not intended to supplant support provided by a local\ngovernment. Each such residential health care facility shall submit, at\na time and in a manner to be determined by the commissioner, a written\ncertification attesting that such funds will be used solely for the\npurpose of recruitment and retention of non-supervisory workers at\nhealth care facilities or any worker with direct patient care\nresponsibility. The commissioner is authorized to audit each residential\nhealth care facility to ensure compliance with the written certification\nrequired by this paragraph and shall recoup any funds determined to have\nbeen used for purposes other than recruitment and retention of\nnon-supervisory workers at health care facilities or any worker with\ndirect patient care responsibility. Such recoupment shall be in addition\nto applicable penalties under sections twelve and twelve-b of this\nchapter.\n (e) Residential health care facilities which have their rates adjusted\nor receive grants pursuant to paragraphs (a), (b) and (c) of this\nsubdivision, respectively, shall use such funds for the purpose of\nrecruitment and retention of non-supervisory workers at health care\nfacilities or any worker with direct patient care responsibility and are\nprohibited from using such funds for any other purpose. Funds under this\nsubdivision are not intended to supplant support provided by a local\ngovernment. Each such residential health care facility shall submit, at\na time and in a manner to be determined by the commissioner, a written\ncertification attesting that such funds will be used solely for the\npurpose of recruitment and retention of non-supervisory workers at\nhealth care facilities or any worker with direct patient care\nresponsibility. The commissioner is authorized to audit each residential\nhealth care facility to ensure compliance with the written certification\nrequired by this paragraph and shall recoup any funds determined to have\nbeen used for purposes other than recruitment and retention of\nnon-supervisory workers at health care facilities or any worker with\ndirect patient care responsibility. Such recoupment shall be in addition\nto applicable penalties under sections twelve and twelve-b of this\nchapter.\n 19. Notwithstanding any law, rule or regulation to the contrary, the\ncommissioner shall within amounts allocated pursuant to paragraph (hh)\nof subdivision one of section twenty-eight hundred seven-v of this\narticle, make adjustments to the medical assistance rates of payment to\nresidential health care facilities to assist certain financially\ndisadvantaged nursing homes, in order to promote financial stability and\nquality improvement. Such adjustments shall be made pursuant to\nsubdivision twenty-one of this section.\n 20. a. The commissioner shall timely develop and implement a\nstandardized process for assessing the feasibility of capital mortgage\nre-financings, including a standard formula for determining the net cost\nbenefit of re-financing, inclusive of all transaction and closing costs.\nOn or before September first, two thousand three or thirty days after\nthe commissioner makes the standard formula available to facilities,\neach residential health care facility established under this article and\ncertified as a provider pursuant to title XIX of the federal social\nsecurity act (Medicaid), except for those facilities established under\nthe nursing home companies law or the hospital loan construction law,\nshall review its existing capital debt structure using the standard\nformula to evaluate whether or not a material cost benefit could be\nderived by re-financing its capital mortgage or mortgages, and shall\nforward the results of such review to the commissioner. The commissioner\nmay request and such facilities shall submit descriptions of existing\nmortgage arrangements and debt service reserve funds as needed to\nimplement paragraph b of this subdivision. Facilities established under\nthe nursing home companies law or the hospital loan construction law\nshall submit to the dormitory authority, the housing finance agency\nand/or the state of New York mortgage agency such information as is\nrequired by such agency to evaluate potential re-financing of such\ncapital mortgages.\n b. the commissioner shall review each facility's submission and make a\nwritten determination as to whether or not the facility should\nre-finance its capital mortgage or mortgages, and if so, for what\namount, within sixty days of the date of the facility's submission based\non the following parameters:\n (i) the mortgage re-financing must result in a present value cost\nbenefit that "materially exceeds", as such term is defined by the\ncommissioner, the amount of all transaction and closing costs associated\nwith the re-financing, including any pre-payment penalties associated\nwith the current mortgage or mortgages. The commissioner shall do such\ncalculations in a manner consistent with comparable calculations in the\nstate finance law;\n (ii) mortgages may be re-financed for a term greater than the\nremaining term of the existing debt within certain limits, if doing so\nwould result in the present value cost benefit specified in subparagraph\n(i) of this paragraph;\n (iii) mortgages may be re-financed utilizing variable rate mortgage\nloans, if doing so would result in the present value cost benefit\nspecified in subparagraph (i) of this paragraph. In such cases, for\npurposes of determining the reimbursable capital interest expense\nincluded in the capital cost component of rates of payment determined\npursuant to this article, the average interest rate over the life of the\nre-financed mortgage shall not exceed the interest rate in effect on the\nprevious mortgage debt immediately prior to the re-financing;\n (iv) not-for-profit and governmental residential health care\nfacilities may utilize taxable mortgage loans to re-finance their\nexisting debts, if doing so would result in the present value cost\nbenefit specified in subparagraph (i) of this paragraph;\n (v) moneys contained in facility debt service reserve funds may be\nconsidered in the evaluation of amounts necessary to be re-financed, but\nonly to the extent such moneys total more than the debt service reserves\nneeded to establish the successor capital mortgage financing;\n (vi) in no event shall funded depreciation accounts, or building funds\naccumulated through donor-restricted contributions or unrestricted\ncontributions, gifts, bequests, or legacies, be considered in the\nevaluation of amounts necessary to be re-financed; and\n (vii) notwithstanding any inconsistent provision of law or regulation\nto the contrary, the principal amount, including all transaction and\nclosing costs and any pre-payment penalties associated with the previous\nmortgage or mortgages, that is thereby deemed necessary to be\nre-financed by the commissioner, as approved by the public authorities\ncontrol board and the United States department of housing and urban\ndevelopment where appropriate, shall be considered the final, approved\nmortgage amount for capital cost reimbursement under the relevant\nprovisions of this article.\n c. Notwithstanding any inconsistent provision of law or regulation to\nthe contrary, the capital cost component of rates of payment for\nservices provided for the period beginning October first, two thousand\nthree or one hundred eighty days after the effective date of this\nsubdivision, whichever is later, through March thirty-first, two\nthousand four for residential health care facilities established under\nthis article and certified as providers pursuant to title XIX of the\nfederal social security act (Medicaid), except for those facilities\nestablished under the nursing home companies law or the hospital loan\nconstruction law, that have been identified by the commissioner as\nrefinancing candidates pursuant to paragraph b of this subdivision shall\nreflect capital interest costs equivalent to the lower of the prevailing\nmarket borrowing rates available on or about July first, two thousand\nthree or ninety days after the effective date of this subdivision,\nwhichever is later, for refinancing capital mortgages for their\nremaining term plus two hundred basis points, or the existing rate being\npaid by the facility on its capital mortgage or mortgages as of that\ndate. The commissioner shall determine, in consultation with mortgage\nfinancing experts, the prevailing market borrowing rates available to\nnot-for-profit and governmental residential health care facilities to\nre-finance capital mortgages on a tax-exempt fixed rate basis, and to\nproprietary residential health care facilities to re-finance capital\nmortgages on a tax-exempt fixed rate basis, and to proprietary\nresidential health care facilities to re-finance capital mortgages on a\ntaxable fixed rate basis, for this purpose. Exceptions to this policy\nshall be provided by the commissioner to each such facility that\ndemonstrates, prior to October first, two thousand three or thirty days\nafter receipt of the commissioner's written determination specified in\nparagraph (b) of this subdivision, whichever occurs later, that:\n (i) it has initiated or completed the process of re-financing the\nmortgage or mortgages in question, in which case the capital cost\ncomponent of rates of payment shall be timely revised to reflect capital\ninterest costs associated with a re-financed mortgage that conforms to\nthe standards in paragraph (b) of this subdivision. For this purpose, a\nfacility that has applied for approval by the commissioner, the state\nhospital review and planning council and/or the public health council to\nre-finance its existing mortgage debt as part of a larger project\ninvolving facility replacement, expansion, renovation or change of\nownership is considered to have initiated the process of re-financing;\nor\n (ii) it can not re-finance its capital mortgage or mortgages to\nachieve the relevant present value cost benefit specified in\nsubparagraphs (i) and (ii) of paragraph (b) of this subdivision due to a\n"lock out" or similar provision in its current mortgage agreement that\nprevents re-financing; due to some other type of genuine re-financing\nobstacle, such as an inability of the facility to obtain credit approval\nfrom a lender or mortgage insurer, or due to an intervening change in\ncredit market conditions or other relevant circumstances, in which case\nthe capital cost component of rates of payment shall continue to reflect\ncapital interest costs associated with the existing mortgage or\nmortgages, together with reasonable costs incurred in connection with\nthe facility's attempt to re-finance its existing mortgage debt.\n d. Notwithstanding any contrary provision of law, rule or regulation,\nfor rate periods on and after April first, two thousand eleven, the\ncommissioner may reduce or eliminate the payment factor for return on or\nreturn of equity in the capital cost component of Medicaid rates of\npayment for services provided by residential health care facilities, and\nfor rate periods on and after April first, two thousand twenty, there\nshall be no payment factor for residual equity reimbursement in the\ncapital cost component of Medicaid rates of payment for services\nprovided by residential health care facilities.\n e. Notwithstanding any other provision of law or regulation to the\ncontrary, the commissioner shall adopt or amend on an emergency basis\nany regulation the commissioner determines necessary to implement any\nprovision of this subdivision.\n 21. (a) Notwithstanding any inconsistent provision of law or\nregulation to the contrary, for the purposes specified in subdivision\nnineteen of this section, the commissioner shall adjust medical\nassistance rates of payment established pursuant to this article for\nservices provided on and after October first, two thousand four through\nDecember thirty-first, two thousand four and annually thereafter for\nservices provided on and after January first, two thousand five through\nApril thirtieth, two thousand eleven and on and after May first, two\nthousand twelve, to include a rate adjustment to assist qualifying\nfacilities pursuant to this subdivision, provided, however, that public\nresidential health care facilities shall not be eligible for rate\nadjustments pursuant to this subdivision for rate periods on and after\nApril first, two thousand nine, provided further, however, that\nnotwithstanding any contrary provision of law and subject to the\navailability of federal financial participation, each facility that\nreceives a rate adjustment pursuant to this subdivision for the period\nMay first, two thousand ten through April thirtieth, two thousand eleven\nshall have its medicaid rates reduced for the rate period December\nfirst, two thousand eleven through December thirty-first, two thousand\neleven by an amount equal in aggregate to the aggregate amount of the\nfunds such facility received pursuant to this subdivision for the period\nMay first, two thousand ten through April thirtieth, two thousand\neleven.\n (b) Eligibility for such rate adjustments shall be determined on the\nbasis of each residential health care facility's operating margin over\nthe most recent three-year period for which financial data are available\nfrom the RHCF-4 cost report or the institutional cost report. For\npurposes of the adjustments made for the period October first, two\nthousand four through December thirty-first, two thousand four,\nfinancial information for the calendar years two thousand through two\nthousand two shall be utilized. For each subsequent rate year, the\nfinancial data for the three-year period ending two years prior to the\napplicable rate year shall be utilized for this purpose.\n (c) Each facility's operating margin for the three-year period shall\nbe calculated by subtracting total operating expenses for the three-year\nperiod from total operating revenues for the three-year period, and\ndividing the result by the total operating revenues for the three-year\nperiod, with the result expressed as a percentage. For hospital-based\nresidential health care facilities for which an operating margin cannot\nbe calculated on the basis of the submitted cost reports, the sponsoring\nhospital's overall three-year operating margin, as reported in the\ninstitutional cost report, shall be utilized for this purpose. All\nfacilities with negative operating margins calculated in this way over\nthe three-year period shall be arrayed into quartiles based on the\nmagnitude of the operating margin. Any facility with a positive\noperating margin for the most recent three-year period, a negative\noperating margin that places the facility in the quartile of facilities\nwith the smallest negative operating margins, a positive total margin in\nthe most recent year of the three year period, or an average Medicaid\nutilization percentage of fifty percent or less during the most recent\nyear of the three-year period shall be disqualified from receiving an\nadjustment pursuant to this subdivision, provided, however, that for\nrate periods on and after April first, two thousand nine, such\ndisqualification:\n (i) shall not be applied solely on the basis of a facility's having a\npositive total margin in the most recent year of such three-year period;\n (ii) shall be extended to those facilities in the quartile of\nfacilities with the second smallest negative operating margins; and\n (iii) shall also be extended to those facilities with an average\nMedicaid utilization percentage of less than seventy percent during the\nmost recent year of the three-year period.\n (d) For each facility remaining after the exclusions made pursuant to\nparagraph (c) of this subdivision, the commissioner shall calculate the\naverage annual operating loss for the three-year period by subtracting\ntotal operating expenses for the three-year period from total operating\nrevenues for the three-year period, and dividing the result by three,\nprovided, however, that for periods on and after April first, two\nthousand nine, the amount of such average annual operating loss shall be\nreduced by an amount equal to the amount received by such facility\npursuant to subparagraph (ii) of paragraph (a) of subdivision two-b of\nthis section. For this purpose, for hospital-based residential health\ncare facilities for which the average annual operating loss cannot be\ncalculated on the basis of the submitted cost reports, the sponsoring\nhospital's overall average annual operating loss for the three-year\nperiod shall be apportioned to the residential health care facility\nbased on the proportion the residential health care facility's total\nrevenues for the period bears to the total revenues reported by the\nsponsoring hospital, and such apportioned average annual operating loss\nshall then be reduced by an amount equal to the amount received by such\nfacility pursuant to subparagraph (ii) of paragraph (a) of subdivision\ntwo-b of this section.\n (e) For periods prior to April first, two thousand nine, each such\nfacility's qualifying operating loss shall be determined by multiplying\nthe facility's average annual operating loss for the three-year period\nas calculated pursuant to paragraph (d) of this subdivision by the\napplicable percentage shown in the tables below for the quartile within\nwhich the facility's negative operating margin for the three-year period\nis assigned.\n i. For a facility located in a county with a total population of two\nhundred thousand or more as determined by the two thousand U.S. Census:\nFirst Quartile (lowest operating margins): 30 percent\n Second Quartile: 15 percent\n Third Quartile: 7.5 percent\nii. For a facility located in a county with a total population of fewer\nthan two hundred thousand as determined by the two thousand U.S. Census:\nFirst Quartile (lowest operating margins): 35 percent\n Second Quartile: 20 percent\n Third Quartile: 12.5 percent\n(f) The amount of any facility's financially disadvantaged residential\nhealth care facility distribution calculated in accordance with this\nsubdivision shall be reduced by the facility's estimated rate year\nbenefit of the two thousand one update to the regional input price\nadjustment factors authorized pursuant to former subdivision seventeen\nof this section as amended by section 24 of part C of chapter 58 of the\nlaws of 2004, or as authorized by subdivision seventeen-a of this\nsection, as added by section 56 of part C of chapter 58 of the laws of\n2007, if any, provided, however, that such reduction shall not be\napplied with regard to rate periods on and after April first, two\nthousand nine. After all other adjustments to a facility's financially\ndisadvantaged residential health care facility distribution have been\nmade in accordance with this subdivision, the amount of each facility's\ndistribution shall be limited to no more than four hundred thousand\ndollars during the period October first, two thousand four through\nDecember thirty-first, two thousand four and, on an annualized basis,\nfor rate periods through March thirty-first, two thousand nine, and no\nmore than one million dollars for the period April first, two thousand\nnine through December thirty-first, two thousand nine and for each\nannual rate period thereafter.\n (g) The adjustment made to each qualifying facility's medical\nassistance rate of payment determined pursuant to this article shall be\ncalculated by dividing the facility's financially disadvantaged\nresidential health care facility distribution calculated in accordance\nwith this subdivision by the facility's total medical assistance patient\ndays reported in the cost report submitted two years prior to the rate\nyear, provided however, that such rate adjustments for the period\nOctober first, two thousand four through December thirty-first, two\nthousand four shall be calculated based on twenty-five percent of each\nfacility's reported total medical assistance patient days as reported in\nthe applicable two thousand two cost report. Such amounts shall not be\nreconciled to reflect changes in medical assistance utilization between\nthe year two years prior to the rate year and the rate year.\n (h) The total amount of funds to be allocated and distributed as\nmedical assistance for financially disadvantaged residential health care\nfacility rate adjustments to eligible facilities for a rate period in\naccordance with this subdivision shall be thirty million dollars for the\nperiod October first, two thousand four through December thirty-first,\ntwo thousand four and thirty million dollars on an annualized basis for\nrate periods on and after January first, two thousand five through\nDecember thirty-first, two thousand eight and thirty million dollars on\nan annualized basis on and after January first, two thousand nine,\nprovided that, subject to all necessary federal approvals, on and after\nJanuary first, two thousand thirteen funds allocated under this\nparagraph shall be distributed pursuant to 10 NYCRR 86-2.39. The\nnonfederal share of such rate adjustments shall be paid by the state,\nwith no local share, from allocations made pursuant to paragraph (hh) of\nsubdivision one of section twenty-eight hundred seven-v of this article.\nIn the event the statewide total of the annual rate adjustments\ndetermined pursuant to paragraph (g) of this subdivision varies from the\namounts set forth in this paragraph, each qualifying facility's rate\nadjustment shall be proportionately increased or decreased such that the\ntotal of the annual rate adjustments made pursuant to this subdivision\nis equal to the amounts set forth in this paragraph on a statewide\nbasis.\n (i) This subdivision shall be effective if, and as long as, federal\nfinancial participation is available for expenditures made for\nbeneficiaries eligible for medical assistance under title XIX of the\nfederal social security act for the rate adjustments determined in\naccordance with this subdivision.\n (j) For periods on and after April first, two thousand nine,\nresidential health care facilities which are otherwise eligible for rate\nadjustments pursuant to this subdivision shall also, as a condition for\nreceipt of such rate adjustments, submit to the commissioner a written\nrestructuring plan that is acceptable to the commissioner and which is\nin accord with the following:\n (i) such an acceptable plan shall be submitted to the commissioner\nwithin sixty days of the facility's receipt of rate adjustments pursuant\nto this subdivision for a rate period subsequent to March thirty-first,\ntwo thousand eight, provided, however, that facilities which are\nallocated four hundred thousand dollars or less on an annualized basis\nshall be required to submit such plans within one hundred twenty days,\nand further provided that these periods may be extended by the\ncommissioner by no more than thirty days, for good cause shown; and\n (ii) such plan shall provide a detailed description of the steps the\nfacility will take to improve operational efficiency and align its\nexpenditures with its revenues, and shall include a projected schedule\nof quantifiable benchmarks to be achieved in the implementation of the\nplan; and\n (iii) such plan shall require periodic reports to the commissioner, in\naccordance with a schedule acceptable to the commissioner, setting forth\nthe progress the facility has made in implementing its plan; and\n (iv) such plan may include the facility's retention of a qualified\nchief restructuring officer to assist in the implementation of the plan,\nprovided, however, that this requirement may be waived by the\ncommissioner, for good cause shown, upon written application by the\nfacility.\n (k) If a residential health care facility fails to submit an\nacceptable restructuring plan in accordance with the provisions of\nparagraph (j) of this subdivision, the facility shall, from that time\nforward, be precluded from receipt of all further rate adjustments made\npursuant to this subdivision and shall be deemed ineligible from any\nfuture re-application for such adjustments. Further, if the commissioner\ndetermines that a facility has failed to make substantial progress in\nimplementing its plan or in achieving the benchmarks set forth in such\nplan, then the commissioner may, upon thirty days notice to that\nfacility, disqualify the facility from further participation in the rate\nadjustments authorized by this subdivision and the commissioner may\nrequire the facility to repay some or all of the previous rate\nadjustments.\n 22. Nursing home incentives for improved performance in patient care.\nPursuant to such program, and within amounts as are appropriated\ntherefor, the commissioner shall investigate adjusted quality indicators\nand quality measures including those defined by the federal centers for\nmedicare and medicaid service (CMS) with respect to nursing home quality\nand quality benchmarks. The commissioner shall award rate enhancements\nto those residential health care facilities who demonstrate to the\nsatisfaction of the commissioner, they can meet or exceed such defined\nquality measures. Such quality measures may include, but not be limited\nto, outcomes from state survey data, performance measures, and resident\noutcomes based upon Minimum Data Sets as defined by CMS. The\ncommissioner shall consult with associations representing residential\nhealth care facilities and associations representing nursing home\nresidents, and shall by July first, two thousand seven, adopt rules and\nregulations that incorporate payment incentives, related to such quality\nindicators and measures, including, but not limited to programs to\nimprove patient care outcomes and performance outcomes. Such programs\nmay include but not be limited to, clinician-centric electronic medical\nrecords implementation, automation of assessments and care plans,\nimproved data collection, and the provision of accessible consumer\ninformation as well as patient satisfaction, into rates of payment.\n 22-a. Modifications. (a) Notwithstanding any inconsistent provision of\nlaw or regulation to the contrary, effective April first, two thousand\nsix and thereafter, residential health care facility rates of payment\ndetermined pursuant to this section for payments made by governmental\nagencies shall not contain a payment factor for interest on current\nindebtedness if the residential health care facility cost report\nutilized to determine such payment factor also shows a withdrawal of\nequity, a transfer of assets, or a positive net income.\n (b) Notwithstanding any inconsistent provision of law or regulation to\nthe contrary, for residential health care facility rates of payment\ndetermined pursuant to this article for services provided on and after\nApril first, two thousand six, the annual cost report filed by each\nresidential health care facility for two thousand five and for each year\nthereafter shall be examined and in the event the operating costs\nreported by each such facility in any such cost report is less than\nninety percent of the operating costs reported in the cost report which\nis being utilized to set such facility's existing rates of payment\ntrended to two thousand five and each year thereafter, then such rates\nof payment shall be recalculated utilizing the more recent reported\noperating cost data.\n (c) Notwithstanding any inconsistent provision of law or regulation to\nthe contrary, effective on and after April first, two thousand six, for\npurposes of establishing rates of payment by governmental agencies for\nresidential health care facilities licensed pursuant to this article,\nthe operating component of the rate for any residential health care\nfacility that did not or does not achieve ninety percent or greater\noccupancy for any year within five calendar years from the date of\ncommencing operation, shall be recalculated utilizing the facility's\nmost recently available reported allowable costs divided by patient days\nimputed at ninety percent occupancy. Such recalculated rates of payment\nshall be effective January first of the sixth calendar year following\nthe date the facility commenced operations or April first, two thousand\nsix, whichever is later.\n (d) (i) Notwithstanding any inconsistent provisions of subdivisions\ntwo-b or two-c of this section or any other contrary provision of law,\nand subject to the availability of federal financial participation, for\ninpatient services provided by residential health care facilities on and\nafter April first, two thousand eleven, the commissioner may, subject to\nthe approval of the director of the budget, grant approval of a\ntemporary adjustment to Medicaid rates for eligible facilities, as\ndetermined in accordance with this paragraph.\n (ii) Eligible facilities shall be those residential health care\nfacilities which, as determined by the commissioner, require short-term\nassistance to accommodate additional patient services requirements\nstemming from the closure of other facilities in the area, including,\nbut not limited to, additional staff, service reconfiguration and\nenhanced information technology capability.\n (iii) Eligible facilities shall submit written proposals demonstrating\nthe need for additional short-term resources and how such additional\nresources will result in improvements to:\n (A) the cost effectiveness of service delivery;\n (B) quality of care; and\n (C) other factors deemed appropriate by the commissioner.\n (iv) Such written proposals shall be submitted to the department at\nleast sixty days prior to the requested effective date of the temporary\nrate adjustment. The temporary rate adjustment shall be in effect for a\nspecified period of time as determined by the commissioner. At the end\nof the specified timeframe, the facility will be reimbursed in\naccordance with otherwise applicable rate-setting methodologies. The\ncommissioner may establish, as a condition of receiving such a temporary\nrate adjustment, benchmarks and goals to be achieved in accordance with\nthe facility's approved proposals and may also require that the facility\nsubmit such periodic reports concerning the achievement of such\nbenchmarks and goals as the commissioner deems necessary. Failure to\nachieve satisfactory progress, as determined by the commissioner, in\naccomplishing such benchmarks and goals shall be a basis for ending the\nfacility's temporary rate adjustment prior to the end of the specified\ntimeframe.\n 23. Notwithstanding any inconsistent provision of law or regulation to\nthe contrary:\n (a) (i) For adult day health care services provided by residential\nhealth care facilities, effective April first, two thousand seven and\nthereafter, the operating component of the rate of payment established\npursuant to this article for an adult day health care program which has\nachieved an occupancy percentage of ninety percent or greater for a\ncalendar year prior to April first, two thousand seven, shall be\ncalculated utilizing allowable costs reported in the two thousand four,\ntwo thousand five, or two thousand six calendar year residential health\ncare facility cost report filed by the sponsoring residential health\ncare facility, whichever is the earliest of such calendar year cost\nreports in which the program has achieved an occupancy percentage of\nninety percent or greater, except that programs receiving rates of\npayment based on allowable costs for a period prior to April first, two\nthousand seven shall continue to receive rates of payment based on such\nperiod.\n (ii) For such programs which achieved an occupancy percentage of\nninety percent or greater prior to calendar year two thousand four, so\nlong as approved capacity in that year is the same as in calendar year\ntwo thousand four, but which did not maintain occupancy of ninety\npercent or greater in calendar years two thousand four, two thousand\nfive, or two thousand six, the operating component of the rate of\npayment established pursuant to this article shall be calculated\nutilizing allowable costs reported in the two thousand four calendar\nyear cost report divided by visits imputed at ninety percent occupancy.\n (iii) For such programs which have not achieved an occupancy\npercentage of ninety percent or greater for a calendar year prior to\nApril first, two thousand seven, the operating component of the rate of\npayment established pursuant to this article shall be calculated\nutilizing allowable costs reported in the first calendar year after two\nthousand six in which such a program achieves an occupancy percentage of\nninety percent or greater effective January first of such calendar year\nexcept for calendar year two thousand seven, effective no earlier than\nApril first of such year, provided, however, that effective January\nfirst, two thousand nine, for programs that have not achieved an\noccupancy percentage of ninety percent or greater for a calendar year\nprior to January first, two thousand nine, the operating component of\nthe rate of payment established pursuant to this article shall be\ncalculated utilizing allowable costs reported in the two thousand nine\ncost report filed by the sponsoring residential health care facility\ndivided by visits imputed at actual or ninety percent occupancy,\nwhichever is greater. This subparagraph shall also apply to programs\nwhich achieved an occupancy percentage of ninety percent or greater\nprior to calendar year two thousand four but in such year had an\napproved capacity that was not the same as in calendar year two thousand\nfour.\n (b) For a residential health care facility approved to operate an\nadult day health care program on or after April first, two thousand\nseven, rates of payment for such programs shall be computed based upon\nannual budgeted allowable costs, as submitted by the residential health\ncare facility, and total estimated annual visits by adult day health\ncare registrants of not less than ninety percent of licensed occupancy,\nand in accordance with the following:\n (i) Each program shall be required to submit an individual budget.\nMultiple programs operated by the same residential health care facility\nshall submit a separate budget for each program. Multiple programs\noperated by the same residential health care facility shall have\nseparate rates of payment.\n (ii) Rates developed based upon budgets shall remain in effect for no\nlonger than two calendar years from the earlier of:\n (A) the date the program commences operations; or\n (B) the date the sponsoring residential health care facility submits a\nfull calendar year residential health care facility cost report in which\nthe program has achieved ninety percent or greater occupancy. If a\nsponsoring residential health care facility submits such a cost report\nwithin two years of the date the program commences operation, rates\nshall then be computed utilizing such cost report.\n (iii) If a program fails to achieve ninety percent or greater\noccupancy within two calendar years of the date of its commencing\noperations, rates shall be calculated utilizing allowable costs reported\nin such second calendar year residential health care facility's cost\nreport for the applicable sponsoring residential health care facility\ndivided by visits imputed at ninety percent occupancy.\n (c) Effective January first, two thousand eight, allowable costs shall\nnot include the costs of transportation.\n (d) All rates of payment established pursuant to this subdivision are\nsubject to the maximum daily rate provided by law. Such maximum daily\nrate of payment for adult day health care programs operated by\nresidential health care facilities that undergo a change of ownership\nsubsequent to nineteen hundred ninety shall be determined by utilizing\nthe inpatient rate of payment of the prior operator as in effect on\nJanuary first, nineteen hundred ninety. In the event a residential\nhealth care facility establishes an off-site adult day health care\nprogram outside the regional input price adjustment region in which it\nis located, the computation of the maximum daily rate of payment for\nsuch program shall utilize the weighted average of the inpatient rates\nof payments for residential health care facilities in the region in\nwhich the program is located, as in effect on January first, nineteen\nhundred ninety, in place of the sponsoring residential health care\nfacility's inpatient rate of payment.\n (e) Notwithstanding any inconsistent provision of the state\nadministrative procedure act or any other law or regulation to the\ncontrary, the commissioner shall adopt or amend on an emergency basis\nany regulations the commissioner shall determine necessary to implement\nany provision of this subdivision.\n 24. Notwithstanding any other provisions of this section and any other\nlaw, rule or regulation to the contrary, for periods on and after July\nfirst, two thousand seven, the operating component of all rates of\npayment made by governmental agencies for services to individuals\neligible for medical assistance pursuant to title eleven of article five\nof the social services law and provided by a residential health care\nfacility with fewer than sixty beds as of July first, two thousand\nseven, which provides services primarily to neurologically impaired\nindividuals and is located in a county with a population between two\nhundred ninety thousand and three hundred ten thousand as of July first,\ntwo thousand seven shall be based solely on the methodology used to\nestablish rates for facilities which provide extensive nursing, medical,\npsychological and counseling support services solely to children;\nprovided, however, this subdivision shall not apply if the application\nwould result in a lesser rate of payment than otherwise provided for\nunder this section. Nothing in this subdivision shall be construed to\nlimit the application to such facility of rate adjustments applied to\nother residential health care facilities.\n 25. Reserved bed days. (a) For purposes of this subdivision, a\n"reserved bed day" is a day for which a governmental agency pays a\nresidential health care facility to reserve a bed for a person eligible\nfor medical assistance pursuant to title eleven of article five of the\nsocial services law while he or she is on therapeutic leave of absence\nfrom the facility.\n (b) Notwithstanding any other provisions of this section or any other\nlaw or regulation to the contrary, for reserved bed days provided on\nbehalf of persons twenty-one years of age or older:\n (i) payments for reserved bed days shall be made at ninety-five\npercent of the Medicaid rate otherwise payable to the facility for\nservices provided on behalf of such person; and\n (ii) payment to a facility for reserved bed days provided on behalf of\nsuch person for therapeutic leaves of absence may not exceed ten days in\nany twelve month period.\n 25-a. Reserved bed days for state veterans' homes. (a) For purposes of\nthis subdivision, a "reserved bed day" is a day for which the state pays\nNew York State Veterans' Home at Oxford, the New York State Veterans'\nHome at St. Albans, the New York State Veterans' Home at Batavia, the\nNew York State Veterans' Home at Montrose or the Long Island State\nVeterans' Home to reserve a bed for a person eligible for medical\nassistance pursuant to title eleven of article five of the social\nservices law while he or she is temporarily hospitalized.\n (b) (i) Payments for reserved bed days shall be made at fifty percent\nof the Medicaid rate otherwise payable to the facility for services\nprovided on behalf of the person.\n (ii) Payment to a facility for reserved bed days provided on behalf of\nthe person for temporary hospitalizations may not exceed fourteen days\nin any twelve-month period.\n (iii) The person must have resided in the applicable State Veterans'\nhome for at least thirty days since the date of his or her initial\nadmission.\n (iv) Unless medically contraindicated, the applicable State Veterans'\nhome shall reserve the same bed and room the person occupied before\nbeing hospitalized or placed on a therapeutic leave of absence.\n (v) Reserved bed days under this subdivision are in addition to\nreserve bed days for therapeutic leave of absence under subdivision\ntwenty-five of this section.\n (vi) This subdivision shall apply subject to the availability of\nfederal financial participation.\n 26. Notwithstanding any inconsistent provision of law, for rate\nperiods on and after April first, two thousand ten, residential health\ncare facility Medicaid rates of payment shall not include reimbursement\nfor the cost of prescription drugs. Such reimbursement shall be in\naccordance with otherwise applicable provisions of section three hundred\nsixty-seven-a of the social services law.\n * 27. The commissioner is authorized to conduct an energy audit and/or\ndisaster preparedness review of residential health care facilities. Such\naudit or review shall explore the energy efficiency and/or disaster\npreparedness of the real property capital aspects of each facility and\ndevelop a cost/benefit analysis of potential modifications for each\nfacility. Such audit or review shall serve as the basis for an energy\nefficiency and/or disaster preparedness program to be developed by the\ndepartment in regulations. Participation in such audit or review shall\nbe a condition to participation in any such program developed as a\nresult thereof, and shall also be a condition to receipt of any funding\navailable under such program. Such program shall only be implemented if\nit is in the best financial interests of the state, as determined by the\ncommissioner. At least forty-five days prior to implementing such\nprogram, the department shall report to the senate and assembly health\ncommittees, the assembly ways and means committee and the senate finance\ncommittee the results of the energy audit authorized herein and the\nproposed eligibility criteria, funding sources, the manner in which\nsavings may be shared between the state and facilities and any other\ninformation requested by such committees about such program prior to the\ntransmittal of the report.\n * NB Repealed July 1, 2027\n