N.Y. Comp. Codes R. & Regs. Tit. 10 §§ 86-2.14

Current through Register Vol. 46, No. 45, November 2, 2024

Section 86-2.14 - Revisions in certified rates

(a) The State Commissioner of Health may consider only those applications for revisions of certified rates which are based on:

(1) cost reports filed pursuant to section 86-2.2(e) of this Subpart. Such rate shall become effective on the first day of the 12-month period referred to in section 86-2.2(e) of this Subpart;

(2) six-month cost reports filed pursuant to sections 86-2.10(k)(6) and/or 86-2.15(e) of this Subpart. Such rate shall become effective on the first day of the six-month period referred to in sections 86-2.10(k)(6) and 86-2.15(e) of this Subpart;

(3) errors made by the department in the rate calculation process and errors in data submitted by a medical facility which have been brought to the attention of the commissioner within the time limits prescribed in section 86-2.13 of this Subpart. This paragraph shall not apply to the patient assessment process as contained in section 86-2.30 of this Subpart;

(4) significant increases in the overall operating costs of a residential health care facility resulting from the implementation of additional programs or services specifically mandated for the facility by the commissioner;

(5) significant increases in the overall operating costs of a residential health care facility resulting from capital renovation, expansion, replacement or the inclusion of new programs or services approved for the facility by the commissioner;

(6) requests for waivers of any provisions of this Subpart for which waivers may be granted by the commissioner as prescribed in specific sections;

(7) alternative means of allocating costs in the cost-finding process which have been submitted with the annual cost report (RHCF-4) and approved in accordance with section 456.2(b) and (c) of this Title; and

(8) requests for relief from the provisions of section 86-2.25 of this Subpart relating to compensation of other than the administrative type of services rendered by an operator or relative of an operator. Such request must contain sufficient documentation to demonstrate that the services rendered are necessary and are reasonably related to the efficient production of such services.

(b) An application by a residential health care facility for review of a certified rate is to be submitted on forms provided by the department and shall set forth the basis for the appeal and the issues of fact. Documentation shall accompany the application, where appropriate, and the department may request such additional documentation as determined necessary. An application based upon error shall be submitted within the time limit set forth in section 86-2.13 of this Subpart. Beginning with appeals for rate year 1983 and, on an annual basis thereafter for all subsequent rate year appeals, the commissioner shall act upon all properly documented applications for a rate year based upon errors within one year of the end of the 120-day period referred to in section 86-2.13(a) of this Subpart. The commissioner shall act upon all other properly documented applications for a rate year appeal submitted pursuant to paragraphs (1) and (3)-(7) of subdivision (a) of this section within one year of the end of the aforementioned 120-day period or the receipt of such applications, whichever date is later. In the event the department requests additional documentation, if the additional documentation requested is not received within 45 days from the request date, then the rate appeal shall be deemed denied by the commissioner. The one-year time limit shall not apply to rate appeals submitted pursuant to section 86-2.13(b) of this Subpart.

(1) The affirmation or revision of the rate upon such staff review shall be final, unless within 30 days of its receipt a hearing is requested, by registered or certified mail, before a rate review officer on forms supplied by the department. The request shall contain a statement of the factual issues to be resolved. The facility may submit memoranda on legal issues which it deems relevant to the appeal.

(2) Where the rate review officer determines that there is no factual issue, the request for a hearing shall be denied and the facility notified of such determination. No administrative appeals shall be available from this determination. The rate review officer, where they determine that there is factual issue, shall issue a notice of hearing establishing the date, time and place of the hearing and setting forth the factual issues as determined by such officer. The hearing shall be held in conformity with the provisions of Public Health Law, section 12-a and the State Administrative Procedure Act.

(3) The recommendation of the rate review officer shall be submitted to the Commissioner of Health for final approval or disapproval and recertification of the rate where appropriate.

(4) The procedure set forth in this subdivision shall apply to all applications for rate reviews which are pending as of April 1, 1978. Rate appeals filed prior to April 1, 1978 will not be required to be resubmitted subsequent to April 1, 1978.

(c) Any modified rate certified under paragraphs (3) and (4) of subdivision (a) of this section shall be effective on the first day of the month in which the respective change is operational.

(d) In reviewing appeals for revisions to certified rates the commissioner may refuse to accept or consider an appeal from a residential health care facility:

(1) providing an unacceptable level of care as determined after review by the State Hospital Review and Planning Council;

(2) operated by the same management when it is determined by the department that this management is providing an unacceptable level of care as determined after review by the State Hospital Review and Planning Council in one of its facilities;

(3) where it has been determined by the commissioner that the operation is being conducted by a person or persons not properly established in accordance with the Public Health Law;

(4) where a fine or penalty has been imposed on the facility and such fine or penalty has not been paid.

In such instances the provisions of subdivision (c) of this section shall not be effective until the date the appeal is accepted by the commissioner.

(e) Any residential health care facility determined after review by the State Hospital Review and Planning Council to be providing an unacceptable level of care shall have its current reimbursement rate reduced by 10 percent as of the first day of the month following 30 days after the date of the determination. This rate reduction shall remain in effect for a one-month period or until the first day of the month following 30 days after a determination that the level of care has been improved to an acceptable level, whichever is longer. Such reductions shall be in addition to any revision of rates based on audit exceptions.

(f)

(1) For purposes of subdivision (b) of this section, the commissioner shall establish an appeal review priority for all properly documented rate year appeals from providers experiencing financial distress, defined as having a negative operating margin based on the most recent cost report data available.

(2) Appeals from providers experiencing financial distress shall be prioritized by taking into account factors including, but not limited to: operating loss divided by patient days, magnitude of appeal as a percentage of annual revenue, and the number of rate years potentially impacted by the appeal, and proceeding through the prioritized list until all appeals of qualified providers have been processed. Rate appeals from providers who are not experiencing financial distress will be processed after the completion of rate appeals from providers experiencing financial distress and shall be prioritized by taking into account factors including, but not limited to: operating profit divided by patient days, magnitude of appeal as a percentage of annual revenue, and the number of rate years potentially impacted by the appeal.

(3) Rate Appeals Cap. The department may process all rate appeals up to the annual monetary cap set in paragraph (b) of subdivision (17) of section 2808 of the Public Health Law. If the department reaches the monetary cap without adjudicating all appeals for that year the remaining appeals may be processed in subsequent years.

(g) In order to promote labor stability in the residential health care facility industry, and to minimize the disruption of care to patients in residential health care facilities in the event of labor disputes, multi-year agreements are to be encouraged.

(1) In the case of a written multi-year commitment by a residential health care facility, a substantial number of whose employees are not represented by a labor organization, to increase compensation to all or a class of its employees on or after April 1, 1978, but before December 31, 1978, such facility may petition for a determination as to the adequacy of future revenues to meet the increased labor costs resulting from such multi-year commitment as provided in this paragraph.

(i) The petition brought by the facility shall be heard by a labor cost review panel to be comprised of one representative designated by the commissioner, one representative designated by the petitioner and a third party mutually agreed upon by the petitioner and the department (to be selected from a list of independent hearing officers designated as a commissioner's representative).

(ii) Such facility may file a petition each time an annual incremental labor cost occurs as a result of a multi-year commitment; however, no petition by or on behalf of any facility may be filed less than 12 months after the preceding petition. Any subsequent petition shall relate only to those incremental labor costs since those covered by the last petition.

(iii) The labor cost review panel shall determine the total amount by which such residential health care facility making a multi-year commitment has had increased labor costs as a result of the commitment, and shall determine the extent, if any, to which the current and projected revenues factored for labor costs are inadequate to cover such increased labor costs, provided that the panel may make no award to compensate for any disallowances. In reaching such determination, the labor cost review panel shall apply criteria agreed to by the petitioner and the department. Any areas of disagreement in the criteria shall be resolved by the panel. All such criteria and resulting recommendations are to be consistent with applicable Federal and State laws, rules and regulations.

(iv) Where the labor cost review panel determines that the multi-year commitment has increased labor costs beyond a facility's current and projected revenues factored for labor costs, the department shall certify a revised per diem Medicaid rate for such facility. No facility shall be entitled to an increase in rate with respect to the labor costs attributable to the commitment apart from the adjustment provided by this subdivision.

(v) Any facility availing itself of these procedures does so with the understanding that it is choosing said procedure as an alternative to any other administrative or judicial review, and agrees that no other administrative or judicial review will be sought from a determination of the labor cost review panel.

(vi) The procedures of the labor cost review panel shall be governed by section 12-a of the Public Health Law, except that the parties to the proceeding may agree, with the consent of the panel, to modify the procedures.

(vii) In order to activate these procedures, the facility must file a petition within 60 days of the date of promulgation of the multi-year commitment or any increase in labor costs resulting therefrom. Upon the filing of the petition, an independent hearing officer, who has been designated as the commissioner's representative, will recommend whether the commitment is reasonable. The hearing before the labor cost review panel will be convened within 30 days from the date on which the petition is received at the Office of the Deputy Director for Health Care Financing, Office of Health Systems Management, Empire State Plaza, Albany, NY.

(viii) The decision of the labor cost review panel shall require the concurrence of two of the three members hearing the matter. A decision shall be issued within 30 days from the conclusion of the hearing or final submission of any additional documents, whichever is later.

(ix) Any revision in the per diem rate of payment for government programs resulting from application of this subdivision shall be effective on the effective date of the increased labor cost as provided in the multi-year commitment.

(x) The decision of the panel will not cause the imposition of labor cost ceiling disallowances, except that ceilings for overstaffing shall be applied.

(2) In the case of a multi-year collective bargaining agreement entered into by a residential health care facility, or an association of facilities, with a representative of their employees on or after April 1, 1978, but before December 31, 1978, the association of residential health care facilities, a member facility or any facility found by the commissioner to be affected by the agreement may petition for a determination as to the adequacy of future revenues to meet the increased labor costs resulting from such collective bargaining agreement as provided in this paragraph.

(i) The petition brought by the association or facility shall be heard by a labor cost review panel to be comprised of one representative designated by the commissioner, one representative designated by the petitioner and a third party mutually agreed upon by the petitioner and the department.

(ii) Within 21 days after receipt of the first petition concerning any collective bargaining agreement, the commissioner shall promulgate a list of facilities found to be affected by the collective bargaining agreement. Any facility found so affected shall be provided with notice of, and an opportunity to present evidence before the labor cost review panel. Such facility must request such opportunity within 21 days after receipt of the notice. Any facility not on the list shall have a period of 21 days from promulgation of the list to petition the commissioner to be included as a facility affected.

(iii) The facilities, or the association on behalf of individual facilities, may file a petition each time an annual incremental labor cost occurs as a result of a collective bargaining agreement; however, no petition by or on behalf of any facility may be filed less than 12 months after the preceding petition. Any subsequent petition shall relate only to those incremental labor costs since those covered by the last petition.

(iv) The labor cost review panel shall determine the total amount by which each residential health care facility affected by the agreement has had increased labor costs as a result of the agreement, and shall determine the extent, if any, to which the current and projected revenues factored for labor costs are inadequate to cover such increased labor costs, provided that the panel may make no award to compensate for any disallowances. In reaching such determination, the labor cost review panel shall apply criteria agreed to by the petitioner and the department. Any areas of disagreement in the criteria shall be resolved by the panel. All such criteria and resulting recommendations are to be consistent with applicable Federal and State laws, rules and regulations.

(v) Where the labor cost review panel determines that the collective bargaining agreement has increased the labor costs beyond a facility's current and projected revenues factored for labor costs, the department shall certify a revised per diem Medicaid rate for each of the affected facilities. No facility shall be entitled to an increase in rate with respect to the labor costs attributable to the agreement apart from the adjustment provided by this subdivision.

(vi) Any facility or association availing itself of these procedures does so with the understanding that it, or in the case of an association, its members, are choosing said procedure as an alternative to any other administrative or judicial review, and agrees that no other administrative or judicial review will be sought from a determination of the labor cost review panel.

(vii) The procedures of the labor cost review panel shall be governed by section 12-a of the Public Health Law, except that the parties to the proceeding may agree, with the consent of the panel, to modify the procedures.

(viii) In order to activate these procedures, the association or facility must file a petition within 60 days of the date of ratification of the collective bargaining agreement or any increase in labor costs resulting therefrom. Upon the filing of the petition an independent hearing officer, who has been designated as the commissioner's representative, will recommend whether the commitment is reasonable. The hearing before the labor cost review panel will be convened within 30 days from the date on which the petition is received at the Office of the Deputy Director for Health Care Financing, Office of Health Systems Management, Empire State Plaza, Albany, NY.

(ix) The decision of the labor cost review panel shall require the concurrence of two of the three members hearing the matter. A decision shall be issued within 30 days from the conclusion of the hearing or final submission of any additional documents, whichever is later.

(x) Any revision in the per diem rate of payment for government programs resulting from application of this subdivision shall be effective on the effective date of the increased labor cost as provided in the collective bargaining agreement.

(xi) The decision of the panel will not cause the imposition of labor cost ceiling disallowances, except that ceilings for overstaffing shall be applied.

(3) Any reimbursement to a facility pursuant to this subdivision shall be dependent upon approval of Federal financial participation by the United States Department of Health, Education and Welfare.

(4) This subdivision shall expire on December 31, 1981.

N.Y. Comp. Codes R. & Regs. Tit. 10 §§ 86-2.14

Amended New York State Register October 30, 2024/Volume XLVI, Issue 44, eff. 10/30/2024