2010 New York Code
PBH - Public Health
Article 28 - (2800 - 2822) HOSPITALS
2801-E - Voluntary residential health care facility rightsizing demonstration program.

§  2801-e.  Voluntary  residential  health  care  facility rightsizing
  demonstration program. 1. The voluntary residential health care facility
  rightsizing demonstration program is  intended  to  be  a  flexible  and
  innovative  approach  to  dealing  with  excess  capacity in residential
  health care facilities  due  to  changes  in  care  delivery  and  other
  factors.  The  demonstration  is  designed to promote the development of
  less restrictive and less  institutional  long-term  care  programs  and
  services;  discourage  inappropriate  nursing  home placements; generate
  medicaid savings to the state and  localities;  and  assist  residential
  health  care  facilities  with  the  financial implications of declining
  occupancies.
    2. Notwithstanding any inconsistent provision of law or regulation  to
  the  contrary, a residential health care facility, as defined in section
  twenty-eight hundred one of  this  article,  may  apply  to  temporarily
  decertify  or  permanently  convert  a portion of its existing certified
  beds  to  another  type  of  program  or  service  under  the  voluntary
  residential  health care facility rightsizing demonstration program. The
  commissioner  may  approve  temporary  decertifications  and   permanent
  conversions  of  beds  totaling  no  more than five thousand residential
  health care facility beds on a statewide basis under this program.  Such
  approvals  shall  reflect, to the extent practicable, participation by a
  variety of residential health care facilities based on  geography,  size
  and other pertinent factors.
    3. For this purpose, a residential health care facility may submit, in
  a  format  and  within  timeframes  specified  by  the  commissioner, an
  application to temporarily decertify beds,  or  to  permanently  convert
  beds  under  this  demonstration. Each such application shall include an
  estimate of the cost savings to the Medicaid program that  would  result
  from  the proposal within the applicant facility. The commissioner shall
  begin soliciting applications within one  hundred  eighty  days  of  the
  effective   date   of  this  section,  provided  however  that  multiple
  solicitations  for  proposals  may  be  issued.  In   considering   such
  applications, the commissioner shall take into account:
    (a) the potential for improved quality of care and quality of life for
  consumers;
    (b)  the  likelihood that the proposal would result in cost savings to
  the Medicaid program;
    (c) residential health care facility  capacity  and  estimated  public
  need in the planning area in which the applicant is located;
    (d)  the  availability  of  less  restrictive  and  less institutional
  long-term care programs and services, as defined in this section, in the
  planning area; and
    (e) the  potential  for  improving  the  financial  viability  of  the
  applicant facility or facilities.
    4. Any reductions in the number of operational residential health care
  facility  beds resulting from this demonstration shall not be considered
  to create additional public need for residential  health  care  facility
  beds under this article.
    5. (a) Subject to the approval of the commissioner and the director of
  the budget, a residential health care facility may temporarily decertify
  beds  for  up  to  five  years.  Such beds will remain on the facility's
  license during and after the five-year period.  Temporarily  decertified
  beds  may,  with the prior approval of the commissioner and the director
  of the budget be reactivated in whole or in part at any time on or after
  one year after the effective date of temporary  decertification  by  the
  facility  and  may  be  reactivated  with  the  prior  approval  of  the
  commissioner and the director of the budget after the  five-year  period
  has   ended.   A  residential  health  care  facility  that  reactivates

temporarily decertified beds may not  temporarily  decertify  such  beds
  again  during  the  demonstration.  The  commissioner  may  require  the
  immediate reactivation of such beds if necessary to respond to emergency
  situations  and/or  facility  closures.  In  the  event the commissioner
  requires such reactivation, the prohibition on temporarily  decertifying
  beds after a reactivation of beds shall not apply.
    (b) Notwithstanding any inconsistent provision of law or regulation to
  the contrary, for purposes of determining medical assistance payments by
  government  agencies  for  residential  health  care  facility  services
  provided pursuant to title eleven of article five of the social services
  law for facilities that have temporarily decertified beds:
    (i) the facility's capital cost reimbursement  shall  be  adjusted  to
  appropriately take into account the new bed capacity of the facility;
    (ii)   the   facility's   peer  group  assignment  for  indirect  cost
  reimbursement shall be based on its total certified beds less the number
  of beds that have been temporarily decertified; and
    (iii) the facility's vacancy rate shall be calculated on the basis  of
  its  total  certified  beds  less  the  number  of  beds  that have been
  temporarily decertified for  purposes  of  determining  eligibility  for
  payments  for reserved bed days for residents of residential health care
  facilities, provided, however, that such payments for reserved bed  days
  for  facilities  that  have  temporarily decertified beds shall be in an
  amount that is fifty percent of the otherwise applicable payment  amount
  for such beds.
    6.  (a)  Subject  to  the  approval of the commissioner, a residential
  health care facility may permanently convert beds  to  less  restrictive
  and  less  institutional long-term care beds, units or slots, including,
  but not limited to, assisted living program, adult care facility,  adult
  day  health  care,  long-term  home  health  care  program  and  managed
  long-term care demonstration beds, units or  slots.  For  this  purpose,
  residential health care facility beds may be converted to beds, units or
  slots  in the selected program or service on a one-to-one or other ratio
  or basis.  A residential health care facility that permanently  converts
  beds  under  this subdivision relinquishes its license for the converted
  beds.
    (b) If the facility seeks to permanently convert beds and neither  the
  facility  nor  its  sponsoring  organization  is licensed to provide the
  program or service, it must obtain the written approval  of  the  public
  health  council,  if  required, pursuant to section twenty-eight hundred
  one-a of this article or article thirty-six of this chapter to  initiate
  the new program or service.
    (c)  The  commissioner may, as necessary, waive existing methodologies
  for determining public need under this article,  article  thirty-six  of
  this  chapter  and  article seven of the social services law, as well as
  enrollment limitations under section forty-four hundred three-f of  this
  chapter,  to accommodate permanent conversions of beds to other programs
  or services on the basis that any such increases in capacity are  linked
  to  commensurate  reductions  in  the  number of residential health care
  facility beds.
    (d) For purposes of adjusting the  capital  component  of  residential
  health  care  facility  rates  of  payment  determined  pursuant to this
  article  for  facilities  that  have  permanently  converted  beds,  the
  commissioner  shall appropriately take into account the new bed capacity
  of the facility.
    7. No later than January first, two thousand seven,  the  commissioner
  shall  provide  the  governor, the majority leader of the senate and the
  speaker of the assembly with a written evaluation of the  program.  Such
  evaluation  shall  address  the  overall effectiveness of the program in

reducing costs, encouraging placements  in  appropriate  long-term  care
  settings  and  enhancing  the  availability of less restrictive and less
  institutional  long-term  care  programs  and  services,   and   contain
  recommendations relative to extending and/or expanding the program.