DOH Clarifies That Nursing Home Contracts Survey Applies Only to Future Contracts
The Department of Health (DOH) provided answers via email to LeadingAge NY questions regarding the nursing home contracts and related entity surveys released under Dear Administrator Letter (DAL) NH-22-15 and later clarified that the contracts survey is intended to apply only to contracts with an execution date 90 days or more in the future. According to a conversation with Valerie Deetz at DOH and an email received by a LeadingAge NY member from the nhinfo@health.ny.gov mailbox, the contracts survey is prospective in nature – it applies only to future agreements and letters of intent, and not to previously executed agreements. This survey will be open indefinitely for 90-day notices of impending contracts.
In addition to the clarification above, LeadingAge NY received, on Wed., July 20th, the following answers to its questions from DOH and circulated them via email to members:
Q: How does the Department define “common or familial ownership” under PHL § 2803 x?
A: Common ownership means the nursing home and another entity or person are both owned by the same entity or person. For example, if a nursing home and a hospital are both owned by the same parent company, the nursing home and the hospital have common ownership.
Familial ownership is not defined in PHL § 2803 x. However, under PHL § 238 “‘Immediate family member’ includes spouse; birth and adoptive parents, children and siblings; stepparents, stepchildren and stepsiblings; fathers-in-law, mothers-in-law, brothers-in-law, sisters-in-law, sons-in-law and daughters-in-law; and grandparents and grandchildren.” The Department believes the Legislature intended “familial ownership” to have this type of meaning.
Q: What about nursing homes owned by State or local government? Are other parts of the same governmental entity considered to have common ownership?
A: No. For example, it is not necessary for a New York State Veterans’ Home to disclose that it receives services from the New York State Office of General Services.
Q: How does the Department define “summary of all contracts” under PHL § 2829?
A: A summary is information that can be understood by members of the public so that members of the public find out how the nursing home spends money. It answers the question “How is the Medicaid and Medicare money being spent by this nursing home?” The statute does not limit the types of contracts that must be included, but the nursing home is only required to provide a summary, not a comprehensive listing of all contracts.
Q: Do the disclosure requirements in DAL NH 22-15 apply to public and non-profit nursing homes?
A: Yes, it applies to all nursing homes licensed and regulated by the NYS Department of Health.
Q: How should the blanks indicating “first name”, “last name,” etc. be completed on the if the disclosure is for a corporate, religious, and governmental entity?
A: This is a repeating section and more than one individual can be listed. The person or persons with responsibility for the corporate, religious, or governmental entity should be listed. For familial ownership, the name of the family member should be listed.
Q: Regarding the disclosure of contracts survey,
Is this survey to be completed now, attaching all staffing, management, operational, consulting, etc. contracts? Do you want the maintenance, landscaping, equipment, snow removal, office supplies, EHR, auditing, elevator repair, etc. contracts? This will require the upload of hundreds of contracts for each facility and many hours of facility staff work.
A: Please list each contract. Uploads will not be accepted.
Q: In the context of a healthcare workforce emergency, and minimum staffing requirements, how are nursing homes to wait 90 days prior to implementing a staffing agency contract?
A: PHL § 2803-x requires the nursing home operator to notify the Department and the State Office of the Long-Term Care Ombudsman at least 90-days prior to executing a letter of intent or other contractual agreement related to staffing agencies or other entities involved in the operations of the facility. Nursing homes should always be planning in advance for their emergency needs, including staffing and consider length of time to execute such contract.
Q: What is the deadline for the completion of these surveys?
A: 30 days from the date of the Letter. So, July 23, 2022. Seeing as that is a Saturday, the Department will accept a response until the close of business the following Monday, July 25, 2022.
Q: The DAL and the statute (PHL § 2829) require nursing homes to post and “detail rates for each non-governmental payer source.” Does this include contracts with health plans? We are told that health plan contracts include provisions prohibiting disclosure of negotiated rates. There is also a concern that such disclosure might be anti-competitive and could drive down rates paid by health plans for nursing home care.
A: Yes, disclosure should include private, Medicaid, Medicare (range), and managed care rates.
Q: Under both surveys, the “operator” is required to notify DOH and attest to the survey contents. In the Family Comm Survey, the operator is asked: Does the operator of the Nursing Home have a familial or common relationship with any owning entity providing services to the operator or facility?
A: For purposes of completing this disclosure survey, up to two names can be included on the Attestation Line. The operator is the individual(s) responsible for the establishment of policies and the management and operation of the nursing home.
Members are reminded that the initial surveys were due on Mon., July 25, 2022. More information about DAL NH-22-15 and the surveys was previously provided here.
LeadingAge NY recognizes that the 90-day notification requirement is operationally infeasible in many contexts and that the survey questions are not clearly drafted. We will be working to rationalize this requirement and to obtain further clarification.
Contact: Karen Lipson, klipson@leadingageny.org