Garfunkel Wild was mentioned in the Skilled Nursing News April 7, 2021 article entitled “New York to Cap Nursing Home Profits at 5%, Require Operators to Spend 70% of Revenue on Direct Care. ” The article referenced Garfunkel Wild’s Legal Alert “New York Budget Requires Nursing Homes Spend 70% Of Revenue On Direct Resident Care.”

In the Skilled Nursing News article, Garfunkel Wild’s analysis of the budget was referenced “The 5% profit cap applies to the difference between total revenues and all operating and non-operating expenses. The budget will require operators to spend 70% of revenues on direct patient care costs, including 40% on staffing; the so-called “minimum spending requirement” applies to expenses such as laundry, housekeeping, nursing, and ancillary services.”

Click here to read the full article.


Thursday, April 8, 2021

Terence Russo, Partner / Director, Garfunkel Wild, P.C.
Alicia Shickle, President of the Documentation and Coding Compliance/Audit Division, Garfunkel Health Advisors, Inc.

Garfunkel Wild’s Terence Russo and Garfunkel Health Advisors Alicia Shickle will present at the Medical Society of New Jersey (MSNJ) Webinar – Review of 2021 E/M Guideline Changes and Information Blocking New Rules on April 8, 2021. The webinar will discuss:

2021 E/M Guideline Changes – Are You Leaving Money on the Table?

Many Physicians are still struggling when it comes to implementing these historic changes into their day to day workflow. Monitoring the impact on reimbursement and making ongoing adjustments is critical to achieving payment integrity. This webinar will provide practical guidance on the most important aspects of the new rules, and discuss best practices to reduce the chances of lost revenue and other compliance risks.

New Information Blocking Rules – Will you be ready to comply?

This section of the webinar will explain the key provisions of the rule and answer your most pressing questions, including:

  • What do providers need to do to prepare for the new Rule?
  • What does ONC’s Information Blocking Rule prohibit?
  • How will the Information Blocking Rule change business operations with respect to sharing patient information?
  • Are there any exceptions to the new Information Blocking Rule?

For more information, click here.


Under the recently passed New York State Budget for Health and Mental Hygiene (A3007C/S2507C) and beginning January 2022, New York State residential health care facilities will be required to spend at least 70% of their revenue on direct resident care, with 40% of revenue focused on resident-facing staffing (“Minimum Spending Requirements”).  For example, if a facility has a total revenue of $1,000,000.00, the facility must spend at least $700,000.00 on direct resident care, with $400,000.00 of that amount spent on resident-facing staffing.

Significant Highlights:

  • The new Public Health Law § 2828 (“Section 2828”) requires that, if a facility’s total operating revenues exceed its total operating and non-operating expenses by more than 5%, the facility must return the excess revenue to the State.
  • Facilities failing to meet either minimum spending requirement must pay the State the difference between its actual spending and the required minimum spending amount.
  • The Department of Health may collect these excess funds through Medicaid deductions and offsets or bringing a lawsuit against the Facility.
  • Residential health care facilities do not include continuing care retirement communities or facilities that are authorized to primarily care for medically fragile children, people with HIV/AIDS, persons requiring behavioral intervention or neurodegenerative services, or other specialized populations that the Department may designate.
  • The Department may waive these requirements for certain facilities unable to comply due to “unexpected or exceptional circumstances that prevented compliance.” The Department can also exclude extraordinary revenues and capital expenses resulting from a natural disaster (or some other circumstances as determined by the Department) from its calculations.

Important Definitions:

Revenue: the total operating revenue from or on behalf of facility residents, government payers, or third-party payers, to pay for a resident’s occupancy at a facility, resident care, and the operation of the facility as reported in the facility’s cost reports; but shall exclude the average increase in the capital portion of a facility’s Medicaid reimbursement rate from the previous 3 years.

Expenses: all operating and non-operating expenses, before extraordinary gains, reported in a facility’s cost report.

  • Section 2828 expressly carves out expenses related to any related party transaction or compensation that exceeds fair market value, as well as any employee compensation for any person not actively engaged in or providing services at the facility.

Direct resident care spending: To satisfy a facility’s 70% Minimum Spending Requirement, the following:

  1. CAN BE INCLUDED: nonrevenue support services (e.g., laundry, housekeeping, and nursing administration; ancillary services (e.g., laboratory, PT/OT and speech/hearing therapy); and program services (e.g., adult day health care).
  2. CANNOT BE INCLUDED: administrative costs (other than nurse administration), capital costs, debt service, taxes (other than sales taxes or payroll taxes), capital depreciation, rent and leases, and fiscal services.

Resident facing staffing: all staffing expenses in the ancillary and program services cost report cost centers. Section 2828 requires the Department to deduct 15% of resident-facing staffing costs associated with contracted services provided by RNs, LPNs, or CNAs from the total calculation of the amount spent on resident-facing staffing and direct resident care.

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Should you have any questions regarding the above, please contact the Garfunkel Wild attorney with whom you regularly work, or contact us at

Click Here to download the Legal Alert.


Optimizing Payor Contracts: How to Proactively Address Future Obstacles

April 14, 2021

Speaker: Debra A. Silverman  and Amanda Ramirez-Kelmer


Garfunkel Wild’s Debra A. Silverman and Amanda Ramirez-Kelmer will present at the Healthcare Financial Management Association (HFMA) Webinar – Optimizing Payor Contracts: How to Proactively Address Future Obstacles on April 14, 2021.

This webinar will detail ways in which hospitals and providers can maximize the revenue that they receive through their participating provider contracts with managed care organizations and minimize risk of overpayment recoveries down the road. The presenters will provide recommendations with respect to both contract language and operations based on their experience representing providers with respect to managed care plans. The webinar will provide attendees with a model ‘checklist’ to help them assess their current managed care contracts.

For more information, click here.


Real Estate Associate Cynthia Thomas was named to New York Real Estate Journal’s 2021 Women in Real Estate, Professional Services Spotlight.

Cynthia was recognized for, among other things, her role in closing on assets that have faced some of the biggest hurdles and obstacles presented by COVID-19 in 2020. In the nursing home industry, which has endured tremendous upheaval, she was able to close several transactions while battling through myriad issues presented by COVID-19, such as staff and patient safety and conducting normal diligence in the face of visitation bans.

Click here to read Cynthia’s featured profile.