Could NY's nursing home staffing law lose its teeth under proposed rule change?

Sep. 22—A long-awaited law requiring minimum staffing standards for nursing homes went into effect this year in New York, geared toward ensuring safe staffing and boosting resident care after the Covid-19 pandemic exposed major issues within the industry.

A recently proposed change within the law, however, could remove the statute's teeth, labor unions and consumer advocates said.

Updated draft regulations issued in August would eliminate the minimum penalty of $300 per day for nursing homes found not to be in compliance with the law. With that proposed change, a nursing home could face no monetary penalty if it can prove mitigating circumstances existed that hindered its ability to comply with the staffing standards.

The regulation was changed after a public comment period in which the state Health Department received remarks from the Greater New York Hospital Association and the Healthcare Association of New York State, two trade associations representing health care facilities, that suggested the state "impose penalties of $0 for non-compliance if there are mitigating factors that prevent compliance."

"It's a shame that the Department has capitulated to industry interests when the law and the genesis of the law are clearly intended to ensure that nursing home residents in New York State have appropriate minimum staffing every day," said Richard J. Mollot, executive director of the Long Term Care Community Coalition, a New York nonprofit organization focused on bolstering quality of care in nursing homes and other residential settings. "If we don't hold providers accountable for that in a meaningful way, it will never happen."

Major labor union, 1199SEIU United Healthcare Workers East, which represents thousands of health care workers in Western New York, said the potential change undermines the intent of the law and further weakens enforcement of the staffing standard.

Health Department spokesperson Jeffrey Hammond said the proposed minimum penalty regulation was amended to provide the department "greater discretion in assessing penalties."

He also noted the revised rule was published with a 45-day public comment period that ends Monday, meaning members of the public still have a few days left to submit comments on the changes. He also said the Health Department will publish another assessment of public comment before it adopts a final rule that makes the regulation permanent.

What does the law call for?

The staffing law and a parallel minimum investment resident care spending law were passed last year by the State Legislature and signed by then-Gov. Andrew Cuomo. Both laws went into effect April 1, three months later than originally planned due to staffing challenges that worsened during the winter's omicron surge.

The staffing law — many states have similar requirements — calls for the state's more than 600 nursing homes to provide 3.5 hours of nursing care per resident per day. Of those 3.5 hours, no less than 2.2 hours of care must be provided by a certified nursing assistant or nurse aide and at least 1.1 hours of care must be supplied by a registered nurse or licensed practical nurse.

The state Health Department will determine compliance with the law via a quarterly average, using staffing data from the federal Centers for Medicare and Medicaid Services payroll-based journal and a nursing home's average daily patient census.

And while the minimum penalty of $300 per day could be removed, the Health Department can still impose a penalty of up to $2,000 for each day in a quarter that a nursing home fails to meet the minimum nursing staff requirements — unless mitigating factors exist.

Examples of mitigating factors include natural disasters, a national emergency affecting the nursing home and, perhaps most noteworthy, an acute labor supply shortage of nursing positions in the area where the nursing home is located. On that last point, the Health Department, working with the Labor Department, plans to issue a determination on a quarterly basis as to whether a labor supply shortage of nursing positions exists in any region of the state.

Nursing home trade groups have come out against the law, calling it impossible to comply with given ongoing staffing struggles and filing lawsuits against the state that are ongoing. They have also called for the state to boost its Medicaid rates for nursing homes, since New York's Medicaid program covers nearly 75% of the days of care nursing homes deliver. This year's budget includes a 1% Medicaid rate increase for all providers, including nursing homes.

No penalties have been issued yet under the staffing law because federal daily staffing data for the second quarter — the first three-month period in which the law was in effect — has not yet been released.

What next?

In addition to fighting against removing the minimum $300-a-day penalty, labor union 1199SEIU and others also are hoping to see changes in how the Health Department will determine compliance by the time a final rule is adopted.

By basing compliance with the law on a quarterly average, there is concern that nursing homes will be able to staff below minimum daily standard on some days — such as on weekends — but still meet the quarterly standard, noted Dennis Short, a senior policy analyst with 1199SEIU.

"You could meet the quarterly standard but still on a regular basis be below the standard," he said.

In the first round of public comments that were due Jan. 18, the state received several comments from entities, such as the Long Term Care Community Coalition, New York State Nurses Association and Statewide Senior Action Council, that requested the penalties for noncompliance be assessed on a daily, not quarterly, basis.

In its responses, the Health Department said a "quarterly average test is a fair and effective method to determine compliance."

The public may submit comments on the draft regulations until Monday by sending them to regsqna@health.ny.gov.

After that, the Health Department will assess the comments and then present them publicly before final rules are adopted.

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