NY enforcing staffing minimums at nursing homes. They won't say which ones aren't keeping up
New York nursing homes that violated a minimum-staffing law received warning letters recently, but key details of the long-delayed enforcement effort remain shrouded in secrecy.
State Health Department officials declined to provide the names of facilities that got violation notices, citing in part a process that allows facilities to challenge the ruling.
State regulations, however, make no mention that names of noncompliant nursing homes should be withheld from the public due to potential challenges. USA TODAY Network New York has filed a public-records request for noncompliant facility names and related information.
Meanwhile, advocates and relatives of nursing home residents have repeatedly urged regulators to begin enforcing the staffing-minimum law, which state lawmakers approved in 2021 and touted as crucial to improving resident care in the pandemic ravaged industry.
And a resurgence of COVID-19 recently has underscored the stakes of efforts to limit the number of understaffed nursing homes. The COVID-19 death toll linked to nursing homes has totaled 340 so far this year, adding upon more than 15,000 deaths earlier in the pandemic.
Yet despite these mounting concerns, nursing home trade groups have asserted about 75% of facilities remain unable to meet the staffing minimum requirements, citing in part flaws in those standards and national labor shortages.
Why NY nursing home staffing law was delayed
New York’s staffing law enforcement action, which began July 10, had previously been delayed repeatedly amid ongoing legal challenges filed by nursing homes.
Some health officials also voiced concerns that enforcing the staffing minimum could deepen financial struggles faced by many nursing homes, as well as the resulting backlog of patients at hospitals awaiting placement at overwhelmed long-term care facilities.
How NY is enforcing staffing law
On June 22, state Health Commissioner Dr. James McDonald issued a workforce determination that suggested nursing homes could face less severe penalties than the $2,000-per-day cap set by law.
McDonald ruled an acute labor shortage impacted nursing homes statewide and spanned from April 2022 through the end of that year. He cited in part state labor data and executive orders that asserted emergency shortages of health workers existed at the time.
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That labor shortage ruling is one of several factors that nursing homes can use to challenge fines for violations during that period, according to the law.
But it remains unclear how much fines could be reduced, if at all. To challenge penalties, nursing homes must also show they took steps — such as offering bonuses or consulting with labor officials — to try to attract and retain workers despite the labor shortage.
What does the NY nursing home staffing law require?
The state law, which was approved by former Gov. Andrew Cuomo, requires every facility to maintain daily staffing hours equal to 3.5 hours of care per resident per day by a certified nurse aide, licensed practical nurse or registered nurse.
The law also requires nursing homes to spend at least 70% of revenue on direct resident care, and at least 40% of revenue on resident-facing staffing.
What nursing home resident advocate says
Richard Mollot, executive director of the Long Term Care Community Coalition, described the labor shortage declaration as "an extremely unfortunate loophole for seniors and their families, who have a right to expect decent care" at nursing homes.
The delays in enforcement of the staffing-minimum law, he noted, "have had a terrible impact on residents, both long-term stay and short-term rehab."
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"We have been hearing terrible stories from across the state that conditions have not been this bad in 40 years, since the federal Nursing Home Reform Law was passed to address horrific nursing home scandals." he added.
Further, Mollot asserted the staffing minimum level set by New York — while an improvement — remains "insufficient to meet the basic clinical needs of nursing home residents" and provide effective infection control.
What NY nursing homes say
Despite unknowns surrounding potential fines, financial penalties of any size have “significant potential to harm nursing homes,” said Stephen Hanse, president and CEO of the Health Facilities Association, representing hundreds of nursing homes in New York.
Many nursing homes, Hanse said, already struggle to offset the gap between the cost of delivering care and Medicaid reimbursement rates.
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That gap currently sits at $54 per patient per day, stemming from a measure 15 years ago that ended inflationary cost-of-living adjustments to nursing home Medicaid rates in New York, he added.
James Clyne Jr., president and CEO of nursing home trade group LeadingAge, noted many nursing homes “just barely miss” the staffing minimum requirements, but remain in the dark regarding how their efforts to follow the law during labor shortages will impact fines.
“I have no idea what (state health officials) think is an adequate response,” he said.
This article originally appeared on Rockland/Westchester Journal News: How is NY enforcing nursing home staffing minimums? What we know
