The New York State Health Facilities Association this month asked state officials to repeal spending and staffing mandates adopted by the Department of Health, even as those officials consider stripping preset financial penalties from the regulations.
“The current regulations are ill-conceived and blind to the realities of the current healthcare staffing shortage and unprecedented inflation that are confronting nursing homes in New York State,” reads part of a letter dated Sept. 12 and shared with McKnight’s Long-Term Care News Friday. “Adopting these regulations will only compound the problem.”
The 45-day comment period for the proposals is due to end today.
NYSHFA told the New York State Public Health and Health Planning Council it has a number of concerns about the mandates, including making requirements retroactive to Jan. 1, 2022, the difficulty in meeting the staffing mandate in the current labor market, and the severity of penalties for non-compliance with regulations that have yet to be adopted.
The DOH in late August revised its minimum staffing regulations for nursing homes only a few months after implementing them. The draft revisions would remove a $300 per day minimum penalty if nursing homes can claim an “extraordinary circumstance,” such as union conflict or severe staffing shortages. There is still a $2,000 daily fine if facilities can’t show that they tried to hire enough workers to meet the standards, however.
“Every nursing home in the state of New York would love the opportunity to staff to 3.5,” NYSHFA president and CEO Stephen Hanse told McKnight’s. “The workers are just not there. They have other choices in the labor market and they’re opting for them. The self-serving rhetoric that’s there’s plenty of workers, the data doesn’t support that.”
Union representatives, in a press event last week, claimed ongoing staffing shortages are a failure of providers to offer sufficient pay and benefits in combination with better recruitment.
Legislation signed by Gov. Andrew Cuomo (D) in 2021 requires facilities to provide a daily average of 3.5 hours of care per resident by a nurse or nursing assistant. At least 2.2 hours of care must be provided by a certified nursing assistant, and at least 1.1 hours of care must be given by a licensed nurse.
Hanse acknowledged that providers need to continue improving their recruiting and retention but shared an example of the uphill climb: an NYSHFA member who is offering a $25,000 bonus for LPNs is still waiting for a taker. To properly recruit and retain, Hanse said, the state needs to commit to investing in nursing homes.
Instead, he said the opposite has happened.
“The prior administration cut Medicaid rates, they eliminated the cost of living increase for Medicaid,” he said. “In 2020 New York cut Medicaid reimbursements to nursing homes.”
Union officials pointed to a July report indicating that fewer nursing homes met the new staffing standard in 2022 than in 2021. Only 27% had an average staffing level of 3.5 hours or above.
Those numbers, however, may indicate the additional economic pressures operators are facing both in trying to hire as wages continue to rise and from a cost vs. reimbursement standpoint. It could foreshadow major weakness in a national staffing minimum that fails to provide funding for additional labor needs.
In New York, where Hanse claims providers have the nation’s worst Medicaid shortfall, the average cost for caring for a Medicaid patient is $265 daily and the average reimbursement is $211.
“If facilities are going to have to comply with the proposed mandates, then the State of New York has an affirmative obligation to recognize the realities of inflation and provide sufficient economic resources to facilities in order to enable them to attract and afford additional staff,” he said in the letter.
“We are saying New York has to cover the cost of care and when they cover the cost of care, that Medicaid rate increase has to 100% be dedicated to staff because then we can compete with the Targets of the world and the other retailers that are offering $20 an hour with shopping discounts,” Hanse said.
Another NYSHFA complaint is the severity of penalty for non-compliance especially because the mandates are retroactive to Jan. 1, 2022, and they rely on regulations that PHHPC hasn’t approved yet.
“It has taken DOH until this past August to draft the proposed regulations they are now asking you to implement retroactively to January 1, 2022,” said the letter. “This is unacceptable as the sanctions for non-compliance with both laws are extremely harsh and, in the case of the spending mandate, several facilities will be forced to repay to the state hundreds of thousands of dollars, and in some cases, millions of dollars for failure to comply with its mandates. The same is true of the staffing mandate which imposes penalties of up to $2,000 per day for non-compliance.”
Hanse said the state’s recent announcement of a $3,000 healthcare worker bonus is effectively a retention bonus.
“We need recruitment initiatives,” he said. “We need to get in the high schools, to partner with community colleges, to educate young women and men about the real fulfilling careers in long-term care.
“There’s no silver bullet to solving the long-term care staffing crisis, but the data doesn’t support the idea that there’s plenty of workers out there. There’s not plenty of workers who want to work in long-term care. They’re choosing other career paths. We need to incentivize people to come into long-term care and stay in long-term care.”
