Empty nursing home bed and wheelchair

With warnings of “system collapse” swirling, skilled nursing providers in New York are asking for a court injunction to stop a statewide minimum staffing mandate from being enforced.

A 2021 law requires nursing homes to provide 3.5 hours of nursing care per patient day or face daily fines of up to $2,000 daily. It went into effect in December 2022 after being repeatedly delayed due to pandemic conditions and serious labor shortages throughout the state.

Although there are no known cases of penalties so far, providers are increasingly worried about the inability to find enough workers to meet the new minimums. The state has agreed to a waiver process for operators who can demonstrate they’ve remained understaffed despite efforts to hire.

But health and labor department officials have not yet issued guidelines to steer waiver applications, New York State Health Facilities Association President and CEO Stephen Hanse told McKnight’s Long-Term Care News this week.

That’s despite an ongoing executive order from Gov. Kathy Hochul (D) declaring a healthcare staffing state of emergency  — and the fact that penalties can be applied retroactively to April 2022.

“That’s a tremendous concern,” Hanse said. “Every nursing home administrator and owner I speak to says they’d love to have 3.5 [hours of nursing per resident per day], but they can’t get the workers.”

Capacity crisis looms

With 75% of New York’s 614 nursing homes unable to meet the new minimums, many are opting to limit beds or close wings. That’s creating what Hanse describes as a “crisis in the healthcare continuum.”

“We’re seeing providers not accept admissions from hospitals,” he said. “Hospitals are calling, extremely upset, because the hospitals are looking to discharge folks who aren’t ready to go back to the community, who may need short-term rehab, but the facilities won’t take them because of this staffing mandate and the unknown of what could happen.”

Leading Age New York, which represents 80 facilities, has sued the state over the staffing mandate. A judge earlier this week allowed the organization to modify its complaint. In an update on its website, LeadingAge said the state’s attorney general plans to file a motion to dismiss the case.

But LeadingAge NY President and CEO Jim Clyne is hopeful the court will hold a hearing on both the injunction and dismissal motions after that paperwork is filed.

“Members are doing everything they can. They’re advertising, paying bonuses, paying sign-on bonuses, but the bottom line is if members can’t recruit enough staff, because they don’t want to get penalized, what they end up doing is closing down their beds,” Clyne told local media. “You know just like any other business would do: if you don’t have enough workers at your restaurant, you don’t serve breakfast.”

Citing the high costs of labor and the state’s long-standing policy of underpaying for care, the state’s associations are also seeking a 20% Medicaid increase.

A range of healthcare leaders have decried the situation, with the chief of the Hudson Headwaters Health Network acknowledging “the possibility of real system collapse.”

A state health department statement said “no enforcement actions have been taken to date, but the department will begin monitoring compliance as well as evaluating the broader impact on the industry.”

Hanse wants the Centers for Medicare & Medicaid Services to join New York officials in tracking the way the mandate plays out.

“I think CMS is watching this,” he said. “What this [mandate] is doing is limiting access to quality care. It is tremendously frustrating.”