New York’s nursing home providers were at odds with the state regarding the severity of the workforce shortage as enforcement of the state’s staffing mandate began Monday.
Nursing homes can face fines of up to $2,000 per day for not being in compliance with a rule requiring 3.5 hours of direct care per patient per day. The rule specifies that 2.2 of the hours must be provided by certified nursing assistants and at least 1.1 hours must be done by either a registered nurse or a licensed practical nurse.
Providers and advocates have been fighting the 2021 law since it was created, and Gov. Kathy Hochul (D) initially suspended the law until April 2022. State officials still had not been enforcing the rule, but that changed with the issuance of a memo on June 30.
“Every nursing home in the state would welcome the opportunity to staff at 3.5 hours or higher,” Stephen Hanse, president and CEO of the New York State Health Facilities Association, told McKnight’s Long-Term Care News on Monday. “The workers are not there so to impose a mandate in the face of a staffing crisis without any funding is a recipe for disaster.”
According to the state, though, there is no longer a workforce crisis.
Hochul issued an executive order declaring a “statewide healthcare staffing disaster emergency” that began Sept. 27, 2021, and ended last month. The order acknowledged the “severe understaffing in hospitals and other healthcare facilities” that impacted caregiving. That declaration put on hold the initial implementation of the staffing mandate and any enforcement mechanisms.
A memo sent to LeadingAge New York members from the organization that was provided to McKnight’s noted that the state’s health commissioner has yet to conduct a quarterly review to determine whether “an acute labor supply shortage of nurse aides, CNAs, RNs, or LPNs exists.” The memo indicates that Hochul’s executive order might come into play for facilities that request a waiver to mitigate the daily penalty for noncompliance. Forms for nursing homes to apply for a waiver have not yet been posted to the Department of Health’s website, the note said.
Although facilities may point to “an acute labor supply shortage” when requesting a waiver, LeadingAge notes that nursing homes will be required to show “reasonable attempts to procure sufficient staffing” during the period of non-compliance. Those efforts include boosting wages and expanding hiring searches beyond a facility’s “metropolitan and nonmetropolitan area” or halting admissions.
Three-quarters of the state’s 614 nursing homes have struggled to meet the staffing mandate, according to the provider associations. Hanse said that he and others met with US Sen. Chuck Schumer (D-NY) and US House Minority Leader Hakeem Jeffries (D-NY) in June to discuss the planned, but not yet formally proposed, federal staffing mandate. Hanse told McKnight’s that the conversations at the federal level have included discussions of funding the rule and extended the definition of “caregiver” beyond nursing staff to include therapists.
The Center for Medicare & Medicaid Services said earlier this year that the staffing rule would be announced in the spring, but the agency has yet to roll out the proposal.
LeadingAge New York has filed a lawsuit to stop the staffing mandate, arguing that the rule is “arbitrary and unfeasible.” The association expects a decision to be issued before the end of the year.