As the nursing home workforce emergency worsens across the country, aging services organizations are pushing back on “illegal and unconstitutional” staffing laws.
LeadingAge New York, for example, on Monday filed a lawsuit seeking to overturn two state mandates: one requiring a minimum staffing ratio and another which dictates where nursing homes may direct their funds.
The organization calls the law an “arbitrary, punitive and unattainable” executive action.
In order to comply with state law, nursing homes would need an additional 12,000 nurses and aides, LeadingAge NY said in a statement.
This is the first lawsuit to challenge both the staffing minimum and spending mandate, James Clyne Jr., president and CEO of LeadingAge NY, said in an email to Skilled Nursing News.
Two other lawsuits have been filed only to challenge the spending mandate, Clyne said.
“The combination of poor policies, lack of funding, and a workforce that is in short-supply have resulted in a perfect storm of circumstances that leaves us with no other remedy than to seek the intercession of the courts,” Clyne said in the statement.
The state organization, which represents 5,600 not-for-profit operators including those in the nursing home sector, seeks a preliminary and permanent injunction prohibiting penalties for failure to comply with the mandates. It is also asking that the measures be declared unconstitutional and illegal.
Eighty of its members have joined the lawsuit, the organization noted in its statement.
LeadingAge NY listed 15 specific causes of action alleging the laws violate state and federal constitutions, are preempted by federal labor and nursing home laws, and violate Medicaid and Medicare requirements.
Under the staffing-minimum law, the state’s 600 nursing homes need to provide 3.5 hours of care per resident per day. Of the 3.5 hours, no less than 2.2 hours of care must be provided by a certified nursing assistant (CNA) or nurse aide. At least 1.1 hours of care must be given by a registered nurse (RN) or licensed practical nurse (LPN).
“Staffing mandates don’t work if they aren’t tied to funding mandates. Medicaid and Medicare cover almost 90% of the care in New York nursing homes, but at a level too low to meet the mandate,” Clyne told Skilled Nursing News.
Arkansas, Connecticut, Massachusetts and Rhode Island are among other states to adopt permanent increases to nursing home minimum staffing requirements after the pandemic began, according to a report from the Kaiser Family Foundation. Georgia adopted a permanent decrease to account for the staffing shortage, while Oregon and South Carolina have temporary decreases in place for the same reason.
A federal staffing minimum ratio is looming too, as part of the Biden administration’s reform initiatives. The Centers for Medicare & Medicaid Services (CMS) is slated to conduct a study into the right amount of hours and propose a new federal standard within one year.
In the lawsuit, LeadingAge NY alleges the ratios undermine professional discretion and fail to account for the varying needs of residents.
One example provided by the organization involves a facility that has residents requiring more acute care – and in turn more RNs and LPNs – which would still be in violation of the staffing minimum requirement with its lack of nursing aides.
Conversely, if a facility has a high number of residents with dementia, CNAs are needed on the floor for supervision and social activities, rather than RNs and LPNs, LeadingAge said. This facility would be out of compliance by not meeting its RN and LPN ratio.
The law also stipulates that 70% of a nursing home’s revenue is to be spent on direct resident care and at least 40% spent on staffing. It also states that nursing home operators in the state are required to return all profits in excess of 5% to the state, regardless of the quality of care or whether the operator sustained losses in prior years.
Facilities unable to meet the new requirements face up to $2,000 per day in penalties and seizure of revenues.
“The staffing level law penalizes nursing homes thousands of dollars per day for failure to meet these arbitrary and irrational targets. This mandate will only drain nursing homes of the very resources they need to recruit and retain more staff,” added Clyne.
While the 2021-22 and 2022-23 budgets allocated $64 million and $123 million for nursing home staffing, respectively, none of these dollars have been distributed to providers, according to LeadingAge NY.
Such requirements stand in stark contrast to a call for help from the National Guard. The state first deployed National Guard soldiers to its nursing homes during the Omicron surge due to historic staffing shortages and has extended their presence through the end of this month, reports say.
On a national level, more than 400,000 long-term care employees have left the workforce since the start of the pandemic, according to data from the Bureau of Labor Statistics (BLS).
A May report from the Office of the Assistant Secretary for Planning and Evaluation (ASPE) found between December 2020 and December 2021, skilled nursing facilities lost more than 145,000 workers. In comparison, hospitals only lost 45,000 during this timeframe.
“There is no army of surplus nurses and aides available to fill these positions,” explained Clyne. “There is a nationwide health care worker shortage that is disproportionately affecting nursing homes.”
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