New York Revises Nursing Home Minimum Staffing Penalties Just Months After Implementation

The New York State Department of Health (NYSDOH) is already revising its minimum staffing regulations for nursing homes just months after the policies were officially implemented in April.

A $300 per day minimum penalty was removed from legislation if there is an “extraordinary circumstance,” like severe staffing shortages or an ongoing union dispute, according to Stephen Hanse, president and CEO of the New York State Health Facilities Association (NYSHFA).

The law requires the state’s more than 600 nursing homes to provide 3.5 hours of care per resident per day.

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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).

A facility must show the state agency that it has tried to hire enough workers through increased wages and benefits “to the satisfaction of the department,” according to the revised regulations.

Those without a valid mitigating factor will have to pay fines up to $2,000 each day they don’t meet staffing levels.

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“Having a minimum fine when a provider is doing everything they can to get workers made no sense. That was a positive development,” Hanse said.

The state published revised guidance in the state register. Further changes could be in the pipeline as trade associations and operators weigh in for a 45-day comment period due to end Sept. 26, according to Hanse.

The nursing home sector has lost nearly 229,000 caregivers nationally since February 2020, according to the Bureau of Labor Statistics (BLS) data.

Prior regulation had the provider quantifying the labor shortage, however, in the revised regulation, the state commissioner of health will issue a determination on a quarterly basis as to whether an acute labor supply shortage exists throughout the state for certified nursing assistants (CNAs), licensed practical nurses (LPNs) and registered nurses (RNs), according to Hanse.

The DOH will issue a determination in conjunction with the state department of labor.

The news comes in the midst of the Centers for Medicare & Medicaid Services (CMS) planning a federal minimum staffing requirement for the sector. The agency is currently conducting a study to determine what that ratio might be, and will propose the requirements along with study findings some time next year.

Gov. Kathy Hochul had delayed the new staffing level requirements for three months from January as concerns grew around staffing challenges made worse by the omicron variant at the beginning of the year.

The requirements were the subject of lawsuits at the state and federal levels as well, filed by nursing home operators and trade associations like LeadingAge NY and NYSHFA, among others.

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.

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