Cautionary Tale: Staffing Mandate Collides with Nursing Home Labor Crisis and Referral Bottleneck

As a federal minimum staffing standard looms over the nursing home industry, operators and their advocacy organizations look to learn from existing state mandates to better understand how things will play out on a national stage.

New York is providing a cautionary tale at the moment, with a mandate exacerbating access to care, industry professionals warn. And the repercussions extend across the continuum, putting hospitals and other providers in ever-more precarious positions.

Post-acute operators in the Empire State are being forced to limit new admissions to comply with staffing ratios, creating bottlenecks, providers told Skilled Nursing News. Based off PBJ data, 75% of the state’s 614 nursing homes cannot meet the state’s 3.5 hour staffing mandate, and from 2019 to 2022, the number of empty nursing home beds in the state increased to 6,700, LeadingAge NY President and CEO Jim Clyne told Skilled Nursing News.


It’s an issue that is of pressing concern nationally.

Average length of stay in hospitals increased 19.2% last year, compared to 2019, according to data cited by the American Hospital Association. And average length of stay jumped 24% among patients being discharged to post-acute providers. Furthermore, these patients are generally sicker and require more complex care as compared with pre-pandemic case-mix levels.

Hospitals took a financial beating in 2022, with consultancy Kaufman Hall projecting 68% of hospitals would end the year operating at a loss. The post-acute bottlenecks are part of the problem, as hospitals are not reimbursed for patients stuck in beds while awaiting discharge to post-acute facilities.


While the AHA is pressing for a temporary Medicare per diem, post-acute care providers are raising alarms about the effects of a federal staffing minimum — even as CMS this week announced that the agency is making progress toward a proposal.

In New York, post-acute operators and advocates are pushing for changes to alleviate problems with access to care. Meanwhile, other states appear to be taking note of these issues. Illinois last week moved to delay penalties for its nursing home staffing mandate for two years.

Mandate fallout in NY

New York, in November 2021 approved its staffing minimum mandate for nursing homes. The rule applies to certified nursing assistants (CNAs), licensed practical nurses (LPNs) and registered nurses (RNs).

Under the mandate, facilities must provide 3.5 hours of care per resident per day; no less than 2.2 hours of care must be provided by a CNA or nurse aide, and at least 1.1 house must be provided by an RN or LPN.

Gov. Kathy Hochul temporarily suspended the mandate at the beginning of 2022, while nursing homes and major trade groups in the state filed a lawsuit to block the law from going into effect. The mandate eventually went into effect in April of last year.

Stephen Hanse, president and CEO for the New York State Health Facilities Association (NYSHFA), said the mandate ultimately impacts access to care. What’s painted in New York’s staffing minimum is an ideal, he said, that doesn’t take in the reality of what is happening in the sector.

“For the state to blindly move forward with a staffing mandate in the face of a staffing crisis is unconscionable. Residents throughout the state are unable to access necessary care,” he said.

Stuart Almer, president and CEO of Gurwin Healthcare System in Long Island, said facilities have to do what is safe and appropriate given staffing shortages and ratios – that includes limiting admissions to adhere to staffing ratios.

“We are concerned as a good provider, to be careful about accepting residents if we’re not staffed sufficiently … we take it very seriously,” said Almer. “It’s getting much harder to get placed in facilities of choice. I know this because I receive calls on a daily basis from individuals wanting to come to our facility and we are all turning many folks away.”

Almer believes it’s only going to get worse unless there’s proper state funding in the form of a 20% Medicaid increase. Gurwin manages two nursing homes in the state.

LeadingAge’s Clyne said members are left with no other choice but to cut admissions when they’re unable to get more staff in the building. He agrees that is creating the bottleneck in hospital discharges.

“It’s an immediate problem, at least in New York, that the government is just not addressing,” said Clyne.

Hospitals are opposed to the state staffing minimums in nursing homes as well, Hanse and Clyne said, with many patients stuck in a hospital bed that need to be moved to the nursing home.

Hospital systems are the “first ones to feel the pain” from staffing ratio fallout, added Clyne.

“Mandated staffing minimums and referral bottlenecks, unfortunately, go hand-in-hand in the state of New York,” Hanse told Skilled Nursing News. “They have the bed capacity, but they don’t have the staff. The fear is, if you don’t have that staff you will be subject to severe and unjust penalties by the [state] Department of Health.”

Having hospitals help staff nursing homes isn’t feasible either, Almer said, with acute care systems feeling the staffing shortage on their end as well. He has seen SNF staff lost to nearby hospital systems too.

“The hospital piece alone is a problem for us. And that’s at all levels of staff, not just in nursing – it’s therapists, recreation, staff, housekeeping; we just can’t compete,” said Almer.

Another factor in the bottleneck issue stems from hospital systems closing or selling their own nursing homes, according to Almer. Many acute care systems in the state have viewed nursing homes as a “problem business” in the past, an ancillary to shed. Now, that business is a priority as a result of discharge challenges.

NY adds safety nets

New York’s “ill-advised” staffing mandate “fails to reflect the reality” of the staffing and referral crisis the state is facing, according to Hanse. The narrow criteria regarding which staff fall under the mandate does a disservice to nursing homes that employ or contract with therapy providers, behavioral health specialists and activity coordinators, among other roles.

“They failed to acknowledge other critical employees of nursing homes that provide hands-on direct care,” added Hanse.

Legislators appear to have started acknowledging that, offering waivers to operators and earmarking state dollars to support the staffing ratio, although that funding hasn’t been released to those in the sector, Hanse and Clyne said.

The 2021-22 and 2022-23 budgets allocated $64 million and $123 million for nursing home staffing, respectively.

In response to the situation, the state Department of Health is in the process of developing waivers for nursing home operators, preventing fines as facilities struggle to recruit and retain sufficient staff. Currently, failure to meet the mandate could result in up to $2,000 in fines per day, according to Hanse.

Operators would need to prove they’re making a good faith effort to recruit workers, advertise bonuses, work with local job corps and departments of labor, he said.

“It remains to be seen what those waivers will be, how they would work,” added Hanse. “I know the Department of Health is working with the New York State Department of Labor on a regional basis to analyze the workforce shortages that are occurring throughout New York, especially in upstate New York.”

Time-sensitive, long-term solutions needed

The state needs to work in partnership with providers, with the nursing home workforce, to implement short-term, mid-term and long-term policies to stabilize and grow the workforce, and first up is a Medicaid increase and education initiatives in state high schools, Hanse said.

New York was already seeing a long-term care workforce shortage prior to the pandemic, he said; that is compounded with “significant underfunding” of Medicaid.

Hanse provided a snapshot of Medicaid costs in the state: average cost of 24-hour care is $265 per resident per day. Average statewide reimbursement is $211, leaving a $54 shortfall in cost of care for Medicaid beneficiaries.

To put these costs into context, Medicaid covers almost 75% of nursing home days, Hanse and Clyne said.

In the near term, state chapters of AHCA and LeadingAge call for a 20% increase to Medicaid to at least compete in the labor market with the “Amazons of the world,” to truly pay a living wage and retain workers.

“I think the legislature is realizing that the failed policies of disinvestment in long-term care really hurt the most vulnerable in our communities. It’s going to take a multitrack approach, from both a Medicaid funding standpoint, and from a workforce standpoint,” noted Hanse.

Some mid- and long-term solutions, Clyne added, would be to allow medication technicians to work in long-term care facilities, and scholarships for nurses.

More than 30 states allow CNAs to act as medtechs and pass out medications to residents. It’s one of the few things the state can do immediately to address the staffing shortage, he said.

Nurse scholarships will take time to bear fruit.

“That’s a great idea, but that pays off in four years,” Clyne said. “That doesn’t pay off tomorrow when hospitals in Rochester, Syracuse are on diversion because the beds are full of people who can’t be discharged.”

Expectations for the national stage

Hanse hopes CMS is looking at what is happening in New York, and recognizing that a one-size-fits-all approach won’t work on a grand scale. And, the agency would need to provide waivers that take into account the workforce shortage.

Another consideration for CMS – broadening the number of positions that count under the mandate.

“If you open it up to people who truly provide that care, mandates may be attainable,” added Hanse, referring to nursing home positions outside of CNAs, RNs and LPNs. “How can you argue a physical therapist is not providing direct care to nursing home residents? They are physically touching them and working with them and manipulating their joints and for their betterment.”

Assembly Bill A10515 does just this, adding five different therapy roles to the New York staffing mandate. Originally announced during the 2021-2022 legislative session, Hanse said there are plans to reintroduce the bill.

Other states like Florida already have broader staffing mandates that include such roles.

Clyne said fallout from a national staffing mandate really depends on existing Medicaid coverage as well, and if the shortfall between costs and reimbursement is as much as New York, that state is going to see similar repercussions.

The Medicaid rate isn’t the only factor, Clyne said, but it’s “by far the biggest” piece of the puzzle that allows operators to compete with other companies in the community. Other scenarios, he said, involve rural areas and their unique difficulties in recruiting and retaining staff.

“It’s all tied to reimbursement,” noted Almer. “[Hospitals] have shed their own nursing homes, now they have to work with all of the other nursing homes that exist. If reimbursement is lacking, I think you see the trend that’s occurring.”

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