As the nursing home sector nervously awaits a potential federal minimum staffing mandate, several states are implementing similar mandates of their own, with New York issuing initial letters of violation of state policy this week.
According to nursing home advocates, New York’s Department of Health sent out its first set of letters to nursing home providers on Wednesday.
Penalties assessed can be as much as $2,000 a day, and the letters are meant to give nursing homes a warning of violation of the staffing mandate, with labor information being based on Payroll Based Journal (PBJ) data. The letters also explain the process of appeal.
“The Department of Health is issuing these initial determination letters to providers showing them how … they came up short on CNAs, RNs or LPNs,” said Stephen Hanse, president and CEO of New York State Health Facilities Association (NYSFHA) – which represents hundreds of nursing homes in New York. “And if [facilities] believe they can demonstrate circumstances that can reduce the penalties … the provider may apply for a reduction in penalty using the process,” Hanse told Skilled Nursing News.
So far, two providers, who have shared these letters with Hanse, said that the state agency has given them 10 days to respond.
The Department of Health is allowing providers to mitigate the penalties by proving that they were in “aggravating circumstances” and also demonstrate that they were actively pursuing strategies to bolster their workforce, said Hanse.
For proof, nursing home operators will need to show: “I’ve tried to do everything. I’ve advertised. I’ve given bonuses. I’ve worked with organized labor. I’m in a county that is designated as [having a labor] crisis,” Hanse said.
It is yet unknown how many operators have received the letters, Hanse said. And the timing couldn’t be worse given that the state is still facing severe shortages in most of its counties, he said.
“All 614 of New York’s nursing homes would overwhelmingly welcome the opportunity to meet the mandate, but the workers are not there. And what the state has done is set up the industry for failure by implementing an unfunded mandate.” Hanse said.
New York’s staffing mandate first went into effect in the first quarter of 2022, with nursing homes failing to meet the minimum staffing requirements of 3.5 hours per resident per day (HPRD) liable to face penalties. New York’s nursing home staffing mandate also requires 2.2 HPRD be provided by certified nursing assistants (CNAs), 1.1 HPRD provided by licensed practical nurses (LPNs) or registered nurses (RNs).
New York Gov. Kathy Hochul agreed to reduce the penalties for facilities facing a workforce shortage recently.
Pennsylvania’s Case
Meanwhile, Pennsylvania implemented new staffing ratios this year of 2.87 HPRD, up from 2.7 HPRD, that went into place on July 1. And next July, the ratio will increase yet again to 3.2 HPRD.
According to Zach Shamberg, president and CEO of Pennsylvania Health Care Association (PHCA), the state has created problems for nursing homes.
“Providers, for the most part, are meeting or exceeding the requirement. However, the ratios are posing the biggest issue because they not only require more workers dedicated to all shifts, but there has been little flexibility from our Dept. of Health during this transition and inconsistency in how the Department is assessing the requirement,” Shamberg said.
Pointing to New York and New Jersey, Shamberg said Pennsylvania needs to show some flexibility.
“Pennsylvania needs to look at what is happening in the states surrounding us and realize that the regulatory bodies need to work with providers, rather than constantly demanding unrealistic goals. There needs to be flexibility, particularly for providers that have exhausted all efforts to staff their centers while continuing to provide continuity of care for their residents.”
In the midst of these labor issues, Pennsylvania’s Governor signed a budget Thursday that “shorts providers millions of dollars” to fund this staffing requirement in 2024, Shamberg said.
“This brings us full circle on our concerns of a costly mandate that will now transform into an unfunded mandate. What has happened in Pennsylvania is a microcosm of what we fear will happen at the federal level: an unattainable requirement that creates operational harm because the federal government –– and, subsequently, the states –– refuse to adequately fund the mandate.”
Companies featured in this article:
New York State Health Facilities Association, NYSHFA, Pennsylvania Health Care Association
