[co-author: Rebecca LaPoint]
On April 1, 2022, New York’s Public Health Law § 2895-b regarding nursing home staffing levels went into effect. The law, initially meant to take effect on Jan. 1, 2022, was suspended by executive order in light of ongoing staffing shortages caused by the COVID-19 pandemic. On March 31, 2022, Gov. Hochul declined to extend the suspension. Nursing homes across New York must now comply with this law.
Staffing Levels
This legislation requires that, at a minimum, nursing home staffing standards include 3.5 hours of nursing care per resident per day. Of the 3.5 hours at least 2.2 hours of care per resident may be provided by a nurse aide or certified nurse aide, and at least 1.1 hours have to be provided by a licensed practical nurse (LPN) or registered nurse (RN). Effective Jan. 1, 2023, nurse aides1 will have to be certified to meet the minimum hourly requirements.
On a quarterly basis, the New York State Department of Health (DOH) will determine compliance with the minimum nursing staff requirements by comparing the daily average of the number of hours provided per resident, per day, using the most recent data available from the federal Centers for Medicare and Medicaid Services Payroll-Based-Journal (PBJ) and the facility’s average daily census.
Civil Penalties for Non-Compliance
The legislation requires DOH to establish regulations to impose civil penalties for non-compliance. The proposed regulations2 currently allow for up to a $2,000 penalty for each day that a facility fails to comply with the minimum standards. DOH will consider mitigating factors when assessing the penalty, including extraordinary circumstances facing the nursing home (e.g., national or state emergency that affected the facility, a natural disaster), the frequency and nature of non-compliance and whether an acute labor supply shortage exists within the particular region. The proposed regulations require the DOH to determine, on a quarterly basis, if any metropolitan or nonmetropolitan areas of New York State are experiencing an acute labor shortage of nurse aides, certified nurse aides, licensed practical nurses or registered nurses. The fact that a nursing home is located in an area experiencing an acute labor supply shortage, pursuant to this law, is not a mitigating factor unless the facility demonstrates that it has made reasonable attempts to procure sufficient staffing during the period of noncompliance, including incentivizing new personnel through increased wages and benefits and hiring from areas outside its location. Additionally, the facility must demonstrate that it has taken steps to ensure resident health and safety notwithstanding any labor supply shortage, such as by discontinuing admissions, closing units or transferring residents to another appropriate facility.
A nursing home cannot justify its lack of compliance with this law by stating that it was unable to secure sufficient staff if the lack of staffing was foreseeable and could be prudently planned for, or involved routine staffing needs that arose due to typical staffing patterns, typical levels of absenteeism or time off typically approved by the nursing home for various types of leave such as holidays, vacation or sick leave.
The proposed regulations also direct the DOH to determine which nursing homes are anticipated to be in compliance with minimum spending requirements and whether those homes must expend additional funds to comply with the minimum hours regulation. The nursing homes that will be required to expend additional funds to comply with the minimum hours regulation will be eligible to receive additional funds, subject to availability, to hire nursing staff necessary to achieve the minimum nursing staff requirements.
Public Disclosure Requirements
The law further requires nursing homes to post information regarding nurse staffing at its facility in a manner visible and accessible to its residents, their families and staff. A summary of the law must also be posted in proximity to the nurse staffing levels information.
What Next?
Of course, nursing home staffing is an intricate issue, made even more complex with the current challenges associated with recruiting and retaining qualified staff. In this atmosphere, nursing homes must continue to pursue strategies to maintain adequate staffing levels and comprehensively document their attempts to comply with this law.
A special thanks to Law Clerk, Rebecca LaPoint for her assistance in the preparation of this information memorandum.
1 A “nurse aide” is any person who is included in the nurse aide hour component of the Centers for Medicare and Medicaid Services (CMS) Payroll-Based Journal (PBJ) but has not been certified as a certified nurse aide. Please make note of when a nurse aide can be counted as part of nursing staff, as defined for the purposes of the PBJ.
2 Prior to final adoption, the proposed regulations must first be considered and approved by the New York State Public Health and Health Planning Council (PHHC), after which the regulations will be published in the State Register for public comments prior to final adoption.
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