Nursing Home CEO's Don't Want to Follow the Law; Seek Judge's Help in Ducking Minimum Staffing Requirements
ALBANY, N.Y.—Less than two months after New York's minimum-staffing requirements for nursing homes went into effect, a trade group has demanded that state courts block them.
LeadingAge NY, a trade group for nonprofit nursing homes, and about 80 of its members filed the suit May 23 in State Supreme Court. They are seeking an injunction to halt the enforcement of two laws enacted last year, which mandate that nursing homes provide residents an average of at least 3.5 hours a day of nursing care, and that they spend at least 70% of their revenues on direct patient care. It called them "arbitrary" and "inflexible."
The laws went into effect April 1 after being delayed by for three months by Gov. Kathy Hochul, who cited staff shortages while the Omicron variant of COVID-19 was rampant.
In its legal brief, LeadingAge argues that the staffing levels law has "no rational basis" because its conditions are impossible to satisfy: The group claims its members would need to hire 4,000 more nurses and aides during a "declared statewide health-care staffing emergency." It contends that the 3.5-hour-per-patient requirement — an average of at least 2.2 hours per patient of care by certified nursing assistants, and 1.1 hours from registered nurses or licensed practical nurses — do not account for variations among patients' needs, such as more nurse hours for the "clinically complex," more activity time for those with cognitive impairments, and less for healthier residents. It also argues that the law is unconstitutional because nursing homes are already "comprehensively regulated by federal law," and it "intrudes upon" that.
"These expectations are neither arbitrary nor infeasible," 1199SEIU, the main union representing nursing-home workers in New York, responded. "They are in fact the minimum we should expect for the elderly and frail who receive care, and the dedicated staff who work hard every day providing their residents with care and comfort."
"Most states have some kind of minimum," 1199 policy analyst Dennis Short told LaborPress. "The lowest-staffed facilities in New York are really low. Dangerously low."
In the third quarter of 2021, according to figures from the federal Center for Medicare and Medicaid Services, New York ranked 46th in the nation for hours of total nursing care per resident day, at 3.35 hours, and 35th for care by registered nurses, with 0.64 hours.
In the fourth quarter, the LeadingAge lawsuit states, more than 70% of the state's almost 600 nursing homes did not meet the 3.5-hour minimum. Some of the 80 in the suit averaged less than 3 hours per day, with a few as low as 2.5, it said. Others met the standards on average, but fell below them on as much as one-third of the 90 days — a few on more than half.
"That's why we have this law," says Short.
Illinois and Washington state require 3.4 hours of daily care per patient. California, Massachusetts, and Washington, D.C. have a 3.5-hour minimum, and Florida and Delaware set theirs at 3.6 hours, according to 1199.
New York has about 92,000 nursing-home residents. About 72% of patients' per-day costs are paid by Medicaid, and 18% by Medicare.
Nursing homes don't have a problem finding people to work there, Short says: They have a problem "keeping the workers that take the job." It's not unusual, he adds, for a facility to hire 10 or 15 people and have only one or two of them still there a month later. The turnover rate in New York State is more than 40% a year, according to 1199.
Providers that retain workers are more likely to meet staffing standards, while those comfortable with high turnover will struggle, Short says. While higher starting salaries would attract more workers, the ones he's talked to say working conditions are a more important factor in whether they stay. What makes them want to quit, he explains, is the stress that comes from feeling like they don't have a voice on the job and "feeling like they don't have the ability to do the work": If there's not enough staff, they won't have time to do the basics of feeding everyone, turning them over, and taking them to the toilet.
1199 says employers can increase the hours of care without hiring more staff by encouraging part-time workers to convert to full-time and giving incentives to work overtime and do weekend shifts, which are perennially hard to fill.
It's a hard job physically and emotionally, Short adds, but some employers are "actively working with the union to figure out how to improve staffing." One nursing-home group in the New York City area has reduced its turnover rate to 12%, and is trying to lower that.
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