Legislative Bulletin: Nursing Home Staffing Minimum Bill Moves to Floor Calendars

April 30, 2021

Nursing Home Staffing Minimum Bill Moves to Floor Calendars

On Wednesday, the nursing home staffing minimum hours legislation A.7119 (Gunther)/S.6346 (Rivera) moved out of Assembly Ways and Means and onto the Assembly floor calendar. The bill was later advance to third reading for potential action on Monday, May 3^rd. In the Senate, the bill was also advanced to third reading and placed on the Senate calendar for Monday.

The bill seeks to establish standard nursing home staffing levels, requiring a minimum of 3.5 nurse staffing hours per resident day in nursing homes, which must be comprised of 2.2 certified nurse aide (CNA) hours and 1.1 registered nurse/licensed practical nurse (RN/LPN) hours. The remaining .2 hours can be filled as needed by providers.

We expect that this bill will be taken up for a vote in both chambers early next week. The next few days of advocacy will be critical for our opposition and we need members to be in frequent contact with legislators.

Please call your legislators TODAY, and urge them to oppose A.7119/S.6346! Members may use the below talking points to inform conversations with lawmakers. Our one-pager and memo of opposition can be shared via email with legislators or legislative staff following your conversations. When speaking with offices, try to get the personal email of a staff-person as this will increase the visibility of our materials and position.

Members should also be sure to fill out our staffing cost template, which we have updated slightly since our last action alert. The template allows members to assess what the impact of this legislation would be on your facility. If there is a negative impact, be sure to share that with lawmakers.

Finally, LeadingAge NY has created this pre-written email letter of opposition. After your calls, please use this online advocacy tool to easily contact your legislators with just a few clicks. This letter should also be shared with board members and colleagues to increase our advocacy reach.

Oppose Staffing Minimums Talking Points:

I am calling today to urge you to oppose the passage of A.7119/S.6346, which would establish rigid nursing home staffing hour minimums.
This 3.5-hour minimum nurse staffing measure, when broken up between CNAs and RN/LPN hours, will mean RN layoffs in order to reallocate funds to the hiring of more CNAs.
Nursing homes are already staffing to the best of our ability. We are unable to fill open positions for CNAs and are operating in the midst of a nationwide long-term care workforce crisis.
In New York, 60% of all health care job openings are openings for Personal Care Aides, Home Health Aides, and Certified Nurse Aides.
This mandate also dis-incentivizes the hiring of specialized professionals such as physicians, physician assistants, nurse practitioners and physical therapists as it depletes resources and creates rigid restrictions on how nursing homes can staff.
We need investment in the long-term care workforce to bolster and improve the care of our seniors, not more unfunded (or underfunded) mandates.
When New Jersey recently passed their own nursing home staffing hour requirement, their law was attached to a 10% increase in Medicaid rates for nursing homes.
The $64 million allocated in the FY 2021-22 budget is not nearly enough to cover this $260 million mandate.
Even before the pandemic, New York’s nursing home Medicaid reimbursement was among the worst in the country with a shortfall of $64 per resident day.
In 2019, the most recent year for which financial data is available, two-thirds of public and non-profit nursing homes in New York had negative operating margins.
While most other states provided increased funding to nursing homes during the pandemic, New York State proceeded with a 1.5% cut to provider Medicaid payments.
The $64 million connected to this legislation does not even cover the losses incurred from that 1.5% cut.
Federal Provider Relief Funds (PRF) have covered only about a third of a typical nursing home’s COVID losses.
Nursing homes continue to bear the cost of mandatory twice-weekly staff testing, inflated costs of personal protective equipment (PPE), and occupancy rates that have yet to bounce back to the relatively consistent thresholds they previously maintained.
Finally, the recently enacted State Budget established minimum spending mandates on nursing homes to address staffing issues. (70% percent of revenue on direct resident care and 40% of revenue on resident-facing workers). This new, additional staffing minimum hour legislation is proposed to go into effect on the same date as that budget measure and does not allow for any window of time to assess compliance or the effects of that “70/40” measure.
For these reasons, I urge you to oppose this legislation on nursing home staffing hour minimums.

Thank you in advance for your advocacy and please let us know of any questions or feedback from lawmakers. We will continue to keep members updated on the progression of this legislation.

LeadingAge NY in the News

Earlier this week, LeadingAge NY President and CEO Jim Clyne was quoted in a Spectrum News article, speaking out against the proposed mandate on nursing home staff minimum hours. In his interview, Clyne points out that over 50 nursing homes have closed in the last eight years and that this bill could force even more toward closure. “It feels like nursing homes are being scapegoated for the problems of the state and federal government and their inability to prepare for the pandemic,” Clyne said. The article goes on to discuss the statewide shortage of nurses and certified nurse assistants and the penalties that would be enforced if a provider is not able to meet the established minimums.

A quote from Senate Health Chair Gustavo Rivera was also included in the piece. The quote appears to mirror his comments from Monday’s Senate Health Committee meeting, where Rivera responded to Senate colleagues who brought up funding challenges and the financially distressed position of many nursing homes. “We feel that we're going to be able to get the money that's necessary to make sure that they can meet this requirement”, said Rivera. Of course, that statement acknowledges that the Senate has not already secured enough funding to meet this mandate, which LeadingAge NY estimates will cost providers statewide upwards of $260 million.

Compassionate Care Chapter Amendments Pass Both Houses

The Legislature has passed their agreed-upon chapter amendments to the compassionate care visitation law of 2021. The chapter amendments, A.6966 (Bronson)/S.6203(May), unfortunately did not adopt many of the suggestions that LeadingAge NY provided to the Governor and Legislature. As a result, the language still does not clearly require state regulations to align with federal guidance, law and regulations. Additionally, the bill’s provision for the adoption of regulations on an emergency basis without the opportunity for public input and comment are concerning.

These chapter amendments have not yet been delivered to the Governor to be signed into law. LeadingAge NY will continue to keep members apprised of any changes to visitation guidance and policies for nursing homes and adult care facilities on our weekly Monday calls and in our weekly Intelligence publication.

State Legislature Overturns Three Executive Orders

Both chambers of the state Legislature passed resolutions Wednesday repealing three of Governor Cuomo's executive orders issued under his COVID-19 emergency powers, marking their first formal rebuke of the governor's pandemic restrictions. The first of the orders to be repealed was the requirement for food to be served alongside alcoholic drinks. The second order rescinded a waiver allowing volunteers working on the state's pandemic response to avoid conflict-disclosure rules, and the last was for outdated restrictions on vaccination rollout that no longer apply now that shots are available to anyone 16 and over.

It is reported that the Legislature is discussing repeals of additional executive orders, including removing curfews on bars and restaurants. The Governor announced on Wednesday that he would be lifting those restrictions in mid-May but it seems that the Legislature may move to do so even sooner. The Governor issued another press release today, outlining the additional restrictions which he intends to lift by the end of next week.

New York to Lose One Congressional Seat

It was announced this week that due to 2020 census figures and the state’s relatively slow growth in population, New York will lose one congressional seat, slipping from 27 to 26 districts after next year’s elections. The Census Bureau said if 89 more residents had been counted, and other states’ population counts had remained the same, New York would not have lost the seat. The data released Monday showed New York had a total of 20,215,751 residents in 2020, up from 2010, but most other states grew more quickly.

On Tuesday, Governor Andrew Cuomo called on state Attorney General Tish James to review the state's legal options to challenge the decision. In a press conference in central NY, the Governor questioned the accuracy of the count given the slim margin of being off by only 89 residents. “We’re looking at legal options, because when you’re talking about 89, that could be a minor mistake in counting.” Said the Governor. As Politico has reported, this would not be the first time New York has raised questions about a Census count, but experience suggests that the odds of finding even just 89 more residents might be unlikely.

LeadingAge & LeadingAge NY Coronavirus Resources

LeadingAge NY continues to closely follow all COVID-19 news and we are doing our best to keep members informed of updates, recommendations and guidelines from the Department of Health (DOH).

LeadingAge NY and LeadingAge National Member resources are linked below.

LeadingAge NY Coronavirus Resources

LeadingAge NY COVID-19 Weekly Update calls – Mondays at 11 a.m. Click here to join the call from your computer, android or apple device. Or you can join the call by dialing in: 877 853 5257 (Toll Free); Webinar ID: 852 964 255.

LeadingAge National Coronavirus Resources Page

LeadingAge National Pandemic Playbook

COVID-19 Group in the MyLeadingAge Member Community

Coronavirus Daily Member Update calls – Mondays, Wednesdays and Thursdays from 3:30-4:30 p.m. Past call recordings are available here and you can register here for future calls.

Contact: Ami Schnauber; 518.867.8854; aschnauber@leadingageny.org

Sarah Daly; 518.867.8845; sdaly@leadingageny.org