Legislative Bulletin: Staffing Ratio Bill Passes Both Houses

May 7, 2021

Staffing Ratio Bill Passes Both Houses

Earlier this week, both the Senate and Assembly passed a bill requiring minimum staffing ratios for nursing homes. This comes on the heels of provisions included in the recently enacted 2021-22 State Budget that requires homes to spend 70 percent of revenue on “resident care” and 40 percent on “resident facing staff”. While the majority of members already meet the “40/70” spending requirements, most will experience a financial impact of the staffing ratios requirement. To assist nursing homes with staffing costs, the State Budget appropriated $64 million (inclusive of federal match).

Please note that the staffing ratios bill has not yet been signed into law and that both pieces of legislation call on the Department of Health (DOH) to promulgate regulations which would presumably address implementation details. We will be offering members informational materials and educational sessions on both of these provisions going forward. A summary of the 40/70 requirements is provided in our Budget Overview available here (see p. 11), and a brief overview of the final staffing ratio bill provisions is provided below:

As passed, the staffing ratio provisions will require that nursing homes provide at least 3.5 hours of nursing care per resident day, of which at least 2.2 hours must be provided by an aide and at least 1.1 hours by an RN or LPN. Monitoring for enforcement purposes is expected to be done using Payroll Based Journal (PBJ) data reported to the Centers for Medicare and Medicaid Services (CMS). Homes will be expected to meet the minimum requirements on a daily basis.

For purposes of counting RN and LPN hours, hours reported for DONs and nurses with administrative duties will be excluded. Aide trainees will be counted only in the first year; starting in 2023, only Certified Nurse Aides that are listed in the nursing home nurse aide registry will be counted. The legislation is effective Jan. 1, 2022 and requires the Department to establish civil penalties for facilities out of compliance which would begin April 1, 2022. In establishing penalties, DOH is required to consider mitigating factors such as catastrophic events, frequency of non-compliance, and the existence of acute regional labor shortages.

Members should note that the implementation details of both the staffing ratios and 40/70 provisions will be established through regulation. While it is unclear when and how the funding appropriated in the State Budget for nursing home staffing will be distributed, the Budget does limit that funding to homes that meet the 40/70 spending requirements.

LeadingAge New York’s Legal Service Committee is evaluating both issues for potential litigation. We will keep members informed of developments and will be sharing more information and resources in the coming days.

Senate and Assembly Debate Staffing Ratio Legislation

On Tuesday afternoon, the Legislature passed the nursing home staffing ratio legislation A.7119 (Gunther)/S.6346 (Rivera). Despite our best advocacy efforts, the bill passed just 12 days after it’s print date. Thank you to all our members that worked hard to connect with lawmakers over the past few weeks in opposition to this bill. In digital advocacy alone, over the course of just 5 days our online advocacy letter was used to send over 600 letters of opposition to lawmakers. The impact of that advocacy was clear in the lengthy floor debate that took place in both chambers. Many of our points and concerns were brought up on the floor and that is thanks to your participation in advocacy. For those interested, you can watch Tuesday’s Assembly floor debate here. Senate debate transcripts, once available, will be posted here.

Members can see how their legislators voted on the bill via the Assembly and Senate websites’ bill search function. The Assembly record of votes is available here and the Senate record of votes is available here. If your legislator is listed as voting “no” or “nay”, please be sure to give them a call or send an email thanking them for their opposition to the bill and their support of non-profit nursing homes. We will need their support going forward. The Legislature has suggested that they would ensure proper funding for the staffing ratio legislation, however, we will need to hold them accountable to that promise. Thank you for your committed advocacy in these critical last weeks of session.

Five Weeks Left of 2021 Legislative Session

As this whirlwind of a legislative session gradually comes to a close over the next five weeks, LeadingAge NY is continuing to pursue legislative priorities such as the role of the nurse in adult care facilities (ACF) and medication technicians in nursing homes. We are currently working on finding an Assembly sponsor for our Role of the Nurse legislation and we are finalizing language for a medication technician bill. We will continue to keep members updated on both of those efforts. In the meantime, we need to make sure legislators are aware of our push for allowing nurses to work as nurses and in ACF settings. Please take a moment to send the below digital advocacy letter to your lawmakers!

Role of the Nurse in ACF – Memo of Support

We also need to keep the pressure on in our opposition to a few bills that are still on the Senate and Assembly Calendars. The ACF Penalties bill A.196 (Gottfried)/S.1576 (Rivera), which proposes an increase in potential penalties for ACF violations from up to $1,000 per day to $2,000 per violation per day—or $3,000 per day for a repeat violation, has been laid aside in the Assembly and is on the Senate Calendar. Additionally, a bill that further restricts the use of psychotropic medications in nursing homes and ACFs, A.196 (Gottfried)/S.1576 (Rivera), has also been laid aside in the Assembly and is on the Senate calendar. Either of these bills could be taken up and pass on any upcoming session day, so we need to ensure lawmakers know our position. Please take a moment to send the below letters of opposition to your lawmakers!

The 2021 Legislative Session is scheduled to conclude on June 10^th and the final weeks of session are certain to come and go quickly. We ask members to please stay engaged with us on all legislative updates and action alerts that will come over the next two months. Your participation in advocacy thus far is likely the reason that the above two bills were laid aside in the Assembly. Thank you, as always, for your advocacy.

LTC Legislation on Next Week’s Senate Health Agenda

Last night, the Senate released their committee agendas for next week, proving that long-term care and covid-related issues are still front of mind for lawmakers. Most notably, the Senate Health agenda includes two bills of concern to LeadingAge NY. First, bill A.3131-A (Kim)/S.1080-A (Gounardes), which would create new requirements for the Department of Health (DOH) and nursing homes in the context of a disaster emergency that involves a disease outbreak. LeadingAge NY has vocalized our concerns about this legislation, as the bill’s terms are general and will survive the COVID pandemic. It should be amended to accommodate different types of infectious disease so that the state’s hands are not tied in responding to unknown, future infections. LeadingAge NY has laid out all of our concerns about this bill in our memorandum. The bill has already passed in the Assembly and is now moving in the Senate.

Another bill on the Senate Health agenda is A.179 (Gottfried)/S.2543 (Rivera), which would require payment of claims submitted under contract or agreement with Managed Long Term Care (MLTC) plans for home and community based long term services and fiscal intermediaries to include reimbursement for expenses relating to the provision of Personal Protective Equipment (PPE) for direct care workers and care recipients, and for an emergency inventory of a 90 day supply of PPE. In our memo of concern, LeadingAge NY stresses that such reimbursement must be in addition to base rates of payment and supplemental to current contracts or agreements.

The Senate Health Meeting is scheduled for Tuesday at 12 PM. If members share our concerns on these bills, they are encouraged to call their lawmakers and express your position, particularly if they sit on the Senate Health Committee. Our memos linked above will be useful in your conversations and can be used as talking points. Please feel free to contact Sarah Daly at sdaly@leadingageny.org with any questions or concerns.

New Bill Would Repeal Medicaid LHCSA RFO Process

Assemblyman Gottfried introduced legislation this week, A.7304, which repeals a provision established in last year's state budget requiring the Department of Health (DOH) to establish an authorization process for all Licensed Home Care Service Agencies (LHCSA) providing Medicaid services. This authorization process would likely mirror the Request for Offer (RFO) process carried out for fiscal intermediaries which resulted in a limited number of contracts awarded to serve the CDPAS program. LeadingAge New York supports this legislation and is currently working on a memo in support to be shared with members and legislators next week. Members are encouraged to reach out to LeadingAge NY policy team if you have any feedback on the bill.

U.S. Covid Outlook Reaches Most Hopeful Point Yet

After weeks of coronavirus patients flooding emergency rooms in Michigan, the worst Covid-19 hot spot in the nation, hospitalizations are finally falling. According to the New York Times, entire states, including Wisconsin and West Virginia, have reported zero new coronavirus deaths — a brief but promising respite from the onslaught of the past year.

Here in New York, the Governor has announced that on May 19, New York State will be reopening. Most capacity restrictions in New York State will be lifted, including restrictions on retail establishments, food services, gyms, fitness centers, amusement parks, entertainment, hair salons, barbershops, and offices. In his Monday briefing, Cuomo also updated New Yorkers on the positivity rates across the state. He said that the overall positive infection rate is 1.79%, which is down more than 50% over the last month. Of course, going forward the focus continues to be on getting people vaccinated, dispelling doubts and vaccinating the younger population.

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