Legislative Bulletin: New York State Reaches Final Budget Agreement
April 8, 2022
New York State Reaches Final Budget Agreement
Last night, after a week delay in enacting a final budget, we saw the Legislature begin to print and pass the State Fiscal Year (SFY) 2022-23 Final Budget legislation. Governor Kathy Hochul also held a press conference from the Capitol’s Red Room yesterday afternoon, announcing some highlights of a final budget agreement.
However, budget work is on-going. As of this writing, the Revenue and Public Protection and General Government budget bills have been passed by both the Senate and Assembly. The Transportation and Economic Development budget has been passed by the Senate, but is now being taken up by the Assembly, and the Legislative and Judiciary budget bill is in print.
Of particular importance to our members, the Health and Mental Health (HMH) budget bill has been printed and passed in the Assembly. The HMH budget is currently being debated on the Senate floor. However, several key pieces that are important to our members are not covered in the health budget, including the healthcare worker bonuses and funding that might be provided to different long-term care services for workforce initiatives (Fair Pay for Home Care, nursing home workforce funding, etc.).
LeadingAge NY, along with many other advocates and stakeholders, are patiently awaiting the release of the Education, labor, Housing and Family Assistance (ELFA) budget bill and the Aid to Localities (ATL) legislation, which will shed much-needed light on workforce and housing proposals.
LeadingAge NY is hard at work analyzing all budget legislation as it is made available, and we will be providing a brief overview of what is included in the final budget as soon as possible. Our Final Budget Update, to come later today or over the weekend, will provide highlights of the Final SFY 2022-23 Budget as it relates to senior housing and long-term/post-acute care. Following the publication of our Final Budget Update, we will be providing a comprehensive final budget overview and memo to our full membership on Friday, April 15th.
We thank all of our membership for your hard work in advocating with us through-out this budget process. We know it was a long one! Please know that any successes we see in this final budget agreement would not be possible without your efforts and partnership in advocacy. And most importantly, we thank you for all you continue to do for the individuals in your care. We will have more budget information and analysis available for you shortly.
Spring into Action! Connect with lawmakers over April Recess
While we can indulge in a brief sigh of relief once this year’s budget work is concluded, our work for the 2022 legislative session is far from over. Session is scheduled to conclude on June 2nd, and over the next two months, lawmakers will be taking up new (and old) initiatives and zeroing in on some of the issues that were not addressed in the final spending plan.
The Legislature is scheduled to be on its April Recess from the conclusion of budget work until April 25th. The legislative recess poses a great opportunity for LeadingAge NY members to connect with lawmakers back home in the district. Members can connect with legislators in the district by attending public events that are being held, calling the district office and asking for an in-person meeting, or inviting them to an outdoor event at your facility.
It is incredibly impactful for lawmakers to see the hard work you are doing first-hand, and get to meet your residents and staff directly - particularly if you have a new capital project to show them or a new program that is up and running. However, considering covid-19, we strongly recommend that members ask lawmakers to wear masks and test negative for COVID-19 prior to visiting your facility.
Although we haven’t even closed the books on budget yet, it is certain that we will need your continued advocacy through-out the remainder of this session. When connecting with legislators in the district, thank them for the funding that is being provided in this year’s budget for long-term care and aging services, but also express your persistent workforce and financing challenges. Say that you are grateful for the support and attention to LTC that has come this year, but that the sector still needs significant resources and support. We need allies in Albany to help us improve the system that serves our older adults and people with disabilities.
New One-Pager on Nursing Home Staffing Mandates
As of April 1st, new nursing home staffing mandates on minimum staffing levels and minimum direct care spending requirements are in effect. Nursing homes are expected to comply with new nurse staffing mandates, despite the fact that the Governor acknowledges there is a healthcare workforce crisis with her most recent Executive Order, “Statewide Disaster Emergency Due to Healthcare Staffing Shortages in the State of New York” (E.O. 4.7). and nursing homes have received no financial assistance from the state for COVID-19 response or for investments in staffing. The 2021-22 Budget allocated $64 million for nursing home staffing, but none of those dollars has been distributed to providers.
In response to this and the ongoing budget discussions, LeadingAge NY created another nursing home staffing mandate one-pager, which was shared with the full Legislature on Wednesday afternoon. Lawmakers received the material just before the Assembly conferenced on several open issues, including the health budget. This material was developed to compliment another issue brief which was created and distributed last week on the staff needed for nursing homes to come into compliance.
State's Minimum Nursing Home Staffing Standards Take Effect
Governor Hochul issued an executive order (EO) last week, EO 4.7, extending the Statewide Disaster Emergency Due to Healthcare Staffing Shortages, but ending the suspension of penalties for failure to comply with nursing home minimum staffing levels and minimum direct care spending requirements. In other words, these nursing home mandates took effect on April 1st. At the same time, the Governor extended a series of regulatory flexibilities to assist health care providers in appropriately staffing their facilities and agencies.
The nursing home minimum staffing law requires facilities to provide at least 3.5 hours per resident per day of combined nurse and aide services, including at least 2.2 hours of aide care and at least 1.1 hours of nurse care. The minimum direct care spending law requires facilities to spend at least 70 percent of their operating revenue on direct care expenses and 40 percent on resident-facing staffing. It also imposes a cap on any surplus of operating revenue over operating and non-operating expenses at 5 percent of operating revenues. Although the Department of Health (DOH) has announced that the laws are now effective, it has not yet finalized regulations implementing these statutes.
In an article in this week’s Intelligence, LeadingAge NY provides resources for members to assist with evaluating their compliance with the new mandates, communicating with their communities, and demonstrating mitigating factors. Details on the regulations and a call LeadingAge NY recently had with the Department of Health are also reviewed in the Intelligence article. Additionally, LeadingAge NY has published several resources to for nursing home members to use in communicating the nursing home minimum staffing mandate status to residents, families, staff and the community.
Finally, as has been discussed on member calls and in previous communications, LeadingAge NY will be filing a lawsuit. We will provide more information shortly on next steps. Right now, we ask that nursing homes willing to be named as a plaintiff in the lawsuit contact Karen Lipson at klipson@leadingageny.org. We will be accepting named plaintiffs until Monday, April 11th.
ACTION ALERT: Psychotropic Medication Legislation Passes Assembly
On April 5th, the Assembly passed A.5841-B (Gottfried)/S.2103-B (Sepulveda), a bill that would require an enhanced level of informed consent before psychotropic medications can be prescribed for residents of nursing homes or adult care facilities (ACFs). The legislation makes two major changes in an effort to reduce the use of psychotropic medications:
- Requires health care professionals to receive written consent from the resident or the resident’s “lawful representative” before ordering or increasing the order of any psychotropic medication; and
- Limits all orders for psychotropic medications to 14 days.
This legislation aims to address issues that are largely already taken care of by federal nursing home regulations, and LeadingAge NY believes it is problematic for nursing homes and ACFs. With that, we have issued a memo of opposition on the bill to the full Assembly multiple times this year.
The bill has been consistently passed by the Assembly for the last several years. While it typically does not go far in the Senate, last year, it did make it to the Senate Calendar and may have been passed had it been taken up for a vote.
We need to ensure that the Senate understands our reasons for opposing this problematic bill! Please click here to send a message to your lawmakers TODAY opposing further restrictions on the use of psychotropic medications in nursing homes and ACFs!
CMS Termination of Temporary Nurse Aide and Other Waivers
Yesterday, CMS announced in a QSO memorandum that it will be terminating many of the federal 1135 waivers authorized during the COVID-19 pandemic. The waivers will be terminated in two phases – the first group will be terminated 30 days from yesterday (May 7, 2022), and the second group 60 days from today (June 6, 2022).
Temporary Nurse Aide Waiver
As a result of this QSO, the waiver of the four-month limit on employment of a nurse aide who has not met the training and certification requirements will expire on June 6th. According to an earlier QSO, this means that temporary nurse aides (TNAs) will have four months from June 6th to complete the TNA transition course and pass the CNA exam. The new QSO recognizes that “there may be instances where the volume of aides that must complete a state approved NATCEP exceed the available capacity for enrollees in a training program or taking the exam . . . . If a facility or nurse aide has documentation that demonstrates their attempts to complete their training and testing (e.g., timely contacts to state officials, multiple attempts to enroll in a program or test), a waiver of these requirements (42 CFR §483.35(d)) is still available and the aide may continue to work in the facility while continuing to attempt to become certified as soon as possible.” DOH has approved a TNA transition curriculum and process. More information is available here.
Other Waivers
A variety of other waivers are being terminated under this QSO, and members are urged to read the memorandum in its entirety. They include waivers pertaining to life safety code, physician services, in-service training, and paid feeding assistants, among others.
The QSO notes that “states and individual facilities are still able to request regulatory waivers for issues unique to their facility or location (similar to actions taken in response to natural disasters) to provide flexibility.” For additional information on individual waivers or flexibilities providers can apply for, the memo links to the Coronavirus waivers & flexibilities webpage.
We know how challenging it is for you to staff your facilities and how hard you and your teams are working. We will continue to do all that we can to support you and will provide updates as they become available.
Urge Congress to Fund Provider Relief Program
LeadingAge National needs our help to ensure that there is enough Federal pandemic relief funds for aging services providers as the pandemic continues. While Congress allocated $178 billion for Provider Relief Funds during the pandemic, most of this money has already been spent and providers have only been reimbursed for a small portion of the financial cost they have paid from the coronavirus pandemic. Providers have continued to struggle financially and if additional funds are not approved by Congress, there is a chance that this financial lifeline for LeadingAge members could cease to exist.
We need Congress to replenish the Provider Relief Fund account with at least $23 billion as part of its next COVID relief package. This assistance is needed to help providers weather the pandemic storm. Aging service providers need the $23 billion restored to the Provide Relief Fund.
CLICK HERE to send a message to your Congressional offices and urge them to provide more provider relief TODAY!
Additionally, members can click here to read an article on the status of payments from the Provider Relief Fund including Phase 4. The article includes a link to a letter Katie Smith Sloan sent to Congress last week asking that they replenish the funds.
LeadingAge & LeadingAge New York 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
COVID-19 Group in the MyLeadingAge Member Community
LeadingAge National Coronavirus Policy Updates – Mondays and Wednesdays at 3:30 p.m. Past call recordings are available here and you can register here for future calls.
Contact: Sarah Daly; 518.867.8845; sdaly@leadingageny.org