LeadingAge NY Comments on Proposed Nursing Home Minimum Nurse Staffing, Direct Care Spending, and Establishment Regulations

This week, LeadingAge NY submitted comments to the Department of Health (DOH) on three proposed regulations published for public comment. The regulations are:

• Nursing Home Minimum Direct Resident Care Spending
• Minimum Staffing Requirements for Nursing Homes
• Nursing Home Establishment; Notice and Character & Competence

LeadingAge NY's comments on the minimum staffing regulations focused on the infeasibility of the requirements in the context of widespread staffing shortages, their lack of flexibility to address resident care needs, their lack of alignment with Payroll-Based Journal (PBJ) reporting conventions for temporary nurse aides, and their excessive penalties. Our comments on the minimum direct resident care spending regulations criticized the under-inclusive definition of "direct resident care" expenditures and the over-inclusive definition of "revenue." Among other issues, we noted that the exclusion of capital expenses from "direct resident care," while including capital reimbursement in "revenue," will discourage necessary capital investments to support infection prevention and create homelike environments. Our comments on both regulations called for a delay or waiver of enforcement of these new regulations until the end of the workforce shortages and pandemic conditions.

Our comments on the nursing home establishment "character and competence" regulations pointed out potential impacts on mergers of not-for-profit facilities and highlighted several areas in which the proposed regulations were not clear. We also noted the limitations of star ratings in evaluating the character and competence of proposed operators and the potential consequences of prolonged lookback periods and broad definitions of "recurrent" violations.

Before the regulations can take effect, the Public Health and Health Planning Council must approve them, and DOH will have to publish an assessment of the public comments and a notice of adoption in the State Register. Notably, the Governor has issued an executive order suspending the effectiveness of the statutes underlying the minimum direct care spending and minimum staffing requirements regulations. The statute underlying the establishment regulations took effect in October 2021. An article summarizing the law is available here.

LeadingAge NY will keep members apprised of any new developments as the rulemaking process goes forward.

Contact: Karen Lipson, klipson@leadingageny.org, 518-867-8838