Nursing Home Minimum Nursing Hours and Minimum Direct Care Spending Requirements On Hold
On Dec. 31st, Governor Hochul issued Executive Order (EO) 4.4 extending the statewide health care staffing emergency and temporarily suspending the minimum nursing hours (i.e., 3.5 hours per resident day) and minimum direct care spending requirements (i.e., 70/40) for nursing homes that were otherwise slated to take effect on Jan. 1, 2022. Specifically, the EO provides that, in light of the staffing shortage caused by the COVID-19 public health emergency, the following are suspended or modified:
- the minimum nursing hours statute "to the extent that failure of a nursing home to meet the daily average staffing hours will not be held to be a violation of the Public Health Law";
- the minimum direct care spending statute "to the extent that failure of a residential health care facility to spend a minimum of seventy percent of revenue on direct resident care, and forty percent of revenue on resident-facing staffing, will not be held to be a violation of the Public Health Law."
The EO and the suspension of the requirements are effective through Jan. 30, 2022.
Several issues remain unclear. The EO appears to apply only to the 70/40 percent requirements of the minimum direct care spending law. It is unclear whether the profit cap provision of that law is also suspended. It is also unclear how this suspension will be reflected in enforcement efforts, when and if the requirements take effect.
LeadingAge NY has been advocating on several fronts, along with many of our members, for relief from the nursing hours (3.5 per resident day) and direct care spending mandates. In particular, we have stressed the infeasibility of the minimum nursing hours requirements given dire staffing shortages across the state. LeadingAge NY has pointed out that the minimum nursing hours ratios would force nursing homes to reduce admissions even further, thereby exacerbating discharge delays from hospitals. It appears that these concerns were heard.
LeadingAge NY is also planning to file suit in relation to both the minimum nursing hours and minimum direct care spending requirements. Another association has filed suit on only the minimum direct care spending law.
Given the uncertainty surrounding the implementation of these laws, members are advised to do their best to prepare for compliance in February, when the EO is due to expire. The following are some key reminders pertaining to the minimum nursing hours requirements:
- The statute requires nursing homes to provide 3.5 hours of nursing care per resident, per day, of which 1.1 hours must be provided by a registered nurse (RN) and/or licensed practical nurse (LPN) and 2.2 hours by a certified nurse aide (CNA). (The remaining 0.2 hours (to reach 3.5 hours) can be provided by any combination of RN, LPN, or aide hours.)
- The State will use specified Payroll-Based Journal (PBJ) data to verify compliance.
- Staffing level calculations done pursuant to this legislation are more restrictive than those used by the Centers for Medicare and Medicaid Services (CMS) in the Five-Star Quality Rating System. For example, hours worked by directors of nursing (DONs) and RNs/LPNs with administrative duties are included in Five-Star but will NOT be counted in the State’s calculation.
- Daily penalties for non-compliance can be as high as $2,000. If mitigating factors such as a natural disaster exist, the daily penalty can be reduced to no lower than $300.
- Although the staffing requirements were slated to take effect on Jan. 1, 2022, penalties cannot be imposed until April 1, 2022.
In order to prepare for the possibility that the minimum nursing hours law will take effect after Jan. 30th, we recommend that member nursing homes:
- Do their best to comply, if possible, and document those instances when they are unable to meet the mandated levels.
- Be aware that the regulations set out a compliance test that first reviews whether a facility’s PBJ quarterly staffing averages met the 3.5/1.1/2.2 requirements for a given quarter, then applies daily penalties for those whose quarterly averages fell short.
- Review that the hours for any staff who may completely shift primary roles from administrative to direct care activities during a single shift are reported appropriately (see bottom of Page 2-5 of the PBJ Policy Manual).
LeadingAge NY members have access to the compilation of the most currently available PBJ nurse staffing data (Q2 of 2021), which is compared to the minimum staffing levels. The comparison tool allows the user to select their facility, shows how staffing for each day of the quarter would have compared to the new 3.5/1.1/2.2 requirements, shows how many hours a facility would have fallen short had the staffing level mandate been in place during that quarter, and facilitates some quick cost estimates. Members can download the Excel file from the LeadingAge NY Data page.
We will keep members apprised of any new developments in relation to these laws.
Contact: Karen Lipson, klipson@leadingageny.org, or Darius Kirstein, dkirstein@leadingageny.org. Both can be reached at 518-867-8383.