DOH Issues FAQs Regarding Nursing Home Minimum Staffing Requirements

The Department of Health (DOH) has released Frequently Asked Questions (FAQs) concerning its impending enforcement of the nursing home minimum staffing requirements. Members are encouraged to review the FAQs in their entirety. Key information provided in the FAQs includes:

Penalties:

The FAQs include a chart (see below) delineating the progressive penalties required by the regulations. As previously reported, the penalties are capped at $2,000 per day for each quarter in which the facility fails on average to meet all three staffing level requirements – 3.5 hours per resident day (HPRD) for nurses and certified nurse aides (CNAs), 2.2 HPRD for CNAs, and 1.1 HPRD for nurses. According to the chart, the penalties vary based on the size of the gap between the facility's overall HPRD level in the quarter and the number of quarters out of compliance. Penalties begin at $500 per day for facilities with an overall HPRD of 2.9 to 3.49 for the first quarter in which they are unable to meet the required level. In 2022, hours worked by nurse aides in training count toward the CNA requirement.

Notably, the penalties delineated in the chart may be reduced partially or fully, if the Department determines that mitigating factors impacted the facility's ability to provide sufficient staff.

Mitigating Factors and Penalty Reduction Requests:

Under the regulations, there are three possible grounds for requesting a reduction in penalties with different data submission requirements for each type of request: extraordinary circumstances (e.g., declared disaster emergencies or catastrophes), acute labor supply shortage, and union disputes. The Commissioner has determined that there was a statewide acute labor supply shortage for the last three quarters of 2022, and there was a declared Statewide Disaster Emergency Due to Healthcare Staffing Shortages in 2022. Thus, it appears that, in 2022, staffing shortages may justify mitigation under two different regulatory provisions.

The FAQs indicate that requests for penalty reductions in relation to quarters during the Governor’s Declaration of a Statewide Disaster Emergency Due to Healthcare Staffing Shortages should proceed in the first instance on the basis of an “acute labor supply shortage,” if there was an acute labor supply shortage determination for the quarter(s) in question. To qualify for mitigation on this basis, the facility must complete the Penalty Reduction Application’s Schedule B for an Acute Labor Supply Shortage. However, according to the FAQs:

“A facility may also consider whether any ‘extraordinary circumstance’ may also apply, separate from the acute labor supply shortage, to warrant mitigation; in this case, the facility must also submit Schedule A. In the event that a facility cites the Governor’s declaration/Acute Labor Shortage as a mitigating factor, the Department will first assess Schedule B to determine whether an Acute Labor Supply Shortage exists and the facility has, to the satisfaction of the department, demonstrated sufficient reasonable attempts to recruit staff and actions to ensure the health and safety of residents, before determining whether any other mitigating factors in Schedule A are implicated.”

Thus, for deficiency citations based on 2022 staffing, facilities may consider submitting a Penalty Reduction Application based on both "extraordinary circumstances" and "acute labor supply shortage" and filing both a Schedule A and a Schedule B. The Penalty Reduction Application will be available through a link in the notice of noncompliance. Facilities will have only 10 business days to submit Penalty Reduction Applications.

Redeterminations:

If a nursing home believes that the Department's initial determination of noncompliance was due to a calculation error or an error in the Centers for Medicare and Medicaid Services (CMS) Payroll-Based Journal (PBJ) Public Use file (e.g., the job title code was submitted in error to the PBJ system), the facility may request a redetermination. The facility must submit a Request for Redetermination form, which will be available through a link in the notice of noncompliance, and an Employee Detail Attachment. Facilities will have only 10 business days to submit Requests for Redetermination.

Assessments of Compliance:

Compliance assessments will be based on the hours and job titles reported in the CMS PBJ data. Thus, if a facility’s licensed practical nurses (LPNs) work in CNA positions, their hours will be counted based on how they were reported in the CMS PBJ and contained in the CMS PBJ Public Use file for the review quarter.

Timing:

The FAQs indicate that the Department anticipated disseminating initial notices during the week of July 15, 2023, barring any technical or other operational issues. Clearly, that target date has already passed. The FAQs further state that individual notices will be provided for each review period when the corresponding assessment cycle is completed.

LeadingAge NY anticipates that notices will be distributed shortly. As previously reported, notices will be posted via the Health Commerce System (HCS) Distribution Management System to Administrator and Operator accounts. Members are urged to verify that their HCS roles are updated, in order to avoid missing the notices. More information on updating roles is available here.

What Facilities Should Do Now:

LeadingAge NY recommends that members evaluate their reported PBJ data for Q2 2022 compliance and assemble the data necessary to apply for a redetermination or reduction in penalties as applicable. (See slides 11-13 for information about Redetermination applications, 16-23 for Penalty Reduction Applications in the DOH webinar presentation, recording here). Facilities will have only 10 business days to request a penalty reduction or redetermination in response to the notice. Additional information concerning the enforcement of the nursing home minimum staffing hours, including links to resources, is available in a LeadingAge NY Intelligence article here.

LeadingAge NY understands the challenges these staffing requirements present, and we are working on multiple fronts to secure additional funding and a reasonable approach to implementation.

Contact: Karen Lipson, klipson@leadingageny.org, or Darius Kirstein, dkirstein@leadingageny.org