DOH Provides Details on Enforcement of Nurse and Aide Staffing Requirements

The Department of Health (DOH) has announced that it will begin enforcing the nursing home minimum nurse and aide staffing requirements effective as of April 1, 2022. Nursing homes should be receiving notices of compliance or non-compliance for the second quarter of 2022 in the near future and will have an opportunity to seek redeterminations in the event of errors and/or reductions of penalties in response to mitigating circumstances. The Commissioner of Health has issued a determination that an "acute labor supply shortage" of nurses and aides existed statewide during the last three quarters of 2022, laying the groundwork for facilities to apply for reductions in penalties.

Compliance Calculation

In a webinar held last week, DOH outlined its plans for enforcing the requirements (a recording is available here, and slides are available here). It will calculate quarterly average compliance with each of the three required staffing levels based on published Centers for Medicare and Medicaid Services (CMS) Payroll-Based Journal (PBJ) data:

3.5 hours of nurse and certified nurse aide (CNA) care per resident per day (HPRD);
2.2 HPRD provided by CNAs; and
1.1 HPRD provided by a licensed practical nurse (LPN) or registered nurse (RN).

From April-December 2022, hours of care provided by nurse aides in training may also be counted toward the 2.2 HPRD to be delivered by CNAs. Individuals performing administrative services are not counted toward the required hours.

Notices of Compliance and Non-Compliance

Facilities that are not in compliance with all three requirements on a quarterly average basis will receive notices of non-compliance, as will facilities that did not submit their PBJ data by the quarterly reporting deadline. They will be subject to a civil penalty of up to $2,000 for each day that they are out of compliance. Facilities that are in compliance with all three requirements on a quarterly average basis will receive a notice of compliance.

Notices of compliance and non-compliance will be distributed through the Health Commerce System (HCS) Distribution Management System to Administrators and Operators. Facilities that receive notices of non-compliance will have 10 business days to request a redetermination (if the notice was issued in error) or a reduction in penalties based on mitigating factors.

In order to avoid missing the notice and the deadline to respond, members are urged to ensure that their Administrator, Back-Up Administrator, Operator, and Back-Up Operator roles in the HCS are up to date. Roles are assigned by the facility's HCS Coordinator. The facility's HCS Coordinator can be identified by logging into the HCS and navigating to My Content -> Look Up My Coordinators. Assistance with the HCS can be accessed by contacting the HCS CAMU at NYSDOH-Commerce-Help@health.ny.gov or 1-866-529-1890.

Redeterminations

Facilities that are determined to be non-compliant may request a redetermination within 10 business days, using a DOH form, if they believe that the determination was due to an error. The request for redetermination will require an Employee Detail Attachment, which is available on the DOH website here. This form requires an extensive array of employee and census data.

DOH will issue a subsequent notice of redetermination in response to these requests, and facilities that are still deemed non-compliant may request a reduction in penalties as described below.

Reductions in Penalties

Facilities may apply for a penalty reduction within 10 business days of receiving the notice using another DOH form to provide the required information and documentation. Under the regulations, the mitigating factors are:

Extraordinary circumstances faced the facility (e.g., a natural disaster, a national emergency, a State or municipal emergency, a catastrophic event that caused physical damage to the facility or impaired the ability of facility personnel to access the facility). The facility must demonstrate that such extraordinary circumstances could not have been prevented or mitigated through effective implementation of the facility’s pandemic emergency plan, and the facility complied with disaster and emergency preparedness requirements.
An acute labor supply shortage of nurse aides, CNAs, LPNs, or RNs existed in the area in which the facility is located. The facility must demonstrate reasonable attempts to procure sufficient staffing during the period of non-compliance. Reasonable attempts may include, but not be limited to, incentivizing new personnel through increased wage and benefit offers and searching for personnel outside of the Metropolitan and Nonmetropolitan Area in which the facility is located. The facility must also demonstrate that it has taken steps over the course of the quarter to ensure resident health and safety notwithstanding any labor supply shortage.
A verifiable union dispute exists between the facility and nurse aides, CNAs, LPNs, or RNs employed or contracted by such facility, resulting in a labor shortage at the facility.

The statewide health care staffing disaster emergency that was in effect from Sept. 27, 2021 until June 22, 2023 (EO 4-EO 4.22) should serve as a basis for seeking a penalty reduction as an "extraordinary circumstance." However, LeadingAge NY has not received clarification from DOH regarding whether they will treat that emergency as an extraordinary circumstance. In any case, the Commissioner's determination that an acute labor supply shortage existed in 2022 also provides a basis for facilities to seek penalty reductions.

The form to request a reduction of penalties is not yet available, but screenshots of the form are available in the webinar slides. Like the request for redetermination, requests for a reduction of penalties require extensive data.

What Facilities Should Do Now

Nursing homes should begin analyzing their PBJ data for the second quarter of 2022 now to determine whether they were compliant. LeadingAge NY has created a tool for members only to compare their staffing levels for quarters in which PBJ data has been published to the State mandates. The tool displays facility-specific, daily hours reported through the PBJ system, indicating quarterly and daily compliance with State requirements here (use your LeadingAge NY login, and select Q2 of CY 2022).

Facilities that did not achieve all three required staffing levels on a quarterly average basis for that quarter should begin assembling the information needed to seek a redetermination and/or penalty reduction as applicable. You will have only 10 business days to do so once you receive the notice. The Employee Detail Attachment is available to prepare requests for redetermination. Although the penalty reduction form is not yet available, the screenshots in the webinar slides should provide a basis for beginning this work.

How Are Other Facilities Doing?

Based on our analysis of the data, most facilities were unable to comply with all three staffing requirements in the second quarter of 2022. Specifically, in Quarter 2 of 2022, 75 percent of all homes statewide failed to meet at least one requirement, 86 percent of for-profit homes failed to meet at least one, and 55 percent of non-profit and public homes failed to meet at least one requirement or did not have available data.

Questions?

DOH has established a website with resources and will be posting Frequently Asked Questions (FAQs) in response to questions. Questions may be submitted to DOH here.

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