State Releases Acute Labor Shortage Determination for Second Half of 2023
(April 1, 2025) The Department of Health (DOH) has posted the Commissioner’s Determination on Acute Labor Supply Shortage covering nurses as well as Certified Nurse Aides (CNA) for the second half of 2023. The determination, a requirement of the nursing home minimum staffing standards legislation, finds that most counties in the states did not meet the definition of having an acute labor supply shortage for the third and fourth quarters of calendar year 2023. The determination means that nursing homes that were unable to meet the nursing staffing standards during these quarters will not be able to apply for a reduction of staffing penalties. Homes that were unable to provide a quarterly average of 3.5 hours of overall nursing care as well as the sub-requirements of 1.1 hours of RN/LPN care and 2.2 hours of CNA care per resident per day, will face penalties ranging from $500 to $2,000 for each day of the quarter that any of the standards were not met. DOH indicated that compliance determination letters for Q3 of 2023 would be posted within a week.
Note that the first five quarters that DOH has reviewed nursing home staffing data for compliance (i.e. quarters 2, 3 and 4 of 2022 and quarters 1 and 2 of 2023) were covered by Commissioner’s Determinations of an acute labor shortage for all three nursing positions in all counties of the state. This allowed homes that were out of compliance but were able to document best faith efforts to meet the standards to apply for a penalty reduction. The result of these applications is not yet known as DOH has not yet announced the penalties for any quarters. We expect the first announcement within a few weeks. Based on prior DOH indications it will likely cover the three quarters of 2022.
The most recent determination, available here, finds acute shortages of Registered Nurses (RNs) in non-metropolitan counties of Central and Southwest NY, as well as Jefferson and Ulster counties. Acute CNA shortages were found in Northern and Central non-metropolitan counties as well as Jefferson and Ulster counties. Licensed Practical Nurse (LPN) shortages were deemed to exist in NYC and surrounding counties. This means that only homes located in the listed counties will be eligible to apply for penalty reductions, and only for staffing standards related to the specified positions.
The prior acute shortage determinations seemed to be based primarily on the existence of the Governor’s Executive Order (EO) regarding a statewide health staffing crisis. That EO ended in June of 2023. The current determinations track the definition of shortages established in the federal staffing rule. They are based on comparing county-level provider-to-population ratios to national ratios using Bureau of Labor Statistics (BLS) data. To be deemed to be experiencing an acute shortage, a county’s ratio needs to be at least 20 percent lower than the national ratio. We are seeking greater detail on the calculations and will keep members posted. In the meantime, members should keep an eye out for a notice from DOH that Q3 2023 staffing compliance letters have been released.
Contact: Darius Kirstein, dkirstein@leadingageny.org, 518-867-8841