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Health & Wellness

Hochul delays nursing home safe staffing law, profit cap for at least a month

Gov. Kathy Hochul
Darren McGee
/
Office of Gov. Kathy Hochul
Gov. Kathy Hochul holds a COVID-19 briefing Jan. 3 at the Rochester Educational Opportunity Center.

New York Gov. Kathy Hochul has suspended the state’s new nursing homes laws regarding staffing levels and profits, citing a shortage of health care workers.

The nursing home safe staffing law and profit cap were part of the state’s crackdown on the long-term care industry following the COVID-19 pandemic and set to go into effect New Year’s Day, but Hochul signed an executive order on New Year’s Eve that delays their implementation for at least 30 days.

Nursing homes will not be penalized if they don’t follow the laws during the duration of the order, which expires Jan. 30.

The order says the new laws would “prevent, hinder or delay action necessary” to cope with the “staffing shortage caused by the Covid-19 public health emergency.” It cites Hochul’s executive authority during a state of emergency to suspend or modify any law that might hinder the response to the emergency. Hochul first declared a state of emergency over the state’s health care work shortage in September.

A Hochul spokesperson said in an email that nursing homes are encouraged to comply with the new laws, but that noncompliance will not be considered a violation, “so as to prevent penalizing facilities that cannot comply due to the emergency.”

The nursing home industry has long argued the laws would hurt their ability to care for residents, not improve it. In a statement Monday, Stephen Hanse, president and CEO of the New York State Health Facilities Association, a nursing home lobbying group, said Hochul’s order acknowledges that nursing homes are facing significant staffing shortages.

“As we go into 2022, we look forward to working in partnership with Governor Hochul, the legislature and organized labor to implement positive initiatives that truly address New York’s long-term care staffing crisis,” Hanse said, “so providers will be able to recruit and retain essential long-term care workers.”

However, nursing homes won’t be able to retain staff without the laws being enforced, argues 1199 SEIU, the union for nursing home workers that championed the laws.

“Without enforced staffing standards, nursing homes will not be able to retain the staff the residents depend on,” said 1199 SEIU Executive Vice President Yvonne Armstrong in a statement. “Dedicated caregivers are being driven from the bedside by the impossibility of providing the care that residents need without appropriate resources.

“We urge Governor Hochul to bring all stakeholders together to focus on achieving these appropriate standards in our nursing homes and finally providing residents with the care they deserve.”

The safe staffing law and profit cap were the cornerstones of the New York State Legislature’s response last year to the pandemic and the deaths of over 13,000 state nursing home residents. The profit cap was included in the 2021 state budget passed by lawmakers in April, while the safe staffing law was signed into law in June by then-Gov. Andrew Cuomo.

The safe staffing law mandates nursing homes provide residents with an average of at least 3.5 hours of direct nursing care each day.

New York nursing homes currently provide on average 3.5 hours of care a day, but that ranks fifth-worst in the nation, according to the Long Term Care Community Coalition, a New York City-based advocacy group. Plus, a federal study from 2001 found that nursing home residents need at least 4.1 hours of care each day.

However, nursing homes argue there are not enough workers to comply with the safe staffing law’s standards. They’d have to hire 45,000 additional care workers at a cost of about $2 billion, according to a 2020 report by the New York State Department of Health. Since the pandemic began, nursing homes nationwide have seen a workforce reduction of about 400,000, or 12% of their total workforce, according to the U.S. Bureau of Labor Statistics.

Meanwhile, the profit cap mandates nursing homes spend at least 70% of their revenue on direct care, including at least 40% on paying direct care workers. It also places a 5% cap on profits and allows the state to confiscate excess revenue.

The measure came following a report last year by state Attorney General Letitia James that found some for-profit nursing homes diverted funds to related parties rather than investing in staffing and personal protective equipment during the early months of the pandemic. For-profit nursing homes have worse average federal inspection scores than nonprofit and government-run nursing homes, according to a 2019 report by LTCCC.

Nursing homes have also taken issue with the profit cap. Over 250 of them statewide filed a lawsuit in federal court last week, alleging the profit cap is unconstitutional and that there is no correlation between a nursing home’s profitability and quality of care.

Hochul’s order is set to expire Jan. 30.

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