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Despite safe staffing law, NY nursing homes may still get away with providing fewer than 3.5 care hours

Tom Dinki
An 1199 SEIU sign sits posted outside Ellicott Center for Rehabilitation and Nursing in Buffalo in May of 2020.

Harris Hill Nursing Facility in Williamsville provides on average 3.58 hours of direct nursing care per resident a day, slightly above the new minimum of 3.5 required by New York’s safe staffing law.

However, Harris Hill provided fewer than the new required level on more than 30 days during the most recent 90-day quarter of available federal data.

Harris Hill is not unique. Of the 21 Western New York nursing homes to average more than 3.5 care hours during the quarter, almost all had at least one day where they were below that benchmark. More than half had two weeks or more of being below.

Under the New York State Department of Health’s proposed enforcement plan, these nursing homes would be considered in compliance with the safe staffing law and would not face any punishment.

“These residents need that level of care every day,” said Dennis Short, a policy analyst for 1199 SEIU, the union that represents over 75,000 nursing home workers across the state.  “The one thing we know is that nursing home residents’ condition doesn't change over the weekend. They need as much care on a Friday as they do on a Saturday or Sunday.”

Although the safe staffing law is currently on pause due to a labor shortage, 1199 SEIU and advocates for nursing home residents are concerned with how the state plans to enforce it once it does go into effect.

They say the state’s proposed enforcement plan does not follow the spirit of the law, which was to ensure residents get at least 3.5 hours of direct nursing care every single day.

Only looking at quarterly averages will still allow nursing homes to provide residents with fewer than 3.5 hours on many days throughout the quarter, they say, especially on weekends and holidays that are notoriously difficult to staff. 

They’ve submitted their concerns in writing as part of the state’s 60-day public comment period on the safe staffing law, which concluded on Tuesday.

“We've urged the department to really take a look at that proposal and really target their enforcement to the way the law was written,” Short said. “Regardless of what happens on a quarterly average, what happens on a daily basis is where the enforcement should really happen.”

A state Department of Health spokesperson said in an email that although the law says that nursing homes shall maintain a daily average of 3.5 hours, it also says that “compliance shall be determined quarterly.”

The spokesperson noted that their proposed regulation published in November uses the same language as the bill passed by the state Legislature last year. Both say “compliance shall be determined quarterly by comparing the daily average of the number of hours provided per resident, per day, using the federal CMS payroll-based journal and the facility’s average daily census on a daily basis.”

The health department interprets that to mean nursing homes should average 3.5 hours every single day, but they’ll only be assessed on their quarterly average.

However, the sponsor of the safe staffing law disagrees with that interpretation. State Sen. Gustavo Rivera (D-Bronx) said it was indeed his intention for nursing homes to average 3.5 hours every single day, and he plans to work with the health department over the next few weeks to remedy the enforcement plan. 

“If there's inconsistent care from one day to another, it undermines the intent of the bill,” he said. “Certainly, I would want for the Department of Health to be able to determine on a daily basis how [nursing homes] are doing. The devil is always in the details.”

New York State Senate
State Sen. Gustavo Rivera speaks about the safe staffing bill on the Senate floor May 4, 2021.

Rivera, who is chair of the Senate Health Committee, said it’s not uncommon for there to be differences between lawmakers’ bills and how the state plans to enforce them, especially when it comes to health care laws.

“The sausage continues to get made,” he said. “You know how it's mentioned that the process of lawmaking is like getting sausage made? Well, the sausage is not necessarily made once the bill is signed into law. Then comes the implementation and the oversight.”

The safe staffing law was passed by the state Legislature and signed into law by then-Gov. Andrew Cuomo last year as a response to the COVID-19 pandemic’s devastation of nursing homes.

The law is currently in limbo. Gov. Kathy Hochul paused the law the day before it was set to go into effect on Jan. 1, citing a shortage of workers. That executive order is set to expire at the end of the month, but may be extended.

Assemblymember Monica Wallace (D-Cheektowaga) said she’s concerned about the pause, but also doesn’t want to punish nursing homes when some are struggling financially. She suggested the state incentivize nursing homes to comply with the safe staffing law through Medicaid reimbursement increases.

“So that it's sort of a carrot and stick at the same time,” Wallace said. “Instead of saying, ‘Nursing homes don't need to comply and that's the end of it,’ saying, ‘Nursing homes, we need you to comply. And if you comply, you can get this additional funding.’”

But resident advocates argue the solution is simpler: enforce the laws already on the books. Richard Mollot, executive director of the Long Term Care Community Coalition, said there are good laws in place, like the safe staffing law, but that the health department doesn’t enforce them the right way.  

“Nursing homes flout the regulations too often, and they're not held accountable by the Department of Health, which flouts its own rules and the federal rules for what the department is supposed to be doing and what we as New Yorkers count on it to do, which is to make sure resident care is decent, adequate and provided with dignity,” he said. ”You have a responsibility not only to your residents, but to taxpayers, to provide appropriate staffing and services to those people who are dependent upon you for their lives every single day.”

Workers of Buffalo Community Healthcare Center speak with the media Nov. 17, 2021 about their new three-year contract. The event outside the nursing home was supposed to be a picket demanding higher wages, but instead turned into an announcement and celebration of a new contract.
Tom Dinki
1199 SEIU members at Buffalo Community Healthcare Center speak with the media Nov. 17, 2021 about their new three-year contract.

SEIU 1199 is calling attention to the fact that nursing homes can average 3.5 hours or more for the quarter but still provide below that benchmark throughout the quarter. It recently published an online database that shows every nursing home’s average during the April-June 2021 reporting period and how many days during that period it was below 3.5 hours.

Harris Hill’s parent company, The McGuire Group, did not immediately return a request for comment about their numbers. Neither did several other local nursing home operators contacted for this story.

However, nursing homes’ state lobbying group responded. Michael Balboni, executive director of the Greater New York Health Care Facilities Association, said the debate over quarterly versus daily averages is “moot,” considering, in his opinion, there’s not enough workers to comply with the law anyway.

He said the health department will review the comments made during the public comment period and “hopefully they’ll be able to develop some type of consensus on how to move forward.”

“And whether it's on a quarterly basis, whether it's on a daily or hourly basis, that will probably be something that the department will weigh into at that time,” he added.

The Department of Health spokesperson said the department is now reviewing public comments about its proposed regulations and can make changes based on them, but noted any substantive change would require an additional 45 days of public comment.

Tom Dinki joined WBFO in August 2019 to cover issues affecting older adults.
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