New York’s nursing home safe staffing law, profit cap are in effect. Now what?
Julie Martinez is a licensed practical nurse at Dunkirk Rehabilitation and Nursing Center, whose staffing levels are rated much below average by the federal government.
During a recent shift, Martinez said she was left completely alone with 37 residents.
“You're not building that good rapport with them and that good relationship with them if you're just running right in and passing medication to them,” she said. “You have to hurry up, make sure they swallow it and carry on to the next person.”
So Martinez was glad last Friday when Gov. Kathy Hochul ended her three-month pause on New York’s safe staffing law, which requires residents to get at least 3.5 hours of direct nursing care a day.
“Three-and-a-half hours for one resident, that's quality care,” she said. “They can get that quality care that they deserve.”
Yet there remain questions on how the safe staffing law, as well as the nursing home profit cap, will now be followed and enforced.
Nursing homes argue they can't meet the safe staffing law's standards and have a pending lawsuit against the profit cap, while union leaders and resident advocates are concerned about how the laws will be enforced and still want even stricter laws.
Nursing homes say they still can’t comply with laws
Hochul cited the state’s shortage of health care workers as the reason for delaying the laws’ original Jan. 1 start date, and the nursing home industry argues that shortage has not ended.
“It’s analogous to a law that mandates the sun rise in the west,” said Stephen Hanse, president and CEO of the New York State Health Facilities Association, “and then when we wake up and the sun rises in the east, we see that the law is meaningless.”
NYSHFA commissioned an independent study by consulting firm Clifton Larson & Allen, which found nearly two-thirds of New York’s 611 nursing homes currently do not meet the safe staffing law’s 3.5-hour minimum.
In order to meet it, nursing homes would have to spend $324 million to hire over 5,600 additional care workers, at a time when they’ve already lost 14% of their workforce since the pandemic began.
“This is a law that every nursing home in the state of New York would love to be able to meet,” Hanse said. “The problem is the workers are not there.”
So instead of fining nursing homes up to $2,000 a day for not complying with the safe staffing law, Hanse said the New York State Department of Health should work with nursing homes to grow the health care workforce pipeline.
“It would really make no sense and be in no one's best interest to levy penalties against a provider who has done everything they can to try to recruit workers,” he said. “The reasonable, rational thing to do would be to … recognize good faith efforts have been made and continue to make them until such time as we are able to have a workforce that is sufficient to meet these mandates.”
But union leaders say short staffing has been nursing homes’ own doing: They’ve created an environment where workers don’t want to stay. Onestudy published last year found nursing home staff turnover in a given year is over 100%.
1199 SEIU, which is the largest health care union in the country, has been pushing for wage and pension increases in wake of the pandemic. In Western New York, the union has been negotiating for a $24 minimum wage for LPNs like Martinez, and $16.50 minimum wage for certified nursing assistants.
“You have to confront issues around wages, issues around benefits, issues around working conditions and what it means to have a safe working environment for the caregivers,” said 1199 SEIU Executive Vice President Milly Silva. “You have to do that first so that you can keep the people that you have, that's the first step.”
Hanse argues nursing homes haven’t been able to raise wages because of the state’s disinvestment in Medicaid, the taxpayer-funded system that reimburses nursing homes for taking care of residents who can’t afford to pay for their own care.
There’s a $55 per day shortfall between what the state reimburses nursing homes and what it actually costs to care for a Medicaid resident, while nursing homes have not received a cost of living adjustment in Medicaid rates in 14 years. Former Gov. Andrew Cuomo even cut Medicaid by 1.5% in 2020.
“The state's disinvestment in long-term care has really resulted in a situation where providers can't compete in the labor market,” Hanse said.
Hochul’s 2023 budget proposal restores the Cuomo-era 1.5% Medicaid cut, while providing an additional 1% increase. She’s also proposed a $10 billion plan to increase health care workers’ wages and provide bonuses for those who stay in the field.
“Gov. Hochul is trying to right the ship,” Hanse said. “However, this is not going to be resolved overnight. It requires a partnership, a partnership between the governor, the legislature, providers and labor working together to resolve this problem.”
The 2023 state budget remained unpassed as of Tuesday, four days past the deadline.
Uncertainty surrounds safe staffing law enforcement
Despite Hochul lifting the pause on the safe staffing law, it’s still unclear whether nursing homes will have to provide 3.5 care hours every single day.
Proponents of the law expected nursing homes to have to meet the 3.5-hour standard on a daily basis. The sponsor of the law, State Sen. Gustavo Rivera, told WBFO he expected the same, and that anything less would “undermine the intent of the bill.”
Yet when the state Department of Health released its proposed regulation for enforcing the safe staffing law back in November, it said the department will only review nursing homes’ quarterly average for care hours.
In other words, a nursing home could provide fewer than 3.5 hours on many days during a given quarter, but as long as it averaged at least 3.5 hours for the quarter, it would not face any punishment.
A WBFO analysis earlier this year found 21 Western New York nursing homes averaged at least 3.5 hours during the most recent available quarter of data. All but two had multiple days during the quarter where they provided fewer than 3.5 hours. Seven provided fewer than 3.5 hours on more than a third of days.
“The problem [is] that staffing drops for many, many homes pretty dramatically on the weekends,” said 1199 SEIU Political Director Helen Schaub. “And that's why we need a daily standard.”
1199 SEIU, as well as resident advocates, raised concerns during the original 60-day public comment period on the proposed enforcement plan.
The state Department of Health can choose to make changes to its plan based on public comments, but there would have to be an additional 45 days of public comments if any substantive change was made.
Schaub said the department has still not released its final plan, and the union remains hopeful it will make adjustments so that nursing homes’ care hours are reviewed on a daily basis.
Lawsuit pending against profit cap
The profit cap limits nursing home profits to 5% and mandates at least 70% of revenue go toward caring for residents, including at least 40% on paying care staff. If a nursing home fails to meet those thresholds, the state can confiscate their excess profit and place it into a pooled fund for facilities across the state.
Nursing homes say it’s unconstitutional.
Over 250 of them filed a federal lawsuit in December. The suit’s main argument is that confiscating nursing homes’ excess profit above the cap violates federal law.
That’s because a large portion of nursing home revenue comes from Medicaid, whose costs are split between the state and federal governments. Federal regulations prohibit states from using federal Medicare funds to subsidize their own Medicaid programs, according to the suit.
Hanse said the litigation has continued to move forward in U.S. District Court despite Hochul’s pause, and he doesn’t foresee any change now that the law is in effect.
“The law going into effect really has no practical impact on the lawsuit,” he said.
But the lawsuit actually discredits nursing homes’ argument that they’re struggling financially, resident advocates say.
Buried in the 130-page complaint, plaintiff nursing homes disclosed they will have to pay a total of $510 million back to the state under the profit cap, according to an analysis by the Long Term Care Community Coalition, a New York City-based watchdog group that advocates for better nursing home care. The suit itself estimates that number jumps to $824 million when factoring in all nursing homes across the state.
LTCCC estimated that money could have been used to hire over 5,600 additional registered nurses, and was the equivalent of over 26 million additional hours of nurse aide care.
“There is absolutely no excuse, financial or otherwise, for insufficient staffing in our nursing homes,” said LTCCC Executive Director Richard Mollot. “That's what's got to change: this very dangerous cycle of these predatory owners just feeding off of poor care for profits.”
Nursing homes argue the pandemic has changed things. The numbers disclosed in the suit are based on 2019 financials. Nursing home bed occupancy is currently only 87%, down from 94% before the pandemic.
“The majority of nursing homes in the state of New York are in the red, they are losing money. That's the reality of the world we're living in now in 2022,” Hanse said. “It might not have been the reality of the world when this law was put in place behind closed doors, but the data speaks for itself.”
Nursing homes that end up out of compliance with the profit cap for 2022 will have to pay back excess profit to the state by November of 2023.
Advocates still want stricter laws
To union leaders and resident advocates, the safe staffing law and profit cap were compromises.
The original safe staffing law bill would have mandated nursing home residents get at least 4.1 hours of care a day. That’s the benchmark set by a 2001 federal study on resident care needs.
There was also hope that the profit cap would mandate that at least 90% of revenue go toward care. That’s the percentage set by New Jersey’s profit cap, which took effect last year.
“We're going to keep fighting for it,” said AARP New York State Director Beth Finkel. “We're glad for the increase now for the basic standard, but we're not done. We need to make sure that we're holding it to a higher level.”
New York Statewide Senior Action Council Executive Director Maria Alvarez said there will only be a greater need for good care in the future, as a quarter of New Yorkers will be 60 or older by 2030.
“I think it would bode us very well to make sure that these conditions are improved starting now so that we're prepared for this influx,” she said.