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Nursing homes file lawsuit seeking to overturn NY's minimum staffing law

A nurse wearing white scrubs and a stethoscope holds the hand of an elderly woman, wearing a blue blouse and beige vest.

A group of about 80 nursing homes filed a lawsuit seeking to overturn New York’s law that established staffing minimums and resident-care spending levels for nursing homes.

The state law, which was approved in 2021, requires every facility to maintain daily staffing hours equal to 3.5 hours of care per resident per day by a certified nurse aide, licensed practical nurse or registered nurse. The law also requires nursing homes to spend at least 70% of revenue on direct resident care, and at least 40% of revenue on resident-facing staffing.

The lawsuit, in part, asserted Gov. Kathy Hochul illegally took arbitrary and capricious executive action when she ordered enforcement of the law will begin in March during a national health-care staffing shortage, which hinders hiring and retention of workers, court records show. The nursing homes also argued New York violated federal laws that protect union bargaining rights and access to Medicare and Medicaid funding.

LeadingAge New York, a nursing home trade group, filed the lawsuit Monday in state Supreme Court in Albany County.

“The combination of poor policies, lack of funding, and a workforce that is in short-supply have resulted in a perfect storm of circumstances that leaves us with no other remedy than to seek the intercession of the courts,” James Clyne, Jr., president and CEO of LeadingAge, said in a statement.

Hochul and the state Health Department didn’t immediately respond to questions about the lawsuit.

Nursing homes requested the judge immediately block enforcement of the state law and declare it illegal or unconstitutional. The lawsuit also seeks compensation for legal costs associated with the litigation.

Violations of the staffing-minimum and spending-level requirements carry penalties of up to $2,000 per day for facilities. Penalties could also include seizure of their excess revenue.

State officials in early April said they would refrain from imposing fines initially to allow nursing homes time to comply with the law. It remains unclear if any penalties have been issued thus far.

The lawsuit followed months of debate over implementation of New York’s nursing home staffing minimum law, which was approved last year by lawmakers and former Gov. Andrew Cuomo.

On Dec. 31, Hochul issued an executive order that delayed enforcement of the law, which was initially to take effect on Jan. 1. At the time, she cited pandemic-related staffing shortages impacting health care facilities as the reason for delay.

After issuing two other similar orders delaying enforcement, Hochul on March 31 issued an executive order calling for enforcement of the staffing law. It came after Attorney General Letitia James and members of the 1199 SEIU Healthcare Workers East pressured Hochul to stop postponing implementation.

New York’s law functions “arbitrarily to penalize and, potentially force closure of, nursing homes that do not meet a blunt, one-size-fits-all model,” the lawsuit claims, adding the law fails to account for resident needs, investments in facilities and other factors.

Further, nursing homes argued Hochul’s executive order in March that initiated enforcement of the law also recognized the health care staffing shortages had not “materially improved in recent times,” court records show.

Nursing homes affiliated with LeadingAge also argued they would need to hire, collectively, over 4,000 nurses and aides to meet the requirement of the state law, court records show.

“There is no evidence that job applicants for these positions exist,” the lawsuit added.

New York’s average wages for nurses and aides are second-highest in the country behind California, the lawsuit noted, and New York’s employment rate for those positions is also among the highest nationally.

In arguing that the state law violates federal laws protecting union bargaining rights, the lawsuit cited the fact some nursing homes have unionized workforces that establish their own staffing ratios and other labor conditions.

New York’s law could also improperly impact nursing home funding from Medicare and Medicaid - the government health programs covering millions of poor, elderly and disabled Americans, the lawsuit claims.

Meanwhile, nursing homes asserted in the lawsuit that New York has yet to provide financial assistance to nursing homes for COVID-19 response or for staffing to comply with the mandate.

The 2021-22 state budget allocated $64 million and the 2022-23 budget allocated $123 million for nursing home staffing - but but none of those dollars have been distributed to providers, the lawsuit claims.

A statement issued by 1199 SEIU Healthcare Workers East asserted the lawsuit misrepresented many issues connected to the staffing-minimum and spending-level requirements.

The union noted other states, including Massachusetts, Florida and California, have similar measures requiring staffing minimums at nursing homes. New Jersey and Massachusetts also recently enacted requirements linked to spending on resident care, the labor group added.

"We are disappointed and concerned that (New York) nursing home operators and their trade associations continue to spend their resources fighting commonsense resident protections rather than investing in improving care at their facilities,” the union stated.