New York’s safe staffing law, profit cap to take effect Jan. 1, but not without a fight from nursing homes
New regulations on staffing levels and profits are set to shake up New York’s nursing home industry when they take effect Jan. 1. The laws are already having something of an impact, but there’s still a question as to whether they’ll actually go into effect come New Year's Day.
What the safe staffing law and profit cap will do
The safe staffing law, signed by former Gov. Andrew Cuomo in June, will require nursing homes to provide their 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, according to the Long Term Care Community Coalition (LTCCC), a New York City-based advocacy group for nursing home residents, but that ranks fifth-worst in the nation. Plus, a federal study from 2001 found that nursing home residents need at least 4.1 hours of care each day.
“Nursing homes should have been doing a better job at staffing for years. This isn't a new issue,” said Lindsay Heckler, an attorney with the Center for Elder Law and Justice, a Buffalo nonprofit legal firm that represents nursing home residents.
Meanwhile, the profit cap, included in the 2021 state budget, will require nursing homes to put at least 70% of their revenue toward care, with at least 40% going toward paying staff.
New York’s for-profit nursing homes have the worst average inspection scores from the federal government of any type of nursing home, according to a 2019 report by LTCCC. They also provide 20% less care hours than the state’s government-run and nonprofit nursing homes.
A report earlier this year by state Attorney General Letitia James found some for-profit nursing homes diverted profits to related parties, rather than invest in staffing and personal protective equipment during the early months of the COVID-19 pandemic.
“So what the 70-40 rule does is it really forces operators to show that they're doing what they promised to do,” Heckler said, “not only to the taxpayers, but to every resident they chose to admit into their facility, which is to spend the money on nursing home staff and other resident care needs.”
Laws already having an impact on labor negotiations
Workers of Buffalo Community Healthcare Center had reason to celebrate last month. What was supposed to be a picket outside the Delaware Avenue nursing home in Buffalo, turned into a celebration of a new three-year contract with wage and pension increases.
What helped the negotiations, according to the workers’ union, was the safe staffing law and profit cap.
Union leaders said Buffalo Community Healthcare Center, rated two stars out of five for staffing levels, knew that, without pay hikes, it wouldn’t be able to attract enough workers to comply with the laws once they go into effect.
“So with these new wages, hopefully, we'll be seeing an influx of workers and we’ll be able to retain quality workers at this facility,” said Grace Bogdanove, area vice president of nursing homes for 1199 SEIU, the union that represents Buffalo Community Healthcare Center workers. “And that's one way that the employer is going to be able to meet these standards, hopefully.”
“We're incredibly hopeful about what those regulations will do,” she added. “But I will say that the only way that these employers … are going to be able to comply with those regulations is if they're offering a quality wage and benefit package that will recruit people to come work at the facility.”
Nursing homes may sue to stop laws
The safe staffing law alone will force nursing homes to hire as many as 45,000 new care workers, which would be about a 64% increase. That’s according to a report last year by the New York State Department of Health.
Amid a statewide shortage of health care workers, nursing homes have long argued it would be impossible to comply with the new laws.
“There just aren't enough staff. So how do you penalize somebody for not making the ratios when they can't find staff?” said Michael Balboni, executive director of the Greater New York Health Care Facilities Association, one of several nursing home lobbying groups fighting against the laws.
While Balboni said nursing homes hope “the smarter minds in Albany” realize the new laws are impossible to enforce, they’re also not just waiting for lawmakers to amend the regulations. Nursing home lobbying groups are preparing litigation to either delay or prevent the laws from going into effect.
“I've seen copies of it," Balboni said, "and it is anticipated that in December there will be a filing.”
One of their legal arguments relates to the profit cap allowing the state to claw back excess revenue, regardless of whether that revenue came from the state, the federal government’s Medicaid program or a resident’s private insurance.
They also take issue with a provision of the profit cap that says only 15% of a nursing home’s revenue can go toward paying outside care agency staff, something many nursing homes have relied on during the pandemic. They argue that is a labor negotiation issue, and that the Supreme Court has ruled that states cannot get involved in labor issues.
Nursing homes also argue the laws shouldn’t be able to take effect until at least mid-January, because the State Administrative Procedure Act (SAPA) requires a 60-day public comment period once the regulations of a law are published. The regulations for the safe staffing law and profit cap were not published until Nov. 17.
However, Jefferey Hammond, a spokesperson for the state Department of Health, said in an email that SAPA will not affect the start date of the laws, and they will indeed take effect Jan. 1.
“There are some issues like that, and just the constitutionality, some issues there,” Balboni said. “There's a whole host of issues,”
The potential lawsuit from nursing homes is disappointing to Richard Mollot, executive director of LTCCC. He said the laws were already “deeply compromised” during the legislative process by nursing home lobbyists trying to make them “as weak as they possibly could.” To him, it seems that nursing home lobbying groups always fight any change that could potentially help their residents.
“There's kind of like a misery index when it comes to nursing homes: The more miserable the care for nursing home residents, the higher the profits are for the industry,” he said. “And that is really where our provider associations in New York constantly come down on is maximizing the profits, no matter what the end result is, no matter what the costs are for residents and families.”
Although Mollot said he believes the laws would hold up in court, he’s frustrated by what he calls “a fair amount of judicial bias” in New York when it comes to nursing homes.
“Judges view these nursing home cases … as any other business,” he said. “So if you're selling stocks and some of your stocks are defective, that's one thing. But if you are providing nursing home care, and you have a thread or many threads of substandard care as a part of your operations, that's an entirely different thing. But judges don't always recognize it.”
Even if New York nursing homes were to stop the laws, there could be federal regulations coming down the pipe. President Joe Biden’s Build Back Better Agenda includes a mandate that the U.S. Department of Health and Human Services studies minimum staffing ratios and then implements regulations within a year. It also mandates that every nursing home have at least one registered nurse in the facility at all times.
Balboni said that fight is for another day.
“We're just focused on what this legislation looks like going forward in New York,” he said.
Nursing home workers, like Angela Robbins, a certified nursing assistant with Buffalo Community Healthcare Center, are grateful for the new laws.
“Sometimes … we might have two aides for the whole unit,” she said. “So I'm thankful for the changes that [state lawmakers] made. I just hope that they take effect and [the state Department of Health] really be on [nursing homes] about it. And if they don't be on them, I hope something can be done for them not doing what they are supposed to do.”
Heckler agreed that enforcement from the state Department of Health will be crucial. The laws call for a maximum fine of $2,000 per day, but Heckler wants that number to be higher, saying the department often doesn’t issue the maximum fine.
She encourages residents and their families to ask their nursing home to commit in writing how many care hours their individualized care plan calls for. Although the safe staffing law only requires a nursing home to average 3.5 care hours per day for all residents, it still has to meet every individual resident’s care needs as well, Heckler said.
“The facility, averaged out, can be meeting that 3.5 minimum average hours per day, but if the resident’s care needs aren't being met, if they're not being turned every two hours, if they develop a severe pressure ulcer or frequent falls, because there's not enough staff to meet that individual’s care needs, then they are in violation of this statute,” she said.