Nursing home operators in New York can expect to see assessments tied to the state minimum staffing standard as early as July 10, the state Department of Health said in a memo.
Facilities that are out of compliance with the new staffing standards could receive civil monetary penalties of up to $2,000 per day, the agency said. But, operators that believe an initial determination was made in error will have the opportunity to request redetermination.
SNF operators can also apply for a penalty reduction, if they can demonstrate “mitigating or aggravating factors” that led to noncompliance. State DOH Division of Legal Affairs will determine the final penalty amount and instructions from there.
Stephen Hanse, president and CEO of the NYS Health Facilities Association (NYSHFA), said it’s imperative that the state look at providers through the prism of a health care workforce crisis. There’s no factor more “mitigating or aggravating” than the workforce crisis the industry has found itself in, he said.
Post-acute operators in the Empire State have been forced to limit new admissions to comply with staffing ratios, creating bottlenecks, providers told Skilled Nursing News in January. At the beginning of this year, PBJ data found that 75% of the state’s 614 nursing homes could not meet the state’s 3.5 hour staffing mandate, and from 2019 to 2022, the number of empty nursing home beds in the state increased to 6,700, LeadingAge NY President and CEO Jim Clyne said at the time.
Nursing homes and major trade group LeadingAge New York eventually filed a lawsuit to block the law from going into effect last year, most recently presenting their respective arguments before the State Supreme Court Judge James Gilpatric on June 5.
The case is poised for a decision in late July or early August, the association said in a statement.
“The state needs to do more than just put out mandates,” said Hanse. “The state needs to implement and work with providers, work along the health care continuum to implement short-term, mid-term and long-term strategies to recruit and retain health care workers and especially nurses throughout New York State.”
The law requires nursing homes as of April 1, 2022, have minimum daily staffing hours equal to 3.5 hours per resident per day. Broken down further, the state requires facilities to have certified nursing assistant (CNA) care make up no less than 2.2 of these hours, and no less than 1.1 hours must be provided by either a licensed practical nurse (LPN) or registered nurse (RN).
And, it’s largely unfunded, a “terribly flawed provision” that hopefully the yet to be released federal staffing minimum mandate will take into account, Hanse said.
“The conversation on the federal level is funding,” added Hanse. “There’s a discussion, it’s not clear whether or not that will happen, but it’s part of the conversation. If you’re going to mandate this staff, you need to help fund this staff.”
Compliance will be determined on a quarterly basis, with the first quarter covering Jan. 1 to March 31, Q2 from April 1 to June 30, Q3 from July 1 through Sept. 30 and Q4 between Oct. 1 and Dec. 31.
Since the law’s implementation was suspended until April 2022, compliance reviews will start with Q2, the state DOH said in its memo. Suspension was tied to the state public health emergency issued by Gov. Hochul as the state saw a worsening staffing situation in the industry, but the declaration was discontinued June 30.
“There’s nothing that happened substantively on June 30 that solves New York State’s health care workforce staffing crisis. Given that, it is imperative that the State Department of Health apply a broad waiver to providers of this mandate, which, in many instances, is unattainable,” said Hanse.
Initial determinations of compliance will be issued based on data from the Centers for Medicare & Medicaid Services (CMS) Payroll Based Journal.
Ahead of assessments, the state agency suggested operators make sure administrator, administrator backup, operator and operator backup information is correct in Health Commerce System, the state’s software for web-based interactions between NYDOH and health care providers.
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