LeadingAge Advocacy on State and Federal Staffing Mandates: Updates
(April 8, 2025) In letters to the Governor, Commissioner of Health, and Public Health and Health Planning Council this week, LeadingAge NY disputed the Commissioner's determination that there were no nurse or aide shortages in most of the state in the latter half of 2023 – a conclusion that is inconsistent with the actual experience of providers in the field. Under State staffing regulations, nursing homes located in areas without a declared staffing shortage cannot seek a reduction in penalties for non-compliance with the State's staffing mandates, unless they experienced a disaster or union dispute. LeadingAge NY has requested a change in the methodology used to determine the existence of shortages and an opportunity for nursing homes statewide to seek a reduction in staffing penalties.
Separately, in a lawsuit filed by LeadingAge National and the American Health Care Association, a U.S. district court in Texas has vacated federal regulations imposing minimum nurse and aide hours-per-resident-day (HPRD) and 24/7 registered nurse on-site coverage requirements in nursing homes nationwide. The court held that the Centers for Medicare and Medicaid Services exceeded its authority by promulgating a nurse on-site coverage regulation that goes beyond the requirements of the applicable statute and a rigid HPRD standard instead of the more flexible staffing standard set forth in law. This decision does not impact other aspects of the federal staffing regulations (e.g., facility assessment changes), nor does it impact NY's regulations.
LeadingAge NY's letter regarding the State's staffing shortage determination noted that in order to achieve the State's mandated hours, nursing homes will either have to reduce occupancy by another 8,400 beds, in addition to the 7,200 beds that are currently being kept vacant due to staffing shortages, or hire an additional 1,500 aides and nurses at a cost exceeding $75 million annually. As a result of the non-shortage determinations, many, if not most, nursing homes are now facing severe penalties of up to $180,000 per quarter without the ability to seek a reduction. The letter pointed out that these penalties will only deplete the resources of facilities that are already facing a 25 percent shortfall between Medicaid rates and costs. Rather than promoting better staffing, they will further diminish the ability of nursing homes to recruit more staff.
The letter also highlighted the flaws in the methodology that the Department of Health used to determine that there were no staffing shortages during the last two quarters of 2023. The determination was based on a national average provider-to-population ratio, which itself reflects a nationwide shortage of nurses and aides. To qualify as a shortage area under the Department's methodology, a region's provider-to-population ratio had to be 20 percent lower than the depressed national average. LeadingAge NY pointed out that this national benchmark does not take into account the unique features of NY's health care labor market. Nursing homes in NY must compete for staff with a wide array of employers and are hindered in offering competitive wages by Medicaid rates that are among the worst in the nation when compared to costs.
LeadingAge NY will keep members updated on developments in relation to staffing mandates. LeadingAge NY's letters are available here and here. Information about responding to notices of non-compliance is available here.
Contact: Karen Lipson, klipson@leadingageny.org