No Reprieve of Staffing and Minimum Spending Mandates

Despite staffing shortages that are forcing numerous nursing homes to suspend admissions and close units, the State is moving forward with staffing level requirements that are set to go into effect on Jan. 1, 2022. As of that date, nursing homes are required to maintain staffing levels of 3.5 hours of nursing care per resident per day, of which 1.1 hours must be provided by a registered nurse (RN) and/or licensed practical nurse (LPN) and 2.2 hours by a certified nurse aide (CNA). The remaining 0.2 hours (to reach 3.5 hours) can be provided by any combination of RN, LPN, or aide hours.

We remind members that the legislation defines compliance using specified Payroll-Based Journal (PBJ) data which is more restrictive than the staffing calculation used by the Centers for Medicare and Medicaid Services (CMS) in the Five-Star Quality Rating System. Nurses with administrative duties as well as directors of nursing are excluded. Nurse aide trainees reported through PBJ are included only in the first year (i.e., 2022).

The legislation reiterates existing requirements regarding the public posting of nursing staffing information, adding the requirement that a summary of the new minimum staffing levels provisions provided by the Department of Health (DOH) be posted in the same area.

With the State’s attempts to address the staffing emergency by mobilizing some National Guard troops and attempting to make contract agency staff more available being woefully insufficient in solving the crisis, there is little choice other than litigation. Unavailability of staff and sharp cost increases combined with stale and inadequate Medicaid reimbursement make it impossible for most providers to meet the new requirements. The association will file a legal challenge to both staffing level and minimum spending statutes on behalf of the association’s nursing home members. We will provide more detail once the litigation has been filed.

In the meantime, we recommend that members do their best to come into compliance while documenting the steps they have taken to try to meet the new staffing requirements.

While the minimum spending requirements are effective Jan. 1, 2022, compliance will be measured using the Medicaid cost report for 2022, which is expected to be due only in July 2023. LeadingAge NY will offer further education regarding the minimum spending legislation, which is briefly summarized here. A brief summary of the staffing levels provisions is here. Additional modeling resources have been sent to nursing home CFOs. Please contact us with questions and concerns.

Contact: Darius Kirstein, dkirstein@leadingageny.org, 518-461-5993 or Karen Lipson, klipson@leadingageny.org, 518-867-8838