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New York Passes Nursing Home Staffing Ratios

Despite a persistent statewide health care workforce shortage and new Census data indicating a continued decrease in the proportion of individuals of working age, both the Senate and Assembly passed a bill requiring minimum staffing ratios for nursing homes. While the recently enacted State Budget includes some funding dedicated for nursing home staffing, State policymakers have yet to address the workforce crisis in any meaningful way.

The action comes on the heels of provisions enacted by the 2021-22 State Budget that require homes to spend 70 percent of revenue on “resident care” and 40 percent on “resident-facing staff.” While the majority of LeadingAge NY members already meet the “40/70” spending requirements, most will experience a financial impact of the staffing ratios requirement as competition for staff increases.

As passed, the staffing ratio provisions will require that nursing homes provide at least 3.5 hours of nursing care per resident day, of which at least 2.2 hours must be provided by an aide and at least 1.1 hours by a registered nurse (RN) or licensed practical nurse (LPN). Monitoring for enforcement purposes is expected to be done using Payroll-Based Journal (PBJ) data reported to the Centers for Medicare and Medicaid Services (CMS). Homes will be expected to meet the minimum requirements on a daily basis. To project the potential impact of the requirement on their organization, members should review their daily PBJ data for a timeframe that they estimate would be most representative of 2022. We will be distributing example PBJ runs to members later this week.

For purposes of counting RN and LPN hours, hours reported for directors of nursing (DONs) and nurses with administrative duties will be excluded. Aide trainees will be counted only in the first year; starting in 2023, only certified nurse aides (CNAs) who are listed in the nursing home nurse aide registry will be counted. The legislation is effective Jan. 1, 2022 and requires the Department to establish civil penalties for facilities out of compliance, which would begin April 1, 2022. In establishing penalties, DOH is required to consider mitigating factors such as catastrophic events, frequency of non-compliance, and the existence of acute regional labor shortages.

Members should note that the implementation details of both the staffing ratios and 40/70 provisions will be established through regulation. While it is unclear when and how the funding appropriated in the State Budget for nursing home staffing will be distributed, the budget does limit that funding to homes that meet the 40/70 spending requirements. (For a summary of the 40/70 requirements, please see page 11 of our final budget overview memo available here.)

The association’s Legal Services Committee is evaluating both issues for potential litigation, while several other entities have signaled an intent to mount a legal challenge. We will keep members informed of developments and will be sharing informational materials and educational sessions on both of these provisions going forward. Please contact us if you need additional information on evaluating the impact of the provisions on your organization.

Contact: Darius Kirstein, dkirstein@leadingageny.org, 518-867-8841