Latest Release of Quarterly Staffing Data Shows Crisis Continuing in 2023
The most recent release of staffing data by the Centers for Medicare and Medicaid Services (CMS) shows that NY nursing homes continued to struggle to comply with State-mandated staffing levels, with little change observed from the previous quarter. Based on Payroll-Based Journal (PBJ) data for the first quarter of 2023, 78 percent of the state’s homes were unable to meet at least one of the specified requirements. This is almost the same proportion of homes that were out of compliance in the prior quarter. Among those out of compliance were nearly 50 homes that exceeded the overall requirement of 3.5 hours of nursing care per resident per day, but may face penalties because they did so with a staffing mix that provided residents with more hours of licensed and registered nursing care hours in place of aides. Unlike federal staffing quality measures, the State staffing mandates do not take resident acuity into account.
Regional and sponsorship differences persist in compliance rates: 12 percent of for-profit homes met the requirements, while approximately 40 percent of non-profit homes were compliant with all three thresholds. County-operated homes and state veterans' homes fared the best, with seven in 10 government-run homes able to meet all three requirements. Regionally, Long Island, the Hudson Valley, and the Rochester area showed the highest overall compliance rates, ranging from 25 to 30 percent. However, staffing challenges seemed to have increased in Western NY at the start of 2023: compared to the last quarter of 2022, the percentage of homes meeting the requirements dropped by five percentage points in Buffalo and 10 percentage points in the Rochester region. Compliance rates in NYC and the Capital Region remained below 20 percent.
Regardless of resident acuity or the support of therapy and activity staff, the legislation requires nursing homes to provide at least 3.5 hours of combined Registered Nurse (RN), Licensed Practical Nurse (LPN), and Aide hours per resident day. Of these, a minimum of 2.2 hours must be provided by Certified Nurse Aides (CNAs) and at least 1.1 hours must be provided by RNs or LPNs. While the hours of Aide Trainees counted as Aide hours in the first year that the law was in effect, as of 2023, only certified Aide hours can be counted. The regulations specify that a facility whose staffing falls below any of the requirements on a quarterly average basis will face a civil penalty of up to $2,000 per day for each day in the quarter that the facility fails to comply with any of the minimum nursing staff requirements, unless mitigating or aggravating factors exist.
In early July, the Department of Health (DOH) provided details on how it would begin determining compliance with the requirements and start assessing penalties as of April 2022. At the same time, the Commissioner of Health issued a determination that an "acute labor supply shortage" of nurses and aides existed statewide during the last three quarters of 2022, laying the groundwork for facilities to apply for reductions in penalties. Information on the process is available here. Last week, DOH issued a set of Frequently Asked Questions (FAQs), a document that was updated today (Aug. 1st) and is available here. However, the only substantive update appears to be a change to the date when providers may expect the first round of compliance letters to be posted to the Health Commerce System (HCS). The date indicated now is the last week of July, although no letters seem to have been posted as of yet.
LeadingAge NY members can access a staffing tool that displays daily, facility-specific staffing levels calculated using the latest PBJ data. The tool calculates daily staffing levels using eligible hours as specified in State law, compares them to the three staffing requirements, and highlights discrepancies. Members can find the download link here.
Contact: Darius Kirstein, dkirstein@leadingageny.org, 518-867-8841