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New PBJ Data Tell Old Story

The latest figures on direct care staffing in nursing homes suggest that the shortage of Registered Nurses (RNs), Licensed Practical Nurses (LPNs), and Aides is not improving. Three in four homes in NYS were unable to meet the State’s mandated staffing levels based on data from the final quarter of calendar year (CY) 2022 released by the Centers for Medicare and Medicaid Services (CMS) on April 26th.

Statewide, 77 percent of homes were unable to meet one or more of the staffing requirements implemented in 2022. A significant difference in compliance remains along sponsorship lines: only 11 percent of for-profit homes met the requirements, while 42 percent of non-profit homes were compliant with all three thresholds. County-operated homes and state veterans’ homes fared the best, with three in four government-run homes able to meet all three requirements. When examined regionally, the Rochester area showed the highest overall compliance of nearly 40 percent, with NYC and the Capital Region both below 20 percent. The Rochester region had the lowest use of contract staff, reporting 7.2 percent of Aide hours as contracted, with the neighboring Buffalo region reporting 18.2 percent of Aide hours provided by contract staff. The NYC and the Capital Region rate was just under 17 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 RN, 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. Despite meeting the 3.5-hour standard due to a high RN and LPN ratio, 30 homes were out of compliance for failing the 2.2-hour Aide mandate.

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. While no penalties have been assessed as of yet, the Department of Health (DOH) has not indicated when that will occur and whether such penalties would reach back to the second quarter of 2022. DOH has not yet released any determinations on whether there are acute labor supply shortages of aides or nurses in areas of the state. Such quarterly determinations are needed for the State to consider penalty mitigation requests contemplated in the regulations.

LeadingAge NY members can access a staffing tool that displays daily, facility-specific staffing levels calculated using the latest Payroll-Based Journal (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