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Nursing Home Minimum Staffing and Spending Regulations Adopted

The regulations implementing the nursing home minimum staffing and minimum direct care spending laws were adopted and took effect last week, on Dec. 7, 2022. The regulations enforce statutory standards effective as of April 1, 2022 (suspended from Jan. 1st until April 1st by Executive Order 4.4). The minimum staffing law and regulations require nursing homes to provide a minimum of 3.5 hours per resident day of nurse and aide care, of which at least 2.2 hours must be provided by certified nurse aides or, in 2022, aides-in-training, and at least 1.1 hours must be provided by a nurse. The minimum direct care spending law and regulations require nursing homes to spend at least 70 percent of operating revenue on direct resident care, of which at least 40 percent must be spent on resident-facing staffing. It also caps surplus of operating revenue over operating and non-operating expenses at no more than 5 percent of those expenses.

Summaries of the Regulations and Open Questions

A summary of the minimum staffing regulations is available to members here, and a summary of the minimum direct care spending regulations is here. The adopted regulations are virtually identical to the proposed regulations published in August. Many questions regarding the implementation of the regulations remain unanswered, although some are acknowledged in the assessment of public comments accompanying the Notices of Adoption in the State Register (pp. 21-27). In particular, the process for seeking mitigation of staffing penalties in the event of extraordinary circumstances, including declared emergencies, and during acute labor shortages has not been detailed. Nor has the Department of Health (DOH) indicated whether the current pandemic and health care workforce emergencies qualify as "extraordinary circumstances" or whether the Commissioner has determined that an acute labor shortage exists. LeadingAge NY will be following up with the Department to obtain answers to these questions.

Member Tools

LeadingAge NY has developed several tools for members to assist in tracking their compliance with the regulations and seeking mitigation of staffing penalties. A Payroll-Based Journal (PBJ) tool that compares facility-specific staffing to the state requirements is available to members here, and a sample Mitigation Data Collection Form for members to use to document and demonstrate their efforts to comply with the staffing requirements is here. A revenue and expense template to track compliance with the direct care spending requirements is being updated and will be posted shortly.

PHHPC Debate and Legislative Advocacy

The staffing and spending regulations were approved by the Public Health and Health Planning Council (PHHPC) earlier this month after a heated discussion in which the PHHPC raised concerns about workforce shortages and the impact of the regulations on access to care across the health care continuum. At last week's PHHPC meeting, the Council approved a letter to the chairs of the relevant legislative committees seeking amendments to the law.

LeadingAge NY submitted extensive and repeated comments on these regulations to DOH and to the PHHPC, focusing on the inadequacy of Medicaid rates, the lack of available staff, and several fundamental and technical flaws in the statute and proposed regulations. The association, together with dozens of members, has also filed a lawsuit challenging the laws based on more than a dozen legal defects, including violations of the state and federal constitutions, violations of federal Medicaid and Medicare requirements, and preemption by federal labor relations and nursing home laws. A hearing in that lawsuit is scheduled for Dec. 20th. The association will be seeking amendments to the statutes during the legislative session and will be counting on members’ engagement in our advocacy efforts.

LeadingAge NY will alert members to any additional information regarding the implementation of the regulations or the status of the lawsuit.

Contact: Karen Lipson, klipson@leadingageny.org, or Darius Kirstein, dkirstein@leadingageny.org