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Nursing Home Minimum Staffing and Spending Regulations to Be Considered for Adoption by PHHPC

State regulations mandating minimum staff hours and minimum direct care spending for nursing homes will be presented to the Public Health and Health Planning Council (PHHPC) for adoption on Thurs., Nov. 17, 2022. In a series of written and oral comments on the proposed regulations, LeadingAge NY has highlighted the impossibility of meeting the minimum staffing standards, given the health care workforce emergency and inadequate Medicaid rates. The comments on the minimum direct care spending regulation point out the chilling effect the regulation will have on capital improvements, including those that are important to infection prevention and quality of life. LeadingAge NY's most recent comments on the regulations are here. In an unrelated development, the lawsuit filed by LeadingAge NY in State Supreme Court challenging the minimum staffing and direct care spending requirements has been scheduled for oral argument on Tues., Dec. 20th.

The minimum staffing regulation is based on statutory provisions enacted in 2021 that require nursing homes to satisfy three tests of nursing hours per resident day (HPRD): 3.5 nurse and aide HPRD, 2.2 aide HPRD, and 1.1 nurse HPRD. The association has pointed out in its comments that, in the context of widespread workforce shortages, the threat of steep penalties under the statute has forced nursing homes to close units and limit admissions in order to approach compliance with the staffing standards. This in turn has prevented hospitals from discharging patients who need post-acute skilled nursing facility care and led to shortages of hospital beds.

The association's comments recognize that the regulation's approach to measuring compliance – on a quarterly average basis prior to imposing penalties for each day of non-compliance – is both consistent with the statute and administratively simpler than a more frequent measurement interval. However, we express concern that the regulation appears to violate Executive Order 4.4 by enforcing compliance beginning Jan. 1, 2022. We also raise concerns regarding the criteria that qualify facilities for mitigation of penalties. In particular, the regulation requires facilities to demonstrate that they have transferred residents in order to qualify for mitigation in the context of an "acute labor shortage." The comments note that State and federal regulations stringently limit involuntary transfers of residents, and if transferring residents is a prerequisite for mitigation, mitigation will be unavailable.

The minimum direct care spending regulation raises concerns in relation to the treatment of capital reimbursement and the chilling effect it may have on needed capital improvements to support infection prevention and quality of life. The association's comments noted that the regulation fails to identify the point(s) in time that a facility's star rating will be selected for purposes of determining whether capital reimbursement will be counted as revenue, thereby potentially impeding its ability to comply with the required spending ratio. Star ratings change frequently, and facilities must be able to project the financial implications of their capital projects.

In addition to the minimum staffing and minimum direct care spending regulations, the PHHPC will also consider, on Nov. 17th, the personal protective equipment (PPE) stockpile regulation. The association has also commented on this regulation, noting that the formula in the regulation drives the stockpiling of excess PPE and wastes precious health care resources. Our most recent comments are here.

Members are encouraged to speak at the PHHPC Codes Committee meeting, in relation to the minimum staffing regulations, to share their on-the-ground perspective on recruitment and retention challenges. To speak at the meeting, you must appear in person at either the Albany or New York City (NYC) location. Members may also comment on the direct care spending regulation, PPE regulation, or other regulations on the agenda. The following is some logistical information:

  • The meeting is on Thurs., Nov. 17th at 10:15 a.m. at the following two locations:
    • New York State Department of Health (DOH) Offices at 90 Church Street, 4th Floor, Conference Rooms 4A and 4B, Manhattan. (If you are attending in NYC, please send an email to PHHPC@health.ny.gov to have your name placed on a list of attendees.)
    • Empire State Plaza, Concourse Level, Meeting Room 6, Albany.
  • At the entrance to the meeting room, you will be asked to sign in and sign up for any regulations that you wish to address.
  • Speakers are generally asked to limit their remarks to three minutes.

LeadingAge NY will keep members apprised of developments in the promulgation of these regulations. 

Contact: Karen Lipson, klipson@leadingageny.org