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PHHPC Reluctantly Approves Nursing Home Minimum Staffing and Spending Regulations

The Public Health and Health Planning Council (PHHPC) approved the nursing home minimum staffing and minimum spending regulations on Nov. 17th, after a heated discussion in which Council members objected strenuously to the regulations and to the Department of Health's (DOH) decision to schedule the vote on the day before the proposed regulations' expiration. Several Council members echoed LeadingAge NY's concerns regarding staffing shortages, the infeasibility of the staffing mandates, and the negative impacts of the mandates on the health system as a whole. Scott LaRue, CEO of ArchCare, who is a member of the PHHPC, spoke about his organization’s extraordinary efforts to recruit and retain staff and the inadequacy of Medicaid rates to cover staffing costs. However, the Department's decision to schedule the vote on the last possible date left the Council with no time to seek amendments.

DOH pressed the PHHPC to approve the regulations, notwithstanding Council members' substantive concerns, by arguing that the regulations offer the Commissioner more flexibility in mitigating penalties than the statutes allow. In fact, this was not accurate – both the staffing and spending statutes offer the Commissioner discretion to mitigate penalties and waive recoupments, and in some respects the mitigation provisions of the regulations are more stringent than the statute. However, the staffing regulations do provide an important clarification regarding the quarterly measurement of compliance.

While the Council approved the regulations, it also forcefully asked the Department to provide it with a briefing on implementation and to bring the regulations back to the Council for amendments. The Council further voted to seek a resolution asking the Legislature to make amendments to the statute. That resolution will be prepared for the next meeting on Dec. 7th.

During the public comment portion of the meeting, Andy Cruikshank, CEO of Fort Hudson Health System, spoke about Fort Hudson’s challenges in recruiting and retaining staff, the inadequacy of Medicaid rates, its closed beds, and backups in the local hospitals. LeadingAge NY's CEO, Jim Clyne, highlighted the association's data analysis showing that 75 percent of nursing homes cannot comply with the staffing levels, the overcrowding in emergency departments and hospitals occurring as a result of nursing home bed closures, and the negative impacts that penalties will have on resident care. Clyne also pointed out New York’s failure to increase Medicaid rates to align with rising costs while other states have increased rates substantially.

In addition to adopting the minimum hours and minimum direct care spending regulations, the PHHPC considered the nursing home personal protective equipment (PPE) stockpile regulation, which was on the agenda for both emergency adoption and permanent adoption. LeadingAge NY has submitted comments on this regulation throughout the regulatory process, pointing out that the formula for calculating the size of the stockpile results in excess supply and wastes health care resources. It appears that the PHHPC heard our concerns. At the PHHPC's request, DOH removed the regulation from the agenda for permanent adoption and committed to reconsidering the formula. The regulation was adopted on an emergency (60-day) basis only.

A recording of the PHHPC meeting is available here, Jim Clyne's statement is here, and LeadingAge NY's latest comments on the minimum staffing and minimum spending regulations and the PPE stockpile regulation are available here and here.

Contact: Karen Lipson, klipson@leadingageny.org