Public comments on changes to New York state’s proposed new minimum staffing requirements for nursing homes were due by the end of Monday.
The health care workers union SEIU 1199, which represents many of the state’s nursing home workers, said the health department’s proposed rules fall short and undermine the intent of the 2021 law.
Union representatives said the new rules won’t solve New York’s staffing shortages, which worsened during the COVID-19 pandemic, when more than 10,000 nursing home residents died from the disease.
Nursing home operators have argued that they cannot meet the new standards because there simply aren’t enough workers. The standards require a daily minimum of 3.5 hours of clinical care for each resident — 1.1 hours by a registered nurse or LPN, and 2.2 hours by a nurse’s aide.
But Grace Bogdanove, the union’s vice president for western New York, said that’s a myth. There are enough nurses and certified nursing assistants available, she said, but poor working conditions, including inadequate wages and benefits, have led many to seek employment elsewhere.
“The reality is that there are enough nursing home workers to meet the standard,” Bogdanove said. “Employers are actually driving workers away from the bedside by offering low wages, poor benefits, and operating ineffective recruitment and retention policies and practices.”
The union said those policies have led to an annual staff turnover rate of 45%.
The law to impose new minimum care standards was approved by then-Gov. Andrew Cuomo and the Legislature in May 2021. It was to take effect in January 2022, but Gov. Kathy Hochul postponed its start until April, citing a worker shortage due to the pandemic.
In August, the state health department issued revised draft regulations. The union and other advocates said they are most concerned about a proposal to eliminate a penalty of up to $300 a day for nursing homes that don’t comply with the law’s requirement if the operators can demonstrate that there were mitigating circumstances.
Richard Mollot, executive director of the Long Term Care Community Coalition, said the law can only be meaningful if it is properly enforced.
“Sadly, DOH’s proposed regulations go in the opposite direction,” Mollot said. “Favoring powerful industry interests over vulnerable seniors and workers who, though we call them heroes, are often exploited.”
The health department is also proposing that compliance for the daily minimum standard of 3.5 hours of clinical care would be measured on a quarterly basis, not a daily basis.
Beth Finkel with AARP said that would allow the practice of understaffing on weekends to continue, and would mean that on some days, residents would not receive even a minimum standard of care.
“People need help every single day,” Finkel said. “It can’t be one day you give them one hour, and another day you give them four hours. It doesn’t work like that. People have needs every single day.”
A spokesman for the health department, Jeffrey Hammond, said the proposal to end the $300 daily penalty gives regulators “greater discretion in assessing penalties.” And he said there are still more steps before the new rules become permanent, including a report on all of the public comments about the changes, before any regulations are made permanent.
The new proposed regulations say that if a nursing home cannot prove that mitigating factors exist to prevent them from following the law, then they would be fined an even stiffer penalty of up to $2,000 a day.
Nursing home owners continue to disagree with the union and other advocates. They say complying with the law will result in fewer beds at nursing homes and even the closure of some homes. More than 300 for-profit and nonprofit homes have filed two separate lawsuits challenging the law.