ALBANY — The long-running complaint that some nursing homes are operating with too few employees persists, despite passage of legislation designed to address it.
The nursing home reform measures signed into law in 2021 require nursing homes to provide 3.5 hours of direct care per resident per day.
They also require some facilities to remit to the state any operating revenue in excess of 105% of operating expenses, as well as to dedicate at least 70% of revenue to patient care and 40% to salaries for employees who provide that care.
The measures were set to take effect Jan. 1, but Gov. Kathy Hochul on Dec. 31 signed an executive order delaying the start to Jan. 30 because of the widespread shortage of healthcare workers in New York.
Meanwhile, more than 230 nursing homes as well as a few of their trade organizations filed suit in federal court in Albany on Dec. 29 seeking to block the reforms from ever taking effect, arguing they are unconstitutional on multiple grounds.
Named as the defendant is Mary T. Bassett, acting commissioner of the state Department of Health, which would codify and enforce the reforms.
One of the strongest advocates of the reform measures — 1199SEIU United Healthcare Workers East, which represents workers at many New York nursing homes — last week restated the need for the staffing standards and urged Hochul to take steps so that they are achieved.
One of the largest parties to the federal lawsuit — NYS Health Facilities Association, which represents hundreds of for-profit, nonprofit and government nursing homes statewide, including those in the lawsuit — said nursing homes can’t afford to hire more people because the state has cut their funding year after year.
CHICKEN AND EGG
In comments to The Daily Gazette last week, both organizations advocated for essentially the same thing, but in opposite order: 1199SEIU wants the staffing requirement in place immediately and plans to advocate for more state funding, while NYSHFA said the funding has to be increased to allow more staff to be hired.
Dennis Short, senior policy analyst for 1199SEIU, said the argument that the workforce shortage makes hiring difficult is undercut by the fact that more than half of New York nursing homes were already meeting the 3.5 hours-per-resident standard in the second quarter of 2021 when the reform measures were signed into law by then-Gov. Andrew Cuomo.
“What that tells us is lots and lots of employers have been able to meet that standard, even [amid] COVID,” he said.
“Even before the pandemic started, if you asked nursing home workers what issue [was most important], it has always been short staffing. It prevents them from providing the care they know residents deserve.”
Nursing homes don’t have a hiring problem, he asserted, they have an employee retention problem.
Stephen Hanse, president and CEO of NYSHFA and the New York State Center for Assisted Living, said more than half of the two trade groups’ 450-plus members are operating in the red.
“We don’t have the money. That’s the problem,” he said.
While both sides advocate top-quality care for residents, the bottom lines of the industry and organized labor are inherently opposed: More staff per resident means more dues-paying members for unions but smaller profits for operators.
However, in some cases it’s in operators’ financial interest to increase staffing. A number of facilities are so understaffed that they can’t admit new residents, and are losing out on revenue because of it, Hanse said.
State data from late November, the most recent available, show a 14% vacancy rate in Capital Region nursing homes and 19% in facilities statewide.
Complaints of short-staffing have been frequent and often passionate over the years. But COVID, with its huge 2020 death toll in New York’s nursing homes, lit a fire under the issue.
In January 2021, state Attorney General Letitia James issued a report faulting then-Gov. Andrew Cuomo for decisions that may have boosted the death toll and for deliberately underreporting it. But her main criticism was of nursing homes themselves, particularly the for-profit sector.
Cuomo rejected the criticism of his administration but began loudly advocating for reform. Just a few months after James’ report, the Democratic-controlled Legislature had approved a reform package and Cuomo had signed it into law.
The reforms — which Hanse asserted 1199SEIU drafted with the state leaders behind closed doors with no industry input — don’t address the critical issue of Medicaid reimbursement for nursing home care, he said. After 14 years of cuts, New York offers the lowest rate in the nation, he said.
It costs on average of $265 a day to provide 24 hours of care to a single nursing home resident in New York, he said, and the state provides reimbursement of $209 a day.
“We had a crisis prior to the onset of the COVID-19 pandemic,” Hanse said, and from his perspective, the state reforms currently delayed from taking effect do nothing to solve it. He’s hoping the lawsuit and the shortage of healthcare workers will prompt revision of the 2021 reforms.
“We look forward to working in partnership with Gov. Hochul, legislators and organized labor in 2022,” he said.
Hanse said a good compromise would be to increase Medicaid reimbursement and require that the increase be dedicated to salaries.
Short said 1199SEIU will advocate for numerous priorities in the next few months as the 2022-2023 state budget is negotiated, and an increased Medicaid budget is one of them.
But before increased funding starts flowing to nursing homes, the standards codified in the reform measure need to be in place, he added, to be sure the money goes to address the problem.
The financial penalties of the 5% and 70-40 provisions in the nursing home reform measures are the crux of the federal lawsuit that 242 players in New York’s nursing home industry filed in Albany on Dec. 29.
Almost all the plaintiffs are nursing home operators, and one by one in the court filing they list the sums the penalties would have cost them in 2019.
In Schenectady County, the calculated penalties include $557,150 for Kingsway Arms; $2,909,349 for Schenectady Center for Rehabilitation and Nursing; and $3,849,039 for Pathways Nursing & Rehabilitation Center.
The lawsuit challenges the reform law on the following grounds:
- As a violation of the Fifth and Fourteenth Amendments to the U.S. Constitution (which spell out equal protection and due process) for the manner in which it seizes nursing home profits and because it bears no rational relationship to legitimate government purpose;
- As a violation of the Supremacy Clause of the U.S. Constitution (subordinating state law to federal law) by seizing money paid to the nursing homes by the federal government;
- As a violation of the Eighth Amendment (which bars excessive fines);
- As a selective interference with the collective bargaining process mandated by the National Labor Relations Act;
- And because federal regulators have not approved implementation of the reform measures, as is required by the federal Medicaid Act.
The plaintiffs seek permanent blockage of the state enforcing any aspect of the 2021 reforms. They also seek legal costs and any other relief the court deems appropriate.
MAKING THE RULES
Meanwhile, as Hochul’s executive order puts the reforms on hold and the industry’s lawsuit attempts to block them forever, 1199SEIU is continuing its advocacy: The state Department of Health has not formally codified the regulations to enforce law.
Short said one problem so far is that DOH is looking at compliance with minimum staffing levels as an average of days over a three-month quarter.
In other words, there can be some days where residents get less than 3.5 hours of one-on-one care as long as there are enough days where they get more than 3.5 hours so that it averages out to more than 3.5 hours over the three months.
Regulatory agencies’ own data show staffing levels plunging on weekends and jumping on weekdays. So on the quarterly average, a nursing home can still be in compliance with the 3.5-hour rule while its residents are getting substandard care two out of every seven days.
This defies the letter and the spirit of the law, Short said
“We think it should be based on how the law is written,” he said. “Employers need to figure out how to staff on weekends.”
He acknowledged that this is not an easy task.
Most labor contracts contain a provision giving employees alternating weekends off, Short said, automatically dropping a facility to half-staff unless it takes other measures.
Those could include incentives for employees to add a weekend day to their schedules or creation of incentivized weekend-only shifts, he suggested.