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NY Lawmakers Mandate Minimum Staffing For Nursing Homes, Hospitals

The New York State Capitol
Jackie Orchard

The New York State legislature on Tuesday approved measures that would require hospitals and nursing homes meet minimum staffing levels of nurses and other health care workers.Measures mandating minimum staffing at health care facilities have been around for several years, but the spotlight on stressed and understaffed hospitals and nursing homes during the COVID-19 pandemic finally prompted the bill’s passage.  

Senate sponsor and Health Committee Chair Gustavo Rivera spoke before the vote. 

“This is an historic moment,” said Rivera, who said in the decade he’s held office, he’s had more meetings on the topic than any other issue.  

The measures provide different approaches to hospitals and nursing homes.

The state Health Commissioner would establish minimum staffing levels for nursing homes, and would impose civil penalties if the homes fail to meet the minimum standards. Each resident would receive an average of three and half hours of care a day from, with at least one hour from registered or licensed practical nurses, and two hours from certified nursing assistants. The new rules would take effect in January.

The measure comes after a provision in the state budget that requires nursing homes to spend 70% of their revenue on direct patient care, and 40% on direct care providers.

The bill that regulates hospital workers sets up clinical staffing committees in hospitals to determine staffing guidelines and decide the proper ratio between patients and staff. The panels would include hospital administrators, as well as registered nurses, licensed practical nurses, and other staff that provides direct patient care.

The legislation is backed by health care unions including the New York State Nurses Association and the health care worker union 1199 SEIU.

Nurses’ union treasurer Nancy Hagans says the measures are a “good start.”  

“Finally, we could have a strong law and the tools we need to advocate for our patients,” Hagans said.

Rudy Sokna, an RN and SEIU union member who works in a nursing home, says even before the pandemic, his workplace was understaffed. And he says the pressure mounted when COVID struck. Sokna says he never had enough time to talk to family members who wanted to know how their loved ones were faring, when many were ill and dying.  

“It’s like seeing your own family members dying in front of you,” said Sokna, who said he was often the only one there with the residents in their final hours. “I felt helpless.”   

The measure is backed by the state’s major hospital lobbying groups. The Greater New York Hospital Association, and the Health Care Association of New York. HANYS’ President Bea Grouse says the addition of the staffing committees gives hospitals “flexibility” in making staffing choices.   

But some nursing home owners say it could be difficult for them to meet the new standards. Michael Balboni is executive director of the Greater New York Health Care Facilities Association (GNYHCFA), a non-profit trade association representing downstate nursing homes. He says nursing homes have struggled for decades to find enough trained staff, and he says the state has not done enough to help recruit and retain nursing home staff. 

“We haven’t done anything to develop the workforce,” Balboni said. “And this has been an issue way before pandemics.”

And he says many nurses, after a long and difficult year, are leaving the profession. 

Balboni says state lawmakers cut Medicaid reimbursement rates that pay the costs of caring for many of the residents. At the same time, costs rose for PPE and other equipment needed to meet COVID-19 protocols. 

The virus took a tremendous toll on nursing home residents and staff. 15,000 residents died of the disease in the homes and other long-term care facilities. Democratic Governor Andrew Cuomo and his staff’s handling of the death numbers are the subject of a federal investigation, and a January report by State Democratic Attorney General Tish James was critical of many nursing home practices.  

Balboni says that some nursing homes might have to close if they have to meet the new standards, and he says the approach should be collaborative to find a solution, not punitive.

“We should learn the lessons from this horrible time, and we should institutionalize the things that worked, and jettison the things that didn’t,” Balboni said. “This legislation is driven by the union, and it’s been very successful, but it’s not necessarily going to affect outcomes.”  

Senate sponsor Rivera says he believes the nursing homes will be able to cope with the new staffing standards and survive.

The bills now go to the governor’s desk to sign or veto. A spokesman for Cuomo, was non-committal, saying the safe staffing measures are “under review.”

For more on the nursing home staffing legislation, WAMC's Jim Levulis spoke with AARP New York State Director Beth Finkel. She says AARP has some reservations about the measure. 

WAMC's Jim Levulis speaks with AARP New York State Director Beth Finkel.

Finkel: Right now, it's got a 3.5 hourly rate [per patient]. But the CMS recommends 4.1. So we feel like New York state needs to look at the threshold that CMS has suggested for nursing homes. We're also concerned because they lump together RNs [registered nurses] and LPNs [licensed practical nurses] together in that ratio. And we know that if registered nurses are giving more services directly to the patient that the quality of care for the patient shoots way up. So we need to be looking at that.

Levulis: Now overall, have the investigations into New York's handling of COVID-19 in nursing homes, including death data, made nursing home residents and their families question the safety of the facilities and that the overall nursing home system has residents’ health and needs as the top priority?

Finkel: Well, I think you're absolutely right. I think that's why New York State has actually taken some very good actions. I mean, they've taken care of looking at safe, compassionate care and personal care, visitation, I think we all know that you can never visit someone, a loved one, in a nursing home. There also has been changes in the requirements for safe and appropriate discharge from facilities which we are very happy about. And most importantly, there's been a repeal of the legal immunity to hold nursing homes accountable for the most egregious violations. And that's been very, very important to AARP, because we know the families really don't want to litigate. But they have to be able to know that they can go there, they have to have some recourse, you know, if their family members, or the resident themselves has not gotten the care that they're supposed to get. So we're really happy that there was that repeal of the legal immunity. And also finally, in New York, it was passed requiring nursing homes to spend at least 70% of their revenue on direct care, and we feel like that is also a step in the right direction.

Levulis: And when it comes to the safety of nursing homes and the care – if someone is looking at entering a nursing home, or moving to a different one, what should that person and their families be looking for? What sort of information should they keep their eyes out for?

Finkel: Well, I guess first of all, what is the situation with COVID-19 vaccinations both for the residents and for the staff? What's the situation with testing? How has that monitored now? Also, how are the nursing homes keeping their residents in touch with their families? And then most importantly, as I was just stressing, what is the full staffing level for nurses, aides and other workers because it varies from facility to facility, and that is absolutely crucial to make sure that a resident is getting great care. There is any number of other items and I would suggest that people might want to go to our website at www.aarp.org/nursinghomes because it lists all the questions you should be asking a nursing home facility.

Levulis: Are you seeing that the impacts COVID-19 are changing the way older New Yorkers are viewing alternative forms of care such as in-home care?

Finkel: Oh, absolutely. You know, this is all about the continuum of care. And AARP has been serving our members, I’m at AARP 25 years, and we consistently get the same response. The vast, vast majority of people want to live out their days in their own homes and communities in the neighborhoods that they built up. And so how we can make sure that that happens for them, both for their own dignity and to respect the wishes of the individual, but also it's the financially responsible thing to do. Because if someone goes into a nursing home, most people, the bill is paid by Medicaid. And then that means that we as a society pay for that. That means our government pays for that. And so what we want to do is keep down the costs, both because it's the fiduciary responsible thing to do, but also because that is what people want to do. They created their neighborhoods, they've built them up over the years. And by the way, they keep the maintenance going on. And by paying their local property taxes and by frequenting their local stores. That's what we call the longevity economy, which is unfortunately overlooked very often. And it really is a basis for local government, for their tax coffers.

Levulis: And from AARP’s standpoint, is the workforce there in New York for in-home care at its current level or an expansion? I hear that, you know, particularly in rural areas of New York, it's difficult if you do want to age in your home, to find someone who, you know, an aide someone who might be there, you know, three, four days a week, for a couple hours on end. From AARP’s standpoint does those there needs to be an expansion of that workforce?

Finkel: No question about it, we have to figure out a way to not only get the personnel that we need in place, but also how to maintain them. There's a huge turnover. So you've got both the part about what you were just saying about being able to have the staffing available to meet the need. But also we need to look at the quality of those caregivers and to ensure that they're getting what they need so that they see this as a career that they can contribute to. Caregivers are very passionate, dedicated labor force and we need to support that as much as we possibly can.

Karen DeWitt is Capitol Bureau chief for New York State Public Radio, a network of public radio stations in New York state. She has covered state government and politics for the network since 1990.
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