ALBANY — There is a long-running complaint that some nursing homes are operating with too few staff, despite the passage of legislation designed to address it.
Nursing home reform measures signed into law in 2021 require nursing homes to provide 3.5 hours of direct care per day per resident.
They require certain facilities to remit any operating revenue in excess of 105% of operating expenses to the state, with at least 70% of revenue devoted to patient care and 40% of wages to those employees. who provide this care.
The measures were set to take effect on January 1, but on December 31, Governor Kathy Hochul signed an executive order beginning January 30 due to a widespread shortage of healthcare workers in New York.
Meanwhile, more than 230 nursing homes, as well as some of their business organizations, sued in federal court in Albany on December 29, seeking to prevent the reforms from ever taking effect, arguing that many grounds are unconstitutional.
Named as the defendant, Mary T. Bassett, the acting commissioner for the state’s health department, will codify and implement the reforms.
One of the strongest advocates of the reform measures – 1199SEIU United Healthcare Workers East, which represents workers at several New York nursing homes – last week reinstated the need for staffing standards and urged Hochul to take steps to achieve them. To be.
One of the largest parties to the federal lawsuit — the NYS Health Facilities Association, which represents hundreds of for-profit, nonprofit and government nursing homes statewide, including those involved in the lawsuit — said nursing homes are at risk of over-hiring people. Can’t lift because states have cut their funding year after year.
chicken and egg
In comments to The Daily Gazette last week, the two organizations advocated essentially the same thing, but in opposite order: 1199SEIU wants the staffing needed immediately and plans to advocate for more state funding, while NYSHFA said the funding was to be increased. Allow more employees to be hired.
Dennis Short, senior policy analyst at 1199SEIU, said the argument that workforce shortages have made hiring difficult is undermined by the fact that more than half of New York’s nursing homes are already operating at 3.5-hour-per-day rates in the second quarter of 2021. Residents were meeting the standard. When the reform measures were signed into law by the then government. Andrew Cuomo.
“What that tells us is there are many and many employers able to meet that standard, even [amid] COVID,” he said.
“Even before the pandemic started, if you asked the nursing home staff what was the problem? [was most important], it has always been less staff. It prevents them from providing the care they know residents deserve.”
Nursing homes don’t have a hiring problem, he insisted, they do have an employee retention problem.
Stephen Hansey, president and CEO of the NYSHFA and the New York State Center for Assisted Living, said that of the more than 450 members of the two trade groups, more than half are working in the red.
“We don’t have money. That’s the problem,” he said.
While both sides advocate for higher-quality care for residents, the bottom lines of industry and organized labor are naturally opposed: more workers per resident means members paying more dues to unions but operators. for less profit.
However, in some cases increasing the workforce is in the financial interest of the operators. Many facilities are so small that they cannot accept new residents, and this is causing a loss on revenue, Hans said.
State figures from the end of November, the most recent available, show a 14% vacancy rate in nursing homes in the capital region and 19% in facilities across the state.
long standing issue
Complaints about short-staffing have been frequent and often passionate over the years. But with the deaths in 2020 in New York nursing homes, COVID came under fire under the issue.
In January 2021, state Attorney General Letitia James issued a report faulting the then-government. Thanks to Andrew Cuomo for decisions that may have raised the death toll and deliberately underestimated it. But his main criticism was the nursing home itself, especially the for-profit sector.
Cuomo rejected criticism of his administration but went on to advocate reform vigorously. Just a few months after James’ report, a reform package was approved by the Democratic-controlled Legislature and Cuomo signed it into law.
The reforms – which Hans drafted to 1199SEIU behind closed doors with state leaders without any industry input – do not address the critical issue of Medicaid reimbursement for nursing home care, he said. After a 14-year deduction, New York offers the lowest rate in the country, he said.
It costs an average of $265 per day to provide 24-hour care to a nursing home living in New York, he said, and the state provides reimbursement of $209 per day.
“We had a crisis before the start of the COVID-19 pandemic,” Hans said, and from his point of view, delaying state reforms to take effect does nothing to solve it. He’s hoping the lawsuit and a shortage of health workers will prompt a revision of the 2021 reforms.
“We look forward to working in partnership with Sarkar Hochul, legislators and organized workers in 2022,” he said.
Hansey said a good agreement would be to increase Medicaid reimbursement and require that the increase be devoted to pay.
Short said that 1199SEIU will advocate for a number of priorities over the next few months as the state budget for 2022-2023 is negotiated, and the increased Medicaid budget is one of them.
But before the increased funding begins to flow into nursing homes, there is a need to put in place codified standards in reform measures, he said, to ensure that the money goes to address the problem.
The fiscal penalty of 5% and 70-40 provisions in nursing home reform measures is the crux of a federal lawsuit that was filed on December 29 in Albany by 242 players in New York’s nursing home industry.
Nearly all plaintiffs are nursing home operators, and one by one in court filings they list the amounts they will have to pay as penalties in 2019.
In Schenectady County, the calculated penalty includes $557,150 for Kingsway Arms; $2,909,349 for the Schenectady Center for Rehabilitation and Nursing; and $3,849,039 for the Pathway Nursing and 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 state equal protection and due process) because of the way it confiscates nursing home profits and because it makes no rational connection to a lawful governmental purpose;
- as a violation of the supremacy clause of the US Constitution (state law subject to federal law) by forfeiting funds paid to nursing homes by the federal government;
- as a violation of the Eighth Amendment (which prohibits excessive fines);
- as a selective intervention in the collective bargaining process mandated by the National Labor Relations Act;
- And because federal regulators have not approved the implementation of the reform measures, as required by the federal Medicaid Act.
The plaintiffs want a permanent blockade of the state to implement any aspect of the 2021 reforms. They also seek legal costs and any other relief the court may deem fit.
In the meantime, as Hochul’s executive order halts the reforms and industry sues seeks to block them forever, 1199SEIU continues its advocacy: the state’s health department seeks regulations to enforce the law. has not been formally codified.
Short said one problem so far is that the DOH is looking at compliance with minimum staffing levels as the average number of days in a three-month quarter.
In other words, there may be 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 this is on average be more than 3.5 hours. month.
Regulatory agencies’ own data shows staffing levels drop on weekends and rise on weekdays. So on a quarterly average, a nursing home may still be in compliance with the 3.5-hour rule, while its residents are receiving substandard care two out of every seven days.
It defies the spirit of the letter and 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 up on weekends.”
He acknowledged that it was not an easy task.
Most labor contracts have provisions for employees to take alternate weekends off, Short said, automatically leaving a facility with half the workforce unless it takes other measures.
He suggested that it might include incentives for employees to add a weekend day to their schedules or to create incentives for weekend-only shifts.
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