Public comments on changes to New York state’s proposed new minimum staffing requirements for nursing homes are due by the end of Monday. The union representing 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.
Representatives of the health care workers union SEIU1199 said the new rules won’t solve New York’s staffing shortages that worsened during the COVID-19 pandemic, when over 10,000 nursing home residents died from the disease.
Nursing home operators have argued that they cannot meet the new standards, which require a daily minimum of three and a half 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, because there simply aren’t enough workers.
But Grace Bogdanove, the union’s vice president for western New York, said that’s a myth. She said there are enough nurses and certified nursing assistants available, 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 offering 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 standards of care was approved by then-Governor Andrew Cuomo and the Legislature in May of 2021. It was to take effect in January of 2022, but Governor 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 dollars 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 standards of three and a half 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 means 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.”
Jeffrey Hammond, a spokesman for the health department, 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 dollars a day.
Nursing home owners continue to disagree with the union and other advocates. They have said complying with the law will result in fewer beds at nursing homes and even the closure of some homes. More than three hundred for-profit and nonprofit homes have filed two separate lawsuits challenging the law.
