Update On Nursing Home Staffing Rules

March 31, 2022

ALBANY, NY – In 2021, the New York State Department of Health announced, that there were new regulations that were going to go into effect on January 1, 2022, that would require, among other things, that nursing home staff spend, the equivalent of, 3.5 hours per day on each patient.

Here is the language from that State Health Dept. regulation: Every nursing home shall maintain daily average staffing hours equal to 3.5 hours of care per resident per day by a certified nurse aide, registered professional nurse, or licensed practical nurse. Out of such 3.5 hours, no less than 2.2 hours of care per resident per day shall be provided by a certified nurse aide, and no less than 1.1 hours of care per resident per day shall be provided by a registered professional nurse or licensed practical nurse.

On December 31, 2021, Governor Kathy Hochul signed Executive Order 4.4, postponing these new regulations. That executive order will come to an end, at midnight.

Update 10:25am Fri Apr 1 – From Governor Kathy Hochul’s Office:

The provision of Executive Order No. 4 pertaining to the nursing home staffing requirements addressed staffing shortages exacerbated by the Omicron surge, with the understanding that the delay would be temporary. This provision will not be extended, and DOH has notified nursing home operators that beginning April 1, 2022, the law will take effect.
Please also see Governor Hochul’s FY 2023 Executive Budget Briefing Book (pages 90 – 99) where the State’s investment in the healthcare workforce, including direct support to workers who have continued to serve those in need throughout the COVID-19 pandemic is further mapped out, particularly the following:
$50 million will support implementation of the Green House nursing home initiative – an innovative care model based on the delivery of nursing home level care in real homes, and movement away from the traditional institutional nursing home model in favor of small residential houses where residents both live and receive care.
“INVESTING $10 BILLION IN HEALTHCARE AND STRENGTHENING HEALTHCARE WORKFORCE: The healthcare workforce is a vital part of New York State’s healthcare delivery system. All other healthcare priorities depend on a stable and strong workforce. The Executive Budget includes a multi-year investment of $10 billion that will rebuild and grow the healthcare workforce with a program designed to strengthen home care, improve the career pipeline and retention of the existing workforce, expand access to healthcare training and education, and recruit care workers to underserved areas, including:
§ Workforce Bonus. The State will invest $1.2 billion in a frontline healthcare worker bonus program to workers earning up to $100,000 annually program to incentivize the recruitment and retention of qualified frontline healthcare and direct support professionals. The bonuses will be tailored in varying amounts based on hours worked, and length of time in service.

§ Provider Rate Increases. To provide structural long-term support to providers so they are able to invest in better wages and improve their ability to compete for the most qualified healthcare professionals, Medicaid reimbursement rates will be increased, resulting in multi-year investments across all programs.

State Senator George Borrello issued the following statement:

“Under its current leadership, New York State has elevated the practice of denying reality to an art form, to the detriment of every resident and organization residing here.

“Today’s casualties are the state’s nursing homes, who are facing possible fines, admissions cutbacks or unit closures if Governor Hochul allows the executive order postponing enforcement of the new minimum staffing law to expire at midnight tonight.

“A historic healthcare workforce shortage has crippled an industry that was already struggling due to the state’s neglect to increase Medicaid rates in 14 years. The current daily nursing home reimbursement rate is $211- a shortfall of $55 a day compared to the actual cost of care, which is the largest gap of any state. In contrast, the state continues its grossly wasteful spending on the Non-Emergency Medical Transportation (NEMT) program, where one Medicaid-financed round-trip taxi ride to a doctor’s appointment in a rural area like mine can cost upwards of $300.

“The bottom line is that the applicants for these jobs simply do not exist right now, even though most nursing homes have cut other areas of their budgets to offer higher salaries in an attempt to fill open positions. By even the most conservative estimate, nursing homes would have to hire more than 12,000 nurses and aides to comply with the minimum hours requirements, a gap that has tripled since late 2019. The nursing home workforce shortage won’t change unless the state approves an increase in Medicaid reimbursement rates that is substantial enough to raise wages beyond current levels.

“I am calling on Governor Hochul to honestly assess this situation, look at the data, and then extend the postponement of the minimum staffing law until the state provides the extraordinary increase in funds necessary to meet this mandate.”