Nursing Home Staffing Levels Requirement Update
In June 2021, former Governor Andrew Cuomo approved a law that established minimum staffing levels for nursing homes and required nursing homes to boost spending on resident care. Governor Kathy Hochul postponed the initial enforcement of the law through the end of March 2022 and declined to extend the postponement of this controversial law in her March 31, 2022 Executive Order. This means that the law and rules about minimum staffing levels are now in effect and fully enforceable.
Briefly, the law requires that nursing homes spend at least 70% of their revenue on direct patient care and 40% on resident-facing staffing. The law also requires that nursing homes meet a daily average of 3.5 hours of nursing care per resident per day and post information regarding nurse staffing for each facility. There are potential civil and monetary penalties for noncompliance.
Mitigating factors may include (1) extraordinary circumstances facing the facility, such as officially declared emergencies or natural disasters; (2) the frequency of the violations of the facility; and (3) the existence of a nurse labor shortage in the area of the nursing home.
Nursing facilities should keep careful documentation of their efforts to comply and mitigating factors to avoid or diminish penalties. It is important to note that a nursing home’s inability to secure sufficient staff is not a defense if the lack of staffing was foreseeable and could be planned for or involved typical or routine staffing needs or absenteeism.
The law also requires that hospitals establish staffing committees. These committees must submit staffing plans to the Department of Health, as well as oversee and implement such plans at each hospital. The Staffing Committee must be made up of at least 50% nurses and up to 50% administrators.
To slightly ease the burden on these facilities, Governor Hochul renewed the State’s declaration of a disaster emergency related to staffing shortages in health care through April 30, 2022. This portion of the Executive Order suspended certain restrictions and modified certification regulations to allow medical workers to perform additional jobs, such as testing for COVID-19 and influenza, or administering vaccines.
If you have any questions regarding the issues discussed above, or if you have any other Labor & Employment Law concerns, please contact the Underberg & Kessler attorney who regularly handles your legal matters or Stephanie Hoffmann, the author of this piece, here at (585) 258-2814.
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