Nursing unions are celebrating the recent passage of New York’s “safe staffing” bill, which will mandate nursing homes provide residents an average of at least 3.5 hours of direct nursing care each day.
But two groups unhappy with the legislation are nursing home operators, who claim the bill was too harsh on their industry, and advocates for nursing home residents, who say the bill didn’t go far enough.
Randy Gerlach is president and CEO of Schofield Care, which operates a 120-bed nursing home in Kenmore.
The Schofield Residence is rated four stars by the federal Centers for Medicare and Medicaid Services, meaning it’s considered above average. Yet it doesn’t quite meet the new safe staffing bill’s mandate of 3.5 care hours per resident per day.
“Are they working smarter, not harder? And if they are, why are we going to penalize them, to add cost when they're already doing a very good job?” Gerlach said.
Like nursing home operators, advocates for nursing home residents also worry the bill won’t actually improve care, but for much different reasons. They say 3.5 hours isn’t enough.
Lindsay Heckler, an attorney with the Center for Elder Law and Justice, a Buffalo nonprofit legal agency that represents nursing home residents, noted a federal study from 2001 found 4.1 hours of direct nursing care each day was needed to meet residents’ basic care needs.
“Setting the bare minimum so low does not improve resident care,” she said.
But some of the more subdued reactions are coming from oft-opposed nursing home operators and resident advocates.
“I can imagine nursing home owners going up and nailing all their keys to the front door of the legislative building, because they can't afford to run the businesses anymore,” Gerlach said.
“It’s a positive development, but I am worried that the Legislature will think their job is done here,” Heckler said. “We cannot as a society or community let this be the end.”
Nursing home say there aren’t enough nurses to comply with bill
Michael Balboni is executive director of the Greater New York Health Care Facilities Association, a New York City-based lobbying group that is against the bill. He said nursing homes “agree with safe staffing,” but only if they’re not the only ones footing the bill.
The 2021 state budget has set aside $64 million to help nursing homes hire more staff to meet the bill’s mandates, but nursing homes estimate it will cost them $260 million a year.
Plus, nursing homes have long argued they don’t receive enough reimbursement from the state for serving residents covered by Medicaid. They say there’s a $55 per day shortfall between what the state pays them and what it actually costs to care for a Medicaid resident.
“But moreover, right now, we don't have enough people willing to work in this industry,” Balboni said. “We lack the bodies to be able to comply with this mandate.”
New York state does have a nursing workforce shortage, with some estimates the state could have a shortage of 39,000 registered nurses by 2030. A report last year by the New York State Department of Health said there aren’t enough nurses in the state to meet the bill’s mandate.
At the Schofield Residence, Gerlach said the bill may force him to hire as many as eight to 10 more nurses, but that may be easier said than done.
“Every nursing home tries to steal nurses from another nursing home, or hospital, because that's the only place you can get people,” he said. “There's nobody to hire.”
Advocates say bill doesn’t do enough to protect residents
Richard Mollot says nursing homes have made the same excuses about understaffing for decades.
“When I read Congressional testimony from like 1982, they're saying the same exact thing. It’s the same song and dance,” he said. “That, ‘Oh, we can't hire more staff, it's too expensive. We can't hire more staff, they're not there.’”
Mollot is executive director of the Long Term Care Community Coalition, a New York City-based group that advocates for nursing home residents. He argues nursing homes have a duty to provide adequate care when they admit residents and accept the Medicaid dollars that come with them.
If they can’t do that, he said, they should leave the industry.
Mollot also questions whether nursing homes truly don’t have the money to hire more staff. A New York State Attorney General’s Office report from earlier this year found some for-profit nursing homes transferred money to related parties rather than investing in staffing during the pandemic.
The state has already taken some steps to address that, including a profit cap in the 2021 state budget that will mandate nursing homes spend at least 40% of their revenue on staffing.
Mollot and other advocates are disappointed the safe staffing bill only requires 3.5 hours, despite the 2001 study saying residents need at least 4.1.
“The 4.1 hours was ... the minimum necessary to just to meet residents’ clinical needs. Forget about care with dignity, forget about making sure that residents are eating, forget about just having a humane quality of life, — just to meet their basic clinical needs you need to have 4.1 hours,” he said. “So in our view, if a facility is providing less than 4.1 hours, it's very likely committing fraud.”
New York nursing homes currently provide on average 3.4 hours of care per day, which ranks 32nd in the nation, according to Mollot’s organization.
An earlier version of the safe staffing bill called for a 4.1-hour mandate, but lawmakers said it was lowered as part of the negotiation process.
Earlier versions of the bill also specified that at least 45 minutes of that care time be with a registered nurse, but the final bill only says that 1.1 hours must be with a registered nurse and/or a licensed practical nurse.
“Registered nurses and licensed practical nurses serve two different roles in the nursing home,” sad Heckler, with the Center for Elder Law and Justice. “And quite frankly, registered nursing care is important to make sure residents are safe and they're getting the services they need. They're able to provide more hands-on nursing care. “They have the ability to do it all.”
Advocates also worry the bill lacks the teeth needed for enforcement. A provision of the bill specifies the state health commissioner may consider “mitigating factors,” including workforce shortages, when issuing penalties against non-compliant nursing homes.
Karen Nicholson, CEO of the Center for Elder Law and Justice, said that’s especially concerning, given the state Department of Health’s history of giving out small fines.
“And penalties really have become, for the for-profit nursing homes, just a way of doing business,” she said. “They expect they're going to get penalized, and it's cheaper to pay a low fine than it is to actually staff appropriately. And I don't think that this bill addresses that at all.”
Balboni, of the Greater New York Health Care Facilities Association, said while there are “all sorts of critics on the sidelines,” there’s yet to be a proposal for concrete solutions to address understaffing.
“Nobody's really willing to come to the table and say, ‘OK, we need resources, we need a strategy for how to apply them, and we need to actually target the workforce,’” he said. “We're not doing that.”
Gerlach, of Schofield Residence, said he understands why resident advocates feel the bill didn’t go far enough.
“Family members are always going to want the best for their loved one … but when we look at it, there are some things that we have to be realistic about,” he said. “Unfortunately, it's still a business that we have to run, and that's a very difficult thing to explain to families. So I can understand why they might be unhappy with it, but I also understand that they're going to have different expectations than others might have.”
Gov. Andrew Cuomo has yet to sign the safe staffing bill. The legislation, if signed, would go into effect Jan. 1.