New York state nursing homes have long been plagued by understaffing, and the COVID-19 pandemic has only made matters worse. Despite this, the state Department of Health opposes a bill that would mandate minimum staffing level standards in nursing homes.
The agency finally released its long-awaited, overdue report on nursing home and hospital staffing levels Friday. The 43-page document concluded that adopting a law on minimum staffing levels isn’t feasible, due to increased labor costs, workforce shortages and the flexibility needed in the health care system.
“While the Department supports measures to improve quality of care and patient outcomes, the COVID-19 pandemic has only highlighted the need to maintain workforce flexibility,” the report concluded. “The Department will continue to work with stakeholders to ensure staffing is adequate to serve patients.”
'Safe Staffing for Quality Care Act'
The report was commissioned last year to review the Safe Staffing for Quality Care Act, which has languished in the state Legislature for more than a decade.
The bill would mandate that nursing home residents receive a minimum of 4.8 hours of direct nursing care each day. It would also mandate that hospitals have an adequate ratio of nurses to patients.
And advocates say the bill is needed. A landmark federal study from 2001 recommends that nursing home residents get at least 4.1 hours of direct nursing care each day, but New York nursing homes provide on average just 3.4 hours, which ranks 26th in the nation, according to the Long Term Care Community Coalition, a New York City-based advocacy group.
The problem is in Western New York, too. Of the region’s 70 total nursing homes, just a single one has a five-star staffing level rating from the federal government. Twenty-nine have a two-star rating or lower, meaning below average.
“We have to set some sort of floor below which you cannot go any lower,” said LTCCC Executive Director Richard Mollot. “Because if not, you have what we've seen: persistent rates of pressure ulcers in the state, persistence of antipsychotic drugging, poor care, poor outcomes, and then the decimation of residents during COVID-19 because facilities were just not prepared."
Too much cost, not enough nurses
The state Department of Health claims there are too many downsides to a safe staffing law.
The report found that, in order to meet the bill’s metrics, nursing homes statewide would have to hire an additional 45,000 nurses, a 64% increase. Western New York nursing homes would have to hire an additional 3,500 nurses, a nearly 50% increase. This would cost nursing homes anywhere from $1.9 to $2.3 billion, according to a Cornell University study cited in the report.
Nursing homes could be forced to close if profit margins fall too low, the report states.
“We are looking at a situation in New York state where about 50% of the nursing homes are in the red,” said Stephen Hanse, president and CEO of the New York State Health Facilities Association, a trade group representing 400 nursing homes and assisted living facilities across the state. He noted there’s a gap between what nursing homes pay for care and what they receive back in Medicaid reimbursement from the state. “It's clear that nursing homes do not receive the financial support from the state of New York to cover those costs.”
Plus, those additional nurses may just not exist. The report cites a recent study in the American Journal of Medical Quality, which predicts New York could have a shortage of over 39,000 registered nurses by 2030, based on supply and demand models reflecting changes in population and age.
“If you can't hire the staff, they’re not willing and able to work, a mandate won't make healthcare workers magically appear at your front door and be highly qualified,” Hanse said. “You need the highly qualified men and women who are willing to go into the field who are ready, willing and able to do the work before you can even discuss the mandate.
“You can’t mandate what is not feasible.”
However, there are some encouraging signs for the workforce shortage. The report notes that the number of New York RN graduates has been increasing in recent years.
Hanse said nursing homes and the state must make long-term care nursing a more attractive career.
Advocates still want bill passed
Proponents of the bill don’t buy the report’s arguments.
They question how much for-profit nursing homes, which make up the majority of New York’s nursing homes, are spending on nurses’ wages versus profits.
“If a nursing home is saying they don't have enough money, prove it,” said Lindsay Heckler, an attorney with the Center for Elder Law and Justice, a Buffalo nonprofit legal agency. “Show where your money is going, how much you're actually spending on staffing, how much money you're sending to related third parties and prove it to the taxpayer that you need the money.”
And nursing homes are technically contractually obligated to provide adequate care when accepting Medicare and Medicaid dollars, Mollot added.
“So to just say, ‘Oh, we didn't have enough staff, we couldn't find anybody, or we don’t want to spend the money on hiring somebody,’ it's pretty despicable if you think about it,” he said.
Advocates are also disappointed with the state Department of Health. Mollot said he thought the report would thoroughly examine the issue of understaffing, not simply critique the safe staffing bill. He questioned why DOH, which is supposed to regulate nursing homes, would write a report that simply repeats many long-standing talking points made by nursing homes.
“I don't know what we need nursing home industry lobby firms for in Albany if the state is going to be articulating the argument for them,” he said.
State Sen. Tim Kennedy is a co-sponsor of the safe staffing bill and a licensed occupational therapist. He said while the Department of Health report was “certainly not helpful,” he doesn’t believe it’s the “endgame” for the safe staffing bill.
However, he also noted the bill is not the only solution for understaffing in nursing homes. He introduced a bill last year meant to attract more people into the health care field by expediting their training. It has passed the state Senate and is awaiting a vote in the Assembly.
“I believe that there's a number of different ways that we can tackle this issue,” said Kennedy, D-Buffalo. “The safe staffing ratio legislation is only one of a number of initiatives that we can take on and to help to promote a proper staffing level for our loved ones in these facilities.”
Mollot is mixed on the bill’s future. He said the nursing home industry remains a powerful lobbying influence on lawmakers, but that lawmakers are also currently under pressure by their constituents to crack down on nursing homes. Many residents’ families spoke out at the Legislature’s recent hearings on the COVID-19 crisis in nursing homes.
“I think the COVID-19 pandemic has hopefully led to a reckoning that we need to make concrete changes into how nursing homes are operated and how residents are treated,” Mollot said, “and really the essential part of that comes down to staffing.”