NY nursing home staffing mandate faces lawsuit from operators

May 31—Legal battle looms over nursing home staffing laws

Long-awaited laws requiring minimum staffing standards and investments at New York's nursing homes went into effect April 1, three months later than originally planned due to staffing challenges that worsened during the Omicron surge.

Reactions on the laws flowed in immediately.

LeadingAge New York, a trade group representing the state's nonprofit nursing homes, said the laws were "impossible to comply with."

Major labor unions and consumer advocates, meanwhile, collectively breathed a sigh of relief, as if to say, "It's about time."

Less than two months later, LeadingAge on May 23 filed a lawsuit against Gov. Kathy Hochul, Health Commissioner Dr. Mary Bassett and other state officials and offices, seeking to overturn the two state laws that impose what the group called "arbitrary" minimum staffing and spending levels.

What do the laws call for?

The two laws were passed last year by the state Legislature and signed by then-Gov. Andrew Cuomo in an effort to address understaffing in nursing homes.

The staffing law calls for the state's more than 600 nursing homes to provide 3.5 hours of nursing care per resident per day. Of those 3.5 hours, no less than 2.2 hours of care must be provided by a certified nursing assistant or nurse aide and at least 1.1 hours of care must be supplied by a registered nurse or licensed practical nurse.

The parallel spending law calls for nursing homes to spend at least 70% of revenues on direct-resident care, of which 40% must be on "resident-facing staffing."

What's the problem?

In its lawsuit, LeadingAge and about 80 of its nursing home members, including several in Western New York, contend that the staffing law is inflexible.

For example, the group argues in the suit, the law undermines the "discretion of clinical care leadership to deploy nurses, aides and other direct care staff in ways that enhance quality of clinical care." They say the allocation of hours does not account for enhanced nurse hours for clinically complex residents or more activity time and less nursing time for residents with cognitive impairments.

The group also claims that an estimated 12,000 extra nurses and aides would have to be hired to satisfy the requirements of the law. "There is no army of surplus workers available to fill these positions because there is a nationwide health care workforce shortage that has disproportionately affected nursing homes," the lawsuit said.

LeadingAge also takes aim at the penalties that can be issued against nursing homes that don't meet the requirements. Those facilities are subject to penalties of up to $2,000 per day and seizure of excess revenues, LeadingAge says, which will further deplete the nursing homes of funds to recruit and retain staff.

Labor union responds

A major labor union, 1199SEIU United Healthcare Workers East, wasted no time to respond to the lawsuit.

"Instead of fighting these laws, providers should focus on providing good jobs and high-quality care," the union said. "If they do, they will meet the new standards."

The union pointed out that several other states also have minimum staffing standards and argued the laws do, in fact, provide flexibility to nursing homes.

For instance, the union said, the law does not require homes to bring in more workers. In fact, employers could convert part-time workers to full time, incentivize overtime, provide weekend incentives, use agency staff and slow down new admissions.

Parting thought

At an expert-loaded nursing home panel at the Association of Health Care Journalists annual conference last month in Texas, it was clear changes in the industry are needed. Covid-19, for one, exposed many flaws in the current system.

David Grabowski, a health care policy professor at Harvard Medical School, presented several ideas, including minimum staffing standards; increased pay and benefits; higher reimbursement rates; more financial transparency; career advancement opportunities for workers; and better working environments.

Richard Mollot, executive director of the nonprofit and nonpartisan Long Term Care Community Coalition, noted the typical nursing home resident needs at least 4.1 hours per day of nursing care to meet their basic clinical needs. The average nursing home, however, provides 3.62 hours per day.

Dr. David Gifford, chief medical officer of the American Health Care Association and National Center for Assisted Living, agreed changes are needed, especially to address the chronic poor-performing nursing homes.

To fix the workforce challenges, he noted the underlying funding needs to be there to support facilities, pointing to how Medicaid has typically only covered 70% to 80% of the actual costs of care.

Want to know more? Three stories to catch you up:

— NY nursing home staffing mandate takes effect. Trade group says it's 'impossible to comply with'

— Niagara Falls program aims to replenish supply of nursing assistants one class at a time

— Understaffing still cited at nursing homes as state gears up for new standards

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THE LATEST, IN CONTEXT

What: More than 50 nursing home workers at Elderwood at Lockport held an informational picket on Wednesday, May 25. Their union contract expired Dec. 31, and they have been negotiating with the for-profit Elderwood for seven months on a new agreement.

Tell me more: The main issues revolve around wages and staffing. Workers say they need competitive wages to help recruit and retain employees, pointing out that low wages contribute to high turnover rates, the resulting staffing crunch and lower quality for residents. The workers' union said service workers there earn the minimum wage of $13.20 an hour.

Why it matters: The issues at Elderwood at Lockport also are playing out across the nursing home industry, perhaps the hardest-hit health care sector during the pandemic. The workers' union, 1199SEIU United Healthcare Workers East, said it represents more than 1,200 workers across 12 Western New York nursing homes, all owned by for-profit ownership groups, whose contracts have expired or are soon to expire. That likely means more demonstrations are ahead.

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THE LATEST

Catch up on news tied to Buffalo Niagara's economy

The Buffalo Together Community Response Fund will distribute $560,000 worth of grants, ranging in size from $5,000 to $20,000, to 70 Black-led organizations, as part of the fund's initial response to a mass shooting at a Tops supermarket that killed 10 people.

The real estate firm owned and led by Dr. Fadi Dagher and his son, Kevin, is proposing to create a major manufacturing or warehouse building on Rano Street, with potentially up to 250,000 square feet of space for lease.

Developer Anthony LoRusso is proposing to construct a three-story apartment building on Clayton Street, with 66 small housing units and on-site parking.

FeedMore WNY will scale back its outdoor food distributions it has been holding on East Ferry Street since May 18 after a mass shooting closed the Tops Markets on Jefferson Avenue. The distributions will be fewer after May 28 as FeedMore WNY directs resources back to the 11 food pantries it stocks within a mile radius of the Jefferson Tops.

John R. Oishei Children's Hospital is planning to spend nearly $6.7 million to open a high-risk maternity unit, which will include 12 newly constructed private inpatient rooms that would occupy about 11,000 square feet on the hospital's seventh floor.

Dozens of small retailers across Erie County have applied for funds from the county's $10 million Storefront Revitalization Initiative, an effort to help businesses spruce up their facades, in its first few weeks.

Cory Clark wants to open a microbrewery in Portville and County Line Recovery in Springville wants to construct a building for material recycling in Ashford. Both are seeking tax breaks from the Cattaraugus County Industrial Development Agency.

Wyoming County Health System announced that David Kobis, a longtime health care executive and management consultant, will start May 31 as its new chief executive.

A vacant former office building on Pearl Street would become a mix of 12 apartments on the basement and upper two floors, plus first-floor commercial space.

Canisius High School plans to add a splashy "learning atrium" to its Delaware Avenue campus.

The Thruway Authority lost its bid in court to hold five contractors responsible for reported negligence in installing turbines at four highway exit locations in Western New York. It sought to recoup $8.1 million in damages, arguing that the machines did not perform as promised.

Unemployment dropped to a record low 3.6% for April across the Buffalo Niagara region last month, despite a slowdown in hiring as roughly 7,500 people from the local work force have been lost since the pandemic began.

Prolific Downtown Buffalo developer Douglas Jemal has agreed to buy the former Curtiss Malt House on Niagara Street, with plans for a multimillion-dollar conversion of the building into apartments.

Two years after initially filing a lawsuit, federal and state regulators on Monday shut down what they called a "predatory debt collection operation" in Getzville that was owned by local chiropractor Dr. Scott A. Croce, his wife, Susan, and sales professional Christopher L. Di Re.

Buffalo Urban Development Corp. officials are contemplating a potential $2.14 million investment that would double the power capacity at the growing Northland Beltline campus, an East Side light-industrial hub.

Buffalo Next reporters Jonathan D. Epstein, Jon Harris, Natalie Brophy, Matt Glynn, Janet Gramza and Mike Petro contributed to this roundup.

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ICYMI

Five reads from Buffalo Next:

1. Tops Markets on Jefferson Avenue will reopen, but what that will look like is uncertain: As Tops officials plan for the reopening of its Jefferson Avenue store after a tragic mass shooting, when and how it will do so is still being considered as some community members want a new Tops store at a different location on Buffalo'sEast Side.

2. Developers Karl Frizlen and Michael Masters are in the midst of turning the former Barcalo Manufacturing plant into Barcalo Living & Commerce, a mixed-use community in the Old First Ward that dozens of tenants soon will call home.

3. Doctor recognized for providing aid in strife-torn regions: Dr. Aaron Epstein has been splitting his life between surgical shifts in Buffalo and leading the humanitarian aid group he founded in 2015. Now, he's in line for one of the nation's top civilian awards.

4. Rachel's Mediterranean grill expands beyond Buffalo home: Rachel's has made it big in Western New York, and the family-owned business is now trying to expand the concept down the Thruway in New York and in larger markets such as Fort Worth, Texas.

5. Mickey Rats gets one more summer, but Captain Kidd's gives way to townhomes: Ellicott Development Co. CEO William Paladino said the real estate company is trying to get Mickey Rats Beach Club open for business again by Memorial Day, for what may be its final summer.

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The Buffalo Next team gives you the big picture on the region's economic revitalization. Email tips to buffalonext@buffnews.com or reach Buffalo Next Editor David Robinson at 716-849-4435. Want to talk about health care? Reach Jon Harris at jharris@buffnews.com or 716-849-3482.

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