It took years of advocacy and a scandal-ridden pandemic for state lawmakers to pass minimum staffing requirements for New York’s nursing homes last May. But just as those rules were supposed to take effect on January 1st, Gov. Kathy Hochul decided to give long-term care facilities some leeway.

The governor issued an executive order on December 31st postponing enforcement of the rules for 30 days, citing a state of emergency she had declared due to a health care workforce shortage. At the time, the move seemed to be related to the omicron variant. COVID-19 cases had spiked in recent weeks, exacerbating staffing issues at hospitals and nursing homes.

But Hochul has since extended her executive order multiple times, most recently delaying enforcement of the rules, through the end of March.

Under the legislation, nursing homes are supposed to hire enough staff to provide patients with an average of three-and-a-half hours of clinical care each day. Patient advocates and labor unions say they are left wondering when nursing homes will actually have to staff up and comply. Studies have linked higher nursing home staffing levels to better quality care and even lower mortality rates.

“There is no reason to further postpone long-overdue reforms that hold nursing home operators accountable for ensuring adequate standards of care,” Milly Silva, executive vice president of 1199 SEIU, one of the unions that fought for the staffing legislation, said in a statement. “Residents, their families, caregivers and the tax-payers who fund this industry deserve better.”

Hochul’s office did not respond to a question from Gothamist this week about how long the governor intends to delay enforcement. The state health department said that even though non-compliance won’t be considered a violation of the law, “nursing homes are strongly encouraged to begin coming into compliance with these new requirements.”

Starting in January, nursing homes were also supposed to ensure that at least 40% of revenue was going to staff that provide direct patient care. Hochul has delayed enforcement of that rule as well.

That was part of a package of reforms that former Gov. Andrew Cuomo put in the budget last year. He also capped nursing home profits at 5% and placed other restrictions on how facilities could allocate their money. Nursing homes that didn’t comply or generated too much profit were supposed to send money back to the state to be put in a fund known as the “nursing home quality pool,” which is redistributed to nursing homes based on their performance.

Nursing homes sued the state health commissioner in federal court in December, calling the profit cap unconstitutional.

The Future of Nursing Home Staffing Requirements

New York nursing home operators say that, because of an overall workforce shortage, they won’t be able to recruit and retain the employees necessary to comply with the new staffing requirements. It’s a concern that the previous administration raised in a report on the viability of staffing requirements for hospitals and nursing homes in August 2020, before Cuomo ultimately agreed to sign revised versions of the mandates into law.

“I've spoken to multiple administrators in nursing homes who have said flat out, ‘If a bus full of nurses pulled up in front of my building, I'd hire them sight unseen,’” said Stephen Hanse, president and CEO of the New York State Health Facilities Association, which represents both nonprofit and for-profit nursing homes. “So, we are going into 2022 with mandates that were put into place by the prior administration that do not reflect the reality of the world.”

Hanse said that Hochul’s proposal in this year’s budget to increase the amount of money that Medicaid reimburses health care providers for their services could help boost pay for nursing home employees, which could make it easier to recruit and retain workers. The governor is also seeking to provide funding for certain health care workers to receive a one-time $3,000 bonus if they remain in their positions for at least a year.

Governor Kathy Hochul joins 1199SEIU President George Gresham and delivers remarks to labor union members at a rally out side of 1199’s midtown Manhattan offices.

But Richard Mollot, executive director of the Long Term Care Community Coalition, an advocacy group for nursing home residents and their families, slammed the arguments of nursing home lobbyists as disingenuous.

“The only thing that they are interested in is getting as much money as possible for the industry and having as little regulatory standards and oversight as possible,” he said.

Mollot said he was hopeful that the report the state comptroller released last week might motivate Hochul to move the staffing reforms forward. The report indicated that the Cuomo administration undercounted nursing home deaths by at least 4,100 during the pandemic and highlighted a broader lack of state oversight of the industry.

Consumer groups representing nursing home residents initially criticized the staffing legislation passed last year, saying that it didn’t go far enough. They said that more of the required patient care hours should have to be provided by registered nurses, as opposed to support staff. But they are now emphasizing that it’s still an important first step.

“If the nursing homes say they don't have enough staff, work with the state, work with the legislature and obtain more staff,” said Bill Ferris, the New York state legislative representative for AARP. “But don't delay a measure that clearly helps the quality of life of a resident in a nursing home.”

State Senator Gustavo Rivera, who sponsored the nursing home staffing legislation, acknowledged that nursing homes were strained by employees leaving during the pandemic. But he said that was all the more reason for them to invest more of their revenue in complying with the regulations. “A crisis should not be exploited to the detriment of residents or staff in nursing homes,” Rivera said.

Will the New Standards for Nursing Homes Be Enough?

Julia Stock said she sees the harms of understaffing firsthand as a cook and dietary aid at the North Westchester Restorative Therapy and Nursing Center, a for-profit nursing home about an hour outside of New York City.

Stock, a member of the union 1199 SEIU, has worked there for 17 years and recently became the family member of a resident when her sister moved in. She said her sister was transferred to the nursing home after being hospitalized with a particularly bad case of COVID-19 that landed her on a ventilator and ultimately resulted in partial paralysis.

“She can't use her hands, so she has to wait for someone to come in to feed her,” Stock said. “They don’t have enough staff to make sure she’s being fed. I try to get by her room every so often but I’m just doing it because she’s my sister.”

Stock said that she saw turnover at the center get worse in recent years before being exacerbated further by the pandemic.

You need to pay enough to get people in the door...
Julia Stock

“You need to pay enough to get people in the door, and you need to get more people in here because you're not retaining them,” she said. “They're not staying.”

Stock said she hoped enforcement of the state’s new staffing requirements would force more hiring at the facility.

But it’s unclear whether it would actually make a difference. The facility has a five star quality rating from the U.S. Centers for Medicare and Medicaid Services and a three-star rating for staffing. A New York Times investigation found that those ratings can sometimes be misleading. But according to the assessment, last updated in February, the number of hours clinical staff at the facility spend with residents already surpasses what New York would require under the new legislation.

The North Westchester Restorative Therapy and Nursing Center did not respond to a request for comment.

Hospitals Begin to Comply With New Staffing Rules

While it’s unclear what will happen with the nursing home requirements, hospitals are making progress in complying with separate staffing rules that took effect in January, after facing setbacks due to the omicron surge.

Instead of creating universal standards for all medical centers, the hospital legislation required each facility to create its own committee to determine appropriate staffing levels for each hospital unit. Hospitals are supposed to submit binding staffing plans to the state in July.

Brian Conway, a spokesperson for the Greater New York Hospital Association, said the group’s members have mostly chosen the managers and employees who will sit on their staffing committees but struggled to convene them in a timely manner due to omicron.

“More time to fully implement the law would certainly be very helpful,” he said, noting that hospitals are still strained by full-time staff leaving during the pandemic. “However, our hospitals are committed to working within the law’s current timeline.”

Asked about NYC Health + Hospitals’ progress on developing staffing standards, spokesperson Chris Miller said the city’s public hospital system is on track. “We know that consistent staffing ratios lead to better patient care and outcomes, which is why NYC Health + Hospitals has been working closely with its labor partners,” he said.

Sean Petty, a nurse at the pediatric emergency department at Jacobi Hospital, a public medical center in the Bronx, said NYC Health + Hospitals is taking the new rules seriously. Petty is the president of his hospital’s chapter of the New York State Nurses Association, a union that pushed for minimum staffing ratios for years.

“It’s clearly the intention of the system to try and get these meetings off the ground,” Petty said. He said that, based on discussions at a recent monthly meeting between nurses and management at NYC Health + Hospitals, it appeared that “the vast majority of the hospitals in the public sector held their first meeting.” He noted that his hospital was one of the exceptions.

After publication, NYC Health + Hospitals responded to an earlier request for comment. This story has been updated with its comment.