On November 17, 2022, the New York Public Health and Health Planning Council (“PHHPC”) held a meeting (“Meeting”) to discuss the adoption of regulations addressing Direct Care Nursing Home Spending and Minimum Staff Requirements. The Department of Health (“Department”) first introduced these regulations on November 17, 2021, after which they were published in the Federal Register with a 60-day comment period that ended January 18, 2022. Due to a COVID related workforce shortage, Governor Kathy Hochul suspended the implementation of the regulations through April 1, 2022 and gave the Department until November 17, 2022 to hold a meeting to vote on the regulations.
Attendees at the Meeting, many of whom were industry participants, voiced significant concerns about the new regulations and the negative impact they believed the new regulations would have on their operations. While the Department acknowledged the difficulty nursing homes will face in complying with the new regulations, the Department advised that the adoption of these regulations is vital. Despite PHHPC members’ acknowledgement of the difficulty these regulations pose to nursing home operators, the vote to pass both regulations was unanimous. Effective immediately, nursing homes must tackle these new onerous requirements or risk facing serious penalties.
The requirements of the newly adopted regulations are retroactive to April 1, 2022.
The requirements of the two regulations are as follows:
1. Nursing Home Minimum Direct Care Spending (Addition of Section 415.34 to 10 NYCRR)
The Nursing Home Minimum Direct Care Spending regulations: (i) set forth how facilities that fail to meet the statutory minimum spending requirements must pay the State, (ii) provide exceptions from the minimum spending requirements for residential health care facilities that serve certain specialized populations, (iii) set forth factors the Department will use to determine whether to waive the spending requirements for facilities unable to comply due to “unexpected or exceptional circumstances that prevented compliance,” and (iv) provide factors the Department will use to determine whether to exclude extraordinary revenues and capital expenses from the calculations to determine whether a facility has met its minimum spending requirements.
Specifically, all residential care facilities shall have the following minimum spending requirements:
- 70% of revenue shall be spent on direct resident care;
- 40% of revenue shall be spent on resident-facing staffing; and
- The Department will deduct 15% of resident-facing staffing costs associated with contracted services provided by RNs, LPNs, or CNAs from the total calculation of the amount spent on resident-facing staffing and direct resident care.
Penalty: Failure to remit the total required fee by the due date may result in adverse action by the Department, including but not limited to: bringing suit in a court of competent jurisdiction, taking deductions or offsets from payments made pursuant to the Medicaid program, and imposition of other penalties pursuant to Section 12 of the Public Health Law.
2. Minimum Staffing Requirements for Nursing Homes (21-20 Amendment to Sections 415.2 and 415.3 of 10 NYCRR)
The Minimum Staffing Requirements for Nursing Home regulations: (i) set forth minimum staffing standards; (ii) provide for the imposition of penalties for failure to meet minimum staffing standards; (iii) provide for mitigating factors for failure to meet the minimum staffing requirements; and (iv) set forth a process for the Department to determine facilities that are in need of assistance to meet the staffing requirements.
Specifically, the regulation requires a Facility’s daily average staffing hours to meet the following criteria:
- 3.5 hours of care per resident per day by a CNA, RPN, LPN, or nurse aide (“NA”);
- Out of such 3.5 hours, a CNA or NA shall provide no less than 2.2 hours of care per resident per day; and
- An RPN or LPN shall provide no less than 1.1 hours of care per resident per day.
Penalty: A facility that fails to meet the above mentioned requirements shall face a penalty of up to two thousand (2,000) dollars per day for each day in a quarter that the Facility failed to comply with the minimum nursing staff requirements, unless mitigating or aggravating factors exist.
Facilities should review their existing staffing and spending procedures in light of the newly enacted regulations and consider what immediate changes will be necessary to avoid penalties.
Garfunkel Wild is available to review your current compliance program and to assist in making any revisions that may be necessary. We are also available to help create and implement compliance programs for those who do not currently have one.