Critics slam NYSDOH’s report on staffing standards for nursing homes


Staffing levels at nursing homes have been a problem long before Covid-19 killed more than 6,000 of the facilities’ residents across the state.

The aftermath of the first wave of the highly contagious disease only brightened the spotlight on the problem.

Some lawmakers believe mandating staffing levels and how much time nurses and other staff spend with each resident per day are critical to improving the quality of care in the state’s 617 nursing homes.

As a result, they have proposed the Safe Staffing For Quality Care Act, which is another attempt by state lawmakers to mandate staffing levels at hospitals and nursing homes after stalling session after session for at least a decade.

Will something finally get passed this year?

That’s unlikely, if you believe the conclusions in the long-delayed and highly anticipated report by the New York State Department of Health, that mandating staffing standards on hospitals and nursing homes would cost too much and require the facilities to hire thousands of new employees.  

“In addition, some research suggests that New York State will continue to experience a nursing shortage through the next decade, which could make meeting any mandated minimum staffing levels unachievable for some providers,” the authors wrote.

Critics quickly pounced on the study, calling it “fatally flawed” and accused the state health department of regurgitating the nursing home industry’s “same old excuses.”

“Unfortunately, this is just the latest example of the Department of Health’s failure to listen to frontline nurses and incorporate our expertise into the policy-making process,” said the New York State Nurses Association, which represents more than 42,000 nurses across the state.

“This report demonstrates a staggering lack of understanding of how nursing care is provided and its methodology is fatally flawed.”

Almost half of Western New York’s 73 nursing homes are rated below three stars by the U.S. Centers for Medicare and Medicaid, which means they are performing below average. In addition, roughly 40 percent have staffing levels that rank below average or worse, according to federal data.

“This [state report] doesn’t seem to be addressing that problem that if anything has obviously become more clear after Covid-19: that we need to have staffing,” said Richard Mollot, the executive director of the Long Term Care Community Coalition, which advocates for nursing home residents.

“We need to have the safeguards there and residents clearly need more.”

Mollot said a 2001 federal study recommended that nursing home staff provide a minimum of 4.1 hours of direct nursing care per resident per day. The Act proposes a stricter minimum of 4.8 hours of direct care per resident per day.

Yet, the 617 nursing homes in New York average about 3.4 hours of direct care for each resident per day, Mollot said.

The state Department of Health, however, found that there’s mixed opinions about whether mandatory minimum staffing standards improve care at hospitals and nursing homes.

Instead, the state health department recommended a “comprehensive approach” that maintains “workforce flexibility.”

“The team-based approach to healthcare that fundamentally requires flexible staffing solutions is essential to a sustainable system that can support an effective pandemic response,” the report concluded.

The state study projects that nursing homes in New York would have to hire 45,158 additional employees, including 10,181 registered nurses. This would cost nursing homes as much as $2.3 billion, the report projected.

As a result, nursing home wages would rise between 79% and 96% for nursing homes, the report projected.

“The additional estimated costs would be a significant increase,” the report states.

But the NYSNA, which favors the state legislation, said the state health department overstated the costs to nursing homes by hundreds of millions of dollars.

“The Department of Health’s shoddy report is a slap in the face to frontline nurses who sacrificed so much during this crisis,” said Pat Kane, NYSNA’s executive, in a prepared statement.

Kane said the state legislature still has time to act and “improve New York’s capacity to respond to a resurgence of the virus.”

“Safe staffing could have saved lives during the Covid pandemic,” he said.  

Mollot said instead of moving the state forward by improving care at nursing homes, the state Department of Health seems to “make the industry’s argument for them” and adds some polish to the status quo, “which is clearly not working.”

“This is something that the industry always says: ‘We just don’t have enough money to hire more staff, we don’t get enough money to have consistent staffing to provide better care’,” Mollot said.

“To say that it’s going to cost us much more, well, no, it should be that there should be less profits. There should be more accountability for where the money goes.”

Federal law requires nursing homes to be “adequately staffed” and enforcement of quality standards is left to the states. Yet, the state Department of Health has long been criticized for what some deem to be lax enforcement with weak fines.

New York is among a handful of states that lack mandates for how much time nursing home staff spend with each of their residents. Attempts in the past to enact legislation that would institute such mandates have died in Albany for years.

Senator Patrick Gallivan, R-Elma, said he was disappointed with certain aspects of the report. He would like to see the state health department separate nursing homes and hospitals because they have different challenges.

He also was disappointed that the study used standards proposed in the Act to make its calculations without offering any alternative.

“The numbers that were in the legislation were simply proposed,” Gallivan said.

“So, I don’t know that the report really provides us an awful lot at this point in time.”

Gallivan said the pandemic has shown that nursing homes seemed less prepared for the pandemic than hospitals.

Therefore, he hopes the legislature acts “sooner rather than later” on improving the level of care that nursing homes provide.

But not all nursing homes are the same, Gallivan said.

He agreed with at least one point that the state study made, which is a one-size-fits-all approach to staffing mandates may not be the best approach.

“But given the disaster that we’ve seen … across the state with nursing homes during this crisis we need to look at nursing homes,” Gallivan said.

“We need to look at the state’s oversight. We need to look at the regulations that are related to nursing homes and we certainly need to do something better than what’s been taking place.”

The state Department of Health was asked to respond to the criticism.

Instead, a department spokesman provided News 4 Investigates with a rewrite of the report’s conclusion, only adding that “We remain committed to the highest level of patient care, which is why we have championed emergency regulations related to surge and flex and PPE to address critical needs in healthcare facilities, now and in anticipation of a second wave.”

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