NYSHFA Testifies at PHHPC 70/40/5 & 3.5 Staffing Draft Regulations Meeting

The Public Health and Health Planning Council (“PHHPC”) Codes, Regulations and Legislation Committee met today to discuss the draft regulations concerning the “Nursing Home Minimum Direct Resident Care Spending” (70/40/5) and the “Minimum Staffing Requirements for Nursing Homes” (3.5 minimum staffing mandate). The meeting was for discussion purposes only, as there will be a 60-day public comment period upon publication of the draft regulations in the State Register.

DOH outlined the regulations to the Committee, followed by numerous questions and concerns raised by both Committee and Council members related to the regulations in the face of the ongoing pandemic and the State’s severe long term care worker staffing crisis. With respect to the 70/40/5 draft regulations, NYSHFA presented testimony highlighting, among other things, the current Medicaid rate shortfall, the lack of Medicaid funding to cover the mandate, our concerns with the inclusion of non-Medicaid revenue, as well as the inclusion of the capital component of the Medicaid rate in the definition of revenue.

Committee members voiced concerns as to the timing and arbitrary nature of the 70/40/5 regulations, and seemed very troubled with the regulations as currently drafted. As such, Committee members raised the possibility of the DOH utilizing its data to further educate the Legislature and the Governor’s office as to why the underlying 70/40/5 and 3.5 staffing mandate statutes need to be amended.

With respect to the 3.5 minimum staffing requirement draft regulations, NYSHFA presented testimony, citing, among other things, the long-term care workforce crisis, NYSHFAs membership staffing survey results showing 96% – 99% of members currently experiencing direct care staffing shortages, the inability of many providers to receive new admissions from hospitals and the community, and the need for New York to statutorily authorize the employment of Med Techs in nursing homes. NYSHFAs testimony concerning Med Techs then led to a discussion of the need for the DOH to proactively work together with the State Education Department on various scope of practice issues.

Upon publication of the draft regulations, NYSHFA will prepare a comment template for members to submit to PHHPC during the 60-day public comment period.

NYSHFA/NYSCAL CONTACT:

Stephen B. Hanse, Esq.
President & CEO
shanse@nyshfa.org