NYSDOH Webinar: Minimum Staffing Level Compliance Reviews – July 6, 2023
NYSHFA participated in the Department of Health’s July 6th educational webinar on minimum staffing standards and compliance (PHL §2895-b and 10 NYCRR 415.13, eff. April 1, 2022). Skilled nursing facilities are now required to provide, at minimum, an average of 3.5 hours of care per resident day (HPRD) with at least 2.2 HPRD by CNAs (including nurses in training) and at least 1.1 HPRD by LPNs or RNs. Hours in training and not spent on primary duties are not counted as part of the 3.5-hour mandate.
NYSHFA is actively working with the Department of Health in seeking specificity as to the mitigating factors available to providers. Moreover, NYSHFA’s General Counsel is drafting additional questions and comments for submission to the DOH, including, advancing the position that Governor Hochul’s declaration of a statewide healthcare staffing emergency covering the period from April 1, 2022 through June 30, 2023 should automatically trigger a statewide mitigating factor during that period.
With regard to penalties, facilities may be fined up to $2,000 per day for each day out of compliance, however, this may be less if the facility can demonstrate “to the satisfaction of the Department” specified mitigating or aggravating factors that prevented compliance during a specified quarter. The following three factors will be considered:
- Extraordinary circumstances (i.e., natural disaster; declared national, state, or municipal emergency; catastrophic event);
- Acute labor supply shortage in location(s) declared and determined by the Commissioner (the facility must demonstrate via documentation that it made reasonable attempts to secure staffing and maintain safety of residents during this time); or,
- A verifiable union dispute existed between the facility and CNAs, LPNs, or RNs employed or contracted by such facility.
Compliance assessment will be reviewed quarterly, with Q2 of 2022 being the first review based on Payroll-Based Journal (PBJ) reporting. Facilities must meet ALL three HPRD requirements to be in compliance. It is important that all administrator and operator contact information is accurate and updated in HCS as compliance determination notifications will be sent only to these individuals.
If a notice of noncompliance is issued, possible further actions include:
- A facility request for redetermination (on DOH-approved forms)
- A facility request for a penalty reduction due to mitigating factors (on DOH approved forms; must be submitted within 10 business days)
- DOH referral for enforcement to Division of Legal Affairs to issue determinations to facility including final penalty amount if applicable.
If a facility believes that there was an error in the PBJ data or a DOH calculation error, facilities must submit the DOH-issued electronic redetermination request form (accessible via the active hyperlink in notice of noncompliance) and employee detail attachment form. Attestation by the operator or authorized designee will be required.
Penalties will range from $500-$2,000 per day based on noncompliance and its frequency. These penalties may progressively increase based on the number of quarters throughout the year the facility was in noncompliance (progressive penalties).
The webinar slide deck and recording are forthcoming. The Department will be developing an ongoing FAQ document which will be shared via HCS and any determinations the Commissioner is authorized to make will be available on the DOH Nursing Home Minimum Staffing public webpage in the near future. Any questions on the enforcement, compliance, and implementation of these staffing level regulations may be emailed to: NHSafeStaffing@health.ny.gov.
NYSHFA will be working directly with the Department on the implementation of these new standards and will keep you apprised of pertinent updates.
NYSHFA | NYSCAL CONTACTS:
Kristin A. DeVries, MA, MPP
Director of Government Relations
kdevries@nyshfa-nyscal.org
Tarrah A. Quinlan, RN, BSN
Director, Education Program Development & Member Operations
tquinlan@nyshfa-nyscal.org
