Lawmakers disputed potential financial impacts on private adult care facilities Tuesday before voting to require adequate numbers of nurses and all care staff in hospitals and congregate facilities under state law.
The state Legislature continued reforms included in the 2021-22 budget Tuesday with the passage of A108-B/S1168-A to require all New York hospitals to meet certain staffing levels, maintaining a base nurse to patient ratio.
The measure passed unanimously 63-0 in the Senate.
The Legislature also voted 54-9 in the Senate and 125-25 in the Assembly to pass A7119/S6346, requiring nursing homes to establish minimum staffing standards and all patients receive an average of 3.5 hours of care each day.
Senate Minority Whip Patrick Gallivan, R-Elma, expressed concern that private congregate facilities will struggle to pay to meet the mandated number of staff, citing lower revenues during the COVID pandemic and last year’s reduction in Medicaid payments.
“I believe they can do that — we’re doing a lot of difficult things at the same time,” Senate Health Committee Chair Gustavo Rivera, D-Bronx, replied. “The Majority conference is committed to make sure good actors stay in this business to care for the most vulnerable New Yorkers, and we will do what we need to do to help them do it.”
Rivera admitted he has significant concerns about the state Health Department’s ability under Gov. Andrew Cuomo’s leadership while the governor is embroiled in several investigations at the state and federal level, including an impeachment probe led by the Assembly Judiciary Committee.
“I have serious concerns about the Department of Health and I am hoping when this bill is implemented we have Gov. (Kathy) Hochul to deal with,” Rivera said, suggesting he hopes Gov. Cuomo is removed from office.
“...Then I believe the Department of Health and every other agency would be a different agency,” the senator continued. “It is true, the Health Department has done a few things in the last year that have made us a little wary of them, but the way this must be implemented must include the Department of Health. We must demand more from them.”
The standard 3.5 hours of care includes a minimum 2.2 hours from certified nurse aides or registered nurses, 1.1 hours of licensed nurse care and 0.2 of an hour of care from other staff per day.
Rivera compared the new requirement to the director’s cut of the 2017 superhero film “Justice League,” which runs for four hours and two minutes.
“What we’re saying with this piece of legislation is that [we’re requiring] three-and-a-half hours of care with actual people ... less time than what is required to watch a crappy movie with Superman,” he said.
The new law requires all hospitals establish a clinical staffing committee by Jan. 1, 2022, when the bill takes effect. Nurses and support staff providing direct patient care must make up at least half of the staffing committee, with the other half chosen by hospital administration.
Hospitals must develop and submit an annual clinical staffing plan, including how many patients will be assigned to each registered nurse and the number of staff on each shift, to the state Health Department. Plans must be fully implemented by Jan. 1, 2023, and each year afterward.
The department must adopt each facility’s plan and post it on its website at doh.ny.gov.
About 60% of state nonprofit facilities meet the new staffing requirements, Rivera said, compared to 29% of for-profit facilities.
“We must make sure these institutions invest in the staffing to make sure folks are receiving proper care — it is absolutely essential to do it,” the senator said. “...It’s not going to be that difficult. Chewing gum, juggling and marathoning at the same time — if anybody can do it, New York can.”
Hospital staff can report to committee members if staffing levels or plans are not met and will be legally protected from retaliation.
DOH will investigate violations and may require a corrective action plan or civil penalties. State Health Commissioner Dr. Howard Zucker and the department will determine penalties.
Gallivan pressed Rivera on the new requirement amid the state’s ongoing shortage of nurses and health workers.
The bill includes conditions that Health Department officials will account for before penalizing a facility, including for natural disasters or catastrophic events, the nature of noncompliance and the state’s labor supply shortage.
The department will evaluate good-faith efforts made to meet the staffing requirement, Rivera said, adding a hospital or nursing home could prove their efforts by showing advertisements for open positions, interview records or offers made to potential staff.
Democrats consulted advocates, health workers, owners and representatives of private facilities, owners of nonprofit organizations, family members and others for suggestions in drafting the legislation, they said.
In the 2021-22 state budget passed April 7, private and public nursing homes are required to reinvest at least 70% of revenue, excluding capital costs, on direct resident care, including 40% on resident-facing staff.
The most recent state spending plan included $64 million to assist with increased staffing.
“Nurses have always been health care heroes at our loved ones’ bedsides. And for the last year, they have also served on the frontline of a global pandemic,” Assembly Speaker Carl Heastie, D-Bronx, said in a statement. “These bills will ensure that our nurses, whether in hospitals or nursing homes, are working under conditions that allow them to best help their patients and save lives.”
Senate bill sponsor Rivera, D-Bronx, repeatedly thanked Senate Majority Leader Andrea Stewart-Cousins on Tuesday for bringing the measure to the floor after a fight spanning more than 15 years.
Stewart-Cousins said the COVID pandemic was the main catalyst for righting the long-existing inequities in the state’s health care system, including inadequate staffing in facilities that provide medical treatment or care.
“That’s why I brought stakeholders to the table to take meaningful action and solve this crucial issue that had been discussed long before our current majority,” the Senate leader said Tuesday. “Our nurses and health care workers are the backbone of the public health system, and they were on the frontline during the COVID-19 pandemic. This legislation will not only save lives, improve patient outcomes but will allow New York’s healthcare system to increase its capacity to better respond to future public health emergencies.”
Some lawmakers criticized the decision to split the staffing bill into two pieces of legislation — one for hospitals and another for adult care.
Rivera reiterated several times on the floor Tuesday that Cuomo did not have a part in putting the measure in two bills, adding it was decided the rules for both types of facilities should remain distinct.
Communications Workers of America District 1, 1199SEIU and the state Nurses Association issued statements of support Tuesday in favor of the new health staffing requirements.
“We know safe staffing saves lives — it’s not just a catchphrase, it’s not just an attention-grabber, people at the bedside will tell you people have died because there has not been the staff needed to provide the care,” said Debbie Hayes, upstate area director for District 1 of labor union Communications Workers of America.
Hayes, who has served as a registered nurse for 42 years, said the understaffing crisis hit particularly hard during the COVID-19 pandemic in all health facilities around the state.
“The thing I am hearing across the state is that staffing is as bad as it’s ever been, that’s whether it’s in skilled nursing facilities where the staffing issues have been in place longer and are extremely severe or in our hospitals that there are just not enough people to get the care done,” Hayes said. “I know that prioritizing our health care workers and patients is a massive investment in our health care system, but it’s just time to get it done.”
Senate Minority Leader Rob Ortt, R-North Tonawanda, suggested Tuesday his Democratic colleagues acted with hypocrisy in supporting state nursing homes with staffing mandates. Ortt and other critics argue the governor’s controversial March 25, 2020, nursing home policy, which allowed coronavirus-positive patients to return to the facility to recover, led to an undetermined number of additional fatalities in congregate facilities.
“Today’s vote should not distract from the fact that Senate Democrats have failed to take any action to hold the governor accountable for his catastrophic policy that led to the death of thousands of seniors in our nursing homes,” Ortt said in a statement.
Representatives from Cuomo’s office did not return request for comment Tuesday about either measure or the governor’s intent to sign into law.
“All of us have come out of this pandemic having learned a great deal with a better understanding and appreciation for the areas of need across the entire health care system,” Assembly Minority Leader Will Barclay, R-Pulaski, said on Tuesday’s vote. “It’s difficult to overstate the importance of patient care, and today’s bills took significant steps toward ensuring proper staffing levels remain strong. We have to be mindful that our actions, however well-intentioned, cannot compromise the operations or overwhelm the facilities we’re trying to help.”
Sen. Dan Stec, R-Queensbury, proposed an amendment to the hospital staffing bill on the floor Tuesday that would have exempted federally declared rural hospitals with fewer resources from the new staffing mandate. The 20 Republican senators voted in favor of the amendment, which was stopped by the majority vote.