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EDITORIAL: Interests of nursing home residents must guide any exceptions to staffing law

Buffalo News - 9/23/2022

Sep. 23—The problem with laws — especially broad ones, no matter how necessary — is that they are blunt objects. They don't deal well with the inevitable nuances and variations that may come under their authority. So it is with the state law on nursing home staffing.

That a state response to problems in nursing homes was necessary was evident, given the substandard care in many of them, documented by a series of article in The Buffalo News. The question facing legislators, overseers and nursing homes is whether and how to discipline nursing homes that, despite their best efforts, cannot meet the standards of the 2021 law.

It's an important debate, but one that needs to be resolved with the interests of residents at the top of the list of priorities. The issue cannot be resolved simply by cutting the legs from a duly passed law.

A proposed solution is drawing criticisms from supporters of the law, including industry watchdogs and a prominent labor union. Draft regulations issued last month would eliminate the minimum penalty of $300 per day for nursing homes that can prove mitigating circumstances — conditions that notably include an acute labor shortage in the area where the nursing home is located. In that regard, the State Health Department, with the help of the Labor Department, plans to issue a quarterly assessment of whether such a shortage exists in any region. If so, under the draft regulation, no fine would be levied.

Other exceptions — likely less controversial — would include natural disasters or a national emergency affecting the nursing home.

It shouldn't be controversial to observe that staff shortages have been common across the country, spread among just about every industry. It would be no surprise that nursing homes might similarly struggle — at least for now.

But it's also true that nursing home pay can be so low that many potential staffers would decline to take on what can be trying and difficult work. So, a question: If a labor shortage stems from low compensation, should that qualify for an exemption? We're doubtful.

The staffing law requires nursing homes to provide 3.5 hours of nursing care per resident per day. Of those hours, no fewer than 2.2 must be provided by a certified nursing assistant or nurse aide and at least 1.1 hours must come from a registered nurse or licensed practical nurse. It's a real hurdle for some nursing homes, but New York isn't alone in this; other states have similar laws.

The Health Department is promoting the proposed exceptions. The idea, a spokesman said, is to provide the department "greater discretion in assessing penalties."

But critics see an effort to negate a law duly passed by the Legislature and signed by former Gov. Andrew M. Cuomo.

"It's a shame that the Department has capitulated to industry interests when the law and the genesis of the law are clearly intended to ensure that nursing home residents in New York State have appropriate minimum staffing every day," said Richard J. Mollot, executive director of the Long Term Care Community Coalition. "If we don't hold providers accountable for that in a meaningful way, it will never happen."

The big labor union, 1199SEIU United Healthcare Workers East, agreed. It represents thousands of health care workers in Western New York.

There are no easy answers. A actual labor shortage, not caused by low wages, isn't a made-up excuse — not if it affects more than one nursing home and if staffing falls short despite diligent, documented efforts. It should be fair to consider that in determining whether a fine is appropriate, but it can't be a cop-out, either. The question is whether a nursing home is being penalized for failing to meet an impossible standard.

Still, the driver in this conflict has to be the welfare of nursing home residents, too many of whom receive substandard care. These individuals may be frail and may lack someone to advocate for them. They need quality care. So the puzzle: When, via a fine, is it useful to take away the resources needed to provide it?

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