Nursing Home Workers Raise Concerns About The Implementation of New York's Staffing Law

September 8, 2022

FOR IMMEDIATE RELEASE:

Contact: Mindy Berman, 518-229-0486

Proposed regulations and misguided industry pushback are obstacles.
Public comments on the August draft regulations are due this month.
New York State's staffing levels rank near the bottom nationally.

Albany, NY. 1199SEIU, the largest union of healthcare workers in the country, has serious concerns about implementing New York's nursing home staffing law. For two years, the public praised nursing home workers and low-wage caregivers as the heroes of the COVID pandemic. Yet, they are being driven away from the bedside by employers providing inadequate wages and benefits. In addition, nursing home owners are not implementing effective recruitment/retention policies and practices. Consequently, they are forcing staff to work in facilities with an insufficient number of caregivers and workers to provide quality care.

BACKGROUND

In response to serious deficiencies in the nursing home industry revealed during the first 18 months of the COVID pandemic, in 2021, the NYS Legislature passed, and Governor Cuomo signed into law minimum staffing standards for nursing homes. The law requires nursing home owners and operators to provide an average of 3.5 hours of daily care to residents: 2.2 hours delivered by nurse aides and 1.1 hours delivered by licensed R.N.s and LPNs. The balance can be provided by either aides or licensed staff. The law also set a daily requirement for meeting the standard. Failure to meet the benchmark would result in monetary penalties for each day below the standard.

1199SEIU caregivers, officers, and organizers, and policy and research experts are available to discuss the following.

The Obstacles:

DELAY

The law was to take effect on January 1, 2022, but enactment faced challenges as the pandemic raged on, and Governor Hochul chose to delay implementation under an Executive Disaster Emergency Order. However, the Governor didn't renew the executive order on April 1, and the law finally took effect.

The statute requires the law's compliance to be enforced through a quarterly review of staffing data issued by the Centers for Medicare & Medicaid Services (CMS). As a consequence of the delay, when CMS released data for the first quarter of 2022 in July, the data reflected the period before the law was in effect. The report was disappointing.

In 2021, before the law's passage, about 50% of the state's nursing homes were meeting the "3.5-hour" standard, and 50% were not. The July report indicated that even more nursing homes were not meeting the standard in 2022. Only 27% had an average staffing level of 3.5 hours or above. It also showed that New York's national staffing level ranks 44 out of 50 states, illustrating the need for a legal minimum standard. Without a standard, too many employers staff their nursing homes with as few workers as possible.

REGULATIONS

The law says, "Compliance shall be determined quarterly by comparing the daily average of the number of hours provided per resident, per day, using the federal Centers for Medicare and Medicaid Services payroll-based journal and the facility's average daily census on a daily basis." On August 10, 2022, the NYS Department of Health released updated draft regulations (November 2021 regulations were proposed and commented on but not finalized). The updated regulations undermine the intent and the letter of the law and further weaken enforcement of the staffing standard. Both the law and the November 2021 draft regulations imposed a minimum penalty of $300 per day for each day in a quarter a facility is non-compliant. The August 10 draft regulations remove this minimum penalty, leaving the penalty amount solely to the discretion of the Department of Health.

Nursing home residents need sufficient staff and care daily. Unfortunately, previous and current draft regulations allow nursing homes to staff below the minimum daily standard as long as they meet a quarterly standard. These rules will enable operators to continue the practice of short staffing, particularly on weekends.

Public comments on the August draft regulations are due on September 26.

MISGUIDED INDUSTRY PUSHBACK

The industry's focus on the availability of new workers belies the underlying reality: a high rate of turnover, a steady number of nursing assistants, and a decrease in beds. The biggest challenge is retention, not recruitment, borne out by the overall numbers.

The annual staff turnover rate for New York nursing homes is over 45%, and 21 facilities had 75% or higher turnover rates in April 2022. The workforce is relatively stable, while the number of nursing home beds has declined. According to federal Bureau of Labor Statistics data, the number of nursing assistants employed in New York has increased slightly between 2019 and 2021.

Nursing home owners and operators argue they cannot meet the new standards because they cannot find enough workers. The reality is there ARE enough nursing home workers to meet the standard. The problem: employers are driving workers away from the bedside because they offer low wages and benefits. Their current recruitment and retention policies and practices are ineffective.

There are ways that employers can reduce turnover and improve.

CASE STUDIES:

EMPLOYERS WORKING WITH 1199SEIU TO IMPROVE RECRUITMENT AND RETENTION

New Jewish Home of Manhattan and Westchester

1199SEIU members at these facilities have a union contract that provides livable wages and healthcare and retirement benefits, critical to attracting and keeping staff.

Members and management are focused on meeting the new staffing standards by improving recruitment, encouraging workers to participate in career pathways, and improving retention. Management values the union as a partner in improving care. Together they are utilizing available resources such as the 1199 Training and Employment Fund and the 1199 Labor/Management Partnership, which are provisions in their collective bargaining agreement. Turnover is currently 12%, and management's goal is to achieve an 8% turnover rate. 1199SEIU members and management address recruitment and retention efforts through a Labor/Management Committee and Jobs Committee. Collaborative efforts to improve employee retention include:

A focus on improving communication;

Jobs Committee works to reduce the use of overtime by encouraging part-time workers to pick up available shifts;

Using text messaging to recruit workers to pick up open shifts;

Using the monthly Labor/Management meetings to resolve issues such as improving relations between frontline staff and supervisors, piloting new ways to make staff assignments, and resolving issues to limit the use of the grievance procedure.

Weinberg Campus, Rosa Coplon Jewish Home, Getzville, NY (suburban Buffalo area)
Collaborative efforts to retain employees include:

Wage increases in 2021 collective bargaining agreement, with an improved wage grid for experienced workers to maintain a stable workforce;

Paying for cabs on weekends to encourage workers to pick up weekend shifts;

Providing discount bus passes for workers using public transportation;

Working together with elected leaders to restore a weekend bus line that was cut;

Creating a Labor/Management Collaboration group to resolve problems and improve working conditions and retention;

Together they are working to utilize available resources such as the 1199 Training and Employment Fund and the local BOCES;

Holding training classes right on campus;

Creating "transition positions" where new workers get on-the-job training and experience before becoming full time CNAs.

1199SEIU HEALTHCARE WORKER EXPERIENCE AT FACILITIES NOT MAKING AN EFFORT TOWARD IMPROVEMENT

Michael Turner, Cook, Ellicott Center, Buffalo

"Before the new owners took over, we were a Kaleida Health facility. When the downstate owners came in, they cut staff, and our workload doubled. They also cut our wages and benefits. They made me feel unworthy, like they didn't care about us or our hard work in caring for the residents. They changed our health insurance and increased the cost of our premiums. It hurt when they did this. They pretty much said, 'be happy that you have a job at all and take what we give and be grateful you have a job.' That's not a good feeling at all. They don't care about us as people or as employees.

We don't get the equipment in dietary to prepare the proper meals. There are menus that they tell us to use but don't give us what we need to prepare the meal. For example, this just happened—pulled pork was on the menu for Saturday, and we didn't have enough, so we had to substitute They can buy airlines but cut our food orders without telling us? So, I replaced items, and the residents didn't get what they expected or what they needed to eat."

Melrose Grant, CNA, Upper East Side Nursing Home, NYC

"There's lots of short staffing at my facility. Every time someone new comes in, you train them, and then they're gone. It's crazy, people are just moving around, and nobody stays. So we're always rushing when you don't have enough staff, like having two CNAs to 40 patients. Sometimes you alone can have 13 patients, and they all need care and help; you have feeders, showers, checking their weight, and computer work. You are one person, and it's too much work to do. We're so burned out.

The owners are terrible; they don't give us any incentives or care about their staff. They don't care that we're running around from room to room, and then we're rushing and pushing and pulling sometimes heavy patients, that takes a toll on your body. So then we have knee and back problems, and by the time we finish this job, we need to be in a nursing home ourselves and have people take care of us.

If management treated us better, we would stay. But, they don't even call to check on us or talk to us. Management here has no experience; they don't know what they're doing. Management is the reason people don't stay. They used to talk to us like we were human, but now nothing. Most people who have left said it was too much. One lady that left said she's never had so much work. She had no support and had never seen management treat staff so poorly. Frankly, if I were new, I would quit. I wouldn't stay."

Cecilia Campbell, CNA, Upper East Side Nursing Home

"Upper East Side is a revolving door. Nurses and workers come in and go. I've seen people come in once and never see them again. They bring them in through an agency, so they're not in the union and have no benefits. I've been here for 21 years, and it's never been this bad."

I work with behavioral patients, and last night I came in at 7 pm, and a resident had been lying on the floor since 1 pm. More than six hours, and no one had time to pay attention to him! We finally got him off the floor by 9 pm. Proper staffing means we can go to each resident and give them what they need at regularly scheduled times.

We have a lack of linens. We can't get supplies for the whole floor. So we get four or five sheets for 40 beds. We have two CNAs and one nurse for 40 patients—tell me, how do you divide that up?

Cathy Brown, CNA, Delmar Center, Albany

"This place is hectic, and the turnover is high. Then, somebody passes away, and two hours later, you got a new person, but the room is not cleaned and disinfected the way it should be.

It's supposed to be 20 minutes of personal care with each resident, but you're lucky if you get ten minutes to get them up, washed, dressed, and ready to go where they need to go.

And, we often don't have supplies to do our job. Of the seven days of work, maybe four or five days you don't have what you need. We don't have soap some days or washcloths. We're out of diapers. On other days there aren't tissues or cups or lids for ice water; it can be challenging. The work is tiresome and hard and tough on the residents. When your residents need you to just talk with them for a few minutes, talking about baseball or what happened the day before, but you come in with no time, it's boom-boom, on to next. And they think we have an attitude or are mad at them or upset, but I just can't spend that time because I have this extra work to do. That affects them. And it makes me feel terrible.

We asked for a raise in a Labor/Management meeting, and they said, 'Want a raise? Give up your health insurance!' Are they trying to push us out? Who will work here? Who will take care of the residents?"

David Guerin, LPN, Delmar Center, Albany

"In the last few months, there's been pretty big turnover. I can't say exact numbers, but I've seen people I haven't gotten to know, and then they're gone. It's like a parade of faces to me; an exodus and influx of temporary agency workers. Even when they hire a new full-time nurse, they're only there a couple of weeks because they can get paid more to work somewhere else, so why not? There's no investment in this place.

"I'm a floor nurse. I tell all the CNAs, if you need anything, tell me. I help toilet people, lift people, and get people in or out of showers; I run back and forth, getting ice water and fluffing pillows. It's that type of care that our vulnerable residents need to feel.

I took this job right here in Delmar because I live here. These are my neighbors that I'm taking care of. This is my town that I'm taking care of. So it's not just a job for me. I'm loyal, stick with jobs, and want to see this place right. Under the old ownership, it wasn't like this, but I don't want to abandon the people. Some residents have been here as long as I have; I feel responsible toward them."

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1199SEIU United Healthcare Workers East is America's largest and fastest-growing healthcare union. We represent over 450,000 nurses and caregivers throughout Massachusetts, New York, New Jersey, Maryland, Washington, D.C., and Florida. Our mission is to achieve quality care and good jobs for all. 1199seiu.org