A group of around 80 nursing homes has filed a lawsuit seeking to overturn a New York law that established minimum staffing levels and resident-care spending levels for nursing homes.

The state law, which was passed in 2021, mandates that every facility provide 3.5 hours of care per resident per day, which must be provided by a certified nurse aide, licensed practical nurse, or registered nurse.

In addition, the law requires nursing homes to spend at least 70 percent of their revenue on direct resident care and 40 percent on resident-facing staffing.

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As per court records, the lawsuit claims that Gov. Kathy Hochul illegally took arbitrary and capricious executive action when she ordered enforcement of the law to begin in March during a national healthcare staffing shortage, which hinders hiring and retention of workers.

The nursing homes in the lawsuit also claim New York violated federal laws protecting collective bargaining rights and access to Medicare and Medicaid funding.

LeadingAge New York, a nursing home trade association, filed the lawsuit in the state Supreme Court in Albany County on Monday.

James Clyne, Jr., president and CEO of LeadingAge, said “The combination of poor policies, lack of funding, and a workforce that is in short-supply have resulted in a perfect storm of circumstances that leaves us with no other remedy than to seek the intercession of the courts,”.

Hochul and the state Health Department did not respond to questions about the lawsuit right away.

Nursing homes asked the judge to stop the state law’s enforcement immediately and declare it illegal or unconstitutional. The lawsuit also seeks compensation for legal costs associated with the litigation.

Violations of the minimum staffing and spending requirements can result in fines of up to $2,000 per day for facilities. Penalties may also include the seizure of their surplus revenue.

In early April, state officials stated that they would not impose fines at first to give nursing homes time to comply with the law. It is unclear whether any penalties have been imposed thus far

The lawsuit came after months of debate over New York’s nursing home staffing minimum law, which was approved by lawmakers and former Gov. Andrew Cuomo last year.

On Friday, December 31, Hochul issued an executive order postponing the law’s implementation, which was scheduled to begin on January 1. She cited pandemic-related staffing shortages affecting health care facilities as the reason for the delay at the time.

After issuing two similar orders delaying enforcement, Hochul issued an executive order calling for the staffing law to be enforced on Thursday, March 31. It came as a result of pressure from Attorney General Letitia James and members of the 1199 SEIU Healthcare Workers East to stop postponing implementation.

New York’s law functions “arbitrarily to penalize and, potentially force closure of, nursing homes that do not meet a blunt, one-size-fits-all model,” the lawsuit claims, adding the law fails to account for resident needs, investments in facilities and other factors.

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Furthermore, nursing homes argued that Hochul’s March executive order initiating enforcement of the law recognized that health care staffing shortages had not “materially improved in recent times,” according to court records.

The lawsuit cited the fact that some nursing homes have unionized workforces that set their own staffing ratios and other labor conditions in arguing that the state law violates federal laws protecting union bargaining rights.

The 2021-22 state budget allocated $64 million and the 2022-23 budget allocated $123 million for nursing home staffing — but none of those dollars have been distributed to providers, the lawsuit claims.

“We are disappointed and concerned that (New York) nursing home operators and their trade associations continue to spend their resources fighting common sense resident protections rather than investing in improving care at their facilities,” the union stated

Source:  The Post-Journal

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