On June 30, 2023, the New York State Department of Health (DOH) issued a notice to nursing home operators and administrators announcing that it will begin conducting assessments on July 10, 2023 of nursing homes’ compliance with the State’s minimum staffing requirements. Nursing homes that fail to adhere to the three requirements outlined in the minimum staffing standards in any quarterly period face civil penalties of up to $2,000 per day that they are out of compliance.

The three minimum staffing requirements established under Public Health Law 2895-b are as follows:

  1. Beginning April 1, 2022, nursing homes were required to maintain at minimum daily average staffing hours equal to 3.5 hours of care per resident per day (HPRD) by a certified nurse aid (CNA) (or nurse aid until December 31, 2022), and a licensed practical nurse (LPN) or registered nurse (RN).
  2. No less than 2.2 HPRD (out of the 3.5 hours) must be provided by a CNA, and
  3. No less than 1.1 HPRD (out of the 3.5 hours) must be provided by a LPN or RN.

DOH will provide an opportunity to nursing homes that receive a notice of non-compliance to (i) request a redetermination if an error occurred in the assessment; or (ii) apply for a penalty reduction if the nursing home is able to demonstrate that certain mitigating or aggravating factors are present. This includes extraordinary circumstances faced by the nursing home (e.g., a natural disaster; a declared national emergency; or a catastrophic event); an acute labor shortage of nurses where the nursing home is located, as determined by the DOH Commissioner; or a verifiable union dispute between the nursing home and nursing staff. 

DOH will disseminate notices of compliance and noncompliance through the Health Commerce System Distribution Management System and reminds providers to make sure the roles of Administrator, Administrator- Backup, Operator, and Operator-Backup are current.

For more information regarding the assessments, including an upcoming webinar on July 6, 2023 to be hosted by the DOH, see here.

If you require assistance or advice regarding the minimum staffing requirements or an assessment of non-compliance, please feel free to contact a member of the Sheppard Mullin Healthcare Team.