Interests of care home residents must guide any exception to staffing law

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News Editorial Board

The problem with laws – especially those that are broad, necessary as they are – is that they are blunt objects. They poorly manage the inevitable nuances and variations that may come under their authority. The same is true with state nursing home staffing law.

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

This is an important debate, but one that must be resolved with the interests of residents at the top of the priority list. The issue cannot be resolved simply by cutting the legs of a duly passed law.

A proposed solution is drawing criticism from supporters of the law, including industry watchdogs and a prominent union. Draft regulations released last month would eliminate the minimum penalty of $300 a day for nursing homes who can prove extenuating circumstances – conditions that include an acute shortage of labor in the area where the facility is located. nursing home. In this regard, the State Department of Health, with the assistance of the Department of Labor, plans to release a quarterly assessment to determine if such a shortage exists in an area. If so, under the proposed regulations, no fine would be imposed.

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

It shouldn’t be controversial to observe that staffing shortages are common across the country, spread across nearly every industry. It wouldn’t be surprising if nursing homes had the same difficulty – at least for now.

But it’s also true that care home pay can be so low that many potential staff would refuse to take on what can be grueling and difficult work. So, a question: if a labor shortage stems from low pay, should that qualify for an exemption? We are dubious.

The Staff Act requires nursing homes to provide 3.5 hours of nursing care per resident per day. Of these hours, no less than 2.2 hours must be provided by a licensed practical nurse or nurse’s aide and at least 1.1 hours must come from a registered nurse or licensed practical nurse. This is a real obstacle for some nursing homes, but New York is not alone in this case; other states have similar laws.

The Department of Health promotes the proposed exceptions. The idea, a spokesperson said, is to give the department “greater discretion in assessing sanctions.”

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

“It is unfortunate that the Department has capitulated to industry interests when the law and the genesis of the law are clearly intended to ensure that residents of New York State nursing homes have access every day. appropriate minimum staff,” said Richard J. Mollot, Executive Director. of the Long Term Care Community Coalition. “If we don’t hold suppliers accountable for this in a meaningful way, it will never happen.”

The big union, 1199SEIU United Healthcare Workers East, agreed. He represents thousands of healthcare workers in Western New York.

There are no easy answers. A real labor shortage, not caused by low wages, is not a made-up excuse – not if it affects more than one nursing home and is understaffed despite diligent and documented efforts. It should be fair to consider this in determining whether a fine is appropriate, but it also cannot be a loophole. The question is whether a nursing home is penalized for failing to meet an impossible standard.

Yet the driving force behind this conflict must be the well-being of nursing home residents, too many of whom receive substandard care. These people may be fragile and lack someone to defend them. They need quality care. So the puzzle: When, via a fine, is it useful to collect the resources necessary to provide it?

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