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Requiring Nurse OT Could Mean Fines

Legislation awaiting Gov. Kathy Hochul’s signature could lessen the mandatory overtime worked by area nurses — and lead to penalties paid by health care providers.

Among the bills passed in the final days of the legislative session was A.8874/S.8063. Sponsored by Assemblywoman Latoya Joyner, D-Bronx, and Sen. Jessica Ramos, D-Jackson Heights, the legislation limits the length of time health care providers can require nurses to work overtime and impose monetary penalties for those violating the law.

Specifically, the legislation reinstates limitations on mandatory overtime to be three consecutive days after a disaster or 30 consecutive days after a declared emergency. A staffing emergency would not be able to include routine nurse staffing needs. The state Labor Department would be allowed to fine employers between $1,000 and $10,000 per violation when a nurse is required to work more than their scheduled work hours.

“After all nurses did for us during the pandemic, passing S.8063A is the least we can do,” Ramos said in a Facebook post after the Assembly passed the legislation. “It ends the loophole that forces nurses to work mandatory overtime with no limits. This is a necessary labor protection but also preserves treatment outcomes and worker retention. Being the ultimate essential worker that they are we need to take every precaution to value nurses not just with words and applause but with true protections.”

It is the second staffing-related bill to impact the nursing home industry this year. In April, Hochul allowed the state Health Department to enforce new regulations passed by the legislature in 2021 requiring at least 3.5 hours of care per resident per day. Of those 3.5 hours, no less than 2.2 hours have to be provided by a certified nursing assistant or nurse aid and 1.1 hours have to be provided by a registered nurse or licensed practical nurse. Implementation was delayed for three months because nursing homes couldn’t hire enough workers to meet the mandate, due in part to the COVID-19 Omicron variant sweeping through the state.

“Our seniors who are cared for in nursing homes and the people who care for them deserve better than a system that is constantly in survival mode,” said Lisa Haglund, Heritage Ministries chief executive officer. “Yet, that’s literally the only option for many nursing home operators throughout New York State. Why? Because more than two years into a global pandemic — and facing an historic staffing crisis — New York state is still thinking punitively and not proactively.”

Assemblyman Andrew Goodell, R-Jamestown, voted against the bill in the Assembly and Sen. George Borrello, R-Sunset Bay, voted against the legislation in the Senate. While neither spoke against the bill on their respective chamber floor, Assemblyman Josh Jensen, R-Monroe County, raised several issues on the Assembly floor, including the state’s low Medicaid reimbursement rate for nursing homes and the ongoing worker shortage that makes it difficult for many nursing homes to meet the minimum staffing requirement.

“I think when we talk about health care staffing, employers have to do their job to make sure they are making appropriate, responsible staffing decisions to ensure there are no shortages of the staff they have and make certain every single person that they’re caring for has a level of care provided is appropriate,” Jensen said. “However, in New York state where we are suffering from health care staffing shortages, the actions in this bill or the language in this bill that would decrease the variety of exceptions is problematic. Certainly employers can’t control if their employees are no call, no shows, if the agency staff doesn’t arrive, if somebody gets sick of it there are staffing shortages that are beyond their control despite their best efforts to ensure appropriate levels of staff. I think that provides less ability to react to an evolving situation, which in health care the situation, whether its a hospital or a nursing home, it’s always evolving because patient centered care is always evolving. I think there is also concern that there are two separate pieces of legislation that this house will pass that have conflicting language changes to the same labor law statute.”

Joyner and Ramos said in their legislative justification that the opposite is happening. They say nursing shortages are being caused by mandatory overtime driving nurses out of the industry when they would otherwise continue providing care. They say banning mandatory overtime will help attract more nurses into the field.

But Haglund said the minimum hours of care requirement coupled with restrictions on mandatory overtime for nurses will lead to nursing homes paying money in penalties they can’t avoid when those dollars would be better spent on patients.

“Existing penalties for not providing 3.5 hours of care per resident per day were further exacerbated today when the legislature approved additional fines when nursing homes require mandatory overtime in order to comply with the 3.5 hours requirement,” Haglund said. “No non-profit nursing home provider wants to require mandatory overtime of our nurses, but it’s often our only option to address severe staffing shortages. This industry cannot sustain these debilitating sanctions, and New York state can no longer afford to punish its way out of this problem. Our limited funding should be used to continuously improve quality of care by supporting our dedicated staff with competitive salaries and strengthening our workforce with greater investment in recruitment and training. Every dollar spent paying a penalty puts this industry further from funding actual solutions. It’s time for New York state to start putting solutions for seniors before penalties for nursing homes.”

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