Nursing homes that are struggling – and mostly failing – to comply with the state’s two-year-old minimum staffing law would face even stiffer hiring challenges under newly proposed federal standards.

Draft standards unveiled last week by the Centers for Medicare & Medicaid Services mandate a minimum of three hours of staffing per patient per day, including 0.55 hours by registered nurses and 2.45 hours by nursing aides.

Although that’s a smaller total than the 3.5 hours required by New York law, the federal rule would compel more hiring because of differences how it defines job categories.

As of early this year, most New York’s 600-odd nursing homes were falling short of both standards: Based on a review of payroll data for the first quarter of 2023, only 14 percent of the facilities would have met the CMS minimums, compared to 22 percent that were fully complying with the state law (see chart).

Both the state and federal staffing rules are meant to improve the quality of care in nursing homes across the country. However, they call for dramatically expanding a New York workforce that was shrinking before the pandemic and plunged by 20 percent during the crisis. Industry officials are warning that they cannot comply with existing or proposed standards without a major increase in reimbursements from Medicaid and Medicare, the taxpayer-financed health plans that are their primary sources of revenue.

CMS officials confirmed that their proposed rule would exceed existing requirements in most states and mandate increased staffing in more than three-quarters of facilities nationwide.

As proposed, the federal regulation would define job categories differently than the New York law, complicating compliance for the state's nursing home operators.

The state's nurse staffing minimum of 1.1 hours per patient-day includes both registered nurses and licensed practical nurses but excludes those performing administrative functions.

By contrast, the federal nurse staffing standard of 0.55 hours counts only registered nurses but includes RNs with administrative duties.

The state's standard for staffing by aides, at 2.1 hours per patient-day, counts only certified nursing aides. The federal aide staffing standard of 2.45 hours covers certified nursing aides, nursing aides-in-training and medication assistants – a job category that is not recognized in New York.

In addition, the state requires a total of 3.5 hours per patient day of staffing by RNs, LPNs or certified nursing aides.

Neither standard gives homes credits for other types of staffing, such as physical therapists or recreation aides, who in some cases spend more time with residents than nurses or aides.

Both standards will create significant demand for labor. Based on payroll data from early 2023, homes would have had to expand their collective workforce by more than 7,000 employees, or 13 percent, including 4,300 aides and 1,400 nurses, to be fully in compliance with the state law.

Complying with the proposed federal standard would have required the addition of about 7,000 aides and 1,100 nurses.

The state Health Department is currently weighing its first round of penalties under the staffing law, covering April through June of 2022. Most homes were out of compliance during that period, but the department also declared that the entire state was experiencing an "acute labor supply shortage." This gives officials discretion to reduce fines, which can be as high as $2,000 per day.