Why isn’t New York enforcing its nurse staffing law?

Jessica Montanaro, a registered nurse in Mount Sinai Morningside’s intensive care unit, regularly gets assigned three patients who require near constant attention to survive. Research shows that intensive care patients see significantly worse outcomes when there are more than two patients per nurse.

“We're living in 1-3 ratios at this point, pretty consistently, especially on night shift. And that is unsafe,” Montanaro told New York Focus and City & State. 

At the height of the surge of the omicron variant in January, Montanaro said, conditions were even worse: Her unit sometimes received four patients per nurse. That wasn’t supposed to happen. As part of a landmark hospital staffing law enacted last summer, lawmakers mandated a roughly 2-1 patient-to-nurse ratio in intensive care units across New York – which was supposed to take effect on January 1.

But without notice or explanation, the state Department of Health has fallen behind schedule on implementing that new law.

The far-reaching legislation, signed by former Gov. Andrew Cuomo in June after a decades-long push by nursing unions and progressive lawmakers, required every hospital in New York to take steps toward establishing nurse staffing ratios in all hospital units – and also required the state health department to impose a blanket ratio requirement for all ICUs by January 1, 2022. That didn’t happen. 

Nurses’ unions fear that once the health department does start implementing the law, it will water it down. Indeed, when the department sent out a draft of the proposed regulation in the fall, it altered the language of the ICU rule from the original text of the law in a way that could further delay and limit it.

A state health department spokesperson told New York Focus and City & State that the department will officially kick-start the process of enshrining the staffing law into the public health code this week, followed by a 60-day public comment period before it finalizes the ICU rule. (The department had previously told the Albany Times Union that it would start that process in November.)

Health care administrators argue that many hospitals in the state won’t be able to comply with the law due to widespread workforce shortages. Supporters of universal staffing ratios predicted that the version of the law that made it through the Legislature would provide an opening for hospital administrators to fight against the staffing ratios and would be difficult for the state health department to enforce.

Navigating those tensions will test new state Health Commissioner Mary Bassett as she walks the tightrope between the industry and union pressure. The health council tasked with advising the state health department on implementing the statute – about half of whose members are health system administrators, including its chair – has already discussed softening the language around the ICU ratio and other parts of the law.

And the ICU ratio is likely to be just the first skirmish in a battle between organized labor and the hospital industry this year over the law’s implementation.

ICUs on life support

The pandemic intensified nurses’ decades-old demands for improved hospital and nursing home staffing standards, which are currently far below those in place in California – the state regarded by nursing unions as the gold standard after it became the only one in the U.S. to mandate statewide nurse-to-patient ratios. Nurse understaffing is a particularly dire concern in ICUs, which serve patients with life-threatening illnesses or injuries who require some combination of constant care, life support equipment and medication to ensure normal bodily functions.

In response to the rising concerns, New York’s Legislature passed the new law last summer to require a certain number of nurses to be on the floor of a hospital at any given moment. 

Though New York State Nurses Association, a union representing 42,000 nurses, and the Communication Workers of America, which represents nurses in about 10 hospitals in the state, said they would have preferred a law that mandated specific staffing ratios in most hospital units, they ended up accepting the compromise that will require hospitals around the state to negotiate with nursing staff and set their own staffing levels on an annual basis.

But the law signed by the governor made an important exception in the case of ICUs, for which it mandated a universal ratio for all hospitals. The law required the state health department to promulgate a minimum standard of “12 hours of registered nurse care per patient per day,” intended to be equivalent to a 2-1 patient-to-nurse ratio.

A prepandemic 2020 study by the University of Pennsylvania Nursing Center for Health Outcomes and Policy Research found ICU staffing ratios in New York to range from 1.8 to 4.3, with an average of 2.5 patients per nurse.

Montanaro said that caring for three or four patients under intensive care is both dangerous and terrible for morale. At Mount Sinai, the stress of being overworked has led to an “exodus” of early retirements and resignations, she said.

She described an especially high-risk shift: “You've got three ventilated patients on multiple drips and a neuro patient who has a head bleed [and] needs every one-hour neuro checks…. How does a nurse do that?”

A spokesperson for Mount Sinai acknowledged that the “pandemic has placed unprecedented demands on our system” and said that the hospital system has been working closely with its nursing school to recruit and retain nursing staff.

From fixed ratio to strong suggestion

Under the timeline required by the new statute, the 1-2 ICU ratio was supposed to have been enforced by the state health department by the start of the new year. 

In an October meeting when a volunteer health council that provides state government with advisory opinions considered the health department’s draft plan for enforcing the law, one of the members pointed out that it was unlikely the department would be able to follow the proposed timeline and asked what would happen as a consequence. The council’s chair said he didn’t want to speak on it publicly until he had run it by their lawyers.

The state health department has not made any further movement on the law since that meeting. Nor did it indicate that there would be any consequences for delaying the process at least three months, if the state sticks to its current goal of getting the regulation on the books mid-April after the two-month public comment period. 

Neither of the law’s primary sponsors, Assembly Member Aileen Gunther and state Sen. Gustavo Rivera, provided comment on the delays for this article. 

In addition to the delays, the nurse unions raised alarms that the ICU regulation the health department advanced to the health council in October did not accurately follow the statute. 

For a law to go from a text passed by the Legislature to a regulation with real-world enforcement, the government has to write it into its rulebook. To do so, state agencies listen and respond to public comment as they adapt the language of the statute into the official tome of state rules and regulations: the state register.

The text of the staffing law calls for a standalone regulation that would create the “12 hour minimum of direct care” for ICU nurses and would go into effect immediately after the law is entered into the public health code.

The draft rule released by the health department in October, by contrast, lumped the 12-hour minimum into the staffing plans that hospitals will be required to negotiate and finalize by 2023.

Unless that language changes, it would turn what was intended to be a hard-and-fast rule into a subject of negotiation in the staffing committee process, said Leon Bell, NYSNA’s public policy director.

“It's almost like it was a strong suggestion that the staffing committees should include that metric, but not a standalone regulation that requires every hospital to implement that across the board, regardless of what the staffing committees come up with,” Bell said.

Instead of statewide ratios, the staffing committee law will require each individual hospital to form a committee – made up half by nurses, half by hospital administrators – that will meet annually to negotiate a set of minimum staffing ratios for different hospital units. That model, proponents of the approach say, will create flexibility for individual hospitals to take economic factors into consideration.

Unions have urged the health department to change the wording of the ICU regulation to be enforceable on its own when the department formalizes the rule in the state register.

"The legislation clearly directs the DOH to promulgate a standalone staffing regulation for critical and intensive care units that is independent of the staffing committee process, just as it has done with other nurse-patient ratios already on the books, like in burn units or for liver transplants," said Rebecca Miller, legislative director for CWA D1.

Miller also took issue with the way that the committee formatted the wording of the ICU regulation as “12 hours of direct care per patient” rather than a direct 1-2 nurse-to-patient ratio. The union has argued the statute’s wording was meant to be synonymous with a 1-2 nurse to patient ratio at all times.

As written, the regulation opens up loopholes for hospitals to get around having the strict ratio, she said. Twelve hours of care on average could allow hospitals to have less staffing at night, for example, if they compensate with extra staffing in the morning. 

‘A bit of flexibility’

For months, health care administrators and hospital associations have been fighting the implementation of the legislature’s staffing law, which they say could not come at a worse time given the extensive staffing shortages two years into the pandemic.

The Iroquois Healthcare Alliance – a hospital association representing around 50 hospitals across 32 upstate counties – sent a letter to former state Health Commissioner Howard Zucker in November asking him to delay the implementation of the hospital staffing law. The organization has collected data that nurse vacancy rates across its network increased from 15.9% in January 2021 to 25.2% January 2022. 

Some of the network’s workforce shortage predates COVID-19. It went into the pandemic with a 12% vacancy rate in January 2020. But Gary Fitzgerald, IHA’s president and CEO, said that the state’s decision to mandate a vaccine booster for all health care workers by Feb. 21 has led to a new flurry of resignations – and that the hospitals in IHA’s network are going to have difficulty meeting the ICU regulation.

“We've been talking to the DOH people about being as flexible as possible. That 12-hour ICU mandate is a staffing ratio, right? There's no other way around it,” he said.

Hospital executives who sit on the advisory health council have also expressed their desire to tweak the staffing law to add flexibility. 

“I think what you've heard the department say, and I think what we'll be getting comments on, is a bit of flexibility here,” said Jeffrey Kraut, the chair of the health council and a Northwell Health executive, during an October meeting. 

Kraut said that he wanted to clean up the language in the staffing rules to make them less rigid. For instance, he said, the ICU rule should factor in “the use of an eICU support staff,” a form of telehealth nursing.

At a recent meeting, council member and University of Rochester Medical Center executive Peter Robinson argued that increasing the nurse workforce “is not just turning a switch.”

“I unfortunately don't see a short-term solution to the problem. We just don't have enough people in the profession in New York to meet the needs that New Yorkers have,” Robinson said.

The health council, called the Public Health and Health Planning Council, only has an advisory role, but its recommendations are taken seriously by the governor. After the council cautioned in a December meeting that separate legislation regulating staffing in nursing homes was not ready to be implemented by its Jan. 1 deadline, for example, Gov. Kathy Hochul signed an executive order temporarily preventing that law from taking effect at the last minute on New Year’s Eve.

Hochul cited nursing home labor shortages as her rationale delaying the nursing home law, which was passed by the Legislature as a companion to the hospital staffing legislation and will require a fixed number of hours of care per day for nursing home residents.

The Hochul administration’s responsibility to maintain the financial viability of a health care system in crisis could make it more open to these arguments from the industry.

Still, studies show that the number of per capita nurses in New York, 18.7 registered nurses per 1,000 people, is higher on average than in California, the only state in the U.S. that has successfully implemented statewide staffing ratios. 

Montanaro, the Mount Sinai ICU nurse, blamed the shortage of nurses at her hospital on burnout caused by understaffing. Many have left the hospital setting to pursue other less stressful forms of nursing, she said.

“We're kind of standing up as a profession and we're saying, ‘Look, we're not okay. We don't have the support. We’re in these untenable ratios. It's not safe for our mental or physical health or the patient's safety,’” Montanaro said.

“And yet it's not being heeded for whatever reason.”

Update: On Feb. 16, after this article was initially published, the state health department officially proposed a version of the ICU regulation that was incorporated in the staffing committee process, rather than the standalone rule the legislation had provided for. Unions had warned that discrepancy would in effect delay the implementation of the ICU regulation to 2023.

Asked whether the proposed ICU regulation would delay implementation to 2023, DOH spokesperson Jill Montag did not directly respond, but pointed to separate legislation whose implementation had been suspended: "Due to the current workforce shortage in the healthcare industry, New York State has suspended other similar statutes and regulations via Emergency Executive Orders until such time as the workforce crisis subsides." The public comment period will last until April 18, at which point the health department will have another chance to alter the language of the law before it becomes final.