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 Unionthat 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.