An organization representing 165 Connecticut nursing homes has sued the state Department of Public Health over new staffing regulations that require a certain number of licensed nursing staff and nurse aides per shift.
The Connecticut Association of Health Care Facilities charged in a lawsuit filed last month that the health department’s new guidelines “represent a significant, overreaching departure from [the] existing regulations regarding staffing ratios for nursing homes.”
In 2021, lawmakers pushing to increase staffing in Connecticut’s nursing homes passed legislation raising the minimum hours of direct care per resident each day from 1.9 to 3. They tried, unsuccessfully, to increase the minimum threshold to 4.1 hours but settled for the lower target after a fiscal analysis estimated it would cost at least $200 million.
The health department has since prepared regulations that go along with the higher staffing requirements, which include certain numbers of licensed nursing employees and nurse aides on each shift and specific guidelines for therapeutic recreation and social work, among other things.
For example, the regulations mandate 1.6 hours of nurse aide care per resident between 7 a.m. and 9 p.m. Previously, 1.4 hours of “total nursing” care were required, meaning the shift could be filled with registered nurses or licensed practical nurses instead of nurse aides. Now there are separate requirements for licensed nursing staff and their aides.
Nursing home officials have said they are not opposed to the raising the minimum staffing hours from 1.9 to 3 but object to the more restrictive staffing rules.
“The legislature clearly intended for the minimum staffing ratio to be established as a combined total of licensed nursing staff and nurse’s aide personnel, consistent with the existing Public Health Code methods,” Jennifer L. Morgan, an attorney for The Connecticut Association of Health Care Facilities, wrote in the lawsuit. “Instead, DPH has created two separate minimum staffing levels, one for licensed nursing staff and one for nurse’s aide personnel, which is a major change that will significantly increase the fiscal impact and require staffing modifications for over 100 nursing homes.”
Matthew Barrett, president and CEO of the association, declined to comment on the pending litigation. A spokesman for the health department also declined comment.
The regulations went into effect in March, just days after nursing home industry leaders raised concerns.
“On information and belief, DPH did little or no research on best practices for nursing home staffing prior to issuing the draft policy,” Morgan wrote in the lawsuit. “No research or studies were offered in support of the draft policy. DPH also failed to seek any public input in the process of drafting the language with specific staffing allocations. Indeed, DPH leadership indicated that the staffing ratio determinations were based on ‘anecdotal’ information provided by the Connecticut long-term care ombudsman and other outside groups. Recommendations made by CAHCF and LeadingAge Connecticut were dismissed.”
Mairead Painter, the state’s long-term care ombudsman, said Friday that her office has received a significant increase in the number and severity of calls and cases over the past decade.
“The absence of a prescribed nursing home staffing standard for certified nursing assistants (CNAs), licensed practical nurses (LPNs), and registered nurses (RNs) directly involved in resident care results in ongoing complaints to my office from residents, family members, and staff regarding unmet basic care needs,” she said. “Access to a drink, the bathroom or food should not be a matter of luck when entering a facility, as these are fundamental human needs often overlooked in long-term care facilities.
“This is not anecdotal or opinion-based information; rather, it stems directly from the calls and cases received by my office. Due to the confidential nature of these interactions, detailed information about the individuals involved cannot be disclosed, as many callers fear retaliation and choose not to share their information.”
A public hearing on the regulations was held in August, igniting a firestorm of grievances about conditions in nursing homes and a lack of staffing.
Nursing home residents and their loved ones told state health officials that care in Connecticut facilities is woefully inadequate, leaving some people stranded for hours without trips to the bathroom, diaper changes or meals, and that neglect from understaffing has caused injury, infection and death.
But industry officials said the strict requirements put a strain on facilities.
“By making it so restrictive and requiring so many hours of [nurse aide care], it caused a lot of angst for people,” said Mag Morelli, president of LeadingAge Connecticut, which represents nonprofit nursing homes. “You can’t mix and match, you can’t blend. You have two separate ratios, and it just makes it so much more difficult.”
“The main issue of concern is not in opposition to the 3.0 [staffing] standard,” Barrett said in written testimony. “The concern is in the harmful and costly implications of removing the longstanding flexibility of directing staff to meet the specific care needs of residents by inflexibly mandating the RN, LPN and CNA hours.
“Given that the General Assembly rejected any allocation of minimum hours among different nursing staff categories, it is clear that the state legislature intended to leave specific staffing choices to the individual nursing homes, which are in the best position to assess the specific needs of individual patients and determine specific staffing to meet those patients’ needs.”
In September, the association filed a request for reconsideration of the regulations, saying the state’s rules contain “errors of law regarding the proper statutory construction and interpretation of the minimum staffing mandate.” The state declined to consider the request, according to court records.
The association is asking the court to reverse the health department’s final declaratory ruling on the regulations and issue new rulings that find “any regulations, policies and procedures promulgated by [the department] with respect to minimum staffing level requirements [that] set specific minimum staffing levels for each category of nursing services (RNs, LPNs and/or CNAs) for those three (3.0) hours of direct care per resident per day … in violation of the purpose and intent” of the statute passed by the legislature.