NYC Health + Hospitals Struggles With Temporary Staffing Costs

 Click on text in COLOR to access the full report

A new report released on May 4, 2023, by State Comptroller Thomas P. DiNapoli found the COVID-19 pandemic exacerbated pre-existing staffing pressures, particularly a shortage of staff nurses, in NYC Health + Hospitals (H+H) facilities, leading to an increased reliance on temporary nurses and higher staffing costs.

Between February 2020 and September 2022, temporary staffing at H+H grew by 83% to offset the loss of staff nurses while managing demand for its services. It resulted in unexpected costs of $125 million in Fiscal Year (FY) 2023, which the State Comptroller’s office anticipates will remain elevated through at least FY 2024.

“For many NYC residents, NYC Health + Hospitals is a lifeline to quality health care, but it is a public health system struggling to get fully back on its feet after the stress of the pandemic,” DiNapoli said. “Hospitals and their staff were pushed to the brink during the pandemic. H+H lost hundreds of nurses, forcing them to hire temporary staff to manage demand due to the pandemic and its fallout, which increased salary costs and created training and other challenges.”

This report is an update to DiNapoli’s 2021 report, NYC Health + Hospitals Check-Up: The Impact of COVID-19. DiNapoli’s office routinely examines the finances and issues impacting the fiscal health of H+H.

The number of registered nurses (RNs) and licensed practical nurses at H+H facilities declined by 6% and 31%, respectively, from February 2020 to September 2022. As the pandemic persisted, RN staffing levels in H+H facilities declined at a greater rate than they did in the city overall and statewide. RN employment also declined in New York City and the rest of the state between 2019 and 2022 by 1.1% and 5.3%, respectively. Currently, H+H’s vacancy rate for nurses is 15%.

Hiring temporary staff to deal with the pandemic and its fallout on hospital staff is driving up hospital costs across New York City, including at H+H. It is estimated that in New York, contract labor costs across health care systems and hospitals have increased by more than 110% of pre-pandemic levels, with average temporary nurse salaries increasing from about $1,800 per week pre-pandemic to about $3,300 per week in March 2022.

New York City has historically provided financial support to H+H. It funds the non-federal share of supplemental Medicaid payments, among other costs, since H+H provides care to a large share of the city’s uninsured and Medicaid patients.

The city recently announced a new collective bargaining agreement with District Council 37 (DC 37) that it assumes will set a wage pattern for other unions, including for employees at H+H. A review of the city’s recently released budget update suggests collective bargaining costs at H+H are assumed to be fully annualized at $680 million, with nurses to make up about 29% of the total.

Related Reports 

NYC Health + Hospitals: Nurse Staffing Trends, May 2023

Issues Facing New York City's Agencies: New York City Health + Hospitals, February 2022

NYC Health + Hospitals Check-Up: The Impact of COVID-19, September 2021

---

Track state and local government spending at Open Book New York. Under State Comptroller DiNapoli’s open data initiative, search millions of state and local government financial records, track state contracts, and find commonly requested data.

Arbitrating disputes involving health insurance benefits for retired employees

Citing Granite Rock Co. v. Int'l Bhd. of Teamsters, 561 U.S. 287, the U.S. Circuit Court of Appeals, Second Circuit noted "It is well settled in both commercial and labor cases that whether parties have agreed to submit a particular dispute to arbitration is typically an issue for judicial determination" and "a court may order arbitration of a particular dispute only where the court is satisfied that the parties agreed to arbitrate that dispute." Further, said the court, "ordinary principles of contract law guide the inquiry into whether an arbitration agreement was validly formed and whether the parties consented to arbitrate a particular dispute."

That said, the Circuit Court opined that this case required it to decide whether "the grievance-and-arbitration provision of the parties' collective bargaining agreement" covers a dispute concerning the medical insurance benefits that, according to Local Union 97, International Brotherhood of Electrical Workers, AFL-CIO [Union], the Union and the employer, Niagara Mohawk Power Corporation, agreed to provide to certain retired employees, former members of the Union.

The Circuit Court concluded that the Union bargained both for health insurance benefits for retired employees and for a grievance procedure that included, where necessary, access to arbitration. Expressing no view regarding the merits of the Union's grievance as "that is a question for the arbitrator," the Circuit Court held that "it is clear that the parties intended to arbitrate this dispute" and affirmed the judgment of the federal district court granting the Union's motion to compel arbitration.

Click HERE to access the decision of the U.S. Circuit Court of Appeals, Second Circuit.

 

 

Employer's rejecting hearing officer's recommendation to approve employee's GML §207-c application for benefits held arbitrary and capricious under the circumstances

A Correction Officer [Plaintiff] discovered three laundry bags in the middle of a hallway on the housing unit floor. Believing the bags blocking the hallway was a safety concern to persons walking the hallway, Plaintiff attempted to move the bags close to the wall and  sustained a shoulder injury while attempting to move one of the bags. Plaintiff's Employer [Respondent] contended Plaintiff's injury did not occur as a result of the performance of duties and rejected Plaintiff's application for General Municipal Law §207-c disability benefits. Pursuant to a memorandum of agreement between, among others, Plaintiff's union and the Respondent, a hearing was held on the issue whether Petitioner's injury occurred as the result of the performance of duties.

The Hearing Officer found that the laundry bags in the hallway posed a safety hazard and that Plaintiff had a duty to remedy the situation immediately. Although the Hearing Officer recommended that Plaintiff receive GML §207-c disability benefits, Respondent issued a final determination rejecting the Hearing Officer's recommendation and denied Plaintiff's application for §207-c disability benefits. Plaintiff then commenced the instant proceeding before the Appellate Division. *

The Appellate Division explained that its review of this administrative determination was limited, and subject to the following considerations:

1. Was the determination affected by an error of law or was it arbitrary and capricious or an abuse of discretion and a determination "is arbitrary and capricious when it is taken without sound basis in reason or regard to the facts".

Passing these tests:

2. An agency's determination is entitled to great deference; and

3. A court must sustain the determination even if the court concludes that it would have reached a different result than the one reached by the agency." 

However, in this instance the Appellate Division, citing Matter of Casselman v Village of Lowville, 2 AD3d 1281, concluded that [Petitioner] established "... a direct causal relationship and thus demonstrated ... entitlement to benefits under General Municipal Law §207-c",

Accordingly, the Appellate Division held that the Respondent's decision to deny Plaintiff's application for §207-c benefits was arbitrary and capricious and unanimously annulled the Respondent's decision "on the law without costs" and granted Plaintiff's petition.

* The Appellate Division, citing Erie County Sheriff's Police Benevolent Assn., Inc., 159 AD3d at 1561-1562, consider the merits of Plaintiff's petition notwithstanding the fact the decision at issue was not made as a result of a hearing held, and at which evidence was taken pursuant to direction by law "in the interest of judicial economy."

Click HERE to access the Appellate Division's decision posted on the Internet.

 

The Continuing Violation Doctrine does not apply in situations involving different discrete events of alleged unlawful discrimination by different actors

New York State Supreme Court granted the New York City Department of Education's motion for summary judgment dismissing Plaintiff's claims alleging she has suffered unlawful discrimination because of her disability within the meaning of the New York State and New York City Human Rights Laws. The Appellate Division unanimously affirmed Supreme Court's judgment, without costs.

Plaintiff's claims, said the Appellate Division, were time-barred, as they arose from alleged conduct occurring more than one year before the commencement of this action, citing Campbell v New York City Dept. of Educ., 200 AD3d 488.

Although Plaintiff had contended that the acts of unlawful discrimination she had alleged were in the nature of a continuing violation and thus were not "time-barred", the Appellate Division opined that the Continuing Violation Doctrine did not apply here because Plaintiff's complaint did not allege facts comprising "a single continuing pattern of unlawful conduct" but, rather, alleged "discrete events, involving different actors." 

The U.S. Supreme Court addressed the continuing violation doctrine with respect to alleged acts unlawful discrimination in a workplace situation in National Railroad Passenger Corp. v. Morgan, 122 S. Ct. 206.   

In Morgan, the court, by a 5 to 4 vote, concluded that "a Title VII plaintiff raising claims of discrete discriminatory or retaliatory acts must file his charge within the appropriate time period — 180 or 300 days — set forth in 42 U. S. C. §2000e-5(e)(l). A charge alleging a hostile work environment claim, however, will not be time barred so long as all acts which constitute the claim are part of the same unlawful employment practice and at least one act falls within the time period. Neither holding, however, precludes a court from applying equitable doctrines that may toll or limit the time period."

Click HERE to access the Appellate Division's decision posted on the Internet.

A self-insured city fire department not entitled to reimbursement for certain workers' compensation benefits it had paid to the claimant firefighter

The Workers' Compensation Board [Board] found a city fire department [Employer] was not entitled to an offset or reduction of workers' compensation benefits in a manner that would reduce the workers' compensation benefits due a firefighter [Claimant]. 

Although the Employer had contended that as a result of then receiving both workers' compensation benefits and accidental disability retirement benefits the claimant was being unjustly enriched, the Board held that the accidental disability retirement benefit payments that the Employer was making under General Municipal Law §207-a (2) to Claimant did not constitute wages within the meaning of Workers' Compensation Law §25(4)(a) and, therefore, there was no double recovery or unjust enrichment by Claimant. Employer appealed the Board's determination.

The Appellate Division rejected Employer's argument that either Workers' Compensation Law §25(4)(a) or §30(2) gave Employer the right to a credit, reimbursement and, or, reduction of workers' compensation benefits it had paid to Claimant.

Citing Matter of Harzinski v Village of Endicott, 126 AD2d at 58, the Appellate Division opined that the benefit payments the Employer made to Claimant pursuant to General Municipal Law §207-a(2) do not constitute wages within the meaning of Workers' Compensation Law §25(4)(a) or §30(2) because Claimant was not rendering any services to the Employer while accidental disability retirement benefits were being paid to Claimant.

In this instance Claimant had been awarded, and was then receiving, accidental disability retirement benefits. In addition, the firefighter received benefits pursuant to General Municipal Law §207-a (2), which, in pertinent part, provides as follows:

"... such firefighter shall continue to receive from the municipality or fire district by which he or she is employed, until such time as he or she shall have attained the mandatory service retirement age applicable to him or her or shall have attained the age or performed the period of service specified by applicable law for the termination of his or her service, the difference between the amounts received under such allowance or pension and the amount of his or her regular salary or wages."

Click HERE to access the decision of the Appellate Division posted on the Internet.