COVID-19, Nursing Homes and the Legislative Response

In response to concerns over the impact of COVID-19 on the residents of nursing homes in New York, a substantial amount of attention and effort will be devoted during the course of the 2021 Legislative Session to issues relating to the state’s current approach to the oversight, regulation and reimbursement of skilled nursing facilities and adult care facilities.

Background: The impact of COVID-19 on nursing homes should not have been surprising. The very first cases that arose in the U.S. were identified in a skilled nursing facility in the state of Washington, and the pandemic has, thus far, resulted in the deaths of approximately 15,000 New Yorkers who had been receiving care in nursing homes and adult care facilities throughout the state.¹ Part of the concern over these issues was the lack of clarity, almost from the outset of the pandemic, on what the death toll actually was within these long-term care facilities.²

As COVID-19 began its fatal rampage, nursing home administrators and staff complained to state officials over the lack of personal protective equipment (PPE) and other resources to combat the pandemic, but were, at least initially, told that assembling PPE was their responsibility. In late April, Governor Andrew Cuomo asked the Department of Health (DOH) and the attorney general to investigate whether nursing homes “were following the rules” as they confronted the spread of COVID-19.³

Nine months later, in late January 2021, the New York State Attorney General Letitia James released her report on the investigation. Among other findings, the attorney general’s preliminary analysis found that the DOH had undercounted deaths of nursing home residents due to COVID-19 by about 50%, largely because the state (contrary to other states’ practices) did not count the deaths of those residents who were transferred to hospitals immediately prior to their deaths.⁴ Shortly after the report was released, a court ruling was issued that ordered the DOH to release the nursing home fatality data that it had declined to release since last summer.⁵

The attorney general’s report went far beyond merely reigniting the controversy or confusion over the nursing home mortality data. Among other things, the report found:

• Widespread noncompliance with infection control protocols;
• An apparent relationship between lower Centers for Medicare & Medicaid Services (CMS) staffing ratings and a higher death rate, leading the attorney general to recommend enactment of mandated staffing ratios;
• Unavailability of PPE and testing during the early days of the pandemic, which put residents and staff at increased risk; and
• Failure by nursing homes to comply with requirements relating to communication with family members, which caused unnecessary distress.⁶

Moreover, the report responded to another early policy controversy. A March 25 policy directive precluded nursing homes from denying readmission or admission of individuals based on a confirmed or suspected diagnosis of COVID-19—a policy that some feared might exacerbate the risks to nursing home patients. The policy was subsequently rescinded by the DOH on May 10.

State officials strongly rejected the suggestion that the mandate on COVID-19 admissions had any adverse impact on nursing homes in a report that the Cuomo administration issued last July, which attributed the spread of COVID-19 in nursing homes to community spread of the disease and contrasted New York’s nursing home death numbers to the experience of other states. Recent reports have suggested that the July report had been significantly rewritten and edited by the Governor’s top aides, allegedly over the objections of DOH officials.⁷ The attorney general’s report, for its part, did not rule out the possibility that the March 25 admission mandate policy “may have contributed to increased risk of nursing home resident infection, and subsequent fatalities.”⁸

Governor’s Legislative Proposals: To address these issues and their considerable political fallout, the Governor advanced a series of proposals as part of his 30-day budget amendments, contained within part GG of the Health and Mental Hygiene Article VII legislation. Those legislative initiatives include proposals that would:

• Increase fines and civil penalties for violations of the Public Health Law from $2,000 to $10,000 for an initial violation, up to $15,000 for subsequent violations and up to $25,000 if the violation results in serious physical harm to patients. In addition, the provisions authorize the use of amounts collected pursuant to these penalty provisions to improve quality of care through enhanced surveillance and inspection activities and other quality improvement strategies.
• Impose new reporting requirements for residential health care facilities to include information relating to “staffing, the source of staffing, and staff skill mix” (but without mandating staffing ratios).
• Require facilities to contract with quality improvement organizations if they receive more than one statement of deficiencies relating to infection control practices and policies.
• Establish new “excess revenue” requirements on residential health care facilities that would require a minimum of 70% of revenue be spent on direct resident care and at least 40% be devoted to “resident-facing staffing” and would require facilities not meeting these amounts to repay the state any excess amounts.
• Impose executive and managerial salary caps, subject to regulation by the DOH, with a cap on compensation of $250,000, and limit overall expenditure on executive or managerial salaries to no more than 15%.
• Require posting of key information relating to nursing homes, including the maximum rates for facilities and services, the owners of the facility, the facility’s landlord, and any contracts for the provision of goods or services for the facility, on the facility’s website.
• Increase penalties for adult care facilities under the Social Services Law, similar to those noted above for DOH-regulated facilities, and change rectification opportunities for facilities otherwise liable for civil penalties for violations.
• Allow appointment of a temporary operator for adult care facilities without requiring that conditions “seriously” endanger the life, health or safety of occupants.
• Authorize the appointment of emergency receivers for residential health care facilities “upon a determination that public health or safety is in imminent danger or that there exists any condition or practice or a continuing pattern of conditions or practices that poses imminent danger to the health or safety of any patient or resident of such facilities.” 

Given the controversy over the administration’s handling of these issues, it is not, at this point, clear that the Governor’s nursing home package will be ultimately accepted by the Legislature—where both houses have their own ideas of what might be done to address the issue—but the Governor has indicated that he will not agree to a state budget that does not contain these new provisions.

Legislative Response: Both houses of the Legislature have already introduced and even passed a number of proposals addressing nursing homes and adult care facilities, prodded by the current controversy.

The following bills have already passed both houses but have not yet been delivered to the Governor:

• Publication of Nursing Home Ratings (S.553 Sanders/A.2037 Dinowitz) would require that the most recent CMS rating of every nursing home be prominently displayed on the home page of the DOH’s website and at each nursing home facility’s website.
• Reimagining Long-Term Care Task Force (S.598B May/A.3922-A Cruz) would establish a task force to study the state of both home-based and facility-based long-term care services in the state, and to make recommendations on potential models of improvement to long-term care services for older New Yorkers.
• Allowing Compassionate Care-Giving Visitors (S.614B May/A.1052B Bronson) would create a standardized program to allow personal care and compassionate care visitation by family members and legal guardians that satisfies certain requirements.
• Quality Assurance Committees (S.1784A Skoufis/A.5846 Kim) would require adult care facilities to create quality assurance committees that would be integrated into their quality assurance plans.
• Requirements for Transfer, Discharge and Voluntary Discharge (S.3058 Rivera/A.3919 Hevesi) would establish requirements for the transfer, discharge and voluntary discharge of residents from residential health care facilities, including provisions that limit discharges to certain circumstances and additional requirements relating to appropriate transfers/discharges.
• Transparency of Violations (S.3185 Skoufis/A.5848 Wallace) would require residential health care facilities, as part of the admissions process, to disclose to potential residents and their family members the website where a list of violations and other actions taken against the facility can be found. 

The following bills remain pending but have not yet passed both houses:

• Repeal of Emergency or Disaster Treatment Protection Act (A.3397 Kim/S.5177 Biaggi), would include provisions that had provided some immunity from liability for actions taken during the COVID-19 pandemic emergency.
• Patient Care Ratio Reporting (S.4336A Rivera) would require nursing homes to report on direct patient care expenditures and a host of other categories of expenses, and mandate that at least 70% of aggregate revenue be devoted to direct care of residents.
• Long-Term Care Ombudsman Program Reform Act (S.612A May and A5436-A Clark (a similar but not identical bill)) would expand the current program to be more accessible and available to seniors and their families while promoting the volunteer advocate program, and would improve interactions between DOH and the Ombudsman program regarding complaints.
• Infection Inspection Audit (S.1783 Skoufis/A.1999A Gottfried) would direct the DOH to establish and implement an infection control inspection audit and checklist for residential health care facilities.
• Ban on New For-Profit Nursing Homes (S.5269 Rivera/A5842 Gottfried) would preclude the certificate of need (CON) approval to establish, incorporate or approve the construction of any nursing home that is owned or operated, in whole or in part, by a for-profit entity, while allowing the approval of projects relating to existing for-profit entities that do not result in increased resident capacity.
• Heightened CON Review for Ownership of Nursing Homes (S.4893 Rivera) would enhance review of ownership of nursing homes through the CON process, including consideration of past violations at other facilities by owners, and would mandate more public notice within the CON process.
• Increased Penalties for Public Health Law Violations (A.232-C Gottfried) would increase monetary penalties to $20,000 per violation for nursing homes and hospitals, with proceeds funding a nursing home quality improvement demonstration program.
• Reporting of COVID-19, Communicable Diseases and Deaths (S.3061A Rivera) would require the DOH to record COVID-19 deaths of nursing home residents who died in hospitals to be recorded as nursing home deaths and would require the DOH to update and share data it receives with hospitals and nursing homes on communicable diseases.
• Requiring Guidance to be Provided to Residential Health Care Facilities During Communicable Disease Outbreaks (A.3131A Kim) would require such guidance, which would include visitation restrictions, staff education and training, staff screening and reporting on personal protective equipment inventory.
• Requiring Negative COVID-19 Test Results for Readmission to Nursing Homes (A750 Rosenthal) would require such a test, whether or not the individual’s COVID-19 symptoms have subsided.
• Inspection Results for Residential Health Care Facilities (A 1010-A Bronson) would require the DOH to make inspection results publicly available during the COVID-19 emergency.
• Nursing Home Resident COVID-19 Testing (S.1177 May/A.2218 Jacobson) would require such testing per regulations to be issued by the health commissioner.
• Mandatory Reporting of Abuse, Mistreatment or Neglect (A2420 Aubry) would require such reporting for residents of assisted living and adult care facilities.
• Notice of Closure of Nursing Homes (A2432 Niou/S. 2847 Kavanagh) would mandate such notice 90 days pre-closure.
• Allows Nursing Home Residents to Designate “Essential Persons” (A.3113 Kim) would allow such persons access to the nursing home both during and after the COVID-19 emergency to serve as advocates for the patients.
• Temporary State Commission on COVID-19 Pandemic Response (S.2067 Tedisco/A.3162 Kim) would establish a commission to investigate the effects of the pandemic response on deaths in nursing homes.
• Electronic Monitoring Device Authorization (A3708 Gunther) would allow nursing home patients to install video or audio recording devices in their rooms under certain circumstances.
• Nursing Home Patient Trust Funds (A3771 Dickens) would require such trust funds to be subject to quarterly audits, with reports of such audits provided to the health commissioner.
• Strengthened Oversight of Nursing Homes in CON Process (A5684A Gottfried) would require residential health care facility providers’ applications for changes of ownership to be reviewed and approved based on quality metrics, and mandate notification to the DOH of certain contractual agreements relating to the operations of the facility.
• Resident Care Spending (A5685 Gottfried) would require such spending, defined to include direct nursing care, support and program services, laundry, food service, and other services and programs, to comprise at least 70% of nursing home spending in 2022, increasing to 80% in 2023 and 90% thereafter.
• Infection Control Updates and Separate Accommodations for Residents of Residential Health Care Facilities (A6052 Lunsford/S1785-A Skoufis) would require such updates and accommodations as part of facilities’ pandemic emergency planning.
• Antimicrobial Resistance Prevention and Education Act (S.2191 Kavanagh/A.5847 Woerner) would require every hospital and nursing home to implement an antimicrobial stewardship program in accordance with federal and state requirements.
• Regulation of Use of Psychotropic Medications in Nursing Homes and Adult Care Facilities (A5841 Gottfried) would set up regulations including additional documentation and informed consent requirements.
• Health Emergency Response Data System (HERDS) (A.244 Gottfried) would establish a system to collect information relating to public health emergencies, which would be made available to governmental entities, health providers and the public, subject to protections of confidential, individually identifiable information.

Beyond the bills noted above that more specifically relate to the nursing home/long-term care controversy, legislation (S.5357 Stewart-Cousins/A.5967 Heastie) has been passed by both houses and already signed by the Governor (Chapter 71 of the Laws of 2021) that will modify the Governor’s emergency authority during the pandemic by allowing existing directives to remain in place for 30 days, subject to a detailed certification of their importance to addressing the emergency; permitting the extension or modification of directives subject to certain notice requirements and an explanation for the need for the extension/modification; requiring the posting of these directives on a website in an accessible, searchable format; and authorizing the Legislature to terminate any executive orders issued under these provisions and to terminate the state disaster emergency by concurrent resolution.

_{¹ “NY officials removed fuller tally of nursing home deaths,” Associated Press, March 6, 2021, https://apnews.com/article/reports-ny-officials-altered-count-nursing-homes-death-58b0f62d0f88328e911d0d5c65bbf7fe.}

_{² Goodman, J., and Hakim, D. “Cuomo Aides Rewrote Nursing Home Report to Hide Higher Death Toll,” New York Times, March 7, 2021.}

_{³ Santiago, A. “NY launches probe into nursing homes,” City & State, April 24, 2020,
 https://www.cityandstateny.com/articles/politics/news-politics/ny-launches-probe-nursing-homes.html.}

_{⁴ New York State Office of the Attorney General Letitia James, “Nursing Home Response to COVID-19 Pandemic,” January 2021.}

_{⁵ Empire Center for Public Policy v. New York State Department of Health, Index No. 906023-20 (Albany Co. Supreme Court, February 3, 2021), Justice Kimberly O’Connor.}

_{⁶ “Nursing Home Response to COVID-19 Pandemic,” supra at pp. 48-51.}

_{⁷ See “Cuomo Aides Rewrote Nursing Home Report to Hide Higher Death Toll,” supra.}

_{⁸ “Nursing Home Response to COVID-19 Pandemic,” supra at p. 37.}