The New York Legislature and Governor devoted significant attention during the 2021 legislative session to New York’s nursing homes, resulting in the passage of legislation that will significantly impact the oversight, regulation and operation of skilled nursing facilities in New York. As described in the article “COVID-19, Nursing Homes and the Legislative Response” by James Lytle, the COVID-19 pandemic has had a significant impact on nursing homes and nursing home residents in New York, resulting 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
As investigations and reports on New York’s response have been published, issues beyond the controversy of nursing home mortality data and the Governor’s March 25, 2020, policy precluding nursing homes from denying readmission or admission of individuals based on a confirmed or suspected diagnosis of COVID-19 have been publicly raised. The January 2021 report by New York State Attorney General Letitia James contained a number of findings that influenced the legislative response, including widespread noncompliance with infection control protocols, a correlation between Centers for Medicare & Medicaid Services (CMS) staffing ratings and COVID-19 fatality rates, and concerns with the CMS star ratings and performance of for-profit, privately owned nursing homes.2 While a number of these issues were addressed this session, it is anticipated that they will continue to be a focus of the legislature in the future.
Legislation Impacting Nursing Home Operations
1. Nursing Home Staffing Levels (A7119 Gunther/S6346 Rivera)
Effective as of January 1, 2022, this legislation will require that nursing homes provide at least 3.5 hours of nursing care per resident day, of which at least 2.2 hours must be provided by certified nurse aides (CNAs) and at least 1.1 hours by a registered nurse (RN) or licensed practical nurse (LPN). Facilities are required to meet this requirement on a daily basis. Starting in 2023, only CNAs who are listed in the nursing home nurse aide registry will be counted.
For enforcement of this requirement, the New York State Department of Health (DOH) is required to establish civil penalties for facilities out of compliance and to begin enforcement on April 1, 2022. DOH is expected to use the payroll-based journal (PBJ) data reported to CMS to determine compliance. It is anticipated that some of the hours reported for directors of nursing (DONs) and nurses with administrative duties, which are included for submission to the PBJ, will be excluded. In imposing penalties for violations, DOH is required to consider mitigating factors such as catastrophic events, frequency of noncompliance and the existence of acute regional labor shortages.
This bill has been sent to the Governor’s office for signature.
2. Nursing Home Direct Resident Care Spending (Ch. 57 of Laws of 2021)
In addition to the minimum staffing legislation, the enacted budget established a 5% profit cap and minimum direct care spending requirement on nursing homes for periods on and after January 1, 2022. Facilities excluded from these requirements include facilities that primarily care for medically fragile children, persons with HIV/AIDS, persons requiring behavioral intervention, persons requiring neurodegenerative services, CCRCs and other specialized populations deemed applicable by the commissioner.
The “direct care spending” provisions require every nursing home to spend a minimum of 70% of revenue on “direct resident care” and 40% of revenue on “resident-facing staffing”; the amount spent on resident-facing staffing shall be included as a part of amounts spent on direct resident care. Facilities that fail to meet the above thresholds must pay the DOH the difference between the minimum spending requirement and the actual amount of spending on resident-facing staff or direct care staff, respectively, with payments to be deposited in the nursing home quality pool. DOH is authorized to collect such payments through litigation or deductions from or offsets of rates.
The “profit cap” requires nursing homes to remit to DOH the amount of “excess revenue,” which is defined as the amount of total operating revenue that exceeds total operating and nonoperating expenses by more than 5%, calculated on an annual basis. A facility that exceeds the profit cap must make a payment to DOH, in a manner determined by regulations, by November 1 of the following year, with payments to be deposited in the nursing home quality pool. DOH is authorized to collect such payments through litigation or deductions or offsets of rates.
The commissioner is authorized to waive these requirements for nursing homes that demonstrate an unexpected or exceptional circumstance that prevents compliance. The commissioner is also authorized to exclude from revenues and expenses extraordinary revenues and capital expenses incurred due to a natural disaster or other circumstance determined by the commissioner.
These requirements are applicable to spending on and after January 1, 2022.
3. Requirements for Resident Transfers and Voluntary Discharge (Ch. 80 of the Laws of 2021)
This legislation establishes additional requirements for the transfer, discharge and voluntary discharge of residents from nursing homes, which mostly follows existing federal requirements. Specifically, the legislation prohibits the transfer or discharge of a resident unless it is necessary for the resident’s health, safety or welfare or necessary to preserve the health, safety or welfare of other residents; the facility discontinues operations; the resident has failed to pay; or the facility is unable to meet the needs of the resident, which is consistent with federal requirements.
Prior to initiating a transfer or discharge, facilities are required to use best efforts to secure appropriate placement. If a facility seeks to transfer or discharge a resident to the home of another individual, the facility is required to obtain written consent from both the resident and the individual and provide a comprehensive discharge plan to the individual. A chapter amendment (S.6204 Rivera/A.7018 Hevesi) is expected to be signed that would clarify that in the event a resident seeks a voluntary transfer or discharge, the facility must document in the resident’s medical record the reason the resident is seeking a transfer or discharge. If the resident declines to provide a reason, the facility must document that in the medical record.
Lastly, the legislation prohibits nursing homes from attempting to compel residents to agree to be discharged or retaliate against an individual who chooses to remain at a facility.
This law will take effect on June 17, 2021.
4. Antimicrobial Resistance Prevention and Education Act (S2191 Kavanagh/A5847 Woerner)
This legislation requires nursing homes (and hospitals) to establish and implement an antimicrobial stewardship and training program in accordance with federal and state requirements. Antibiotic stewardship programs can help clinicians improve clinical outcomes and minimize harm by improving antibiotic prescribing. The program is required to include an ongoing process to measure the impact of the program and include, at least annually, a review of antimicrobial utilization data with response plans for high or increasing utilization.
If signed by the Governor, this law would take effect 90 days after it is signed into law.
5. Nursing Home Infection Control Audits (S1783A Skoufis/A6057A Burke)
This legislation requires DOH to develop a program for auditing nursing homes on core competencies relating to infection control policies and procedures, and requires that audits commence on October 1, 2021, and be conducted on an annual basis.
The audit will include a review of a nursing home’s written infection control program, health screening program during a public health emergency, and staffing plan to limit the transmission of contagious or infectious diseases. Specific requirements included in the legislation will require facilities to designate for every shift a staff member who is responsible for the proper use of personal protective equipment by all staff; an employee responsible for conducting a daily assessment of staffing status and needs during an outbreak; and a staff member responsible for daily communications with staff, residents and resident families regarding the status of infections at the facility.
The legislation establishes a scoring structure that will determine whether a facility demonstrates compliance with the core competencies established in the audit tool. If a facility meets at least 85% of the criteria, the facility will be scored as “in adherence.” If a facility meets between 85% and 60% of the criteria, the facility will be scored as “in adherence but warrants re-inspection” and will be subject to a re-inspection prior to the next annual inspection. A facility that fails to meet 60% of the criteria will be scored as “not in adherence” and be subject to monthly audits until it meets at least 85% of the criteria. Facilities that fail to meet 60% will be subject to penalties, which may include civil monetary penalties or the revocation or suspension of a facility’s license under certain conditions.
If signed by the Governor, this law will take effect 90 days after it is signed into law.
6. Nursing Home Resident Bill of Rights and LTC Ombudsman Contact Information (S4377 May/A6222 Wallace)
This legislation requires DOH to make available to nursing homes the Nursing Home Resident’s Bill of Rights in the six most common non-English languages and requires facilities to publicly post these versions and make them available to residents upon request. The legislation also requires that nursing homes prominently post in each resident’s room the contact information for the state and regional offices of the Long-Term Care (LTC) Ombudsman Program and the contact information of the facility representative. Facilities must provide this same contact information to all residents and their families twice a year.
If signed by the Governor, the requirement for DOH to translate the Nursing Home Resident’s Bill of Rights would take effect immediately, and the other requirements would take effect 120 days after the bill is signed into law.
Legislation Increasing Nursing Home Oversight
1. Disclosure of Related Assets and Operations (Ch. 102 of the Laws of 2021)
Section 2 of Ch. 102 of the Laws of 2021 expands on the existing requirement that nursing home operators disclose common or familial ownership of any entity providing services to the operator or the facility to require that operators notify DOH at least 90 days prior to entering into any new common or familial ownership of any entity providing services to the operator or the facility. Operators are required to update their residency agreement to include any existing arrangements, as well as notify residents and the LTC ombudsman of any new arrangements. It also requires that operators provide at least 90 days’ notice to DOH prior to executing a contractual agreement with an entity to provide consulting services, operational services or staffing agency services at the facility.
Any new owner, operator or consulting company of a nursing home is now required to retain all employees of the facility for at least 60 days, except for the nursing home administrator, director of nursing and any other supervisors, and is prohibited from reducing the wages, benefits, or other terms and conditions of employment during the 60-day period, except for cause.
The legislation requires that nursing home residency agreements be updated to identify any existing common or familial ownership of any entity providing services to the operator or the facility.
This legislation takes effect on October 21, 2021.
2. Nursing Home Disclosure Requirements (S6767 Rivera/A7517 Gottfried)
This legislation requires nursing home operators to publicly disclose the following information on any website maintained by or for the facility that is publicly accessible:
- The rates charged by the facility for residency and services, detailed for each nongovernmental payer source; this information is required to be updated on an annual basis, no later than April 1 of each year;
- All individuals with an ownership interest in the operator of the facility, and to update this information within 30 days of any change or transaction affecting ownership;
- The name and business address of any landlord of the facility; and
- A summary of all contracts for goods and services for which the facility pays with any portion of Medicaid or Medicare funds, or any other agreement entered into by the facility, within 30 days of execution of the agreement or contract.
If signed by the Governor, this legislation takes effect on October 21, 2021.
3. Transparency of Violations (S3185 Skoufis/A5848 Wallace)
This legislation 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 complaints, citations, violations and penalties taken against the facility can be found. The disclosure must be made on a separate document in 12-point font.
If signed by the Governor, this requirement would take effect 60 days after it is signed into law.
4. Publication of Nursing Home Ratings (S553 Sanders/A2037 Dinowitz)
This legislation would require that the most recent overall 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. All nursing homes would be required to post the overall CMS rating for a facility on any website relating to the facility that is maintained by the owner or operator of the facility. In addition, facilities will be required to post the facility’s overall CMS rating in the facility so that it is visible to residents and the general public within the facility.
If signed by the Governor, this law would take effect 90 days after it is signed into law.
5. LTC Ombudsman Program Reform Act (S612-B May/A5436-B Clark)
This legislation contains significant reforms to the LTC Ombudsman Program, including requiring DOH to establish policies and procedures allowing for staff and volunteers of the program to report issues directly to DOH. These policies will include rules establishing standards for timely and regular communications to the program and staff regarding issues reported by staff and volunteers and to notify ombudsman staff and volunteers when inspections are being conducted at or complaints are received at their assigned facilities.
For nursing homes, this legislation requires that facilities update their pandemic preparedness plan to include a plan to facilitate resident access to ombudsman staff and volunteers, and to provide ombudsman staff and volunteers with access to the facility.
If signed by the Governor, this law would take effect immediately, with the changes to the LTC Ombudsman Program taking effect 90 days after the bill is signed.
6. Heightened CON Review for Ownership of Nursing Homes (Ch. 102 of the Laws of 2021)
This legislation enhances the certificate of need (CON) review process for nursing home establishment and change-of-ownership applications, including the consideration of past violations at other facilities by owners or related owners, and establishes public notice requirements related to CON applications under review.
The legislation requires DOH to provide notice of a nursing home CON application to the LTC ombudsman within 30 days of acknowledgment of the application, and the ombudsman is provided the opportunity to submit a recommendation on the application to DOH and the Public Health and Health Planning Council (PHHPC).
For change-of-ownership applications, the established operator is required to provide notice of the application to the residents of the nursing home and their representatives, and the staff of the nursing home, including union representatives, within 30 days of acknowledgment of the application. The established operator is also required to provide immediate notice when the application is scheduled for consideration by PHHPC or a committee of PHHPC.
The legislation amends the existing character and competence requirements for nursing home establishment applications to require each individual and entity of the applicant to specify every nursing home in which the individual or entity has held a controlling interest in the past seven years and the nature of that interest. PHHPC is precluded from approving an application unless it finds that each nursing home, including those located outside New York, in which an individual or entity held a controlling interest in the past seven years demonstrated a consistently high level of care. PHHPC is directed to establish regulations to determine whether a consistently high level of care has been provided, but requires that applicants provide an explanation for any facility that has a two-star rating or lower by CMS; where there have been state or federal violations that include a finding of immediate jeopardy, actual harm or repeat deficiencies; or that has been involuntarily terminated from the Medicare or Medicaid program in the prior five years.
This legislation takes effect on October 21, 2021.
Future of LTC in New York
In addition to the legislation identified above, the legislature created the Reimagining Long-Term Care Task Force (S598B May/A3922-A Cruz) to study the state of both home-based and facility-based LTC services in New York, and to make recommendations on potential models of improvement to LTC services for older New Yorkers that prioritize safety and affordability, and enhance the quality of life for those in need of LTC services. The task force will also study the challenges and issues generated by the COVID-19 pandemic, including infection control protocols and enforcement, staffing shortages and visitation bans. The task force is directed to report on the findings of its study with respect to the COVID-19 pandemic by December 1, 2021, and report the findings of its full study by May 1, 2022.
1 New York State Department of Health, Nursing Home COVID Related Deaths Statewide, https://www.health.ny.gov/statistics/diseases/covid-19/fatalities_nh.pdf (as of June 7, 2021).
2 New York State Office of the Attorney General Letitia James, “Nursing Home Response to COVID-19 Pandemic,” January 2021.