Senate advances nursing home reform

Gov. Andrew Cuomo speaks during a COVID-19 briefing Monday. State senators voted to pass 11 pieces of legislation to reform oversight and care at nursing homes as outrage grows over state COVID policies and reporting of virus deaths in nursing homes. Courtesy of Gov. Andrew Cuomo's Office

ALBANY — State senators voted to pass 11 pieces of legislation Monday as part of a package to reform oversight and care at nursing homes in the wake of outrage over state COVID-19 policies and publishing public health data from congregate facilities.

Gwen Alleva, administrative assistant at the Pines Nursing and Rehabilitation Center in Catskill, said the third round of vaccines were given to patients and no new positive cases have been found.

The Pines is submitting a revised visitation policy to the state and in-person visitation could resume either March 8 or March 15, depending on state approval, Alleva said Tuesday.

The Grand Rehabilitation and Nursing at Barnwell in Valatie and The Firemen’s Home in Hudson declined to comment on the proposed nursing home reform.

Legislators moved bills to become law that would require all nursing homes to spend at least 70% of a facility’s revenue on direct patient care, for each facility to disclose a list of violations and actions taken at the facility to potential residents and family, to prominently display its most recent federal rating on-site and online, bolstering the state’s ombudsman program for seniors and families to easily access care advocates and to create a standardized program to allow personal- or compassionate-care visitors at nursing homes, among others.

“The county doesn’t operate any facility so it doesn’t affect us,” Greene County Legislature Chairman Patrick Linger, R-New Baltimore, said Tuesday. “It affects how those private facilities operate. I don’t know how far off any of them are from the guidance from the bill that was passed.

“I wouldn’t know what the changes are going to be because they’re not run by us.”

In terms of the bill that will require the state Department of Health to include nursing home residents that die from COVID in a hospital in the nursing home deaths total, Linger said this information is already reported but in a different way.

“This is one of the political areas that the governor can say what he wanted to say about reporting,” Linger said. “The HERDS (Health Electronic Response Data System) data reported by nursing homes had the data to begin with. I’m not sure why it needs to be legislated when HERDS data is collected every day of the week. It may not be reported in the place they want it to be reported, but it is reported through the HERDS.”

For some reason, the HERDS data was not included in the Department of Health nursing home death totals, Linger said.

“It’s pretty obvious there was some reworking of numbers somewhere, but I don’t think that nursing homes were the ones that were improperly reporting it,” he said. “They were in a nursing home, it was still their patient who passed and they reported it as such, whether the state reported it as a nursing home death or not is on them.”

Columbia County Department of Health Director Jack Mabb said there should be more transparency with nursing homes.

Mabb said he testified last year about the need for greater accountability in nursing homes.

“I’ve been hearing almost daily from districts across the state,” said Aging Committee Chair Sen. Rachel May on the Senate floor Monday. “People are dying of isolation, they’re dying because they are depressed, because they’re refusing to eat. They’re dying because they have some underlying conditions ... staff are so overworked. They’re dying because they have cognitive decline that is rapidly accelerating as a result of their isolation.”

The 11 measures were each delivered to the Assembly with most bills passing unanimously, or with three or fewer Republican lawmakers voting no.

Sen. Edward Rath III, R-Williamsville, pressed Sen. Gusatvo Rivera, D-Bronx; about the measure intended for the state Health Department to require all nursing homes to spend at least 70% of a facility’s revenue on direct patient care.

More than 400 of the state’s 613 nursing homes operate as for-profit facilities. The 70% requirement does not include capital expenses.

“I have some serious concerns with this bill. The circumstances surrounding how we can vote on this bill in its current form, to me, looks like another Albany insider deal,” Rath said. “If it looks like a duck, if it walks like a duck, it’s a duck.

“Our seniors deserve more.”

The law allows the Health Department to adjust a facility’s patient care ratio based on its reported financial and performance information.

Legislators decided to require 70% of a facility’s revenue to be spent on residential care after conversations with stakeholders, Rivera said, including nursing home proprieters, 1199 SEIU United Healthcare Workers union, patient advocates and others.

“This bill relates to a sheer concern about how much money facilities actually spend on patient care,” Rivera said. “We know there are bad actors who use the non-clarity in the law to make money on the backs of individuals you should be taking care of.”

The bill would base the 70% revenue threshold on what a facility makes and would not be affected by staff shortages or changes in the number of residents.

“There is an obligation to folks who are providers of care to provide care,” he added. “...We’re trying to take away from the ability to take advantage of the most vulnerable.”

The model is based on the state’s Medical Loss Ratio standard for commercial for-profit insurers.

The bill would eliminate the ability of adult-care facility owners who have stakes in other businesses from taking money intended for patient care and spend it on other endeavors, Rivera said.

The measure passed the Senate 47-16.

Cuomo included several of the measures, such as the bill to mandate a direct patient care ratio, in his 30-day amendment to the 2021-22 budget released late Thursday.

The governor demanded nursing home reforms in the state budget during a press conference Friday and voiced support for salary caps for facility managers.

“We should regulate of the funding that we give these nursing homes,” Cuomo said. “You can’t say to a nursing home, either you can buy new beds or you make more money — either you can hire more staff and help people or you make more money. No. Here’s how much money you can make, everything else has to go into patient care.

“I will not sign the budget without this nursing home reform plan. Period.”

Rivera thanked Cuomo for supporting the legislation, but said action needs to go farther than the budget proposal.

“What he has in his proposal are watered down versions of the legislation,” the senator said.

Bill sponsors consulted with Cuomo’s staff, but Rivera added he and his staff did not speak with the governor.

Rivera also sponsored bill S3058 to create requirements for the transfer, discharge and voluntary discharge of congregate care residents; S4893 to require more review of ownership of nursing homes through the certificate of need process and the Department of Health Death Records Act, or S3061A, to mandate the Health Department record COVID-19 deaths of nursing home residents who died in hospitals to be recorded as a congregate care facility fatality.

The measure requires the department to publicly update and share the data, and comes on the heels of a seven-month battle between Cuomo’s administration, lawmakers, families and advocates to release the state’s total COVID-19 death toll in nursing homes.

More than 15,000 New York congregate care residents died due to the novel coronavirus since last March. The state reported nearly 9,000 deaths until a court order forced Cuomo and state executives to publish the total death count, including presumed fatalities.

Reports earlier this month revealed a top Cuomo aide said the administration “froze” about releasing the total COVID nursing home death data in fear of political retaliation under President Donald Trump.

Rivera said Monday’s nursing home reform package could have been achieved more quickly with cooperation from the executive.

“It is unfortunate some folks in this building feel it is necessary to stall this kind of information,” Rivera said Friday. “For us to make decisions about how we will shape policy, it is important to have direct information.”

Sen. May sponsored three of the bills in Monday’s nursing home reform to create a Reimagining Long-Term Care Task Force to study and make recommendations for the state’s home- and facility-based care services (S598B), expanding the Long-Term Care Ombudsman Program with more residential advocates and improving communication with the Health Department about care complaints (S612A); and a program to allow personal care at nursing homes statewide (S614B).

“This is our moment to rethink long-term care in New York state,” May said. “The crisis in the workforce and in the quality of life toward our seniors predates the pandemic, but now, we have a moment when people are paying attention and maybe we can actually make real change.”

Other legislation in the package included S1783 for the Health Department to perform an infection control inspection audit and checklist for residential care facilities, and S1784A to require adult care facilities include “quality assurance committees” in their quality assurance plans. The bills were sponsored by Sen. James Skoufis, D-Newburgh, who chairs the Investigations and Government Operations Committee.

“The tragic situation in our nursing homes remains a heartbreaking reminder of the toll this pandemic has taken and has made it clear that real reforms are needed,” Senate Majority Leader Andrea Stewart-Cousins said. “The Senate Majority is taking action to deliver meaningful results by increasing transparency and raising the standard of care provided at these facilities. I commend the bill sponsors for their work, and I am proud that we are passing these reforms.”

The Legislature will present additional nursing home reform measures in the coming weeks and months, Rivera said.

“We have very much more to do,” he added. “We know how serious this is. We need to change policy to protect the most fragile New Yorkers.”

The Senate Majority held joint legislative hearings on Aug. 3 and 10 on the COVID-19 pandemic’s impact on residential health care facilities. A joint legislative hearing on the 2021-22 budget for health and Medicaid is scheduled to begin Thursday morning.

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