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New York Senate advances nursing home reform

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

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; and more.

“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 … 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 in the negative.

Sen. Edward Rath III, R-Williamsville, pressed Sen. Gustavo 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.”

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 proprietors, 1199SEIU 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 spending it on other endeavors, Rivera said.

The measure passed the Senate, 47-16.

Gov. Andrew 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 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,” he added. “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 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 Health Department 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 former 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 state 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 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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