A series of bills taking aim at nursing home operators that proponents say will improve care and increase transparency is moving through both chambers of the New York State Legislature.
Gov. Andrew Cuomo — under fire first for a directive issued last March requiring nursing homes to admit or readmit COVID-positive patients discharged from hospitals and then for excluding from public nursing home fatality reports the deaths of long-term care residents who died after being transferred to hospitals — announced last month he would include “sweeping nursing home reform legislation” in the 2021-2022 budget.
A statewide organization of long-term care owners and operators says the nursing home reform package misses the mark. While many bills have been introduced in the name of reform, not one “truly improves quality outcomes or addresses the two most important issues facing nursing homes” in New York: a “long-term care workforce staffing crisis and the state’s 12-plus years of slashing over $2 billion in Medicaid funding to nursing homes,” according to the NYS Health Facilities Association.
“Nursing homes throughout New York went into the pandemic struggling to recruit and retain workers. Then providers lost more staff due to illness and workers staying home to care for their children when schools were closed,” NYS Health Facilities Association president and CEO Stephen Hanse said.
Workforce shortages are well-documented and state lawmakers are well aware of the crisis, Hanse said.
Medicaid cuts made by the state over the past dozen years, including almost $100 million in cuts during the pandemic, has created a daily shortfall of $55 per resident on Medicaid — and nearly 80% of resident care is paid for by Medicaid, Hanse said.
“Failing to address these two issues is a failure by the State to implement true and meaningful nursing home reform,” Hanse said.
Reform measures pending include bills to: establish a task force to study and report on issues such as staffing shortages; require operators to spend at least 70% of their total operating revenue on direct resident care; make public all inspections conducted on long-term care facilities; increase monetary penalties for public health law violations; and to repeal a law enacted last March that shields health care facilities and health care professionals from all civil or criminal liability for any act or omission in the course of providing health care services during the COVID-19 emergency.
The governor has also called for a cap on compensation for nursing home managers and executives as well as an overall limit on the proportion of management salaries to a facility’s operating budget.
The legislature has taken up the measures, some have been passed by one chamber, others by both. Some bills in the reform package have had broad bipartisan support, while votes on others have broken along party lines.
Assemblyman Fred Thiele (I-Sag Harbor) said government and industry must take the lessons learned during the COVID crisis to better protect at-risk populations.
“We owe it to nursing home and adult care facility residents and staff, and their families and caregivers, to improve safety standards and promote accountability,” Thiele said. “I was proud to vote in favor of each of the important measures included in the nursing home reform package.”
In January, NYS Attorney General Letitia James issued a report after her investigation into the impacts of COVID-19 on nursing homes. The report criticized the Cuomo administration’s handling of reporting on nursing home resident fatalities. The attorney general said the administration’s reporting methods, which did not include long-term care facility residents who died after being transferred to hospitals, resulted in underreporting the death toll in nursing homes by as much as 50%.
The attorney general said a March 25 state directive requiring nursing homes to admit COVID-positive patients discharged from hospitals and prohibiting the facilities from testing those new admissions for COVID-19 “may have led to increased risk of harm to residents.”
The attorney general also found lack of compliance with infection control protocols at some facilities put residents at increased risk during the pandemic. The AG investigation also found staffing shortages, lack of sufficient PPE and scarce or unavailable COVID-19 testing for residents and staff also put residents at increased risk of harm. The report said the broad immunity law enacted last year may have provided incentives for some facility operators to make decisions based on financial concerns.
After the AG’s report was released, the state amended its public data to include at least some of the residents who died in hospitals, increasing the number of fatalities it reported. The state amended its public data again after a court ordered the health department to provide data sought by a watchdog group through a Freedom of Information Law request that the state delayed and then fought in court. Overall the reported death toll increased from just over 6,600 to more than 15,000.
The governor and state Health Commissioner Howard Zucker, who issued the controversial March 25, 2020 directive, have adamantly defended it, arguing that it did not increase infections and deaths in long-term care facilities.
Last month, the governor came under fire again after a top aide admitted to Democratic lawmakers that the administration withheld fatality data from the legislature. The assembly is now conducting an impeachment inquiry into these issues — as well as recent sexual harassment allegations against Cuomo.
A former administrator at a Southampton nursing home said in an interview he believes the state is seeking to deflect responsibility for its own policies and actions before and during the crisis, which he said failed to support long-term care facilities and, with the March 25 and other directives, even undermined the facilities’ ability to care for their residents. Vince Liaguno, who served as administrator at the Hamptons Center for Rehabilitation and Nursing for 11 years, said regulators are looking to scapegoat the facilities. See separate story.
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