ALBANY — Assembly lawmakers were expected to pass legislation Thursday to reform the oversight and transparency, quality improvements and protection from liability in state nursing homes, and continued debates about measures intended to curb abuse in for-profit facilities.
Legislators largely agreed on a package of 10 pieces of legislation passed Wednesday and Thursday, including a measure to repeal Article 30-D of the state’s Public Health Law — also known as the Emergency or Disaster Treatment Protection Act — that protects health care facilities and professionals from liability resulting from treating COVID-19 patients.
The bill was delivered to the Senate Health Committee on Thursday.
“The COVID-19 pandemic has exposed and exacerbated so many of the issues and challenges that have long existed in our state, especially in our nursing homes,” Assembly Speaker Carl Heastie, D-Bronx, said in a statement. “This legislative package will go a long way to increase the safety and protect the wellbeing of our most vulnerable New Yorkers. We owe it to our nursing home residents and their families to do better.”
Members of the Assembly clashed over measures to limit for-profit congregate care centers, including one that would prohibit granting of new licenses for for-profit nursing homes or to approve expanding the capacity of existing facilities.
Republicans raised concerns on the floor Thursday that the measure would punish nursing homes that follow state regulations and provide quality resident care.
Assemblyman Brian Manktelow, R-Lyons, asserted for-profit nursing homes differ in upstate communities versus downstate.
The bill sponsor, Assemblyman Richard Gottfried, D-Manhattan, pressed his colleague about how he knows a private congregate care facility runs safely and efficiently.
“What you do know for sure is a significant chunk of their revenue goes to profit and not to patient services,” Gottfried said. “That’s the essence of a for-profit facility ... If not, why wouldn’t they operate as a non-for-profit entity and not be paying taxes?
“For-profit entities are legally driven primarily by model to make a profit,” the assemblyman said. “In almost all areas of our economy, that drive serves us pretty well. Health care, I would say, is not one of them.”
More than 400 of the state’s 613 nursing homes operate as for-profit facilities.
Over the last decade, New York’s for-profit nursing homes have grown to represent two-thirds of the market — up from one-third, Gottfried said.
Manktelow expressed concern for not allowing strong-performing for-profit facilities to expand their business, that they would leave the state, further hurting tax revenue — especially in upstate communities.
National data shows that for-profit nursing homes do worse on staffing, infection control and other quality indicators, according to a statement from the Assembly Majority Conference on Thursday.
The bill’s counterpart in the Senate was referred to the chamber’s Health Committee on Monday.
The state’s nursing home reform comes on the heels of a seven-month controversy surrounding the state’s COVID-19 deaths in congregate facilities.
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 Gov. Andrew Cuomo and state executives to publish the total death count, including presumed fatalities.
The state released the data Feb. 10 to the Empire Center, a right-leaning think tank, following a Feb. 3 court order.
The seven state-owned nursing homes, five of which are dedicated to veterans, had the highest COVID mortality rate of any ownership sub-category. Empire Center senior fellow Bill Hammond detailed the findings in a press conference Thursday morning.
The for-profit mortality rate of upstate nursing homes was about 12.4% compared to 10.4% in nonprofits and 4.8% in government-owned facilities, according to the report. The disparity is largely because for-profit facilities are concentrated downstate, or in parts of New York hit hardest by the pandemic, according to the Empire Center.
But upstate for-profit homes accepted a “disproportionate share” of COVID-positive admissions under the state Health Department’s March 25 guidance that called for virus-positive patients to return to their facilities, which may have contributed to that disparity, according to a statement from the Empire Center.
Downstate for-profit nursing homes had a slightly lower mortality rate compared to nonprofit facilities.
“The fact is that these homes — all five-star facilities — were in the communities that were hit hard and hit first, and at a time when states were left to fend for themselves,” according to a statement Thursday from Health Department spokesman Gary Holmes. “Quality of care for these veterans has and remains our top priority and we’re encouraged by resident vaccination numbers that outpace the statewide averages in other facilities and declining community infection rates that will help keep the virus out of these facilities.”
The Assembly passed other nursing home reform Wednesday and Thursday that will require each facility to disclose a list of violations and actions taken at the facility to potential residents and family, bolstering the state’s ombudsman program for seniors and families to easily access care advocates, among others.
“The COVID-19 pandemic has shined a light on the desperate need for these reforms, and they are long overdue for our nursing home residents and their families,” said Assemblyman Ron Kim, D-Queens, who has been a leading advocate of congregate care reform in the wake of the pandemic. “These bills will help ensure a higher standard of care in our nursing homes, as well as increase transparency and accountability for bad actors who continue to put profits over people.”
A.244-A would codify the Health Emergency Response Data System — a statewide electronic web based data collection system linked to health care facilities across the state — under the Health Department, and require information collected under the system be published on the department’s website.
The Assembly passed other measures that passed the Senate on Feb. 22, including A.03922A to create a Reimagining Long-Term Care Task Force to study and make recommendations for the state’s home- and facility-based care services, A.3919 to create requirements for the transfer, discharge and voluntary discharge of congregate care residents and A.1052-B to create a standardized program to allow personal or compassionate care visitors at nursing homes.
The task force is required to produce a report related to COVID-19 issues by Dec. 1 and a full study by May 1, 2022.
“During the Assembly’s nursing home hearings last year, we heard from many families said that DOH restriction effectively banned visitation in many facilities and led to a decline in the physical and mental health of their loved ones,” said bill sponsor Assemblyman Harry Bronson, D-Rochester. “This bill addresses that issue through a safeguarded process to allow family members and caregivers to once again visit these residents. The bill will also expand the definition of ‘compassionate care visitation’ from strictly end-of-life situations to other cases where a decline in physical, mental or emotional wellbeing requires needed attention from family, while maintaining the health and safety of all the residents.”
Members of the Assembly passed A05846 on Wednesday to require adult care facilities to include infection control in their biannual plans, and A05847 on Thursday to prioritize nursing home sanitation efforts and create an antimicrobial stewardship program and training on antimicrobial resistance and control.
The bill was referred to the Senate Health Committee.
Assembly Minority Leader William Barclay said the state has learned many tragic lessons throughout the COVID pandemic to date.
“The crisis brought to light the need to provide immediate assistance, protections and reforms in nursing homes and elder care facilities,” Barclay said Thursday. “Despite today’s actions in the Assembly, there remains a long way to go. Today’s package of bills represents a starting point rather than a complete solution.”
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 Feb. 18.
“The governor proposed a series of reforms earlier and said he wouldn’t sign the budget without them,” Cuomo’s senior adviser Rich Azzopardi said in a statement Thursday. “To the extent others have proposals we will review them.”
Cuomo has recently demanded nursing home reforms be included in the 2021-22 state budget and voiced support for salary caps for facility managers after the state’s release of COVID-19 data in congregate facilities came to a head last month.
“We should regulate the funding that we give these nursing homes,” Cuomo said during a press conference Feb. 19. “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.”