Latest Status of Proposed New York Nursing Home Reform Legislation
As you are no doubt aware, the New York State Governor, the State Senate and the State Assembly have each recently introduced numerous bills aimed at reforming the New York nursing home industry, some with the potential to have drastic effect on the viability of the industry’s future. As we continue to monitor the status of the various proposals and we develop and evaluate potential legal challenges (depending on the passage of any bills into law), it is important that you remain aware of the status of the various bills and develop a strategy to lobby your representatives, for appropriate measures and against inappropriate ones.
Therefore, below is a reference chart that lists each key bill, summarizes its intent, and links to a website that tracks its status.
In a recent development, the State Senate on March 15, 2021 rejected the Governor’s 2022 Executive Budget, Thirty-Day Bill Amendment to the Article VII Health and Mental Hygiene Bill, proposing a new Part GG with draconian nursing home reforms. The State Senate adopted Resolution 504, rejecting the Governor’s Part GG proposals on the basis that the State Senate has already passed its own package of nursing home reform legislation. The New York State Assembly similarly acted to reject Part GG. Significantly, the Legislature’s pending bills do not include any proposed legislation that would place limits on nursing home profits or salary caps, although there is much in the both the State Senate and State Assembly bills that are still cause for concern to nursing home operators, as indicated in the chart below.
The Governor has stated publicly that “Facilities have put profits over care for far too long and as we look forward, we must learn from the past and prepare for the future. These facilities must be transparent and we have to have the tools necessary for holding bad actors accountable - that is the only way families will have peace of mind and I won't sign a budget that doesn't include these common-sense reforms.” Emph. added.
The Governor’s Part GG proposal is part of a non-appropriation bill portion of the Executive Budget. Since (i) the Legislature removed Part GG from the proposed Executive Budget bill, and (ii) the Governor cannot restore a non-appropriation bill that has been eliminated by the Legislature, the Governor’s only “weapon” to force passing his Part GG proposals is to refuse to sign the Executive Budget in its entirety, which would result in an unprecedented State government shutdown. However, the Governor is already in unprecedented waters. Whether the Governor walks back his statements or doubles down in light of his recent fallout remains unknown.
While uncertainty still reigns supreme over the ultimate reforms that will be implemented, this does not mean the industry should adopt a “wait and see” approach. Remain informed and work with your representatives to promote the right reforms rather than the wrong reforms for the nursing home industry.
We are available to discuss specific issues of concern you may have regarding the pending bills as we continue to monitor them and evaluate legal challenges.
KEY PENDING 2022 NEW YORK STATE LEGISLATIVE BILLS - NURSING HOME REFORM
(Each Bill is Hyperlinked to State Website Indicating Status)
Governor’s Budget Amendment New Part GG; Senate Reso. 504 (eliminates Part GG); S2507B (without Part GG); A3007 (without Part GG)
Requires nursing homes to post their rates for each payer source on a public website, updated annually; Requires the posting of all facility owners; Requires the posting of a list of all contracts or other agreements entered into for provision of goods or services for which any portion of Medicaid or Medicare funds are used by the facility within 30 days of execution of the agreement; Requires information regarding staff be included in an application to establish a nursing home; Increases civil monetary penalties to $25,000 for violations of the Public Health Law, including increasing penalties for willful violations of Public Health Law or regulation; Removes the requirement to provide adult care facilities a 30-day period to rectify violations prior to imposition of a penalty; Requires any nursing home with a repeat Infection Control Deficiency to work with the Quality Improvement Organization, or a state designated independent quality monitor, at the nursing home's own expense, to assess and resolve the facility's infection control deficiencies; Requires that nursing homes spend a minimum of 70 percent of revenue on direct patient care and a minimum of 40 percent of revenue on resident staffing; Establishes a nursing home profit cap and limiting certain unscrupulous transactions, including but not limited to related party transactions over fair market value and payment of compensation for employees who are not actively engaged in or providing services at the nursing home; Limits the overall proportion of management salaries and setting a cap by regulation, dependent on the size of the facility, for managers and executives.
Ensures that nursing home operators and owners who come before the PHHPC for change of ownership or operations are reviewed and approved based upon several quality metrics before approval and transparency around related assets and operations of nursing homes as well as of applications for changes to ownership and/or operation of a facility.
Prohibits the PHHPC and DOH from approving the establishment, incorporation, construction, or increase in capacity of for-profit nursing homes.
Repeals the emergency or disaster treatment protection act which protects health care facilities and health care professionals from liability that may result from treatment of individuals with COVID-19 under conditions resulting from circumstances associated with the public health emergency.
Assembly A5685A
Requires nursing homes to spend at least the resident care amount necessary to achieve a required resident care percentage and a sufficient direct care service amount so it does not have a direct care service deficit.
Assembly A232C
Increases monetary penalties for public health law violations and provides support for the nursing home quality improvement demonstration program.
Senate S4336A
Directs DOH to establish a direct patient care ratio reporting and rebate requirement for nursing homes.
Senate S4893A
Requires notification of certain contracts and agreements to all nursing home residents, representatives, staff and the office of the long-term care ombudsman.
Senate S612A
Enacts the "long-term care ombudsman program reform act."
Senate S1783
Directs DOH to establish/implement an infection inspection audit and checklist on nursing homes and similar facilities.
Senate S3061A
Requires DOH and other agencies to report infections of COVID-19, communicable diseases and deaths.
Assembly A5436A
Reforms to increase accessibility for residents of nursing homes and long-term care facilities to the Long-Term Care Ombudsman Program.
Assembly A244A
Creating the health emergency response data system in Public Health Law and requiring DOH to share HERDS reports with the public and other entities.
Assembly A0108
Enacts the "safe staffing for quality care act" to require acute care facilities and nursing homes to implement certain direct-care nurse to patient ratios in all nursing units; sets minimum staffing requirements; requires every such facility to submit a documented staffing plan to the department on an annual basis and upon application for an operating certificate; requires acute care facilities to maintain staffing records during all shifts; authorizes nurses to refuse work assignments if the assignment exceeds the nurse's abilities or if minimum staffing is not present; requires public access to documented staffing plans; imposes civil penalties for violations of such provisions; and establishes private right of action for nurses discriminated against for refusing any illegal work assignment. (Similar to S1168, but stand-alone bill.)
Assembly S1168
Enacts the "safe staffing for quality care act" to require acute care facilities and nursing homes to implement certain direct-care nurse to patient ratios in all nursing units; sets minimum staffing requirements. (Similar to A0108, but stand-alone bill.)
Publication of nursing home CMS ratings on DOH website and displayed at facility.
Creates a task force to study the state of long-term care services in this state.
Authorizes and regulate visitation of compassionate care- giving visitors at nursing homes and similar facilities.
Requires adult care facilities to include QA committees; includes a focus on infection control in QA plans.
Establishes requirements for the transfer, discharge and voluntary discharge from residential health care facilities.
Provides information on where a list of violations and other actions taken against a facility can be found.
Establishes/implements an antimicrobial stewardship program and requires training regarding antimicrobial resistance and infection prevention and control.
Establishes requirements for residential health care facilities during a state disaster emergency involving a disease outbreak.
Requires infection updates and infection control planning in residential health care facilities.
Directs DOH to make publicly available the results of all inspections during the COVID-19 state disaster emergency.
Requires that the most recent CMS star rating shall be prominently displayed on DOH website and at each nursing home facility.