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Legislative Bulletin: Connect with State Lawmakers Ahead of a July 20th Return

July 17, 2020

ACTION ALERT: Nursing Home Discharge Bill Moves to Assembly Rules Committee

This week the Assembly returned to legislative work, holding a series of committee meetings including Health, Codes and Ways and Means. The committee work involved legislation beyond the State’s response to COVID-19, and as a result, we are seeing some bills move that were expected to be “dead” for the 2020 legislative session. Now, in preparation for next week’s return to session, the Senate is releasing their committee agendas and there are several bills for which we need your advocacy.

A brand-new bill, A.10799 (Hevesi)/S.8764 (Rivera), which was introduced on July 10th has gained momentum this week. The bill would establish new requirements for the transfer, discharge and voluntary discharge of nursing home residents. Although well-intentioned, the legislation itself is unnecessary and will only add to the significant compliance burden nursing homes are already experiencing. This morning, the bill moved out of the Codes committee and into Rules, which means it shows great potential for passage. Furthermore, we are hearing that the Senate is showing interest in moving the bill as well. Members must take action NOW to oppose A.10799/S.8764 and additional requirements on NH transfers and discharges.

Please call your Senators and Assembly Members TODAY! Click here to find your lawmakers’ contact information. LeadingAge NY’s memo of opposition to the bill is linked here.

Talking Points:

  • I am calling to oppose A.10799 (Hevesi)/S.8764 (Rivera) and the proposal to establish new requirements for the transfer, discharge and voluntary discharge of nursing home residents.
  • The legislation seeks to discourage facilities from involuntarily discharging residents to what are called “temporary housing assistance” settings (i.e., family shelters, shelters for adults, hotels, emergency apartments, etc.), and to prevent facilities from discharging to the home of another individual without mutual consent.
  • Federal and State regulations already require facilities to ensure that residents are discharged to safe and appropriate settings, and do not preclude discharge to the noted housing facilities where appropriate. In fact, some individuals are admitted for short-term nursing home care and are discharged to one of these settings based on previous residence or preference.
  • Additionally, under existing regulations, residents already have well-defined rights to appeal facility-initiated discharge or transfer determinations, and the facility is precluded from discharging or transferring the resident until a decision is made on the appeal. Furthermore, LTC Ombudsmen who work to advocate for resident safety and quality of life will be permitted to re-enter facilities in July, providing an additional layer of oversight and representation for residents.
  • Importantly, the New York Times article – which was cited as justification for this legislation – alleges that facilities in some states have unsafely or otherwise inappropriately discharged residents largely to be able to admit COVID-positive residents and obtain higher payment rates. This is not true in New York, as the State has not provided any increase to the Medicaid rates for COVID-positive cases. Occupancy rates at many facilities are currently much lower than usual, making it far less likely that a facility would need to discharge or transfer residents to free up beds for COVID-positive patients. In other words, the “incentive” that is suggested in the NYT article, does not apply to New York’s nursing homes.
  • In summary, I urge you to oppose this legislation, as it largely duplicates existing federal and State requirements. Nursing homes are regularly surveyed on these requirements; residents can appeal their discharge/transfer; and the State has not financially incentivized facilities to serve COVID-19 residents as suggested in the New York Times article.


ACTION ALERT: Oppose an Increase in ACF Penalties

Another bill that saw unanticipated movement this week was the ACF Penalties bill A.4416-C (Gottfried)/S.3460-A (Rivera). The bill moved out of the Assembly Health Committee and into Assembly Codes. While it is a positive that the bill was not added to this mornings Codes Committee agenda, we believe that this bill is still positioned to move and be passed by the Legislature next week.  

As members may remember, the ACF Penalties bill would increase potential penalties for ACF violations from up to $1,000 per day to $2,000 per violation per day—or $3,000 per day for a repeat violation. While this bill is less onerous than its previous versions, any increase in penalties during the COVID-19 is unduly burdensome to facilities that are providing the best care that they can.

Please ACT NOW and urge your lawmakers to oppose an increase to ACF penalties! Click here to send your lawmakers a pre-written email opposing A.4416-C/S.3460-A.

Additionally, please call your lawmakers and urge them to oppose the bill! Your lawmakers’ contact information can be found here. LeadingAge NY’s comprehensive memo is available here.

Talking Points:

  • I am calling to oppose A.4416-C (Gottfried) / S.3460-A (Rivera) and the proposed increase in potential penalties for ACF violations from up to $1,000 per day to $2,000 per violation per day—or $3,000 per day for a repeat violation.
  • While I appreciate the spirit of this legislation; striving for excellent quality of care and quality of life for our residents is integral to our mission - the bill fails to recognize the many burdens and regulations already imposed on ACFs that are trying to provide good care.
  • It also fails to recognize that we are operating in the midst of a pandemic. Even before the pandemic, ACFs were struggling under the weight of layers of regulations and requirements and were under resourced. COVID-19 has only introduced more challenges, risks, mandates, costs, and severe penalties.
  • An increase in fees will only exacerbate the financial stress that many ACFs are facing as we aggressively combat the spread of COVID-19 and protect our residents. Even prior to the pandemic, the state was seeing a high-rate of ACF closures, with 25 closures since 2017. Many of these were due to poor State reimbursement for SSI residents and poor overall support from the State. Unfortunately, when these facilities close, it is often the case the residents have few options other than to move into a nursing home.
  • Additionally, these increased penalties would be applied for relatively minor violations. For example, for months ACFs have been required to submit a daily COVID-19 report to the Department of Health (DOH). We receive a violation if it is submitted even a few minutes late, and now under this legislation the penalty associated with this small delay could be doubled or tripled.
  • Our focus at this time should be on ensuring that ACFs and other long term and post-acute care providers have the resources necessary to ensure the safety of the people they serve and employ. We should not be implementing new mandates and new costs on providers that are doing the best work they can do under unprecedented circumstances.

Thank you in advance for your continued advocacy on this issue.  


Dates Announced for Nursing Home COVID-19 Hearings

Legislative leaders announced on Monday that they would be holding a series of joint legislative hearings to be convened over the coming weeks. The announcement included two dates for hearings on nursing homes and COVID-19; August 3rd and August 10th. According to the press release, “these hearings will review New York State’s rate of infection and mortality due to COVID-19 in residential health care facilities.”

LeadingAge New York is preparing testimony for this hearing to ensure our members and their experiences are well represented. We anticipate that additional legislative action could potentially come from this hearing, so it is crucial that you continue and expand upon your conversations with lawmakers!


Send State Lawmakers COVID-19 Advocacy Letters TODAY

LeadingAge New York has updated our advocacy letters, reminding lawmakers of the many challenges long term care providers are facing, and urging them to provide appropriate support and reimbursement for COVID-related costs. With the Legislature being expected to return to session next week, it is critical that your lawmakers hear from you!

Use the links below to send your lawmakers a pre-written letter today! It only takes a few clicks!


CMS Delays Medicare Cost Report Deadline

The Centers for Medicare and Medicaid Services (CMS) has further extended the Medicare cost report filing deadline.  Medicare providers who operate on a calendar fiscal year now have until August 31, 2020 to submit their report.  Please consult p. 94 of the COVID-19 Frequently Asked Questions (FAQs) on Medicare Fee-for-Service (FFS) Billing for a complete list of due dates for non-calendar year fiscal years.


DOH Shares Applications for CMP Reinvestment Funds for Communication Devices

This afternoon, the Department of Health (DOH) issued a Dear Administrator Letter (DAL) to nursing home administrators, announcing the application process for Civil Monetary Penalty (CMP) Reinvestment Funds for the purchase of communication devices to facilitate communication between residents and families. The letter addresses the necessary criteria set forth by CMS.

Members that are interested in applying for the funds must complete both the CMP Reinvestment Application Template Communicative Technology Request, and the New York State Department of Health CMP Reinvestment Addendum. Both applications are attached to the DAL, available here.

Completed applications must be submitted to covidnursinghomeinfo@health.ny.gov no later than 3 p.m. on July 24, 2020.  


Comptroller DiNapoli Releases Report on June 2020 State Tax Receipts

As the State’s economy continues its reopening, it is clear that the State’s revenue is still recovering.  According to a report released by Comptroller Tom DiNapoli on Thursday, sales tax receipts for the month of June were down $1.5 billion from the previous year. The report explains that June tax receipts were $475 million below DOB’s most recent projections, with shortfalls in personal income, consumption and business taxes.

The state and federal tax deadline was delayed to July 15th this year due to the pandemic, so there is some hope that the lack of revenue could change as more people file their income taxes this month. However, the hit to the economy is expected to be a sustained one, with the joblessness rate still at double digits.

In light of the revenue shortfall, the state government is withholding millions of dollars in aid to local governments, substance abuse programs and other areas of the budget while awaiting potential federal aid to come through to bolster its financial footing.

It is possible that Congress will introduce a second stimulus package as early as next week, and many states including New York are hopeful that the package will include state and local aid to economies that have been hard hit by the pandemic.


Contact: Ami Schnauber; 518.867.8854; aschnauber@leadingageny.org

               Sarah Daly; 518.867.8845; sdaly@leadingageny.org