Legislative Bulletin: Final Stretch of 2021 Legislative Session

June 4, 2021

Final Four Days of 2021 Legislative Session

Lawmakers completed a busy session week on Thursday and are now preparing for the final four days of the 2021 Legislative Session set to conclude on June 10^th. Among the Legislature’s top end of session priorities are the Adult Survivors Act, which passed unanimously in the Senate yesterday but is being held up in the Assembly, and a package of gun control bills aimed at boosting gun research and data on shootings, cracking down on the flow of illegal weapons, and making it easier to sue gun manufacturers. A criminal justice “clean slate” bill, which would seal and eventually expunge the criminal records of up to 2.3 million in the state, is also being considered.

Meanwhile, lawmakers are continuing their work on various bills aimed at long term care, some of which LeadingAge NY is happy to support, others which we oppose. The Investing in Care Act, a bill which would require the commissioner of economic development to study, develop and propose how to implement a strategy to support the growth of the caregiving industry in New York, was passed in the Assembly this week and is poised for potential passage in the Senate. Additionally, both houses seem interested in passing a housing bill A.3807-A (Cymbrowitz)/S.2193-A (Kavanagh) which would codify the five-year affordable housing capital spending plan, and require that a spending plan be included as a part of the Executive Budget for Fiscal Year 2022-23 and every fifth fiscal year thereafter. The spending plan would include an investment in affordable senior housing. LeadingAge New York is supportive of both of these proposals.

Unfortunately, a few bills that LeadingAge NY opposes have also showed some movement in the final days of session. Most notably, an Infection Control Competency Audit bill, A.6057-A (Burke)/S.1783-A (Skoufis), moved out of Assembly Ways and Means Committee and into Assembly Rules. In the Senate, the bill is on the Floor Calendar and poised for action. The bill would require the Department of Health (DOH) to establish and implement an infection control competency audit, establish infection control competency standards, and require implementation of a checklist for nursing homes. LeadingAge NY opposes this legislation as it is duplicative of already existing audits and surveys. Members who share our concerns about this Infection Control Competency Audit bill are encouraged to call their lawmakers TODAY in opposition. Our memo of opposition on the bill can be used to inform your talking points.

Finally, in this last week of session we need to keep the pressure on lawmakers in our opposition to two bills that have been positioned for passage for several weeks. The Adult Care Facility (ACF) Penalties bill A.196 (Gottfried)/S.1576 (Rivera), which proposes an 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 is on the Senate Calendar and has been laid aside in the Assembly. The Psychotropic Medications bill A.5841-A (Gottfried) /S.2103-A (Sepulveda), which would require an enhanced level of informed consent for psychotropic medications, has already been passed in the Assembly, but is still on the Senate Calendar. The reason these bills have not already passed both houses is thanks to your advocacy. Please help us keep the pressure on and send the below pre-written letters to legislators TODAY! It only takes a few clicks!

LeadingAge NY Speaks at PHPPC Meeting

Yesterday morning, LeadingAge New York’s Executive V.P. for Innovation Strategies, Karen Lipson, spoke at a Public Health and Health Planning Council Meeting. In her comments, Karen spoke about the duplicative nature of the state and federal vaccination regulations in the nursing home setting and the need to align state and federal requirements to avoid this duplication. Karen also recommended that the state eliminate once and twice weekly testing of vaccinated nursing home and ACF staff and align state guidance with federal guidance on social interactions and visitation among vaccinated residents.

The full meeting was recorded and published here. Members interested in viewing the LeadingAge NY portion of the meeting may click here to do so.

Summary of NYS Personal/Compassionate Caregiving Emergency Regulations

The Department of Health (DOH) issued regulations on an emergency basis this week to implement the legislation establishing Personal Caregiving and Compassionate Caregiving Visitors in Nursing Homes and Adult Care Facilities, 2801-h of the Public Health Law (PHL) and section 461-u of the Social Services Law (SSL), as enacted by Chapter 108 of the Laws of 2021. The regulations are effective as of June 1, 2021.

The legislation, signed by the Governor last month, allows residents of adult care facilities (ACFs) and nursing homes to identify “personal caregiving visitors” to assist with personal caregiving or compassionate caregiving for the resident during a public health emergency. Personal caregiving is defined as care and support of a resident to benefit such resident’s mental, physical, or social well-being, and compassionate caregiving is defined as personal caregiving provided in anticipation of the end of the resident’s life or in the instance of significant mental, physical or social decline or crisis.

Earlier today, LeadingAge NY issued a summary of the regulatory changes, which are essentially the same for nursing homes and ACFs with minor nuances. Notable requirements are bolded for your convenience. Members are encouraged to review the regulations carefully, as policies and procedures must be developed. Steps should be taken to ensure compliance, including discussing this option with existing residents by June 15^th. Moving forward, this should be a discussion with new residents.

Finally, we recognize that that the regulations issued this week raise a number of questions. To date we have not seen any Dear Administrator letter or additional official guidance from DOH regarding the implementation of regulations. We have submitted some questions to the Department and received a partial answer to one question via email, which is set forth in our summary linked above. Members may pass along any additional questions or concerns to the policy team, and we will pursue getting clarity and answers from the DOH.

State Adopts Case Mix Regulations

The Department of Health republished and adopted regulations changing the methodology used to adjust nursing home Medicaid rates for acuity. The change, effective June 2, does away with the “picture date” methodology in favor of using all assessments filed during a six-month period to calculate case mix index (CMI) adjustments to the rates. DOH intends to use the new approach starting with July 2021 rates. The CMI calculations in the July 2021 rates will be based on all Minimum Data Set (MDS) assessments filed for Medicaid residents from October 2020 through March 2021. A previous attempt on the part of the State to make this change outside of the regulatory process was blocked by the State Supreme Court. The regulations also signal that DOH intends to no longer apply a constraint when CMI increases or decreases by more than five percent relative to the previous case mix cycle. The link to the publication in the State Register is here (see pp. 10-11)

Urge Lawmakers to Support LHCSA RFO Repealer

The LHCSA Request for Offers (RFO) repealer legislation, A.7304 (Gottfried)/ S.6640 (May), would repeal last year's budget language which establishes a Request for Offers (RFO) authorization process for all Licensed Home Care Services Agencies (LHCSAs) delivering Medicaid services. A LHCSA RFO process, if implemented, would allow the State to arbitrarily cap the number of LHCSAs providing Medicaid services in the state, and likely deny many eligible and reputable LHCSAs currently delivering Medicaid services from continuing to operate. This will cause significant disruption to home care services and potentially create barriers to care when more and more people are relying on care and services in the home as people age in place in their homes and the community.

LeadingAge NY’s memo of support on the legislation is available here. We urge member LHCSAs to email their legislators in support of this bill TODAY! Click here to urge lawmakers to support A.7304/S.6640!

Urge Lawmakers to Provide Financial Relief to ACF/AL

New York’s senior living providers have incurred hundreds of millions of dollars in expenses to procure gowns, gloves, masks, and other infection control supplies, to provide well-deserved hero pay to staff, to hire additional staff, and to provide weekly staff testing as mandated by DOH. Additionally, declining occupancy rates due to temporary discontinuation of admissions and limitations on visitation resulted in substantial revenue losses.

In recognition of the critical role all ACFs/ALRs/ALPs play in the long-term care continuum, LeadingAge New York, Argentum NY, Empire State Association of Assisted Living (ESAAL) and NYSCAL are urging the Legislature to provide a one-time request of $75 million to help preserve these essential services for New York’s seniors and their families.

CLICK HERE to urge lawmakers to provide critical financial relief to New York’s ACFs, ALRs and ALPs!

Ask Lawmakers to Assist in Reducing Testing Requirements

LeadingAge NY is continuing to make the reduction of testing requirements for nursing homes and assisted living a priority for the remainder of session. While we continue to work with the Department of Health on this issue, members are encouraged to contact their lawmakers and ask them to support our efforts and urge the Department to revise testing requirements and to adopt federal CMS guidance. Your advocacy will be essential in helping to bring attention to these important issues. Click here to send your lawmakers a letter today!

Additionally, if you haven’t already done so, please take a few minutes TODAY to share the following messages with your legislators on Facebook and Twitter:

Facebook Message:

[@legislator], please join me and @LeadingAgeNY in urging @NYSDOH and @GovernorAndrewCuomo to eliminate serial COVID-19 testing for vaccinated and recently recovered nursing home/ACF staff and reduce burdensome COVID-19-related data collection requirements. https://bit.ly/3eYZkZl

Twitter Message:

.[@legislator], please join me & @LeadingAgeNY in urging @HealthNYGov & @NYGovCuomo to eliminate serial #COVID19 testing for vaccinated & recently recovered nursing home/ACF staff & reduce burdensome #COVID19-related data collection requirements. https://bit.ly/3eYZkZl

LeadingAge & LeadingAge NY Coronavirus Resources

LeadingAge NY continues to closely follow all COVID-19 news and we are doing our best to keep members informed of updates, recommendations and guidelines from the Department of Health (DOH).

LeadingAge NY and LeadingAge National Member resources are linked below.

LeadingAge NY Coronavirus Resources

LeadingAge NY COVID-19 Weekly Update calls – Mondays at 11 a.m. Click here to join the call from your computer, android or apple device. Or you can join the call by dialing in: 877 853 5257 (Toll Free); Webinar ID: 852 964 255.

LeadingAge National Coronavirus Resources Page

LeadingAge National Pandemic Playbook

COVID-19 Group in the MyLeadingAge Member Community

Coronavirus Daily Member Update calls – Mondays, Wednesdays and Thursdays from 3:30-4:30 p.m. Past call recordings are available here and you can register here for future calls.

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

Sarah Daly; 518.867.8845; sdaly@leadingageny.org