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Staff Memorandum HOUSE OF DELEGATES Agenda Item # 11 REQUESTED ACTION: Approval of the report and recommendations of the Task Force on Nursing Homes and Long-Term Care. The Task Force on Nursing Homes and Long-Term Care was appointed in 2020 to review the long-term care sector’s pandemic experience. The Task Force reviewed the statutory and regulatory framework under which nursing homes and other long-term care facilities operate and examine the effects of COVID-19 on these facilities and their residents. In the course of its work, the Task Force consulted with a number of individuals and organizations with expertise in the effects of the pandemic and assigned members to three subcommittees: Nursing Homes, Other Long-Term Care Settings, and Govern- ment/Regulatory Structure. As a result of its study, the Task Force is making recommendations in the following areas: · Protecting public health. · Preparing for emergencies. · Providing clear guidance. · Preventing the spread of communicable diseases. · Collecting and disseminating information. · Allocating resources. Comments on this report were received from the Committee on Disability Rights, Elder Law & Special Needs Section and House member Steven Richman. The report will be presented at the June 12 meeting by Task Force co-chairs Hermes Fernandez and Sandra Rivera. Report and Recommendations of the Task Force on Nursing Homes and Long-Term Care June 2021 The views expressed in this report are solely those of the Task Force and do not represent those of the New York State Bar Association unless and until adopted by the House of Delegates. New York State Bar Association Task Force on COVID-19 in New York Nursing Homes and Long-Term Care Members of the Task Force on Nursing Homes and Long-Term Care Hermes Fernandez, Esq. Sandra D. Rivera, Esq. Co-Chair Co-Chair John Dalli, Esq. John Henry Tator Dow, III, Esq. William S. Friedlander, Esq. Simeon Goldman, Esq. David Ian Kronenberg, Esq. Richard C. Lewis, Esq. Mary Beth Quaranta Morrissey, Esq., Ph.D. Lori E. Petrone, Esq. Violet E. Samuels, Esq., R.N. Joanne Seminara, Esq. Francis J. Serbaroli, Esq. Sheila E. Shea, Esq. Jeffrey J. Sherrin, Esq. Thomas K. Small, Esq. Executive Committee Liaison Mark J. Moretti, Esq. Advisor to the Task Force Dr. Elin A. Gursky, ScD, MSc, IDHA Research Assistant to the Task Force Craig W. Anderson, Esq. NYSBA Staff Liaison Thomas J. Richards, Esq. TABLE OF CONTENTS Page Acknowledgements ......................................................................................................... 4 Introduction ..................................................................................................................... 4 A. Task Force Appointment and Mission .................................................................. 7 B. Descent Into the Pandemic .................................................................................. 9 1. Recognition of COVID-19 ................................................................................ 9 2. Early Spread of COVID-19 ............................................................................ 10 3. The Virus Continues to Spread ..................................................................... 14 4. The Need for Sufficient Hospital Capacity. .................................................... 17 C. The Pandemic Comes to Nursing Homes .......................................................... 19 a. The March 25th Directive .......................................................................... 21 b. The Attorney General Report ................................................................... 22 II. The Role of Government in Responding to a Pandemic .......................................... 24 III. Responsibilities of Government in Responding to a Pandemic ................................ 25 A. Protecting the Public Health. .............................................................................. 25 B. Preparing for Emergencies. ................................................................................ 26 C. Responding to Emergencies............................................................................... 27 D. Preventing the Spread of Communicable Disease. ............................................ 29 E. Collecting and Disseminating Information. ......................................................... 30 F. Allocating Scarce Resources. ............................................................................. 31 IV. A State and Nation Unprepared ............................................................................... 32 V. The Impact on Nursing Homes and their Residents................................................. 36 A. The Regulatory Structure for Nursing Homes in New York ................................ 39 1. The Federal-State Regulatory Structure ....................................................... 39 2. The Nursing Home Inspection Process ......................................................... 40 3. The CMS Five-Star Rating System ............................................................... 41 B. Pre-Existing Issues in Nursing Homes ............................................................... 43 1. Infection Control ............................................................................................ 43 2. Staffing .......................................................................................................... 44 3. Ownership and Other Facility Characteristics ............................................... 50 i C. The New York Nursing Home Experience During the Pandemic ........................ 52 1. The Impact of the March 25th Directive ......................................................... 64 VI. Impact of COVID-19 in Other Long-Term Care Settings .......................................... 69 A. Adult Care Facilities ............................................................................................ 69 1. Regulatory Structure ..................................................................................... 69 2. The Coronavirus Pandemic and the Experience of Adult Care Facilities ...... 71 B. Home Care ......................................................................................................... 79 1. Regulatory Structure ..................................................................................... 79 a. Special Considerations for Palliative Care ............................................... 83 C. Office for Mental Health Operated and Licensed Facilities ................................. 84 1. Regulatory Structure ..................................................................................... 87 a. Oversight ................................................................................................. 89 2. The Coronavirus Pandemic ........................................................................... 90 D. Office for People with Developmental Disabilities ............................................... 96 1. Regulatory Structure ..................................................................................... 98 2. The Impact of the Coronavirus Pandemic ................................................... 101 VII. Conclusion ........................................................................................................ 107 VIII. Recommendations ............................................................................................ 111 A. Protect Public Health ........................................................................................ 112 1. Rethink the Delivery of Long Term Care ..................................................... 112 2. Meaningful Agency Enforcement ................................................................ 114 a. Review Regulatory Standards ............................................................... 114 b. Survey Process ...................................................................................... 115 c. Address Under-Performers .................................................................... 115 B. Prepare for Emergencies .................................................................................. 116 1. Support for Staffing ..................................................................................... 116 2. Visitation and Home Visits........................................................................... 117 C. Clear Guidance ................................................................................................. 118 D. Prevent the Spread of Communicable Diseases .............................................. 118 1. Empowered Infection Control Officers ......................................................... 118 2. COVID-19 Nursing Homes and Wards ........................................................ 119 E. Collect and Disseminate Information ................................................................ 119 ii F. Allocate Resources ........................................................................................... 119 G. LONG TERM CARE NEEDS AS A PRIORITY ................................................. 120 H. REMOVE POLITICS FROM THE EQUATION ................................................. 121 iii Acknowledgements The Task Force extends its thanks to the individuals who helped the Task Force complete its work and prepare this Report. We want to thank Elin Gursky, Sc.D., M.Sc., IDHA, who functioned as a Task Force member, and provided valuable advice on the epidemiology of the virus and
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