Long Term Care Legal Resources Library
The Government Law Center and the Committee on Long Term Care Facility Reform of the New York State Bar Association’s Elder Law and Special Needs Section have created this resource library. It is provided strictly for informational purposes with no guarantees of completeness, accuracy, usefulness or timeliness. Its authors are not responsible for the use of the information contained in or linked from these web pages.
For additional information, contact Rose Mary Bailly, Esq. - Government Law Center at Albany Law School - at rbail@albanylaw.edu.
Federal Law & Regulations: Nursing Homes
- Nursing Home Reform Act 1987
42 U.S. Code § 1395i–3 - Requirements for, and assuring quality of care in, skilled nursing facilities - The Affordable Care Act 2010
42 U.S. Code, Chapter 157 – Includes important provisions expanding transparency over nursing home operations, strengthening consumer complaint processes and facility closure requirements, and incorporates the Elder Justice Act. - Federal Long Term Care Ombudsman Program (LTCOP)
The LTCOP operates under the authority of the Older Americans Act, 42 U.S. C. Chapter 35. -Approximately five years ago, the Administration for Community Living issued requirements for the state LTCOPs.
The Administration for Community Living promulgated regulations establishing requirements for the state LTCOPs, effective July 2016. - Requirements For States And Long Term Care Facilities
42 CFR 483
This is the primary section of the code relating to nursing home quality standards, preadmission screening and resident review (PASRR), and appeals of discharge and transfer decisions. The regulations were first promulgated in 1991, and revised in 2016 with a three-stage implementation: 2016, 2017, and 2019. The Trump Administration proposed revisions, but did not finalize before the change in administration in January 2020. - PASRR Technical Assistance Center (PTAC)
- Medicaid Fraud Control Provisions
42 CFR Part 1007 - Uniform Administrative Requirements, Cost Principles, and Audit Requirements for HHS Awards (applicable to MFCU grant awards for FY 2016 and future years)
45 CFR Part 75 - Arbitration Rules for Nursing Homes
New York Law and Regulations
- Nursing Home Companies
Nursing Homes Public Health Law, Art. 28-a - Rights of Residents
Public Health Law §2803-c - Private Right of Action
Public Health Law §2801-d - Reporting Abuses of Persons Receiving Care or Services in Residential Health Care Facilities
Public Health Law 2803-d - https://www.nysenate.gov/legislation/laws/PBH/2803-D
Selected Cases:- People v. Joseph - 169 A.D.3d 926 (N.Y. App. Div. 2019)
- People v. Lappe - 169 A.D.3d 927 (N.Y. App. Div. 2019)
- Sylvia v. Novello - 309 A.D.3d 1190 (N.Y. App. Div. 2003)
- King v. New York State Dept. of Health - 295 A.D.3d 743 (N.Y. App. Div. 2002)
- Goldsmith v. De Buono - 245 A.D.3d 627 (N.Y. App. Div. 1997)
- People v. Spence - 232 A.D.2d 434 (N.Y. App. Div. 1996)
- Harrison v. Axelrod - 194 A.D.2d 672 (N.Y. App. Div. 1993)
- Residential Care Facilities
10 NYCRR Article 3, Part 415
Including: Minimum Standards, Clinical Services, Resident’s Rights, Quality of Life, Physical Environment, Quality Assurance, Ombudsman Access, Inspection & Enforcement - Family Health Care Decisions Act (FHCDA)
Public Health Law, Art. 29-CC - NYSBA FHCDA Resource Center
- Adult Care Facilities
18 NYCRR Part 485
Oversight and Enforcement
U.S. Dept. of Health and Human Services
- Centers for Medicare & Medicaid Services (CMS)
- State Operations Manual (SOM)
- CMS Guidance - The guidance is Appendix PP, which is part of the SOM
- CMS memos - currently called QSO memos, previously known as S&C memos
- Quality, Certification & Oversight Reports - This searchable website summarizes survey and certification data, including results of on-site inspections of providers of long term care services and suppliers.
- Office of Inspector General (OIG)
Selected Case Law on Enforcement of Federal Laws
- Valdivia v. California Department of Health Services - Federal court orders California to enforce federal nursing home standards and investigate complaints in compliance with federal procedures, and subsequently approved settlement agreement.
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Estate of Smith v. Heckler (10th Cir. 1984) – Tenth Circuit holds that U.S. Dept. of Health & Human Services has a duty to establish a system to determine whether facilities receiving federal money are complying with federal requirements.
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Beverly Health & Rehabilitation v. Thompson (D.D.C. 2002) – Federal court upheld Health Care Financing Administration’s (now Centers for Medicare & Medicaid Services) survey protocol in response to terminated facilities’ chain’s challenge that the protocol was not promulgated in accordance with the Administrative Procedure Act.
- As part of the settlement of a federal health care program investigation arising under a variety of civil false claims statutes, a provider or entity agrees to certain obligations in a Corporate Integrity Agreement (CIA), and in exchange, OIG agrees not to seek their exclusion from participation in Medicare, Medicaid, or other federal health care programs. A CIA typically lasts 5 years and includes requirements that the provider/entity: hire a compliance officer/appoint a compliance committee; develop written standards and policies; implement a comprehensive employee training program; retain an independent review organization to conduct annual reviews; establish a confidential disclosure program; restrict employment of ineligible persons; report overpayments, reportable events, and ongoing investigations/legal proceedings; and provide an implementation report and annual reports to the OIG on the status of compliance activities. CIAs include breach and default provisions that allow the OIG to impose certain monetary penalties (referred to as Stipulated Penalties) for the failure to comply with certain obligations set forth in the CIA.
Federal False Claims Act
- Resources about federal government’s use of federal false claims act against nursing homes
- Civil actions for false claims
31 U.S. C. § 3730
New York State Agencies
- Department of Health (DOH)
- Nursing Homes
- Reporting Abuse
- N.Y Pub. Health Law § 2803-d
- Adult Protective Services
N.Y. Soc. Serv. Law, Art. 9B
Adult Protective Services(APS) is a mandated service provided by local social services districts. It investigates and assesses reports made to it about neglect, and financial exploitation of impaired vulnerable adults living in the community. APS serves adults (age 18 and older) who, due to physical or mental impairments: are unable to protect themselves from abuse, neglect, financial exploitation or other harm; or have no one available who is willing and able to assist responsibly. APS is available in each county.
- Adult Care Facilities
- Medicaid Fraud Control Unit
- Medicaid Fraud Resource Center
- Office of Medicaid Inspector General
- New York State Comptroller - State Audits by Agency or Authority
- Disaster Preparedness Commission
Comprised of the commissioners, directors or chairpersons of 29 State agencies and one volunteer organization, the American Red Cross. The responsibilities of the Disaster Preparedness Commission (DPC) include: the preparation of State disaster plans; the direction of State disaster operations and coordinating those with local government operations; and the coordination of federal, State and private recovery efforts. -
Nursing home and assisted living facility plans
The Disaster Preparedness Commission is empowered to establish standards for nursing homes and assisted living facilities regarding disaster preparedness plans.
New York State Executive Law, Article 2-B
§ 23-b. - Long Term Care Ombudsman Program
Under the federal Older Americans Act (OAA) every state is required to have an Ombudsman Program that addresses complaints and advocates for improvements in the long-term care system. New York’s LTCOP is a resource for older adults and people with disabilities who live in nursing homes, assisted living, and other licensed adult care homes. The program provides information and consultation to residents, families, facility staff, and community about issues in long term care and specific issues they are experiencing in facilities, advocates on behalf of residents to assure rights are not violated, and identifies, investigates, and works towards resolution of resident complaints.
Residents Rights
- Prohibited discrimination on the basis of disability
Americans with Disabilities Act (ADA), 42 U.S.C. § 12101 - Rehabilitation Act of 1973 - Nondiscrimination under Federal grants and programs
Section 504, 29 U.S. Code § 794 - Reporting Abuse
N.Y Pub. Health Law § 2803-d - Dear Administrator Letter
DAL 01-08: Patient Abuse Reporting Requirement for Residents of Nursing Homes - Private Right of Action Against Nursing Home
N.Y. Pub. Health Law § 2801-d(1) - NYS Social Services Regulations
18 NYCRR § 515.2(13) - NYS Public Health Law Regulations
10 NYCRR § 415.3(b)(5) - Residential Rights and Services
10 N.Y.C.R.R. 415.26(i)(1)(ix -
Discrimination on basis of actual or perceived sexual orientation
Sexual Orientation Non-Discrimination Act (SONDA), N.Y. Exec. Law § 29
Community-Based Housing & Services
Home & Community Based Services Final Regulation
The only federal regulations related to assisted living, promulgated about five years ago, relate to the community characteristics necessary to qualify as a home and community based setting (HCBS) for purpose of receiving federal funding for long-term services and supports in HCBS settings.
U.S. Dept. of Health & Human Services promulgated regulations in 2014 establishing the characteristics necessary to qualify as a home and community based setting (HCBS) for purpose of receiving federal Medicaid funding for long-term services and supports in HCBS settings under several Medicaid authorities.
Money Follows the Person
Money Follows the Person (MFP) is a federal Medicaid demonstration project that supports state efforts to transition people from nursing homes and intermediate care facilities to the community with long-term services and supports.
Open Doors Transition Program
Open Doors is New York’s Money Follows the Person (MFP) program. The program is operated through the New York Association on Independent Living (NYAIL), with transition staff located statewide in New York’s independent living centers. Open Doors Transition Center is assists people living in nursing homes and intermediate care facilities to transition to the community where they can receive individualized home and community-based services.
New York Department of Health MFP Site
Olmstead Housing Subsidies
A statewide rental subsidy and transitional housing support service program for high-need Medicaid members.
Rapid Transition Housing
Rental subsidy and supportive housing for Medicaid beneficiaries living with chronic physical disabilities and conditions. This program is available on Long Island and in Syracuse, New York City and Rochester.
- Managed Long Term Care
- Health Home Care Coordination
Empire State Supportive Housing Initiative
The anticipated development of supported housing across the state.
NYS DOH - Consumer Guide to Community-Based Long Term Care
Consumer-Directed Personal Assistance Program
Medicaid Home-and-Community-Based Waiver Programs in New York State
Certified Home Health Care Agencies
List of CHHCAs registered in NYS as of April 5, 2021. All CHHAs are certified and regulated by the New York State Department of Health and are also certified by the Federal government to receive Medicare and Medicaid payments.
Licensed Home Care Services Agencies
List of LHCSAs registered in NYS as of March 19, 2021. LHCSAs are not certified to receive direct payments from Medicare and Medicaid but they may contract to provide services for Medicare/Medicaid beneficiaries.
Expanded In-home Services for the Elderly
EIHSEs serve elderly people who need home care but are not financially eligible for Medicaid
New York Continuing Care Retirement Communities
Includes list of the 14 CCRCs in NYS
New York Housing Options for Older Adults
Capital Region Villages Collaborative
Villages that are self-governing, grassroots membership, nonprofit organizations run by volunteers, and sometimes paid staff, that coordinate access to a variety of services and activities for seniors wanting to maintain independence in their own home.
Medicaid Topics
- General Medicaid information for NYS
- Financial Eligibility
- Application Health Insurance - access NY health care for Children, Adults and Families
- Supplement A - to be completed if applicant is age 65 or older, chronically, certified blind or disabled, or institutionalized and applying for coverage of nursing home care
- Health Home Care Coordination
- Managed Long Term Care (MLTC) plans
Insurance plans that are paid a monthly premium ("capitation") by NYS Medicaid program to approve and provide Medicaid home care to people who need long-term care. The MLTC plans decide whether you need Medicaid home care and how many hours you may receive, and arrange for the care. - Medicaid Appeals
In 2016, CMS adopted changes regarding how appeals could be requested. These changes, which became effective in May 2018, now require applicants to first “exhaust” their internal appeals with the MLTC plan, before a fair hearing could be requested
42 CFR 438 SubPart F - Medicaid Home & Community Based Services Waivers
- Office of Persons with Developmental Disabilities
- Federal HCBS Requirements
Community characteristics necessary to qualify as a home and community-based setting (HCBS) for purpose of receiving federal funding for long-term services and supports in HCBS settings. - Permanently Residing Under Color of Law (“PRUCOL”) - Medicaid Eligibility
- Immigrant Access
Guardianship, Supported Decision-Making, & Advance Directives
- Statutes
- Proceedings for Appointment of a Guardian for Personal Needs or Property Management
N.Y. Mental Hygiene Law, Article 81 - Uniform Adult Guardianship and Protective Proceedings Jurisdiction Act
N.Y. Mental Hygiene Law, Article 83 - Guardians of Persons Who Are Intellectually Disabled and Developmentally Disabled
N.Y. Surrogate’s Court Procedure Court, Article 17A
- Proceedings for Appointment of a Guardian for Personal Needs or Property Management
- Regulations
- Filings of Statements Pursuant to Judiciary Law §35-a, for purposes of court appointments
22 NYCRR 26 (Part 26 Rules) - Procedures relating to court appointments
22 NYCRR 36, (Part 36 Rules) - Explanatory Note to the Part 36 Rules
- Filings of Statements Pursuant to Judiciary Law §35-a, for purposes of court appointments
- Office of Guardianship and Fiduciary Services
- Surrogate’s Court Guardianship Forms
- Mental Hygiene Legal Service
New York State agency responsible for representing, advocating and litigating on behalf of individuals receiving services for a mental disability.
Mental Hygiene Law, Article 47 - New York State Rules of Court relating to Mental Hygiene Legal Service
- Appellate Division, First Department, Part 622, Mental Hygiene Legal Service
- Appellate Division, Second Department, Part 694, Mental Hygiene Legal Service
- Appellate Division, Third Department, Part 823, Mental Hygiene Legal Service
- Appellate Division, Fourth Department, Part 1023, Mental Hygiene Legal Service
- Alternatives to Guardianship
- Finding the Right Fit: Decision-Making Supports and Guardianship
National Center for State Courts - Supported Decision Making
United Nations Convention on the Rights of People with Disabilities (CRPD), Article 12 - National Resource Center for Supported Decisionmaking
- Supported Decision-making New York
- What Judges Need to Know About Supported Decision-Making, and Why
Kristen Booth Glen 2019 - Living In The Gray: Why Today's Supported Decision-Making-Type Models Eliminate Binary Solutions To Court-Ordered Guardianships
Alexandra Wallin, San Diego L. Rev. 2020 - Supporting Decision Making Across the Age Spectrum
The American Bar Association Commission on Law and Aging, March 2020 - Guardianship and Supported Decision-Making
American Bar Association - Court-Based Alternative Dispute Resolution
Alternative dispute resolution (ADR) refers to a variety of processes that seek to resolve a dispute without a trial. Typical ADR processes include mediation, arbitration, neutral evaluation, and collaborative law. - Training events
- Finding the Right Fit: Decision-Making Supports and Guardianship
- Other Alternatives & Advance Directives
- Statutes and Regulations
- Joint Deposits and Shares; Ownership and Payment
N.Y. Banking Law § 675 - Supplemental Needs Trusts
N.Y. Estates, Powers & Trusts Law § 7-1.12 - Statutory Short Form and Other Powers of Attorney for Financial and Estate Planning
N.Y. General Obligations Law, Article 5, Title 15 - “Act Now” Health Care Proxy, effective upon approval of form
N.Y. Laws 2008, c. 210, amending N.Y. Mental Hygiene Law §33.03(e),
L.2008, c. 210, § 5. - Surrogate Decision–Making for Medical Care and Treatment
N.Y Mental Hygiene Law, Article 80 - New York Achieving a Better Life Experience Savings Account Act
N.Y Mental Hygiene Law, Article 84 - Health Care Agents and Proxies
N.Y. Public Health Law, Article 29-C - Family Health Care Decisions Act
N.Y. Public Health Law, Article 29-CC - Health Care Decisions for Persons who are Intellectually Disabled
N.Y. Surrogate’s Court Procedure Act § 1750-b - Protection of Individuals Receiving Services in Facilities Operated and/or Certified By OPWDD
14 N.Y. Code of Rules and Regs. § 633.11
- Joint Deposits and Shares; Ownership and Payment
- Statutes and Regulations
- Psychiatric Advance Directives
- Guardianship Case law - Collected cases (Article 17-A and article 81)
- Guardianship Articles & Reports
- Should We Be Talking? -- Beginning A Dialogue On Guardianship For The Developmentally Disabled In New York
Rose Mary Bailly & Charis B. Nick-Torok
75 Alb. L.Rev. 807 (2013) - Guardianship: A Civil Rights Perspective
Sheila Shea & Carol Pressman
90-Feb. N.Y. St. B. J. 19 (2018) - Guide to Becoming a Guardian without a Lawyer
- Should We Be Talking? -- Beginning A Dialogue On Guardianship For The Developmentally Disabled In New York
- Vera Institute Reports
- Family Health Care Decision Act Guidance & Forms
Medical Orders for Life Sustaining Treatment
The Medical Order for Life Sustaining Treatment (MOLST) form is one way of documenting a patient's treatment preferences concerning life-sustaining treatment. The MOLST form is the only authorized form in New York State for documenting both nonhospital DNR and DNI orders.
Federal Statutes
Public Readiness and Emergency Response Act (PREP Act), 2005, and Declarations
The PREP Act was enacted on December 30, 2005, as Public Law 109– 148, Division C, section 2. It amended the Public Health Service (PHS) Act, adding section 319F–3, which addresses liability immunity, and section 319F–4, which creates a compensation program. These sections are codified at 42 U.S.C. 247d–6d and 42 U.S.C. 247d–6e, respectively. Section 319F–3 of the PHS Act has been amended by the Pandemic and All-Hazards Preparedness Reauthorization Act (PAHPRA), Public Law 113–5, enacted on March 13, 2013 and the Coronavirus Aid, Relief, and Economic Security (CARES) Act, Public Law 116–136, enacted on March 27, 2020, to expand Countermeasures under the PREP Act.
COVID-19 PREP Act Declaration
- Declaration Under the Public Readiness and Emergency Preparedness Act for Medical Countermeasures Against COVID-19 (March 17, 2020)
- First Amendment (April 15, 2020)
- Second Amendment (June 8, 2020)
- Third Amendment (August 24, 2020)
- Fourth Amendment (December 3, 2020)
- Fifth Amendment (February 2, 2021)
- Sixth Amendment (February 16, 2021)
- Technical Correction to Fifth and Sixth Amendments (February 22, 2021)
- Seventh Amendment (March 11, 2021)
- Advisory Opinions of the General Counsel
- Guidance for PREP Act Coverage for COVID-19 Screening Tests at Nursing Homes, Assisted-Living Facilities, Long-Term-Care Facilities, and other Congregate Facilities (August 31, 2020)
- United States Department of Justice OIG - Pandemic response
- FDA Pandemic Response, Pandemic Preparation
- United States Government Accountability Office
The GAO does not penalize, but does important and influential assessments of both provider compliance and government oversight. - Centers for Disease Control and Prevention (CDC) - COVID testing guidelines in nursing facilities
- Obama Team Pandemic “Game Plan”
Selected PREP Act Cases - Federal Courts
Third Circuit
Estate of Maglioli v. Alliance HC Holdings, LLC, No. 20-2833 (3d Cir. 2021)
New York
Dupervil v. All. Health Operations, LCC
(E.D.N.Y. Feb. 2, 2021)
California
Lyons v. Cucumber Holdings, LLC
(C.D. Cal. Feb. 3, 2021)
Florida
Est. of Smith by and through Smith v. Bristol at Tampa Rehab. and Nursing Ctr., LLC
(M.D. Fla. Jan. 12, 2021)
Kansas
There are 13 cases against Big Blue Healthcare, Inc.
Eaton v. Big Blue Health Care, Inc. - Represents the decisions of all 13 cases, which were ultimately remanded to the state court because the federal court lacked subject matter jurisdiction.
Eaton v. Big Blue Healthcare, Inc.
(D. Kan. Aug. 19, 2020)
Additional cases:
- Brown v. Big Blue Healthcare, Inc., (D. Kan. Aug. 19, 2020)
- Lutz v. Big Blue Healthcare, Inc., (D. Kan. Aug. 19, 2020)
- Fortune v. Big Blue Healthcare, Inc., (D. Kan. Aug. 19, 2020)
- Rodina v. Big Blue Healthcare, Inc., (D. Kan. Aug. 19, 2020)
- Jackson v. Big Blue Healthcare, Inc., (D. Kan. Aug. 19, 2020)
- Robertson v. Big Blue Healthcare, Inc., (D. Kan. Feb. 26, 2021)
- Saunders v. Big Blue Healthcare, Inc., (D. Kan. Feb. 26, 2021)
- Block v. Big Blue Healthcare, Inc.(D. Kan. Aug. 19, 2020)
- Baskin v. Big Blue Healthcare, Inc., (D. Kan. Aug. 19, 2020)
- Harris v. Big Blue Healthcare, Inc., (D. Kan. Aug. 19, 2020)
- Campbell v. Big Blue Healthcare, Inc., (D. Kan. Aug. 19, 2020)
- Long v. Big Blue Healthcare, Inc., (D. Kan. Aug. 19, 2020)
Anson v. HCP Prairie Village KS OPCO LLC
(D. Kan. Jan. 29, 2021)
Grohmann v. HCP Prairie Village KS OPCO LLC
(D. Kan. Jan. 29, 2021)
Goldblatt v. HCP Prairie Village KS OPCO LLC
(D. Kan. Jan. 29, 2021)
New Jersey
Estate of Maglioli v. Andover Rehab Center
(D. N.J. Aug. 12, 2020), 478 F. Supp. 3d 518
Pennsylvania
Sherod v. Comprehensive Healthcare Mgt. Services, LLC
(W.D. Pa. Oct. 16, 2020)
Oregon
Est. of Jones v. St. Jude Operating Co., LLC
(D. Or. Oct. 14, 2020)
Parker through Parker v. St. Jude Operating Co., LLC
(D. Or. Dec. 28, 2020)
Agency Guidance & Actions
Centers for Medicare and Medicare Services
- American Rescue Plan Funding for Medicaid Home and Community Based Services
- Coronavirus Waivers & Flexibilities
- COVID-19 Data & Updates - Nursing Homes
- Omnibus COVID-19 Health Care Staff Vaccination Interim Final Rule
- Toolkit on State Actions to Mitigate COVID-19 Prevalence in Nursing Homes
Centers for Disease Control and Prevention (CDC)
- Nursing Homes and Long-Term Care Facilities Guidance
- COVID-19 Vaccines for Long-Term Care Residents
- Federal Drug Administration - COVID-19 related guidance
U.S. Department of Health and Human Services
- Guidance for PREP Act Coverage for Qualified Pharmacy Technicians and State-Authorized Pharmacy Interns for Childhood Vaccines, COVID-19 Vaccines, and COVID-19 Testing (October 20, 2020)
- Guidance for Licensed Pharmacists and Pharmacy Interns Regarding COVID-19 Vaccines and Immunity under the PREP Act (September 3, 2020)
- Guidance for Licensed Pharmacists, COVID-19 Testing, and Immunity under the PREP Act (April 8. 2020)
Select Caselaw on Federal Actions
Data
- MMWR COVID-19 Reports
- CDC COVID Data Tracker - Health Care Settings
- CDC Nursing Home COVID-19 Vaccination Data Dashboard
Characteristics and Quality of United States Nursing Home Reporting Cases of Coronavirus Disease 2019 (COVID-19)
Paula Chatterjee, MD et al.
JAMA Network, July 29, 2020
Community-Based Long-Term Care Has Lower COVID-19 Rates and Improved Outcomes Compared to Residential Settings
Julie Robison, PhD et al
JAMDA, Dec. 7, 2020
Staffing Levels and COVID-19 Cases and Outbreaks in United States Nursing Homes
Rebecca J. Gorges, PhD and R. Tamara Konetzka
JAGS, NOV. 2020-VOL. 68, NO. 11
Characteristics of United States Nursing Homes with COVID-19 Cases
Hannah R. Abrams, MD et al.
JAGS, Aug. 2020-VOL. 68, NO. 8
Rates of COVID-19 Among Residents and Staff Members in Nursing Homes--United States May 25-Nov. 22, 2020
Suparna Bagchi, DrPH et al.
Centers for Disease Control and Prevention Morbidity and Mortality Weekly Report, Jan. 15, 2021
Is the End of the Long-Term Care Crisis Within Sight?: New COVID-19 Cases and Deaths in Long-Term Care Facilities Are Dropping
Priya Chidambaram
Kaiser Family Foundation, Feb. 24, 2021
Association of Nursing Home Ratings on Health Inspections, Quality of Care and Nurse Staffing with COVID-19 Cases
Jose F. Figueroa, MD, MPH et al.
JAMA, Sept. 15, 2020 Volume 324, Number 11
A Study of the COVID-19 Outbreak and Response in Connecticut Long-Term Care Facilities
Patricia Rowan, M.P.P., PMP
Mathematica, Inc, Sept. 30, 2020
Legislation
- COVID-19 Nursing Home Protection Act, S. 333
- A National Tragedy: COVID-19 in the Nation’s Nursing Homes
Senate Finance Committee Hearing - March 17, 2021
New York State Statutes
Emergency Powers Provision: N.Y Executive Law §29-a
as amended by L. 2020, c. 23
(Paragraph a of subdivision 2 of section 20 of the executive law) to include the term “disease outbreak,” and allowing the governor to suspend “statute, local law, ordinance, or orders, rules or regulations, or parts thereof, of any agency during a state disaster emergency, . . . if necessary to assist or aid in coping with such disaster.”
Repeal of Immunity Provision N.Y. Public Health Law, Article 30-d
Agency Guidance & Data
Implementation of Pharmacy Partnership for Long-Term Care Program - Approximately 600 nursing homes across the state that are participating in the program
Department of Health - COVID data tracker
COVID-19 Nursing Home and Adult Care Guidance Review Version 1.0
Attorney General - Nursing Home Response to COVID-19 Pandemic
Office of People With Developmental Disabilities
Immunity
Governor’s Executive Order 202.10 - limited immunity for health care providers related to Covid-19
Immunity Provision: N.Y. Public Health Law, Art. 30-d
Crisis Standards of Care and State Liability Shields
Valerie Gutmann Koch
57 San Diego L. Rev. 973 (2020)
Nursing Homes Need Increased Staffing, Not Legal Immunity
Nina A. Kohn and Jessica L. Roberts
The Hill (May 23, 2020)
Reports & Research
New York State Comptroller's Office: New York State Department of Health's Use, Collection and Reporting Infection Control Data
Issued March 15, 2022, this audit found that the Department failed to provide accurate and reliable information during a public health emergency, and instead understated the number of COVID-related deaths at nursing homes by as much as 50%; at times, the Department deliberately misled the public. Moreover, the Department failed to routinely analyze data at its disposal to detect interfacility outbreaks, geographic trends, and emerging infectious diseases or to shape its infection control practices and policies and its oversight of facilities.
COVID-19 outcomes among people with intellectual and developmental disability living in residential group homes in New York State
Disability and Health Journal, June 19, 2020
Examining How Crisis Standards of Care May Lead to Intersectional Medical Discrimination Against Covid-19 Patients
The Bazelon Center for Mental Health, The ARC of the United States, Lawyers Committee for Civil Rights, Justice in Aging, ASAN, CUNY School of Law, DREDF, National Disability Rights, CPR, with Professors Natalie Chin and Jasmine Harris Feb. 2021
Factors Associated with Nursing Home Infections and Fatalities in New York State During the COVID-19 Global Health Crisis
February 11, 2021
New York State Bar Association Health Law Section COVID-19 Report
May 14, 2020, revised September 20, 2020
Nursing Home Response to COVID-19 Pandemic
N.Y. Attorney General, January 30, 2021
DOH Response - New York State Bar Association Report, Task Force on Nursing Homes and Long Term Care
Vaccination Guidance - Your Legal Questions Answered: COVID-19 Vaccine
Legislature
Executive Budget Amendments re Nursing Home Reform, New York State
S. 2507, A. 3007, 2021-2022
The following measures were passed and signed into law in the wake of the first COVID waves, to improve nursing home quality of care and accountability.
Publication of Nursing Home Ratings - Chapter 441, Laws of 2021
Requires that the most recent Center for Medicare and Medicaid Services (CMS) rating of every nursing home be prominently displayed on the home page of the Department of Health's website and at each nursing home facility's website and displayed at the facility for view by the general public.
Allowing Compassionate Care-Giving Visitors - Chapter 69, laws of 2021
Creates a standardized program to allow personal care and compassionate care visitors at nursing homes.
Requirements for Transfer, Discharge and Voluntary Discharge - Chapter 80, Laws of 2021
Sponsored by Senator Gustavo Rivera, creates requirements for the transfer, discharge and voluntary discharge of residents from residential healthcare facilities.
Standards for Ownership of Nursing Homes - Chapter 102, Laws of 2021
Requires more review of ownership of nursing homes through the certificate of need process - including consideration of past violations at other facilities by owners - and requires more notice to the public during the CON process.
Transparency of Violations - Chapter 344, Laws of 2021
Requires residential health care facilities to disclose in writing to potential residents and their family members the website where a list of violations and other actions taken against the facility can be found.
Selected Cases
Empire Center for Public Policy v. New York State Department of Health
Albany County State Supreme Court decision holding that New York State Department of Health collects and maintains COVID-19 nursing home and assisted living center data requested by petitioner and violated New York’s Freedom of Information Law by subjecting petitioner to unreasonable delays in providing the requested information.
Articles
Opinion - Proposals threaten nursing homes
Michael Balboni, Albany Times-Union March 22,2021
How Vaccine Hesitancy Is Driving Breakthrough Infections in Nursing Homes
Masha Gessen, The New Yorker, April 27, 2021
Maggots, Rape and Yet Five Stars: How U.S. Ratings of Nursing Homes Mislead the Public
Jessica SIlver Greenberg & Robert Gebeloff, , N.Y. Times, March 13, 2021
Tragedy Must Lead to Reforms
Michael Brevda, Albany Times Union, March 12, 2021
High Staff Turnover at U.S. Nursing Homes Poses Risks for Residents’ Care
Reed Abelson, N.Y. Times, March 1, 2021
Early COVID-19 First Dose Vaccination Coverage Among Residents and Staff Members of Skilled Nursing Facilities Participating in the Pharmacy Partnership for Long-Term Care Program--United States, December 2020-January 2021
Radhika Gharpure et al.
Centers for Disease Control and Prevention Morbidity and Mortality Weekly Report, February 1, 2021
Can Long-Term Care Employers Require Staff Members to Be Vaccinated?
Radhika Gharpure et al, N.Y. Times, March 5, 2021, updated March 8, 2021
Long Term Care Residents’ Advocacy Organizations
Albany Guardian Society
Its mission is to engage in a wide range of activities including education, research, information, and community engagement that will improve the quality of life for seniors, their families, and caregivers in the Capital Region.
American Bar Association Commission on Law and Aging
The Commission secures and strengthens the legal rights, dignity, autonomy, quality of life and quality of care of older adults through research, policy development, advocacy, education, training and through assistance to lawyers, bar associations and others working on aging issues.
Capital Region Villages Collaborative
Villages are self-governing, grassroots, membership, nonprofit organizations run by volunteers, and sometimes paid staff, that coordinate access to a variety of services and activities for seniors wanting to maintain independence in their own home.
Center for Elder Law and Justice
Provides free civil legal services to seniors, people with disabilities and low-income populations in Western New York. Their goal is to protect the essentials of life such as housing, income, access to healthcare and protection from abuse. Some of their services include: health care advocacy, elder abuse prevention, housing and consumer protection.
Center for Medicare Advocacy
The Center for Medicare Advocacy is a national, non-profit, law organization that works to advance access to comprehensive Medicare coverage, health equity, and quality health care for older people and people with disabilities. Its work includes legal assistance, advocacy, education, analysis, policy initiatives, and litigation of importance to Medicare beneficiaries nationwide.
Coalition of Institutionalized Aged & Disabled
The Coalition of Institutionalized Aged and Disabled (CIAD) is a non-profit, grassroots organization run by and for adult home and nursing home residents and resident councils, dedicated to protecting the rights of residents and improving the quality of their life and care. It is governed by a Board of Directions, largely composed of residents in the NYC area.
Consumer Voice
The Consumer Voice is the leading national voice representing consumers in issues related to long-term care and a primary source of information and tools for consumers, families, caregivers, advocates and ombudsmen to help ensure quality care for the individual.
Disability Rights New York
DRNY is a Protection and Advocacy System and Client Assistance Program for persons with disabilities. DRNY advocates for the civil and legal rights for New Yorkers with disabilities. DRNY provides free legal and advocacy services to individuals with disabilities and works to protect and advance the rights of children and adults with disabilities.
Family Service League in Suffolk County
Family Service League (FSL) helps individuals, children, and families on Long Island to mobilize their strengths and improve the quality of their lives at home, in the workplace, and in the community. FSL assists with seniors seeking companionship, homeless seeking shelter, and provides assistance to those suffering from addiction and mental illness.
Independent Consumer Action Network (ICAN)
Independent Consumer Action Network (ICAN) provides information about Medicare and Medicaid programs for people receiving long-term care, such as home care or nursing home care.
Justice in Aging
Justice in Aging focuses on advocacy, training, and litigation on health care and economic security with the goal of having an impact on the lives of low-income seniors.
Long Term Care Community Coalition
LTCCC is a nonprofit organization which works to improve the quality of care, quality of life and dignity for elderly and disabled people in nursing homes, assisted living, and other residential settings. LTCCC focuses on systemic advocacy by researching national and state policies, laws and regulations to identify relevant issues and develop recommendations to improve quality, efficiency, and accountability. LTCCC then uses this research and recommendations to educate policymakers, consumers, and the general public.
Long Term Care Ombudsman Program
New York’s LTCOP is a resource for older adults and people with disabilities who live in nursing homes, assisted living, and other licensed adult care homes. The program provides information and consultation to residents, families, facility staff, and community about issues in long term care and specific issues they are experiencing in facilities, advocates on behalf of residents to assure rights are not violated, identifying, and investigating and working towards resolution of resident complaints.
Mental Hygiene Legal Services
The Mental Hygiene Legal Service (MHLS) is a New York State agency responsible for representing, advocating and litigating on behalf of individuals receiving services for a mental disability under the care or jurisdiction of State-operated or licensed facilities. It also provides protective legal services and assistance in proceedings under the Mental Hygiene Law (MHL) Article 81 Guardianship and most of the MHL Assisted Outpatient Treatment.
Mobilization for Justice
Offers free legal assistance to low-income New Yorkers throughout New York City. Some of their legal areas include: housing; foreclosure; civil, disability, and aging rights; bankruptcy, tax, consumer, employment, government benefits; immigration; and kinship care. Their goals include: prevent homelessness, help seniors and people with disabilities live independently, stabilize families, maintain and increase income, and address racial disparities.
Nassau-Suffolk Law Services
Nassau-Suffolk Law Services provides free legal services for civil matters to people with low incomes or disabilities on Long Island. Some services include applications for Medicaid, SNAP, SSI, and temporary shelter. It also provides extensive community education and outreach.
National Association of Nursing Home Attorneys
The National Association of Nursing Home Attorneys (NANHA) works to protect the rights of older adults by using the skills and expertise to address nursing home abuse through civil and criminal law.
New York Association for Independent Living
New York Association for Independent Living (NYAIL) is a not for-profit, non-government membership organization composed of, Independent Living Centers (ILCs) throughout New York State. NYAIL advances the independence of New Yorkers with disabilities through advocacy, education, resources, referral and the exchange of information.
Other Resources & Self-Help Information
American Bar Association Commission on Law and Aging, Health Care Advance Planning Packet
This tool kit contains a variety of self-help worksheets, suggestions, and resources which provide guidance for advance health care decision-making.
Care Compare
A searchable federal nursing home website.
Caregiver Resources & Long-Term Care
This resource offered by the U.S. Department of Health and Human Services includes links for national caregiver support program; eldercare locator; alternatives to nursing homes; health information counseling and more.
Elder Care Locator
This resource, a public service of the federal Administration on Aging, includes links for national caregiver support program; eldercare locator; alternatives to nursing homes; health information counseling and more.
Mobilization for Justice Nursing Home Resident Guides
Also see MFJ’s useful guides on Medicaid, Adult Home Residents’ rights, and other topics in this self-help list.
National Partnership – Dementia Care Resources
The National Partnership to Improve Dementia Care in Nursing Homes (the National Partnership) provides resources to assess the quality of care for individuals with dementia, living in nursing homes. It provides a list of dementia care resources by category
New York State Bar Association Webinars
Webinar programs on a variety of issues relating to long term care.
New York State Office for the Aging
The New York State Office for the Aging identifies and connects individuals with programs and services relating to caregivers, housing, health, employment, transportation, elder abuse, food and meals, and veterans.
NY Connects - Find Local Offices
NY Connects provides one stop access to free, objective, comprehensive information and assistance on long term services and supports for people of all ages or with any type of disability. NY Connects programs are located across the state. A listing of each local program can be found through the website.
ProPublica’s Nursing Home Inspect
A searchable website to compare nursing homes based on the deficiencies cited by regulators and the penalties imposed in the past three years, as well as trends and patterns.
U.S. Department of Veterans Affairs; also here
Older veterans may be eligible for a wide-variety of benefits available to all U.S. military Veterans, including disability compensation, pension, education and training, health care, home loans, insurance, Veteran Readiness and Employment, and burial.