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.
- https://www.hhs.gov/sites/default/files/vi-transparency-program-integrity.pdf
Federal Long Term Care Ombudsman Program (LTCOP)

The LTCOP operates under the authority of the Older Americans Act, 42 U.S. C. Chapter 35.

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.

On May 10, 2024, a federal rule governing “Minimum Staffing Standards for Nursing Homes” (national minimum staffing requirements for nursing homes to improve the care that residents receive and support workers by ensuring that they have sufficient staff) was published in the Federal Register and will become effective on June 21, 2024.
- https://www.govinfo.gov/content/pkg/FR-2024-05-10/pdf/2024-08273.pdf
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
42 CFR 483.70
https://www.ecfr.gov/current/title-42/chapter-IV/subchapter-G/part-483/subpart-B/section-483.70#p-483.70(n)

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.2d 1190 (N.Y. App. Div. 2003)
- King v. New York State Dept. of Health - 295 A.D.2d 743 (N.Y. App. Div. 2002)
- Goldsmith v. De Buono - 245 A.D.2d 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 district court orders California to enforce federal nursing home standards and investigate complaints in compliance with federal procedures, and subsequently approved settlement agreement.
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.
Beverly Health & Rehabilitation v. Thompson (D.D.C. 2002) – Federal district 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

New York State Agencies

Department of Health (DOH)
- Nursing Homes
  - Dear Administrator Letters
  - Complaints About Nursing Home Care
  - Your Rights as a Nursing Home Resident in New York State
  - PASRR Guidance (Preadmission Screen Resident Review)
- 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
New York State Executive Law, Article 2-B
§ 23-b.
The Disaster Preparedness Commission is empowered to establish standards for nursing homes and assisted living facilities regarding disaster preparedness plans.
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.
42 USC § 3058g(b)(1)(A)
42 CFR Title 42 Part 483 Section 10

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 § 296

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 / New York Department of Health MFP Site
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.

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

HCBS Waiver Program Basics

State Plan HCBS Guidelines

Medicaid Home-and-Community-Based Waiver Programs in New York State

Veteran Affairs Home and Community Based Services

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.
- Directory of MLTC plans
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
- NY Health Access Resources - Appeals & Hearings
Medicaid Home & Community Based Services Waivers
- Nursing Home Transition Diversion
- Traumatic Brain Injury
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.
- Regulations & Guidance to States
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
- Supported Decision-Making
  N.Y. Mental Hygiene Law, Article 82
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
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

Alternatives to Guardianship
- Finding the Right Fit: Decision-Making Supports and Guardianship
  Center for Elders and the 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
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
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
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.

New York State Attorney General's Advance Directives Guide

COVID-19

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 was 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 and Amendments

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), appeal dismissed and remand order vacated (2nd Cir. 2022)

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:

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

Centers for Disease Control and Prevention (CDC)

U.S. Department of Health and Human Services

Select Caselaw on Federal Actions

Biden v. Missouri (U.S. Supreme Court, Jan. 13, 2022). U.S. Supreme Court allows CMS vaccine mandate to go into effect.

Data

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
- Senator Bob Casey Summary
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.”

Immunity Provision: N.Y. Public Health Law, Art. 30-d

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

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.

Joint Virtual Legislative Hearing on Nursing Homes, Assisted Living, Home Health Care and COVID-19: August 3, and August 10, 2020

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

Residents’ advocacy and information resources

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.

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; Geriatric and Extended Care
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.