Senior woman sitting on the wheelchair alone

submitted by Liam McMahon, Paralegal

On May 8th the Centers for Medicare & Medicaid services published a new rule for nursing homes that will change what COVID-19 information they are required to report to residents, their family and representatives, and CMS itself. Those requirements are detailed below, along with where residents and family can turn if a nursing home is not following these new rules.

With the current ban on visitation in effect, many resident representatives and family members of residents have felt left in the dark about what their loved one’s nursing home is doing to fight COVID-19, and what the state of infection is in their home. The new requirements from CMS will mandate that nursing homes keep their residents and their families up to date about the status of the virus.

Nursing homes are now required to inform residents, their representatives, and their families by 5.p.m. the next calendar day every time they have a confirmed case of COVID-19 or if they have 3 or more residents or staff with respiratory symptoms within 72 hours of each other. Nursing homes are not, however, allowed to include any personally identifiable information with their notice. This notification can be delivered in any way the home chooses as long as every individual entitled to the notice receives it. For example, a nursing home can send the same e-mail or voice mail to every individual they are required to notify. It’s important to remember, however, that if you or your family member themselves test positive for COVID-19 the nursing home must inform you personally of this health change.

The respiratory symptoms that trigger the new rules include: Shortness of breath, difficulty breathing, new or change in cough, sore throat, or new loss of taste or smell. Less often COVID-19 symptoms will include: New sputum production, rhinorrhea, or hemoptysis. Updated information on COVID-19 symptoms can be found at: https://www.cdc.gov/coronavirus/2019-ncov/hcp/long-term-care.html

Nursing homes are also required to include the actions that they are taking to help prevent further transmission of the virus in their notification. They must also state if normal operations at the nursing home will change as result (e.g., cancelation of group activities).

After their first confirmed case of COVID-19, any nursing home must provide a cumulative total of confirmed COVID-19 cases as well as clusters of residents or staff with respiratory symptoms within 72 hours at least weekly and by 5 p.m. the next calendar day for any new case or cluster. Nursing homes are not required to distinguish between new and total cases and are not required to distinguish between residents and staff when reporting clusters of respiratory symptoms.

These new reporting requirements do not change requirements that were put into place by Governor Cuomo for New York State that mandate that nursing homes must notify family members or next of kin if any resident tests positive for COVID-19, or if any resident suffers a COVID-19 related death, within 24 hours of such positive test result or death. Read more about those requirements on our blog located here: https://elderjusticeny.org/new-york-state-nursing-home-inspections/

Nursing homes are now also required to report COVID-19 data directly to CMS and the Centers for Disease Control every week, some of which will be made available to the public. CMS hopes to be publically releasing this data every week by the end of May and it will include: Facility names, number of COVID-19 suspected and confirmed cases, deaths, and other data as CMS decides is appropriate). That data will be located at: https://data.cms.gov/

Where to turn if there are Concerns:

It is important to remember that residents and family members are not alone. If there are concerns about a nursing home’s failure to properly notify family, or there are concerns about resident safety and care, we encourage residents and family to speak up. There are three main avenues for complaints to be raised in New York State: the (1) Long Term Care Ombudsman Program; (2) Department of Health; and (3) Attorney General-Medicaid Fraud Control Unit.

Long Term Care Ombudsman Program:

Is a nursing home (and adult care facility) resident advocacy program. Ombudsmen help residents understand and exercise their rights and also advocate by investigating and resolving complaints made by or on behalf of residents. Ombudsmen can provide resident rights information, and assist with facilitating communications with nursing homes. For residents in Cattaraugus, Chautauqua, Erie, or Niagara Counties, contact the ombudsman program at (716) 817-9222. For other counties, contact 1-855-582-6769.

Department of Health

Is the agency responsible for investigating complaints and regulating nursing homes in New York that are related to Federal and/or State regulatory violations. The Department of Health has the authority to issue citations, fines, and revoke operator licenses. Complaints may be made via phone 1-888-201-4563 or online at:  https://www.health.ny.gov/facilities/nursing/complaints.htm

Attorney General-Medicaid Fraud Control Unit

Investigates and prosecutes abuse and neglect of residents in nursing homes. In response to COVID-19 pandemic, the Medicaid Fraud Control Unit has launched a hotline where residents, families, or members of the public can share complaints about nursing homes that have not provided required communications with families about COVID-19 diagnoses or fatalities. The hotline is also accepting complaints about nursing home abuse and neglect, including failure to follow rules to keep residents safe. Confidential complaints can be filed at 833-249-8499 or online at https://ag.ny.gov/nursinghomes / In addition, residents, family, staff and other members of the public can contact the regional office at (716) 853-8500.

The safety of every person who lives in a nursing home (and adult care facility) is essential. It is important for people to reach out if they have concerns. Enforcement is important, but so is ensuring nursing homes receive the resources they need to ensure residents and staff are safe. It is important oversight entities receive concerns to also address facility needs.

Center for Elder Law & Justice Is Available to Help

If residents, family, or staff, have concerns about the quality of care, safety and COVID-19 response in a nursing home, we are here to assist and connect you with the appropriate resource. Our free legal advice helpline is open statewide to all ages and incomes, and we can also be contacted at our general office line. For assistance, call 1-844-481-0973 any time and leave a message, or between 9am-11am to reach an attorney directly. Individuals can also e-mail helpline@elderjusticeny.org with their name and phone number. All messages will be returned within 1 business day. To reach our general office line, call (716) 853-3087.

PLEASE NOTE: This information provided above is subject to change and should not be construed as legal advice.

 

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