On April 23, Governor Cuomo announced a focused effort by the State Department of Health (DOH) and the State Attorney General (AG) to investigate nursing homes who violate Executive Orders that require nursing homes communicate COVID-19 test results and deaths to residents families. In addition, Governor Cuomo announced that DOH will inspect facilities that have not complied with directives issued by DOH and the Centers for Disease Control and Prevention (CDC). In an effort to inform and educate residents and families, we detail the reporting requirements nursing homes are required to follow during the pandemic and where residents and family turn if a nursing home is not following the COVID-19 specific guidance.

Reporting and Communication Requirements during COVID-19 Pandemic

With the ban on visitation, many residents and their families concerns are heighted and nursing homes from the beginning of the pandemic should have been facilitating communication, including when there was a suspected or positive COVID-19 case in the facility. Sadly, not every nursing home was doing this, and as a result, Governor Cuomo issued an Executive Order that requires: any nursing home (and adult care facility) 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. If the nursing home does not conduct this notification within 24 hours, the nursing home faces a penalty of $2,000 per violation per day and additional fines for subsequent violations. (Executive Orders 202.18 and 202.19, accessed at https://www.governor.ny.gov/news/no-20218-continuing-temporary-suspension-and-modification-laws-relating-disaster-emergency )

On April 19, the DOH issued guidance to nursing homes (and adult care facilities) that reminds facilities of the need to develop innovative ways to keep residents connected to their families and communities, in addition to the required compliance with the Executive orders.   The guidance reminds facilities of their obligation to meet the psychosocial needs of all residents, including emotional and physical well-being, self-determination, self-respect and dignity. The guidance also provides examples of best practices and ways to keep residents and families engaged during the pandemic. We encourage residents and families to review the guidance. If residents and/or family have questions about the methods the facility is using, we encourage them to contact the facility. In addition, residents and family should not be afraid to offer suggestions to improve communication. The guidance can be accessed https://coronavirus.health.ny.gov/system/files/documents/2020/04/doh-_covid_acf-nh_communicationpractices_041920.pdf  DOH previously issued guidance regarding nursing homes’ obligation to communicate with residents and family, on April 4. That guidance “strongly encouraged” facilities to implement a communication protocol, and can be accessed https://coronavirus.health.ny.gov/system/files/documents/2020/04/doh_covid19_acf-nh_residentfamilycommunication_040420.pdf

In addition, the Centers for Medicare & Medicaid Services (CMS), CDC and DOH has issued multiple guidance nursing homes should be following that pertain to infection control and prevention practices and COVID-19. For example, CMS has developed a COVID-19 focused survey for nursing homes as a self-assessment tool (https://www.cms.gov/files/document/qso-20-20-all.pdf )and DOH issued its own checklist to nursing homes that includes links to current CDC guidance. (https://coronavirus.health.ny.gov/system/files/documents/2020/04/doh_covid19_ltcf-ipcselfassesmenttool_041020.pdf )

Residents or family members who have questions about a nursing homes infection control response to COVID-19 and what is being done to protect the residents, should not be hesitant to contact the nursing home. Communication is essential in ensuring resident safety and addressing concerns.

Residents have the Right to Safe and Quality Care.

Nursing home residents have rights and each resident, no matter their care needs, has the right to receive safe and quality care. As Governor Cuomo stated yesterday, nursing homes should not admit residents for whom they cannot provide care. This was true pre-pandemic, it is especially true now. If residents or family members have questions about their rights, please contact our office.

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. We have our free legal advice helpline that is open statewide to all ages and income and 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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